HABIBURREHMAN vs HOME SECRETARY PUNJAB and others
The petitioner challenged a preventive detention order passed by the District Coordination Officer under section 3(1) of the Punjab Maintenance of Public Order Ordinance, 1960, against his brother. The core legal questions involved whether the detention order was tainted with malice following the detenue's recourse to legal remedies and whether the failure to supply the grounds of detention vitiated the proceedings. The Lahore High Court held that the detention order was unsustainable and tainted with malice, and that the failure to communicate the grounds of detention within the statutory period violated constitutional safeguards. The Court laid down the principle that preventive detention orders passed to undermine orders of competent courts or without communicating mandatory grounds of detention are illegal, and that an aggrieved person may directly invoke constitutional jurisdiction under Article 199.
- Does the failure to supply the grounds of detention to a detenue vitiate the preventive detention proceedings?
- Can a preventive detention order be passed with the ulterior motive to undo an order passed by a court of competent jurisdiction?
- Does a detenue have the right to approach the High Court directly under Article 199 when detention is tainted with malice?
- Whether filing petitions for legal remedies or applications for case registration constitutes an activity prejudicial to public order?
- Section 3(1), Punjab Maintenance of Public Order Ordinance, 1960
- Section 295-A, Pakistan Penal Code 1860
- Section 16, Punjab Maintenance of Public Order Ordinance, 1960
- Section 22-A, Code of Criminal Procedure 1898
- Section 22-B, Code of Criminal Procedure 1898
- Section 3(6), Punjab Maintenance of Public Order Ordinance, 1960
- Article 10(5), Constitution of the Islamic Republic of Pakistan, 1973
- Article 199, Constitution of the Islamic Republic of Pakistan, 1973
ORDER
' RAUF AHMAD SHEIKH, J.---The petitioner has assailed the vires of order dated 22-7-2011 passed by the District Coordination Officer, Lahore, whereby, his brother Attiq-ur-Rehman has been detained for a period of 30 days under section 3(1) of the Punjab Maintenance of Public Order Ordinance, 1960.
2. It is contended that the petitioner's brother was roped in the false case bearing F.I.R. No,503 of 2011 dated 28-6-2011 under sections 295-A, P.P.C. And section 16, M.P.O. Police Station Ghaziabad, Lahore with malice and the learned Judicial Magistrate passed an order for his discharge and release so the impugned order has been passed with ulterior motive to undo the order of the court of competent jurisdiction. It is further contended that the brother of the petitioner had filed a petition under sections 22-A and 22-B, Cr.P.C., which was accepted by the learned ASJ/JOP but the SHO refused to obey the orders. The detenue filed a petition before this Court, who was accepted and being annoyed over approaching the Courts of competent jurisdiction, he has been confined through illegal order.
3. The learned counsel for the petitioner while reiterating the above contentions has also urged that the grounds of detention have not been supplied to him till today and as such the whole proceedings, which are tainted with malice stand vitiated. It is also urged that in suitable cases where the orders are result of malice, the detenue or someone else interested in his welfare may approach this. Court directly because section 3(6), M.P.O. Does not provide an efficacious remedy.
In support of the contentions raised, reliance is placed on Mamoona Saeed v. Government of Punjab through Secretary, Home Department and 2 others (PLD 2007 Lahore 128), Iffat Razi v.
Government of Punjab and others (PLD 2002 Lahore 194), Rana Sana Ullah Khan, Advocate v.
Secretary, Homre Department, Government of Punjab, Civil Secretariat, Lahore and 3 others (2001 PCr.LJ 2004), Mst. Sharam Mai v. District Magistrate and others (1989 PCr.LJ 411) (Lahore), Muhammad Iqbal v. District Magistrate (1989 PCr.LJ 412) (Lahore), Haq Dad Khan v. District Magistrate, Mianwali (1997 PCr.LJ 1288) (Lahore), Mst. Bashiran alias Chhuri v. District Magistrate, Rahimyar Khan and 2 others (1989 PCr.LJ 874) (Lahore), Khadim Hussain v. District Magistrate, Bahawalpur (1989 PCr.LJ 873) (Lahore) and Dr. Muhammad Shoaib Suddle v. Province of Sindh and others (NLR 1989 Civil 66).
4. Learned AAG has vehemently opposed the petition. It is contended that the petitioner was involved in creating sectarian hatred and launching a campaign against Shia Muslims of the area and has been moving false applications for registration of the cases against Shia Ulamas so lawful reasons were available to detain him to maintain the public order and tranquillity. It is urged that the petitioner was invited time and again to attend the meetings of Peace Committee but he did not give positive respond. It is, however, admitted that the grounds of his detention have not been supplied to him.
5. The submission of the applications for registration of the case or moving the petitions before the courts/forums of competent jurisdiction does not prove that Attiq-ur-Rehman, brother of the petitioner was involved in activities prejudicial to the public order or safety of the people. Everyone has the right to have recourse to the legal proceedings. The detenue was discharged in case F.I.R.
No,503 of 2011 dated 28-6-2011 Police Station Ghaziabad, Lahore. The contention that the impugned order was passed due to verdict of the court in his favour, is not without force. Under Article 10(5) of the Constitution of the Islamic Republic of Pakistan, 1973, every person detained in pursuance of an order made under any law providing for preventive detention is entitled to know the grounds of his detention and the authority making it is under obligation to communicate the same within 15 days of detention but in this case the grounds have not been communicated to him so he has been deprived of his right guaranteed under the Constitution. If the grounds along with the documents, if any, are not communicated and the detenue cannot make the representation for this reason or if the order is found to be tainted with malice, he may invoke the jurisdiction of this Court directly through a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
6. For the reasons supra, the impugned order is not sustainable under the law and the same is hereby set aside. It is directed that the detenue Attiq-ur-Rehman son of Muhammad Sharif be released forthwith, if not required to be detained in any other case.