1990 PCr (PLP)

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)

S. 3

Detention order

If one of the grounds of detention was bad or was non -existent, whole order of detention, would be rendered invalid. (p. 1163) C 1 4,, e Rehmat Elahi v. Government of West Pakistan P L D 1965 Lah. 112 and Government of West Pakistan v. Haider Bakhsh Jatoi P L D 1969 SC 210 rel S.M. Idrees for Petitioner. Maqbool Elahee Malik, A.-G. with Muhammad Rasheed Malik for the Respondent. Date of hearing: 1st November 1989 This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in question the validity of the order of the District Magistrate, Kasur dated 19-9-1989 made under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 directing the detention of the petitioner for a period of two months.

2. The impugned order states that the District Magistrate was satisfied on the basis of the record placed before him and the enquiry conducted through secret means that Muhammad Tufail petitioner `is involved in 9 cases (details given in the grounds of detention attached with the order) and indulging presently in activities prejudicial to the maintenance of public order and safety. He is an incorrigible criminal and is acting in a manner prejudicial to the public safety and maintenance of public order and I am satisfied that with a view to preventing him from acting in such manner, it is necessary to arrest and detain the said Muhammad Tufail son of Nadir'. In the grounds of detention accompanying the impugned order, it is stated that the petitioner was involved/challaned in 9 criminal cases mentioned therein. Further ground stated is `I have enquired through secret means that you are still continuing your nefarious activities and are likely to continue the said activities which are prejudicial to the maintenance of public order. Considering your past record and present activities, I am satisfied that your detention is necessary in order to prevent you from acting as such'.

3. I have heard the learned counsel for the petitioner as also the learned Advocate-General. It is contended on behalf of the petitioner that mere registration of cases is not a valid and legal basis for ordering detention under section 3(1) of the Ordinance. Learned counsel has categorically stated that out of 9 cases registered against the petitioner, he has been acquitted in 7 cases and only two cases under Prohibition Order mentioned at Serial Nos. 8 and 9 of the list are still pending. Learned counsel also submitted that it is incorrectly stated in the impugned order and the grounds of detention that the District Magistrate made any secret enquiry about the petitioner's so-called `nefarious activities'. Learned Advocate-General appearing for the respondents is not in a position to controvert the assertions/contentions made on behalf of the petitioner. He quite fairly concedes that the record made available to him does not indicate that the District Magistrate conducted any enquiry through secret means regarding the petitioner's activities.

4. I have considered the submissions made by the learned counsel for the petitioner. There is considerable force in his contention that the mere fact that the petitioner has been involved in a number of criminal cases is, per se, not a valid ground for preventive detention. Law is well-established that when a person has been prosecuted on a criminal charge, the same material should not, in fairness, be taken as a reasonable basis for ordering his detention. Refer Shahidul Haque v. Government of East Pakistan 1969 P Cr. L J

449. Reference may also usefully be made to Liaquat Ali v. Government of Sindh P L D 1973 Kar. 78 and Muhammad Younus v. Province of Sindh P L D 1973 Kar 694 wherein it was held that where definite charges are brought against the detenu for substantive offences and the detenu is undergoing prosecution therefor, the Administration has made up its mind and the choice `that the detenu should be prosecuted for these offences, and, having made this choice, it would ordinarily not be open to the Administration to also use such charge as ground of preventive detention under the West Pakistan Maintenance of Public Order Ordinance, 1960'. Learned Judges of the Karachi High Court expressed the view `to base the order of detention on a charge for which the detenu are facing regular trial in a Criminal Court is unreasonable exercise of the power to order preventive detention'. In this view of the matter, I hold that the criminal charges for which the petitioner is facing a criminal trial or in which he has been convicted/acquitted cannot form reasonable basis for ordering the preventive detention. 1 would also like to observe that the District Magistrate appears to have mechanically accepted the recommendation of the police without applying his own independent mind to the material placed before him. It may also pertinently be observed that the second ground pressed into service by the District Magistrate namely that he conducted inquiry through the secret means is not borne out from the record as conceded by the learned Advocate-General. For this reason also the impugned order of detention cannot be sustained for the law is fairly well-settled that if one of the grounds of detention is bad or is non-existent, the whole order of detention is. rendered invalid. Refer Rehmat Elahi v. Government of West Pakistan P L DI 1965 Lah. 112 which was approved by their Lordships of the Supreme Court in the case of Government of West Pakistan v. Haider Bakhsh Jatoi P L D 1969 SC

210. Upshot of the above discussion is that this writ petition is allowed with costs, the impugned order of petitioner's detention is declared to be without lawful authority and of no legal effect and it is directed that the petitioner be set at liberty and released forthwith unless wanted in some criminal case. H.B.T./M-2005/L Petition allowed.