ASAD KHAN vs DEPUTY COMMISSIONER MANSEHRA and others

QALANDAR ALI KHAN, .J.---The petitioner in the instant writ petition, Asad Khan, and petitioner in W.P No,836-A/2015, Abdul Latif, and also petitioner in W.P No,842-A/2015, Muhammad Jamil, have been arrested and incarcerated in Bannu Jail by the Deputy Commissioner Mansehra, (respondent No,1) under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (MPO), on the basis of information laid before him by the local police regarding involvement of the petitioners in a number of criminal cases under Control of Narcotic Substances Act/Prohibition Order, thus posing threat to public safety and maintenance of peaceful atmosphere in the District.

Since identical issues have been raised for adjudication in all the three writ petitions, this single consolidated judgment will also dispose of the other two connected W.P No,838-A/2015 and W.P No,842-A/2015.

2. The petitioners have assailed impugned orders under Section 3 MPO against them, inter alia, on the grounds that their involvement in criminal cases could not be a valid ground for issuance of order under section 3, MPO, as they were to face trial for the criminal charges leveled against them by the local police, which might result either in conviction or acquittal, but the preventive detention on the basis of registration of the cases amounted to double condemnation for the same act, not warranted by law and the Constitution.

3. In response to notice, the learned Additional Advocate General submitted documents comprising the impugned order, report of SHO Police Station City Mansehra dated 21.08.2015, forwarded by the DSP Head Quarter, and bearing words 'issue orders' on the same date i.e, 21.08.2015, and also copies of three FIRs against the petitioner. Although, no such documents have been placed on record of the connected two writ petitions, the learned Additional Advocate General nevertheless urged the same grounds/reasons for orders under section 3, MPO against both the petitioners in the connected writ petitions.

4. Arguments of Mr. Shad Muhammad Khan, learned counsel for the petitioners and Mr. Muhammad Naeem Abbasi, learned Additional Advocate General for the respondents heard, and record perused.

5. It is abundantly clear from the record that the orders under sections 3, MPO have been mechanically issued by the Deputy Commissioner Mansehra (respondent No.1), without application of mind to the information laid before him by the local police, as would glaringly A appear from the words 'Issue orders', hence a total negation of duty enjoined upon the District Magistrate to first satisfy himself that the order would serve the purpose of preventing the petitioners from 'acting in any manner prejudicial to public safety or the maintenance of public order', notwithstanding the fact that preventive detention could be ordered only in cases mentioned in explanations to section 3, MPO. (1997 M LD 1236 (Peshawar)).

6. In short, neither the impugned order of respondent No,1 nor the documents placed on record by the learned Additional Advocate General could furnish justification or cogent reasons for preventive detention of the petitioners. Their preventive detention on the ground of their involvement in criminal cases would certainly amount to double condemnation, as they ought to also face trial under criminal charges, which may culminate either in their conviction or acquittal.

Even otherwise, preventive detention, in a mechanical fashion, only on the basis of report of the local police, which had earlier registered criminal cases against' the detenu, that too, without application of mind to the information laid before the District Magistrate, clearly runs counter to the letter and spirit of the law i.e, West Pakistan Maintenance of Public Order Ordinance, 1960, (MPO)

7. Consequently, the impugned orders dated 21.08.2015, 18.08.2015 and 27.08.2015, respectively, are not sustainable in law, and hereby set aside, with the result that the impugned orders under section 3, MPO are declared illegal; and the petitioners are directed to be released forthwith, if not required in any other case.