PESHAWAR: The Peshawar High Court has ordered the immediate release of two people after declaring illegal their detention under the Maintenance of Public Order Ordinance by the administration of Kurram tribal district.

A bench consisting of Justice Ijaz Anwar and Justice Dr Khurshid Iqbal accepted two almost identical petitions filed by detainees Samiullah and Mohammad Sahib Khan with the direction to submit an affidavit with surety bond of Rs100,000 with the deputy commissioner to the effect that they would not take part in any activity prejudicial to public order.

Advocates Wali Khan Afridi and Kamran Khan Afridi appeared for the petitioners and said their clients were taken into custody on Aug 18 after the issuance of their detention orders by the deputy commissioner of Kurram district.

They said the administration claimed that the petitioners were involved in instigating people against the state and sabotaging the peaceful environment of the district.

Declares detention unjustified, against superior court judgements

The lawyers argued that the impugned orders were not based on any evidence and were contrary to several superior court judgements.

On the court’s orders, additional assistant commissioner of Lower Kurram Asmatullah Khan appeared along with assistant advocate general Taskeenuddin Khattak and produced the impugned orders along with the relevant records.

He also produced copies of letters of the relevant district police officer (DPO) along with lists of persons including the two petitioners allegedly involved in activities prejudicial to public safety and maintenance of public order.

In its order, the bench referred to different judgements of the superior courts wherein certain yardsticks were set for issuing a preventive detention order under the MPO Ordinance.

Referring to a Supreme Court declaration that a preventive detention order must pass certain tests, and a subsequent verdict of the Lahore High Court, the bench observed that the initial burden lied on the detaining authority to show the legality of the preventive detention.

It added that the material before the detaining authority must be of the nature that a reasonable person would be satisfied as to the necessity for making the order of preventive detention.

“The grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detainee to make representation against his detention to the authority prescribed by law,” the bench quoted the earlier judgements.

“While applying the above tests to the facts and circumstances of the instant writ petition, we find that the Deputy Commissioner has mainly relied upon the information furnished by the DPO. No evidence justifying the detention order was produced. No specific date, time and venue of the alleged occurrence has been given,” it ruled.

The bench observed that the DC had to independently satisfy himself on the strength of some material which could be seen as prima facie calling for the action taken.

“Given the nature of the executive power of preventive detention, satisfaction may be subjective. Such subjective satisfaction must be demonstrably followed on consideration of the solid material placed before the Deputy Commissioner. It should not be fanciful and/ or at his whim and caprice,” it observed.

The court ruled that the grounds mentioned in the impugned order were general in nature and were not substantiated by evidence of any sort.

It added that the respondents, including the DC, failed to show any material let alone the whole material upon which the impugned orders were passed.

The court declared that the impugned orders were not based on evidence, rather appear to be conjectural and the grounds of detention were vague and indefinite.

Published in Dawn, September 1st, 2024