' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, assails the order, dated 21-9-1989 passed by the District Magistrate, Jhang (respondent No,1) whereby the petitioner was ordered to be detained for a period of three months under section 3 of the West Pakistan Maintenance of Public Order, Ordinance, 1960. The grounds on the basis of which the impugned order (Annexure 'A') has been passed as enumerated in the memoradum of grounds, are:--
(i) That you are a desperate, hardened and notorious criminal and narcotic pedlar. You are involved in trafficking of narcotics. Your activities are prejudicial to public safety and good order.
(ii) As reported by the Superintendent of Police, Jhang, you have long criminal record and were involved in 22 cases.
(iii) Despite repeated warnings given to you by the local administration, you have not refrained from activities to create discord and feelings of hatred between the public.
' In the Constitutional petition, it has been submitted that there is enmity between the family of the petitioner and the local police on account of which the petitioner and his family members have been involved in various criminal cases. It is also contended that a numner of petitions against the District administration and the police are pending in this Court. It is alleged that the impugned order has been passed mala fide and for ulterior motives.
2. The learned Additional Advocate-General was directed to produce the record on the basis of which the District Magistrate ordered the detention of the petitioner. He, however, has stated that except from the fact that the petitioner is involved in 22 criminal cases, details whereof have been furnished in the list annexed to the report, there is no other material available with the respondent No,1. In the report and parawise comments, it has been stated that the detention "order was passed against the petitioner in view of his involvement in 22 criminal cases. It was further asserted that the petitioner is a desperate, hardened and narcotics pedlar and he consistently indulges in nefarious activities causing harassme nt amongst the public in general.
3. From the perusal of the memorandum of grounds as reproduced above, it is to be seen that three grounds have been mentioned by the District Magistrate for passing the order of detention.
As regards first ground, which is to the effect that the petitioner is a desperate, hardened and notorious criminal and narcotic pedlar and is involved in trafficking of narcotics, the respondents have failed to produce any proof whatsoever. There is no report made either by the police nor any complaint that the petitioner has been involved in such like activities. Though it has been mentioned in the report submitted by the District Magistrate that the petitioner was given repeated warnings but the learned Additional Advocate-General is not in a position to produce any record containing such warnings. It is well-settled that the order of detention takes away the liberty of a person and, therefore, the statutory functionaries while passing an order are required by law to make an objective assessm ent on the basis of material on the record which is to be produced before the Court in order to show that the satisfaction is .Reasonable and is neither arbitrary nor whimsical. In the present case, no material whatsoever exists on the record.
4. As regards the ground that the petitioner is involved in 22 criminal cases, it is to be seen that out of these 22 cases, the petitioner has been acquitted in case at Serial No,2 while remaining cases are still pending before the respective Courts. This Court has already held in the case of Mst. Shazia Parveen v. District Magistrate, Okara PLD 1988 Lah. 611 that no order of detention can be based on the pendency of the criminal cases against the person concerned and in this connection it was observed:-- ".... If the past act be an act for which he is being prosecuted, then you are detaining him for an act which he has yet to be proved to have committed. Then, as in preventive detention, at least one of the objects of detaining a person for an alleged offence during trial is to prevent him from committing more crimes, and according to the well-known theory of punishment known as the preventive theory, the object of punishment is to incapacitate the offender from committing further crimes and to save the society from the offender's evil deeds. Thus, if a person has been arrested for an offence under the Prohibition Order, for being in possession of heroin or opium, he will not ordinarily be allowed bail for a period of one year and that will serve precisely the same purpose as a detention order is intended to serve. Similarly, if a person is tried and punished, that will automatically produce the result of preventing the repetition of crimes by him. It was then said that preventive detention is not punishment. That in my opinion, is a play on the meaning of the word `punishment'. Whether the punishment is punitive or non-punitive, the consequence, as regards the person detained, is the same, namely deprivation of liberty and that is certainly punishment. I am, therefore, in respectful agreement with the view taken in the cases of Liaqat Ali and Muhammad Younas as also in the case of Zafar Abbas and hold that in proceedings against the detenu in Writ Petition No, 3589 and against the petitioners in other petitions, as they did, the District Magistrates had proceeded on extraneous and irrelevant considerations and that, therefore, the detenu in Writ Petition No, 3589 of 1988 is being held in an unlawful manner and that in directing the arrest and detention of the petitioners in the remaining writ petitions, the District Magistrates, have done something they were not permitted by law to do."
' It is also to be noticed that only in one case i,e, F.I.R. No, 63 dated 22-31981, the petitioner was convicted under the Gambling Act and was sentenced to pay Rs,120 only. A reference to the list of cases would show that eight cases were registered against the petitioner within a span of ten days.
There are also instances which show that at one time two or more cases were registered against the petitioner. This aspect also lends support to the case of the petitioner.
5. Coming to the last ground, namely, that despite repeated warnings, the petitioner has not refrained from activities creating discord and feelings of hatred between the public, suffice it to say that no material has been produced by the respondents in support of this assertion. It is not even clear as to whether the action was taken on the complaint made by the members of the public or by the State functionaries. The basis for recording finding that the activities of the petitioner created discord and feelings of hatred between the public is not known. The allegations are vague, indefinite and lacking any requisite particulars.
' Another fact to be noticed in this behalf is that there appears to be no independent application of mind on the part of the District Magistrate at all. The impugned order is on cyclostyled pro forma in which the particulars of the petitioner have been filled in. The open words of this cyclostyled order are namely, whereas it has been reported to me by the Superintendent of Police, Jhang " but in the present case no report by the Superintendent of Police, Jhang was filed in this Court on the basis of which the impugned order is said to have been passed. However, on a question asked by the Court, a file has been produced by the representative of the Superintendent of Police, Jhang which contains a number of stereotyped and cyclostyled reports in which the particulars of different persons have been filled in. Strangely enough, all these reports, which are about 34 in number, against different persons; are of the same date and are based on absolutely same allegations that the person concerned is a desperate, narcotic peddler and was involved in different cases and his activities were prejudicial to public safety and good order. It is highly regrettable that on the basis of such like stereotyped reports which show no independent application of mind at all, citizens are deprived of their liberty which is so cherished in our Constitution. This being the position the order of the District Magistrate, dated 21-9-1989 is not sustainable.
In the present case, as stated above, the learned defense counsel appointed at the state expense was suddenly called upon to cross-examine the witnesses in the impugned order is declared to have been passed without any lawful authority and of no legal effect. No order as to costs.
Writ .