SARDAR MUHAMMAD RAZA, J.---The District Magistrate, Mansehra through his order dated 14-9- 1996 and the grounds of detention of the even date, directed the detention under section 3(1) of the Maintenance of Public Order Ordinance, 1960, of Mehr A.I Shah son of Farid Shah of village Devli, Mansehra for a period of one month from the date of the execution of order, which detention, stands challenged through the instant writ petition under Article 199 of the Constitution.
2. The grounds of detention supplied to the detenu were to the effect that in the recent past the detenu had been acting in a manner prejudicial to public safety and interest by destroying precious forest and also by involving himself in the smuggling of timber, thereby creating law and order situation whenever asked to desist from such activities.
3. The District Magistrate was issued a notice of the present petition against which he appeared personally alongwith the officers of Forest Department including the present DFO Mr. Saadat Khan.
They also submitted comments and as the action was taken in connection with the affairs of the Forest Department, we heard the aforesaid DFO at length on different dates.
4. The first and the foremost question that arises for determination is as to what was the material before the District Magistrate justifying action under section 3(1) of the Maintenance of Public Order Ordinance, 1960. Our own High Court in case "Muhammad Iqbal v. Deputy Commissioner, Mansehra" (PLD 1992 Pesh. 107) has also felt the necessity of such material that should reasonably persuade the District Magistrate for taking action under the Ordinance. Such material is required to satisfy the mind of the Court as to whether the District Magistrate, in turn, had applied hid mind to the facts of the case and whether such application of mind was reasonable or not. This also implies that the grounds of detention prevailing with the District Magistrate should be solid and not at all vague so that the detenu should be able to resort to the authorities concerned, challenging such grounds specifically.
5. While going through such record, we have been able to see only one F.I.R. No.405 dated 26-8- 1996 registered at PS Shinkiari Mansehra against the petitioner alongwith others under section 506/186/148/149/109, P.P.C. The aforesaid F.I.R. Was registered at the instance of Sarfraz Khan forester who is said to have had denied the contents of F.I.R. Through a supplementary statement but when summoned in Court he denied having given any supplementary statement. That being besides the point, the above trouble had arisen because in the light of a judgment dated 31-5-1994 of the Supreme Court of Pakistan, the functionaries of the Forest Department had visited the spot and made preparations to remove some illicit timber when they were forcibly restrained by the men of the petitioner. So far as the present case is concerned, the only material before us is the aforesaid F.I.R.
6. In a recent judgment given in case "Mrs. Arshad A.I Khan v. Government of the Punjab" 1994 SCMR 1532, the Supreme Court has observed that where the police had already registered a case against the detenu under various provisions of the Penal Code it clearly indicated that the detenu was accused of substantive offences and therefore, his preventive detention on the same allegations could not be justified in law. The simple and logical reason for the aforesaid finding was that when a person is charged for a specific offence or offences, the relevant criminal law would take care of him and would punish him accordingly in case the offence is proved. There is no reason to vex a man twice for the same act. In this view of the matter we hold that the material in the instant case in the shape of the aforesaid F.I.R. Was neither sufficient nor justified to take action under preventive detention.
7. Apart from the aforesaid material, we were addressed in detail about the attending circumstances of the present case. It was alleged with all the force at the command of the forest functionaries that under the grab of the timber allowed to be removed by the Supreme Court, the petitioner is involved in the massive illicit cutting of the forest and removal of the same from the compartment and is least active in the removal of the old timber which provides him a dishonest garb. It was alleged that one F.I.R. Stands registered against him and his men but apart therefrom he is involved in the destruction of forest thereby rendering the department totally helpless. That he has kept scores of armed men in the forest who do not even allow the officials of the Forest Department to enter the compartment for the purpose of checking. That if this state of affairs is allowed to continue, the very lives of forest officials would be endangered at the hands of the timber mafia which by now has become uncontrolable, ruthless and desperate.
8. In the circumstances of the case laid down before us in detail, we are not unmindful of the situation created by an agency which is turned into a mafia. A mafia goes beyond the clutches of law enforcement agencies. The situation created is so unmanageable that no one can practically deploy one watchman over each tree, extending over an area where even the checking of a compartment is not possible in one day, over and above the fact that most of the locations are such that by the time the law enforcement agencies reach the spot, no one is present around within miles of radius.
9. Although preventive detention cannot be used for punishing persons for their past actions yet past conduct of a person can be made basis of the satisfaction of the Authorities ordering such detention. If the functionaries of Forest Department are true in their assertions, they should better initiate criminal proceedings qua each and every offence committed by the petitioner or his men. If still the activities remain uncontrolable and there comes sufficient material before the District Magistrate Mansehra, he is at liberty to take action under the provisions of preventive laws.
10. Consequently the impugned order of detention dated 14-9-1996 passed by the District Magistrate, Mansehra is hereby withdrawn. If not required to be detained in any other cause, the petitioner detenu be released forthwith.
11. However, this order shall not debar the District Magistrate, Mansehra from taking similar action against the petitioner in case sufficient material becomes available through any agency or is brought before him by the Forest Department.