P L D 1999 Peshawar 82 (PLP)

SHAHZAD AKBAR KHAN, J.‑‑The petitioner Kausar Ali alias Kausary being aggrieved of the order dated 22‑6‑1999 passed by the District Magistrate, Charsadda (respondent No.3) thereby detaining him under section 3(i) of the West Pakistan Maintenance of Public Order Ordinance, 1960, has filed this writ petition through his brother Asad Ali to challenge the validity and legality of the impugned order. This order of 22‑6‑1999 was, however, further extended by another order bearing No.701‑4/RDM, dated 19‑7‑1999, for another 30 days duration.

2. The grounds malting the base of the impugned order are firstly that the instigating of transporters and workers of Saleem Sugar Mills to go on strike with a view that the Administration and police be involved so that petitioner should get chance to run gambling business and to sell narcotics; secondly, that the petitioner is likely to arrange bear‑dog fights and cock fightings for gambling purpose; thirdly, that his involvement in drug business and gambling is likely to disturb the peace and good order of the locality and District Charsadda and lastly that he has become a source of constant nuisance for the inhabitants of the locality/District by acting in a manner prejudicial to public order. Comments were called from the respondents Nos.3 and 6 on 13‑7‑1999 which were duly furnished and along therewith, inter alia, a pro forma bearing the name and photograph of petitioner was also attached. In this pro forma the petitioner is shown as "Koachwan" i.e. a horse cart driver by profession in the column of " et''c;0.,,‑b ". A list of certain criminal cases, some are decided in acquittal of petitioner and some are pending, was also made part of the record.

3. Mr. Muhammad Attique Shah, , learned counsel appearing for the petitioner has urged with vehemence that the grounds alleged by the respondent No.3 on which the impugned order of detention is resting are of traditional general nature and there is no tangible material to substantiate the bald charges which is a manifestation of the mala fide of respondents. He also contended that the grounds alleged, if true, would certainly constitute offences under the substantive penal law of the land and the petitioner could be arrested and criminally prosecuted for the said offences. Such grounds; according to the learned counsel, cannot be legally made justification for detention under section 3(1) of M.P.O. He has relied on an unreported judgment of this Court in W.P. No. 1445 of 1998 titled as "Mst. Gulzar Begum v. District Magistrate, Peshawar".

4. On the contrary the learned ‑A.A.‑G. appearing for the respondents while defending the order of detention has argued that the petitioner is a habitual criminal who is charged for serious offences and that he is involved in a number of cases some of which are still pending determination. He further stated that the petitioner being a frequent delinquent cannot be reformed except by having a recourse to the preventive detention. He was asked by us if there was any living immediate ground/charge, not falling within the domain of ordinary substantive criminal law. against the petitioner, .he could not help his inarticulation and maintained his, reliance on the listed criminal cases registered against the petitioner.

5. We have heard the rival argument of the learned counsel for both the parties and examined the record of the case. For the purpose of properly assessing the matter and to examine the validity of the impugned order in perspective of the legislative intent and object, it is desirable to reproduce subsection‑(1) of section 3 of M.P.O: It reads as follow:‑‑ "Government if satisfied that with a view to presenting any person from acting in any, manner prejudicial to public safety or the maintenance of public order, it is necessary to do so, may, by an order in writing, direct the arrest and detention for such period as may be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, subject to the other provisions of this section. extend from time to time the period of such detenti6n for a period not exceeding six months at a time." In this subsection the expression "satisfied" is an objective expression and the l authority proceeding on the basis of this section against a citizen is legally required to honour the will and intention of legislature by viewing the matter independently and uncoloured by his own emotional feelings or bias. However, if the general tenor of the order of detention demonstrates the missing of this essential element, then its objectivity is to be determined judicially by the';

6. The personal liberty is undoubtedly a priceless right innate and natural to every human being living in a civilised society and this right is recognised and guaranteed by our Constitution and. thus, the Courts are bound to protect all such Constitutionally guaranteed rights or those arising out of any other law in vogue in the State.

7. 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 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 oxygenise 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. .

8. We have examined the record and have also considered the competing argument of both the parties. It is evident that the grounds of detention are offences which are covered by Control of Narcotic Substances Act, the Prohibition Act and the Gambling Act and the offender of such‑like offences can be prosecuted and punished under the relevant laws and no recourse can be made , to preventive detention under Maintenance of Public Order Ordinance.

9. This being the legal position, we are clear in our mind that the order of detention dated 22‑6‑1999 and the subsequent extension thereof by order dated 19‑7‑1999 are illegal and without lawful authority which are declared accordingly. This writ petition is, therefore, accepted and the detenue is ordered to be released forthwith if not required in any other case. H.B.T./435/P Petition dismissed,