MASAL KHAN vs DISTRICT MAGISTRATE, PESHAWAR and 3 others

' SHAH JEHAN KHAN YOUSUFZAI, J.---Petitioner herein has challenged the vires of the order of detention dated 1-7-1997 passed by District Magistrate, Peshawar (respondent No,1) under section 3(i) of Maintenance of Public Order Ordinance, 1960, whereby Umardaraz alias Darazai, a cousin of the petitioner was arrested and detained in Central Jail, Haripur for a period of one month.

2. The above-stated detention order discloses that District Magistrate, Peshawar being satisfied on the alleged receipts of reports showing the indulgence of the detenu in activities prejudicial to public peace and to disturb the law and order situation in Peshawar District passed the same under the authority under section 3, M.P.O. Read with Notification No,3/10/4-H-Sp1.1/64, dated 27-2- 1965. The grounds for detention served upon the detenu as required under section 13(b), M.P.O.

Reveals as follows:-- "You are a habitual offender, gambler, and desperate, also indulge in drug trafficking and other anti-social and prejudicial activities against law and order."

3. The learned counsel for petitioner contended that the detenu has been detained on the vague grounds of habitual offender, gambler, desperate person, indulging in drug trafficking and other criminal activities. The grounds alleged against were denied and submitted that detenu was arrested in a case registered on 23-6-1997 vide F.I.R. 234 for a charge punishable under section 365-A, P.P.C., but has been released on bail. He was also arrested in another untraced case of committing Harabbah, but also released on bail. After getting release order from Court, he was not allowed to come out from jail and was served with impugned detention order. The learned counsel termed the impugned order unconstitutional, illegal, mala fide and wrong exercise of powers vested in Chief Executive of the District. In support of his contentions he relied upon Mrs. Arshad Ali Khan v. Government of Sindh 1994 SCMR 1532 wherein the expression "public order" has been explained to the effect that before. An act to be held prejudicial to public order, it must be shown that the act Or activity is likely to affect the public-at-large. An act which concerns only to an individual and does not amount to an activity prejudicial to public peace and tranquility cannot fall within the ambit of section 3 of the Public Order Ordinance, 1960. Further held that whew police had already registered a case against the detenu under the P.P.C., clearly show that the detenu was accused of substantive offences and his preventive detention on the same allegations could not be justified in law. To further substantiate his contentions he referred to a reported judgment Abdul Hamid Khan v. District Magistrate, Larkana PLD 1973 Kar. 344 wherein it was held that preventive detention could not he used for punishing a person for his past actions. He also referred to a reported judgment of this Court Muhammad lqbal and 3 others v. D.C./D.M., Mansehra PLD 1992 Pesh. 107 and argued that on the basis of allegations for which an accused has faced the trial or is an undertrial could not be detained as preventive measures.

4. The learned Additional Advocate-General appearing on behalf of respondents along with S.H.O.

Of the concerned police station, who was ordered on the previous date to personally appear and to explain the matter, placed before the Court a summarised chart of convictions of the petitioner right from 1980 to 1994, and maintained that on the basis of past history of the detenu on the report of local police the preventive detention order was issued against him. While supporting the impugned order he submitted that the detenu has also been supplied with grounds of detention wherein he has been informed that he may prefer a representation to the Government of N.-W.F.P.

It was further argued that writ petition under Article 199 of the Constitution is not maintainable, as an adequate remedy by way of representation to Provincial Government is provided under the Ordinance.

5. After hearing the learned counsel at the bar and giving our anxious consideration to the respective contentions of the learned counsel we are of the firm opinion that writ petition against the impugned detention order is maintainable, firstly because the freedom and liberty of the detenu is involved which is a Constitutional guaranteed right of the citizen. Secondly, this Court has got the supervisory jurisdiction over judicial, quasi-judicial and executive functionaries of the Provincial and Federal Governments under Article 199 of the Constitution. This Court in reviewing an order of detention is entitled to be satisfied that the detaining authority was in fact satisfied that the order of detention was in fact necessary for public peace and it was not a mere pretend for ulterior motive. The Court can also look into the matter that whether the material placed before authority were sufficient for taking away the Constitutional guaranteed right of a citizen. If the Court comes to the conclusion that the order of detention was zither mala fide or without any substance, it shall set aside the detention order and seer free the detenu. The right of making representation to the detenu has been provided under clause (6-a) of section 3 of the Maintenance of Public Order Ordinance, 1960 which reads as follows:-- "3 (6-a). Where a representation is made to the Government under subsection (6) Government may, on consideration of the representation and giving the person detained an opportunity of being heard, modify, confirm, or rescind the order."

' A Division Bench of the Karachi High Court has discussed the aforesaid provision of law in the case of Abdul Hamid Khan v. The District Magistrate, Larkana PLD 1973 Kar. 344 in these words:-- "It is true that the provision authorise the detenue to make a representation to Government and also require the Government to afford him the earliest opportunity of doing so. I can read in subsection (6-a), however, no duty on the Government to consider the representation and to give the person detained an opportunity of being heard before deciding to modify, confirm or rescind the order. The subsection certainly authorises the Government to do so but does not require it to do so. Now, Article 201 of the Constitution confers power on the High Court to pass certain orders if it is satisfied that no other adequate remedy is provided by law. I think if we are to accept the argument of the learned Additional Advocate-General we would have failed to give full effect to the word 'adequate'. No doubt the provision quoted provides a remedy but certainly in the absence of any requirement that the Government shall consider the representation cannot consider this to be an 'adequate' remedy in matters which concern the liberty of a subject."

' After holding the instant writ petition maintainable, the next question for consideration is that whether the impugned order of detention was passed in accordance with law? The West Pakistan Maintenance of Public Order Ordinance, 1960 was promulgated for the object enshrined in its preamble which says:-- "Whereas it is expedient to amend and consolidate the law providing for preventive detention and control of persons and publications for reasons connected with public safety, public interest and the maintenance of public order in the Province of West Pakistan."

' The Government has been granted powers of preventive detention under section 3(i) of the Ordinance, where under after being satisfied with a view to prevent any citizen from acting in any manner prejudicial to public safety or maintenance of public order, it is felt necessary to detain a person shall pass such an order for a specified period subject to further extension by the Board constituted under the Ordinance. The Ordinance itself has not defined the word 'public order'. Thus, it has to be construed in the ordinary context as being synonymous with public peace, safety and tranquility. Their Lordships of the Supreme Court in the case of Mrs. Arshad Ali Khan v. Government of Punjab 1994 SCMR 1532 observed as follows:-- "The word 'public order' is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strike and war. Equally it is distinguishable from the popular concept of law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State."

' It w a further observed in the judgment as under:-- "before an act is held to be prejudicial to public order, it must be shown that the act or activity is likely to affect the public-at-large. As a corollary, therefore, it follows that an act which concerns only to an individual and does not amount to an activity prejudicial to the public peace and tranquility cannot fall within the ambit of section 3 of the Ordinance."

In the instant case the impugned detention order had been based on the registration of pity criminal cases under local and special law or other minor offences wherein the detenue was awarded fine of a meagre amount with sentence till rising of the Court. The learned Additional Advocate-General failed to show any case of public nuisance or public tranquility or his conviction for any offence establishing him as desperate or dangerous criminal. Even the summarised chart of punishment of the detenu produced before us shows that no case of such a nature for which he was awarded punishment from 1980 to 1994, has either been registered against him or he has been awarded punishment. Prima facie the detenu seems to have abandoned his previous criminal activity in which he has been shown involved in between 1980 and 1994. The allegation on which a person has faced the trial and was either granted acquittal or conviction never form basis for preventive detention, as held in the case of Muhammad Iqbal and 3 others v. D.C./D.M., Mansehra and 3 others PLD 1992 Pesh.

107. Yet in another case titled Muhammad Younas v. Province of Sindh, reported in PLD 1973 Kar.

694, it was observed in the following words:-- "Where definite charges are brought against the detenu for substantive offences and the detenu is undergoing prosecution, therefore, the administration has made up their mind and their choice, that is, that the detenu should be prosecuted for these offences, and, having made this choice, it would ordinarily not be open to the administration to also use such charges as ground of preventive detention under the West Pakistan Maintenance of Public Order Ordinance, 1960. Mr. Jamaluddin Ahmed was unable to show any cogent reason that the present detenu should not only undergo prosecution for a substantive offence, but should also be preventively 'detained for the same offence. In my view, to base the order of detention on a charge for which the detenus are facing regular trial in a Criminal Court is unreasonable exercise of the power to order preventive detention."

6. It is argued before us that recently the detenu was arrested in a case punishable under section 365-A of the P.P.C. But released on bail by a competent Court of law. He was also shown under arrest in another case punishable under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Even in that case he was allowed bail by Court of law. On getting bail order in the aforesaid cases he was not allowed to come out of the jail, was served with the impugned order inside the jail. All these facts H constitute mala fide on the part of local police and District Administration.

7. In view of the facts stated above, we are clear in our minds that the impugned order of detention bearing No,1240-44 dated 1-7-1997 issued by respondent No,1 is based on mala fide and not in accordance with law. We, therefore, while accepting this petition set aside the aforesaid impugned order and release the detenu Umar Daraz Khan alias Darazai forthwith, if not required to be detained in any other case.

' These are the reasons for short order announced on 16-7-1997.