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Writ Petition No. 953 of 1986, decided on 3rd September, 1986.

‑‑‑S. 3‑‑Constitution of Pakistan (1973) Art. 199‑‑Detention‑‑Grounds of detention supplied to detenu extremely vague and miserably lacking in material inasmuch as no particular instance was quoted as to how impression was gained in the mind of detaining authority in regard to future conduct in context of public order‑‑‑Reasons of detention given in written statement not, formally communicated to detenu in 'grounds', so as to give him a chance to make a representation against them effectively‑Fifteen days time allowed to collect data against a person, intended to be detained, not properly availed by authorities and orders in that behalf were passed by them quite ‑perfunctorily‑‑Orders of detention declared as illegal and, set aside in circumstances.

Malik Sohrab v. Government of Pakistan etc. P L D 1974 Lah. 214 ref .

Shams Din v. Martial Law Administrator P L D 1979 Lah. 74; Mumtaz Ali Bhutto etc. v. The Deputy Martial Law Administrator etc. P L D 1979 Kar. 125; Master Abdul Rashid v. Sub. Martial Law Administrator P L D 1980 Lah. 356; Muhammad Saeed Azhar‑v‑Martial Law Administrator 1979 S C M R 484 arid Muhammad Husain Munir etc. v. Sikandar etc. P L D 1974 S C 139 ref.

Mrs. Fakhar‑un‑Nisa for Petitioner.

Tassaduq Hussain Jilani, Asstt. A.‑G. for Respondents.

Date of hearing: 3rd September, 1986.

Mst. Mumtaz Manzoor petitioner has filed this Constitutional Petition for release of her son Adnan Faisal, a student of B.A. Final, detained under section 3 of the Maintenance of Public Order Ordinance, 1960 for a period of 15 days by the District Magistrate Muzaffargarh (respondent No.1 herein) vide his order, dated 12‑8‑1986. Though there is no indication in the petition yet the period of detention seems to have been extended.

2. The detention was based upon the grounds:

"You instigate the people against the present Government of Pakistan and excite the public in general to agitate and stage demonstration.

Your activities are prejudicial to the Maintenance of Public Order and are likely to continue if you are not detained."

3. The main grievance canvassed in the petition was that the grounds making basis for the detention were false, frivolous, mechanical, mala fides and without any material. It was averred that the detenu had never been a member of the People's Party nor was he involved in any unlawful activity to jeopardise the peace and tranquillity of the country, nor had he either demonstrated or instigated the people against the Government of Pakistan.

4. The respondents contested the petition. The District Magistrate, Muzaffargarh, filed a written statement supported by an affidavit Controverting the allegations made in the petition. According to him, the detenu being a member of P.S.F. was a diehard worker of the People's Party; he alongwith other students blocked roads once to demand release of his co‑student involved in a criminal case and the other time to protest against the principal of the college manhandled the Headmaster of a local school after creating rowdyism; held a number of meetings in. the recent past to agitate against the Government and had a programme to take workers to Lahore on the 13th of August, 1986 for agitation and also to participate in the Cell for the 6th and the 20th instant.

5. The main plank urged in support of the petition by Mrs. Fakhar un‑Nisa, Advocate, was that the grounds being vague and wordy and unsupported by any instances of the so‑called prejudicial activities did not satisfy the rule laid down in Malik Sohrab v. Government of Pakistan etc. P L D 1974 Lah. 214. She stressed that the test was to make the detenu abreast of the substantial material, upon which he was being detained so that he could make an effective representation against it either before the Detaining Authority or the Board and that heir satisfaction to curtail his fundamental right of liberty had to be rather objective than merely subjective. She pointed out if the grounds contained bare allegations or conclusions of the Detaining Authority without correlating them to any material, it may not be possible for the detenu to effectively represent against them as he could at the most make a bare denial.

6. Keeping the above test in view, it will be seen that the grounds of detention served upon the detenu miserably lacked in this behalf. Those were really vague inasmuch as no particular instance was quoted as to how the impression was gained in the mind of the Detaining Authority in regard to his future conduct in the context of public order. The averment made in the impugned order was that he instigated the people against the Government and excited them to stag demonstration. Obviously, he could deny the same as he has‑ done in the present petition and that makes the whole exercise futile.

7. The learned Assistant Advocate‑General, in reply, referring to instances of various prejudicial activities imputed against the detenu, contended that the Detaining Authority was amply justified in entertaining an apprehension that he would further indulge in similar acts and that such satisfaction could not be strictly made justiciable so as to determine their truth or falsity. He sought support from Shams Din v. Martial Law Administrator P L D 1979 Lah. 74; Mumtaz Ali Bhutto etc. v. The Deputy Martial Law Administrator etc. P L D 1979 Kar. 125 and Master Abdul Rashid v. Sub‑Martial Law Administrator P L D 1980 Lah. 356, for this view. He further contended that the allegation of mala fides levelled in the petition was not specific and, therefore, in terms of Muhammad Saeed Azhar v. Martial Law Administrator 1979 S C M R 484. it could not help the detenu. Lastly he maintained that the written statement and the affidavit filed today, were not controverted and, therefore, the presumption would be that the facts narrated therein were accepted by him. He assailed the competence of the petition placing reliance upon Muhammad Husain Munir etc. v. Sikandar etc. P L D 1974 S C 139 as the impugned order had been passed by the respondent District Magistrate in the exercise of his "lawful authority".

8. It seems hard to displace the petitioner's contention that the grounds served upon the detenu were extremely vague and indeed completely bereft of any material which could have been used as basis for curtailing his liberty. I quite see from the written statement that really there were reasons for his detention as he was, said to have been involved in various activities which by no means could be lightly ignored. He was allegedly a diehard worker of the People's Party having created rowdyism a number of times, desecrating educational Institutions, manhandling a Headmaster, defiling a Principal and demanding release of criminals by blocking highways. But this all had to be communicated to him formally while serving him with the "grounds" as required under section 3 of the Ordinance ibid. This was not precisely done resting content in relying upon a bare averment that he instigated or excited people against the Government. Particular instances now being enumerated in the written statement should have been passed on to him so that he could have had a chance to make a representation against them effectively. He could not do more than making a bare denial thereof and accordingly it would attract the application of the rule laid down in Malik Sohrab's case referred to above. The Legislature in its wisdom gave the Detaining Authority a period of 15 days to collect the data against a person intended to be detained. It appears that this time was not properly availed and the orders in this behalf were passed quite perfunctorily.

9. The learned Assistant Advocate‑General's stress that at least the Detaining Authority had objectively examined the relevant material does not help to relieve the burden of posting a detenu himself with such material to enable him to make a representation. What is denied here is the detenu's right in that behalf and, therefore, even if the Detaining Authority was objectively justified to order his detention that could not save the impugned order on legal plane. The authorities cited by him are of no much assistance.

10. As a result, the writ petition is accepted, the impugned order is held to be illegal and is set aside. The detenu, Adnan Faisal shall be released forthwith if not required in any other case.

M.Y.H. Petition accepted.

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