' Amir Mehdi Salih Al-Samarrai, who has an Iraqi origin, has been granted nationality of Pakistan and is presently working as the Chief Representative of "Muwafaq Foundation", based in the Island of Jersy, United Kingdom, in Islamabad.
2. In pursuance of the detention order passed on 30-3-1995, by the Acting District Magistrate, Islamabad, under the provisions of section 3 of the West Pakistan Matinenance of Public Order Ordinance, 1960, the detenu was taken into cusodty and was detained in Adiala Jail, Rawalpindi.
This order has been extended subsequently vide orders, dated 25-4-1995 and 29-5-1995. The last order, which has been passed by the Chief. Commissioner, Islamabd Capital Territory, respondent No,3, is to expire on 27-6-1995. Proceedings have been taken by the respondents for extension of the aforementioned period by referring the case to a Review Board in terms of the provisions of section 5 of the Ordinance.
3. Writ Petition No,395 of 1995 was filed to challenge the original detention of the detenu before this Court by the petitioner, who is wife of the detenu. Subsequently, the orders, dated 30-3-1995 and 25-4-1995, were challengd by the detenu himself in Writ Petition No,573 of 1995. This writ petition was disposed of by my learned brother Sharif Hussain Bokhari, J. On the basis of the statement made by the Acting District Magistrate, Islamabad to the effect that detention order is not being extended further. As the detenu was not released on 28-5-1995 by the Superintendent, Adiala Jail, Rawalpindi, another Writ Petition No,694 of 1995 was filed before this Court to challenge the legality of the detention of the petitioner's husband and also the order, dated 29-5-1995 whereby the detention period of the detenu was extended by respondent No,3, for a period of another thirty days. The writ petition was withdrawn, as being not properly constituted due to non-impleadment of respondent No,3, as a party thereto. Hence, this petition has been filed to challenge the legality and vires of all three aforementioned detention orders.
4. Mr. Abdul Karim Khan Kundi, Advocate learned counsel for the petitioner, has contended that the impugned orders have been passed by unauthorised persons; that the order passed by respondent No,3 extending the order of detention passed by the Acting District Magistrate, Islamabd who had absolutely no lawful authority to pass an order under section 3 of the Ordinance, is patently illegal and void and as the basic order is void, hence, the order of extension suffers from the same infirmity; that there is absolutely no incriminating material on the basis whereof the respondents could have a subjective satisfaction that the detenu is liable to be detained under the provisions of the Ordinance; that the detenu was arrested and then detained, at the time when he was on pre-arrest bail granted to him by the Peshawar High Court in a criminal case registered against him by the F.IA., which fact alone, speaks volumes about mala fide exercise of jurisdiction by the respondents; that the grounds of detention have been supplied to the detenu after an inordinate delay and by a different District Magistrate, than the one who had passed the original order, and that the remedy of filing of representation to challenge the impugned orders, which were to enure only for 30 days, is justly illusory in nature and as such being not speedy and efficacious, it is not necessary to resort to the said remedy, before approaching this Court in exercise of its Constitutional jurisdiction as liberty of a citizen, who is also providing social services to the society, is at stake. It is, hence, contended that the impugned orders being patently illegal and without jurisdiction may be set aside and the detenu may be set at liberty. In support of his contentions, learned counsel for the petitioner has placed reliance on the cases of Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 (W.P.) Lah. 135; Qazi Masood Gul v.
Government of West Pakistan and others PLD 1969 Pesh. 50; Moula Bakhsh v. Government of Sindh and another PLD 1988 Kar. 18 and Jalal alias Jala v. District Magistrate, Kasur and 2 others 1990 PCr.LJ 1529.
5. Mr. Bashir Ahmad Kian, learned Standing Counsel for respondents Nos.1 to 3 has produced before me certain privileged documents from the record of F.I.A. And the material considered by the detaining authorities, while passing of the impugned orders, in order to show that the detenu is a member of an International Gang of Terrorists headed by Muhammad Yousaf Ramzi; that the detenu associates and fiances the members of the said gang; that he is involved in the consipracy hatched in. The year 1993, to kill the top political leaders of the country and contends that the detenu has been detained for lawful and valid reasons. It is further contended by him that the petition is premature as the same has been filed without availing of the statutory remedy of a representation, which is defmitely more speedy and efficacious and that any irregularity in the initial order passed by the Acting District Magistrate, stands cured vide the impugned order, dated 29-5-1995. Hence, it is prayed that the petition has no force, the same may be dismissed. In support of his contentions, learned Standing Counsel has placed reliance on the cases of Malik Ghulam Jilani v. The Government of West Pakistan PLD 1968 SC 373; ' Haji Rajan Ali v. Superintendent, District Jail, Quetta and another 1986 PCr.LJ 2928; Mst. Farzana Kamran v. District Magistrate, Gujrat and 2 others 1992 PCr.LJ 2336 and Muhammad Siddiq Khan v.
District Magistrate PLD 1992 Lah.
140.
6. I have given my anxious consideration to the arguments addressed by the learned counsel for the parties, have gone through the record, relevant provisions of the statute and the case-law cited at the bar.
7. For detailed reasons to be recorded later, I see no force in this writ petition. Hence, the same is dismissed. No order as to costs. JUDGMENT ' This detailed judgment shall be read as a part and in continuation of short order, dated 22-6-1995 whereby, the writ petition has been dismissed, for detailed reasons to be recorded later.
2. As in the short order facts as well as arguments addressed by the learned counsel for both the parties have been given in detail, therefore, it is not necessary to repeat the same in this judgment, which, hence, shall be read as part thereof.
3. Before embarking upon discussion and decision of the issues involved in this matter, it will be advantageous for the purpose of ready reference to reproduce the relevant statutory provisions on the subject, necessary notification as well as the orders impugned in the writ petition, the grounds of detention, the letter dated 18-6-1995 referring the matter to Review Board for the purpose of extension of period of detention and a brief resume of relevant case-law on the subject as follows:- -
(I) West Pakistan Maintenance of Public Order Ordinance, 1960--- ----S. 3(1)---Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may extend from time to time the period of such detention, for a period not exceeding six months at a time.
(6) Where a detention order has been made under this section the authority making the order shall, as soon as may be communicated to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so: ' 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-a) Where a representation is made to Government under subsection (6), Government may, on consideration of the representation and giving the person detailed an opportunity of being heard, modify, confirm or rescind the order.
' Section 26---Delegation of power to Deputy Commissioners---Government may, by order in writing, direct that the power under subsection (1) of section 3 shall, subject to such restrictions as may be specified, be exerciseable by any District Magistrate within his jurisdiction.
' Criminal Procedure Code--- ' Section 107(4)---A Magistrate before whom a person is sent under subsection (3) may in his discretion detain such person in custody pending further action by himself under this Chapter.
' Section 114---If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, warrant directing the officer in whose custody he, is, to bring him before the Court: ' Provided that whenever it appears to such Magistrate, upon the report of a Police Officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant of his arrest.
' Section 117(3)--- Pending the completion of the inquiry under subsection (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing direct the person in respect of whom the order under section 112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, default of execution, until the inquiry is concluded: ' Provided that--
(a) no person against whom proceedings are not being taken under section 108, section 109, or section 110, shall be directed to execute a bond for maintaining good behaviour, and
(b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 112.
(III) Constitution of Islamic Republic of Pakistan, 1973-- ' Article 10(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, and, if the detention is continued after the said period. Of three months, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, 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 Government concerned, to the effect that it is not in the public interest to furnish any documents, 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 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, 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, as defined in a Federal Law or is a member of any association which has for its objects, or which indulges in, any such 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 an enemy alien.
(IV) President's Order No,18 of 1980-- ' Article 2-- Exercise of executive authority of the Federation---The executive authority of the Federation in respect of the Islamabad Capital Territory shall be exercised by the President, either directly or, to such extent as he thinks fit, through an Administrator to be appointed by him.
(V) Notification No,F.17(2)80-Pub., dated 31st December, 1980.--- In pursuance of Article 2 of the Islamabad Capital Territory (Administration) Order, 1980 (P.O. No,18 of 1980), the President is pleased to direct that subject, to such general or special instruction as may from time to time be given by the Federal Government, the ' Administrator shall have, in respect of the Islamabad Capital Territory, all the powers and duties conferred or imposed on the Provincial Government under any law for the time being in force in the Islamabad Capital Territory.
(VI) Detention Order and Grounds:-- ORDER: ' Whereas it has been brought to my notice that Mr Amir Mehdi Saleh, Pakistani of Iraqi Origin, Resident of House No,20-B, Street 10, F8/3, Islamabad, Regional Director (Asia) of Muwafaq Foundation is acting in a manner prejudicial to public peace and tranquillity and maintenance of good order and is likely to create law and order situation in Islamabad District.
' And whereas, with a view to preventing the said Mr. Amir Mehdi Saleh from acting in a manner pejudicial to public peace, tranquility, and good order it is necessary to give the directions hereinafter appearing.
' Now, therefore, I, Ahmad Yar Khan, District Magistrate, Islamabad in exercise of the powers conferred upon me under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 do hereby direct that the said Mr. Amir Mehdi Saleh shall be immediately arrested and detained in the Central Jail, Adiala, Rawalpindi for a period of 30 days from the making of this order subject to such conditions or directions as may be issued.
' Given in my hand and the seal of the Court this the day of March, 1995.
' (Sd.)
' District Magistrate, Islamabad.
' No 433/Reader, dated 30-3-1995. Copy to:
1. The Secretary, Ministry of Interior, Islamabad.
2. The Chief Commissioner, I.C.T., Islamabad.
3. The Deputy Commissioner, Rawalpindi.
4. Superintendent, Central Jail, Adiala, Rawalpindi.
5. Assistant Director, F.IA. Islamabad with two spare copies of the order for service upon detenu.
One copy of the order may please be delivered and second copy duly acknowledged returned to this office for record.
' (Sd.)
' District Magistrate, Islamabad.
(b) Order dated 20-4-1995: ' From ' The District Magistrate, Islamabad.
' To ' The Superintendent, Central Jail, Rawalpindi.
' No, 1157/6(31)-RDM/95, dated 20-4-1995 ' Sub: SERVICE OF MEMORANDUM OF GROUNDS UPON DETENUS.
' Please refer to the subject mentioned above.
' Please find enclosed herewith duplicate copies of the memorandum of grounds on the basis of which detention orders of the following persons were issued:--
(1) Mr. Mustafa Ahmad, Egyptian National.
(2) Mr. Muhammad Hussain Ali Al-Janabi Iraqi National.
(3) Amir Mehdi Saleh, Pakistani of Iraqi Origin.
(4) Eng. Muhammad Abdullah Ararwi Jordanian National.
' One copy of the grounds may be delivered to the detenu and second copy duly acknowledged may be returned to this office for record.
' (Sd.)
' District Magistrate, Islamabad.
' No,1154/Reader, Islamabad, the 20-4-1995. MEMO. OF GROUNDS ' The order passed under section 3 of the West Pakistan Maintenance of Public Order Ordinance 1960 conveyed to you vide this office No,433/Reader, dated 30-3-1995 and served upon you on 30- 3-1995 is based upon the following grounds:--
(i) That you are close associate of the terrorists namely Wali Khan, Amin Shah resident of Miran Shah and Muhammad Khalifah (linked with Yusaf Ramzi) who was arrested on 16-12-1994 while entering the U.SA. Shortly after the Philippine Air Liner was bombed by Yusuf Ramzi.
(ii) That Muhammad Khalifah's address book contains your's Telephone Nos.859302 and 585613.
(2) That from the above it is evident that you have been keeping links/contracts with the Terrorist groups through aforesaid numbers in manner prejudiced to public safety, public peace, public interest and the maintenance of public order and were most likely to continue the activities in future, in revenue limits of Islamabad.
' (Sd.)
' District Magistrate, Islamabad.
' Amir Mehdi Saleh, Pakistani of Iraqi Origin, detained in Central Jail, Rawalpindi.
(c) ORDER DATED 25-4-1995: ORDER ' In continuation of this Office Order No,433/Reader, dated 30-3-1995, detention period of Mr. Amir Mehdi Saleh, Pakistani of Iraqi Origin is hereby extended for further 30 days with effect from 29-4- 1995.
' District Magistrate, Islamabad.
' No,1188/Reader, dated 25-4-1995. Copy to:--
1. The Secretary M.O. Interior, Islamabad.
2. The Chief Commissioner, I.C.T.
3. The Deputy Commissioner, Rawalpindi.
4. The Superintendent, Central Jail, Adiala, Rawalpindi with two spare copies of the order for service upon detenu. One copy of the order may please be delivered and second copy duly acknowledge returned to this office for record.
5. Assistant Director, F.IA., Islamabad.
' (Sd.)
' District Magistrate, Islamabad.
(d) ORDER DATED 29-5-1995:- ' No,1(10)/Law(V.I.), Islamabad the 29th May, 1995. ORDER ' In exercise of powers vested in him under subsection (1) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 read with Ministry of Justice Notification No,F.17(2)/80- Pub., dated 31-12-1980 issued in pursuance of Article 2 of Islamabad Capital Territory (Administration) Order No,1080 (P.O. No,18 of 1980) and all other powers enabling him in this behalf, the Chief Commissioner, Islamabad Capital Territory is pleased to extend the detention period of the following persons for period of another 30 days w,e,f, 29-5-1995:--
1. Eng. Muhammad Abdullah, Jordanian National.
2. Amir Mehdi Saleh Pakistani of Iraqi Origin.
' BY ORDER OF THE CHIEF COMMISSIONER, ISLAMABAD CAPITAL TERRITORY.
' (Sd.)
' (Mrs. Yasmin Masood), Deputy Director (Admn.).
' Copy for information and necessary action to:--
1. The Secretary, Ministry of Interior, Islamabad.
2. District and Sessions Judge, Islamabad.
3. Inspector-General of Police, Islamabad.
4. The District Magistrate, Islamabad with reference to his Letter No,1(2)/RDM, dated 24-5-1995.
5. The Additional District Magistrate, Islamabad.
6. Assistant Director, F.IA. Headquarters, Islamabad.
7. District Attorney, Islamabad.
8. Superintendent, Central Jail, Adiala, Rawalpindi.
' (Sd.)
' (Mrs. Yasmin Masood), Deputy Director (Admn.).
' No,______ , dated 29-5-1995.'
MEMO. OF GROUNDS: ' The order passed under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 conveyed to you Mr. Amir Mehdi Saleh, vide D.M. Letter No,433/Readers, dated 30-3-1995 and No,1188, dated 24-5-1995 and served upon you on 30-3-1995 is based upon the following grounds:- -
(1) During the course of enquiry by F.IA. It transpired that you were in contact with one Munir Ibrahim Ahmad, a close associate of Yousaf Ramzy regarding abortive conspiracy to carry out assassination of a top political leader of Pakistan during 1993 Elections.
(2) That you have been providing financial as well as moral support to Yousaf Ramzy and his other associates during their stay in Pakistan.
That from the above it is evident that you have been keeping links/contacts with the Terrorist groups by providing financial as well as moral support to them in a manner prejudicial to public safety, public peace, public interest and the maintenance of public order and were most likely to continue the activities in future, in the revenue limits of Islamabad.
' (Sd.)
' Chief Commissioner, I.C.T., Islamabad.
(WI) Resume of case-law:-- ' In case of Maulvi Farid Ahmad (supra), it has been held that sufficiency or otherwise of grounds of detention are not justiciable and the Court, however, is competent to examine whether grounds forming basis of detention could be such as could satisfy the detaining authority for passing order of detention and in case the grounds are not within the ambit of the Ordinance, the order of detention cannot be justified. It has further been held in this judgment that there is no limitation placed on the exercise of writ jurisdiction by this Court and as per Article 2 of the Constitution of Pakistan, 1962, it is an inalienable right of every citizen to enjoy the protection of law and in particular no action detrimental to life or liberty can be taken except in accordance with law and in case of a person cannot be justified in law, there is no reason why that person should not be able to invoke the jurisdiction of the High Court immediately for the restoration of his liberty which is his basic right and in all cases where a person is detained and he alleges that his detention is unconstitutional and in violation of the safeguards provided under the Constitution, or that it does not fall within the statutory requirements of the law under which the detention is ordered, he can invoke the jurisdiction of the High Court under Article 98 of the Constitution of Pakistan, 1962 and ask to be released forthwith. In case of Qazi Masood Gul (supra), it has been held that in case where the detention order does not indicate that it was passed for preventing the detenu from acting in any manner prejudicial to public safety or maintenance of public order in future and the detenu has neither been informed about his right of representation to Government nor any opportunity has been afforded to him to file a representation, the said order is illegal, hence, the same was set aside by a Division Bench of the Peshawar High Court. In case of Moula Bakhsh (supra), at page 20 of the report, it has been held that if the initial detention order is illegal, the subsequent order of detention could not rectify this illegality and as in the case before their Lordships of the Karachi Bench, no material was produced to show the legality of the custody of the detenus before the service of orders of detention on them, the detention order passed subsequently could not rectify the illegality and in such circumstances the orders of detention which emanated from illegal custody were labelled as tanned suffering from legal infirmity tending to show mala fides on the part of detaining authority. In case of Jalal alias Jala (supra), it has been held that the Ordinance XXXI of 1960 is an encroachment on the liberty of citizens and is, therefore, to be construed very strictly and in favour of the subjects and that there was no material whatsoever existing to establish nexus between activities of detenu and precautionary order of detention, the order was struck down as illegal, without lawful authority by a learned Single Bench of this Court.
' In case of Malik Ghulam Jilani (supra), it has been held that while deciding detention cases, the Courts should not insist on revelation of grounds such as would be regarded as reasonable after adjudication and that unless mala fides are established the Courts should not interfere if the compliance with formalities of statute is complete. At page 401 of the report, it has been _ held as under:-- "I agree with the conclusions reached by my Lord the Chief Justice in this case and concur in the order proposed to be passed by him. I am, however, doubtful whether the 'satisfaction', of the detaining authority in the relevant law and rules should be placed on a par with 'suspicion on reasonable grounds' of an arresting authority. If the Legislature had used two different expressions vis-a-vis the two authorities and the connotations of these expressions have been fixed by an antecedent judicial precedent, it should be presumed that the Legislature intended to use them in their established connotations. On this view, I venture to think that in the case of detaining authorities Courts need not insist on the revelation of grounds such as would be regarded as reasonable after adjudication. The 'satisfaction' in such cases should be of the authorities themselves and unless there is a colourable exercise of power for uniterior motives not contemplated by the law, so that the case is one tainted with mala fides, the scope for interference, by Courts would be confined to examination of the question whether compliance with the formalities of the statute on the face of the record, is complete or not. However, even if the interpretation suggested above be the guiding factor, the result of these appeals would not have been in any way different from that reached by my Lord."
' In case of Haji Rajan Ali (supra), it has been held that in order to sustain the detention order, grounds of detention has to be furnished by the detaining authority as soon as may be and grounds should not be vague as to lack of material particulars and should have nexus with material which was placed before the detaining authority and that expression 'as soon as may be' as used in section 3 of the Ordinance is to be construed with reference to the facts of each case and no hard and fast rules as to period with reference to said expression could be prescribed or fixed but at any rate the expression does not admit of any delay, on the part of the detaining authority in communicating the grounds of detention, to a detenu which it could avoid. It has further been held in the same judgment that any infirmity in the original detention order could not vitiate the subsequent order of detention and that the provisions of Article 10 of the Constitution provided an alternate adequate remedy. In case of Mst. Farzana Kamran (supra), a learned Single Judge of this Court, while examining the legality of order of detention passed by the District Magistrate, Gujrat, detaining Raja Kamran Afzal, who was an M.PA., after examining almost the whole case-law on the subject, has held that the burden to prove mala fides is entirely upon the person, who alleges, as the official act has a presumption of regularity, which cannot be invalidated merely upon vague allegations of malice, as the mala fides has to be pleaded with particularity and must be based on specific and definite allegations as held in The Federation of Pakistan v. Saeed Ahmad Khan and others PLD 1974 SC 151; that detention of4 a person as a precautionary measure can be directed against a person even if the grounds against him are essentially in the nature of a criminal charge and that failure to make a representation against detention as provided under the law and failure of specific denial of allegations are sufficient grounds to uphold the order of detention challenged in the case. In case of Muhammad Siddique Khan (supra), a Division Bench of this Court while examining the legality of detention order, of various persons, passed under the provisions of section 3 of the Ordinance, has held that remedy of filing of representation against the detention order as provided by Article 10(5) of the Constitution of Islamic Republic of Pakistan, 1973 and section 3(6) and (6-a) of the West Pakistan Maintenance of Public Order Ordinance, 1960 is adequate within the meaning of Article 199 of the Constitution of Pakistan; that a District Magistrate to whom the powers have been delegated, under the provisions of section 3 of the Ordinance need not make a reference to the Government but can directly pass an order of detention. In case of Sh. Rashid Ahmad v. The District Magistrate, Rawalpindi etc. (Writ Petition No,14839 of 1994), decided on 24-1-1995 by a Full Bench comprising of five Honourable Judges of this Court, of which, I was also a member, it has been held that an order of detention is amenable to an alternate and adequate remedy of filing of representation before the Government and without availing that of the writ petition is not competent. Paragraphs Nos.7, 8 and 9 of the judgment are reproduced as under:- "7. We have examined the case-law on the subject. The Supreme Court of Pakistan in Wealth Tax Officer v. Shaukat Afzal and others 1993 SCMR 1810 did not approve the invoking of Constitution jurisdiction of High Court by abandoning or bypassing the statutory remedy without reasonable cause. The Supreme Court in the said case referred to their decision in the case of A. Habib Ahmad v. M.K.G. Scott Christian and others PLD 1992 SC 353, which was to the following effect:- ' It is often said that if a Court has no jurisdiction it is better for the High Court to interfere in its extraordinary jurisdiction to provide swift and efficacious remedy. Experience has shown and it has now been recorded as opinion in a large number of cases that in practice even if it was so few decades ago, it is no more so in the present circumstances. See a very recent judgment of this Court on this very issue Messrs English Boot Shoes Ltd. v. Collector, Central Excise and Land Customs (Civil Appeal No,344 of 1986, decided on 24-12-1991)'.
8. In Ch. Abdul Qadir v. Lahore Commercial Bank Ltd. Etc. 1980 SCMR 280 it was held that if a person voluntarily fails to avail himself all the remedies available to him under the civil law, he has no locus standi to maintain writ petition in the High Court. There is another pronouncement of the Supreme Court on this point. In Tariq Transport Company v. Sargodha-Bhera Bus Service, Sargodha PLD 1958 SC (Pak.) 437 it was observed as under:- `Having given careful consideration to this aspect of the matter, 1 am of the view that the present case was governed by the general rule that where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. Since, the present case, the statute under which the respondent had a grievance provides an appeal in which that grievance can be set right no writ of certiorari or mandamus or any other discretionary order of the nature should have been issued by the High Court'.
9. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 provides an extraordinary remedy to the aggrieved person of invoking the Constitutional jurisdiction of the High Court with the underlying purpose to keep the administrative and judicial authorities within the bounds of their jurisdiction. When the law provides a remedy to another authority fully competent to give relief, any indulgence to the contrary by the High Court is likely to produce a sense of distrust in those authorities and to cast an underserved reflection on their integrity and competency and would defeat the legislative intent."
4. I have considered the arguments addressed by learned counsel for the parties, relevant statutory provisions and the legal propositions as laid down in the case-law on the subject.
5. There is no cavil with the proposition that the detenu is entitled to delivery of grounds of detention without delay; that the order of detention, if established to be tainted with mala fides, is liable to be struck down by the High Court in exercise of its Constitutional jurisdiction and that the order has to be passed by a competent Authority and is to be justified on material placed before and considered by the detaining authority. However, it is also an established legal position that the mala fides have to be alleged with particularity and are to be proved by the persons who level such allegations; that the remedy of filing of a representation against the order of detention is a statutory right guaranteed by the Article 10 of the Constitution and as such is definitely an efficacious alternate statutory remedy available to the person who wishes to challenge the detention order; that the grounds of detention are not justiciable in exercise of Constitutional jurisdiction of this Court except to the extent that it can be seen by the Court as to whether there was sufficient material before the detaining authority at the time of passing of the impugned order to justify the preventive detention of the detenu: that the infirmity in the initial detention order, if any, stands cured by the subsequent order of detention competently passed and that in case of exercise of powers even under Criminal Procedure Code, the Magistrate do have jurisdiction to order immediate preventive detention in appropriate cases.
6. Admittedly, this writ petition has been filed without resorting to the filing of a representation against the impugned orders. Period of first two orders have since expired. The remedy of filing of representation as provided by section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 read with Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 is available to the detenu, but admittedly has not been availed of for cogent reasons. Therefore, without availing of the said remedy, this Constitutional petition is not entertainable unless and until the petitioner is in a position to make out a case of exceptional nature which has not been established as nothing has been brought on record, on the basis whereof it could be said that the case is of such a nature that a remedy of representation will be an exercise in futility or that the said representation shall not be decided on merits and in accordance with law. Merely because the petitioner has been rendering social services; that he is of a foreign origin or that period of his detention has been short, alone are not sufficient grounds to entertain the writ without first resort to the statutory remedy of a representation, therefore, I hold that this writ petition is premature.
7. As regards the argument of the learned counsel for the petitioner that the detention order is tainted with mala fides, I do not find any substance in it for the reasons that nothing has been alleged or brought on record on the basis whereof it could be said that the District Magistrate, Islamabad or the Chief Commissioner, Islamabad Capital Territory, is in any way enimical to the detenu. Merely because he had been granted pre-arrest bail in a criminal case and was detained during the time when he was still on bail, alone, is not a sufficient circumstance to hold that the detention order passed by the competent authority is tainted with mala fides. The questioned orders passed by the public functionaries in the discharge of their public duties have presumption of regularity and, therefore, on the basis of vague allegations without their being any material to prove malice in particularity, it cannot be held that the impugned detention orders are tainted with mala fides. Hence, the argument in this behalf is repelled.
8. As regards arguments of the learned counsel for the petitioner that -the grounds of detention are delivered to the detenu after delay, there may be some truth in the late delivery of the grounds of detention as regards the first detention order, but so far as the order which is now in the field it does not suffer from this infirmity. The grounds have been conveyed to the detenu well within reasonable time, therefore, no valid grievance can be raised by the petitioner on the ground of allegedly delay delivery of grounds of detention.
9. As regards the arguments of the learned counsel for the petitioner to the effect that there was no material before the detaining authority to pass a detention order, I do not agree with the contention for the reasons that the allegations which have been levelled against the detenu are very serious in nature. In the grounds of detention, it has been mentioned that he is a close associate of Mr. Yousaf Ramzi, who belongs to a gang of International Terrorists, who has recently been handed over to United States of America and is also required in various cases for trial by the Government of Pakistan, that the detenu has been financing the associates of said Yousaf Ramzi and is also accused person in a conspiracy hatched to kill the top political leaders of the country in the year 1993, regarding whose involvement investigation is going on with the F.IA., who had statedly placed the whole material collected by the said agency before the detaining authority.
Some of the privileged material has also been shown to me as well, which according to the learned Standing Counsel was also placed before the detaining authority. It appears that the Government is very fair that instead of outrightly treating the detenu as an accused person in the said case and arresting him as an accused person, they want to be very sure about his involvement in the criminal cases. There is also force in the argument from the respondent side that the detenu being a citizen of foreign country, there is a possibility that he may leave the country or go underground and may again indulge in terrorist activities, commission whereof is being alleged against him.
Judicial notice can also be taken of the prevailing law and order situation and terrorist activities going on in the country. Therefore, it cannot be said that the satisfaction as recorded by the detaining authority is not based on material and is not legally justified. The argument of the learned counsel in this behalf, hence, is repelled.
10. As regards the argument of the learned counsel for the petitioner to the effect that the Chief Commissioner, Islamabad Capital Territory could not have delegated his powers to the District Magistrate and that he has not been delegated the powers of the Provincial Government by the President of Pakistan, the argument is belied by the Notification No,F.17(2)80-Pub., dated 31-12-1980, which has been reproduced in the earlier part of the judgment, which proves that the Administrator of the Islamabad Capital Territory, has been conferred with all the powers of the Provincial Government under any law for the time being in force. Similarly, vide a notification issued on 10-11- 1992, the Chief Commissioner, Islamabad Capital Territory in exercise of his powers under the notification referred to above has delegated the powers under section 3(1) of the Ordinance to the District Magistrate subject to the only condition that the period of detention under an order passed in exercise of section 3(1) of the Ordinance shall not exceed sixty days. This notification came into force on 1-8-1992 is to remain in force till further orders. A joint reading of the provisions of section 2 of the President's Order No,18 of 1980 and the notifications, dated 31-12-1980 and 10-11-1992, makes it crystal clear that the Chief Commissioner, Islamabad Capital Territory as well as the District Magistrate are empowered to act under section 3(1) of the Ordinance and the principle that a delegatee cannot further delegate his powers, is not attracted in this case inasmuch as the powers have been conferred by a subordinate legislation, therefore, no fault can be found with the powers of District Magistrate, Islamabad, to pass the questioned orders.
11. Argument of the learned counsel for the petitioner to the effect that the Acting District Magistrate cannot exercise the powers of a District Magistrate, is also misconceived. The word 'District Magistrate' shall definitely include the Acting District Magistrate as well, therefore, initial order of detention as well cannot be said to have been passed with any irregularity and at any rate the subsequent order which is now in force having been passed by the Chief Commissioner, Islamabad Capital Territory himself, who is undoubtedly, the competent Authority, the irregularity in the initial order, if any, stands cured, therefore, no interference is called for, in exercise of the discretionary Constitutional jurisdiction of this Court.
12. Resultantly, I see no force in this writ petition, hence, the same is dismissed with no order as to costs.