SADIQ MAHMUD KHURRAM, J:- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 04.07.2019 passed by the Deputy Commissioner, Bahawalpur, respondent No.3, whereby the detenu, namely, Muhammad Irfan alias Fouji son of Qamar ud Din was ordered to be arrested and detained for a period of 30 days with immediate effect. It was further ordered that the custody of the detenu, namely, Muhammad Irfan alias Fouji son of Qamar ud Din shall be placed under the superintendence of Superintendent, New Central Jail, Bahawalpur.
2. In compliance of the order dated 24.07.2019, respondent No.3, Deputy Commis sioner , Bahawalpur has filed his report and parawise comments.
3. Learned counsel for the petitioner has argued that the order passed by Deputy Commissioner , Bahawalpur , respondent No.3, under sub-section-1 of section-3 of the Punjab Maintenance of Public Order Ordinance, 1960 is against the facts and law; that no mate rial existed to justify the detention of the detenu in the circumstances existing; that there was no sufficient cause available with the respondent No.3, Deputy Commissioner , Bahawalpur , to pass the said order; that it is not necessary to file representation before Home Secretary, Government of the Punjab, Lahore as declared by this Court in several judgments. It has been, thus, ultimately prayed that by allowing the writ petition, the impugned order of Deputy Commissioner, Bahawalpur (respondent No.3) dated 04.7.2019 may be declared as illegal, unlawful, void-ab-initio and the detenu namely, Muhammad Irfan alias Fouji son of Qamar ud Din be set free immediately.
4. On the other hand, learned Assistant Advocate General has vehemently argued that petition in hand is not maintainable as the petitioner has remedy to file representation under sub-section 6 of section 3 of the Punjab Maintenance of Public Order Ordinance 1960 and that the order passed by respondent No.3, Deputy Commissioner , Bahawalpur is valid and passed on cogent material. He has further contended that the writ petition is incompetent as the remedy provided by filing representation before the Govt. under sub-section (6) of section 3 of West Pakistan Maintenance of Public Order Ordinance 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 of the Islamic Republic of Pakistan, 1973 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.
5. In order to understand the legal aspe ct of the case it would be beneficial to reproduce 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 unde r 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 thing 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 Office r 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."
6. The Constitution of Islamic Republic of Pakistan, 1973gurantees that no person shall be deprived of 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 articles 2-A, 3,4,9,14 & 18 of the Constitution of Islamic Republic of Pakistan, 1973.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). Reliance is placed on "Abdul Latif Shamshad Ahmad vs. District Magistrate, Kasur (1999 PCr.LJ 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 (Iasarat) 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 matter of the instant nature. This objection of the learned Assistant Advocate General is overruled. "
Reliance is also placed on the cases of "Mst. Sana Iamil Vs Government of the Punjab through Secretary and 5 others" (2016 PCr.LJ 424 ) and "Syed Mubbashar Raza Vs Government of Punjab through Secretary Home Department and 2 others" (PLD 2015 Lahore 20). Keeping in view the law laid down in judgment supra the objection of the learned AAG is overruled.
7. Now coming up to the merits of the instant case; the detenu, namely, Muhammad Irfan alias Fouji son of Qamar ud Din cannot be detained merely on the grounds that eight 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. In the report filed by respondent No.3, Deputy Commissioner, Bahawalpur, list of eight cases have been annexed wherein the detenu was involved, however out of said eight cases five of the cases relate to the year 2011 wherein current status has not been mentioned whereas in the other three cases petitioner is facing trial. None of the above mentioned cases are regarding the breach of peace or public tranquility. No material is available on record to justify that the petitioner created disturbance in maintaining law and order situation in the vicinity. Deputy Commissioner, Bahawalpur, respondent No.3, while passing the said order has not preferred any such material for justifying the detention of the detenu. The august Supreme Court of Pakistan has clearly laid down guideline in the case titled "Mrs. Arshad Ali Khan VS Government of the Punjab through Secretary Home (1994 SCMR 1532) in the following unequivocal terms: - "The word 'public order' is accordingly referable to public order of local significance as distinguished from national up heavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State.
From the above-stated legal position, it is quite clear that before an act is held to be prejudicial to public order, it may be shown that the act or activity is likely to affect the public-at-large. As a corollary, therefore, it follows that an act which concerns only to an individual and does not amount to an activity prejudicial to the public peace and tranquility cannot fall within the ambit of section 3 of the Ordinance."
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 and facing trial in the said cases. Moreover, even the Apex Court of the country does 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 as in that instance the Court 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 detenu Muhammad Irfan alias Fouji son of Qamar ud Din is curtailed merely on the ground of pendency of cases otherwise there is no other apprehension to 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."
8. In view of the above detailed discussio n, there is no evidence collected by the concerned authority due to which detention of the detenu under section 3 of the Punjab Maintenance Public Order Ordinance, 1960 can be said as justified and there is no justifiable reasons available for detention, therefore, the impugned order dated 04.07.2019 passed by respondent No.3, namely , Deputy Commissioner , Bahawalpur , is set aside and declared as illegal without any lawful justification and ineffective upon the rights of the detenu. Consequently , instant writ petition is allowed . The detenu namely Muhammad Irfan alias Fouji son of Qamar-ud-Din is directed to be released forthwith if not required in any other case and set at liberty .