MUHAMMAD AYUB KHAN, J.---Through this common judgment we intend to decide the following nine (09) writ petitions having identical question of law and facts.
W. P. No, 833-D/2017.
(Rahmatullah alias Rematoli v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
W.P.No,710-D/2017.
(Qayyum v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
W.P.No,716-D/2017.
(Noor Muhammad v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
W.P.No,717-D/2017.
(Baaik Khan v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
W.P.No,719-D/2017.
(Inam Ullah v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
W.P.No,733-D/2017.
(Javed Iqbal and another v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
W.P.No,741-D/2017.
(Almar Gul and another v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
W.P.No,761-D/2017.
(Ameer Muhammad alias Meri v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
W.P.No,769-D/2017.
(Muhammad Noor alias Badoo v. Govt. of K.P.K through Secretary Home and Tribal Affairs Peshawar and others).
2. Through this constitutional petition bearing W.P. No,833-D/2017, the petitioner Rehmatullah alias Rematoli has assailed the order dated 24.7.2017 of Deputy Commissioner, District Tank, whereby it is directed that the petitioner shall be detained in Central Jail, D.I. Khan for a period of one month (30) days from the date of his arrest under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as the Ordinance) on the following grounds. "That the petitioner is involved in activities prejudicial to public peace and also selling of drugs, which is highly injurious to the health of young generation and the entire society as well."
3. Learned counsel for the petitioner vehemently contended that the impugned order was not passed by the detaining authority/Deputy Commissioner as contemplated by law. In fact, the District Police Officer has written a letter No,1775/PA dated 18.7.2017 to the District Magistrate mentioning that the petitioner was involved in activities of prejudicial to public peace and also selling of drugs. The learned counsel further contended that the Deputy Commissioner has passed the detention order after having mechanically accepted the recommendations of the police without application of his own independent mind. He next contended that the detaining authority is under legal obligation to provide ground of detention to the detenu, but in the instant case neither the grounds of detention were communicated nor served upon the petitioner, therefore, the impugned detention order is not sustainable in the eye of law and the same is liable to be struck down.
4. In reply, the learned Addl: A.G., appearing on behalf of the detaining authority, took up a preliminary objection that the writ petition is not maintainable in the eye of law as the petitioner has not filed representation under section 3(6) of the Ordinance to the Provincial Government, who has power to rescind or modify the order passed by the Deputy Commissioner, because remedy under section 3(6) (ibid) is adequate and efficacious and bars jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He placed reliance on PLD 1992 Lahore 140.
5. We have heard the learned counsel for the parties at length and have examined their respective submissions.
6. In order to appreciate the legal position of the impugned orders, Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 has to minutely read which reads as under:- "3. Power to arrest and detain suspected persons.--- (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 custody as may be prescribed under subsection (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do may, I..........] extend from time to time the period of such detention, [for a period not exceeding six months at a time...........] (2)If a District Magistrate or any other servant of Government authority in this behalf by a general or special order of Government, has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for order.
(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 subsection (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.
(4) On receipt of a reference under subsection (2) Government may; (a)reject the reference; or (b)make an order of arrest and detention in terms of subsection (1)."
7. The pre-requisite condition for issuance of an order under the aforesaid section is that the Government has to satisfy itself that a person is likely to act in a manner prejudicial to public safety or the maintenance of public order, and then to direct the arrest and detention of that person for a specified period. It implies that satisfaction of the Government with regard to the conduct of the person likely to act in a prejudicial manner, must be objective in nature and not subjective so to allow the executive authorities to act on their own fancies. There must be sufficient material before the authority to act upon it so as to justify passing an order of detention.
8. Perusal of the impugned order reflects that the Deputy Commissioner adhering to the District Police Officer's request, has acted purely mechanically without application of independent judicial mind, hardly furnishes justification for stripping off a citizen of his liberty under the garb of preventive detention; consequently, the adventurous course ventured upon by the District Magistrate seems to be a colourful power beyond the known periphery of the intendment of the framers of the legislation for extraneous consideration alien to the law being illicitly conceived feateous. In this respect reliance can well be placed on case "Muhammad Din v. District Magistrate"
(1992 MLD 107).
9. As far as the objection of learned Addl: A.G. with regard to the competency of the writ petition is concerned, that without filing the representation as provided under subsection (6) of section 3 of the Ordinance, the petitioner could not file this writ petition, suffice would be to say that it is now well-settled that where the order is challenged being without lawful authority and without jurisdiction with the allegations of mala fide, the Constitutional jurisdiction can be invoked straightaway. In this respect reference can well be made in case of "Muhammad Siddique Khan v.
District Magistrate" (PLD 1992 Lahore 140), wherein it was held that filing of representation in a given case would depend upon the facts of that case. In the facts and circumstances of the present case the writ is competent as the filing of the representation would have been a futile exercise.
10.Coming to the question of non-supply of grounds of detention and its effect, it is indeed high time to notice that in a well democratic society the various functionaries of the State have least regard for the constitutional guarantee available to the citizens of Pakistan and their liberty is jeopardized without least resorting to the legal requirements of the law under which they act.
Admittedly, in the instant case the grounds of detention were neither supplied nor served upon the detenus. The Maintenance of Public Order 1960, itself places an obligation on the detaining authority directing detention of a citizen to supply to the detenu the grounds for and under which he is directed to be kept in detention. Reliance can well be placed on 1999 PCr.LJ 1558.
11.In view of the above discussion, we accept all the above referred nine writ petitions, set aside/quash the impugned orders and hold it to be illegal, without lawful authority and without jurisdiction.