This petition, under Article 199 of the Constitution, calls in question the detention of the petitioner's husband, namely, Raja Kamran Afzal who stands confined in custody for a period of ninety days through an order dated 16-6-1992 passed by the District Magistrate of Gujrat in exercise of powers conferred on him under section 3 of the Vest Pakistan Maintenance of Police Order Ordinance, 1960 read with section 26 of the said Ordinance.
2. The said impugned order was accompanied by a memorandum giving the grounds which had weighed with the said Detaining Authority in passing the impugned order. The said grounds are reproduced below for ready reference: "(i) That according to report made by the secret Government Agencies you alongwith others have recently visited U.K. And made a deal of narcotics worth crore of rupees. Reportedly you and your associates killed one of your collaborator namely Dr. Nazar Khattak of Peshawar. You and your associates are also in league with Pir Mukhtar Ahmad Jan Khan Surhandi (President Progressive People's Party, Khairpur Sindh) who visited Punjab alongwith some other natorious dacoits of Sindh.
(ii) You alongwith others are in the habit of drug-trafficking/arms smuggling operating within/outside Pakistan and you are planning to visit U.K. In near future to make a deal of narcotics.
(iii) Your activities are prejudicial and detrimental to public peace and maintenance of Public Order.
You are at liberty to make representation to Government against this order."
3. Mr. Hamid Khan, the learned counsel for the petitioner, submitted that the detenu was a respectable person a-ho was elected as a member of the Punjab Assembly from Gujrat District in the General Elections held in the year 1985 and that even in the General Elections of 1988 and 1990, in which he had participated for a provincial seat of the Assembly, as an independent candidate, he had lost only by a narrow margin. He added that even the father of the said detenu was a known political figure of the area and had been elected as a M.P.A. In the General Elections held in the year 1970.
4. It was argued that:--
(a) the impugned order was rooted in malice and thus being a colourable -exercise of power, could not be sustained in law;
(b) the grounds offered by the Detaining Authority justifying the detention in question were vague and were short of necessary details and were thus, not sufficient to enable the detenu to make an effective representation against the same;
(c) he grounds in question which had influenced the Detaining Authority into directing the impugned detention were in the nature of a criminal charge which could have warranted only punitive proceedings against the detenu and preventive detention could not be based thereon;
(d) the impugned order was an order under dictation which had been passed without independent application of mind by the Detaining Authority and was thus, bad in law;
(e) the detention of the detenu had been directed at a sub-jail at Chung in District Lahore, which was outside the Detaining Authority's jurisdiction and the said detention was, therefore, invalid being a transgression of the provisions of section 26 of the said Ordinance and finally, that
(f) a representation to the Government in the circumstances, was not an efficacious remedy and would only be an exercise in futility.
5. To support the contention that the grounds of detention, if vague and short of necessary details, would invalidate the detention order, reliance was placed on Muhammad Ajmal Khan v. The District Magistrate PLD 1977 Lah. 20, Ahmad Fahim Mughal v. Muhammad Saleem Khar., District Magistrate PLD 1990 Kar. 474, Kazi Abdul Quddus v. District Magistrate 1990 P Cr. L J 2016, Abdul Latif v. District Magistrate 1989 P Cr. L J 414 and Kamal Haider v. District Magistrate 1988 P Cr. L J 486.
6. Muhammad Tufail v. S.H.O., P.S. Bhaipheru 1990 P Cr: L J 1161, and Jalal v. District Magistrate 1990 P Cr. L J 1529 were cited as authorities to canvass the proposition that if prosecution on a criminal charge was possible on the grounds offered for the detention, then the said preventive detention could not be permitted to continue and Shahbaz Afghan v. District Magistrate 1990 P Cr. L J 274 and Shabbir Hussain v. District Magistrate 1990 P Cr. L J 1534 were pressed into service to contend that an order passed without application of independent mind was a nullity in the eyes of law and deserved to be set aside.
7. To claim that the impugned order was based on mala fides, it had been asserted through the present petition that the detenu had been elected an M.P.A. From District Gujrat in the year 1985 and had later joined I-TI. i.e. The party presently in power but that the detenu had off-late fallen apart from the ruling party and it was to teach the detenu a lesson for changing political loyalties and also to restrain him from carrying on his political activities, that the order in question had been passed.
8. In reply to a question put by me, tile learned counsel stated that after falling apart from the I.J.I., the detenu had not joined any other political party. It was further admitted that the detenu had never ever made any public statement in opposition to the party presently ruling in the Province or the Federation, nor had he ever launched or even participated in any campaign or movement against the party in power. It was also admitted that ever since the detenu's alleged parting of ways with the I.J.I., he .Had never been involved m any case of whatever nature nor was any loss ever caused to him of whatever kind.
9. It was contended that the present Interior Minister belonged to Gujrat and the impugned detention could well have been manoeuvred by him. It was not denied that the detenu had not opposed the said Minister or any member of his family in the past elections nor was there any proof, documentary or otherwise, available with the detenu to support the submission that the said Interior Minister had any rivalry with the detenu.
10. Needless to mention that the ground of mala fides urged by the petitioner and noticed above, is only a bare, bald and vague allegations of malice which neither mentions the time when the detenu parted his ways with the ruling party nor does it mention any person who is opposed to the detenu.
11. Needless also to say that the burden is entirely upon the person alleging mala fides, to establish the same, as an official act, to which a presumption of regularity is attached, cannot be challenged and consequently, invalidated merely upon vague allegations of malice. Mala fides has to be pleaded with particularity and must be based on specific and definite allegations. Reliance is placed on .The Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151.
12. Consequently, it is held that the petitioner had not been able to prove that the impugned detention had been ordered in bad faith or for any personal motive either to hurt the detenu car to benefit some one else. Nor has the detenu been able to establish that the impugned action had been taken maliciously, in colourable exercise of powers or for any collateral purpose, not authorised by law.
13. The Detaining Authority had received reports from the Secret Government Agencies that the.
Detenu had visited U.K. In the recent past where he had, made a deal of narcotics worth crores of rupees; that the detenu and his associates had killed one of their collabortors, namely, Dr. Nazar Khatak of Peshawar; that the detenu and his associates were in league with one Pir Mukhtar Ahmad Jan Khan Surhandi, the President of Progressive People Party of Khairpur, Sindh who had visited Punjab alongwith others who were notorious dacoits of Sindh, and it was on the basis of this information that the District Magistrate had felt satisfied about the detenu's possible involvement in drug-trafficking and arms-smuggling within and outside Pakistan.
14. It may be mentioned here that the-above reports which had reached the Detaining Authorities had never been questioned or controverted through the present petition before me nor had the same been refuted or denied even during the course of arguments.
15. It may also be pointed out that on my query, whether the learned counsel would like me to summon the record containing the abovementioned secret reports and information, the learned counsel's answer was in the negative on the pretext however, that the same would delay the disposal of this petition.
16. Mr. Zaeem-ul-Farooq Malik, the learned Assistant Advocate-General, was, however, in possession of the relevant record and even offered to produce the same, after claiming privilege regarding its public disclosure, but in view of the fact that the grounds mentioned by the Detaining Authority had not been controverted and denied, I did not consider it necessary to examine the said record.
17. A bare perusal of the grounds of detention would demonstrate that the same were not vague.
They were specific to the extent that they could possibly be. A mention had been made even of the names of the persons, their particulars and the incidents which had led the. District Magistrate to reach the conclusion that he did.
18. The learned counsel, however, made a grievance of the fact that the said ground's did not contain the names of the alleged `collaborators' of the detenu. The learned Assistant Advocate- General promptly replied that it was not possible to disclose the said names because action, even against the said associates of the said detenu, was in the offing and the disclosure of the said names at this stage could have frustrated the entire exercise which was in hand.
19. The above examination of the grounds of detention and the detenu's reaction towards the.
Same leads me to conclude that the same were not vague and further that they stood undenied and unrebutted on record. They were, therefore, unexceptionable.
20. The detention in question had also been challenged on the ground that the District Magistrate of Gujrat who could exercise the jurisdiction under section 3 of the. M.P.O. Only within his jurisdiction as ordained .By the provisions of section 26 of the said Ordinance, could not have directed confinement of the detenu at a place beyond his jurisdiction i.e. At a sub jail in Chung in Lahore District.
21. The hearing of this petition had commenced on 8-7-1992 but could not be completed on the said date on account of paucity of time and had to be adjourned for today because of the intervening holidays of Ashura and because of my absence from the Principal Seat.
22. When the hearing of this case was resumed today, the learned Assistant Advocate-General, placed on record a corrigendum issued by the Detaining Authority through which, a sub-jail at Gujrat had been substituted for the sub-jail at Chung, as the place of the detenu's confinement.
23. The change thus brought about by the said corrigendum which was issued on 13-7-1992, rendered the above-noticed submission of the learned counsel, as inconsequential.
24. As of today, the detention of the detenu being at a place within the jurisdiction of the District Magistrate at Gujrat, it was no longer necessary to determine the question whether the said District Magistrate could or could not order the confinement of a detenu beyond his jurisdiction. The learned counsel for the petitioner could not cite any law or authority to canvass that such an improvement or rectification made by the Detaining Authority, could not be taken into consideration and that adjudication had to be made as if the said change did not exist.
25. Consequently, I find that the present detention of the detenu did not offend against the provisions of section 26 of the M.P.O.
26. It was next argued by Mr. Hamid Khan, Advocate, that the grounds of detention were in the nature of a criminal charge and the same, therefore, could not be made the basis of preventive detention.
27. I an afraid, I have not been able to persuade myself to accept this proposition being universally true.
28. The West Pakistan Maintenance of Public Order Ordinance, 1960, is not the first statute of its kind which envisages preventive measures including detention of a person about whom the designated authority was satisfied that he was likely to indulge in activities prejudicial -to public safety or the maintenance of public order.
29. Reference may be made to the provisions contained in Chapter VIII of the Code of Criminal Procedure, 1898.
30. A bare perusal of sections 107, 108, 109 and 110 of the Cr.P.C. Would demonstrate that the preventive action could be taken against any person who was likely to indulge in activities which could inter alia, breach peace or disturb public tranquillity. The said provisions would also reveal that the previous conduct of any such person could not only be a relative consideration but was also an important guideline in determining the future course of activities and actions of any such person. Reference may especially be made to subsection (4) of section 117 of the said Code, which permits determination of such a future conduct of any such person by evidence of his general repute or otherwise which was a departure made from the provisions of Article 68 of Qanun-e- Shahadat, 1984. It is true that these provisions provide magisterial inquiry prior to the passing of any final order in the said regard but it is also true that the same provisions do envisage preventive action, including detention before and during the course of such an inquiry, if the circumstances so warranted. Reference may be made to sections 107(4), 114 and 117(3) of the Cr. P. C.
31. It may be mentioned here that the primary object of the State was to ensure that crimes were not committed and punitive action was envisaged only where the State had failed in its obligation to prevent the commission of any such Crime. The laws are thus available which, require the designated authorities to act promptly and to intervene to prevent any action which could endanger public safety, peace or tranquillity. To say that, in all cases, where information was available about a future criminal conduct of a person, only penal action should be taken, would, in my opinion, render all the preventive measures, envisaged by law, a mere redundancy. Needless to say that punitive action requires legal evidence and at times, the information, howsoever sound, may not qualify as such evidence and at other times, there may not be sufficient time to resort to punitive provisions.
32. In the circumstances, it would not be legally justified to hold that no action could ever be taken against an individual if the information received disclosed a charge of a criminal nature. It may also be mentioned here that as against a magisterial inquiry, as provided by the provisions in question of the Criminal Procedure Code, the Constitution and the M.P.O. Prescribed an examination of the information in question or the grounds warranting detention, by a Board comprising, inter alia, of a Judge of the High Court.
33. Consequently, I find no merit in the submission that since the impugned grounds were essentially in the nature of a criminal charge, no detention as a precautionary measure, could have been directed against the petitioner.
34. Muhammad Tufail's case 1990 P Cr. L J 116 and Jalal's case 1990 P Cr. L J 1529, relied upon to support the above contention proceed on distinguishable facts as the detention had been based on certain criminal cases in which the detenu had either been acquitted or had suffered the punishment which is not so in the case in hand.
35. It was lastly contended that the impugned order had been passed by the District Magistrate under directions and without application of his own independent mind. The learned counsel, however, could not substantiate this submission from the record which demonstrated only that the reports of the; Agencies in question which had reached the Federal Government, had been passed on to the Government of Punjab, which in turn sent the same to the respondent-District Magistrate.
36. Nothing is available on record to support the contention that the impugned order of detention had been passed under the directions of any superior authority. This submission, therefore, has no merit.
37. The learned Assistant Advocate-General pressed Muhammad Siddique Khan's case PLD 1992 Lah. 140 into service and canvassed that this petition was incompetent as no representation had been made against the impugned detention.
38. The learned counsel could not offer any satisfactory explanation which could permit a deviation from the said provision of law.
39. Having thus examined all the aspects of this matter and in view of the fact that the grounds in question of the impugned detention had not been denied on factual plane; that the petitioner could not demonstrate any malice which could have prompted the detention in question; that the said detention could also not be shown to have been passed on any political or any other extraneous considerations; that the grounds in question were not vague and were specific; that the same could validly offer a legal basis for detention in question; that nothing was available on record to substantiate the submission that the impugned order had been passed under the directions of any superior authority and finally in view of the fact that the alleged detenu had not made any representation as provided by law, I find no merit in this petition which is according dismissed.
40. There shall, however; be no orders as to costs.
N.H.Q./44/F-L