AMEER HUSSAIN vs GOVERNMENT OF PUNJAB art — 2022 PLD 61 LAHORE-HIGH-COURT-LAHORE

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AMEER HUSSAIN VS GOVERNMENT OF PUNJAB art. 199---Constitutional jurisdiction of High Court---alternate remedy/exhaustion of statutory remedies before invoking Constitutional jurisdiction of High Court---Cases of habeas corpus---Scope---While doctrine of "exhaustion of statutory remedies" was recognized in Constitutional law, however, courts were generally to distinguish between cases seeking enforcement of Fundamental Rights and those in which no such issue was involved---Constitutional petitions which were in nature of habeas corpus were not part of judicial review procedure, although grounds of issuing such writ were probably the same as of judicial review, and habeas corpus was not a writ "of right", not a writ "of course" and neither was a discretionary writ---Court was bound to issue writ of habeas corpus if on return, no cause or sufficient cause appeared and could not refuse it on ground of existence of alternate remedies---Where impugned order for detention was without jurisdiction, coram non judice, and mala fide, then same fell within exceptions to the concept of exhaustion of statutory remedies. Ss. 11-EEE, 2(i) & 33---Punjab Government Rules of Business 2011, Rr. 25, 26, 27 & 28---Punjab Maintenance of Public Order Ordinance (XXXI of 1960) S. 3---Constitution of Pakistan, Arts. 10 & 199---Constitutional jurisdiction of High Court---Power to arrest and detain suspected person---Preventive detention under Anti-terrorism Act, 1997---Power of Provincial Government to order such preventive detention---Violation/non-conformation to Punjab Government Rules of Business 2011 in procedure issuing notification for such preventive detention---Approval of Provincial Cabinet---Scope---Petitioner impugned order issued by Provincial Government whereby his detention under S. 11-EEE Anti-terrorism Act, 1997 was ordered, and sought immediate release---Validity----Keeping in view definition of "government" in S.2(i) of Anti-terrorism Act, 1997, there was nothing in S.11-EEE of said Act to restrict power to order preventive detention to just Federal Government and same could be legitimately exercised by Provincial Government in its own right without any delegation from Federal Government under S.33 of said Act---In the present case, Deputy Commissioner had issued impugned order purportedly in exercise of powers conferred on him by Home Department of Provincial Government vide a letter that was issued, and it was to be determined whether such conferment was valid---Provincial Government delegated its powers to the concerned Deputy Commissioner vide a notification which per Punjab Government Rules of Business 2011 needed to have Provincial Cabinet approval---Perusal of documents revealed that said Punjab Government Rules of Business 2011 had not been followed in the present case---Said matter was disposed of by Provincial Cabinet non-chalantly and no reasons as mandated by R. 27 Punjab Government Rules of Business 2011 were recorded by Cabinet Ministers in the approval for the summary, while date of said notification was prior to date of the Cabinet Decision communicated wide R. 28(15) of said Rules---Constitutionally mandated rules of business were twined with concept of good governance and were mandatory and Provincial Government had committed gross violations of said Rules in the present case which rendered the entire exercise nugatory---Petitioner was earlier detained under S.3 of Punjab Maintenance of Public Order Ordinance, 1960 and his release was directed by the Provincial Review Board and only upon failure of to keep him detained under said Ordinance, the Provincial Government detained him under S.11-EEE of Anti-terrorism Act, 1997, and legally speaking person released from preventive detention under a Provincial law could not be taken into custody under a Federal law provided that it could be justified---Impugned order was founded on same grounds which were rejected by Provincial Review Board formed under Punjab Maintenance of Public Order Ordinance, 1960---High Court observed that preventive detention was limited by principles of legality, need and proportionality and in present case, such balance tilted in favour of petitioner---Impugned order was set aside, and petitioner was ordered to be released---Constitutional petition was allowed, accordingly art. 10---Safeguards as to arrest and detention---Preventive detention/administrative detention, concept of---"arbitrary arrest/ detention"---Deprivation of liberty---Circumstances in which preventative detention was permissible---Concepts, comparative jurisprudence, and scope of international conventions, discussed.

AMEER HUSSAIN vs GOVERNMENT OF PUNJAB art — 2022 PLD 61 LAHORE-HIGH-COURT-LAHORE

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