' RANA ZAHID MEHMOOD, J.--- By this single judgment two constitutional petitions titled above are being disposed of together involving common question of law and facts, whereby the petitioners who are two real brothers, residents of Al-Faisal Town, Lahore have impugned detention order dated 23-12-2008 passed by D.C.O., District Government, Lahore, whereby the petitioners through separate orders of even date have been ordered to be arrested and detained for a period of thirty days under section 3(1) of Punjab Maintenance of Public Order Ordinance, 1960 on the ground that each of the petitioner is a desperate and dangerous person and his being at large would render security hazard to the community, danger to human life, health and safety and that each of the petitioner will resort to harassm ent and commission of illegal acts and heinous offences, thus pose grave threat to public safety.
2. Learned counsel for the petitioners has submitted that Ghulam Murtaza has already been taken into custody since 11-1-2009, while police was after Asif Iqbal when he along with his brother Ghulam Murtaza petitioner then approached this Court for indulgence on the ground that the impugned orders passed by the D.C.O., Lahore are illegal, mala fide and there were no grounds available with the respondent No,2 to take action against the petitioners under section 3(1) of Punjab Maintenance of Public Order Ordinance, 1960. Learned counsel submitted that the respondent No,2 vide para. No,3 of the impugned orders in each case has mentioned that upon the basis of evidence/material placed before him, he was convinced that presence of the petitioners would pose grave threat to the public safety and was likely to cause breaches of public peace and order. Learned counsel submitted that there is no material or any evidence available with the respondent No,2 on the basis of which impugned orders could be passed against the petitioners.
Learned counsel submitted that in fact civil litigation is going on between the petitioners and one senior police officer and the instant action against the petitioners has been taken at the instance of said senior police officer by the respondent No,2 with mala fide intention. Learned counsel submitted that the material brought before the Court today by the officials of the Home Department and from the office of DCO may be examined for the purposes of satisfaction of judicial conscience of this Court that action taken against the petitioners unwarranted in law, as such being illegal is liable to be set aside in the exercise of constitutional jurisdiction of this Court.
3. Learned Additional Advocate-General, Punjab has submitted that Iqbal Hussain, an Assistant of the Home Department, Government of the Punjab, Lahore is present apart from Abdul Rauf Qureshi, reader to the D.C.O., Lahore and they have brought the relevant record which was made basis by respondent No,2 for passing the impugned orders against the petitioners. The learned Law Officer submitted that there are six criminal cases registered against Ghulam Murtaza petitioner, out of which one case is under section 302, P.P.C, while two cases are under section 13 of Arms Ordinance and there is another case vide F.I.R. No,617 dated 20-5-2008 under section 337H(ii)/429, P.P.0 apart from case F.I.R. No,1172 of 2006 under sections 506, 448, 452, 148, P.P.0 dated 30-10-2006 and all said cases stand registered with Police Station North Cantt. Lahore. He submitted that apart from said criminal cases, there is report of District Security Branch that the petitioners are gangsters and desperate persons who belong to "Kabza Group" and take illegal possession of the properties of poor persons and blackmail them. He submitted that case under section 302, P.P.0 stands registered against Ghulam Murtaza vide F.I.R. No,601 of 2002 with Police Station North Cantt. Lahore.
4. As regards Asif Iqbal petitioner, he submitted that two criminal cases stand registered against him with same police station and one case is under sections 420, 468, 471, 452, 448, 511, 337H(ii), P.P.0 vide F.I.R. No,997 of 2008, while the other case is vide F.I.R. No,1068 of 2008 under sections 448, 511, 148, 149, P.P.C. The learned Additional Advocate-General submitted on Court query that there is no other record or material available with the respondents against the present petitioners. He further submitted that since several cases stand registered against Ghulam Murtaza, therefore, at least it appears that he is a desperate person and public peace was at stake, therefore, the respondent No,2 took impugned action against him in public interest and tranquility. He, therefore, submitted that at least to the extent of Ghulam Murtaza petitioner, no exception can be taken to the impugned order. Further submitted that the representations of the petitioners are pending before the respondent No,1 and would be disposed of within few days.
5. After hearing the arguments of learned counsel for the petitioners, learned Additional Advocate- General, Punjab for the respondents and perusing the material placed before the Court for examination to check the vires of impugned orders, I am of the view that since all the six cases cited by the learned Law Officer for impugned action against Ghulam Murtaza petitioner go to show that out of six criminal cases, two cases are under Arms Ordinance while one case vide F.I.R.
No,617 of 2008 is with regard to bailable offences under sections 429, 337H(ii), P.P.C, while case F.I.R.
No,1172 of 2006 dated 30-10-2006 also relates to common and minor offence under sections 506, 452, 448, 148, P.P.C, while there is only one case under section 302, P.P.0 vide F.I.R. No,601 of 2002 in which case as well Ghulam Murtaza petitioner has already been acquitted by this Court vide order dated 15-10-2004 passed in Criminal Appeal No,2063 of 2003 titled as Ghulam Murtaza v. The State as he was convicted and sentenced under section 302(b), P.P.0 by the learned Additional Sessions Judge, Lahore to imprisonment for life with a sum of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., the copy of which has been placed before the Court during the arguments for examination, as such commission of offence under section 302, P.P.0 is no more on the file against him. Coming to the report of the D.S.B. (District Security Board), if the Board or security branch has mentioned about the petitioners to be desperate persons and gangsters who take illegal possessions of the properties of the people since there is no material with them to support said report by the Security Branch or anybody else cannot be made basis for any action against any citizen including the said petitioner. As regards case of Asif Iqbal petitioner, there are only two criminal cases registered with the same police station under sections 420, 468, 471, 452, 448, 511, 3371100, P.P.0 vide F.I.R. No,997 of 2008 and case F.I.R. No,1068 of 2008 under sections 448, 511, 148, 149, P.P.0 and as such said two cases as well also do not furnish any good and valid ground in law to take impugned action against him by the respondent No,2.
6. The learned Additional Advocate-General, Punjab had submitted that since there were several criminal cases registered against Ghulam Murtaza petitioner, as such impugned action to his extent at least could be termed to be not without any sufficient basis, I am of the view that the argument advanced by the learned Additional Advocate-General again is devoid of any force and is not tenable in law for justifying action taken against said respondent through impugned order.
As regards the disposal of the representations of the petitioners by respondent No,1, suffice it to say that Ghulam Murtaza petitioner is already under arrest since 11-1-2009 and till date he is behind the bars for the last 19 days and the detention order is for a period of thirty days while the representations of the petitioners and particularly Ghulam Murtaza if is disposed of within next few days, there is every possibility that the detention period would be served out by the said petitioner with the result that his representation would ipso facto would become redundant or infructuous.
Even otherwise this Court in the exercise of constitutional jurisdiction is bound after examination of the material placed before it by the representatives of respondents to give categorical finding about the grounds which were deemed sufficient by the respondent No,2 to take impugned action against the petitioners. The material so placed before the Court as observed earlier in no way can be termed to be sufficient for passing of impugned orders against them. There is, therefore, substance in the arguments of learned counsel for the petitioners that the action has been taken by the respondent No,2 not on valid and lawful consideration, but on considerations which were outside the pale of his lawful authority and as such the impugned orders cannot be allowed to sustain on record. If these type of actions by the public functionaries like the respondent No,2 are approved by the constitutional Courts a sizeable number of population of Lahore at least would be exposed to arbitrary, fanciful, whimsical exercise of authority by the respondent No,2.
7. In view of the above discussions, both the constitutional petitions are, therefore, accepted, impugned orders passed by respondent No,2 under section 3(1) of Punjab Maintenance of Public Order Ordinance, 1960 are, therefore, declared to be without lawful authority and based upon considerations other than lawful and consequently are set aside. Since Ghulam Murtaza petitioner is under arrest, therefore, he is ordered to be released forthwith if not required to be detained in any other case in accordance with law. Since Asif Iqbal petitioner is already enjoying liberty, therefore, no further order qua him is required to be passed.