Allama Saad Hussain Rizvi's Verdict

Stereo. HCJDA 38

JUDGMENT SHEET
LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No. 48765/2021

Ameer Hussain
Vs.
Government of Punjab etc.
JUDGMENT
Date of hearing 01.10.2021

Petitioner by:
Mr. Burhan Moazzam Malik, Mian Pervaiz Hussain, 
Mian Tabbasum Ali and Ms. Saima Arif, Advocates.
Respondents 1 & 2 by:
Mr. Ahmad Awais, Advocate General Punjab; Malik 
Javed Akhtar, Additional Advocate General; Mr. 
Zafar Hussain Ahmad, Additional Advocate General 
and Rai Shahid Saleem, Assistant Advocate General 
with Zahoor Hussain, Special Secretary (Home 
Department) and Irshad Ahmad, Section Officer 
(Internal Security).
Respondent No.3 by:
Mr. Asad Ali Bajwa, Deputy Attorney General and 
Mr. Muhammad Haider Kazmi, Assistant Attorney 
General.

“The Rule of Law concept, in essence, embodies a number of important 

interrelated ideas. First, there should be clear limits to the power of the 

State. A government exercises its authority through publicly disclosed laws 

that learned noted and enforced by an independent judiciary in accordance 

with established and accepted procedures. Secondly, no one is above the 

law; there is equality before the law. Thirdly, protection of the rights of the 

individual.”

1

– S. Jayakumar

Tariq Saleem Sheikh, J. This petition under Article 199 

of the Constitution of Islamic Republic of Pakistan, 1973 (the 

“Constitution”), impugns order dated 10.7.2021 (the “Impugned Order”) 

issued by Respondent No.2 (Deputy Commissioner, Lahore) directing 

detention of Hafiz Saad Hussain Rizvi under section 11-EEE of the Anti-

Terrorism Act, 1997 (the “ATA”), and seeks his immediate release.

Facts

2. Hafiz Saad Hussain Rizvi is the Ameer of Tehreek-e-Labaik 

Pakistan (TLP). He demands expulsion of the French diplomat from 

Pakistan as a mark of protest against publication of irreverent caricatures 

in France. The Government of the Punjab (the “Punjab Government”) 

was moved when he held a meeting with his party’s top leaders at 

Sabzazar, Lahore, on 11.4.2021 and announced country-wide agitation, 

including march to Islamabad, to press for the aforesaid demand. The 

Deputy Inspector General of Police (Operations) addressed Letter No. 

2048/DSP-L-Ops dated 12.4.2021 to Respondent No.2 for Rizvi’s 

detention under section 3 of the Punjab Maintenance of Public Order 

Ordinance, 1960 (the “MPO”). Keeping in view the sensitivity of the 

matter, Respondent No.2 immediately convened a meeting of the District 

Intelligence Committee (DIC) and on its recommendations, vide Order 

No. RDM/35 dated 12.4.2021, directed that Rizvi should be arrested and 

detained in the Central Jail, Kot Lakhpat, Lahore, for 30 days. Although 

he was arrested, the TLP activists came out on the streets and resorted to 

vandalism. They also protested against his detention. The following 

week saw complete breakdown of law and order in the province. 

According to the Punjab Government, three police officials were killed, 

303 were injured and 28 were abducted in various incidents. Besides, 16 

police vehicles, two oil tankers and the Orange Train Stations were 

damaged. Roads were blocked and private property worth crores of 

rupees, including cars and motorcycles, were set ablaze. The Additional 

Chief Secretary (Home Department) extended Rizvi’s detention for a 

further period of 30 days vide Order dated 11.5.2021. The Petitioner, 

who is his paternal uncle, filed Writ Petition No. 31145/2021 in this 

Court challenging his detention but it was dismissed vide Order dated 

24.5.2021. Subsequently, the Home Department ordered another 30 days 

extension which took the aggregate of his detention period under the 

MPO to 90 days.

3. Article 10(4) of the Constitution mandates that a person 

cannot be detained under any preventive detention law beyond three 

months unless his case is reviewed by the prescribed Review Board and authorized by it. In view of this constitutional command, the Punjab 

Government made a reference under section 3(5) of the MPO to the 

Provincial Review Board consisting of three Hon’ble Judges of this 

Court. The Board opined that there wasn’t any sufficient ground for 

Rizvi’s further detention and, vide Order dated 02.07.2021, declined the 

Government’s request for extension and directed his immediate release. 

The Punjab Government did not assail that order before the competent 

court.

4. Rizvi’s 90 days detention period under the Ordinance was 

to expire on 10.7.2021 but before he could be released Respondent No.2, 

purportedly in exercise of the powers under section 11-EEE read with 

section 33 of the ATA, issued the Impugned Order directing his 

detention for three months. Hence, this petition.

5. It is important to point out that on 13.7.2021 Rizvi made a 

representation to the Secretary (Home Department), Government of the 

Punjab, which he did not decide. Finally, vide Letter No.

SO(IS-1)3-41/2021 (TLP) dated 2.9.2021, he was informed that it was 

not maintainable and was advised that the “concerned forum for the 

subject-matter may be approached for its adjudication.”

6. When this petition came up for regular hearing this Court 

observed that representation of Federation of Pakistan was necessary. 

Accordingly, the Petitioner was directed to implead it as Respondent 

No.3. The Court also felt that substantial questions as to interpretation of 

constitutional law were involved in this case so notices were issued to 

the Attorney General for Pakistan and the Advocate General Punjab in 

terms of Order XXVII-A CPC.

7. The Respondents submitted report and parawise comments 

to this petition which were placed on record.

Arguments

8. The learned counsel for the Petitioner, Mr. Burhan 

Moazzam Malik, Advocate, contended that the Impugned Order was 

void abinitio because the Home Department’s Letter No.SO(Jud-III)7-1/2014(P) dated 10.7.2021 from which Respondent No.2 

derived authority to pass the said order was bad in law. On merits, the 

learned counsel submitted that Rizvi was a patriot and a practicing 

Muslim. He loved Prophet Muhammad (PBUH) and had a constitutional 

right to protest if there is any irreverence to him, more particularly 

against the sacrilegious publications in France. Nevertheless, he did not 

exceed that fundamental right and there was not a whit of evidence that 

he incited his party workers or other activists to resort to arson and 

vandalism. The Provincial Review Board had rejected the Punjab 

Government’s reference under section 3(5) of the MPO and held that the 

grounds of his detention were flimsy. He contended that after the 

Board’s decision it was not possible for it to detain Rizvi under the MPO 

so it resorted to section 11-EEE of the ATA to frustrate it which could 

not be permitted. He maintained that the Impugned Order was out-and-

out malafide and to highlight the point referred to three orders of the 

Home Department, i.e. Order No. SO(IS-1)4-10/2020(P-1) (Lahore)-1 

dated 21.1.2021; Order No. SO(IS-1)4-10/2020(P-1)(Lahore)-9 dated 

18.2.2021; and Order No. SO(IS-1)4-10/2020(P-1) dated 16.4.2021. The 

first order proscribed Rizvi under section 11-EE of the ATA and placed 

his name in the list maintained under the Fourth Schedule of the Act 

while the second order annulled the action after 28 days. The third one 

re-proscribed him.

9. The learned Deputy Attorney General for Pakistan 

submitted that Rizvi was a fire-band speaker and had great influence on 

his party workers. His detention averted his plan to march to Islamabad 

but violent protests were witnessed throughout the Punjab. Keeping his 

nefarious activities in view, the Federal Government proscribed him 

under section 11-EE of the ATA which he had not challenged so far. The 

learned Law Officer added that the Federal Government supported the 

Impugned Order as it had credible intelligence reports that Rizvi would 

create mischief again if he was released.

10. The learned Advocate General vehemently opposed this 

petition. He argued that this petition was not maintainable as Rizvi had 

not exhausted administrative remedy which was adequate as well as efficacious. He controverted the Petitioner’s contention that Respondent 

No.2 was not competent to issue the Impugned Order and submitted that 

the Punjab Government had delegated its powers to him under section 33 

of the ATA in accordance with the law declared by the Hon’ble Supreme 

Court of Pakistan in Messrs Mustafa Impex, Karachi, and others v. The 

Government of Pakistan through Secretary Finance, Islamabad and 

others (PLD 2016 SC 808). On facts the learned Advocate General 

contended that Rizvi’s preventive detention was imperative in the 

prevailing circumstances. He was a big threat to the public peace and the 

country’s security owing to which the Federal Government had 

proscribed his party, TLP, under section 11-B and his person under 

section 11-EE of the ATA. He added that there were intelligence reports 

that the Majlis-e-Shura and the leadership of the defunct TLP were 

desperately waiting for Rizvi’s release to chalk out their next line of 

action. They were likely to incite party workers and create law and order 

situation again.

The law and jurisprudence

11. Rule of law connotes “the mechanism, process, institution, 

practice, or norm that supports the equality of all citizens before the law, 

secures a non-arbitrary form of government, and more generally 

prevents the arbitrary use of power.”2

Personal liberty is one of the basic 

human rights and the principle that the governments cannot deprive 

individuals of that right is central to the concept of rule of law.3

“First 

recognized in the Magna Carta Libertatum in 1215, this basic human 

right has in no small measure defined the proper juridical relationship 

between citizens and their governments. Indeed, this principle is now 

explicitly recognized in most constitutions and several international 

human rights treaties, declarations and resolutions.”4 Nevertheless, the 

right to personal liberty is not an unqualified right and in some 

compelling circumstances a State may have to put curbs on an individual 

and resort to what is called preventive (or preventative) detention.

12. There is no standard definition of “preventive detention.” 

Justice Fazal Karim opines that it is a species of custody or arrest. He 

writes: “An order restricting a person’s movement may amount to a 

detention order, if under the law the person is so restricted, if he leaves 

that place, can be brought by physical force of if he can be punished for 

so leaving, for in that case the place to which his movements are 

restricted will constitute a sort of prison.”5 However, in the international 

documents the “preventive detention” refers to “persons arrested or 

imprisoned without charge.”6

The International Committee of Red 

Cross, which terms preventive detention as internment, states that it is an 

“exceptional measure of control that may be ordered for security reasons 

in armed conflict, or for the purpose of protecting State security or 

public order in non-conflict situations provided the requisite criteria have 

been met.7

13. Quite often the term “preventive detention” is used 

interchangeably with the expression “administrative detention” and the 

two are considered synonymous. However, Stella opines:8

“Although there are exceptions, the term ‘administrative detention’ is 

more frequently employed in civil law countries, and the term 

‘preventive’ or ‘preventative’ detention is used more often in common 

law countries. This apparently innocuous distinction is nonetheless 

important, as the differing terms ‘administrative’ and ‘preventive’ are 

intrinsically value-laden, suggesting, in the case of the former, that 

detention is a tool of the administration or bureaucracy, and, in the 

case of the latter, that detention is necessary to ‘prevent’ a potential 

threat or danger from occurring.”

14. It follows from the above discussion that preventive 

detention is a measure whereby the executive takes a person into custody 

to prevent a future harm. He may not have committed a crime but there 

is apprehension that he would indulge in acts that are prejudicial to 

public peace. Lord Atkinson considered the justification for preventive 

detention in R v. Halliday, [1917] AC 260, and observed:

“… where preventive justice is put in force some suffering and 

inconvenience may be caused to the suspected person. That is 

inevitable. But the suffering is, under this statute, inflicted for 

something much more important than his liberty or convenience, 

namely, for securing the public safety and defence of the realm.”

15. In Halliday, Lord Finlay pointed out that the object of 

preventive detention is not to punish a person for an offence committed 

by him but to forestall mischief. He said:

“Any preventive measure even if they involve some restraint or 

hardship upon individuals, do not partake in any way of the nature of 

punishment, but are taken by way of precaution to prevent mischief to 

the State.”

16. The Indian Supreme Court echoed the same thought in 

Union of India v. Paul Manickam and another (AIR 2003 SC 4622) 

when it ruled:

“In case of preventive detention no offence is proved, nor any charge 

is formulated and the justification of such detention is suspicion or 

reasonability and there is no criminal conviction which can only be 

warranted by legal evidence. Preventive justice requires an action to 

be taken to prevent apprehended objectionable activities … The 

compulsions of the primordial need to maintain order in society, 

without which enjoyment of all rights, including the right of personal 

liberty would lose all their meanings, are the true justifications for the 

laws of preventive detention. This jurisdiction has been described as a 

‘jurisdiction of suspicion’, and the compulsions to preserve the values 

of freedom of a democratic society and social order sometimes merit 

the curtailment of the individual liberty.”

17. Similarly, in Francis Coralie Mullin v. The Administrator, 

Union Territory of Delhi and others (AIR 1981 SC 746) the Indian 

Supreme Court held:

“[I]t is necessary to bear in mind the distinction between ‘preventive 

detention’ and ‘punitive detention’ when we are considering the 

question of validity of conditions of detention. There is a vital 

distinction between these two kinds of detention. ‘Punitive detention’ 

is intended to inflict punishment on a person, who is found by the 

judicial process to have committed an offence, while ‘preventive 

detention’ is not by way of punishment at all, but it is intended to pre-

empt a person from indulging in conduct injurious to the society. The 

power of preventive detention has been recognized as a necessary evil 

and is tolerated in a free society in the larger interest of security of the 

State and maintenance of public order

18. International human rights law does not proscribe 

preventive detention. Nevertheless, it must be in accordance with and the 

grounds prescribed by law.10 Arbitrary detention is prohibited. The UN 

General Assembly has adopted “Body of Principles for the Protection of 

All Persons under Any Form of Detention or Imprisonment”11 which are 

required to be followed in all cases.

19. The Universal Declaration of Human Rights (UDHR),

which is the “milestone document in the history of human rights”12 and 

sets out “a common standard of achievements for all peoples and all 

nations”,13 states that “no one shall be subjected to arbitrary arrest, 

detention or exile.”14 Article 9(1) of the International Covenant on Civil 

and Political Rights (ICCPR) reiterates this principle. It reads: 

“Everyone has the right to liberty and security of person. No one shall be 

subjected to arbitrary arrest or detention. No one shall be deprived of his 

liberty except on such grounds and in accordance with such procedure as 

are established by law.” In terms of Article 4 of ICCPR derogation from 

this obligation is permissible only in an extreme situation and subject to 

the following conditions: (a) there is a public emergency which threatens 

the life of the nation; (b) the state of emergency is officially proclaimed; 

(c) the derogation is to the extent required by the exigencies of the 

situation; and (d) the measures taken by the State should not be 

inconsistent with its other obligations under international law and do not 

involve discrimination on the ground of race, colour, sex, language, 

religion or social origin.

20. According to Claire Macken, there are two possible 

interpretations of the term “arbitrary”. If narrowly interpreted it would 

mean an arrest which is not in accordance with the procedure prescribed 

by law and thus out-and-out unlawful. On the other hand, in the wide 

sense, an arrest or detention is arbitrary if it is unlawful or unjust, that is,

under a law which is contrary to the principles of justice or derogates the 

right to liberty and security of person.15 General Comment No. 35 of the 

Human Rights Committee of the ICCPR favours the latter construction. 

Paragraph 12 thereof states that “an arrest or detention may be 

authorized by domestic law and nonetheless be arbitrary. The notion of 

‘arbitrariness’ is not to be equated with ‘against the law’, but must be 

interpreted more broadly to include elements of inappropriateness, 

injustice, lack of predictability and due process of law, as well as 

elements of reasonableness, necessity and proportionality.”

16

21. In Hugo Van Alphen v. the Netherlands the Human Rights 

Committee (HRC) while interpreting “arbitrary detention” in ICCPR 

observed:

“The drafting history of Article 9, paragraph 1, confirms that 

‘arbitrariness’ is not to be equated with ‘against the law’, but must be 

interpreted more broadly to include elements of inappropriateness, 

injustice and lack of predictability. This means that remand in custody 

pursuant to lawful arrest must not only be lawful but reasonable in all 

the circumstances. Further, remand in custody must be necessary in 

all the circumstances, for example, to prevent flight, interference with 

evidence or the recurrence of crime.”

17

22. The Working Group on Arbitrary Detention set up by the 

UN Commission on Human Rights in 1991 states that “deprivation of 

liberty is arbitrary if a case falls in one of the following three categories: 

(a) when it is clearly impossible to invoke any legal basis justifying the 

deprivation of liberty (as when a person is kept in detention after the 

completion of his sentence or despite an amnesty law applicable to him); 

(b) when the deprivation of liberty results from the exercise of the rights 

or freedoms guaranteed by Articles 7, 13, 14, 18, 19, 20 and 21 of the 

UDHR and, insofar as States parties are concerned, by Articles 12, 18, 

19, 21, 22, 25, 26 and 27 of the ICCPR; and (c) when the total or partial 

non-observance of the international norms relating to the right to a fair

trial, spelled out in the UDHR and in the relevant international 

instruments accepted by the States concerned, is of such gravity as to 

give the deprivation of liberty an arbitrary character.”18

23. In A v. Australia19 the HRC iterated that the element of 

proportionality is also relevant for determining whether detention is 

arbitrary within the meaning of Article 9(1) of ICCPR. Relevant excerpt 

is reproduced below:

“[T]he Committee recalls that the notion of ‘arbitrariness’ must not be 

equated with ‘against the law’ but be interpreted more broadly to 

include such elements as inappropriateness and injustice. 

Furthermore, remand in custody could be considered arbitrary if it is 

not necessary in all the circumstances of the case, for example to 

prevent flight or interference with evidence: the element of 

proportionality becomes relevant in this context.”

24. The European Convention on Human Rights permits 

detention only on the six grounds specified in Article 5(1) in accordance 

with the procedure prescribed by law. Albeit “the word ‘proportionality’ 

is nowhere to be found in the European Convention, but the idea it 

expresses appears as a central principle in the jurisprudence of the 

ECHR. Proportionality analysis may consist of (1) suitability (the 

limiting measure must be capable of achieving the (legitimate) aim 

pursued); (2) necessity (the limiting measure must be the least restrictive 

means to achieve the relevant purpose); and (3) proportionality in the 

narrow sense (there must be a reasonable balance between the limiting 

measure and the aim pursued). However, a fair or reasonable balance 

must be struck between the rights of individuals and the general public 

interests of society. In the context of preventive detention of terror 

suspects, a proportionate balance is required between preventive 

detention and prevention of terrorism.”20

25. The jurisprudence developed under the American 

Convention on Human Rights also interdicts arbitrary detention and 

holds that the principle of proportionality would apply even where the 

authorities claim that it is legitimate. In Lopez Alvarez v. Honduras21 the 

Inter-American Court of Human Rights said:

“67. The preventive detention is limited by the principles of legality, 

the presumption of innocence, need, and proportionality, all of which are 

strictly necessary in a democratic society. It is the most severe measure 

that can be applied to the person accused of a crime, reason for which its 

application must have an exceptional nature. The rule must be the 

defendant’s liberty while a decision is made regarding his criminal 

responsibility.

“68. The legitimacy of the preventive detention does not arise only 

from the fact that the law allows its application under certain general 

hypotheses. The adoption of this precautionary measure requires a 

judgment of proportionality between said measure, the evidence to issue 

it, and the facts under investigation. If the proportionality does not exist, 

the measure will be arbitrary.”

26. In Indo-Pak sub-continent the history of preventive 

detention can be traced to Bengal Regulation III of 1818 which was 

applicable to three presidencies of Calcutta, Bombay and Madras. 

However, the principal legislations were the Defence of India Act of 

1915, the Anarchical and Revolutionary Crimes Act of 1919 (popularly 

known as the Rowlatt Act), The Government of India Act, 1935, and the 

Defence of India Act of 1939. Pakistan retained the concept of 

preventive detention after the Independence and gave it constitutional 

imprimatur. Article 10 of the Constitution of 1973 directly addresses 

preventive detention whose language has remained the same over time 

except for minor amendments.

27. Article 10(4) of the Constitution mandates that a law 

providing for preventive detention can be made only to deal with persons 

acting in a manner prejudicial to the integrity, security or defence of 

Pakistan or any part thereof, or external affairs of the country, or public 

order, or the maintenance of supplies or services. It further says that no 

law shall authorize the detention of a person for a period exceeding three 

months unless the appropriate Review Board sanctions it and, if the 

government requires any further extensions for a sufficient cause, they 

would also be subject to review by the Board after every three months. 

Article 10(5) stipulates that when any person is detained under a 

preventive detention law, the authority making the order shall within 

fifteen days communicate to him the grounds on which it has made the 

order and shall afford him the earliest opportunity to make a 

representation thereagainst. Article 10(7) prescribes the maximum 

period for which a person may be detained under the preventive 

detention law. Article 10(9) adds that the provisions of Article 10 do not 

apply to enemy aliens. It may not be out of place to mention that the 

Constitution of Pakistan (1973) contains express provisions regulating 

declaration of emergency and the rights that can be suspended in that 

event. Article 10 goes beyond the existence of any particular 

emergency.

22

28. In the instant case, the Punjab Government has detained 

Rizvi under section 11-EEE of the ATA. It is reproduced below for 

facility of reference:

11-EEE. Power to arrest and detain suspected persons – (1) 

Government if satisfied that with a view to prevent any person whose 

name is included in the list referred to section 11-EE, it is necessary 

so to do, may, by order in writing, direct to arrest and detain, in such 

custody as may be specified, such person for such period as may be 

specified in the order, and Government if satisfied that for the 

aforesaid reasons it is necessary so to do, may, extend from time to 

time the period of such detention for a total period not exceeding 

twelve months.

Clause (i) of section 2 of the ATA defines “Government” as:

(i) ‘Government’ means the Federal Government or, as the case 

may be, the Provincial Government.

29. In Federation of Pakistan through Secretary, Ministry of 

Interior, Islamabad v. Amatul Jalil Khawaja and others (PLD 2003 SC 

442) after a detailed analysis of the judicial precedents the Hon’ble 

Supreme Court of Pakistan ruled that an order of preventive detention 

must conform to the following criteria:

“(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) the 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) the initial burden lies on the detaining authority to show the 

legality of the preventive detention;

(iv) 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;

(v) 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 and that every 

requirement, of the law relating to preventive detention had been 

strictly complied with;

(vi) the ‘satisfaction’ in fact existed with regard to the necessity of 

preventive detention of the detenue;

(vii) the edifice of satisfaction is to be built on the foundation of 

evidence because conjectural presumption cannot be equated with 

satisfaction; it is subjective assessment and there can be no objective 

satisfaction;

(viii) 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;

(ix) 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’.”

30. “The history of liberty is history of procedural 

safeguards.”23 In The Government of East Pakistan v. Mrs. Rowshan 

Bijaya Shaukat Ali Khan (PLD 1966 SC 286) the Hon’ble Supreme 

Court held that preventive detention makes an inroad on the personal 

liberty of a person without the safeguards of a formal trial so it must be 

jealously kept within the legal confines. Where the government feels 

compelled to deprive a person of his liberty, it “must strictly and 

scrupulously observe the forms and rules of law”.

24 And whenever this is 

not done, the Court will set the prisoner at liberty in a proceeding for 

habeas corpus.

The case on hand

31. I first take up the learned Advocate General’s objection 

regarding maintainability of this petition. According to him, Rizvi made 

a representation against the Impugned Order before the Home Secretary 

which was returned to him vide letter dated 2.9.2021 on the ground that 

it was not maintainable and he was advised to approach the competent 

forum. He contends that Rizvi must exhaust the administrative remedy in 

the first instance – which, on my query, he said lies before Respondent 

No.2. I am afraid, I cannot subscribe to this argument. The learned 

Advocate General has failed to explain as to how Rizvi’s representation 

before the Home Secretary was wrong. The ATA does not contain any 

specific provision regarding representations against the preventive 

detention orders issued under section 11-EEE. This right is read into it 

through sub-section (2) of that section which stipulates that Article 10 of 

the Constitution shall apply mutatis mutandis to such orders. Article 

10(5) of the Constitution enjoins that the authority making an order of 

preventive detention shall afford the detenue an “earliest opportunity of 

making a representation against the order.” If it is assumed, as the 

learned Advocate General wants me to do, that the representation against 

the Impugned Order lies before Respondent No.2, the Home Secretary 

should have forwarded Rizvi’s application to him or returned it 

forthwith. He should not have sat over it till 2.9.2021. The contention of 

the learned counsel for the Petitioner that the conduct of the government 

functionaries smacks of malice is, prima facie, not unfounded.

32. The constitutional law recognizes the doctrine of exhaustion 

of statutory remedies. However, the courts generally distinguish between 

cases seeking enforcement of fundamental rights and those in which no 

such issue is involved. Justice Fazal Karim explicates:

“Fundamental rights are fundamental because they have been 

guaranteed by the fundamental law, that is, the Constitution. As a 

general rule, as regards them, the only adequate remedy is the one 

provided by the Constitution itself, and no question of another 

remedy, e.g. statutory, being an adequate remedy can arise. The 

Supreme Court of India has repeatedly declared ‘that the existence of 

such a remedy was not a matter which was relevant to be considered 

when the citizen complained of the infringement of his fundamental 

rights.’ ”

26

33. This petition is in the nature of habeas corpus. According to 

Basu, “habeas corpus is not a part of the judicial review procedure, 

although the grounds of issuing it are probably the same, as those of 

judicial review.”27 He further states: “Habeas corpus is a writ ‘of right’

and not a writ ‘of course’, and not a discretionary writ. The court is 

bound to issue the writ if on return, no cause or no sufficient cause 

appears and cannot refuse it on the ground of existence of alternative 

remedy.”28 In Union of India v. Paul Manickam and another (AIR 

2003 SC 4622), the Indian Supreme Court held that when the 

Constitution declared that no person shall be deprived of life and liberty 

except in accordance with the procedure established by law, a machinery 

was required to examine the question of illegal detention with 

promptitude. The writ of habeas corpus is a device of that nature. In 

Federation of Pakistan through Secretary, Ministry of Interior, 

Islamabad v. Amatul Jalil Khawaja and others (PLD 2003 SC 442), 

which was a case of preventive detention under the Security of Pakistan 

Act, 1952, the Hon’ble Supreme Court of Pakistan held:

“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 no 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 legislation. 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 Lah. 135). 

He need not wait for the opinion of the Advisory Board before 

praying for a habeas corpus. (AIR 1952 Cal. 26).”

34. The learned Advocate General has referred to the cases 

titled Muhammad Siddiq Khan v. District Magistrate (PLD 1992 

Lahore 140) and Sheikh Rashid Ahmad v. D. M. Rawalpindi etc. (PLJ 2004 Lahore 1221) decided by a Division Bench and five-member 

Larger Bench of this Court respectively which take a contrary view. 

These judgments are at variance with the dictum laid down by the 

Hon’ble Supreme Court in Amtul Jalil Khawaja’s case so they cannot be 

followed. Article 189 of the Constitution mandates that any decision of 

the Supreme Court, insofar as it decides a question of law or is based 

upon or enunciates a principle of law, is binding on all the courts in the 

country. Interestingly, even in Muhammad Siddiq Khan the learned 

Division Bench left a window open for exercise of constitutional 

jurisdiction by the High Court when it held:

“As already held that Article 10(5) of the Constitution and section 

3(6) and (6-a) of the Punjab Maintenance of Public Order Ordinance, 

grant a right to detenu to make a representation which must be 

decided by the Government. That being so we are of the view that the 

remedy provided by Article 10(5) and sub-sections (6) and (6-a) of 

section 3 of the Ordinance is adequate within the meaning of Article 

199 of the Constitution. By so observing we do not find to lay down 

an inflexible rule and we should not be taken to have held that in no 

case a constitutional petition can be filed without filing a 

representation. There may be cases where it can be demonstrated that 

it is not possible to file a representation for example, where no 

grounds of detention are communicated to the detenu or where the 

filing of the representation would be a mere exercise in futility. 

Similarly, there may be other cases like complete lack of jurisdiction 

in the authority passing the order of detention where the filing of 

representation may not be necessary. In the ultimate analysis the 

question as to whether it would be necessary to file a representation in 

a given case would depend upon the facts of that case.”

35. In the instant case, the Petitioner has specifically pleaded 

that the Impugned Order is without jurisdiction, coram non judice and 

malafide. Therefore, it also falls within the exceptions contemplated by 

Siddiq Khan. The learned Advocate General’s objection is accordingly 

repelled.

36. Let us now turn to the Petitioner’s challenges to the 

Impugned Order. ATA is a federal law which aims to check terrorism, 

sectarian violence and provides for speedy trial of heinous offences.29 A 

careful study of the ATA would show that the Federal and the Provincial 

Government have concurrent jurisdiction over some subjects while 

others fall exclusively in the former’s domain. Nevertheless, the learned

Advocate General argues, it may even delegate these to the Provincial 

Government under section 33 of the Act.30

37. Section 11-EE of the ATA stipulates that the Federal 

Government may, by order published in the official Gazettee, proscribe a 

person and put his name in the list maintained in terms of the Fourth 

Schedule of the ATA on the grounds mentioned in sub-section (1) of the 

said section. This entails the consequences detailed in other clauses of 

that section. The Federal Government, purportedly in exercise of the 

powers under section 33, issued SRO dated 29th October 2014 to 

delegate functions under section 11-EE of the ATA to the Provincial 

Home Secretaries and the Chief Commissioner, Islamabad. Then, 

through another notification dated 24th August 2020 it authorized these 

functionaries, inter alia, to constitute Proscription Review Committees 

contemplated in the Act within their respective jurisdictions. The Punjab 

Government has proscribed Rizvi vide Order No. SO(IS-1)4-10/2020

(P-1)(Lahore)-1 dated 16.4.2021 in exercise of its delegated authority. 

Inasmuch as the said order has not been challenged in these proceedings, 

I would not comment on it lest it may prejudice the parties. 

Nevertheless, I do make one point. The learned Advocate General 

contends that in Qari Muhammad Arif v. Secretary Home Department 

and others (PLD 2021 Lahore 499) this Court has declared the aforesaid 

delegation of powers valid. This is incorrect. The constitutionality of the 

said notifications was neither questioned nor considered in that case so it 

is yet to be debated.

38. Section 11-EEE of the ATA speaks of preventive detention 

and empowers the “Government” to arrest and detain the person 

proscribed under section 11-EE if it is satisfied that he is likely to 

indulge in the verboten activities and it is necessary to prevent him from

doing so. Keeping in view the definition in clause (i) of section 2, there 

is nothing in section 11-EEE to restrict the power to order preventive 

detention to the Federal Government. It can be legitimately exercised by 

the Provincial Government in its own right without any delegation from 

the Federal Government under section 33. However, this holding does 

not conclude the discussion on the point. Respondent No.2 has issued the 

Impugned Order purportedly in exercise of the powers conferred on him 

by the Government of the Punjab, Home Department, vide Letter No. 

SO(Judl-III)7-1/2014(P) dated 10.7.2021. It is to be determined whether 

that conferment is valid.

39. In Messrs Mustafa Impex, Karachi, and others v. The 

Government of Pakistan through Secretary Finance, Islamabad and 

others (PLD 2016 SC 808) the Hon’ble Supreme Court held that the 

Constitution (Eighteenth Amendment) Act, 2010, has made fundamental 

changes in the Constitution which, inter alia, include channelizing the 

executive power of the government. With reference to the Federal 

Government, the Court ruled that it consists of the Prime Minister and 

the Federal Ministers (i.e. the Cabinet) but does not include the President 

who is the Head of the State. Neither a Secretary nor a Minister nor the 

Prime Minister are the Federal Government and they cannot exercise 

powers on its behalf. The august Supreme Court further held that the 

Rules of Business, 1973, are binding on the Federal Government and 

must be followed in all eventualities in letter and spirit. Rule 16 thereof 

gives the Prime Minister discretionary power in respect of the matters to 

be brought before the Cabinet but the exercise of that discretion is 

subject to two conditions: firstly, he must consciously apply his mind to 

every case and justify through a reasoned and formal order where he 

thinks that reference to the Cabinet is not necessary; and secondly, the 

matter should not be such regarding which Cabinet decision is 

compulsory under the Constitution. The same principles apply to the 

Provincial Government.

40. As adumbrated, the Federal and the Provincial Government 

have concurrent powers under section 11-EEE of the ATA to detain a 

proscribed person. The Punjab Government delegated its powers under

that section to the Deputy Commissioners vide Notification No. SO(Jud-

III)7-1/2014 dated 24.2.2017 issued by the Secretary, Home Department. 

On 7.7.2021 the Additional Chief Secretary (Home) moved a summary 

to the Chief Minister that the said notification was not in order as it did 

not have the Cabinet’s approval which was imperative in terms of the 

law declared by the Hon’ble Supreme Court in the Mustafa Impex case. 

He solicited his approval to place the matter before the Provincial 

Cabinet through circulation in terms of Rule 25(1)(b) of The Punjab 

Government Rules of Business, 2011 (the “Punjab Rules of Business”), 

for seeking:

i) Ex-post facto approval of notification dated 

24.2.2017 issued by the Home Department.

ii) Ex-post facto approval of all the orders issued by the 

Deputy Commissioners in exercise of the powers 

delegated in the aforementioned notification.

41. The Chief Minister approved the summary on 8.7.2021. 

However, before proceeding further it is necessary to see how the 

Cabinet is required to conduct business.

42. Rule 25(1) of the Punjab Rules of Business lays down that 

the cases referred to the Cabinet shall be disposed of:

(a) by discussion at a meeting of the Cabinet;

(b) by circulation amongst the Ministers; and

(c) by discussion at a meeting of a Committee of the 

Cabinet.

Rule 25(2) states that unless the Cabinet authorizes 

otherwise, the decisions of a Committee of Cabinet shall be ratified by 

the Cabinet. Rule 25(3) provides that the Cabinet may constitute 

Standing or Special Committees and may assign to them a class of cases 

or a particular case.

Rule 27 prescribes the procedure for Cabinet decision by 

circulation. Rule 27(1) stipulates that when a case is circulated to the 

Cabinet for recording opinion, the Chief Secretary shall specify the time

by which the opinion should be communicated to him. If a Minister does 

not furnish his opinion by that time, he shall be deemed to have accepted

the recommendations contained in the summary. Rule 27(2) enjoins that 

after the opinions of all the Ministers have been received, or the time 

specified has expired, the Chief Secretary shall–

(a) in the event of full agreement to the recommendation 

in the summary, treat it as a Cabinet decision and 

proceed further in terms of Rule 28(12); and 

(b) in the event of a difference of opinion, obtain the 

direction of the Chief Minister whether the case shall 

be discussed at the meeting of the Cabinet or the 

recommendations of the majority of the Ministers be 

accepted and communicated as a Cabinet decision.

Rule 27(3) lays down that if the Chief Minister directs that 

the recommendations of majority of Ministers be accepted as a Cabinet 

decision, the Chief Secretary shall proceed under Rule 28(12). If, 

however, the Chief Minister directs that the case shall be discussed at a 

meeting of the Cabinet, he shall circulate the opinions recorded by the 

Ministers in the form of a supplementary summary.

Rule 28(12) requires the Chief Secretary to circulate the 

Cabinet decision to the Ministers and Rule 28(15) mandates that he shall 

send a copy thereof, and whenever considered necessary, to the 

Secretary of the Department concerned for giving effect to it. Finally, 

Rule 30(1) ordains that when the Cabinet decision on a case is received 

by the concerned Department, it shall acknowledge its receipt and take 

prompt action for its implementation.

43. The documents submitted by the learned Advocate General 

in this Court show that the Punjab Rules of Business have not been 

followed in the instant case. To start with, it is observed that the Chief 

Secretary fixed two days’ time under Rule 27(1) for the Provincial 

Ministers to communicate their opinion whereupon the Cabinet Wing 

issued them circular letters (the “Circular”) on 8.7.2021. However, they 

were incongruous and did not give the same time line. Some of them 

required the Ministers to communicate their opinions in two days while 

the others stipulated three days for it. Secondly, the Punjab Cabinet has 

36 Ministers and out of them only 19 responded and even they dealt with 

the matter nonchalantly. Only three of the Ministers wrote “approved” 

while signing their names while the others simply put their signatures on 

the Circular and sent it back. It needs to emphasized that the Cabinet 

cannot dispose of matters by circulation in that manner. Rule 27 of the

Punjab Rules of Business expressly requires the Ministers to “record 

opinion” which implies that they must apply their mind and give reasons 

for or against the motion when it is laid before them. In the 

circumstances, in law, there is no approval of the recommendation in the 

summary. Thirdly, the Chief Minister invoked Rule 27(3) prematurely 

when he directed that the “recommendations of the majority of Ministers 

be accepted and communicated as Cabinet decision.” As noted above, 

the Cabinet Wing circulated the summary to the Ministers on 8.7.2021. 

Even if it is assumed that they were to respond in two days, the Chief 

Minister could not proceed on 10.7.2021. Lastly, perusal of the record 

evinces that the Cabinet decision was received in the Home Department 

in terms of Rule 28(15) on 13.7.2021. There is no explanation as to how 

it issued Letter No. SO (Jud-III)7-1/2014(P) on 10.7.2021.

44. The Punjab Rules of Business have been framed under 

Article 139 of the Constitution. Mustafa Impex held that such 

constitutionally mandated rules are twined with the concept of good 

governance and are mandatory. The Punjab Government has committed 

gross violations in the present case which renders the entire exercise 

nugatory.

45. Confronted with the above situation the learned Advocate 

General contended that the Chief Minister is not obligated to bring every 

matter to the Cabinet. Rule 24 enumerates the cases which need to be 

placed before the Cabinet for decision. He argued that ex-post facto

approval of notification dated 24.2.2017 and the orders issued by the 

Deputy Commissioners exercising delegated powers in pursuance 

thereof did not require the Cabinet’s nod. Therefore, if there are any 

irregularities in the issuance of Letter No. SO (Jud-III)7-1/2014(P) dated 

10.7.2021, they can be ignored. This argument is fallacious. Admittedly,

Chief Minister referred the case to the Cabinet under clause (i) of Rule 

24(1) which reads as follows:

24. Cases to be brought before the Cabinet– (1) The following 

cases shall be brought before the Cabinet:

(i) any case desired by the Chief Minister to be referred to the 

Cabinet; and

46. Once the Chief Minister refers a case to the Cabinet, he 

cannot withdraw it at his whim. He should have strong reasons for 

withdrawal which he must put in writing. In the instant case, it is to be 

assumed that he took the matter in issue to the Cabinet after due 

application of mind. A U-turn cannot be permitted at this juncture.

47. Let us now look at the merits of the Impugned Order. Rizvi 

was detained under section 3 of the MPO on 12.4.2021 for 30 days but 

that period was extended twice and he remained in custody for three 

months. On 25.3.2021 the Punjab Government submitted reference 

under section 3(5) of the MPO and Article 10(4) of the Constitution 

before the Provincial Review Board seeking authorization for continuing 

his preventive detention for three more months. It urged eight grounds in 

support of its request. The Board considered them one by one and 

concluded that the reference was based on “apprehensions of the security 

agencies” and there was no material to justify Rizvi’s further detention. 

Accordingly, vide Order dated 2.7.2021, the Board declined the 

Government’s request and directed his release. After this failure, the 

Government invoked section 11-EEE of the ATA to keep Rizvi in 

custody. Legally speaking, a person released from preventive detention 

under a provincial law can be taken into custody again under a federal 

law provided it can be justified. In the instant case, it is observed, the 

Impugned Order is founded on the same grounds which were rejected by 

the Provincial Advisory Board. It could be justified only if new 

circumstances had arisen after its order.

48. As stated above, Rizvi is a proscribed person. Under section 

11-EE(2) of the ATA, the Government may require him to: (a) execute a 

bond with one or more sureties to the satisfaction of the District Police

Officer for his good behaviour and undertaking that he shall neither 

involve in any act of terrorism nor advance the objectives of any 

organization banned or kept under observation; (b) restrict his 

movements to any place or area and/or report to a designated officer at 

certain times or places; (c) refrain him from visiting or going to certain 

public places. The Government may also direct probe into his assets and 

his immediate family and monitor his activities for a period of three 

years. Violation of any direction of the Federal Government or the terms 

of the aforesaid bond is an offence under section 11-EE(4) and 

punishable with either description for a term which may extend to three 

years, or with fine, or with both. The proscription order has syncopated 

Rizvi’s fundamental rights guaranteed under Articles 9 & 15 of the 

Constitution. Preventive detention squeezes him more. It is not called 

for. Even if he is released, the Government would have complete check, 

nay control, over him. The jurisprudence discussed in the earlier part of 

this judgment holds that preventive detention is limited by the principles 

of legality, need and proportionality. 

In the instant case, the balance tilts 

in Rizvi’s favour on all these counts.
49. In view of the foregoing, this petition is accepted. 

The Impugned Order dated 10.7.2021 is declared to be without lawful authority and set aside.

 Hafiz Saad Hussain Rizvi shall be released from 

jail forthwith if not required to be detained in some other case.

(Tariq Saleem Sheikh)

 Judge

Approved for reporting

 Judge