P L D 2019 Balochistan 120
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
BARAM KHAN---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others ---
Respondents
Constitutional Petition No.659 of 2019, decided on 24th July, 2019.
(a) Provincial Maintenance of Public Order Ordinance (XXXI of 1960) ---
----S. 3 ---Arrest and detention of suspected person--- Prejudice to public order ---Scope ---
Act/Activity complained of a person must be an act prejudicial to public order and its
outcome or its result directly affects public at large---When such act or activity of a person is
there, Provincial Government or person authorized in that behalf, has ample material in this regard to take action or pass order under S.3 of Provincial Maintenance of Public Order
Ordinance, 1960 and same would be within theme of law --- Where an act or activity is
person specific and does not amount to an activity prejudicial to public peace and tranquility,
in no way be encompassed within sphere of Provi ncial Maintenance of Public Order
Ordinance, 1960, and same would be entirely out of scope of law.
Liaquat Ali v. Government of Sindh PLD 1973 Kar. 78 and Masal Khan v. District
Magistrate PLD 1997 Pesh. 148 rel.
(b) Provincial Maintenance of Public Order Ordinance (XXXI of 1960) ---
----S. 3---Constitution of Pakistan, Arts. 10 & 199---Constitutional petition--- Liberty of
person--- Detention, extension of ---Anti -social activities --- Proof --- Petitioner was detained
by authorities on anti -social activities and his detention was extended from time to time ---
Validity ---Person could not be detained or his liberty curtailed without reasonable material
because liberty of a person was guaranteed by the Constitution and High Court while exercising Constitutional jur isdiction was duty bound to satisfy itself that person was not
being held in custody without lawful authority or in an unlawful manner ---After obtaining
surety from petitioner regarding showing good character and ordering release of petitioner, there was n o occasion with authorities to withdraw same that too prior to release of petitioner
merely on basis of suspicion, presumption and speculation---Order in question passed by authorities did not carry reasonable substantial material required for detention of petitioner
and curbing his liberty and freedom ---Showing reasons and grounds while passing detention
order was duty of authorities ---High Court under Constitutional jurisdiction was bound to
scrutinize material furnished by detaining authorities for deten tion of any individual ---Order
passed by authorities regarding extending detention of petitioner was illegal, unlawful,
without lawful authority, arbitrary, perverse and of no legal effect and set aside same ---High
Court directed the authorities that petit ioner be released from jail ---Constitutional petition
was allowed in circumstances.
Liaquat Ali v. Government of Sindh PLD 1973 Kar. 78 and Masal Khan v. District
Magistrate PLD 1997 Pesh. 148 rel.
Barkhurdar Khan Achakzai and Wali Khan Mandokhail for Pe titioner.
Sahi Haq Baloch, Additional Advocate -General, assisted by Muhammad Muzamil,
Deputy Secretary, Home Department and Muhammad Hussain ADC (Rev: Killa Abdullah at
Chaman for Respondents.
Date of hearing: 18th July, 2019.
JUDGMENT
MUHAMMAD HASHIM K HAN KAKAR. ---The instant Constitutional Petition
filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 ("the
Constitution") carries the following prayer:
"It is therefore, respectfully prayed
that the impugned order dated 26.06.2019 made by Deputy Commissioner Killi[a]
Abdullah may kindly be declared to be illegal, unconstitutional, void having no effect at all
that the orders be made to release the petitioner forthwith and to restrain the respondents from detaining the petitioner in the furher [future] ur the same garb.
Any other relief which this honorable court deem fit and appropriate in the circumstances of the case may also be awarded in the interest of justice, equity and fair play."
2. The relevant facts for disposal of instant petition appears that the involvement of the
petitioner in Crime No.34 of 2019 of P.S. Chaman, operation whereof was subsequently suspended by this Court in Criminal Miscellaneous Quashment Petition No.266 of 2019, has been made basis for issuance of order dated 29.05.2019, passed by the Deputy Commissioner Killa Abdullah, under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, whereby the petitioner was ordered to be kept under custody for a period of
thirty days. Though, the Deputy Commissioner ("DC") has referred the involvement of petitioner in antisocial activities but has failed to refer to even a single activity of the nature. It is also evident from record that after issuance of detent ion order dated 29.05.2019, order
dated 30.05.2019 was issued by the Deputy Commissioner, whereby the Superintendent, District Jail, Quetta was directed to detain the petitioner for unlimited period till restoration
of normal situation at District Killa Ab dullah. The record also manifests that after taking
surety regarding good character, the petitioner was ordered to be released on 10th June,
2019, however, before his release from the District Jail, Quetta, the said order was once again withdrawn by means of order dated 15.06.2019 and subsequently the order dated
26.06.2019 was issued by the DC and the period of detention was further extended from 30th
June, 2019 to 30th July, 2019, which is the subject manner of the instant petition.
3. Mr. Barkhurdar Acha kzai, learned counsel for the petitioner contended that the
petitioner is a political worker, religious scholar and is widely known for his social and
welfare activities within the city of Chaman. He is a patriotic and law abiding citizen of Pakistan and a lways took part in peaceful demonstration held by different political
organizations seeking the enforcement or fundamental rights of the people of the country. According to learned counsel, the impugned detention order is not sustainable in the eyes of law because no material in relation to the grounds of detention order was communicated to
the petitioner and there was no material with the DC/Authority to pass the impugned order. While concluding his arguments, he further submitted that the DC has mechanica lly accepted
the request of the Assistant Commissioner without applying his own independent mind to the material placed before him.
4. On the contrary, Mr. Shai Haq Baloch, learned AAG, opposed this petition on the
ground that there was sufficient material available with the District Administration for the
satisfaction to communicate the same to the DC for passing the impugned order. He further submitted that the activities of the petitioner were prejudicial to public safety and the maintenance of public or der, therefore, the instant petition is liable to be dismissed on merit
as well as for want of alternate remedy.
5. We have carefully examined the respective contentions as agitated on behalf of the
parties in the light of relevant provisions of the Consti tution, the West Pakistan Maintenance
of Public Order Ordinance, 1960 and the judicial precedents. Before dilating upon the rival contentions of the parties, it would be relevant to reproduce herein below the impugned order and the letter dated 17th July, 2019 of the DC addressed to the Secretary, Home and Tribal
Affairs Department, Quetta:
"Office of the Deputy Commissioner, Killa Abdullah at Chaman.
Dated Chaman, the 26/06/2019
ORDER
No. 766- 70/Esstt/DC/KA WHEREAS, it has been reported by the Assist ant
Commissioner, Chaman that the suspect Mr. Mulla Behram son of Yar Mohammad r/o Chaman is involved in anti -social activities, which is likely to adversely affect
public safety and maintenance of public order.
2. AND WHEREAS, there are reasons to believ e that the above persons acted and
continue to act in a manner which is prejudicial to public order in meaning of section 3(1) of the West Pakistan Maintenance of Public Order Ordinance of 1960 and
presence of above said person at District Killa Abdullah i s likely to further aggravate
the situation.
AND THEREFORE, I Deputy Commissioner, Killa Abdullah at Chaman, in exercise
of the power conferred upon me under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 read with Home and TA Affairs Government of
Balochistan, Quetta Notification No.SO(Judl:)8(12)/2103/15- 19 dated 5th January,
2012 am pleased to order the detention of above suspects in custody of Central Jail
Quetta for a period of thirty days from the date of detention.
5. This order shall remain enforced for a period of thirty days from the date of detention of the suspect unless withdrawn earlier. Given under my hand and seal of the office on this day 30thJune, 2019 to 30th July, 2019."
Sd/x x x
Deputy Commissioner,
Killa Abdullah at Chaman"
"NO.DC(PTM).1 -GEN- 1 / 2019
Office of the
DEPUTY COMMISSIONER Killa Abdullah
Dated the 17th July, 2019
To
THE SECRETERY,
Government of Balochistan,
Home and Tribal Affairs Department, Quetta.
Subject: - REPORT REGARDING THE DETENTION OF
MULLA BEHRAM UNDER MPO, 1960.
This is with reference to the telephonic conversation with the Deputy Secretary of your exalted office regarding the subject noted above.
In this regard, i t is to state that Mr. Mullah Behram son of Yar Muhammad was a
trouble maker for the district administration, Killa Abdullah in maintenance of public order and had interventions in creating hurdles for the smooth functioning of public interest. Following is the detailed report in this regard:
i. In last Ramzan -ul-Mubarak, the undersigned directed Additional Deputy
Commissioner, Revenue to conduct operation against hoarders and profiteers in order
to provide relief to the general public for checking and moni toring the price and
quality of essential commodities. When he was engaged in operation, Mr. Mulla Behram, the PTM local leader interrupted the operation and started resistance and shouted slogan against the district administration, the ADC Revenue, the Po lice, the
Forces and the state and harassed the ADC Revenue.
ii. Thereafter, an FIR against him was registered and he was arrested but was granted bail from the concerned Court.
iii. In order to maintain public safety and order, the undersigned kept him under detention for the period of one month under the Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 in sub -Jail Chaman as the PTM workers had
surrounded the sub- Jail to take him forcefully out of Jail. Where after, he was a th reat
to the district administration in Chaman, therefore, he was shifted to Central Jail Hudda, Quetta.
iv. During his detention period, on the guarantee of some of the notables of Tehsil Chaman, the undersigned issued his release order on 10th June, 2019 against the date of 15th June, 2019 which was withdrawn on 15th June, 2019 when the undersigned observed his mala fide intentions.
v. After the expiry of the detention period, an extension order of detention was issued in this connection so that public order could be maintained. Consequently, he is detained in Central Jail Hudda, Quetta.
Submitted for your exal ted perusa1 and further necessary action, sir.
Deputy Commissioner
Killa Abdullah"
6. Mr. Barkhudar Achakzai, learned counsel for the petitioner, in order to substantiate
his contention, made a reference to the case of "Liaquat Ali v. Government of Sindh" (PLD
973 Karachi 78), wherein after a detailed survey of the law and judgments passed by the Hon'ble Supreme Court, following dictum has been laid down:
An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (1) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preven tive detention; (ii) that satisfaction should be established with regard to each of
the grounds of detention, and, if one of the grounds is shown to be bad, non- existence
or irrelevant, the whole order of detention would be rendered invalid; (iii) that ini tial
burden lies on the detaining authority to show the legality of preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privile ge
with respect to any document, the validity of which claim shall be within the
competence of the Court to decide. In addition to these requirements, the Court has
further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with; that "satisfaction" in fact existed with regard to the necessity of
preventive detention of the detenue; that the grounds of detention had been furnished
within the period prescribed by law, and if no such period is prescribed, then "as soon
as may be"; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenue to make representation against his detention to the authority prescribed by law; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelev ant to the aim and object of this law and that the detention should not be for
extraneous considerations or for purposes which may be attacked on the ground of malice."
7. Similarly, the West Pakistan Maintenance of Public Ordinance, 1960 was
promulgated f or preventive detention and control of person and publications for reasons,
connected with public safety, interest and miaintenance of public order as is apparent from
the preamble of the Ordinance. Act/activity complained of a peson must be an act prejudi cial
to the public order and its outcome or, its result, directly affects the public at large. When
such an act or activity of a person is there, then the Provincial Government or the person, authorized in this behalf, has the ample material in this regard to take action or pass an orcler
under Section 3 of the said Ordinance and the same would be within the theme of law. But, where an act or activity is person specific does not amount to an activity prejudicial to the public peace and tranquility, in no wa y, be encompassed within the sphere of the Ordinance,
and the same would be entirely out of the scope of the law. Reliance can be placed on the
case of "Masal Khan v. District Magistrate" (PLD 1997 Peshawar 148). Similarly, Articles 4, 9 and 15 of the Cons titution of 1973 deal with the liberty of a person, while Article 10
provides in detail the rights of an individual, who has been arrested or detained in the circumstances in which preventive detention laws are to be made applicable. It further elaborates, inter alia, the rights of a person so detained. A person could not be detained or
his liberty curtailed without reasonable material because the liberty of a person has been guaranteed by the Constitution and this Court while exercising its Constitu tional jurisdiction
is duty bound to satisfy itself that the person is not being held in custody without lawful authority or in an unlawful manner.
8. On the touchstone of criterion as laid down in the above mentioned cases and keeping
in view the judicial consensus, at the first instance to examine the material which was placed
before the authority i.e. the Deputy Commissioner and the letter dated 17th July, 2019, addressed to the Secretary, Home and Tribal Affairs Department, Government of Balochistan, show the petitioner was initially arrested in Crime No.34 of 2019 and after suspension of the operation of said case by this Court, order dated 29.05.2019 was issued by the Deputy Commissioner while exercising his powers under Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, which was subsequently extended for a further period of 30 days by means of impugned order dated 26.06.2019. It seems that the DC, Killa Abdullah has passed the impugned order in a cursory manner without applyin g
judicial mind and the order is not sustainable for the following reasons:
a) That the petitioner was arrested in pursuance of FIR No.34 of 2019, operation
whereof was suspended by this Court vide order dated 29.05.2019, however, instead of contesting/pur suing Quashment Petition No.266 of 2019, the impugned order has
been passed just to frustrate the order passed by this Court.
b) The Provincial Government has vested powers under the Ordinance of 1960 to the Deputy Commissioners with the expectations to be unbiased and they are not
supposed to react on the reports of subordinate officials and police authorities until and unless they satisfy themselves about the correctness of the same and are supported by the tangible material. The DC had in fact deviated f rom his one of
sacred duties by depriving the petitioner of his liberty;
c) The grounds of detention, enumerated in the detention order and memorandum of grounds of detention passed by the Authority in the present case, are vague, passed on presumption and speculation. Merely mentioning word used in Section 3 of the Ordinance of 1960 i.e. "involvement in antisocial activities" is not sufficient to attract the provisions of the said Ordinance;
d) It is painfully observed that after obtaining s urety from petitioner regarding showing
good character and ordering the release of petitioner vide order dated 10th June, 2019, there was no occasion with the authority to withdraw the same that too prior to the release of petitioner from the District Jail , Quetta on the basis of mere suspicion,
presumption and speculation;
e) The impugned order is also not sustainable being passed in violation of the provision of Section 3(6) of the Ordinance, 1960, which provides that the authority shall, as soon as may b e, but not later than 15 days from the date of detention, communicate
to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to the Government against the order and afford hi m the earliest opportunity of doing so. The impugned order does not
reveal that the same was ever communicated to the petitioner, thus, the impugned order is also bad in law on this count and not maintainable;
f) The perusal of record would make it clear that the authority i.e. the Deputy Commissioner, Killa Abdullah has passed the impugned order in a slipshod, cursory manner and thoughtlessly followed the report of the Assistant Commissioner without application of judidial mind whether the case of the petitioner was covered under
Section 3 of the Ordinance of 1960 and fulfilled the prerequisites envisaged therein. The powers under Section 3 of the Ordinance could not be invoked for detention of a person 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 process
for prosecution of the petitioner is initiated. In s uch view of the matter, after taking
into custody, the petitioner in Crime No.34 of 2019, the issuance of impugned order
speaks volumes of mala fides on the part of the authority; and
(g) It is by now well -settled that in order to curb liberty and freedom of individual,
substantial material should be placed by the authority in a detention order. We have observed that the impugned order does not carry reasonable substantial material required for detention of the petitioner and curbing his liberty and freedom . Showing
reasons and grounds while passing detention order is the duty of the authority. This Court under its Constitutional jurisdiction is bound to scrutinize the material furnished by the detaining authority for detention of any individual.
For the af oresaid reasons, there appears no justification in law for the impugned
order, which is, therefore, declared illegal, unlawful, without lawful authority, arbitrary, perverse and of no legal effect. Resultantly, on acceptance of the instant petition , the
impugned order dated 26.06.2019 is set -aside and the petitioner be released from jail if
not required in any other case.
MH/57/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,
let us know.