PESHAWAR: A two-member Peshawar High Court bench has declared as illegal the detention of three persons under Maintenance of Public Order Ordinance by the deputy commissioner of Dir Upper for their alleged involvement in illegal cutting and smuggling of precious forest trees.

The bench consisting of Justice Mohammad Naeem Anwar and Justice Mohammad Ijaz Khan accepted three separate petitions filed by the detainees named Ghani Gul, Samad Khan and Azizul Haq, challenging the respective orders issued under section 3 of MPO.

The Dir Upper deputy commissioner had on May 26 issued separate orders for detaining the petitioners for a period of one month, stating that their act was serious in nature as it incurred loss to the public exchequer and atmosphere.

The bench ruled that no record showing involvement of the petitioners in the alleged illegal cutting and smuggling of protected forest trees was produced despite directions given by the court, therefore, there was no legal justification for detaining them under the MPO.

PHC rules offenders can be prosecuted under Forest Ordinance

Even otherwise, the bench observed, in case of involvement of the petitioners in illegal cutting and smuggling of trees, the forest department could proceed against them under Forest Ordinance 2002 or other laws of similar nature enforced in the country.

Maintenance of Public Order Ordinance, 1960, was enacted to provide a law for preventive detention and control of persons and publications for reasons connected with public safety, public interest and the maintenance of public order.

The bench ruled that obviously illegal cutting of trees was an offence under Khyber Pakhtunkhwa Forest Ordinance, 2002, but the same could not be stretched to such an extent to constitute the essential ingredient of public safety or public maintenance, which were required for issuance of an order of preventive detention.

The court ruled that by applying a plain meaning, the allegations so levelled could not be sufficient to justify the arrest and detention of the petitioner.

“It is also relevant to mention here that Khyber Pakhtunkhwa Forest Ordinance, 2002, is an exhaustive law, which provides a complete and comprehensive mechanism for the trial of those offenders, who are involved in illegal cutting of the trees,” the bench observed.

It added that apart from special provisions to cater for the prosecution of such offenders, the provisions of the Code of Criminal Procedure were also made applicable to the criminal proceedings initiated under the Forest Ordinance.

“In this view of the matter, the alleged act of the petitioner of cutting illegal trees is governed by a special law i.e. Khyber Pakhtunkhwa Forest Ordinance, 2002,” the bench observed.

The court observed whether any act cognisable and triable by the special/criminal law like in the instant case, could be a valid ground for the preventive detention of the petitioner.

It added where a complete and comprehensive mechanism for the trial of those offenders had been provided, then in such state of affairs, it would not be open to the district administration to also use such charges as a ground for preventive detention under MPO.

The bench concluded that it was an improper and unreasonable exercise of the powers to issue order of preventive detention.

Published in Dawn,June 13th, 2022

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