1. ' SAJJAD ALI SHAH, C.J.--- In this Constitution Petition is challenged order of detention dated 8th October 1990, passed by District Magistrate, Karachi (East), under section 3(1) of Maintenance of Public Order Ordinance, 1960, which is supposed to be valid for 30 days.
2. ' Detenu in this petition is Sabir alias Sain who is son of the petitioner and it is stated in the petition that he has remained vocal in voicing against atrocities and oppressions perpetrated by local police who have been patronizing narcotics trade and gambling in the area. In consequence, order of detention mentioned above was passed and in pursuance thereof detenu has been taken in custody.
3. ' Order of detention is challenged on many grounds. Firstly, that after passing of the order of detention, detenu who was already in custody in Sukkur Jail was shifted to the police lock-up of police station at Sukkur. This is not permissible under the law for the reason that if a person is detained under the provisions of Maintenance of Public Order Ordinance then such detention is preventive in nature and object of it as envisaged under section 3 of the said Ordinance is to prevent him from acting in any manner prejudicial to public safety or public order. This can be done by lodging the detenu in jail and not at police station. At police station a person can be detained only for the purpose of interrogation in connection with investigation of a substantive crime. In support of the proposition stated above, reliance can be placed on the case of Umrao Ali v. The District Magistrate (South), Karachi and 3 others 1987 P Cr. L J 2280. Assertion by the petitioner that detenu after passing order of detention was detained at police station is not denied or disputed by the respondents and they have not filed any counter-affidavit.
4. ' Secondly, impugned order is also assailed on the ground that in it to justify detention reliance is placed on four criminal cases which are pending and F.I.R. Numbers and particulars of offences are mentioned therein. In fact this is the only ground which is mentioned in the order of detention holding that detenu is desperate type of criminal and his remaining at large will result into some heinous crimes/offences including murder or injury, as such his immediate detention is required in the interest of public peace and tranquillity. It is submitted by the counsel for the petitioner that on the ground of pending cases dctenu could not be detained for preventive purposes for the reason that in all those four cases mentioned in that order detenu had been released on bail by the Courts of competent jurisdiction, as such in the ordinary course law should have been allowed to take its own course and steps should have been taken for cancellation of bail according to law and instead of doing that order of detention has been passed with mala fide intention to justify preventive detention.
5. ' On this point whether on the ground of pending cases order of preventive detention is justifiable or not, there is plethora of case-law which is in support of the proposition that a person cannot be detained under the preventive law on the basis of pending cases.
6. In the case of Muhammad Younus v. Province of Sindh reported in PLD 1973 Kar. 694, a Division Bench of this High Court held in unequivocal terms in paragraph 10 of the judgment at page 716 of the report that to base order of detention on a charge for which detenus are facing regular trial in a criminal Court is unreasonable exercise of the power to order preventive detention. It was so held for the reason that it was open to the Administration either to prosecute detenu for substantive offence or detain him under preventive law but not both. If the Administration has made up its mind to prosecute the detenu for substantive offence, then it would be very unreasonable exercise if he is detained under the preventive law as well. This view has been followed consistently in other judicial pronouncemens as well. In support, reference can be made to the cases of Khadeja Bi v.
7. The District Magistrate, Hyderabad 1987 P Cr. L J 2418 with relevant portion at 2422, Gulzar Ahmed v.
8. District Magistrate and another 1988 P Cr. LJ 1790 with relevant portion at 1792 in paragraph 3 and Shabir Hussain v. District Magistrate, Sialkot 1990 P Cr. L J 1534 with relevant portion at page 1536 paragraph 4.
9. Learned Advocate-General, Sindh, has conceded legal position, as stated above, and took up the stand that although past conduct can be the basis for satisfaction of authorities as is held in the case of Abdul Hameed Khan v. District Magistrate, Larkana and others reported in PLD 1973 Kar.
10. 344, but such past conduct would not include pending cases. In support of this view, learned Advocate-General has referred us to the case of Fakir Imdad v. District Magistrate and others reported in PLD 1987 Kar. 530 with relevant portion at I page 534.
11. ' Common stand is taken by both, learned Advocate for the petitioner as well as Advocate-General, Sindh, that the case of Mairaj Muhammad Khan v. Government of West Pakistan and another reported in PLD 1966 (W.P.) Kar. 282, is distinguishable end has been so distinguished in several other subsequent decisions including Liaquat Ali's case PLD 1973 Kar. 78 on the ground of persistence of the petitioner in creating situations repeatedly inciting students for organizing violent demcnstrations.
12. ' In the instant case, it is submitted by the counsel of the petitioner that four cases mentioned in the order of detention, do not relate to public safety or public order, which are mentioned in section 3 of the said Ordinance but are ordinary criminal cases and have no nexus whatsoever with public safety or public order. Moreover, in all the four cases bail was granted on 2-10-1990 and security was furnished on 7-10-1990 and before the detenu could come out from the jail, order of detention was passed on 8-10-1990 just to prevent him from coming out of jail which shows mala fide intention of the Administration particularly when averment is made that detenu criticized role of the police in supporting and patronizing narcotics trade and gambling in the area.
13. ' For the facts and reasons stated above, we are satisfied that the order of detention impugned in this petition is not sustainable under law and as such we quash the same and allow the petition.
14. Detenu, if not wanted in any other case, should be released at once.