KHALIDA RACHID, J.---Invoking Constitutional jurisdiction of this Court, Qazi Hussain Ahmad, petitioner herein sought the indulgence of this Court to declare notice/order bearing No.13/5- SOS(HD)/2001 Vol.22 dated 6-11-2001 as illegal and without lawful authority.
2. The facts leading to filing of instant petition briefly stated are:-- The petitioner is a leader (Ameer) of political party Jumat-e-Islami of Pakistan. The geo-political- cum-religious scenario of the country changed after the September 11, 2001 incident that took place at New York, U.S.A. The petitioner made certain speeches in the public gatherings condemning the action of administration and policies of the Government, favouring the coalition against Afghanistan. Foreseeing and fearing the outcome of the speeches and apprehending non- observance of law and order, Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department, Peshawar (respondent No. 1) served the petitioner with a notice/preventive order bearing No. 13/5--SOS-1(HD)2001 dated 3-11-2001 whereby he was directed "not to reside, remain or enter in any part of the Bajaur Agency" on the ground that he was indulged in activities prejudicial to public safety and maintenance of peaceful order of Bajaur Agency; that in view of the tension prevailing on account of attack on Afghanistan by U.S. And coalition forces, his prejudicial activities would lead to law and order situation in Bajaur Agency; and that his provocative speeches would harm national solidarity in prevailing delicate situation. The notice was to remain operative for a period of one month. Two days later, the respondent No.1 while withdrawing the first notice, issued the second order on 5-11-2001 on almost similar grounds, directing the house arrest of the petitioner, again for a period of 30 days. The third order impugned herein, was issued on 7-11-2000.
This time his detention in Tanda Dam Rest House, Kohat for a period of thirty days was ordered and order dated 5-11-2001 was withdrawn. In the above stated background, the petitioner approached this Court with the instant petition praying for the revoking the impugned notice of 7-11-2001.
3. We have heard the learned counsel for the parties and perused the material available on the record.
4. Mr. Muhammad Arif Khan, learned counsel for the petitioner, primarily contended that the petitioner, who is a political head of a well-known political party, Jumat-e-Islami, has never indulged in activities prejudicial to public peace and tranquillity and that he, being free citizen of a democratic country, had delivered speeches and expressed his sincere opinion on the current situation and action of the Government which is his Constitutional right under Article 19 of the Constitution of Pakistan, therefore, issuance of successive preventive orders followed by impugned order smack of mala fide on the part of the Government/respondents and also against Articles 10, 15, 16 and 25 of the Constitution.
5. The second substantive argument of the learned counsel for the petitioner was that before the issuance of preventive order on 3-11-2001, F.I.R. No.1194 dated 2-11-2001 under sections 124A, 153, 153A, P.P.C. And 16, M.P.O. Was registered at Mardan and that the respondents could have very well proceeded against the petitioner if so warranted under the said report. Referring to the case of Mrs. Irshad Ali Khan v. Government of Punjab and others 1994 SCM R 1532, the learned counsel went on to argue that no preventive order could be issued if a criminal case is registered against a detenu.
6. On the contrary, Qazi Rashidul Haq, learned Advocate-General, dispelling the arguments of the learned counsel of the petitioner submitted that after the incident of September 11, 2001, the petitioner resorted to extensively provocative speeches, condemning the policies of the Government which policies were adopted in the best interest and national security of the country.
Alluding to the secret diaries/reports and different clippings of the dialies, the learned Advocate- General continued that such speeches of the petitioner incited the negative religious sentiments of the people which created law and order situation and resulted in procession and disharmony which ultimately disturbed the peaceful life of public in the country. It was asserted that for peace and tranquillity and maintenance of law and order in the country, the preventive orders were passed under the relevant, laws i.e. M.P.O. Ordinance, 1960. Disputing the maintainability of the writ petition, the learned Advocate-General maintained that adequate remedy was available to the petitioner by making representation to the Government under section 3(6) of the West Pakistan Maintenance Public Order Ordinance, 1960.
7. We are not oblivious of the fact and alive to the situation that the September 11, 2001 attack on U.S.A. Created an uncertainty in the world and developed negative feelings against the Muslims in general and teachings of Islam in particular in non-Muslim world.
No doubt, reaction of American Government and attack on Afghanistan by coalition parties, including most of the Muslim countries, did cause unrest in the country. The reason for this unrest was obvious, since it was considered an attack on Islam. Therefore, some groups of our society gave it the name of religious war, a war of Crusades between Muslims and non-Muslims forces.
8. We admit that every person in the civilised society has the right to have his opinion and right of expression and positive criticism is always welcomed, but such speeches which arouse the negative sentiments of the certain class of people who are mostly illiterate and without having any positive role in the building of the society soon become victim of this kind of exploitation. We have observed that taking advantage of the situation, some of the religious groups did try to gain mileage for themselves and for their political parties without realising the fact that their action would turn such vulnerable situation into disaster. Apprehending the breach of public order and tranquillity and to prevent evil elements imperiling the security and causing anarchy, the Government had sufficient and justifiable reasons, for making preventive order within the parameter of law which could in no way, be termed as mala fide.
9. As to the registration of criminal case against the petitioner under the provisions .Of Penal Code and M.P.O. Ordinance, 1960, we may, at the outset, observe that criminal case will not debar the authority to pass detaining order against the detenu if his acts bring his case within the purview of section 3 of M.P.O. Ordinance. The facts and circumstances of the ruling of august Supreme Court cited by the learned counsel for the petitioner are distinguishable from the case in hand. In the cited case (ibid), the detenu (petitioner therein) was charged with the activity of extending threats to the Consulate-General of U.S. At Lahore. The police in this connection had already registered a case against him under sections 182, 211/225/225-B and 506, P.P.C. The issue before the Supreme Court was whether grounds of detention disclosed by the Government/respondents therein would justify the detention of the detenu, under section 3 of the Ordinance as the allegation against the detenu, did not amount to disturbing the public order. The Honourable Judges of the Supreme Court observed that preventive detention provided by section 3 of the Ordinance only covers the cases of persons who act in a manner prejudicial to public safety or maintenance of public order.
The expression "public order" was elaborately discussed. It was declared that detenu was accused of substantive offences under the penal law, therefore, preventive detention on the same allegations could not be justified in law. In the instant case, the situation is totally different. The speeches delivered by the petitioner herein disclosed by material available on the record, would also fall within the ambit of disturbance of "public order" as defined by august Supreme Court in the case (ibid) constitutes an offence under M.P.O. Ordinance. They are independent of each other.
The object of prosecution is to punish a person for something he has done while the purpose of preventive detention is to prevent him from doing the act. In other words, the preventive detention checks on the future activities prejudicial to public order and public safety while criminal prosecution which is punitive in nature, prosecutes on the acts already committed. The end purpose of making an order of detention is preventive while the purpose of criminal prosecution is punitive. Therefore, registration of criminal case will not by itself debar the authority concerned from making an order of detention when the acts of detention fall within the ambit of section 3, M.P.O. Ordinance, 1960 read with Article 10 of the Constitution. Similar issue has been discussed and decided by the Honourable Judges of the Supreme Court of India in the case of Haradhan Saha v.
The State of West Bengal and others AIR 1974 SC 2154. It would be more appropriate to reproduce the relevant para. As under:-- "The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not create to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relied on certain facts for which prosecution may be launched or may have been launched. An order or preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution."
10. We may also subscribe to the contention of the learned Advocate-General that the petitioner could make representation. To the Government under subsection (6) to section 3 of M.P.O.
Ordinance, 1960. Regarding the plea of Mr. Arif Khan that representation was not the efficacious remedy, has little weight. When the Legislature provides remedy within the law itself, that remedy should be availed preferably before resorting to Constitutional relief.
11. For the foregoing reasons, we sustain the order of detention and dismiss the petition.