' This judgment will dispose of Writ Petition No,1653 of 1997 titled Karamat Hussain Shah v. District Magistrate, Attock, and Writ Petition No,1590 of 1997 titled Mahmood Ahmed etc. v. District Magistrate Attock, as common questions of law and facts are involved in both the cases.
2. The only difference between the persons detained in the two writ petitions is that the petitioner detained in Writ Petition No,1653 of 1997 i,e, Karamat Hussain Shah is alleged to be a staunch worker of Sipah-e-Muhammad whereas the persons detained in Writ Petition No,1590 of 1997 namely (1)
Mahmood Ahmad, (2) Muhammad Aslam Usmani and (3) Iftikhar Farooqi are alleged to be staunch workers of Sipah-e-Sahaba. Barring this difference between the two sets of detainees as being believers of different Fikahs there is no other difference. The orders of detention passed against both the sets of detainees are exactly identical and were passed on the basis of the same allegations using the same phraseology. In fact the orders of detention passed in both the writ petitions were passed on a cyclostyled pro forma wherein only their respective names were filled by the detaining authorities. The orders passed are vague, discrepant and laconic exhibiting least application of mind on the part of the District Magistrate who passed the same. This is the settled position of the law that the satisfaction of the detaining authority under the Maintenance of Public Order Ordinance, 1960 is not subjective but objective meaning thereby that the same has to be based upon some material. In the cases under examination and under challenge in the Constitutional petitions, no incident has been particularised so as to furnish a legal justification for passing the orders of detention. Merely belonging to either sect i,e, Sipah-e-Muhammad or Sipah- eSahaba is inconsequential so as to warrant the orders such as those passed and impugned in the instant writ petitions. It is the fundamental right of a citizen to believe and propagate and profess any Fikah that he chooses to. Of course he cannot act in a manner so as to disrupt or endanger public peace or tranquillity while professing or preaching his faith yet in order to warrant an action such as contemplated by the Maintenance of Public Order Ordinance, there has to be tangible, concrete, substantial evidence and instances to warrant the detention of the persons concerned.
In the cases under examination the only reason disclosed by the learned District Magistrate is that on the basis of secret reports received by the Superintendent of Police, Anti& he felt satisfied to pass the orders of detention. What were not those secret information reports of the Superintendent of Police nothing has been placed on the record of this case nor was this Court taken into confidence as to the said reports. It is plain and settled position that bald statements such as the ones as have been made in these cases cannot furnish a legal basis for passing the orders such as the one impugned in these writ petitions. Yet another reason which persuades me to strike down the order of detention as being illegal, void, without lawful authority, vague, discrepant, exhibiting least application of mind and abdication of the authority on the part of the District Magistrate is that it was argued before me by the learned Additional Advocate-General, Punjab that the District Magistrate, Attock had made recommendations to the Provincial Government for withdrawing the orders of detention against the persons detained and in point of fact in several cases brought before this Court such orders as were passed by the District Magistrate were permitted to be withdrawn by the Provincial Government. However, in the cases under challenge in these two writ petitions, the submission of the learned Additional Advocate-General, Punjab was that notwithstanding the fact that the District Magistrate, Attock recommended their cases to the Provincial Government for reconsideration and the withdrawal of the orders of detention passed against these persons yet the Government had not accepted the recommendations so made by the District Magistrate. This submission of the learned Additional Advocate-General, I may point out bears out beyond shadow of doubt that the District Magistrate as the detaining authority is satisfied that these persons no longer pose any threat to public peace and tranquillity yet the recommendations made by him to this effect are not accepted from else where. It only means that it is not the District Magistrate who is not satisfied with their conduct but the authority so dissatisfied is some one else. In other words the orders of detention were not passed by the District Magistrate but emanated from some where else. For, if it were the orders of the District Magistrate and it was he who passed these orders then he was the only one competent to withdraw, recall, recind and cancel those orders but the position taken by the learned Additional Advocate-General proves beyond any shadow of doubt that the District Magistrate is not the authority who has passed the orders. The authority passing the orders is some other authority which is not permitting the withdrawal of the orders as per the position taken before this Court.
3. It has also been argued by the learned Additional Advocate-General, Punjab that under the Maintenance of Public Order Ordinance, 1960 it was open to the petitioners herein to make representation to the Provincial Government and that such representation provided equally efficacious remedy to them and barred the petitiohs 'under consideration. Needless to say that the orders of detention being absolutely vague and unsupported by the evidence on the record, the question of filing a representation on behalf of the petitioners herein was wholly irrelevant and meaningless. For, you can represent against something which is meaningful, logical, reasonable and based on some cogent and satisfactory material. In the cases under examination barring bare and bald allegations of the secret information having been received by the Superintendent of Police which the authorities thought it fit not to place before this Court, there is no other material brought to the notice of this Court on the basis whereof it could have been legitimately urged that the representation in the circumstances was called for.
4. It appears pertinent to add here that this Court is not oblivious of what is happening in the country nor should it be understood that this Court is in any manner approving the sectarianism.
The observations herein made and the basis laid for the orders passed are relevant only in the context of the orders impugned in these writ petitions, which cannot be sustained for the reasons hereinabove given.
5. For the view that I have taken in these matters I am fortified by the law laid down in the cases reported as Dr. M. Haji Ahmad Bhatti v. D.M., Gujrat and others NLR 1993 Criminal 245, Abdul Qayyum v. D.M., Rahimyar Khan 1097 PCr.LJ 855, Haq Dad Khan v. D.M., Mianwali, 1997 PCr.LJ 1288, Anmad Ali v.
The State 1995 MLD 1748, Muhammad Iqbal v. D.M., Mianwali 1994 PCr.LJ 2173, Bashiran Bibi v. D.M., Kasur 1990 PCr.LJ 913, Jalal alias Jala v. D.M., Kasur 1990 PCr.LJ 1529, Muhammad Ayub Khan and 6 others v. D.M., Batagram and another 1995 PCr.LJ 587, Maulana Shah Ahmad Noorani v.
Government of Punjab PLD 1984 Lah. 222 and Government of West Pakistan v. Haider Bux Jatoi and another PLD 1969 SC 210.
6. For the foregoing reasons and the law as enunciated in the cases hereinabove referred to, I have no doubt in my mind that the orders of detention passed by the District Magistrate, Attock in respect of the writ petitioners are liable to be set aside which are accordingly set aside and the petitioners herein are hereby directed to be set at liberty forthwith if not required to be detained in any other case. The writ petitions are accepted with no order as to costs.
' For the reasons recorded in my judgment of even date passed in Writ Petition No,1653 of 1997 this writ petition is accepted, leaving the parties to bear their own costs.