SALAH-UD-DIN, J.- Petitioner namely Abdul Azeem, through instant petition filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 has called in question order of respondent No.1 i.e., District Magistrate/ Deputy Commissioner, Khar Bajaur dated 02.02.2025 issued U/S 3 of West Pakistan Maintenance of Public Order Ordinance, 1959 ("MPO"), whereby petitioner was directed to be taken into custody and detained at Timergara Jail for a period of one month, on the ground that, he intended to disrupt peaceful atmosphere of the District and to challenge writ of the Government, through blockage of public pathway at village Toor Mian Kalay
2. On 11.02.2025, learned Addl: A.G was put on notice with additional direction to submit requisite record of the case, along with para-wise comments. Thereafter, on 13.02.2025 operation of the impugned orders was suspended.
3. Arguments heard; record perused.
4. In essence, main allegation against present petitioner is that he is involved in blockage of public pathway situated within the local limits of Toor Mian Kalay Ali Jan and he was also alleged to have created hurdles in the peaceful atmosphere of the District, however, petitioner has come with his defence plea in terms that the aforesaid pathway is not designated for use of general public at large, rather, in respect of the same a civil suit bearing No. 131/1 of 2023 titled "Mati Ullah v/s Abdul Azeem & others" is pending adjudication before learned civil Court. For issuance of any order U/S 3 of MPO, positive, reasonable and clear picture must be there. It may not be based on vogue, vexatious and imprecise grounds whereas in the matter in hand, the private parties have already made resort of learned civil Court adjudication of their dispute. In such like circumstances, when private, statutory and other vested rights of the parties against each other were alleged and the one of them was allegedly deprived therefrom, then the Court of competent jurisdiction could dilate upon and could proceed with the matter towards its final conclusion, however, any such act could not be considered to be the act prejudicial to the public tranquility. District Magistrate or public functionary could only intervene in the matter when no other appropriate remedy is available to the parties and there exists no dispute between them. The powers to detain is the right to liberty must be harmoniously balanced in the larger interest of the community. The detaining authority or order in that respect could be taken into account, the possibility of the person against whom the order is issued or being released on bail in criminal proceedings having been satisfied with regard to his/ their past activities or by the reason of credible information or cogent reasons.
Only mentioning of the issuance of the order prejudicial to the interest of the public peace or likelihood of the breach of the peace in the society is not sufficient unless the ground exists and are being substantiated through record. Although, any offence committed by the petitioner could be dealt with in accordance with law of the land, however, insofar as the allegations in respect of blockage of pathway at the spot for the purpose of the order issued u/s 3 of the MPO could not be held to be sustainable in the eye of law unless supported by the record. In the case of "Aurangzeb Khan Versus Government f Khyber Pakhtunkhwa (KPK), throulth Secretary Home and 7 others"
(2016 MLD 330), it was 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."
5. No justifiable or specific allegation has been disclosed against petitioner for his detention u/s 3 of MPO. Liberty of citizens has been enshrined by Constitution of Islamic Republic of Pakistan, 1973 and it is the consistent view of the superior Courts that liberty of a person cannot be curtailed on a flimsy, shaky or insufficient material. Reliance is placed on the case of "Federation of Pakistan through Secretary Ministry of Interior Islamabad Vs. Mrs. Amatullah Jalil Khwaja and others"
(PLD 2003 Supreme Court 442), wherein apex Court has held that: "It can be concluded safely that satisfaction can only be based on same evidence or record justifying the detention order which is badly lacking in this case. The learned Deputy Attorney General has stated that sufficient evidence has been collected but nobody knows where is that evidence, what is the nature of sensitivity and why it could not be brought before the learned Single Judge in Chamber. The contention of learned Deputy Attorney General that the said material could only be shown to Review Board is not understandable for the reason that if it could be shown to the Review Board how it could be withheld from the High Court and at the best precautionary measure as mentioned hereinabove could be taken and such evidence could have been produced in the Chambers of learned Single Judge.
In the light of what has been stated hereinabove, we are of the considered opinion that the conclusion as arrived at by the learned High Court being well based does not warrant interference and the detention order could not be justified on the basis of material made available to the learned Single Judge. The petition being meritless is dismissed and leave declined."
More-so, the grounds taken by District Magistrate/ Deputy Commissioner in the impugned order 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 District Magistrate on the basis of material placed before him. In addition to the above, neither learned A.A.G could produce any other record nor as per contents of impugned order, petitioner was apprehended at the spot nor any incriminating material from his direct possession was recovered.
It may be stated here that sufficient materials have neither been gathered nor placed before the District Magistrate fulfilling the requirements of section 3 of the MPO, hence, 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.
6. It is clear from very language of statute used in section 3 of 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, the 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 view of above discussion, issuance of impugned order by respondent/Deputy Commissioner, on the face of it, is illegal and hence the impugned order is liable to be set aside. Hence, this petition is allowed, impugned order is hereby declared illegal, unjust, without justification, unwarranted, as such, same is set aside. However, the state functionaries are at liberty to deal with the offenders of any act/offence but in accordance with law. Since petitioner has already been released on bail, pursuant to interim order of this Court dated 13.02.2025, hence, same order shall be considered as part and parcel of instant order/judgment, under the doctrine of merger.