MUHAMMAD HASHIM KHAN KAKAR, C.J. Through the instant petition, the petitioner, viz. Umer, seeks a declaration to the effect that his detention under section 3(1) of the West Pakistan Maintenance of Public Ordinance, 2002, is illegal and unconstitutional.
2. According to the petitioner, on 07.10.2024 at about 1:00 p.m. when he was on his way home, some officials in civil dress, introducing themselves to be personnel of law enforcing agencies, took him away to some unknown place. When he did not reach at home after a considerable time, his family members started looking for him and finally came to know that the petitioner has been detained in District Jail, Loralai under the provisions of West Pakistan Maintenance of Public Ordinance, 2002 in compliance of order dated 07.10.2024, issued by the Deputy Commissioner, Loralai (respondent No.2), hence this petition.
3. We have heard Mr. Sarwar Khan, Mandokhail, learned counsel for the petitioner, Mr. Zahoor Ahmed Baloch, learned Additional Advocate General for respondents and also perused the impugned order dared 07.10.2024, which reads as under: "DETENTION ORDER WHEREAS, it has been reported by the Senior Superintendent of Police Loralai vide letter No.20220/PB dated 06th October, 2024, that one suspected accused person Umer son of Kamal ud Din Caste Kudezai resident of Killi Zangiwal Tehsil Bori District Loralai, is disturbing the Law and Order situation by taking active part in outlaws, suspected and found involved in anti-social activities, which is likely to adversely affect the public safety, order and the maintenance of Law and Order.
AXE WHEREAS, there are reasons to belief that the presence of the above-mentioned person in Loralai District is likely to further aggravate the situation, NOW, THEREFORE, I, Meeran Khan, Deputy Commissioner Loralai in exercise of the powers Conferred upon me by sub section (1) of 3 of the West Pakistan Maintenance of Public Ordinance, 2002, pleased to order the detention of the above mentioned person in District Jail, Loralai for period of (30) days (1st Term) from the date of detention w.e.f. 07th October, 2024.
Nobody except "Blood Relation" will be allowed to visit him in judicial custody during the confinement period.
This order shall remain enforced for a period of thirty (30) days from the date of issue unless withdrawn earlier."
4. The Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), guarantees certain fundamental rights to its citizens, including the right to life, liberty, and security. Article 4 of the Constitution states that every citizen has the right to enjoy the protection of law and to be treated in accordance with the law. This provision underscores the importance of safeguarding individual liberties against arbitrary state action. In the context of constitutional rights, the interpretation of laws that curtail the liberties of citizens is a critical aspect of legal jurisprudence. The principle of strict interpretation is grounded in the understanding that any law, which imposes restrictions on fundamental rights, must be clear, precise, and unambiguous. Fundamental rights are paramount to ordinary state-made laws and cannot be curtailed without clear legislative intent and such law is required to be scrutinized rigorously to ensure it does not violate constitutional guarantees.
5. Considering the impugned order on the touch stone of the above settled principles of law, we are of the considered view that the same is based merely on surmises and conjectures and detention of the petitioner is neither justified and reasonable nor in accordance with constitutional provisions.
Despite availing a number of opportunities, the respondents have failed to produce a single document or credible evidence to substantiate the claim of potential harm to public order.
6. Section 3 of the MPO, 2002 empowers the government to detain a person if it is satisfied that such detention is necessary to prevent that person from acting in a manner prejudicial to public safety and maintenance of public order. Keeping in view the liberty of citizens and constitutional guarantees, the law mandates that the authority issuing the detention order must provide clear and cogent reasons for such action, supported by material evidence. The order under section 3 MPO must be based on concrete material that justifies the necessity of preventive detention. The Deputy Commissioner must not act arbitrarily or capriciously; rather, the decision must be based upon credible evidence that substantiates the claim of potential harm to public order.
7. Similarly, the impugned order fails to articulate the reasons for detention. It is mandate of law that the authority must provide a reasoned order that reflects the application of mind to the facts of the case and the failure to provide reasons for detention has rendered the impugned order illegal and void. While holding this view, we are fortified from the dictum laid down by the Hon'ble Supreme Court in the case titled as "Federation of Pakistan v. Amatul Jalil Khawaja" (PLD 2003 SC 442), which held as under: "An order of preventive detention is to satisfy the requirements laid down by their Lordships of the Supreme Court that is to say, (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, non-existent 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."
8. Learned Additional Advocate General while not feeling himself to refute the contention of the learned counsel for the petitioner, urged for dismissal of the instant constitutional petition on the ground that the petitioner has an alternate remedy under the provisions of the Ordinance, 2002. In this regard, we are in agreement with the learned Additional Advocate General that invoking of constitutional jurisdiction of this Court instead of availing of remedy provided, for under the relevant law would only be justified when the impugned order/action was palpably without jurisdiction as to force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper. However, keeping in view the peculiar circumstances of the case, the impugned order is not only palpable but also bereft of any legal reasoning. It has been passed on 07.10.2024 and is scheduled to lapse after 5/6 days. In the given circumstances, issuance of direction to the petitioner for availing the alternate remedy will be an exercise in futility and will not serve the ends of justice.
In light of the above analysis, it is evident that the Deputy Commissioner, Loralai acted beyond the scope of his authority by issuing a detention order without any material evidence and through a non-speaking order based on surmises and conjectures. Such an order is not only arbitrary but also violates the fundamental rights guaranteed under the Constitution of Pakistan. The detention order is hereby declared illegal, unlawful and without lawful authority. The petitioner Umer son of Kamal ud Din is to be released forthwith unless required in connection with any other case.