Through this writ petition, Muhammad Mansha Ghumman has challenged legality and validity of order dated 21-7-2008, passed by Respondent No, 1, whereby, the representation filed by the petitioner's wife, challenging the order of the detention of the petitioner, passed by the same respondent, was dismissed.
2. The brief facts, which compelled the petitioner to knock the door of this Court were/are that Respondent No, 1 passed an order of detention of the petitioner for a period of 45 days under sub- section (1) of Section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960. The petitioner filed a Writ Petition No, 8521/2008 before this Court challenging the said detention orders with the plea that the grounds of his detention were never communicated to him. Before filing of the said writ petition, the petitioner's, wife had submitted a representations challenging the orders of petitioner's detention before Respondent No,
1. The said writ petition, however, was disposed of with a direction to Respondent No, 1 to decide the said representation within three days from the receipt of copy of the order. Respondent No, 1, consequently, heard the matter and dismissed the representation filed by petitioner's wife vide order dated 21-7-2008, which is impugned herein.
3. This petition was admitted to regular hearing vide order dated 28.7.2008. On 1-8-2008, Mr. Tahir Mehmood Gondal, learned Assistant Advocate-General appeared before this Court and sought adjournment to file written statement. Though, the detention order was about to expire due to the efflux of time, nevertheless, the said law officer was granted an adjournment to file the written statement. However, the respondents failed to submit the written statement.
4. Learned counsel for the petitioner has contended that the petitioner was arrested by Respondent No, 4 on 23-6-2008, he remained in illegal custody of the said respondent till 30-6-2008, whereafter, he was sent to jail; that while sending the petitioner to jail, Respondent No, 4 failed to convey the grounds of detention of the petitioner; that the petitioner could not know the reasons of his illegal detention till 7-72008; that, however, on coming to know about the passing of order under sub-section (1) of Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, petitioner's wife filed a representation before Respondent No, 1, which was illegally dismissed by Respondent No, 1; that the involvement of the petitioner in numerous cases has illegally been made a ground for his detention; that while passing the impugned order, Respondent No, 1 failed to appreciate that in none of the cases registered against the petitioner, he stands convicted, rather in most of the said cases, he has already been acquitted; that as the petitioner is already facing the trial of said criminal cases, therefore, he cannot be vexed twice on the basis of same criminal charges; that the order of detention is violative of Articles 9 and 10 of the Constitution of Pakistan, which provide that no person shall be deprived of his life and liberty, save, in accordance with law and that Respondent No, 1 issued stereotype detention orders to number of persons without applying his independent mind. Learned counsel for the petitioner has concluded his arguments while placing reliance on the cases of Rana Sana Ullah Khan, Advocate v. Secretary, Home Department, Government of Punjab, Civil Secretariat, Lahore and 3 others 2001 PCr.LJ 2004), Mst.
Chaman Shereen v. Government of N.-W.F.P. through Secretary Home, N.W.F.P-W.F.P., Peshawar and 3 others (2006 PCr.LJ 127), and Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary, Home (1994 SCMR 1532).
5. Conversely, the learned Assistant Advocate-General, while appearing on behalf of Respondents No, 1 to 4, has submitted that the petitioner is involved in no less than 32 criminal cases for committing offences, including murder, kidnapping, extortion, fraud and forgery etc., which is sufficient evidence of his activities prejudicial to public safety and public tranquility, therefore, this petition is liable to dismissal. While concluding his arguments, learned Assistant Advocate-General has placed reliance on the case of Muhammad Inam-ul-Haq Butt v. Government of Punjab and 2 others (W.P. No, 8797/2008), decided by this Court vide order dated 6.7.2008 and Zarban Shah v.
District Magistrate, Rahimyar Khan and another (1989 PCr. LJ 685).
6. At this stage, learned counsel for the petitioner has rejoined and submitted that the said judgment has already been challenged vide Infra Court Appeal No, 263/2008 titled "Inamul Haq Butt v. Government of Punjab etc.". He further adds that while entertaining the said ICA, the learned Division Bench of this Court had restrained the respondents from extending the detention of the detainee therein.
7. Before, proceeding further, I would like to reproduce the grounds ,of detention, allegedly, communicated to the petitioner, which, are as follows:-- "1 That he is a desperate and dangerous person and his being at large would render security hazards to the community, danger to human life, health and safety;
2. That he, will resort to harassm ent and commission of illegal acts and heinous offences thus posing grave threat to public safety; 3 That his activities are likely to create unrest amongst public at large, which may result in disturbance of public tranquility thus posing grave threat to Maintenance of public order;
4. That his above said activities are prejudicial to public safety and maintenance of public order."
8. After hearing the learned counsel for the parties and going through the relevant record, I have straightaway observed that the impugned order of detention has been passed in a stereotype manner, inasmuch as, a number of other persons have been detained while passing similar order by only changing/inserting names and addresses of the detainees, which shows lack of application of independent mind by Respondent-No,
1. It further appears that the said order was passed on the information provided by the police, which also shows lack of application of independent mind by Respondent No, 1.
9. During the course of arguments, it was submitted by the learned counsel for the petitioner that in some of the cases, included in the list of cases registered against the petitioner, he had already been acquitted but the learned Assistant Advocate-General could not refute the said statement.
Be that as it may, on query of the Court, the learned Assistant Advocate-General 'ailed to controvert the assertion of the petitioner that petitioner has not been convicted in any of the cases, so far, rather, he claimed that the said cases are pending trial.
10.Now the moot point is, as to whether any person merely on the basis of pendency of criminal cases, can be detained under. West Pakistan Maintenance of Public Order Ordinance, 1960. To answer the said question, one has to examine the provisions of Section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960. For ready reference, Section 3(1) is reproduced hereunder: "(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such period as may be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, subject to the other provisions of this section, extend from time to time the period of such detention {for a period not exceeding six months at a time.}"
According to the provisions of the said section, before passing the impugned order, the Government should be satisfied that the person intended to be detained is acting in any manner prejudicial to the public safety or maintenance of public order. The phrase 'public order' used in the said provision of law, has to be construed in its ordinary context. While interpreting the said term, the Hon'ble Supreme Court in the case of Mrs. Arshad Ali Khan (supra) held as under: "From the above-stated legal position, it is quite clear that 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 said case, the order of detention had been passed against the detenu therein who was involved in some criminal case. In the said context, while setting aside the order of detention, the Hon'ble Supreme Court held as under: "In the case before us, the petitioner has been charged with the activity of extending threats to the Consulate-General of U.S. at Lahore. The police in this connection has already registered a case against him under Sections 182/211/225/225-B and 506, P.P.C. under F.I.R. No, 173, dated 28-8-1993.
This clearly, shows that the detenu was accused of substantive offences under the penal law and, therefore, preventive detention on the same allegation could not be justified in law."
11. While dealing with a similar, question in Rana Sana Ullah's case (ibid), Mr. M. Javed Buttar, J. (as he then was Judge of this Court), after a lengthy and detailed survey and discussion of the relevant case law, held as under: "Furthermore, the case-law discussed above would shows that the preventive detention would not be justified if the detenu, on the same allegations as contained in the detention order, was already an accused of substantive offences under the Penal Law as the so-called preventive detention on the same allegations would amount to vexing the detenu twice on the basis of same criminal charge. The facts as urged and narrated by the learned counsel for ,the petitioner (paragraph 8 above) shows that the petitioner's, alleged criminal activity, -referred to as grounds of detention in the impugned order, is already a subject-matter of various criminal cases and on the same allegations the petitioner's detention is not justified in law. The facts and circumstances of this case show that after the petitioner was able to obtain bails in various criminal cases the petitioner was arrested and detained under the impugned order. This shows that the Executive Authority and the local police were bent upon keeping the petitioner behind the bars even after the release of the petitioner on bails in various criminal cases."
As far as the dictum laid down, by this Court in Zarban Shah's case (supra) is concerned, I would respectfully observe that in view of the law laid down by the Hon'ble Supreme Court in Mrs. Arshad Ali Khan's case (supra), I am bound by the judgment of the Supreme Court. Moreover, in the case of Rana Sana Ullah (ibid), the matter was considered at a great length and it was held that a detention order cannot be passed on the basis of pendency of criminal cases, as the same would amount to vexing the detenu twice on the basis of same criminal charges. Therefore, I am also in full agreement with the author Judge of the judgment passed in the said case. Moreover, Articles 10 and 13 of the Constitution guarantee that no person shall be deprived of his life and liberty, save, in accordance with law. There is another reason for setting aside the impugned order as well as the detention order, i,e, the State being a party to all the criminal cases registered, against the petitioner can validly seek the cancellation of bail granted to the petitioner in the said cases with a plea that after being granted bails, the petitioner has been indulging in the repetition of crimes.
Besides, the State can seek early conclusion of the trial pending against the petitioner and in case the petitioner is found guilty of some offence, he can, of course, be convicted by the concerned Courts.
12. Insofar as satisfaction of the Government before passing the detention order under the said Ordinance is concerned, the satisfaction should be objective and not subjective, as has been laid down in the case of Abdul Rauf v. Chief Commissioner, Islamabad and 5 others (PLD 2006 Lahore 111) while interpreting Section 11(EEE) of ATA, 1997 the provisions of which are synonymous to the word "satisfaction" in Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960.
13. In view of all the discussion made above, the writ petition is accepted and the impugned order dated 21-7-2008 sustaining the detention order dated 25-6-2008, passed against: the petitioner, is declared as illegal, unlawful, therefore, the same as well as the detention order dated 25-6-2008 are hereby quashed. The petitioner be immediately released from Jail, if not required in any other case. There shall be no order as to costs.