2018 P Cr (PLP)

ABDUL SATTAR, J.

Through this writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioner Muhammad Yaqoob Butt seeks to challenge the impugned order dated 26.7.2017 passed by respondent No.1 Deputy Commissioner, Hafizabad, whereby the son of the petitioner namely Aamir Shahzad has been detained for a period of 30-days under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, on a report furnished by respondent No.2 District Police Officer, Hafizabad, which stipulated that said son of the petitioner has been found involved directly or indirectly in narcotics cases. Grounds cited for the above purpose are that the impugned order of the Deputy Commissioner, Hafizabad is illegal, void ab initio and passed in clear violation of constitutional guarantees, presumptive, discriminatory, manifest example of double jeopardy and against golden principles of equity and fair play.

2. During arguments, learned counsel for the petitioner reiterating the above grounds has also canvassed a plea that in view of the patently illegal, perverse and arbitrary nature of the impugned order, it is not necessary to file representation before Home Secretary, Government of the Punjab, Lahore as declared by this Court in several judgments reported in the cases "Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others" (2016 PCr.LJ 424 Lahore), "Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others" (PLD 2015 Lahore 20) and "Abdul Rasheed Bhatti v. Government of Punjab through Chief Secretary and 6 others" (PLD 2010 Lahore 468). It has been, thus, ultimately prayed that by allowing the writ petition, the impugned order of Deputy Commissioner, Hafizabad dated 26.7.2017 may be declared as illegal, unlawful, void ab initio and the detenue Aamer Shahzad be set free immediately.

3. Issuing authority of the detention order under challenge the respondent No.1 Deputy Commissioner, Hafizabad in his report and parawise comments narrating the background of passing such order on the basis of District Police Officer, Hafizabad report has tried to justify his order, which according to him is legally sustainable and the detenue possesses alternate remedy to file representation before the Home Secretary, Government of the Punjab, Lahore. The learned Additional Advocate General relying upon the report and parawise comments furnished by the respondent No.1 Deputy Commissioner, Hafizabad has opposed the writ petition.

4. Arguments heard. Record perused.

5. After careful appraisal of above argued facts in the light of available record of the issue before this Court, it is manifest that while passing the impugned detention order under the preventive law known as West Pakistan Maintenance of Public Order Ordinance, 1960, the respondent Deputy Commissioner was mainly influenced by a report furnished by the District Police Officer, Hafizabad to the effect that detenue Aamer Shahzad, son of the petitioner, was involved in a criminal case FIR No.134/2016 dated 18.4.2016 under section 9(c) of the Control of Narcotic Substances Act, 1997, Police Station Sadder Hafizabad and he was a habitual offender and also involved in other evil activities. It was also reported that there was a sneering resentment against his activities, which may boil into unmanageable public protest leading to public disorder. Citing of such reasons is quite strange and repelling to reason for more than one reason, as mere involvement of someone in one criminal case cannot become a basis to be dubbed as habitual offender. Additionally hundreds of people involved in narcotics or other crimes, either on bails or otherwise, are roaming on the streets but not all of them have been thrown into jails by the Executive Officers under the Preventive Detention Laws. There can be great possibility of misuse or arbitrary use of such power by the Executive Authorities. Similarly exercise of such power also breeds discrimination. The learned counsel for the petitioner has also rightly raised the plea of causing the hardship of double jeopardy to the detenue, which is prohibited under Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 because if in the ultimate the detenue is acquitted from the above noted criminal case how he will be compensated in the end.

6. As regards the issuance of preventive detention order against the detenue Aamer Shahzad on the excuse of ensuring public safety, breach of peace and threat to peace and harmony or to maintain public order, the Hon'ble Supreme Court of Pakistan has clearly laid down guideline in the case titled "Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary Home" (1994 SCMR 1532) in the following unequivocal terms:- "The word 'public order' is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect security of the State. From the above-stated legal position, it is quite clear that before an act is held to be prejudicial to public order, it may 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 tranquility cannot fall within the ambit of section 3 of the Ordinance".

7. About a plea raised from the respondents side to avail alternate remedy in the shape of filing of representation before the Home Secretary, Government of the Punjab, Lahore, this Court has, time and again, declared in many cases that availability of alternate remedy of making representation to the Provincial Government against the impugned order does not oust and eclipse the jurisdiction of this Court in exercise of writ jurisdiction if the detention order is found to be violative of the principles of fair trial as enshrined in Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. Reliance is placed on "Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur" (1999 PCr.LJ 2014) "Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others" (2016 PCr.LJ 424 Lahore) and "Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others" (PLD 2015 Lahore 20).

8. In view of what has been discussed and held above, the impugned detention order dated 26.7.2017 passed by respondent No.1 Deputy Commissioner, Hafizabad being found to be patently illegal, void ab initio and contrary to the guarantees provided to the citizens in the Constitution of Islamic Republic of Pakistan, 1973, the same is set aside and declared ineffective upon the rights of the detenu. Resultantly, instant writ petition is allowed and the detenu Aamer Shahzad is ordered to be released forthwith, if not required in any other case. MH/M-164/L Petition allowed.