Law: West Pakistan Maintenance of Public Order Ordinance, 1960

Section: XXXI,3

Law: Constitution of Pakistan, 1973

Section: 199,4,9

(a)    West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---
----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Detention--Judicial review---Petitioners assailed their detention orders passed by authorities--Validity---High Court in exercise of Constitutional jurisdiction was to see whether any material existed before Deputy Commissioner while making orders of detention of petitioners/detenus---Action against petitioners was initiated under West Pakistan Maintenance of Public Order Ordinance, 1960---Orders of detention lacked essential attributes envisaged by S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960 and the law laid down by the Supreme Court---High Court set aside orders issued by Deputy Commissioners, as the same were not sustainable in the eyes of law and petitioners were released forthwith on furnishing bail bonds---High Court directed the petitioners to submit undertakings they would not involve themselves in any anti-state activities and acts prejudicial to public safety in any manner---High Court directed that the District Administration/ Provincial Government would be at liberty to initiate proceedings and pass appropriate orders under West Pakistan Maintenance of Public Order Ordinance, 1960 against petitioners when it was satisfied that there was sufficient material against any of the petitioner relating to any of their activity prejudicial to public safety or maintenance of public order and their arrest/detention was necessary for maintaining public safety and public order---Constitutional petition was allowed accordingly.
Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Niaz Ahmed Khan v. Province of Sindh and others PLD 1977 Kar. 604; Darwesh M. Arbev, Advocate v. Federation of Pakistan through the Law Secretary and 2 others PLD 1980 Lah. 206; Shahid Rasool v. Government of the Punjab through Secretary Home Department, Lahore and 6 others 2023 YLR 333; Federation of Pakistan through Secretary Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 2 others PLD 1980 Lah. 206; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Zafar-ul-Ahsan v. The Republic of Pakistan PLD 1960 SC 113; Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 and Judicial Review of Public Acts (Volume-1) by Justice (R) Fazal Karim and Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151 rel.
(b)    Jurisdiction---
----Forum, determination of---Scope---If there is a dispute on the point whether a Court has or does not have jurisdiction over a certain subject-matter, such Court can hear that dispute even if it has to hold that it has no jurisdiction.
(c)    West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---
----S. 3---Constitution of Pakistan, Arts. 4 & 9---Detention of a person---Principle--In order to curtail liberty of a citizen, which is guaranteed through Art. 9 of the Constitution and similarly to be treated in accordance with law being inalienable rights of every citizen of Pakistan under Art. 4 of the Constitution; the Government or an officer of the Government exercising delegated powers has to satisfy himself that order of detention is issued solely for the purpose of preventing any person from acting in any manner prejudicial to public safety or maintenance of public order and when it is necessary to do so by an order in writing direct arrest and detention of such persons.
Fundamental Law of Pakistan by A.K. Brohi and Muhammad Younas v. Province of Sindh through the Secretary to the Government of Sindh Home Department and Secretariat, Karachi and 2 others PLD 1973 Kar. 694 rel.
Date of hearing: 30th May, 2023.
JUDGMENT
SYED ARSHAD ALI, J.---On 31.05.2023, these petitions were disposed of by means of the following short order:--
For reasons to be recorded later, the instant Writ Petition as well as the connected Writ Petitions, the detailed list has been provided in Annexure 'A' to this Short Order, are disposed of in the following manner:--
i.    The impugned orders of the detention of the petitioners under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 ("Ordinance") read with Notification No.3-104/ HSPL-1-64 dated 27.02.1965 and Notification No. SO (JUDL) HD/3-92/2008 dated 02.09.2009 are not maintainable for absurdity, vagueness, lack of reasons/sufficient material while passing the impugned orders by the Deputy Commissioner, which are accordingly set aside and the petitioners be released forthwith on furnishing bail bonds in the sum of Rs. One Lac each with two sureties each in the like amount to the satisfaction of Deputy Commissioner or Additional Deputy Commissioner or Assistant Commissioner with an undertaking they shall not involve in any anti-state activities and shall not act prejudicially to the public safety in any manner (if such bail bond has not already been furnished in terms of the order of this Court dated 18.05.2023), if not required in any other case.
ii.    The respondents/District Administration/Provincial Government would be at liberty to initiate proceedings and pass an appropriate order under the Ordinance against the petitioners when it is satisfied that there are sufficient material against any of the petitioner relating to their any activity prejudicial to the public safety or the maintenance of public order and their arrest/ detention are necessary for maintaining the public safety and public order.
iii.    Those petitioners, whose detention orders passed under Section 3 of the Ordinance, were suspended by this Court subject to furnishing bail bonds along with an undertaking, referred above, and pursuant to the said order, the required bail bonds have been furnished along with the above referred undertaking, their such release on the same terms, as stated above, are hereby confirmed subject to para-ii above.
iv.    Those petitioners, whose detention orders have been suspended by this Court and so far neither they are arrested nor required in any other case, shall submit bail bonds in sum of Rs. One Lac each with two sureties each in the like amount along with an undertaking referred above to the satisfaction of Deputy Commissioner or Additional Deputy Commissioner or Assistant Commissioner within five (05) days from the date of judgment of this Court.
v.    The bail bond/surety bond furnished and executed as stated above would be valid for a period of six (06) months from the date of the bond.
The reasons for the short order are given below:
2.    The petitioners have challenged their detention under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 ("MPO"). It was on 09.05.2023 that the former Prime Minister Imran Ahmad Khan Niazi was arrested by the Law Enforcing Agencies within the premises of Islamabad High Court. The said arrest was protested by the members of the Pakistan Tahreek-e-Insaf throughout the country, and, as evident from the reports in print as well as electronic media, a good number of such protestors created serious law and order situation throughout the country by attacking public places and burning public property and private vehicles, military installations, and making hate speeches etc. However, upon the release of the former Prime Minister by the Apex Court on 11th May, 2023, the situation returned to normalcy.
3.    On 10.05.2023, the Government of Khyber Pakhtunkhwa Home and Tribal Affairs Department, through a letter addressed to the Government of Pakistan Ministry of Interior, Islamabad intimated them of the prevailing law and order circumstances, and for safety of life and property of citizens as well as security of government installations, placed a request for acquisition of Armed Forces in aid of civil power under Article 245 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). On the same date, the Federal Government while honouring such request and by exercising powers conferred under Article 245 of the Constitution and Section 4(3)(ii) of Anti-Terrorism Act, 1997, authorized deployment of Pakistan Army troops (assets troops) in aid of civil power for safety of life and property of citizens as well as security of government installations in the Khyber Pakhtunkhwa Province. Letter dated 10.05.2023 issued by the Government of Khyber Pakhtunkhwa Home and Tribal Affairs Department is evident to show that Rules of Engagement for Pakistan Army were issued in consultation with the Headquarter 11-Corps, Peshawar, specifying the exact contour of deployment of Pakistan Army in respective formation area of responsibility.
4.    In the aftermath of 9th May 2023, a good number of citizens, who purportedly remained violent and attacked the government installations, burnt public place, and vehicles, and endangered the lives of people were booked in criminal cases. From amongst them, the present Petitioners before this Court were put under preventive detention under Section 3 MPO. When the matter came up for hearing on 18.05.2023, Mr. Aamir Javed, the worthy Advocate General Khyber Pakhtunkhwa, raised a preliminary objection to the maintainability of these petitions in terms of Article 245(3) of the Constitution and has also argued that notices were required to be given to the Advocate General and Attorney General since interpretation of various provisions of the Constitution is involved in this matter, consequently, notices were issued to the Advocate General and Attorney General for Pakistan under Order XXVII-A, C.P.C. to assist this Court on the following legal issue.
"Whether the provisions of Article 199 of the Constitution can be pressed into service where the Armed Forces have been called in aid of civil power for safety of life and property of citizen as well as security of government installations, by issuing notification under the provision of Article 245(3) of the Constitution?
5.    Today, while opening his arguments, the worthy Advocate General has reiterated the aforesaid preliminary objection relating to the maintainability of these petitions. He has maintained that neither the action of the Federal Government under Article 245 of the Constitution has been challenged in these petitions nor as evident from the express language of clause (3) of Article 245 of the Constitution, this Court has any jurisdiction in the matter. The worthy Advocate General, while relying upon the observations of the Hon'ble Courts, in the cases of Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 Supreme Court 504), Niaz Ahmed Khan v. Province of Sindh and others (PLD 1977 Karachi 604) and Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 2 others (PLD 1980 Lahore 206) has argued that when the Armed Forces of Pakistan have been called to act in aid of civil power in pursuance of Article 245 of the Constitution, a High Court cannot entertain any petition under Article 199 of the Constitution which is indeed an expressbar, therefore, this petition as well as the connected petitions merit outright dismissal. On merit, the worthy Advocate General has contended that a good number of petitioners were found involved in anti-state activities and there is every likelihood of repetition of the said acts, therefore, the order of preventive detention of the petitioners was not only justified but in the interest of the State. He has next argued that a complete legal mechanism /dispensation has been provided under the MPO which, inter alia, includes the availability of alternate remedy before the Board constituted under Section 3(5) of the MPO which is an appropriate forum to consider the representation made by an aggrieved person and to pass any order on the detention of the detenue keeping in view the material placed before it.
6.    Messrs Muhammad Muazzam Butt and Ali Zaman, Advocate, the learned counsel representing the petitioners while rebutting the arguments of worthy Advocate General, have argued that since the impugned order of detention is based on mala fide, besides being absurd, therefore, this Court has every jurisdiction to interfere in the matter. In support of their contention, they have placed reliance on the cases of Shahid Rasool v. Government of the Punjab through Secretary Home Department, Lahore and 6 others (2023 YLR 333) and Federation of Pakistan through Secretary Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others (PLD 2003 Supreme Court 442).
7.    Mr. Shah Faisal Utmankhel, Advocate, the learned counsel also representing the petitioners, has argued that despite the constitutional bar, the Court can still look into the propriety of the impugned order if it is clear from the record that the impugned action of authority is tainted with malice. As a result, these petitions are maintainable, and the petitioners deserve to be released.
8.    We have given anxious consideration to the submissions of learned counsel for the parties and have perused the record.
Opinion of the Court on the maintainability of these petitions.
9.    It is the case of the respondent-Government that when the Armed Forces are directed by the Federal Government to act in aid of civil power in terms of Article 245 of the Constitution, then during such period and in relation to the area demarcated for the purpose, the High Court shall not exercise any jurisdiction under Article 199 of the Constitution. Before embarking upon this legal proposition, we would like to refer to the history of the said legislation.
10.    In the original text, Article 245 read as "the Armed Forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so".
11.    The bare reading of the said Article would show that it dealt with only the situation where the Armed Forces were required to perform their twofold duties; (i) to defend Pakistan against external aggression or threat of war and (ii) subject to law, act in aid of civil power when called upon to do so. After general election in 1977 when late Zulfikar Ali Bhutto was elected as Prime Minister, the Opposition Parties under the banner of Pakistan National Alliance (PNA) carried out large scale demonstration to protest against the alleged rigging and manipulation in the election process by the ruling party of the then Prime Minister. Their demand being re-polling, the protest and demonstrations, though peaceful initially, turned violent and resulted in losses to property and lives. In order to curb the situation, Martial Law was imposed in Lahore, by the Federal Goverment, while exercising its authority under Article 245 of the Constitution, and the Armed Force of Pakistan were directed, subject to law, to act in aid of civil power. The Defence of Pakistan Ordinance, 1971 and the Army Act 1952 were amended whereby certain powers were given to the Armed Forces relating to maintaining public order. The aforesaid impugned actions were challenged before the Lahore High Court through a number of Constitutional Petitions.1
12.    Similarly, in Karachi and Hyderabad Divisions, Curfew/Martial Law was imposed which led to an unfortunate incidenti.e. fatal shootings of citizen in Liaqat Abad by the Law Enforcing Agencies deployed in the area. The said acts were challenged by Niaz Ahmed Khan, an Advocate of the Karachi High Court, before the Sindh High Court through various constitutional petitions.2 During the said proceedings, on 16th May, 1977, Constitution (Seventh Amendment) Act, 1977 was introduced in Parliament, inter alia, for further amending Article 245 of the Constitution. We have also carefully perused the legislative debate at the time but it appears from the same that no one from PNA had participated in the said proceedings of the Assembly, therefore, the pro and cons of the said amendment could not be debated or considered. However, the Act was ultimately passed and assented to by the President whereby Article 245 of the Constitution was amended as follows:
245. (1) The Armed Forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.
(2)    The validity of any direction issued by the Federal Government under clause
(1) shall not be called in question in any court.
(3)    A High Court shall not exercise any jurisdiction under Article 199 in relationto any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245:
Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.
(4)    Any proceeding in relation to an area referred to in clause (3) instituted on orafter the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting.
13.    The essential issue before this Court is the bar of jurisdiction of this Court in terms of Article 245(3) of the Constitution. The scheme of governance provided under constitutional dispensation is to have trichotomy of power between the Executive, the Legislature and the Judiciary. Each of the organs may be fashioned in a variety of different forms and shapes. Indeed, it is the Constitution which defines the functions of each organ and also specific territories in which, the subject in respect of which, and sometimes even the circumstances in which these functions will be exercised by each of these organs or sub-organs.3
14.    The Apex Court in the case of District Bar Association Rawalpindi has reaffirmed the independence of judiciary as one of the salient features and basic structure of the Constitution. It is emphasized in the judgment supra that the salient features, as ascertainable from the Constitution, includes Democracy, Parliamentary form of Government and Independence of Judiciary. The Courts are always vested with jurisdiction to interpret the Constitution inorder to ascertain and identify its defining salient features. It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the salient features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.4
15.    In our Constitution, we can notice that not only Article 199 of the Constitution starts with the phrase 'Subject to Constitution' but there are other provisions in the Constitution expressly barring the jurisdiction of the Constitutional Courts e.g., Article 212 and Article 225 of the Constitution. In these cases, the bar is obvious for the reasons that in the matter of civil services and election disputes a complete mechanism has been provided either under the Constitution or the law made thereunder. The said disputes are decided by the forum either established under the mandate of Constitution or sub-Constitutional Law but within the parameters provided under Article 175 of the Constitution.5
16.    However, very often we are confronted with the situation when no alternate remedy is available to an aggrieved person but still the jurisdiction of the High Court under Article 199 is barred. Article 245(3) of the Constitution is one such example. In the case of Zafar-ul-Ahsan6, while considering the ouster clause in clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, which expressly said that an order of the authority mentioned in clause (3) of that order "shall not be called in question in any Court", Munir, C.J. while speaking for the Court observed: -
"If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute, the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute".
17.    In the case of Zia-ur-Rahman (supra), the Apex Court while dealing with the interpretation of the ouster clause as provided in Article 2817 of the Interim Constitution Order, 1972 observed that:
"In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fide. Such an interpretation, in my view, not only gives full effect to the provisions of the Interim Constitution but also administers the will of the Law-maker as far as it can be gathered from a harmonious reading of the provisions of clause (2) of Article 281 along with some of the other provisions of the same Constitution without departing from the well-recognized principle that the Legislature should not be imputed the intention of perpetuating or perpetrating an injustice".
Soon after the judgment in Zia-ur-Rehman's case, clause (2) of Article 281 of the Interim Constitution was amended, by adding a deeming clause and an ouster of jurisdiction clause to that Article. Thereafter, the Interim Constitution was replaced by the Constitution of 1973 in which Article 281(2) of the Interim Constitution as Article 269(2) was reproduced with a view to strengthen the validation and ouster provisions. That Article provided that the orders made and actions taken inpurported exercise of powers under Martial Law Regulations and Orders "shall notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any court on any ground whatsoever".
In Saeed Ahmad Khan's case (PLD 1974 SC 151) Honorable Supreme Court of Pakistan was seized with the matter of interpretation of Article 269(2). Despite the insertion of the words "on any ground whatsoever", the Supreme Court did not agree that the acts, orders or proceedings which are done, taken or made without jurisdiction, mala fide or coram non judice, have been saved from the security of the courts by the ouster clause.
The Apex Court in the case of Malik Ghulam Mustafa Khar8 dealt with the ouster clause under Article 270-A of the Constitution. The main object whereof was (a) to confer validity upon acts,actions and proceedings, done or taken when the Martial Law was in force; and (b) to oust the jurisdiction of the Courts from examining their validity.
If there is a dispute on the point whether a court has or does not have jurisdiction over a certain subject-matter, it can certainly hear that dispute even if the result be that it has to hold that it has no jurisdiction. Indeed, it is now "an established principle of law that the courts of this country are the judges of their own jurisdiction" and it has been consistently held "that the question, as to whether a superior court has jurisdiction in a particular matter or not, is to be decided by the court itself'. In so doing, the courts exercise their judicial power, which is a constitutional power and which cannot be taken away by a sub-constitutional law.9
It is now firmly established that an ouster clause, however, widely worded and whether it occurs in a constitution or in an ordinary Statute, does not save an act or order without jurisdiction (which expression compendiously describes and includes acts and orders coram-non-judice and mala fide).10
18.    The interpretation of bar of jurisdiction under Article 245(3) of the Constitution came up before the Hon'ble Apex Court, Hon'ble Sindh High Court and Hon'ble Lahore High Court in the cases of Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 Supreme Court 504), Niaz Ahmed Khan v. Province of Sindh and others (PLD 1977 Karachi 604) and Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 2 others (PLD 1980 Lahore 206). It would be important to note that in all these cases, it was not a simple matter of interpretation of Article 245 of the Constitution but in all the three cases, the Armed Forces were directed by the Federal Government to act in aid of civil power when there were extra ordinary circumstances; for example, at the time of insertion of the clause, there was an emergency in the country as contemplated under Articles 23211 and 23312 of the Constitution. In the said dispensation, Articles 15, 16, 17, 18, 19 fell under eclipse as far as the exercise of executive authority by the executive limb of the State and the power of legislation to legislate law for the particular purpose. In Niaz Ahmed Khan's case Mr. Justice Abdul Kadir Shaikh, the Hon'ble Chief Justice of Sindh High Court explained the parameter of powers by the Armed Forces under Article 245 and observed that an embargo has been placed by the Constitution under Article 245 by word subject to law, this excludes any scope of an invasion by the Armed Forces which may amount to transgression of law and therefore, no act on the part of the Armed Forces would be justified in the garb of aid to civil power unless it is shown to be under the law.
19.    After amendment, the law laid down through (Seventh Amendment) Act No. XXIII of 1977 was thrashed out by Full Bench of Hon'ble Lahore High Court in the case of Darwesh M. Arbey, Advocate.13 Clause-3 of Article 245 of the Constitution is an ouster of jurisdiction clause. The ratio of the case ibid was that the ouster provided in Article 245 does not operate as complete ouster of jurisdiction, and has been made contingent upon the existence of certain factors mentioned in that clause. The Hon'ble Court assumed the jurisdiction by analyzing the law in view of the following jurisdictional points:
(i)    Whether there is a direction of the Federal Government under Article 245(1);
(ii)    Whether the Armed Forces start acting in aid of the civil power in pursuance of that direction; and
(iii)    Whether the area has been specified and identified where they are so acting.
Aslam Riaz Hussain J, as then he was, interpreted the ouster of jurisdiction clause of Article 245, as follows:--
"15. The position with regard to clause (3) of Article 245, is, however, different because the wording of this clause does not spell out a naked ouster of jurisdiction of this Court under Article 199 but the same has been made contingent upon the existence of certain factors mentioned in that clause".
20. The matter of interpretation of Article 245 also came up for discussion before the Hon'ble Sindh High Court in the case of Niaz Ahmed Khan.14 The purpose of introduction of Article 245 was laid down as under:-
"It was for this reason that the makers of the Constitution enacted Article 245 so that use of Armed Forces may be availed of in an emergency but with the restriction that it be only on a direction issued by the Federal Government and also the Armed Forces will act subject to law".
The then Hon'ble Chief Justice of High Court of Sindh Mr. Justice Abdul Kadir Shaikh explained the parameters of exercise of powers by the Armed Forces under Article 245 and observed that:
"An embargo has been placed by the Constitution under Article 245 by the words subject to law this excludes any scope of an invasion by the Armed Forces which may amount to transgression of law and, therefore, no act on the part of the Armed Forces would be justified in the garb of aid to civil power unless it is shown to be under the law".
The ratio laid down by the Hon'ble Lahore High Court as well as the Hon'ble Sindh High Court in the cases (supra) that the ouster clause under Article 245 is not absolute was also approved by the Larger Bench of the Apex Court in the case of Sh. Liaquat Hussain15 the relevant portion of the judgment reads as under:-
"21. The controversy revolves around the meaning of the expression 'act in aid of civil power' employed in the above clause (I) of Article 245 of the Constitution. It seems that the above expression presupposes that the civil power is still there, it is neither supplanted nor effaced out. The civil power is to be preserved and invigorated through the employment of the Armed Forces. The Armed Forces can be called in aid under the above clause by the Federal Government inter alia to perform police functions for limited purpose of suppressing riots or preventing threatened disorder or for the purpose of maintaining law and order and security or to assist/help in natural calamities along with the civil authorities. But the Armed Forces cannot abrogate, abridge or displace civil power of which Judiciary is an important and integral part. In other words, the Armed Forces cannot displace the Civil/Criminal Courts while acting in aid of civil power. They can certainly arrest those who threaten or disturb peace and tranquillity. They may also assist in investigation of a case and the prosecution of the same but the case is to be tried by a Court established in terms of the judgment of this Court in the case of Mehram Ali (supra). The employment of the expression "subject to law" clearly demonstrates that the Armed Forces will have to act within the parameters of the Constitution and the law obtaining. The scope of the above power which is exercisable by the Armed Forces in aid of the civil power can only be enlarged by amending Article 245 of the Constitution".
21. From the survey of the aforesaid case-law, we would deduce the following guidelines while invoking constitutional jurisdiction even in the matter when there is absolute bar either statutory or constitutional to assume jurisdiction.
(i)    That, inter alia, independence of judiciary is one of the basic structure and salient feature of the Constitution; thus, it is vested with jurisdiction to examine even the vires of any constitutional amendment so as to determine whether any of the salient feature of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof. District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 Supreme Court 401).
(ii)    In cases where there is bar of jurisdiction of the High Court, either providedunder the Constitution or through any Statute, the High Court still has the jurisdiction to examine the act of any authority, officer or government under its inherent power of judicial review so as to see whether the impugned action is in accordance with law whether jurisdiction exercised is not in excess of jurisdiction vested in an authority and whether there is no element of mala fide.
In view of the above, the objection of the worthy Advocate General relating to the maintainability of these petitions is overruled.
22.    Having decided the preliminary objection regarding maintainability of these petitions, we proceed to decide the cases on merit. The petitioners in all the petitions have challenged their detention order issued under Section 3 of the MPO by the Deputy Commissioners. We have perused the impugned orders. In some of the orders it is mentioned that upon information placed before the Deputy Commissioner by the District Police Officer that the petitioners indulged in illegal activities and disrupted the peaceful atmosphere of the District, blocked different roads, inflicted losses to the public property and thus, the said activities are prejudicial to the public safety which may cause serious damage to life and liberty of the public warranting immediate preventive actions to safeguard life and property of the public and to maintain peace in the area. The detention orders would show that stereotype orders were issued by the Deputy Commissioners wherein certain orders blank spaces were filled with names of detenue. The respondents could not place on file any material except the First Information Report whereby certain detenues were charged in the incident of 9th May, 2023. It appears from the impugned orders that the Deputy Commissioners, while issuing the impugned orders, have acted in haste and passed the orders of detention in slipshod manner on the basis of sancro-style report of the police without adverting to any material relating to the involvement of the detenues in anti-state activities.
23.    The law regarding preventative detention in Pakistan remained developed not only through various Constitutions itself but also through various public safety laws, including the Public Safety Ordinances of 1949, 1952 and the last one in the field i.e. the MPO. The concept of preventive detention is well explained by Mr. A.K. Brohi in "Fundamental Law of Pakistan" which reads as under:-
"Preventive detention is an abnormal measure in that it authorises the executive to impose restraints upon the liberty of a man who may not have committed a crime but who, it is apprehended, is about to commit acts that are prejudicial to the public safety etc. It is only during the periods of emergency that resort to this abnormal power can be justified. During the two world wars in England, for example, powers of preventive detention were exercised in the interest of the security of the realm".
He quoted from Justice Rex. V. Halliday as under:
"The word 'preventive' appearing in the expression 'preventive detention' is used to indicate an idea which may not be grasped by merely contrasting it from the one conveyed by the word 'punitive'. Preventive detention does not thus amount to subjecting a man to punishment but it merely creates a situation in which he may be prevented from doing something which it is apprehended he is likely to do and which act law forbids him to do".
24.    Section 3 of the MPO is somehow based on the same principle, however, in order to curtail the liberty of a citizen of Pakistan, which is guaranteed through Article 9 of the Constitution and similarly to be treated in accordance with law being inalienable right of every citizen of Pakistan (Article-4), the Government or an officer of the Government exercising the delegated powers has to satisfy himself that the said order of the detention is issued solely for the purpose of preventing any person from acting in any manner prejudicial to public safety or maintenance of public order and when it is necessary to do so by an order in writing direct the arrest and detention of such person. The Hon'ble Sindh High Court in the case of
Muhammad Younas16 while relying on various judgments of the Apex Court has explained the concept of preventive detention, which reads as under:--
"8. I would now, with respect, summaries some of the principles to be applied to cases of preventive detention which, according to my understanding, their Lordships of the Supreme Court have laid down in the four cages which I have discussed above. But, before doing so, I may note here that Article 201 of the Interim Constitution is in identical terms to Article 98 of the Constitution of 1962 and, likewise, in essential respects, section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 is similar to rule 32 of the Defence of Pakistan Rules which were under consideration before their Lordships in three of the four cases referred to above. Further, Article 3 of the Interim Constitution is the same as Article 2 of the Constitution of 1962 and Article 3 should be read with Article 8 of the Interim Constitution which provides that no person shall be deprived of life or liberty save in accordance with law. Now, as to the principles deductible from these four cases, these are:-
(i)    It is the inalienable right of every citizen to be treated in accordance with lawand only in accordance with law, that is according to the accepted norms of legal process and in strict compliance with all the functions and duties laid down by law.
(ii)    The Superior Court is expressly empowered to probe into exercise of publicpower by executive authorities to determine whether they have acted with lawful authority and in lawful manner.
(iii)    The burden lies on the detaining authority to show the legality of the preventive detention, for which purpose the authority must place the whole material, upon which the order of detention is based, before the Court, the validity of the claim of privilege with respect to any document being within the competence of the Court alone to decide.
(iv)    The exercise of power by the detaining authority is subject to the ascertainment of reasonable grounds, which is a judicial or quasi judicial function.
(v)    Action taken without proper application of the mind of the detaining authority would not qualify as action in accordance with law and the power to order detention of a particular person is coupled with the duty to apply the mind as to the necessity of such person's detention on the material available to the authority.
(vi)    The superior Court is empowered to examine the reasonableness of the actionof the detaining authority, that is to say, to see whether a reasonable person would have formed, on the material available to the detaining authority, the same
opinion as formed by the authority with regard to the detention
of the detenu, and in doing so it would be competent to also consider whether the grounds are within the law making power of the Legis-lature and within the ambit of the statute relating to preventive detention and are not non-existent and are otherwise not bad.
(vii)    "Satisfaction" of the detaining authority means a state of mind which hasbeen induced by the existence of reasonable grounds for such satisfaction. The word "satisfaction" connotes a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken-it out of the stage of suspicion.
(viii)    The superior Court is empowered to make an enquiry into the bona fides orgood faith of the action taken by the detaining authority.
(ix)    If there are several grounds of detention, then each ground contributes to thesatisfaction of the detaining authority and no ground can be excluded from consideration in judging the legality of the order of detention and wrongful inclusion of any ground would render the orders of arrest and detention illegal".
25.    The Apex Court in the case of Mrs. Amatul Jalil Khawaja17 while explaining the pre-requisite condition i.e. satisfaction before issuing a detention order by the Government or a person exercising the delegated powers stressed that the satisfaction should not be whimsical but the same should be based on some evidence on record justifying the detention order.
26.    In the present case, we have to see whether any material existed before the respondent-Deputy Commissioner while making the impugned orders of detention of the detenues. Admittedly, action against the petitioners was initiated under the MPO. We have perused the impugned orders of detention and are of the considered opinion that itlacks the essential attributes envisaged by Section 3 of the MPO and the law laid down by the Superior Courts as stated above. As a result, thereof, the impugned orders issued by the Deputy Commissioners are not sustainable in the eyes of law and the same are accordingly set aside.
27.    The foregoing are reasons for the short order in terms of which these petitions were disposed of.
Annexure "A"
S. No.    Case title
1.    W.P. No. 1783-P/2023 "Aftab Alam and another v. Secretary Home and Tribal Affairs and others".
2.    W.P. No. 1784-P/2023 "Sajid Iqbal v. Secretary Home and Tribal Affairs and others".
3.    W.P. No. 1785-P/2023 "Ajmal Khan v. IG Police KP and others"
4.    W.P. No. 1789-P/2023 "Bashir Ahmad v. DC Kohat and others"
5.    W.P. No. 1790-P/2023 "Imtiaz Shahid Qureshi v. DC Kohat and others".
6.    W.P. No. 1791-P/2023 "Daud Shah v. DC Kohat and others".
7.    W.P. No. 1795-P/2023 "Amjeed Saleem Khan v. Government of KP and others".
8.    W.P. No. 1796-P/2023 "Muhammad Shoaib v. DC Peshawar and others".
9.    W.P. No. 1797-P/2023 "Abid Ullah v. DC Peshawar and others".
10.    W.P. No. 1798-P/2023 "Mansoor v. DC Peshawar and others".
11.    W.P. No. 1799-P/2023 "Shahab-ud-Din v. DC Peshawar and others".
12.    W.P. No. 1800-P/2023 "Fawad Ali and another v. DC Mardan and others".
13.    W.P. No. 1801-P/2023 "Sajid lqbal v. DC Mardan and another".
14.    W.P. No. 1802-P/2023 "Hazrat Umar v. DC Mardan and another".
15.    W.P. No. 1805-P/2023 "Abdur Rehman v. Government of KP and others".
16.    W.P. No. 1808-P/2023 "Tariq Mehmood Aryani alias Tariq Aryani v. The State and others".
17.    W.P. No. 1809-P/2023 "Noor Gul v. The State and others".
18.    W.P. No. 1810-P/2023 "Asif Khan Ex-MPA PK 76 and others v. Government of KP through Chief Secretary and others".

19.    W.P. No. 1811-P/2023 "Ghulam Ghous v. Government of KP and others".
20.    W.P. No. 1812-P/2023 "Mian Hamayoon Shah v. DC Nowshera and others".
21.    W.P. No. 1818-P/2023 "Naeem v. Secretary Home and others".
22.    W.P. No. 1819-P/2023 "Shakeel Khan v. Secretary Home and others "
23.    W.P. No. 1826-P/2023 "Shams-ur-Rehman v. Government of KP and others".
24.    W.P. No. 1827-P/2023 "Shah Khalid v. The State through AG and others".
25.    W.P. No. 1828-P/2023 "Zahid v. The State through AG and others".
26.    W.P. No. 1829-P/2023 "Amanullah v. The State through AG and others".
27.    W.P. No. 1830-P/2023 "Liaqat All v. The State through AG and others".
28.    W.P. No. 1831-P/2023 "Mohammad Ijaz v. The State through AG and others".
29.    W.P. No. 1833-P/2023 "Gulab Noor v. DPO, Peshawar and others".
30.    W.P. No. 1834-P/2023 "Farhad Qureshi v. Government of KP and others".
31.    W.P. No. 1838-P/2023 "Muhammad Iqbal and another v. DPO, Peshawar and others".
32.    W.P. No. 1839-P/2023 "Imran v. The Deputy Commissioner, Swat and others".
33.    W.P. No. 1840-P/2023 "Muhammad Zeb v. The Deputy Commissioner, Swat and others".
34.    W.P. No. 1841-P/2023 "Saqib Khan alias Saqib v. The Deputy Commissioner, Swat and others".
35.    W.P. No. 1842-P/2023 "Ibrahim v. The Deputy Commissioner, Swat and others".
36.    W.P. No. 1843-P/2023 "Ishtiaq Ali v. The Deputy Commissioner, Swat and others".
37.    W.P. No. 1844-P/2023 "Fayaz Ahmad v. The Deputy Commissioner, Swat and others".
38.    W.P. No. 1845-P/2023 "Muhammad Shahid v. The Deputy Commissioner, Swat and others".
39.    W.P. No. 1846-P/2023 "Shahab Ali v. The Deputy Commissioner, Swat and others".
40.    W.P. No. 1847-P/2023 "Shaukat v. The Deputy Commissioner, Swat and others".
41.    W.P. No. 1848-P/2023 "Sakhawat v. The Deputy Commissioner, Swat and others".
42.    W.P. No. 1849-P/2023 "Umar Hayat v. Deputy Commissioner, Swat".
43.    W.P. No. 1850-P/2023 "Zafar Ali v. The Deputy Commissioner, Swat and others".
44.    W.P. No. 1851-P/2023 "Muslim Khan v. The Deputy Commissioner, Swat and others".
45.    W.P. No. 1852-P/2023 "Amir Iqbal v. The Deputy Commissioner, Swat and others".
46.    W.P. No. 1853-P/2023 "Mumtaz v. The Deputy Commissioner, Swat and others".

47.    W.P. No. 1854-P/2023 "Wajid Ali v. The Deputy Commissioner, Swat and others".
48.    W.P. No. 1855-P/2023 "Khan Bacha v. The Deputy Commissioner, Swat and others".
49.    W.P. No. 1856-P/2023 "Muhammad Shoaib and others v. Government of KP through Chief Secretary and others".
50.    W.P. No. 1857-P/2023 "Muhammad Salih v. The Deputy Commissioner, Swat and others".
51.    W.P. No. 1858-P/2023 "Shah Zeeb v. The State through AG KP and others".
52.    W.P. No. 1859-P/2023 "Kazim Shah v. The State and others".
53.    W.P. No. 1860-P/2023 "Alamgir v. The Deputy Commissioner, Swat and others".
54.    W.P. No. 1861-P/2023 "Ahmad Ali v. The State and others".
55.    W.P. No. 1862-P/2023 "Muhammad Jehangir v. The State and others".
56.    W.P. No. 1863-P/2023 "Mohammad Ibrahim v. The State and others".
57.    W.P. No. 1864-P/2023 "Sabir Rahman v. The State and others".
58.    W.P. No. 1871-P/2023 "Abdullah v. The State through AG KP and others".
59.    W.P. No. 1872-P/2023 "Husain Ullah v. The State through AG KP and others".
60.    W.P. No. 1873-P/2023 "Mohammad Asad v. The State through AG KP and others".
61.    W.P. No. 1874-P/2023 "Nazim Hussain v. The State through AG KP and others".
62.    W.P. No. 1875-P/2023 "Zaheer-ud-Din Babar v. The State through AG KP and others".
63.    W.P. No. 1876-P/2023 "Zeshan v. The State through AG KP and others".
64.    W.P. No. 1877-P/2023 "Arsalan v. The State through AG KP and others".
65.    W.P. No. 1878-P/2023 "Said Jamal v. The State through AG KP and others".
66.    W.P. No. 1879-P/2023 "Kamran Ali and others v. The State through AG KP and others".
67.    W.P. No. 1880-P/2023 "Waleed and others v. Government of KP and others".
68.    W.P. No. 1884-P/2023 "Gohar Ali Shah v. The State through AG KP and others".
69.    W.P. No. 1885-P/2023 "Raham Dad v. Deputy Commissioner, Swabi and others".
70.    W.P. No. 1886-P/2023 "Salman Khan v. Deputy Commissioner, Swabi and others".
71.    W.P. No. 1887-P/2023 "Gul Bashar v. Deputy Commissioner, Swabi and others".
72.    W.P. No. 1888-P/2023 "Amin Ullah v. Deputy Commissioner, Swabi and others".
73.    W.P. No. 1889-P/2023 "Etehad Ullah v. Deputy Commissioner, Swabi and others".