NAZAKAT vs DEPUTY COMMISSIONER
This constitutional petition challenged a detention order issued by the Deputy Commissioner, Mansehra, under Section 3 of the Maintenance of Public Order Ordinance, 1960, which had resulted in the petitioner's detention for thirty days on allegations of timber smuggling. The core legal question was whether the preventive detention of an individual for alleged criminal activities, specifically timber smuggling, is legally sustainable when specific penal laws exist to address such offenses. The Peshawar High Court held that the detention order was illegal and without jurisdiction. The Court reasoned that the administration had resorted to a 'quick fix' arrangement by invoking the Maintenance of Public Order Ordinance, 1960, in a mechanical manner, despite the availability of specific forest laws to prosecute the petitioner. The Court emphasized that preventive detention powers under the Ordinance are not intended to be used as a substitute for regular criminal prosecution for specific offenses. Consequently, the impugned detention order was set aside, and the petitioner was ordered to be released forthwith, provided he was not required in any other case.
- Can the Maintenance of Public Order Ordinance, 1960 be invoked to detain a person for criminal activities for which specific penal laws already exist?
- Does the mechanical invocation of preventive detention powers without proper justification render a detention order illegal?
- Is a detention order issued under Section 3 of the Maintenance of Public Order Ordinance, 1960, sustainable when the underlying conduct is a specific offense under forest laws?
- Article 199, Constitution of Islamic Republic of Pakistan, 1973
- Section 3, Maintenance of Public Order Ordinance, 1960
- Section 3(1), Maintenance of Public Order Ordinance, 1960
- Hoarding and Black Market Act, 1948
- Sea Customs Act, 1978
- Land Customs Act, 1924
ORDER
HAIDER ALI KHAN, J.---Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has prayed as under: "It is, therefore, humbly proyed and requested that an acceptance of writ petition, the impugned warrant of arrest of the petitioner under section 3, M.P.O. may graciously be declared without lawful authority and the petitioner may be set at liberty."
2. According to the detention order, the petitioner has been detained in Central Jail Haripur for a period of thirty days as he has indulged in chronic timber smuggling and is, thus disturbing the peaceful atmosphere and greenery of the beautiful valley of the District.
3. Yesterday, we issued notice to the learned Additional Advocate General with direction to procure relevant record from the respondent. who produced an Office Order bearing No. 4045/GE dated 25.02.2016, issued by the Divisional Forest Officer, Agror Tanawal, Forest Division Oghi and addressed to the Deputy Commissioner Mansehra for taking action against the timber mafia and requested therein for issuance of warrants against habitual forest offenders under section 3 (1) of Maintenance of Public Order Ordinance, 1960.
Arguments heard and the available record perused.
4. Before adverting to the record pertaining to the instant matter, it would be beneficial to refer to the provision of section 3 of the Maintenance of Public Order Ordinance, 1960 which are as under:-
3. Power to arrest and detain suspect persons.---(1) Government if satisfied that with a view to proventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do may by an order in writing direct the arrest and detention in 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, subject to the other provisions of this section, extend from time to time the period of such detention for a period not exceeding six months at a time.
Explanation 1. For the purpose of this section
(i) dealing in the black-market or hoarding as defined in the Hoarding and Black Market Act, 1948, or
(ii) an act of smuggling punishable under the Sea Customs Act, 1978, or the Land Customs Act, 1924 or under any other law for the time being in force,
(iii) ......................................
Explanation 11..........................
(2) If a District Magistrate or any other servant of Government authority in this behalf by a general or special order of Government, has reason to believe that any person with his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for order."
5. The allegations against the petitioner which prompted the order of detention under section 3 M.P.O. is his involvement in chrome timber smuggling for which, as per detailed provided by the learned Additional Advocate General, many complaints bearing Nos. 332-2011/1242-2011/ 12344-2011 / 12347-2011 / 450-2011 / 12529-2011/ 1282-2012/ 1395-2013-14 and 156-2013-14 have been lodged against him. We wonder as to why the police or for that matter the local administration has deemed it appropriate to resort to quick fix arrangement to detain the petitioner under M.P.O. on the ground of being involved in chrome timber smuggling when a proper law for forest offenders is very much available with them and he could have been safety charged under the relevant provisions and on conviction, could have stayed behind the bars for a longer term rather than being detained for a period of one month only. We understand that merely invoking the provisions of section 3, M.P.O. by the local administration does not fetch the desired results. It has been held by this court earlier while disposing of alike writ petitions that jails are not reformatories, where a person would be reformed and transformed within a short period of 30 days and would thereafter be deterred from engaging in such like anti-state activities. It appears that the authorities have not fully comprehended the true meaning of the Maintenance of Public Ordinance, 1960 or else they would not have resorted to its use every now and then in a rather mechanical manner.
For the foregoing reasons, this petition is admitted and allowed. The impugned order of the Deputy Commissioner, Mansehra is declared to be illegal and without jurisdiction and thus set aside. The petitioner be released from Jail forthwith if not required in any other case.