Fiaz VS State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

...WP.....No...535-A....of.........2016.

JUDGMENT

Date of hearing..................31.05.2016.................................

Petitioner (s)...(Fiaz) by M/S Babar Ilyas and Iftikhar Ahmad Tanoli, Advocates...........

Respondent(s)...(The State etc)by Mr. Muhammad Naeem Abbasi,

AAG ............................................

QALANDAR ALI KHAN, J:- Fiaz son of Gul Zaman, petitioner, has assailed order under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, by way of the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereby, the Deputy Commissioner, Mansehra (respondent No.2) issued the impugned order with regard to detention and confinement of the petitioner in Central Jail, Haripur, for a period of thirty days from the date of arrest on the ground of his involvement

in timber smuggling and thereby posing threat to law and order and also acting in a manner which was prejudicial to the public safety and maintenance of peaceful atmosphere in Agror Tanawal Forest Division. The impugned order would show that the same was issued on the basis of report of the Divisional Forest Officer, Agror Tanawal Forest Division, Oghi (respondent No.3), who in his letter dated 05.05.2016 reported that the petitioner was a chronic timber smuggler and was not refraining from his illegal practices despite repeated complaints in the Court and perpetual warrants against him.

2.Since serious questions about the freedom and liberty of the petitioner were raised in the writ petition, the learned Additional Advocate General, present in Court in other cases, was put on notice, who accepted the notice and produced SHO Police Station Phulra, Mansehra, who stated at the bar that there was no criminal record in the police station showing involvement of the petitioner in

activities prejudicial to law and order in the area and that the impugned order under section 3 MPO was not issued on the report of local police. Anyhow, the record of case/cases against the petitioner showing his involvement in such like activities could also not be procured either from the office of Deputy Commissioner, Mansehra or from the concerned Divisional Forest Officer.

3.Even otherwise, if there were

complaints pending in the Court and perpetual warrants issued against the petitioner in the cases, the Deputy Commissioner could not have resort to preventive detention under section 3 MPO, as activities attracting other provisions of law were to be dealt with by the Courts and petitioner punished accordingly if proven guilty after due process of law, but preventive detention, in the circumstances, was neither warranted by the law nor even called for under section 3 MPO, besides not meeting the mandatory requirements of law and justice. In any case, the impugned action on the part of

Executive head of the district unjustifiably and illegally deprived a citizen of his fundamental rights of freedom and liberty on grounds other than available and valid for preventive detention.

4.The impugned order under section 3 MPO dated 13.05.2016 is, therefore, a nullity in the eyes of law for being illegal, without lawful authority, and void ab-initio. Therefore, on the acceptance of the writ petition, the impugned order of respondent No.2 under section 3 MPO dated 13.05.2016 is set aside; and the petitioner be set at liberty, if not required in any other case.

Announced.

Dt.31.05.2016.

JUDGE

JUDGE

/*M.S.AWAN*/