2012 P Cr (PLP)

MUZAFFAR ALI, J.

The instant petition assails detention of the petitioner under section 3(1) OF THE WEST Pak Maintenance of Order Ordinance (hereinafter referred to as the Ordinance) with the prayer to release the petitioner by declaring the detention to be ultra vires and without lawful authority. The gist of the facts abstracted from the available record of the case are as under that the petitioner/detainee is in District Jail Gilgit since 2005. Initially the petitioner along with some other persons went into the custody of a secret agency then he was shifted to Gilgit jail by involving him in a High profile murder case under F.I.R. No.12 of 2005. On 27-12-2005 his bail application was granted by the ATA Court but he could not avail the concession of the bail as the administrative authorities detained him under the Ordinance for three months and after completion of three month's detention the District Magistrate Gilgit again extended the detention period of the petitioner for further three months vide order dated 28-3-2006 .The period ended on 26-6-2006 but the petitioner was remained in detention without any pretext of extension of the detention order up to 14-7-2006. On 14-7-2006 the District Magistrate again ordered the detention of the petitioner under section 3(1) for further three months up to 14-10-2006 then again the District Magistrate ordered the detention of the petitioner up to 14-1-2007. Later on by the end of the last detention order of the petitioner he was involved in another case under F.I.R. No.761 of 1999 and his arrest was shown in the said case .The petitioner moved a bail application before the ATA Court and bail was allowed to him on 30-4-2008 but his release was again became a dream as the District Magistrate imposed MPO against him for three months hence this petition ."It is pertinent to note here that during pendency of this petition when the period of the last detention order against the petitioner was about to an end, the District Magistrate Gilgit again issued detention order of the petitioner on 29-8-2008 for further three months the vires of the same is also under discussion" The case was adjourned for several dates to give ample chance to the learned AG for respondents to meet the crucial legal points involved in the case. The learned A.A.-G. tried his best to defend the respondents with due professional skills but lastly he was to concede the detention of the petitioner to be in violation of relevant provision of the ordinance and when he was asked to show the relevant record he requested in camera proceedings as in his opinion the record was secret and could not be shown in open Court. The request was granted and the case was heard incamera. The learned A.A.-G. was assisted by Deputy Secretary Law and Deputy Secretary Services along with the record. Perusal of the record of the case witnesses that all the detention orders of the petitioner have been made by the District Magistrate Gilgit as such the question of law arises that whether the District Magistrate on his own accord is competent to made the orders under the Ordinance and to ascertain the competency of the District Magistrate, I deem it proper to go through the relevant provisions of the ordinance and for the purpose it is proper to reproduce the relevant provisions which are as under:--

3. Power to arrest and detain suspected persons.

(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing ,direct the arrest and detention in such period as may [* * * *] be specified in the order, and government, if satisfied that for the aforesaid reason it is necessary so to do, may, subject to the other provisions of the section, extend from time to time the period of such detention for a period not exceeding six month at a time.] The provision is self-explanatory and leaves no ambiguity to interpret otherwise than that the Government only and no authority else is empowered to make detention Order of a person under the "Ordinance" and it is the Government only which, can direct arrest of a person if the circumstances stated in the provision are believed to exist and satisfied .However under rule 3(3) of the ordinance if a District Magistrate or any other Government servant specially authorized on the subject shall have powers to refer the situation to the Government, if satisfied that the situation stated in the provision exists, to pass order of detention of a person responsible for the same. In the case in hand all the orders of the detention have been made by the District Magistrate as such I was shocked and eager to understand how, when and by whom the District Magistrate Gilgit has been bestowed with the powers of "Government" and to release this legal frustration in my mind I asked the learned AAG and both the Deputy Secretaries to explain but they frankly appraise me that the Deputy Magistrate is District Magistrate and not the "Government" and also conceded that since all the orders of detention of the petitioner have been passed by the District Magistrate and not by the Government as such the detention of the petitioner for such a long period is utterly illegal and ultravires .The whole detention can be considered to be habeas corpus of the petitioner. The other crucial legal point which needs to be determined is that, if the Government is empowered to extend the period of detention for the second time or more if the first order of detention is lapsed or is likely to be expired and to understand this point let me again visit to the provision 3(1) of the Ordinance which envisages that, the Government may, extend the detention period but before its expiry and subject to the other provisions of this Ordinance so I visited the other provisions too to understand what the provisions construe on the subject and found provision 5 which speaks about constitution of a board consisting of a Judge of High Court nominated by the Chief Justice of that Court and a senior officer in the service of Pakistan nominated by the Government and no person shall be detained for a period exceeding three months unless the board so reports after due proceedings as provided in provision (5-d) of the ordinance. The Government is bound to refer the case of extension before expiry of the period to the board if it desires to extend the detention and the board is also bound to submit its report to the Government before expiry of the period detained. In the case in hand the extension orders of the detention of the petitioner have been made by the District Magistrate and one order has been made by the secretary home Gilgit neither any board in this regard under provision 5 of the Ordinance had been made by the Government nor the Government had referred the case of extension in detention of the petitioner to any board but during pendency of this, petition the Government became conscious when this legal defect was raised before this Court and tried to fill the legal infirmity by constituting the board. The learned Chief Judge of this Court nominated Sessions Judge Gilgit as member of the board who attended the board meeting but he categorically stated therein that though he has been nominated verbally by the Chief Judge of Chief Court but under the Ordinance he cannot be nominated as member of the board being not a Judge of High Court .The learned Sessions Judge recorded his descending note in the proceedings but despite that period of detention of the petitioner was extended as such the very constitution of the board is without lawful authority and corum non judice and proceedings of the board and report are ab initio void in the eyes of law. The supra discussion of law clearly makes evident that the petitioner has been detained for years but without taking the relevant law into its course. No procedure given in the Ordinance has been followed. No competent authority has issued orders of detention of the petitioner rather the administrative authorities have tried to make a mockery of relevant law and even the respondents failed to show sufficient substance to prove any guilt of the petitioner of which they were shouting loudly to portray him a hardened and a dire hearted criminal. Possibility is there that the petitioner may be as has been portrayed him by the respondents and his involvement may not be ruled out then too the respondents are bound to follow the law and nobody can be allowed to infringe or relax the law to bring the person into account for his illegal activities unless the state machinery succeeds to bring sufficient substance and follows the law for the reasons that liberty of a citizen is a divine right which is vested in a citizen duly recognized and safeguarded by the law of the land. Liberty and freedom of a citizen can be curbed only with the force of substantial material and with the due course of law. The upshot of the above discussion is that the petitioner produced before the Court is ordered to release forthwith and the order is complied. I asked the petitioner whether he needs any security to enable him to go to his place of residence but the petitioner stated he needs not. I also directed the respondents not to breach the law with the purpose to bring the persons, into account who violate the law and are involved in unlawful activities as such like tendency gives no benefit to the administration of justice. The judicial branch of this Court is directed to issue attested copies of this judgment to the respondents and to all the District Magistrates/Deputy Commissioners in Gilgit-Baltistan. M.W.A./1/GB Petition allowed.