Through this constitutional petition, the petitioner impugns the order dated 12.7.2010 passed by the District Coordination Officer (DCO) Muzaffargarh against the detenue Muhammad Irshad @ Shanda son of the petitioner, whereby he was ordered to be arrested and detained for a Period of 30 days. The allegation against the detenue'is that he alongwith nine others was, instigating the people to create law & order situation and was causing great harassment to the opposite sect and the public at large.
2. It is contended by the learned counsel for the petitioner that the grounds of detention attached with the impugned order are general in nature. The grounds have been prepared collectively against all the accused; each accused has not been attributed specific conduct that could be prejudicial to the safety of the public and the maintenance of public order; and that detenue was not handed over the impugned order and the grounds of detention at the time of his arrest to enable him to seek the remedy provided under law.
3. The impugned order is supported by the learned law officer. At the very out-set of the arguments, he submits that the remedy by way of making a representation before the Government of the Punjab is available to the petitioner, he cannot avail the remedy of preferring this constitutional petition without having resort to the remedy under law which is alternative and efficacious.. He further submits that the grounds mentioned in the order justify the arrest and detention of the detenue.
4. Responding to this first argument. advanced by the learned law officer, the learned counsel for the petitioner contends that the impugned order has not been passed in a natural course of the executive affairs, when the authorities may be objectively satisfied that the activities of some persons are prejudicial to the public safety and impede the maintenance of public order. Infact the impugned order is one of the innumerable orders that are passed when the Government for subtle reasons or in order to please its over-lords suddenly resolves with a pre-determination to proceed against some class of people. Any remedy provided under law of making a representation before any functionary of the Government is no ground to refuse the detenue, the relief by preferring a constitutional petition.
5. I have heard the learned counsel for the petitioner and the learned law officer and have also gone through the record.
6. As far the argument advanced by the learned law officer that the petitioner should have, in the first instance, made a representation before the Government, I am of the considered view that, when there is a periodical determination on the part of the executive to proceed against a class of persons for extraneous reasons and not when the circumstances really so urge, any remedy though provided by law which is not intended to be dispensed can-not be termed as efficacious. It has to be considered whether any remedy is at all practically available; whether the authority nominated to decide the representation is infact in a position to grant the relief and whether such a forum really intends to dispense justice to a detained person. The competent authority being a part of Executive machinery has no balm to heal the wounds inflicted by itself. The condition of having resort to the said authority before availing the constitutional remedy before this Court is not attracted in the instant case. Therefore, this petition is maintainable. The allegations contained in the grounds of detention and carried in the impugned order are general in nature. They have collectively been attributed against a number of persons and the allegations are not supported by any material either accompanied with the impugned order or submitted along with the comments.
Reliance is placed on "1989 P.Cr.LJ 412" titled (Muhammad Iqbal. Vs. District Magistrate), and "1997 P.Cr.LJ" titled (Mst. Wallan Vas. Hasan Nawaz Tarrar and others) In this view of the matter, I am of the opinion that the grounds required for passing the impugned order were not available to the respondents. The impugned order dated 12.07.2010 passed by the DCO Muzaffargarh is declared illegal. It is set-aside. This petition stands accepted.