' Through this Constitutional petition Shan Muhammad petitioner wants this Court to declare the order, dated 5-7-1988 of District Magistrate, Bahawalnagar, in pursuance whereof Mst. Rani (hereinafter to be referred as the detenu) has been detained in jail for 3 months on the grounds:- "(a) that you are in the habit of committing offences under moral turpitude under section 294, P.P.C. For which cases F.I.Rs, Nos. 245/84, 279/84, 210/85, 148/87, 200/88 and 201/88 were registered against you at P.S. City Bahawalnagar in which you were challaned and convicted.
(b) that you have been committing obscene acts in the public places to the annoyance of others and as such your activities have been prejudicial to the public decency, safety or maintenance of public order." to be without lawful authority and of no legal effect.
2. Learned counsel contended that the ground of detention at No, (a) is irrelevant to section 3 of the Maintenance of Public Order Ordinance, 1960; that ground at No, (b) is vague inasmuch as it does not reveal as to when and where the detenu had been committing obscene acts in public and to the annoyance of whom; that since the detenu had made complaints against the local police, therefore, the police got her detained in order to teach her lesson and that the learned District Magistrate simply acted in a mechanical manner without applying his mind to the grounds of the detention and the relevant law. The learned Assistant Advocate-General has supported the order of detention.
3, I have considered the submissions made by the learned counsel for the parties with care. I feel that the powers under section 3 of Maintenance of Public Order Ordinance, 1960 have in fact been misused in the case in hand and the detenu has been detained without legal justification whatsoever. Section 294, P.P.C. May be reproduced advantageously: ' OBSCENE ACTS AND SONGS;-- Whoever, to the annoyance of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to 3 months, or with fine or with both.
The object of preventive detention is not to punish a bad person for having committed offence under moral turpitude, but to incarcerate, he may indulge in something which the authorities may term as nefarious or prejudicial to A. Public safety or the maintenance of public order. The detenu is a lady with suckling baby aged about one year. She was never involved in a crime of violence. The offence of committing obscene acts at public places by a woman can hardly be declared to be act prejudicial to the public safety or maintenance of public B order within the meaning of section 3 of the Maintenance of Public Order Ordinance, 1960. I fail to understand as to how a single woman indulging in obscene activity can be a terror to the public safety or to the maintenance of public order. So, there could be no satisfaction on the part of the District Magistrate as to the likelihood of the detenu indulging in activities which would jeopardize the public security or public order. Ground No, (a) was, therefore, irrelevant for the purposes of section 3 of the Maintenance of Public Order Ordinance, 1960. Adverting to ground at No, (b), I feel that this is covered under ground No, (a) and is not any independent ground. Be that as it may, this is a vague ground. It does not disclose the time and place of the commission of obscene act and the names of the persons annoyed thereby.
This ground is hazy, uncertain, doubtful and indefinite. The law requires that the detenu should be furnished with particulars of the grounds of the detention sufficient to enable her/him to make effective representation which on being considered may give her relief but this has not been done in this case. The complaint of the learned counsel for the detenu in the peculiar circumstance of the case rings true. It seems to me that on the report of the local police placed before him, the learned District Magistrate passed the order of the detention of the lady detenu without examining the ground as well as relevancy thereof to the Maintenance of Public Order Ordinance, 1960. No doubt, the power of the District Magistrate to detain a person is not a quasi-judicial power but it does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial review. The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The satisfaction of the District Magistrate, that the detention was necessary for preventing a person from acting in a prejudicial manner did not mean that order of detention should be made in pursuance to the police recommendation without directing mind expressly to those grounds in the light of the terms prejudicial to the public safety or maintenance of public order. It seems to me that in exercising his powers under section 3 of the Maintenance of Public Order, the District Magistrate has simply acted under the dictation of the police and has not applied his independent mind to the grounds for the detention of the detenu. The object of the provisions of section 3 of the Maintenance of Public Order Ordinance, 1960 is good to mankind and not to chain people and fetter their liberty unnecessarily or on the dictation of somebody else. There is always a danger that the Government conducted largely by bodies of officials who are naturally more concerned with expediency than with the rights of the citizen, may easily overstep bounds of justifiable public control and this has virtually happened in this case. Unless this tendency is kept under constant review and scrutiny it can very easily develop into despotism.
4. I have noted it with concern that in the instant case the learned District Magistrate has not only deprived Mst. Rani of her liberty unnecessarily but has also exposed her one year old suckling baby to danger and deprived him of mother's love and protection during the time she remained in the jail.
5. Since in case of illegal detention the detaining authority can be burdened with costs by this Court, therefore, the learned District Magistrate, Bahawalnagar will be careful in future and will act strictly in accordance with the provisions of the Maintenance of Public Order Ordinance, 1960 while depriving a person of his liberty. The carelessness with which the impugned order has been passed is obvious from the facts that the grounds of detention show that the petitioner was detained for 3 months whereas the order of the detention reveals that the petitioner was ordered to be detained for one month. It may be noted that quite contrary to the order of detention, the detenu has been detained for 3 months in the jail.
6. In pursuance of the above discussion, the order of the detention of Mst.1 Rani passed by the learned District Magistrate, Bahawalnagar is declared to be! Illegal and without lawful authority.
She shall be released forthwith if not required to be detained in any other case. .