Arbab Muhammad Tahir, J.- Through this consolidated order, I shall dispose-of following petitions as common questions of law and facts are involved.- (i). W.P. No.2530/2023 "Niaz Hussain Shah v. The State & others".
(ii). W.P. No.2528/2023 "Ilyas Hussain v. The State & others"
2. The facts relevant for adjudication of the petitions are briefly stated as follow.- W.P. No.2530/2023.
The incharge Police Station Secretariat, Islamabad forwarded request, dated 13.08.2023, wherein it was stated that the son of the petitioner, namely, Syed Junaid Hussain Shah (detenue) is active member of a political party and is inciting public at large to take law into their own hands over arrest of his party leader and requested for proceeding against him under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter the "MPO"). The Divisional Police Officer, City Zone, Islamabad forwarded the request to the Senior Superintendent of Police (Operations), who onward transmitted the information to the District Magistrate ICT, Islamabad. On the same date i.e. 13.08.2023, the District Magistrate passed the impugned order under section 3(1) of MPO for detention of the petitioner for a period of ninety (90) days and committed him to preventive detention.
W.P. No.2528/2023 The incharge Police Station Shahzad Town, Islamabad forwarded request, dated 13.08.2023, wherein it was stated that the son-in-law of the petitioner, namely, Ghulam Nabi son of Ghulam Rasool (detenue) is active member of a political party and is inciting public at large to take law into their own hands and requested for proceeding against him under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter the "MPO"). The Divisional Police Officer, Rural Zone, Islamabad forwarded the request to the Senior Superintendent of Police (Operations), who onward transmitted the information to the District Magistrate ICT, Islamabad. On the same date i.e. 13.08.2023, the District Magistrate passed the impugned order under section 3(1) of MPO for detention of the petitioner for a period of ninety (90) days and committed him to preventive detention.
3. The learned counsel for the petitioners has argued that; the reports submitted by the incharge of police stations are groundless; no evidence of inciting the public at large was either referred to or discussed in the reports as well as the order passed by the District Magistrate; the impugned orders are against the fundamental rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution"); the impugned orders are violative of Articles 16 and 19 of the Constitution; the District Magistrate ought to have satisfied himself regarding existence of sufficient material before proceeding under the MPO; the District Magistrate was vested with power to proceed under section 5, particularly clause (e) of sub- section (1); the District Magistrate acted mechanically; the impugned orders are not sustainable in the eye of law.
4. On the other hand, the learned State Counsel has argued that; the detenues are involved in inciting public at large to take law into their own hands; they are potentially capable to disturb the public peace and act prejudicial to public safety; sufficient information was laid before the authorities by the incharge police stations so as to enable the District Magistrate to exercise authority under the MPO; the preventive detention of the detenues ordered by the District Magistrate is in consonance with law; the District Magistrate has categorically mentioned his satisfaction before issuance of the detention order.
5. Heard. Record perused.
6. Perusal of the written replies submitted by respondent No.2/Deputy Commissioner shows that the detenues were potentially planning to create law and order situation in the area under his jurisdiction on the eve of 14th August. Perusal of the report forwarded by incharge of the concerned police stations shows that the proceedings under the MPO were recommended on altogether different grounds i.e. planning to create law and order situation due to arrest of the head of a political party. The report of the incharge police stations and the ground on the basis of which the District Magistrate exercised powers under the MPO are contradictory.
7. The exercise of authority under the MPO is subject to satisfaction of the District Magistrate that the person required to be detained could act in a manner prejudicial to public safety or the maintenance of public order. The District Magistrate was empowered under section 5(1)(e) of MPO to pass an order requiring the detenues to enter into bonds, with or without sureties for due observance of the directions specified in the order. The order of detention has to further explain as to why the District Magistrate opted to resort to section 3 instead of section 5 of MPO.
8. Through the impugned orders, the District Magistrate has curtailed the liberty of the detenues.
However, he seems to be unaware of the grounds reported by the incharge of the concerned Police Stations. The District Magistrate is required to apply judicious mind while passing an order under the MPO. The impugned orders, the reports forwarded by the incharge of concerned police stations and the replies filed before this Court shows that the impugned orders have been passed by the District Magistrate without applying his judicious mind.
9. The august Supreme Court in the case titled "Federation of Pakistan through Secretary, Ministry of Interior, Islamabad versus Mrs. Amatul Jalil Khawaja (PLD 2003 Supreme Court 442)" has held that an order of preventive detention has to satisfy the following requirements:-- "(i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, nonexisting or irrelevant, the whole order of detention would be rendered invalid; (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide."
10. In the absence of any material/evidence on record, the exercise of authority under the MPO by the District Magistrate is not justified nor warranted. In the case in hand, the orders of detention besides depriving the detenues from their fundamental rights, particularly guaranteed under Articles 9 and 15 of the Constitution, curtailed their rights to approach competent forums against such an order before their arrest and detention. It is for this reason, that the legislature through section 5 of MPO has provided several other alternatives, the density of which as compared to section 3(1) is on lower pedestal. As incorporated in the reply, relying on an altogether different ground, the impugned orders were passed against the detenues, which reveal that the District Magistrate acted in a mechanical manner by merely relying on information laid before him by the police officials, without forming his own independent opinion. This Court is, therefore, of the opinion that the impugned order neither qualify the test of reasonableness nor the Deputy Commissioner was justified in passing the same in the absence of cogent material as to the allegations narrated in the report forwarded by the incharge of the concerned Police Stations. The impugned orders are, therefore, not legally sustainable.
11. For what has been discussed above, both the petitions are allowed. The impugned orders dated 13.08.2023 are hereby set aside. The detenues (Syed Junaid Hussain Shah son of Niaz Hussain Shah and Ghulam Nabi son of Ghulam Rasool) are in prison, they are directed to be released forthwith, if not required to be incarcerated in any other case.