MIAN KHAN vs DEPUTY COMMISSIONER, HARIPUR and others

' QALANDAR ALI KHAN, J.--Petitioner, Mian Khan, feeling aggrieved of order of the Deputy Commissioner, Haripur, (respondent No.2) dated 21.09.2015, invoked the Constitutional jurisdiction of this Court for a declaration to the effect that his detention order under Section 3 of the West Pakistan Maintenance of Public Ordinance, (MPO), 1960, was illegal, unlawful, without lawful authority, without jurisdiction, arbitrary and perverse.

2. In the writ petition, the petitioner assailed the impugned order, mainly, on the ground that he was never involved in any anti social activities which were prejudicial to public safety and maintenance of public order and that the impugned order was made to show efficiency in the context of prevailing law and order situation.

3. The impugned order simply lays down that the petitioner was indulging in activities which were prejudicial to public safety and maintenance of public order in Haripur District. The Deputy Commissioner formed this opinion on the basis of report submitted to him by the local police.

4. The learned Additional Advocate General, present in the Court in connection with other cases, accepted notice and furnished report of the District Police Officer, (DPO) Haripur, to the Deputy Commissioner, Haripur, dated 18.09.2015, whereby the latter was informed that the petitioner was a narcotic dealer and selling drugs to youth in Haripur District. The report contained a list of seven cases against the petitioner right from 1996 up to 2012, including five cases relating to narcotics, one under Section 302, P.P.C. And the other under Section 13 AO.

5. Arguments of learned counsel for the petitioner and learned Additional Advocate General heard, and record perused.

6. The record would make it clear that the authority i.e. Deputy Commissioner, Haripur, blindly and thoughtlessly followed the report/memo of the DPO, without application of mind whether the case of the petitioner was covered under Section 3 MPO and fulfilled the prerequisites laid down therein.

Needless to say that it has consistently been held umpteen times by the Courts that powers under Section 3 MPO could not be invoked for detention of persons on the grounds other than provided for by the law. As such, preventive detention of a person who is either accused of an offence or convicted for a crime would not only amount to double jeopardy but would also militate against the spirit of the relevant law, prescribing procedure and penalties for commission of offences, as resort to preventive measures is useful only before commission of the offence and not after the offence has been committed, where-after case is registered and legal process for prosecution of the perpetrator is initiated.

7. Consequently, there appears no justification in law for the impugned order under Section 3 MPO; which is, therefore, declared illegal, unlawful, without lawful authority, arbitrary, perverse and of no legal effect. Resultantly, on the acceptance of the instant writ petition, the impugned order dated 21.09.2015 is set aside; and the petitioner be released from Jail, if not required in any other case.