-S. 3(1)--Order of detention of 30 days passed by Deputy Commissioner on the ground of activities prejudicial to public safety and tranquility-

 PLJ 2022 Lahore 1

West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3(1)--Order of detention of 30 days passed by Deputy Commissioner on the ground of activities prejudicial to public safety and tranquility--Challenge to--There is no concrete and tangible evidence in support of impugned order--S. 3 of Ordinance cannot be based on conjectures and surmised--Grounds of detention must have support of sufficient cogent material and it would satisfy issuance of preventive order--Order issuing u/S. 3 of MPO, must satisfy itself that evidence before authority is sufficient to justify detention order, without it, it would be violative of Art. 9 of Constitution--Preventive detention order is declared illegal, unlawful and issued without application of independent mind.                                                                                             

                                                                    [Pp. 2, 3 & 5] A, B, C, & F

PLD 2003 SSC 442; PLD 2016 Pesh 89; 2004 MLD 1541;
2004 PCr.LJ 1604.

Constitution of Pakistan, 1973--

----Art. 9 & 10--A person cannot be deprived of his liberty on basis of flimsy/shaky and insufficient material/evidence--Article 9 of Constitution provides for security of person "No person shall be deprived of life and liberty save in accordance with law". Now under provision of Section 3 of Ordinance authority which is issuing preventive detention order under Section 3 of MPO, must satisfy itself that material produced before him is sufficient to justify detention order, without it, it would be violative of Article 9 of Constitution. [Pp. 3 & 4] D & E

PLD 2003 SC 442 ref.

2004 MLD 1541; 2004 PCrLJ 1604 ref.

Kh. Qaiser Butt, Advocate for Petitioner.

Mr. Azhar Saleem Kamlana Addl. Advocate General with Ahmad Shehzad Deputy Commissioner, Multan.

Haji Muhammad Aslam Malik, Advocate/Legal Advisor.

Date of hearing: 25.8.2021.

 PLJ 2022 Lahore 1
[Multan Bench, Multan]
Present: Sardar Muhammad Sarfraz Dogar, J.
SHAHID RASOOL--Petitioner
versus
GOVERNMENT OF PUNJAB through Secretary Home Department and 6 others--Respondents
W.P. No. 12655 of 2021, decided on 25.8.2021.

Order

The petitioner, invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for declaration to the effect that impugned order Bearing
No. POB-1-111/2021/D.C dated 15.8.2021 issued by the Deputy Commissioner, Multan (Respondent No. 3) whereby the petitioner's brother, namely, Qari Tahir Rasool was ordered to be detained for a period of 30-days under Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 on the so called ground of prejudicial to public order safety and tranquility donstant threat to the law and order of the area and indulging in activities to defuse the writ of the government is arbitrary, fanciful, discriminatory, unconstitutional and without lawful authority, hence, liable to be struck down.

2. Learned counsel for the petitioner argued that the petitioner's brother is law abiding citizen and never remained involved in any kind of illegal and unwarranted activities. Official respondents, due to their personal malice and malafide have allegedly shown involvement of the petitioner's brother in unlawful activities, which has no basis and footing. He prayed for setting aside the impugned order of Respondent No. 3 issued under Section 3 MPO.

3 & 4. Learned Additional Advocate General fully supported the impugned detention order issued by Respondent No. 3 and prayed for dismissal of instant writ petition

5. I have heard the arguments advanced by learned counsel for the parties and perused the record with their able assistance.

6. It has been noticed that Respondent No. 3 passed the impugned order dated 15.8.2021 for the detention of the petitioner's bother Qari Tahir Rasool, the alleged detenue, on the report submitted by Respondent No. 4/C.P.O Multan, on the grounds that he is involved in a number of criminal cases, detail of which is mentioned in the impugned order.

7. Mr. Ahmad Shehzad, Deputy Commissioner, Multan appeared in pursuance of pre-admission notice and produced report against the detenue and stated that due to registration of certain FIRs the impugned letter was issued. Upon query of this Court that whenever report was received by the DC from Police Hierarchy or District Intelligence Committee qua issuing of detention order of any person, whether he applied his independent judicious mind or not, the reply of DC is not satisfactory. This Court noticed that the DC has issued the impugned order blindfoldly without having any sufficient and incriminating material against the detenue.

8. Apart from the criminal cases, the Respondent No. 3 is not in possession of any other concrete and tangible material/evidence in support of order dated 15.8.2021.

9. Order under Section 3 of the Ordinance ibid cannot be based on conjectures and surmises, rather it should be based on concrete and tangible evidence. Moreover, the grounds on the basis of which detention order of a person is issued/passed, that must have the support of sufficient cogent material and only thereafter, it would satisfy the issuance of preventive order. Furthermore, the material/evidence must be of such a nature and character to persuade and satisfy an ordinary prudent person to justify the order of preventive detention. It is the consistent view of the superior Courts of the country that a person cannot be deprived of his liberty on the basis of flimsy/shaky and insufficient material/evidence. Wisdom in this respect drawn from PLD 2003 Supreme Court 442, wherein, it is held:

"It can be concluded safely that satisfaction can only be based on some evidence or record justifying the detention order which is badly lacking in this case".

In the above cited judgment the apex Court has thrashed out the entire law available on the subject. Reliance can also be placed on PLD 2016 Peshawar 89, wherein it is held:

"Needless to say that it has consistently been held umpteen times by the Courts that powers under Section 3 MPO could not be invoked for detention of persons on the grounds other than provided for by the law. As such, preventive detention of a person who is either accused of an offence or\ convicted for a crime would not only amount to double jeopardy but would also militate against the spirit of the relevant law, prescribing procedure and penalties for commission of offences, as resort to preventive measures is useful only before commission of the offence and not after the offence has been committed, where-after case is registered and legal prdcess for prosecution of the perpetrator is initiated":

10. Article 9 of the Constitution provides for the security of the person "No person shall be deprived of life and liberty save in accordance with law". Now under the provision of Section 3 of the Ordinance ibid, the authority which is issuing preventive detention order under Section 3 of MPO, must satisfy itself that material/evidence produced before him is sufficient to justify the detention order, without it, it would be violative of Article 9 of the Constitution. Wisdom is derived from 2004 MLD 1541, wherein it is held that:

"To my mind, life and liberty of citizens is too much important, no person can be deprived of this precious liberty, unless allegation against him are prima facie proved from the record. In the instant, case prima facie this Court is of the view that these allegations against the petitioners are not proved from the record in hand after making tentative assessment of the evidence ".

Wisdom is further derived from 2004 P.Cr.L.J. 1604, wherein it is held that:

"It is well settled now that even the Constitution of Islamic Republic of Pakistan provides that no person shall be deprived of life, liberty save in accordance with law. Indeed the State has\to act within the limits of law wherever, the life or liberty of individual is affected"

11. Keeping in view the above stated facts and circumstances of the case, this Court has reached to the conclusion that the preventive detention order dated 15.8.2021 of Respondent No. 3 is illegal, unlawful and issued without application of independent mind, hence, the same is set-aside and struck down. This petition is allowed accordingly. The detenue be released forthwith, if not required in any other case.

(K.Q.B.)          Petition allowed