' This petition has been filed to challenge the detention order, dated 8-12-1994 passed by the District Magistrate under section 3 of the Punjab Maintenance of Public Order Ordinance, 1960.
2. Copy of the impugned order has not been appended with the petition, as the same has not yet been served upon the petitioner. The petition has been filed because the S.H.O. Concerned is raiding his house for the purpose of effecting his detention.
3. Learned counsel was asked to satisfy the Court whether the impugned detention order can be challenged without its having been served upon the petitioner. The learned counsel obtained two adjournments for preparing the case but he has frankly conceded that he has not been able to lay his hand on any reported case in which detention order was challenged without the actual detention of the person sought to be detained. He has, however, referred to Writ Petition No,15039 of 1994 in which the detention order in similar circumstances was set aside by this Court. But that case does not lend any support to the petitioner, because the question of maintainability or competence of the writ petition was not noted and the order was passed on account of concessional statement made by the State Counsel.
4. I am of the opinion that in a detention matter a person becomes aggrieved only after the detention order is served upon him. So long as the order is not served upon him and he is not detained, he has no right to challenge the same.
5. Preventive detention is permissible within the limits prescribed by Article 10 of the Constitution of Pakistan, which reads as follows:-- "(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall be made except 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 Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any document, is produced.
(7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case: ' Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from the enemy or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity.
(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.
(9) Nothing in this Article shall apply to any person who for the time being is any enemy alien."
6. Sub-Articles (1) (2) guarantee that no person can be arrested and kept in detention without informing him of the grounds of such arrest and producing him before a Magistrate within a period of 24 hours of his arrest. However, these requirements have been dispensed with under sub-Article
(3) in respect of a person who is arrested and detained under any law providing for preventive detention. Sub-Article (5) further provides that detaining authority shall communicate to a person who has been detained in pursuance of detention order, the grounds on which such order has been made and shall also afford him earliest opportunity of making a representation against the detention order. Therefore, the position that emerges is that a detainee under a preventive detention law is of different category than an ordinary accused under any criminal law. He does not have the protection of being immediately informed of the grounds of his arrest and being produced before the Magistrate within 24 hours. When a person is detained in pursuance of a detention order then the detaining authority has to communicate the grounds of his detention within 15 days and relevant facts may not even be disclosed if the detaining authority considers it to be against the public interest. From its very essence, the preventive detention means that a person can be detained if in the opinion of the detaining authority his detention is required in respect of any of the circumstances mentioned in sub-Article (4) of the Constitution.
7. Of course, a detainee can competently challenge the detention order under Article 199 of the Constitution on the ground that the opinion formed by the detaining authority is not supported by the material on the basis of which the detention order is passed. The question of mala fide also has to be considered with reference to the material forming basis of detention. Person can be said to be aggrieved when right accrues to him to know the grounds and material of his detention. That right accrues when detention order is served and he surrenders to the detaining authority.
8. Even if a person is not aggrieved he can challenge the detention under clause (b) of sub-Article (1)(i) of Article 199 of the Constitution but the condition precedent for the exercise of jurisdiction under this clause is that person should be in custody and it is only then that a direction can be issued for his production in order to determine the legality or otherwise of the detention.
9. The matter can be looked from yet another angle. Under sub-Article (5) of Article 10 supra, the right of appeal has to be afforded to the detainee. It has been recently held in a Full Bench of this Court in Writ Petition No,14839 of 1994 that a writ petition challenging the detention order under section 3 of the Punjab Maintenance of Public Order Ordinance is not maintainable before availing of the alternate remedy of filing an appeal against the detention order before the Home Secretary of the Province. Filing of an appeal would also depend on the actual detention of the person sought to be detained under the detention order. Therefore, looked from whatever angle it is imperative that a person before he can challenge the detention order must be in actual custody as provided by the detention order. In the present case the admitted position is that the petitioner has not yet surrendered and he is evading his detention despite efforts by the police. Therefore, he is a fugitive at law. It will frustrate the very purpose of preventive detention if order of detention is challenged before detention order is implemented.
10. The upshot of the whole discussion is that the petition is incompetent being premature.
Accordingly it is dismissed in limine.