HAQ DAD KHAN vs DISTRICT MAGISTRATE, MIANWALI

' Through this Constitutional petition,, the petitioner has assailed 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 Notification No,3-1-4-H/Sp1.74, dated 28-1-1976, 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 West Pakistan Maintenance of Public Order Ordinance XXXI of 1960. (hereinafter referred to as the Ordinance), on the following grounds:- - "(1) He is notorious bad character and narcotics dealer of the area.

(2) He is a record holder and has been challenged in six cases of criminal nature.

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

2. Learned counsel appearing for the petitioner vehemently contended that the impugned order was not passed by the detaining authority as contemplated by law. In fact, the S.P., Mianwali, has written a letter, dated 18-5-1994, to the District Magistrate, Mianwali, mentioning six criminal cases under various F.I.Rs, in which the petitioner is involved and thereby requested the detaining authority to pass the impugned order. On that letter, a report was made by the Reader of the detaining authority, which reads:-- {{URDU TEXT}} ' The report was submitted to the District Magistrate, who passed the following order: {{URDU TEXT}} ' 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 in PLD 1973 Kar. 78, 1980 PCr.LJ 1534 and 1987 PCr.LJ 2280.

3. In reply, the learned Law Officer appearing for the detaining authority took up 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) (ibid) 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 PLD 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 PCr.LJ 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 PLD 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 PLD 1973 Kar. 78 at page 104: Having gaving 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 Judge of this Court in 1990 PCr.LJ 1534, the objection of the 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; hence 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 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.

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