GOVERNMENT OF PUNJAB, HOME DEPARTMENT Versus Hafiz MUHAMMAD SAEED
This matter originated from petitions for leave to appeal filed by the Government of Punjab and the Federation of Pakistan against a Lahore High Court judgment that allowed a habeas corpus petition and ordered the release of the respondents, who had been detained under the West Pakistan Maintenance of Public Order Ordinance, 1960. The government argued that because a Review Board, a constitutional body under Article 10(4) of the Constitution of Pakistan 1973, had extended the detention, the High Court lacked jurisdiction under Article 199 to review the legality of that detention. The Supreme Court observed that the government failed to provide any current material justifying the respondents' continued detention and admitted that no complaints of objectionable activities had been received since the respondents' release. Consequently, the Court held that the issue of preventive detention was no longer a live issue. While acknowledging the legal force of the government's argument regarding the Review Board's authority, the Court declined to rule on it, dismissing the petitions as the underlying necessity for detention had ceased to exist.
- Does the extension of preventive detention by a Review Board under Article 10(4) of the Constitution of Pakistan 1973 completely oust the jurisdiction of the High Court under Article 199?
- Can a court decline to adjudicate a legal question regarding preventive detention if the underlying necessity for such detention has ceased to exist?
- Section 3, West Pakistan Maintenance of Public Order Ordinance 1960
- Section 26, West Pakistan Maintenance of Public Order Ordinance 1960
- Article 10(4), Constitution of Pakistan 1973
- Article 199, Constitution of Pakistan 1973
NASIR-UL-MULK, J .---These petitions for leave to appeal have been filed respectively by the Government of the Punjab and the Federation of Pakistan, assailing the judgment of the Lahore High Court in Writ Petition No. 6208 of 2009, allowing the Habeas Corpus Petition of the respondents, Hatiz Muhammad Saeed and three others and set aside their orders of detention, directing their release.
2. The respondents were detained for a period of 30 days under section 3 read with section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960, by orders issued by the District Co-Ordination Officers Lahore, Khanewal and Rawalpindi on 12th and 13th December, 2008. The period of detention was further extended by the Secretary Home Department, Government of Punjab on 9-1-2009 for a further period of 60 days. The Review Board on 9-3-2009 made a further extension of the detention period for 60 days.
3. The Attorney-General for Pakistan as well as Advocate-General, Punjab, had contested the writ petition and raised preliminary objections to the maintainability of the petitions on the ground that since the Review Board, a Constitutional Body constituted under Article 10(4) of the Constitution had extended the preventive detention of the detenus upon examining the material against them, the High Court was not possessed with jurisdiction to examine the legality of the detention. This argument did not prevail with the High Court. On facts the Government justified the detention on the basis of a resolution passed by UNO, directing travel restriction, freezing of funds and imposition of other embargoes on certain organizations including Jamat-ud-Dawa to which the respondents belong, alleging their involvement in terrorism. Additionally, confidential and sensitive reports of intelligence agencies were also submitted to the Court, which were examined in camera. The Court, however, did not find the material sufficient and substantial to justify the respondents' detention.
3.(sic). Mr. Saeed Yousaf, Additional Advocate-General Punjab, appearing for the Government of Punjab, upon our inquiry, was not in a position to produce any material that could justify placing the respondents under preventive detention. Rather he volunteered that the Provincial Government had not received any complaints of their involvement in any objectionable activities since their release by the High Court in June, 2009.
4. Mr. K. K. Agha, Additional Attorney-General for Pakistan however, assailed the impugned judgment on a legal plan. He referred to Article 10(4) of the Constitution that provides for setting up of a Review Board, empowered to extend the period of preventive detention. The learned Additional Attorney-General contended that once the said Constitutional Body extended the period of detention after examining the material placed before it, the High Court was left with no power to re-examine the same material in exercise of powers under Article 199 of the Constitution. That in view of the extension of the period of the respondents by the Review Board, comprising of the Judges of the High Court, the writ of Habeas Corpus was not maintainable.
5. Whatever may have been the circumstances or the material available against the respondents at the time of hearing of Writ Petition by the High Court, the statement made by the learned Additional Advocate-General before us that there has been no complaint against the respondents since their release is sufficient to hold that presently no cause exists to put the respondents in preventive detention. Reversal of the judgment of the High Court and ordering detention of the respondents on the basis of the orders passed more than a year would not be legally warranted when presently the respondents are admittedly not involved in any activity necessitating their preventive detention. Thus we do not consider the question of preventive detention as a live issue.
6. As regards the legal question raised by the learned Additional Attorney-General, we are of the view that the arguments addressed on the question are not without force. However, the acceptance of the contention would not lead to the reversal of the impugned judgment, as we have held that the issue of preventive detention is no longer alive. The legal point so raised can be examined in another appropriate case.
7. With these observations, the petitions are dismissed and leave to appeal declined.
S.A.K./G-7/SC Leave refused.