' The petitioner Muhammad Ashraf through this Constitutional petition has challenged the order dated 19-12-1998 of District Magistrate, Gujranwala whereby he has been ordered to be arrested forthwith by the police and detained in the custody of Superintendent, Central Jail, Gujranwala, under section 3 of Maintenance of Public Order Ordinance, 1960 for a period of three months from the date of his arrest. The petitioner was arrested on 19-4-1999 and is presently confined in Central Jail, Gujranwala.
2. The perusal of the detention order shows that the same has been passed on the report of the Executive Engineer, Sheikhupura Division, U.C.C. Sheikhupura dated 20-8-1998 to the effect that the petitioner is habitual of committing canal water thefts and even the registration of cases under section 430, P.P.C. Has no healthy effect on him and due to his such mischief an unrest amongst the people of the area and law and order situation is created. On receipt of the report, District Magistrate after a meeting with the Senior Superintendent of Police, Gujranwala and Executive Engineer, Irrigation, deputed Illaqa Magistrate, Naushehra Virkan to visit the spot. The Illaqa Magistrate visited the spot on 9-12-1998 and saw signs of a fresh cut of the bank of "Rajbah Naushehra" at "Burji No, 4-5/R", pointed to him by the Patwari Halqa. He was also informed by the Patwari that the petitioner owns 20/25 acres of land and his rice crop is irrigated by canal water.
The detention order also narrates that according to the Illaqa Magistrate, the petitioner is desperate and no person of the area dares to give statement against him. The detention order goes on to provide that on the basis of the reports of the Executive Engineer and of the Illaqa Magistrate the respondent-District Magistrate came to the conclusion that activities of the petitioner regarding the commission of canal water thefts were prejudicial to the public safety and Sr.
No.F.I.R.
Nos.Date and time of lodging of F.I.R.Offence Complainant
1. 337/98 24-6-1998 at 9-15 a.m.379/430, P.P.CSyed Subtain Ali S.D.O.
2. 435/98 25-7-1998 at 2-30 p.m.-do- -do-
3. 454/98 4-8-1998 at 9-30 a.m.-do- -do-
4. 455/98 4-8-1998 at 10-10 a.m.-do- -do-
5. 456/98 4-8-1998 at 10-30 a.m.-do- -do-
6. 457/98 4-8-1998 at 11-00 a.m.-do- -do-
7. 458/98 4-8-1998 at ? a.m. -do- -do-
8. 461/98 6--8-1998 at 10- 20 a.m.-do- -do-
9. 462/98 6-8-1998 at 10-40 a.m.-do- -do-
10. 463/98 6-8-1998 at 11-30 a.m.-do- -do-
11. 464/98 6-8-1998 at 12-30 p.m.-do- -do-
12. 465/98 6-8-1998 at 1-30 p.m-do- -do-
13. 477/98 9-8-1998 at (sic) p.m.-do- -do-
14. 478/98 9-8-1998 at 12-30 p.m.-do- -do-
15. 479/98 9-8-1998 at (sic) a.m.-do- -do-
16. 480/98 9-8-1998 at (sic) a.m.-do- -do-maintenance of good order and, therefore, with a view to prevent the petitioner from acting in any manner prejudicial to the public safety and the maintenance of public order, the impugned order of petitioner's arrest and detention was passed. Similarly, the copy of the grounds of detention served upon the petitioner also shows that the impugned order has been passed on the basis of the reports of Executive Engineer and of the Illqa Magistrate to the effect that the petitioner is habitual of committing canal water thefts.
3. It is contended by the learned counsel for the petitioner that the petitioner has been involved in many canal water theft cases by the S.D.O. Irrigation, due to the intervention of Provincial Minister for Irrigation with the ulterior motive of harassing and oppressing him for actively supporting an m.M.P.A belonging to the rival group of the Provincial Minister.
4. The petitioner is involved in a large number of criminal cases of canal water theft. A perusal of the list of criminal cases lodged against the petitioner is an interesting reading and the same is, therefore, provided below for the purposes of reference :
5. All the aforementioned cases were lodged against the petitioner at the same police station i,e, Police Station Naushehra Virkan. Out of above mentioned cases, five cases were registered against the petitioner on 4-8-1998, another five were registered against him on 6-8-1998, three
17. 485/98 11-8-1998 at 11-30 a.m.-do- -do-
18. 486/98 11-8-1998 at 11-45 a.m.-do- -do-
19. 487/98 11-8-1998 at 12-00 a.m.-do- -do- 20.488/98 11-8-1998 at 12-30 a.m.-do- -do-
21. 489/98 11-8-1998 at 12-30 a.m.-do- -do-cases were registered against him on 9-8-1998 and five cases were registered against him on 11-8-1998. The District Magistrate, present in Court, has tried to explain that although the list shows that as many as five cases have been registered against the petitioner for the same offence i,e, theft of canal water on one day but the dates of occurrence of all these cases are different. He has, however, not been able to explain as to why the petitioner has been involved now for the occurrence& which took place earlier on, spread over many months and why the complainant who is the same person namely Syed Subtain Ali S.D.O. Failed to lodge the complaints promptly on the days the offences are alleged to have .Been committed. It may also be mentioned here that learned counsel for the petitioner has explained that in all these cases, the petitioner was involved in the offences under sections 379 and 430, P.P.C. The petitioner challenged his involvement in these cases through Writ Petition No,18396 of 1998 which was partly accepted and the offence of section 379, P.P.C. Was deleted under the orders of this Court and , thereafter, the petitioner was granted bail by the concerned Court in the offence of section 430, P.P.C. In all these cases and the petitioner has been arrested now in a mala fide manner through impugned order only after the grant of bail because the petitioner's political opponent failed to achieve the desired results even after getting the petitioner involved in a large number of canal water theft cases. Learned counsel has also argued that involvement of single person in such a large number of canal theft cases on the face of it is mala fide and the F.I.R. Versions are unbelievable.
6. The detention order is also being challenged on the following legal grounds:-- "(a) A District Magistrate cannot pass a detention order and cannot get a person arrested and detained without the prior approval of Provincial Government as envisaged in subsection (4) of section 3 of Punjab Maintenance of Public Order Ordinance, 1960.
(b) The Involvement of a person in many criminal cases is not a legal ground for the preventive detention of a person under section 3 of the Ordinance."
7. Learned counsel for the petitioner while elaborating upon his argument that a District Magistrate cannot pass a valid detention order without prior approval of the Provincial Government, has referred to various clauses of the Maintenance of Public Order Ordinance, 1960 which are reproduced below: "Section 2---Definitions: "Government" means the Provincial Government of the Punjab.
' Section 3(1), Government, if satisfied tha_ with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7), of such person for ,such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for ,he aforesaid reasons, it is necessary so to do, may, extend from time to time the period of such detention, for a period not exceeding six months at a time.
[Explanation-I].---For the purposes of this section---
(i) dealing in the 'black-market' or 'hoarding' as defined in the Hoarding and Black Market Act, 1948; or
(ii) an act of smuggling punishable under the Sea Customs Act, 1878, or the Land Customs Act, 1924, or under any other law for the time being in force; or
(iii) an act which is an offence under the Drugs Act, 1976 (XXXI/76) shall be deemed to b., an act prejudicial to the maintenance of public order.
[Explanation-II.--Whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force in the Province, at any time during the period of seven days immediately before it was so declared to be unlawful, or remains or becomes a member of such an association or is on the Executive Committee thereof after it has been so declared to be unlawful shall be deemed to be acting in a manner prejudicial to the public order for the purposes of this section.]
(2) If a District Magistrate , or any other, servant of Government authorised in this behalf by a general or special order of Government has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for orders.
(3) On receipt of a reference under subsection (2), Governments may---
(a) reject the reference; or
(b) make an order of arrest and detention in terms of subsection (1). Section 26. Government may, by order in writing, direct that the power under subsection (1) of section 3 shall, subject to such restrictions as may be specified, be exercisable by any District Magistrate within his jurisdiction."
8. It is argued by the learned counsel for the petitioner that though the powers of Government to arrest and detain a person as provided in subsection (1) of section 3 of the Ordinance can be delegated by the Government under section 26 of the Ordinance to any District Magistrate and would be exercisable by any such delegatee District. Magistrate, within his jurisdiction, yet under subsection (2) of section (3) of the Ordinance, if a District Magistrate is of the opinion that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the Maintenance of Public Order, he has to make a reference to the Government and he cannot straightaway pass an order of arrest and detention of such a person and the order of arrest and detention can be passed by the District Magistrate only after obtaining the approval of Government to the said effect upon the above said reference, under subsection (4) of section 3 of the Ordinance. The argument of the learned counsel is that even after the delegation of powers to the District Magistrate by the Government under section 26 of the Ordinance, the provisions of subsection (2) and subsection (4) of section 3 of the Ordinance do not become redundant. In support of the argument, learned counsel placed his reliance on Liaquat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Karachi 78 (D.B.) wherein it was held that "The West Pakistan Maintenance of Public Order Ordinance, 1960, being an infringement of the rights and liberties of the citizens, should be strictly construed, and, when two interpretations of a provision are possible, then the one which is in favour of the citizen should be adopted. In our opinion, the requirements laid down in subsection (2) of section 3 are not dispensed with when powers of the Provincial Government under subsection (1) are delegated to the District Magistrates.
Notwithstanding such delegation, it would still be necessary for the District Magistrate to make reference to the Provincial Government with regard to the prejudicial activities of a citizen, and, when such reference is made, the Provincial Government may pass such order as it may be fit.
Therefore, section 26 which permits delegation of the Provincial Government's powers under subsection (1) of section 3 should be interpreted in the context of the provisions of subsection (2) of the section. What can be delegated under section 26 is only the part to arrest and detain a citizen.
But the faculty of satisfaction cannot be delegated to the District Magistrate. Even section 26 itself makes this position clear, in that it provides only for delegation of the Provincial Government's "power" under subsection (1) of section 3. "Power" is not the same thing as "satisfaction". Subsection
(1) of section 3 first requires the Provincial Government to be satisfied with regard to the necessity of preventive detention of a citizen, and upon such satisfaction being reached, the Provincial Government can exercise the power of directing arrest and detention of such person. Reading subsections (1) and (2) of section 3 and section 26 together, the legal position, which emerges is that what can be delegated is only the power to arrest and detain a citizen. But as regards "satisfaction", this has to be of the Provincial Government, and not of the District Magistrate to whom power of arrest and detention is delegated. The procedure under these provisions, therefore, would appear to be that first a reference is made by the District Magistrate to the Provincial Government with regard to be prejudicial activities of a citizen and then it is the Provincial Government which should be satisfied as to, the necessity that such person should be detained under the Ordinance, and upon such satisfaction being reached, the necessary order is made directing the District Magistrate to arrest and detain such person".
9. Learned counsel for the petitioner has, however, pointed out that contrary view has been expressed by Lahore High Court in many judgments and was asked to render his able assistance in this regard and the hearing of the petition was postponed from 1-6-1999 to 2-6-1999. On 2-6-1999, the learned counsel for the petitioner, in all fairness, has pointed out the judgments passed by this Court discussed below in this paragraph, though being not relied upon by him, in which the view expressed by Sindh High Court in Liaqat Ali v. Government of Sindh (supra) has not been adopted or followed and a contrary view has been expressed to the effect that a District Magistrate can pass an order of arrest and preventive detention under subsection (1) of section 3 of the Maintenance of Public Order Ordinance, 1960, if delegated powers by the Government under section 26 of the above said Ordinance, without making a prior reference to Government and without obtaining a prior approval of Government of the arrest and detention as envisaged and provided in subsections (2) and (4) of section 3 of the Ordinance. In Noor Muhammad v. District Magistrate, Multan (PLD 1976 Lahore 233), a learned Single Judge of this Court held that the interpretation of sections 3 and 26 of the Maintenance of Public Order Ordinance that District Magistrate has to follow the requirements of subsection (2) of section 3 in spite of delegation of powers under subsection (1) renders provision of section 26 redundant. It was held that satisfaction being condition precedent to make order of detention, power of detention, if conferred on some officer must carry power to be satisfied as to necessity of detention. The District Magistrate empowered by the Government to order arrest and detention was, thus, held to be competent to order arrest and detention on his own satisfaction and was not bound to refer the matter to Government for according their sanction. Learned Judge explicitly dissented with the view expressed by a Division Bench of Sindh High Court in PLD 1973 Karachi 78, referred to above. Similar view was expressed by a learned Single Judge of this Court in Mst. Shazia Parveen v. District Magistrate Okara (PLD 1988 Lahore 611). Such was the view expressed by a Division Bench of this Court in Muhammad Siddiq Khan v. District Magistrate (PLD 1992 Lahore 140) and once again the view expressed by the Sindh High Court in Liaqat Ali's case was dissented with and it was held that where power under section 3(1) of Maintenance of Public Order Ordinanc No,XXXI of 1960 has been delegated by the Government to the District Magistrate in terms of Section 26 he need not make a reference to the Government but can direct the detention and "it would be anomalous to hold that though under section 3(1) District Magistrate has the power to order the detention but the satisfaction that the person is likely to act in a manner prejudicial to public safety or maintenance of public order must be that of the Government to whom a reference must be made by the District Magistrate under subsection (2) of section 3." The Honourable Judges were also the view that subsection (2) is applicable only to a case where the powers have not been delegated by the Government to the District Magistrate. The Honourable Supreme 2ourt while considering a similar provision in the Defence of Pakistan Rules in Malik Ghulam Jilani v. The Government of West Pakistan through the Home Secretary, Lahore and another PLD 1967 SC 373 took similar view. The view expressed by 'a Division Bench of this Court in Muhammad Siddiq v. District Magistrate (supra) on the basis of interpretation of similar provision made by the Honourable Supreme Court in Malik Ghulam Jilani's case is binding on this case. It is, therefore, held that the respondent-District Magistrate who has been delegated the powers of Government under section 26 of the Maintenance of Public Order Ordinance, 1960 was competent to pass the impugned order of petitioner's arrest and detention.
10. I am also convinced that in passing the impugned order of petitioner's arrest and detention, the respondent-District Magistrate, Gujranwala did not act in a mala fide manner. The perusal of the order shows that the impugned order was not passed in routine and the respondent-District Magistrate was convinced that the petitioner's arrest and detention under the circumstances is necessary. As to whether the same is lawful or not, independently of any personal mala fide of the respondent-District Magistrate is, therefore, the subject-matter of this petition. As to whether the complainant-S.D.O. Acted in a mala fide maimer in involving the petitioner in a large number of canal water theft cases is not the subject-matter of this petition and that issue is to be decided elsewhere at the proper forum, if agitated by the petitioner,
11. Learned counsel for the petitioner, as mentioned in para. 6 above, has also argued that merely the involvement of a person in many criminal cases, is not a legal ground for the arrest and detention of a person under section 3 of the Maintenance of Public Order Ordinance, 1960 and, therefore, the impugned order is liable to be set aside on this ground. In this regard, learned counsel has referred to and has relied upon many judgments of the superior Courts of the country which are discussed hereafter. In Mst. Sorayya Begum v. Government of the Punjab and two others (1979 PCr.LJ 660 (Lahore), the detention order was passed against the detenu Muhammad Aslam as he was reported to be a man of desperate character, a terror to society, involved in several criminal cases for various offences, still .Pending adjudication, it was held that merely involvement of a person in many criminal cases is no ground for his detention under section 3(1) of the Maintenance of Public Order Ordinance, 1960. Learned Single Judge further held that "The Administration by its decision to prosecute that man for his alleged criminal offences in the criminal Courts has chosen a particular forum for that purpose and that man cannot be punished twice for the same offence by way of detention. In Masal Khan v. District Magistrate Peshawar and three others PLD 1997 Peshawar 148, a Division Bench of Peshawar High Court held that the impugned detention order had been passed on the registration of petty criminal cases and no case showed the indulgence of the detenu in activities prejudicial to the public peace and law and order situation or establishing him to be a desperate or dangerous criminal. The detention order in the circumstance was set aside. It was also held that the Constitutional petition against the detention order was maintainable, firstly because freedom and liberty of the detenu was involved which was his Constitutional right and secondly the High Court has got the supervisory jurisdiction over judicial, quasi-judicial and executive functionaries of the Province and the Federal Government. The Honourable Judges also held that the remedy provided to the detenu by way of representation to Provincial Government was not, under the circumstances, an adequate remedy.
In Muhammad Yasin v. District Magistrate, Kasur and another 1997 MLD 2211 (Lahore), it was once again held by a Single Bench of this Court that pendency or decision of criminal cases against the detenu could not justify hi ; detention and involvement of an accused in a number of criminal cases is pe se not a valid ground for his preventive detention. Similarly, in Muhammad Mushtaq v.
District Magistrate, Sheikhupura and another 1997 MLD 1658 (Lahore), it was held that involvement of the detenu in a number of criminal cases per,se was not a valid ground for his preventive detention as he could not be vexed twice on the basis of same criminal charge due to pendency or disposal of the said criminal cases and his detention was nothing but punishment depriving him of his liberty. Reliance was placed by the learned Single Judge (Muhamamd Naseem Chaudhri, J.) in this regard on the following judgments:- "(i) Shahbaz Afghan v. The District Magistrate and 2 others 1990 PCr.LJ 274,
(ii) Mst. Shazia Parveen v. District Magistrate, Okara PLD 1988 Lahore 611,
(iii) Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913,
(iv) Umer Din alias Umroo v. S.H.O. Bhai Pheru and 3 others 1990 PCr.LJ 948: and
(v) Jalal alias Jala v. District Magistrate, Kasur and 2 others 1990 PCr.LJ 1529."
' Likewise, in Muhammad Azeem v. District Magistrate, Rahim Yar Khan and another (1998 PCr.LJ 1123), it has again been reiterated that involvement of a detenu in several criminal cases of theft cannot be a lawful basis for ordering his arrest and detention under section 3 of the Maintenance of Public Order Ordinance, 1960 . In Mian Ghulam Farid v. District Magistrate, Vehari and others (1998 MLD 577 Lahore) it has been held that "A person can be detained under provisions of Maintenance of Public Order Ordinance, 1960 only when he is a threat to public peace and tranquility in the area. There is a material which manifests that he actually is such a danger and it has to be shown that District Magistrate applied his conscious mind to the material placed before him and thereafter had, after evaluating the material objectively, came to the conclusion that the detenu was a person who if left at large would be a source of mischief in the area and then has to pass the order in order to achieve the objective of the Ordinance".
12. The abovementioned shows that it is now a settled law that merely involvement of a perscn in many criminal cases, per se, is not a valid ground for the arrest and detention of the said person, under section 3 of the Maintenance of Public Order Ordinance, 1960. The District Magistrate can lawfully pass an order of arrest and detention of a person under section 3 of the Maintenance of Public Order Ordinance, 1960 only when the District Magistrate is convinced' that such a person is threat to public peace and tranquility in the area and that if left at large, he would be a source of mischief in the area. In the instant case, the detention order has been passed merely on the basis of involvement of the detenu in many petty criminal cases of canal water thefts and his arrest has been caused only after his bail in the said cases. I may also mention here that it is now a settled law that the word "satisfied" as provided in subsection (1) of section 3 of the Maintenance of Public Order Ordinance, 1960, does not mean subjective satisfaction of the District Magistrate or of the Provincial Government as the case may be and the order must meet the objective standards and tests and is, therefore, open to the scrutiny by this Court in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In the present case, the material placed before the District Magistrate at the time of the passing of the impugned order does not show that the detenu is a threat to public safety, maintenance of public order or to peace and tranquility. The material placed before the District Magistrate was only to the effect that the petitioner is involved in many petty cases of canal water thefts and that he is habitual in commission of the same. On the basis of this material, it cannot be concluded that the petitioner is a threat to safety or maintenance of public order. The conclusion drawn by the District Magistrate from the material placed before him is, thus, without any basis. The Administration instead of pursuing those criminal cases against the petitioner in the Courts of general criminal jurisdiction cannot be permitted to have recourse to the short-cut and the powers under section 3(1) under the Maintenance of Public Order Ordinance, 1960 cannot be allowed to be used in this manner because the same is neither the object of the Ordinance nor requirement of law and, if permitted, such an action would amount to convicting a person twice for the same offence.
13. The argument of the learned Additional Advocate-General that alternate remedy of a representation to Government under subsection (6) of section 3 of the Maintenance of Public Order Ordinance, 1960 is available to the petitioner and, therefore, this Constitutional petition should be dismissed, has no force because no doubt in Muhammad Siddiq Khan v. District Magistrate (supra), a Division Bench of this Court while answering a reference has dissented with the view expressed by Tufail Ali A. Rehman, C.J. And Fakhruddin G. Ebrahim, J. In Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others PLD 1973 Karachi 344 followed and adopted by a Division Bench of Peshawar High Court in Masal Khan v. District Magistrate, Peshawar and 3 others PLD 1997 Peshawar 148 and has held that the remedy of filing representation under section 3(6) and subsection (6-A) of the same is an adequate remedy within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 but the Honourable Judges have also held that "By so observing we do not find to lay down an inflexible rule and we should not be taken to have held that in no case a Constitutional petition can be filed without filing a representation. There may be cases where it can be demonstrated that it is not possible to file a representation for example, where no grounds of detention are communicated to the detenu or where the filing of the representation would be a mere exercise in futility. Similarly, there may be other cases like complete lack of jurisdiction, the authority passing the order of detention where the filing of representation may not be necessary. In the ultimate analyses, the question as to whether it would be necessary to file a representation in a given case would depend upon the facts of that case." In the present case, the impugned order for the detention of the petitioner for a period of three months was passed on 19-12-1998, the petitioner was arrested on 19-4-1999 i,e, 1-1/2 months ago and at this stage when he has already undergone half of the period of his detention, asking him to avail the alternate remedy of a representation to Government before approaching this Court in Constitutional petition is not just and fair and is rather contrary to the interests of justice. I have also noted that the instant petition was instituted on 4-5-1999. It came up for hearing for the first time before this Court for 7-5-1999 when the Additional Advocate-General was called by this Court and he was asked to ensure the furnishing of report and comments from the respondent-District Magistrate before 12-5-1999. The needful was not done in time, a show-cause notice was issued against the respondent on 12-5-1999 in the presence of learned Additional Advocate-General, with a further direction to the respondent to submit report and parawise comments before 17-5-1999 and the same were furnished only on 17-5-1999. The petition was taken up, next for heat ng on 27- 5-1999 when it was postponed for 1-6-1999 to enable the petitioner's counsel to file rejoinder to the report and comments and thereafter the petitioner has been heard now on 1-6-1999 and 2-6-1999.
It shows that much of the time was consumed by the respondent himself in furnishing delayed report and comments and the petitioner himself is not at fault. Therefore, now in this petition, the remedy of a representation before Government at this stage can hardly be termed as an alternate remedy what to say of an efficacious alternate remedy.
14. In view of what has been discussed above, the impugned order of detention No,32171- 76/MPO/CNF/RDM, dated 19-12-1999 passed by the respondent-District Magistrate, Gujranwala, whereby the petitioner Muhammad Ashraf was directed to be arrested and detained for a period of three months, is set aside as having been passed without lawful authority. The detenu is directed to be set at liberty at once.