1. ' RAJA QURESHI, J.---We had on 24-2-1998 passed a short order allowing the aforementioned petition and declaring the impugned order in the aforementioned petition to be illegal, unlawful and of no legal effect. We had further directed the detenu to be set at liberty forthwith unless required in some other case. Following are our reasons in respect of the short order passed by us on 24-2-1998.
2. ' In the petition, the prayer of the petitioner made before us, is to the following effect:- "(a) To declare the impugned Order No, J.B/125 of 1998, dated 28th January, 1998 passed by respondent No,2 ordering detention of detenu Nawaz Ali s/o Malook Junejo and the Show Cause Notice No, J.B./126 of 1998 dated 28th January, 1998 as void ab initio, illegal, mala fide, without jurisdiction, of no legal effect and having been passed without any lawful authority and order his release from custody, if detained in pursuance of detention order.
(b) To grant compensatory costs to the detenu. .(c) Costs of the petition be borne by the respondents.
(d) Any other relief as this Honourable Court may deem fit and proper may be granted to the detenu."
3. ' The facts forming the background in respect of the afore quoted prayer are that the detenu is a Zamindar having a land holding of 80 acres situated in Dehs Chahi, Chapro, Bhitaro, Taluka Diplo, District Tharparkar in Deh 353, Taluka Digri, District Mirpurkhas. The learned counsel has contended before us that the detenu, detained under the impugned order, is an approved "A" class Government Contractor for Highways, Education, Works and Building Departments in the Province of Sindh. He is stated to be an income-tax assessee and consequently pays regularly his tax to the tune of lacs of rupees. He has further contended before us to have worked in the process of electioneering in favour of one Makhdoom Sayeeduzzaman Atif being a candidate of Pakistan People's Party against an independent candidate Arbab Ghulam Rahim who is now presently a Provincial Minister of Livestock and Fisheries. It has been contended before us that for such political reasons, the detenu was approached to abandon the process of supporting Makhdoom Sayeeduzzaman Atif, a candidate of Pakistan People's Party and had attempted to seek support in last elections for the returned candidate. He was subjected to threats that in the event he does not abandon support to the Pakistan People's Party candidate and change his loyalties: he would be subjected to face serious consequences. The detenu is stated to have been falsely implicated at the behest of Arbab Faiz Muhammad in Crime No,23 of 1997 registered at Police Station Mithi under section 364/147, P.P.C. Which is stated to be pending before the Court of the learned Additional Sessions Judge Mithi. However, the detenu stated to have been enlarged on bail in the said case.
4. ' Based on this document, the detenu is stated to have been arrested on 15-1-1998 at about 9-60 p.m. By A.S.I. Muhammad Urs from Naukot Town, District Tharparker. Such arrest has been canvassed before us to be motivated politically and accordingly vide Crime No,5 of 1998 under sections 324, 399, 402 353, 147, 148 and 149, along with another Crime No,6 of 1996 under section 13- D were registered in both these cases the detenu was taken into custody. While the detenu was under arrest, an order under section 3(i)/5 of the Maintenance of Public Order Ordinance, ordering detention of the detenu for a period of 30 days is stated to have been passed by respondent No,1, which is impugned in the present petition. The detenu was also served with a show-cause notice which for the purpose of ready reference is reproduced here in under. Such a show cause-notice and order of detention were served upon detenu while lie was confined in Sub-Jail Mithi. Show- cause !Vice runs as follows:-- "In the Court of the District Magistrate, Tharparkar at Mithi.
5. No, J.B. 126 of 1998 Office of the District Magistrate T.
6. Mithi. Dated 28-1-1998 ' To, ' Nawaz s/o Malook Junejo resident of village Phatore Taluka Diplo (Now Diplo Town) at present confined in Sub-Jail, Mithi.
7. ' The information has been laid down before me that you are acting in a manner which is hazardous to public peace and tranquility and that your activities are prejudicial of maintenance of law and order as well as to keep intact the public safety. It is further alleged that you initially were BERO (Peshgir) and after taking little education used to make plans of cheating and mishandled the innocent public for achieving his own benefits. Besides following cases have been registered against you as detailed below:--
(1) F.I.R. No,23 of 1997 under sections 364, 147, P.P.C. Of Mithi Police Station.
(2) F.I.R. No,5 of 1998 under sections 399, 402, 353, 324, 147 and 148, P.P.C. Of Police Station Mithi.
(3) F.I.R. No,06 of 1998 under section 13-D of the Arms Ordinance of Police Station Mithi.
8. ' Taking into account your activities which are likely to endanger the public safety and maintenance of law and order. You are accordingly detained in public interest for 30 (thirty) days under section 3(1)/5 of Maintenance of Public Order Ordinance, 1960 vide Order No, J.B/125, dated 28-1-1998.
9. ' You are hereby informed that you are at liberty to mike representation against the order referred above to the concerned Authority.
10. (Sd.)
11. (Allah Warrayo Mallah), District Magistrate, Tharparkar Mithi."
12. ' On the same day, the order of detention was passed which also for the purposes of ready reference is reproduced here in under:-- "IN THE COURT OF THE DISTRICT MAGISTRATE, THARPARKAR AT MITHI.
13. No, JB/-125 of 1998 Office of the District Magistrate T'kar, Mithi, dated 28-1-1998.-
14. ' Whereas the District Magistrate, Tharparkar is of the opinion that Nawaz s/o Malook, Muslim, by caste Junejo, originally resident of village Pathore Taluka Diplo and now residing in Diplo Town should be prevented from acting in a manner prejudicial to the public safety and maintenance of public order and hence it is necessary to order the respondent to enter into bond with or without sureties for due observance so that he should conduct himself in such a manner or abstain from such acts as prejudicial to effect law and order and public safety.
15. ' Now, therefore, in exercise of the powers vested in him under section 3(1)/5 of the Maintenance of Public. Order Ordinance, 1960, the District Magistrate, Tharparkar is pleased to order that the said Nawaz s/o Malook Junejo, now resident of Diplo Town shall be detained for a period of 30 (thirty) days with immediate effect at Central Prison, Hyderabad.
16. (Sd.)
17. (Allah Warrayo Mallah), District Magistrate, Tharparkar Mithi.
18. ' That the grounds on which the learned counsel for the petitioner has attacked the order of detention is that the show-cause notice which forms the basis of cases which are stated to be pending vide Crime Nos. 5/98 and 6/98 and had been registered recently as on 16-1-1998, whereas F.I.R. No,23/98 was contended by the learned counsel to have been registered on 24-10-1997. Such criminal cases are stated to be the consequential result of false implication at. The behest of the political advisories of the candidate who was supported by the detenu. The learned counsel has further stated before us that the basis on which the show-cause notice and the order of detention has been passed does not fall in conformity with the provisions of the Maintenance of Public Order Ordinance, 1960 and, therefore, such resort to the passage of the order of detention under Maintenance of Public Order Ordinance, 1960 cannot be passed merely if the detenu is facing trial in respect of three cases which, according to the counsel of petitioner, are fabricated.
19. ' The learned Additional Advocate-General, Sindh had on receipt of the notice ordered on 10-2- 1998, requested on 24-2-1998 to provide time to him, enabling him to obtain material on the basis of which the impugned order had been passed. Indeed, the learned Additional Advocate-General has not been able to place such material before us especially when we had brought the element of time to his notice, that the period of detention is only 30 days which starts running with effect from 28-1-1998 and concludes on 1-3-1998. However, the learned Additional Advocate-General continued to persuade us to provide him an opportunity of at least 4/5 days to place the material on record. In the event, we were to accept the request of the learned Additional Advocate-General, the very purpose of filing the aforementioned petition would have been frustrated and the petition would have been rendered infructuous with passage of time. As such, we were left with no option but to examine the order in exercise of our Constitutional jurisdiction in order to arrive at a finding as to whether we could allow the prayer of the petitioner, reproduced hereinabove.
20. ' While we examined the order of detention, dated 28th January, 1998, we find that the District Magistrate, Tharparkar has formed an opinion that the detenu should be prevented from acting in a manner prejudicial to the public safety and maintenance of public order and hence it was deemed necessary to order the detenu to enter into a bond with or without sureties for due observance so that the detenu conducted himself in such a manner and abstained from such acts as prejudicial to effect law and order and public safety. Consequently, the District Magistrate, Tharparkar had ordered the detenu to be detained for a period of 30 days. The basis on which such order of detention had been passed was to the effect that information had been laid before the District Magistrate, Tharparkar that the detenu was acting in a manner which was hazardous to public peace and tranquility and that his activities were prejudicial of maintenance of law and order and to keep intact the public safety, it was necessary for the passage of the order of detention. In the said information placed before the District Magistrate, Tharparkar, it was spelled out that the detenu had little education and used to make plans of cheating and mishandled the innocent public' for achieving his own benefits. Besides the detenu was stated to be criminally prosecuted in respect of the following three cases:-- "(1) Crime No,23/97 under sections 364 and 147, P.P.C. Of Mithi Police Station.
(2) Crime No,5/98 under sections 399, 402, 353, 324, 147 and 148 of Mithi Police Station.
(3) Crime No,6/98 under section 13-D, Arms Ordinance of Mithi Police Station."
21. ' Based on the aforementioned, the activities of the detenu, according to the District Magistrate, were found to endanger the public safety and maintenance of law and order and consequently, the detenu was ordered to be detained.
22. We have given our anxious consideration to the basis and the grounds employed for passing the order of detention. We feel that the expression "public order" used in the order of detention, is not warranted by circumstances because before an act is held to be prejudicial to public order, it must be shown that the act or activity is likely to effect the public-at-large. An act which concerns only to an individual and does not amount to an activity prejudicial to public peace and tranquility cannot fall within the ambit of section 3 of the Maintenance of Public Order Ordinance, 1960.
23. Indeed, the police has already registered three cases against the detenu under various provisions of Penal Code, which clearly shows that the detenu was accused of substantive offences and, therefore, his preventive detention on the same set of allegations could not be justified in law.
24. ' We are conscious of the fact that the Constitution of the Islamic Republic of Pakistan does authorise preventive detention under a law to be enacted in accordance with the provisions of clause (i,e,) to clause (viii) of Article 10 of the Constitution. The present Ordinance has been enacted with a view to consolidate law providing for preventive detention and control of persons and publications for reasons connected with public safety, public interest and maintenance of public order in the Province of Sindh. Section 3 of the Ordinance further authorizes the Provincial Government to commit a person under preventive detention if it is satisfied that it is necessary to do so in order to prevent him from acting in any manner prejudicial to public safety or maintenance of public order for a period of not exceeding three months which period may be extended from time to time subject to the approval of a Review Board to be constituted by the Government in accordance with the provisions of subsection (5) of section 3 of the Ordinance.
25. Such being the scheme of the law, we are of the opinion that as, admittedly which aspect has been agreed to by the learned Additional Advocate-General, that the detenu is detained in substantive offences on criminal charges and is facing trial before the Court of competent jurisdiction which finds mention in the order of detention. As such we are of the firm opinion that the preventive detention of the detenu on the same set of allegations could not be justified in law. We are further conscious of the fact that before an act is held to be prejudicial to public order, it must be shown that the act or activity is likely to effect the public-at-large. As a corollary, therefore, it follows that an act which concerns only an individual and does not amount to an activity prejudicial to public peace and tranquility cannot fall within the ambit of section 3 of the Ordinance. The nature of allegations contained in the substantive offences forming the grounds of detention in the impugned order could not by any standard of reasoning, be judged as prejudicial to the maintenance of public order. Our attention has been invited to reported judgments 1994 SCMR page 1532 (Mrs. Irshad Ali Khan v. The Government of Punjab) and 1992 PCr.LJ page 2251 (Naban Khan v. The Province of Sindh), wherein basic police report on which the District Magistrate had based his detention order was also not available on record. Hence a Division Bench of our Court had declared the order of such detention to be without lawful authority and of no legal effect.
26. Similar is the situation in the present petition before us where, the learned Additional Advocate- General had not been able to provide before us, any police papers or reports on which the District Magistrate has based his detention order.
27. ' Aforementioned are our reasons in respect of the short order pronounced by us on 24-2-1998.