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(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑

‑‑S. 3‑Constitution of Pakistan (1973) Arts. 10 & 199‑Detention Review Board before whom detenu was produced forming opinion on basis of material placed before it, that detention of detenu was justified and that there was sufficient material for keeping detenu under detention for period in question‑Ground for detention furnished by detaining authority relaxing to State security and could not be said to be vague ‑ Interference in o‑der of detention declined in constitutional jurisdiction.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960 ‑

‑‑S. 3‑Constitution of Pakistan (1973), Arts. 10 & 199‑Proceedings before Review Board Quasi‑Judicial in nature and amenable to judicial review by superior Courts It would not necessarily mean that High Court could easily overlook opiniod given by Board‑

Object of constituting Board was to provide an alternate adequate remedy to a detenu in case detention was for a period of mom than three months‑High Court, held, would be reluctant to entertain a constitutional writ petition for reviewing of an opinion. of Board in absence of compelling reasons.

Government of West Pakistan v. Haider Bux Jatoi and another P L D 1969 SC210rel.

(c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑

‑‑ S. 3‑Constitution of Pakistan (1973), Arts. 10 & 199‑Review Board‑‑Opinion of Review Board based on material in respect of which State in good faith claimed privilege e. g. that detenu had links with a foreign country of which Government was hostile to Pakistan‑Review Board or Court, held, was not obliged to give detail of material.

(d) West Pakistan Malatenance of Public Order Ordinance (xXXI of 1960)‑

S. 3‑Constitution of Pakistan (1973), Art. 199‑Detention‑In case where State security was involved, High Court, held, would be reluctant to exercise constitutional jurisdiction even in cases of detention if order was bona fide and w:.s supported by material on record though there might be some infirmity in order as to procedure and not as to substance.

(e) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑

S. 3‑Detention‑In absence of dispensation with furnishing of grounds of detention‑in terms of proviso to S. 6(3) of the Ordinance detaining authorityi held, was duty bound to furnish grounds promptly and also to inform detenu that he bad right to file a repre sentation.

(f ) West

Pakistan Maintenance d Public Order Ordinance (XXXI of 1960)‑

Ss. 3 & 5‑Detention‑If grounds on which order of detention passed not furnished to enable him to make representation, Order of detention, held, would not be valid.

Nathnial Naz v. Additional District Magistrate, Sialkot and another P L D 1983 Lah. 244 ; Muhammad Younus v. Province of Sind through the Secretary to the Government of Sind; Home Department, Sind Secretariat. Karachi and 2 others P L D 1973 Kar. 694 ; Ghulam Jilani v. The Government of West Pakistan P L D 1967 S C 373 ; Abdul Bayi Baloch v. The Government of Pakistan P L D 1968 S C 313 ; The Government of West Pakistan v. Begum Shorish Kashmiri P L D 1969 S C 14 ; The Government of West Pakistan v. Haider BNx Jutoi P L D 1969 S C 210 ;. Muhammad Anwar Sheikh v. District Magistrate, Rawalpindi P L D 1975 Lah. 414 ; Muhammad Khan v. State through Deputy CommfWoner, Nasirabad at Dera Murad Jamali and 2 others P L D 1985 Quetta 217 ; Shah Ahmad Noorani v. Government of Punjab 1983 P Cr. L J. 1799 and Qazi Mag.cood Gul v. Government of West Pakistan and others P L D 1969 Pesh. 50 rel.

(g) West Pakistan Maintenance of Public Order Ordinance (XXXhof 1960)‑

‑‑ S. 3‑Detention‑‑State security‑Detaining authority claiming privilege on ground of State security, held, was not bound to give full details of various acts committed by detenu otherwise object of claiming privilege would be frustrated.

(h; West Pakiatao Maietenawe of PoWic Order Ordinance (XXXI of 1960)‑

‑‑ S. 3‑Constitution )f Pakistan (1973), Art. 199‑Detention Order of detention passed by Home Secretary himself on basis of material available on record‑Mere communication of ground by any other officer of same Department, held, would not vitiate main order of detention.

Iftikhar Muhammad for Petitioner.

Muhammad Nawaz Ahmed, on behalf of A.‑G., Baluchistan for Respondents.

Date of hearing : 16th April, 1986.

JUDGEMENT

AnrAL MIAN,

Acro. C. J.‑This petition filed by Saadullah son of Dost Muhammad a relation of Muhammad Issa son of Dost Muhammad (herein afte referred to as the detenu), is directed against an order dated 16‑3‑1986 ordering of the detention of detenu under subsection (1) of sec:ion 3 of the Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as th. Ordinance) for a period of three months. In pursuance of the above order the detenu was served with the ground of detention on 18th March, 1986, which reads as follows :‑

"Subject : Detention Order.

Continuation this Department order of even number dated 16th March, 1986.

2. "The grounds of orders are as under :‑

He is reported to be involved in anti‑State activities and the detaining authority is fully satisfied about the reports to be reliable.

3. For Superintendent, Central Jail Machh only.‑A copy of grounds of order may please be served upon detenu Muhammad Issa son of Dolt Muhammad presently confined in the Central Jail, Machh.

(Muhammad Afzal),

Joint Secretary (Home)."

2. The brief facts leading to filing of the above petition as averred in the petition are that the detenu was taken into custody in the month of February, 1985, at Chaman, from where he was first sent to Quetta and thereafter to Central Jail, Machh. He was served first time with a detention order, dated 24th December, 1985 in which no ground was furnished. One Muhammad Younus a cousin of the detenu filed constitutional petition No. 11 of 1986, in response to which this Court ordered on 16‑3‑1986 the appearance of the Home Secretary with the relevant record as the Advocate General in spite of his two reminders failed to obtain any instruction. In response to the above order, the Home Secretary alongwith relevant record appeared before a Division Bench of this Court on 19‑3‑1986 when certain material was placed before the said Bench to support the detention order, however, the privilege was claimed in respect of the above material on the ground of State security. It was also brought to the notice of the Court that a fresh order of detention was passed, after that the petitioner in the aforesaid Constitutional Petition withdrew the above petition subject to the right to file fresh, the present petition has, therefore, been filed.

3. In support of the above petition Mr. Iftikhar Muhammad, learned counsel for the detenu has urged as follows :‑

(i) That since no grounds of detention were furnished in pursuance of the above first det:ntion order, dated 24‑12‑1985, the same was without lawful authority and subsequent order of Mention suffers from the same infirmity.

(ii) That even in respect of second impugned detention order the ground furnished, is vague and, therefore, suffers from infirmity.

(iii) That the ground has not been signed by the Home Secretary but for by the Joint Secretary and, therefore, the order cannot be sustained.

(iv) That the opinion of the Review Board, dated 6‑4‑1986 relied upon by the respondent is amenable to writ jurisdiction.

4. On the other hand Mr. Muhammad Nawaz Ahmad, learned counsel for the respondent has contended as follows :‑

(i) That since the Review Board comprising of three Judges of this Court has opined after hearing the detenu on 6‑4‑1986 that the detention was justified, this Court will not exercise writ jurisdiction.

(ii) That even otherwise on merits the detention order is supported by reliable material.

5. Before taking up the above contentions of the learned counsel for the parties, it may be pertinent .to observe that under subsection (5) of section 3 of the Ordinance it ha been provided that the Government shall constitute a Board consisting of a Judge of the High Court of West Pakistan who shall be nominated by the Chief Justice of the Court and a senior Officer in the service of Pakistan who shall be nominated by the Governor of West Pakistan. After the dissolution of West Pakistan, the Judge i; to be of the High Court concerned and the Governor is to be of the Province con cerned, whereas, subsection (5‑a) of the above section 3 of the Ordinance provides that no person shall be detained for a period exceeding three months unless the Board has reported, before the expiration of the said period of three months, that there is in its opinion, sufficient cause for such detention. It may also be observed that subsections (5‑b) to (5 f ) provide the procedure of making reference to the Board and the proceedings before the Board including the right of hearing of the detenu and submission of opinion by the Board etc. It will not be out of context to mention that under the Chapter of Fundamental Rights and Principles of Policy Part II of the Constitution of Islamic Republic of Pakistan, 1973, Article 10 provides on the topics covered by the above subsections (5‑a) to (5 j ) of section 3 of the Ordinance in more elaborate form. It may be advantageous to reproduce the same, which reads as follows :‑

"10. (1) No person who is arrested shall be detained in custody without being informed, ac 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.

(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 for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be 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 the integrity, security or defence, of act"‑or any part thereof, or external affairs of Pakistan; or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the

said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.

Explanation l.‑In this Article, "the appropriate Review Board" means,‑

(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the ,Supreme Court or a High Court ; sod

(ii) in the case of a person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court..

Explanation ll.‑The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order Provided that the authority making any such order may refuse to dis close facts which such authority considers it to be against the public interest to disclose.

(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any document, is produced.

(7) Within a period of twenty‑four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case Provided that this clause shell not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti national activity as defined in a Federal Law or is a member of any association which has for its objects, or which indulges in, any such anti national activity.

(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.

(9) Nothing in this Article shall apply to coy person who for the time being is an enemy alien."

A perusal of the above‑quoted Article indicates that no person is liable to be detained without being informed as soon as may be of the grounds for such detention. He is also entitled to consult and be defended by a legal practitioner of his choice. It also provides that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate. It has been further provided that the above provisions contained in sub clauses (1) and (2) of Article 1.0, shall not be applicable to any person who is arrested or detained under any law providing for preventive detention. It may also be stated that clause (4) of the above Article 10 provides the items on which the preventive law of detention, can be legislated. It also provides that no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being beard in person, reviewed his case and reported, before the expiration of the said period that there is in its opinion, sufficient cause for such detention and, if the detention is continued after the said period of three months, unless the appropriate ‑Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention. It may also be noticed that under Ex41anation I to clause (4) of Article 10, Review Boards are to be constituted for the detenus detained under a Federal Law separately and for the detenes under Provincial Law. A Review Board in case of Federal Law is to com prise of a Chairman and two other persons, each of whom, is or has been a Judge of Supreme Court or a High Court and, in case of a person, detained under a Provincial Law, the Review Board is to consist of a Chairman and two other persons, each of whom, is or has been a Judge of a High Court. It may be pertinent to mention here that in Baluchistan a Review Board in terms of sub‑clause (ii) to Explanation I to clause (4) of Article 10 has been constituted, which comprises of three Judges of this Court, namely, Mr. Justice Nazir Ahmed Bnatti, as Chairman and Mr. Justice Munawar Ahmed 'Mirza and Mr. Justice Mir Hazar Khan Khoso, as its Members.

It may also be pointed out that under clause (5) of the above‑quoted Article 10, the words "as soon as may be" originally employed in the above Article, which were identical with the words used, in subsection (6) of section 3 of the Ordinance, have been substituted by the Constitution (Third Amendment) Act, 1975 (22 of 1975) by the words "within fifteen days" for communicating the grounds of detention to a detenu for enabling him to make representation against the order. The above clause (5) also in its proviso reserves the right of the detaining authority to refuse to disclose the facts which such authority considers it to be against the public interest to disclose. It may also be mentioned that clause (6) of the above Article 10 provides that the authority making the order shall furnish to the appropriate Review Board all documents relevant to the case, unless a certificate signed by a Secretary to the Government concerned to the effect that it is not in public interest to furnish any documents, is produced, whereas, clause (7) lays down that within a period of 24 months commenc ing on the day of his first detention in pursuance of an order made under a law providing for preventive deteption, no person shall be detained for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and 12 months in any other case. However, proviso to the above clause excludes the application of the above clause to the case of a person who is employed by or works for, or acts on instructions received from the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti‑national activity as defined in a Federal Law or is a member of any association which has for its objects, or which indulges, in any such anti‑national activity.

5‑A. 1n the instant case, the detenu in question was produced before the Review Board on 6th April, 1986 which on the ba,:.is of the material placed before it formed the opinion that the detention of ' rrie above detenu is justified. It may be advantageous to reproduce thr above opinion, which reads as follows :‑

"BEFORE THE BALUCHISTAN REVIEW BOARD

CONSTITUTED UNDER CLAUSE (4) OF ARTICLE

10 OF THE CONSTITUTION OF ISLAMIC

REPUBLIC OF PAKISTAN, 1973.

Detenu Muhammad Essa son of Dost Muhammad is present before us. He was apprehended ‑and detained under section 3 of the Mainte nance of Public Order Ordinance, 1960, with effect t :)m 31‑1‑1985. The period of detention was further extended, with effect from 18th Maroh, 1986 After the lifting of Martial Law.

We have gone through the record of the Home Department and have also heard the detenu. There is material on the record to show that he has been acting in a manner prejudicial to the public safety and maintenance of public order, therefore, we are of the opinion that there is sufficient material for his detention. Since he is a bachelor and has no family so we do not recommend for subsistence allowance. He is presently detained at Machh Jail we are of the opinion that he should remain under detention in that jail

(Sd.) Justice Nazir Ahmad Bb itti

Chairman,

(Sd.) Justice Munawar Ahmad Mirza

Quetta, (Sd.) Justice Mir Hazar Khan Khoso

dated : 6‑4‑1986. Members."

6. From the above‑quoted opinion of the Board, it is evident that it was satisfied that there was stiflicient material for keeping the detenu under B detention for the period in question.

Before taking up, the 'contention of Mr. lftikhat Muhammad on merits of the case, it may be pertinent to take up the question, whether in view of the above opinion of the Board it will be proper to exercise constitutional jurisdiction. In this behalf Mr. Iftikhar Muhammad has referred to the case of Government of West Pakistan v. Haider Bux Jaroi and another (PLD 1969 SC 210). in which the Hon'ble Supreme Court of Pakistan has, inter alia, observed as follows :‑

"The position which emerges from a close study of the provisions of section 3 of the Ordinance reproduced above is :‑

(i) the satisfaction of the Provincial Government is not subjective, but must be based on, grounds set out in subsection (1) of section 3 and supported by material which will satisfy the Board that there is sufficient cause for detention ;

(ii) the person detained has a right to contend against the grounds of detention both before the Provincial Government and the Board ;

(iii) the opinion of the Board must rest on the material produced before it or the material called for by the Board which is relatable to the grounds on which the order of detention is based and against which the person detained has been given an opportunity to represent ;

(iv) the proceedings before tae Board are of quasi‑judicial nature and amenable to judicial review by superior Court ; and

(v) the authority of the Provincial Government to extend the period of detention is derived from a favorable opinion given.by the Board and not under the preliminary power conferred by subsection (1) of section 3.".,

The above‑quoted passage indicates that the proceedings before the Board are quasi‑judicial nature and amenable to judicial review by the superior Courts, but it does not necessarily follow that‑the High Court can easily overtook the opinion given by the Board. The object of cons tituting a Board comprising of three learned Judges of this Court in terms of above sub‑clause (ii) of Explanation I to clause (4) of Article 10 of the .C Constitution of Islamic Republic of Pakistan, 1973 is to provide an alternate adequate remedy to a detenu; in case detention is for a period of more tha 3 months, the High Court, therefore, will be reluctant to entertain a constitutional writ petition for reviewing of an opinion of the Board in the absence of compelling reasons.

It was next contended by Mr. Iftikhar Muhammad that the Board has not given detail of the material on the basis of which it was of the view that the detention of the detenu was justified. In this regard, it may be pertinent to point out that before us the respondent has placed material but has claimed privilege on the ground of State Security. Mr. Muhammad Nawaz, learned counsel for the respondent submitted that the entire material was placed before the Board but the privilege was claimed. WeI have gone through the material placed before us and we are of the opinio n that the Board on the basis of the above ma erial could form the views that the detention was justified. We are also inclined to hold that the Board or the Court is not obliged to give the detail of the material in the opinion or order as the case may be if the material comprises of the nature in respect of which .the State bona fide& claims privilege. Suffice to observe that the material placed before us indicates that the detenu had links with a foreign country, of which Government is hostile to Pakistan. We ma also observe that in a case where State Security is involved, .the Court may be reluctant to exercise constitutional writ jurisdiction even in case of detention. if the order is bona fide and is supported by the material on record though there might be some infirmity in the order as to the procedure and not as to the substance.

7. Adverting to the first contention of Mr. Iftikhar Muhammad, Darned counsel for the detenu that the first detention order dated 24‑12‑1985 was without lawful authority as no ground was furnished, it may be observed that he has referred to subsection (6) of section 3 of the Ordi nance, which enjoins the detaining authority to communicate the grounds to the detenu as soon as may be and to int orm him that he is at liberty to make a representation to the Government against the order of detention The proviso to above subsection empowers the detaining authority to refuse the discloser of the grounds on the grounds of public interest. in the instant case the first order, dated 24‑12‑1985 was withdrawn before the expiry of the period of 3 months and the second order was passed on 16‑3‑1986. In pursuance of which the detenu was served with the ground quoted herein above. Since the first order of detention is no longer in the field and as the present detention is in pursuance of the second order, dated 16‑3‑1986, and because of the opinion of the Board dated 6‑4‑1986, in our view it is not necessary to dilate in detail upon the above contention of Mr. Iftikhar Muhammad, however, it may be observed that there cannot be any cavil to the legal proposition submitted by the learned counsel for the detenu the in the absence of dispensation with the furnishing of the grounds in terms of the proviso to subsection (6) of section 3 of the Ordinance, the detaining authority is duty bound to furnish the grounds as soon as may be i.e. promptly, and also to inform the detenu that he; has the right to file a ‑representation.

8. As regards the second submission that even the ground furnished in respect of the second detention order is vague, it may be mentioned that Mr. Iftikhar Muhammad has contended that there is no detail given as to the anti‑State activities and, therefore. it is not possible for the detenu to make any representation. In furtherance of his above submission, he has referred to the following cases :‑

(i) Narhnial Naz v. Additional District Magistrate, Sialkot and another P L D 1983 Lab. 244, in which a learned Single Judge of the Lahore High Court allowed writ petition on the ground that the grounds furnished were vague.

(ii) Muhammad Younus v. Province of Sind through the Secretary to the Government of Sind. Home Department, Sind Secretariat, Karachi and 2 others P L D 1973 Kar. 694. In the above case a Division Bench of the erstwhile High Court of Sind and Baluchistan enunciated the principles deducible from the 4 judgments of the Honourable Supreme Court of Pakistan, namely. Ghulam Jilani v. The Government of West Pakistan P L D 1967 S C 37:1 ; Abdul Buqi Baloch v. The Government of Pakistan P L D 1968 S C 313 ; The Government of West Pakista v. Begum Shorish Kashmiri P L D 1969 S C 14 ; The Govern ment of Pakistan v. Haider Bux Jatoi P L D 1969 S C 210 and it was held that if some of the grounds were vague, the detention order would be vitiated. It was also held that the grounds served after expiry of 15 days were not covered by the expression "as soon as may be" and, therefore, the detention order was vitiated.

(iii) Muhammad Anwar Sheikh v. District Magistrate, Rawalpindi P L D 1975 Lab. 414 in which a learned Single Judge of the Lahore High Court held that if the grounds of detention comprise of some lawful and some unlawful, the former cannot validate detention order.

(iv) Mithamthad Khan v. State through Deputy Commissioner, Nasirabad at Dera Murad Jamali and 2 others P L D 1985 Quetta 217. In the above case a Division Bench of this Court held that since the grounds of detention were not furnished to the detenu, representa tion under section 5(a) of the Ordinance is not an adequate remedy. It was further held that the detention order was invalid as the grounds on the basis of which the same was passed were not furnished to the detenu nor were available with the detaining department.

(v) Shah Ahmad Noorani v. Government of Punjab 1983 P Cr. L J 1799, in which a learned Single Judge of the Lahore High Court declared an externment order as without lawful authority passed under the Ordinance for the reason that the grounds furnished to the petitioner were vague.

(vi) Qazi Maqsood Gul v. Government of West Pakistan and others P L D 1969 Pesh. 50. In the above case a Division Bench of the erstwhile High Court of West Pakistan at Peshawar held that the failure on, the part of the District Magistrate to inform the detenu that he could make representation was not maintainable.

9. The propositions of law laid down in the above cases are well. settled but the question in issue is, whether the same we applicable to the instant case In the present case as mentioned hereinabove the State ha claimed privilege on the ground of State security, in such a case in ou view the detaining authority is not bound to give the full detail of th various acts committed by the detenu otherwise, the object of claiming privilege would be frustrated. Keeping in view the above fact we a inclined to hold that the ground furnished to the detenu in the

instant case cannot be said to be vague.

10. This lead us to the last submission of Mr. Iftikhar Muhammad that the ground was signed by the Joint Secretary and not by the Home Secretary, it may be observed that the detention order on record was signe by the Home Secretary, whereas the memo. containing the ground has bee signed by the Joint Secretary (Home). M . Iftikhar Muhammad has relie upon above Lahore case namely shah Ahmad Noorani v. Government of Punjab (supra) in which inter alia, it was held that the order of detention and the grounds were signed by Under‑Secretary Special I who was not authorised to sign an order or instrument of the Government of Punjab in terms of rule 11(2) of the Government of Punjab Rules of Business, 1974. In our view, the above case has no application to the instant case as Mr. Iftikhar Muhammad has not been able to cite any Business Rules framed by the Government of Baluchistan indicating that the Join Secretary was not competent to sign the memo. of ground. Even otherwise i in the instant case the detention order was passed by Home Secretary himself which was passed on the basis of the material available on record. A mere communication of ground by any other officer of the same depart ment, in our view will not vitiate the main order of detention.

For the aforesaid reasons the petition is dismissed with no order as to costs.

x. Y, H, Petition dismissed.

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