2006 P Cr (PLP)

SALIM KHAN, J.

Mst. Chaman Shereen widow of Nawar Khan submitted the present writ petition with the allegations that the respondents raided the houses and Hujra of the sons of the petitioner and arrested them under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, that the impugned order was issued on 21-9-2005 which has been assailed by the present petitioner, being the mother of Abdul Jabbar Khan, Bakhtiar Khan and Sher Aman Khan sons of Nawar Khan, resident of Mohallah Biland Khel, Hod in District Mardan. We heard the learned counsel for the petitioner as well as the learned D.A.-G. and perused the available record.

2. The learned D.A.-G. submitted the copies of F.I.Rs. Nos.570 dated 20-7-1989, 686 dated 13-8-1990, 917, dated 12-11-1990, 584 dated 20-7-1992, 58, dated 23-1-1993, 259, dated 9-3-1993, 966, dated 12-11-1994, 134, dated 31-1-1995, 410, dated 27-4-1997, 417, dated 29-4-1997 of Police Station, "B" Division, F.I.Rs. Nos.859, dated 25-10-2002, 475, dated 17-4-2003, 1303, dated 3-11-2003 of Police Station, Hoti Mardan against Abdul Jabbar, Bakhtiar and Sher Aman accused.

3. The learned counsel for the petitioner referred to section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 and contended that there was nothing on record for the satisfaction of the Government that the sons of the petitioner named in the petition in hand have acted in any manner prejudicial to public safety or to the maintenance of public order. He also contended that the allegations against the sons of the petitioner on the strength of copies of the F.I.Rs. mentioned above do not amount to acting in any manner prejudicial to the public safety or to the maintenance of public order because the above mentioned cases are not only personal and individual, but have also not yet been proved in any Court of law. The learned D.A.-G. submitted that some of these cases have been decided and the accused have been fined. 3-A. The learned counsel for the petitioner then referred to Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary Home 1994 SCMR 1532 and submitted that cases of private, personal and individual nature could not be taken as threats to maintenance of public order.

4. The learned D.A.-G. could not be able to show us that how the public safety is in danger by the existence of the above mentioned cases, which are of routine nature, and how the above mentioned cases are prejudicial to the maintenance of public order. It is the primary duty of the police officials of a local police station to maintain public order. The cases of routine nature do take place and these are properly investigated by the investigating staff who submit the cases to the Courts of law for adjudication. The maintenance of law and order is the duty of the executive/administrative branch of the local police, and unless a case of grave threat to the peace and tranquility in the local society is made out, it cannot be said that the public order cannot be properly maintained.

5. The copies of F.I.Rs., as mentioned above, indicate that the cases against the sons of the petitioner are of personal and individual nature involving one or more sons of the petitioner and their opponents, but not the public at large. There may occasion a public sensation for a short period due to a criminal occurrence, but the occurrence itself does not become of public importance with such minor sensation and does not change personal character of the occurrence, unless the peace and tranquility of the whole society is threatened by such offences. The mere lodging of F.I.Rs. has never been considered as proof of guilt of the persons charged in the said F.I.Rs. The cases mentioned therein have to pass through the test of judicial scrutiny. It is on the basis of the facts and law involved in each case that an accused is either convicted or acquitted. But the mentioned cases of normal nature do not lead to the conclusion that there was threat or danger prejudicial to the maintenance of public order at the hands of the persons named in such F.I.Rs.

6. In the circumstances of the present case, we are of the view that the cases mentioned against the three sons of the petitioner, namely, Abdul Jabbar Khan, Bakhtiar Khan and Sher Aman Khan are the cases of individual and personal nature and do not lead to the conclusion that these cases, which had occurred at different times, and have been or being dealt with in accordance with the provisions of law, are prejudicial to the maintenance of public order.

7. We, therefore, accept the present writ petition, set aside the impugned order, dated 21-9-2005 and direct that the sons of the petitioner named above be set free forthwith, if not required in custody in any other case. H.B.T./548/P?????????????????????????????????????????????????????????????????????????????????????? Petition accepted.