Shah Muhammad Khan Vs The State etc

-\-.L'

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BAI\INU BENCH

(Judicial Department)

W.P.No.293-Bl2023

Shah Muhammad Khan Vs.

The State etc.

AND

WP No.364-812023 Faisal Nawaz v. The State etc WP No.392-8,12023 Khana Jan v. The State etc WP No.402-812023 Shattid Ahmad v. The State etc WP No.403 -8,12023 Sajjad Ahmad v. The State etc WP No.406-812023 Asim Khattak v. The State etc WP No.407-812023 Amjid v. The State etc WP No.45l-812023 Zafar Hayat Khan v. The Government of Khyber Pakhtunkhwa through Secretary Home etc

Muhammad Asghar Khan etc v. Government 4 WP No.468-812023 of Khyber Pakhtunkhwa through Chief Secretary etc

WP No.470-812023 ShabNiaz Khan v. The State etc WP No.472-812023 Kamal Shah v. The State etc WP No.484-812023 Muhammad Akbar Khan etc v. The State etc WP No.565-812023 Inam Ullah v. The State etc WP No.634-8,12023 Nek Nawaz Khan etc v. The Government of Khyber Pakhtunkhwa through Secretary Home etc

WP No.686-B,12023 Muhammad Kamran v. Government of Khyber Pakhtunkhwa through Secretary Home etc WP No.754-812023 Imran Ahmad v. Government of Khyber Pakhtunkhwa through Secretary Home etc

WP No.794-812023 Sajjad Ahmad v. The State etc

WP No.798-812023 lnayatullah v. The State etc

WP No.819-812023 Hikmat Yar Khan v. Federation of Pakistan through Secretary Interior etc

JUDGMENT

For petitioners: IWs Ahmad Farooq Khattak, Zahid Mehmood, Shahid Khan Bangash, Suleman Muhammad Khan (Ghaznavi), Masood Iqbal Khattak, Sultan Mehmood Khan, and Noor Zada Khan Ahmadzai, Advocates

For respondents: Mr.Najib Ullah, A.A.G.

In attendance: Zia-ud-Din, DPO, Aqiq Ullah, SP (Inv),Bannu, Hamid Iqbal, ADC, Shamim Ullah, AAC-I, Karak, Amj ad Hussain, DSP, Takht-e-Nasrati,Farooq Khan, DSP (Legal), Lal Zahir, Superintendent, H&TAs Deptt., Yasin Kamal, SHO Miryan, Zafar Khan, ASHO City, Bannu

Date of hearing: 02.05.2024 *****rr*r(

Dr. Khurshid lqbal, J.-

1.These 19 constitutional petitions were filed inJune 2023. Their background is traceable to the 09 May 2023 political agitations by the members of Pakistan Tehreek-e-Insaf (PTI), a political party whose leader Mr. Imran Khan, a former Prime Minister, was arrested in the premises of Islamabad }Iigh Court. The agitations flared up across the countrycreating serious law and order problem as attacks on public places, including military officers' residences and offices, and damage to private property were widely reported. In an apparent crackdown, PTI workers were detained in different parts of the country, under 3 of the West Pakistan Maintenance of Public order, ordinance, 1960 (MPo). As a matter of course, the detention orders were challenged before this Court at its principal seat in Peshawar, and its Benches. This Bench heard a number of petitions, granted interim relief in some cases, and finally decided as many as 15 petitions by its common judgment passed on 13.06.2023. The petitions in hand were filed subsequently. The matter factually as well as

v legally being one and the same, we propose to decide them by this single opinion.

2.Like in those decided earlier, the petitioners in these petitions hail from Bannu and Karak. Their detention (impugned) orders were issued by the Deputy Commissioners of their respective native districts. The crux, tone and tenor of each impugned detention order are the same which need not be spelt out separately. However, we deem it appropriate to reproduce the germane facts of one each from each district below:

While detaining the petitioners concerned, the Deputy Commissioner, Bannu passed the following orders:

No.253IDC/AG-I/UIPO Dated 24.06.2023

t. ..1

Whereas, on the basis of information received from the District Police Officer, Bannu vide his office letter No.3417 dated 24.06.2023, wherein, it has been reported that the activities of the following individual is prejudicial to *re public safety and maintenance of public order:

S# Name Father name Address

Whereas, it has been reported that the above-mentioned individual is involved in staging protests/process/rallies against the govemment and state on the basis of their political differences.

And whereas, on the basis of evidence/material placed before me, I am convinced to detain the above-mentioned individual, involved in the anti-state activities and their presence will pose grave threat to the public safety and is likely to cause breach of public peace and order.

Similarly, the Deputy Commissioner, Karak, passed the fbllowing orders:

WHEREAS, it has been reported by the District Police Officer, Karak vide letter No.l950/LB dated 10.05.2023 that Ex-MNA Shahid Khattak S/O Mumtaz Khan WO Khada Banda, Tehsil Takht-e-Nasrati, District Karak are detrimental to public peace and tranquillity. He has fuither reported that the said Shahid Khattak relates to PTI parly and encouraging workers to protest against government for road blockage as well as creating

perplexity in law and order to general public. He uses unhealthy language against all forces, agencies and administration. Thus, the activities of the above named person bent upon panic and lawlessness and spread treason against general public.

Endst: No.2225|DC/L&O/3-MPO Dated 06.06.2023

3.We heard arguments of learned counsels for the petitioners and the learned A.A.G., and gone through the record made available before us.

4.At the very outset, it is worth noting that except the copies of the Notifications under Section 3 of the MPO, not even an iota of material was produced to substantiate the opinion formed by the Deputy Commissioners of the Districts concerned as to their satisfaction about the petitioners' detention for maintenance of public order and safety.

5.The protection of liberty is a fundamental right guaranteed under Article 9 of our Constitution. It provides that no person shall be deprived of life or liberty save in accordance with law. Article 10 guarantees the rights of an individual to be informed of the reason for arrest and detention; to consult and be defended by a legal practitioner of his/trer choice; and be produced before a magistrate within (instantaneously) a period of twenty-four hours when arrested.However, the above safeguards are not available in case of preventive detention. This is becausethe constitutional underpinning of preventive detention comes from sub- articles (3) to (S) of article 10 which are exceptions to the safeguards as to arrest and detention as a fundamental right.

6.The aforesaid sub-articles enunciate the subject matter a preventive detention law shall relate to, duration of detention and review of a detention order and the right ofhearing as such review and the subject of the order (the persons whose preventive detention may be ordered). The MPO-the relevant statutory law-must be compliant with sub-articles (3) to (8) of article 10. This constructs what we may call the first test: whether the preventive detention order is compliant to the aim and objective of the law authorizing it.

7.A close reading of the language of Section 3 MPO shows that the Government [or a public authority authorized by the government] while

\l passing a preventive detention order must be "satisfied". In Abdul Baqi Baluch (1968)t, one of the earliest cases, the Court ruled that a public functionary concemed is not under a duty to issue preventive detention order for reasonable ground(s). Being an executive power, "satisfaction" is subjective in nature. Of great importance, however, is the fact that subjective satisfaction is not unbridled. The test to be applied is that an incumbent public functionary must ensure that it has sufficient material before it while subjectively satisffing its judicious (though not judicial) conscience. From this, a second test that may be deduced is that the preventive detention order must be reasonable.

8.While the MPO can't be tagged as a law against political adversaries, yet one can't lose sight of a perception that its Section 3 is generally invoked against political adversaries by a government on the pretext of maintenance of public order and safety. In this perspective, Section 3 earns a criticism of its being weaponized against political dissent, The law of preventive detention is fluid in nafure for two reasons: firstly, its application aims at curtailing liberty of an individual without any explicit and actionable criminal charge with a view to protect the society from the individual's anticipated illegal or criminal activity. Secondly, it gives wide discretion to the executive authority of its being "satisfied" to order preventive detention. It always carries an apprehension of its use on the basis of mere suspicion. For this reason, it attracts scathing criticism in broader but diverse perspectives of criminal law, human rights, the rule of law, political pluralism, and good governance, which we will discuss later in this opinion.Under constitutional doctrine of checks and balance system, it is always amenable to judicial review by higher courts. In the succeeding lines, we proceed to discuss the cases.

g. The significance of the right to liberty vis-i-vis preventive detention could be understood from the observation-"the presumption is that every imprisonment without trial is prima facie unlawful"-the Supreme Court spelt out in the Begum Shorish Kashmiri case.2 Such imprisonment, most notably, in the form of preventive detention without Abdut Baqi Baluch v The Government of Pakistan, (PLD I 968 Supreme Court) 3 I 3. t

2Government of West Pakistan v. Begrm Agha Abdul Karim Shorish Kashmiri (PLD 196e SC 14).

w any lawful justification is subject to judicial review by a High Court.3 It is, however, worth noting that the judicial review power of a High Court is not that of appeal or revision. As was held in Shamas Din,the Court has to apply the test of reasonableness andobjectivity.4 Thecourt has to see that "satisfaction" of the Govemment, as per Section 3 of the MPO, while forming an opinion about exercising its power of preventive detention, must be real, meaningful, reasonable and convincing. It follows that mere production of a detention order is not sufficient. The Court will be justified to compel an authority to produce before it the material which underpinned the order. The Court, in its review has to ensure that the authority did not pass an impugned order in unlawful manner.S ln Begum Shorish Kashmiri refened to above, the Supreme Court opined that a High Court has to see that the ground in an impugned order is relevant to the purpose of the law authorizing it and that it has been passed on the strength of some material before it and with a degree of reasonableness. In Liaqat Ali,it was held that the incompatibility of an impugned order with the objective of the law may lead one to infer that there were extraneous considerations and mala fide.6 The Court has to review the impugned order from the perspective of "without lawful authority" and "in lawful manner", used in Article 199 (b) (l) of the Constitution. The former phrase is suggestive of the fact that an authority has no power under the law to pass such an order. The latter means that it is to be in accordance with law. In other words, these phrases respectively indicate that an impugned order shall not suffer with jurisdictional and procedural defects.

10.We would now study the phrase "public order", which has not been defined in the law. In P. Romanatha Aiyar's Advanced Law Lexicon, a number of connotations of the phrase have been reproduced fromvarious Indian cases. A few of them may be cited here for quick reference:

This is an expression of wide connotation and signifies the state of tranquillity prevailing among the members of political society as a result of the internal regulation of the Government.

The concept of "public order" must be distinguished from the concept of "law and order" and "security of the State." In some cases, the difference was illustrated by means of three imaginary concentric circles, the narrowest (src) relating to security, the 3Maulvi Farid Ahmadv. Government of West Pakistan (PLD 1965 Lah. 135)' oshamas Dinv Deputy Martial Lav, Administrator, Lahore (PLD 1979 Lah.74). tAbdut Baqi, supran. l.

6liaqat Ali v Government of Sindh through Secretary, Home (PLD 1973 Karachi 73).

PageT of 14

next to public order and the third and the larges to law and order. In other cases, the differentiation was based on the degree ofthe disorder although this test is unsatisfactory.

Public Order means even tempo of the life of the community taking within its fold even a specified locality and a substantial section of the society.T

11.In the case of Federation of Pakistan through Secretary, Ministry of Intertor, Islamabad, the Supreme Court has laid down certain tests with detailed explanation.8 In a recent case of Ameer Hussain, the Lahore High Court has summarized those test in the following wordse:

(i)[T]he 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)[T]he satisfaction should be established with regard to each of the grounds of detention and if one of the grounds is shown to be bad, nonexistent or irrelevant, the whole order of detention would be rendered invalid;

(iii)[T]he initial burden lies on the detaining authority to shorv the legality of the preventive detention;

(iv)[T]he 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.

(v)[T]he Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention and that every requirements of the law relating to preventive detention had been strictly complied with;

(vi)['I]he 'satisfaction' in fact existed with regard to the necessity of preventive detention of the detenue;

(vii)[T]he edifice of satisfaction is to be built on the foundation of evidence because conjectural presumption cannot be equated with satisfaction; it is subjective assessment and there can be no obj ective satisfaction ;

(viii)[T]he grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the 'shakil Ahmad Khan, P. Ramanatha Aiyar's Advanced Luw Lexicon, Lexis Nexis, Vol. 3 J-P, 5th Edition 2017, p. 4204.

Federatton of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amarul Jalil Khwaja and other (PLD 2003 Supreme Court 442). nAmee, Hussain v. Government of Puniab and other (PLD 2022. Lah. 6l).

detenue to make representation against his detention to the authority, prescribed by law;

(ix)[T]he 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'.

12.This Court has also been able to develop a good deal of jnrisprudence on preventive detention. Besides, the case of Aftab Alam decided at the principal seat this month, a2022 case of Noor Muhammad (WP # 864-M12022 (Mingora bench) decided on 07 September 2022), may be referred.'o Other cases are: Anwar Ali, Hunayun, Khanan, Khurram Shahzad, Asif Gohar and Riz,vonullah.rr

13.The right to liberty is a universally recognized human right. The Universal Declaration of Human Rights, states that no one shall be t2 subjected to arbitrary arrest, detention or exile (Article 91. This protection is elaborated in Article 9 of the International Covenant on Civil and Political Rights, 1976 (ICCPR)." In its General Comment 29, the Human Rights Committee, established under the ICCPR, has even stated that the right to liberty is a rule of peremptory norm.'a Pakistan, as a party to the ICCPR, has binding (also called perfect) obligation to respect (the duty of the State to refrain from violation), to protect (duty of the State to prevent violation by third parties); and fulfil (duty of the State to formulate policy) human right for its citizens.

14.It may also be heartening to discuss the matter from the perspective of Islamic law. In his famous work: Islamic Riyasat (Urdu), Syed AbulA'la Maududi has discussed the importance of fundamental Home & '0Noor Muhammad v. Government of Klryber Pakhtunkhwa through Secretary Tribal Affairs Department and other (PW864-I\,{/2022; decided jointly with three similar WPs # 865, 872 and 884-M12022. (One of us Dr. Khurshid Iqbal was a member of the Bench has authored the judgment) 'tAnwar Ali v: District Magistrate, Dir Upper and 8 others (PLD 2020 Peshawar 44);

Hamayun v. D.C.O, Kohat and 6 others (2014 P Cr. L J 173); Khanan v. D.C.O, Kohat and 5 others (2014 MLD 105); Khurram Shahzad v. Goyernment of Khybqr Pakhtunldtwa (KPK) through Secretary Home and T.A. and 6 others (2013 YLR 2268); Asif Gohar v. Sardar Aman Khan and 2 others (2010 YLR 2219); and Riaoan Ullah and 2 others v. Secretary Home and Tribal Affairs Govt. of N.-\{.F.P. Peshowar and 3 others

4009 MLD 1482).

" United Nations General Assembly Resolution (UNGA Res.) 217-A, 10 December 1948. Text at https://wrvw.un.org/cn/about-us/universal-declaration-of-human-rights (accessed 22 June23).

t' TINGA Res. 22004 (XXI), l6 December 1966; enforced 23 March 1976 per article 49. https://www.ohchr'.orden/instruments-mechanisms/instruments/international-covenant- civil-and-political-rights (accessed 22 June 23).

tn HRC, General Comment 29, HRI/GEN/I/ Rev.9 (vol. I), 234,parall at httns :i/di gitallibrary.un. org/record/4S I 5 5 5 ?ln=en (accessed 22 June 23)

v rights vis-i-vis the role of the State in securing public interest. The following passages are relevant to our discussion.l5

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15.White the above passage is self-explanatory, the point relevant to our discussion as gleaned from it is that the govetnment of an Islamic State must act responsibly and couldn't be allowed to abridgc an individual's rights to life, property and freedom and tiberty. On balance, however, an Islamic State has the right (power) to enact legislation and policies in the domain of criminal law (ta'zir only) to secure public

interest (maslahah) provided they do not blatantly go against the principles of Shari aft. Thisis called Siyasah Shar'iyah or the policies of Islamic Government. The meaning and scope of the doctrine of Styasah may beunderstood from the following views of Muhammad Hashim Kamali, a Professor of Islamic law:

[I]n the usage of the fuqaha, Siyasah Shar'iyah implies decisions and policy measures taken by the imam and the 'ulu al arnr' on matters for which no specific ruling could be found in the Shari'ah. In this sense, Siyasah Shar'iyah, as Khallaf observes, is tantamount to acting on maslahah or public interest which the Lawgiver has neither upheld nor ovemrled. Siyasah Shar'iyah,in other words, "denotes administration of public affairs in an Islamic polity with the aim of rcalizing the interests of, and preventing harm to, the community in harmony with the general principles of the Shari'ah even if it disagrees with the particular rulings of the mujtahidun." Siyasah, in this sense, may entail adopting policies and enacting laws in all spheres of government, be it in the area of domestic or foreign relations, constitutional, fiscal, administrative or judicial affairs. All measures taken to ensure an efficient management of public affairs fall within the purview of Siycsah Shar'iyah. The only restriction in all this is that Siyasah Shar'iyahmust not contravene the Shari'ah itself.16

16.It follows from the above that while an Islamic State has the power what may be called rhe Siyasaft power to enact a law, such as, one on preventive detention, such power shall not be used as a tool for derogation of fundamental rights guaranteed by the Shar'iyah. This brings us to hold that while enforcing a preventive detention law, a government has to act with great care and sense of responsibility. In other words, the government has not only to acknowledge but honour the limits the laws impose on it.

17.Limited govemment is one of the key factors of the rule law. Legal limits on govemment's power play an instrumental role in promoting the rule of law. Such limits, however, tend to stand relegated into rurrow scope (also catled formal or thin conception) when understoodin relation to diverse political goals, such &s, human rights, democracy and development (also dubbed as thick conception of the rule of law). The former is concemed with the manner in which the laws are introduced; their content specified and given prospective effect. The latter take a broader view of the rule of law, addressing whether the law is just and good or unjust or bad. The earlier formulations of the former conception were offered rather proverbially, for example, "wherever law ends, tyranny begins'', as stated by John Lock, or "[i]n America the law is the tu Muhammad Hashim Kamali, 'siyasah Shar'iyah or the Policies of Islamic Government' , 6(l) The American Journql of Islamic Social Sciences ( I 989), 59 at 6l .

king", as pronounced by Thomas Paine.lT In the contemporary context, the United Nations has elaborated it in the following words:

The rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.ls

18.The World Justice Project (WJP) offers a joint definition of both conceptions as under:

[A] rules-based system in which the following four universal principles are upheld: (1) the government and its offrcials and agents are accountable under the law; (2) the laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security ofpersons and property; (3) the process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; and (4) access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.le

19.The WJP has developed a Rule of Law Index comprising of the following nine basic concepts:

[L]imited government powers; absence of comrption; order and security; fundamental rights; open government; effective regulatory enforcement; access to civil justice; effective criminal justice; and informal justice [...].'o

20.Limited government power (thin conception), the factor most relevant to our discussion, means that the ruler is subject to legal restraints by means of constitutional and institutional checks and balances. If follows that the govemment's officials and agents understand that their power is limited and that they are accountable under the law on the doctrine of judicial review.2rlt funher follows that when the limit is not observed, the judiciary has to step in to discharge its rule of law obligation.

t'Cited in Lord Bingham, 'The Rule of Law', Judicial Studies Institute Journal,12008 ll ppl2l-144,at123.

It tIN Doc. Sl2}o4l6t6 (2004), para.6.

'' Juan C. Botero, Alejandro Ponce, Measuring the Rule of Lau,, The World Justice Project - Working Paper Series No.00l, November, 2011, at: http://ssrn.con/abstract: 1966257. (Accessed 2l May 24).

'o Ibid. p8.

rbid. p9.

21.While discussing the role of judges in ensuring the rule of law in the UK within the context of the UK's Constitutional Reform Act, 2005, Lord Bingham observed:

But the statutory aflirmation of the rule of law as an existing constitutional principle and of the Lord Chancellor's existing role in relation to it does have an important consequence: that the judges, in their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so. They would be bound to construe a statute so that it did not infringe an existing constitutional principle, if it were reasonably possible to do so.22

22.Commentators of the rule of law also argue it is a must for political officials to observe limits on their political conduct for survival of democracy. Given the political context of these petitions, it is worth observing that a constitutional democracy works on the basis of relationship between a representative government and the citizenry. Such a govemment should be mindful of the fact that'oa necessary condition for a citizen to support [it,] is that [it does] not transgress [the citizens'] fundamental rights."23

23.We would now revert to the cases in hand. The relevant portion of the impugned detention orders of the Deputy Commissioner of Bannu, already reproduced above, is that on the basis of what he called "evidence/material" before him, he felt "convinced" that the petitioner(s) were"involvedin anti-state activities and his/their presence will pose grave threat to the public safety and is likely to cause breach of public peace and public order." It is astonishing to note that the Deputy Commissioner of Karak, upon just receiving a letter from the District Police Officer, felt convinced to issue the detention orders without applying his own mind to the material placed before him to form an opinion as to whether the ,.'.', ' circumstances may warrant the issuance of such orders or not.We have already discussed above that while the govemment or its functionaries it has authorized may issue an order of preventive detention against an individual; the order must pass certain tests. In not a single case, any evidence/material worth the name was produged during the hearing. It LordBingham, supra n. 17.

'3 Barry R. Weingast, 'The Political Foundations of Democracy and the Rule of Law', 9l (2) American Political Science Review (June 1997), 245-263, at246.

follows that the respondents had no material before them to form a subjective opinion in support of the impugned orders. It means that the impugned orders fail to qualify the tests as aforesaid.There was no material before the respondents; no question arises as to satisfaction of each ground; the respondents failed to discharge their initial burden fii show the legality of the impugned orders; the respondents failed to show any material let alone whole material upon which they passed the impugned orders; the respondents failed to satisff this Court that they passed the impugned orders as prescribed in the law; they failed to show that the 'satisfaction' in fact existed; the impugned order being not based on evidence appear to be conjectural; the grounds of detention are vague and indefinite.The grounds of detention, however, were furnished promptly. In certain cases, no detention orders were issued at all.ln others, a list containing the names of the petitioners was prepared, which is totally silent as to who prepared it, let alone providing an iota of evidence to warrant the issuance of detention orders against the petitioners.

24.For the reasons articulated and the legal principles referred to above, we have reached to an inesistible conclusion that the impugned detention orders are not sustainable on facts as well as on law. These petitions, therefore, succeed. They are allowed. The impugned orders are set aside.

Announced

(Ghafoor Zaman)

-(il,.,'iriEir

(D.B)

Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Dr. Khurshid Iqbal