Through this constitutional petition, the petitioner impugns the order dated 11.07.2010, passed by the District Coordination Officer (DCO), Bahawalnagar, in exercise of his powers vested in him under sub-section (1) of Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 read with Notification of Home Department No. SO(IS-1)3-12/2007, dated 9.8.2008, against Munir Ahmad son of Muhammad Sharif (father of the petitioner), the detenue, resident of 89/B, Pakki Mandi, Tehsil Haroon Abad, District Bahawalnagar. He was ordered to be arrested and detained for a period of 30-days. He also impugns the extension of detention ordered by the Secretary to Government of the Punjab, Home Department, vide Letter No. SO (IS-1)3-39/2010, dated 9.08.2010, whereby detention period of Munir Ahmad father of the petitioner was extended for a period of next thirty days. It is alleged that the detenue is an active worker of proscribed Organization Tehrik-e-Jaffaria Pakistan; his name is included in the list of 4th Schedule of ATA, 1997; that his activities are prejudicial to public safety and Maintenance of Public Order and that three criminal cases have been registered against him.
2. It is contended by the learned counsel for the petitioner that Munir Ahmad/detenue, father of the petitioner has been acquitted in said three criminal cases. This fact is not controverted by the learned Assistant Advocate General; that even if he had not been acquitted, mere registration of numerous criminal cases against any person does not justify his detention under the said law; that the detenue is a member of the Peace Committee constituted for Bahawalnagar District by the Commissioner of Bahawalpur Division, vide order dated 09.12.2009; that the allegations leveled against the detenue in the Memorandum are fake and general in nature; the material against the detenue is fake and devoid of any tangible act prejudicial to the public safety and tranquility; that the 'satisfaction' mentioned in sub-section (1) of Section-3 above has to be objective in nature and is sine qua none for passing the impugned order, which is non-existed in the instant case. It is argued that in suchlike cases the detention order is not sustainable. Reliance is placed on 1995 P.Cr.L.J. 587 titled Muhammad Ayaz Khan and 6 others Vs. The District Magistrate, Batagram and another, NLR 1993 Criminal 245 titled Dr. M. Haji Ahmad Bhatti Vs. District Magistrate Gujrat, etc. and 1994 SCM R 1532 titled Mrs. Arshad Ali Khan Vs. Government of the Punjab through Secretary, Home.
The reliance is also placed on the order dated 09.08.2010 passed in .Writ Petition No. 3714/2010/BWP titled Mufti Muhammad Qasim Vs. DCO Bahawalpur etc.
3. The petition is opposed by the learned A.A. G. It is contended that this petition is not maintainable as the alternate remedy by way of making representation to the Government against the impugned orders is provided under Section 3(6) of the Maintenance of Public Order Ordinance, 1960, which has not been availed by the detenue; that the detenue is involved in the activities which affect the public law and order and tranquility; and that the detenue has already been put under detention thrice under the same law.
4. I have heard learned counsel for the petitioner and the learned law officer. The impugned orders do not exhibit the objective satisfaction of the District Magistrate and the Secretary, which is sine qua none for passing order of detention. The resort to Section 3(1) of the Maintenance of Public Order Ordinance, 1960, is a stopgap and transitory arrangement meant to cope with emergency situation which would be rectified after the passing of the period of detention. This is not the situation in the instant case. The detention even if extended for the maximum permissible time will not rectify wrongs attributed against the detenue. The orders do not contain the material, which could satisfy the DCO that the detenue is likely to act in a manner prejudicial to the public safety and maintenance of public order. In my view, the grounds for passing the order of detention as enumerated in Section 3 of the ibid Ordinance were non-existent in the instant case. As far the objection of the learned Assistant Advocate General that this petition is not maintainable as the detenue did not make a representation before the Government as is provided in sub-section (6) of Section 3 of the Maintenance of Public Order Ordinance, 1960, I am of the view that such a representation to the Government is not necessary when it is predetermined to reject such representation, when it does not intend to give any such relief and when such an order is passed with a scheme throughout the province and is not passed under the circumstances when it is justifiably required, the representation as provided under this law is not necessary and recourse can be had directly by filing the constitutional petition before this Court.
5. For what has been discussed above, the impugned orders are declared to have been passed without satisfaction of the grounds mentioned in Section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960. This petition is accepted. The impugned orders are set aside. The detenue shall be at liberty if not required in any other case.