2016 PLP 330 (MLD)

MRS. IRSHAD QAISER, J.

Aurangzeb, petitioner seeks the constitutional jurisdiction of this Court, praying that:-- "It is, therefore, humbly prayed that on acceptance of this writ petition, the impugned order dated 24.12.2014 may graciously be ordered to be set-aside and petitioner may kindly be released forthwith. Any other relief which this Honourable Court deems fit and proper in the circumstances of the case."

2. Learned counsel for the petitioner contended that the petitioner belongs to a very respectable family and in recognition of his social efforts, he was elected as Nazim, Union Council Dhamtaur by the people of the area during Local Bodies Elections, 2005 and he also contested General Elections, 2013 from constituency No.PK-44 and enjoys good reputation in the locality. Learned counsel for the petitioner vehemently argued that there was no evidence of the association of the petitioner with any sectarian group and the impugned order of detention of the petitioner being based on wrong assumptions was the result of illegal exercise of powers not vested by law; that the petitioner has never been indulged in any anti-social activity calling for his detention under the provisions of the West Pakistan Maintenance of Public Order Ordinance, 1960; and that respondent No.2, on the basis of grounds non-existent has illegally and without any lawful authority curtailed the liberty of the petitioner through the impugned detention order, which is liable to be set aside in the interest of justice. Learned counsel for the petitioner in support of his arguments placed reliance on 'Muhammad Yousaf Farooi v. Government of Punjab' (2012 PCr.LJ 905).

3. In rebuttal, learned AAG defended the impugned order and contended that the activities of the petitioner and his association with the sectarian group being harmful are prejudicial to public safety and the maintenance of public order and there is apprehension of law and order situation in the peaceful city of Abbottabad, if the petitioner is not detained.

4. Valuable arguments of learned counsel for the parties heard and the available record of the case thoroughly considered.

5. Perusal of record would reveal that petitioner was declared as 'Returned Candidate' for the category of Nazim, Union Council, Dhamtaur in Local Government Elections, 2005. It is also an admitted position that he has contested General Elections, 2013 from PK-44, Abbottabad-I and secured 3231 votes. SHO, Police Station Nawanshehr, respondent No.6 produced certain record, which contain Four FIRs under section 216, P.P.C., sections 506/148/149, P.P.C., and sections 302/34, P.P.C. registered against the present petitioner and some secret information regarding his participation along with other 260/270 persons of the locality in a grand 'Jirga' held on 24.05.2013 at 'Eidgah' Dhamtaur regarding the abduction of Hafiz Saqib, which made the basis for issuance of the impugned detention order of the petitioner under section 3(1) MPO. The reasons rendered in the impugned order for detention of the petitioner could not be materialized by the respondents through evidence showing the indulgence of the petitioner in any sort of anti-social activity. A person, even with the alleged track record, as that of the suspect could not be detained or his liberty curtailed without reasonable material because the liberty of a person has been guaranteed by the Constitution and this Court while exercising its constitutional jurisdiction is duty bound to satisfy itself that the person is not being held in custody without lawful authority or in an unlawful manner. The material placed before the Court was not providing any legal justification to issue the order of detention. In the peculiar facts and circumstances of the present case, the involvement of the petitioner on account of political rivalry, as alleged by the learned counsel for the petitioner, could not be ruled out.

6. The apex Court, in the case of 'Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others' (PLD 2003 SC 442) has eloquently described certain requirements for issuance of the detention order, which are lacking in the present case. This Court in the connected writ petition No.916-A/2014 has also referred to the case law on the subject reported as 'Government of Punjab, Home Department and another v. Hafiz Muhammad Saeed and others' (2011 SCMR 1139), 'Afzoona Kausar v. Additional District Magistrate, ICT, Islamabad' (PLD 2011 Islamabad 1), 'Muhammad Rafique alias Fiqa v. The District Magistrate, Mansehra' (PLD 1992 Peshawar 26) and 'Muhammad Iqbal and 3 others v. Deputy Commissioner/District Magistrate, Mansehra and 3 others' (PLD 1992 Peshawar 107).

7. The worthy respondent No.2 was required to have satisfied himself that the material being placed by the police before him was sufficient to issue the preventive detention order, as the right of liberty of the person being curtailed has been guaranteed under Article 10 of the Constitution of Islamic Republic of Pakistan, 1973.

8. Accordingly, for the reasons mentioned hereinabove, this writ petition is allowed, and it is held that the preventive detention order No.1/1/3-MPO/13587-90/RDR dated 24.12.2014, issued by respondent No.2 was not legally justified in the peculiar facts and circumstances and the material placed before the Court. Hence, the impugned order is set- aside being against the law and the principles settled by the superior Courts. However, the petitioner is required to furnish undertaking duly witnessed by two respectable/notables of the locality and surety bond in the sum of Rs.100,000/- with two sureties to the satisfaction of Additional Registrar of this Court, within three days, positively. MH/68/P Petition allowed.