2020 P Cr. L J 960
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
ABDUL QAYYUM and another ---Petitioners
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others ---
Respondents
Constitutional Petition No. 1135 of 2019, decided on 18th November, 2019.
(a) Balochistan Maintenance of Public Order Ordinance (XXXI of 1960) ---
----S. 3 ---Preventive detention ---Satisfaction of Government ---Objective satisfaction ---
Scope ---Petitioner assailed order of his detention under S. 3(1) of Balochistan Maintenance
of Public Order Ordinance, 1960 ---Petitioner was detained for being a potential threat to the
public safety and for provoking the general masses against the State ---Validity ---Government
had to be satisfied, in order to arrest a nd detain a person under section 3(1) of Balochistan
Maintenance of Public Order Ordinance, 1960, that the activities of such person were
prejudicial to public safety and maintenance of public order ---No sufficient cause was
available to justify the preven tive detention of the petitioner ---Satisfaction of government
had to be objective in nature and not subjective or of such nature as to allow the authorities
to act on whims and caprices without there being any material before them in support of the
grounds for preventive detention ---Grounds mentioned by the authorities for preventive
detention of petitioner were general in nature which were not substantiated by any material ---
Orders passed by authorities was declared to be null, void and of no legal effects .
(b) Constitution of Pakistan ---
----Arts. 4, 9 & 199 --- Right of individuals to be dealt with in accordance with law ---Security
of person ---Judicial review ---Scope ---Any action by the Government or any of its
functionary depriving or restricting the lib erty of a citizen without sufficient cause is not
envisaged by the Constitution ---Any such action taken by the Government or any of its
functionary will not be immune from scrutiny of High Court in exercise of its powers under
Art. 199 of the Constitution.
(c) Balochistan Maintenance of Public Order Ordinance (XXXI of 1960) ---
----S. 3 ---Constitution of Pakistan, Art. 199 ---Preventive detention ---Judicial review ---
Scope ---High Court, in exercise of powers of judicial review under Art. 199 of the
Constituti on, can examine the validity of the detention order passed under S. 3(1) of
Balochistan Maintenance of Public Order Ordinance, 1960.
Barkhurdar Khan, Wali Khan Mandokhail and Habibullah Nasar for Petitioners.
Abdul Latif Kakar, Additional Advocate Gener al along with Muhammad Muzamil,
Deputy Secretary, Home and Tribal Affairs Department for Respondents.
Date of hearing: 14th November, 2019.
ORDER
NAEEM AKHTAR AFGHAN, J. ---The detention of petitioner No.1 Abdul Qayyum
son of Haji Ameer Muhammad under section 3(1) of the Balochistan Maintenance of Public
Order Ordinance, 1960 (hereinafter "the Ordinance") has been challenged by filing the
instant constitution petition.
The petitioner No.2 has already been released from custody on completion of thirty
(30) days of his period of preventive detention under section 3(1) of the Ordinance and
learned counsel for the petitioners has not pressed the petition to his extent.
2. After hearing learned counsel for petitioner No.1 as well as learned AAG, we have
gone through the annexed documents and have also gone through the material placed before
us by Deputy Secretary, Home and Tribal Affairs Department, Government of Balochistan.
3. It transpires that initially petitioner No. 1 was detained under section 3(1) of the
Ordinance for a period of thirty (30) days (1st term) by the order of Deputy Commissioner,
Loralai dated 11th October, 2019 on the following two grounds:
1. He is potential threat to the public safety and there are reasons to believe that he may
create Law and Order situation in public offices.
2. He is involved in instigating others in creating such Law and Order situation which
may result in violence and potential damage to public property".
4. Subsequently, the detention period of the petitioner No.1 was extended for further 30
days (2nd term) w.e.f 11.11.2019 to 10.12.2019 by Additional Chief Secretary (Home)
Government of Balochistan Home and Tribal Affairs Department vide order dated 8th
November 2019 on the following two grounds.
He is potential threat to the public safety and law and order situation in Loralai.
He is provoking the general masses against the State.
5. Any action by the Government or any of its functionary depriving or restricting the
liberty of a citizen without sufficient caus e is not envisaged by the Constitution of Islamic
Republic of Pakistan. Any such action taken by the Government or any of its functionary will
not be immune from scrutiny of this court in exercise of its powers under Article 199 of the
Constitution of Isla mic Republic of Pakistan.
6. In exercise of powers of judicial review under Article 199 of the Constitution of
Islamic Republic of Pakistan, the High Court can examine the validity of the detention order
passed under section 3(1) of the Ordinance.
7. Section 3(1) of the Ordinance reads as follows:
Power to arrest and detain suspected persons.
3. (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 or der, it is
necessary so to do, may, by 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 t he order, and
Government, if satisfied that for the aforesaid reasons it is necessary so to do, may,
extend from time to time the period of such detention, for a period not exceeding six
months at a time.
[Explanation 1] - For the purposes of this section --
(i) 'dealing in the black -market' or 'hoarding' as defined in the Hoarding and Black
Market Act, 1948; or
(ii) an act of smuggling punishable under the Sea Customs Act, 1878, or the Land
Customs Act, 1924, or under any other law for the time being in force;
shall be deemed to be an act prejudicial to the maintenance of public order.
[Explanation 1] ---Whoever is or was a member of an association or its Executive
Committee, which association is or has been declared to be unlawful under any law
for the time being in force in the Province, at any time during the period of seven
days immediately before it was so declared to be unlawful, or remains or becomes a
member of such an association or is on the Executive Committee thereof after it has
been so decla red to be unlawful shall be deemed to be acting in a manner prejudicial
to public safety and the maintenance of public order for the purposes of this section.]
8. For arrest and preventive detention of a person under section 3(1) of the Ordinance,
there sh ould be satisfaction of the Government that the Activities of such person are
prejudicial to public safety and maintenance of public order, but in the instant case, the
material on the basis whereof the executive authorities have acted under section 3(1) o f the
Ordinance against petitioner No.1 does not reveal of sufficient cause to justify his preventive
detention.
9. The satisfaction of the Government under section 3(1) of the Ordinance is to be
objective in nature and not subjective of such nature as to allow the authorities to act on
whims and caprices without there being any material before them in support of the grounds
for preventive detention.
10. The grounds mentioned by the authorities for preventive detention of the petitioner
No.1 are general in nature which are not substantiated by any material.
For the above reasons, the impugned orders dated 11th October 2019 passed by
Deputy Commissioner, Loralai and 8th November 2019 passed by Additional Chief Secretary
(Home) Government of Balochistan Home and Tribal Affairs Department with regard to
preventive detention of petitioner No.1 under section 3(1) of the Ordinance are declared null,
void and of no legal effect.
Consequent to the above, the petitioner No.1 Abdul Qayyum son of Haji Ameer
Muhammad, presently confined under section 3(1) of the Ordinance in District Prison Sibi, is
ordered to be released forthwith if not required in any other case.
SA/11/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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