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Petitioner: FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad VS Respondent: Mrs. AMATUL JALIL KHAWAJA and others
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Faqir Muhammad Khokhar Title:FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad
vs Mrs. AMATUL JALIL KHAWAJA and others Case No.: Civil Petition No,475-L of 2003 Date of Judgment:2003-03-03 Reported As: PLD 2003 Supreme Court 442 Result: Petition dismissed Judgment ORDER 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
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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.
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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
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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
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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.
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ORDER 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
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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,…
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