' The petitioner is first cousin of Phullu son of Haji Madad, caste Koshan, resident of Noorpur Police Station Bhung, Tehsil Sadiqabad, District Rahimyar Khan. According to him the said Phullu is elder of the tribe and most of the voters of the Brothery used to cast their votes upon the wishes and willing of the said Phullu and that during the recent preceding General Elections he supported Sardar Rafique Hyder Leghari who was elected as Member Provincial Assembly from Constituency PP-240, Rahimyar Khan. Previously he supported Azhar Khan Leghari who also was returned from the said Constituency. During the elections held in 1992 he was involved in many false and fabricated theft and Bhunga cases vide F.I.Rs, Nos.14/91, 15/91, 16/91, 17/91, 18/91, 41/91 and 42/91 under sections 380/411, P.P.C. And 212, P.P.C. But in all the said criminal cases he was acquitted by the competent Court. As a result of recent previous elections the political opponents of Phullu by exercising their good offices and having been returned on National Assembly Seat of the ruler party managed to get him detained by the order, dated 12-4-1997 of respondent No,1 under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 for the allegations of the apprehension of breach of peace, safety and public tranquillity.
2. The petitioner seeks the quashment of the impugned order, dated 12-4-1997 on the grounds that the detenu is a peace-loving citizen, elder of the tribe, was elected as Councillor from Mauza Noorpur twice in the past and that due to his an influential role in the social and political life he has been victimised mala fidely. It is also stated that out of the seven cases five were registered on one and the same day, that is, 18-1-1991 at Police Station Sardar, Sadiqabad in which the complainant appeared before the Court and deposed on oath that as a matter of fact no theft was committed and that the detenu was involved by the police for the reasons best known to it. Likewise two cases registered vide F.I.Rs, Nos.41 of 1991 and 42 of 1991 on 25-1-1991 the complainant of both the cases disowned any theft having been committed. It is also submitted that no adverse inference could have been drawn in respect of the cases in which the detenu had been acquitted and the judgments of acquittal had attained finality. It is further submitted that thereafter no such case has uptil now been registered against the detenu and that mere registration of criminal cases about six years back could not furnish valid and justifiable grounds to deprive his right of liberty. It is also stated that the detenu is not a previous convict and has got unblemished record.
3. On the other hand the learned Assistant Advocate-General has taken the stand that the detention order is bona fide and five specific grounds have been mentioned in the impugned order and that alternate remedy of making representation to the Government against the detention order is available, as such, the present writ petition is not competent.
4. So far as the exercise of Constitutional jurisdiction by this Court is concerned availability of alternative remedy of making representation to the Government against the detention order does not fetter this Court in exercise of its Constitutional jurisdiction. This has been the constant view of this Court in the following cases:--- ' Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222, ' Azad Paper (Jasarat) v. Province of Sindh and others PLD 1974 Kar. 81, and ' Nasir Mahmood v. District Magistrate and others 1995 MLD 1766 (Lahore).
5. So far as the involvement of detenu in seven criminal cases of theft detailed above is concerned as those have ended in acquittal at the trial, it cannot be said that the detenu is having any blot on his character. No material is available on the record regarding Grounds Nos.2, 3 and 4. Those are mere conjectures and surmises. Had he been convicted in any of the said cases the matter would have been of course to some assistance to the prosecution. Still further, no person is to be vexed twice on the basis of the same criminal charge. There is a chain of authorities on this point of which:--- ' Shahbaz Afghan v. The District Magistrate and 2 others 1990 PCr.LJ 274, ' Shahzia Perveen v. District Magistrate, Okara PLD 1988 Lah. 611 , Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913, ' Umar Din alias Umroo v. S.H.O., Bhai Pheru and 3 others 1990 PCr.LJ 948, ' Jalal alias Jala v. District Magistrate, Kasur and 2 others 1990 PCr.LJ 1529, ' Noor Muhammad v. District Magistrate, Hyderabad, Sindh and 2 others 1990 PCr.LJ, 2052, and ' Muhammad Ali v. District Magistrate, Rahimyarkhan PLD 1996 Lah.
342. Can be cited. In all these cases the High Court had taken the view that due to the disposal or pendency of criminal cases the detenu cannot be deprived of liberty as his detention would be nothing the punishment.
6. The impugned order is a mechanical order and the prerequisite condition for issuance of such an order under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 was that the learned District Magistrate should have satisfied himself that a person is likely to act in a manner prejudicial to public safety or maintenance of public order and then, to direct the arrest and detention of that person for specified period. Such satisfaction with regard to the conduct of a person likely to act in a prejudicial manner must be objective in nature and not subjective so as to allow the executive authorities to act on their own fancies and there must be sufficient material before the authority to act upon it so as to justify the passing of an order of detention. In the present case, all the ingredients are lacking, as such, the order, dated 12-4-1997 is declared to be without lawful authority and of no legal effect. The writ petition is accepted in the above terms with no order as to cost.