AHMED FAHIM MUGHAL vs MUHAMMAD SALEEM KHAN, DISTRICT MAGISTRATE

1. ' SAJJAD ALI SHAH, C J.--Petitioner named above is himself detenu and has called in question order of detention, dated 12th August, 1990, passed against him by District Magistrate (South), Karachi, under section 3(1) of Maintenance of Public Order Ordinance, 1960, read with Government Notification, dated 15th June, 1978. Vide this order, petitioner is detained for a period of 30 days from the date of the said order. Only one ground of detention is mentioned in the said Order which is reproduced hereunder verbatim in the same English as has been used:-- "His activities are reportedly indulging or likely to indulge in a manner prejudicial to the safety and maintenance of public order."

2. ' Order of detention impugned in this petition is based upon report, dated 11th August, 1990, of S.S.P., District South, Karachi addressed to the Deputy Commissioner (South) Karachi, with a request to pass order of detention against the petitioner for 30 days. Reason given in the report of S.S.P. Is very short and simple to the effect that petitioner is acting in a manner prejudicial to the State and general public as well. It would be pretinent to mention here at this stage that on behalf of respondents learned Additional Advocate-General appeared but on their behalf no counter- affidavit has been filed denying or disputing the facts alleged in the memorandum of petition. Nor any material has been produced before us in support of the ground of detention against the petitioner.

3. ' It is stated in the petition that the petitioner is a P.C.S. Officer in Grade-19 and was working as Private Secretary to the erstwhile Prime Minister of Pakistan since 15-3-1989 based at camp P.M.

4. House Karachi. Before that petitioner was Deputy Secretary Services and General Administration Department, Government of Sindh. Petitioner continued to serve Ex-Prime Minister after dismissal of her Government on 6th August, 1990, upto 11th August, 1990, when at 3.00 a.m. On 12th August, 1990, he was awakened from his house by A.S.P. Sardar Majeed and other armed policemen and was taken to Clifton Police Station, fromwhere he was shifted to Central Prison, Karachi and lodged in "C"

5. Class. It is further stated in the petition that petitioner was served by S.H.O. Of P.S. Clifton with order of detention, dated 12th August 1990, alongwith copy of letter of S.S.P., (South) Karachi, dated 11th August, 1990, and in both the order and the letter this fact is mentioned that the petitioner was acting in a manner prejudicial to the State and general public. It is also mentioned in the petition that upto his arrest, petitioner has been all along working as Private Secretary to the Ex-Prime Minister of Pakistan and even after dismissal of the Government continued to work with her as such there was no time left with him for indulging in any such activities prejudicial to the safety and maintenance of public order as is alleged in the order of detention and report of S.S.P.

6. ' Legal aspect of this matter is that under section 3 of Maintenance of Public Order Ordinance, Government is empowered to pass order of detention and take such person in custody if the Government is satisfied that it is necessary to do so with a view to preventing any person from acting in any manner prejudicial to public safety or maintenance of public order. From the very language used in the section as stated above particularly when "satisfaction" as qualified with eventuality of "it is necessary so to do" it becomes indisputably manifest that "satisfaction" is to be objective in nature and not subjective of such nature to allow the authorities to act on whims and caprices without there being material before them in support of grounds of detention. Had it not been the intention of the legislature, words it is necessary so to do" would not have been used to demonstrate without ambiguity that "satisfaction" is subjective in nature. In the case of Mir Abdul Baqi Baluch v. The Government of Pakistan and others, reported in PLD 1968 SC 313, it is held that High Court in its power of judicial review can examine order of detention and can insist on disclosure of materials on which executive authority had acted, subject to the right of State to claim privilege in respect of secret information. It is further held, that mere production of order of detaining authority in proof of "satisfaction" is not sufficient. What High Court is concerned with is to see that executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that requirements of law have been satisfied. Observation of the Supreme Court goes further, to say that it is not uncommon that even high executive authorities act upon the basis of information supplied to them by their subordinates.

7. In the circumstances, it cannot be said that it would be inreasonable for the Court, in proper exercise of its Constitutional duty, to insist won a disclosure of materials upon which the authority had so acted so that it should satisfy itself that the authority had not acted in an "unlawful manner". It is, herefore, mandatory requirement of law that there should be sufficient material before the executive authority to act upon it in order to justify passing of order of detention. Such material may contain specific instances of the past conduct. In support of the proposition further reference can be made to the case of (1) Moula Bakhsh v. Government of Sindh and another, reported in PLD 1988 karachi 18, and (2) Zafar Iqbal Papu v. District Magistrate, Karachi East and 2 thers, reported in PLD 1988 Karachi 275. Further, requirement is that order of detention will not be sustainable if it is passed with mala fide intention and without judicious application of mind on the basis of allegations which are vague nature in support of which either no material is produced or material is roduced which is inadequate. Reference be made to the case of Fakir Imdad Ali District Magistrate and 2 others, reported in PLD 1987 Karachi 530.

8. ' In the light of legal position ennqciated above, it appears that grounds of detention used against the petitioner by the executive authority is based on legation which is vague in nature and in support thereof no specific instances we been quoted, nor any material is produced in proof thereof. No onter-affidavit is filed by the respondents and no material is produced in the Court in support of ground of detention. Furthermore, no stand is taken by the respondents in rebuttal of the facts and averments made in the memorandum of the petition.

9. ' For the facts and reasons mentioned above, we are of the considered view that order of detention is not sustainable under the law, as such we hereby quash the same. In the result, petition is allowed.

10. ' On 21st August, 1990, we had allowed this petition by a short order for reasons to be recorded later, which are now given above.