Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Writ Petition No.31899 of 2023

Imran Abbas Bhatti VERSUS Govt. of Punjab etc.

JUDGMENT
Date of Hearing: 23.05.2023
Petitioners by: M/s Muhammad Azhar Sulehria, Rana Naveed Khalid, Rana
Ashiq Ali and Mudassar Naveed Chatha, Advocates.
Respondents by: Mr. Asad Abbas Dhother, Assistant Advocate General Punjab
Mr. Waqar Abid Bhatti, Deputy Prosecutor General Punjab.

SAFDAR SALEEM SHAHID, J.– Through this single

judgment Writ Petitions No.31964, 32370, 32401, 32403, 32410,
32418, 32440, 32448, 32462, 32464, 32468, 33185, 32043, 32373,
32374, 32838, 33357, 32956, 33245, 33273, 33287, 33486, 33645,
32368, 32457, 32877, 33285, 31899, 32923, 33648, 32371, 32396,
33662, 32390, 32867, 32873, 33242, 33367 and 33660 all of 2023 are
proposed to be decided, as similar questions of law and facts are
involved therein.

2. All the aforesaid petitions have challenged the vires of the

orders passed by the Deputy Commissioners of different districts,
whereby different persons have been put under preventive detention
on the reports of District Police Officers of the concerned districts to
the effect that conduct of the said individuals was prejudicial to the
public peace, mainly on the grounds that the said orders have been
passed only on the basis of source reports of District Police Officers
concerned but without showing any valid or clear reason and that too
without adopting legal procedure and applying independent mind to
the question whether Section 3 of the Punjab Maintenance of Public
Order Ordinance, 1960 should be invoked against the detenues.

3. Detailed reports/parawise comments with regard to the

contentions raised in all the petitions were called for from the
respondents-Deputy Commissioners concerned. However, despite
clear directions, reports/parawise comments in Writ Petitions
No.32877, 33285, 32368, 32457, 33357, 33645, 32956, 33287, 33245,
W.P.No.31899/2023 2

33273, 32418, 32464, 32468, 32403, 32462, 32412, 32440, 32401,

33185, 32448, 32370, 32410, 33660, 32838, 32374, 32373, 32043,
32923, 33648, 32873, 33242, 33367, 33486 and 31964 of 2023, have
not been filed by the Deputy Commissioners. However, out of the said
petitions only in Writ Petitions No.32370, 32410, 33486 and 31964 of
2023 the District Police Officers have filed reports which show that
the preventive detention of the detenues therein was recommended on
the apprehensions of SHOs concerned.

4. As regards Writ Petitions No.31899, 32371, 32396, 33662,

32882, 32390 and 32867 of 2023, the reports/parawise comments
have been submitted by the Deputy Commissioners showing the main
reason for detention order of the detenues therein that as per reports of
the District Police Officers concerned in view of the fact that they
were acting in a manner prejudicial to the public safety, peace,
tranquility and maintenance of public order, the matter was put up in
District Intelligence Committees (DIC) and as per unanimous decision
the detenues were ordered to be detained under Section 3 of the
Punjab Maintenance of Public Order Ordinance, 1960 (the
Ordinance), for the periods mentioned therein.

5. The learned counsel for the petitioners have argued that the
impugned detention orders having been passed only on the basis of
source reports of District Police Officers concerned, without showing
any valid or clear reason and that too without adopting legal
procedure and applying independent mind to the question whether
Section 3 of the Punjab Maintenance of Public Order Ordinance,
1960 should be invoked against the detenues, are illegal, void and
without lawful authority. In this regard placed reliance on the cases
reported as Federation of Pakistan through Secretary, Ministry of
Interior, Islamabad vs. Mrs. Amatul Jalil Khawaja and others (PLD
2003 SC 442) and Muhammad Abdaal alias Abdali vs. Government of
Punjab and others (PLD 2020 Lahore 471).

6. On the other hand, the learned law officer questioned the

maintainability of the writ petitions on the ground that in view of
W.P.No.31899/2023 3

availability of adequate remedy of making a representation to the

government as provided by Section 3(6) of the Ordinance and
submitted that in view of the conduct of the detenues being
prejudicial to the public peace the Deputy Commissioners have
exercised the powers as per law and ordered for their preventive
detentions. It is further submitted that this Court being not
empowered to substitute its findings with that of the detaining
authority as the Constitutional jurisdiction in this regard is confined
only to see as to whether the grounds mentioned in the detention order
were reasonable.

7. Arguments heard. Record perused.

8. Before proceeding further in the matter it is noticed that

preventive detention is "a form of administrative detention, ordered
by the executive authorities, usually on the assumption that the
detainee poses future threat to national security or public peace."
Article 10 of the Constitution empowers the legislature to enact
preventive detention laws to deal with persons acting in a manner
prejudicial to the integrity, security or defence of Pakistan, or any
part thereof, or external affairs of the country, or public order, or
the maintenance of supplies or services subject to the safeguards
and protections provided by clauses (4) to (9) of the said Article.
The Ordinance is one of the laws in force, which provides for
preventive detention and control of persons and publications for
reasons connected with public safety, public interest and the
maintenance of public order in the Province of Punjab. Section 3(1)
of the Ordinance is relevant for the purpose which is reproduced
below for ease of reference:-

“3(1) Government, if satisfied that with a view to preventing

any person from acting in any manner prejudicial to public
safety or the maintenance of public order, it is necessary so to
do, may, by an order in writing, direct the arrest and detention
in such custody as may be prescribed under sub-section (7), of
such person for such period as may, subject to the other
provisions of this section, be specified in the order, and
Government, if satisfied that for the aforesaid reasons it is
necessary so to do, may, [* * *] extend from time to time the
W.P.No.31899/2023 4

period of such detention, for a period not exceeding six

months at a time.”

No doubt Section 3(6) of the Ordinance provides for making a

representation to the government, but question remains that can it
be considered to be an "adequate remedy" within the meaning of
Article 199 of the Constitution so as to bar a person from filing a
constitutional petition straightaway before the High Court without
availing the said remedy? A remedy is adequate or not depends on
the circumstances of each case. The Hon’ble Supreme Court in the
case of Dr. Sher Afgan Khan Niazi vs. Ali S. Habib and others
(2011 SCMR 1813), has held that the expression "adequate
remedy" in Article 199 of the Constitution connotes an efficacious,
convenient, beneficial, effective and speedy remedy which should
also be inexpensive and expeditious. The apex Court has laid down
the following tests for determination of the adequacy of relief:

"(i) If the relief available through the alternative remedy

in its nature or extent is not what is necessary to give the
requisite relief, the alternative remedy is not an 'other
adequate remedy' within the meaning of Article 199.
(ii) If the relief available through the alternative remedy,
in its nature and extent, is what is necessary to give the
requisite relief, the 'adequacy' of the alternative remedy
must further be judged, with reference to a comparison of
the speed, expense or convenience of obtaining that relief
through the alternative remedy, with the speed, expense
or convenience of obtaining it under Article 199. But in
making this comparison those factors must not be taken
into account which would themselves alter if the remedy
under Article 199 were used as a substitute for the other
remedy.
(iii) In practice the following steps may be taken:
(a) Formulate the grievance in the given case, as a
generalized category; (ii) If the relief available through
the alternative remedy, in its nature and extent, is what is
necessary to give the requisite relief, the 'adequacy' of the
alternative remedy must further be judged, with reference
to a comparison of the speed, expense or convenience of
obtaining that relief through the alternative remedy, with
the speed, expense or convenience of obtaining it under
Article 199. But in making this comparison those factors
must not be taken into account which would themselves
W.P.No.31899/2023 5

alter if the remedy under Article 199 were used as a

substitute for the other remedy.
(b) Formulate the relief that is necessary to redress that
category of grievance;
(c) See if the law has prescribed any remedy that can
redress that category of grievance in that way and to the
required extent;
(d) If such a remedy is prescribed the law contemplates
that resort must be had to that remedy;
(e) If it appears that the machinery established for the
purposes of that remedy is not functioning properly, the
correct step to take will be a step that is calculated to
ensure, as far as lies in the power of the Court, that that
machinery begins to function as it should. It would not be
correct to take over the function of that machinery. If the
function of another organ is taken over, that other organ
will atrophy, and the organ that takes over, will break
down under the strain;
(f) If there is no other remedy that can redress that
category of grievance in that way and to the required
extent, or if there is such a remedy but conditions are
attached to it which for a particular category of cases
would neutralize or defeat it so as to deprive it of its
substance, the Court should give the requisite relief under
Article 199;
(g) If there is such other remedy, but there is something
so special in the circumstances of a given case that the
other remedy which generally adequate, to the relief
required for that category of grievance, is not adequate to
the relief that is essential in the very special category to
which that case belongs, the Court should give the
required relief under Article 199.”
9. In the circumstances, if the procedure for obtaining relief
through some other proceedings is too cumbersome or the relief
cannot be obtained without delay and expense, or the delay would
make the grant of relief meaningless, this Court would not hesitate
to issue a writ if the party applying for it is found entitled to it,
simply because the party could have chosen another course to
obtain the relief which is due.

10. Article 4 of the Constitution stipulates that every citizen,

wherever he may be, and every other person for the time being in
Pakistan has an inalienable right to enjoy the protection of law and
to be treated in accordance with law. In particular, no action
W.P.No.31899/2023 6

detrimental to his life, liberty, body, reputation or property shall be

taken except in accordance with law. Then, Article 9 commands
that no person shall be deprived of life or liberty save in accordance
with law and Article 10 provides safeguards as to arrest and
detention. Articles 15 to 20 provide deal with freedom of movement,
etc., freedom of assembly, freedom of association, freedom of trade,
business or profession, freedom of speech, etc. right to information
and freedom to profess religion and to manage religious institutions.

11. In view of the provisions of the Constitution every citizen,

wherever he may be, and every other person for the time being in
Pakistan has an inalienable right to enjoy the protection of law and
to be treated in accordance with law, no action detrimental to his
life, liberty, body, reputation or property shall be taken except in
accordance with law and the fact that in view of the reports
submitted by the respondents, which are not supported by any
material showing any reasonable ground for involvement of the
detenues showing that they were acting in a manner prejudicial to the
public safety, peace, tranquility and maintenance of public order, no
case for their protective detention could be made out.

12. For the purpose of passing an order for protective detention

there should be sound material showing that the said individual/detenu
was busy in any activity prejudicial to public safety or the
maintenance of public order, in any of the documentary forms like
SMS/Voice messages, WhatsApp Messages, social media accounts,
Pamphlets/handouts, Posters, play cards, Photographs, Paintings,
Caricatures, Books/Literature, Newspapers, Audio/Video CDs,
Electronic and Digital material, Wall chalking, Banners/Pena flex,
recording of demonstrations in Rallies, Material on Facebook, twitter
or any other social media account, call records, geo-fencing through
CDR, Speeches in Public Meetings, Radio & T.V. shows,
Surveillance report in any form, reports from international agencies,
suspicious transaction report from any financial institution,
membership record of affiliated association or political party etc., but
W.P.No.31899/2023 7

in the instant case no such record could be brought on record or even

referred during the course of arguments.

13. Even otherwise, it cannot be said that detention order passed on

the basis of material placed before the Court could not be set aside as
this Court is not empowered to substitute its findings with that of the
detaining authority, for the reasons that it is not a question of
substitution of finding as this Court is not only within its
Constitutional jurisdiction to examine the grounds for detention but to
see as to whether detention order could be justified on such grounds
and if some view, after having taken into consideration the material
placed before it contrary to that of detaining authority is formed it
does not amount to substitution.

14. Unfortunately, unrest in the country ensued on 9th May, 2023

after the arrest of a political leader which was flashed on media
showing people came out for agitation and demonstrations and with
no time it turned into unholy mob who committed mischief at
different places in the country. Confused in the situation, the
government has opened a front, showing no application of mind,
driven by passionate wishes; directed or dictated but not sound and
logical started dragging the ordinary citizens in criminal litigation
with a ratio of one in 3 cases/proceedings minimum. Government has
launched attack on the acclaimed miscreants at the time when there
was no law and order situation, a condition which necessitates for
application of law relating to preventive detention. In case there was
some criminal activity the government had sufficient time to collect
the material and book the individuals in criminal cases, so that one
could know about the nature of allegations to properly defend and
answer the charge which is the essence of due process and access to
justice as enshrined in Article 10-A of the Constitution.

15. The unpleasant and surprise events of 9th May, 2023 under the
shadow of unbridled mob have defaced the peaceful and democratic
image of the country and it was the responsibility of the government
to arrange for law and order, but not in a way as resorted on the fateful
W.P.No.31899/2023 8

time. Riots are suppressed with force under the law as regulated under
Section 127 to 132 of Cr.P.C. and not in the way adopted by the
government to pick and detain the citizens under the umbrella of
Maintenance of Public Order Ordinance, 1960 without registration of
criminal cases.

16. This court on 30.03.2023 in W.P.No.20258/2023 titled as

“Hafiz Ali Raza Vs Deputy Commissioner, Lahore, etc.” (2023 LHC
1304) in a similar situation has directed the authorities to collect
certain material before passing an order for preventive detention to
meet the threshold as set out through different judicial precedents of
Superior Courts like; Federation of Pakistan through Secretary,
Ministry of Interior Islamabad vs. Mrs. Amtul Jalil Khawaja & others
(PLD 2003 SC 442), Muhammad Irshad vs. Government of the
Punjab and others (2020 P.Cr.L.J. 206), Shahid Rasool vs.
Government of the Punjab through Secretary Home Department,
Lahore & 6 others (2023 YLR 333) and Muhammad Abdaal alias
Abdali vs. Government of Punjab & others (PLD 2020 Lahore 471).

17. As regards the cases wherein the respondents have not even
submitted reports/parawise comments despite specific directions, it is
noticed that if there were any reasonable grounds for preventive
detention of the detenues therein, the same should have been brought
on record in order to assist the Court to pass an appropriate order after
considering all the facts and circumstances of the case. In the
circumstances, it is held that non-submission of reports/parawise
comments only supports the contentions of the petitioners that there
was no material against the detenues for their preventive detention.

18. In view of the above discussion it is concluded that the orders

impugned being bereft of any supportive material, are declared to
have been passed in flagrant violation of section 3 of the Maintenance
of Public Order Ordinance, 1960, therefore, by accepting all writ
petitions mentioned in para No.1, the following orders:-

No.DC/SB/Detention-2023/288, 298, 322, 323, 295, 292,

290, 285-A, 291, 324, 312, 314, 295, 313, 315, 316, 305,
303, 321, 307, 308, 311, 304, 320, 309, 302, 301, 300, 299,
 W.P.No.31899/2023 9

281 dated 10.05.2023, No.DC/SB/Detention-2023/326, 332,

334, 329, 328 dated 11.05.2023 and No.DC/SB/Detention-
2023/343 dated 12.05.2023 passed by the Deputy
Commissioner, Hafizabad;
No.DC/GA/527/CNF, DC/GA/519/CNF, DC/GA/522/CNF,
DC/GA/523/CNF, DC/GA/530/CNF, DC/GA/532/CNF,
DC/GA/534/CNF, DC/GA/536/CNF, DC/GA/537/CNF and
DC/GA/563/CNF dated 11.05.2023, DC/GA/562/CNF
dated 12.05.2023 and DC/GA/626/CNF dated 15.05.2023
passed by the Deputy Commissioner, Wazirabad;
No.HC/989, HC/998 dated 10.05.2023, HC/1007 dated
11.05.2023 and HC/1024 dated 17.05.2023 passed by the
Deputy Commissioner, Sialkot;
No.DC/GA/435/CNF dated 10.05.2023, RDM/376 dated
11.05.2023, RDM/396, RDM/400 & No.856/HC(G) dated
12.05.2023, RDM/424 dated 14.05.2023 passed by the
Deputy Commissioner, Lahore;
No.DC/GA/459/CNF, DC/GA/544/CNF, DC/GA/505/CNF
and DC/GA/510/CNF dated 11.05.2023, DC/GA/647/CNF
dated 16.05.2023 passed by the Deputy Commissioner,
Gujranwala;
No.1491/HC(G), 1493/HC(G) and 1496/HC(G) dated
11.05.2023 passed by Deputy Commissioner, Jhang;
No.219/G/RDC dated 10.05.2023 passed by the Deputy
Commissioner, Mandi Bahauddin;
No.HCG/1813 dated 10.05.2023 passed by the Deputy
Commissioner, Narowal;
No.885/HC(G) dated 12.05.2023 passed by the Deputy
Commissioner, Gujrat;
No.PS/1352 dated 16.05.2023 passed by the Deputy
Commissioner, Nankana Sahib; and
No.HC(G)/DCO/SKP/2181 dated 15.5.2023 passed by the
Deputy Commissioner, Sheikhupura;

regarding preventive detention of the detenues mentioned therein are

hereby set aside and they are ordered to be released forthwith, if not
required in any other case. There shall be no order as to costs.

(Safdar Saleem Shahid)

Judge
Approved for reporting

Saleh Judge