KAMRAN HAYAT MIANKHEL, J.- Through this single judgment we propose to decide this (W.P.No. 1126-A/2023) and the connected writ petitions bearing No. 1054- A/2023, 926-A/2023, 944- A/2023 and 923- A/2023 as in all these petitions the petitioners namely, (1) Sajid Khan, (2)
Muhammad Mushtaq Khan, (3) Imran Javed, (4) Noman Zaib and (5) Abdul Shakoor have challenged the impugned orders dated 14.09.2023, 22.08.2023 and 15.07.2023 passed by Deputy Commissioners Haripur and Mansehra respectively, whereby directions have been issued for their arrest and detention for a period of one month (30 days) under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960.
2. Allegations against the petitioners are that they had been found involved in subversive activities, which resulted into disturbing the peaceful law and order situation of the Districts.
3. In these cases comments were called from the respondents and the respondents submitted their parawise comments in writ petitions bearing No.923- A/2023, 926-A/2023 and 1054-A/2023 while in the instant as well as in WP No. 1126- A/2023 comments were not submitted inspite of directions of this court. Today, Captain (R) Bilal Shaid Rao (Deputy Commissioner Mansehra) and Zahoor Babar Afridi (DPO Mansehra) appeared in court alongwith their parawise comments, which are placed on file.
4. Learned counsel for petitioners have mainly agitated that the law relating to maintenance of public order cannot be invoked in arbitrary, mechanical, haphazard and casual manner. He further contended that the Deputy Commissioners of the concerned districts, on the advice of District Police Officers concerned have passed the order of 3 MPO without applying their judicious mind. No material in relation to the ground of detention order was ever communicated to the petitioners, as provided by Section (3) Sub-section (6) of MPO.
5. On the other hand, learned Assistant Advocate General has opposed the petitions on the ground that there was sufficient material available with the local police and the Deputy Commissioners, after evaluating the material placed before them by the police, passed the order of 3 MPO. Learned AAG further contended that this and the connected writ petitions are not maintainable, as the petitioners have not exhausted the administrative remedy, which was adequate as well as efficacious.
6. We have heard arguments of learned counsel for the petitioners as well as learned Assistant Advocate General and gone through the record.
7. As per encyclopedia Britannica 'Rule of law' connotes "the mechanism, process, institution, practice or norm that supports the equality of all citizens before the law, secures a non-arbitrary form of government, and more generally prevents the arbitrary use of power." Personal liberty is one of the basic human rights and the principle that the governments cannot deprive individuals of that right, which is central to the concept of rule of law. The right to personal liberty is not an unqualified right and in some compelling circumstances a State may have to put curbs on an individual and resort to what is called preventive (or preventative) detention. The "preventive detention" refers to "persons arrested or imprisoned without charge." The International Committee of Red Cross, which terms preventive detention as internment, states that it is an "exceptional measure of control that may be ordered for security reasons in armed conflict, or for the purpose of protecting State security or public order in non-conflict situations provided the requisite criteria have been met. The preventive detention is a measure whereby the executive takes a person into custody to prevent a future harm and he may not have committed a crime but there is apprehension that he would indulge in acts that are prejudicial to public peace. Lord Atkinson considered the justification for preventive detention in R V. Halliday [1917] AC 260, and observed: "where preventive justice is put in force some suffering and inconvenience may be caused to the suspected person. That is inevitable. But the suffering is, under this statute, inflicted for something much more important than his liberty or convenience, namely, for securing the public safety and defence of the realm."
The Indian Supreme Court echoed the same thought in Union of India Vs. Paul Manickam and another (AIR 2003 SC 4622) when it ruled: "In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention.
This jurisdiction has been described as a 'jurisdiction of suspicion', and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty."
8. In Indo-Pak sub-continent the history of preventive detention can be traced to Bengal Regulation-III of 1818 which was applicable to three presidencies of Calcutta, Bombay and Madras.
The principal legislations were the Defence of India Act of 1915, the Anarchical and Revolutionary Crimes Act of 1919 (popularly known as the Rowlatt Act), the Government of India Act, 1935, and the Defence of India Act of 1939. Pakistan retained the concept of preventive detention after the Independence and gave it constitutional imprimatur. Article 10 of the Constitution of 1973 directly addresses preventive detention in its minute details. Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution") enlist the security of persons as a fundamental right and opine that no person shall be deprived of life or liberty save in accordance with law. The general course in case of arrest of an individual is that he should be produced before the Magistrate within a period of twenty-four (24) hours of such arrest as per Article 10(2) of the Constitution. The detention of the above stated provisions of law shall not apply to the persons arrested or detained under any law providing for preventive detention but the contours, limitations and subject of such laws have been provided for in Sub-Articles (4), (5), (6), (7) and (8) of Article 10 of the Constitution. Article 10 of the Constitution has provided the safeguards against arrest and detention in its minutest details. The framers of the Constitution took great pain for ensuring the liberty of the citizens of the State and for taking proper safeguards against unlawful arrest and detention by the State authorities by giving the minute details. The framers of the Constitution have tried to struck balance between the right of liberty of an individual and maintenance of public peace, order and harmony in the society and any law providing for preventive detention has to be complaint with the mandate of Article 10 of the Constitution.
9. The question before this Court in the instant proceedings is, as to whether there was sufficient material before the authority i.e. Deputy Commissioners concerned and whether they have applied their independent mind in judicious manner or not? Preamble of the West Pakistan Maintenance of Public Order Ordinance, 1960 provides for amending and consolidating the law relating to preventative detention and control of persons and publications connected with the maintenance of public order in former West Pakistan. Section 3 of the MPO provides that if government is satisfied that any person is acting in a 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 of such person for such a period not exceeding six (06) months at a time. Sub-section (1) of Section 3 of the MPO, being relevant for the present discourse, is therefore reproduced hereunder for ready reference:
3. Power to 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 sub section (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 not exceeding six months at a time.
Explanation (I). For the purposes of this section-
(i) 'dealing in the black-market' or 'hoarding' as defined in the Hoarding and Black Market Act, 1948; or
(ii) an act of smuggling punishable under the Sea Customs Act, 1878 or the Land Customs Act, 1924, or under any other law for the time being in force; or shall be deemed to be an act prejudicial to the maintenance of public order.
Explanation (II). Whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force in the province, at any time during the period of seven days immediately before it was so declared to be unlawful, or remains or becomes a member of such an association or is on the Executive Committee thereof after it has been so declared to be unlawful shall be deemed to be acting in a manner prejudicial to be public order for the purposes of this section.
10. The said sub-section gives power to the government, or the Deputy Commissioner to whom such authority has been devolved, to act against a person when his conduct is found prejudicial to the public safety or maintenance of public order. The words dealing in black-market or hoarding as defined in the Hoarding and Black Market Act, 1948 and an act of smuggling punishable under the Sea Customs Act, 1978 or the Land Customs Act, 1924 or under any other law for the time being in force, has also been included in the definition of act prejudicial to the maintenance of public order, by introducing a deeming clause contained in explanation (I) to Sub-section (1) of section 3 of MPO. Similarly, explanation (II) of Sub-section (1) of Section 3 of MPO also provides that whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force and he remains or becomes a member of such an association thereafter shall be deemed to be acting in a manner prejudicial to the public safety and maintenance of public order. The net effect of above-mentioned provisions may be summarized as follows: "Those persons may be subjected to an order under section 3 of the MPO;
(a) Who acts prejudicially to public safety or maintenance of public order.
(b) Who deals in black market or hoarding as defined in the Hoarding and Black Market Act, 1948.
(c) Smugglers whose acts are punishable under the Sea Customs Act, 1878 or the Land Customs Act, 1924 or under any other law for the time being in force.
(d) Whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force and he remains or becomes a member of such an association thereafter.
Without these classes of cases, the provisions of section 3 MPO may not be applied to any other cases of crimes etc."
11. The Hon'ble Supreme Court of Pakistan in case of "Federation of Pakistan through Secretary, Ministry of Interior, Islamabad Vs Amatul Jalil Khawaja and others" (PLD 2003 SC 442), wherein their lordships set a criteria that the preventive detention order 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) Satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, nonexistent or irrelevant, the whole order of detention would be rendered invalid;
(ii) Initial burden lies on the detaining authority to show the legality of the preventive detention, and
(iv) 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 claims shall be within the competent of the Court to decide.
12. The legality of the detention order impugned in these writ petitions shall be seen in the light of the above settled principles. On court question about the material against the detenues to substantiate the passing of orders under Section 3 MPO, the learned AAG as well as Deputy Commissioner and District Police Officer Mansehra, present in court, had nothing to refer but produce some Facebook account posts, however, when confronted with the situation that whether they have tried to verify that the Facebook accounts were of the petitioners or not, in this respect, their answer was in negative. Neither these Facebook posts were sent to the Cyber Crime Wing for verification that either same were posted by the petitioners' accounts or not nor any other incriminating material was placed before this court that the petitioners were members of proscribed organization. When further questioned that whether any verification to connect the petitioners with these Facebook accounts has been done or not and how without these could be used against the detenues to connect them with such allegations, no satisfactory answer was given by Deputy Commissioner and District Police Officer, Mansehra, to the court. Being members of the political party, which has not been declared to be unlawful under any law for the time being enforce is not a crime. The respondents were also unable to satisfy this court that whether any communication to the detenues were made about the ground on which the order has been passed under 3 MPO as provided under Sub-section (6) of Section 3 MPO, their answer was also in negative in this regard.
13. As far as objection of the learned AAG regarding maintainability of this petition is concerned, no doubt the constitutional law recognizes the doctrine of exhaustion of statutory remedies, however, the courts generally distinguish between cases seeking enforcement of fundamental rights and those in which no such issue is involved. Justice Fazal Karim explicates in his book 'judicial review of publications' as under: "Fundamental rights are fundamental because they have been guaranteed by the fundamental law, that is, the Constitution. As a general rule, as regards them, the only adequate remedy is the one provided by the Constitution itself, and no question of another remedy, e.g. statutory, being an adequate remedy can arise. The Supreme Court of India has repeatedly declared 'that the existence of such a remedy was not a matter which was relevant to be considered when the citizen complained of the infringement of his fundamental rights."
14. In such circumstances, when the liberty of the petitioner is at stake, the existence of alternate remedy would not prevent this Court from exercising its jurisdiction as held by the Hon'ble Supreme Court of Pakistan in the case of Federation of Pakistan through Secretary, Ministry of Interior, Islamabad Vs Mrs. Amatul Jalil Khawaja and others (PLD 2003 SC 442) which was a case of preventive detention under the Security of Pakistan Act, 1952, the Hon'ble Supreme Court has held as under: "The right of a person to a petition for habeas corpus is a high prerogative right and is a constitutional remedy for all matters of illegal confinement. This is one of the most fundamental rights known to the Constitution. There being no limitation placed on the exercise of this right, it cannot be imported on the actual or assumed restriction which may be imposed by any subordinate legislation. If the arrest of a person cannot be justified in law, there is no reason why that person should not be able to invoke the jurisdiction of the High Court immediately for the restoration of his liberty which is his basic right. In all cases where a person is detained and he alleges that his detention is unconstitutional and in violation of the safeguards provided in the Constitution, or that it does not fall within the statutory requirements of the law under which the detention is ordered, he can invoke the jurisdiction of the High Court under Article 199 and ask to be released forthwith. (PLD 1965 Lah. 135). He need not wait for the opinion of the Advisory Board before praying for a habeas corpus. (AIR 1952 Cal. 26)."
Similarly, the Hon'ble Supreme Court of Pakistan in case of "The Murree Brewery Company Limited v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others" reported as "PLD 1972 Supreme Court 279" has also held as follows: "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as 'the C.D.A) to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (PLD 1961 SC I19), that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly, without authority."
15. The petitioners have also questioned the very authority of the concerned Deputy Commissioners to have passed the impugned order under Section 3 of MPO. Same was found by this Court to have been suffering from jurisdictional defects as well. We would, therefore, not refrain from exercising our jurisdiction just because of the existence of an alternate remedy.
16. In view of the above discourse, the instant and connected writ petitions are allowed, the orders impugned herein are declared to have been passed without lawful authority and in an unlawful manner, thus, resultantly set aside. Petitioner (Sajid Khan) be set free forthwith if not required in any other case while sureties of rest of the petitioners, who are already on interim bail from this court, are hereby discharged from the liability of bail bonds.
These are detailed reasons for our short order of even date.