SHAH JEHAN KHAN, J.---Ghani-ur-Rehman petitioner has called in question his detention order under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (hereinafter to be referred as "the Ordinance") issue by District Magistrate, Hangu on 10-2-2000 whereby the petitioner was taken into custody and ordered to be kept in detention for a period of thirty days.
2. It is alleged in the instant habeas corpus petition that one Niamatullah Gandapur S.D.O. Public Health, Hangu filed a report against the petitioner for raiding his house, beating the inmates and putting them in lock-up. As the petitioner had showed his resentment over the transfer of a Civil Engineer and in order to compel the said S.D.O. To cancel the transfer order he also was blamed for threatening the said S.D.O. Of throwing him out of the office and his residence. The report was inquired into and an F.I.R. Bearing No,2 dated 3-1-2000 was registered against the detenu, for committing an offence under section 506/186/148/149, P.P.C. At Police Station Hangu. After failing to get pre-arrest bail he applied for post-arrest bail which was allowed to him by the Senior Civil Judge/Judicial Magistrate, Hangu vide his order dated 11-2-2000. The petitioner was not allowed to come out of the custody as on the date of bail granting order he was served upon the impugned detention order in jail.
3. The District Magistrate, Hangu as well as the Advocate-General, N.-W.F.P. Peshawar were served with notices of H.C.P. On their appearance before the Court they asked for some time to file the comments, they were allowed to file the comments alongwith documents. In their comments it is alleged that petitioner has involved himself in objectionable activities detrimental for the peace and tranquility in District Hangu and credible information to this effect was received from different sources. He also contended that petitioner was planning to provoke/instigate the general public for creating disturbance for local administration. The previous record of criminal activities of the petitioner was also considered for issuing the impugned detention order. In this respect reliance was placed in case F.I.R. No, 517, dated 20-7-1992 under section 506B/341/148/149, P.P.C. Police Station Hangu, F.I.R. No,547, dated 21-9-1998 under section 302/109/34 P.P.C., Police Station Hangu and case F.I.R. No,2, dated 31-1-2000 under section 506/186/148/149, P.P.C.
4. Learned counsel for the petitioner contended that the impugned detention order is based on mala fide and the mala fide is evident from the fact that it was issued the same day when the petitioner was allowed bail by the Senior Civil Judge in a criminal case registered against him. The respondent District Magistrate has not brought on record any report of the concerned agency to show that petitioner was involved in objectionable activities detrimental for the peace and tranquility in the area. While making a reference to the copies of F.I.R. Attached with the parwaise comments it was argued that neither the registration of criminal cases will invite an action under the Ordinance nor there is any involvement proved by Courts of competent jurisdiction in those criminal cases. In support of his contention he relied upon a number of cases reported in Mrs. Arshad Ali Khan v. Government of the Punjab 1994 SCMR 1532, Mst. Zakia Begum v. District Magistrate 1999 PCr.I I 18, Muhammad Ayaz Khan v. District Magistrate 1995 PCr.LJ 587, Ahmad Ali v.
State 1995 MLD 1748, Syed Mehr Ali Shah v. District Magistrate 1997 MLD 1612, Muhammad Nasim v.
District Magistrate 1997 MLD 1236, Muhammad Yasin v. District Magistrate 1997 MLD 2211, Noor v.
District Magistrate 1992 MLD 1446, Muhammad Iqbal v. Deputy Commissioner/District Magistrate PLD 1992 Pesh. 107, Masal Khan v. District Magistrate PLD 1997 Pesh. 148 and Muhammad Ali v.
District Magistrate PLD 1996 Lah.
342.
5. In rebuttal the learned Additional Advocate-General submitted that registration of a number of criminal cases against the petitioner is evidence to show the character and conduct of the detenu.
The detenu was involved ih instigating the people against the present Government set up. In support of his submissions he placed reliance on Mrs. Farzana Kamran v. District Magistrate 1992 PCr.LJ 2336 and Syeda Shamim Akhtar v. Government of Pakistan 1996 PCr.LJ 326.
6. It is an admitted position that the petitioner detenu was arrested in case F.I.R. No, 2 dated 3-1- 2000 for committing an offence under section 506/186/148/149, P.P.C. On the report of Niamatullah Gandapur, S.D.O. Public, Health Hangu. The petitioner detenu was allowed bail by Senior Civil Judge Judicial Magistrate, Hengu vide his order dated 11-2-2000 after discussing the prosecution case set up by the Investigating Agency. The impugned detention order was issued on 10-2-2000 and executed on the petitioner on 11-2-2000 when he was still in custody in the aforesaid criminal case.
7. The grounds for detention appended with parwaise comments are as follows:--
(1) Feeling aggrieved over the change of Government you have resorted to unlawful activities.
(2) You are conspiring against the Government by instigating the general public and creating law and order situations.
(3) Your criminal activities have generated a sense of insecurity amongst the general public of the district.
(4) Your past criminal record and activities and further intentions are prejudicial to the public peace and safety.
8. The respondent/District Magistrate has not placed on record or even before the Court for perusal any report of the concerned agency to establish the charges Nos.1, 2 and 3 above. Had there been any such report the District Magistrate must have possessed the same before charging the petitioner-detenu. In absence of any supporting document we must say that the District Magistrate has miserably failed to justify the detention order on the grounds Nos.1, 2 and 3 enumerated in the detention order.
9. As regards the past criminal record consisting of three F.I.Rs, attached to the parawise comments, it could hardly be made basis for action under the Ordinance. F.I.R. No, 517 was registered on 20-7-1992 by one Muhammad Farid Mufakir Exh. M.P.A. Under section 506- B/341/148/149, P.P.C. The brother of present petitioner and the petitioner were charged for mere abetment. In the contents of F.I.R. It was reported that since the complainant in that case had a political rivalry with the petitioner who contested the election against the complainant in 1990 and for that reason he abetted the commission of offence. This case was registered in 1992 and is supposed to have been decided by now and even otherwise the contents of said F.I.R. Would not justify any action of the preventive nature.
10. Case F.I.R. No, 547 registered on 21-9-1998 on the report of Ali Jan Shah Khan, A.S.I. Regarding the murder of some unknown person by unknown culprits. The learned Law Officer for respondents failed to give any explanation that whether petitioner was charged and arrested in that case or not. Had he been nominated as an accused in that case he must have been arrested by the local police. This F.I.R. Appears to have been appended with the charge-sheet being an untraced case and to cook up a justification for taking action under the Ordinance. Even if the petitioner detenu is found involved in this case he would be dealt with in accordance with law by the Court of competent jurisdiction and will not justify the issuance of impugned detention order against the petitioner.
11. The third F.I.R. No,2 registered on 3-1-2000 has already been discussed and in that case the petitioner was allowed bail by a Court of competent jurisdiction and could not be found basis for preventive detention. All the three F.I.Rs, individually and collectively are not sufficient for intiation of an action under the Ordinance.
12. For the foregoing reasons, this writ petition is allowed, the impugned order of detention passed by the District Magistrate on 10-2-2000 under section 3 of the Ordinance, is set aside as illegal and without lawful authority and the petitioner detenu Ghaniur Rehman son of Said Malook Khan is directed to be released forthwith if not required in any other case.