2014 PLP 105 (MLD)

MALIK MANZOOR HUSSAIN, J.

Instant constitutional petition is directed against the detention order dated 18-7-2013 passed by the Deputy Commissioner, Kohat under Provision of section 3(1) of Maintenance of Public Order, 1960. The ground envisaged in the detention order is as under:-- "The petitioner has indulged himself in unlawful/anti-social activities causing breach of the peace in the area as well as prejudicial to the safety of general public."

2. Briefly, the facts as merged from the petition are that petitioner was arrested by the local police on 18-7-2013 on the basis of order passed by the Deputy Commissioner. The petitioner has challenged the legality of the same through instant constitutional jurisdiction.

3. The learned counsel for the petitioner contended that the impugned detention order is not sustainable because no material in relation to the ground of detention order was communicated to the petitioner; that there was no material with the respondent/ Authority to pass the impugned detention order and lastly argued that the authority has mechanically accepted the request of police, without applying his own independent mind to the material placed before him.

4. On the other hand, the learned A.A.G. has opposed this petition on the ground that there was sufficient material available with the local police for the satisfaction to communicate the same to the DCO for passing the impugned detention order. Further that the activities of the petitioner were prejudicial to public safety and the maintenance of public order, therefore, the instant petition is liable to be dismissed. Arguments heard and record perused.

5. The case was taken up on 6-8-2013 and learned A.A.-G. was put to notice with direction to produce the relevant record or any other material available with the Authority or the local police for today.

6. We have gone through the detention order produced by the learned A.A.G. it is not supported by any material and no unlawful/anti-social activities of the petitioner was provided with the detention order to this Court. There is no previous history order of involvement of petitioner in any offence in support of said order.

7. It is by now well settled that in order to curb liberty and freedom of individual, substantial material should be placed for doing the same by the Authority in a detention order. We have noticed that the impugned order does not carry reasonable substantial material to detain the petitioner and curb his liberty and freedom of involvement merely on a report of police agency. There is heavy duty and heavy burden on the detaining Authority showing reasons and grounds while passing detention order. This Court under its Constitutional jurisdiction is bound to scrutinize the material furnished by the detaining Authority, for the detention of any individual.

8. Articles 4, 9 and 15 of the Constitution, deal with the liberty of a person, while Article 10 provides in detail the rights of a individual, who has been arrested or detained in the circumstances in which preventive detention laws are to be made applicable. It further elaborates, inter alia, the rights of a person so detained. The right of personal liberty of a citizen enshrined in Article 9 of the Constitution has been jealously guarded by the Courts in Pakistan. Reliance can be placed on Ismail v. The State (2010 SCMR 27), Muhammad Sharif v. The State (PLD 2009 SC 709). Reference is also made to a celebrated judgment of the apex Court, reported in Federation of Pakistan v. Mrs.Umatul Jalil Khawaja (PLD 2003 SC 442), wherein their lordships set a criteria to be followed before passing a preventive detention order.

9. No material whatsoever has either be collected or produced before this Court which fact has rather been admitted by the learned A.A.G. present in Court. The detaining Authority/DCO did not apply his independent judicious mind and passed the impugned detention order mechanically, merely on the basis of report submitted by the DPO, without considering the worth of the material made available to him. He did not take pain to consider whether this material could form basis for such a detention order and whether this material could even stand the test of admissibility or its evidentiary value.

10. As a matter of fact, a detention order amounts to curtailing the fundamentally guaranteed right of liberty of a citizen and it was for this reason that the legislatures in their wisdom vested such powers with the DCOs/Deputy Commissioners who are expected to be unbiased as compared to the police agency and in this way the DCOs are not supposed to react on the report of the police agency until and unless they satisfy themselves about the correctness of the same and are supported by tangible material. The DCO had in fact deviated from his one of the secret duty by taking off the liberty of a person. The grounds of detention enumerated in the detention order passed by the Authority in the preset case, is vague, passed on presumption and speculation. The DCO was not expected to pass such an order and he is directed to be careful in future, otherwise he can be burdened with fine to be paid from his pocket to the detenue as held in the case of Mst.Mizbah Tabbasum and 2 others v. Government of Punjab through Secretary Home Department (2007 PCr.LJ 1776. For what has been detailed above, this Constitutional petition is allowed in turn of short order of instant date. Copy of this judgment shall be sent to the respondent/DCO for further guidance. AG/509/P Petition accepted.