Ume Kalsoom Vs Secretary Government of Punjab etc

HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.10315/2026

Umme-Kalsoom versus Secretary, Govt. of Punjab, etc.

JUDGMENT

Date of hearing: 26.02.2026

Mr. Talha Shahid, Advocate along with Mr. Muhammad Petitioner by:

Siddique Zafar Qadri, Advocate.

Mr. Mudassar Naveed Chatha, Additional Advocate Respondents by:

General, Punjab for respondents No.2 and 3.

FAROOQ HAIDER, J.:- By means of instant petition filed under Article: 199 of the Constitution of Islamic Republic of Pakistan, 1973, following prayer has been made: - “It is therefore most humbly prayed that by accepting instant petition and direction may graciously be cancelled the letter No.256/HC(G) dated 14-02-2026 and issued direction to release him immediately from illegal confinement of Aqeel Haider from shah pur Jail Disst Sargodha under custody of respondent No.5 in the supreme interest of justice and equity. Any other relief which this honble court deems fit and appropriate may be granted to the humble petitioner in the supreme interest of justice and equity.”

2.Brief however necessary facts for decision of instant petition are that on the report/recommendation of the District Police Officer, Sargodha/ respondent No.3, order bearing No.256/HC(G) dated 14.02.2026 has been passed by the Deputy Commissioner, Sargodha/respondent No.2 under Section: 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 read with Home Department’s Notification No.SO(Judl-III)2-1/2007 dated 20.07.2017 regarding detention of Aqeel Haider (son of present petitioner) for a period of thirty days from the date of his entrance in District

Jail, Sargodha (copy of said order has been annexed at page No.8 of instant petition and hereinafter to be referred as “impugned order”). Feeling aggrieved by aforementioned order, Umme-Kalsoom (mother of Aqeel Haider/present petitioner) has filed instant petition.

3.Learned counsel for the petitioner submits that impugned order passed by Deputy Commissioner, Sargodha/respondent No.2 is against the law as well as facts; therefore, same is not sustainable; though eight criminal cases (detail whereof is mentioned in the impugned order) were registered against the detenu yet in six, out of said eight cases, detenu was acquitted whereas he was convicted in only two cases and after serving out sentences in the same, he has already been released; said cases were registered between the period of year 2003 to 2010 and thereafter any case in recent past has not been registered against the detenu and even otherwise merely on the basis of registration of criminal cases, no one can be detained under Section: 3 (1) of the West Pakistan Maintenance of Public Order Ordinance, 1960. Learned counsel finally prays for setting aside the impugned order and releasing of the detenu (mentioned in the petition).

4.On the other hand, learned Additional Advocate General, Punjab submits that instant petition is not maintainable as detenu has not availed alternative remedy by way of filing representation before Government of the Punjab and further submits that impugned order even otherwise has been passed keeping in view previous criminal record as well as activities/conduct of Aqeel Haider (detenu) and there is no illegality in the same; finally prays for dismissal of instant petition.

5.Arguments heard and available record has been perused.

6.So far as objection raised by learned Additional Advocate General, Punjab regarding maintainability of this petition due to non-filing of representation by the detenu before Government of the Punjab, is concerned, it is relevant to mention here that right to file petition of instant nature i.e. habeas corpus is remedy provided by the constitution of Islamic Republic of Pakistan, 1973 in all the matters of illegal confinement as one of fundamental rights; it goes without saying that if arrest of a person for the purpose of “Preventive Detention” cannot be justified in the eyes of law, then there is no reason that why said person should not invoke jurisdiction of this Court for his immediate release and in this regard, case of “MUHAMMAD IRSHAD versus

Government of the Punjab and others” (2020 P Cr.L J 206) can be safely referred; relevant portion from said case law is hereby reproduced: - “I also do not agree with the learned Law Officer that prior to filing the writ petition against the order of detention, it is necessary to assail the same before the Secretary, Home Department, Lahore (Punjab). Reliance is placed on “Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur” (1999 PCr.LJ 2014) in which by tackling such legal observation the Hon’ble Bench observed as under: - “At the very outset I would express that before the filing of this writ petition, the making of the representation or preference of appeal before the Secretary Home Department, Government of the Punjab is not necessary. It has been held in Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah.

222 and Azad Papers (Jasarat) v. Province of Sindh and others PLD 1974 Kar. 81 that availability of alternate remedy of making representation to the provincial Government against the impugned order does not oust and eclipse the jurisdiction of the Constitutional Court in exercise of its writ jurisdiction in a matter of the instant nature. This objection of the learned Assistant Advocate General is overruled.”

Reliance is also placed on the cases of “Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others” (2016 PCr.LJ 424) and “Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others” (PLD 2015 Lahore 20). Keeping in view the law laid down in judgment supra the objection of the learned AAG is overruled.”

HENCE, aforementioned objection is overruled and instant petition is maintainable.

7.Now coming to the vires of impugned order, the allegation levelled against Aqeel Haider (aforementioned detenu) in the impugned order is that he threatens people of the area, since he is ruffian hence any effectee is not willing to file formal complaint against him due to his fear, he has old enmity, there is imminent threat of fight in the area and his activities are prejudicial to public safety as well as maintenance of public order and detail of cases registered against him has also been mentioned in the impugned order. It is relevant to mention here that in Part-IV, Chapter-VIII of the Cr.P.C., “Security for keeping the Peace and for Good Behavior” has been mentioned whereas in Chapter XIII, “Preventive Action of the Police” has been detailed; in this regard Sections: 107, 150 and 151 of the Cr.P.C. can be advantageously referred and for ready reference same are hereby reproduced as under: -

“107. Security for keeping the peace in other cases.- (1) Whenever a Magistrate of the first class is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, the Magistrate if in his opinion there is sufficient ground for proceeding may in manner hereinafter provided, require such person to show cause why he should not be ordered, to execute a bond, with or without sureties, for keeping the peace for such period not exceeding three years as the Magistrate thinks fit to fix.

(2)Proceedings shall not be taken under this section unless either the person informed against or the place where the breach of the peace or disturbance is apprehended, is within the local limits of such Magistrate's jurisdiction, and no proceedings shall be taken before any Magistrate, [except with the approval of the Sessions Judge], unless both the person informed against and the place where the breach of the peace or disturbance is apprehended, are within the local limits of the Magistrate's jurisdiction. Procedure of Magistrate not empowered to act under sub- section (1). (3) When any Magistrate not empowered to proceed under sub-section (1) has reason to believe that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity, and that such breach of the peace or disturbance cannot be prevented otherwise than by detaining such person in custody, such Magistrate may, after recording his reasons, issue a warrant for his arrest (if he is not already in custody or before the Court), and may send him before a Magistrate empowered to deal with the case, together with a copy of his reasons.

(4)A Magistrate before whom a person is sent under sub- section (3) may in his discretion detain such person in custody pending further action by himself under this Chapter.”

“150. Information of design to commit such offences. Every police- officer receiving information of a design to commit any cognizable offence shall communicate such information to the police-officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.”

“151. Arrest to prevent such offences.- A police-officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.”

However, any “Qalandara ( ”)قلندرہprepared by the police under Sections: 107, 150 or 151 Cr.P.C. regarding alleged activities of the detenu is neither mentioned in the impugned order nor otherwise has been produced with reports submitted by respondents No.2 and 3 in the Court. If for the sake of arguments, any effectee was not willing to file formal complaint against detenu due to his fear, even then, Station House Officer and other police officials of concerned police station were quite competent to

record Rapt ( )رپٹregarding any such activity of the detenu in the General Diary (Roznamcha) of the police station but record of any such Rapt ( )رپٹis neither mentioned in impugned order nor has been produced before the Court. Even an iota of cogent material comprising of per se admissible evidence has neither been mentioned in the impugned order nor annexed with the reports submitted by respondents No.2 and 3 to show that activities of the alleged detenu were prejudicial to public safety and maintenance of public order. It is relevant to mention here that merely on the sole basis of registration of criminal cases against the detenu in the past, in which detenu has been acquitted or convicted, detention order under the Ordinance (ibid) cannot be passed because it amounts to double jeopardy i.e. vexing someone twice for one and the same charge; in this regard case of “AHMAD ALI versus THE STATE” (1995 MLD 1748) can be referred and relevant portion from the same is hereby reproduced below:-

7.In has been held in Bashiran Bibi v. The District Magistrate, Kasur (1990 PCr.LJ 913 Lahore) the mere fact that the detenu has been involved in a number of criminal cases is per se not a valid ground for preventive detention and that the law is well established that when a person has been prosecuted on a criminal charge the same material should not in fairness be taken as reasonable basis for ordering his detention. Thus the criminal charge for which the detenu was facing trial or in which he was convicted or acquitted cannot be considered for passing the detention order under section 3 of the Ordinance, 1960 and such an order being without lawful authority would be simply ineffective.

8.In the ruling Umer Din alias Umroo v. S.H.O., Bhai Pheru and 3 others (1990 PCr.LJ 948 Lahore) it was held that the criminal charges for which the detenu was facing trial or was convicted/acquitted could not form basis for preventive detention and such a detention order was without lawful authority and of no legal effect. This case-law is also applicable to the facts of the instant matter.

9.In Jalal alias Jala v. District Magistrate, Kasur and 2 others (1990 PCr.LJ 1529 Lahore) the dictum has been enunciated that the cases relating to past years could not be construed as a sufficient ground for taking a preventive action. It is ruled therein that in the absence of the material to establish the nexus between the activities of the detenu and precautionary order of detention, the detention order passed by the District Magistrate would not be considered as lawful which was liable to be quashed.

10.According to Noor Muhammad v. District Magistrate, Hyderabad, Sindh and 2 others (1990 PCr.LJ 2052 Karachi) the mere opinion of the District Magistrate that the detenu indulged in anti-social activities which would be dangerous to public peace and tranquillity may be the reason for the detention but not a ground of detention of the detenu in the absence of proof.

11.The principle expounded in the aforesaid case-law is enough to make me hold that the impugned order of detention of Muhammad Ali detenu is without lawful authority. In the criminal

Writ Petition No.10315/2026 6

field there is also section 403, Cr.P.C. according to which a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237, Cr.P.C. It means that on the basis of the same criminal charge one person cannot be vexed twice. Due to the disposal or pendency of criminal cases a detenu of the instant nature could not be deprived of liberty as his detention would be nothing but punishment. Even in the field of civil matters there is section 11 of the Code of Civil Procedure containing the famous principle of "res judicata". On the basis of the same cause of action, between the same parties, on the disposal of first civil suit on either way, fresh suit is not maintainable. It is also based on the same principle that in the field of civil litigation no person can be vexed twice. If such a detention order is approved and affirmed that would be giving a free hand to the Administration and thus the person who has been convicted or acquitted of the charge in the criminal case(s) would be facing technically knocked out which would be nothing but entrapping him into a blind alley.”

By now it is settled law that for passing detention order of person under Section: 3(1) of the Ordinance (ibid), the competent authority must have reasons to believe that said person within his territorial jurisdiction has acted, is acting or is about to act in a manner which is prejudicial to public safety or maintenance of public order; however, perusal of the available record including reports and parawise comments to this petition submitted on behalf of respondents No.2 and 3 reveals that allegation levelled against the detenu is general in nature i.e. he threatens people of the area, since he is ruffian, so any effectee is not willing to file formal complaint against him due to his fear, he has old enmity, there is imminent threat of fight in the area and his activities are prejudicial to public safety as well as maintenance of public order; however any solid or cogent material/evidence in order to establish the same, was not produced before Deputy Commissioner, Sargodha/respondent No.2 at the time of passing impugned order because such like material/evidence has neither been referred in the impugned order nor in the report to this petition submitted by Deputy Commissioner, Sargodha/respondent No.2. It is not out of place to mention here that except aforementioned request/recommendation of the District Police Officer, Sargodha/respondent No.3, any legally admissible material against aforementioned detenu to establish that he was acting or was about to act in any manner, which was prejudicial to the public safety or maintenance of the public order, is not available on the record. On Court’s

query, learned Additional Advocate General, Punjab could not refer any per se and legally admissible document to show that the detainee was making any programme for creating any law & order situation, or fighting in the area or disturbing the public-at large or doing the activities prejudicial to public safety as well as maintenance of public order. Perusal of report and parawise comments of Deputy Commissioner, Sargodha/respondent No.2 and report of the District Police Officer, Sargodha/respondent No.3 does not show any reliable material to invoke sub-section (1) of Section: 3 of the Ordinance (ibid) except apprehensions. However, mere apprehensions which are not supported by any cogent as well as substantial material, cannot be allowed to become basis for curtailing liberty and/or right of freedom of any citizen guaranteed by the constitution of Islamic Republic of Pakistan, 1973. Even otherwise, learned Additional Advocate General, Punjab could not refer any previous criminal record of the detenu regarding his any activity against the Government except eight criminal cases which are mentioned in the impugned order (as discussed above). When all aforementioned factors are taken into consideration in totality, then it is crystal clear that impugned order has been passed against the settled principles of law on the subject and without any valid reason/cogent material hence not sustainable in the eyes of law.

8.In view of what has been discussed above, impugned detention order bearing No.256/HC(G) dated 14.02.2026 is hereby set aside and as a consequence whereof detenu (mentioned in the petition) is ordered to be released forthwith, if not required in any other case. Instant petition stands allowed.

(Farooq Haider) Judge

APPROVED FOR REPORTING

(Farooq Haider) Judge This judgment has been dictated, pronounced, prepared and signed on 26.02.2026.

Javed S.