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Petitioner: Hafiz MUHAMMAD SAEED and 3 others VS Respondent: GOVERNMENT OF THE PUNJAB, JUDGMENT
Court Name: Lahore High Court Judge(s): Ijaz Ahmad Chaudhry, Hasnat Ahmad Khan, Zubda-tul-Hussain Title:Hafiz MUHAMMAD SAEED and 3 others vs GOVERNMENT OF THE PUNJAB,
JUDGMENT
Reported As: 2009 YLR 2475 Result: Petition allowed Judgment JUDGMENT ' IJAZ AHMAD CHAUDHRY, J.---This petition has been filed on 4-4-2009 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calling in question the detention of the petitioners, namely, (1) Hafiz Muhammad Saeed, (2) Colonel (Retd.) Nazeer Ahmad, (3) Mufti Abdur Rehman and (4) Ameer Hamza, initially made by the respective DCOs, Lahore, Khanewal and Rawalpindi on 12-12-2008 and 13-12-2008 and then renewed by the Secretary, Home Department, Government of Punjab, Lahore on 9-1-2009 for further 60 days. Thereafter, the said order was extended by the Review Board for another period of 60 days, which was communicated, vide letter dated 9th March, 2009. 2.. The precise facts as mentioned in this petition ire that the petitioners belong to Jamat-ud-Dawa Organization having no nexus with Lashkar-e-Tayyaba and the detention of the petitioners relying upon the resolution of UNO was illegal and unlawful as the petitioners or their Organization are not involved in terrorist activities, but they arc only working for the welfare of the people like "Eidhi", but more than that they arc also educating the poor and needy people. This petition came up for hearing before the single Bench on 6-4-2009, when the writ petition was admitted for regular hearing and the respondents were directed to file the written statement. In the comments filed by the respondents it has been specially alleged that the detention order against the petitioners has been passed in compliance of the UNO Resolution. On 4-5-2009, the case was referred to the Honourable Chief Justice for constitution of the larger Bench and from 1-6-2009, we started with the hearing of this writ petition, which has been originally filed in the shape of habeas corpus.
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3. The main contention of the learned counsel for the petitioners is that the basic order for the detention of the petitioners was illegal and the subsequent orders cannot supplement the same; that Pakistan is an Islamic State and its Constitution is also based on the Injunctions of Quran and Sunnah; that it is the basic principle of law that no one should be condemned unheard and any order or action taken against the principle of natural justice cannot be sustained in the eyes of law; that the liberty of the person cannot be curtailed merely on suspicion and false reports, but there should be some reasonable and strong evidence to supplement the same; that it was not required by the UNO Resolution to arrest the petitioners and detain them and against the said "Resolution" the petitioners have already filed an appeal in the International. Forum, but instead that the petitioners could follow up the same for releasing of the restrictions imposed upon them, the government has detained them without there being any evidence against the petitioners, and they are not being treated in accordance with law, which is the basic principle; that when the foundation is bad, the superstructure laid thereon will automatically fall on the ground; that the Review Board at the most is a recommendatory body, which only reports and the same cannot be considered to be a judicial verdict, but at the most it is an executive order as no Advocate is allowed to be engaged by the detainee for pleading his case; that on the other hand in the Europe even during the investigation the lawyer is provided to the accused; that the petitioners cannot be detained only to please the Indian Lobby on the false propaganda that they are involved in Mombai attacks, which is a bald allegation being raised by them only to conceal their security lapses; that this Court is not functioning as an appellate Court of the Review Board, which is constituted on the executive side, but this Court has to take the judicial notice of the material possessed by the Government and the petitioners will have a right to rebut the same, which they could not do on the executive side where it is the government, which makes the reference at the back of the detainee and the material being used against them is not shown to them; that in the present case even the grounds of allegations were not supplied to the petitioners within 15 days as required by law, which would show that the petitioners were completely ignorant for the reasons about their arrest and they could not have recourse to law; that for the first time the petitioners were provided grounds of allegations on 9-3-2009, when they were produced before the Review Board and a perusal thereof would show that the government had no such material to maintain their detention; that the petitioners cannot be deprived of their liberty at the choice and wishes of others without any material; that the orders of the executive authorities are always amenable before the courts; that it is first question .Of law that an accused is presumed to be innocent unless he is proved to be guilty by the Court of law on the basis of the evidence and the material collected during the investigation is even not read until the same is proved; that here the petitioners have been detained on flimsy grounds, which orders of the executive authorities are not sustainable in the eyes of law and may be set aside. Relies upon certain case-law, which will be discussed in the latter part of the judgment. Also contends that originally six persons were detained by the government on the same allegations out of whom four have already been released considering no material against them and the case of the petitioners being at par with the earlier released detenus, the petitioners are also entitled to the same treatment. 4. On the other hand, the leamed Attorney General of Pakistan has contended that they are bound by the UNO Resolution and while living in this global world they cannot shut the eyes when every one is having finger towards them and war has been started in the country; that not only the UNO Resolution, but the Federal Government is in possession of certain other confidential material and likewise the Punjab Government has also the same in its possession, which can be shared with this Court in chamber as these documents cannot be shown publicly; that the said material was placed before the Review Board consisting of three senior Judges of this Court, who after considering the same have extended the detention period of the petitioners and this writ petition is
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not maintainable as on the one hand their detention cannot be declared illegal and on the other hand no writ can be issued by the Court against its members. On the request of the learned Attorney General and the learned Advocate-General, the documents have been seen by us in the chamber although it was seriously objected by learned counsel for the petitioners that the petitioners are not present in the Court and unless they are confronted with the said material, they cannot be accused due to the same. However, it was agreed that unless the said documents are seen by us, it cannot be held that whether these documents are privileged documents and these can be made publicized or not. As such in camera proceedings were conducted in the chamber and the material was perused. 5. The learned Attomey General has contended that the material has been provided by the International Organizations and although the ' Govemment does not agree with the same, but according to the same the petitioners are being blamed for Mombai attacks and they have links with Al-Qaida, which is a militant Organization and keeping in view the prevailing circumstances in the country the detention of the petitioners under the preventive laws for security purposes is quite justified; that in the changed circumstances the previous case law cannot be taken notice and even otherwise each case has to be dealt with on its own merits and in this case for security purposes it is better for the petitioners to detain them. 6. The learned Advocate-General has also challenged the maintainability of the writ petition on the same line of the learned Attorney General. It has been conceded that the grounds of allegations for the first time were provided to the petitioners on 9-3-2009, but this could not materially affect the case of the petitioners as the Review Board having considered all the material against the petitioners has twicb extended the detention of the petitioners and four persons have already been released by the orders of the Review Board, which would show that the members of the Board have acted independently and their decision is not amenable to writ jurisdiction as no writ can be issued against its members by this Court; that the detaining authority is even otherwise authorized for refusal to disclose the allegations to the detainee considering it to be against the public interest to disclose and in this case the material against the petitioners is of such nature which cannot be publicized and for this reason the detention order cannot be set aside. 7. In rebuttal the learned counsel for the petitioners contends that it is a habeas corpus petition, which is not against the order of the Review Board, but it challenges the vires of the executive actions for detaining the petitioners under the garb of preventive measures; that there is no evidence against the petitioners that they are security risk and their detention is illegal and unlawful, who cannot be deprived of their liberty in the absence of any solid material against them; that no writ is sought to be issued against the members of this Court, but it is against the orders of the executive authorities, which were issued in cyclostyle and the petitioners have been deprived of their right to defend them in the International Forufti, which has a double standard, and the people of this country are being treated in a different manner; that unless the petitioners are confronted with the material against them and allowed opportunity to defend the same, they cannot be detained, hence, they are entitled to be released by allowing this writ petition. 8. We have heard the arguments of learned counsel for the parties and gone through the case-law minutely as well as the other documents relied upon by the learned counsel for the parties during the arguments with their able assistance. 9. At the very oqtset it was informed that petitioners Nos.3 and 4 have already been released and to their extent this writ petition is disposed of having become fructified. Now this petition only remains to the extent of petitioners Nos. 1 and 2. The first, preliminary objection has been raised by the learned Attorney General and the learned Advocate-General Punjab that as the Review Board has already extended the detention of the petitioners twice, now the writ petition is not maintainable which should be dismissed as three Honourable Judges of this Court are members of
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the Review Board and no writ can be issued by this Court against its Judges. Learned Attorney General has relied upon Ibrar Hassan's case PLD 1976 SC 315 in support of his contention wherein three sitting Judges were members of the board and they had scrutinized the grounds which were found germane and they had regulated the proceedings. It is also contended by the learned Attorney General that according to the majority view which is at page 321 of the judgment, writ cannot be issued against a Judge and finding of the High Court, and order of the three Judges may be whatsoever judicious cannot be overlooked by the three Judges of this Court while exercising the writ jurisdiction. We have considered this preliminary objection and found that it has been rightly pointed out by the learned counsel for the petitioners that Ibrar Hussain's case (supra) has been overruled by the august Supreme Court of Pakistan in a judgment titled as Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161* relevant portion is at page 279 paragraph No,75, which is reproduced as under:- "It is, therefore, quite clear that there was unanimity in the view of all the four learned Members of Bench in Abrar Hassan's case that the appointment of a Judge of superior Court could be brought under challenge before "a Court. ' Howeyer, there was divergence of opinion on the question of nature of proceedings which could be filed to challenge such appointment. Muhammad Yaqub Ali, C.J. And Anwarul Haq, J. Were of the view that a direct proceedings to challenge the appointment of a Judge of superior Court under Article 199 of the Constitution would be barred in view of the provision of clause (5) of Article 199, and therefore, such an appointment could only be challenged collaterally in a properly filed proceedings. The other two learned Members of the Bench Salahuddin Ahmad and Muhammad Gul, JJ. On the contrary held the view that such appointment could be challenged directly only through a petition under Article 199(l)(b)(ii) of the Constitution and not collaterally in other proceedings. This divergence of opinion amongst the learned Judges of the Bench in Abrar Hassan's case was the result of different interpretation of clause (5) of the Article 199 of the Constitution by them. Muhammad Yaqub Ali, C.J. And Anwarul Haq, J. Held that the Judge and High Court are synonymous and interchangeable, and therefore, issue of a writ to a Judge would amount to issuance of writ to High Court which is prohibited by Article 199(5) of the Constitution. The other two learned Members of the Bench, Slahuddin Ahmed and Muhammad Gull, JJ. While disagreeing with the above interpretation, held that a Judge and the Court are not always synonymous. According to them the Judge is properly identified with the Court when it does something in exercise of the jurisdiction vested in it as a Court. Otherwise, its personal identity remains distinct from the Court. The point has been aptly illustrated by the learned Judges (Salahuddin Ahmad, J. And Muhammad Gul, J. By citing an example where the Judge unlawfully confines his domestic servant at his house and when he convicts and sentences him to jail in a case brought before him as a Judge of the Court. In the former case, the action of the Judge will be amendable to the jurisdiction of High Court under Article 199 ibid. Once again there appears to be unanimity in the view of all the learned four Members of the Bench in Abrar Hassan's case, that Judge of a superior Court in his personal and individual capacity is not immune from the process of Court under Article 199 of the Constitution and that this immunity extends only to the acts and orders passed as a Judge of the Court or a member of the Court." ' "With greatest respect, we may point out that the judgments delivered by a Judge or group of Judges are the functions which identify the Judge or Judges with the Court and therefore, to that extent the bar contained in clause (5) of Article 199 of the Constitution is fully attracted. The conclusions of Salahuddin Ahmed and Muhammad Gul, JJ. In Abrar Hassan's case, supra, were also not different. What these two leamed Members of the Bench (Salahuddin Ahmed and Muhammad Gul, JJ.) in Abrar Hassan's case said was, that while the orders passed by a Judge in
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exercise of the jurisdiction of the Court cannot be called in question under Article 199 of the Consitution, the acts of a Judge performed in his personal capacity did not enjoy this protection. The difference between Judge acting as a Court and a Judge acting in his personal and individual capacity is not only real but is necessary to preserve, otherwise a Judge will not be answerable for wrong done by him in his individual capacity. It may be pointed out that by accepting the office of a Judge, a person does not lose his individual identity as an ordinary citizen. Therefore, while action taken or orders passed by him in the former capacity as a Judge of the Court cannot be brought under challenge, under Article 199 of the Constitution, his action as an ordinary individual will be subject to ordinary law of the land including Article 199 of the Constitution. In this view of the matter, in our humble opinion, the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. In Abrar Hassan's case in respect of the maintainability of a petition seeking information in the nature of quo warranto against a Judge of superior Court seems to be more rational, practical and nearer to the spirit of the provision of the Constitution. A petitioner in a petition filed against a Judge of the superior Court seeking information in the nature of quo warranto, does % not challenge any action or order of a Judge passed in his capacity as a Judge of the Court or a member of the Court. The qualification to hold the office of a Judge is personal to the individual and has nothing to do with his performance - of duty as a Court or member of . The Court. The qualifications for appointment of Judges of the superior Court are laid down meticulously in the Constitution. To possess the qualifications prescribed under the Constitution is a sine qua non for an individual to hold the office of a Judge of superior Court. Therefore, when the appointment of a Judge of superior Court is challenged on the ground that he did not possess the qualification prescribed by the Constitution, the relator is not asking the Court to strike down any of his actions which he has performed or is performing as a Judge of the superior Court but asks for examination of his personal qualification to be entitled to hold the office of the Judge of superior Court. Such an exercise, in our humble opinion, does not fall within the mischief of the provision of Article 199(5) of the Constitution. We are, therefore, in no doubt that a petition seeking information in the nature of quo warranto lies against the Judge of a superior Court under Article 199 of the Constitution. We are further of the view that such an attack on the validity of the appointment of a Judge of a Superior Court through collateral proceeding is not a proper remedy as firstly, such occasion may or may not arise and secondly, when the appointment of a Judge is attacked collaterally in a proceeding arising from his order, he is not necessarily arrayed as a respondent in the Court and therefore, he cannot be called upon to justify his appointment. It is also to be noted that in a collateral attack, on the validity of the appointment of Judge, the proceedings are directed against the order passed by him and validity of his appointment is only challenged through a side wind, which is possible only, if the order passed by the Judge is subject to appeal, revision, review or other proceedings before a higher forum. Therefore, if the law does not permit any appeal or other proceedings against the order passed by a Judge, the occasion to challenge the validity of his appointment in collateral proceedings may not arise at all. For this reason too, we are in respectful agreement with the view expressed by Salahuddin Ahmed and Muhammad Gul, JJ. In Abrar Hassan's case that a petition against the Judge of a superior Court seeking information in the nature of quo warranto is maintainable under Article 199 of the Constitution. This view is more rational and has the effect of advancing the remedy and suppressing the mischief." ' Page 287 paragraph No,79. "Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No,2 also heavily relied on the observations of Cornelius, C.J., Yaqub Ali, C.J. And Abdul Kadir Shaikh, J. In Jamal Shah, Abrar Hassan and Muhammad Akram Shaikh's cases (supra) respectively, to contend that if the principle that a Judge of superior Court cannot issue a writ to another Judge of the same Court under Article 199 of the Constitution is not strictly adhered to, it will effect and destroy the traditional comity
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existing between the Judges of superior Courts is neither a rule of law nor a Constitutional requirement. It is only a highly desirable tradition which has existed for long and should continue to be followed by the Judges to maintain harmony and smooth working of the Courts anu also to preserve their institutional image in the eyes of the public. However, this high tradition of maintaining comity between the Judges of superior Courts cannot come in the wav of discharge of more important Constitutional duty imposed upon the Judges of the superior Courts to protect and defend the Constitution under the oath of their office. Therefore, if the violation of a provision of the Constitution is brought to the notice of a Judge of the superior Court in a properly filed proceedings which involved the person of another Judge of the same Court, the relief, in the absence of a Constitutional bar, cannot be declined relying on a principle of high tradition of maintaining commity between the Judges of the superior Courts. The proceedings in the nature of quo warranto as held by Indian Supreme Court in the case of University of Mysore v. Govinda Rao AIR 1965 SC 491 confer jurisdiction and authority on superior Courts to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. These proceedings provide a positive safeguard to citizens against usurpers of public offices, who in some cases may be allowed to continue to hold the office in connivance or with the help of the executive authority:-" 11. We have considered that status of the Review Board is of recommendatory body. The argument of the learned Attorney General is that Haider Bux Jatoi's case reported in PLD 1969 SC 210, is not applicable in the present case as in the Constitution of 1962, composition of the Board was a Judge of the High Court nominated by the Honourable Chief Justice and the Senior Officer nominated by the Governor of the Province, but now the Board consists of three sitting Judges of this Court and the decision of the Board is judicious, which is not amenable in writ jurisdiction. 12. We have perused the relevant provisions of Article 8 (c)(ii) of the Constitution of 1962, which is reproduced as under:-- (ii) Where .The law is a Provincial Law- a Judge of the High Court of the Province concerned, who shall be nominated by the Chief Justice of that Court, and another senior officer in the service of Pakistan, who shall be nominated by the Governor of that Province." ' From the bare perusal of the said Article it is found that the sitting Judge of the High Court nominated by the Chief Justice was member of the said Board, but even then the High Court had set aside the order of the Review Board. The said order was assailed in the august Supreme Court of Pakistan and the august Supreme Court of Pakistan in Haider Bux Jatoi's case PLD 1969 SC 210, has declared that the order of the Review Board was quasi judicial and was amendable in writ jurisdiction. Relevant portion which is at page 223, is reproduced as under:- "xxxxx In any case "such further information" must relate to the grounds on which the order of detention is based or else the Board instead of exercising an advisory jurisdiction will be assuming to itself the powers of detention under subsection (1) of section 3. Such a result is clearly not contemplated in subsection (5d) of the Ordinance. In the view formed by us the High Court has rightly quashed the order of the Provincial Government dated the 12th March, 1968, extending the period of detention of respondent No,1 for three months with effect from 18th March, 1968." ' The appeal filed by the Government against the order passed by the High Court quashing the order of detention of the detenus extending the period of detention was set aside. 13. Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 now deals with the detention matter, which is reproduced under:- (10) (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
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(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary of the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall he detained in custody beyond the said period without the authority of a Magistrate." (3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to…
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