MUHAMMAD NASEEM CHAUDHRI, J. -This petition under Article 199 of the Islamic Republic of Pakistan filed by Muhammad Mushtaq assails the vires of order dated 7.8.1996 passed by the District Magistrate Sheikhupura (respondent No.1) whereby petitioner's brother Aftab son of Muhammad Ali caste Arain resident of Sedanwali District Sheikhupura was ordered to be detained for a period of 90 days under section 3 (1) of the West Pakistan Maintenance of Public Order Ordinance, 1960. The impugned order (Annexure A) has been passed on the basis of the following grounds:- "Whereas it has been made to appear to me from the report of Superintendent of Police, Sheikhupura that Aftab son of Muhammad Ali caste Arain r/o Sedanwali P.S. Narang has been indulging in acts prejudicial to the maintenance of public safety and public order endangering life and property of public and he is likely to continue to acting in a manner prejudicial to the public safety and the maintenance of public order.
2. And whereas, I, am satisfied that reasonable grounds exist to preventing him from acting in such a manner and as' such it is necessary to detain the said Aftab.
3. Now, therefor, I, Iftikhar Babar, District Magistrate, Sheikhupura, in exercise of the powers conferred upon me vide Notification No. 3-I-H- Spl-I/74 dated 28.1.1976 issued by the Government of the Punjab, Home Department, Lahore and section 3(1) read with section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960 do hereby direct that the said Aftab shall be arrested forthwith by the police and detained in the custody of Superintendent, District Jail. Sheikhupura for a period of 90 days.
4. The detention shall be treated as class third detenu.
5. Given under my hand and seal of the court this 7th August, 1996.
2. It is proper to reproduce as under the grounds of detention (Annexure B):- "OFFICE OF THE DISTRICT MAGISTRATE, SHEIKHUPURA. GROUNDS OF DETENTION.
In respect of Aftab s/o Muhammad Ali caste Arain r/o Sedanwali P.S. Narang.
The order passed for your detention under Subsection 1 of Section 3 of the West Pakistan Maintenance of Public Order Ordinance. I960 is based on the following grounds:- You are desperado and remained involved in various criminal cases. You indulge in activities which can create law and order problem in the country. You act in a manner prejudicial to public safety and maintenance of public order. If you are allowed to remain at large you can prove to be dangerous for the general public as well as the country. You were involved in the following criminal cases in the past.
1. FIR No.97 dated 8.6.1985 U/s. 380/457 PPC PS Narang.
2. FIR No.105 dated 17.6.1985 U/s. 13/20/65 A.O. PS Narang.
3. FIR No. 163/89 U/s. 13/20/65 A.O. 158/9 Custom Act, PS Ganda Singhwala.
The above said activities are prejudicial to the maintenance of public order and safety. In order to prevent you from acting from such manner, prejudicial public safety and the maintenance of public order.
Sd/ District Magistrate Sheikhupura.
3. In this Constitutional petition the writ-petitioner has averred that the grounds for the detention of Aftab detenu are vague in nature, that the allegations which amount only to criminal offences triable under the ordinary law cannot form basis for preventive detention under the aforesaid section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 especially when the detenu has been acquitted in all the cases and that the detenu did not involve himself in any prejudicial activities within the meaning of the said section 3 of the Ordinance. The District Magistrate, Sheikhupura (respondent No.1) defended the impugned order dated 7.8.1996 about the detention of Aftab who has submitted the report and parawise comments wherein he has expressed that Aftab was a desperado am1 remained involved in various criminal cases, that he indulged in activities which could create law and order problem in the country and that he acted in a manner prejudicial to public safety and maintenance of public order.
4. At this stage it is proper to express that Aftab was released on 22.9.1996 by the District Magistrate^. Sheikhupura who appeared before this Court on 25.9.1996 and desired to get disposed of this wait petition on merits keeping in view his future.
5. At the very outset the learned Assistant Advocate General took up the preliminary stand that due to the release of Aftab detenu there is no need to adjudicate and decide the writ petition on merits and that the writ petition has borne the fruit. I do not agree with him. As rightly pointed out by the learned counsellor the petitioner the future of the detehu is involved as there would be a stigma on his name for good in case the detention order remains in the field. Hence my view is that it would be fair, feasible and just to dispose of the writ petition on merits.
6. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General and gone through the record before me. The contention of the learned counsel for the petitioner is that the grounds mentioned in the impugned detention order are that the detenu.
Aftab is involved in three criminal cases who was a desperado and whose activities are prejudicial to the public safety and maintenance of public order. According to. Him the report submitted by the SHO Police Station Narang District Sheikhupura to the Superintendent of Police Sheikhupura and forwarded to the District Magistrate Sheikhupura has no legal force and that the District Magistrate Sheikhupura mechanically accepted the recommendations of the police without applying his own independent mind to the material placed before him as the criminal charges for which the detenu had been facing trial and was acquitted could not form the basis for preventive detention. He referred to copy of judgment dated 31.3.1990 making out that in case FIR N. 163 of 19S9 registered at Police Station Ganda Singhwala District Kasur the petitioner was acquitted. He maintained that in all the remaining three criminal cases registered at Police Station Narang during the year 1985 the petitioner has also been acquitted and that the period in between the year 1985 and 1996 is that much that the version of the District Magistrate, Sheikhupura is simply based on conjectural hypothesis. The reasoning adopted by the learned Assistant Advocate General is that the registration of the cases against Aftab detenu and keeping in view his general reputation he was rightly detained.
7. At the very outset it can safely be expressed that the impugned detention order dated 7.8.1996 seems to have been passed by the District Magistrate, Sheikhupura on the basis of the report of the local police and the registration of four criminal cases out of which three cases were registered during the year 1985 and one case was registered during the year 1989. In one case the certified copy of the acquitted order, as expressed above, has been submitted. However, no material has been submitted by the District Magistrate, Sheikhupura (respondent No.1) to make out that the detenu was convicted in any ease mentioned in the impugned order. 1 am author of the judgment printed as Ahmad Ali_v. The State (1995 MLD 1748 Lahore) wherein I have examined and referred to the case law with respect to the detention of the detenu on the basis of the registration of the criminal cases. On the basis of the following rulings it call safely be held that the mere fact that the detenu has been involved in a number of criminal cases is per se not a valid ground for preventive detention and that the law is well established that when a person had been facing prosecution on a criminal charge the same material should not in all the fairness be taken as reasonable basis for ordering his detention:-
(i) Shahbaz Afghan r. The District Magistrate and 2 others (1990 P.Cr.LJ274)
(ii) Mst. Shazia Perveen r. District Magistrate. Okara (PLD 1988 Lah. 611)
(iii) Bashiran Bibi v. The District Magistrate, Kasur. (1990 P.Cr.LJ 1913).
(iv) Umer Din alias Umroo v. S.H.O. Bhai Pheru and 3 others (1990_ P.Cr.LJ 948)
(v) Jalal alias Jala t\ District Magistrate. Kasur and 2 others (1990 P.Cr.LJ 1529).
8. Lt has been commanded in the ruling published as Noor Muhammad v. District Magistrate, Hyderabad, Sindh and 2 others (1990 P.Cr.L.J. 2052) that mere opinion of the District Magistrate that the detenu indulges in antisocial activities which would be dangerous to public and tranquillity may be reason for the detention but not a ground of detention of the detenu in the absence of proof. In the instant matter the general type of report submitted by the SHO Police Station Narang Mandi cannot be considered as sacrosanct.
9. If a criminal case is pending against an accused that would not form the basis of the preventive detention as for a period of one year the accused may not admitted to bail and that will .Serve the same purpose as the detention order is intended to be served. If an accused is acquitted he cannot be tried twice due to the enforcement of section 403 Criminal Procedure Code, according to which a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while conviction or acquittal remains in force not be liable to be tried again for the same offence, nor of the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 Criminal Procedure Code or for which he might have been convicted under section 237 Criminal Procedure Code. It means that on the basis of the same criminal charge one person cannot be vexed twice due to the disposal or pendency of the criminal cases. A detenu of the instant nature may not' be deprived of his liberty as his detention would be nothing but punishment.
10. The upshot of the above discussion and findings is that there was no material with the District Magistrate to justify the passing of the impugned order dated 7.8.1996 for the detention of Aftab detenu.
11. I. therefore, accept this writ petition and declare that the impugned order dated 7.8.1996 about the detention of Aftab detenu is without lawful authority and of no legal effect. Aftab detenu has already been set at liberty as the impugned order has been withdrawn. The respondents shall bear the costs.