JUDGMENT BASHIR A. MUJAHID, J.- Petitioner has challenged the order dated 5.7.2000 passed by the District Magistrate, Okara. In consequence of. Said order Shah Behram Bodla, husband of the petitioner was arrested and detained in Central Jail, Sahiwal under Section 3 sub-section (1) of Maintenance of Public Order Ordinance, 1960.
2. Arguments were heard at some length, on the last date of hearing i. e. 4.8.2000, when a copy of the petition was sent to the Home Secretary, Government of the Punjab to decide the same as a representation filed by the petitioner on behalf of the alleged detenu. The same has been dismissed vide order dated 16.8.2000.
3. Spring pendency of the present writ petition for applications were filed bearing Nos. C.M. 890-891, 892 and 893 of 2000 by different persons through Raja Zulqarnain, Advocate to be impleaded as party. Those were allowed by this Court vide order dated 27.7.2000.
4. Arguments of the learned counsel for the petitioner have been heard. Raja Zulqarnain, learned Advocate for newly-impleaded respondents and Mr. Nasim Sabir, learned Additional Advocate- General have supported the impugned order.
5. Record perused.
6. The District Magistrate, had passed the impugned order dated 5.7.2000 under which Shah Behram Bodla was arrested and detained for a period of 60 days in Central Jail, Sahiwal, in exercise of power under Section 3(1) of West Pakistan Maintenance of Public Order Ordinance, 1960. The grounds provided to the alleged detenu are reproduced as under:-
(1) He is in the habit of harbouring robbers/dacoits with the intention of facilitating the commission of heinous crimes.
(2) He is acting in a manner-prejudicial to public safety and Maintenance of Public Order.
(3) The above ground and reasons for the detention are being communicated tp him as required by the provisions of Section 3(6) of the West Pakistan Maintenance of Public Order Ordinance Act No. XXXI of 1960, to enable him to make, if so desires a representation to the Government against the order of his detention. He is hereby informed that he is at liberty to make such representation to the Government against the said order.
7. The' memorandum of grounds are of cyclostyle nature and particularly ground No. 1 mentioned above has been typed in the proforma, but the detail has not been given therein as to whom the detenu gave protection, what action the police or local administration had taken and what he did demonstrating that he had directly subverted and thwarted the administration of law and justice, had created thereby a law and order situation in the area to paralyse the administration by getting the offence 'Committed and screening offenders by giving them protection and frustrated the efforts of the police in detecting the crimes. I have perused the FIRs offences alleged thereunder, against the detenu and other co-accused are with respect to some individuals and not affecting the public at large; none of the FIRs contain the allegations of harbouring etc. Sections 212, 216 and 216-A deal with harbouring, but none of the FIRs either pre or post detention contain any of these sections, meaning thereby that the detenue has been detained on groundless charge as other grounds are consequential on the basis of ground No. 1, which is baseless.
8. Report and parawise comments were summoned by this Court from the District Magistrate, Okara: The same reveal that the detention order was issued merely on the basis of report submitted by the Police Officers. SP, Okara had recommended his detention on 27.3.2000, 9.5.2000 and 1.7.2000. After these reports the matter was referred to Assistant Commissioner, Depalpur for inquiry who entrusted the matter to the Ilaqa Magistrate and. The reports of the Police Officers were endorsed and forwarded to the District Magistrate for his satisfaction, who passed the impugned order. It has also been submitted in the report, that the detenu is ' Rassa Geer' and protects criminals, cattle lifters and provide protection to- dacoits and criminals. He is involved in different for FIRs bearing No:-
(1) FIR No. 4, dated 5.1.1998 H(ii)/148/149, PPC, P.S., Hujra. u/S. 342/452/337-F(i)/337-
(2) FIR No. 8, dated 14.1.1999 u/S. Saddar, Depalpur. 440/447/148/149, PPC P.S.
(3) FIR No. 9, dated 14.1.1999 u/S. Depalpur. 354/337-H(ii), P.S. Saddar,
(4) FIR No. 234, dated 16.5.1997 u/S. P.S. Gujra. 324/364/379/148/149, PPC,
9. The learned District Magistrate has although denied the plea of the petitioner that he had not acted by application of his judicial mind while passing the impugned order but the documents attached with his report i.e. The so-called Magisterial inquiry referred to in the parawise comments and the order of the Home Secretary show that the Assistant Commissioner, Depalpur had further entrusted the inquiry to the Ilaqa Magistrate and the Ilaqa Magistrate referred the same to ASP, Depalpur who had reported against the detenu which was relied upon by the Ilaqa Magistrate and also by the District Magistrate. The same ASP had originally reported to SSP, Okara to prepare report against the detenu for passing the impugned order. All this exercise leads to believe/infer that the District Magistrate has not applied his independent judicial mind. The report of SSP and also of the Ilaqa Magistrate which has been taken into consideration by the District Magistrate is based on the report of the local police which is never considered to be safe for passing the detention order against the detenu. There was no material with the District Magistrate for his perusal and on the basis of which he reached the conclusion that the detenu was likely to la^t in particular manner, as is evident from his detention order/letter, which contains no such derail and as stated supra, while passing the order he did not apply his independent mind and depended upon the opinion letters from the S.P. Concerned, wherein the SP had endorsed the suggestions/letters sent to him by the ASP and the so-called Magisterial inquiry also depended upon the inquiry of the said ASP who had initiated the move. The District Magistrate is the delegatee/authorized/authority under Section 26 of the Ordinance and not the SP. It would never be the intendment of law that police should control the discretion and solemn judgment of the Officers entrusted with high and important matters. It is well-established rule that mere adoption of reports of other functionaries by the authorities competent to pass orders would render the so- called orders invalid jurisdiction wise. As held in Ghulam Jilani's case (PLD 1967 SC 373) the detaining authority is expected to exercise the public power of apprehension and detention in accordance with law and not arbitrarily and perversely, as that exercise is subject to the ascertainment of reasonable grounds, being quasi-judicial function. This question has been considered by the Honorables Supreme Court and by this Court in different cases and reference can be made to Government of West Pakistan and others Vs. Begum Agha Abdul Karim Shorash Kashmiri (PLD 1969 SC 14), wherein it has been held that initially burden lies on detaining authority to establish liability of action. Onus of proving mala fades shifts to detenu only thereafter. It is settled law that mere registration of different criminal cases is not sufficient ground to detain a person, or the petitioner facing trials or convicted and acquitted could not form basis for preventive detention and there was no material available with the District Magistrate to establish anti-State activities against the detenu and to justify the precautionary order of detention.
10. Learned counsel for the petitioner has put stress on the-fact that the impugned order is motivated due to the detenu's grudge with Rao Khurshid-uz-Zaman, with whom the detenu admittedly has long standing enmity and there is pendency of criminal as well as civil cases. The same is obvious, as the said Rao Khurshid-uz-Zaman moved application by engaging a counsel for impleading him as party and -tried to support justify the detention. Furthermore the cases against the detenu were registered in the year 1997, 199$ and lastly on 14.1.1999, but the letters from the SP to District Magistrate have been written on 27.3.2000, 9.5.2000-and 1.7.2000 within a span oft for months, but during intervening period viz. From 14.1.1999 till 27.3.2000, no case was registered or complaint made against the detenu from any corner, which made the District Magistrate to believe that the detenu was expected to act in a manner prejudicial to public safety and maintenance of public order, whereas mala fide is evident, as after his detention three cases have been registered against him. One prior and one post detention case is on the instance of Rao Khurshid-uz-Zaman.
In most of the case? Referred to by the respondents either the cases have been cancelled or are still pending investigation and on the basis of same criminal charge, he cannot be vexed twice.
Reliance has been made on Muhammad Ali Vs. District Magistrate, R. Y. Khan (PLD 1996 Lahore 342).
11. In Mst. Shazia Parveen Vs. District Magistrate, Okara (PLD 1988 Lahore 611), Mr. Justice Fazal Karim, as he then was, has discussed the case-law in detail and all the aspects of the law on the subject and concluded in para 33, as under:- "Person's past conduct may be relevant for the purposes of a detention order, yet a line must be drawn between past acts for which the administration had decided to prosecute and the past acts for which the administration had not so decided. For, when you detain a person for his past acts, and those acts are acts for which the person had already been tried and acquitted, then you are detaining him for some thing which the Court of competent jurisdiction had, as the spokesman of the responsible man, found not to have been committed by him; and if the past act be an act for which he is being prosecuted, then you, are detaining him for an act which he has yet to be proved to have committed. Then as in preventive detention at least one Of the objects of detaining a person for an alleged offence during trial is to prevent him from committing more crimes; and according to the well-known theory of punishment known as the preventive theory, the object of punishment is to incapacitate the offender from committing further crimes and to save the society from the offender's evil (feeds. Thus, if a person has been arrested for an offence under the Prohibition Order, for being in possession of heroin or opium, he will not ordinarily be allowed bail for a period of one year and that will serve precisely, if a person is tried and. Punished, that will autocratically produce the result of preventing the repetition of crimes by him. It was then said that preventive detention is not punishment that in my opinion, is a play on the meaning of the word 'punishment'; whether the detention is punitive, the consequence, as regards the person detained, is the same, namely prevention of liberty and that is certainly punishment."
The same view was expressed by this Court in Umer Din Vs. SHO, etc. (KLR 1990 Crl. Cases Lahore 4) and Mst. Bashiran Bibi Vs. DM. Kasur (KLR 1990 Crl. Cases Lahore 12) while setting aside the detention order that mere registration of different cases is not sufficient to pass a prohibition order. In case of Mrs. Arshad Ali Khan Vs. Govt, of Punjab through Secretary Home (1994 SCMR 1532) the word 'public order' used in Section 3 of Maintenance of West Pakistan Public Order Ordinance has been defined as under:- "The word 'public order' is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order < may not necessarily affect security of the State."
Whereas in the instant case the affecters are some individuals and not the public at large. The act/alleged offence concerns against some individuals, does not amount to an activity prejudicial to the public peace and tranquillity, so cannot fall within the ambit of Section 3 of the Ordinance.
Cases have been registered by the police against the detenu under various provisions of PPC which clearly shows that the detenu is accused of substantive offences and therefore,-his preventive detention on the same allegations cannot be justified in law.
As a result of discussion of facts and following the dictum down in the above-mentioned cases, I am of the considered view that the District Magistrate, Okara has proceeded on wrong premises to pass the detention order and without applying his independent judicial mind. The grounds taken are without any base. As already stated mere registration or pendency of different criminal cases against the alleged detenu is hot sufficient to detain him because liberty of a person is his sacred right.
Resultantly, the writ petition is accepted and the impugned order dated 5.7.2000 of the District Magistrate, Okara and dated 16.6.2000 of Home Secretary are hereby set aside having been passed without lawful authority Shah Behram Bodla is ordered to be set at liberty forthwith if not required to be detained in any other case.