' 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, Sialkot, dated 30-9-1989 (Annexure 'A') made under subsection (1) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 directing the det6ition of the petitioner for a period of three months.
2. The impugned order states that the District Magistrate was satisfied that the petitioner was 'likely to act in a manner, prejudicial to public order/safety and the maintenance of public order' and that with a view to preventing him from so acting, it was necessary to arrest and detain him in custody.
In the grounds of detention (Annexure 13') accompanying the impugned order, it is stated that the petitioner 'is a desperate criminal. He has been challaned in cases of theft, attempted murder, arms Ordinance, abduction, Harraba etc. In spite of the best efforts of the local police he is continuing his nefarious activities'. The grounds of detention contain a list of 15 criminal cases registered against the petitioner over a period of 13 years extending from 1976 to 1989.
3. I have heard the learned counsel for the petitioner as also the learned Advocate-General. It is contended on behalf of the petitioner that mere registration of cases is not a valid and legal basis for ordering his detention under 'section 3(1) of the Ordinance. Learned counsel has submitted that the petitioner has been acqttitted in most of the cases mentioned in the grounds of detention and that case F.I.R. No,52/89 registered under section 16 of Ordinance VII of 1979 at Police Station Head Marala which is mentioned at Serial No,15 of the list has no concern with the petitioner as his name is not included therein. Learned Advocate-General has explained the factual position about the cases mentioned in the grounds of detention. He has stated, on instructions, that the petitioner was convicted in 3 cases mentioned at Serial Nos. 1, 2 and 10 in the grounds of detention. The first two cases were registered under section 379, P.P.C. In the year 1976/1977 and in each case, the petitioner was sentenced to three months' R.I. The third case in which the petitioner was convicted was registered under the Arms Ordinance in the year 1981 and in that case, he was sentenced to one year's R.I. It is further stated by the learned Advocate-General that 3 cases mentioned at Serial Nos. 3, 6 and 9 in the grounds of detention are still pending. Case at Serial No,3 was registered under section 307, P.P.C. In 1979; case at Serial No,6 was registered under sections 307, 148/149, P.P.C. In 1971 and the case at Serial No,9 was registered under the Arms Ordinance in 1981. It is further pointed out by the learned Advocate-General that the petitioner was not an accused in the case mentioned at Serial No,4 (case under the Arms Ordinance registered in 1980). As regards the remaining 8 cases, it is stated by the learned Advocate-General that the petitioner has been acquitted therein.
4. Learned counsel for the petitioner contends that in view ef the position explained by the learned Advocate-General, petitioner cannot be said to be a desperate criminal. He further contends that there is nothing on the record to show that the factual position now stated by the learned Advocate-General was placed before the District Magistrate. In the circumstances, it is argued by the learned counsel that the District Magistrate when passing the impugned order was not conscious of the fact that. The petitioner had been acquitted in as many as 8 cases; he was convicted only in 3 cases which were registered as far back as the years 1976, 1977 and 1981 and that only 3 cases are pending against him. Learned counsel has relied upon three cases reported in PLD 1973 Kar. 78, PLD 1973 Kar. 694 and PLD 1988 Lah. 611 in support of his submission that the mere fact that the criminal cases were registered against the petitioner could not be a valid ground for ordering the detention of the petitioner. Learned Advocate-General is unable to controvert the contentions raised on behalf of the petitioner. Law is fairly well-established that when a person has been prosecuted on a criminal charge, the sat& material should not, in fairness, be taken as a reasonable basis for ordering his detention. Refer 1969 P Cr. L J 449. Reference may also usefully be made to two Karachi cases cited above 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 Mainenance of Public Order Ordinance, 1960'. Learned Judges of the Karachi High Court expressed the view 'to base the order of detention on a charge tor 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 A 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 has passed the impugned order of petitioner's detention without any independent application of his own mind to the material placed before him. He appears to have mechanically accepted the recommendation of the police. In the circumstances, the impugned order cannot be sustained.
' Upshot of the above discussion is that this writ petition is allowed with costs, the impugned order of petitioner's detention is declared to be without lawful authority and of no legal effect and it is directed that the petitioner be set at liberty and released forthwith unless wanted in some criminal case.
Writ .