PLJ 2003 SC 161
[Appellate Jurisdiction]
Present: javed iqbal and faqir muhammad
khokhar, JJ.
FEDERATION OF PAKISTAN,
through SECRETARY MINISTRY OF INTERIOR, ISLAMABAD-Petitioner
versus
Mrs. AMATUL JALIL
KHAWAJA and others-Respondents
C.P. No. 475-L of
2003, decided on 3.3.2003.
(On appeal from the
judgment dated 17.2.2003 of the Lahore High Court, Lahore, passed in W.P. No. 62/2003)
(i)
Constitution of Pakistan,
1973--
—Art. 199-Article 199 of Constitution of Pakistan would
reveal that words "without lawful authority" and "in unlawful manner"
appearing in Article 199 (b) (1) cannot be considered as tauto
logus or superfluous and in fact deserve due
consideration. [P. 178] G
(ii) Practice and
Procedure-
—Deputy Attorney General presented material
before a Supreme Court Bench in Chamber which was never placed before High
Court-Effect-It cannot be taken into Consideration. [P. 177] B
(iii)
Security of Pakistan
Act, 1952 (XXXV of 1952)--
—-S. 3-Word satisfaction defined and
explained-. [Pp.
167 to 169] A
(iv) Security of Pakistan Act, 1952 (XXXV of 1952)--
—-S. 3-An order of detention, which is really
passed for an ulterior purpose and not because detaining authority is really satisfied
that it is necessary to detain intended detenue with
a view to preventing him from acting prejudicially to certain objects will be
void. [P. 177] D
(v) Security of Pakistan Act,
1952 (XXXV of 1952)--
—S. 3-Constitution of Pakistan,
1973 Art. 199-Whether High Court would be competent to examine document/material
regarding which privilege claimed-There could be no other opinion that it is for
High Court to examine while exercising its Constitutional jurisdiction material on which satisfaction of detaining authority
is based and to determine whether it was
sufficient for satisfaction of detaining authority-When a privilege is claimed even then High Court would be
competent to examine
document/material regarding which privilege is sought in order to determine as to
whether such privilege is being claimed in advisedly, lightly or as a
matter of routine. [P. 177] E
(vi) Security of Pakistan Act,
1952 (XXXV of 1952)-
-—S. 3-Constitution of
Pakistan,
1973, Art. 185(3)--Leave to appeal- Detention orders challenged before High
Court-Whether High Court can examine the reasonableness of the grounds of
detention so as to satisfy itself that the detenue has not
been held in custody without lawful authority or in an unlawful manner or whether
High Court's order amount to substitution of detaining authority's order-It is not the satisfaction of only
detaining authority but judicial conscious is also
required to be satisfied that satisfaction of detaining authority should have been based on actual and real facts and not on mere suspicion, doubt or conjectural presumptions-Even the subjective satisfaction does not mean satisfaction of the authority without any base-No doubt that the words "satisfaction" has been used in Section 3 of the Security of Pakistan Act, 1952 but the powers conferred upon the High Court by the Constitution under Article 199 cannot be limited or taken away by a sub- Constitutional legislation and therefore, a balance is to be maintained between the powers conferred upon the High Court by the Constitution and the relevant provisions of sub-Constitutional legislation-It is for the High Court to consider as to whether there were grounds upon which any reasonable person could have been satisfied as to the necessity of detention-In this regard-Supreme Court is fortified by the dictum as laid down in Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313- -Supreme Court is riot agree with the prime contention of learned Deputy Attorney General that on the basis of material placed before the Court
the detention order could not be set aside as the High Court was 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 or otherwise for the reasons that it is not the question of substitution of finding and the High Court is not bound to endorse or subscribe the satisfaction of the authority irrespective of the fact whether
any material is available or not-High 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 opposite view after having taken into consideration the material placed before it contrary to that of detaining authority is formed does not amount to substitution-Conclusions of High Court being well based does not warrant interference-Leave declined. [P. 178] F
required to be satisfied that satisfaction of detaining authority should have been based on actual and real facts and not on mere suspicion, doubt or conjectural presumptions-Even the subjective satisfaction does not mean satisfaction of the authority without any base-No doubt that the words "satisfaction" has been used in Section 3 of the Security of Pakistan Act, 1952 but the powers conferred upon the High Court by the Constitution under Article 199 cannot be limited or taken away by a sub- Constitutional legislation and therefore, a balance is to be maintained between the powers conferred upon the High Court by the Constitution and the relevant provisions of sub-Constitutional legislation-It is for the High Court to consider as to whether there were grounds upon which any reasonable person could have been satisfied as to the necessity of detention-In this regard-Supreme Court is fortified by the dictum as laid down in Abdul Baqi Baloch v. Government of Pakistan PLD 1968 SC 313- -Supreme Court is riot agree with the prime contention of learned Deputy Attorney General that on the basis of material placed before the Court
the detention order could not be set aside as the High Court was 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 or otherwise for the reasons that it is not the question of substitution of finding and the High Court is not bound to endorse or subscribe the satisfaction of the authority irrespective of the fact whether
any material is available or not-High 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 opposite view after having taken into consideration the material placed before it contrary to that of detaining authority is formed does not amount to substitution-Conclusions of High Court being well based does not warrant interference-Leave declined. [P. 178] F
(vii) Security of Pakistan
Act, 1952 (XXXV of 1952)-
—S. 3-There is no bar in it that a Court can
see whether satisfaction about existence of requisite condition is a satisfaction really
and truly existing
in the mind of
detaining authority or one merely proposed by detaining authority. [P. 177] C
Mr. Sher Zaman Khan, Deputy
Attorney General for Pakistan
and Rao Muhammad YosufKhan,
AOR
Advocate for Petitioner.
Mr.
Hamid Khan, ASC; Mr. Pervez
Inayat Malik, ASCTand Mr. Tanvir Ahmad, AOR for Respondents.
Date of hearing: 3.3.2003.
order
Javed Iqbal,
J.--This
petition for leave to appeal is preferred on behalf of Federation of Pakistan
through Secretary Ministry of Interior, Islamabad, assailing the order dated
17.2.2003 passed by learned Single Judge of the Lahore High Court, Lahore, in
chambers whereby the Writ Petition Bearing No. 62 of 2003 has been partly allowed
to the extent of detenues namely Dr. Umar
Karar Khawaja, Dr. Khizar All Khawaja, and Muhammad Usman Khawaja who were directed
to set at liberty forthwith if not required in any other case and dismissed to the
extent of detenues namely Dr. Khawaja
Ahmed Javed and Kh. Ahmed Naveed.
2.
Pursuant to order dated 30.12.2002 passed by the Federal Government in
exercise of powers as conferred upon it under the provisions as contemplated
under Section 3(l)(b) of the Security of Pakistan Act, 1952 (XXXV of 1952)
detaining Dr. Ahmad Javed Khawaja,
Ahmad Nadeem Khawaja sons of Haji Muhammad Yunus, Dr. Khizar Ali, Dr. Umar Karar sons of Dr. Ahmed Javed Khawaja and Muhammad Usman son of
Ahmad Naveed Khawaja on
account of their prejudicial activities against State on behalf of
some Foreign Government/Organization detrimental
to the Security of Pakistan the above named persons were directed to be
detained in any jail located within
the territorial jurisdiction of Province of the Punjab initially for a period of three months. The
grounds of detention were duly
sewed on the detenues who filed representations against the detention order before the Federal Government which are yet to be decided. Mr. Amatul Jalil Khawaja wife of Ahmad Javaid Khawaja (Respondent No. 1) preferred a Constitutional petition under Article 199 (1) (b) (i) of the Constitution of Islamic Republic of Pakistan 1973 assailing the said order which has been partly accepted to the extent of Dr. Umar Karar Khawaja, Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja while dismissed qua Dr. Khawaja Ahmed Javed and Kh. Ahmed Naveed, hence this petition.
sewed on the detenues who filed representations against the detention order before the Federal Government which are yet to be decided. Mr. Amatul Jalil Khawaja wife of Ahmad Javaid Khawaja (Respondent No. 1) preferred a Constitutional petition under Article 199 (1) (b) (i) of the Constitution of Islamic Republic of Pakistan 1973 assailing the said order which has been partly accepted to the extent of Dr. Umar Karar Khawaja, Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja while dismissed qua Dr. Khawaja Ahmed Javed and Kh. Ahmed Naveed, hence this petition.
3.
Mr. Sher
Zaman Khan, learned Deputy Attorney General appeared on behalf
of Federation of Pakistan and urged with vehemence that the provisions as
contemplated in Section 3 of the Security of Pakistan Act, 1952 has been
misinterpreted and misconstrued by ignoring the fact that the word
"satisfaction" always indicates the subjective satisfaction of the
Federal Government
concerning detention and the High Court while exercising its Constitutional
jurisdiction by no stretch of imagination can substitute its own findings
for that of
the Federal Government.
It is contended emphatically that the material qua detention of the
respondents produced emphatically that the material qua detention
of the respondents produced before
the learned Single Judge on 27.1.2003 and 3.3.2003 was indicative of the fact that sufficient evidence was collected
against the detenues and the evidence being highly sensitive in nature was to
be placed before the Review Board at
opportune moment which could not be produced before the Court due to its sensitivity. The learned Deputy
Attorney General argued that privilege
was claimed by the Federal Government under Articles 6 and 158 of the Qanun-e-Shahadat
Order, 1984 and in view of the dictum in the case of Mohtarma Benazir Bhutto v. President of Pakistan <PLD 1992 SC
492) which aspect of the matter has
been ignored by drawing adverse inference against the petitioner. It is urged with vehemence that the parawise comments
filed by the petitioner on 14.1.2003 make it abundant clear that the Al-Qaeda's
most wanted terrorists were being harboured and
facilitated at Manawan
Compound ownership whereof rests with Dr. Ahmed Javed
Khawaja and his family. It is pointed out that during
investigation of a criminal case got
registered against the detenue they have admitted
their contacts with terrorists namely
Abu Yasir (Al-Jazairi), Assadullah (Egyptian),
Sheikh Said Al-Misri (Egyptian) and Abu Faraj (Head of Al-Qaeda
North Africa network). It is mentioned that three Saudian
passports, three Egyptian passports,
one Afghani passport and the foreign currency of USA, Saudi Arabia,
Afghanistan, Iran and UAE were also recovered. It is argued firmly that the material placed before the learned Single Judge coupled with the other material collected against
the detenues establishes the fact that all the
detenues were involved in anti State activities
prejudicial to the Security of Pakistan but
the reasonableness of the grounds for detention
could not be examined properly and in its true perspective which resulted in serious miscarriage of justice. The
learned Deputy Attorney General
contended that the impugned judgment is inconsistent as the evidence produced before the Court was against all
the detenues but the detention order to the extent of three respondents have been set aside
which is not understandable. It is
also informed that recovery of a very sophisticated computer alongwith CPUs, Disks and Floppies being used to maintain contact with the terrorists was made. It
is also argued out that on the basis of available material the findings
of Federal Government cannot be substituted
by the learned Single Judge while exercising Constitutional jurisdiction which is limited in nature in such like
cases because the question of
sufficiency of evidence could not be examined. The learned Deputy Attorney General while referring the
provisions as contained in Article
129 of the Qanun-e-Shahadat Order, 1984 and Article
150 of the Constitution of Islamic Republic of Pakistan has stated that
presumption of truthness is attached to all official acts. The learned
Deputy Attorney General has referred
the following authorities:—
Abdul Baqi Baloch v. Government of
Pakistan (PLD 1968 SC
313); Government of West Pakistan v. Begum Agha
Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Farooq Ahmad Khan Leghari v. Federation
of Pakistan PLD 1999 SC-57; Mohtarma Benazir Bhuttoo v.
President of Pakistan PLD 1992 SC 492; Lahore
Improvement Trust v.
Custodian of Evacuee Property PLD
1971 SC 811; PLD 196 Lah 178; Tanveer A Qureshi v.
President of Pakistan PLD 1997 Lah. 263; Rehmani Gul
v. Rent Controller 1987 SCMR 866; Mehtab
Khan v. Rehabilitation
Authority PLD 1973 SC 451; Abul Ala
Maudoodi v. Government of West Pakistan PLD 1964 Kar. 478.
Maudoodi v. Government of West Pakistan PLD 1964 Kar. 478.
4. Mr. Hamid Khan, learned
ASC appeared on behalf of Respondent No.
1 and strenuously controverted the view point as
canvassed by learned
Deputy Attorney General at bar by contending that the detention order was based on mala fides because the detenues were directed to produce in a habeas corpus petition and a specific direction for their physical production was given on 27.12.2002 by the learned High Court. Mr. Hamid Khan, learned ASC supported the order impugned up to the extent of respondents being free from any illegality or infirmity. It is pointed out that bald allegations have been levelled against the respondents which could not be substantiated by producing evidence on the basis whereof it could be inferred that the grounds for the detention of the respondents were reasonable. It is urged that the allegations are vague and sketchy because no details regarding prejudicial activities have been mentioned in the order and besides that even the name of the countiy at whose instance the prejudicial activities were made has not been mentioned in the detention order. It is
argued that the provisions as contained in Section 6 of the Security of Pakistan Act, 1952 have been violated. Mr. Hamid Khan, learned ASC has
Deputy Attorney General at bar by contending that the detention order was based on mala fides because the detenues were directed to produce in a habeas corpus petition and a specific direction for their physical production was given on 27.12.2002 by the learned High Court. Mr. Hamid Khan, learned ASC supported the order impugned up to the extent of respondents being free from any illegality or infirmity. It is pointed out that bald allegations have been levelled against the respondents which could not be substantiated by producing evidence on the basis whereof it could be inferred that the grounds for the detention of the respondents were reasonable. It is urged that the allegations are vague and sketchy because no details regarding prejudicial activities have been mentioned in the order and besides that even the name of the countiy at whose instance the prejudicial activities were made has not been mentioned in the detention order. It is
argued that the provisions as contained in Section 6 of the Security of Pakistan Act, 1952 have been violated. Mr. Hamid Khan, learned ASC has
also invited our attention to the variations and
contradictions between the reports of Provincial Government and that of Federal Government.
It is urged
emphatically that no evidence worth the name could be collected against the
respondents but a futile attempt has been made to use their statements got
recorded while they were in police custody which being inadmissible cannot
be considered.
5. We have carefully examined the respective
contentions as agitated on behalf of
the parties in the light of relevant provisions of Constitution of Islamic Republic of Pakistan, the
Security of Pakistan Act, 1952, the Qanun-e-Shahadat
Order, 1984 and judicial precedents. It would be relevant to mention here at
this juncture that our security laws and anti- terrorism enactment are silent to.the effect
that Al-Qaeda is a terrorist organization
having its network at global level and is a serious threat to national/international piece, security and
tranquility. We have also perused the order impugned with care and
caution. The pivotal question which needs determination
would be as to whether sufficient incriminating material justifying the detention of respondents under
Section 3(l)(b) of the Security of
Pakistan Act, 1952 was available which could not be appreciated in its true perspective by the learned Single Judge who erred
in substituting his own opinion to that
of Federal .Government by misconstruing the provisions of Section 3 of
the Security of Pakistan Act, 1952 and misinterpreting the word "satisfaction" as used therein which
resulted in serious miscarriage of justice.
Before the said question could be answered in this
particular context we have thrashed out almost the entire law available on the
subject, details whereof as follows:-
Farooq Ahmed Khan Leghari v. Federation of
Pakistan (PLD 1999 SC
57), Al-Jehad Trust's case (PLD 1996 SC 324), Ghulam Jilani v. Government of Pakistan (PLD 1967 SC 373), Abdul Baqi
Baloch v. Government of Pakistan and others (PLD 1968 SC 313), Begum Nusrat
Bhutto v. Chief of Army Staff and another PLD 1977 SC 657; Sardar Muhammad Muqeem Khoso v. President of Pakistan (PLD 1944 SC 412), Abdul Raufv.
Abdul Hamid Khan (PLD 1965 SC 671), * Fazlul Quader Chowdhry u. Muhammad
Abdul Haque (PLD 1963 SC 486), S.R. Bommai v.
Union of India (AIR 1994 SC 1918), Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), State of Bombay v. Virkumar
Gulabchand (AIR 1952 SC
335), Ghulam Sarwar
v Union of India (AIR 1967 SC 1335),
Muhammad Yaqub v. State of Jammu and Kashmir (AIR 1968 SC 765), Union of India v. Bhanudas
Krishna Gawde (1977-1
SCC 834), Liverside v. Anderson (1942
AC 206), Ch. Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66), Woman Rao
v. Union of India (AIR 1981 SC 271), Braigan
and Me Bridge v. United
Kingdom 17 E.H.R.R. 539 (1993).
Liversidege's case (LR
1942 AC 206), Sibnath Banerji's
case LR 72 IA 241), Vimlabai
Deshpande's case (LR 73 IA 144).
The Government of East Pakistan
vs.'Mrs. Rowshan Byaya Shaukat Ali Khan (PLD 1966 SC 286), Emperor
p. Vimalabai Deshpande
(AIR 1946 PC 123), Arbab Muhammad Hashem
Khan on behalf of Arbab Abdul Ghafoor Khan and
another v. The Crown (PLD 1954 FC 1), Mohbub Anam v. The Government of.East
Pakistan (PLD 1959 Dacca 744), Sardar Fazlul Karim v. Government of
East Pakistan (1956 8 DLR 700), Ch. Muhammad Anwar v. Government of
West Pakistan (PLD 1963 Lab..
109), Greene v. Secretary of State for Home Affairs (1942 A
284), Subrahmadyen (AIR 1943 Lah. 329), Sardar Fazlul Karim v.
Government of East Pakistan (1956
8 DLR 700).
Liaqat Ali vs. Government
of Sindh through Secretary, Home Department and
another (PLD 1973 Karachi 78); Government of West Pakistan v. Begum Shorish Kashmiri PLD 1969 SC 14; Government of West
Pakistan v. Haider Nux Jatio PLD 1969 SC 210; Liveside
v. Sir Johan Anderson LR 1942 AC 206; King Emperor v. Vimlabai Deshpande LR 73 IA 144; Rehmat Elahi v. Government of
West Pakistan PLD 1965 Lah. 112 and Keshew Talpada v. Emperor
AIR IMS FC I.
Greene v. Secretary of State for Home Affairs 1941
AELR 388; Nakhuda Ali's case
1951 AC 66; Faridsons Ltd., v. The
Government
of Pakistan PLD 1961 SC 537; Harvard Law Review, vol.
56, p. 808; Legal Thesaurus by William C. Buston;
Commentary on the Constitution of India, Sixth (Silver Jubilee) Edn.,
Vol. N By Dr. (Justice) Durga Das
Basu; Corpus Juris Secundum, Vol. 16; Constitutional and Administrative Law, llth Ed. By Wade and Bradley; Constitution of Islamic Republic of Pakistan
by Shaukat Mahmood.
6. The judicial
consensus seems to be as unden-
(i) "An
Order of preventive
detention has to satisfy the requirements laid down by their
Lordships of the Supreme Court that is to say, (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 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
should be strictly complied with; that "satisfaction; in fact existed with
regard to the necessity of preventive detention of the detenue;
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 detenue to make representation against his
detention to the authority
prescribed by law; "that the grounds of detention, that is. they 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."
(Liaqat All vs. Government of Sindh
Through Secretary, Home, PLD 1973 Karachi 78) (Emphasis provided).
(ii) "The right of a person to a
petition for habeas corpus is a high prerogative right and is a constitutional
remedy for all matters of illegal confinement. This is one of the most
fundamental
rights known
to the Constitution. There being limitation placed on the exercise of this
right, it cannot be imported on the actual or
assumed restriction which may be imposed by any subordinate legislature. If
the arrest of a person cannot be
justified in law,
there is no reason why that person should not
be able to invoke the
.jurisdiction of the High Court immediately
for the restoration of his liberty which is his basic
right.
In all cases
where a person is detained and he alleges that his detention is unconstitutional
and in violation of the safeguards provided in the Constitution, or that it does
not fall within the statutory requirements of the law under which the detention
is ordered, he can invoke the
jurisdiction of the High Court, under Article 199 and ask to be released
forthwith. (PLD 1965 Lab.. 135). He need not wait for the opinion of the
Advisory Board before praying for a habeas
corpus. (AIR 1952 Cal. 26). However,
jurisdiction of High Court while examining the material before the detaining authority is not unlimited. When an
order passed by an executive authority detaining a particular person is challenged by invoking extraordinary
.jurisdiction of High Court it is always by means of judicial review and
cannot be treated as appeal or revision. The
Court cannot substitute its discretion for that of administrative agency. The
only function of the Court in such
cases is to see whether or not order of
detention is reasonable and objective." (PLD 1979 Lah 74). (Emphasis pro vided).
(iii) "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 (AIR 1953 SC 451). 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
saving 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. should
satisfy itself that the authorityjiad not acted in an
."unlawful manner",. (Abdul
Baqi Baloch v. Government of Pakistan PLD
1968 SC 13).
(Emphasis provided)
(iv) "High
Court cannot claim in the exercise of writ jurisdiction to usurp the functions of the authority in
which power has been vested nor to substitute their own decision for the
decision of that authority. Nor can the Court insist on being satisfied that there were materials
upon which it itself would have taken the
same action. It is in
this sense that it has been said that the Court is not
concerned with either the
adequacy or the sufficiency of the grounds upon which action is taken. The Court in order to be satisfied
as required by the Constitution. must know that there were
in fact grounds relatable to the purposes of the statute upon which the action
of the authority concerned could at all
have been founded after an honest application of the mind of the
authority concerned to all the relevant
considerations. The question,
however, that still remains to be considered is as to
whether the reasonableness of the action can be examined when the statute
itself does not require the authority to act upon reasonable grounds but
leaves him to act upon his own subjective satisfaction. In view of the provisions of Article 199 of the Constitution that
degree of reasonableness has at least to be stablished which has
been indicated in the case
of Abdul Baqi Baluch PLD
1968 SC 313. Otherwise, if an authority could protect himself by merely
saying that he believed
himself to be acting in pursuance of a statute then what would be the material
upon which the Court could say that it was satisfied that the detention or
impugned action had not been taken in an unlawful manner. The presumption is that
every imprisonment without trial and conviction is rima
facie unlawful" (Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14). (Emphasis provided).
7. On the touchstone of criterion as laid
down in above mentioned cases and keeping in view the judicial consensus we
intend at first instance to examine the material which was placed before the
learned Single Judge. The detention order dated 30.12.2002 and memorandum of
grounds of detention are reproduced herein below for ready reference: -
"No. 7/53/2002. S.III
Government
of Pakistan,
Ministry of
Interior
Islamabad, the 30th
December, 2002
ORDER
Whereas the Federal Government has been informed that M.S. Khawaja Ahmed Javed S/O Haji Muhammad Younis, Khawaja
Ahmed Naveed S/0 Haji
Muhammad Younis, Dr. Khizar
Ali Khawaja S/O Dr. Ahmed Javed,
Dr. Umar Karar Khawaja S/O Dr. Khawaja Ahmed Javed and
Muhammad Usman Khawaja S/O Khawaja Ahmed Naveed, Pakistan
nationals are indulging in activities
prejudicial to the Security of Pakistan.
And whereas Federal Government is satisfied that detention of the above mentioned
persons is essential.
Now, Therefore, in exercise of the powers conferred by clause (b) of sub-section (1) of
Section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952), the Federal
Government is pleased to direct that the said named persons be detained in any
jail in the Province of Punjab with immediate effect initially for a period of
three months.
(M. Irfan Kilan Jadoon) Section Officer (Police)"
MEMORANDUM OF GROUNDS
OF DETECTION.
Whereas the Federal Government has made an order clause (b) of sub-section (1) of
Section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952) directing that you be
detained.
Now, therefore, in pursuance of Section 6 of the said Act, you are hereby informed of
the grounds on which the order has been made to enable you to make a
representation in writing against the order.
You are also informed that under the law you have a right of making such representation.
The Federal Government is satisfy that you have been involved in anti-state activities
in Pakistan
on behalf of a Foreign Country/Organizations and, thus, your activities have
been prejudicial
to the Security of Pakistan. Therefore, with a view to preventing your from
acting in such manner, you shall be detained in any jail in the Province of Punjab
with immediate effect.
(Mr. Irfan Kilan Jadoon) Section Officer
(Police)"
8. The detention order and memorandum of
grounds of detention are indicative of. the fact that they were involved in
anti-state activities on behalf of a foreign country/organization prejudicial to
the Security of Pakistan and after having satisfied the detention order was issued.
There is no
denying the fact that edifice of satisfaction'is to
be built on the foundation of evidence as conjectural presumption cannot be equated
to that of satisfaction. We are conscious that it is subjective assessment and
strictly speaking
there can be no objective satisfaction because under the preventive laws action is
usually taken on suspicion and anticipation. Now it would be
appropriate here at this juncture to examine the evidence/material which
was
placed before the Court in support of detention order:-
(i) "PARAWISE COMMENTS ON BEHALF OF
RESPONDENT NO. 2.
Respectfully Sheweth: Para 1 Needs no comments.
Para 2 M/s Ahmed Javed
Khawaja, Ahmed Naveed Khawaja, Dr. Umar Karar
Khawaja, Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja have been detained on account their involved in
activities prejudicial to the Security of Pakistan under clause (b) of sub-section (1)
of Section 3 of the Security of Pakistan Act, 1952 (XXXV of 1952) vide Ministry of
Interior's Order No. 7/53/2002-S-III, dated 30th December, 2002 (copy annexed).
Para 3 Calls for no comments. Para 4 (i) to (vii) Needs no comments.
Para 4 (viii) The
petitioner's contention is not based on fact. In fact the answering
respondent had submitted a preliminary statement on 23rd December, 2002 and subsequently
submitted
parawise comments on 26th December, 2002 and another statement on
30th December, 2002 to the Honourable Court through Deputy
Attorney General for Pakistan after obtaining required information from the concerned quarters.
Para 5 Needs comments.
Para 6 It was revealed through investigation that the Al-Qaida's most wanted
terrorists were being harboured and facilitated at Manawan Compound
owned by Dr. Ahmed Javed Khawaja and his family. The detainees evidences that they have contacts with following hard core
terrorists:-
1. (a) Abu-Yasir
Al-Jazairi, Algerian/Moroccan National (Responsible for
Business of Al-Qaeda).
(b) Assadullah, Egyptian National
(Member of Al-Gamaat Al- Islamia Al-Qaeda).
(c) Sheikh Said Al-Misri, Egyptian National (Financial Chief of Al-Qaeda).
(d)Abu Faraj
(Head of Al-Qaeda North Africa network and deputy of Khalid Sheikh Muhammad).
2. Following foreign travel documents recovered from
their clearly prove that Khawaja's family
was involved in facilitating and harbouring
Al-Qaida elements.
(1)
Sudani Passports. 3
(2)
Egyptian Passports. 3
(3)
Afghani Passport. 1
3. Foreign
Currencies of USA, Saudi, Afghanistan, Iran and UAE were also recovered from their possession.
Para 7 Denied. An order for
their detention has been issued under the relevant law after collecting substantial
evidence as mentioned above.
Para 8 Needs no
comments.
In view of the above facts and circumstances, it is respectfully prayed
that the Houourable Court may be pleased dismiss this
petition being devoid of merit.
Dated 14.1.2003 On behalf of Respondent No. 1"
(iii) Parawise
comments on behalf of Respondent No. 2 Home Secretary, Punjab.
Respectfully Sheweth,
MERITS
Para 1 No comments. Para 2 No comments. Para 3 No comments.
Para 4 (i) Factual position has been stated in the
report of District
Police Officer, Lahore. (Annex-A)
(ii) As in Para 4 (i)
(iii) As in Para 4 (i)
(iv) As in Para 4 (i)
(v) As in Para 4 (i)
(vi) In correct. Factual
position has been stated in the report of District Police Officer, Lahore.
• (Annex-A).
(vii) No comments.
(viii) The detention orders were
passed by Ministry of Interior, Government of Pakistan in exercise
of powers conferred
in it u/S. 3 of Security of Pakistan Act,
1952.
Para 5 Admitted to be
correct. Para 6 Admitted to be
correct.
Para 7 Incorrect.
GROUNDS
(a)
It does not relate to Respondent No. 2.
(b)
It does not relate to Respondent No. 2.
(c)
It does not relate to Respondent No. 2.
(d)
It does not relate to Respondent No. 2.
(e)
It does not relate to Respondent No. 2.
(f)
It does not relate to Respondent No. 2. ;
(g)
No comments as the Detention orders were passed by
Government of Pakistan, Ministry of Interior.
Government of Pakistan, Ministry of Interior.
(h) As in Para (g).
(i) As in Para (g).
Para 8 No comments being legal."
(iii) "REPORT
OF CAPITAL CITY
POLICE OFFICER LAHORE.
On the night of 19.12.2002 an information
regarding firing by some
unknown persons outside a house at G.T.
Road was received
by the Manawan Police through Emergency 15. On this information, SHO PS Manawan
alongwith his staff rushed to the spot and apprehended Dr. Ahmad Javaid Khawaja, (2) Ahmad Naveed Khawaja, 3) Hassan Ahmad, (4)
Muhammad Ali, (5) Ahmad Nadeem and (6) Muhammad Farooq. A pistol .30
bore alongwith 10 bullets was recovered from the
possession of Dr. Ahmad Javaid Khawaja and a Kalashnikov
alongwith 10 bullets from Ahmed Naveed Khawaja,
which were taken into possession. 10 empties of pistol 30 bore and 15 empties
by Kalashnikov were also taken into possession from the spot. Accordingly, a case vide FIR No. 412/2002
dated 19.12.2002 u/S. 353/148/149/186 PPG read with 13 (D/20/65 AO and 7
ATA was registered at PS Manawan, Lahore. Investigation of the case was conducted by Inspector Baqar Hussain Incharge
available against Hassan Ahmad, Muhammad Ali, Ahmed Nadeem and Muhammad Farooq,
who were released on executing bail
bonds u/S. 169 Cr.P.C. However, Dr. Ahmed Javaid Khawaja and Ahmad Naveed Khawaja were arrested in the above mentioned case. They remained on
physical remand for six days. During interrogation Dr. Ahmad Javaid Khawaja and Dr. Ahmad Naveed
Khawaja made the following disdasures:--
(i) Ahmad Naveed Khawaja disclosed that he
visited Afghanistan
in 1998 and met Abu Yasir Egypt national and Abdul Aziz Saudi national and worked there for the purpose of Jehad.
Ahmad Javaid Khawaja also
visited Afghanistan and provided medical facility to the injured Mujahideen.
(ii) An Egyptian lady alongwith 6 children and a Saudani
woman alongwith 4 children wives of Abdul Aziz
(A Saudi national
and an active member ofAl-Qaida) were
living in their house.
(iii) The said women and children were
left there after the incident of llth September,
2001 by Abdul Aziz and Abu Yasir, both member of Al-Qaida.
(iv) Abdul Aziz
and Abu Yasir had been visiting the house of the accused after every 10/15 days
regularly and providing the necessities of life to the foreigner
women/children.
On 26.12.2002, the accused were produced before the Court for obtaining
their further physical remand, however,
request for further physical remand was declined by the Court. During
investigation the accused were found guilty of having relations with Al-Qaida Organization, providing
accommodation to the active members of Al-Qaida.
Consequently, Section 11-V ATA was also added vide case Diary No. 9,
dated 27.12.2002. After completion of
investigation challan of the case has been submitted
in the Court of competent jurisdiction for trial.
PARAWISE COMMENTS Para 1-3 Calls for no-comments.
Para 4 (i-iii) The factual
position has been explained in the above report.
(iv) Dr. Ahmad Javaid
Khawaja and Ahmad Naveed Khawaja were found guilty of
having relations with Al-Qaida, proving
.accommodation to the active members of Al-Qaida, assaulting
Police and keeping illicit weapons in their possession. Accordingly, they have been challaned in case FIR No. 412/2002 PS Manawan.
(v) It is correct that the petitioner earlier
filed writ Petition No.
21605/2002 in the Hon'ble Court.
(vi) First part of this para calls for no comments being matter of record. Rest
of the para is denied being incorrect. The
factual position has been elaborated in the above report.
(vii and viii) Calls for no comments being matter of
record.
Para 5. It is correct that the Federal Government has
issued
detention order against the detenue under
Section 3 of Security of Pakistan Act 1952 on 30th December,
2002.
Para 6 Calls for no comments being matter of record.
GROUNDS
(a-e) These paras do not
relate to the
answering
respondent,
hence no comments.
(f) Calls for no comments.
(g-i) The
detention order was passed by
the Federal
Government, hence no.comments.
Para 7 Legal, hence no comments."
9. We have examined the said evidence with care and caution. The parawise comments furnished on behalf of Federal
Government reflect that the
respondents had contact with hard core terrorists (names already mentioned),
no independent evidence worth the name could be collected establishingprima facie such contacts and the only evidence available in this regard is the statement of detenues
got recorded when they were in police custody. How much reliance can be
placed on such statement in view of the relevant
previsions as contained in the Qanun-e-Shahadat
Order, 1954 and its admissibility
hardly needs any elaboration. No doubt that certain travelling documents were recovered from the house of detenues
such as Sodani passports (3), Egyptian passports (3), Afghani
Passport (1) and foreign currency of USA,
Saudi Arabia, Afghanistan, Iran and UAE but this recovery cannot be attributed to the entire
family. Had there been twenty members
of Khawaja family (terminology used time and again by
the learned Deputy Attorney General)
can such recovery be attributed to all of them if sa under what law? There was no answer
to it. It can at the best be attributed to the owner of the house or
person having commanding authority in the house. What substantial evidence was
collected is not known as it was never
placed before the Court on account of privilege claimed under Article 6 and Article 158 of the Qanun-e-Shahadat
Order, 1984 and in support of such privilege the dictum as laid down in Benazir's case (supra) was relied upon which will be discussed at relevant place.
176 SC fed. of pak. v.
Mrs. amatul jalil khawaja PLJ
(Jaued
Iqbal, J.)
10. The
parawise comments on behalf of Government of the Punjab hardly renders any assistance to the case of petitioner as nothing
has been said except that "the
detention order was passed by Ministry of Interior. Government of Pakistan
in exercise of powers conferred in it under Section 3 of the Security of Pakistan Act 1952". [see clause (viii) of
Para-4 of the comments].
11. We have also adverted to the report of Capital City
Police Officer. First portion whereof
relates to details qua registration of case against six persons namely Dr. .Ahmad Javaid Khawaja, Ahmad Naveed Khawaja, Hassan Ahmad,
Muhammad All, Ahmad
Nadeem
and Muhammad Farooq and four persons namely Hassan
Ahmad, Muhammad Ali, Ahmad Nadeem and Muhammad Farooq were
released after executing bail bonds under Section 169 Cr.P.C.
In parawise comments, however, it is mentioned that Dr.
Ahmad Javaid Khawaja and
Dr. Ahmad Naveed
Khawaja were found guilty of
having relations with Al-Qaeda, providing accommodation to the active members of Al-Qaeda, assaulting police and keeping illicit weapons in their possession.
Accordingly they have been
challaned in case FIR No. 412/2002 of Police Station Manawan.
challaned in case FIR No. 412/2002 of Police Station Manawan.
12. We have also examined the statements furnished on
behalf of petitioner which is reproduced herein below for ready
reference:
"STATEMENT ON
BEHALF OF RESPONDENT NO. 1 Respectfully sheweth,
It is submitted that M/s. Dr. Ahmad Javed Khawaja (S/O Haji Muhammad Younas), Ahmad Naveed Khawaja (S/O Haji Muhammad Younas). Dr. Khizar Ali Khawaja (S/O Dr. Ahmed
Javed Khawaja), Dr. Umar Karar Khawaja
(son of Dr. Ahmed Javed Khawaja,
Muhammad Usman Khawaja (son
of Mr. Ahmed Naveed Khawaja) have been detained
on account of their activities prejudicial to the Security of Pakistan under clause (b)
of sub-section (1) of Section 3 of Security of Pakistan Act, 1952. The Ministry of Interior has sufficient incriminating
evidence on record provided by the concerned
Security Agency against the accused persons. The evidence is of highly
sensitive nature and will be placed before the Review Board, as referred to in Clause 4 of Article 10 of the Constitution.
As regards representation filed by the detenues before the Secretary, Ministry of Interior it is stated
that it has become functuous officio (frozen)
being subjudiced in the
Court of law.
ON BEHALF OF
RESPONDENT."
13. A bare perusal of the above statement would reveal
that sufficient incriminating
material was available but being highly sensitive in nature could not be produced before the Court. The
said sensitive material could have been produced in the chamber of
learned Single Judge enabling him to
formulate his view point qua the reasonableness of the grounds of detention
or otherwise. It, however, could not be done for the reasons best known to the petitioner. We are conscious of the
fact that a thorough investigation or intensive probe on the sufficiency
of the material cannot be made but the
grounds disclosed by the Government can be examined to see if the same are
relevant to the objects which the legislature has in view Le prejudicial
act, security of State and maintenance of law and order. There is no
cavil with the proposition that reasonableness of the grounds of detention can be examined while exercising Constitutional
jurisdiction which could not have been done in vacuum arid the
material/evidence which could not be produced
in Court should have been made available in chamber. The order of detention must show on the face of it that the
detaining authority is satisfied to
the effect specified under the relevant detention law and if there is no record
of satisfaction of the detaining authority the order of detention can be
declared to have been passed without lawful authority and ab-initio
void. In this regard reference can be made to M.R.S. Mani
u. District Magistrate AIR 1950 Mad. 162; M.R.S. Mani
v. District Magistrate 51 Cri. L. Jour 525; Seetamma
v. Kotareddi AIR 1949 Mad. 586; PLR 1957 (2) W.P.
215. The learned Deputy Attorney General was generous enough to show all
this material to this Bench in the chamber
but admittedly it cannot be taken into consideration presently, as it
was never placed before the learned Single Bench
of Lahore High Court, Lahore. There is no doubt in it that Court can see
whether the satisfaction about the existence of the requisite condition is a
satisfaction really and truly existing in the mind of detaining authority or one merely professed by the detaining authority.
An order of detention, which is
really passed for an ulterior purpose and not because the detaining authority is really satisfied that it is necessary
to detain the intended4 detenue
with a view to preventing him from acting prejudicially to certain objects will
be void. If any authority is needed reference can be made to Ashutosh Lahiri u. The State of Delhi AIR 1953 SC 451; 1953 Cri.
L. Jour 1921; Naranjan Singh u.
State of Punjab AIR 1952 SC 106; Naranjan
Sigh Nathawan v. The State of Punjab 1952 S.C.R. 395; State of Bombay v. Atma Ram AIR 1951 SC 157; The State of Bombay v. Atma Ram 1951 S.C.R. 167; Ishar Singh v. The State (AIR
1953 Pepsu 111); ILR 1952 Patiala 620; 1953 Cri. L. Jour 1210; AIR 1951 Simla
(Punj.) 157; 52 Cri. L.
Jour 17 (DB); In re Narahari Balaji Parkhi (AIR 1949 Mad. 438). There could be no other opinion
that it is for the High Court to examine while exercising its Constitutional jurisdiction the material on which
the satisfaction of the detaining authority is based and to determine whether it
was sufficient for the satisfaction of
the detaining authority. Let we mention here at this juncture that when
a privilege is claimed even then the High Court would be competent to examine the document/material
regarding which privilege is sought in order to determine as to whether
such privilege is being claimed in advisedly,
lightly or as a matter of routine. In this regard we are fortified by he dictum laid down
in PLD 1969 S.C. 14; Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 S.C. 313);
National Bank v. Faridsons Limited 20 DLR S.C. 249. The
High Court can examine the reasonableness of the grounds of detention so as to satisfy
itself that the detenue has not been held in custody
without lawful authority or in an unlawful manner. It is not the satisfaction
of only detaining authority but judicial conscious is also required to be
satisfied and thus in our opinion the satisfaction of detaining authority
should have been based on actual and real facts and not on mere suspicion, doubt or
conjectural presumptions. Even the subjective satisfaction does not mean
satisfaction of the authority without any base. No doubt that the words
"satisfaction" has been used in Section 3 of the Security of Pakistan Act,
1952 but the powers conferred upon the High Court by the Constitution under
Article 199 cannot be limited or taken away by a sub-Constitutional
legislation and therefore, a balance is to be maintained between the powers
conferred upon the High Court by the Constitution and the relevant
provisions of sub-Constitutional legislation. Be as it may, it is for the High Court to
consider as to whether there were grounds upon which any reasonable
person could have been satisfied as to the necessary of detention. In this
regard we are fortified by the dictum as laid down in Abdul Baqi Baloch
v. Government of Pakistan PLD 1968 SC 313. We are not persuaded to agree
with the prime contention of learned Deputy Attorney General that on the basis
of material placed before the Court the detention order could not be set aside as the High
Court was 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 or otherwise for the reasons that it is not the
question of substitution of finding and
the High Court is not bound to endorse or subscribe the satisfaction of the authority irrespective of the fact whether any
material is available or not. The
High 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 opposite view after having taken into consideration the material placed before it
contrary to that of detaining authority
is formed does not amount to substitution.
14. A bare perusal of Article 199 of the
Constitution of Islamic Republic of Pakistan would reveal that the words
"without lawful authority" and "in unlawful manner" appearing
in Article 199(b)(l) cannot be considered as tauto logous or superfluous and in fact deserve due consideration. The
above mentioned words were also used in Article 98 of the Constitution of
Islamic Republic of Pakistan 1962 and discussed in depth by this Court in Government
of West Pakistan and another vs. Begum Agha Abdul Karim Shorisji Kashmiri (PLD 1969 SC 14) in
the following words:
"The words "in an unlawful manner" in sub-clause (b) of
Article 98(2) have been used
deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is
the inalienable right
of every citizen to be treated in accordance with law and only in accordance
with law. Therefore, in determining as to how
and in what circumstances a detention would be detention in an unlawful manner
one would inevitably have first to see whether the action is in accordance with law. If not, then it
is action in an unlawful manner. Law
is here not confined to statute law alone but is used in its generic sense as" connoting all that is treated as
law in - this country including even the judicial principles laid down from time to time by the superior Courts. It means
according to the accepted forms of
legal process and postulates a strict performance of all the functions and
duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due
process" clause in an new grab. It
is in this sense that an action which is mala
fide or colourable is not regarded as action in accordance with law.
Similarly, action taken upon
extraneous or irrelevant consideration is also not action in accordance with law. Action taken upon no
ground at all or without proper
application of the mind of the detaining authority would also not qualify as action in accordance
with law and would, therefore, have to
be struck down as being action taken in an unlawful manner."
It was further
observed:
"There can be no doubt that the Court can satisfy itself that the action taken in not a
mere colourable exercise of power or a fraud upon the statute. The
question, however, that still remains to be considered is as to whether the reasonableness of the action can
be examined when the statute itself does not
require the authority to act upon reasonable grounds but leaves him to
act upon his own subjective satisfaction. In
view of the provisions of Article 98 of the Constitution that degree of reasonableness has at least to be established which has been indicated in the case
of Abdul Baqi Baluch
PLD 1968 SC 313. Otherwise if an authority could protect himself by merely saying that he believed himself
acting in pursuance of a statute then
what would be the material upon which the
Court could say that it was satisfied that the detention or impugned action had not been taken in an unlawful
manner. If the argument be correct
that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial
review then even questions of bona fide or good faith would be beyond the scope of judicial review but it
has, throughout without any exception whatsoever, been always consistently held
that a mala fide action is not action
in accordance with law."
15. It is thus clear that in view of the
provisions as contemplated under
Article 199 of the Constitution of Islamic Republic of Pakistan the jurisdiction as conferred upon the High Court
cannot be confined in a limited
sphere as pressed time and again by the learned Deputy Attorney General.
16. The learned Deputy Attorney General has interpreted
the word "satisfaction" in
the light of dictum as laid down in Farooq
Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) but it is to be kept in view that the word "satisfaction" in Farooq Ahmad Khan Leghari (supra)
has been examined in a broader
spectrum with specific reference to Article 232 of the Constitution of the
Islamic Republic of Pakistan wherein word "satisfaction" has been used with reference to existence of
grave emergency where the security of
Pakistan or any part thereof is threatened by war or external exaggeration or by internal disturbances beyond
the power of a Provincial Government
to control. A mention, however, has been made about various cases qua preventive laws in Farooq
Ahmad Khan Leghari's case (supra) which is reproduced herein below for ready
reference:
"42. The learned counsel for the
petitioners have referred to a number of dictionaries to show the
meanings of the words inter alia "satisfied",
"satisfy" "external" and "aggression", the
definitions of which have been quoted
hereinabove. The words "satisfied" and "satisfy"
indicate that the same connote inter alia free
from anxiety, doubt, perplexity, suspense or
uncertainty or a mind which has reached a clear conclusion. Whereas the
word "external" inter alia means apparent, visible from outside, physical or
corporeal; whereas the word
"aggression" has been defined inter alia
as means inroad, invasion or
encroachment of rights of others. It may be observed that Corelius, C.J. in the case of Malik
Ghulam Jilani (supra), while
construing the word "satisfaction"
used in Rule 32 of the Defence of Pakistan Rules, pointed out that the requirement of
satisfaction contained in the above
Rule involves the exercise of judgment in relation to a number of relevant factors and that belief would also be necessary as to the existence of certain facts and
potentialities that they possess danger to public order. Whereas Hamoodur Rehman, J (As he
then was) in the case of Mir Abdul Baqi Baloch (supra) highlighted the difference between
"being satisfied" and "suspecting upon reasonable grounds" by observing that the former connotes a state of mind bordering on conviction introduced
by the existence of facts which have
removed the doubts, if any, from the mind and taking it out of stage of suspicion."
17. It
can be concluded safely that satisfaction can only be based on some evidence or record justifying the detention
order which is badly lacking in this
case. The learned Deputy Attorney General has stated that sufficient evidence has been collected but nobody knows where
is that evidence, what is the nature
of sensitivity and why it could not be brought before the learned Single Judge in
chambers. The contention of learned
Deputy Attorney General that
the said material could only be shown to .Review Board is not understandable for the reason that if it could be shown to
the Review Board how it could be withheld from the High Court and at the best precautionary measure as mentioned herein
above could be taken and such
evidence could have been produced in the chambers of learned Single Judge.
18. In the light of what has been
stated herein above we are of the considered opinion that the conclusion as
arrived at by the learned High Court being well based does not warrant interference and
the detention order could not
be justified on the basis of material made available to the learned Single Judge. The petition being meritless is dismissed and leave declined.
(T.A.F.) Leave declined.
