1994 P Cr (PLP)

Date of hearing: 18th November, 1989. Petitioner through this Constitutional petition seeks to call in question the validity of the order, dated 11-10-1989 passed by the District Magistrate, Bahawalnagar, under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, directing that the petitioner "be arrested and caused to be detained in District Jail, Bahawalnagar for a period of three months reckoned from the date of his arrest under this section". According to the impugned order, the District Magistrate was satisfied from the information placed before him that the petitioner "is about to indulge in such like activities which may be prejudicial to the public safety and the maintenance of public order and tranquillity". The District Magistrate, therefore, ordered the arrest and detention of the petitioner as aforestated. The grounds of detention contained in the memorandum (Annexure "B") are reproduced hereunder:-- (1) That as per source report, there are reasonable grounds to believe that you are actively participating in the subversive activities to spoil the atmosphere of educational institutions of Bahawalnagar District. (2) That you, during the year 1988, while studying in (FA.) 2nd Year, in Government Degree College, Bahawalnagar were rusticated on 27-2-1989 by the Principal of the College for a period of one year. You dragged the students from their classes in order to create restlessness in the college atmosphere. (3) That you, then submitted an affidavit to the Principal of the College stating therein that you will behave properly in the college and would desist from undesirable activities on the basis of which you were allowed admission in the college on 12-9-1988. Later you did not keep your promise and again started your disrupting activities. (4) That you, on 6-2-1988 at about 9 a.m. within the college area, snatched the books of Saqab Awan a student of 2nd Year who requested you to return his books but you took out a knife and inflicted injuries on his person for which a case F.I.R. No.26 under section 324, P.P.C. was registered against you at Police Station Bahawalnagar. During investigation of the case, you being found guilty were challaned to face trial in the Court. (5) that you by inflicting injuries to a college student within the college area spoiled the congenial atmosphere of the institution. (6) That you being an Ex-student on 30-4-1988 alongwith others obstructed Mr. Masood Akbar M.I.C., Bahawalnagar in the discharge of his official duties. You also used criminal force to deter the public servants by pelting stones at the Magistrate and the Police personnel. You also put a tyre on fire in the crossing of Noor Muhal Cinema for which a case F.I.R. No. 107 dated 30-4-1988 under sections 341/506/353/186/148/149, P.P.C. was registered against you at Police Station City Bahawalnagar.

2. Learned counsel appearing in support of this petition contends that the case registered against the petitioner under-section 324, P.P.C. (referred in ground No.4) was withdrawn and the case under section 341/506/353/186/148/149, P.P.C. (referred to in ground No.6) is still pending. Learned counsel submits that the petitioner was no doubt rusticated from the college on 27-2-1988 (year 89 is wrongly mentioned in ground No.2) but he was again admitted on 12-9-1988 which fact is borne out from ground No.3. Learned counsel for the petitioner argues that the mere fact that the petitioner was once rusticated from the college or-that two criminal cases were registered against him does not, per se, constitute a valid and sufficient ground for ordering his detention under section 3 of the West Pakistan Maintenance of Public Order Ordinance. Submission of the learned counsel appears to have some force. Reference may usefully be made to a case reported in P L D 1973 Kar. 78 wherein it was held "having made the choice that a person should be prosecuted in Court for commission of an offence, it would ordinarily be not open to the authorities to also use this charge as a ground of preventive detention under the Ordinance". Similar view was expressed in yet another case reported in P L D 1973 Kar.

694. It was held therein "In my view, to base the order of detention on a charge for which the detenus are facing regular trial in a Criminal Court is unreasonable exercise of the power to order preventive detention". In this view of the matter, grounds mentioned at serial Nos.4, 5 and 6 could not form a valid basis for ordering the petitioner's detention. Grounds Nos.l and 3 are vague as there is nothing on the record to show that after the petitioner's re-admission in the college on 12-9-1988, he participated in any activity subversive of discipline in the college or prejudicial to the maintenance of public order and tranquillity. Ground No.2 could also not be pressed into service for the simple reason that the petitioner after rustication was allowed re-admission in the college. Learned Assistant Advocate-General appearing for the respondent has quite frankly stated that he cannot support the impugned order.

3. In view of what has been said above, the impugned order of the petitioner's detention is declared to be without lawful authority and of no legal effect. This writ petition is accordingly allowed and it is directed that the petitioner/detenu be set at liberty and released forthwith unless wanted in some criminal case. There shall be no order as to costs. N.H.Q./AA67/L Writ petition allowed.