2020 PLP 166 (MLD)

FAROOQ HAIDER, J.

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed with the following prayer: - "In view of above submissions it is most respectfully prayed that this petition may graciously be accepted and the impugned detention order dated 10.08.2019 passed by respondent No.3 may very kindly be declared as null and void, illegal unlawful, against the law, facts and circumstances of the case, in the Supreme Interest of justice. It is further prayed that the effect and operation of impugned Order dated 10.08.2019 may very kindly be suspended in the subsistence of main writ petition"

2. Report and parawise comments to the petition were called for from Deputy Commissioner, Multan (respondent No.3), Regional Police Officer, Multan (respondent No.4), City Police Officer, Multan (respondent No.5) and Station House Officer, Police Station Alpa, Multan (respondent No.6) vide order dated 20.08.2019, which have been submitted by learned law officer today and placed on the file of this petition.

3. It has been contended on behalf of the petitioner that allegations levelled against petitioner's father Ghulam Murtaza are fake and general in nature and there is no evidence against him (father of the petitioner) to show that he was acting or was about to act in a manner which was prejudicial to public safety or maintenance of public order; respondent No.3 has passed the impugned order merely on the basis of report submitted by CPO concerned and without application of his own mind; as such, petitioner's father may be ordered to be released.

4. On the other hand, though learned AAG has supported the impugned order, however, he could not refer any relevant material or valid reason to justify passing of the impugned order.

5. After carefully considering the submissions made on behalf of the parties and going through the available record, it has been noticed that respondent No.3/Deputy Commissioner, Multan has passed the impugned detention order dated 10.8.2019 qua petitioner's father Ghulam Murtaza under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, on the basis of following allegations: - "Whereas, I, Aamer Khattak, Deputy Commissioner Multan, received report/request from City Police Officer, Multan vide letter No.9 1 884/CRO dated 09.08.2019 that SHO Police Station Alpa has reported that Ghulam Mutaza son of Allah Wasaya caste Wains resident of Jhok Wains, Multan is a hardened criminal. He is previous record holder and is involved in following cases including cases of theft, firing and house trespass etc. 1) FIR No.849/17 dated 12.05.17 under sections 457/381-A/411 P.P.C. Police Station Alpa. 2) FIR No.454/18 dated 12.08.18 under sections 337-L(2), F(iii), A(ii), H(2), 342, 379, 148, 149, P.P.C. Police Station Alpa. 3) FIR No.431/10 dated 11.10.10 under sections 452/380, P.P.C. Police Station Alpa. 4) FIR No.449/08 dated 12.09.08 under sections 342/379, P.P.C. Police Station Alpa. 5) FIR No.452/08 dated 13.09.08 under sections 337-H(2), A(i), F(iii), 34, P.P.C. Police Station Alpa. 6) FIR No.423/2019 dated 24.06.19 under section 406, P.P.C. Police Station Alpa. The said accused was arrested and challaned in above cases being found guilty but now the said accused has been released and is again preparing for further heinous offences as his other co-accused/suspects also visit his abode. The said accused is symbol of fear in the area. The said accused is a hardened and habitual offender. His activities in the area are suspected. He along with his co-accused is again preparing for committing offences i.e. crime against Person and Property etc. in the area. Due to his presence in the area, people are feeling insecurity and fear and any untoward incident can take place" The aforesaid allegations against petitioner's father Ghulam Murtaza are general in nature and no solid or cogent evidence in order to prove the same was produced before the concerned respondent i.e. Deputy Commissioner, Multan at the time of passing the impugned detention order. It will not be out of place to mention here that except report of CPO, Multan, there is no material available against petitioner's father Ghulam Murtaza to establish that he was acting or was about to act in a manner which was prejudicial to public safety or maintenance of public order. Learned AAG, on Court's query, has conceded that detention order has been passed by Deputy Commissioner, Multan only on the basis of aforementioned criminal cases, he could not refer or produce any material to prove that petitioner is a member of any banned group, proscribed organization or involved in any anti-State activities or incites the people of the area to participate in demonstration and disturbs the law and order situation. Therefore, merely on the basis of registration of aforementioned cases, which are not of serious nature and impugned order itself reveals that Ghulam Murtaza (detenu) has been already released in said cases, he cannot be deprived of from his fundamental right of liberty, guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973. It is requirement of law as envisaged by Section 3 of the Ordinance ibid that before passing detention order of a person, the competent authority should have reason to believe that a person within his territorial jurisdiction has acted, is acting or is about to act in a manner which is prejudicial to the public safety or maintenance of public order but in the instant case, the same is lacking. Furthermore, impugned order dated 10.08.2019 has been passed by the Deputy Commissioner, Multan only on the basis of report of CPO Multan, which itself is merely based upon "presumptions and conjectures"; therefore it is crystal clear that impugned order has been passed without application of his own independent mind and same is also hit by Article 13-(a) of the Constitution of Islamic Republic of Pakistan, 1973. In these circumstances, the impugned detention order passed by respondent No.3 is illegal and liable to be set aside.

6. Resultantly, the instant petition is accepted and the impugned detention order dated 10.08.2019 is set aside, and Ghulam Murtaza (detenu/father of the petitioner), is ordered to be released forthwith, if not required in any other case. SA/G-9/L Petition accepted.