ORDER SHEET.

IN THE ISLAMABAD HIGH COURT, ISLAMABAD.

JUDICIAL DEPARTMENT.

Writ Petition No. 2491/2023

Shehryar Afridi
Versus
Federation of Pakistan through Secretary Ministry of Interior & others

S. No. of Date of Order with signature of Judge and that of

order/ order/ parties or counsel where necessary.
proceedings Proceedings
(04) 16.08.2023 Mr. Sher Afzal Khan Marwat, Ch. Usama
Tariq, and Mr. Salah ud Din, Advocates for the
petitioner.
Mr. Ayaz Shoukat, Advocate General
Islamabad.
Malik Abdur Rehman, State Counsel.
Mr. Aqeel Akhtar Raja, Assistant Attorney
General.
Mr. Tahir Kazim, Law Officer, IGP’s office.
Mr. Rabnawaz Khan, Section Officer, Ministry
of Interior, Islamabad.
Dr. Akbar Nasir, Inspector General of Police,
Islamabad.
Mr. Irfan Nawaz Memon, Deputy
Commissioner, Islamabad.
Mr. Noor-ul-Ameen Mengal, Chief
Commissioner, Islamabad.
Mr. Imran Riaz, Assistant Superintendent,
Adyala Jail, Rawalpindi.
Mr. Muhammad Riaz, DSP (Legal).
Mr. Jameel Zafar, SSP (Operations),
Islamabad.
Mr. Hassan Jahangir, DPO, City Zone,
Islamabad.
Mr. Azeem, Sub-Inspector/SHO, Police Station
Margalla, Islamabad.
Mr. Ishfaq Warraich, Sub-Inspector/SHO,
Islamabad.

The learned counsel for the petitioner

has submitted that the basis for the

impugned order is exactly the same as that in

the order passed by the District Magistrate on

16.05.2023, which was set-aside by this

Court for being illegal. He submits that the

malafide on part of the executive is writ large

 -2- W.P. No.2491/2023

in view of the facts of the case. He states

that previously on the basis of a source

report issued at 02:30 a.m. in the morning,

the District Magistrate had exercised his

power under Section 3 of the West Pakistan

Maintenance of Public Order Ordinance, 1960

(“MPO”), to order the detention of the

petitioner as well as his wife. The said

detention of the petitioner’s wife was

set-aside and subsequently the detention of

the petitioner was also declared illegal by this

Court. He states that the sequence of events

is such that seven orders under MPO have

been passed against the petitioner. The dates

of such detention orders co-relate to one

another as if choreographed by one central

authority. If they are viewed in a sequence

they reflect a definite pattern: every

subsequent detention order is passed on the

date on which an order expires or is

withdrawn or is set-aside by a court to ensure

that the process of law is abused and the

petitioner remains in detention. He has

provided the dates of issuance of detention

orders under MPO which include detention

orders issued by Deputy Commissioner

Rawalpindi, Deputy Commissioner Jehlum,

Deputy Commissioner Kohat and Deputy

Commissioner Islamabad. He further states

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that the factual assertions made by the

District Magistrate in Court as well as by the

police officers that the petitioner was causing

incitement of public-at-large while in

detention in Adyala Jail are not true. The

petitioner has been kept in jail for over

85-days and has not even been allowed to

meet visitors according to his entitlement. He

states that he will file an affidavit stating that

he is the only counsel who has met the

petitioner in jail and the jail record can be

solicited from Superintendent, Adyala Jail,

Rawalpindi, to confirm that dozens of people

did not come to meet the petitioner in Adyala

Jail, who could have been incited by him,

which incitement is purportedly the cause for

issuance of a fresh detention order according

to the District Magistrate Islamabad. He

further states that the District Magistrate has

not been delegated authority under Section

26 of the MPO to pass detention orders. And

further that Supreme Court has held that

even in case of delegation of authority, it

remains for the Government to apply its mind

on the basis of an opinion rendered by the

District Magistrate under Section 3 of the

MPO.

2. The District Magistrate has appeared and

states that he has acted on the basis of

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source reports generated by the Intelligence

Bureau, Special Branch and requests initiated

by the Station House Officer, Police Station

Margalla, Islamabad, the Divisional Police

Officer, City Zone, Islamabad and the Senior

Superintendent of Police (Operations). He

states that all of these reports and requests

are dated 08.08.2023 and were shared

during a security meeting convened by him.

He submitted that he relied on information

provided by intelligence agencies and the

requests made by the police, without seeking

to verify such information, as the law

enforcement agencies were his eyes and

ears.

3. On Court’s query as to whether all of the

information came on the same day, which

was the very next day after the day on which

detention order under MPO issued in

Rawalpindi was withdrawn, the District

Magistrate states that he would need further

time to check record. When asked as to what

material was placed before him on the basis

of which he satisfied himself for purposes of

Section 3 of the MPO that there existed a

necessity to detain the petitioner, failing

which there might emerge a threat to public

safety on 08.08.2023, he states that no

 -5- W.P. No.2491/2023

additional material was placed before him or

solicited by him.

4. The Inspector General of Police,

Islamabad and the Senior Superintendent of

Police (Operations) assisted by their learned

counsel submit that orders under the MPO

are for purposes of prevention of emerging

law and order situations and in such

scenarios there often exists no concrete

material or evidence, which can be adduced

to establish that a real threat had actualized

at the time when a preventive detention

order was passed. They submit that there are

no other pending cases in which the police

authorities seek the petitioner’s arrest.

5. The Assistant Superintendent, Adyala

Jail, Rawalpindi, is in the Court and states

that the Adyala Jail has the complete record

of all individuals who met with the petitioner

at the time when he was under detention in

Adyala Jail and the same can be produced

before the Court. Let the Superintendent

Adyala Jail file a report alongwith date-wise

details of all visitors who were granted an

interview with the petitioner during the

period of his detention.

6. Let the Deputy Commissioner Islamabad

file the relevant authorization issued by the

 -6- W.P. No.2491/2023

Government for purposes of the MPO

delegating to him authority under Section 26

of the MPO to pass detention orders in

exercise of power under Section 3 of the

MPO. Let the Inspector General of Police,

Islamabad, file his own report with regard to

the threat to public safety that caused

officers under his command to generate a

second request for the detention of the

petitioner in jail, while he had already

remained in preventive detention for over

85-days. Such report will be filed alongwith

an affidavit signed by the Inspector General

of Police, Islamabad, that any information

being provided is true and correct to the best

of his knowledge and belief.

7. Let the Chief Commissioner also file a

report providing details regarding the

detention orders that have been passed by

the District Magistrate under his command

alongwith copies of the orders, withdrawal of

such order or the judicial pronouncements in

relation to such orders in the event that they

were challenged. Let him also state in the

report whether authority has been delegated

to the District Magistrate under Section 26 of

the MPO to pass the detention order under

Section 3 of the MPO, and a copy of such

delegation order.
 -7- W.P. No.2491/2023

8. In view of the above, it prima facie

appears that the impugned order has no

basis in law. The District Magistrate’s

fantastic assertion that the petitioner was

inciting public-at-large in Islamabad, while he

was behind bars in Adyala Jail and had been

in detention for over 85 days strains

credulity. It also impugns the efficacy of our

prison system and projects MPO as a

redundant tool should detenues continue to

be able to incite public and threaten public

order while under detention in jail. It is also

unclear whether or not the District Magistrate

has been delegated authority under Section

26 of the MPO and consequently whether or

not the impugned order suffers from

jurisdictional defect. It also appears, prima

facie, that the detention orders issued in

Punjab, KP and Islamabad have been

synchronized such that before or at the time

of expiry, withdrawal or setting aside of a

detention order, a subsequent order has been

issued like clockwork to keep the petitioner in

continuing detention. It also appears, in view

of the report produced and the submissions

of the District Magistrate, that he accepted

the request for issuance of the order as the

command of a superior and the expression of

apprehension on part of police authorities re

 -8- W.P. No.2491/2023

the petitioner being a threat to public order

treated as Gospel, without independent

application of mind before exercise of

authority undermining the petitioner’s right to

liberty guaranteed by Article 9 of the

Constitution. Notwithstanding the above, this

Court will grant further time to the State that

has been sought to file reports as

aforementioned to satisfy the Court that the

impugned order is neither illegal and malafide

nor suffers from a jurisdictional defect.

9. Let the matter be fixed for 28.08.2023.

C. M. No. 01/2023

Meanwhile, the impugned order will stay

suspended till the next date of hearing. The

petitioner will lodge at his residence in

Islamabad, subject to the condition that

pending adjudication of this petition he will

not leave the territorial jurisdiction of this

Court without the permission of this Court

nor will he be removed from the jurisdiction

of this Court by any state authority due to

any arrest in relation to any other matter.

While the adjudication of this matter is

underway, the Inspector General of Police,

Islamabad, and the Chief Commissioner

Islamabad shall be personally responsible for

the safety of the petitioner and shall ensure

 -9- W.P. No.2491/2023

that he is able to attend the Court when the

matter is fixed for hearing.

(BABAR SATTAR)
JUDGE

A. Rahman Abbasi