MIAN MUHAMMAD AJMAL, J.---The petitioners herein, through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have sought declaration that the detention order of the respondent No.l dated 30-1.1-1991 ordering the detention of petitioner No.l for a period of 3 months under section 3(1) of the maintenance of Public Order Ordinance, 1960 (hereinafter called `the Ordinance') is without lawful authority and of no legal effect and that the warrants of arrest against petitioners 2 to 4 allegedly issued in compliance with the orders of respondent' No.l under the Ordinance, are also without lawful authority and of no legal consequence.
2. The petitioners' case is that petitioner No.l has been arrested by the S.H.O. Battal on 21-12-1991, in compliance with the aforesaid order of the Deputy Commissioner/District Magistrate, Mansehra respondent No.l without assigning any reason and has been detained in District Jail, Haripur, while against the other three petitioners warrants of arrest have been issued and the police is after them for their arrest, for which purpose several raids have been made at their houses by respondent No.3 with heavy police force.
3. The learned counsel for the petitioners contended that the petitioner No.l was not supplied a copy of the detention order nor the grounds on which the order has been based, which is a mandatory requirement under section 3(6) of the Ordinance. He further contended that the District Magistrate had no authority under the law to make an order of detention for more than a period of 30 days in view of the Notification No.3-104-H-SPI-1/64 issued by the Governor of West Pakistan under section 26 of the Ordinance, and published in the Official Gazette on 27-2-1965. He submitted that after the arrest of petitioner No.l and apprehended arrest of petitioners 2 to 4, they filed this writ petition, whereupon this Court vide its order dated 8-1-1992 directed respondent No.l to supply the copy of the order forthwith consequently petitioner No.l was given a copy of the order of detention in jail while petitioners 2 to 4 till today have not been revealed about any such communications. He contended that the entire proceedings/order were illegal and without lawful authority and of no legal . Consequence. Relied on 1991 PCr.LJ 338 and 1990 PCr.LJ 1529 and 1534.
4. The learned Assistant Advocate-General informed us that he has not been furnished with any material, therefore, he is not in a position to produce any before the Court. The Prosecuting Inspector Mansehra and the S.H.O. Battal are also present in Court. The Prosecuting Inspector has informed us that there were certain cases against the petitioners for illicit cutting of timber from the forest, hence they were proceeded against under the Ordinance by the District Magistrate respondent No.l. The S.H.O. Battal respondent No.3 has informed us that warrants of arrest against the other three petitioners have been issued and attempts were made for their arrest but they avoided their arrest. When asked that has he got any order of detention or statement of allegations against the other petitioners, he replied in the negative.
5. We have given due consideration' to the submissions of the learned. Counsel for the parties and have perused the available record of the case.
6. The impugned order of the District Magistrate, Mansehra directing the detention of petitioner Nos.l for 3 months is basically illegal and without lawful authority in view of the notification wherein it is provided that the District Magistrate cannot pass an order under subsection (1) of section 3 of the said Ordinance exceeding 30 days. The same is reproduced hereunder:-- .
"WEST PAKISTAN MAINTENANCE OF PUBLIC ORDER ORDINANCE, 1960.
(Notification under section 26) Gazette of West Pakistan, Extraordinary, 27th February, 1965.
No.3-104-H-SPI-1/64: -In exercise of the powers conferred on him by section 26 of the. West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960) the Governor of West Pakistan is pleased to direct that--
(a) the powers exercisable by Government under subsection (1) of section 3 of the said Ordinance shall be exercised by all District Magistrates in West Pakistan subject to the condition that the period of detention under an order passed in exercise of the said powers shall not exceed 30 days; and
(b) Government of West Pakistan Home Department Notification No.8113-H-SPI-1/57, dated the 22nd September 1961 and Notification No.3 3-H-SPI-I/61, dated the 14th September 1962 shall stand rescinded."
It is clear from the above that the District Magistrate in exercise of the powers under subsection (1) of section 3 of the Ordinance had no authority to pass an order of detention exceeding 30 days.
Besides this illegality the impugned order is defective and suffers from other legal infirmities as well.
7. The essential requirement of subsection (6) of section 3 of the Ordinance was not carried out by serving the grounds of detention on the detenu until today, which is a clear contravention of mendatory provision of section 3(6) of the Ordinance and resultantly renders the order of detention invalid.
8. The criminal cases, if any, the details of which were not provided by the Prosecuting Inspector (in spite of the order of this Court to produce the entire record) cannot be made the basis and ground for preventive detention under the Ordinance.
9.If the petitioners have faced the prosecution/trial on criminal charges, and have either been convicted or acquitted, then the same allegations cannot be made the ground for ordering their detention under the preventive law, which would not only be illegal but also unconstitutional.
10. It is observed with regret that no material whatsoever was produced despite the order dated 14- 1-1992 whereby respondents were directed to produce the record. The ' Assistant Advocate- General rather showed his helplessness and frankly conceded that he has not been supplied any material by the respondents on the basis ofwhich the impugned order was passed. The presumption for not producing the record can be that there was none, as such the impugned order was not based on any material but the same seems to be mechanical and without any application of mind,. Which fact renders the detention order without any legal foundation.
11. As far as tire case of the petitioners 2 to 4 is concerned what to speak of the statement of allegations, they have not even been supplied the order of detentions till today. In view of the statement of SHO Battal, respondent No.3 that warrants, of 'arrest have been issued against the petitioners 2 to 4 in--compliance with the orders of the District Magistrate which orders have not been made available it seems that the same have been intentionally withheld for the reasons best known to the respondents but the police under the garb of so-called orders equipped with the warrants of arrest against the aforesaid petitioners. As no material has been produced before us although an opportunity was afforded to the respondents, we are constrained to hold that the impugned order is liable to be set aside along with the warrants of arrest against the petitioners 2 to 4.
12. It would be pertinent to observe here that in Writ Petition No.127 of 1991 (Mohamma4 Rafiq alias Fiqa v. The District Magistrate, Mansehra), similar order dated 1-10-1991 of the District Magistrate, Mansehra was set aside on 11-11-1991 by this Court on almost alike reasons but it appears that no notice thereof has been taken. The case in hand gives a very deplorable picture wherein the citizen was deprived of liberty to which safeguards have been provided by Article 10 of the Constitution of Islamic Republic of Pakistan.
13. Upshot of the above discussion is that we allow this writ petition declaring the order of respondent No.l dated 30-11-1991 for the detention of petitioner No.l and the warrants of arrest against petitioners 2 to 4 issued in compliance with the orders of respondent No.l which are not before us, as without lawful authority and of no legal effect. The petitioner No.1 is on bail, his bail bonds stand discharged. Since the powers conferred by law were not exercised in accordance thereto which could only be exercised judiciously within the framework of the law itself and any violation thereto amounts to the abuse of the powers. In this case we find that powers have not at all been judiciously exercised and were flagrantly abused, as such the writ petition is accepted with costs of Rs.10,000 to be paid by respondent No.l.