This writ petition was moved to call in question the detention of Qari Muhammad Hanif, resident of Masjid Handa Mohalla Muhammad Para, Narang, District Sheikhupura.
2. District Magistrate, Sheikhupura, passed the impugned detention order on 12-3-1977 under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, in purported exercise of power and jurisdiction delegated to him under section 26 through Notification No. 3-104/H- S.1.-1/64 dated 27th February 1965. The following admitting order was passed at the time of motion hearing;--- "Learned counsel has been asked whether he has any more arguments to support this petition than already addressed which would be presently noted. He has replied in the negative. That being so. I asked him whether he would delete the irrelevant material (in so far as the arguments raised by him are concerned) brought in para. 2 of this petition; because it is rot in accordance with the practice and rule of this Court. Ha, has replied in the negative. The only explanation that he has offered for retaining this material is that it furnish background to the questions raised in this petition. But on another question he has specifically replied that it is not intended that this material may be tried or that a decision may be obtained thereon in this petition. Learned counsel has, however, stated that though he would not remove the material, the Court has discretion to delete it from record.
(2) As the material in para. 2 is not intended by the petitioner to be tried as a question of fact by this Court for giving decision on the relevant issues raised with regard to the detention impugned in this petition, I direct that the said material shall be deleted from the record of this petition.
(3) The arguments raised by the learned counsel in support of this petition are----
(i) that the impugned detention order is without lawful authority because under subsection (2) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the District Magistrate could not pass the same without referring the matter to the Provincial Government. He has in this behalf relied on Liaquat A.I v. Government of Sind through Secretary, Home Department and another (PLD 1973 Kar. 78) and has also distinguished Ghulam Jilani v. Government of West Pakistan PLD 1967 SC 37' an ,1 Noor Muhammad v. The District Magistrate, Multan P is D 1976 Lah.
733;
(ii) that it is the basic right of a citizen in Pakistan guaranteed by the Constitution to criticise policies of a Government through speech so as to bring about a democratic change and if looked at in this context, the speech, the pith and substance of which is noted in ground No. 2 of the impugned order, would not come under the mischief of section 3 of the Ordinance. In this behalf, he has sought support from (i) Niharendu Dult Majumdar v. Emperor (AIR 1942 FC 22) and has particularly pointed out that the said ruling was given by the then Federal Court of India when there was actual war, there were no fundamental rights and that India was under foreign domination; (ii)
The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat A.I Khan PLD 1966 SC 286 at page 317; (iii) Province of East Pakistan and others v. Tofazzal Hossain Printer and Publisher of the Daily 'Ittefaq' PLD 1965 SC 520; (iv) Saiyyid Abdul A'la Maudoodl and 2 others v. The Government of West Pakistan and another PLD 1964 SC 673 at page 734; (v) Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 Lah. 135 at pp. 143 & 146 (F B); (vi) and Tofazzal Hossaia v. Province of East Pakistan and others PLD 1965 Dacca 478 at p. 480;
(iii) that as held in Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930, if there are no clear guidelines in a statute for interpretation of a certain provision, the rules of interpretation shall not be borrowed from the Anglo Saxon System of Law and that instances from Islamic Law would be made use of. In this behalf, he has relied on several instances including one relating to Hazrat A.I wherein seditious speeches and acts of Khawarjis were not taken any serious note of in the administration of the State. Other instances mentioned in Khilafat-e-Malukiyat (in Urdu) at page 100 et seq have also been relied upon. It is further argued that if the aforenoted principle and policy is followed, the speech referred ins the impugned order would not be actionable;
(iv) that several persons, bodies, institutions and parties have made similar speeches and have even passed resolutions which have not been brought under similar action as taken against the detenu. He has in this behalf relied on two resolutions passed by the Lahore High Court Bar Association, one on 9-3-1977 and the other on 15-3-1977, copies of which have now been placed on the record; and
(v) that reasons (1) and (3) are not relatable to reason (2) mentioned in the grounds of detention and if they fail, the whole order of detention would be rendered invalid. Reliance in this behalf is placed on Rahmat Elahi v. Government of West Pakistan (PLD 1965 Lah. 112 (at page 121) (P. B.).
(4) Questions raised require consideration. Admit. Notice.
(5) It is a detention matter and the detention period is thirty days. The petition, therefore, requires expeditious disposal.
(6) Records (including privileged ones, if any, in sealed covers) to be produced in this Court on I 8- 3-1977. Notice shall g,) directly as also through the Advocate-General who should also seek direct instructions for appearance on 18-3-1977."
3. Learned counsel for the petitioner states that he would not press grounds Nos. (i) and (iv) in this petition as, according to him, there are other grounds meriting interference by this Court.
4. Although there might be force in some of the above-noted contentions raised by the learned counsel but this petition merits to be accepted, on perusal of the record received today, due to discovery of an important circumstance. Two persons have been examined with regard to the records. Once is Shaukat A.I, a Clerk from D. C.'s Office, Sheikhupura and the other, Khadim Hussain S. I, Police Station, Narang. They have been examined on oath in detail. Opportunity to cross- examine has also been afforded.
5. The substantive order of the 'District Magistrate, as discovered from the original file (records), is as follows : "He be detained for 30 days under section 31.MPO.
(Sd.) D. M.
12-3-1977."
This order has been passed on the original latter sent by the Superintendent of Police, Sheikhupura to the District Magistrate on the same day, which reads as follows ; "Phone/3223 From The Superintendent of Police.
Sheikhupura.
To, The District Magistrate, Sheikhupura.
No. 1840/DS Dated 12-3-1977.
Subject.-Law and Order.
MEMORANDUM Qari ",Muhammad Hanif Khateeb Masjid Hanfia Mohallah Muhammad pura, Narang Mandi has delivered a speech during religious congregation in the mosque on the occasion of Friday prayers on 11-3-1977 and is likely to continue at the instance of political leaders affecting the peace and tranquillity amongst the masses. This amounts to acting in a manner prejudicial to the maintenance of public order and calls for immediate action please.
(Sd.)
Superintendent of Police, Sheikhupura."
The letter does not show that it was accompanied by any material for the perusal of the District Magistrate. The file (records), with regard to which this Court had not left the matter in doubt when directing its production, also shows that no material other than the letter from the S. P. Was before the District Magistrate. It is significant to note that even in the S. P.'s letter there is no indication as to what was the content of the speech delivered by the detenu. It is thus legitimate to conclude;
(i) that the District Magistrate did not examine any material so as to reach a conclusion that the detenu was likely to act in a particular manner;
(ii) that the District Magistrate did not apply his Independent mind to the relevant questions qua detention;
(iii) that the District Magistrate acted on the mere asking of the Superintendent of Police; and
(iv) that some of the allegations made in the grounds of detention, particularly those in grounds (1) and (3), are not mentioned it---s theletter of S. P. Nor in any other document--pt even in the secret diarynow produced in Court.
Thus the impugned order is based on non-existent imaginary so-called grounds. For all these reasons, this petition, merits acceptance. However, some points need some discussion.
6. There is no counter affidavit, not even a formal denial from the respondent side. However, I have examined the case, on my own, from various angles. An argument which might have beers raised but has not been raised from the respondent side could be that the formal order of detention, which has been attached with the present petition as Annexure 'A' and the,grounds of detention memorandum whereof is Annexure 'B' should be treated as enough to show that some other material might be before the District Magistrate when be passed the impugned order. The argument would be untenable. Annexure 'A' is a cyclostyled form wherein only the bare particulars of detention and the detenu have been filled in the blanks. It does not show that any other material was either before or was considered by the District Magistrate. With regard to Annexure 'B' suffice it to observe that it purports on its face to have been prepared after the detention order Annexure 'A' had not only been prepared but also assigned a number, namely, "HC/70 dated 12-3-1977." It is so mentioned in the body of the memorandum of grounds. Thus, at the time of preparation/completion of detention order, the memo. Of grounds was non-existent. Moreover, as noted above grounds (1) and (3) are not even mentioned in the letter of the S. P. They are not the subject-matter of the only other document, the so-called secret diary copy of which has been produced. Even with regard to ground (2), it can hardly be said that this would be tire summarisation by the District Magistrate of what is contained in the said diary. If it is to be assumed in favour of the District Magistrate that he would not have added grounds (1) and (3) which ere admittedly unrelated to the so-called secret diary, then it would have to be presumed that they were casually added by the ministerial staff, and it is not certain that it might also have been on the advice of some Police Officer. This, instead of removing the confusion. Would make it worst confounded. There would be no certainty that if grounds (1) and (3) are the product of the imagination of some ministerial staff, then ground (2) would be only referable to District Magistrate.
Moreover, the grounds are also typed in a cyclostyled form and there is no certainty that the District Magistrate himself specified them. This aspect would become more clear from the discussion which follows.
7. Another possible explanation which also has not been offered that some other record might not have been sent to this Court, would not be available to the respondent either; because in the order dated 16-3-1977 it was made absolutely clear that all records including the privileged ones were to be produced in this Court. If the file/records of the District Magistrate consisted of some other material, it would certainly have beers sent to this Court. This supposition gets strengthened from what Shaukat A.I of the D. C.'s Office stated on oath. According to him, there was "no other paper relating to this case which might have been left in the office and has not been brought by me today". He also admitted that "there is no copy or record of the secret diary sent by the police to the S. P. Which has been produced by the S. I., Police Station Narang today in Court, in our office". Hewas emphatic that " if there would have been any , such record or copy of the original, I would have brought it with the tale". His earlier statement that the original document might be in S. P.'s Office, he explained, was his estimate that "it should be in the S. P.'s Office". He finally stated that he had "not taken out any paper from this file" and that he had brought it "from proper custody and has not let anybody meddle with it". All this shows that the so-called Khufiya diary, a copy of which has been produced by the Sub-Inspector of Police Station concerned with the detenu, was not before the District Magistrate when he passed the impugned order on 12-3-1977. With regard to the aforesaid document also, it is absolutely clear that it was not sent to the District Magistrate by either its author or the Sub-Inspector himself. Khadim Hussain, S. Igave the procedure that such diaries are prepared in four parts. One is the original and three are the carbon copies. Tee main document goes to the S. P.'s Office. One carbon copy goes to the A. C. Who resides at Ferozewala, a place twenty miles distant from the District Headquarters. The next copy goes to the Sub-Divisional Police Officer, i.e., the Inspector, Police and the last one is retained in the Police Station. The copy prepared in pen (as distinguished from carbon) produced in Court, the Sub-Inspector explained, was prepared from the carbon copy retained in the Police Station. He has brought this carbon copy which was returned after perusal. The Sub-Inspector was emphatic that he did not produce the carbon copy retained in his office or any other copy made from it "in any other forum" than the High Court where he did so for the first time today. All this would show that the District Magistrate passed the impugned order on the satisfaction of the S. P. And not on his own satisfaction. He merely depended upon the opinion of the S. P. And did not even care to examine the material which may have been examined by the S. P. No reference in the short order passed by the District Magistrate is made to any circumstance which might have weighed with him for taking such a serious decision of detaining a person without trial. Such orders cannot be upheld-See Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and 2 others (PLD 1964SC829) wherein it was ruled that mere adoption of reports of other functionaries by authorities competent to pass orders would render the so-called orders invalid jurisdiction-wise. It is perhaps for all these reasons that learned counsel appearing for the State has not been able to defend the impugned order. When, after recording the statements of Shaukat A.I and Khadim Hussain, he was pointedly asked to address arguments in support of the impugned order, he could not and for obvious reasons noted above, has not done so.
8. Subsection (1) of section 3 read with section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960, provides that the satisfaction must be chat of the authority passing the order of detention. If it is assumed for the sake of argument that the District Magistrate, when exercising delegated power under section 26, is not bound to refer the case to the Provincial Government, it becomes all the more necessary that he should apply his independent mind to the material on the basis of which a person is to be detained. The application of independent mind, it is now established through precedent law, should be such as to satisfy basic norms of reasonableness which should stand the test of scrutiny in judicial review. In this case, the District Magistrate has failed to satisfy even the most ordinary standards of satisfaction. It would amount to legal mala fides-see case of Shorish Kashmiri (PLD1969SC14). I am satisfied from the records sent to this Court and statements made by two officials on oath that the District Magistrate, when passing the short detention order without disclosing as to why be did so, was acting merely on the letter of the Superintendent of Police. It could never be the intendment of law that the voice should control the discretion and solemn judgment of the officers entrusted with such high and importantly matters.
The delegation under section 26 through. The afore referred notification is to the District Magistrate and not to the Superintendent of Police.
9. In the light of the above discussion, this petition is allowed, the impugned order is set aside as without lawful authority and the detenu is set at liberty if not required to be detained in any other case.
10. Before parting with this judgment, it needs to be noted that the learned counsel for the petitioner, on the announcement of the above judgment, insisted that heavy costs should be awarded against the District Magistrate in his personal capacity for having passed the impugned order. When questioned as to whether a fee certificate has been filed in Court, he answered in the negative and stated that he had not charged any fees. If the detenu would have incurred any substantial expense in prosecuting this petition I might have seriously considered the prayer made by the learned counsel. And as to the toss if any suffered by the detenu, as distin3uished from the person (petitioner) who moved this petition, it is not certain whether he would at all seek any costs against the District Magistrate. In these circumstances therefore, I have decided not to pans any order with regard to costs.