' Through this Constitutional petition the petitioner has challenged the vires of detention order, dated 23-2-2001. The learned counsel for the petitioner submits that petitioner is highly qualified educated and respectable citizen. He was also elected as M.N.A. And M.P.A. In the General Elections.
The petitioner was arrested and detained by the order of respondent No,1 under the provisions of West Pakistan Maintenance of Public Order Ordinance, 1960. The petitioner being aggrieved filed Writ Petition No,21241 of 1999 before this Court on 11-11-1999. The petitioner was released at the end of November, 1999 under the order of this Court as the detention order passed by respondent No,1 was declared unlawful for non-existence of grounds to justify the order of detention. Respondent No,1 had passed the stereotype order similarly impugned detention order without applying his independent mind under the West Pakistan Maintenance of Public Order Ordinance, 1960; that there was no material before respondent No,1 as is evident from impugned order of detention that respondent No,1 detained the petitioner on the report of Superintendent of Police; that no tangible substantial evidence and instances have been referred in the grounds to show that the petitioner ever acted in a manner prejudicially to public safety or maintenance of order; that grounds attached with order of arrest has been passed are based on mere apprehension. The liberty of the citizen and specially jurist of the country cannot be curtailed on the impugned detention order.
Respondent No,1 should have satisfied himself objectively before passing the impugned order. In support of his contention he relied upon PLD 1988 Lah.
611. He further submits that question of liberty of petitioner is involved and impugned order is hit by fundamental rights guaranteed to the citizen by virtue of Chapter 2 of the Constitution of the Islamic Republic of Pakistan, 1973, to detain the petitioner is extreme action of respondents which is not countenance by law except that it has called for by law itself for mere production of detention in proof of satisfaction is not sufficient, therefore, same is not sustainable in the eyes of law; that respondents alleged that petitioner is likely to play negative role leading to secretarial disturbance generally in the Province and particularly in the District Jhang in the days of Muharram-ul-Haram is based on conjuncture and surmises as the impugned order as well as grounds did not specify any specific incident in this regard that action of respondents is result of mala fide and is not sustainable in the eyes of law; that representation to the Home Secretary, respondent No,3 is not efficacious and proper remedy. In support of his contention he has relied upon Maulana Shah Ahmed Noorani's case PLD 1984 Lah.
222. That grounds are general in nature and respondents failed to point out any speech or material before this Court to connect the petitioner qua the impugned order passed by respondent No,1 against him, that respondent No,1 has passed the order in violation of principle laid down in Agha Sohrush Kashmiri's case PLD 1969 SC 14.
2. The learned Advocate-General, Punjab has raised preliminary objection that writ petition is not maintainable as the petitioner has alternate remedy before respondent No,3. In support of his contention he has relied upon unreported judgment passed by five learned Judges of this Court in Writ Petition No,14839 of 1994 which was decided on 24-1-1995. He also relied upon leave granting order of Honourable Supreme Court passed in Criminal Petition No,679/L of 1999; that respondent No,3 shall decide the representation of petitioner within the period prescribed by this Court; that petitioner was detained by respondent No,1 in the scenario of pre-Muharramul-Harram and same situation is still prevailing on account of {{URDU TEXT}}. He undertakes that respondent No,3 shall decide the representation of petitioner without malice on merits in accordance with law and shall not be dismissed as time-barred in case the petitioner files the same. He further submits that detention order was passed by respondent No,1 after applying his independent mind after receiving the reports from Superintendent of Police; that grounds are specific and respondent No,1 had passed the order against petitioner after applying his independent mind; that petitioner did not allege any specific malice against the respondents, therefore, writ petition is not maintainable and is liable to be dismissed. He summed up his arguments that respondent No,1 has sufficient material before him on the basis of which he has passed the impugned order. The grounds which are attached with the detention order reveal that the same are specific and not general. The Court must lean to uphold the action of respondents.
' The learned counsel for petitioner in rebuttal submits that representation is not alternate efficacious remedy and in fact it is not proper remedy in the eyes of law. In support of his contention he has relied upon PLD 1984 Lah.
222.
3. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is settled proposition of law that detenu is entitled to delivery of grounds of detention without any loss of time; that the order of detention if established to be passed by the respondents with malice or exercised powers in an unlawful manner is liable to be struck down by this Court while exercising Constitutional jurisdiction. It is also settled principle of law that the order has to be passed by competent authority and is to be justified on mala fide placed before and considered by the detaining authority. It is also settled principle of law that malice have to be alleged with specific and are to be proved by the persons who level such allegations; that the remedy of filing of representation against the order of detention is statutory right guaranteed by 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. Admittedly this writ petition has been filed without availing to the filing of representation against the impugned order before respondent No,3. The remedy of availing 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 sustainable unless and until the petitioner is in a position to make out a case of exception 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 in exercise in futile or that the representation shall not be decided on merits and in accordance with law. In the present case, the learned Advocate-General, Punjab has given undertaking under the instructions of respondents in case petitioner files representation, then the representation of petitioner should not be dismissed as time-barred. The judgment cited by the petitioner's counsel is decided by the learned single Judge whereas the Division Bench of this Court has taken view that writ petition is not maintainable in view of representation in Muhammad Siddique Khan's case PLD 1992 Lah.
140. The judgment of Division Bench was approved by the five learned Judges of this Court in Writ Petition No,14839 of 1994, decided on 24-1-1995 titled Sh. Rashid Ahmed v. D.M., Rawalpindi and others.
In view of what has been discussed above, the writ petition is not maintainable, however, in the interest of justice and fairplay, let a copy of writ petition be sent to respondent No,3, who is directed to treat the same as representation filed by petitioner before him and decide it on merits in accordance with law till 16-5-2001. In case respondent No,3 fails to decide the representation of petitioner till the aforesaid date, then the petitioner shall be released on bail subject to furnishing his bail bonds in the sum of Rs,5 lacs with two sureties to the satisfaction of Deputy Registrar (Judicial) of this Court or Duty Magistrate, Jhang. Respondent No,3 in case decides the representation against petitioner then the petitioner is well within his right to avail the remedy provided under the law before competent forum. With these observations the writ petition is disposed of.