P L D 2015 Peshawar 154 (PLP)

MUHAMMAD YOUNIS THAHEEM, J.

Through instant constitutional petition under Article 199 of the Islamic Republic of Pakistan, 1973, petitioner, Faitullah alias Fatihullah has questioned the extension of preventive detention orders/Letters No.7770/AG-V/3MPO dated 26-12-2014, passed by respondent No.2 Deputy Commissioner, Lakki Marwat, under section 3 of the West Pakistan Maintenance of Public Order, Ordinance 1960, whereby the preventive detention period of petitioner was extended for further thirty (30) days.

2. Learned counsel for petitioner argued that the petitioner was detained in Central Prison Bannu vide letter No. 4567-71 dated 19-9-2014, for a period of thirty days, but no reason whatsoever, has been mentioned in it. He further argued that respondent No.2 has no authority to give extension to the impugned preventive detention order beyond the period of three months, unless Board is constituted under section 2(5) MPO, but without any such proceedings, four consecutive extension orders were issued, hence, are illegal and mala fide, which are liable to be set aside.

3. Learned A.A.G. vehemently opposed the contentions of learned counsel for petitioner.

4. We have considered the submissions of learned counsel for petitioner and learned A.A.G. and have gone through the material available on the file.

5. Perusal of the initial preventive detention order dated 19-9-2014, reveals that the petitioner Faitullah has been ordered to detain in central Prison Bannu, for a period of thirty days and reason mentioned therein is as, he acted and continued to act in a manner which is prejudicial to public interest/ order in the meaning of section 3(1) of the West Pakistan Maintenance of Public Order Ordinance 1960, but the respondents have failed to refer even a single activity of the nature. The Deputy Commissioner (respondent No.2) without applying his independent mind and personal satisfaction has issued the impugned preventive detention order of the petitioner. It is basic requirement of the law that no order, particularly, a penal action can be taken in vacuum without any proof and such orders are nullity in the eyes of law.

6. Further, there is nothing on the record that the petitioner was involved in any act or continues to act which is prejudicial to public interest, as no any FIR has been chalked against the petitioner, nor he is previous convict. There is no justification for preventive detention of a peaceful citizen in the absence of any cogent evidence. The liberty of a peaceful citizen cannot be curtailed by any fanciful order. If the petitioner or any other citizen is found involved in any act which is prejudicial to public interest, he may be proceeded under the relevant law and criminal cases can be registered upon information. 7 The record further reveals that the petitioner has been detained vide order dated 19-9-2014 for a period of thirty days, and this order was extended for a period of further thirty days vide order dated 15-10-2014, the same order has further been extended for the same period vide order dated 7-11-2014. The preventive detention period of petitioner was further extended for thirty days vide order dated 1-12-2014 and lastly vide impugned order dated 26-12-2014 his preventive detention was further extended for a period of thirty days. Hence consecutive extension exceeding the period of three months is also against the law, as under section 3(5-a) of the MPO, no person shall be detained for a period exceeding three months unless the Board has reported, before the expiration of the said period or three months, that there is in its opinion, sufficient cause for such detention. But the petitioner has been detained for more than stipulated period by way of extending preventive detention, without constituting any Board and sufficient cause.

8. Learned Addl: A.G present in the Court in connection with another case was also put on notice and when confronted with the situation, he was not in position to controvert the above legal position or to produce any documentary evidence which may lead to the proposition that there is any sufficient cause regarding his preventive detention. Reliance may be placed in case titled "Hamayun v. DCO Kohat and 6 others" 2014 PCr.LJ 173.

9. Consequently, for the reasons discussed above, this petition is allowed, the impugned order of respondent No.2, is set aside. Petitioner Faitullah alias Fatihullah be released forthwith if not required in any case, provided he furnished surety bonds in the sum of Rs.200000/- (two lac) with two sureties each in the like amount to the satisfaction of Additional Registrar of this bench, which in case of violation on the part of petitioner, shall be forfeited. Above are the reasons of our short order of the even date. MH/77/P Petition allowed.