' The petitioner, Rana Sana Ullah Khan, through this Constitutional petition has challenged the order of his detention, dated 21-11-2000, passed by the District Magistrate, Faisalabad. The petitioner is an Advocate and was elected twice as Meniber, Punjab Provincial Assembly and is the sitting Member of the present suspended Punjab Provincial Assembly and according to the learned counsel for the petitioner, he also remained Deputy Leader of Opposition in the year 1992-93.
2. The District Magistrate, Faisalabad vide his impugned order, dated 21st of November, 2000 while exercising the powers under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, issued directions for the detention of the petitioner with immediate effect in District Jail, Faisalabad for a period of 30 days from the date of the service of the order. The grounds of detention communicated to the petitioner are as follows:-- "(1) That as per report of the District Police, Rana Sana Ullah, Ex-M.P.A., is an anti-social element and is likely to create trouble and disturb peace of the district.
(2) That as per report of the police, he is involved in 7 cases relating to attack on police officials, rendering assistance to the criminals for their escape from police custody as well as involved in hurt cases.
(3) That as per report of police, he has recently managed to get escape of his brother-in-law namely Tauseef Yousaf from the jail who was involved in murder case in connivance with one of his close associate namely Ashfaq Chachu, a notorious character of the city and proclaimed offender.
A case F.I.R. No,444, dated 14-11-2000 under sections 223/224/225, P.P.C. Has been registered against him alongwith others at Police Station Civil Lines.
(4) That he is likely to act in a manner prejudicial to public safety and maintenance of public order.
(5) That his detention is, therefore, desirable to prevent him from acting in a manner prejudicial to the public safety, tranquillity and maintenance of public order."
3. Respondent No,2/District Magistrate, Faisalabad in his report, has narrated that on 21-11-2000 (the day, the detention order was passed), the Senior Superintendent of Police, Faisalabad, reported that Rana Sana Ullah, Ex-M.P.A. (PMLN) son of Sher Muhammad, Caste Rajput, resident of House No,12-C, Samanabad, Faisalabad is a fiery speaker and anti-State activist and involved in as many as seven cases relating to attack on police officials, rendering assistance for their escape from police custody as well as involved in hurt cases, the Senior Superintendent of Police, Faisalabad further reported that recently Rana Sana Ullah managed the escape of his brother-in- law namely Tauseef Yousaf from the jail who was involved in murder case in connivance with one of his close associates, namely, Ashfaq Chachu, a notorious character of the city and a proclaimed offender. A case F.I.R. No,444, dated 14-11-2000, under sections 223/224/225, P.P.C. Was registered against him alongwith others at Police Station Civil Lines, Faisalabad and the Senior Superintendent of Police, Faisalabad further reported that since the activities of Rana Sana Ullah were prejudicial to the maintenance of public order, his detention was felt necessary in the public interest to avoid the disturbance of public peace and tranquillity. Hence the detention order, dated 21-11-2000 was issued on the request of the Senior Superintendent of Police, Faisalabad keeping in view the prevailing law and order situation.
4. It may also be mentioned here that the petitioner's representation has been rejected by the Home Secretary, Government of the Punjab, on 11-12-2000. The operative part of the order is reproduced below:-- ' ....The record produced by the Magistrate has been perused. A discreet inquiry shows that the petitioner managed the escape of one Tauseef Yousaf from the jail. He provided shelter to the proclaimed offenders. He was involved in the activities which are pre-judicial to the public peace and order. The impugned order does not suffer from any illegality. The representation is without merit and the same is hereby rejected."
5. The learned Law Officer has, today, furnished a report prepared by the Senior Superintendent of Police, Faisalabad, according to which the petitioner has been very active critic of the Armed Forces since the Army took over in October, 1999. His vitalic speech at the residence of Ch. Pervaiz Elahi, Ex-Speaker of Punjab Assembly resulted in a criminal case registered by the Lahore Police.
Similarly, on the visit of Mrs. Kalsoom Nawaz at Faisalabad, he delivered a fiery speech, he has also been issuing statements against the Government to the press prejudicial to the public peace and tranquillity in Faisalabad City, he is known to patronize criminals as well as enjoys had reputation in the city, his links with notorious outlaw namely Ashfaq alias Chachu are established who is a killer of Police Inspector, Idrees Ali and other constables of this District in the year 1996 for which case F.I.R. No,368, dated 20-6-1996 under sections 302/324/353/34, P.P.C. Was registered at Police Station, Saddar, Faisalabad, the Senior Superintendent of Police has further alleged that the petitioner supported the accused persons of this case and won-over the prosecution witnesses, as a result of which they were acquitted bythe Anti-Terrorism Court, Faisalabad. The report narrates further that Ashfaq alias Chachu, a notorious outlaw, has deep links with Rana Sana Ullah, who recently managed to get escape of his brother-in-law namely Touseef Yousaf from jail, involved in a murder case F.I.R. No,675, dated 9-11-1998 pertaining to Police Station Factory Area, Faisalabad.
For the incident as mentioned above, a case F.I.R. No,444, dated 14-11-2000 stands registered at Police Station Civil Lines against the petitioner. The Senior Superintendent of Police, Faisalabad has further given the details of the petitioner's criminal record and according to him the petitioner stands involved in seven criminal cases.
6. It is contended by the learned counsel for the petitioner that merely on the basis of police report, liberty of a person cannot be taken and he could not be detained, the District Magistrate has to apply his mind, check the record and thereafter, he should pass the detention order, the grounds of detention do not speak of any criticism on Pakistan Army, the District Magistrate has not even bothered to see the record, had he seen the same, he would have come to know the reality about the seven criminal cases, three cases of those seven cases, the list of which is attached with the report of the Senior Superintendent of Police, Faisalabad, against the petitioner, stand withdrawn and they (Serial Nos.l to 3) pertain to the year 1994 and in all these cases known political figures of Faisalabad were involved and these cases obviously were of political nature as in those days they belonged to the opposition. The similar criminal case at Serial No,4, F.I.R. No,209, pertains to the year 1995 and the petitioner is not named in the same and does not know anything about the same and if the petitioner was involved in the said case, he would have been arrested in the same. A criminal case at Serial No,5, F.I.R. No,134, dated 13-3-2000, is of political nature as the petitioner ,received Mrs. Kalsoom Nawaz, the wife of the deposed Prime Minister and other suspended M.P.A's. And M.N.A's. Of Faisalabad also stand involved in this case. It is submitted next that much has been said about the case F.I.R. No,444 relating to absconsion of Touseef Yousaf, brother-in-law of the petitioner but the petitioner is not named in the F.I.R. And the same in fact stands registered against the police officials. Similarly in the crime case at Serial No,7, F.I.R. No,582, the petitioner is not named.
7. It is submitted further that merely because a person is a fiery speaker, does not mean that he should be detained. No speech of the petitioner has been referred to by the District Magistrate or by the Senior Superintendent of Police, Faisalabad in his report. The text of any speech has not been produced for the scrutiny of this Court or referred to in the detention order. It is also argued that the registration of a case or previous involvement in criminal case is no ground for the detention because the detention is not for the purpose of punishment of the person to be detained but for the prevention of the activity prejudicial to the State and in the present case no such activity has been highlighted.
8. It is also contended by the learned counsel for the petitioner that the brother-in-law of the petitioner namely Touseef Yousaf was involved in case F.I.R. No,675, dated 9-11-1998 for, the offences under sections 302/324/34, P.P.C. Pertaining to Police Station Factory Area, Faisalabad and after his arrest, Tauseef Yousaf was sent to judicial lock-up and on one of the dates when he was to be produced before the trial Court, as per police version, he absconded whereas according to the version of the petitioner and of the father and brothers of Tauseef Yousaf the complainant party attacked Tauseef Yousaf and forcibly kidnapped him from the police custody and on coming to know of his abduction, the father and brothers of Tauseef Yousaf reported the matter to respondent No,4, Superintendent of Police, City, Faisalabad, who instead of taking action against the real accused persons, under the pressure of the complainant party and the political opponents of the petitioner, started raiding the residences of all the relatives of Tauseef Yousaf under the pretext that Tauseef Yousaf accused had absconded from police custody and on 14-11-2000, a heavy contingent of police party beaded by respondent No,4 raided the house of the petitioner without any search warrant and arrested him and took him to Police Station Civil Lines, Faisalabad and he was informed by respondent No,3, Senior Superintendent of Police, Faisalabad that he was involved in case F.I.R. No,444, dated 14-11-2000. It is also submitted that although the petitioner was arrested on 14-11-2000 but the date of his arrest was shown as 15-11-2000 and he was produced before the Illaqa Magistrate on 16-11-2000 for physical remand but after going through the case file, the Magistrate refused to grant the physical remand and sent the petitioner to judicial lock-up which caused great annoyance to the Local Administration and the petitioner was arrested in another false, frivolous and fake case F.I.R. No,582, dated 14-11-2000, registered at Police Station Thikriwala, for the offences under sections 353/186, P.P.C. And section 7 of Anti-Terrorism Act, 1997 and was produced before the Special Court, Anti-Terrorism Activities, Faisalabad and two days remand was obtained from 16-11-2000 to 18-11-2000 and thereafter the petitioner was taken to Police Station Thikriwala and on 18-11-2000, the Judge, Anti-Terrorism refused to grant any further remand and sent the petitioner to judicial lock-up which again frustrated the Administration and instead of sending him to jail, the petitioner was arrested in another old political case F.I.R. No,134, dated 13-3-2000 registered at Police Station Gulberg, for the offence under section 16, M.P.O. Read with section 188, P.P.C. And just to oblige them the City Magistrate granted physical remand of the petitioner for two days from 18-11-2000 to 20-11-2000 and on 20-11-2000 the petitioner was sent to judicial lock-up. The petitioner thereafter moved three bail petitions before the concerned Courts who were pleased to allow the bails in case F.I.R. No,444, dated 14-11-2000, Nos.582, dated 14-11- 2000 and 134, dated 13-3-2000 on 17-11-2000, 20-11-2000 and 21-11-2000 and the petitioner was released from jail on 21-11-2000. After his release the petitioner went to his chamber, situated in the premises of District Courts, Faisalabad, from where respondent No,4 alongwith heavy contingent of police took the petitioner to Police Station Civil Lines and on the next day he was served with the present detention order, which according to the learned counsel is ante-dated as the order in fact was passed on 22-11-2000 and not on 21-11-2000 as mentioned on the order.
9. The learned counsel in support of his legal contentions, mentioned above, places his reliance upon Muhammad Ishaq v. District Magistrate, Sheikhupura PLD 1978 Lah. 223 wherein the order of detention passed by District Magistrate was set aside as being without lawful authority on the ground that the District Magistrate passed the order on the satisfaction of Superintendent of Police and not on his own satisfaction as envisaged by section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960 wherein satisfaction must be that of the Authority passing the detention order and not that of any other Authority. The allegation against the detenu in the said case was that he used to deliver speeches against the Government. It was further held that the District Magistrate passed the detention order merely on the letter of the Superintendent of Police and "It could never be the intendment of law that the police should control the discretion and solemn judgment of the officers entrusted with such high and important matters". Learned counsel has further relied on Raja Nek Muhammad v. District Magistrate, Abbottabad and others 1998 PCr.LJ 612, in which on the same day on which special diary was recorded a criminal case was registered against the detenu and on the registration of criminal case against detenu for substantive offence, preventive detention after his release on bail was declared neither proper nor justified by a Division Bench of Peshawar High Court.
10. Learned counsel has also argued that the petitioner cannot be arrested merely because his relative is absconder and the police wants to know his whereabouts. Reliance in this regard is placed on Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283, wherein it has been held as follows:-- "9. The principles laid down not only govern the cases of preventive detention but apply to all such cases where detention or arrest has been challenged in the Constitutional jurisdiction of the High Court. The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorised and mala fide acts of omission and commission by any authority or person. In the instant case the information laid before the High Court was deficient and no substantive material was produced to satisfy it that till then there existed reasonable grounds that the detenu had committed the crime. In fact the statement of two witnesses was not produced which was basis for involving the detenus in a crime committed five months back report of which did not mention the names of the detenus. The prosecution, therefore, failed to produce material statement which was the basis for the arrest of the detenus. How could in such circumstances the High Court close its eyes to the glaring illegalities perpetuated in the background of the failure to arrest Dr. Imran Farooq. In the circumstances, the High Court was justified to reasonably conclude that the arrest was mala tide and intended to extract information about the whereabouts of Dr. Imran Farooq and, therefore, exercised its Constitutional jurisdiction in a limited manner by releasing the detenus on furnishing surety bond and leaving the prosecution free to make further investigation, if necessary. The High Court had thus, corrected actions of the Investigating Agencies in the right direction without in any manner interfering with the investigation. These observations find support from the following dictum of Hamoodur Rehman, C.J. In Mst. Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677-- ' If an investigation is launched mala fide or is clearly beyond the jurisdiction of the Investigating Agencies concerned, then it may be possible for the action of the Investigating Agencies to be corrected by a proper proceedings either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code' ."
' Further reliance is placed on Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary, Home 1994 SCMR 1532 in which the petitioner was charged with the activity of extending threats to the Counsulate-General of U.S. At Lahore. The police in this connection had already registered a case against him under sections 182/211/225/225-B and 506, P.P.C. Under F.I.R. No,173, dated 28-8- 1993 and the Honourable Supreme Court held that "this clearly shows that the detenu was an accused of substantive offences under the penal law and, therefore, preventive detention on the same allegation could not be justified in law". The apex Court has also held that "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 tranquillity cannot fall within the ambit of section 3 of the Ordinance". Learned counsel has also placed his reliance on Muhammad Ali v. District Magistrate, Rahimyar Khan PLD 1996 Lah. 342 in which the detenu was involved in 33 criminal cases it was held that the preventive detention cannot be ordered merely because of the involvement of the detenu in a number of criminal cases because the accused on the basis of same criminal charge cannot be vexed twice. Similarly in Muhammad Azim v. District Magistrate, Rahimyar Khan and another 1998 PCr,LJ 1123 a learned Single Judge of this Court held that no person should be vexed twice on the basis of same criminal charge. In the said case the main ground for detention was involvement of the detenu in a number of criminal cases of theft. The detenu had been acquitted in all those cases at trial and the detention order was set aside with the following observations:-- "6. The impugned order is a mechanical order and the prerequisite condition for issuance of such an order under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 was that the learned District Magistrate should have satisfied himself that a person is likely to act in a manner prejudicial to public safety or maintenance of public order and then, to direct the arrest and detention of that person for specified period. Such satisfaction with regard to the conduct of a person likely to act in a prejudicial manner must be objective in nature and not subjective so as to allow the executive authorities to act on their own fancies and there must be sufficient material before the authority to act upon it so as to justify the passing of an order of detention. In the present case, all the ingredients are lacking, as such, the order, dated 12-4-1997 is declared to be without lawful authority and of no legal effect. The writ petition is accepted in the above terms with no order as to cost."
' Learned counsel has also placed his reliance on Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913, 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, Inayat Ullah v. District Magistrate/Deputy Commissioner, Bannu and another 1998 PCr.LJ 3, Nasrullah v. The District Magistrate, Rahimyar Khan and others 1998 PCr.LJ 480, Kausar Ali alias Kasuary v. Government of N.-W.F.P. And others PLD 1999 Pesh. 82, Mst. Shazia Parveen v. District Magistrate, Okara PLD 1988 Lah. 611, Muhammad Tufail alias Thailoo v. S.H.O., Police Station, Bhai Pheru and 3 others 1990 PCr.LJ 1161, Jalal alias Jala v.
District Magistrate, Kasur and 2 others 1990 PCr.LJ 1529, Umer Din alias Umroo v. S.H.O. Bhai Pheru and 3 others 1990 PCr.LJ 948, Noor Muhammad v. District Magistrate, Hyderabad Sindh and 2 others 1990 PCr.LJ 2052, Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222, Dr. Muhammad Shoaib Suddle v. Province of Sindh through Secretary, Home Department, Sindh Civil Secretariat, Karachi and another 1999 PCr.LJ 747 and Haji Muhammad Ishaq Shah v. District Magistrate, Lakki Marwat and 2 others 1999 PCr.LJ 1558.
11. The learned Additional Advocate-General while vehemently opposing the petition submitted that the petitioner does not deserve any relief from this Court and in this regard he has referred to the memorandum from the Senior Superintendent of Police, Faisalabad, containing the extracts of the speech delivered by the detenu on 13-3-2000 at the time when Begum Kalsoom Nawaz visited Faisalabad and particular reference is made to the portion of the speech where the detenu is alleged to have criticized the superior Courts of the country. The learned Additional Advocate- General further submitted that if the detenu gives a surety bond to the effect that he would remain within the four corners of law, the Government would release him forthwith. Reference in this regard is made to Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others (supra), a judgment cited by the learned counsel for the petitioner himself, in which the High Court had exercised its Constitutional jurisdiction in a limited manner by releasing the detenus on furnishing surety bond. The learned Law Officer further submitted that there is sufficient material available on record justifying the passing of the detention order, the impugned order is not mechanical and the same was passed with the application of the mind and the same has been scrutinized again by the Home Secretary also at the time when the petitioner's representation was rejected. The learned Law Officer has also placed on record the details of cases F.I.R. No,349 of 1994, dated 11-10-1994 (incorrectly mentioned as case F.I.R. No,354 in the report of Senior Superintendent of Police, Faisalabad), No,472, dated 20-9-1994, No,506, dated 11-10-1994 and No,209, dated 19-10-1995, to contend that in all these cases, the petitioner is nominated as an accused.
11-A. The case-law discussed above in paragraphs 9 and 10 would show that it is settled law that the District Magistrate cannot pass a detention order under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, merely on the report and satisfaction of the Police Officer and requirement of law as also envisaged by section 26 of the above Ordinance is that the District Magistrate should himself satisfy that a person is likely to act in a manner prejudicial to public safety or maintenance of public ordef and such satisfaction must be objective in nature and not subjective, otherwise it would allow and permit the Executive Authorities to act on their own fancies and, therefore, there must be sufficient material before the Authority to act upon it so as to justify the passing of an order of detention. The mechanical orders of detention passed by the District Magistrates, without application. Of mind, merely on the report and satisfaction of the Police Officers, not disclosing any satisfaction of the District Magistrate himself that the person to be detained is likely to act in a prejudicial manner and lacking the objective criteria of justiciability on the basis of sufficient material, have always been struck down by the superior Courts of this country as being without lawful authority and of no legal effect. In the present case the report furnished by respondent No,2/District Magistrate, Faisalabad, shows that the impugned detention order was issued by him merely on the request of S.S.P., Faisalabad. It does not show the application of mind by the District Magistrate. It does not show that the District Magistrate himself was satisfied that the petitioner was likely to act in a manner prejudicial to the State. It is merely a mechanical order and the same is, therefore, without lawful authority and of no legal effect.
Furthermore, the case-law discussed above would show that the preventive detention would not be justified if the detenu, on the same allegations as contained in the detention order, was already an accused of substantive offences under the Penal Law as the so-called preventive detention on the same allegations would amount to vexing the detenu twice on the basis of same criminal charge. The facts as urged and narrated by the learned counsel for the petitioner (paragraph 8 above) show that the petitioner's alleged criminal activity, referred to as grounds of detention in the impugned order, is already a subject-matter of various criminal cases and on the same allegations the petitioner's detention is not justified in law. The facts and circumstances of this case show that after the petitioner was able to obtain bails in various criminal cases the petitioner was arrested and detained under the impugned order. This shows that the Executive Authority and the local police were bent upon keeping the petitioner behind the bars even after the release of the petitioner on bails in various criminal cases. The State had the remedy under the General Criminal Law to move the higher forums for the cancellation of the bails granted to the petitioner and instead a detention order was passed by the District Magistrate on the same day when the petitioner was released from jail, which is an illegal exercise of the powers vested with the District Magistrate, under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960.
12. In view of the abovementioned, the writ petition is accepted and the impugned order, dated 21- 11-2000 passed by the District Magistrate, Faisalabad, is declared to be without lawful authority and of no legal effect and is set aside.