' SABIHUDDIN AHMED, J.--- By this petition the petitioner has called in question his detention brought into effect by the order of the Deputy Commissioner and District Magistrate, South, Karachi, dated 27-6-1997 under the Maintenance of Public Order Ordinance (hereinafter mentioned as Ordinance).
2. By way of brief background it may be stated that the petitioner/detent is an officer of the Police service and served as Deputy Inspector-General of Police Karachi, at the time of firing of Mir Murtaza Bhutto, brother of the former Prime Minister and his companions, resulting in the unfortunate demise of seven persons. Different F.I.Rs, were registered concerning the incident and in the third F.I.R. No,443 of 1996, registered at Clifton Police Station pursuant to an order of this Court, the petitioner was named as a co-accused. He had applied for pre-arrest bail, but his application came to be rejected by this Court on 2-12-1996. However, he moved the Honorable Supreme Court which was pleased to grant and confirm his pre-arrest bail by order, dated 16-12-1996 in the sum of Rs,2,00,000 with two sureties in the like amount. It was further ordered that the petitioner shall cooperate with the Investigating Agencies and if such Agency was able to collect such material against him an application for cancellation or recalling the bail order could be moved by the State.
Challans relating to the murder was submitted before the trial Court and the Provincial Government also constituted a Tribunal to inquire into the tragic incident which submitted its report which was released to the Press on.8-6-1997.
3. On 7-6-1997 the respondent No,2 (Deputy Commissioner and District Magistrate, South, Karachi) passed an order, directing detention of the petitioner for a period of 30 days in the purported exercise and powers under section 3 of the Maintenance of Public Order Ordinance, 1961. The ground for doing so as stated in the order appears to be as follows:-- "It is apprehended that in the light of the findings of the Tribunal, alleged accused Shoaib Suddle, who is on bail, is likely to abscond upon knowledge of findings of the Tribunal and, thus, his remaining at large would be hazardous to society."
' The above order was called in question before this Court by way of Constitutional Petition No,1222 of 1997. The matter was heard on 26-6-1996 and was adjourned for the next day, to enable the learned Advocate-General to submit further case-law in support of his contentions. Nevertheless, on that date (27-6-1997) an order, dated 26-6-1997 revoking the detention order was placed on record, whereupon the Court was pleased to dispose of the petition in terms of the following order:- "As reflected on the record the hearing in this petition stood completed and we were in a position to pass orders on 26-6-1997 but we had allowed time to the learned Advocate-General, Sindh to assist us with the citation of further case-law on the question of preventive detention if any. That has not been done and, instead, a statement is filed along with which is appended an order, dated 26-6-1997, whereby the impugned detention order has been withdrawn, with immediate effect and the detent has been required to be released forthwith, if not wanted in any other case. In the circumstances, this petition has served its purpose and is disposed of accordingly."
4. Apparently soon after revocation of the first detention order another order (the detention order impugned in this petition) was passed by the respondent No,2 in early hours of 27-6-1997. The petitioner was never released from custody as admittedly both the revocation order and the present detention order were served upon him simultaneously at about 5-25 a.m. On 27-6-1997. It has been explained by the respondent in the comments that the revocation order could not be served on the petitioner as he did not permit entry into his room and on account of his being of a senior Police Officer it was not considered proper to disturb him. It may also be pertinent to mention that during the operation of the first detention order an application for cancellation of bail of the petitioner was moved before the Honorable Supreme Court and by order, dated 23-6-1997 the Court was pleased to fix the matter for hearing on 27-6-1997. Accordingly immediately upon service of the present detention order the petitioner was flown to Islamabad in custody for appearance before the Honorable Supreme Court. Though no order cancelling his bail was passed, the petitioner remained in custody in view of this detention order, dated 27-6-1997 leading to the filing of this petition.
5. To appreciate the controversy in this petition it may be pertinent to reproduce the detention order, dated 27-6-1997, which reads as follows:-- "OFFICE OF THE DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE, KARACHI SOUTH.
' No,DC(S)/JB/Reader/2196/97 Karachi, the 27th June, 1997
' Whereas I Dr. Aamer Ahmed, Deputy Commissioner and District Magistrate, Karachi South, am satisfied upon the report to this effect from S.S.P. (South), Karachi that the publication of the report of enquiry tribunal of Mir Murtaza Bhutto's murder case and after fresh investigation revealing destruction and suppression of evidence by Shoaib Suddle persuant to which cancellation of bail has been filed before the Honorable Supreme Court of Pakistan. The Honorable Supreme Court having issued show-cause notice as to why bail should not be cancelled. It is likely that accused Shoaib Suddle may abscond.
' That there has been unrest due to the ascendance of co-accused persons in. The case like Syed Abdullah Shah, former Chief Minister, Sindh, Muhammad Shakaib Qureshi, S.P. Inspector Zees an Kazmi and others which has resulted in disturbing peace and tranquility of public life and has further disrupted public safety and public order. It is likely that accused Shoaib Saddle may become a victim of the wrath of persons whose relatives have been killed in the incident of 20-9- 1996. It is also likely that interested quarters may further destroy and suppression of evidence like it has happened with the killing of S.H.O. Haq Nawaz Sial.
' The above incident, events and circumstances grounds lead to the passing of this order.
' Now therefore, in exercise of powers conferred upon me under subsection (1) of section 3 of the M.P.O., 1960 read with Government of Sindh Notification No,II(14)/SOJ/78, dated 15-6-1978, I do hereby order that said Shoaib Suddle presently resident of Police Club, Clifton Karachi shall be detained in judicial custody for a period of 30 days.
' He is at liberty to submit representation to the Government required under subsection (6) of section 3 of M.P.O. Ordinance, 1960.
' Given under my hand and seal of this Court on this 27th day of June, 1997.
(Sd. Dr. Aamer Ahmed), Deputy Commissioner and District Magistrate , Karachi South."
6. Mr. Saleem Sahgal, learned counsel for the petitioner has questioned the detention of the petitioner on the basis of the abovementioned order on a number of grounds, inter alia:--
(i) That the passing of the second detention order after revocation the first one, in view of the fact that circumstances of the case, renders the detention mala fide.
(ii) That the allegations/grounds/reasons stated in the detention order have no nexus with the object of the statute and the detention order is vitiated on this ground alone.
(iii) That the contents of the detention order are vague and lack of necessary particulars rendering order unsustainable.
(iv) That no ground of detention have been communicated to the petitioner in terms of the requirement of law.
(v) That the order has been passed without proper application of mind and in colourable exercise of statutory powers tentamounting to fraud from the law.
7. In the paradise comments submitted by the respondent No,2, allegations of mala fide and the various grounds raised have been repudiated though the facts are not largely in dispute.
Nevertheless serious legal objection as to the maintainability of this petition have been raised on the ground that the petitioner/detent had an alternate remedy by way of making representation of the Provincial Government in terms of section 3(6) of the Maintenance of Public Order Ordinance (M.P.O.) read with Article 10(5) of the Constitution and that jurisdiction of this Court under Article 199 of the Constitution is exercisable only in the absence of an alternate efficacious remedy.
8. Both Mr. Muhammad Saleem Sahgal, learned counsel for the petitioner and Mr. Muhammad Saleem Samo, learned Assistant Advocate-General addressed us in support of their contentions and also submitted written notes to supplement them. After hearing the counsel we had passed a short order on 17-7-1997, setting aside the detention order and directing that the petitioner be set at liberty. The following are our detailed reasons for doing so.
9. In the first place it may be pertinent to decide preliminary objection as to the maintainability of this petition which was strenuously urged by the learned A.A.-G. He contended that section 3(6) of the Ordinance enables the detent to make representation against the order of detention and an alternate remedy being available this petition under Article 199 of the Constitution could not be entertained. He relied upon a number of reported decisions of superior Courts, including the Honorable Supreme Court, where discretionary jurisdiction under Article 199 was not exercised on the ground that the petitioner should have availed of the alternate efficacious remedy provided by law. He is indeed correct to the extent that normally existence of an alternate efficacious remedy precludes the Court from entertaining a Constitutional petition as is evident from the language of Article 199 itself and it is not necessary to refer to the precedents laid down by Courts. Nevertheless it is equally well-settled that the existence of an alternate remedy does not per se bar the jurisdiction of the Court to entertain a Constitutional petition but it is rule by which the Court regulates its own discretionary jurisdiction. (See Murree BreWery v. Capital Development Authority PLD 1972 SC 279). This rule is subject to certain well-recognised exceptions and it is well-settled that the existence of an alternate remedy would not bar the maintainability of a petition, inter alia in the following circumstances:--
(i) When the alternate remedy is not equal efficacious in terms of speed and expense or cannot provide effective relief to the petitioner.
(ii) When the impugned order is without jurisdiction or ultra vires the power conferred upon the functionary passing the same.
(iii) When the order is mala fide.
(iv) When the order suffers from an error of law apparent on its face.
(v) In matters where detention of a person in custody is questioned, the Court must prima facie be satisfied as to the bona fides or legality of detention, irrespective of the remedies available to the detent.
10. Nevertheless since the objection was pressed with a great deal of tenacity and the learned A.A.- G. Relied upon the Supreme Court precedents including the cases of (i) Choudhry Abdul Qadir v.
Lahore Commercial Bank 1980 SCMR 280, (ii) Wealth Tax Officer v. Shoukat Afzal and others 1993 SCMR 1810 and (iii) Tariq Transport Company v. Sargodha Bhera Bus Service PLD 1958 SC 437.
11. The above decisions, however, in our view, are not of much help to the learned A.A.-G. For more than one reason. In the first place interference in the Constitutional jurisdiction in the cases of Ch. Abdul Qadir 1980 SCMR 280 and Wealth Tax Officer 1993 SCMR 1810 was declined on the ground that alternate remedy by way of appeal to higher Civil Court and statutory appeal in the hierarchy of Revenue Authorities was not preferred. It is difficult to conceive how a representation to an administrative body could be treated at par with an appeal to a Court of law or statutory tribunal exercising quasi-judicial functions. Mr. Saleem Sahgal referred to a decision of the Honorable Supreme Court in the case of Syed Ali Abbas v. Vishal Sing PLD 1967 SC 294 wherein the argument as to non-maintainability of a petition on the ground of availability of alternate remedy was rejected with the observation that "the affected party could not be penalized for not throwing themselves again on the mercy of the authorities which are responsible for such excess".
12. The learned A.A.-G. Further placed reliance upon the following observations of Munir, C.J. In the leading case of Tariq Transport Company v. Sargodha-Bhera Bus Service PLD 1968 SC 437:- "Having given careful consideration to this aspect of the matter, I 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 statue 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 grievance provides an appeal in which that grievance can be set right no writ of certiorari or mandamus or any other discretion order of the nature should have been issued by the High Court."
13. The principle laid down above is clearly not applicable in the instant matter. The rule referred to in the above-quoted excerpt is that where a statute creates a right and also provided machinery for its enforcement a party complaining of breach of such statute must first avail of the remedy provided by the statute. The petitioner in the present case is not seeking enforcement of a right conferred by the Maintenance of Public Order Ordinance but a fundamental rights as to protection against unlawful deprivation of liberty guaranteed by the Constitution itself. The remedy for enforcement of fundamental rights is also provided by the Constitution in terms of Article 199(1)(c) read with Article 8. Again a writ in the nature of habeas corpus as distinguished from a writ of certiorari or mandamus is not discretionary but a writ of right under the English Law and this rule has also been adopted by own Courts as held by Dorab Patel, J. In Khena Ram v. Commissioner, Quetta Division PLD 1969 Quetta 24. It is, therefore, doubtful whether constraints relatable to exercise of discretion can also be applied to matters where a writ must issue as a matter of right upon finding of illegality of detention.
14. Mr. Muhammad Saleem learned A.A.-G. Further argued that even if the detention order was being questioned on the ground of having been passed without jurisdiction the petitioner could not approach this Court under Article 199 without resorting to the remedy of representation to the Government under Ordinance. In this context he relied upon the following observation of the Honourable Supreme Court in the case of A. Habib Ahmed v. MKG Scott Christen PLD 1992 SC 353:-- "It is often said 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-K of 1986, decided on 24-12-1991)."
15. The above observations in our humble opinion do not appear to convey the meaning that the learned A.A.-G. Would like to assign to them. Apart from the fact that they relate to jurisdiction of Courts and not executive authorities all that their Lordships seem to have said is that experience has shown that a Constitution petition is not always a speedier remedy and at times proceedings through normal channels might prove to be more efficacious even for setting aside orders passed without jurisdiction. Their Lordships did not lay down any hard and fast rule. The question to be decided in each case is which of the two remedies i,e, the normal statutory procedure or a Constitutional petition is swifter or more efficacious. This would depend upon the facts and circumstances of each case. It is indeed correct that at times, owing to the work load of the High Court in Constitutional jurisdiction the remedy through ordinary procedure may eventually be found to be more efficacious. Nevertheless, keeping in view the fact that no time limit has been prescribed for deciding a representation under section 3(6) of the Ordinance as observed by this Court in the case of Abdul Hameed v. District Magistrate, Larkana PLD 1973 Kar. 344 coupled with the fact that Superior Courts invariably attach priority to the hearing of petitions involving liberties of citizen, it is impossible to say that remedy by way of representation is more efficacious. As such, we are unable to subscribe to the contention of the learned A.A.-G.
16. Mr. Muhammad Saleem learned A.A.-G. Was unable to refer any reported decision wherein it has been held that a representation stipulated in a law relating to preventive detention was treated as an alternate or equally efficacious remedy barring the entertainment of a Constitutional petition under Article 199. Indeed by the mandate of Article 10(5) of the Constitution every law providing for preventive detention must contain a provision to enable the detenu to make a representation against the detention order. If the argument of learned A.A.-G. Were taken to its logical conclusion no petition calling in question a detention order would ever be maintainable. On the contrary however, as rightly pointed by Mr. Saleem Sehgal learned counsel for the petitioner, it has been in the case of Abdul Hamid v. District Magistrate, Larkana PLD 1973 Kar. 344, clearly held that the provision for representation under section 3(6) of the Ordinance do not furnish an adequate alternate remedy to bar a Constitutional petition. In the word of late Chief Justice Tufail Ali A. Rehman: -- "It is true that the provision authorizes the detent to make a representation to Government and also require the Government to afford him the earliest opportunity of doing so. I can read in subsection (6-A), however, no duty on the Government 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 authorizes the Government to do so but does not require it to 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. I think if we are to accept the argument of the learned Additional Advocate-General we would have failed to give full effect to the ' word 'adequate'. No doubt the provision quoted provides a remedy but certainly in the absence of any requirement that the Government shall consider the representation I cannot consider this to be an 'adequate' remedy in matters which concern the liberty of a subject. I am quite sure that the Government would ordinarily consider the representation and it is not upon any suspicion that it would not that I am basing my conclusion. My finding on this point is based only upon the language of the statute which imposes no duty upon the Government."
17. At this stage it may be pertinent to refer to the case-law cited by Mr. Saleem Sehgal in the contexts of another argument. While contending that the detention order was liable to be set aside for the reasons that the proper grounds of detention had not been communicated to the petitioner Mr. Sehgal pointed out that the detention order did not contain any material facts but only the conclusions drawn by the respondent No,2. He relied upon inter alia to the Division Bench judgment of this Court delivered by Sajjad Ali Shah, J. (presently Chief Justice of Pakistan, as his Lordship then was) in the case of Abdul Haq alias Dost Muhammad v, District Magistrate and others PLD 1990 Kar.
481 in support of this proposition. He also referred to an earlier Full Bench decision of the erstwhile West Pakistan High Court in the case of Muhammad Anwar v. Government of West Pakistan PLD 1963 Lah. 109 wherein Shabbier Ahmed, J. Observed:-- "The object of this provision clearly is to give to the person concerned as full, as effective and as expeditious a right to make a representation as may be consistent with the purposes of the Ordinance. 'Grounds on which the order was made 'must, therefore, in the context mean such disclosure of facts as would inform him of the circumstances appearing against him and enable him to put his version before the Government. That the disclosure has to be of the facts themselves, and not of the conclusion the order, is made further clear by the existence and the language of the proviso."
18. Apart from the facts that the detention order impugned before us is liable to be set aside on the basis of the application of the above exposition of law to the fact of the case we must also held that since it is not possible for the detent to make an appropriate representation to the Government, the "remedy" by way of such representation, at least in this particular case, cannot, in any event be considered to be adequate so as to bar the maintainability of this petition.
19. However, in all fairness to the industry of Mr. Muhammad Saleem Samo, learned A.A.-G. He has brought to our notice an unreported judgment of a Full Bench of the Lahore High Courts in the case Shaikh Rasheed Ahmed v. District Magistrate, Rawalpindi (Writ Petition No,14839 of 1994, decided on 24-1-1995) dismissing a petition calling a question an order of preventive detention on the ground that the petitioner failed to avail "remedy" by way of representation to the Provincial Government.
We have carefully gone through the judgment and the case-law cited therein. It appears that their Lordships have only examined reported precedents which have also been relied upon by the learned A.A.-G. And discussed in paras.8 to 11 above. The decision of superior Courts in detention matters where objections as to maintainability on the ground of alternate remedy where rejected were never brought to their Lordships' attention.
20. It may be stated that apart from the case of Abdul Hameed v. District Magistrate, Larkana PLD 1973 Kar. 344 other Division Benches of the West Pakistan High Court held in the cases of Abdul Baqi v. Central Prison, Muchh PLD 1957 Kar., 694 and Abdul Sobur v. District Magistrate, Peshawar PLD 1969 Pesh. 167 that a petition, calling in question the detention of the citizen under the F.C.R. Could not be dismissed solely on the ground that revision under section 49 of the regulation was not preferred. Above all in the case of Province Sindh v. Raeesa Farooq 1894 SCMR 1283 the Honorable Supreme Court held that a petition under Article 199(1)(b) is also maintainable when the detent has been confined in custody on the basis of allegation of substantive offences under the ordinary law.
This latest pronouncement of the apex Court was apparently not brought to the attention of the learned members of the Full Bench, was the question whether remedy by way of representation could be considered adequate' apparently argued or considered.
21. Apart from the above we are constrained to observe that the fundamental distinction between the dimensions of jurisdiction exercisable under clause (a) of Article 199(1) (Akin to writ of mandamus, certiorari etc.) and that under clause (b)(i) (similar to writ of habeas corpus in English Law) was neither brought to the attention of the Court nor has been kept in view in the above judgment of the Full Bench of the Lahore High Court. This distinction was brought out with illuminating clarity by the Honorable Supreme Court in the cases of Province of West Pakistan v.
Begum _Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14. While comparing different provisions of Article 98(2) of the 1962 Constitution (which are in pera material of Article 199 of the present Constitution) Hamoodur Rehman, C.J. Observed:-- "This argument does not of course taken into account the difference that has been made to the jurisdiction of the Court by the language of Article 98 of the Constitution itself It will be observed that this Article is radically different from the old Article 170 of the abrogated Constitution of Pakistan or Article 226 of the Indian Constitution. It has given to the Courts the power to give directions to person performing certain functions in connection with the affairs of the Government or local authority to do or to refrain from doing that which the law requires them to do or which it does not permit them to do and to declare acts done by such persons to 'have been done or taken without lawful authority and as being of no legal effect'. In the case of persons detained in custody, however, the power given is to issue a direction to have such a person brought before the High Court so that the Court may ' satisfy itself that he is not being held in custody without lawful authority in an unlawful manner'. The difference in the language of the provisions of sub-clauses
(a) and (b) of the clause (2) of Article 98 is worth nothing. Whilst in the first case the direction is limited to the making of an order for doing or refraining from doing that which the law permits or does not permit, as the case may be, in the case of detention the High Court is enjoined upon to 'satisfy itself' that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner."
22. In the case of Muhammad Azam Malik v. S.D.M. Preedy PLD 1989 SC 266 this distinction was further elucidated by Shafi-ur-Rehman, J. In the following words:-- "There appear three distinguishing features so far sub-clause (a) of clause (i) of Article 199 proceedings are concerned as compared to proceedings under other provisions of the same Article. The first is that the appellant in these cases is not the person for whom the relief is being sought. He is concerned or interested certainly, but the main beneficiary of the proceedings is the detent. In such a situation what the petitioner/appellant or the applicant says or does should not ordinarily matter with regard to the person who is directly concerned with the proceedings and is the beneficiary of it. This aspect has been taken care of expressly by the law and additionally the judicial decision just referred to. Law enjoins upon the Court to satisfy itself. It does not leave the duty to the appellant or to anyone else. The duty is that of the Court, to satisfy itself with regard to the jurisdictional aspect and with regard to the lawfulness of the manner of detention. The law laid down by this Court further makes it clear that once the attention of the Court is properly drawn to a case of detention, the onus immediately shifts to the detaining authority to show the lawfulness of its authority in detaining the detent. The duties are, therefore, specifically that of the Court and the detaining authority in the first instance and it is only incidentally that the relator or the applicant comes to the forefront in such a situation. These features distinguish all the cases relied upon by the learned counsel representing the Federal Government on the question of acquiescence in jurisdiction, approbation and reprobation."
23. In the same judgment it was observed that:-- "Sub-clause (b) of clause (1) of Article 199 imposes an unconditional duty on the Court to satisfy itself with regard to the legality of detention."
24. More recently in the case of Government of Sindh v. Raeesa .Farooq 1994 SCMR 1283 the Honorable Supreme Court speaking through Saleem Akhtar, J. Observed:-- "It is now settled principle of law that where petition under Article 199 is filed challenging the arrest and detention of all person, the High Court will not straightway refuse to exercise jurisdiction the moment an information is laid that the detent is involved in any criminal case registered with the Police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affairs, the detent has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for believing that the detent is involved in the crime charged with. If once it is conceded that on receipt of information as supplied the High Court should refuse to exercise its Constitutional jurisdiction without examining it, the very provision of the Constitution (Article 199(1)(b)(i)) conferring power of judicial review will be frustrated."
25. In view of the above weighty pronouncement of the Honorable Supreme Court it is difficult, and we say so with profoundest respects, to subscribe to the view that the failure on the part of the detent to make a representation to executive authorities would bar the jurisdiction of this Court to examine the legality of an order depriving a citizen of his liberties. Respectfully following the law declared by the Honorable Supreme Court and the Division Bench of this Court in the case of Abdul Hameed v. District Magistrate (supra) we would hold that the provision for representation under section 3(6) of the Ordinance is neither an adequate alternate remedy nor does it relieve this Court from performance of a duty ordinated by the Constitution.
26. On merits Mr. Muhammad Saleem Sehgal vociferously argued that the impugned order was mala fide inasmuch as it was nothing but an attempt to prolong the detention of the petitioner even after the revocation of the first order and expiring of the initial period of thirty (30) days, from the date of its passing on 7-6-1997. He contended that the petitioner was never released from the custody as the revocation order was never communicated to him before passing of the present order and was only an attempt to perpetuate the illegal detention of the petitioner. He asserted that the explanation relating to non-service of the revocation order before the service of the impugned order was ex facie unbelievable. He also stressed that the whole exercise of revoking the first order and passed the impugned order was effected not for a purpose ordained by law, but only to prevent the petitioner from seeking restoration of his liberty through the Court on the basis of C.P. No,D-1222 of 1997. Referring to the order of the Court in the aforesaid petition, dated 27-6- 1997 he emphasized that the factum of passing of the impugned order immediately upon revocation of the first detention order was maliciously concealed from this Court nor was such information communicated to the Honorable Supreme Court on 27-6-1997 which was hearing the respondents application for cancellation of the petitioner's bail. He further argued that the law did not permit the passing of second detention order after revoking the first one.
27. Mr. Muhammad Saleem, learned emphatically denied the allegation of mala fide. He contended that mala fide cannot be merely inferred and all allegations of malice must be pleaded with particularity and proved affirmatively by the person making the allegation. He further referred to para.7 of the paradise comments of the respondent No,2 and explained that since the second detention order was not sub-matter of C.P. No,D-1222 of 1997 it was not necessary to place the same before the Court hearing that petition on 27-6-1997.
27-A. We do not consider it necessary to go into the question whether any malice or mala fide of fact can be inferred from the circumstances. We are also not impressed by the contention that passing of the second detention order after revoking the first one would invariably indicate mala fide. We are not, however, persuaded to subscribe to the view that it was not necessary to bring to the notice of the Court the factum of passing of second detention order on 27-6-1997. In this context we are of the view that the explanation furnished by the learned A.A.-G. Fails to appreciate the fundamental distinction between proceeding under clause (a) and those under (b)(i) of Article 199(1) of the Constitution highlighted in the cases mentioned in paras.21 to 23 above. It must be borne in mind that it was not a case where a particular order passed by a public functionary was questioned before the Court by an aggrieved party. It was a matter where the detention of a person in custody was brought to the notice of the Court. The fact that the petitioner was the detent himself was a matter of a mere coincidence. The Court was required to be satisfied as to the whether such detention was lawful or proper and the duty to satisfy the Court clearly devolved on the detaining authority. As such the respondents were under duty to continue to apprise the Court as to whether the detent was held in State custody and if so under what authority of law. By failing to do so they failed to perform a duty ordained by the Constitution. We are clearly of the opinion that as long as a person is not actually released from custody the detaining authorities continue to remain under obligation to inform the Court under what authority of law is the detent confined and to inform the Court as to any change in the nature of authority or manner of such detention.
28. Mr. Sehgal next argued that the detention order had been passed for the purposes alien to the statute and that no nexus existed between the grounds for the detention and the objects for which preventive detention was possible under the Ordinance. He contended that even if there was a possibility of ascendance of the detent such possibility did not empower the respondent No,2 to pass an order directing his preventive detention under the Ordinance, particularly, after the detent had been granted bail by the Honorable Supreme Court and application for cancellation of such bail had been preferred by the State before the apex Court. He contended that under section 3 of the Ordinance, an order of detention could be passed only if detaining authority was "satisfied" with a view to preventing any person from acting in any manner prejudicial to the public safety or the maintenance of the public order and it was necessary to do so. He submitted that the possibility of an ascendance of an accused charged with a penal offence though reprehensible, by itself, could not be treated as an act prejudicial to public safety or public order. He relied upon a recent judgment of the Honorable Supreme Court in the case of Mrs. Arshad Ali Khan v. Government of Punjab through Secretary, Home 1994 SCMR 1532, which has been followed by a Division Bench of the Peshawar High Court in the case of Yousaf Ayub Khan, M.P.A. And another v. Major (Rtd.) Aftab Ahmad Khan Sherpao, Chief Minister, N.-W.F.P. And 5 others 1995 MLD 1179. In reply, learned A.A.-G.
Attempted to urge that possibility of ascendance was destruction of evidence on the part of the detent was not the only ground upon which his detention was ordered. Referring to the context of the detention order, he contended that while the first detention order, dated 7-6-1997 was only founded upon the likelihood of the detent's ascendance, the present order was not premised solely upon these considerations. He pointed out that the detaining authority was satisfied that his ascendance might promote unrest disturb public peace and tranquility and disrupt public safety and public order as has happened upon the ascendance of certain other persons. Moreover, there was also likelihood that the detent may become victim of wrath of persons who were killed in the incident of 20-9-1996, and interested quarters may further destroy evidence like it happened with the killing of S.H.O. Haq Nawaz Siyal. All these factors, according to learned A.A.-G. Contributed to the satisfaction of detaining authority as to the necessity making the order. He further urged that this Court would not sit in judgment over the question of satisfaction of the detaining authority in these proceedings as has been repeatedly held in several cases including the Supreme Court decision in Shorish Kashmiri's case PLD 1969 SC 14.
29. Having considered the contention of the learned counsel from both sides we find considerable force in the points raised by Mr. Sehgal and are entirely unable to agree with learned A.A.-G. In the first instance neither the Ordinance nor the fundamental rights, guaranteed by Article 10 of the Constitution enable the respondents to pass an order of preventive detention for any purpose whatsoever. As mentioned above, as order under section 3 of the Ordinance can be made only for the purpose of preventing an activity prejudicial to public safety or maintenance of public order. In the case of Mrs. Arshad Ali Khan 1994 SCMR 1532 the Honorable Supreme Court, speaking through Saeeduzzaman Siddiqui, J. Has observed:-- "From the above stated legal position, it is quite clear that 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 to an individual and does not amount to an activity prejudicial to the public peace and tranquility. Cannot fall within the ambit of section 3 of the Ordinance."
30. Evidently, ascendance of a person from lawful custody might enable him to evade lawful punishment or destruction of material evidence might prejudice the fair trial of a particular case.
Nevertheless, it cannot be treated to be an activity affecting the public-at-large. What is more important, however, is the fact that the question whether there is likelihood of a person ascendance or whether such person is likely to tamper with the evidence proposed to be produced against him is a matter which requires the serious consideration of a Court called upon to decide, whether he should be released on bail. If such possibility come to the notice of prosecuting agency an application for cancellation of bail can always be preferred. In the instant case, the detent was granted bail by none other than the Supreme Court of Pakistan. Even if, the State subsequently acquired information as to likelihood of his ascendance or suppression of evidence an application for cancellation could be, and has in fact been, moved before the Honorable Supreme Court. We fail to see, how the District Magistrate assumed to himself the powers, which were lawfully exercisable by the Supreme Court, under section 3 of the Ordinance. In the case of Yousuf Ayub Khan 1995 MLD 1179, the detents were directed to be released on bail but an order of preventive detention under section 3 of the Ordinance was passed on the ground that upon their release they were likely to create a law and order situation. A Division Bench of the Peshawar High Court after considering several precedents of the Honorable Supreme Court held that such detention order passed by the District Administration in disregard of the orders of the Court seemed stained with mala fides and was unjustified in law. We are in respectful agreement with the above view.
31. Moreover, we requested the learned A.A.-G. To place before the Court any material/information which prompted the detaining authority to pass such order but he was unable to do so. We must also reject the contention that even if one ground of detention is found to be irrelevant, the detention order can be sustained on other grounds. The law has been explicitly laid down by the Honorable Supreme Court, in the case of Qadir Bux Jatoi v. Government of West Pakistan PLD 1969 SC 210 wherein it has been held that one ground of detention is found to be invalid the entire order becomes unsustainable. This view has been consistently followed by the Courts in Pakistan. For this reason it is also necessary to examine other contentions raised by Mr. Sehgal.
In view of the above, we are constrained to hold the detention to be without lawful authority and of no legal effect. We must also record our appreciation for the valuable assistance rendered by. Mr. Saleem Sehgal and Mr. Muhammad Saleem, A.A-G. And the painstaking efforts with which they placed the law before the Court in support of their inspective contentions. 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.