P L D 1957 (W (PLP)

HABIBULLAH KHAN, J.‑--This is a petition under Article 170 of the Constitution by one Hukam Khan of village Turlandi, District Mardan, for the issue of a writ of habeas corpus challenging the order of an A. D. M. dated 14th February 1956, whereby he has been ordered to furnish bail‑bond under section 40 of the Frontier Crimes Regulation in a sum of Rs. 20,000 with 5 sureties to keep the public peace and to remain of good behaviour for a term of 3 years, or in default to suffer rigorous imprisonment for the same period. Since he has refused to execute the bond, he has remained in detention. According to the prosecution, the detenu is an active‑worker of the Premier Sugar Mills Employees' Union Mardan, and has been inciting the workers to destroy the property of the Mills. It is further alleged that his activities are likely to cause breach of the public peace. In the trial Court, he was served with a notice in the following words: "Whereas it appears from the police report that there is imminent breach of the peace at your hand which may cause damage to the public interest and administration, you are hereby called upon to show cause as to why you should not be bound down under section 40, F. C. R. in Rs. 20,000 with 5 sureties to keep peace for a period of 3 years, or to suffer R. I. for the same period". The detenu made a simple reply to the notice, namely, "I have heard the notice. I am not prepared to furnish the required security". Section 40, F. C. R. says: "Where the Commissioner or the Deputy Commissioner is of opinion that it is necessary, for the purpose of preven ting murder, or culpable homicide not amounting to murder, or the dissemination of sedition, to require a person to execute a bond for good behaviour or keeping the peace, as the case may be, he may order the person to execute a bond, with or without sureties, for his good behaviour or for keeping the peace, as the case may be, during such period, not exceeding three years, as the Commissioner or the Deputy Commissioner, as the case may be, may fix." It will have been noticed that action under section 40 can be taken against a person only, if it is necessary for the purpose of preventing murder or 'culpable homicide not amounting to murder or the dissemination of sedition and not otherwise. IL the present case, there is no allegation, muchless any proof that the detenu intended either to commit murder, or culpable homicide not amounting to murder, or was guilty of dissemina tion of sedition. Even the learned A. D. M. did not give any such finding. To quote his own words the learned A. D. M. in the concluding portion of his order observes: "To this (statement of the accused) the reasonable reply is that it has been brought on file that the activities of the accused is not confined to the mills only, but the public peace has been disturbed and it is nevertheless a nuisance for the public interest. Moreover, the facts collected by the prosecution are sufficient to convince me that if this state of affairs goes on in the mills which is connected with the public of a vast area, it would effect the public greatly and the administration of the country would go out of control. I therefore . . . . .". It is obvious from the above that the learned A. D. M. passed the order, not because he thought it necessary to do so for the purpose of preventing murder, or culpable homicide not amounting to murder, the dissemination of sedition, but because he was of the opinion, that the activities of the detenu were prejudicial to the interest of the Sugar Mills, and that they were likely to disturb the public peace. He conveniently forgot that if there was any apprehension of the breach of public peace, the detenu could be proceeded against under section 167, Criminal P. C. section 40, F. C. R. was never meant for the purpose. The learned Additional Advo cate General has quite frankly, expressed his inability to support the impugned order and has conceded that in the absence of a finding that the detenu intended to commit murder, or culpable homicide not amounting to murder, or was guilty of dissemination of sedition, the A. D. M. acted without jurisdiction. The result is that the order of the A. D. M. being illegal and invalid is set aside, and the detenu petitioner is granted the writ asked for. He should be set free at once. K.B.A. Writ granted: Order set aside.