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Petitioner: YOUSAF AYUB KHAN, MPA and anothers VS Respondent: Major (Rtd.) AFTAB AHMAD KHAN JUDGMENT
Court Name: Peshawar High Court Judge(s): Mian Muhammad Ajmal, Jawaid Nawaz Khan Gandapur Title:YOUSAF AYUB KHAN, MPA and anothers vs Major (Rtd.) AFTAB AHMAD KHAN
JUDGMENT
Reported As: 1995 MLD 1179 Result: Petition accepted Judgment JUDGMENT ' MIAN MUHAMMAD AJMAL, J.---The petitioners herein, have impugned orders Nos. 1504 and 1505 dated 20-11-1995 alongwith the grounds of detention issued by the District Magistrate, Haripur directing the police to detain the petitioners for a period of one month, to be illegal, mala fide and without jurisdictions. 2. The relevant facts for the disposal of this petition are that petitioner No, 1 was elected MPA as an independent candidate whereas petitioner No, 2 is District Organizer PML (Nawaz Group) who were taken into custody on 8th October, 1994 in pursuance to the order of the District Magistrate, Haripur under section 3 of the Maintenance of Public Order Ordinance, 1960. The order against petitioner No, 1 was withdrawn by the District Magistrate on 16-10-1994 whereas the petitioner No, 2 served the detention period. On 12-10-1994 an F.I.R. No,768 was registered under section 16, MPO/124- A/147/148, P.P.C. In Police Station City Haripur against the petitioners along with others wherein the petitioners were allowed bail by the learned Sessions Judge, Haripur vide his order dated 1-11-1994. Another F.I.R. No, 792 was registered in the same police station on 29-10-1994 under section 16, MPO/153-A, P.P.C. Against the petitioners, in that too, the learned Sessions Judge, Haripur granted them bail vide his order dated 10-11-1994. Thereafter, yet another F.I.R. No, 811 dated 9-11-1994 was registered in the same police station under section 16 MPO/505, P.P.C. Against the petitioners along with some other persons and in that case as well, the learned Sessions Judge, Haripur allowed them bail vide his order dated 21-11-1994. In the meantime District Magistrate issued two Orders Nos.1504 and 1505 dated 20-11-1994 under section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960 directing police to detain the petitioners for a period of one month from the date of issuance of
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detention orders. Respondents Nos. 4 and 5 have filed their written statements whereas respondent No,2 has filed comments to the writ petition. 3. Learned counsel for the petitioners contended that before the withdrawal of the detention order of petitioner No, 1 on 16-10-1994 a case was registered on 12-10-1994 through a constable pertaining to the procession and a meeting held on 20-9-1994. The petitioners were allowed bail in that case on 1-11-1994 but they were not released from jail, and in order to frustrate and defeat the Court order, another F.I.R. No, 792 was got registered on 29-10-1994 through a police man pertaining to a meeting held on 11-9-1994. Both the petitioner were allowed bail in that case too, by the learned Sessions Judge, Haripur vide order dated 1041-1994 but the petitioners were again not released and thus the Court's orders were violated. The detention order of petitioner No, 1 was withdrawn on 16- 10-1994 and petitioner No, 2 had undergone the detention period of one month and there was no case pending, still the petitioners were not released. Yet another F.I.R. No, 811 was got registered on 9-11-1994 through the same policeman in Police Station Haripur with respect to the public meeting held on 27-9-1994 wherein besides the petitioners, certain others were also named and in that case as well, the petitioners were allowed bail which was not honoured by the respondents. He submitted that all the F.I.Rs, were registered after inordinate delay for the past transactions with mala fide intentions so as to frustrate the bail orders. He referred to Letter No, 31003/ST, dated 19th November, 1994 of the S.S.P., Haripur addressed to the District Magistrate, Haripur stating that if the petitioners come out of the prison then they would disturb the law and order situation in the District which had improved during their detention and also annexed three secret diaries of the intelligence agencies. He stated that in the impugned detention orders the District Magistrate directed the Police for the detention of the petitioners for a period of one month fully knowing that the petitioners were already in Jail at Dera Ismail Khan. He referred to the diaries, on the basis of which, the impugned orders were passed, wherein it was stated that on 19-11-1994 it was observed that a poster size portrait of Yousaf Ayub Khan shown in jail, had been kept on the roof of a shop known as 'Honey Shoes' in order to win the sympathies of the people. Whereas in another diary of 16-11-1994 it was mentioned that the supporters of the petitioners in their private meetings were found saying that whenever the detenus come out of jail, they would see with the Provincial Administration. In the third diary dated 14-11-1994 it was contended that the petitioners were issuing statements from jail which indicated that if they were released, they would again start bringing out processions and hold public meetings which would create law and order situation in the district. He referred to section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 and submitted that the satisfaction of the Government for arresting and detaining a person must be objective and should qualify that the person in likely to act in a manner prejudicial to public safety or the maintenance of public order which factors are absolutely lacking in the present case as the petitioners were in jail and were not in contact with the general public. He urged that the petitioners are peaceful, respectable and responsible citizens who had never indulged in any act prejudicial to the public safety and public order. He submitted that under Article 17 of the Constitution of Islamic Republic of Pakistan, every citizen has the right to form association or union subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, Public Order or Morality, and every citizen not being in the service of Pakistan, has the right to form or to be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan. It was urged that the petitioners within their guaranteed rights under the Constitution, were carrying on their political activities and they in no manner whatever acted prejudicial to the public safety or public order. He contended that in a democratic polity it was the Constitutional duty of the opposition to keep aware the general public about the activities of the Government. He submitted that, rather the respondents have violated the guaranteed rights as enshrined in Article 10 of the Constitution which provides that no person
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who is arrested should be detained in custody without being informed of the grounds for such arrest and had to be produced before a Magistrate within a period of twenty-four hours of such arrest, but in this case none of the petitioners was ever produced before any Magistrate. He submitted that after the withdrawal of the detention order of petitioner No, 1 he had to be produced before a Magistrate under the Constitution and the relevant law, but as it was not done, therefore, his detention and confinement was unconstitutional and illegal. Likewise petitioner No 2 after the completion of detention period was never produced before any Magistrate in between the period from 7-11-1994 to 20-11-1994, therefore, his detention/confinement too, was unconstitutional and illegal. He further stated that when the mala fides had been alleged against the respondents then the representation, as required under subsection (6) of section 3 of the MPO, was not a condition precedent for challenging the order before this Court especially when the liberty of the citizens was involved. He urged that the mala fides of the respondents can be ascertained from the registration of cases and impugned orders which were passed just to frustrate and defeat the bail orders. Reliance was placed on PLD 1992 Pesh. 26, 107, PLD 1969 SC 14, PLD 1992 Lah. 140 and 1994 SCMR 1532. 4. Opposing the aforesaid contentions of the learned counsel for the petitioners, the learned Advocate-General contended that the writ petition is incompetent as the remedy provided by representation before the Government under subsection (6) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 has not been availed and therefore the petitioner without having invoked the said remedy could not file writ petition under Article 199 of the Constitution. He took exception to the impleading of respondent No, 1 and submitted that under Article 248 of the Constitution, the Chief Minister was not answerable to any Court for the exercise of powers and performance of functions of his office or for any act done or purported to be done in the exercise of his powers and performance of his functions. He referred to sub-Articles (3), (4) and (5) of Article 10 of the Constitution and stated that the provisions of sub-Articles. (1) and (2) not applicable to any person who is arrested and detained under the preventive laws, therefore, the contentions of the learned counsel for the petitioners that the petitioners were not produced before any Magistrate have no substance. He alleged that it was the moral, Constitutional and legal duty of the District Administration.To keep the law and order situation peaceful and in order, therefore, he in exercise of the said powers had acted in a legal and Constitutional manner and there is no mala fide on his part in issuing the impugned orders. Reliance was placed on PLD 1966 Kar. 282, AIR 1970 SC 269 and 1989 PCr.LJ 685. 5. We have given due considerations to the submissions of the learned counsel for the parties and have gone through the record of the case. 6. We, at the very outset, may observe that assertions made in paragraphs 1 to 4 of the writ petition, being not relevant for the disposal of this case, have been discarded, consequently the question of application of provisions of Article 248 of the Constitution have become redundant. We herein, have to examine and scrutinize the legality and validity or otherwise of the impugned orders on the touchstone of the relevant law and the provisions of the Constitution. The impugned orders have been passed on the basis of the letter of respondent No, 5 which has been filed by respondents Nos. 4 and 5 along with their written statement as Annexure E-1 and is reproduced hereunder: "No, 31003. ST dated Haripur the 19th November, 1994. To ' The District Magistrate, Haripur. ' Subject: Proceedings under the West Pakistan Maintenance of Public Order. Memo. ' The undersigned have been receiving intelligence reports, of late, which reveal that should Mr. Yousaf Ayub MPA and Mr. Nasim Seith, now in jail in various criminal cases, come out of the prison,
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law and order of this District, which has improved considerably since their detention, would be disturbed once again. 2. These intelligence reports further say that these two political personalities in turbulent days of September, 1994 leading up to Wheel-Jam day of 11th October, 1994 acted as pivot in Haripur district round which all agitation politics gyrated and since the day they have been arrested, law and order situation of this District on this score has improved considerably. 3. You will appreciate that because of their activities prejudicial to public safety and on account of their violation of the law of the land, the following criminal cases were instituted against them: (i) F.I.R. No, 768 dated 12-10-1994 under section 16, MPO/148/147/188/124-A, P.P.C. (ii) F.I.R. No, 792 dated 29-10-1994 under section 16, MPO/153-A, P.P.C. ' They were, however, bailed out by the District and Sessions Judge, Haripur in all of them. Bail application of these prisoners is pending decision in F.I.R. 811 dated 9-11-1994 under section 16, MPO, 505, P.P.C. In the Courts and I am afraid if they were bailed out in it also, their release from detention would provide a great security risk from the law and order point of view of this District. ' Copies of various intelligence reports with which I concur alongwith copies of other reports showing the conduct of these two prisoners are also enclosed herewith with the request that urgent proceedings against them be initiated under the relevant provisions of the MPO in the interest of public peace and tranquillity. ' End: Intelligence Diaries. (Sd.) Superintendent of Police, Haripur. ' The aforesaid letter since is .Based on the reports of the intelligence agencies, therefore, it would be appropriate to reproduce them as well which have been annexed as E-2 to E-4:--- 1972-74/AGO HPR E-2 D: 19-11-1994 {{URDU TEXT}} ' The letter would reveal that respondent No, 5 has showed his apprehension that if the petitioners, in consequence to the bail orders, are released from Jail, they would be creating law and order situation in the District and, therefore, it would be in the interest of public peace and tranquillity that they should be proceeded against under the provisions of MPO. The respondent based his apprehensions on the diaries reproduced above. In E-2 it was stated that a shopkeeper had placed a full size portrait of petitioner No, 1 on the roof of his shop in order to gain public sympathies and in E-3 it was stated that the supporters of the petitioners were saying that whenever the petitioners are released, they would see with the Administration. It was apprehended that if they were released from detention the peace and tranquillity in Haripur District would be disturbed and in E-4 it was stated that if the petitioners were released they would again start holding meetings and bringing out the processions. Consequently the District Magistrate/respondent No 4, on the basis of aforesaid material invoked section 3 of West Pakistan Maintenance of Public Order and issued impugned orders directing the police todate in them for a period of one month. The detention orders and the grounds of detention of petitioner No, 1 are given below:--- "OFFICE OF THE DISTRICT MAGISTRATE, HARIPUR ORDER ' Whereas it has been made to appear to me by fresh police and intelligence reports that law and order of this District would be disturbed if Mr. Yousaf Ayub S.O. Mr. Shaukat Ayub Khan was not kept under detention and; ' Whereas after applying my mind to the various intelligence diaries and S.P., Haripur's latest report on the subject I consider it essential to detain Mr. Yousaf Ayub in order to prevent him from acting prejudicial to public safety. ' Now, therefore, I, Syed Mazhar Ali Shah, District Magistrate, Haripur do hereby invoke section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 and direct police to detain him for a period of one month under it from the date of issuance of this Detention Order.
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' Given under my hand and seal of this Court this day 20th November, 1994. ' (Sd.) District, Magistrate, Haripur ' No, 1504/ST dated H.Pur the 20-11-1994. Copy to: ' The Superintendent of Police, Haripur for urgent execution of this detention orde (Four copies of Detention Order enclosed herewith). ' (Grounds of detention would be sent in due course.) ' (Sd.) District Magistrate, Haripur." ' "GROUNDS OF DETENTION ' You Mr. Yousaf Ayub Khan son of Mr. Shaukat Ayub Khan of Haripur (1) Organized/convened public meetings/processions during September and October, 1994, at different places in District Haripur to demonstrate against the Government and delivered emotional/inciting speeches before the gatherings in order to create panic, fear/alarm among the public. You also tried to create ill-feelings amongst the various groups of people. (2) Because of these activities of yours which were prejudicial to public safety/maintenance of public order and which also created feelings of hatred against each other amongst various groups the following criminal cases were registered against you: (a) F.I.R. No, 768 dated 12-10-1994 under section 16, MPO read with section 124-A/147/148/188, P.P.C., Police Station City Haripur; (b) F.I.R. No, 792 dated 29-10-1994 under section 16, MPO read with section 153-A, P.P.C., Police Station City Haripur; and (c) F.I.R. No, 811 dated 9-11-1994 under section 16, MPO read with section 505, P.P.C., Police Station City Haripur. (3) Your past actions/previous conduct and fresh reports/information received clearly indicate that you are likely to act in a manner prejudicial to public safety and that your actions/activities may cause fear/alarm amongst the public. (4) On the basis of above, I am fully satisfied that your designs/activities may cause disturbance, fear/alarm to the public. And I have strong reasons to believe that if immediate preventive steps were not taken, public peace and tranquillity of the area of District Haripur would be disturbed. (5) Therefore, in order to prevent you from acting in a manner prejudicial to public safety, I have invoked section 3 (i) of the West Pakistan Maintenance of Public Order/Ordinance 1960 against you by placing you under detention for a period of one month. (6) You are hereby informed of the above grounds/reasons of detention. You are at liberty to make a representation if you so wish to the Government against the aforesaid order of detention. (Sd.) District Magistrate, Haripur." ' Since the other detention order and the grounds of detention are similar to the above ones word by word with exception of name, therefore, they need not be reproduced. 7. In order to appreciate the legal position of the impugned orders, section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 has to minutely read which reads as under:--- (3) Power to arrest and detain suspected persons. ---(1) 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 to do, may, by an order in writing, direct the arrest and detention in such period as may be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, subject to the other provisions of this section, extend from time to time the period of such detention for a period not exceeding six months at a time.................................... (2) If a District Magistrate or any other servant of Government authority in this behalf by a general or special order of Government, has reasons to believe that any person within his territorial
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jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for order. (3) (a) An order of arrest under subsection (1) may be addressed to a police officer or any other person and such officer or person shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer or the other person as the case may be, shall commit arrested person to such custody as may be prescribed under subsection (7). (4) A police officer not below the rank of Sub-Inspector, if satisfied on receipt of credible information that a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdiction, may arrest him without a warrant in the same manner as he would have done if such order of arrest had been addressed to him, and thereupon commit the arrested person to such custody as may be prescribed under subsection (7); or if he receives any requisition in this behalf from the police officer or other person to whom the warrant, of arrest for the person arrested is addressed, make over the custody of the arrested person to such police officer or other person." ' The prerequisite condition for issuance of an order under the aforesaid section is that the Government has to satisfy itself that a person is likely to act in a manner prejudicial to public safety or maintenance of public order, and then to direct the arrest and detention of that person for a specified period. It implies that satisfaction of the Government with regard to the conduct of the person likely to act in a prejudicial manner, must be objective in nature and not subjective so to allow the executive authorities to act on their own fancies. There must be sufficient material before the authority to act upon it so as to justify passing an order of detention. In this case allegations are that somebody had displayed a fife-size portrait of petitioner No, 1 in order to gain public sympathies and it was apprehended that if they are released from jail they would disturb law and order situation, which appear to be vague allegation for the reason that the petitioners could not be penalised for the acts of others and for the apprehensions of the executive authorities based on indistinct material. Petitioner No, 1 was taken into custody in pursuance to order of District Magistrate under section 3(1) of the MPO dated 8-10-1994 but the same was withdrawn on 16-10- 1994. Thereafter, three cases were registered on different dates with regard to the past transactions. When the Government was of the opinion that petitioner No, 1 is likely to act in a manner prejudicial to public safety, we are at a loss to understand what necessitated the administration and as to why the order dared 8- 10-1994 was withdrawn and the cases were got registered with a delay of 22 to 48 days with regard to the alleged offences committed at earlier dates. In F.I.R. No, 768 dated 12-10-1994, 25 persons, including the petitioners, were charged for taking out procession but strangely enough only petitioners were singled out who were already in Jail. Similarly in F.I.R. No, 811 dated 9-11-1994, 10 speakers were charged for delivering speeches in a meeting of 200/300 people, but except for the petitioners none was proceeded against, which not only reflect the discrimination but also mala fides on the part of the District Administration. The other significant aspect of the case is that the petitioners were never produced before any Magistrate after the registration of cases for obtaining judicial remand as required by sub-Article (2) of Article 10 of the Constitution and section 61 of Criminal Procedure Code, which rendered their confinement illegal. After the grant of bail to the petitioners in all the cases, they were not released but the impugned detention orders were passed basing the same on the letter of S.S.P. And the dairies reproduced above which at the most speak of the usual political activities of political workers. 8. Almost similar proposition of law like the one in hand came up for determination before the Supreme Court in the following cases:
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' In the case of Malik Ghulam Jilani v. The Government of West Pakistan (PLD 1967 SC 373) the Supreme Court of Pakistan while dealing with section 3(2) (x) of the Defence of Pakistan Ordinance (XXII of 1965) read with Defence of Pakistan Rules 32 and 204, observed as follows:--- "For the making of an order of detention of any person, it is necessary that the detaining authority should be satisfied in relation to such person, that it is necessary to make such an order for the purpose of preventing him from acting in a prejudicial manner, e.g, acting so as to disturb the public order. There must be in the mind of the detaining authority a belief that the person in question is either about to act or is likely to act in the aforesaid manner; only so can the word "satisfied" be construed preventive action is called for only by imminent and real necessity under this rule. ' Reading clause (x) according to the tenor of its language, and bearing in mind that it makes legal provision for restraint upon personal liberty which is fundamental right of citizens in Pakistan, the conclusion that appears unavoidable is that to gain protection for any action thereunder, the existence of reasonable grounds is essential and a mere declaration of satisfaction is not sufficient Public power is now exercised in Pakistan under the Constitution of 1962, of which Article 2 requires that every citizen shall be dealt with strictly in accordance with law of then rule 32 owes its wires to section 3(2) (x), it must follow that by the use of the words 'reasonable grounds' clause (x) has unmistakably imported into this rule, controlling the exercise of public power, the requirement that to gain the protection of the rule for its action thereunder, the authority should be prepared to satisfy the Courts, to which the subject is entitled to have resort for determination of the question whether he has been treated in accordance with law,…
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