PESHAWAR: The Peshawar High Court has declared as illegal the application of Maintenance of Public Order Ordinance against suspects allegedly involved in illicit tree cutting and drug pushing, ruling that the administration could deal with such persons under relevant forest and narcotics laws.

A two-member bench consisting of Justice Mohammad Naeem Anwar and Justice Mohammad Ijaz Khan accepted separate petitions filed by three detainees, two of whom were arrested for their alleged involvement in illegal tree cutting whereas the third one was detained for alleged drug selling.

Two of the detainees, Sajoon Khan and Naeemur Rehman, both residents of Swat, had challenged their respective detention orders issued under section 3 of the MPO by the deputy commissioner (DC), Swat.

The DC had on Nov 25 issued two separate but almost identical orders for detaining the two petitioners for a period of one month, stating that they were involved in ruthless cutting of trees thus inflicting irreparable loss to the forest wealth as well as public exchequer.

Rules ‘offenders’ can be prosecuted under the relevant forest, narcotics laws

The DC stated that the acts of the petitioners may become prejudicial to public safety and maintenance of peaceful atmosphere in Swat.

Similarly, the third petition was filed by the detainee named Rahmanullah, who had challenged the DC, Upper Dir, order of Nov 23.

The DC in the impugned order had stated that the petitioner was involved in drug peddling and smuggling and 26 FIRs had been registered against him, but still he had not been mending his behaviour.

He further stated that the said FIRs had become less effective as he came out of jail on bail on different grounds immediately after arrest and again started selling drugs.

About the forest issue, the bench observed that Khyber Pakhtunkhwa Forest Ordinance, 2002, was an exhaustive law, which provided a complete and comprehensive mechanism for the trial of offenders involved in illegal cutting of trees.

The bench further observed that apart from special provision to cater to 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 trees is governed by a special law i.e. The Khyber Pakhtunkhwa Forest ordinance, 2002,” the bench ruled.

The bench referred to the preamble and different provisions of the MPO, observing that the section of law under which the petitioner was arrested declared that where the government was satisfied to prevent any person from acting in a manner prejudicial to the public safety or the maintenance of public order, then in such eventuality that person could be arrested and detained for a specific period.

The bench questioned whether illegal cutting of trees would be an act, which could qualify the essential ingredients for constituting ground to press into service section 3 of the ordinance, which provided that any person who was acting in any manner prejudicial to the public safety or the maintenance of public order?

The bench ruled that obviously illegal cutting of trees is an offence under The 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 further ruled that where a complete and comprehensive mechanism for the trial of those offenders had been provided, it would not be open to the district administration to also use such charges as a ground for preventive detention under the MPO.

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

Meanwhile, in the third petition the bench ruled: “It is also relevant to mention here that The Khyber Pakhtunkhwa Control of Narcotics Substance Act, 2019, was an exhaustive law, which provides a complete and comprehensive mechanism for the trial of those offenders, who are involved in business of narcotics.”

The bench added that the alleged act of the petitioner was governed by that special narcotics law.

Published in Dawn, December 12th, 2022

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