Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Ch. Farrukh Saeed has questioned the legality and validity of impugned order dated 29.01.2021 passed by Deputy Commissioner , Sheikhupura, whereby his father namely Saeed Ahmad hereinafter shall be called as detainee) was ordered 'to be arrested and detained for a period of thirty-days with immediate ef fect.
2. Learned counsel for the petitioner contends that the impugned order for the detention of detainee under sub- section (1) of Section 3 of the Punjab Maintenance of Public Order (Ordinance), 1960 is against facts and law; that no material existed with Respondent No. 1 to justify detention of the detainee; that the detainee is a law abiding citizen; that the detainee is an old man with ailing condition as such he is not in a position to provoke the community in any manner whatsoever; that liberty of a citizen is an inalienable right enshrined under the Constitution and the same cannot be curtailed merely at the whims of executive; that the impugned detention order is nullity in the eye of law and is liable to be set-aside.
3. On the other hand, learned Law Officer has submitted that under sub-section (3) of Section 6 of (Ordinance) ibid the petitioner has alternate remedy of filing an appeal before the Home Secretary , Government of Punjab, as such this writ petition is not maintainable; that eleven criminal cases of various nature stand registered against the detainee and he was also indulged in provacting the general public to take the law in hand; that the impugned order was passed on the recommendations of District Intelligence Committee, which needs no intervention by this Court in its Constitutional jurisdictions.
4. I have heard learned counsel for the petitioner as well as learned Law Officer and gone through the available record.
5. First of all I would like to dilate upon the objection of learned Law Officer qua maintainability of instant writ petition. Freedom and liberty of a citizen is a fundamental right guaranteed under Article 4 and Article 19 of the Constitution of Islamic Republic of Pakista n, 1973 and its infringement tantamount to violation of fundamental rights enshrined under Article 2-A, 3, 4, 9, 14 and 18 of the Constitution. When a person is detained without any just cause, it amounts to violation of his fundamental rights, then he may invoke the jurisdiction of this Court directly under Article 199 of the Constitution, if order is illegal without having course to alternate remedy . Reliance is placed on case reported as Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur (1999 PCr.LJ 20) wherein it has been 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 Maulana 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 matter of instant nature."
Reference may also be made to the case s reported as "Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others (2016 P Cr U 424) and "Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others (PLD 2015 Lahore 20). Thus, the objection of learned Law Officer qua maintainability of this writ petition is repelled.
6. Now coming to the merits of the case. The report and parawise comments furnished by Respondent No. 1 demonstrate that the detainee is foxhole of criminals and is a sign of fear and terror in the area and he at a number of times instigated general public to take the law into their hands. While forming this opinion no other material except registration of eleven criminal cases against the detainee was placed on record. No material prejudicial to the public peace and tranquility which is a sina qua non for issuance of detention order has been brought on record. The Hon'ble apex Court in the case reported as Mrs. Arshad Ali Khan vs. Government of Punjab through Secretary Home" ( 1994 SCMR 1532 ) has observed as under: "The word 'public order' is accordingly referable to public order of local significance as distinguished from material up heavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order of security of State. Law and order represents the largest circle, within which is the next circle representing public order and smallest circle represent s security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which 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."
7. Even otherwise, mere registration of criminal cases against the detainee is no ground to curtail his liberty , in particular , when admittedly he was not convicted even in a single case till date. Moreover , all the criminal cases registered against the detainee are subju dice, before the Courts of competent jurisdiction, as such his detention under some other law on the basis of said cases tantamounts to double jeopardy , which is violative of Article 12(1)
(b) of the Constitution. Reliance is placed on case reported as "Abdul Rasheed Bhatti vs. Government of Punjab"
(PLD 2010 Lahore 484 ) wherein it has been laid down 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 the 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 F.I.Rs. 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. For what has been discussed above, instant writ petition is allowed as a result whereof impugned order of Respondent No. 1 dated 29.01.2021 is hereby set-aside. The detainee namely Ch. Saeed Ahmad is directed to be set at liberty forthwith if not required in any other case.