' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the validity of the order of the District Magistrate, Kasur, dated 20-9-1989 made under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 directing the detention of the petitioner's son Muhammad Aslam for a period of two months.
2. The impugned order states that the District Magistrate was satisfied on the basis of the record placed before him and the enquiry conducted through secret means that Muhammad Aslam son of Muhammad Siddique 'is involved in 22 cases (details given in the grounds of detention attached with the order) and indulging presently in activities prejudicial to the maintenance of public order and safety. He is an incorrigible criminal and is acting in a manner prejudicial to the public safety and maintenance of public prder and I am satisfied that with a view to preventing him from acting in such manner, it is necessary to arrest and detain the said Muhammad Aslam'. In the grounds of detention of accompanying the impugned order, it is stated that the petitioner was involved/challaned in 22 criminal cases mentioned therein. Further ground stated is that 'I have enquired through secret means that you are still continuing your nefarious activities and are likely to continue the said activities which are prejudicial to the maintenance of public order.
Considering your past record and present activities, I am satisfied that your detention is necessary in order to prevent you from acting as such'.
3. I have heard the learned counsel for the petitioner as also the learned Advocate-General. It is stated that out of 22 cases, 9 cases were under Arms Ordinance, 5 of theft, one of gambling, one under section 307/34, P.P.C. And 6 under the Prohibition Order. Learned counsel for the petitioner states that the detenu is in jail and he has filed this petition on the instructions of his mother, the present petitioner who has no knowledge about the fate of these cases. He, however, submits that most of the cases were registered as far back as the years 1972, 1978, 1979, 1982, 1983, 1985, 1986 and 1987 and they must have been decided. Learned Advocate-General has also no information in this behalf. Be that as it may, the contention of the learned counsel for the petitioner is that mere registration of cases is not a valid and legal basis for ordering detention under section 3(1) of the Ordinance. Learned counsel has also submitted that it is incorrectly stated in the impugned order and in the grounds of detention that the District Magistrate made any secret enquiry about the detenu's so-called `nefarious activities'. Learned Advocate-General appearing for the respondents is not in a position to controvert the contentions made on behalf of the petitioner.
4. I have considered the submissions made by the learned counsel for the petitioner. There is considerable force in his contention that mere fact that the detenu has been involved in a number of criminal cases is, per se, not a valid ground for preventive detention. Law is well-established that when a person has been prosecuted on a criminal charge, the same material should not, in fairness, be taken as a reasonable basis for ordering his detention. Refer Shahidul Hague v.
Government of East Pakistan 1969 P Cr. L J 449. Reference may also usefully be made to Liaquat Ali v. Government of Sindh PLD 1973 Kar. 78 and Muhammad Younus v. Province of Sindh PLD 1973 Kar. 694 wherein it was held that where definite charges are brought against the detenu for substantive offences and the detenu is undergoing prosecution therefor, the Administration has made up its mind and the choice 'that the detenu should be prosecuted for these offences, and, having made this choice, it would ordinarily not be open to the Administration to also use such charge as ground of preventive detention under the West Pakistan maintenance of Public Order Ordinance, 1960'. Learned Judges of the Karachi High Court expressed the view 'to base the order of detention on a charge for which the detenus are facing regular trial in a Criminal Court is unreasonable exercise of the power to order preventive detention'. In this view of the matter, I hold that the criminal charges for which the petitioner is facing a criminal trial or in which he has been convicted/acquitted cannot form reasonable basis for ordering the preventive detention. I would also like to observe that the District Magistrate appears to have mechanically accepted the recommendation of the police without applying his own independent mind to the material placed before him. It may also pertinently be observed that the second ground pressed into service by the District Magistrate namely that he conducted enquiry through the secret means, has been questioned by the petitioner and the learned Advocate-General is not in a position to substantiate it. For this reason also, impugned order of detention cannot be sustained. Refer PLD 1965 Lah. 112 where it was held that if one of the grounds of detention is bad or is nonexistent, the whole order of detention is rendered invalid.
' In view of what has been said above, this writ petition is allowed with costs, the impugned order of detention is declared to be without lawful authority and of no legal effect and it is directed that the detenu be set at liberty and released forthwith unless wanted in some criminal case.