PESHAWAR, Aug 31: The Peshawar High Court on Wednesday declared the detention of a political rival of the NWFP chief minister under the Maintenance of Public Order Ordinance as illegal and unconstitutional.
A two-member bench comprising the high court’s Chief Justice Tariq Pervez and Justice Jehanzeb Raheem allowed a writ petition filed by former union council nazim, Naimat Ali Khan, hailing from the native Bannu district of Chief Minister Akram Khan Durrani, and ordered that he should be set free if not involved in any other case.
The high court ruled that the provisions of Maintenance of Public Order Ordinance (MPO) could not be invoked in an arbitrary manner without sufficient material on record against a detainee.
The detainee, Naimat Ali Khan, was initially arrested on the day of polling on Aug 18 on charges of abducting the son of a rival candidate. He was contesting elections for the post of nazim of union council Bannu City-1 against Muhammad Ashiq, who was stated to be enjoying Mr Durrani’s support.
When the detainee was granted bail on Aug 20 in that case by the concerned court, the NWFP home secretary Abdul Kareem Qasuria issued an order under section 3(1) of the MPO directing that he should be detained for a period of 30 days.
At the outset of the proceedings, the bench directed the additional advocate general, Saeed Khan, to inform the home secretary to appear forthwith before the court. Later on, the additional secretary of the home department, Fazlur Rehman, appeared and produced a photo copy of a letter sent to the office of the home secretary by the Bannu district police officer which showed that the detainee was involved in six criminal cases registered through different FIRs.
The bench inquired from the AAG and the additional secretary whether a person charged in criminal cases could be detained under the MPO.
The court observed that the liberty of citizens was guaranteed under the fundamental rights enshrined in the Constitution of Pakistan.
“A person shall not be deprived of his liberty except strictly in accordance with law,” the bench observed in its order.
The court further observed that when a person was charged in a criminal offence he was bound to face trial. It was noted that the concerned authority could issue a detention order when allegations of indulgence in any sort of subversive activity were made, but there should be sufficient material to satisfy the authority that the only option left was to detain the person.
“Such satisfaction should not be subjective but objective in nature,” the bench added.
The court ruled that the manner in which the order communicated to the detainee was passed and the so-called material, on the basis of which the detainee was arrested, did not qualify the objective test, therefore allow this petition.