MUHAMMAD QASIM KHAN, J.--- This judgment shall form the detailed reasoning of my earlier short order of even date, whereby , three matters (i) W.P.No.10926/2014 "SAJJAD HUSSAIN versus DISTRICT COORDINA TION OFFICER, Layyah and others ", (ii) W.P.No.10971/2014 "MUHAMMAD RAMZAN versus DISTRICT COORDINA TION OFFICER and others " and (iii) W.P.No. 10972/2014 "MUHAMMAD GHULAM MUST AFA versus DISTRICT COORDINA TION OFFICER and others, were allowed.
2. Briefly the facts are that respondent/ DCO, Layyah vide separate orders No. 4032 dated 06.08.2014, No. 4078 dated 08.08.2014 and No. 4079 dated 08.08.2014 directed detention of Fayyaz, Qadeer Ahmad and Ghulam Yahya, respectively for certain periods, on almost similar grounds that they are (i) hard liner and supporter of Pakistan Awammi Tehrek/TMQ, create ill will and hatred amongst public by delivery fiery speeches and inciting the general public to resort to disharmony , (ii) active member and supporter of an organization which is openly opposed to the constitutionalism in the country , create ill will among masses and provoke them to revolt against Government Institutions and authorities and that (iii) their activities are inciting general public to resort to agitation and create instability and anarchy in the society and they are acting prejudicial to public safety , tranquility and public peace.
3. Report and parawise comments have been received from District Coordinat ion Officer, Layyah and District Police Officer, Layyah. The report submitted by District Coordination Officer, Layyah nothing more than repetition of charges already levelled in the impugned detention orders, whereas. in his report the District Police Officer, Layyah has given a very brief history to the effect that concerned S.H.O had submitted reports to his office showing antecedents of the detenus, which were forwarded to the District Coordination Officer, Layyah with a request to issue detention orders under section 3(1) of the West Pakistan Maintenance of Public Order , 1960 for maintaining peace and tranquility .
4. The Law officer was directed to argue the cases and produce before the court whatever the material is available against the detenus. Thus, lengthy hearing has been given to the parties.
5. The learned Assistant Advocate General could only refer to one Rupt No.27 dated 07.08.2014 of police station Saddar , Layyah, showing that Qadeer Ahmad and Ghulam Yahyah members of Minhaj ul-Quran entice public and compel them to have sit-in. As, on the face of it the said report had been tempered, D.S.P and S.11.0 of the concerned police station were called along with entire relevant record and the S.H.O admitted that said rapt had not been entered in the police station record or even in any other record in the office of D.S.P or the D.P.O. In this respect separate contempt proceedings have been initiated against the concerned. The learned Law Officer argued that detenus Fayyaz Hussain, Muhammad Qadeer and Ghulam Yahya are support ers of Pakistan Awammi Tehrek, they create ill will and hatred amongst public by delivering speeches and incite general public to revolt against the government institutions and authorities. But on inquiry by the Court whether these activities are not covered by an penal clause of Pakistan Penal Code or the Anti-T errorist Act, 1997; as most of the allegations referred above are criminal offences under the Anti-T errorist Act. 1997 and why criminal cases were not registered after the information had been conveyed to the authorities, the learned Law Of ficer remained unable to reply .
5. This Court in the case "JAMEEL AHMAD versus DISTRICT COORDINA TION OFFICER, MUL TAN and others" (2013 P.Cr.L.J. 1322), has held that "The liberty of a. citizen, save in accorda nce with law is protected by the Constitution of Islamic Republic of Pakistan, 1973, and this Court being custodian of, he Constitution has to jealously protect and safeguard such fundamentally guaranteed rights." In the case "FEDERA TION OF PAKIST AN through Secretary . Ministry of Interior , Islamabad versus Mrs. AMA TUL JALIL KHA WAJA and others" (PLD 2003 Supreme Court 442), the Hon'ble Supreme Court of Pakistan. while setting down specific criteria to gauge whether a detention order is valid or not, held as under:- "S. 3(1) ---Preventive detention--Requirements to be satisfied by an order of preventive detention enlisted.
An order of preventive detention has to `satisfy the following requirements:
(i) the Court must be 'satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non- existent or irrelevant, the whole order of -detention would be rendered invalid; (iii) that initial burden lies on the detaining authority . to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide.
In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention. that the order of detention was made by the autho rity prescribed in the Iaw relating to preve ntive detention; that each of the requirements of the law relating to preventive detention had been strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu; that the, grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be"; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law; that the grounds of detention are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice."
The Hon'ble Supreme Court of Pakistan further provided guidelines for the detaining authority , as to on what conditions must exist, which would render their exercise based on their "satisfac tion. The relevant paragraph is reproduced hereunder:- "S. 3(1)---Constitution of Pakistan (1973). Art. 199--- Preventive detention---Judicial review---Scope--- "Satisfaction" of the detaining Authority---Nature---Cour t can see whether the "satisfaction" about the existence of the requisite condition is a "satisfaction really and truly" existing in the mind of the detaining Authority or one "merely professed by the detaining Authority" ---Court, in proper exercise of its Constitutional duty can insist upon disclosure of the materials upon which the Authority had acted so that it should satisfy itself' that the Authority had not acted in an "unlawful manner" -Principles, The Court can see whether the satisfaction about the existence of the requisite condition is a satisfaction really and truly existing in the mind of the detaining autho rity or one merely professed by the detaining authority . A duty has been cast upon the High Court, whenever a person detained in custody in the Province is brought before that Court, to "satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". This Constitutio nal duty cannot be discharged merely by saving that there is an order which says that he is being so detained If the mere production of an order of detaining authority , declaring that he was satisfied. was to be held to be sufficient also to "satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty. Therefore. it cannot be said that it would be unreasonable for the Court, in the proper exercise of its Constitutional duty, to insist upon a disclosure of the materials upon which the authority had acted so that it should satisfy itself that the authority had not acted in an "unlawful manner".
6. As shall be seen from the above reproduced portion of judgment from the cited case, it is manifest that edifice of satisfaction is to be built on the foundatio n of evidence, as conjectural presumption cannot be equated to that of "satisfaction "; it is subjective assessment and there can be no objective satisfaction. In exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, if this court comes to a conclusion that the grounds mentioned in the detention order are not supported by sufficient material, then there is nothing stopping this court from exercising the power of judicial review . There is plethora of judgments on the point that the material should be of such a nature by examination of which, a man of common prudence must form his opinion that detention order has been rightly passed and the detaining authority is required to establish each and every ground of detention on the basis of sufficient material to justify its order . If the material on any one of such ground is missing then the whole detention order would loose its sanctity and would be liable to be set-aside.
7. In the case "GULZAR AHMAD versus DISTRICT MAGISTRA TE and another" (1998 P.Cr.L.J. 1790) , it was held that fact of person being liable-to prosecution for commission of an offence in ordinary criminal Court cannot be a ground for preventive detention under the Ordinance. In the instant cases, no ground whatsoever has been mentioned by respondent No. 1 and the impugned orders on the face of it are clear indicative of the fact that the said authority neither examined the material nor applied its independent judicial mind.
8. Admittedly , none of the detenus has been enlisted in the 4th schedule. Section 11-EE of the Anti-T errorism Act, 1997, provides that where any informatio n is received that a person is an activist, office bearer or an associate of an organization, or in any way concerned or suspected to be concerned with such organization or affiliated with any such group or organization, the name of such person be placed in list entered in the Fourth Schedule. As such, if at all there was some material available with the government against the detenus, their names must have been placed in the Fourth Schedule and then would have been required to execute a bond so that their activities could be kept under watch. Unless and until any such order placing their names in the 4th schedule is passed, it could not at all be said that they are involved in anti state activities.
9. Furthermore, Section 154 of the Code of Criminal Procedure, 1898 only requires laying an "information" about the commission of a cognizable offence. The Word "information" has been defined in BLACK'S LAW DICTIONAR Y SIXTH EDITION (Centennial Edition (1891-1991), as "An accusation exhibited against a perso n for some criminal offense, without an indictment:" Meaning thereby it is quite an initial stage and first step to set the law into motion by registration of a criminal case, where after, such information may be probed into and only then it can be concluded whether such information was true so as to lead towards indictment, or not. On the other hand, as discussed above with reference to the celebrated judgments, of the Hon'ble Supreme Court of Pakistan, "sufficient" grounds must exist which would firstly satisfy the conscious of the detaining authority and such satisfaction may consist upon such a material, on the basis of which even a man of common prudence would have no other option except to form an opinion tilting towards the detention order . BLACK'S LAW DICTIONAR Y SIXTH EDITION (Centennial Edition (1891-1991), had defined the word "sufficient", as "Adequate, enough, as much as may be necessary , equal or fit for end proposed, and that which may be necessary to acco mplish an object." Therefore, as compared to information within the meaning of Section 154 Cr.P.C., the stage to establish "sufficient" grounds to pass a detention order requires strict adherence to the solid material collected by the agencies. As such, it can safely be concluded that before passing an detention order , the authorities must have a recourse to Section 154 Cr.P.C., when the allegations levelled against the detenus in the detention orders constitute a criminal offence under Anti-T errorism Act, 1997, Pakistan Penal Code or any other law, as in this case most of the allegations levelled against the detenus are criminal offences. Furthermore, under section 11 L of the Anti-T errorism Act, 1997 a person who receives an information about involvement of a person in an offence covered by Anti-T errorism Act, 1997, and he believes or suspects that someone has committed an offence under the above Act, he is tinder a legal compulsion to disclose such belief or suspicion to the police of ficer.
10. For what has been discussed above, here in this case neither the names of the detenus were ever placed in 4th schedule, nor they were proceeded against under the Anti-T errorism Act, 1997 for committing criminal offences covered by the law, ibid. Further , there is no other material what to talk of "sufficient" to justify , the impugned detention orders, thus, the orders passed by the respondent authority miserably fail to reach the standards as set by the Hon'ble Supreme Court of Pakistan, in the judgment, referred, supra. Consequently , all these three writ petitions have been allowed by setting-aside the respective impugned detention orders.