2011 P Cr (PLP)

SH. AHMAD FAROOQ, J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have prayed for declaring the orders dated 19-4-2010,, 19-5-2010 and 18-6-2010, as illegal, arbitrary and violative of the fundamental rights, whereby respondent No.2 has ordered the detention of Noor Ahmad/petitioner No.

2. A prayer has also been made for ordering the release of petitioner No.2 forthwith.

2. The facts, necessary for the adjudication of the instant petition, are that petitioner No.2 was summoned by the SHO, Police Station Syedwala, District Nankana Sahib/respondent No.4 on the pretext of an important meeting but he was arrested. Thereafter, petitioner No.2/Noor Ahmad was produced before respondent No.2, who sent him to District Jail, Sheikhupura, without any reason. On inquiry, petitioner No.1 was told that petitioner No.2 had been detained under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, for a period of 30 days, vide order dated 19-4-2010, passed by respondent No.2. After the lapse of the above said period of detention, respondent No.2 again passed an order on 19-5-2010, whereby the period of detention of petitioner No.2 was extended for another 30 days. The petitioner No.1 filed. Writ Petition No.11823 of 2010, which was dismissed on 3-6-2010 with the observation that he may avail appropriate remedy of filing a representation before the Secretary, Government of Punjab, Home Department, Lahore. Noor Ahmad/petitioner No.2 filed a representation, under section 6-A of the West Pakistan Maintenance of Public Order Ordinance, 1960, before the Secretary, Government of the Punjab, Home Department, Lahore, on 7-6-2010, but the same has not been decided so far. Hence, the instant petition.

3. Respondent No.3/District Police Officer, Nankana Sahib, submitted his parawise comments wherein he has stated that petitioner No.2 was involved in many cases of theft and burglary and his activities were prejudicial to the maintenance of public order. He gave a list of 19 cases, which were registered against petitioner No.2, in Police Station Syedwala, District Nankana Sahib. He further submitted that the detention orders of petitioner No.2 were issued by respondent No.2 on his request, after observing the legal formalities.

4. It is contended by the learned counsel for the petitioners that the impugned detention orders dated 19-4-2010, 19-5-2010 and 18-6-2010 are not only arbitrary but also have been passed without any substantial evidence. He further contended that petitioner No.2 is being penalized for supporting a candidate of Muslim League (Q) during the previous General Elections, on the behest of a sitting Member of the Punjab Assembly of the ruling party. He argued that the impugned orders are violative of the fundamental rights as guaranteed by the Constitution of the Islamic Republic of Pakistan. 1973.

5. Conversely, the learned Additional Advocate-General submitted that the petitioners have an alternative remedy of filing a representation to the Government of the Punjab against the impugned orders and as such, the instant petition is not maintainable.

6. Arguments heard. Record perused.

7. At the outset, I would like to observe that the impugned orders dated 19-4-2010, 19-5-2010 and 18-6-2010 have been passed by the District Coordination Officer, Nankana Sahib/respondent No.2, in exercise of the powers under subsection (1) of section 3 of the Punjab. Maintenance of Public Order Ordinance, 1960, which have been delegated to him under section 26 of the Ordinance (ibid) but District Coordination Officer/respondent No.2 did not come forward to defend the said orders through submission of a report and parawise comments, despite an order of this Court, dated 14-6-2010. No doubt, respondent No.3/District Police Officer, Nankana Sahib, in his parawise comments has stated that respondent No.2/District Coordination Officer, Nankana Sahib issued the impugned orders on his request and after fulfilling the legal formalities, but the fact remains that an order under section 3(1) read with section 26 of the Punjab Maintenance of Public Order Ordinance, 1960, could only be issued when the District Coordination Officer is satisfied that the activities of a person are prejudicial to public safety or the maintenance of public order, in any manner. Hence, it was only District Coordination Officer, Nankana Sahib, who could have defended the orders impugned through the instant Constitutional petition, but he has chosen not to do so.

8. It is also worth consideration that in compliance with the order of this Court, dated 3-6-2010, passed in Writ Petition No.11823 of 2010, the petitioners have already availed alternative remedy by way of filing a representation against the orders dated 19-4-2010 and 19-5-2010 before Secretary, Home Department, Government of the Punjab, Lahore, on 7-6-2010, which has not been decided so far.

9. As a matter of fact, the orders dated 19-4-2010 and 19-5-2010 are no longer in the field as the period mentioned, therein has already expired and at present, it is only order dated 18-6-2010 whereby the period of detention of petitioner No.2/Noor Muhammad has been further extended for 30 days.

10. A conjunctive reading of three orders i.e. 19-4-2010, 19-5-2010 and 18-6-2010 would reveal that the grounds mentioned therein for detaining Noor Ahmad/petitioner No.2 are exactly the same. While issuing the detention order of Noor Ahmad on 19-4-2010, District Coordination Officer, Nankana Sahib, was of the opinion that the arrest and detention of the petitioner due to his involvement in the activities, which are prejudicial to the safety of public-at-large or the maintenance of public order, was necessary for only 30 days. Thereafter there was no fresh material before the District Coordination Officer, Nankana Sahib, whereupon he issued orders dated 19-5-2010 and 18-6-2010. The order, dated 18-6-2010, is identical and verbatim repetition of the earlier orders, dated 19-4-2010 and 19-5-2010, which establish injudicious exercise of powers and lack of serious consideration. The sole ground for ordering the detention of the petitioner No.2 was his alleged involvement in various criminal cases, which hardly furnishes a basis for detaining him. It has been held in Rana Sana Ullah Khan, Advocate v. Secretary, Home Department, Government of Punjab, Civil Secretariat, Lahore, (2001 PCr.LJ 2004) that preventive detention would not be justified on the same allegations regarding which the detetm is already accused of substantive offences under the Penal Law, as that would amount to vexing the detenu twice on the basis of the same criminal charge. In Arbab Akhar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi (PLD 2005 Karachi 538), it was laid down that the pendency of cases against the detenu, in which he could be convicted and punished by the trial Court, would not constitute sufficient basis for issuance of a detention order against him. Guilt or innocence of a detenu, who is involved in criminal cases, could only be determined by the trial Court, whereas while passing an order, under section 3(1) of the Punjab Maintenance of Public Order Ordinance, 1960, the authority before passing the order must satisfy himself that the activities of the person directed to be arrested and detained are prejudicial to the public safety or the maintenance of public order. In the instant case, the material placed before the District Coordination Officer, Nankana Sahib, could not be considered to be sufficient for passing three C consecutive detention orders of the petitioner No.2/Noor Ahmad. It is strange that a person, who was already under detention for the last 60 days, in pursuance to the orders, dated 19-4-2010 and 19-5-2010, could be involved in an activity, which is prejudicial to public safety or the maintenance of public order, warranting issuance of a third detention order on 18-6-2010. It appears that the impugned orders were issued mechanically by respondent No.2 without collecting any material, which could justify the preventive detention of the petitioner No.2 under section 3(1) of the Punjab Maintenance of Public Order Ordinance, 1960. The grounds of detention contained in the impugned orders are generalized and vague, which did not conform to the requirements of law.

11. In view of above discussion, it is established that District Coordination Officer, Nankana Sahib, passed the impugned orders in violation of the safeguards and without fulfilling the requirements as provided in section 3(1) read with section 26 of Punjab Maintenance of Public Order Ordinance, 1960, which impinged upon the fundamental rights of a citizen enshrined in the Constitution of Islamic Republic of Pakistan, 1973. The impugned order dated 18-6-2010, passed against the detenu, was corum non judice and nullity in the eye of law and as such, the detenu cannot be ordered to file a representation before the competent authority as the same could only be made when the order of the detaining authority is found to have been passed within the four corners of section 3(1) of the Ordinance ibid. Resultantly, the impugned order dated 18-6-2010 is declared to be illegal, without lawful authority and accordingly set aside. The petitioner No.2/Noor Ahmad is ordered to be set at liberty forthwith. N.H.Q./M-471/L Petition accepted.