1. ' SAEEDUZZAMAN SIDDIQUI, J.---The above petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as 'the Constitution' only) is filed by Mrs. Arshad Ali Khan to challenge the continued detention of her husband Arshad Ali Khan (hereinafter to be referred as 'the detenu' only) under orders dated 21-7-1993 and 20-10-1993, respectively, passed by the respondent under section 3 of Punjab Maintenance of Public Order Ordinance, 1960 (hereinafter to be referred as 'the Ordinance' only).
2. ' The sequence of events leading to detention of the detenu are, that one Nasir Ali Khan, the younger brother of the detenu while travelling in a yellow cab was taken away by some armed men from in front of Building No,6-A, Main Boulevard, Gulberg, Lahore, on 13-7-1993. The detenu suspecting it a case of armed abduction reported the matter at Police Station, Gulberg, Lahore. The S.H.O., Gulberg deputed Sub-Inspector of Police Ahmed Saeed Cheema to make spot enquiry. S.I.P.
3. Cheema during investigation was pointed out the vehicle in which Nasir Ali Khan was allegedly taken away by the armed men. S.I.P. Cheema, accordingly, took the said vehicle and its Driver George Mehboob to Police Station, Gulberg. During interrogation of Driver George Mehboob at Police Station, it transpired that Nasir Ali Khan, the brother of the detenu, was arrested by the F.IA.
4. Authorities in connection with some drug-trafficking case. Driver George Mehboob and his vehicle was, accordingly, released by the police and a case was registered against the detenu under section 182/211/225, 225-B and 506, P.P.C. Vide F.I.R. No, 173 dated 28-8-1993 on the complaint of S.I.P.
5. Ahmed Saeed Cheema, on the allegations that the detenu allegedly abused and threatened the officers of Drug Enforcement Cell to dire consequences on account of arrest of his brother Nasir Ali Khan. The detenu was later arrested by the police on the basis of the order of respondent, dated 21- 7-1993, and lodged in the Central Prison, Lahore for three months. The grounds of detention of the detenu were disclosed in the order dated 21-7-1993 as follows:-- "(1) That you Mr. Arshad Ali Khan have reportedly threatened the U.S. Embassy of kidnapping one of the Americans in Lahore with a view to prevent the extradition of your brother Mr. Nasir Ali Khan resident of 2-New Campus, Punjab University, Lahore who is presently confined in Central Jail, Rawalpindi reportedly on the charge of Drug-Trafficking.
(2) That you are reportedly attempting to recruit some men from N.-W.F.P. To materialise the threat as mentioned above.
(3) Therefore your activities are prejudicial to public safety as well as the maintenance of public order."
6. ' The petitioner challenged the detention order of the detenu dated 21-7-1993, before the Lahore High Court in Writ Petition No, 7719 of 1993 which was dismissed on 13-9-1993. On 20-10-1993, when the detention order dated 21-7-1993 was to expire, the detenu was produced before the Review Board constituted by the Government to seek its view on further detention of the detenu under the Ordinance. The Review Board recommended further detention of the detenu, whereupon the respondent passed the order dated 20-10-1993 extending the detention of the detenu for another period of three months. The following grounds were mentioned in the order dated 20-10-1993, extending the detention period of the detenu:-- "(1) That you, Mr. Arshad All Khan s/o Faiz All Khan r/o Lahore reportedly threatened the U.S. Embassy of kidnapping one of the Americans in Lahore, with a view to prevent the extradition of your brother Mr. Nasir All Khan, r/o 2-New Campus, Punjab University, Lahore, who is presently confined in Central Jail, R'Pindi, reportedly on the charge of drug-trafficking.
(2) That it was reported that you were attempting to recruit some men from N.-W.F.P. To materialise the threat as mentioned above.
(3) That it has recently come to the notice of Government of the Punjab that some of the prominent narcotic dealers are adopting various tactics to pressurise the U.S. Government to soften its stance on extraditing drug fugitives as well as to discredit the Government of Pakistan. In this regard, it has been further reported that on 21-9-1993, Consulate-General of U.SA. Received a letter addressed to the Principal Officer, warning of a planned assassination against her by the brother by an arrested Pakistani drug fugitive, Nasir All Khan.
(4) That on 5-10-1993, a guard at the vacant D.EA. Lahore, Superviser's house spotted an individual taking pictures of that residence. The individual immediately drove away when he saw that the guard had spotted him.
7. ' In view of the foregoing grounds, Government of the Punjab is satisfied that with a view to prevent you from acting in a manner prejudicial to public order and public safety, it s still necessary to keep you under preventive detention."
8. ' In the above-stated background, the petitioner filed the present petition before this Court challenging the orders of the respondent dated 21-7-1993 and 20-10-1993. We have heard the above petition on 8th and 9th of December 1993 and reserved the judgment with direction to the respondent to submit before the Court within a week a copy of the letter dated 21-9-1993 addressed to Principal Officer, U.S. Consulate, Lahore warning him of an alleged planned assassination attempt on the life of Consul-General of U.S. At Lahore, by the brother of the arrested drug fugitive Nasir All Khan. The learned Advocate-General, Punjab, was also directed to disclose the date of departure of the Consul-General of U.S. At Lahore, from Pakistan as it was argued before us by the learned counsel for the petitioner that Consul-General of U.S. At Lahore has already left the country. The petitioner was also directed to submit details of the bio-data of the detenu. On behalf of respondent, the Deputy Secretary (Special), Home Department, vide his letter dated 15-12-1993, addressed to Deputy Registrar of Supreme Court of Pakistan, Lahore, while forwarding documents relating to departmental enquiry against S.I.P. Saeed Ahmed Cheema, has stated that the copy of the letter addressed to Principal Officer, U.S. Consulate-General, Lahore, referred to above, was asked for from the Ministry of Interior, Federal Government, which is still awaited. Similarly, it is also stated in the said letter that the date of departure of Consulate-General of U.S. From Pakistan is being confirmed from the Foreign Office, Islamabad. Till today, the respondent has neither submitted the copy of letter dated 21-9-1993 directed to be filed in the Court nor it has confirmed the date of departure of U.S. Consul-General at Lahore, from Pakistan.
9. The explanation offered by the respondent for non-compliance of the direction of the Court dated 9-12-1993 is not at all satisfactory. The copy of the above letter dated 21-9-1993, should be available with the respondent, which not only passed the original order of detention of the detenu on 21-7-1993 but it also extended his detention for another three months' period by order dated 20- 10-1993, wherein specific reference is made to the letter dated 21-9-1993. The petitioner has filed biographical details of the detenu, according to which the detenu at the time of his arrest and detention was serving with a firm which provided investment advisory services, besides dealing in foreign currency and commodity trading in international financial markets, as its Vice-President, since November 1992. Prior to it, the detenu served with B.C.C.I. Bank at Muscat (Sultanate of Oman) from 1975 to 1979 and with some private trading Company of Muscat from 1980 to 1990.
10. ' Mr. K.M. Samdani, the learned counsel for the petitioner contended before us that the grounds of detention disclosed by the respondent did not justify detention of the detenu under section 3 of the Ordinance as these allegations did not amount to disturbing the public order. The allegations contained in the grounds supplied to the detenu alongwith the detention order dated 21-7-1993 and 20-10-1993, according to learned_ counsel for the petitioner, at best amounted to charges of criminal nature against an individual for which the remedy was available before the ordinary Courts in accordance with the laws. Mr. Samdani cited the following reported decisions of Supreme Court of India to contend that where allegations amounted only to criminal offences triable under the ordinary law such allegations cannot form the basis for preventive detention of the accused:-- ' Sodhi Shamsher Singh v. State of Pepsu (AIR 1954 SC 276). Sushants v. State of W.B. (AIR 1969 SC 1004).
11. ' Sudhir Kumar v. Police Commissioner, Calcutta (AIR 1970 SC 814) and ' Bimla Dewan v. Lieutenant-Governor of Delhi (AIR 1982 SC 1257).
12. ' It is also contended by Mr. Samdani, the learned counsel for the petitioner, that in any case after the expiry of 1st detention period there was no legal justification available to the respondent for extending the period of detention of the detenu for another period of three months as the grounds disclosed in the subsequent order of detention were mere repetition of the grounds mentioned in the original order of detention which could not furnish justification for extension in the period of detention of the detenu.
13. ' The learned Advocate-General of Punjab, on the other hand, supported the preventive detention of the detenu by respondent as according to learned Advocate-General, the threat extended by the detenu to U.S. Consulate-General at Lahore, was likely to disturb the public order by creating misunderstanding between two sovereign States. It is further contended by the learned Advocate- General, Punjab, that the only order holding the field today, under which the detenu is being detained, is the subsequent order of respondent extending the detention period of the detenu for three months w,e,f. 20-10-1993. This order, according to learned Advocate-General, was passed by the respondent on the recommendation of Review Board which consisted of Judges of the Lahore High Court and as such this Court would attach due weight to opinion of the Review Board which was formed after examining the material produced before the Review Board of the respondent.
14. We have heard the learned counsel for the parties at length and are of the view that the preventive detention of the detenu on the facts and circumstances of the case is not valid in law.
15. ' The Constitution authorizes preventive detention under a law to be enacted in accordance with the provisions of sub-clauses (4) to (8) of Article 10 of the Constitution. The Ordinance has been enacted with a view to consolidate the law providing for preventive detention and control of persons and publications for reasons connected with public safety, public interest and maintenance of public order in the Province of Punjab. Section 3 of the Ordinance authorizes the Government to commit a person under preventive detention if it is satisfied that it is necessary to do so in order to prevent him from acting in any manner prejudicial to public safety or maintenance of public order for a period not exceeding three months which period may be extended from time to time subject to the approval of a Review Board to be constituted by the Government in accordance with the provisions of subsection (5) of section 3 of the Ordinance.
16. However, no person can be kept in preventive detention for a period exceeding 8 months in all within a period of twenty-four months commencing on the day of his first such detention, if he is detained for the reasons that his activities are prejudicial to the maintenance of public order, in view of the provisions of sub-clause (7) of Article 10 of the Constitution. The preventive detention provided for by section 3 of the Ordinance only covers the cases of persons who act in a manner prejudicial to public safety or maintenance of public order. The learned counsel for the petitioner contended before us that the grounds of detention disclosed by the detaining authority not only mentioned acts of the detenu which were considered prejudicial to the public order but also to the public safety. The contention of the learned counsel for the petitioner is that the latter expression 'public safety' is not covered by the provisions of Article 10 of the Constitution and, therefore, in so far the detention of the detenu is directed also for the reasons of public safety under the provisions of the Ordinance, the same is totally void. The expression 'public order' has not been defined in the Constitution. This expression has also been used in another Article of the Constitution, namely, Article 17. In the case Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), this Court interpreted the expression 'public order' used in sub-Article (1) of Article 17 of the Constitution, as follows:- "The learned Attorney-General ntxt contended that the term 'public order or morality' as occurring in sub-Article (1) of Article 17 should also be read as individual limitations in Article 17(2). In sub- Article (1) of Article 17, the word 'public order' is mentioned in addition to the expression 'in the interest of sovereignty or integrity of Pakistan'. I have already held that the above expression includes public order when it undermines or is likely to undermine the security and solidarity of the State. I may also add here that it will also include prejudicial activities such as--
(a) agitating for secession of the Provinces from Pakistan;
(b) disrupting or threatening to disrupt the sovereignty, integrity, unity or security of the nation, the harmony between different sections of the people;
(c) any scheme to overthrow the Government by force or to create internal disturbance or the disruption of public forces.
17. As the phrase "public order" is separately used, it has to be construed in the ordinary context as being synonymous with public peace, safety and tranquillity. Public order is an element need in any organized society, and no association can flourish in a state of disorder. In Cantwell v.
18. Connecticut, (1940) 310 US 2% at page 308, it was held by the American Supreme Court: "The offence known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquillity. It includes not only violent acts but words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot.... When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious."
19. The word 'public order' is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of Law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State (see Ram Manohar v. State of Bihar (1966) SCR 709) . It has not been incorporated as a separate limitation apart from being a constituent of the expression 'sovereignty or integrity of Pakistan' in Article 17(2) of the Constitution. Therefore, it cannot be read into it as it would amount to re-writing the limitation in the Constitution. Here I may point out that in the Madras Maintenance of Public Order Act, 1949, instead of the words 'public order' the expression 'security of the State' was mentioned although this Act had for its object the maintenance of public order and safety. The vires of this Act was challenged in Romesh Thappar v. State of Madras 1960 SCR 594. The Supreme Court of India declared it to be invalid as the expression `security of the State' was held to refer to those aggravated forms of prejudicial activities which endangered the very existence of the State but did not include ordinary breaches of the peace. As such the above expression was held to be outside the protection of clause (2) of Article 19. The Constitution was accordingly amended and the word `public order' was inserted in clause (2). This decision is an illustration of the fact that the limitation cannot be enlarged to admit other grounds on any theory of police power."
20. From the above-stated legal position, it is quite clear that before an act is held to be prejudicial to public order, it must be shown that the act or activity is likely to affect the public-at-large. As a corollary, therefore, it follows E that an act which concerns only to an individual and does not amount to an activity prejudicial to the public peace and tranquillity cannot fall within the ambit of section 3 of the Ordinance. The learned counsel for the petitioner has cited some cases from Indian jurisdiction in order to show that activities which do not affect the public-at-large would not fall within the meanings of disturbance of public safety or public order. In the case of Sodhi Shamsher Singh v. State of Pepsu (supra), a former Sessions Judge of Patiala, who was removed from service, was detained by the State Government of Pepsu under section 3 of the Indian Preventive Detention Act, 1950 on account of publication of pamphlet which contained derogatory remarks on the character and integrity of Chief Justice of Pepsu. The Indian Supreme Court while disapproving the preventive detention of the detenu under the Preventive Detention Act, 1950 observed as follows: "Whatever other remedies that might be open to the aggrieved party or to the Government to prevent such surrilous attack upon the head of the judiciary in the State, we do not think that the provisions of the Preventive Detention Act could be made use of for that purpose. The utmost that can be said is that the allegations in the pamphlets are calculated to undermine the confidence of the people in the proper administration of justice in the State. But it is too remote a thing to say, therefore, that the security of the State or the maintenance of law and order in it would be endangered thereby."
21. ' In the 2nd case reported as Sushanta v. State of W.B. (supra), the petitioner was detained under the order of District Magistrate, Calcutta, under section 3 of the Indian Preventive Detention Act, 1950 on the allegation that the petitioner alongwith others formed an unlawful assembly and assaulted the police and peaceful inhabitants, snatching away cash and valuables, teasing school girls and causing criminal intimidation. Instances of these acts were also stated in the grounds of detention. The Supreme Court of India refused to validate the preventive detention of the petition Sushanta, on the above grounds, observing as follows: "4. We do not consider that the above grounds are relevant to public order and if some of the grounds which are given are irrelevant the order of detention cannot be upheld because the Court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons; vide Dwarka Das Bhatia v. State of Jammu & Kashmir, 1956 SCR 948 = (AIR 1957 SC 164) and the recent decision of this Court in Pushkar Mukherjee v. State of West Bongal, W.P. 179 of 1968, D/- 7-11-1968 (SC). Therefore the order of detention is hereby set aside."
22. ' In the 3rd cited case of Sudhir Kumar v. Police Commissioner, Calcutta (supra), the petitioner was ordered to be detained by the Commissioner of Police, Calcutta, under section 3 of the Preventive Detention Act, 1950 on the ground that his activities were prejudicial to maintenance of public order. In the grounds of detention in that case, it was stated that on 3 different dates the petitioner armed with knife alongwith some other, who were also armed, created disturbance on the northern avenue and in the course he attacked local people with knife as a result of which one Ajit Kumar Biswa s sustained injuries. It was also alleged that during the incident, the petitioner and his associates hurled sodawater bottles and brickbats towards the local people endangering their lives and safety and thereby they created fear and frightfulness amongst the people of the locality and thus affected public peace and tranquillity of the locality. It was also alleged that on another occasion, the petitioner armed with bombs and accompanied by others created disturbance on Raja Manindra Road and during course of their activities hurled bombs, used swords, iron rods and Lathis against the local people endangering their lives and safety. The Supreme Court of India, while disapproving preventive detention, under the Preventive Laws, observed as follows:-- "8. The three incidents mentioned in the grounds are stray incidents spread over a period of one year and four months. These incidents cannot be said to be interlinked. They could not have prejudiced the maintenance of 'public order' nor can they be held to be subversive of `public order'.
23. They were at best prejudicial to 'law and order'. The distinction between the maintenance of `law and order' was brought out by this Court in Dr. Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 = (AIR 1966 SC 740). Therein this Court pointed out that maintenance of 'law and order' is a conception much wider than the conception of maintenance of 'public order'. The latter is the prevention of a disorder of grave nature, Every act that affects 'law and order' need not affect 'public order'. If it is otherwise every one who disturbs law and order', however petty the offence committed by him may be, can be detained under the Preventive Detention Act. This would be a total repudiation of the rule of law and an affront to our Constitution. The legal position relating to the point in issue was again recently considered by this Court in Arun Ghosh v. State of West Bengal, Writ Petition No,287 of 1969, D/- 2-12-1969. Therein it was observed that 'public order' is the even tempo of the life of the community taking the country as a whole or even a specified loality.
24. Disturbance of 'public order' is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of 'law and order'."
25. ' In the last cited case of Bimla Dewan v. Lieutenant-Governor of Delhi (supra), the detenu was detained under the National Security Act. The allegation in that case against the detenu was that he alongwith 70 others pelted stones at a building and caused damage to it. The Supreme Court of India while holding the preventive detention of the petitioner, on these allegations, as unauthorized, observed as follows :-- "9. We now come to instance No,29 which relates to the arrest of the detenu on the complaint of one Prem Kumar Narang, Municipal Councillor that when the Corporation Staff wanted some persons for prosecution, one Ram Singh came to rescue them and that later on the detenu came alongwith 70 other persons and started throwing stones etc. Resulting in damage to a building. On that complaint a First Information Report dated 28-12-1979 under sections 147, 148, 149, 323 and 427, I.P.C. Is said to have been submitted by the Police. A mere allegation in the report of the Municipal Councillor, without anything more cannot constitute a ground for detention under the National Security Act. There is no allegation in that instance that law enforcement authorities had any valid reason to believe the allegations made in the complaint to be true even while the case registered on that complaint was pending trial and posted to 29-10-1981. There is no allegation in that instance that the building at which stones etc. Are alleged to have been thrown is situate in a public place and that the alleged act of the detenu and 70 other persons has caused apprehension in the minds of the residents of the locality in regard to maintenance of public order.
26. We are, therefore, unable to hold that this instance has any potentiality to interfere with and effect upon the public tranquillity and order and that it cannot constitute a ground for detention under the National Security Act, 1980."
27. In the case before us, the petitioner has been charged with the activity of extending threats to the Consulate-General of U.S. At Lahore. The police in this connection has already registered a case against him under sections 182/211/225/225-B and 506, P.P.C. Under F.I.R. No, 173, dated 28-8-1993.
28. This clearly shows that the detenu was accused of substantive offences under the penal law and, therefore, preventive detention on the same allegation could not be justified in law. In the order extending the detention of the petitioner, it is specifically mentioned that on 21-9-1993 a letter was received in the office of the Consulate-General of U.S. Addressed to the Principle Officer in which a warning was contained about a planned assassination of the Consulate-General by the brother of an arrested drug-trafficker, Nasir Ali Khan. It is an admitted position in the cast; that the detenu was arrested by the police under the orders of respondent dated 21-7-1993 and on the date, the letter alleged to have been received by the office of Consulate-General of U.S. At Lahore, the detenu was already under the preventive detention. The grounds Nos.1 and 2 mentioned in support of the order dated 20-10-1993 are mere repetition of the two grounds mentioned in the order dated 21-7-1993. The 3rd and 4th grounds which were appended as additional grounds in support of the order dated 20-1--1993, in our view, do not come within the mischief of disturbing the public order.
29. The 3rd ground refers to certain threats given by some narcotic dealers to the Government to pressurize the Government of U.S. To soften its stance on extraditing drug fugitive. There is no allegation that the detenu is a drug-trafficker. On the contrary, from the biographic data supplied to this Court, it appears that he is engaged in a profession which has nothing to do with the drug- trafficking. Similarly, ground No,4, which is mentioned in support of order dated 20-10-1993, is totally vogue and bears no nexus with the object of the statute under which the order was passed by the respondent for preventive detention of the detenu. Considering the grounds of detention as a whole we, in the light of preceding discussion, we are of the view that the allegation against the detenu did not constitute acstivity which by any standard of reasoning could be judged as prejudicial to the maintenance of public order. We may also mention here; that we had specifically directed the respondent to produce a copy of letter dated 21-9-1993, alleged to have been received by the Consulate-General Office of U.S. At Lahore but in spite of our direction the copy of that letter has not been filed before us.
30. ' We, accordingly, hold that the order dated 20-10-1993 passed by the respondent extending detention of the petitioner, under section 3 of the Ordinance, was wholly unjustified and it is accordingly, quashed. The petitioner is directed to be set at liberty forthwith. The costs of this petition will also be borne by the respondent. 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.