1999 P Cr (PLP)

NASIR-UL-MULK, J.

This habeas carpus petition has been filed to question detention of Mst. Zakia Begum wife of Professor Hidayatullah, resident of Qaid Abad, Tehsil and District Charsadda, whose order of detention, for a period of one month, has been made by the District Magistrate, Charsadda, under section 3(i), Maintenance of Public Order, 1960 in order to prevent her from indulging in activities prejudicial to the maintenance of public order and disturbance of the law and order situation in the District. The grounds of detention, in essence, alleged that the detenue was running a brothel residence and that she is a person of bad character, against whom the people of the area generally have made complaints.

2. In response to a notice to the Advocate-General and the District Magistrate, Charsadda parawise comments were filed to the petition by the District Magistrate. In their comments they had endeavoured to substantiate their allegation by furnishing certain applications made to the Deputy Commissioner regarding the activities of the detenue and an F.I.R., dated 24-5-1996 registered under section 5/6/13/14/19 of the Offences of Zina (Enforcement of Hudood) 1979 read with section 109, P.P.C. wherein Zina had allegedly been committed in the house of the detenue. On further probe, the Advocate-General, during the hearing of the petition, informed us that the trial in the case is still under way.

3. The learned counsel for the petitioner, with reference to certain case law, argued that if an act constitutes a crime the offender be prosecuted under the relevant law and not incarcerated under the law of preventive detention. Referring to the applications made to the District Magistrate, the learned counsel contended that they all appeared to have been written by one man, whose identity has not been disclosed. The learned Assistant Advocate-General on the other hand contended that the detenue was running a brothel in her house and that the people of the area had taken out procession of protest against her activities, thus, leaving the administration with no choice but to detain her so as to avert a possible law and order situation.

4. It is by and large settled that if a particular act constitutes a crime, the offender should be proceeded against for the offence committed by him under the relevant statutory law and not commit the offender to preventive detention under the Maintenance of Public Order. The reasons advanced by the District Magistrate for the detenues detention is the running of a brothel in her house. Such activity would constitute a crime under section 3 of the Suppression of Prostitute Ordinance, 1961. If sufficient evidence is available and the persons of the area who have submitted applications to the District Magistrate are ready to testify before a Court of law, there is no reason why a criminal prosecution may not be initiated under the said provision of law. But surely such activities would not make the offender liable to preventive detention.

5. Similarly registration of a criminal case, which is yet to be concluded, would not be a good ground for preventive detention. The trial is under way and the offences allegedly were committed in the year 1996. -The State may make efforts to get the trial concluded expeditiously.

6. Since no justification existed for the preventive detention of the detenue under section 3 of the Maintenance of Public Order, 1960 the impugned order passed by the District Magistrate, Charsadda was set aside by a short order, dated 14-5-1998 and the detenue was ordered to be set at liberty. N.H.Q./135/P Petition accepted.