' Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the detention order, dated 24-7-2002 passed by Home Secretary, Government of Punjab. The petitioner claimed that he is a religious person and is M.A.
Islamiat, who is running a Midrisa Arabia Siddiquia and was once President of Sipah-e-Sahabah.
This religious organization has been banned by the Government. The petitioner was arrested by the police on 18-7-2002 while he was teaching in the said Midrissa. It is alleged that no reason was given for his arrest. He was kept in illegal custody till 23-7-2002, when he was released by the learned Sessions Judge from the custody of S.H.O. At this the S.H.O. Allegedly became annoyed as it was found that the arrest of petitioner was without any entry and without any order of detention.
This act of father of the petitioner had nourished grudge in mind the S.H.O. And the petitioner was directed to be detained through the impugned order on recommendation of S.H.O. Concerned.
2. The learned counsel for petitioner contends that this detention order has been passed only for the reason that father of petitioner moved an application to the learned Sessions Judge for release of the petitioner, who was detained illegally. The learned counsel further contends that in order to teach a lesson to the petitioner and his father bogus reports had been prepared by S.H.O., which were submitted to the Home Secretary, who without applying his mind has passed impugned order without assigning any reason for keeping the petitioner in detention. According to the learned counsel the grounds canvassed are insufficient to maintain the detention of the petitioner and his detention is liable to be set aside as the petitioner was not involved in any illegal activity prejudicial to the peace and tranquillity. It is also, stated that the previously ceases were registered against the petitioner, but he was falsely involved in them and the period in which those cases were registered against the petitioner is from 1987 to 1997. It is further contended that in all the cases the petitioner was not alleged to have caused any violence or hurt to anybody, but were of minor offences. It is also claimed that the petitioner has been acquitted from all the cases except one case F.I.R. No,174 of 2001 under sections 353/186/148/149/337-L(2) and 337-L(ii), P.P.C. Registered at Police Station Darya Khan, and even the complainant of this case has also sworn an affidavit that the petitioner was not found present at the time of occurrence at railway station. It is prayed that the petition may be accepted and the impugned order of detention be set aside.
3. On the other hand, the learned counsel appearing on behalf of Advocate-General Mr. Muhammad Shan Gul, Advocate, has opposed this petition on the ground that the decision of the Home Department is based on the reports submitted by the Police Officers and Report No,40, dated 23-2-2002, Report No,16, dated 13-10-2001 and Report No,32, dated 13-10-2001 besides involvement of the petitioner in number of cases and his being President of Sapah-e-Sahaba 'a banned organization provides sufficient reasons for detention of the petitioner. It is also contended that the said organization has been banned in order to restrict its illegal activities and there is apprehension of revival of illegal activities by active members of the said organization. According to the learned counsel it will be in the interest of pubic peace and tranquillity that the petitioner be kept behind the bars.
4. I have heard the arguments of both the learned counsel for parties and perused the material produced by the Home Department. According to the report No,40, dated 23-2-2002, which was made by Nehmat Ullah, Inspector, S.H.O. And he has entered that he had received secret information that the organization of Sapah-e-Sahaba'. In leadership of the petitioner had convened a secret meeting and it was mutually agreed that on 28-2-2001 death sentence of Haq Nawaz Jhangwi was to be executed in Mianwali Jail and the District Administration should be paralysed on 27-2-2001. The other reports are also of similar type. The report, dated 13-10-2001 has also been made by Nehmat Ullah, Inspector, S.H.O. I am not inclined to uphold the detention, on the report No, 40, dated .3-2-2002, which is only an apprehension of S.H.O., but subsequently this apprehension was found incorrect as no action was taken by the petitioner in order to paralyse the District Administration on 27-2-2001 as no material has been placed on record to show that in pursuance of said secret meeting any terrorist activity has been made by any member of Sapah- e-Sahaba or any suspect was arrested, who had engaged any such activities: Hence in support of apprehension expressed in said report no document has been produced to show that any action was ever taken by the petitioner in order to endanger the public peace and tranquillity. This report is earlier than the illegal detention, dated 18-7-2001 by the said S.H.O. For about five days and the petitioner was released on the application of father of petitioner under section 491, Cr.P.C. Before the learned District and Sessions Judge having found his detention illegal and unlawful without any order from competent Authority or from relevant quarter. There is possibility that the father of petitioner who had filed the petition had annoyed the S.H.O. And in order to teach a lesson to the petitioner and his father, the S.H.O. Had made a report to the Home Department for detention of the petitioner. It is also contention of the learned Advocate appearing on behalf of Advocate-General that a list has been prepared after taking information from all secret agencies and the name of petitioner falls at Serial No, 5 of the list pertaining to District Bhakkar, therefore, it is sufficient to detain the petitioner. If some agency without sufficient evidence has found the petitioner suspicious is not a ground for keeping the petitioner under detention. It is not denied on behalf of the State that in 17 cases registered against the petitioner earlier, he has been acquitted by the Courts of competent jurisdiction and the Government has not filed any appeal against the acquittal of the petitioner in the said cases. Only case which is yet pending F.I.R. No,174 of 2001 has been registered under, sections 353/196/148/149/337-L(ii) and 337-L(ii), P.P.C. The complainant of this case has sworn an affidavit exculpating the petitioner that he was not present at the time of occurrence. Even otherwise, if the petitioner was accused in the said case it does not mean that it is a sufficient ground for his preventive detention. This case alone cannot be made basis for passing the impugned order. No sufficient material has been placed on record by the Home Secretary for maintaining the order of detention of the petitioner. The detention of the petitioner cannot be maintained on the ground that the detention order has been passed against the petitioner on extraneous ground and it is liable to be declared coram non judice. In case Muhammad Ayaz Khan and 6 others v. The District Magistrate 1995 PCr.LJ 587 (Peshawar) it has specifically held as under:-- "We have carefully 'gone through the material which has been placed before us by the learned Assistant Advocate-General Mr. Muhammad Aslam Khan and we are convinced in our mind that the material against the petitioner is vague and general in nature. It is devoid of any tangible act which could be treated as `prejudicial to the security of the State or public safety and tranquillity' . "
' It is further held:--- "Not a single witness had either been cited or examined by the detaining authority to support the allegations made against the accused."
' It is also held:--- "Detention order appeared to have been recorded by the District Magistrate to frustrate and undo the effect of the bail order passed by the Sessions Court and thus had an element of bad faith."
' In another case Mosal Khan v. District Magistrate PLD 1997 Pesh. 148 same principle has been highlighted as held in abovesaid case.
6. In view of what has been discussed above, I am of the opinion that the impugned detention order of the petitioner has been passed without any tangible material against him. It is, therefore, declared illegal and coram non judice and is set aside, by accepting this writ petition.