YOUSAF ABBAS Versus DISTRICT MAGISTRATE

1. Briefly, the facts of the case are that respondent No. 1 passed the detention order of petitioner on 2-2-2001 and detained the petitioner in Central Jail Kot Lakhpat for a period of two months. The petitioner being aggrieved, filed representation before respondent No.2, who did not decide the same. The petitioner was constrained by the aforesaid circumstances to file Writ Petition No.3533 of 2001 which was subsequently dismissed as the petitioner's counsel did not press the same after hearing the statement of learned Advocate-General who had given statement before this Court on 15-3-2001, under instructions that representation of petitioner must be heard and finally decided by competent authority on merit on 20-3-2001. The competent authority decided the representation of petitioner vide impugned order, dated 20-3-2001. The petitioner being aggrieved, filed this writ petition which was fixed on 22-3-2001.

2. The petitioner's counsel was directed to hand over copy of writ petition alongwith Annexures to Mr. Maqbool Elahi Malik, learned Advocate-General, Punjab, who was directed to assist the Court on the next date of hearing after obtaining instructions from respondents. Notice was also issued to respondents for 26-3-2001. The aforesaid date was fixed on the request of petitioner's counsel who stated that he had to go out of Pakistan on 27th of March, 2001.

2. Mr. Ijaz, Ahmad Chaudhry, learned Additional Advocate-General, entered appearance and requested adjournment on the ground that learned Advocate-General has become ill all, of a sudden, however, on the request of petition's counsel, the learned A.A.-G. was directed to appear at 1-30 p.m. on 26-3-2001, after obtaining instructions frc,m the respondents.

3. The learned counsel for the petitioner submits that petitioner is student and his age is below 18 years; that petitioner is not involved in any criminal case in past. This fact was not considered by respondent No. at time of deciding his representation; that past conduct is relevant factors qua his detention in support of his contention he relied upon the following judgments:

3. Muhammad v. State PLD 1980 Kai, 1, Abdul Hameed's case PLD 1973 Kar. 344 and Government of Sindh through Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994, SCMR 1283.

4. He further submits that grounds of detention are general in nature and are sustainable in the eyes of law; that gro4nds must be specific qua detention order, therefore, impugned order is not sustainable in the eye, law. In support of his contention he relied ul,on the following judgments:-

5. Maulana Shah Ahmed Noorani's case PLD 1984 Lah. 222 R Malik's case PLD 1968.Dacca 382, Malik Ghulam Jillani's case PLD 1967 SC 373 and Begum ;ardar Muhammad Hayat Khan Tuman's case PLD 1969 Lah. 985.

6. He further submits that question of liberty of petitioner is involved and the impugned order is hit by fundamental rights of the petitioner guaranteed the citizens in Chapter 2 of the Constitution of Islamic Republic of Pakistan 1973, therefore, depriving of petitioner of his liberty is extreme action which is not countenance by law except when it is called for by law itself. He relied upon Kausar Ali alias Kausri's case PLD 1999 Pesh. 82; that mere reproduction of detaining order in proof of satisfaction is not sufficient. In this behalf. he has relied upon Mir Abdul Baqi Baluch's case PLD 1968 SC 313; that respondent No. 1 passed the detention order malafidely, therefore, same is not sustainable in the eyes of law. In support of his contention he relied upon Dr. Muhammad Shoaib Siddiqui's case 1999 PCr.LJ 747; that tapping of telephone of a citizen is in violation of Articles 9 and 19 of the Constitution. He relied upon Mohtrama Benazir Bhutto's case PLD 1998 SC 388. He summed up his arguments that action of respondents is in violation of Article 4 of the Constitution read with section 24-A of the General Clauses Act and in result of malice.

4. The learned A.A.-G., submits that detention order was passed by respondent No.1 after applying his independent mind, after receiving reports from Special Branch, Incharge of Security Branch and S.B.P. Lahore; that grounds are specific and both the respondents had passed the order against petitioner after applying their independent mind; that petitioner did not allege any specific malice against respondents, therefore, writ petition is liable to be dismissed; in support of his contention he relied upon Malik Ghulam Jillani's case PLD 1967 SC 373; that respondents did not pass any detention order qua his cousin Hamza Sharif; therefore, action of respondents are bona fide unless and until the petitioner brings on record material to show that action of respondents is based on mala fide. He summed up his arguments that respondent No.1 has sufficient material before him on the basis of which he passed the impugned order. The grounds which are attached with the detention order reveal that the same are specific and not general that Courts must lean to uphold the action of respondents.

7. In rebuttal, the petitioner's counsel submits that learned A.A.-G. relied upon the observation of Honourable Supreme Court of minority view in PLD 1967 SC 373 as is evident from page 403; that action of respondents is not sustainable in the eyes of law.

5. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is pertinent to mention here that respondents failed to file report and parawise comments as sufficient time was not granted to the respondents as is evident from the order sheet. The respondents were directed vide order, dated 22-3-2001 to appear on 26-3-2001 and there was two holidays in between. The learned Additional Advocate-General initially requested for adjournment on account of illness of Malik Maqbool Elahi, Advocate-General, however, he was ready to argue P the case. It. is moral duty of Nation to follow the foot-prints of Founder of Pakistan. I am persuaded to highlight certain salient features of the character of Founder of Pakistan to resolve the controversy between the parties which are as follows:--

8. Let me quote that once late Mian Mushtaq Gormani met Lord Wavel who during discussion made some remarks about the Founder of Pakistan which are very relevant to reproduce here for the purpose of building National character, Lord Wavel said:---

9. He (Founder of Pakistan) is not only honest but he is intellectually honest. "

10. On 14th March, 1919 Founder of Pakistan participated in the proceedings of Legislative Council qua bill relating to criminal law (Emergency Powers) Bill. The relevant paras. are reproduced hereunder:--

11. (On March 14, 1919 Part II of the Bill was taken up for consideration. Mr. V.J. Patel moved for its deletion. Sir Verney Lovett, Mr. P.J. Fagan and Sir James Douboulay opposed the motion. Mr. M.A. Jinnah in his speech strongly opposed this part of the Bill.)

12. The Honourable Mr. M.A. Jinnah.-- My Lord, this part of the Bill is, as I said on the very first occasion, to me abhorrent and shocking, and on that occasion, my Lord, I stated my reasons for it. I would not really have spoken in the Council on this motion of the Honourable Mr. Patel more than by merely saying that I am strongly opposed to this Part of the Bill, and I would have done that, my Lord, for this reason, that I really feel that I cannot even trust myself to discuss this Part lest I give vent to my feelings arid my opinion, which I honestly say to this Council I cannot possibly express in words, namely, my repugnance for this Part of the Bill. But it is the first time that the Government side have tried- to meet the real point in this bill, and that point having been made, I venture to make a few observations. 'The Honourable Sir Verney Lovett quoted me, but only portion of my reasons for opposing this Part II. Therefore, as he has quoted me, he does not quite correctly represent my position or the grounds of my position. But I will meet his point. And the point which he endeavoured to make was that there is real danger, and that being so, are we, as a Government, not entitled to enact this measure into law? Now, my Lord, that is the sole question which the Council has got to decide. If I may quote an authority and I am quoting Blackstone who has been quoted by Lord Shaw (I am not quoting this as a judgment, but merely as a quotation from Blackstone and for convenience sake, I am quoting it from his judgment). This is what he says Blackstone is quite clear upon the parties of the Constitution. He searchingly treats the case of both of liberty and life as tests both and equally of one and the same principle-the very principle which is under scrutiny in the present case. To bereave a man of life or by violence to confiscate his estate without accusation or trial would be so gross and notorious an act of deposition as must at one convey the alarm of tyranny throughout the whole kingdom, but confinement of the person, by secretly hurrying him to jail where his sufferings are unknown or forgotten, is a less public and less public and less striking and, therefore, a more dangerous engine of arbitrary government'. "

13. The Honourable Mr. M.A. Jinnah.--- "My Lord, I will only quote the words of a very great authority before I say anything more. In a very famous case, which is known as Deaniel's case, one of the greatest jurists and lawyers, laid down three propositions:--

14. The first proposition is that no man can be imprisoned upon the will and pleasure of any, but a bondman or a villain. The second proposition. If a freeman of England might be imprisoned at the will and pleasure of the king, or by his commandant, he were in worse case even than a villain.

15. The third proposition. A freeman imprisoned without cause is civilly dead."

16. "My Lord, the provision of Part III of this Bill will bring about this result. First, the selection of the victim will be left to the plenary discretion of the bureaucracy; secondly, my Lord, it means the negation of public safety and defence; and thirdly, my Lord, I say that it is poison to the Commonwealth.

17. My lord, to quote the words of Lord Shaw in that famous judgment have referred, this is what he says:--

18. In the exercise of power that the Government have the plainest teachings of history and the dictates of justice demand that, on the one hand, Government power, and on the other hand, individual rights,, these two shall face each other as party and party.'

19. .... The fundamental principles of justice have been uprooted and the Constitutional rights of the people have been violated at a time when there is no real danger to the State by an overfretful and incompetent bureaucracy which is neither responsible to the people nor in touch with real public opinion and their sole plea is that the powers when they are assumed will not be abused.

20. "I, therefore, as a protest against the passing of the Bill and the manner in which it was passed tender my resignation as a member of Imperial Legislative Council for I feel, that under the prevailing conditions I can be of no use to my people in the Council nor consistently with one's self respect is cooperation possible with a Government that shows such utter disregard for the opinion of the representatives of the people in the Council Chamber, and for the feelings and sentiments of the people outside.

21. "In my opinion, a Government that passes or sanction such a law in times of peace forfeit its claim to be called a civilised Government and I still hope that the Secretary of State for India, Mr. Montagu, will advise His Majesty to signify his disallowance to this Black Act. "

22. The last document signed by the Founder of Pakistan as is evident from the Book of Baba-a-Qaom Quaid-e-Azam written by Prof. Hamid Ullah Shah Hashmi, the relevant portion is as follows:--

23. The last sentence which was uttered from the mouth of Founder of Pakistan is as follows:---

24. The Bureaucrats who got a change to see the Founder of Pakistan and worked with him like Mushtaq Ahmed Wajdi, the relgvant passage from his book reproduced as under:---

25. Similarly Mr. Qudart Ullah Shahab in his lifetime has shown great courage to put on right path Field Martial late Muhammad Ayub Khan as is evident from his Book ' Shahab Nama', he did not accept the direction of his superiors against his conscious as is evident from chapter 10 and 14 of the aforesaid Book. The Honourable Supreme Court has laid down guidelines for the public functionaries to act within the framework of Constitution and law in Zahid Akhtar's case PLD 1995 SC 530. The Constitution is commitment of the Nation to work within the framework of Constitution. It is the duty and obligation of each and every citizen to follow the mandate of Constitution. It is imperative to put the Nation on right .path, therefore, follow the basic character of Founder of Pakistan . for the purpose to straightening the Country and to remove of existence of colourable exercise in each and every sphere of activity of, the Government official.

26. Now I intend to decide the present case, it is admitted fact that petitioner filed representation before respondent No.2, who decided the same on 20-3-2001. It is better and appropriate to reproduce the operative part of impugned order of respondent No.2 to resolve the controversy between the parties:--

27. "I do not see any infirmity or illegality in impugned order, which in fact is based on cogent reasons and is unexceptionable. I find no reason to interfere with the same. The present representation is without merits and the same is accordingly rejected."

28. The aforesaid operative part reveals that respondent No.2 has countersigned the order of respondent No.1 therefore, same is not sustainable in the eyes of law as the law laid down in Ghulam Mohy-ud-Din's case (PLD 1964 SC 829); After addition of section 24-A in the General Clauses Act. it is the duty and obligation of public functionaries to redress the grievance of citizen with reasons alter applying independent mind. In arriving to this conclusion I am fortified by the following judgments:

29. Messrs Airport Support Services's case 1998 SCMR 2268 and Zain Yar Khan's case 1998 SCMR 2419.

30. The impugned order of respondent No.2 is not in accordance with law laid down by Honourable Supreme Court. It is settled proposition of law that judgment of Honourable Supreme Court is binding on Each and every organ f State by virtue of Articles 189 and 190 of the Constitution. In this view of the matter the impugned order of respondent No-2 is not sustained to me eyes of law and the same is set aside. Since I propose to remand the case to respondent No. 2 to decide the same afresh and shall pass order with reasons after perusing the material which was before respondent No.1. In this view of the matter I do not think that it would be proper for me to see anything with regard to the contentions raised by both the learned counsel before me. The petitioner's counsel is directed to appear before respondent No.2 in his office on 29-3-2001 at 11.00 a.m. who is directed to pass fresh order in accordance with law till 30-3-2001. In case respondent No.2 fails to pass fresh order till the aforesaid date, then petitioner shall be released on bail -subject to furnishing his bail bonds in the sum of Rs.50 lacs with two sureties to the satisfaction of D.R. (J) of this Court. In case respondent No.2 decided the representation of petitioner against him, then petitioner is well within his right to avail proper remedy provided under the law before the competent forum.

31. H.B.T./Y-4/L Order accordingly.