This single order shall dispose of Writ Petition No. 4765 of 2010 filed by Muhammad Shafi, petitioner and Writ Petition No. 4764 of 2010 filed by Ijaz Ahmed, petitioner as in both these petitions common questions of law and facts are involved.
2. Brief facts in order to dispose of these petitions are that District Coordination Officer, Multan- Respondent No. 1 vide order dated 19.4.2010 while exercising powers under Section 3 of the Maintenance of Public Order Ordinance, 1960 on the recommendation of City Police Officer, Multan- Respondent No. 5 directed that both the petitioners be detained for a period of 30-days as their activities were prejudicial to public safety and maintenance of public order; that after expiry of the first 30-days, Respondent No. 1 vide order dated 17.5.2010 further extended the detention period of the petitioners from 18.5.2010 to 16.6.2010. Having aggrieved by that orders both the petitioners have approached this Court through these writ petitions.
3. This Court sought para-wise comments from the respondents. Respondent No. 1/D.C.O, Multan in reply to para-3 of the petition submitted as under:- "The detention order for extension of further period of 30 days was withdrawn on 18.5.2010 as the power to issue these orders lies with the Secretary, Home, Punjab and a reference was made to him who vide Order No. SO(IS-1)/3-35/2010 dated 18.5.2010 extended the period of detention of the petitioner for a period of 30-days."
4. This written reply revealed that although Respondent No. 1 vide order dated 18.5.2010 has withdrawn his earlier order dated 17.5.2010 due to lack of power for further extension of detention period of the petitioners. At the same moment Respondent No. 1 vide Letter No. SO(IS-1)/3-35/2010 dated 18.5.2010 recommended to the Secretary, Government of the Punjab, Home tepartment, Lahore-Respondent No. 3 for extension of period of detention in respect of both the petitioners along with five others; that Respondent No. 3 on the basis of above mentioned recommendation vide order dated 18.5.2010 extended the detention period of the petitioners for further 30-days.
5. Learned counsel for the petitioners argued that initial detention order dated 19.4.2010 passed by Respondent No. 1 under the recommendations of C.P.O., Multan-Respondent No. 5, its extension vide order dated 17.5.2010 by Respondent No. 1 and then subsequent detention order dated 18.5.2010 passed by Respondent No. 3 are illegal, without lawful justification, based on false and flimsy grounds. Learned counsel argued that if the detention orders are seen it based on the recommendation of C.P.O., Multan-Respondent No. 5 wherein it is only mentioned that Muhammad Shafi S/o Ibrahim, petitioner was found involved in three criminal cases while Ejaz Ahmed S/o Haq Nawaz, petitioner is shown involved in two criminal cases; that all these cases relate to theft of the cattle/live stock; that there are allegations that both the petitioners are habitually involved in the commission of thefts and they belong to a gang to pressurize the people of the locality to pay Bhonga for the recovery of their cattle, etc. Learned counsel argued that except these allegations and the registration of FIRs which are still pending before the concerned Courts for trial there is no evidence available against both the petitioners to connect them with any of the activities which can be termed as prejudicial to the public safety or maintenance of public order; that there is no conviction whatsoever has been passed against the petitioners in any of the cases under reference; that the circumstances and the allegations levelled are not sufficient to make out a case for detention under Section 3 of the Maintenance of Public Order Ordinance, 1960. Reliance has been placed on Arbab Akbar Adil Vs. Government of Sindh through Home Secretary, Government of Sindh, Karachi) (PLD 2005 Karachi 538), (Haq Dad Khan Vs. District Magistrate, Mianwali (1997 P.Cr.L.J 1288) and Muhammad Mushtaq Vs. District Magistrate, Sheikhupura, etc. (PLJ 1997 Lahore 214). Prayed that the impugned orders dated 19.4.2010, 17.5.2010 passed by D.C.O., Multan-Respondent No. 1 and subsequent order dated 18.5.2010 passed by Secretary, Home Department, Government of the Punjab, Lahore-Respondent No. 3 be set aside declaring them illegal, unwarranted and in-effective upon the rights of the petitioners and the petitioners be released forthwith.
6. On the other hand learned Law Officer has vehemently opposed these petitions on the grounds that there is sufficient material present on record as according to the report of C.P.O., Multan both the petitioners are members of a gang involved in notorious activities whereby properties/live stock owned by innocent people are being looted by them and the local administration in view of the circumstances has recommended for their detention as their activities clearly fall under the ambit of Section 3 of the Maintenance of Public Order Ordinance, 1960. Prayed that these petitions be dismissed.'
7. I have heard the learned counsel for the parties and perused the record.
8. C.P.O., Multan-Respondent No. 5 in its recommendation dated 18.4.2010 observed as under:-- "It is submitted that Muhammad Shafi S/o Ibrahim caste Babbar resident of Band Bosan is a habitual cattle lifter and a miscreant. He is not only involved in the theft of cattle but also abets and patronizes criminals involved in the commission of this offence. The cases referred to below speaks volume of his criminal tendencies. It has therefore been felt that there is no other remedy but to detain him under West Pakistan Maintenance of Public Order Ordinance, 1960, so that the cattle theft and its patronization comes to a grinding halt and the business of "bhonga" gets discouraged. {{TABLE}} Sr.No.F.I.R No Dated U/S. P.S 1 22/09 29.01.09 457/380/411 PPC Alpa 2 25/09 01.02.09 380/411 PPC Alpa 3 22/0925.01.10 457/380/411 PPC Alpa {{TABLE}}
9. Similarly in the case of Ejaz Ahmed, petitioner Respondent No. 5 observed as under:-- "It is submitted that Ejaz Ahmed S/o Haq Nawaz Caste Dhillo r/o Mouza Dhillo is a habitual cattle lifter and a miscreant. He is not only involved in the .theft of cattle but also abets and patronizes criminals involved in the commission of this offence. The cases referred to below speaks volume of his criminal tendencies. It has therefore been felt that there is no other remedy but to detain him under West Pakistan Maintenance of Public Order Ordinance, 1960, so that the cattle theft and its patronization comes to a grinding halt and the business of "bhonga" gets discouraged. {{TABLE}} Sr.No.F.I.R. No Dated U/S. P.S 1 53/09 22.02.09 380/411PPC Alpa 2 56/09 23.02.09 380/411PPC Alpa {{TABLE}} 10.On the basis of above mentioned recommendations District Coordination Officer, Multan- Respondent No. 1 passed the impugned order dated 19.4.2010 for detention of 30 days and 17.5.2010 for extension in detention for a further period of 30-days which according to his para-wise comments was withdrawn vide order dated 18.5.2010 but at the same time it was recommended to the Secretary, Home Department, Government of the Punjab, Lahore-Respondent No. 3 for passing detention order for further 30-days.
11.The only ground recommended by Respondent No. 5 prevailed with Respondent No. 1 and subsequently acted upon by Respondent No. 3 whereby the order dated 18.5.2010 passed for extension of detention period of both the petitioners based on the alleged FIRs for alleged commission of theft and receiving stolen property against the petitioners. During arguments this Court enquired from the learned Law Officer to provide any data if both the petitioners were ever convicted in any of such like cases but it was replied in negative except the registration of the aforementioned FIRs and the allegations that both the petitioners were involved in the commission of theft patronizing thieves in relation to the live-stock and they were also involved in nefarious activities whereby people of the locality were aggrieved against them and it was termed these activities as prejudicial to the public safety or maintenance order. The order dated 18.5.2010 whereby the Secretary, Home Department, Government of the Punjab, Lahore-Respondent No. 3 has directed the extension of detention period of the petitioners also based on the same facts and recommendations initially submitted by Respondent No. 5 to Respondent No. 1 who further conveyed the same to Respondent No. 3.
12.Mere fact that the petitioners have been involved in a number of criminal cases is per se not a valid ground for preventive detention. It is settled law that when a person has been prosecuted on a criminal charge the same material should not in all fairness be taken as a reasonable basis for ordering his detention. Further, where definite charges are brought against the detenu for substantive offences as the case in hand and the detenu is undergoing prosecution therefor it would ordinarily not be open to the respondent authorities to also use such charge as ground of preventive detention under the Maintenance of Public Order Ordinance, 1960. Mere pendency of a criminal case against a person is not found a basis of preventive detention. In case if the prosecution is able to prove a criminal charge against an accused then he may be convicted otherwise acquitted, but if he is detained prior to proving the charge it will violate the principle of the criminal administration of justice that nobody be vaxed twice for any act or omission constituting as offence on his part. It appears that Respondent No. 3 mechanically accepted the recommendation of the District Coordination Officer, Multan-Respondent No. 1 without applying his own independent mind to the material placed before him.
13.It has consistently been held by this Court as well as the superior Courts of the country that until and unless there are convictions and tangible, concrete and substantial material present to warrant detention of a person concerned coupled with the fact that this material should positively be brought on record the liberty of a person cannot be curtailed. Reliance can be placed on Muhammad Mushtaq Vs. District Magistrate, Sheikhupura, etc. (PLJ 1997 Lahore 214).
14.In view of the above detail, except the above mentioned allegations levelled in the FIRs there is no evidence collected by the concerned authority whereby the detention of petitioners under Section 3(6) of West Pakistan Maintenance of Public Order Ordinance, 1960 can be said as justified.
Under these circumstances, when no plausible explanation or record is available for detaining the petitioners/detenues, therefore, the impugned orders dated 19.4.2010, 17.5.2010 passed by Respondent No. 1 and order 18.5.2010 passed by Respondent No. 3 whereby they were directed to be detained are set aside and declared as illegal, without any lawful justification and ineffective upon the rights of the petitioner. Petitioners are directed to be released forthwith if no required in any other case.