February 22, 2002	Friday	Zilhaj 9, 1422

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MULTAN, Feb 21: Justice Fakharun Nisa Khokhar of the Multan bench of Lahore High Court has set aside the detention orders of a person passed by the provincial home department labelling him a staunch worker of a now defunct religious organization.

Disposing of a writ petition, she observed that liberty of a citizen was a divine right duly safeguarded by the constitution. ‘Dignity of a common man does not differ from man to man, race to race, nation to nation. It is the supreme right of each citizen which should be explained for each hour, day and month’, if curtailed.

Moulvi Naseer Husain Shah of the Muzaffargarh district had filed a writ petition against his detention under the MPO-3 (explanation-II). The petitioner moved the court after the rejection of his representation by the home secretary on Feb 20, 2002.

Muzaffargarh police detained Moulvi Shah for a period of three months onward from Feb 16, 2002, declaring him and his activities prejudicial to the public safety and maintenance of public order.

The petitioner’s counsel pleaded that there was no material available with the respondents, police and the home department to establish that the petitioner was member of any sectarian organization. He further pleaded that his client was a regular employee of the Auqaf department who performed the duties as prayer leader. There was not a single instance of either criminal or sectarian case against him which could prove he was a threat to peace and public order.

The counsel informed the court that impugned detention order was based on a police official report, terming it mala fide and requested the court to set aside it.

The assistant advocate general argued the petitioner was a patron of an organization banned under section 11-A of anti-terrorism act, 1997, and MPO’s section 3 (explanation-II), 1960. He said in such cases presumption of truth had always been attached to the report of law enforcement and intelligence agencies.

In her nine-page judgment, justice Fakharun Nisa observed the impugned detention order did not carry substantial material to retain an individual and curb his freedom of movement as the order (detention) merely relied on the report of an investigation agency. “There is a heavy duty and burden on detaining authority to show reasonable and substantial evidences while passing detention orders.”

She further said the high court being a court of equity and natural justice had all the jurisdiction to go and scrutinize the material furnished by detaining authority. She observed that even the provision of section 3 of MPO enforced that the membership (of a banned organization) should be deemed to have been prejudicial to the public safety.

Furthermore, the judgment added, the section 3 of MPO said that activities of an individual would be tantamount to be prejudicial to the public safety and state activities when he or she remained the member of the executive committee of the organization within seven days of its being declared banned.

As the impugned detention orders did not produce any material to show that the petitioner was a member of the defunct organization and had remained the same within the seven days of its being banned, the court declared the detention order passed on mere a report of an agency as without the lawful authority and jurisdiction.

This is, perhaps, the first ever constitutional writ petition decided by a court since the recently imposed ban on various religious organizations in the country.