SAFDAR SALEEM SHAHID, J. Through this single judgment Writ Petitions Nos.31964, 32370, 32401, 32403, 32410, 32418, 32440, 32448, 32462, 32464, 32468, 33185, 32043, 32373, 32374, 32838, 33357, 32956, 33245, 33273, 33287, 33486, 33645, 32368, 32457, 32877, 33285, 31899, 32923, 33648, 32371, 32396, 33662, 32390, 32867, 32873, 33242, 33367 and 33660 all of 2023 are proposed to be decided, as similar questions of law and facts are involved therein.
2. All the aforesaid petitions have challenged the vires of the orders passed by the Deputy Commissioners of different districts, whereby different persons have been put under preventive detention on the reports of District Police Officers of the concerned districts to the effect that conduct of the said individuals was prejudicial to the public peace, mainly on the grounds that the said orders have been passed only on the basis of source reports of District Police Officers concerned but without showing any valid or clear reason and that too without adopting legal procedure and applying independent mind to the question whether Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 should be invoked against the detenues.
3. Detailed reports/parawise comments with regard to the contentions raised in all the petitions were called for from the respondents-Deputy Commissioners concerned. However, despite clear directions, reports/parawise comments in Writ Petitions Nos.32877, 33285, 32368, 32457, 33357, 33645, 32956, 33287, 33245, 33273, 32418, 32464, 32468, 32403, 32462, 32412, 32440, 32401, 33185, 32448, 32370, 32410, 33660, 32838, 32374, 32373, 32043, 32923, 33648, 32873, 33242, 33367, 33486 and 31964 of 2023, have not been filed by the Deputy Commissioners. However, out of the said petitions only in Writ Petitions Nos.32370, 32410, 33486 and 31964 of 2023 the District Police Officers have filed reports which show that the preventive detention of the detenues therein was recommended on the apprehensions of SHOs concerned.
4. As regards Writ Petitions Nos.31899, 32371, 32396, 33662, 32882, 32390 and 32867 of 2023, the reports/pariwise comments have been submitted by the Deputy Commissioners showing the main reason for detention order of the detenues therein that as per reports of the District Police Officers concerned in view of the fact that they were acting in a manner prejudicial to the public safety, peace, tranquility and maintenance of public order, the matter was put up in District Intelligence Committees (DIC) and as per unanimous decision the detenues were ordered to be detained under Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 (the Ordinance), for the periods mentioned therein.
5. The learned counsel for the petitioners have argued that the impugned detention orders having been passed only on the basis of source reports of District Police Officers concerned, without showing any valid or clear reason and that too without adopting legal procedure and applying independent mind to the question whether Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 should be invoked against the detenues, are illegal, void and without lawful authority. In this regard placed reliance on the cases reported as Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul JaliI Khawaja and others (PLD 2003 SC 442) and Muhammad Abdaal alias Abdali v. Government of Punjab and others (PLD 2020 Lahore 471).
6. On the other hand, the learned law officer questioned the maintainability of the writ petitions on the ground that in view of availability of adequate remedy of making a representation, to the government as provided by Section 3(6) of the Ordinance and submitted that in view of the conduct of the detenues being prejudicial to the public peace the Deputy Commissioners have exercised the powers as per law and ordered for their preventive detentions. It is further submitted that this Court being not empowered to substitute its findings with that of the detaining authority as the Constitutional jurisdiction in this regard is confined only to see as to whether the grounds mentioned in the detention order were reasonable.
7. Arguments heard. Record perused.
8. Before proceeding further in the matter it is noticed that preventive detention is "a form of administrative detention, ordered by the executive authorities, usually on the assumption that the detainee poses future threat to national security or public peace." Article 10 of the Constitution empowers the legislature to enact preventive detention laws to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan, or any part thereof, or external affairs of the country, or public order, or the maintenance of supplies or services subject to the safeguards and protections provided by clauses (4) to (9) of the said Article. The Ordinance is one of the laws in force, which provides for preventive detention and control of persons and publications for reasons connected with public safety, public interest and the maintenance of public order in the Province of Punjab. Section 3(1) of the Ordinance is relevant for the purpose which is reproduced below for ease of reference:- "3(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 not exceeding six months at a time."
No doubt Section 3(6) of the Ordinance provides for making a representation to the government, but question remains that can it be considered to be an "adequate remedy" within the meaning of Article 199 of the Constitution so as to bar a person from filing a constitutional petition straightaway before the High Court without availing the said remedy? A remedy is adequate or not depends on the circumstances of each case. The Hon'ble Supreme Court in the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), has held that the expression "adequate remedy" in Article 199 of the Constitution connotes an efficacious, convenient, beneficial, effective and speedy remedy which should also be inexpensive and expeditious. The apex Court has laid down the following tests for determination of the adequacy of relief: "(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an 'other adequate remedy' within the meaning of Article 199.
(ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy.
(iii) In practice the following steps may be taken:
(a) Formulate the grievance in the given case, as a generalized category; (ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy.
(b) Formulate the relief that is necessary to redress that category of grievance;
(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;
(d) If such a remedy is prescribed the law contemplates that resort must be had to that remedy;
(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will break down under the strain;
(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralize or defeat it so as to deprive it of its 'substance, the Court should give the requisite relief under Article 199;
(g) If there is such other remedy, but there is something. so special in the circumstances of a given case that the other remedy which generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199."
9. In the circumstances, if the procedure for obtaining relief through some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense, or the delay would make the grant of relief meaningless, this Court would not hesitate to issue a writ if the party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due.
10. Article 4 of the Constitution stipulates that every citizen, wherever' he may be, and every other person for the time being in Pakistan has an inalienable right to enjoy the protection of law and to be treated in accordance with law. In particular, no action detrimental to his life, liberty, body, reputation or property shall be taken except in accordance with law. Then, Article 9 commands that no person shall be deprived of life or liberty save in accordance with law And Article 10 provides safeguards as to arrest and detention. Articles 15 to 20 provide deal with freedom of movement, etc., freedom of assembly, freedom of association, freedom of trade, business or profession, freedom of speech, etc. right to information and freedom to profess religion and to manage religious institutions.
11. In view of the provisions of the Constitution every citizen, wherever he may be, and every other person for the time being in Pakistan has an inalienable right to enjoy the protection of law and to be treated in accordance with law, no action detrimental to his life, liberty, body, reputation or property shall be taken except in accordance with law and the fact that in view of the reports submitted by the respondents, which are not supported by any material showing any reasonable ground for involvement of the detenues showing that they were acting in a manner prejudicial to the public safety, peace, tranquility and maintenance of public order, no ease for their protective detention could be made out.
12. For the purpose of passing an order for protective detention there should be sound material showing that the said individual/detenu was busy in any activity prejudicial to public safety or the maintenance of public order, in any of the documentary forms like SMS voice messages, WhatsApp Messages, social media accounts, Pamphlets/handouts, Posters, play cards, Photographs, Paintings, Caricatures, Books/Literature, Newspapers, Audio/Video CDs, Electronic and Digital material, Wall chalking, Banners/Pena flex, recording of demonstrations in Rallies, Material on Facebook, twitter or any other social media account, call records, geo-fencing through CDR, Speeches in Public Meetings, Radio and T.V. shows, Surveillance report in any form, reports from international agencies, suspicious transaction report from any financial institution, membership record of affiliated association or political party etc., but in the instant case no such record could be brought on record or even referred during the course of arguments.
13. Even otherwise, it cannot be said that detention order passed on the basis of material placed before the Court could not be set aside as this Court is not empowered to substitute its findings with that of the detaining authority, for the reasons that it is not a question of substitution of finding as this Court is not only within its Constitutional jurisdiction to examine the grounds for detention but to see as to whether detention order could be justified on such grounds and if some view, after having taken into consideration the material placed before it contrary to that of detaining authority is formed it does not amount to substitution.
14. Unfortunately, unrest in the country ensued on 9th May, 2023 after the arrest of a political leader which was flashed on media showing people came out for agitation and demonstrations and with no time it turned into unholy mob who committed mischief at different places in the county.
Confused in the situation, the government has opened a front, showing no application of mind, driven by passionate wishes; directed or dictated but not sound and logical started dragging the ordinary citizens in criminal litigation with a ratio of one in 3 cases/proceedings minimum.
Government has launched attack on the acclaimed miscreants at the time when there was no law and order situation, a condition which necessitates for application of law relating to preventive detention. In case there was some criminal activity the government had sufficient time to collect the material and book the individuals in criminal cases, so that one could know about the nature of allegations to properly defend and answer the charge which is the essence of due process and access to justice as enshrined in Article 10-A of the Constitution.
15. The unpleasant and surprise events of 9th May, 2023 under the shadow of unbridled mob have defaced the peaceful and democratic image of the country and it was the responsibility of the government to arrange for law and order, but not in a way as resorted on the fateful time. Riots are suppressed with force under the law as regulated under Section 127 to 132 of Cr.P.C. and not in the way adopted by the government to pick and detain the citizens under the umbrella of Maintenance of Public Order Ordinance, 1960 without registration of criminal cases.
16. This court on 30.03.2023 in W.P.No.20258/2023 titled as "Hafiz Ali Raza v. Deputy Commissioner, Lahore and others" (2023 LHC 1304) in a similar situation has directed the authorities to collect certain material before passing an order for preventive detention to meet the threshold as set out through different judicial precedents of Superior Courts like; Federation of Pakistan through Secretary, Ministry of Interior Islamabad v. Mrs. Amtul Jalil Khawaja and others (PLD 2003 SC 442). Muhammad lrshad v. Government of the Punjab and others (2020 PCr.LJ 206), Shahid Rasool v. Government of the Punjab through Secretary Home Department, Lahore and 6 others (2023 YLR 333) and Muhammad Abdaal alias Abdali v. Government of Punjab and others (PLD 2020 Lahore 471).
17. As regards the cases wherein the respondents have not even submitted reports/parawise comments despite specific directions, it is noticed that if there were any reasonable grounds for preventive detention of the detenues therein, the same should have been brought on record in order to assist the Court to pass an appropriate order after considering all the facts and circumstances of the case. In the circumstances, it is held that non-submission of reports/parawise comments only supports the contentions of the petitioners that there was no material against the detenues for their preventive detention.
18. In view of the above discussion it is concluded that the orders impugned being bereft of any supportive material, are declared to have been passed in flagrant violation of section 3 of the Maintenance of Public Order Ordinance, 1960, therefore, by accepting all writ petitions mentioned in para No.1, the following orders:- No.DC/SB/Detention-2023/288, 298, 322, 323, 295, 292, 290, 285-A, 291, 324, 312, 314, 295, 313, 315, 316, 305, 303, 321, 307, 308, 311, 304, 320, 309, 302, 301, 300, 299, 281 dated 10.05.2023, No.DC/SB/Detention-2023/326, 332, 334, 329, 328 dated 11.05.2023 and No.DC/SB/Detention 2023/343 dated 12.05.2023 passed by the Deputy Commissioner, Hafizabad; No.DC/GA/527/CNF, DC/GA/519/CNF, DC/GA/522/CNF, DC/GA/523/CNF, DC/GA/530/CNF, DC/GA/532/CNF, DC/GA1534/CNF, DC/GA/536/CNF, DC/GA1537/CNF and DC/GA/563/CNF dated 11.05.2023, DC/GA/562/CNF dated 12.05.2023 and DC/GAJ626/CNF dated 15.05.2023 passed by the Deputy Commissioner, Wazirabad; No.HC/989, HC/998 dated 10.05.2023, HC/1007 dated 11.05.2023 and HC/1024 dated 17.05.2023 passed by the Deputy Commissioner, Sialkot; No.DC/GA/435/CNF dated 10.05.2023, RDM1376 dated 11.05.2023, RDM1396, RDM/400 and No.8561HC(G) dated 12.05.2023, RDM1424 dated 14.05.2023 passed by the Deputy Commissioner, Lahore; No.DC/GA1459/CNF, DC/GA1544/CNF, DC/GA/505/CNF and DC/GA/510/CNF dated 11.05.2023, DC/GA/647/CNF dated 16.05.2023 passed by the Deputy Commissioner, Gujranwala; No. 1491/HC(G), 1493/HC(G) and 1496/HC(G) dated 11.05.2023 passed by Deputy Commissioner, Jhang; No.219/G/RDC dated 10.05.2023 passed by the Deputy Commissioner, Mandi Bahauddin; No.HCG/1813 dated 10.05.2023 passed by the Deputy Commissioner, Narowal; No.885/HC(G) dated 12.05.2023 passed by the Deputy Commissioner, Gujrat; No. PS/1352 dated 16.05.2023 passed by the Deputy Commissioner, Nankana Sahib; and No.HC(G)/DCO/SICP/2181 dated 15.5.2023 passed by the Deputy Commissioner, Sheikhupura; regarding preventive detention of the detenues mentioned therein are hereby set aside and they are ordered to be released forthwith, if not required in any other case. There shall be no order as to costs.