Form No.

HCJD/C-121

ORDER SHEET
LAHORE HIGH COURT
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
W.P.No.10926/2014
SAJJAD HUSSAIN
VS
DISTRICT COORDINATION OFFICER, LAYYAH AND OTHERS.
Sr. No. of Date of order/ Order with signature of Judge, and that of
Orders/ Proceeding parties of counsel, where necessary.
Proceeding

21.08.2014 Mr. Rafiq Ahmad Malik, Advocate for petitioners.

Mr. Mubashir Latif Gill, Assistant Advocate General with
Nadim ur Rehman District Coordination Officer, Layyah,
Salah ud Din Ghazi, District Police Officer, Layyah,
Muhammad Abid Deputy Superintendent of Police, Ijaz
and Ayub SHOs.

This judgment shall form the detailed reasoning of my

earlier short order of even date, whereby, three matters (i)
W.P.No.10926/2014 “SAJJAD HUSSAIN versus DISTRICT
COORDINATION OFFICER, Layyah and others”, (ii)
W.P.No.10971/2014 “MUHAMMAD RAMZAN versus DISTRICT
COORDINATION OFFICER and others” and (iii)
W.P.No.10972/2014 “MUHAMMAD GHULAM MUSTAFA
versus DISTRICT COORDINATION OFFICER and others, were
allowed.

2. Briefly the facts are that respondent/ DCO, Layyah vide

separate orders No.4032 dated 06.08.2014, No.4078 dated
08.08.2014 and No.4079 dated 08.08.2014 directed detention of
Fayyaz, Qadeer Ahmad and Ghulam Yahya, respectively for
certain periods, on almost similar grounds that they are (i) hard
liner and supporter of Pakistan Awammi Tehrek/TMQ, create ill
will and hatred amongst public by delivery fiery speeches and
inciting the general public to resort to disharmony, (ii) active
member and supporter of an organization which is openly
opposed to the constitutionalism in the country, create ill will
among masses and provoke them to revolt against Government
Institutions and authorities and that (iii) their activities are
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inciting general public to resort to agitation and create instability
and anarchy in the society and they are acting prejudicial to
public safety, tranquility and public peace.

3. Report and parawise comments have been received from

District Coordination Officer, Layyah and District Police Officer,
Layyah. The report submitted by District Coordination Officer,
Layyah nothing more than repetition of charges already levelled
in the impugned detention orders, whereas, in his report the
District Police Officer, Layyah has given a very brief history to the
effect that concerned S.H.O had submitted reports to his office
showing antecedents of the detenus, which were forwarded to the
District Coordination Officer, Layyah with a request to issue
detention orders under section 3(1) of the West Pakistan
Maintenance of Public Order, 1960 for maintaining peace and
tranquility.

4. The Law officer was directed to argue the cases and

produce before the court whatever the material is available
against the detenus. Thus, lengthy hearing has been given to the
parties.

5. The learned Assistant Advocate General could only refer to

one Rupt No.27 dated 07.08.2014 of police station Saddar, Layyah,
showing that Qadeer Ahmad and Ghulam Yahyah members of
Minhaj-ul-Quran entice public and compel them to have sit-in. As,
on the face of it the said report had been tempered, D.S.P and
S.H.O of the concerned police station were called along with
entire relevant record and the S.H.O admitted that said rupt had
not been entered in the police station record or even in any other
record in the office of D.S.P or the D.P.O. In this respect separate
contempt proceedings have been initiated against the concerned.
The learned Law Officer argued that detenus Fayyaz Hussain,
Muhammad Qadeer and Ghulam Yahya are supporters of
Pakistan Awammi Tehrek, they create ill will and hatred amongst
public by delivering speeches and incite general public to revolt
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against the government institutions and authorities. But on
inquiry by the Court whether these activities are not covered by
an penal clause of Pakistan Penal Code or the Anti-Terrorist Act,
1997, as most of the allegations referred above are criminal
offences under the Anti-Terrorist Act, 1997 and why criminal
cases were not registered after the information had been conveyed
to the authorities, the learned Law Officer remained unable to
reply.

5. This Court in the case “JAMEEL AHMAD versus DISTRICT

COORDINATION OFFICER, MULTAN and others” (2013 P.Cr.L.J.
1322), has held that “The liberty of a citizen, save in accordance with
law is protected by the Constitution of Islamic Republic of Pakistan,
1973, and this Court being custodian of the Constitution has to jealously
protect and safeguard such fundamentally guaranteed rights.” In the
case “FEDERATION OF PAKISTAN through Secretary, Ministry of
Interior, Islamabad, versus Mrs. AMATUL JALIL KHAWAJA and
others” (P L D 2003 Supreme Court 442), the Hon’ble Supreme
Court of Pakistan, while setting down specific criteria to gauge
whether a detention order is valid or not, held as under:-
“S. 3(1) ---Preventive detention---Requirements to be
satisfied by an order of preventive detention enlisted.
An order of preventive detention has to satisfy the following
requirements:

(i) the Court must be satisfied that the material before the
detaining authority was such that a reasonable person would
be satisfied as to the necessity for making the order of
preventive detention; (ii) that satisfaction should be
established with regard to each of the grounds of detention,
and, if one of the grounds is shown to be bad, non-existent or
irrelevant, the whole order of detention would be rendered
invalid; (iii) that initial burden lies on the detaining authority
to show the legality of the preventive detention, and (iv) that
the detaining authority must place the whole material, upon
which the order of detention is based, before the Court
notwithstanding its claim of privilege with respect to any
document, the validity of which claim shall be within the
competence of the Court to decide.

In addition to these requirements, the Court has further to be

satisfied, in cases of preventive detention, that the order of
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detention was made by the authority prescribed in the law
relating to preventive detention; that each of the requirements
of the law relating to preventive detention had been strictly
complied with; that "satisfaction" in fact existed with regard
to the necessity of preventive detention of the detenu; that the
grounds of detention had been furnished within the period
prescribed by law, and if no such period is prescribed, then
"as soon as may be"; that the grounds of detention should not
be vague and indefinite and should be comprehensive enough
to enable the detenu to make representation against his
detention to the authority prescribed by law; that the grounds
of detention are not irrelevant to the aim and object of this
law and that the detention should not be for extraneous
considerations or for purposes which may be attacked on the
ground of malice.”

The Hon’ble Supreme Court of Pakistan further provided

guidelines for the detaining authority, as to on what conditions
must exist, which would render their exercise based on their
“satisfaction”. The relevant paragraph is reproduced hereunder:-

“S. 3(1)---Constitution of Pakistan (1973), Art. 199---

Preventive detention---Judicial review---Scope---
"Satisfaction" of the detaining Authority---Nature---Court
can see whether the "satisfaction" about the existence of the
requisite condition is a "satisfaction really and truly"
existing in the mind of the detaining Authority or one
"merely professed by the detaining Authority" ---Court, in
proper exercise of its Constitutional duty can insist upon
disclosure of, the materials upon which the Authority had
acted so that it should satisfy itself that the Authority had not
acted in an "unlawful manner" ---Principles.

The Court can see whether the satisfaction about the existence
of the requisite condition is a satisfaction really and truly
existing in the mind of the detaining authority or one merely
professed by the detaining authority. A duty has been cast
upon the High Court, whenever a person detained in custody
in the Province is brought before that Court, to "satisfy itself
that he is not being held in custody without lawful authority
or in an unlawful manner". This Constitutional duty cannot
be discharged merely by saying that there is an order which
says that he is being so detained. If the mere production of an
order of detaining authority, declaring that he was satisfied,
was to be held to be sufficient also to "satisfy" the Court then
what would be the function that the Court was expected to
perform in the discharge of this duty. Therefore it cannot be
said that it would be unreasonable for the Court, in the proper
exercise of its Constitutional duty, to insist upon a disclosure
of the materials upon which the authority had acted so that it
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should satisfy itself that the authority had not acted in an
"unlawful manner".”

6. As shall be seen from the above reproduced portion of

judgment from the cited case, it is manifest that edifice of
satisfaction is to be built on the foundation of evidence, as
conjectural presumption cannot be equated to that of
“satisfaction”; it is subjective assessment and there can be no
objective satisfaction. In exercise of jurisdiction under Article 199
of the Constitution of Islamic Republic of Pakistan, 1973, if this
court comes to a conclusion that the grounds mentioned in the
detention order are not supported by sufficient material, then
there is nothing stopping this court from exercising the power of
judicial review. There is plethora of judgments on the point that
the material should be of such a nature by examination of which,
a man of common prudence must form his opinion that detention
order has been rightly passed and the detaining authority is
required to establish each and every ground of detention on the
basis of sufficient material to justify its order. If the material on
any one of such ground is missing then the whole detention order
would loose its sanctity and would be liable to be set-aside.

7. In the case “GULZAR AHMAD versus DISTRICT

MAGISTRATE and another” (1998 P.Cr.L.J. 1790), it was held
that fact of person being liable to prosecution for commission of
an offence in ordinary criminal Court cannot be a ground for
preventive detention under the Ordinance. In the instant cases,
no ground whatsoever has been mentioned by respondent No.1
and the impugned orders on the face of it are clear indicative of
the fact that the said authority neither examined the material
nor applied its independent judicial mind.

8. Admittedly, none of the detenus has been enlisted in the

4th schedule. Section 11-EE of the Anti-Terrorism Act, 1997,
provides that where any information is received that a person is
an activist, office bearer or an associate of an organization, or in
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any way concerned or suspected to be concerned with such
organization or affiliated with any such group or organization,
the name of such person be placed in list entered in the Fourth
Schedule. As such, if at all there was some material available
with the government against the detenus, their names must
have been placed in the Fourth Schedule and then would have
been required to execute a bond so that their activities could be
kept under watch. Unless and until any such order placing
their names in the 4th schedule is passed, it could not at all be
said that they are involved in anti state activities.

9. Furthermore, Section 154 of the Code of Criminal

Procedure, 1898 only requires laying an “information” about the
commission of a cognizable offence. The word “information”
has been defined in BLACK’S LAW DICTIONARY SIXTH EDITION

(Centennial Edition (1891-1991), as “An accusation exhibited against a person

for some criminal offense, without an indictment.” Meaning thereby it
is quite an initial stage and first step to set the law into motion
by registration of a criminal case, where after, such information
may be probed into and only then it can be concluded whether
such information was true so as to lead towards indictment, or
not. On the other hand, as discussed above with reference to
the celebrated judgments of the Hon’ble Supreme Court of
Pakistan, “sufficient” grounds must exist which would firstly
satisfy the conscious of the detaining authority and such
satisfaction may consist upon such a material, on the basis of
which even a man of common prudence would have no other
option except to form an opinion tilting towards the detention
order. BLACK’S LAW DICTIONARY SIXTH EDITION (Centennial Edition

(1891-1991), had defined the word “sufficient”, as “Adequate,

enough, as much as may be necessary, equal or fit for end proposed,
and that which may be necessary to accomplish an object.” Therefore,
as compared to information within the meaning of Section 154
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Cr.P.C., the stage to establish “sufficient” grounds to pass a
detention order requires strict adherence to the solid material
collected by the agencies. As such, it can safely be concluded
that before passing an detention order, the authorities must
have a recourse to Section 154 Cr.P.C., when the allegations
levelled against the detenus in the detention orders constitute a
criminal offence under Anti-Terrorism Act, 1997, Pakistan
Penal Code or any other law, as in this case most of the
allegations levelled against the detenus are criminal offences.
Furthermore, under section 11L of the Anti-Terrorism Act, 1997
a person who receives an information about involvement of a
person in an offence covered by Anti-Terrorism Act, 1997, and
he believes or suspects that some one has committed an offence
under the above Act, he is under a legal compulsion to disclose
such belief or suspicion to the police officer.

10. For what has been discussed above, here in this case
neither the names of the detenus were ever placed in 4th
schedule, nor they were proceeded against under the Anti-
Terrorism Act, 1997 for committing criminal offences covered
by the law, ibid. Further, there is no other material what to talk
of “sufficient” to justify the impugned detention orders, thus,
the orders passed by the respondent authority miserably fail to
reach the standards as set by the Hon’ble Supreme Court of
Pakistan, in the judgment referred, supra. Consequently, all
these three writ petitions have been allowed by setting-aside
the respective impugned detention orders.

(MUHAMMAD QASIM KHAN)

JUDGE.
Javed*