Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Mst.
Ghulam Sakina has questioned the legality and validity of order dated 11.03.2021 passed by Deputy Commissioner , Sargodha, whereby her husband namely , Mulazim Hussain Shah (hereinafter shall be called as detainee) was directed to be arrested and detained for a period of thirty days with immediate effect in the interest of peace and tranquility of District Sargodha.
2. Learned counsel for the petitioner contends that the petitioner had never been indulged in any activity , which may be prejudicial to the public peace and order but the order impugned for detention of detainee under sub- section (1) of Section 3 of the Punjab Maintenance of Public Order (Ordinance), 1960 is against the law and facts; that there exists no material with respondent No.1 to justify detention of the detain ee, who is a law abiding citizen; that the detainee is an old man with ailing condition and as such he is not in a position to play any role in sectarian/religious affair; that liberty of a citizen is an inalienable right enshrined under the Constitution, which cannot be curtailed merely at the whims and wishes of the executive authority; that the impugned detention order is nothing but nullity in the eye of law and the same is liable to be set-aside.
3. On the other hand, learned Law Officer has endorsed the report and parawise comments submitted on behalf of respondent No.1 and submits that under sub-section (3) of Section 6 of the Ordinance ibid, the petitioner has alternate remedy of filing representation before Government of the Punjab, Hom e department and as such this constitutional petition is not maintainable; that the detainee belongs to Ahl-e-T ashee sect and also an active member of Majlise Wahadatul Muslimeen (MWM); that he was playing active role in instigating the members of his school of thought and creating law and order situation on a dispute with Deobandi sect on account of construction of their respective Masjids in Gujjar Colony Shahpur Saddar; that the impugned order was passed on recommendations, solid information and material provided by the District Intelligence Committee and, thus, the same does not warrant intervention by this Court in Constitutional jurisdiction.
4. I have heard learned counsel for the petitioner as well as learned Law Officer and also gone through the report and parawise comments submitted on behalf of respondent No.1.
5. First of all, I would like to dilate upon the legal objection of learned Law Officer qua maintainability of instant writ petition. Freedom and liberty of every citizen is a fundamental right guarantee d under Articles 4 & 9 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 & 18 of the Constitution. When a person is detained without any just cause, he may invoke the jurisdiction of this Cour t directly under Article 199 of the Constitu tion, if an order is illegal, without having course to alternate remedy . Reliance is placed on case titled 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 PCrLJ 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 upon merits of the case. The report and parawise comments furnished by respondent No.1 demonstrate that there was a dispute of construction of mosques belonging to Ahl-e-T ashee and Deobandi sects and the detainee being activist of Majlis Wahadat-ul-Muslimeen was playing active role in sectarian tension. While forming this opinion no material prejudicia l 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 heaves 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. Neither the detainee was earlier booked in any case of provoking sectarian sentiments nor even a single criminal case was ever registered against him and even, he has no nexus with the dispute of construction of mosque in any capacity whatsoever . If, for the sake of arguments, it is presumed that the detainee participated in any such dispute, the local police has ample authority to lock him under the relevant provisions as provided in Cr.P.C. or sought any bond that in future he will not participate in any such activity but curtaili ng the liberty of a citizen merely on the presumption that he being member of a specific sect, was indulged in creatin g law and order situation, is not appreciable.
8. For what has been discussed above, writ petition in hand is allowed , impugned order dated 11.03.2021 is hereby set-aside and the detainee name ly, Mulazim Hussain Shah is directed to be set at liberty forthwith, if not required to be detained in any other case.