Through this Constitutional petition the petitioner has challenged the order of his detention issued by the District Magistrate Rawalpindi on 22-1-1997. This order reads as under:-- "ORDER .
Whereas I, Amjad Nazir, District Magistrate, Rawalpindi am satisfied that Mr. Manzoor Hussain Jaffari, S/o Khudadad Khan, Khateeb resident of Imam Bargah Qasir-e-Abbas Deri Hassan Abad, Rawalpindi is acting in a manner prejudicial to public safety and the maintenance of public order and is likely to continue to act in the same manner.
And Whereas, with a view to preventing the said Mr. Manzoor Hussain Jaffari from acting in a manner prejudicial to the public safety and maintenance of public order it is necessary to detain him: Now therefore, in exercise of the powers conferred on me under the provisions of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, I, Amjad Nazir, District Magistrate, Rawalpindi hereby direct the said Mr. Manzoor Hussain Jaffari shall be arrested forthwith and.
Detained in the Central Jail, Rawalpindi for a period of 90 days.
Given under my hand and seal of the Court this 22nd day of January, 1997.
(Sd.)
District Magistrate, Rawalpindi"
2.This order of detention was accompanied by the memorandum of grounds which are as follows:- "The order passed under subsection (1) of section 3 'of the West Pakistan Maintenance of Public Order Ordinance, 1960, which has been c3nveyed to you is based on the following grounds:-
(1) That as per your past record you are a fire brand speaker and sectarian agitator; (2)That you have been delivering sectarian speeches of provocative nature in the past giving rise to sectarian tension between Sunnis and Shias.
(3)It is further likely that you may deliver sectarian speeches in Rawalpindi District, creating hatred and ill-will between the different sections of population thereby creating a situation prejudicial to maintenance of public order particularly in the wake of situation that has arise after the bombing incident at Lahore on 18-1-1997."
3. In the petition is averred "that the petitioner is neither a Khateeb, nor Imam, in the Imam Bargah and Mosque Qasra-e-Abbas Dehri Hassanabad Rawalpindi, but simply responsible for its maintenance and arrangements of different functions, as mentioned above. A separate Paish Imam comes only on Jumma prayers and other daily prayers in addition, to Eid, who only delivers Qutba on loudspeaker and cites `some verses of Holy Qur'an during prayer".
4. Learned counsel for the petitioner also submitted that the order of detention of the petitioner is mala fide and not warranted under the law.
5. This petition came up for hearing before me on 27-1-1997 when I issued notice to the respondents for 2-2-1997. On 2-2-1997 the District Magistrate, Rawalpindi who had issued the order of detention did not appear and on his behalf the learned A.A.-G made a request for adjournment.
The case was, therefore, taken up alongwith other two detention matters on 4-2-1997. When the District Magistrate Rawalpindi appeared and informed the Court that the orders of detention in other two detention matters were withdrawn by him but the case of the present petitioner was still under consideration. However, on the adjourned date i.e. 6-2-1997 the learned A.A.-G informed the Court that the order of detention in respect of the present petitioner was not withdrawn and, therefore, he arguing the case on behalf of the respondents, supported the impugned detention order.
6. Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as 'the Ordinance') empowers the Government to arrest and detain and person with a view to prevent him from acting in any manner prejudicial to public safety or the maintenance of public order and from time to time to extend the period of detention up to a maximum period of six months.
However, under subsection (5-A) of section 3 the order of detention can be for a maximum period of three months unless the Board constituted under section 3(5) of the Ordinance, reports that there is sufficient cause for the detention of such a person, whereupon the period of detention can be extended for a maximum period of six months. Under subsection (2) of section 3 of the Ordinance, the District Magistrate or any other servant of the Government authorised in this behalf by a general or a special order of Government shall if he has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public. Order, forthwith refer the matter to the Government for orders.
7.In the present case the impugned detention order does not disclose that the Government has by special or general order authorised the District Magistrate, Rawalpindi, respondent No. 1, to pass the detention order under section 3 of the Ordinance. On the contrary it is evident that the impugned order P of detention has been passed by the District Magistrate, Rawalpindi under section 3 of the Ordinance, although this provisions of law does not empower the District Magistrate to pass the impugned order himself, unless such a power is delegated to him M the Government. In the absence of such delegated powers or the authorisation by the Government, the impugned order issued by respondent No. l appears to be without jurisdiction and cannot sustain.
8. Subsection (6) of section 3 of the Ordinance which is reproduced below also makes it incumbent upon the authority to inform the detainee of the grounds on which order was passed and also that he was at liberty to make a representation to the Government against the order of detention:- "(6)Where a detention order has been made under this section the authority making the order shall, as soon as may be communicate 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 orders may refuse to ' disclose facts which such authority considers it to be against public interest to disclose."
9.Neither in the impugned order of detention nor in the memorandum of grounds it is indicated that the petitioner was informed that he had a right to make representation to the Government against the impugned order. As a matter' of fact, as disclosed during the hearing of this case, at no time the petitioner was informed to make representation to the Government. However, it was argued before me on, behalf of the respondents that the petitioner had not B represented to the Government against his detention. Suffice to say that the remedy of representation to the Government was available to the petitioner only if the provisions of subsection (6) of section 3 were complied with by respondents. Thus, the petitioner was also deprived of this right of representation under subsections (6) and (6-aa) of section 3 of the Ordinance. In somewhat similar circumstances this Court in Muhammad lqbal v. District Magistrate (1994 PCr.LJ 2173) held that:- "The combined affect of Article 4 of the Constitution and section 3 of the Ordinance is that the detaining authority must examine the material placed before him objectively and the order must satisfy the requirements as laid down by their Lordships in PLD 1969 SC 210. The grounds which prevailed with the detaining authority while passing the impugned order are not legal and valid grounds. In view of the observations made by the Division Bench of the Karachi High Court in PLD 1973 Kar. 78 at page 104: 'Having made the choice that a person should be prosecuted in Court for commission of an offence, it would ordinarily not be open to the authorities to also use this charge as a ground of preventive detention under the Ordinance', which were latter on followed by a learned Single Judge of this Court in 1990 P.Cr.LJ 1534, the objection of the learned Law Officer is untenable as the impugned order was passed on extraneous considerations; hence it was coram non judice and nullity in the eye of law and, therefore, there was no need for the petitioner to file a representation before the Government as contemplated under section 3(6) of the Ordinance, because representation could only be made when the order is passed within the four corners of the provisions of section 3 of the Ordinance; hence there was no adequate or efficacious remedy available to the petitioner which could debar him from invoking the Constitutional jurisdiction off this Court."
10. The impugned order of detention also suffers from vagueness and generality of the ground of detention. Along with the present case two other petitions, i.e. Writ Petition No. 157 of 1997 (Syed Izhar Hussain v. Province of Punjab) and Writ Petition No. 165 of 1997 (Syed Niaz Hussain v.
Government of the Punjab) came up for hearing before me wherein the order of detention passed by the District Magistrate, Rawalpindi were challenged. Both these detention orders were passed the same day by respondent No. 1. It is evident from these detention orders that excepting the names and addresses of the detainees, there was no difference in all these three orders, which contained the same grounds and is indicative of the fact that all these orders were passed mechanically without application of independent mind on each individual case. The grounds of detention that the petitioner was a fire brand speaker and sectarian agitator and that he had been delivering sectarian speeches of provocation nature in the past which gave rise to sectarian tension between Sunnis and Shias, was not supported by any evidence. The learned A.A.-G. And respondent No. l failed to produce before me any material to support these allegations. On the other hand, the petitioner has stated in the petition which is supported by his affidavit, that he discharges the functions as supervisor of the Mosque and Imam Bara and that he is neither a Khateeb nor Imam of the same.
11. In "Government of West Pakistan v. Hailer Beaux Jaatoi" (PLD 1969 SC 210) the Hon'ble Supreme Court while discussing section 3 of the Ordinance observed as follows:- "The position which emerges from a close study of the provisions of section 3 of the Ordinance reproduced above is: (i) the satisfaction of the Provincial Government is not subjective, but must be based on grounds set out in subsection (1) of section 3 and supported by material which will satisfy the board that there is sufficient cause for detention; (ii) the person detained has a right to contend against the grounds of detention both before the Provincial Government and the Board;
(iii) the opinion of the Board must rest on the material produced before it or the material called for by the Board which is reliable to the grounds on which the order of detention is based and against which the person detained has been given an opportunity to represent; (iv) the proceedings before the Board are of quasi judicial nature and amenable to judicial review by superior Courts; and (v) the authority of the Provincial Government to extent the period of detention is derived from a favourable opinion given by the Board and not under the preliminary power conferred by subsection (1) of section 3. "
12. Under Article 9 of the Constitution of the Islamic Republic of Pakistan no person can be deprived of his life and liberty save in accordance with law. Similar guarantee is provided under Article 4 of the Constitution which is as follows:-- (4)Right of individuals to be dealt with in accordance with law, etc --(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2)In particular--- (a).No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do. "
13. In the present case the law on the subject is section 3 of the said Ordinance which has not been followed while passing the impugned detention order. The learned District Magistrate Rawalpindi respondent No.1, has not disclosed in the impugned detention order that he was authorised by the Government or was delegated the powers under section 3 of the Ordinance to pass the impugned detention order and the detention order also has not been passed in accordance with subsection
(6) of section 3 of the Ordinance. The impugned detention order appears to be without jurisdiction and contrary to the provisions of subsections (1), (2) (6) and (6-a) of section 3 of the Ordinance.
Because of the omission to inform, at the earliest opportunity, the petitioner that he was at liberty to make representation to the Government, the petitioner was deprived of the right of representation to and hearing by the Government. Thus, in the present case this argument is not available to the respondents that the petitioner failed to avail the adequate remedy ,of representation to the Government. As provided under subsections (6) and (6-a) of section 3 of the Ordinance.
14. For what has been discussed above, I accept this writ petition and declare the impugned detention order dated 22-1-1997 passed by respondent; No.1 as without lawful authority and of no legal effect. However, there shall be I no order as to costs. 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.