2023 P Cr (PLP)

CH. ABDUL AZIZ, J.

The instant constitutional petition moved under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is aimed at calling in question the vires of order dated 23.05.2023 passed by Deputy Commissioner Rawalpindi under section 3(1) of West Pakistan Maintenance of Public Order Ordinance, 1960, whereby the liberty of Shah Mehmood Qureshi is curtailed for 15 days.

2. Before inching any further, a pressing need is felt to have a look upon the grounds which persuaded the Deputy Commissioner, Rawalpindi for passing the impugned detention order. It evinces from record that Shah Mehmood Qureshi (detenue) is detained mainly on the ground that he hails from a political party and is instigating, planning, organizing unlawful assembly to commit violence which is likely to cause damage not only to human life but also to public and private property. It will not be out of place to mention here that in the wake of arrest of Imran Khan, the activists of Pakistan Tehreek-e-Insaaf (PTI) resorted to an uncalled-for aggression which culminated in massive damage to public and private property, the actual worth of which is yet to be determined.

3. In the above backdrop, the learned Assistant Advocate General was confronted with the question pertaining to the existence of some supporting material on the basis whereof an inference about the involvement of Shah Mehmood Qureshi (detenue) in the apprehended violence was drawn. The learned law officer though made even the last-ditch effort to portray that the detenue somehow was responsible for the violence and arsonist activities occurred on 09th of May 2023 but remained unsuccessful to pinpoint any particular incriminating material. Without speck of exaggeration, it can be held that an order of detention under section 3(1) of West Pakistan Maintenance of Public Order Ordinance, 1960 can be passed but if there exist some reasonable grounds. For passing an order of detention under section 3(1), it is incumbent upon the authority firstly to satisfy that person to be detained is likely to indulge in activities prejudicial to the public safety or maintenance of public order. Needless to mention here that an order of detention passed under section 3(1), without some incriminating material suffers from perversity and calls for the indulgence of this Court by means of exercising constitutional jurisdiction. While holding so, I am enlightened from the observations of Honorable Supreme Court of Pakistan held in case titled as Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others (PLD 2003 SC 442) that an order of preventive detention has to satisfy the requirements which are as under:- i. the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; ii. that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid; iii. that initial burden lies on the detaining authority to show the legality of the preventive detention, and iv. that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide."

4. The learned law officer also vociferously urged for the dismissal of instant constitutional petition on the ground that the detenue has an alternate remedy under section 3(6) of the West Pakistan Maintenance of Public Order Ordinance, 1960 and due to foregoing reason there is bar of Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 for this Court to examine the vires of the impugned order. In reference to the submissions so made by learned law officer, it is observed that the impugned detention order was passed on 23.05.2023 and is scheduled to lapse after 2/3 days. In the given circumstances, issuance of direction to petitioner for availing the alternate remedy will be an exercise in futility and perhaps will not serve the ends of justice. Even otherwise, since the detention order passed by the Deputy Commissioner, Rawalpindi is bereft of any legal reasoning thus can safely be termed not only as non-speaking in nature but also violative of section 24-A of the General Clauses Act, 1897. In the foregoing scenario there is no bar for this Court to pass an appropriate order for the release of detenue, instead of directing him to file a representation. The concept of alternate remedy came under discussion before the apex Court in the case titled as The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279) and was decided with the following observations: "Constitution of Pakistan (1962), Art. 9

Writ other remedy open

Rule that High Court will not entertain writ petition when other appropriate remedy available

Not a rule of law barring jurisdiction but a rule by which Court regulates its jurisdiction -Order of statutory body attacked on ground that it was wholly without authority, partial, unjust and mala fide

High Court in exercise of its writ jurisdiction has power to grant relief to aggrieved party." As discussed above, this Court is mindful of the fact that though a representation under section 3(6) of MPO is an alternate remedy but keeping in view the process involved therein, it in no manner can be termed as efficacious in nature so as to oust the constitutional jurisdiction of this Court. If any reference is needed in this regard that can be made to the case reported as Dr. Muhammad Shoaib Suddle v. Province of Sindh through Secretary, Home Department, Sindh Civil Secretariat, Karachi and another (1999 PCr.LJ 747).

5. It can safely be explicated that the impugned order whereby Shah Mehmood Qureshi was detained for 15 days does not fit into the statutory requirement of section 3 of West Pakistan Maintenance of Public Order, Ordinance, 1960, thus is set aside. As a necessary consequence, the detenue Shah Mehmood Qureshi is ordered to be released forthwith, if not required in some other case.

6. While parting with this order, it is also considered appropriate to mention here that apprehended future involvement of detenue in some activity prejudicial to the public safety can be plugged by getting a bond in terms of section 3(9) of The Punjab Maintenance of Public Order (Amendment) Ordinance, 2017. Accordingly, the detenue is directed to submit a bond in accordance with section 3(9) before the District Magistrate, Rawalpindi, if so required by him. It is further expected that after his release, Shah Mehmood Qureshi will not be detained under the provisions of The Punjab Maintenance of Public Order (Amendment), Ordinance 2017, for any delinquency having been committed in the past.

7. Disposed of accordingly. MH/M-80/L Petition allowed.