' AJMAL MIAN, ACTG. C. J.-The petitioner is the father of detenue mentioned at S. No, 18 in para. 3 of the petition and close relation of the other deienus referred to in the above para this petition is directed against the orders dated 19th May, 1985, passed by the respondent No, 1 i. e.; the District Magistrate Naseerabad under subsection (1) of section 3 read with section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as the 'Ordinance') ordering of the detention of 19 detenus (hereinafter referred to as the 'detenus') mentioned in para. 3 of the petition for sixty days with effect from 20th May, 1985. The brief facts leading to the filing of the above petition are that the detenus were arrested on 14th March, 1985. Thereupon, the petitioner filed Criminal Miscellaneous Application No, 3 of 1985 in this Court challenging the above detention.
In response to the notice of the above Criminal Miscellaneous application it was submitted by the learned Advocate-General that the proceedings under section 17/18 of Ordinance II of 1968 had been initiated against the detenus. It seems that in the above proceedings under sections 17 and 18 of Ordinance II of 1968, the detenus were directed to furnish two sureties each in the sum of Rs, 50,000 each which was done by them on 19th May, 1985. On the same day the respondent No, 1 passed the impugned orders. The petitioner being aggrieved by the above orders has filed the present petition.
2. In support of the above petition, Mr. Yaqub Khan, learned counsel for the petitioner has urged as follows:-
(i) That there was no material before the respondent No, 1 on the basis of which the impugned orders could have been passed;
(ii) That the impugned orders are mala fide and have been passed at the behest of the persons with whom the detenus have civil litigation pending ; and
(iii) That no grounds in support of the detention orders have been furnished to the detenus till today. On the other hand, Mr. Amirul Mulk Mengal, learned Advocate-General has contended as follows:-
(i) That the jurisdiction of this Court is barred under clause (4) of Article 9 of the Provisional Constitution Order, 1981;
(ii) That the detenus have alternate adequate remedy in the form of a representation before the Government under section (5-a) of the Ordinance; and
(iii) That the respondent No, I was justified in passing the impugned orders in the circumstances of the case.
3. It may be appropriate to take-up first the question whether the present petition is maintainable.
In this regard, it may be pertinent to refer to clauses 1, 4 and 5 of Article 9 of the Provisional Constitution Order, 1981, which read as follows:-
9. Jurisdiction of High Court (1).-Subject to this order, a High Court may it is satisfied that no other adequate remedy is provided by law-
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing within the territorial jurisdiction of the Court functions connection with the affairs of the Federation a Province or a local authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do or;
(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) On the application of any person make an order-
(i) that a person in custody within the territorial jurisdiction of the Court be set at liberty after satisfying itself that he is being held in custody without lawful authority; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office.
(2) An order shall not be made as a person subject to such law.
(3) Every such order as is referred to in clause (2) made and a High Court shall abate.
(4) A High Court shall not make under this Article-
(a) an order prohibiting the making or suspending the operation or an order for the detention of any person under any law providing for preventive detention;
(b) an order for the release on bail of any person detained under any law providing for preventing detention;
(c) an order for the release on bail or an order suspending the operation of an order for the custody, of any person against whom a report or complaint has been made before any Court or Tribunal or against whom a case has been registered at any police station.
' In respect of an offence or who has been convicted any Court or tribunal including a Military Court or Tribunal established under a Martial Law Order or Martial Law Regulation;
(d) an order prohibiting the registration of a case at a police station or the making of a report or complaint before any Court or tribunal in respect of an offence; or
(e) any other interim order regarding production, custody or release of any person referred to in any of the preceding paragraphs.
(5) Every such order as is referred to in clause (4) made at any time on or after the fifth day of July, 1977, shall cease to have elect and all applications for the making of any such order that may be pending before any High Court shall abate.
(6) The provisions of clauses (4) and*(5) shall also ..................................................
' The Supreme Court immediately before the commencing day.
(7) Where an application is made to a High Court on the face of the record is without jurisdiction.
(8) An interim order made by a High Court on an is withdrawn by the Court earlier.
(9) In this Article, unless the context otherwise requires `person' includes anybody relating to the Armed Forces of Pakistan; and 'prescribed law officer' means.
(a) in relation to the Attorney- General, and
(b) in any other case, the Advocate-General for the Province in which the application is made."
4. It may be observed that under clause 1 (b) (1) the High Court has been empowered upon being satisfied that no other adequate remedy is provided by law, upon an application of any person, to direct that a person in custody within the territorial jurisdiction of the Court be set at liberty if the person is being held in custody without lawful authority. However, learned Advocate-General has placed reliance on clause 4(a) provides that a High Court shall not make under this Article an order prohibiting the making or suspending the operation of the order for detention of any person under any law provided for preventive detention, whereas, clause 5 provides that every order as is referred to in clause 4 made at any time after the fifth day of July, 1977, shall cease to have effect and all applications for the making of any such order that may be pending before the High Court shall abate.
We are inclined to hold that clause 4(a) only prohibits the making of an order prohibiting the passing of an order under any preventive detention law and it further prohibits from suspending the operation of such an order, but it does not bar the High Court jurisdiction to pass a final order in respect of a detention order passed by a Civil functionary under a civil law. We are fortified in our above view by the other sub-clauses of the above clause 4 which clearly indicate that they relate to interim orders like the granting of bail and direction for the production of a person in custody etc. This view is also supported by clause 1(b) of the above Article 9 which empowers the High Court to direct that a person be set at liberty'upon satisfying itself that he is being held in custody without lawful authority. Admittedly, in the instant case, the orders have been passed under the Ordinance by a District Magistrate who is even otherwise amenable to writ jurisdiction.
5. As regards the second objection of the learned Advocate-General that the detenus have alternate adequate remedy in the form of representation under section 5(a) of the Ordinance it will suffice to observe that since even the grounds of detention have not been furnished till today it is not understandable what basis the detenus can make representation. The above remedy in the instant case is not adequate. In this regard, reference may be made to the case of Abdul Hamid Khan v. The District Magistrate, Larkana (1), in which it was held that a representation to the Government is not an adequate remedy.
6. Reverting to the merits of the case, it may be stated that it is an admitted position that the detenus were taken into custody on 14th March, 1985. The petitioner had filed Criminal Miscellaneous Application No, 3 of 1985 in this Court for Habeas Corpus. In response to the Court notice, the learned Advocate-General had submitted that proceedings under sections 17 and 18 of the Ordinance II of 1968 had been initiated. On the basis of the above statement, the above petition was dismissed as having become infructuous by an order dated 16th April, 1985. It may be advantageous to reproduce herein below the above order which reads as follows: - "It seems that proceedings under section 17/18 of the Ordinance II of 1968 have been initiated against the alleged detenus except Budha son of Mir Khan who is mentioned at S. No, 5 in para. 3 of the petition and who according to the Naib-Tehsildar (who is present in person in Court) was released.
' In view of the above factual position this petition has become infructuous, and the same is dismissed as such."
It is further admitted position that in the above proceedings under section 17/18 of the Ordinance II of 1968, each of the detenu was directed to furnish two sureties in the sum of Rs, 50,000 each which was done by them on 19th May, 1985. On the very day, the impugned orders were passed by the District Magistrate.
7. It is, therefore, evident that the impugned orders on the face of them, have been passed with the intention to keep the detenus in custody on one pretext or the other.
It is also not denied but factually it is admitted in the statement filed by the respondent No, 1 that there is a private dispute between the detenus who belong to Kehri tribe and Mengals who are Bhatai sharers (in respect of which certain civil litigation is pending between the parties before the Additional Commissioner, Sibi Division and the Member Boa,d of Revenue. As pointed out hereinabove, that till today even the grounds
(1) PLD 1973 Kar. 344 on the basis of which the impugned orders have been passed have not been furnished to the detenus nor they are available with the learned Advocate-General.
8. It is, therefore evident that the impugned orders are patently illegal and without lawful authority.
In this regard reference may be made to the following cases:-
(i) Miss Benazir Bhutto v. Government of Sind and others (1), in which a D. B. Of the Sind High Court held that delay of six days in furnishing the grounds upon which the detention order was made having been not explained, was fatal to the detention order.
(ii) Abdul Hamid Khan v. The District Magistrate, Larkana and others PLD 1973 Kar.
344. In this case, a D. B. Of the erstwhile High Court of Sind and Baluchistan, inter alia held that section 3 of the Ordinance could not be used for punishing a person for his past actions. It was further held that though past conduct of a person can be basis of the authority's satisfaction of detention being necessary.
(iii) Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222 in which an order under section 5 of the Ordinance was impugned. A learned Single Judge of the Lahore High Court held that the Government was obliged to furnish particularised grounds and not vague grounds in order to enable the testrictee/detenu to make a representation to the Government. The writ petition was allowed, inter alia on the ground that section 5 of the Ordinance was violated.
Incidentally it may be stated that in the above case also the petition was filed under Article 9 of the Provisional Constitution Order, 1981, relied upon by the learned Advocate-General.
9. We are, therefore, of the view that in the absence of any material warranting the passing of impugned orders of detention under section 3 of the Ordinance and in the absence of furnishing the grounds of detention in spite of expiry of nearly four weeks, the detention of the detenus is without lawful authority.
' We, therefore, allow the petition and direct the respondent No, 1 to release the detenus henceforth unless otherwise they are required under some other law.