2026 P Cr. L J 535

 2026 P Cr. L J 535

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Shahid Khan, JJ

AZIZ-UR-REHMAN and others---Petitioners

Versus

The STATE and another---Respondents

Writ Petition No. 1359-M with C.M. 2091 of 2023, decided on 28th

November, 2023.

West Pakistan Maintenance of Public Order Ordinance (XXXI of

1960)---

----S.3---Constitution of Pakistan, Art. 199---Constitutional petition---

Preventive detention---Necessary material---Petitioners were

detained by authorities on the plea that they were notorious

members of Qabza Mafia and threatened the local community

including a sitting Senator---Validity---Record transpired that the

Deputy Commissioner had issued the impugned orders under S.3-

MPO (Maintenance of Public Order Ordinance) against the

petitioners on the request of District Police Officer, Assistant

Commissioner and Naib Tehsildar, however, sufficient material had

neither been collected nor brought before him against the

petitioners nor their cases had been considered prior to the issuance

of the impugned orders---As such, the authority issuing the

impugned orders under S.3-MPO (Maintenance of Public Order

Ordinance) had not exercised its mandate in accordance with law on

subject---Impugned orders had been issued in a mechanical manner

without application of the judicial and independent mind to cases of

the petitioners---Sufficient material had neither been collected nor

presented before the Deputy Commissioner and without applying an

impartial and judicial mind, the impugned orders had been issued

mechanically---Impugned orders were prima facie omnibus in its

kind and type and cases of the petitioners had not been individually

and specifically discussed nor valid and genuine reasons had been

highlighted therein to convince---Moreover, it also appeared that

such orders had been issued under S.3-MPO (Maintenance of Public

Order Ordinance), whereby, liberty of a person was curtailed and in

the petition in hand, some of the petitioners had been restrained

and restricted---In such like circumstances, issuance of the

impugned orders under S.3-MPO (Maintenance of Public Order

Ordinance) did not fulfil the jurisdictional requirements of its

issuance under the ibid provision of the law on subject---Petition

was allowed, in circumstances. Fazal Malik for Petitioners (via video link).

Khwaja Salahuddin, A.A.G for the Respondents.

Date of hearing: 28th November, 2023.

JUDGMENT

SHAHID KHAN, J.---Through the subject petition, the petitioners have

called in question their respective detention orders, dated 03.11.2023, so

issued by the Deputy Commissioner, Bajaur, under section 3, West

Pakistan Maintenance of Public Order Ordinance, 1960, ("3-MPO").

2. In the subject petition, the Deputy Commissioner, Bajaur, had

issued the impugned orders under section 3-MPO, for detention of the

petitioners for a period of 30 days on the allegations that they are

notorious members of Qabza Mafia (landgrabbers) and threatened the

local community including the sitting Senator, Hidayat Ullah and his

family members by grabbing their land. Other grounds mentioned

therein, are, that the petitioners are breaching peace as well as law

and order situation in the area and in this regard, FIRs have also been

registered against them by the local police of PS Nawagai. As such, the

Deputy Commissioner, Bajaur, in his wisdom was pleased to issue

warrants of arrest against the petitioners. Through the impugned

orders, the petitioners were ordered to be taken into custody and

detained in District Prison, Timergara. Being aggrieved, the petitioners

approached this Court through the subject petition.

3. When the subject case came up for hearing, the learned A.A.G was

directed to come up along with complete record with respect to

issuance of the impugned orders.

4. Arguments of learned counsel for the petitioners and the learned

A.A.G have been heard and the record scanned through with their

valuable assistance.

5. Today, the learned A.A.G representing the respondents, produced

copy of letters of the Assistant Commissioner and Naib Tehsildar,

Nawagai, dated 03.11.2023 and 02.11.2023, respectively, as well as

application of one Hidayat Ullah, a resident of Nawagai, District

Bajaur, it has been shown as basis, upon which the impugned orders

have been passed.

6. The record made available before this Court would transpire that

the Deputy Commissioner, Bajaur, has issued the impugned orders

under section 3-MPO against the petitioners on the request of District

Police Officer, Bajaur, Assistant Commissioner and Naib Tehsildar,

Nawagai, however, sufficient material has neither been collected nor

brought before him, against the petitioners nor their cases have been considered prior to the issuance of the impugned orders. As such, the

authority issuing the impugned orders under section 3-MPO, has not

exercised its mandate in accordance with law on subject. The

impugned orders have been issued in a mechanical manner without

application of the judicial and independent mind to cases of the

petitioners. Sufficient material has neither been collected nor

presented before the Deputy Commissioner, Bajaur, and without

applying an impartial and judicial mind, the impugned orders have

been issued mechanically. The impugned orders are prima facie

omnibus in its kind and type and cases of the petitioners have not

been individually and specifically discussed nor valid and genuine

reasons have been highlighted therein to convince what to say of a

judicial mind but even of an independent prudent mind. It also

appears that such orders have been issued under section 3-MPO,

whereby, liberty of a person is curtail and in the petition in hand,

same of the petitioners has been restrained and restricted. In such like

circumstances, issuance of the impugned orders under section 3-MPO

was found to have not been fulfilling the jurisdictional requirements

of its issuance under the ibid provision of the law on subject.

7. For the stated reasons, the subject petition is allowed,

consequently, the impugned orders issued by the Deputy

Commissioner, Bajaur, under section 3-MPO, are set aside and the

petitioners be released from jail forthwith, if not required in any other

case. However, as a matter of abundant caution, it would be

appropriate that the petitioners shall submit surety bonds in the sum

of Rs. 100,000/- (One Hundred Thousand) each with two reliable and

resourceful sureties each in the like amount to the satisfaction of

Deputy Commissioner concerned, along with an undertaking within a

period of five (05) days from the date of the judgment of this Court to

the effect that they shall never be involved in any illegal activities in

future and would remain peaceful. The surety bonds so furnished and

the affidavits so executed by the petitioners, would be valid for a

period of six (06) months from the date of the bonds.

JK/191/P Petition allowed.