1. The petitioner has challenged the vires of the detention order dated 31-10-2002 through this Constitutional petition.
2. The learned counsel of the petitioner submits that detenu is highly qualified, educated and respectable citizen. The detenu was detained by the order of the respondent/Home Secretary on 31-12-2001 under the provisions of Punjab Maintenance of Public Order Ordinance, 1960 the petitioner being aggrieved filed Writ Petition No.4558 of 2002 which was disposed of by this Court vide order dated 19-3-2002. Copy of the writ petition was sent to the respondent/Home Secretary, who was directed to treat the writ petition as a representation filed by the detenu, under the provisions of the Punjab Maintenance of Public Order Ordinance, 1960 and decide the same preferably within one week after providing proper hearing to all the concerned including the petitioner. The case of the detenu was referred to the appropriate Provincial Review Board for extension detention period. The detenu was released 31-3-2002. The respondents abducted detenu on 15-5-2002 at night from his residence and he was kept in illegal, unlawful and improper custody till 30-10-2002. The petitioner being aggrieved filed Writ Petition No. 13157 of 2002 and finally it was withdrawn under the assurance of the respondents on 29-10-2002. The respondents passed the impugned detention order to give protection of the period of illegal detention of the detenu from 15th May, 2002 till 30-10-2002. He further submits that respondents have passed the stereotype order without application of mind under the provisions of the Punjab Maintenance of Public Order Ordinance, 1940. There was no material before the detaining authority as is evident from the impugned order of detention read with the material filed by the respondents alongwith the report and parawise comments. The detenu was detained on the report of the police that no tangible substantial evidence and instances have been referred in the grounds to show that the detenu acted in a manner prejudicial to public safety or maintenance of order. The grounds attached with the order of arrest have been passed or based on mere apprehensions. The liberty of the citizen and specially jurist of the country cannot be curtailed on general grounds. The news item published in Daily Jang dated 25th December, 2001 on the statement of the detenu that he had left the leadership of Laskar-e-Tayyaba which is attached as Annexure 'C/5' with the writ petition. The statement of the detemi was not contradicted by the respondents, therefore, action of the respondents is not in accordance with law. In support of his contentions, he relied upon the following judgments:--
(1) Mian M. Nawaz Sharif v. President of Pakistan PLD 1993 SC 473, (2) Mohtrama Benazir Bhutto v.
2. President of Pakistan PLD 1998 SC 388, (3) Abdul Wali Khan's case PLD 1976 SC 57.
3. He further urges that respondents did not produce the detenu before the competent Court within 24 hours, therefore, his detention is illegal. He further urges that detenu can be detained for 8 months within 24 months under the provisions of The Punjab Maintenance of Public Order Ordinance, 1960 whereas the respondents had detained the detemi more than nine months, therefore, the action of the respondents is not sustainable in the eyes of law. In support of his contentions, he relied upon the following judgments:--
(1) Federation of Pakistan v. Malik Ghulam Jillani PLD 1974 SC 402, (2) Mumtaz Ali Bhutto v. Deputy Martial Law Administrator PLD 1979 Karachi 307.
4. He further submits that the impugned order of the respondents is without lawful authority as the same was passed mala fide in view of the circumstances of the present case. In support of his contentions, he relied upon the following judgments:--
(1) Begum Nazir Abdul Hamid v. Pakistan PLD 1974 Lahore 7, (2) Ch. Muhammad Anwar v.
5. Government of Pakistan PLD 1963 Lahore 109, (3) Shah Ahmad Nurani v. Government of Punjab PLD 1976 Lahore 695, (4) Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671.
6. He summed up his arguments that action of the respondents is without lawful authority as in view of the grounds mentioned in the impugned order which are general in nature and is also hit by Articles 2A, 4, 9, 10, 14 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973. In support of his contentions, he relied upon the following judgments:-- Muhammad Ishaq Shah v. District Magistrate 1999 PCr.LJ 1558, Rehmat Ellahi v. Government of West Pakistan PLD 1965 Lahore 112.
7. He also relied upon the "Muhammad (p.b.u.h.) Encyclopaedia of Seerah, Moataa Imam Malik, Islami Riasat, Human Rights in Islam, Qur'an The Fundamental Law of Human Life" and fundamental rights prescribed under Islam on the basis of which he highlighted that detenu cannot be detained without due process of law.
3. Mr. Muhammad Hanif Khatana, Additional Advocate-General, submits that writ petition is liable to be dismissed as the petitioner has alternative statutory remedy of representation before the respondent, Home Secretary. In support of his contentions, he relied upon Maulana Muhammad Azam Tariq v. District Magistrate, Jhang 2001 PCr.LJ 1727. He further submits that petitioner earlier filed Writ Petition No.4558 of 2002 which was sent to the Home Secretary to consider the writ petition as a representation filed by the detenu before him and decide the same preferably within a week, therefore, it is better to send the case to the Home Secretary to decide the case of the detenu afresh. He further submits that impugned order is based on material and this Court has no jurisdiction to substitute its own findings in place of the findings of the detaining authority: He further submits that in case the contents of the writ and report and parawise comments be read together then brings the case of the detenu in the area of disputed question of facts and this Court has no jurisdiction to resolve the disputed question in Constitutional jurisdiction. He further submits that Government has banned organization of the detenu i.e. Lashkar Tayyaba Pakistan therefore, action of the respondents is valid, based on report of the Police of District Security Branch, City District Lahore which was approved by the Senior Superintendent of Police, Operations, Lahore on, 30-10-2002, therefore, competent authority had passed the impugned order after applying his independent mind as is evident from the contents of the impugned order, dated 31-10-2002.
4. Mr. Sher Zaman Khan, Deputy Attorney-General for Pakistan, submits that the petitioner did not pray any relief qua respondents Nos.7 and 8, therefore, respondents Nos.7 and 8 are not necessary party. He further submits that the petitioner has challenged the vires of the detention order of the detenu dated 31-10-2002. The petitioner has withdrawn the Writ Petition No.13157 of 20,02 voluntarily as is evident from the Order' dated 29-10-2002 passed in Writ Petition No.13157 of 2002, therefore, writ petition is liable to be dismissed against respondents Nos.7 and 8 on the well-known principle of estoppel and waiver. He further submits that full faith and credit be given to public acts and record and judicial proceedings of every Province in view of Article 150 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. The learned counsel of the petitioner, in rebuttal, submits that the impugned order was passed by me Home Secretary, the fore, detenu has no alternative efficacious remedy. The judgment cited by the learned Law Officer distinguished on facts and law as the Home Secretary did not pass the impugned order in the cited judgment. Even otherwise the case of the petitioner falls in the exceptional clause as mentioned in the cited judgment. He further urges that writ petition is maintainable in view of the law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:-- Dr. Muhammad Shoaib Sadal v. Province of Sindh 1999 PCr.LJ 747, Maulana Abdul Latif Shamshad Ahmad v. D.M., Kasur 1999 PCr.LJ 2104.
8. He further submits that detenu is a leader of Jamatud Dawa. The same is not banned by the Government till date. The function of Jamatud Dawa was held on the dates mentioned in the report of the District Security Branch with the permission of the Tehsil Administration. The said function was held and due publicity was given to the said meeting.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:-- (i)The detenu was Chief of Lashkar Tayyaba.
9. (ii)The detenu left the. Leadership of Lashkar Tayyaba as is evident from news item appeared in Daily Jang and Nawa-e-Waqt dated 25th December, 2001 which are attached as Annexures 'C/5' and 'C/6' with this writ petition which are highlighted by the petitioner in ground-k of the writ petition: (i.e)The respondent-Provincial Government in report and parawise comments taken a stand in the following terms "No comments".
10. (iv)Same is the position of respondent No. 8.
11. (v)Lashkar Tayyaba was banned by the respondents vide order dated 14-1-2002.
12. (vi)The detenu was detained by the respondents vide detention order dated 31-12-2001.
13. (vii)The Review Board did not extend the period of detention of the detenu on the request of the respondents.
14. (viii)The petitioner filed a Writ Petition No.13157 of 2002 which was dismissed as withdrawn vide order dated 29-10-2002.
15. (ix)The meeting was held under the presidentship of the detenu in a closed room consisting of 25/30 persons. The meeting would be held at Pattoki, District Kasur from 1-11-2002 to 3-11-2002 instead of Mureedkey.
16. (x)The contents of the report further reveals that detenu had criticised the foreign policy of the respondents.
17. (xi)The report of the District Security Branch was approved by the S.S.P., Operations, Lahore on 30- 10-2002 under the subject "Detention".
18. (xii)The contents of para.2 of the memorandum dated 30-10-2002 reveals that annual congregation of Jamatud Dawa is scheduled to be held at Pattoki from 1-11-2002 to 3-11-2002.
19. There is every likelihood that Hafiz Professor Muhammad Saeed would instigate the participants of the gathering to indulge in activities prejudicial to public peace and tranquillity. His activities are likely to motivate the activists to defunct Lashkar-i-Tayyaba and Lahore District being a central place of his activities, wherefrom he can muster support from his followers to create any law and order situation.
20. (xiii)The S.S.P. Requested through the aforesaid memorandum to the Secretary, Government of the Punjab, Home Department for detention of the detenu under section 3, MPO of 1960 for a period of 90 days to prevent him from acting in a manner prejudicial to public peace and tranquility.
21. (xiv)The impugned order was passed by the Home Secretary vide impugned order dated 31-10- 2002 for a period of 30 days on the following grounds:-- (i)That the Government has banned your organization.
22. (ii)Continuance of your activities is likely to create unrest and ill-will being the member of the said organization giving rise to a situation prejudicial to the maintenance of public safety, hence this order.
8. It is better and appropriate to reproduce section 3(1) of the Maintenance of. Public Order Ordinance, 1960 alongwith explanation II.
23. Section 31.---Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, [*] extend from time to time the period of such detention, [for a period not exceeding six months at a time.] Explanation II.---Whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force in the Province, at any time during the period of seven days immediately before it was so declared to be unlawful, or remains or becomes a member of such an association or is on the Executive Committee thereof after it has been so declared to be unlawful shall be deemed to be acting in a manner prejudicial to be public order for the purpose of this section."
24. It is also settled principle of law that newspaper clippings are admissible in evidence in case the same were not contradicted by the respondents. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. PLD 1976 SC 57. The detenu had left the leadership of Lashkar Tayyaba on 24-12-2001. The Lashkar Tayyaba was banned on 14-1-2002, therefore, ground (i) is not sustainable in the eyes o law in view of the mandatory provision or section 3(1), Explanation II. In arriving to this conclusion, I am fortified by the law laid down by this Court in Iffat Razi v. Government of Punjab and others PLD 2002 Lahore 194. Meaning thereby any departure from the provisions of law is sufficient to vitiate the entire proceedings as per principle laid down by this Court in Maulana Shah Ahmad Noorani's case supra PLD 1984 Lahore 222. It is also settled principle of law that if there are more than one grounds on which the order of detention is based then each ground has contributed to the satisfaction of the detaining authority and no ground can be excluded from consideration in judging the legality of the order of detention, meaning thereby that when one ground is bad in law then the whole order shall fall on the ground. In arriving to this conclusion I am fortified by law laid down by the superior Courts in the following judgments:-- Government of West Pakistan v. Haider Bukhsh Jatoi PLD 1969 SC 210, Keshav Talpade v. Emperor AIR 1943 Federal Court 1, Muhammad Musawwar Khan v. D.C., Gujranwala PLD 1983 Lahore 102.
25. It is also pertinent to mention here that ground (i) is not based on ground reality in view of the news item appeared in Daily Nawa-e-Waqt and Jang dated 25th of December, 2001, mentioned above.
26. Meaning thereby that ground (i) is vague and bears no nexus with the object of the Statute under which the order was passed by the respondents for preventive detention of the detenu. Coupled with the fact that there is inherent contradiction between the material placed on record and the impugned order. The contents of the material reveal that meeting of Jamaat-ul-Dawa would be held on 1-11-2002 to 3-11-2002 at Pattoki, District Kasur. This Organization was not banned by the Government. The meeting had already taken place. The permission was granted by the Tehsil Administration. Considering the ground of detention as a whole, I in the light of preceding discussion am of the view that the allegation against the detenu did not constitute activity which by any standard of reasoning could be judged as prejudicial to the maintenance of public order. In arriving to this conclusion, I am fortified by law laid down by the Honourable Supreme Court in Mrs. Arshad Ali Khan v. Government of the Punjab through Home Secretary 1994 SCMR 1532. The question of maintainability was considered by the Division Bench of this Court in Muhammad Siddique Khan's case PLD 1992 Lahore 140 and laid down the following principle:-- "Article 10(5) and subsections (6) and (6-a) of section 3 of the Ordinance is adequate within the meaning of Article 199 of the Constitution. By so observing we do not find to lay down an inflexible rule and we should not be taken to have held that in no case the Constitutional petition can be filed without filing a representation. There may be cases where it can be demonstrated that it is not possible to file a representation for example, where no grounds of detention are communicated to the detenu or where the filing of the representation would be a mere exercise in futility. Similarly there may be other cases like complete lack of jurisdiction in the authority passing the order of detention where the filing of representation may not be necessary."
27. It was also observed by this Court in Maulana Muhammad Azam Tariq's case supra 2001 PCr.LJ 1727 in the following terms:--- "This Constitution petition is not sustainable unless and until the petitioner is in a position to make out a case of exception nature which has not been established as nothing has been brought on record on the basis whereof it could be said that the case is of such a nature that a remedy or representation will be an exercise in futile or bad the representation shall not be decided on merits and in accordance with law."
28. It is pertinent to mention here that petitioner has brought his case in exceptional circumstance as the impugned order was passed by the respondents in violation of the provisions of the Punjab Maintenance of Public Order Ordinance, 1960 i.e. Section 3(1) Explanation II, therefore, the objection raised by the learned Additional A.--G. Has no force in view of the law laid down by this Court in Maulvi Farid Ahmad's case PLD 1965 Lahore 135. It is settled principle of law that habeas corpus proceedings are summary in character as per principle lain down by the Honourable Supreme Court in Nasir Muhammad and another v. Sultan Zari, PLD 1997 SC 852. It is also admitted fact that petitioner filed Writ Petition No.13157 of 2002 which was withdrawn by the petitioner without any condition, therefore, contention of the learned Deputy Attorney --General for Pakistan that writ petition against respondents Nos.7 and 8 is not maintainable has a force on the well-known principle of. Approbate and reprobate. It is also settled principle of law that principles of C.P.C. Are applicable in Constitutional proceedings as per principle laid down by the Honourable Supreme Court in Hussain Bakhsh's case PLD 1970 SC 1, therefore, second writ petition to the extent of respondents Nos. 7 and 8 is not maintainable in view of section 11 of C.P.C. Read with Order 23, C.P.C.
29. The principle of constructive res judicata is attracted m the present case to the extent of respondents Nos.7 and 8, coupled with the fact that the petitioner only challenged the vires of the impugned order of detention dated 31-10-2002 in this writ petition and does not pray any relief against respondents Nos.7 and 8. It is also settled principle of law that this Court has only jurisdiction to provide the remedy in all cases of wrongly deprivation for personal liberty. It is settled principle of law that the Courts secured the liberty of the persons by ordering his immediate release from unlawful detention. It cannot grant any other relief to the detenu in respect of allegations of wrongful detention or any allegation of torture or some other inhumane acts committed on his person as per principle laid down by this Court in Muhammad Shafi's case PLD 1975 Lahore 729.
30. With these observations the writ petition is disposed of.