MIANGUL HASSAN AURANGZEB, J. Through the instant writ petition the petitioner, Ahmad Nawaz Khan, seeks a declaration to the effect that the detention of his uncle, Shah Mahmood Qureshi ("Mr. Qureshi"), by the respondents is illegal and unconstitutional. The petitioner has also challenged order dated 11.05.2023 issued by the District Magistrate, Islamabad Capital Territory ("ICT") under section 3(1) of the West-Pakistan Maintenance of Public Order Ordinance, 1960 ("the MPO") for the detention of Mr. Qureshi for a period of fifteen days at Central Jail Adyala, Rawalpindi.
It was on the basis of the said order that Mr. Qureshi was arrested on 11.05.2023 and is presently lodged in the said Jail.
2. This petition was first taken up for hearing on 12.05,2023. On the said date, this Court issued notices to the respondents. Vide order dated 15.05.2023, this Court directed the District Magistrate, Islamabad Capital Territory ("ICT") to produce all the record on the basis of which the District Magistrate, ICT had passed the said order dated 11.05.2023.
3. On 17.05.2023, the learned Advocate General, Islamabad tendered appearance along with the District Magistrate, ICT and produced the record on the basis of which the said order dated 11.05.2023 was passed under section 3 of the MPO. The matter was adjourned to 18.05.2023 for arguments.
4. The said order dated 11.05.2023 makes reference to information provided to the District Magistrate, ICT by the Senior Superintendent of Police (Operations), Islamabad ("SSP (Operations)") through letter No.1437/C dated 11.05.2023. This letter was also brought on record by the learned Advocate General.
5. The position taken in the said letter was that consequent upon the arrest of Imran Ahmad Khan Niazi ("Imran Khan") on 09.05.2023, Mr. Qureshi had "incited general public to take law into their own hands, block the roads and destroy public property and infrastructure." It is this incitement which according to the SSP (Operations) resulted in violence by the protestors causing damage to public and private property and creating a law and order situation by unruly mob. The position taken in the said letter was that Mr. Qureshi was instigating people to chant slogans against State Institutions and Government functionaries. This, according to the SSP (Operations), was prejudicial to public peace, tranquility and maintenance of public order. The SSP (Operations) had requested for Mr. Qureshi's "arrest and detention" under section 3 of the MPO for a period of ninety days. The District Magistrate, ICT, however, vide order dated 11.05.2023, issued an order for Mr. Qureshi's detention for a period of fifteen days in order to avoid any likelihood of breach of peace or unlawful assembly in the ICT. The record produced also includes letter dated 11.05.2023 from the Station House Officer ("SHO"), Police Station Secretariat, Islamabad. In the said letter dated 11.05.2023, the position taken was that after the arrest of an important political figure, Mr. Qureshi had incited the general public against the present Government and had thereby created a law and order situation. It was also stated that on Mr. Qureshi's incitement, the general public had damaged public property and chanted slogans against security agencies.
6. More importantly, the record produced by the learned Advocate General included copies of tweets made by Mr. Qureshi from 09.05.2023 to 11.05.2023, and a special report dated 11.05.2023 from the Special Branch of the Office of the Assistant Inspector General of Police, Islamabad. The contents of these tweets are reproduced in Schedule-A hereto.
7. The said order dated 11.05.2023 has been issued under section 3(1) of the MPO which reads thus: "3. Power of arrest and detain suspected persons.---(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7) of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, extend from time to time the period of such detention, for a period of not exceeding six months at a time."
8. The Hon'ble Mr. Justice Sardar Muhammad Iqbal, as he then was, speaking for the Hon'ble Lahore High Court in the case of Maulvi Farid Ahmad v. Government of Pakistan (PLD 1965 Lahore 135) interpreted the term "satisfied" employed in section 3 of the MPO and also laid guidelines regarding the scope of judicial review by the High Court of an order passed under the said Section.
In paragraph 7 of the said report, it was inter alia held as follows:- "The word 'satisfaction" is undoubtedly a condition precedent to the exercise of powers under section 3. It is therefore, open to the Court to look into the grounds supplied to the detenue in order to determine whether the detention is proper or improper. It can examine the grounds to ascertain whether they are definite and precise. Although the Court cannot question the sufficiency or otherwise of the cause which is the basis of the satisfaction of the competent authority, yet the Court is well within the exercise of its judicial authority to satisfy itself that on the grounds which are the basis of the detention, the detaining authority could be satisfied as to the correctness of the order passed by it. If the grounds are not relevant to the object which the legislation has in view, namely, maintenance of public order etc., there could be no basis for the satisfaction of the competent authority and the Court in that case can hold that the condition precedent for the passing of the order is non-existent."
9. Additionally, in the case of Federation of Pakistan v. Amatul Jalil Khawaja (PLD 2003 SC 442), it was held as follows:- "An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court that is to say, (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 necessary 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."
10. Since this Court has to satisfy itself as to the grounds on which the order under section 3 of the MPO was made were correct or not, the tweets made by Mr. Qureshi have to be examined in order to determine whether he posed a threat to the maintenance of public order.
11. None of the copies of the tweets produced by the learned Advocate Genera] show that Mr. Qureshi had incited the general public to commit acts of violence or to disrupt public order or vandalize or damage public property. Mr. Qureshi is the former Foreign Minister of Pakistan. He has also remained Federal Minister for Parliamentary Affairs. His political affiliations are with Pakistan Tehreek-i-Insaf. The above referred tweets were made in the aftermath of Imran Khan's arrest on 09.05.2023 from the premises of this Court. This arrest has already been declared as illegal by the Hon'ble Supreme Court vide order dated 11.05.2023 passed in Criminal Petition No.519/2023. Had Mr. Qureshi incited the general public to commit acts of violence, he would have deserved no indulgence from this Court.
12. The learned Advocate General also relied on a special report dated 11.05.2023 from the Special Branch of the Office of the Assistant Inspector General of Police, in which it was stated that in the recent past, the leadership of Pakistan Tehreek-i-Insaf had spread hatred against the military leadership which had created political unrest in the country. In the said report, it was also stated that after the arrest of Imran Khan, public property had been damaged and monuments erected for the martyrs had been defaced. Mr. Qureshi's name was mentioned in the list of people belonging to Pakistan Tehreek-i-Insaf who were alleged to have made the provocative statements.
13. The special report dated 11.05.2023 on which the learned Advocate General placed reliance is totally vague and general in nature. The said report lacks specificity and does not impute any particular statement made by Mr. Qureshi against the armed forces. On the basis of this material, I am of the view that an order under section 3 of the MPO could not be issued so as to deprive a citizen of his or her fundamental right of liberty.
14. It ought to be borne in mind that neither does the order dated 11.05.2023 passed by the District Magistrate, ICT nor do the letters dated 11.05.2023 from the SSP (Operations) and SHO, Police Station Secretariat Islamabad make reference to any tweets made by Mr. Qureshi or the report dated 11.05.2Q23 of the Special Branch.
15. It is well settled that an order under section 3 of the MPO cannot be based on conjectures and surmises. It should be based on concrete and tangible evidence. The grounds on the basis of which the detention order of a person is issued must be supported by sufficient and cogent material of the nature as would satisfy an ordinary prudent person to justify the issuance of an order of preventive detention. It is only where there is sufficient and cogent material against a person that the issuance of a preventive detention order could be justified. This essential prerequisite for issuing an order under section 3 of the MPO is lacking in the case at hand.
16. Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with the law. Powers under section 3 of the MPO cannot be invoked for detention of persons on the grounds other than those provided for by the law. The authority which issues a preventive detention order under section 3 of the MPO, must satisfy itself that the material/evidence produced before him is sufficient to justify the detention order, failing which the detention order shall be violative of Article 9 of the Constitution.
17. In these proceedings, I am not deciding whether or not Mr. Qureshi has committed any offence.
The question is whether Mr. Qureshi (who has already been incarcerated for thirteen days) can be kept incarcerated for a further period for the purpose of maintaining public order. In order to satisfy this Court that Mr. Qureshi shall show deference and respect to the order passed by the District Magistrate, 1CT under section 144 Cr.P.C., Mr. Qureshi's counsel, after taking instructions, has sworn an undertaking in the following terms:- "I, Taimur Altaf Malik, counsel for the Petitioner, Ahmad Nawaz Khan, in Writ Petition No.1593/2023, hereby confirm on behalf of and on the instructions of the Petitioner and on the basis of the verbal approval of the detainee. Mr. Shah Mahmood Qureshi, during our meeting at Central Jail, Adyala on 22 May 2023: i. That the detainee, Shah Mahmood Qureshi, condemns all acts of violence perpetrated against public property, public installations and police officials; ii. That the detainee, Shah Mahmood Qureshi, will not instigate or incite any violence; and iii. That the detainee, Shah Mahmood Qureshi, will abide by the directions issued by this Honourable Court to ensure that he is not a threat to public peace."
18. A Breach of the said undertaking would amount to contempt of Court. In the event Mr. Qureshi violates the said undertaking, proceedings in contempt of Court shall be initiated against him.
19. Keeping in view the above stated facts and circumstances of the case, this Court has reached the conclusion that the preventive detention order dated 11.05.2023 issued by the District Magistrate, ICT is unlawful and issued without application of independent mind. Hence, the same is liable to be set-aside and Mr. Qureshi is to be released from detention.
20. The above are the reasons for the short order dated 18.05.2023, which is reproduced herein below:- "For detailed reasons to be recorded later, the instant writ petition is allowed and the detention order dated 11.05.2023 issued by the District Magistrate, Islamabad Capita/Territory is set-aside for not being compliant with the law laid down inter alia in the judgments reported as PLD 1969 SC 210, 1994 SCMR 1532 and PLD 1963 Lahore 109. Consequently, the respondents are directed to forthwith release the petitioner's uncle/detenue from detention."
Schedule-A I have not been arrested, as yet. However be warned! Every kind of strategy is in place to spread disinformation, create chaos, panic and terror, to try and break the spirit....
I have not been arrested, as yet. However be warned! Every kind of strategy is in place to spread disinformation, create chaos, panic and terror, to try and break the spirit of our party and supporters. Let me warn you, this is a huge mistake. The people of Pakistan will NOT sit in their homes. No fear! PROTEST! revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.