' JAWAID NAWAZ KHAN GANDAPUR, J.--- Petitioners Muhammad Ayaz Khan son of Malang Khan, Shamsher Ali Khan son of Maqadar Khan, Syed Gharib Shah son of Maqsood Shah, Jehanzeb Khan son of Jan Muhammad Khan, Muhammad Ilyas son of Shah Zada Khan, Jan Muhammad son of Nasrullah Jan Khan and Sher Ali Khan son of Muhammad Ayub Khan have challenged the vires and validity of their detention order, dated 3-11-1994 passed by District Magistrate, Batagram, under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (Ordinance XXXI of 1960) vide: which they have been detained for a period of one month.
' The grounds, on the basis of which their detention was recorded, were similar (stereotype) in nature, substance and text.
2. In order to appreciate the facts of the case in hand it is essential to reproduce the grounds of detention furnished to the petitioners, in the very words of the District Magistrate, which are:-- "It has been reported/learnt through reliable sources that you Mr. Muhammad Ayaz Khan son of Malang Khan of Batagram are constantly instigating the general public/party workers of P.M.L.(N.) and A.N.P. Batagram to stage demonstrations, and create law and order problems for the present Government so that the present Government should be compelled and pressurised, thus you are thereby acting in a manner prejudicial to the security, the public safety and harass the general public of the district and disturb the peaceful atmosphere of the district.
' I am, therefore, satisfied that your activities have been and continued to be prejudicial to public safety and maintenance of public order, I have accordingly taken. Action against you under section 3(1) of the Maintenance of Public Order Ordinance, 1960 and made the enclosed order.
' In pursuance of section 3(1) of the said Ordinance, you are hereby informed of the above grounds on which the aforesaid action has been taken against you in order to enable you to make a representation, if you wish so, to the Government against the said order. You are hereby informed that you have the right to make such representation."
3. Consequently, after consideration of the grounds mentioned above, District Magistrate, Batagram passed the impugned order(s) (stereotype), in respect of each petitioner, which is to the following effect:- "Order under section 3(1). M.P.O..
' Whereas, it has been made to appear to me that you Muhammad Ayaz Khan son of Malang Khan is constantly instigating the general public of the district to stage demonstration against the Government and disturb the peaceful atmosphere of the district and thereby acting in a manner prejudicial to the security, the public safety and the maintenance of public order.
' And whereas, having been considered the material and information in this regard, I am of the opinion that in order to prevent the said Muhammad Ayaz Khan from acting in a manner prejudicial to the public safety and maintenance of the peaceful condition in Batagram District, it is necessary to pass an order of detention.
' Now therefore, I Noor Ali Khan, District Magistrate, Batagram in exercise of the powers conferred on me by Rule 3(1) of the Maintenance of Public Order Ordinance, 1960 read with the Home Department Notification No,3/104-H/Spl/1/64, dated 24th February, 1965, hereby order that Mr. Muhammad Ayaz Khan be arrested forthwith and ,detained with effect from the execution of this order. The detenu may be detained and committed to the custody of Superintendent, Central Prison, Haripur for a period of 30 (thirty) days.
' Given under my hand and seal of the Court this 3rd November, 1994.
(Sd.)
District Magistrate, Batagram.
' No, 911-16, dated 3-11-1994 Copy forwarded to:--
(1) The Secretary to Government of N.-W.F.P., Peshawar, Home and T.As. Department,
(2) Commissioner, Hazara Division, Abbottabad,
(3) The D.I.-G. Of Police, Hazara Range, Abbottabad,
(4) The Superintendent of Police Batagram,
(5) The Assistant Commissioner, Batagram,
(6) The Superintendent, Central Prison, Haripur.
(Sd.)
District Magistrate, Batagram.
4. It may be pointed out that the main ground for detention is that each petitioner is constantly instigating the general public of the District to stage demonstrations against the Government and thus disturb the peaceful atmosphere of the District. Strangely, it has not been mentioned, as to which section of the public was instigated. Similarly the area, the date and the time has also not been given. Again, it has not been identified as to how and in what manner and by what means, the peaceful atmosphere of the district is to be disturbed. Statement of grounds, obviously, mentioned no facts at all.
5. Beside this there is nothing on the record to indicate, even remotely, that any demonstration was carried out by any member of the public as a result of or in pursuance of the alleged provocative directions. In the same manner, there is nothing on the file to suggest if any crime or offence was committed so as to impair the security of the State or endanger the public safety and maintenance of public order. The grounds, which are not backed by any overt act of the nature/kind, mentioned above, in our opinion, are not per se sufficient to give subjective satisfaction to the detaining authority for passing the impugned order. The grounds must be objective and must, therefore, be supported by concrete date and positive facts. These are missing in this case. In other words these are vague. It was held in case Muhammad Younus v. Province of Sindh through the Secretary to the Government of Sindh Home Department, Sindh Secretariat, Karachi and 2 others reported in PLD 1973 Kar. 694 (D.B.) as under:- "(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960).--- S. 3(1) Preventive Detention grounds of detention communicated to detenu must contain particulars of facts and should not be vague, vagueness in grounds infringes statutory (or constitutional) requirements ' Vagueness in the grounds may be evidence of the vagueness in the mind of the detaining authority and the failure on the part of the detaining authority to apply its mind properly and conscientiously to the available material to find out whether there is imminent and real necessity to order preventive detention of citizen. [p.711] C.
' The proper forum to challenge the validity of detention on the contention that some of the grounds are vague is the Court and the Court alone, and, if some of the grounds are, in fact, found to be vague by the Court, then the order of detention itself would be vitiated on the ground that there was failure to meet with the statutory (or constitutional) requirements relating to preventive detention. [p.713] F
6. We have carefully gone through the material which has been placed before us by the learned Assistant Advocate-General Mr. Muhammad Aslam Khan and we are convinced in our mind that the material against the petitioner is vague and general in nature. It is devoid of any tangible act which could be treated as "prejudicial to the security of the State or public safety and tranquillity".
7. Needless to mention that an order of detention has to satisfy various requirements chief amongst these are:--
(1) That the Court must be satisfied that the material placed before the authority empowered to issue detention order was of such a nature/character so as to persuade a person of ordinary prudence to make an order of preventive detention. Reliance is placed on a case Major-General (Retd.) Naseer Ullah Khan Babar v. President, Summary Military Court, Peshawar and 3 others reported in PLD 1989 Pesh. (D.B.) 215 wherein it was held:--
(c) Constitution of Pakistan (1973)--- ----Art. 199-Constitutional jurisdiction, invoking of---What the Court is concerned with is that executive or the administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied---What is reasonable or not in this context must be judged by the standards of an ordinary prudent and reasonable citizen, and will depend on the prevailing circumstances and the object with which action had been taken."
(2) that the satisfaction should be established in respect of each of the grounds of detention and none of them should be vague, speculative or non-existent, and
(3) that the detaining authority should be, in the first instance, able to discharge the initial onus/burden that the detention order is based on and backed by law/legality.
8. It may be mentioned here that all the requirements mentioned above must co-exist if any one of these is lacking/missing, the detention order is liable to be struck down. In the case in hand the vagueness of grounds, by itself, is enough to set aside the impugned order. It was held in case Ahmad Fahim Mughal v. Muhammad Saleem Khan etc. Reported in PLD 1990 Kar. 474 that:- "----S. 3---Privatge Secretary to Ex Prime Minister---Detention of---Challenge to---Whether detention is sustainable---Question of---It cannot be said that it could be unreasonable for Court, in proper exercise of its Constitutional duty, to insist upon a disclosure of materials upon which authority had so acted, so that it should satisfy itself that authority had not acted in an 'unlawful manner'---Such material may contain specific instances of past conduct---Other requirement is that order of detention will not be sustainable if it is passed with mala fide intention and without judicious application of mind on basis of allegations of vague nature or inadequate material-Held: Ground of detention used against petitioner is based on allegation which is vague in nature and no specific instances have been quoted nor any material is produced in proof thereof---Held further: Order of detention is not sustainable under law---."
9. Apart from the above, the allegations against the detenu did not constitute activity, which by any stretch of imagination, could be termed as prejudicial to the maintenance of public order, as interpreted by Supreme Court in case Miss Benazir Bhutto v. Federation of Pakistan reported in PLD 1988 SC 416 citation (W) page 524.
10. Not a single person, in this case, has been shown to have joined the alleged instigation or to have disturbed the public peace and tranquillity. No c even a single individual was examined by the detaining authority to support the grounds against the petitioners.
11. It appears that the detaining authority was unduly influenced by two F.I.Rs, one (No,172), dated 11- 10-1994 pertaining to the case registered under section 506/148/149/341/188/109, P.P.C. And the other (No, 177), dated 19-10-1994 pertaining to the case registered under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960. Both these cases were registered against the petitioners on the allegations that they were instigating the general public by threats to stage demonstration and to create an atmosphere of hatred and panic and that by doing so that acted in a manner which was prejudicial to public peace and tranquillity.
12. The record shows that the petitioners were arrested in the latter case. They were, however, released on bail by the learned Sessions Judge vide: his order, dated 3-11-1994. The learned Sessions Judge in para. No,4 of his order has remarked:-- "But there is no evidence/statement ever recorded by the Investigating Officer of any person having received such threat or they have been contacted by the petitioners or any person, apprehending any sort of threat or fear with the hands of the petitioners, has been so far examined."
13. Where the police, as here, had already registered a case against the detenus under various provisions of the Pakistan Penal Code then in that case it clearly indicated that the detenus were accused of substantive offences and therefore, their preventive detention, on the same allegation, was bad in law and could not be justified legally. In support of his contention the learned counsel for the petitioners, Mirza Abdullah Jan, Advocate, placed reliance on case:-- ' Mrs. Arshad Ali Khan v. Government of the Punjab reported in 1994 SCMR page 1532, wherein it was held as under:-- "West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--- ----S. 3---Constitution of Pakistan (1973), Arts.10, 17 & 184(3)---Preventive detention under S.3, West Pakistan Maintenance of Public Order Ordinance, 1960---Essentials---Expression "public order"- Meanings---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-atlarge---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 S.3 of the Ordinance---Where the Police had alreadreistered a case against the detenu under various provisions of Penal Code that clearly showed that the detenu was accused of substantive offences and therefore, his preventive detention on the same allegations could not be justified in law.---[Preventive detention].
' The Constitution authorizes preventive detention under a law to be enacted in accordance with the provisions of clauses (4) to (8) of Article 10 of the Constitution. The West Pakistan Maintenance of Public Order Ordinance, 1960 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. 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.
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 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. [p.1537] B The phrase "public order" has to be construed in the ordinary context as being synonymous with public peace, safety and transquillity. [p.15391 C ' 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 circular 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. [p.1539] D.
' 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 that an act which concerns only 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. [p.1540] E ' In the present case the detenu had been charged with the activity of extending threats to the Consulate-General of U.S. At Lahore. The police in this connection had already registered a case against him under sections 182/211/225/225-B and 506, P.P.C. This clearly showed 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. [p.1542] F ' The allegation against the detenu did not constitute activity which by any standard of reasoning could be judged as prejudicial to the maintenance of public order. [p.1543] G ' The preventive detention of the detenu on the facts and circumstances of the case was not valid in law. [p.1537] A."
14. We respectfully follow the dictum as laid down by the Honourable Supreme Court of Pakistan.
Accordingly we do not find that the alleged acts, attributed to the petitioners, have caused any apprehension in the minds of the residents of the locality with regard to the maintenance of public order.
15. It may be stated here that the impugned order was passed only on the day and after the petitioners were released on bail by the learned Sessions Judge. The local executive authorities, it seems, want to keep the petitioners behind the bars without any rhyme or reason. The impugned order, therefore, appears to have been recorded by the District Magistrate to frustrate and undo the effect of the bail order passed by the Sessions Judge. For this reason the learned counsel for the petitioners attacked the vires and legality of the preventive order on the basis of mala fide. In our considered opinion since the petitioners were already in jail w,e,f, 19-10-1994, therefore, there was no reason or occeasion to pass the impugned order under section 3(1) of the Maintenance of Public Order Ordinance, 1960 on 3-11-1994, in respect of the past transactions regarding which separate cases were registered against them vide F.I.R. No,172, dated 11-10-1994 and F.I.R. No,177, dated 19-10-1994 lodged in Police Station Batagram. Seen in this context, recording of the detention order by the District Magistrate against the petitioners has obviously introduced an element of bad faith in the order sought to be impeached. It is now well-settled that any order if it is found to be mala fide is liable to be set at naught.
16. The learned Assistant Advocate-General, on the other hand, vehemently stated before us that this writ petition filed by the petitioners is incompetent, inasmuch as they have not availed the other remedy i,e, of making a representation to the Government under section 3(6) and subsection (6-A) of the West Pakistan Maintenance of Public Order Ordinance, 1960 and therefore, it is liable to be dismissed. In this respect he has placed reliance on case Muhammad Siddiq Khan v. District Magistrate reported in PLD 1992 Lah. 140 (DB) wherein it was held:-- "West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)--- ' ----S. 3(6) & (6-A)---Constitution of Pakistan (1973), Art. 10(5)--- Detention-Grounds for detention to be communicated to the detenu who shall also be afforded the earliest opportunity of making a representation against order of detention---Right to file representation carries with it, by necessary implication the right to have it decided in accordance with law without any delay and within a reasonable time---Government is obliged to decide such application as expeditiously--- Failure of the Government to decide representation would be a ground for striking down the order of detention---[Abdul Hamid Khan v. The District Magistrate, Larkana PLD 1973 Kar. 344 dissented from].
' Section 3(6-A) of the West Pakistan Maintenance of Public Order Ordinance, 1960 provides that the Government may on consideration of the representation and after giving the persons detained an opportunity of being heard, modify, confirm or rescind the order.
' Sub-Article (5) of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 provides that not only that the grounds for detention be communicated to the detenu but also that he shall be afforded the earliest opportunity of making a representation against the order. The right to make representation is thus not only statutory in nature but also finds recognition in the Constitution itself, and therefore, stands on much higher pedestal. The importance of this right cannot be whittled down and it must be given effect to. [p.147] A ' The right to file representation carries with it by necessary implications the right to have it decided in accordance with law. A reading of sub-Article (5) of Article 10 with subsections (6) and (6-A) of section 3 leaves no doubt that it is implicit in the right to file a representation that it must be decided by the Government without any delay and within a reasonable period of time. The obligation of the Government to decide the application flows out of the aforesaid provisions and it is necessarily implicit in the language of provisions referred to above that the representation must be decided as expeditiously as possible. Indeed the failure of the Government to decide a representation would be a ground for striking down the order of detention. [p.148] B
(d) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)- ----S. 3(6) & (6-A)---Constitution of Pakistan (1973), Arts.199 & 10(5)---Remedy of filing representation provided by Art.10(5), Constitution of Pakistan (1973) and S.3(6) and (6-A) of the West Pakistan Maintenance of Public Order Ordinance, 1960 is inadequate remedy within the meaning of Art.199 of the Constitution---Exceptions to the rule."
17. Additionally he also placed reliance on the following cases:--
(1) 1989 PCr.LJ 685 Zarban Shah v. District Magistrate, Rahimyar Khan and another: ----S. 3---Detention order, validity of---District Magistrate ordering detention on basis of past involvement of detenu in 27 criminal cases---Past activities on conduct of person, were relevant to judge his future action---District Magistrate, held, was justified in passing detention order to prevent detenu from acting in prejudicial manner. [p.686] A, B & C."
(2) PLD 1966 (W.P.) Kar. Page 282 ' Mairaj Muhammad Khan v. Government of West Pakistan and (2) Superintendent of Jail, Karachi: "West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.3---"Preventive detention" and "punitive detention"--Distinction---Order of preventive detention---When can be interfered with by Court---Mere circumstance that detention order followed release of detenu on bail in separate criminal case---Not sufficient to hold such order to be mala fide.
' Preventive detention can properly be contrasted to punitive detention, one having reference to the apprehension of wrong doing and other coming after the illegal act is actually committed.
Preventive detention is justified by a reasonable probability of the commission of a prejudicial act by the suspected person whereas his conviction can only be justified by legal evidence. It is for the detaining authority to judge and put its own interpretation on the suspected judicial acts of an intended detenu for its own subjective satisfaction and it does not fall within the province of the Courts to probe into that satisfaction or to analyse the substance and quantum of the evidence on which that satisfaction is based. Courts will interfere only where (1) the grounds alleged for the detention are not relatable to the objects of the detention and the detention law and (2) where such detention on the part of the detaining authority is proved to be of a mala fide character [p.286] A ' The two actions, preventive and punitive, are not mutually exclusive and resort can be had to either or both, depending on the choice of the executive authority, with this limitation that the Courts will certainly interfere in aid of the accused person if it is found that the action is taken to deprive him of his legal rights and privileges arising from his trial under the punitive law by action under the preventive law, or when such action is manifestly malicious and mala fide. [p.288] D ' The detenu was already in jail in connection with a separate criminal case. On the date he was to be released on bail ordered by the High Court, the detenu was served with the detention order under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960. It was urged that since the detention order followed the release of the detenu on bail the order was mala fide.
' Held, that it is not possible on this single circumstance to hold that the order is a mala fide one. It may be that the detention order was made to deprive the detenu of his liberty earned by him in view of the bail order made by the High Court, but it may equally be for the reason of an honest conviction on the part of the detaining authority that the petitioner was not a person to be allowed free movements and actions in the context of the situation then prevailing without detriment to the maintenance of "law and order". In the absence of any proof that the action of the detaining authority is motivated by malicious intent and purpose, which the petitioner must prove as a fact, the Court is unable to attribute any malice to the detaining authority. [p.288] B ' It is true that an executive authority cannot be permitted to exercise its authority except honestly and without malice and it is the duty of the Courts to see that the fraudulent exercise of such power or the colourable exercise of it to gain an ulterior object is stifled; but the question as to the mala fide exercise of power is one of fact in each case and the onus is on the detenu to show that the order of detention is in fact a fraudulent exercise of power vested in the Government and he can sustain that burden only if he can successfully rebut the presumption of bona fides on the part of the Government."
(3) 1979 PCr.LJ page 658 ' Malik Mushtaq Anwar v. District Magistrate, Lahore and 2 others: Constitution of Pakistan (1973)- -7-Ad. 199 read with West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.3--- Preventive detention---Judicial review---Report against petitioner showing him discussing political matters and deciding to indulge in immense damage to public property in case Chairman of a political party awarded death sentence---Function of Court in judicial review, however, only to see whether order of detention reasonable and objective and whether detaining authority applied mind with all reasonable care---Grounds of detention served upon petitioner, held, not vague and indefinite---Detention maintained, in circumstances.---[Preventive detention]. [p.660] A.
18. We have gone through the case-law produced by the learned Assistant Advocate-General and are of the view that the contention of the learned Assistant Advocate-General is without any force.
It was held in case Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others reported in PLD 1973 Kar. 344 as under:-- "(f) Constitution of Pakistan (1973), Art. 201 and West ' Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.3(6)--Writ---Other remedy open---Provision of S.3(6) of Ordinance XXXI of 1960 authorities detenu to make representation but remedy provided not "adequate" to bar exercise of writ jurisdiction by High Court under Art.201 of Constitution.
It is true that the provision of section 3(6) and subsection (6-A) of the West Pakistan Maintenance of Public Order Ordinance, 1960 authorises the detenu to make a representation to Government and also requires the Government to afford him the earliest opportunity of doing so. One can read in subsection (6-A), however, no duty on the Government to consider the representation and to give the person detained an opportunity of being heard before deciding to modify, confirm or rescind the order. The subsection certainly authorises the Government to do so but does not require to do so. Now Article 201 of the Constitution confers power on the High Court to pass certain orders if it is satisfied that no other adequate remedy is provided by law. No doubt the provision provides a remedy but certainly in the absence of any requirement that the Government shall consider the representation this cannot be considered to be an "adequate" remedy in matters which concern the liberty of a subject. [p.360] G."
19. Upon the record which has been made available to us and as it stands, we feel unable to hold that the statement of the allegations, served upon the petitioners, has any potentiality to interfere with or affect upon the public tranquillity and order and that it cannot furnish or constitute a ground for detention under the West Pakistan Maintenance of Public Order Ordinance, 1960.
Reliance is placed on a case Haji Ghulam Ahmad Bilour v. District Magistrate decided by an Honourable Division Bench of this Court on 7-11-1994 (Writ Petition No,1037 of 1994).
20. We accordingly by following the dictum as laid down by the Supreme Court of Pakistan 1994 SCMR 1532 as discussed above in para. No,13, hold that the order, dated 3-11-1994 passed by District Magistrate was void in law and is therefore, quashed.
21. The petitioners were directed to be set at liberty if not required in other case validly registered against them, vide our short order, dated 28-11-1994 and these are the reasons for the said order.