2016 PLP 1 (YLRN)

Ss. 3 & 16

Penal Code (XLV of 1860), Ss. 341, 147 & 149

Khyber Pakhtunkhwa Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance (II of 1965), Ss. 3 & 4

Wrongful restraint, rioting and common object

Preventive detention

Deputy Commis-sioner issued preventive detention order of the petitioners

Involvement of petitioners in criminal cases and provoking the public for agitation and disruption of peaceful environment of the district had been made basis for issuance of detention order

Validity

District administration had no justification to resort to preventive detention under S. 3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960 after registration of a criminal case on the basis of same occurrence

Impugned detention order against members of the protest rally facing similar charges was declared illegal, unlawful, without jurisdiction, without lawful authority and perverse

Petitioners were set at liberty from the prison where they had been confined at present under the impugned orders

Constitutional petition was allowed in circumstances. [Paras. 4 and 5 of the judgment] JUDGMENT QALANDAR ALI KHAN, J.

Muhammad Atif, Syed Abid Hussain Shah and Syed Faisal Hussain Shah Gillani, petitioners, have moved the instant writ petition thereby assailing their detention orders under Section 3 (1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (3 MPO), dated 29.01.2016 by the Deputy Commissioner Abbottabad (respondent No.2), on the ground of staging a protest rally at Fowara Chowk on 28.01.2016, "resulting in trafficking jam at KKH for about five hours" and also "their involvement in obnoxious, anti social activities and provoking the general public for agitation and disruption of the peaceful environment of the District", which could not be "ruled out in the prevailing law and order situation of the District". Their activities were, as such, adjudged prejudicial to public safety and maintenance of public order by respondent No.2, who exercised the powers vested in him under Section 3 MPO and issued their detention orders and confinement in Central Jail D.I. Khan for a period of 30 days of their arrest, vide the impugned orders, issued respectively on 29.01.2016 and 31.01.2016.

2. Mr. Muhammad Naeem Abbasi, Additional Advocate General, appeared in response to Court notice; and arguments of learned counsel for the petitioners and learned Additional AG heard, and record perused.

3. It may be pointed out, at the out set, that the petitioners in the instant writ petition were also members of that protest rally against shifting of mini Adda, which led to the registration of a case under Sections 341/147/149, P.P.C. read with Section 16 MPO and Section 3/4 Loud speaker Act in P.S Cantt Abbottabad vide FIR No.126 dated 28.01.2016, against a number of persons including the petitioners and Syed Salim Shah, petitioner in W.P No.91- A/2016, decided by this Court vide judgment dated 03.02.2016.

4. After threadbare discussion on merits of the impugned detention order against petitioner in the said W.P No.91-A/2016, it was held in unequivocal terms that after registration of a criminal case on the basis of same occurrence, the District Administration had no justification to also resort to preventive detention under Section 3 MPO.

5. Since, the detention order under Section 3 MPO against members of the protest rally facing similar charges has already been declared illegal, unlawful, without jurisdiction, without lawful authority and perverse, in the aforementioned W.P No.91-A/2016; the instant writ petition is also accepted on the grounds enumerated in the judgment of this Court dated 03.02.2016 in the said writ petition; and the impugned detention orders of the petitioners under Section 3 MPO are, likewise, declared illegal, unlawful, without jurisdiction, without lawful authority and perverse. Resultantly, the petitioners be set at liberty from the prison where they are confined at present under the impugned detention orders. ZC/80/P Petition allowed.