' EJAZ AFZAL KHAN, J.--- The petitioner herein assailed the order, dated 27-10-2000 whereby the learned District Magistrate, Peshawar ordered the preventive detention of the petitioner for a period of one month under the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)
(hereinafter called the Ordinance).
2. The petitioner, as alleged in the detention order, is dealing with narcotics, has been proceeded against and convicted in numerous criminal cases: is habitual gambler, runs gambling dens and processing illegal arms for which he has to his discredit a string of convictions and to top it all is an imminent source of breach of peace and in this context his activities have been dubbed and described as prejudicial to the public safety and maintenance of public order.
3. The learned counsel appearing on behalf of the petitioner contended that the petitioner has said good-bye to the world of the crimes, reformed himself and is now leading a life of peace-loving and law-binding citizen after completely breaking with the past. The learned counsel contended that the registration or pendency of cases or even conviction therein will not per se justify an action under the Ordinance particularly when the penal laws whereunder the cases against him have been registered fully provide for proper treatment of the offenders. The learned counsel in this behalf placed reliance on the case of Masal Khan v. District Magistrate, Peshawar and 3 others PLD 1997 Pesh. 148 and the case of Kausar Ali alias Kausary v. Government of N.-W.F.P. And others PLD 1999 Pesh.
82.
4. Mr. Kh. Azhar Rashid, Assistant Advocate-General appearing on behalf of the respondents contended that in view of ever growing rate of crime and repeated involvement of the petitioner therein, the only effective and adequate way to forestall the recurrence and repetition of crimes is preventive detention of the petitioner. The learned Assistant Advocate-General further contended that in view of the availability of the alternate efficacious remedy of representation, the petitioner cannot straightaway invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
5. We have carefully considered the arguments of the learned counsel for the parties and scrutinized the material placed on the file by respondents for justifying the preventive detention of the petitioner under the Ordinance. No doubt that a series of cases has been registered against the petitioner under various provisions of General and Special Laws and in some of them he has even been convicted but this, by no means is a ground recognized by the Ordinance to justify the preventive detention of the petitioner. In the case of Muhammad Iqbal and 3 others v. Deputy Commissioner/District Magistrate, Mansehra and 3 others PLD 1992 Pesh 107, it was held that the allegation on which persons have faced the prosecution, trial, which resulted either in their conviction or acquittal cannot be made basis for ordering their detention under the prevention law.
The relevant paragraph is reproduced as under:-- ' "If the petitioners have faced the prosecution/trial on criminal charges, and have either been convicted or acquitted, then the same allegations cannot be made the ground for ordering their detention under the preventive law, which would not only be illegal but also unconstitutional."
' Similarly in the case of Masal Khan v. District Magistrate, Peshawar and 3 others (supra) it was held that the registration of petty criminal cases will not furnish a justification for preventive detention unless the indulgence of the detenu in the activities prejudicial to public peace and law and order situation is established which reads as under:-- ' "In the instant case the impugned detention order had been based on the registration of petty criminal cases under local and special law or other minor offences wherein the detenue was awarded fine of meagre amount with sentence till rising of the Court. The learned Additional Advocate-General failed to show any case of public nuisance or public tranquillity or his conviction for any offence establishing him as desperate or dangerous criminal."
' In the case of Kausar Ali alias Kausary v. Government of N.-W.F.P. Of and others (supra) it was held that registration and pendency of a few criminal cases or the commission or likelihood of committing any act which was covered by the ordinary criminal law will not make basis for the detention under the Ordinance. The relevant paragraph reads as follows:-- ' "Depriving a person of his liberty is an extreme step which is not countenanced by law except when it is called for by the law itself. It is, therefore, essentially required that before putting a clog on the liberty of a man on the plea of preventive measures the authority passing any order of detention shall qualify' it by the element of objective satisfaction in the terms and spirit of section 3(1) of M.P.O. It is highly important to note that registration and pendency of a few criminal cases or the commission or likelihood of committing any act which is covered by the ordinary criminal law of the country or to dig out a remote and far-lying case and to exygenise it for making a base for any action under Maintenance of Public Order Ordinance, 1960, is not warranted by law, thus, any order passed on such a ground reflects mala fide calling for judicial interference by the High Court.
Any order of preventive detention must have the backing of a living and immediate cause/ground due to which a preventive detention becomes indispensable."
6. The argument of the learned Assistant Advocate-General as to the availability of alternate efficacious remedy of representation under section 3(6-a) of the Ordinance has also left us unmoved because in the absence of any requirement that the Government shall consider the representation, we cannot hold this to be an alternate adequate remedy particularly in the matter involving the liberty of a citizen.
7. The argument of the learned Assistant Advocate-General that growing rate of crimes and repeated involvement of the petitioner therein is the only effective and adequate way to forestall its recurrence is of little help to his case particularly when on proof of the case the offender can be severely dealt with under the relevant penal law.
8. As a sequal to what has been discussed above, we declare the order of detention being illegal and without lawful authority and accept this writ petition and order the detenu to be released forthwith if not required in any other case.