Through this petition, petitioner, Sana Jamil d/o Muhammad Jamil Farooqi has assailed the detention order dated 24-07-2015 passed by respondent No.6/DCO, Lahore.
2. Brief facts of the case are that Umar Butt s/o Abdul Rasheed Butt, Caste Kashmiree, resident of I/444 Noor Gali Andrun Mochi Gate, P.S.Akbari Gate, Lahore is involved in six criminal cases of making illegal constructions registered against him at Police Station Akbari Gate, Lahore. He is habitual of raising illegal constructions of buildings in Lahore City. The cases against the said persons are pending adjudication before different Courts of law. Being harmful for general public the constructions raised by him in one of the Plaza was demolished by the authority and in this way according to DCO, he has become a potential danger to public peace and law & order situation due to his activity of raising unlawful construction DCO, Lahore has recommended his detention under sub section (1) of Section 3 of Punjab Maintenance of Public Order Ordinance, 1960. Details of the FIRs registered against the alleged detenue/husband of the petitioner is as under: 1.FIR No.250/14 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore. 2.FIR No.126/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore. 3.FIR No.218/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore. 4.FIR No.230/15 U/s 132- PLGO(3), P.S.Akbari Gate, Lahore. 5.FIR No.242/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore. 6.FIR No.263/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore
3. In view of the above, DCO, Lahore, Captain (R), Muhammad Usman Younis passed the detention order in exercise of power conferred upon him under sub-section (1) of section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 for thirty days.
4. Learned counsel for the petitioner submits that the impugned order is against the law and facts; that the impugned order is passed on the basis of so called cases registered against the husband of the petitioner. Further maintained that mere registration of case against any person cannot justify detention under section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 as all these criminal cases are pending adjudication before the competent Court of jurisdiction and the present detention order amounts to double condemnation of one and the same act. Moreover, if the detenu is acquitted by the trial Courts then the same detention can never be justified. It is apparent from the impugned order that same has been passed against falling of plaza where the construction raised by the detenu which reflects that the same order is punitive in nature whereas section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 can only be invoked when there is a serious apprehension and material available with the functionary to act upon. Ironically, in the instant case no material has been produced before the Hon'ble Court. Further submits that the detenu was granted bail by the competent Court of jurisdiction and impugned order has been passed in retaliation and in this regard to the order of competent jurisdiction, which is not warranted by law. Finally, he prayed for the declaring the said order dated 24-07-2015 as illegal, unlawful, void, ab-initio.
5. Opposing the afore settled contentions of learned counsel for the petitioner, the learned AAG contended that the writ petition is incompetent as the remedy provided by filing representation before the Govt. Section 6 of West Pakistan Maintenance Order 1960 has not been availed by the petitioner , therefore, petitioner without having invoked the said remedy could not file the instant writ petition under Article 199 of the Constitution. Further maintained that petition under Article 199 of the Constitution can be invoked when other alternate remedies are not available to the petitioner but in this case as stated above , the alternate remedy is available to the petitioner; that it is constitutional duty of provincial administration to keep the law and order situation peaceful and the act of DCO, Lahore is well protected under the law.
6. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.
7. For disposal of the instant writ petition, the arguments of counsel for the petitioner and submissions of learned Law Officer have to be examined on the touchstone of the relevant law and the provisions of the Constitution. It divulges from the record that the impugned order has been passed on the basis of recommendation of respondent No.4, who reported the matter to DCO, Lahore vide letter No. 2111-DSP-L-Ops dated 23-07-2015. On recommendation made by said respondent No.4, the DCO/respondent No.6 passed the following order on 24-07-2015:- "Whereas, according to letter from Deputy Inspector General of Police (Operations), Lahore vide No. 211-DSP-L-Ops dated 23-07-2015, it has been reported that accused Umar Butt S/o Abdul Rasheed Butt, Caste Kashmiree R/o 1/441 Noor Gali Andrun Mochi Gate, P.S.Akbari Gate, Lahore is involved in 06 criminal cases of making illegal Constructions registered against him at P.S.Akbari Gate, Lahore, he is inhabit to make illegal constructions of buildings in Lahore City. These cases are pending adjudication in the concerned learned Courts. The Hon'ble Court imposed ban on the construction of buildings having basements in different areas including in the jurisdiction of P.S.Akbari Gate, Lahore. Earlier a plaza constructed by him in Noor Gali was pull down. Such like constructions harmful for the general public. In this was he has become a potential danger to public peace and law & order situation. Such like activist will give rise to a situation prejudicial to public safety and maintenance of public order, if he is not checked. DIG (Operations), Lahore has recommended his detention under 03 MPO, 1960. Detail of cases registered against him are as under:- 1.FIR No.250/14 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore.
2.FIR No.126/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore.
3.FIR No.218/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore.
4.FIR No.230/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore.
5.FIR No.242/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore.
6.FIR No.263/15 U/s 132-PLGO(3), P.S.Akbari Gate, Lahore
2. AND WHEREAS, upon the basis of evidence / material placed before me, I am convinced that the presence Umar Butt S/o Abdul Rasheed Butt, Caste Kashmiree R/o 1/441 Noor Gali Andrun Mochi Gate, P.S.Akbari Gate, Lahore at any public place will pose grave threat to the public safety and is likely to cause breach of public peace and Public order.
3. AND NOW THEREFORE, in exercise of powers conferred upon me under sub-section (1) of section 3 of the Punjab Maintenance of Public Order, 1960, I, Captain (R) Muhammad Usman Younis, District Coordination Officer, Lahore order that Umar Butt S/o Abdul Rasheed Butt be arrested and detained for a period of 30 days with immediate effect. His custody shall be placed under the Superintendent, Central Jail, Kot Lakhpat, Lahore.
4. The grounds of detention order are narrated in Para 1 above.
5. He shall be at liberty to make a representation to the Provincial Government against this order"
8. The above mentioned impugned order is passed on the grounds of registration of six cases registered against said Umer Rasheed Butt.
9. It is the case of the petitioner that her husband is a business man by profession and he is rendering his services honestly, diligently, without any complaint whatsoever from any corner; that although criminal cases have been registered against the detenu but the same are triable by competent Courts of law and nobody can be vexed twice and there is every possibility of acquittal in these cases. That the detenu has not instigated the general public at large throughout his life even disturbed the public peace and tranquility; he possessed great love for his country. On 27-07- 2015, the respondent was directed to file report before next date of hearing. According to the report and parawise comments filed by respondent No.2 the detenu is involved in a number of criminal cases regarding construction of buildings in Lahore and these cases were pending trial in the learned trial Courts. That impugned detention order has been passed on his request and material provided by respondent No.4; that vide writ petition No.6726-14 Hon'ble High Court stopped construction in the area of P.S.Akbari, Gate Lahore and earlier a plaza constructed by Umer Butt in Noor Gali was collapsed and such like constructions were harmful for the property and life of general public.
10. In order to understand the legal aspect of the case it would be beneficial to reproduced section 3 of Punjab Maintenance Public Order Ordinance, 1960:- Section 3 of the Punjab maintenance Public Order Ordinance 1960 Power to arrest and detain suspected person.--- (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)
(Explanation I)---- For the purpose of this section ___ i) Dealing in the black-market or hoarding as defined in the Hoarding and Black Market Order, 1948; or ii) an act of smuggling punishable under the Sea Customs Act, 1878, or the land Customs Act, 1924, or under any other law for the time being in force; or iii) an act which is an offence under the Drugs Act 1976 (XXXI of 1976).
Shall be deemed to be an act prejudicial to the maintenance of public order..
(Explanation II)--- Whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force in the Province, at any time during the period of seven days immediately before it was so declared to be unlawful shall be deemed to be a ting in a manner prejudicial to public safety and the maintenance of public order for the purposes of this section.
(2) If a District Coordination Officer or a public servant authorized in his behalf by the Government has reasons to believe that a person, within his territorial jurisdiction has acted, is acting or is about to act in manner which is prejudicial to public safety or maintenance of public order, he shall immediately refer the matter to the Government
(3) (a) An order of arrest under subsection (1) may be addressed to a Police Officer or any other person and such officer or person shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer or the other person, as the case may be, shall commit the arrested person to such custody as may be prescribed under section (7).
(b) A Police Officer not below the rank of Sub-Inspector, if satisfied on receipt of credible information that a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdiction, may arrest him without a warrant in the same manner as he would have done if such order of arrest had been addressed to him "and thereupon commit the arrested person to such custody as may be prescribed under subsection (7); or if he receives any requisition in this behalf from the police officer or other person to whom the warrant, of arrest for the person arrested is addressed, make over the custody of the arrested person to such police officer or other person"
11. The constitution of Islamic Republic of Pakistan, 1973 announce that no person shall be deprived for life or liberty saved in accordance with law. Liberty of any citizen is an "inalienable right" of the citizen enshrined in article 4 and embodied in article 9 of the Constitution and the detention of any citizen would tantamount the violation of fundamental rights guaranteed under article 2-A, 3,4,9,14 & 18 of the Constitution of Islamic Republic of Pakistan, 1973.
12. Even otherwise, the preamble of Punjab Maintenance Public Order Ordinance, 1960 law is made to ease public and ensure public safety, public interest and maintenance of public order and the applicability of the provisions of a public maintenance order is subject to guarantee provided by the constitution. I also do not agree with the learned Law Officer that prior to filing the writ petition against the order of detention, it is necessary to assail the same before the Secretary, Home Department, Lahore (Punjab) is not necessary. Reliance is placed on "Abdul Latif Shamshad Ahmad vs. District Magistrate, Kasur (1999 P.Cr.L.J 2014) in which by tackling such legal observation the Hon'ble Bench observed as under:- "At the very outset I would express that before the filing of this writ petition, the making of the representation or preference of appeal before the Secretary Home Department, Government of the Punjab is not necessary. It has been held In Maulna Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222 and Azad Papers (Jasarat) v. Province of Sindh and others PLD 1974 Kar. 81 that availability of alternate remedy of making representation to the Provincial Government against the impugned order does not oust and eclipse the jurisdiction of the Constitutional Court in exercise of its writ jurisdiction in a mater of the instant nature. This objection of the learned Assistant Advocate General is overruled"
13. Keeping in view the law laid down in judgment supra the objection of the learned AAG is overruled.
14. Now coming up to the merits of the instant case; the detenu Umer Butt cannot be detained merely on the grounds that six cases are registered against him especially when the same are subjudice before the competent Courts of law and the material based with criminal cases are not reasonable for detention of the present detenu. Furthermore, the detention of the said detenu is violative of the principle of fair trial as enshrined in article 10(a) of the Constitution of Pakistan, 1973 and present detention , prima facie, is double jeopardy. The detenu is already burdened with the charge of illegal construction. Trial of the same are pending in the trial Courts and agreeing with the recommendation of respondent No.4 of DCO, Lahore without an independent opinion is not free from doubts. Moreover, even the Apex Court of the country do not consider the pendency of the cases as valid ground to deprive a citizen from benefit which law provides in his favour. It is, conviction, which matters in that instance the Court would reaches to the ultimate decision after collecting considerable substantial and legal evidence and on mere pendency of the cases liberty of any person cannot be curtailed. In the instant case liberty of the detenue Umer Butt is curtailed merely on the ground of pendency of cases otherwise there is no other apprehension like integrity, security or disturbance of public or any part thereof, external affairs of public, public order or maintenance of supply or services as envisaged in the constitution. Reliance is also placed upon the case law titled "Abdul Rasheed Bhatti vs. Govt. Of Lahore, Punjab (PLD 2010 Lahore 484) in which the Hon'ble Bench observed as under:- "So far as the material/reports forming the basis of passing the impugned detention order are concerned, the same show that certain criminal cases have been registered against the petitioner and the petitioner is involved in criminal cases. It is pertinent to mention here that out of the seven criminal cases the petitioner has been granted bail in two cases registered vide FIRs No.435/2006 and 148/2008 at Police Station Faisal Town and Town Ship respectively, therefore, the petitioners alleged criminal activity, was already a subject-matter of various criminal cases and on the same allegations his detention was not justified in law, as this amounts to vexing the petitioner twice"
15. In view of the above detailed discussion, there is no evidence collected by the concerned authority due to which detention of the detenu/husband of the petitioner under section 3(6)
Punjab Maintenance Public Order Ordinance, 1960 can be said as justified and there is no justifiable reasons available for detention, therefore, the impugned order passed by respondent No.6 is set aside and declared as illegal without any lawful justification and ineffective upon the rights of the detenue. Consequently, instant writ petition is allowed. The detenu be released forthwith if not required in any other case.