PESHAWAR: The Peshawar High Court has set aside the orders for the detention of a Swat tehsil council’s chairman by the deputy commissioner under the Maintenance of Public Order Ordinance after declaring them illegal.

A bench consisting of Justice Mohammad Naeem Anwar and Justice Shahid Khan accepted a petition filed by Barikot tehsil council chairman and PTI leader Kashif Ali and ruled that a criminal case registered against the petitioner could not be made the basis for his detention under Section 3 of the MPO Ordinance and instead, it amounted to double jeopardy.

Swat’s deputy commissioner, in his capacity as the district magistrate, had issued the impugned order on May 10, 2023, for the detention of the petitioner for a period of 30 days in the district jail of Saidu Sharif.

As the orders were challenged by the petitioner, the court granted him interim relief on June 13, 2023, by suspending warrants for his arrest and restraining the government from acting against him on the basis of those orders.

Rules that registration of criminal case couldn’t be reason for detention under MPOww

DC Irfanullah Khan had issued the order after the May 9 violent protests and mentioned that the petitioner was involved in activities “prejudicial to the security and maintenance of peaceful atmosphere” in Swat district.

Additional advocate general Khwaja Salahuddin informed the bench that a criminal case was registered against the petitioner on May 11 under different provisions of the Anti-Terrorism Act and Pakistan Penal Code at the Alladand Levies post in Malakand districtover “hate speech” against the government inciting people to protests against the arrest of former prime minister and PTI founder Imran Khan.

The petitioner’s counsel, Mohammad Jawaid Khan, said the impugned orders weren’t supported by any incriminating material against his client and that the orders were issued on flimsy grounds.

The bench observed that the liberty of citizens had been enshrined by the Constitution and it was a consistent view of the superior courts that the liberty of a person couldn’t be curtailed on the basis of flimsy, shaky or insufficient materials.

It added that the grounds taken by the district magistrate in the impugned order were not sufficient as they did not fall within the ambit of Section 3 of the MPO Ordinance that required satisfaction of the magistrate on the basis of material placed before him.

“It may be stated here that sufficient materials have neither been gathered nor placed before the District Magistrate fulfilling the requirement of Section 3 of the MPO and hence, the satisfaction of the district magistrate is lacking in the circumstances of the case,” it declared.

The bench added that it had been held time and again not only by the high court but by the apex court as well that whenever any particular offence was committed by an individual, they must be charged under relevant provisions of law and not under the provision of Maintenance of Public Order Ordinance, 1960.

It observed that the language used in Section 3 of the MPO manifested that “satisfaction of the executive was to be objective in nature and not subjective to allow authorities to acts at the whims and caprices without there being material before them in support of grounds of detention of an individual.”

The bench added that neither any order could be passed by the authority without objective satisfaction nor could anyone be detained because any such detention amounted to illegal confinement, which was unwarranted, unjustified and unconstitutional.

Published in Dawn, February 26th, 2024