JALAL alias JALA vs DISTRICT MAGISTRATE, KASUR and 2 others

' On the call of this Court, the learned Assistant Advocate-General appeared before the Court and was directed to obtain necessary instructions from the District Magistrate, Kasur, in respect of the detention of the petitioner.

2. Learned counsel for the petitioner and the learned Assistant Advocate-General (Syed Iftikhar Hussain) appeared before this Court on 9-7-1989. The learned Assistant Advocate-General was directed to file parawise comments.

3. The case came up for hearing on 10-7-1989. It was heard at length. Both the learned counsel submitted elaborate arguments. Therefore, the case was treated as having been admitted and completely argued before me. I, therefore, proceed to dispose of this case as an admitted case.

4. The petitioner Jalal alias Jala calls in question the order of the District Magistrate, Kasur, dated 15-5-1989 whereby the detenu was detained under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, for a period of two months commencing from the date of the order. It is needless to give the complete narration of the facts except the order of the detention which is reproduced as below:-- "Whereas I am satisfied on the basis of record placed before me and enquiry conducted through secret means that Jalal alias Jala son of Iqbal alias Bala caste Deendaar resident of Ashraf Khokhar Police Station Chunian Tehsil Chunian District Kasur is involved in 18 cases (details given in the grounds of detention attached with the order) and indulging presently in activities prejudicial to the maintenance of public order and saftey. He is on incorrigible criminal and is acting. In a manner prejudicial to the public safety and maintenance of public order and I am satisfied that with. a view to preventing him from acting in such manner, it is necessary to arrest and detain the said Jalal alias Jala son of Iqbal alias Bala caste Deendaar.

' Now, therefore, in exercise of the powers under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 conferred on me, I, Iqbal Ahmad Bosan District Magistrate, Kasur do hereby direct that the said Jalal alias Jala son of Iqbal alias Bala caste Deendaar shall be arrested forthwith by police and be detained in District Jail, Kasur for a period of two months. He shall be treated as Class III detenu.

' A copy of this order alongwith memo. Of grounds for detention enclosed herewith shall be delivered to the said detenu while serving the order on him.

' Given under my hand and the seal of the Court this 15th day of May, 1989."

5. Learned counsel for the petitioner in support of this petition raised the following points:--

(i) It was contended that the petitioner cannot be detained in respect of his past conduct. It was contended that F.I.Rs, Nos. 171 and 154 relate to the occurrence of 1976 while F.I.Rs, Nos. 45, 58 and 89 pertain to the year 1977. F.I.R. No, 25 relates to the ye ar 1986 while F.I.Rs, Nos. 102, 103 and 117 relate to the year 1989. It was represented that the petitioner faced the trial in the aforementioned F.I.Rs, relating to the years 1976, 1977 and 1986 and was acquitted by the Court of competent jurisdiction while the cases relating to the year 1989 have not yet been challaned. Therefore, the learned District Magistrate had practically no material whatsoever for proceedings under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960.

(ii) It was next contended that the material shown in the communication of grounds of detention did not furnish any nexus between his past conduct and the conduct in respect of which precautionary detention was ordered. Reliance was placed on Ghulam Ahmad v. Government of Sindh and another PLD 1988 Kar. 237, Muhammad Ashraf v. Provincial Government of Punjab etc. PLD 1978 Lah. 214 and Rafique Ahmad Sheikh v. The State and others PLD 1963 Lah.

337.

6. The learned AA.-G. Vehemently opposed the petition and completely supported the impugned order. However, he did not dispute that the petitioner was acquitted in all the cases mentioned above except those cases which have been registered in the year 1989. He also did not dispute that the cases relating to the year 1989 have been challaned before the Courts of competent jurisdiction.

7. The detention order under section 3 of the Ordinance is precautionary and it is intended to control the future acts of a detenu who by his prejudicial activities endangers public order and safety. There can be no cavil with the proposition that this legislation is an encroachment on the liberty of the citizen and is, therefore, to be construed very strictly and in favour of subjects. This proposition came into consideration in the following cases:--

8. In Ghulam Ahmad v. Government of Sindh and another PLD 1988 Kar. 237 it was observed:-- "Preventive detention is different from punitive detention and from that point of view stands at lower level and cl its importance and significance is to detain a person as a precautionary measure to prevent him from acting in a -manner prejudicial to public safety or the maintenance of public order as is specifically provided in section 3 of the said Ordinance. Article 10 of the Constitution of Islamic Republic of Pakistan provides safeguards as to arrest and detention. First basic principle contained therein is that no person shall be arrested and detained in custody, without being informed, as soon as may be, of the grounds of such arrest. Clause (2) of this Article covers the case of a person who is arrested for a substantive offence and the requirement is specified that he has to be produced before a Magistrate within twenty-four hours for obtaining a remand. Clause (4) of this Article relates to cases of preventive detention and clause (5) contemplates that grounds of detention shall be communicated within fifteen days from such detention."

9. In Muhammad Ashraf v. Provincial Government of Punjab and 3 others PLD 1978 Lah. 214, section 3 of the said Ordinance came into consideration and it was held that the law of preventive detention cannot be used for the purpose of punishing a person for his past acts.

10. In Rafique Ahmad Sheikh v. The State and others PLD 1963 Lah. 337 while examining the provisions of rhe said Ordinance, it was observed that:- "The Ordinance, however, essential for public safety or for the maintenance of public order, is a law which makes a serious inroad into the liberty of the citizen and must, therefore, be construed strictly. By its third section, it provides the Government with the power to deprive any citizen of his liberty at any time, 'if it is satisfied' that it is necessary in the interest of public safety or public order to do so. The Judge of the necessity being the Government itself, and the right to be confiscated as a result of that judgment being that cherished possession of all free individuals---the right to personal liberty --- this is a very wide power indeed, should the Legislature be presumed to have given this very wide power to the executive without any check, at least to ensure that it is not exercised without due care, caution and attention?"

11. It is clear from the record that there is no material whatsoever to establish nexus between the activities of the detenu and the precautionary order of detention. The cases relating to the years up to 1986 could not be construed as a sufficient ground for taking a preventive action. As far as the cases relating to the year 1989 are concerned, these cases have been challaned before the Courts of competent jurisdiction. It is not comprehensible as to how the learned Magistrate has arrived at a conclusion in respect of the necessity of detention.

13. For whatever has been stated above, I am of the view that the District Magistrate has not passed the order in accordance with law and has not satisfied himself as to and in what manners the activities of the detenu are prejudicial to the maintenance of public order. I, therefore, accept this petition. The order of the District Magistrate dated 15th of May, 1989 is declared to have been passed without any lawful authority. The detenu shall be released forthwith if he is not required in any other case.