MUHAMMAD NAEEM ANWAR, J. Impugned herein is order dated 24.11.2022 of respondent No.2 i.e., District Magistrate/Deputy Commissioner, District Dir Upper issued u/s 3 of the West Pakistan Maintenance of the Public Order Ordinance, 1960 (hereinafter referred to as "MPO"), whereby the petitioner was ordered to be taken into custody and detained at Central Jail Haripur for a period of one month, on the allegations of his involvement in illicit cutting of precious forest trees and its smuggling by causing a huge loss to the public exchequer.
2. In view of the grounds taken by the Deputy Commissioner for issuance of the impugned order, we have directed the personal appearance of SDFO Wari Range, SDFO (litigation) and Forester of Karo Block, who are present before the Court. Learned A.A.G produced complete record, which reflects that the Deputy Commissioner was requested by the Divisional Forest Officer through letter bearing endorsement No.2620-22/G dated 16.11.2022 regarding offence committed at Karo Block of Forest Range Wari dispatched vide No.2619/G by the present petitioner alongwith others pertaining to illicit cutting of the forest tress on the following grounds: 1) The offenders are forcefully cut trees which will have bad effect on the environment of the area.
2) Being joint property, their act further motivates others to act illegally in cutting of forest in the area.
3) The offenders have involved themselves in illicit activity of deforestation.
4) They have inflected irreparable damage and loss to the forest wealth and Nation kitty which in turn have destructed/degraded existing Eco-system of all living organisms.
5) They are acting in a manner which has become prejudicial to public safety and maintenance of peaceful atmosphere in Upper Dir Forest Division.
6) The offender at serial No. 1 has already been charged under 3MPO, and his arrest is yet to be materialized.
7) The offender namely Mr. Taj Rasool S/o Mintaj has given an affidavit to your good self-stated that he will never be involved in illicit cutting of forest in future, and if founded involved he is liable to be punished under the law accordingly.
3. At the very outset, when SDFO Wari, District Dir Upper was questioned about the initiation of proceedings under the MPO against the present petitioner, he stated at the bar that for illicit cutting on part of the present petitioner, certain damage reports have also been issued, wherein he has been charged for violation of the relevant provisions of the Forest Ordinance, 2002, however, in some of the cases, he has been convicted and sentence on the plea of his guilt by the Forest Magistrate. He further submitted at the bar that when the order is passed by this Court in constitutional jurisdiction challenging therein the order issued by the competent authority under section 3 of MPO, ordinarily, the learned Forest Magistrates acquit the accused in the case pending before him. At this juncture, the learned A.A.G submitted at the bar that when relevant provisions of law regarding commission of offence are available then the offenders are required to be charged under those relevant provisions of law and as such there is no need for issuance of order under MPO.
4. The impugned order reflects that main allegations against the petitioner are regarding illicit cutting of precious forest trees and its smuggling from compartment No.8 Karo Block of Forest Range Wari, District Upper, for which the accused/petitioner is facing trial before the Forest Magistrate. It is reflected from the record that earlier WP No.1068-M/2022 was filed by the petitioner alongwith one Moin-ud-Din against the respondents before this Court, which writ petition was dismissed by this Court on 25.10.2022 having become infructuous after lapse of the period as reflected in the impugned order of said writ petition. For invoking the provision of section 3 of MPO, the grounds taken by the District Magistrate/Deputy Commissioner in Para No.3 of the impugned orders are not sufficient as same do not fall within the ambit of section 3 explanation I & II, subsection 2 of section 3 and sub section 3 of section 3 of the ibid Ordinance which requires satisfaction of the District Magistrate on the basis of material placed before him within the parameters discussed above but in the matter in hand the SDFO and Forester submitted at the bar as per damage reports and the contents thereof, the petitioner was neither apprehended at the spot nor any incriminating material from direct possession of petitioner was recovered thus, the satisfaction of the learned District Magistrate is lacking in the circumstances of the case. This Court in the case of Mian Khan Versus Deputy Commissioner, Haripur and others (PLD 2016 Peshawar 89) has held that: Deputy Commissioner, Haripur, blindly and thoughtlessly followed the report/memo of the DPO, without application of mind whether the case of the petitioner was covered under Section 3 MPO and fulfilled the pre-requisites laid down therein. Needless to say, that it has consistently been held umpteen times by the Courts that powers under Section 3 MPO could not be invoked for detention of persons 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 perpetrator is initiated.
5. It has been held time and again not only by this Court but by the apex Court as well that whenever any particular offence is committed by an individual, he must be charged under relevant provisions of law and not under the provision of Maintenance of the Public Order Ordinance, 1690. In the case of "Aurangzeb Khan Versus Government of Khyber Pakhtunkhwa (KPK), through Secretary Home and 7 others" (2016 MLD 330) has observed that: The reasons rendered in the impugned order for detention of the petitioner could not be materialized by the respondents through evidence showing the indulgence of the petitioner in any sort of anti-social activity. A person, even with the alleged track record, as that of the suspect 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. The material placed before the Court was not providing any legal justification to issue the order of detention. In the peculiar facts and circumstances of the present case, the involvement of the petitioner on account of political rivalry, as alleged by the learned counsel for the petitioner, could not be ruled out.
6. It is clear from the very language of the statute used in the section 3 of the Ordinance of 1960 that "satisfaction" of the executive is sine qua non and is qualified with eventuality of "it is necessary so to do". It manifests that "satisfaction" is to be objective in nature and not subjective to allow the authorities to act on whims and caprices without there being material before them in support of grounds of detention. Had it not been the intention of the legislature, words "it is necessary so to do" would not have been used to demonstrate without ambiguity that "satisfaction" is subjective in nature. Neither any order could be passed by the authority without objective satisfaction nor anyone could be detained because any such detention amounts to illegal confinement which is unwarranted, unjustified and unconstitutional. Reliance is placed on the case of "Mrs. Majeeda Fatima versus District Magistrate and Deputy Commissioner, District central, Karachi and 3 others" (PLD 1990 K 470).
7. In addition to above, when trial against the petitioner has already been commenced before the Forest Magistrate, allegations against the petitioner for alleged illicit cutting of trees shall be dealt with by the competent Court in accordance with law by said forum, however, in view of the aforesaid reasons, issuance of impugned order by respondent No.2, on the face of it, is illegal and as such is liable to be set aside.
8. Hence, for the reasons discussed above, the instant petition is allowed, the impugned order is declared illegal, unjust, without justification, unwarranted, as such, same is set aside, consequently, the petitioner is directed to be released forthwith from jail if not required in any other case.