MUHAMMAD IQBAL Versus DISTRICT MAGISTRATE, MIANWALI

Through this Constitutional petition, the petitioner has challenged the order of the District Magistrate, Mianwali, dated 19-5-1994, whereby the learned District Magistrate, in exercise of his powers delegated to him vide Home Department's Notification No.3-1-4-H/Sp1.74, dated 28-1-1994, directed that the petitioner shall be detained in Central Jail, Mianwali, for a period of three months from the date of service of the aforesaid order, under section 3(1) of the West Pakistan Maintenance of Public Order- Ordinance, XXXI of 1960 (hereinafter referred to as the "Ordinance"), on the following grounds:--

(1) He is notorious narcotics dealer and gun-runner of the area.

(2) He is spoiling the young generation by. making them addict of narcotics.

(3) He is desperate and dangerous type of criminal and peace-loving people are fedup with his anti-social activities.

In addition, it is alleged that the petitioner has been convicted/fined in two cases and is also facing trial in another case.

2. Learned counsel appearing for the petitioner vehemently contended that the impugned order was not passed by the detaining authority as contemplated by law. Ia fact, the S.P. Mianwali, has written a letter, dated 18-5-1994, to the District Magistrate, Mianwali, stating therein that the petitioner is a narcotics dealer, he is spoiling the young generation, he was convicted in two cases and acquitted in two cases and that in one case he is facing trial, hence he is acting in a manner prejudicial to public safety and maintenance of public order and recommendation for his preventive detention. On that letter, a report was made by the Reader of the detaining authority, which reads:--

The report was submitted to the District Magistrate, who passed the following order:--

Learned counsel contended that the District Magistrate has passed the detention order after having mechanically accepted the recommendation of the police, without application -of his own independent mind; hence the impugned order is coram non judice and nullity in the eye of law. He further contended that the grounds which prevailed with the detaining authority in passing the impugned order are not legally valid and on this score alone, the impugned order is not sustainable in the eye of law and placed reliance on P L D 1973 Kar. 78, 1980 P Cr. L J 1534 and 1987 P Cr. L J 2280.

3. In reply, the learned Law Officer appearing for the detaining authority took a preliminary objection that the petition is not maintainable in the eye of law, as the petitioner has not filed representation under section 3(6) of the Ordinance to the Provincial Government, which has the power to rescind or modify the order passed by the District Magistrate, because remedy under section 3(6) of the Ordinance is adequate and efficacious and bars the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, and has placed reliance on P L D 1992 Lah. 140.

The learned Law Officer further contended that criminal charges are valid grounds for detaining a person under the Ordinance and has placed reliance on 1992 P Cr. L J 2336.

4. I have heard the learned counsel for the parties at length and have examined their respective submissions.

The combined effect of Article 4 of the Constitution and section 3 of the Ordinance is that the detaining authority must examine the material placed before him objectively and the order must satisfy the requirements as laid down by their Lordships in P L D 1969 SC 210. The grounds, which prevailed with the detaining authority while passing the impugned order, are not legal and valid grounds. In view of the observations made by the Division Bench of the Karachi High Court in P L D 1973 Kar. 78 at page 104: "Having made the choice that a person should be prosecuted in Court for commission of an offence, it would ordinarily not be open to the authorities to also use this charge as a ground of preventive detention under the Ordinance", which were later on followed by a learned Single Judge of this Court in 1990 P Cr. L J 1534, the objection of the learned Law Officer is untenable as the impugned order was passed on extraneous considerations; hence it was coram non judice and nullity in the eye of law and, therefore, there was no need for the petitioner to file a representation before the Government as contemplated under section 3(6) of the Ordinance, because representation could only be made when the order is passed within the four corners of the provisions of I section 3 of the Ordinance; hence there was no adequate or efficacious remedy available to the petitioner which could debar him from invoking the Constitutional jurisdiction of this Court. Respectfully following the case-law cited by the learned counsel for the petitioner, I find that the grounds, which prevailed with the detaining authority, are not legal and valid grounds, as contemplated under section 3 of the ordinance. Hence the writ petition is allowed and the impugned order of petitioner's detention is declared to be without lawful authority and of no legal effect and it is directed that the petitioner be set at liberty forthwith, unless he is wanted in some other criminal case.

As complicated questions of law and facts are involved in this petition, therefore, the parties are left to bear their own costs.

N.H.Q./M-1720/L Petition allowed.