1995 PLP 1748 (MLD)

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, filed by Ahmad Ali assails the order, dated 8‑5‑1995 passed by the District Magistrate, Rahimyar Khan (respondent No.2) whereby his father Muhammad Ali son of Dost Muhammad was ordered to be detained for a period of 3 months under section 3(1) of the West Pakistan (Maintenance of Public Order) Ordinance, 1960. The impugned order (Annexure `A') has been passed on the. basis of the following grounds (Annexure `B') narrated in the relevant memorandum:‑‑‑ "OFFICE OF THE DISTRICT MAGISTRATE RAHIMYARKHAN GROUNDS OF DETENTION ORDER: You, Muhammad Ali s/o Dost Muhammad caste Pathan r/o Mastan Shah P/S City `C' Division, Rahimyarkhan have been ordered to be detained by the undersigned under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, with a view to prevent you from acting in any manner prejudicial to the maintenance of public order, safety and tranquillity on the following grounds:‑‑‑ (i) That you are reportedly involved in as many as 33 cases of robbery, arson, armed, burglaries, cheating, ordinary theft, carrying of illicit arms, and you are also active militant of ASS Rahimyar khan and has planned to commit the act of sabotage on the eve of Eid‑ul‑Azha. There is every likelihood that you will commit crimes against persons and property. You have been previously convicted and punishment awarded in the following cases:‑‑‑ . (1) Case F.I.R. No.179, dated 2‑6‑1980 under section 13/20/65 Arms Ordinance, P.S. `C' Division. (2) Case F.I.R. No.33, dated 30‑1‑1991 under section 13/20/65 Arms `Ordinance, P.S. `C' Division. (3) Case F.I.R. No.34, dated. 1‑2‑1991 under section 13/20/65 Arms Ordinance, P.S. `C' Division. (4) In case F.I.R. No.179/80, he was convicted and sentenced to one year R.I. with fine of Rs.1,000. (5) In case F:I.R. No.31/91, he was convicted and sentenced to 7 years' R.I., with fine of Rs.7,000. (6) In case F.I.R. No.34/91, he was convicted and sentenced to 7 years' R.I., with fine of Rs100,

000. The above grounds and reasons for your detention are communicated to you as required by the provisions of section 3, subsection 6 of the West Pakistan Maintenance of Public Order Ordinance, 1960, so as to enable you. to make a representation to the Government against the order of your detention, if you so desire and you are hereby informed that you are at liberty to make such representation to the Government against the orders of your detention. (Sd) (Syed Races Abbas Zaidi), District Magistrate, Rahimyarkhan. Muhammad Ali s/o Dost Muhammad, Caste Pathan r/o Mastan Shah, P/S City "C" Division, Rahimyarkhan."

2. In this Constitutional petition it has been submitted that the grounds for the detention of Muhammad Ali detenu are vague in nature and that no material in proof of the grounds stated therein has been produced that the criminal charges for which the detenu Muhammad Ali was facing trial or was convicted or acquitted could not form basis for preventive detention, that there was no material with the District Magistrate, Rahimyarkhan to establish the anti‑State activities of the detenu to justify the precautionary order of detention particularly when there is no mention as to in what manner the detenu was planning his activities to commit the act of sabotage on the eve of Eid‑ul‑Azha and that the District Magistrate, Rahimyarkhan (respondent No.2) has acted on his own whims without lawful authority. In .the comments the District Magistrate, Rahimyarkhan (respondent No.2) has defended %ae impugned order dated 8‑5‑1995 about the detention of Muhammad Ali who submitted that the detention order was based on the material provided by the Superintendent of Police, Rahimyarkhan as the detenu had as many as 33 cases of all crimes against him and that with the material placed before him it was sufficient to hold that the detenu was likely to indulge in anti‑State activities and to cause alarm to law and order situation.

3. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate‑General and gone through the record before me. At the time of arguments Nawazish Ali S.I./S.H.O. Police Station `C' Division, Rahimyarkhan present with the relevant record also assisted the Court. '

4. The main contention of the learned counsel for the petitioner is that the only ground mentioned in the impugned detention order is that the detenu Muhammad Ali is involved in 33 criminal cases who being an active militant of Anjuman Sipah‑e‑Sahabah had planned act of sabotage on the eve of Eid‑ul -Azha and that there is every likelihood that he would commit crimes against persons and property and that he has been previously convicted and punished in six cases mentioned in the grounds of order. According to him the District Magistrate, Rahimyarkhan mechanically accepted the recommendation of police without applying his own independent mind to the material placed before him as the criminal charges for which the detenu was facing trial and was convicted/acquitted could not form basis for preventive detention. He added that 23 theft cases were registered against the detenu, 4 cases were registered under sections 13 and 2 cases under section 13‑A of the Arms Ordinance, 1965. According to him one case was registered under section 302, P.P.C., one case was registered under section 420/468/471, P.P.C. one case was registered under section 302/34, P.P.C. and one case was registered under section 435, P.P.C. He maintained that the detenu was leading his life outside the jail and that the, last case against him was registered on 30‑1‑1991 while 21 cases were registered during the Seventies. According to him there was no act of sabotage attributed to or committed by the detenu and the opinion of the District Magistrate in the matter is simply whimsical especially when there was nothing on record to make out that the petitioner was an active militant of Anjuman Sipah‑e‑Sahabah. He' expressed that to be a member of Anjuman Sipah‑e‑Sahabah which at present is a political party is no offence. He expressed the opinion that to please the Shia Millat of Muslims the District Magistrate passed the impugned order without any factual or legal justification, On the contrary learned Assistant Advocate‑General laid the emphasis that Muhammad Ali detenu was a hardened, criminal and active militant of Anjuman Sipah‑e‑Sahabah who could have disturbed the law and order situation on the eve of Eid‑ul‑Azha during the month of May, 1995 and the impugned order of his detention has correctly been passed. He added that due to the previous registration of the cases against Muhammad Ali detenu, his conviction and keeping in view his general reputation he has rightly been detained.

5. It seems that the detention order against Muhammad Ali detenu has been passed as the District, Magistrate, Rahimyarkhan had the apprehension that there may not be any act of sabotage on the eve of Eid‑ul‑Azha falling in the month of May, 1995. The detenu Muhammad Ali was selected by him at the request of the Superintendent of Police, Rahimyarkhan in view of the pendency of large number of criminal cases against him and due to his conviction in some of the cases. As expressed above there were 23 theft cases against the detenu registered during the Seventies. In such a state of affairs it is better to go through the case‑law so that the correct legal picture emerges.

6. In Shahbaz Afghan v. The District Magistrate and 2 others (1990 PCr.L1 274 Lahore) it was expressed that this Court has already held in the case of Mst. Shazia Parveen v. District Magistrate, Okara (PLD 1988 Lah. 611). that no order of detention under section 3 of the West Pakistan (Maintenance of Public Order) Ordinance, 1960 can be based on the pendency of criminal cases against the person concerned and in this connection it was observed as under:‑‑‑ ".... if the past act be an ac: for which he is being prosecuted, then you are detaining him for an act which he has yet to be proved to have committed. Then, as in preventive detention, at least one of the objects, of detaining a person for an alleged offence during trial is to prevent him from committing more crimes, and according to the well known theory of punishment known as the preventive. theory, the object of punishment is to incapacitate the offender from committing further crimes and to save the society from the offender's evil deeds. Thus if a person has been arrested for an offence under the Prohibition Order, for being in possession of heroin or opium, he will not ordinarily' be allowed bail for a period of one year and that will serve precisely the same purpose as a detention order is intended to serve. Similarly, if a person is tried and punished, that will automatically produce the result of preventing the repetition of crimes by him. It was, then said that preventive detention is not punishment, that in my opinion, is a play on the meaning of the word `punishment'. Whether the punishment is punitive or non‑punitive, the consequence, as regards the person detained, is the same, namely deprivation of liberty and that is certainly punishment. I am, therefore, in respectful agreement with the view taken in the cases of Liaqat Ali and Muhammad Younas as also in the case of Zafar Abbas and hold that in proceedings against the detenu in Writ Petition No.3589 and against the petitioners in other petitions, as they did, the District Magistrate had proceeded on extraneous and irrelevant considerations and that, therefore, the detenu in Writ Petition No. 3589 of 1988 is being held in an unlawful manner and that in directing the arrest and detention of the petitioners in the remaining writ petitions, the District Magistrates, have done something they were not permitted by law to do."

7. In has been held in Bashiran Bibi v. The District Magistrate, Kasur (1990 PCr.LJ 913 Lahore) the mere fact that the detenu has been involved in a number of criminal cases is per se not a valid ground for preventive detention A and that the 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 reasonable basis for ordering his detention. Thus the criminal charge for which the detenu was facing trial or in which he was convicted or acquitted cannot be considered for passing the detention order under section 3 of the Ordinance, 1960 and such an order being without lawful authority would be simply ineffective.

8. In the ruling Umer Din alias Umroo v. S.H.O., Bhai Pheru and 3 others (1990 PCr.LJ 948 Lahore) it was held that the criminal charges for which the detenu was facing trial or was convicted/acquitted could not form basis for preventive detention and such a detention order was without lawful authority and of no legal effect. This case‑law is also applicable to the facts of the instant matter.

9. In Jalal alias Jala v. District Magistrate, Kasur and 2 others (1990 PCr.LJ 1529 Lahore) the dictum has been enunciated that the cases relating to past years could not be construed as a sufficient ground for taking a preventive action. It is ruled therein that in the absence of the material to establish the nexus between the activities of the detenu and precautionary order of detention, the detention order passed by the District Magistrate would not be considered as lawful which was liable to be quashed.

10. According to Noor Muhammad v. District Magistrate, Hyderabad, Sindh and 2 others (1990 PCr.LJ 2052 Karachi) the mere opinion of the District Magistrate that the detenu indulged in anti‑social activities which would be dangerous to public peace and tranquillity may be the reason for the detention but not a ground of detention of the detenu in the absence of proof.

11. The principle expounded in the aforesaid case‑law is enough to make me hold that the impugned order of detention of Muhammad Ali detenu is without lawful authority. In the criminal field there is also section 403, Cr.P.C. according to which a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237, Cr.P.C. It means that on the basis of the same criminal charge one person cannot be vexed twice. Due to; the disposal or pendency of criminal cases a detenu of the instant nature could not be deprived of liberty as his detention would be nothing but punishment. Even in the field of civil matters there is section 11 of the Code of Civil Procedure containing the famous principle of "res judicata". On the basis of the same cause of action, between the same parties, on the disposal of first civil suit on either way, fresh suit is not maintainable. It is also based on the same principle that in the field of civil litigation no person can be vexed twice. If such a detention order is approved and affirmed that would be giving a free hand to the Administration and thus the person who has been convicted or acquitted of the charge in the criminal. case(s) would be facing technically knocked out which w9uld be nothing but entrapping him into a blind alley.

12. In my view in spite of the fact that there are notable differences between the Anjuman Sipah‑e‑Sahabah comprising persons of Sunni Millat of Muslims and persons of Shia Millat of Muslims the holding of membership of Anjuman Sipah‑e‑Sahabah is not an offence. At present Anjuman Sipah‑e-Sahabah is a political party which has been recognised as such by the Government as well, which has its representation in the National Assembly; of Pakistan as well as in the Punjab Provincial Assembly as rightly pointed out by the learned counsel for the petitioner. As expressed above the last criminal case registered against Muhammad Ali detenu was during the year 1991. No material has been produced to make out that Muhammad Ali detenu is a member of Anjuman Sipah‑e‑Sahabah and secondly that he belonged to the militant group of the same. Thus this part of the impugned order is not only whimsical the same is arbitrary as well.

13. There was no material with the respondents to justify their stand t11at Muhammad Ali detenu had planned to commit act of sabotage on the eve of D Eid‑ul‑Azha 1995 and that he would commit crimes against persons and property.

14. The upshot of the above discussion and findings is that this writ petition merits to be accepted which is allowed as the impugned order, dated E 8‑5‑1995 about the detention of Muhammad Ali detenu is declared to be without lawful authority and of no legal effect.

15. This writ petition is accepted. Muhammad Ali detenu shall be seat liberty forthwith, if not required in any other case. No order as to costs.

16. In the morning through a short order the detenu was ordered to be released and in this judgment the detailed reasons are being recorded for arriving at the aforesaid conclusion. N.H.Q./A‑844/L Petition accepted. (ii)