JAVED IQBAL, J.---This petition for leave to appeal is preferred on behalf of Federation of Pakistan through Secretary, Ministry of Interior, Islamabad, assailing the order dated 17.2.2003 passed by learned Single Judge of the Lahore High Court, Lahore, in chambers whereby the Writ Petition bearing No,62 of 2003 has been partly allowed to the extent of detenus namely Dr. Umar Karar Khawaja, Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja who were directed to set at liberty forthwith if not required in any other case and dismissed to the extent of detenus namely Dr. Khawaja Ahmed Javed and Kh. Ahmed Naveed.
2. Pursuant to order dated 30-12-2002 passed by the Federal Government in exercise of powers as conferred upon it under the provisions as contemplated under section 3(1)(b) of the Security of Pakistan Act, 1952 (XXXV of 1952) detaining Dr. Ahmad Javed Khawaja, Ahmad Nadeem Khawaja sons of Haji Muhammad Yunus, Dr. Khizat Ali, Dr. Umar Karar sons of Dr. Ahmad Javed Khawaja and Muhammad Usman son of Ahmad Naveed Khawaja on account of their prejudicial activities against State on behalf of some foreign Government/Organization detrimental to the security of Pakistan the above named persons were directed to be detained in any jail located within the territorial jurisdiction of Province of the Punjab initially for a period of three months. The grounds of detention were duly served on the detenus who filed representations against the detention order before the Federal Government which are yet to be decided. Mr. Amatul Jalil Khawaja wife of Ahmad Javaid Khawaja (respondent No,1) preferred a Constitutional petition under Article 199(1)(b)
(i) of the Constitution of Islamic Republic of Pakistan, 1973 assailing the said order which has been partly accepted to the extent of Dr. Umar Karar Khawaja, Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja while dismissed qua Dr. Khawaja Ahmed Javed and Kh. Ahmed Naveed, hence this petition.
3. Mr. Sher Zaman Khan, learned Deputy Attorney-General appeared on behalf of Federation of Pakistan and urged with vehemence that the provisions as contemplated in section 3 of the Security of Pakistan Act, 1952 has been misinterpreted and misconstrued by ignoring the fact that the word "satisfaction" always indicates the subjective satisfaction of the Federal Government concerning detention and the High Court while exercising its Constitutional jurisdiction by no stretch of imagination can substitute its own findings for that of the Federal Government. It is contended emphatically that the material qua detention of the respondents produced before the learned Single Judge on 27-1-2003 and 3-3-2003 was indicative of the fact that sufficient evidence was collected against the detenus and the evidence being highly sensitive in nature was to be placed before the Review Board at opportune moment which could not be produced before the Court due to its sensitivity. The learned Deputy Attorney-General argued that privilege was claimed by the Federal Government under Articles 6 and 158 of the Qanun-e-Shahadat Order, 1984 and in view of the dictum in the case of Mohtarma Benazir Bhutto v. President of Pakistan (PLD 1992 SC 492) which aspect of the matter has been ignored by drawing adverse inference against the ) petitioner. It is urged with vehemence that the parawise comments filed by the petitioner on 14-1- 2003 make it abundant clear that the Al-Qaeda's most wanted terrorists were being harbored , and facilitated at Manawan Compound ownership whereof rests with Dr, Ahmed Jaye& Khawaja and his family. It is pointed out that during investigation of a driminal case got registered against the detenu they have admitted their' contaits with terrorists namely Abu, Yasir (AI-Jazairi), Assadullah (Egyptian), Sheikh Said Al-Misri (Egyptian) and Abu Faraj (Head of Al-Qaeda North Africa Network).
It is mentioned that three Saudani Passports, three Egyptian Passports, one Afghani passport and the foreign currency of USA, Saudi Arabia, Afghanistan, Iran and UAE were also recovered. It is argued firmly that the material placed before the learned Single Judge coupled with the other material collected against the detenus establishes the fact that all the detenus were involved in anti-State activities prejudicial to the security of Pakistan but the reasonableness of the grounds for detention could not be examined properly and in its true perspective which resulted in serious miscarriage of justice. The learned Deputy Attorney-General contended that the impugned judgment is inconsistent as the evidence produced before the Court was against all the detenus but the detention order to the extent of three respondents have been set aside which is not understandable. It is also informed that recovery of a very sophisticated computer alongwith CPUs, Disks and Floppies being used to maintain contact with the terrorists was made. It is also argued out that on the basis of available material the _findings of Federal Government cannot be substituted by the learned 'Single Judge while exercising Constitutional jurisdiction which limited in nature in such-like cases because' the question of sufficiency of evidence could not be examined.
The learned Deputy Attorney-General while referring the provisions as contained in Article 129 of the Qanun-e-Shahadat Order, 1984 and Article 150 of the Constitution of Islamic Republic of Pakistan has stated that presumption of truthness is attached to all official acts. The learned Deputy Attorney-General has referred the following authorities:- Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 SC 313); Government of West Pakistan v.
Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Farooq Ahmad Khan Leghari v.
Federation of Pakistan PLD 1999 SC 57; Mohtarma BenazirBhutto v. President of Pakistan PLD 1992 SC 492; Lahore Improvement Trust v. Custodian of Evacuee Property PLD 1971 SC b 1 1; PLD 1964 Lah. 178; Tanveer A. Qureshi v. President of Pakistan PLD 1997 Lab. 263; Rehmani Gul v. Rent Controller 1987 SCMR 866; Mehtab Khan v. Rehabilitation Authority PLD 1973 SC 451; Abul A'la Maudoodi v.
Government of West Pakistan PLD 1964 Kar.478.
4. Mr. Hamid Khan, learned A.$.C. Appeared on behalf of respondent No,i,and strenuously controverted the view point as canvassed by learned Deputy Attorney-General at bar -by contending that the detention order was based on mala tides because the detenus were directed to produce in a habeas corpus petition and a specific direction for, their physical production was given on 27-12-2002 by the learned High Court. Mr. Hamid Khan, learned A.S.C. Supported the order impugned up to the extent of respondents being free from any illegality or infirmity. It is pointed out that bald allegations have been levelled against the respondents which could not be substantiated by producing evidence on the basis whereof it could be inferred that the grounds for the detention of the respondents were reasonable. It is urged that the allegations are vague and sketchy because no details regarding prejudicial activities have been mentioned in the order and besides that even the name of the country at whose instance the prejudicial activities were made has not been mentioned in the detention order. It is argued that the provisions as contained in section 6 of the Security of Pakistan Act, 1952 have been violated. Mr. Hamid Khan, learned A.S.C.
Has also invited our attention to the variations and contradictions between the reports of Provincial Government and that of Federal Government. It is urged emphatically that no evidence worth the name could be collected against the respondents but a futile attempt has been made to use their statements got recorded while they were in police custody which being inadmissible cannot be considered.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of Constitution of Islamic Republic of Pakistan, the Security of Pakistan Act, 1952, the Qanune-Shahadat Order, 1984 and judicial precedents. It would be relevant to mention here at this juncture that our security laws and anti-terrorism enactment are silent to the effect that Al-Qaeda is a terrorist organization having its network at global level and is a serious threat to national/international piece, security and tranquility. We have also perused the order impugned with care and caution. The pivotal question which needs determination would be as to whether sufficient incriminating material justifying the detention of respondents under section 3(1)(b) of the Security of Pakistan Act, 1952 was available which could not be appreciated in its true perspective by the learned Single Judge who erred in substituting his own opinion to that of Federal Government by misconstruing the provisions of section 3 of the Security of Pakistan Act, 1952 and misinterpreting the word "satisfaction" as used therein which resulted in serious miscarriage of justice? Before the said question could be answered in this particular context we have thrashed out almost the entire law available on the subject, detail whereof is as follows:-- Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57), Al-Jehad Trust's case (PLD 1996 SC 324), Ghulam Jilani v. Government of Pakistan (PLD 1967 SC 373), Abdul Baqi Baloch v.
Government of Pakistan and others (PLD 1968 SC 313), Begum Nusrat Bhutto v. Chief of Army Staff and another PLD 1977 SC 657, Sardar Muhammad Muqeem Khoso v. President of Pakistan (PLD 1994 SC 412), Abdul Rauf v. Abdul Hamid Khan (PLD 1965 SC 671), Fazlul Quader Chowdhry v, Muhammad Abdul. Hague (PLD 1963 SC 486), S.R. Bommai v. Union of India (AIR 1994 SC 1918), Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), State of Bombay v.
Virkumar Gulabchand (AIR 1952 SC 335), Ghulam Sarwar v. Union of India (AIR 1967 SC 1335), Muhammad Yaqui) v. State of Jammu and Kashmir (AIR 1968 SC 765), Union of India v. Bhanudas Krishna Gawde (1977) 1 SCC 834)), Liversidge v. Anderson (1942 AC 206), Ch. Manzoor Elahi v.
Federation of Pakistan (PLD 1975 SC 66), Waman Rao v. Union of India (AIR 1981 SC 271), Braigan and McBridge v. United Kingdom 17 E.H.R.R.539 (1993).Riverside's case (LR 1942 A C 206), Sibnath Banerji's case (L R 72 I A 241), Vimlabai Deshpande's case (L R 73 I A 144).. The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan (PLD 1966 SC 286), Emperor v. Vimalabai Deshpande (AIR 1946 PC 123), Ai bab Muhammad Hashem Khan on behalf of Arbab Abdul Ghafoor Khan and another v. The Crown (PLD 1954 FC1), Mahbub Anam v. The Government of East Pakistan (PLD 1959 Dacca 744), Sardar Fazlul Karim v. Government of East Pakistan (1956) 8 DLR 700)), Ch: Muhammad Anwar v. Government of West Pakistan (PLD 1963 Lah.
109), Greene v. Secretary of State for Home Affairs (1942 A 284). Subrahmadyen (AIR 1943 Lah. 329), Sardar Fazlul Karim v. Government of East Pakistan (1956 8 DLR 700), Liaqat Ali vs. Government of Sindh through Secretary, Home Department and another (PLD 1973 Karachi 78); Government of West Pakistan V. Begum Shorish Kashmiri PLD 1969 SC 14; Government of West Pakistan v. Haider Nux Jatio PLD 1969 SC210: Livesidge v. Sir John Anderson LR 1942 AC 206; King-Emperor v. Vimlabai Deshpande LR 73 IA 144; Rehmat Elahi v. Government of West Pakistan PLD 1965 Lah. 112 and Keshew Talpada v. Emperor AIR 1943 FC 1. Greene v. Secretary of State for Home Affairs 1941 AELR 388; Nakhuda Ali's case 1951 AC 66; Faridsons Ltd. v. The Government of Pakistan PLD 1961 SC 537; Harvard Law Review, Vol. 56, p. 808; Legal Thesaurus by William C. Buston; Commentary on the Constitution of India, sixth (Silver Jubilee) Edn., Vol. N By Dr. (Justice) Durga Das Basu; Corpus Juris Secundum, Vol.16; Constitutional and Administrative Law, 11th Edn. By Wade and Bradley; Constitution of Islamic Republic of Pakistan by Shaukat Mahmood .
6. The judicial consensus seems to be as under:--
(i) "An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court that is to say, (i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, nonexistent or irrelevant, the whole order of detention would be rendered invalid; (iii) that initial burden lies on the detaining authority to show title legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly, complied with; that 'satisfaction' in fact existed with regard to the necessity *of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then 'as soon as may be'; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law; that the grounds of detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice."
(Liaqat Ali v. Government of Sind through Secretary, Home, PLD 1973 Karachi 78). (Emphasis provided)
(ii) "The right of a person to a petition for habeas corpus is a high prerogative right and is a Constitutional remedy for all matters of illegal confinement. This is one of the most fundamental rights known to the Constitution. There being limitation placed on the exercise of this right, it cannot be imported on the actual or assumed restriction which may be imposed by any subordinate Legislature. If the arrest of a person cannot be justified in law, there is no reason why that person should not be able to invoke the jurisdiction of the High Court immediately for the restoration of his liberty which is his basic right. In all cases where a person is detained and he alleges that his detention is unconstitutional and in violation of the safeguards provided in the Constitution, or that it does not fall within the statutory requirements of the law under which the detention is ordered, he can invoke the jurisdiction of the High Court, under Article 199 and ask to be released forthwith. (PLD 1965 Lah. 135). He need not wait for the opinion of the Advisory Board before praying for a habeas corpus. (AIR 1952 Cal. 26).However, jurisdiction of High Court while examining the material before the detaining authority is not unlimited. When an order passed by an executive authority detaining a particular person is challenged by invoking extraordinary jurisdiction of High Court it is always by means of judicial review and cannot be treated as appeal or revision. The Court cannot substitute its discretion -for that of administrative agency. The only function of the Court in such cases is to see whether or not order of detention is reasonable and objective." (PLD 1979 Lah. 74) (Emphasis provided).
"The Court can see whether the satisfaction about the existence of the requisite condition is a satisfaction really and truly existing in the mind of the detaining authority or one merely professed by the detaining authority. (AIR 1953 SC 451).A duty has been cast upon the High Court, whenever a person detained in custody in the Province is brought before that Court, to "satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner." This Constitutional duty cannot be discharged merely by saying that there is an order which says that he is being so detained. If the mere production of an order of detaining authority, declaring that he was satisfied, was to be held to be sufficient also to "satisfy"the Court then what would be the function that the Court was expected to perform in the discharge of this duty. Therefore it cannot be said that it would be unreasonable for the Court, in the proper exercise of its Constitutional duty to insist upon a disclosure of the materials upon which the authority had acted so that it should satisfy itself that the authority had not acted in an "unlawful manner". (Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313). (Emphasis provided). '
(iv) "High Court cannot claim in the exercise of writ jurisdiction to usurp the functions of the authority in which power has been vested nor to substitute their own decision for the decision of that authority. Nor can the Court insist on being satisfied that there were materials upon which it itself would have taken the same action.It is in this sense that it has been said that the Court is not concerned with either the adequacy or the sufficiency of the grounds upon which action is taken.
The Court in order to be satisfied as required by the Constitution.Must know that there were in fact grounds relatable to the Purposes of the statute upon which the action of the authority concerned could at all have been founded after an honest application of the mind of the authority concerned to all the relevant considerations. The question, however, that still remains to be considered is as to whether the reasonableness of the action can be examined when the statute itself does not require the authority to act upon reasonable grounds but leaves him to act upon his own subjective satisfaction. In view of the provisions of Article 199 of the Constitution that degree of reasonableness has at least to be established which has been indicated in the case of Abdul Baal Baluch PLD 1968 SC 313. Otherwise, if an authority could protect himself by merely saying that he believed himself to be acting in pursuance of a statute then what would be the material upon which the Court could say that it was satisfied that the detention or impugned action had not been taken in an unlawful manner. The presumption is that every imprisonment without trial and conviction is prima facie unlawful." (Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14). (Emphasis provided).
7. On the touchstone of criterion as laid down in above mentioned cases and keeping in view the judicial consensus we intend at first instance to examine the material which was placed before the learned Single Judge. The detention order dated 30-12-2002 and memorandum of grounds of detention are reproduced hereinbelow for ready reference:--.
No, 7/53/2002.S.III Government of Pakistan, Ministry of Interior Islamabad the 30th December, 2002.
Whereas the Federal Government has been informed that M.S. Khawaja Ahmed Javed s/o Haji Muhammad Younis, Khawaja Ahmed Naveed s/o Haji Muhammad Younis, Dr. Khizar All Khawaja s/o Dr. Ahmad Javed, Dr. Umar Karar Khawaja s/o Dr. Khawaja Ahmed Javed and Muhammad Usman Khawaja s/o Khawaja Ahmad Naveed, Pakistan nationals are indulging in activities prejudicial to the Security of Pakistan. And whereas Federal Government is satisfied that detention of the above mentioned persons is essential. Now, therefore, in exercise of the powers conferred by clause (b) of subsection (1) of section 3 of the Security of Pakistan Ac, 1952 (XXXV of 1952), the Federal Government is pleased to direct that the said named persons be detained in any jail in the Province of Punjab with immediate effect initially for a period of three months.
(M. Irfan Kilan Jadoon), Section Officer (Police)."
MEMORANDUM OF GROUNDS OF DETECTION. Whereas the Federal Government has made an order under clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952) directing that you be detained. Now, therefore, in pursuance of section 6 of the said Act, you are hereby informed of the grounds on which the order has been made to enable you to make a representation in writing against the order. You are also informed that under the law you have a right of making such representation. The Federal Government is satisfied that you have been involved in anti-State activities in Pakistan on behalf of a Foreign Country/Organizations and, thus, your activities have been prejudicial to the Security of Pakistan. Therefore, with a view to preventing you from acting in such manner, you shall be detained in any jail in the Province of Punjab with immediate effect.
(M. Irfan Kilan Jadoon), Section Officer (Police)."
8. The detention order and memorandum of grounds of detention are indicative of the fact that they were involved in anti State activities on behalf of a foreign country/organization prejudicial to the security of Pakistan and after having satisfied the detention order was issued. There is no denying the fact that edifice of satisfaction is to be built on the foundation of evidence as conjectural presumption cannot be equated to that of satisfaction. We are conscious that it is subjective assessm ent and strictly speaking there can be no objective satisfaction because under the preventive laws action is usually taken on suspicion and anticipation. Now it would be appropriate here at this juncture to examine the evidence/material which was placed before the Court in support of detention order:-- "PARAWISE COMMENTS ON BEHALF OF RESPONDENT NO.1. Respectfully sheweth: Para. I Needs no comments. Para. 2 M/s. Dr. Ahmed Javed Khawaja, Ahmed Naveed Khawaja, Dr. Umar Karar Khawaja, Dr. Khizar All Khawaja and Muhammad Usman Khawaja have been detained on account their involved in activities pre-judicial to the security of Pakistan under clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952) vide Ministry of Interior's Order No,7/53/2002-S-III, dated 30th December, 2002 (copy annexed). Para. 3 Calls for no comments. Para. 4 (i) to (vii)' Needs no comments. Para. 4 (viii) The petitioner's contention is not based on facts. In fact the answering respondent had submitted a preliminary statement on 23rd December, 2002 and subsequently submitted para-wise comments on 26th December, 2002 and another statement on 30th December, 2002 to the Honourable Court through Deputy Attorney-General for Pakistan after obtaining required information from the concerned quarters. Para. 5 Needs no comments. Para. 6 It was revealed through investigation that the Al-Qaida's most wanted terrorists were being harboured and facilitated at Manawan Compound owned by Dr. Ahmed Javed Khawaja and his family. The detainees evidences that they have contacts with following hard core terrorists:--
(a) Abu Yasir Al-Jazairi, Algerian/Moroccan National (Responsible for Business of Al-Qaeda.
(b) Assadullah, Egyptian National (Member of Al-Gamaat-Al-Islamia/A1-Qaeda).
(c) Sheikh Said Al-Misri, Egyptian National (Financial Chief of AlQaeda).
(d) Abu Faraj (Head of Al-Qaeda, North Africa Network and deputy of Khalid Sheikh Muhammad).
2. Following foreign travel documents recovered from their clearly prove that Khawaja's family was involved in facilitating and harbouring Al Qaidea elements.
(1) Sudani Passports. 3
(2) Egyptian Passports. 3
(3) Afghani Passport. 1
3. Foreign Currencies of USA, Saudia, Afghanistan, Iran and UAE were also recovered from their possession. Para. 7 Denied. An order for their detention has been issued under the relevant law after collecting substantial evidence as mentioned above. Para. 8 Needs no comments. In view of the above facts and circumstances, it is respectfully prayed that the Honourable Court may please dismiss this petition being devoid of merit. Dated: 14- I -2003 On behalf of Respondent No, I "
(ii) Parawise comments on behalf of respondent No,2 Home Secretary. Punjab. Respectfully sheweth, MERITS Para. 1 No comments. Para. 2 No comments. Para. 3 No comments. Para 4 (i) Factual position has been stated in the report of District Police Officer, Lahore. (Annex-A)
(ii) As in Para. 4 (i)
(iii) As in Para. 4 (i)
(iv) As in Para. 4 (i)
(v) As in Para. 4 (i)
(vi) In correct. Factual position has been stated in the report of District Police Officer, Lahore.
(Annex-A).
(vii) No comments.
(viii)The detention orders were passed by Ministry of Interior, Government of Pakistan in exercise of powers conferred in it under section 3 of Security of Pakistan Act, 1952. Para. 5 Admitted to be correct. Para. 6 Admitted to be correct. Para.7 Incorrect.
GROUNDS.
(a) It does not relate to respondent No, 2.
(b) It does not relate to respondent No, 2.
(c) it does not relate to respondent No, 2.
(d) It does not relate to respondent No, 2.
(e) It does not relate to respondent No, 2. (t) It does not relate to respondent No, 2.
(g) No comments as the Detention orders were passed by Government of Pakistan, Ministry of Interior.
(h) As in Para. (g).
(i) As in Para. (g). Para. 8 No comments being legal."
(iii) "Report of Capital City Police Officer Lahore On the night of 19-12-2002 an information regarding tiring by some unknown persons outside a house at G.T. Road was received by the Manawan Police through Emergency 15. On this information, S.H.O., P.S., Manawan alongwith his staff rushed to the spot and apprehended Dr. Ahrnad Javaid Khawaja, (2) Ahmad Naveed Khawaja, (3) Hassan Ahmad, (4) Muhammad Ali, (5) Ahmad Nadeem and 6) Muhammad Farooq. A pistol 30 bore along with 10 bullets was recovered from the possession of Dr. Ahmad Javaid Khawaja and a kalashnikov alongwith to bullets from Ahmad Naveed Khawaja, which were taken into possession. 10 empties ofpistol 30 bore and 15 empties. ofKalashnikov were also taken into possession from the spot. Accordingly, a case vide F.I.R.
No,412/2002 dated 19-12-2002 under section 353/148/149/186, P.P.C. Read with 13(1)/20/65, A.O. And 7, A.T.A. Was registered at P.S. Manawan, Lahore,. Investigation of the case was conducted by Inspector Baqar Hussain Incharge available against Hassan Ahmad, Muhammad Ali, Ahmad Nadeem and. Muhammad Farooq, who were released on executing bail bonds under section 169, Cr.P.C. However, Dr. Ahmad Javaid Khawaja and Ahmad Naveed Khawaja were arrested in the above mentioned case. They remained on physical remand for six days. During interrogation Dr. Ahmad Javaid Khawaja and Dr. Ahmad Naveed Khawaja made the following disclosures:-
(i) Ahmad Naveed Khawaja disclosed that he visited Afghanistan in 1998 and met Abu Yasir Egypt national and Abdul Aziz Saudi national and worked there for the purpose of Jehad. Ahmad Javaid Khawaja also visited Afghanistan and provided medical facility to the injured Mujahideen.
(ill An Egyptian lady alongwith 6 children and a Sudani woman alongwith 4 children wives of Abdul Aziz (a Saudi national and an active member of Al-Qaida) were living in their house.
(iii) The said women and children were left there after the incident of 11th September, 2001 by Abdul Aziz and Abu Yasir, both Member of Al-Qaida.
(iv) Abdul Aziz and Abu Yasir had been visiting the house of the accused after every 10/15 days regularly and providing the necessities of life to the foreign& women/children.
' On 26-12-2002, the accused were produced before the Court for obtaining their further physical remand, however, request for further physical remand was declined by the Court. During investigation the accused were found guilty of having relations with AI-Qaida Organization, providing accommodation to the active members of Al-Qaida. Consequently, section 11-V, A.T.A.
Wasalso added vide case diary No,9, dated 27-12-2002.After completion of investigation challan of the case has been submitted in the Court of competent jurisdiction for trial.
PARAWISE COMMENTS Para. 1-3 Calls for no comments. Para. 4 (i--iii) The factual position has been explained in the above report.
(iv) Dr. Ahmad Javaid Khawaja and Ahmad Naveed Khawaja were found guilty of having relations with Al-Qaida, proving accommodation to the active members of Al-Qaida, assaulting Police and keeping illicit weapons in their possession. Accordingly, they have been challaned in case F.I.R.
No,412/2002, P.S. Manawan.
(v) It is correct that the petitioner earlier tiled Writ Petition No,21605/2002 in the Hon'ble Court.
(vi) First part of this para. Calls for no comments being matter of record. Rest of the para is denied being incorrect. The factual position has been elaborated in the above report.
(vii) & (viii) Calls for no comments being matter of record. Para.5. It is correct that the Federal Government has issued detention order against the detenu under section 3 of Security of Pakistan Act, 1952 on 30th December, 2002. Para.6. Calls for no comments being matter of record. GROUNDS (a--e) These paras do not relate to the answering respondent, hence nocomments.
(t) Calls for no comments.
(g--i)The 'detention order was passed by the Federal Government, hence no comments. Para.7 Legal, hence no comments."
9. We have examined the said evidence with care and caution. The parawise comments furnished on behalf of Federal Government reflect that the respondents had contact with hard core terrorists (names already mentioned), no independent evidence worth the name could be collected establishing prima facie such contacts and the only evidence available in this regard is the statement of detenues got recorded when they were in police custody. How much reliance can be placed on such statement in view of the relevant provisions as contained in the Qanun-e- Shahadat Order, 1984 and its admissibility hardly needs any elaboration. No doubt that certain travelling documents were recovered from the house of detenus such as Sudani passports (3), Egyptian passports (3), Afghani passport (1) and foreign currency of USA, Saudi Arabia, Afghanistan, Iran and UAE but this recovery cannot be attributed to the entire family. Had there been twenty members of Khawaja family (terminology used time and again by the learned Deputy Attorney-General) can such recovery be attributed to all of them if sounder what law? There was no answer to it. It can at the best be attributed to the owner of the house or person having commanding authority in the house. What substantial evidence was collected is not known as it was never placed before the Court on account of privilege claimed under Article 6 and Article 158 of the Qanun-e-Shahadat Order, 1984 and in support of such privilege the dictum as laid down in Benazir's case (supra) was relied upon which will be discussed at relevant place.
10. The parawise comments on behalf of Government of the Punjab hardly renders any assistance to the case of petitioner as nothing has been said except that "the detention order was passed by Ministry of Interior, Government of Pakistan in exercise of powers conferred in it under section 3 of the Security of Pakistan Act, 1952". I see clause (viii) of para.4 of the comments].
11. We have also adverted to the report of Capital City Police Officer. First portion whereof relates to details qua registration of case against six persons namely Dr. Ahmad Javaid Khawaja, Ahmad Naveed Chawaja, Hassan Ahmad, Muhammad Ali, Ahmad Nadeem and Muhammad Farooq and four persons namely Hassan Ahmad, Muhammad Ali, Ahmad Nadeem and Muhammad Farooq were released after executing bail bonds under section 169, Cr.P.C. In parawise comments, however, it is mentioned that Dr. Ahmad Javaid Khawaja and Dr. Ahmad Naveed Khawaja were found guilty of having relations with Al-Qaeda, providing accommodation to the active members of Al-Qaeda, assaulting police and keeping illicit weapons in their possession. Accordingly they have been challaned in case F.I.R. No,412/2002 of Police Station Manawan.
12. We have also examined the statements furnished on behalf of petitioner which is reproduced hereinbelow for ready reference:-- "STATEMENT ON BEHALF OF RESPONDENT NO.1 Respectfully sheweth, It is submitted that M/s. Dr. Ahmed _laved Khawaja (son of Haji Muhammad Younas), Ahmed Naveed Khawaja (son of Haji Muhammad Younas), Dr. Khizar Ali Khawaja (son of Dr. Ahmed laved Khawaja), Dr. Urnar Karar Khawaja (son of Dr. Ahmed Javed Khawaja, Muhammad Usman Khawaja (son of Mr. Ahmed Naveed Khawaja) have been detained on account of their activities prejudicial to the Security of Pakistan under clause (b) of subsection (1) of section 3 of Security of Pakistan Act, 1952. The Ministry of Interior has sufficient incriminating evidence on record provided by the concerned Security Agency against the accused persons. The, evidence is of highly_ sensitive nature and will be placed before the Review Board, as referred to in clause (4) of Article 10 of the Constitution.
As regards representation tiled by the detenus before the Secretary, Ministry of Interior, it is stated that it has become functus officio (frozen) being subjudiced in the Court of Law. ON BEHALF OF RESPONDENT."
13. A bare perusal of the above statement would reveal that sufficient incriminating material was available but being highly sensitive in nature could not be produced before the Court. The said sensitive material could have been produced in the Chamber of learned Single Judge enabling him to formulate his view-point qua the reasonableness of the grounds of detention or otherwise.
It, however, could not be done for the reasons best known to the petitioner. We are conscious of the fact that a thorough investigation or intensive probe on the sufficiency of the material cannot be made but the grounds disclosed by the Government can be examined to see if the same are relevant to the objects which the Legislature has in view i,e, prejudicial act, security of State and maintenance of law and order. There is no cavil with the proposition that reasonableness of the grounds of detention can be examined while exercising Constitutional jurisdiction. Which could not have been done in vacuum and the material/evidence which could not be produced in Court should have been made available in Chamber. The order of detention must show on the face of it that the detaining authority is satisfied to the effect specified under the relevant detention law and if there is no record of satisfaction of the detaining authority the order of detention can be declared to have been passed without lawful authority and ab initio void. In this regard reference can be made to M. R. S. Mani v. District Magistrate AIR 1950 Mad. 162; M.R.S. Mani v. District Magistrate 51 Cri.L.Jour 525; Seetamma v. Kotareddi AIR 1949 Mad. 586; PLR 1957(2) W.P. 215. The learned Deputy Attorney-General was generous enough to show all this material to this Bench in the Chamber but admittedly it cannot be taken into consideration presently, as it was never placed before the learned Single Bench of Lahore High Court, Lahore. There is no doubt in it that Court can see whether the satisfaction about the existence of the requisite condition is a satisfaction really and truly existing in the mind of detaining authority or one merely professed by the detaining authority.
An order of detention, which is really passed for an Ulterior purpose and not because the detaining authority is really satisfied that it is necessary to detain the intended detenu with a view to preventing him from acting prejudicially to certain objects will be void. If any authority is needed reference can be made to Ashutosh Lahiri v.The State of Delhi AIR 1953 SC 451; 1953 Cri.L.Jour.1921; Naranjan Singh v. Sfate of Punjab AIR 1952 SC 106; Naranjan Singh Nathawan v.The State of Punjab 1952 SCR 395; State of Bombay v. Atma Ram AIR 1951 SC 157; The State of Bombay v. Atma Ram 1951 SCR 167; Ishar Singh v. The State (AIR 1953 Pepsu 111); ILR 1952 Patiala 620; 1953 Cri.L.Jour.1210; AIR 1951 Simla (Punj.) 157; 52 Cri.L.Jour. 17 (DB); In re: Narahari Balaji Parkhi (AIR 1949 Mad. 438). There could be no other opinion that it is for the High Court to examine while exercising its Constitutional jurisdiction the material on which the satisfaction of the detaining authority is based and to determine whether it was sufficient for the satisfaction of the detaining authority. Let we mention here at this juncture that when a privilege is claimed even then the High Court would be competent to examine the document/material regarding which privilege is sought in order to determine as to whether such privilege is being claimed in advisedly, lightly or as a matter of routine. In this regard we are fortified by the dictum laid down in PLD 1969 SC 14; Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 SC 313); National Bank v. Faridsons Limited 20 DLR SC 249. The High Court can examine the reasonableness of the grounds of detention so as to satisfy itself that the detenu has not been held in custody without lawful authority or in an unlawful manner. It is not the satisfaction of only detaining authority but judicial conocious is also required to be satisfied and thus in our opinion the satisfaction of detaining authority should have been based on actual and real facts and, not on mere suspicion, doubt or conjectural presumptions. Even, the subjective satisfaction does not mean satisfaction of the authority without any base. No doubt that the word "satisfaction" has been used in section 3 of the Security of Pakistan Act, 1952 but the powers conferred upon the High Court by the Constitution under Article 199 cannot be limited or taken away by a sub- Constitutional legislation and terefore, a balance is to be maintained between the powers conferred upon the High Court by the Constitution and the relevant provisions of sub- Constitutional legislation. Be as it may, it is for the High Court to consider as to whether there were grounds upon which any reasonable person could have been satisfied as to the necessity of detention; In this regard we are fortified by the dictum as laid down in Abdul Baqi Baloch v.
Government of Pakistan PLD 1968 SC 313. We are not persuaded to agree with the prime contention of learned Deputy Attorney-General that on the basis of material placed before the Court the detention order could not be set aside as the High Court was not empowered to substitute its findings with that of the detaining authority as the Constitutional jurisdiction in this regard is confined only to see as to whether the grounds mentioned in the detention order were reasonable or otherwise for the reasons that it is not the question of substitution of finding and the High Court is not bound to endorse or subscribe the satisfaction of the authority irrespective of the fact whether any material is available or not. The High Court is not only within its, Constitutional jurisdiction to examine the grounds for detention but, to see as to whether detention order could be justified on such grounds and if some opposite view after having taken into consideration the material placed before it contrary to that of detaining authority is formed does not amount to substitution.
14. A bare perusal of Article 199 of the Constitution of Islamic Republic of Pakistan would reveal that the words "without lawful authority" and "in unlawful manner" appearing in Article 199(b)(1) cannot be considered as tauto logous or superfluous and in fact deserve due consideration. The above mentioned words were also used in Article 98 of the Constitution of Islamic Republic of Pakistan, 1962 and discussed in depth by this Court in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) in the following words:-- "The words 'in an unlawful manner' in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law. If not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal -process and postulates a strict performance of all the functions and duties laid down by law. It may well be. As has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new grab. It is in this sense that an action which is mala tide or colorable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant consideration is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner." It was further observed: "There can be no doubt that the Court can satisfy itself that the action taken is not a mere colorable exercise of power or a fraud upon the statute. The question, however, that still remains to be considered is as to whether the reasonableness of the action can be examined when the statute itself does not require the authority to act upon reasonable grounds but leaves him to act upon his own subjective satisfaction. In view of the provisions of Article 98 of the Constitution that degree of reasonableness has at least to be established which has been indicated in the case of Abdul Baqi Baluch PLD 1968 SC 313. Otherwise if an authority could protect himself by merely saying that he believed himself acting in pursuance of a statute then what would be the material upon which the Court could say that it was satisfied that the detention or impugned action had not been taken in an unlawful manner. If the argument be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial review then even questions of bona fide or good faith would be beyond the scope of judicial review but it has, throughout without any exception whatsoever, been always consistently held that a mala tide action is not action. In accordance with law."
15. It is thus clear that in view of the provisions as contemplated under Article 1991 of the Constitution of Islamic Republic of Pakistan the jurisdiction as conferred upon the High Court cannot ,be confined in a limited sphere as pressed time and again by the learned Deputy Attorney-General.
16. The learned Deputy Attorney-General has interpreted the word "satisfaction" in the light of dictum as laid down in Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) but it is to be kept in view that the word "satisfaction" in Farooq Ahmad Khan Leghari (supra) has been examined in a broader spectrum with specific reference to Article 232 of the Constitution of the Islamic Republic of Pakistan wherein word "satisfaction" has been used with reference to existence of grave emergency where the security of Pakistan or any part thereof is threatened by war or external exaggeration or by internal disturbances beyond the power of a Provincial Government to control. A mention, however, has been made about various cases qua preventive laws in Farooq Ahmad Khah Leghari's case (supra) which is reproduced hereinbelow for ready reference:- "42. The learned counsel for the petitioners have referred to a number of dictionaries to show the meanings of the words inter alia 'satisfied', 'satisfy'. 'external' and 'aggression', the definitions of which have been quoted hereinabove.The words 'satisfied' and' 'satisfy' indicate that the same connote inter alia free from anxiety, doubt, perplexity, suspense or uncertainty or a mind which has reached a clear conclusion. Whereas the word 'external' inter alia means apparent, visible from outside, physical or corporeal; whereas the word 'aggression' has been defined inter alia as means inroad, invasion or encroachment of rights of others. It may be observed that Cornelius. C.J. In the case of Malik 'Ghulam Jilani (supra), while construing the word 'satisfaction' used in Rule 32 of the Defence of Pakistan Rules, pointed out that the requirement of satisfaction contained in the above Rule involves the exercise of judgment inrelation to a number of relevant factors and that belief would also be necessary as to the existence of certain facts and potentialities that they possess danger to public order. Whereas Hamoodur Rehman, J. (as he then was) in the case of Mir Abdul Baqi Baloch (supra) highlighted the difference between 'being satisfied' and 'suspecting upon reasonable grounds' by observing that the former connotes a state of mind bordering on conviction introduced by the existence of facts which have removed the doubts, if any, from the mind and taking it out of stage of suspicion."
17. It can be concluded safely that satisfaction can only be based on some evidence or record justifying the detention order which is badly lacking in this case. The learned Deputy Attorney- General has stated that sufficient evidence has been collected but nobody knows where is that evidence, what is the nature of sensitivity and why it could not be brought before the learned Single Judge in Chambers. The contention of learned Deputy Attorney-General that the said material could only be shown to Review Board is not understandable for the reason that if it could be shown to the Review Board how it could be withheld from the High Court and at the best precautionary measure as mentioned hereinabove could be taken and such evidence could have been produced in the Chambers of learned Single Judge.
18. In the light of what has been stated herein above we are of the considered opinion that the conclusion as arrived at by the learned High Court being well based does not warrant interference and foe detention order could not be justified on the basis of material made available to the learned Single Judge. The petition being meritless is dismissed and leave declined.
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