Z. A. CHANNA , J.-These 3 constitutional petitions seek to assail 3 identical orders passed by the respondent No. 1 under M. L. O. 12, whereby the detenus, Abdullah Khan Waryah, Abdul Razzak Soomro and Shabnawaz Babar, have been ordered to be detained in Jail. Detenu Abdullah Khan Waryah, Abdul Razzak Soomro and Shahnawaz Babar, have been ordered to be detained in Jail.
Detenu Abdullah Khan Waryah is stated to be a Zamindar and President of P. P. P. City of Tando Adam ; detenu Abdul Razzak is stated to be the General Secretary of the P. P. P., Tando Adam City, and also organizer of some Hari and Labour Organizations and a Social Worker, while detenu Shahnawaz Babar is said to be a student studying in the B. A. Class.
2. Detenus Abdullah Waryah and Shahnawaz Babar were arrested on 2~2-1979, while detenu Abdul Razzak Soomro was arrested on 3-2-1979, and each of them was ordered to be detained for a period of 90 days under identical orders wherein only the names and particulars of the detenus were filed in. The order for the detention of Abdullah Waryah, which may be taken up as an example of the orders passed in all these 3 cases, reads as under
Whereas the Deputy Martial Law Administrator is of the opinion with respect of Abdullah Waryah son of Taj Muhammad, that with a view to preventing him from acting in a manner prejudicial to the purpose for which Martial Law has been proclaimed and the public safety and the efficient conduct of Martial Law, it is necessary to detain the said Abdullah Waryah son of Taj Muhammad.
Now, therefore in exercise of the powers conferred by clause (b) of para? Of Martial Law Order No. 12 the Deputy Martial Law Administrator is pleased to direct that the said Abdullah Waryah son of Taj Muhammad shall he detained forthwith in the custody of Sub-Jail, Tando Adam or such other custody as may be deemed necessary from time to time. From 2nd February 1979 to 2nd May 1979.
(Sd.)
Major-General Deputy Martial Law Administrator, Sector No. 2 (Japan Dad Khan)
3. Till the filing of these 3 constitutional petitions, no grounds for their detention were served on the detenus. However, on 25th/26th of February, 1979, the grounds for detention were served on each of the detenus. The grounds served on detenus Abdullah Waryah and Abdul Razzak are identical and are produced hereunder in extenso.
"Memorandum of Grounds of Detention.
(a) On 8th September 1978, a close door meeting of District Working Committee of P. P. P., Sanghar was held in P. P. F. Office at Shahdad--pur. You were one of the prominent participants. It is learnt that they discussed the present situation of District Sanghar and following resolu--tions were passed :-
(1) The meeting of the Working Committee will be held in every month at Taluka level.
(2) The country is passing through great crisis therefore the political abilities of Z. A. Bhutto be utilized.
(3) We support 8 points of Barna group.
(4) The political situation of the country is bad therefore the election is only solution to meet the situation.
(5) The recovery of the loans given by the P. P. P. Regime to the peasants be stopped.
(6) The financial position of the country is going to be bad and there is unrest amongst the public it should be improved and further steps will be taken at the general meeting of General Working Committee on 15th September 1978 at Islamabad.
(7) All arrested persons including Mumtaz Ali Bhutto, Abdul Hafeez Pirzada, Meraj Khalid, Shaikh Rasheed, Makhdoom Khaliquzzaman and Tikka Khan be released.
(8) Government servants whose services are terminated due to their enrolment by P. P. P. Regime be taken back in their services.
(9) The fish contract be given according to the Government policy and not on personal level.
(10) Immediate aid be given to the people of Taluka Shahdadpur who were affected by breaches in Rohri Canal.
(11) District Sanghar be declared as rain-affected area.
(b) On 6th October 1978, a closed door meeting (20) of P. P. P. District Sanghar was held in your bungalow at Tando Adam. At the end of the meeting you got passed the following resolutions unanimously demanding
(h) Release of Z. A. Bhutto, Mumtaz Bhutto, Begum Nusrat Bhutto, Benazir Bhutto, Makhdoom Khaliquzzaman, Abdul Hafeez Pirzada and other arrested P. P. P. Workers.
(2) Early holding of elections and transfer of power to the elected repre--sentatives of the people.
(3) Amendment in Constitution should not be made and to refrain from separate electorate.
(4) Institution of an enquiry in Nawabshah incident and deterrent punishment be awarded to the responsible.
(5) Immediate release of journalists and arrested students.
(c) On 5th January 1979, a P. P. P. Meeting (90/100) was held under the presidentship of Ali Dino Shah in his house at his village Abhpur near Jhol (District Sanghar), to celeberate the birth day of Mr. Z. A. Bhutto. You were one of the prominent participants.
2. In view of the above material indicating your activities, the D. M. L. A. Sector No. 2 is satisfied that you are likely, if set at liberty, to continue to act in a manner prejudicial to the purpose for which Martial Law has been proclaimed and for the efficient conduct of Martial Law.
(Sd.)
Major-General Deputy Martial Law Administrator, Sector 2 (Jahan Dad Khan)
4. The grounds served upon detenu Shahnawaz Babar are quite deferent and read as follows :-- Memorandum of Ground of Detention. ,
(a) On 5th January 1978 at 09-00 hours when the examination of M. A Part I were going on in New Aligarh College, Tando Adam, in all '32 students and 4 girl students had to appear at this Centre.
You boycotted the examination along with 10 other students affiliated with S. P. S. F. The remaining students appeared in the examination while the other 11 students including you boycotted the examination in connection with observance of 'Democracy Day'.
(b) You are reported to have been instigating the students affiliated with .., S. P. S. F. Against the Martial Law Government.
2. In view of the above material indicating your activities, the D. M. L. A. Sector No. 2 is satisfied that you are.Likely, if set at liberty, to continue to act in a manner prejudicial to the purpose for which Martial Law has been proclaimed and the public safety and for the efficient conduct of Martial Law.
(Sd Major-General Deputy Martial Law Administrator, Sector 2 (Jaban Dad Khan)
5. We had required Mr. Agha Ghulam Ali, the learned counsel for the respondents, to produce before us the material in support of the detention of the 3 detenus. He has placed before us the material including the Minute sheets on which respondent No. 1 had passed the orders of detention.
The material produced in respect of detenu Abdullah Waryah is as follows :- Material Warranting Arrest of Abdullah Khan Waryah son of Taj Muhammad Waryah under M. L. O.
12:
(1) On 8th September 1978, a closed door meeting of District Working Committee of P. P. P. Sanghar was held in P. P. P. Office at Shahdadpur. Abdullah Khan Waryah was also one of the prominent participants. It is learned that they discussed the present situation of District Sanghar and following resolutions were passed :-
(1) The meeting of the working committee will be held in every month at Taluka level.
(2) The country is passing through great crisis therefore the political abilities of Z. A. Bhutto be utilised.
(3) We support 8 points of Barna group.
(4) The political situation of the country is bad therefore the election is only solution to meet the situation.
(5) The recovery of the loans given by the P. P. P. Regime to the peasants be stopped.
(6) The financial position of the country is going to be bad and there is unrest amongst the public it should be improved and further steps will be taken after the general meeting of Central Working Committee on 15 August 1978 at Islamabad.
(7) All arrested persons including Mumtaz Ali Bhutto. Abdul Hafeez Pirzada, Meraj Khalid, Shaikh Rashid, Makhdoom Khaliquz Zaman and Tikka Khan be released.
(8) Government servants whose services are terminated due to their enrolment by P. P. P. Regime be taken back in their services.
(9) The fish contract be given according to the Govt. Policy and not on personal level.
(10) Immediate aid be given to the people of Taluka Shahdadpur who were affected by breaches in Rohri canal.
(11) District Sanghar be declared as rain-affected area.
2. On 6th October 1978, a closed door meeting (20) of P. P. P. District Sanghar was held in bungalow of Abdullah Khan Waryah at Tando Adam. At the end of the meeting, Abdullah Khan Waryah got passed the following resolutions unanimously demanding :-
(1) Release of Z. A. Bhutto, Mumtaz Ali Bhutto, Begum Bhutto, Benazir Bhutto, Makhdoom Khaliquz Zaman, Abdul Hafeez Pirzada and other arrested P. P. P. Workers.
(2) Early holding of elections and transfer of power to the elected representative of the people.
(3) Amendment in constitution should not be made and to refrain from separate electorate.
(4) Institution of an enquiry in Nawabahah incident and deterrent punishment be awarded to the responsible.
(5) Immediate release of journalists and arrested students.
3. On 5th January 1979, a P. P. P. Meeting (90/100) was held under the presidentship of Ali Dino Shah in his house at his village Abhpur near Jhol (District Sanghar), to celebrate the birth day of Mr. Z. A.
Bhutto. Abdullah Khan Waryah was also one of the prominent parti--cipants."
6. The material produced in respect of detenu Abdul Razak Soomro is identical to the material produced in respect of detenu Abdullah Khan Waryah, the sole difference being that in the case of Abdul Razak Soomro, it is stated that he was one of the participants in the closed door meeting of the P. P. P. District Sanghar, held on 6th October, 1978, in the bungalow of detenu Abdullah Khan Waryah.
7. The material produced in respect of the detention of detenu Shah--nawaz Babar is as follows :- "(1) On 5th January 1978 at 09-00 hours, examination of M. A. Part I were going on in New Aligarh College, Tando Adam. In all 32 students and 4 girl students had to appear at this Centre. Shah Nawaz Babar son of Abdul Razak Soomro, student, affiliated with S. P. S. F. Boycotted the examination along with 10 other students of S. P. S. F. The remaining students appeared in the examination while the other 11 students including Shah Nawaz Babar boycotted the examination in connection with observance of 'Democracy Day:
(2) Even otherwise Mr. Shah Nawaz Babar son of Abdul Razak Soomro remains active in S. P. S. F.
Group of students since his father is a strong supporter of P. P. P. He keeps towing the line of his father. He is mischievous type and calendestinely instigates the students against the present Government."
8. A perusal of the orders of detention passed in respect of the 3 detenus discloses that they have been detained in order to prevent them from indulging in activities prejudicial to the security of Pakistan, the public safety and the efficient conduct of Martial Law. The expression 'security of Pakistan' has been defined in Article 260 of the Constitution to include "the safety, welfare, stability and integrity of Pakistan and of each part of Pakistan, but shall not include public safety as such".
Public security is akin to public order and maintenance thereof. Preventive detention for reasons connected with security of Pakistan is specified in Article 1 of the Federal Legislative List while such detentions connected with the maintenance of public order is provided for in Article 14 of the concurrent list of the Constitution. As regards the expression "efficient conduct of Martial Law", we are not aware of any judicial pronouncement which has interpreted this expression. However, the Supreme Court, in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657has held that the purpose and "the declared objectives of the imposition of Martial Law are to create conditions suitable for the holding of free and fair elections in terms of the 1973 Constitution, which was not being abrogated, and only certain parts of which were being held in abeyance, namely, the parts dealing with the Federal and the Provincial Executives and Legislatures." The expression "efficient conduct of Martial Law" must thus be related to the above 'declared objectives' for which Martial Law has been imposed.
9. It was explicitly held in Begum Nusrat Bhutto's case by the Supreme Court that "the Superior Courts continue to have the power of judicial review to Judge the validity of any act or action of the Martial Law Authorities, of challenged, in the light of the principles underlying the law of necessity as stated above. Their powers under Article 199 of the Consti--tution thus remain available to their full extent, and may he exercised as therefore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance. Thus, notwith--standing the provisions contained in paragraph 5 of M. L. O. 12 that an order for detention made under the said M. L. O. Is not to be called in question before any Court, including the Supreme Court or the High Court, the higher Courts can review such orders and determine whether such orders are in accordance with law and the dictum laid down by the Supreme Court. We have asked the learned counsel appearing for the respondents to show us in what way the grounds for detention and the material produced before us are co-related or have any nexus, with any of the 3 footings on which the orders of detention have been passed against the detenus. An act would be deemed to be prejudicial against the 'security of Pakistan' if it is against the safety, welfare, stability and integrity of Pakistan or of any part thereof. There is nothing in the grounds of detention or in the material furnished before which is even remotely connected with the constituents of security of Pakistan.
The learned counsel for the respondents was also unable to show us any connection or nexus between the material produced against the detenus and public safety or the maintenance of public order. So far as detenus Abdullah and Abdul Razak are concerned, all that is alleged against them is that they attended certain meetings, including a get-together in connection with the celebrations of the birthday of Z. A. Bhutto. The first of these meetings was held on 8-9-1978. It was a closed door meeting of the District Working Committee of P. P. P., Sanghar, held under the Presidentship of Abdul Waheed Brohi, at which a number of resolutions were passed. The second meeting was held on 6-10-1978. This was also a closed door meeting of P. P. P.. District Sanghar, under the presidentsbip of Abdul Waheed Brobi, where certain resolutions, including demands for holding of early elections, release of Bhutto, release of journalists and students, and opposition to amendment of the Constitution were passed. However, such meetings are permissible under paragraph 3 of M. L. R.
33. There is nothing in those resolutions which even in the remotest manner suggest, that the detenus intended to create a law and order situation or that in consequence of such resolutions a law and order situation was likely to arise. The get-together on the 5th of January, 1969, in connection with the celebrations of birthday of Z. A. Bhutto, likewise, cannot be considered to have any overtones of violence or a tendency to create a law and order situation.
10. The learned counsel for the respondents was also unable to show us how the activities of detenus Abdullah Waryah or Abdul Razzak Soomro as detailed either in the grounds of detention or the material supplied before us were prejudicial to the efficient conduct of Martial Law. Since the declared objective of Martial Law is to hold early elections and to create conditions conducive for holding such elections, it would certainly be permissible under M. L. O. 12 to detain a person if his activities are reason--ably considered likely to create a law and order situation or disturbance of the public peace or safety or create any other difficulties in the way of holding elections. There is, however, nothing in the material which remotely suggests that the activities of detenus Abdullah Waryah or Abdul Razzak Soomro would in any way create law and order situation or could put a hurdle in the way of the declared objectives of the Martial Law. In fact, the demands of the detenus at the two meetings which they are stated to have attended was that the elections should be held early. As such, their demands coincide with the declared objectives of the Martial Law.
11. Coming to the case of detenu Shahnawaz Babar, the main ground on which he has been ordered to be detained is that on 5-1-1918, he along with some other students boycotted classes.
That incident, however, took place more than 13 months before he was ordered to be detained.
Furthermore, there is no material whatsoever on the record in support of this ground. There is neither the report from his College authorities, the police or any other agency to indicate that he boycotted the. Classes, and if so, for what purpose.
12. In any case, it is not shown how mere boycotting of classes by students on one occasion can bring a student within the purview of M. L. O 12 or his actions be construed as prejudicial to the security of Pakistan, the public safety or the efficient conduct of Martial Law. The only other allegation against him is that he remains active in the S. P. S. F. Group of students, that his father is a strong supporter of P. P. P., that he keeps towing the line of his father and he is a mischievous type It is not under--stood how the membership of the detenu in the S. P. S. F. Can be considered prejudicial if the S. P. S. F. Has not been banned, and it is understood that it has not been banned, but even if some of its activities are deemed to be prejudicial there is no material to show that the detenu has participated in such prejudicial activities. The mere fact that the detenu's father is a strong supporter of P. P. P. Can also be no ground for taking action against the detenu, for the sin of the father cannot be foisted on his son. There is also not the slightest material in support of the vague and sweeping allega--tions that the detenu is a mischievous type and clandestinely instigates the students against the present Government. There is no report whatsoever of any law enforcing authority to this effect or to the effect that the detenu is either indulging in or is likely to indulge in acts which might result in breach of public peace or endanger public safety.
13. A perusal of the Minute sheets and the orders thereon passed by the respondent No. 1, directing the detention of the detenus, indicates that the detaining authority has not applied its mind at all to the question whether the activities of the detenus are likely to endanger the security of Pakistan or prejudice, public safety or the efficient conduct of Martial Law. These orders appear to have been passed in a routine way without proper appreciation of the material on which they are required to be passed. It was held by a Full Bench of this Court in Mumtaz Ali Bhutto v. Deputy Martial Law Administrator (PLD 1979 Kar. 307that mechanical exercise of powers under M. L. O. 12, without proper application of mind, vitiates the orders of detention. The orders of detention suffer from a further infirmity. M. L. O. 12 confers a right upon a detenu to make a representation against his detention and such representation is to be examined by a Committee. Such representation has, however, to be made within 20 days of the passing of the order of detention. Obviously, a person cannot make a representation against the order of detention, unless he is supplied the grounds of detention. As such, the grounds of detention have to be supplied within 20 days of the passing of the orders of detention, if -the detenu is to be able to make his representation within the prescribed period. In the instant case, whereas the orders of detention were passed on the 2nd/3rd February, 1979, the grounds for detention were supplied to the detenus on the 25th/26th February 1979, that is beyond the said period of 20 days, thus denying the right to the detenus to make a representation against their detention, as provided in M. L. O.
12. A similar view was held by us in Constitutional Petition No. 1445/78.
14. For both the reasons given by us above we consider that the order, of detention are not in accordance with law. We would accordingly quashthe same and direct that the 3 detenus should be forthwith set at liberty if not required in any other case. In the circumstances of the case, there would be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.