' MAZHAR ALAM KHAN MIANKHEL, J.---Hamayun, petitioner herein, through the instant constitutional petition, has asked for the issuance of an appropriate writ declaring that the order dated 24-7-2013 of respondent No,1, whereby, he has been arrested under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, being nullity in the eye of law, is of no effect whatsoever. He has also asked for the issuance of an appropriate writ directing the respondents to release him forthwith.
2. Yesterday, the case was fixed for hearing and, in view of the detention of the petitioner under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, we put the Additional Advocate-General namely, Mr. Waqar Ahmad Khan, on notice, who was present in the Court in connection with some other matters and asked him to submit a detailed reply in this regard and then adjourned the case for today.
3. Today, Mr. Qaisar Ali Shah, the learned Additional Advocate-General appeared and presented a one page reply annexing impugned letter, correspondence of the police officials as well as invisible list, showing numbers of some F.I.Rs,, in which, the petitioner had allegedly been involved and tried by the concerned Courts.
4. Perusal of the above said record would reveal that the involvement of the petitioner in some criminal cases, wherein, he faced the trial and served out the sentences, has been made basis for issuance of a letter by the DPO for detention of the petitioner under section 3, M.P.O. The DPO Kohat, though, has referred to his involvement in unlawful activities but has failed to refer even a single activity of the nature. The District Magistrate/Deputy Commissioner (respondent No, 1), without applying his independent mind and personal satisfaction, has issued the impugned order of detention of the petitioner. Such an act of respondent No, 1 is nothing, less than, infringement of a right of liberty of a person provided and protected by the Supreme Law of the land "the Constitution". Liberty of a human being is considered to be a right ordained by the divine and followed by the man made laws. A person can't be deprived of his divine right of liberty merely on presumption, unless, there is some material and proof against the person going to be detained.
The order lacking any such material would be nothing, less than, a nullity in law.
5. The West Pakistan. Maintenance of Public Order Ordinance (XXXI of 1960), was promulgated for preventive detention and control of persons and publications for reasons, connected with public safety, interest and maintenance of public order as is apparent from the preamble of the Ordinance. Act/activity complained of a person must be an act prejudicial to the public order and its outcome or, its result directly affects the public at large. When such an act or activity of person is there, then the Provincial Government or the person, authorized in this behalf, has the ample material in this regard to take action or pass an order under section 3, M.P.O. And the same would be within the theme of law. But, where an act or activity is person specific and doesn't amount to an activity prejudicial to the public peace and tranquillity can, in no way, be encompassed within the sphere of the Ordinance, 1960 and the same would be entirely out of the scope of the law.
Reliance in this regard can be made to cases of Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary, Home (1994 SCMR 1532) and Masal Khan v. District Magistrate, Peshawar and others (PLD 1997 Pesh. 148).
6. While reverting back to the facts and circumstances of the case in hand, it would become clear that the petitioner remained involved in some offences, for which, he was charged, tried, and sentenced. If, at all, he once again commits any such offence, then the legal course, available to the law enforcing agencies, would be to book him in relevant offence instead of going for preventative detention not only because he has committed any specific offence and thereby violated the law but his such act was only concerned to his person and not the public or society at large. His detention under the Ordinance ibid. Cannot be made just on the ground that he remained involved in criminal cases. The - order of respondent No,1, in this regard, is totally against the mandate of the law, which, in the circumstances, is against the fundamental rights of a citizen provided under the Constitution of Islamic Republic of Pakistan, 1973. Besides the above all, the impugned order is defective under section 3(6) of the Ordinance ibid and Article 10(5) of the Constitution, 1973. For ready reference both the provisions are reproduced herein below:-- ' S.3. Power to arrest and detain suspected persons:
(1) .
(2) .
(3) .
(4) .
(5) .
(6) Where a detention order has been made under this section the [authority making the order] shall, as soon as may be, [...] communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so.
' Provided that the [authority making any such order] may refuse to disclose facts which such authority considers it to be against public interest to disclose.
' Article 10. Safeguards as to arrest and detention.
(1) .
(2) .
(3) .
(4) .
(5) .
' When any person is detained in pursuance of an order made under any law providing for preventative detention, the authority making the order shall, [within fifteen days], from such detention, communicate to such person the grounds on which tae order has been made, and shall afford him the earliest opportunity of making a representation against the order: ' Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.< /i>
7. A look at the above provisions would reveal that the grounds of order must be communicated to the person before his detention. The record of the case would further reveal that the impugned order doesn't reveal that the order in question was ever communicated to the petitioner, thus, the impugned order is also bad in law on this count and not maintainable. The Chief Secretary, who is, at the helm of affairs in the province, is directed to look into the matter and see what is happening under the nose of his illustrious office. Many things illegal are being done with impunity. All this must be looked into and set right, if rule of law and good governance is something desirable and not despicable for the government.
8. For the reasons discussed above, we admit and allow this writ petition, set aside the impugned order dated 24-7-2013 and direct the release of the petitioner forthwith, if not required in any other F.I.R. However, the respondents are directed to chalk out F.I.Rs, against the petitioner, if he is actually involved in any criminal activities without taking shelter under the umbrella of West Pakistan Maintenance of Public Order Ordinance, 1960. In the end, we warn the Deputy Commissioner concerned to do what is required by law to do and don't try to play with the law in such like shameful manner. Copy of this order be sent to the Chief Secretary for information and compliance, who, after conducting an impartial inquiry in the matter, shall submit his report to this Court within a month through the Additional Registrar (Judicial).
9. Above are the reasons for our short order of even date.