MUHAMMAD HASHIM KHAN KAKAR .---The instant Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution") carries the following prayer: "It is therefore, respectfully prayed that the impugned order dated 26.06.2019 made by Deputy Commissioner Killi [a] Abdullah may kindly be declared to be illegal, unconstitutional, void having no effect at all that the orders be made to release the petitioner forthwith and to restrain the respondents from detaining the petitioner in the furher [future] ur the same garb.
Any other relief which this honorable court deem fit and appropriate in the circumstances of the case may also be awarded in the interest of justice, equity and fair play ."
2. The relevant facts for disposal of instant petition appears that the involvement of the petitioner in Crime No.34 of 2019 of P.S. Chaman, operation whereof was subsequently suspended by this Court in Criminal Miscellaneous Quashment Petition No.266 of 2019, has been made basis for issuance of order dated 29.05.2019, passed by the Deputy Commissioner . Killa Abdullah, under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, whereby the petitioner was ordered to be kept under custody for a period of thirty days. Though, the Deputy Commissioner ("DC") has referred the involvement of petitioner in antisocial activities but has failed to refer to even a single activity of the nature. It is also evident from record that after issuance of detention order dated 29.05.2019, order dated 30.05.2019 was issued by the Deputy Commissioner , whereby the Superintendent, District Jail, Quetta was directed to detain the petitioner for unlimited period till restoration of normal situation at District Killa Abdullah. The record also manifests that after taking surety regarding good character , the petitioner was ordered to be released on 10th June , 2019, however , before his release from the District Jail, Quetta, the said order was once again withdrawn by means of order dated 15.06.2019 and subsequently the order dated 26.06.2019 was issued by the DC and the period of detention was further extended from 30th June, 2019 to 30th July, 2019, which is the subject manner of the instant petition.
3. Mr. Barkhurdar Achakzai, learned counsel for the petitioner contended that the petitioner is a political worker , religious scholar and is widely known for his social and welfare activities within the city of Chaman. He is a patriotic and law abiding citizen of Pakistan and always took part in peaceful demonstration held by different political organizations seeking the enforcement or fundamental rights of the people of the country . According to learned counsel, the impugned detention order is not sustainable in the eyes of law becau se no material in relation to the grounds of detention order was communicated to the petitioner and there was no material with the DC/Authority to pass the impugned order . While conclud ing his arguments, he further submitted that the DC has mechanically accepted the request of the Assistant Commissioner without applying his own independent mind to the material placed before him.
4. On the contrary , Mr. Shai Haq Baloch, learned AAG, opposed this petition on the ground that there was sufficient material available with the District Administration for the satisfaction to communicate the same to the DC for passing the impugned order . He further submitted that the activities of the petitioner were prejudicial to public safety and the maintenance of public order , therefore, the instant petition is liable to be dismissed on merit as well as for want of alternate remedy .
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of the Constitution, the West Pakistan Maintenance of Public Order Ordinance, 1960 and the judicial precedents. Before dilating upon the rival contentions of the parties, it would be relevant to reproduce herein below the impugned order and the letter dated 17th July, 2019 of the DC addressed to the Secretary , Home and Tribal Affairs Department, Quetta: "Office of the Deputy Commissioner , Killa Abdullah at Chaman.
Dated Chaman, the 26/06/2019
No. 766-70/Esstt/DC/KA WHEREAS, it has been reported by the Assistant Commissioner , Chaman that the suspect Mr. Mulla Behram son of Yar Mohammad r/o Chaman is involved in anti-social activities, which is likely to adversely affect public safety and maintenance of public order .
2. AND WHEREAS , there are reasons to believe that the above persons acted and continue to act in a manner which is prejudicial to public order within meaning of section 3(1) of the West Pakistan Maintenance of Public Order Ordinance of 1960 and presence of above said person at District Killa Abdullah is likely to further aggravate the situation.
AND THEREFORE, I Deputy Commissioner , Killa Abdullah at Chaman, in exercise of the power conferred upon me under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 read with Home and TA Affairs Government of Balochistan, Quetta Notification No.SO(Judl:)8(12)/2103/15-19 dated 5th January , 2012 am pleased to order the detention of above suspects in custody of Central Jail Quetta for a period of thirty days from the date of detention.
5. This oder shall remain enforced for a period of thirty days from the date of detention of the suspect unless withdrawn earlier . Given under my hand and seal of the office on this day 30th June, 2019 to 30th July , 2019."
Sd/x x x Deputy Commissioner , Killa Abdullah at Chaman"
" NO. DC (PTM). 1-GEN- 1 / 2019 Office of the DEPUTY COMMISSIONER Killa Abdullah Dated the 17th July , 2019 To THE SECRETER Y, Government of Balochistan, Home and T ribal Affairs Department, Quetta.
Subject :- REPOR T REGARDING THE DETENTION OF MULLA BEHRAM UNDER MPO, 1960.
This is with reference to the telephonic conversation with the Deputy Secretary of your exalted office regarding the subject noted above.
In this regard, it is to state that Mr. Mullah Behram son of Yar Muhammad was a trouble maker for the district administration, Killa Abdullah in maintenance of public order and had interventi ons in creating hurdles for the smooth functioning of public interest. Following is the detailed report in this regard: i. In last Ramzan-ul-Mubarak, the undersigned directed Additional Deputy Commissioner , Revenue to conduct operation against hoarders and profiteers in order to provide relief to the general public for checking and monitoring the price and quality of essential commodities. When he was engaged in operation, Mr. Mulla Behram, the PTM local leader interrupted the operation and started resistance and shouted slogan against the district administration, the ADC Revenue, the Police, the Forces and the state and harassed the ADC Revenue. ii. Thereafter , an FIR against him was registered and he was arrested but was granted bail from the concerned Court. iii. In order to maintain public safety and order , the undersigned kept him under detention for the period of one month under the Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 in sub-Jail Chaman as the PTM workers had surrounded the sub-Jail to take him forcefully out of Jail. Where after, he was a threat to the district administration in Chaman, therefore, he was shifted to Central Jail Hudda, Quetta. iv. During his detention period, on the guarantee of some of the notables of Tehsil Chaman, the undersigned issued his release order on 10th June, 2019 against the date of 15th June, 2019 which was withdrawn on 15th June, 2019 when the undersigned observed his mala fide intentions. v. After the expiry of the detention period, an extension order of detention was issued in this connection so that public order could be maintained. Consequently , he is detained in Central Jail Hudda, Quetta.
Submitted for your exalted perusal and further necessary action, sir .
Deputy Commissioner Killa Abdullah"
6. Mr. Barkhudar Achakzai, learned counsel for the petitioner , in order to substantiate his contention, made a reference to the case of "Liaquat Ali v. Government of Sindh" (PLD 973 Karachi 78), wherein after a detailed survey of the law and judgments passed by the Hon'ble Supreme Court, following dictum has been laid down: An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (1) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existence or irrelevant, the whole order of detention would be rendered invalid; (iii) that initial burden lies on the detaining authority to show the legality of preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requireme nts, the Court has further to be satisfied, in cases of preventive detention , that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with; that "satisfaction " in fact existed with regard to the necessity of preventive detention of the detenue; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be"; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenue to make representation against his detention to the authority prescribed by law; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice."
7. Similarly , the West Pakistan Maintenance of Public Ordinance, 1960 was promulgated for preventive detention and control of person 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 complaine d 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 a person is there, then the Provincial Government or the person, authoriz ed in this behalf, has the ample material in this regard to take action or pass an order under Section 3 of the said Ordinance and the same would be within the theme of law. But, where an act or activity is person specific does not amount to an activity prejudicial to the public peace and tranquility , in no way, be encompassed within the sphere of the Ordinance, and the same would be entirely out of the scope of the law. Reliance can be placed on the case of "Masal Khan v. District Magistrate" (PLD 1997 Peshawar 148). Similarly , Articles 4, 9 and 15 of the Constitution of 1973 deal with the liberty of a person, while Article 10 provides in detail the rights of an individual, who has been arrested or detained in the circumstances in which preventive detention laws are to be made applicable. It further elaborates, inter alia, the rights of a person so detained. A person could not be detained or his liberty curtailed without reasonable material because the liberty of a person has been guaranteed by the Constitution and this Court while exercising its Constitutional jurisdiction is duty bound to satisfy itself that the person is not being held in custody without lawful authority or in an unlawful manner .
8. On the touchstone of criterion as laid down in the above mentioned cases and keeping in view the judicial consensus, at the first instance to examine the material which was placed before the authority i.e. the Deputy Commissioner and the letter dated 17th July, 2019, addressed to the Secretary , Home and Tribal Affairs Department, Government of Balochistan, show the petitioner was initially arrested in Crime No.34 of 2019 and after suspension of the operation of said case by this Court, order dated 29.05.2019 was issued by the Deputy Commissioner while exercising his powers under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, which was subsequently extended for a further period of 30 days by means of impugned order dated 26.06.2019. It seems that the DC, Killa Abdullah has passed the impugned order in a cursory manner without applying judicial mind and the order is not sustainable for the following reasons: a) That the petitioner was arrested in pursuance of FIR No.34 of 2019, operation whereof was suspended by this Court vide order dated 29.05.2019, howe ver, instead of contesting/pursuing Quashment Petition No.266 of 2019, the impugned order has been passed just to frustrate the order passed by this Court. b) The Provincial Government has vested powers under the Ordinance of 1960 to the Deputy Commissioners with the expectations to be unbiased and they are not supposed to react on the reports of subordinate officials and police authorities until and unless they satisfy themselves about the correctness of the same and are supported by the tangible material. The DC had in fact deviated from his one of sacred duties by depriving the petitioner of his liberty; c) The grounds of detention, enumerated in the detention order and memorandum of grounds of detention passed by the Authority in the present case, are vague, passed on presumption and speculation. Merely mentioning word used in Section 3 of the Ordinance of 1960 i.e. "involvement in antisocial activities" is not sufficient to attract the provisions of the said Ordinance; d) It is painfully observed that after obtaining surety from petitioner regarding showing good character and ordering the release of petitioner vide order dated 10th June, 2019, there was no occasion with the authority to withdraw the same that too prior to the release of petitioner from the District Jail, Quetta on the basis of mere suspicion, presumption and speculation;
(e) The impugned order is also not sustainable being passed in violation of the provision of Section 3(6) of the Ordinance, 1960, which provides that the authority shall, as soon as may be, but not later than 15 days from the date of detention, 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 the Government against the order and afford him the earliest opportunity of doing so. The impugned order does not reveal that the same was ever communi cated to the petitioner , thus, the impugned order is also bad in law on this count and not maintainable;
(f) The perusal of record would make it clear that the authority i.e. the Deputy Commissioner , Killa Abdullah has passed the impugned order in a slipshod, cursory manner and thoughtlessly followed the report of the Assistant Commissioner without application of judidial mind whether the case of the petitioner was covered under Section 3 of the Ordinance of 1960 and fulfilled the prerequisites envisaged therein. The powers under Section 3 of the Ordinance could not be invoked for detention of a person on the grounds other than provided for by the law, as such, preventive detention of a person, who is either accused of an offence or convicted for a crime, would not only amount to double jeopardy but would also militate against the spirit of the relevant law, prescribing procedure and penalties for commission of offences, as resort to preventive measures is useful only before commission of the offence and not after the offence has been committed, where-after case is registered and legal process for prosecution of the petitioner is initiated. In such view of the matter , after taking into custody , the petitioner in Crime No.34 of 2019, the issuance of impugned order speaks volumes of mala fides on the part of the authority; and
(g) It is by now well-settled that in order to curb liberty and freedom of individual, substantial material should be placed by the authority in a detention order . We have observed that the impugned order does not carry reasonable substantial material required for detention of the petitioner and curbing his liberty and freedom. Showing reasons and grounds while passing detention order is the duty of the authority . This Court under its Constitutional jurisdiction is bound to scrutinize the material furnished by the detaining authority for detention of any individual.
For the aforesaid reasons, there appears no justification in law for the impugned order , which is, therefore, declared illegal, unlawful, without lawful authority , arbitrary , perverse and of no legal effect. Resultantly , on acceptance of the instant petition, the impugned order dated 26.06.2019 is set-aside and the petitioner be released from jail if not required in any other case.