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Petitioner: BAHAR KHAN VS Respondent: INSPECTORGENERAL, FRONTIER CORPS AT QUETTA AND 3 JUDGMENT
Court Name: Balochistan High Court Judge(s): Ajmal Mian, Amir-ul-Mulk Mengal Title:BAHAR KHAN vs INSPECTORGENERAL, FRONTIER CORPS AT QUETTA AND 3
JUDGMENT
Reported As: PLD 1987 Quetta 13 Result: Petition dismissed Judgment JUDGMENT AJMAL MIAN, C. J.-By this common judgment we intend to dispose of the above two petition's as they involve common points of facts and law. The brief facts leading to the filing of the above petitions are that on 13th September , 1986 Malitia staff at Shelabag h Top, which is hardly few miles from the border Town Chaman stopped a bus at night about 10-00 p.m. Upon checking, they found that 21 members from the Marri tribe who are residents of Marriabad, Quetta and are detenus covered by Constitutional Petition No, 107 of 1986 (hereinafter referred to as the first petition) alongwith their families and Mehboob by caste Achakzai, resid ent of Chaman, were heading towards Chaman. They were handed over by the Malitia to the Assistant Commissioner , Chaman. He released the women and children on 14th September , 1986, but did not release the detenus. A relative of the detenus filed the first petition on 20th September , 1986 challenge their arrest on the ground that the action had been taken on the direction of the Home Secretary , Government of Baluchistan, in order to harass and torture the detenus and indirectly pressurize the Marri tribe with ulterior , mala fide and political motives. The petition came up for Katcha Peshi on 21st September , 1986 when a Division Bench of this Court ordered notice to the learned Advocate- General for the following day. On the following day, Mr. Yaqub Khan Yousufzai, learned Advocate-General submitted that the detenus were detained under the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as the 'Ordinance'). Upon the above statement, the petition was admitted to regular hearing. After that, the petitioner filed an amendment application, which was allowed on 1st October , 1986. Consequently , an amended petition was filed, whereby the detention orders dated 17th September , 1986 (hereinafter referred to as the 'first detention order') passed by the District Magistrate, Pishin under section 3(1) of the Ordinance for a period of 30 days from the date of their arrest were assailed, inter alia, for the reason that no grounds for arrest were furnished. In the meantime, Mehboob, the detenu in Constitutional Petition No, 120 of 1986 filed the latter writ
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petition (hereinafter referred to as the 'second petition') on 4th October , 1986 for impugning the first detention order , which was admitted for regular hearing on 6th October , 1986. After that; both petitions were taken up together . We heard part of the arguments on 14th October, 1.986 and on the above date directed the learned Advocate- General to make available the intelligence reports and the other record, on the basis of which, the impugned orders were passed. It may be stated that on the above date, learned Advocate-General also placed on record fresh detention orders all, dated 12th October, 1986 (hereinafter referred to as the "second detention orders") passed by the Provincial Home Secretary, Government of Baluchistan under section 3(1) of the Ordinance for a period of two months from 13th October, 1986 on the following grounds :- "Grounds of arrest.-The above named Pakistan national has been detained in the interest of security and territorial integrity of Pakistan." In Constitutional Petition No, 107 of 1986, the official respondent No, 2 filed comments prior to the passing of the second detention order, dated 12th October, 1986, in which, the following averments were made :- "The comments of this Department in respect of above-cited petition are submitted below , as under :- Twenty-two Marri families with their kith and kin and luggage's were moving towards Chaman with a view to crossing the border. The intelligence source revealed that these Marris would subsequently joined the anti- Government elements of the same tribe which is in Afghanistan. There is no local Marri of Afghan origin in Afghanistan and all the Marris who are at Lashkar Gah (Qandhar) are supporting the Afghan regime against Pakistan. It is for this reasons that these Marris were detained for interrogation for the satisfaction of the Government. (2) The plea taken by the Marris that they were going to Chaman for `Mazari weaving' is not plausible because there is no `Mazarr in Chaman and surrounding areas. The women and the childre n of these 22 Marris have been set free and they are at Quetta. The Government have been moved for their subsistence allowance. 3. A photo copy of Detention Order No, 1/83-MPO/AB, dated 17-9.1986 issued by the District Magistrate, Pishin under MPO-3, 1960 was served upon these 22 Marris on 18-9-1986 and their signatures obtained through the Assistant Commissioner Chaman, which can be perused as Annexures 'A' and 'B'. (4) In view of the above submissions, the petition mentioned as subject be dismissed. (SO (AGHA AMAN SHAH), Secretary Home, Government of Baluchistan, Home & Tribal Affairs Department." Whereas, in Constitutional Petition No, 120 of 1986, the comments were filed after the passing of the second detention order, dated 12th October, 1986, which reads as follows :- "The comments of this Department in respect of above-cited petition are submitted below , as under :- (2) Mehboob son of Haji Nada Muhammad caste Achakzai resident of Chaman was the leader of gang of 21 Marri families who were moving towards Chaman with their kith and kin and luggage with a view to crossing the border . The intelligence sources revealed that the said Mehboob and these 21 Marris would subsequently joined the anti- Government elements of the same tribe which is in Afghanistan. It is for this reason that these 22 persons were detained for interrogation for the satisfaction of the Government. (3) The plea taken by the petitioner Mehboob son of Haji Nada Muhammad that he was going to Chaman alongwith other passengers of the bus (Marris) is not plausible. (4) A photo copy of Detention Order No, 1/83-MPO/AB, dated 17-9-1986 issued by the District Magistrate, Pishin under MPO-3, 1910 was served upon Mr. Mehboob and others 21, Marris on 18-9-1986 and their signatures obtained through the Assistant 'Commissioner , Chaman which can be perused as Annexures 'A' and 'Ir. The detention order of the petitioner has been further extended for a period of two months by the Government of Baluchistan, Home and Tribal Affairs Deptt: vide Order No, H. POL. 10(150)/86, dated 12-10-1986, copy enclosed as Annexure 'C'. (5) In view of the above submissions, the petition mentioned as subject be dismissed. (Sd.) (AGHA AMAN. SHAH), Secretary , Government of Baluchistan Home & Tribal Affairs Department."
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2. Learned Advocate-General had placed before us the original secret record containing the intelligence reports and the communications of the Government of Pakistan, Ministry of Interior pertaining to the activities of Marri hostilities, to the Provincial Home Secretary during the period from January , 1986 to 5th October , 1986 and after the conclusion of the arguments, he has furnished the photostat copies of the same which we have returned after putting initials thereon. 3. During hearing of the arguments on 19th October , 1986, we asked the learned counsel for the parties also to address us on the points noticed in the Court diary , dated 19th October , 1986, which reads as follows :-- "We have heard learned counsel for the petitioner as well as learned A.-G., we would like to be satisfied on the question, whether under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, a person can be detained for interrogation to find out, whether factually he has joined hands with anti-Pakistan elements in Afghanistan and further . If factually the detenus were illegally crossing the Afghan Border , whether they could have been charge with under the appropriate law or they could have been detained under the Maintenance Ordinance. The learned counsel for the parties request for time to bring case law on the above points. By consent adjourned to 20-10-1986." 4. In support of the above petitions, Mr. Khalid Malik, learned counsel for the detenus in the first petition has urged as follows ;- (i) That since no grounds for the first detention orders were furnished within time (which were furnished on 8-10- 1986), the detention was illegal; (ii) That as the first detention orders were illegal, the second detention orders were also illegal; (iii) That the Provincial Government could not have passed the second detention orders without having a reference from the District Magistrate under subsection (2) of section 3 of the Ordinance and as there was no reference, the detention orders are illegal; (iv) That the grounds given in the first and second detention orders are vague; (v) That the above grounds given in the second detention orders are beyond the scope of section 3 of the Ordinance, as the respondent No, 2 could have charged the detenus under the Emigration Ordinance, 1979, if factually they were illegally migrating from Pakistan to Afghanistan. (vi) That the detenus cannot be detained for interrogation ; and (vii) That the official respondent failed to place on record sufficient material against the detenus, as to warrant their detention under the Ordinance. Mr. Ayyaz Zahoor, learned counsel appearing for the detenu in the second petition has adopted the arguments of Mr., Khalid Malik and has further submitted that there is nothing on record to indicate that the detenu in the second writ petition was the leader of Marri detenus and was arranging their illegal migration to Afghanistan. He has further submitted that the detenu in the second writ petition being the resident of Chaman, was going from Quetta to his native place and by 'doing so, he has not committed any illegal act. 5. Mr . Yaqub Khan Yousufzai, learned Advocate-General has contended as under :- (i) That the material shown to this Court clearly demonstrate that the orders pass ed by the respondent No, 2 are bona fide orders; (ii) That since the second detention orders are holding the field, the irregularity or illegality in respect of the first detention orders, is not relevant; (iii) That mere fact that the respondent No, 2 could have charged the detenus under the Emigration Ordinance, 1979, does not render the detention orders as illegal; and (iv) That since the integrity and security of Pakistan are involved, this Court will not America,, the discretionary writ jurisdiction. 6. Before dilating upon the above contentions of the learned counsel for the parties, it may be observed that though the petitioners in both the petitions have not amended the petitions in order to impu gn the second detention orders, but we have allowed both the parties to argue the petitions on the assumption that the above second detention orders are also the subject-matter of the above petitions, in order to avoid delay .
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7. In our view, it is not necessary to examine legality of the first detention orders, as the second detention orders are holding the field, which are in fact fresh detention orders though purported to be in continuation of the first detention orders. In this regard, reference may be mad to the case of Mumtaz Ali Bhutto and another v. The Deputy Marshal La Administrator and another (1), referred to herein below , inter alia in para. 1 (ii). A reference may also be made to the judgment of a Division Bench of the erstwhile High Court of Sind and Baluchistan comprising of Khuda Bakhsh Marri and Zaffar Hussain Mirza, JJ., in the case of Masood Ahmed v. The Government of Sind, through Secretary , Home Department, Karachi and another (2), wherein the following observations were made at page 314 :- "We are of the opinion that the rule laid down in this case is fully attracted in the instant case, because we are concerned with the legality or otherwise of the detention of the detenu at the time of the return of the writ of this Court and if the respondent can show that the present detention of the detenu is covered by a valid order of detention, the previous illegal detention would be immaterial." We are also inclined to hold that merely the fact that the first detention orders might be illegal, would not render the second detention B orders as illegal, if they are otherwise in accordance with law. In this view of the matter, it is not necessary to refer in detail the cases of Hakim Khan v. Government of Sind through the Home Secretary, Karachi and another (3), Mst. Maqbool Begum v. Distrtct Magistrate, Hyderabad and another (4) and Muhammad Khan v. State through Deputy Commissioner, Nasirabad at Dera Murad Jamali and 2 others (5), cited by Mr. Khalid Malik, learned counsel for the detenus in the first petition, in which, it has been held that non- furnishing of the grounds of detention or delay in furnishing of the same, would vitiate the order of detention. 8. This lead us to the third submission of Mr. Khalid Malik, namely , that the Provincial Government could not have passed the second detention orders without receiving a reference from the District Magistrate, Pishin, it may be observed that he has referred to subsection (2) of section 3 of the Ordinance, which provides that "if a District Magistrate or any other servant of Government authorised in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted is actin,; or is about to act in a manner prejudicial to public safet y or the maintenance of public order , he shall forthwith refer the matter to Government for orders". He has also referred to the case of Liaquat Ali v. Govern ment of Sind through Secretary , Home Department and another (6), in furtherance of the above argument, in which, a Division Bench of the erstwhile High Court of Sind and {{FOOT NOTE}} (1) PLD 1979 Kar . 125 (2) PLD 1976 Kar . 311 (3) PLD 1976 Kar . 448 (4) 1982 CLC 200 (5) PLD 1985 Quetta 217 (6) PLD 1973 Kar . 78 {{FOOT NOTE}} Baluchistan, inter alia held that in spite of the delegation of power under section 26 of the Ordinance, a District Magistrate was not competent to pass an order of detention without making reference to the provincial Government and a distinction was made between the act of arrest and the order of detention. In our view, the above case does not support the petitioners as in the present case, the second detention orders have been passed by the Provincial Government under subsection (1) of section 3 of the Ordinance. The mere fact that the Provincial Government has delegated the power to the District Magistrates under section 26 of the Ordinance for exercising power under subsection (1) of section 3c thereof, would not divest the Provincial Government from its power to pass an order. In other words, the Provincial Government has not been denuded of its power by delegation. In this regard, reference may be made to the case of Mst. Nasim Fatima v. Government of West Pakistan and another (I) in which, a Full Bench comprising of three learned Judges of the erstwhile High Court of West Pakistan while construing rule 32(1)(b) of the Defence of Pakistan Rules and Rules of Business of West Pakistan Government, inter alia, held that the Provincial Government was not denuded of its powers by delegation to the Deputy Commissioners. Furthermore, a learned Single Judge of the Lahore High Court in the case of Muhammad Ashraf v. Provincial Government of Punjab and 3 others (2) dissented from the above D. B. Judgment of the erstwhile High Court of Sind and Baluchistan, reported in PLD 1973 Kar. 78, and relied upon
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the cases of Malik Ghulam Jilani v. The Government of West Pakistan, through the Home Secretary, Lahore and another (3) and Noor Muhammad v. The District Magistrate, Multan (4). 9. As regards the submission of Mr. Khalid Malik, learned counsel for the petitioner in the first petition, that the grounds given in the second detention orders reproduced hereinabove in para. 1, are vague, it may be observed that he has referred to the following cases :- (i)Malik Sohrab Khan v. The District Magistrate Rawalpindi and 2 others PLD 1974 Lah. 214, in which, Karam Elahee Chauhan, J. Of the Lahore High Court (as his Lordship then was) while construing section 3 of the Ordinance held that the true test for exam ining, whether the grounds furnished to the detenu held under Preventive law, are proper or not is to find out, whether he could on those grounds make ef fective representation. (ii) Muhammad Anwar Sheikh v . District Magistrate, Rawalpindi PLD 1975 Lah. 414. In the above case, the same learne d Judge of the Lahore High Court while construing section 3(6) of the Ordinance held that "since the detention order was narratory in character and does not contain particulars or details, or any specific instance of imputed conduct and, therefore, the same were vague." (iii) Nek Amal v . Political Agent, Malakand and another PLD 1975 Pesh. 67. In the above case, a Division Bench of the Peshawar High Court, inter alia, held that "order merely mentioning that detenu had delivered- an inflamatory speech without disclosing place And occasion, was in conflict with Article 10(5) of the Constitution." {{FOOT NOTE}} (1) PLD 1967 Lah. 103 (2) PLD 1978 Lah. 214 (3) PLD 1967 SC 373 (4) PLD 1976 Lah. 233 {{FOOT NOTE}} (iv) Begum Nusrat Bhutto v. Deputy Martial Law Administrator , etc. PLD 1979 Lah. 91, in which, a learned Single Judge of the Lahore High Court held that before passing any detention order under C. M. L.A's. Order 12 of 1977, there should exist grounds for detention and which must be positive and specific. Mr. Ayyaz Zahoor, learned counsel for the detenu in Constitutional Petition No, 120 of 1986, has referred to the following cases :- (i) Muhammad Younus v. Province of Sind through the Secretary to the Government of Sind, Home Department, Sind Secretariat, Karachi and 2 others PLD 1973 Kar. 694, in which, a Division Bench of the erstwhile High Court of Sind and Baluchistan enunciated succinctly the principles governing the detention order and the scope of jurisdiction of the Court and, inter alia, held that vague grounds would vitiate the detention order . (ii) Muhammad Ajmal Khan v . The District Magistrate, L yallpur and 4 others PLD 1977 Lah. 20. In the above case, a Division Bench of the Lahore High Court reiterated the test for ascertaining, whether the grounds are vague or not, enunciated in the above case of Malik Sohrab Khan v. The District Magistrate, Rawalpindi and 2 others PLD 1974 Lab. 214. 10. There cannot be any cavil -to the propositions propounded in, the above-cited cases that in case, the grounds are vague, the detention)" order cannot be sustained. The question, therefore, for determination is, whether the grounds furnished in the second deten tion orders reproduced hereinabove, are vague or not. It has been contended by the learned counsel for the petitioner that though in the grounds, it has been stated that the detenu is detained in the interest of security and territorial integrity of Pakistan, but no particulars have been given, which warrant the detention. In this regard, it may be pertinent to point out that responde nt No, 2 had filed comments in the second petition within a few days from the date of passing the second detention orders, which give the detail of the facts, on which, the above grounds were based, which were contested by the learned counsel for the petitioners in both the petitions. It may also be stated that under sub-clause (5) of Article 10 of Part II of the Constitution of Islamic Republic of Pakistan, 1973, the detaining authority is obliged to furnish the arounds of detention, on which the order has been made, with-it 15 days in order to afford an opportunity to the detenu to make a representation against the order . However , under proviso to the above sub-clause, it has been provided that the authority making any such order , may refuse to disclose the facts, the disclosure of which such authority
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considers it to he against the public interest. In the instant case, the official respondents have refused to disclose the materials, which contain facts to the detenus under the above proviso, but have placed the record containing secret reports and communications from the Federal Government to them. Provincial Government, which E indicate that lately some of the tribal leaders belonging, inter alia, to Marri tribe, stationed in Afghanistan crossed over to Pakistan in order to re-activate anti-State activities in Pakistan and also to indulge in sabotage activities. With that object, they have established certain camps across the border of Afghanistan. The case of the official respondents is that 21 Marri with their families were escorted by Mehboob Achakzai, a Pathan, resident of Chaman (who apparently is conversant with the border between Pakistan and Afghani stan), with the object to cross Pakistani border and to join the hands of the above anti-Pakistan elements in Afghanistan, whereas the version of the Marri detenus is, that they were going to Chaman from Quetta for getting jobs, as weavers of `Mazari' in Chaman, i,e, weaving of various articles by using mat; etc. (e. We have examined the above two versions in juxtaposition and it seems to us that the respondent No, 2's averment that no mazare work is done in Chaman seems to be correct. The detenus have failed to give any particulars as to the place where they would have worked in Chaman or where they would have lived with their families. From the record placed before us by respondent No, 2, it appears that some of the Marris with their families illegally have crossed over into Afghanistan' and have been indulging in anti-Pakistan activities. The question, therefore, in issue is, whether the fact that the 21 Marri with their kith and kin were caught at about 10-00 p.m. At night at a place close to border of Afghanistan where they normally are not expected to be present, was sufficient to warrant the formation of the view by the Home Secretary that they were in fact going to cross over the border and enter into Afghanistan with a view to join the hands of anti-Pakistan elements. In our view, on the basis of the material placed before us, a reasonable honest man could form the view, which has been formed by the Home Secretary , though we might have taken a different view on the basis of the same material. We have given our serious thoughts and we are unable to find any plausible reason for 21 Marris with their families to leave Quetta town and to go to Chaman. Generally , the people from rural and mountain areas come to big towns for jobs and the people from Quetta would not go for job in Chaman, particularly when the local population is Pathan, whereas the Marris are Baluchis. Mr. Yaqub Khan Yousufzai, learned Advocate-General has referred to the following cases in support of his contention that the action taken by the Home Secretary is bona fide :- (i) Mairaj, Muhammad Khan v . Government of W est Pakistan and another PLD 1966 Kar . 282. In the above case, a Division Bench of the erstwhile High Court of Sind and Baluchistan held that mere circumstance that detention order was passed after the detenu was admitted to bail in a separate criminal case, was not sufficient to hold such an order as being mala fide. It was further held that two actions, preventive and punitive, are not mutually exclusive and resort can be had to either or both, depending on the choice of the executive authority . (ii) Mumtaz Ali Bhutto and another v. The Deputy Martial Law Administrator and another PLD 1979 Kar. 125, in which, a Division Bench of the Sind High Court comprising of one of us (Justice Ajmal Mian) and Mr. Justice Fakhruddin G. Ebrahim, who delivered the judgment, inter alia, observed as follows at page 144 :- (iii) "As tersely put in Abdul Baqi Baloch's ease the Court should examine the grounds of detention to test the reasonableness and while doing so the Court does not substitute its own opinion for the opinion of the authority concerned. It will follow , therefore. That the Court is not concerned with the truth or otherwise of the material unless of course the record itself demonstrates its falsity but then the detention will not be set aside because of this falsity but that no reasonable man could found the order on such material. If the material before the detaining authority was adequate and relevant Court will not interfere. It may as well be that the Court may be inclined to take another view of the material but if the view taken by the detaining authority is also possib le and has been taken after an honest application of mind there will be no room for…
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