1998 P Cr (PLP)

Abbottabad. No.2881/dated Abbottabad, the 12‑8‑1996. Subject: WARRANT OF ARREST. Memorandum Please refer to the enclosed diary submitted by S.H.O., Police Station Mirpur. The activities of Muhammad Nawaz son of Muhammad Yousaf, Caste Pathan presently working at Nawaz Estate Advisor Mandian are prejudicial to public safety and maintenance of public order as he is furthering hatred and contempt against the Government in the masses. Besides he also zealously incites public embark upon agitation against the Government. In view of the above it is requested that warrant of arrest under section 3, Maintenance of Public Order Ordinance may please be issued against him to stop him from his nefarious activities. (Sd.) Senior Superintendent of Police Abbottabad." The aforesaid memo was based on a special diary of S.H.O., Mirpur, which is also relevant to be produced hereunder:‑‑ From the above diary it is evident that the S.H.O., Mirpur came to know from the reliable sources that Muhammad Nawaz detenu was creating hatred amongst the people against the Government. The reading of the diary report would manifest that it is all based on hearsay and rumours, as neither the reliable source" .was disclosed nor mode, manner or the place was revealed as to how and where a single person in his individual capacity was instigating and creating hatred against the Government. The diary was submitted on 11‑8‑1996 whereas the S.S.P. wrote a memo to the Deputy Commissioner after 12 days. If the apprehension of breach of peace at the hands of the detenu was imminent then why the police delayed the action for 12 days. The District Magistrate, in view of the above material exercising its jurisdiction under section 3 of West Pakistan Maintenance of Public Order Ordinance issued the impugned order alongwith Notice/allegation, which read as under:‑‑ "ORDER UNDER SECTION 3(1) OF MAINTENANCE OF PUBLIC ORDER ORDINANCE, 1960 Whereas, reliable information has been received by me from confirmed sources that Mr. Muhammad Nawaz son of Muhammad Yusuf, resident of Nawaz Estate Advisor, Mandian has been acting in a manner prejudicial to the security, the public safety and the maintenance of public order in Abbottabad District. Arid whereas having considered the material and information I am of the opinion that in order to prevent the said Mr. Muhammad Nawaz from acting in a manner prejudicial to the public safety and maintenance of the peaceful conditions in Abbottabad District it is necessary to pass an order of detention. Now, therefore, I, Muhammad Riaz Khan, District Magistrate, Abbottabad in exercise of powers conferred on me by Rule 3(l) of the Maintenance of Public Order Ordinance, 1960 read with the Home Department Notification No.3/104‑H/Spl/1/64, dated 24‑2‑1965 hereby order that Mr. Muhammad Nawaz be arrested forthwith and detained with effect from the execution of this order. The detenu may be detained and committed to the custody of Superintendent Central Jail p. I. Khan for a period of 30 days Given under my hands, and seal of the Court this; ‑day of 12tl~August, 1996, (Sd.) District Magistrate, Abbottabad. You, Muhammad Nawaz son of Muhammad Yusuf, resident of Nawaz Estate Advisor, Mandian, Tehsil and District Abbottabad, according to the information received from local police that you have indulged in activities which are pejudicial to public safety and maintenance of public order. I have also come to know through reliable source that you are indulging in activities against the present. Government by baseless and untrue propaganda. Besides, you also incite the public, to embark upon agitation against the Government which is likely, to shatter the peace and tranquillity in the area. You are hereby informed that you arc at liberty to make a representation to Government against the order according to law. Given under my hand and seal of the Court today 12th August, 1996 (Sd.) District Magistrate, Abbottabad 12-8-1996 In the above background and in order to examine the legality and propriety of the impugned order it deems necessary to reproduce section 3 of the ordinance ibid:-

3. Power to arrest and detain suspected persons.

(1) Government if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order it is necessary so to do may be an order in writing direct the arrest and detention in such custody as may be prescribed under subsection (7) of such person for such period as may subject to the other provisions of this section be specified in the order and Government if satisfied that for the aforesaid reason it is necessary so to do may extend from time to time the period of such detention for a period not extending six months at a time The prerequisite condition for issuance of an order under the aforesaid section is that the Government has to satisfy that a person is likely to act in a manner prejudicial to the public safety or maintenance of public order and then to direct the arrest and detention of that person for a‑specified period. It implies that satisfaction of the Government with regard to the conduct of the person likely to act to a prejudicial manner must be objective in nature and not subjective so as allow the Executive Authorities to act on their own fancies there must be sufficient material before the Authority to act upon it so as to justify passing an order of detention. In this case, allegations are that according to information received from local police, the detenu was indulging in activities which were prejudicial to public safety and maintenance of public order. It was further alleged that the detenu was indulging in activities against the present Government by baseless and untrue propaganda and was inciting the public to embark upon agitation against the Government which was likely to shatter the peace and tranquillity in the area. These allegations were levelled against a person, who admittedly was running an estate business and was neither a political leader of any stature nor revolutionist of any degree, as such, the allegations were not supported by any direct or indirect evidence, and, thus, they were vague and unfounded which render the detention order to be against the legal norms.

8. It is noteworthy that on the same very day on which special diary was recorded, a case was also registered against the detenu and others vide F.I.R. No.337, dated 1‑8‑1996 under section 427/278/286, P.P.C. read with section 3/4, Explosive Substances Act at Police Station, Mirpur, wherein he was arrested and later on released on bail. The reading of both the reports would show that they have no nexus with each other as one speak of one thing and the other speak of quite another thing. When criminal case had been registered against the detenu for substantive offences, therefore, his preventive detention after his release on bail, was neither proper nor justifiable. Not even a single person who had been allegedly instigated or prejudiced by the act of the detenu was examined to substantiate the allegation of instigation or other allegations. The respondent failed to produce any material except for the vague special diary, which was not sufficient for passing of an order of detention of a citizen. The detention order has been passed in a mechanical manner on the receipt of a memo. from S.S.P. without application of independent judicious mind. The blanks of the stereotyped order were filled in hand and the same was executed to achieve the underlying designs. In case of Mrs. Arshad Ali Khan v. Government of Punjab 1994 SCMR 1532 Supreme Court of Pakistan had held that "before an act is held to be prejudicial to public order, it must be shown that the act or activity is likely to affect the public at large. As a corollary, therefore, it follows that an act which concerns, only to an individual and does not amount to an activity prejudicial to the public peace and tranquillity cannot fall within the ambit of section 3 of the Ordinance". In view of the above, we accept this petition, set aside/quash the impugned detention order to be without lawful authority. The petitioner was set at liberty vide our short order, dated 9‑9‑1996 and this judgment provides the reasons for the same. M.A.K./2165/P Petition accepted.