WIQAR AHMAD, J. This order is directed to dispose of W.P. No. 1156-M/2019 filed by the petitio ner against respondents under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The petitioner in the instant petition has been alleged to be dealing in the business of narcotics. He was further alleged to have been booked in a numbe r of criminal cases registered under the relevant law but he had not been mending his ways, the local administratio n therefore felt the need of his arrest and detention under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter referred to as "MPO" ). The impugned order of the petitioner giving reasons for his detention is reproduced hereunder for ready reference; "Subject: CHARGE UNDER SECTION 3 OF THE WEST P AKIST AN MAINTENANCE OF PUBLIC ORDER 1960.
Whereas it has been reported by District Police Officer Dir Upper vide letter No. 4987/GB dated 16.10.2019 that one Mr. Anwar s/o Zol Khan r/o Sankor Tehsil Wart, District Upper is involved in drugs peddling/sale of drugs and several FIRs have been registered but still has not mend his behavior and continuously involved in drug peddling/sale, which is not only creating inconvenience amongst the general public but also destroying young generation and has requested to book the accused under section 3 MPO.
Whereas the local police reported that FIRs have been registered against the above named accused being habitual drug seller but he is still at large selling drugs which is a threat to peaceful atmosphere of the District and young generation too.
Whereas, his this business is adversely affecting the young generation and disrupting peaceful atmosphere of the District. It is necessary that he be kept under detention in larger interest of the general public especially young generation as such open sale of drugs/hashish not only destroying future generation but also disrupting peaceful atmosphere of the District as drugs addicted person using every means to receive drugs i.e. Theft, rubbery , murder etc. Given under my hand and seal of the Court this Monday October 21, 2019.
The petitioner filed the instant petition challenging the vires of the order and the authority of the Deputy Commissioner concerned to issue the order of his detention under section 3 of the MPO.
3. Learned counsel for petitioner have mainly agitated that the law relating to maintenance of public order cannot be invoked for dealing with the cases of persons alleged to have committed other crimes or apprehended to commit such other crimes. He added that even if the allegations of commission of the offences were taken to be true, then the remedial measures provided under the law dealing with the Control of Narcotic Substances Act could have been resorted to against the petitioner and he should not have been booked under MPO.
4. The learned Adll: A.G. appearing on behalf of State/respondents submitted during the course of his arguments that an efficacious alternate remedy is available to the petitioner , therefore the instant writ petition is not maintainable. He further added that the petitioner may file a representation before the government and after its disposal he can approach this Court only .
5. We have heard arguments of learned counsel for the petitioner and learned Adll: A.G. appearing on behalf of the State and perused the record.
6. The main issue in the instant writ petition is the validity of the exercise of authority by the Deputy Commissioner concerned under MPO. Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution" ) enlist the security of persons as a fundamental right and says that no person shall be deprived of life or liberty save in accordance with law. The framers of the Constitution have taken additional safeguards by putting safeguards as to arrest and detention in Article 10 of the Constitution, in detail. The general course in case of arrest of an individual is that no person shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice, Any person so arrested and detained in custody was required to be produced before a Magistrate within a period of twenty-four hours of such arrest according to Sub-Article 2 of Article 10 of the Constitution. Sub-Article 3 of Article 10, no doubt provides that the above stated provisions of law shall not apply to the persons arrested or detained under any law providing for preventive detention but the contours, limitations and subject of such laws have been provided for in Sub-Articles 4, 5, 6, 7 and 8 of Article 10 of the Constitution. There are very few articles in the Constitution which deals with the subject in such a minute detail as Article 10 of the Constitution has provided the safeguards against arrest and detent ion in its minute details. This is clear that the framers of the Constitution took great pain for ensuring the liberty of the citizens of the State and for taking proper safeguards against unlawful arrest and detention by the State authorities. A balance has also been tried to be struck between the right of liberty of an individual and maintenance of public peace, order and harmony in the society . Any law providing for preventive detention has to be complaint with the mandate of Article 10 of the Constitution and only then can it be saved from the operation of Sub-Articles 1 & 2 of Article 10 of the Constitution.
7. West Pakistan Maintenance of Public Order Ordinance, 1960 is one such law providing for preventive detention.
The question before this Court in the instant proceedings is, as to whether cases of drug peddlers can be dealt with under this law or not? Permeable to the MPO provides for amending and consolidating the law relating to preventative detention and control of persons and publications connected with the maintenance of public order in former West Pakistan. Section 3 of the MPO provides that if government is satisfied that any person is acting in a 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 of such person for such a period not exceeding six months at a time. Sub- sections 1 of 2 section 3 of the MPO are relevant for the present discourse, same are therefore reproduced hereunder for ready reference;
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 sub-secti on (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, extend from time to time the period of such detention, for a period not exceeding six months at a time.
Explanation. 1 For the purposes of this section
(i) 'dealing in the black-market' or 'hoarding' as defined in the Hoarding and Black Market Act, 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 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, or remains or becomes a member of such an association or is on the Executive Committee thereof after it has been so declared to be unlawful shall be deemed to be acting in a manner prejudicial to be public order for the purposes of this section.
The said section gives powers to the government, or the Deputy Commissioner to whom such authority has been devolved, to act against a person when his conduct is found prejudicial to the public safety or maintenance of public order . The words dealing in black-market or hoarding as defined in the Hoarding and Black Market Act, 1948 and 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, has also been included in the definition of act prejudicial to the maintenance of public order , by introducing a deeming clause contained in explanation 1 to sub-section 1 of section 3 of MPO.
Similarly , explanation 2 of sub-section 1 of section 3 of MPO also provides that 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 and he remains or becomes a member of such an association thereafter shall be deemed to be acting in a manner prejudicial to the public safety and maintenance of public order . The net effect of above- mentioned provisions may be summarized as follows.
Those persons may be subjected to an order under section 3 of the MPO;
(a) Who acts prejudicially to public safety or maintenance of public order .
(b) Who deals in black market or hoarding as defined in the Hoarding and Black Market Act, 1948.
(c) Smugglers whose acts are punishabl e under the Sea Customs Act, 1878 or the Land Customs Act, 1924 or under any other law for the time being in force.
(d) 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 and he remains or becomes a member of such an association thereafter .
Without these classes of cases, the provisions of section 3 MPO may not be appli ed to any other cases of crimes etc.
8. The Hon'ble Supreme Court of Pakistan in the case of "Mr. Arshad Ali Khan v/s Government of Punjab"
("1994 SCMR 1532 ") was dealing with the case of the detenue namely Arshad Ali Khan who had been alleged to have threatened the members of United State Embassy , of kidnapping one of the American in Lahore for preventing the extradition of his younger brother namely Nasir Ali Khan who had then been confined in central jail Rawalpindi on the charges of drug trafficking. Detention order of the detenue had been issued by the concerned authorities under section 3 MPO which was the subject-matter of adjudication in the said case. The Hon'ble Apex Court after a survey of case law from Indian Jurisdiction observed as follows; In the case before us, the petitioner has been charged with the activity of extending threats to the Consulate-General of U.S. at Lahore. The police in this connection has already registered' a case against him under sections 182/21 1/225/225-B and 506, P.P.C. under No. 173, dated 28-8-1993. This clearly shows that the detenu was accused of substantive offences under the penal law and, therefore, preventive detention on the same allegation could not be justified in law. In the order extending the detention of the petitioner , it is specifically mentioned that on 21-9-1993 a letter was received in the office of the Consulate- General of U.S. addressed to the Principal Officer in' which a warning was contained about a planned assassination of the Consulate-General by the brother of an arrested drug? trafficker , Nasir All Khan. It is an admitted position in the case; that the detenu was arrested by the police under the orders of respondent dated 21-7-1993 and on the date, the letter alleged to have been received by the office of Consulate-General of U.S. at Lahore, the detenu was already under the preventive detention. The grounds Nos. l and 2 mentioned in support of the order dated 20-10-1993 are mere repetition of the two grounds mentioned in the order dated 21-7-1993. The 3rd and 4th grounds which were appended as additional grounds in support of the order dated 20-1-1993, in our view , do not come within the mischief of disturbing the public order .
The 3rd ground refers to certain threats given by some narcotic dealers to the Government to pressurize the Government of U.S. to soften its stance on extraditing drug fugitive. There is no allegation that the detenu is a drug-traf ficker . On the contrary , from the biographic data supplied to this Court, it appears that he is engaged in a profession which has nothing to do with the drug-traf ficking. Similarly , ground No.4, which is mentioned in support of order dated 20-10-1993, is totally vogue and bears no nexus with the object of the statute under which the order was passed by the respondent for preventive detention of the detenu. Considering the grounds of detention as a whole we, in the light of preceding discussion, we are of the view that the allegation against the detenu did not constitute activity which by any standard of reasoning could be judged as prejudicial to the maintenance of public order .
9. The words "public safety and order" though have not been defined in the MPO but the Hon'ble Apex Court in the case of Mr. Arshad Ali Khan Supra had defined the words public order as an activity which was likely to affect the public at large. It has also been laid down that an act which concerned only an individual and did not amount to an activity prejudicial to public peace and tranquility cannot fall within the ambit of section 3 of the Ordinance. After finding the said definition it was held that the case of husband of the petitioner in the said case namely Arhad Ali Khan, had not been falling within the purview of section 3 of the MPO. A similar view had earlier been taken by the Hon'ble Karachi High Court in its judgment given in the case of "Liaqat Ali v/s Government of Sindh" reported as. "PLD 1973 Karachi 78 ", wherein the Hon'ble Court has held as follows; "Now by bringing definite charges against the detenu under section 363/36 6, P.P.C. and section 353/566, 13,13,C and by subjecting the detenu to prosecution for these offences, the local administration made up their mind and their choice, that is, that the detenu should be prosecuted for the alleged offences. Having made the choice that a person should be prosecuted in Court for commission of an offence, it would ordinarily not be open to the authorities to also use this charge as a ground of preventive detention under the Ordinance".
10. In the case in hand the allegation against the petitioner has been that he had been selling drugs to the people and his dealing in such business had been found prejudicial to public safety and order . No allegations of smuggling has been mentioned in the order of detention of the petitioner issued under section 3 of MPO. In the cases in hand, we also found that the alleged act of the petitioner had got no nexus with the purpose and object of the MPO. If the government wanted to deal with him they had at their disposal a robust legal regime in the form of Control of Narcotic Substances Act, 1997 wherein the legislature has taken care to deal with all aspects of the business in trade of narcotics. The petitioner even if found to have been dealing with any such business of selling narcotics, may have been dealt with under the provisions of said law. Recourse to the provision of section 3 MPO was not at all justified in the circumstances of the case.
11. As far as the objection of learned Adll: A.G. regarding provision of alternate remedy is concerned, it is important to be noted here that the order of detention passed in respect of the petitioner was found to have been suffering from jurisdictional defect and passed without lawful authority . In such circumstances, when the liberty of the petitioner is at stake, the existence of alternate remedy would not prevent this Court from exercising its jurisdiction.
The Hon'ble Supreme Court of Pakistan in the case of "The Murree Brewery Company Limited v/s Pakistan through the Secretary to government of Pakistan. Works Division and 2 others " reported as "PLD 1972 Supreme Court 279 " had held as follows; "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as 'the C. D. AO to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility . It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (PLD 1961 SC 119), that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly , without authority ."
In the case in hand also the petitioner had questioned the very authority of the concerned Deputy Commissioner to have passed the impugned order under section 3 of MPO. Same was found by this Court to have been suffering from jurisdictional defects as well. We would, therefore, not refrain from exercising our jurisdiction just because of the existence of an alternate remedy .
12. In light of what has been discussed above, the instant writ petition is allowed, the order impugned herein is declared to have been passed without lawful authority , in an unlawful manner and resultantly set aside.
13. These are the reasons for our short order of even date.