This single judgment shall form the detailed reasoning of my earlier short order of even date, whereby , two matters
(i) W.P. No.25302/2014 titled "GOHAR NAWAZ SINDHU versus, GOVERNMENT OF THE PUNJAB, etc" and (ii)
W.P. No.25426/2014 titled "PAKIST ANI AWAMI TEHREEK versus GOVERNMENT OF THE PUNJAB, etc" having same subject were disposed of. For facility of reference the short order is reproduced hereunder- This single order shall dispose of two petitions i.e. Writ Petition No.25302/2014 titled "Gohar Nawaz Sindhu versus Govt of the Punjabi etc." and Writ Petition No.25426/2014 titled "Pakistan Awami Tehreem versus Govt. of the Punjab, etc".
2. Although, learned Law Officer states that all the detenus in the Province of Punja b have been released except 36 relating to District Rawalpindi, however , their appeals have been conditionally allowed that they may be released after submission of bail bond in the sum of Rs.1,00,000/-(one lac) each with one surety each in the like amount to the satisfaction of District Coordination Officer , Rawalpindi.
3. The representative of Prison Department submitted his report. As per report, except above said 36 detenus, all the detenus relating to any political party detained from 1st of August, 2014 till today have been released by accepting their appeals and orders of the Court have been implemented.
4. Today , matter was argued before the Court only with regard to 36 detenus detained by the order of District Coordination Officer , Rawalpindi. In this regard, the reasons to be recorded later on, order dated 24.9.2014, passed by the Secretary , Government of the Punjab, Hone Department and the order of District Coordination Officer , Rawalpindi, in this regard are declared illegal, void, ab-initio; hence, the officials respondents are directed to- immediately release these 36 detenus without obtaining any bail bond.
5. With this direction, both writ petitions are disposed of".
Both the writ petitions were filed with the prayer that respondents detained a large number of persons throughout the Province of Punjab without any legal justification and that all the detenus be released by setting aside the detention orders issued by the respondents.
2. The liberty of citizen is an important fundamental right guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, so in order to avoid unnecessary delay which was likely to be caused due to statutory technicalities, copies of both the petitions were handed over to learned Law Officer with the direction for their onward transmission to Secretary Home, Government of the Punjab, Lahore who shall treat the same as appeal/representation on behalf of the detenus and, after examining the record, shall decide them. Meanwhile, a report was requisitioned from Inspector General (Prisons) Punjab who appeared before this Court along with detailed report to the effect that in total 3509 persons related to Pakistan Awami Tehreek and Pakistan Tehreek-e- Insaf were detained firstly on the orders of concerned District Coordination Officers and later on, by the orders of Secretary Home, Government of the Punjab. Amongst those detenus, 2958 were released but 551 were still detained in different Jails of the Province of Punjab. Out of these detainees, 225 belong to Pakistan Tehreek-e- lnsaf, 309 related to Pakistan Awami Tehreek while 17 others were detained on different grounds and their detention has not been assailed in both these writ petitions.
3. Today learned law Officer informed that by accepting the representations of the detenus relating to Pakistan Tehreek-e-Insaf and Pakistan Awami Tehreek they have been released, except 36 persons detained in Central Jail Rawalpindi and District Jail Attock by the orders of District Coordination Officer, Rawalpindi and whose representations have been accepted with the condition that they should be released subject to executing a surety bond. Relevant para No.5 of the order passed by Secretary Home, Government of the Punjab is as under:- "In consideration of the above, the Representations of the aforementioned detenue s are hereby accepted and the detenues are released forthwith, subject to executing a surety bond of Rs. 1,00,000/- to the satisfaction of District Coordination Officer Rawalpindi, if not required in any other case".
4. Learned counsel for the petitioners submitted that while passing detention orders under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the concerned authorities had not applied their mind to satisfy themselves whether the activities of the detenus are prejudicial to public safety or maintenance of public order; no incriminating material was available before the detaining authorities at the time of passing of the impugned orders and grounds of detention were not delivered to the detenus. Even condition imposed by the respondents is against the spirit of sub section 9 of section 3 of the West Pakista n Maintenance of Public Order Ordinance, 1960. Further submitted that cost be imposed on the respondents and Government of the Punjab for each detenu on daily basis.
5. On the other hand, learned Law Officer representing Provincial Government submitted that these writ petitions are not maintainable as some have been filed in representative capacity; petitioners are not aggrieved persons and detenus have not availed alternate and adequate remedy available to them under the relevant provision of law.
Added that the condition imposed in 36 cases for submission of surety bond to the satisfaction of District Coordination Officer, Rawalpindi is within the parameters of law as there is apprehension that these persons after release from Jails may indulge themselves in activities prejudicial to public safety and maintenance of public order .
6. Learned Law Officer in response to the stance taken by learned counsel for the petitioners about imposition of fine, submitted that the authorities acted in good faith and therefore, fine may not be imposed.
7. On Court query , admits that all these persons were released on bail in earlier criminal cases and were detained considering the law and order situation prevailing in the Country and affiliation of these detenus with the political parties i.e. Pakistan Tehreek-e-Insaf and Pakistan Awami Tehreek which can provoke these persons for activities which could be prejudicial to public safety .
8. I have heard both the parties at length and perused all available record.
9. Although, under Article 199 (1) (a) of the Constitution of Islamic Republic of Pakistan, 1973, writ can be issued on the application of any aggrieved party but as the Constitution protects the liberty of citizen; hence, under Article 199 (1) (b) (i) on the application of any person a direction for release of person could be issued if the Court is satisfied that the custody of any person within its territorial jurisdiction is without lawful authority or in an unlawful manner . From bare reading of Article 199 of the Constitution, it appears that for the purpose of releasing a person from unlawful custody or who has been detained in unlawful manner , the embargo of aggrieved party does not attract and any person could file such petition whether he is related or known to the detenu or not, therefore, this Court is competent to entertain a writ petition, if it is satisfied that any person has been detained illegally or in unlawful manner it could pass order to produce him before the Court or record for his detention before the Court to satisfy itself whether detention is lawful or any person has been detained in unlawful manner and for this purpose, the condition of aggrieved person does not hold the field and this Court could initiate inquiry to satisfy itself:-
(i) whether detention order has been passed by the competent authority ,
(ii) whether by bare reading of the detention order it could be declared a valid detention order;
(iii) whether there is any material available with the authority in support of deten tion order which appeal to the prudent mind; and
(iv) whether restriction imposes by the relevant law and the Constitution of Islamic Republic of Pakistan, 1973 has been observed or not.
Hence, the objection of learned Law Of ficer with regard to aggrieved persons is not a valid objection.
10. Second stance of learned Law Officer that alternate and adequate remedy , which is condition before invoking the writ jurisdiction, has not been availed by the detenus, this contention has also no force because as per, report, more than 3509 persons were detained in the Province of Punjab, normally , in our Country people live in joint family system' or have strong relations at least with their maternal and paternal families; hence, considering this fact at least 30000 to 40000 families were disturbed by the detention orders and for the same reason, this Court transmitted the copies of writ petitions to the concerned authority for treating the same as representations. Same were treated as representations and decided accordingly . It is not necessary that representation must be filed by the detenu himself because as detenu is in custody and in our Country , in normal course it will be difficult for him to move a representation petition before the authority specially in the circumstances when the concerned officials of Jail and police department did not advance support to them in this regard and moreover , as it was observed in some earlier petitions and during the proceedings of these writ petitions almost in all cases, the grounds of detention were not delivered to the detenus at the time of their detention; hence, delivery of copies of writ petitions by the learned Law Officer to Secretary Home, Government of the Punjab is sufficient to be equated with the representations of the detenus; hence, this objection is also overruled.
11. Now coming to the provision of section 3 of West Pakistan 'Maintenance, of Public Order Ordinance, 1960, this section imposes certain conditions while passing the detention order and if these conditions are not fulfilled then the detention order is illegal and void because Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 provides that all citizens should be treated in accordance with law, must enjoy protection of law and this right could not be taken away by any administrative authority and if any administrative authority passes any order against the statutory provisions or against the fundam ental rights guaranteed by the Constituti on, same is amenable to judicial review by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as liberty of the citizen is divine right protected by Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, save in accordance with law .
12. For passing orders about preventive detention, statutory authorities must observe the following conditions: -
(i) the authority should satisfy itself on the basis of reasonable material which should appeal to the prudent mind that activities of the detenus are pre-judicial to the public safety and maintenance of public order;
(ii) for the purpose of satisfaction there should be sufficient material, strong reasons and only declaration of satisfaction is not the object of law;
(iii) detaining authority could not pass the preventive detention order arbitrarily , perversely , on the basis of surmises and conjecture and the authority is bound when required to show the Court the material which could form reasonable grounds for passing the order;
(iv) the authority is bound to provide copy of the grounds of detention order to the detenu so to enable him to file representation before the authority , if so, desired;
(v) there must be material with regard to each ground which is base of detention order , if same is lacking with regard to any one ground then whole the order is liable to be set aside;
(vi) authority while exercising his jurisdic tion for detaining a person shall ensure that fair process of law must be carried out; and
(vii) Court can examine the way in which detaining authority exercise his jurisdiction whether while passing the detention order fair process or law has been carried out or not.
13. Although, on the date of hearing, respondents' authorities were directed to produce the relevant material but no such material has been produced before the Court to satisfy grounds of detention passed against 36 detenus detained in Central Jail Rawalpindi and District Jail Attock by the orders of the District Coordination Officer, Rawalpindi. Although, sufficient time was granted to the respondents-authorities, but in the light of non-production of any material, it is safely presumed that no material was available with the detaining authority to support the grounds of detention and it appears that while passing the impugned order concerned authority has not applied its judicious mind.
14. Another important aspect of the matter relates to imposition of condition imposed by Secretary Home, Government of the. Punjab while accepti ng representations of the detenus, in section 3 (9) of the West Pakistan Maintenance of Public Order Ordinance, 1960, it is mentioned that: "Government may at any time, subject to such conditions as it may think fit to impose, release a person detained under this section and may require him to enter into a bond, with or without sureties, for the due observance of the conditions".
From bare reading of above reproduced Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 with regard to detention order and especially subsection (9) of Section 3 of the said Ordinance it becomes clear that the appellate authority firstly has to satisfy itself whether order for detention passed under section 3. ibid, is within the parameters of law as stared above and if the order is within the parameters of law then in exceptional circumstances authority may direct release of a person on bond for due observance of the conditions and in this regard he could impose certain conditions which have to be fulfilled by the detenu and in case of non-fulfillment of such conditions his bound should be forfeited. But in this case as it has been obser ved above, the impugned order- of detention is liable to be set-aside on the following grounds:-
(i) Although some reasonable. conditions could be imposed requiring fulfilment- of those conditions by the detenu and before imposing any condition, the authority must examine that conditions mentioned in para-12 above have been fulfilled by the authority who passed the detention order:
(ii) Although the authority has directed the release of detenus after obtaining bail bond, but no condition has been imposed which has to be fulfilled by the detenus and case of non-compliance of that condition, their surety had to pay the amount of bound, if the same is forfeited:
(iii) The condition imposed in the impugned Order is also bad in law for the reason that the said detention order itself mentions that detenus were arrested in other cases and they were granted bail. In such circumstances, when &terms were already hauled up in criminal proceedings, on same ground neither detention order could be passed nor the impugned condition could be imposed. The case "ARSHAD ALI KHAN versus GOVERNMENT OF THE PUNJAB" (1994 SCMR 1532 ), is referred, wherein the apex Court had concluded that "Where the Police had already registered a case against the detenu under various provisions of Penal Code that clearly showed that the detenu was accused of substantive Offences and - therefore; his preventive detention on the same allegations could not be justified" Reliance is also placed on the case "HUMA YUN versus D.C.O KOHA T (2014 PCr.LJ 173). wherein , it was held that Petitioner remained involved in sonic offences fur which he was charged, tried and sentenced--- If he once again had committed any such offence then the legal course would be to hook him in relevant offence instead of going for preventive detention.
(iv) Further in the impugned order the District Coordination Officer himself submitted that further detention of the detenus was not required. When the authority himself had observed so, no condition could be imposed.
15. As an accumulative effect of all above, these writ petitions are allowed, the detention orders are declared illegal, void-ab-initio and detention of these 36 persons is held to be unwarranted in law. They be released forthwith if not required in any criminal case.
16. Although, learned counsel for the petitioners argued that costs be imposed on the respondent including Government of Punjab for each deten u on daily basis, but on the direction of this court while deciding representations a large number of detenu s were released by the authority from different Jails all over the Punjab, except these thirty six persons who were directed to submit bond. As no previous guideline about obtaining bond was available, therefore, in the facts and circumstances of this case, order with regard to imposition of cost is not deemed appropriate.