PESHAWAR: The Peshawar High Court has ruled that an offence triable under a criminal/special law could not be a valid ground for the district administration for preventive detention of a suspect under the Maintenance of Public Order Ordinance, 1960.

A bench consisting of Justice Mohammad Naeem Anwar and Justice Shahid Khan set aside a detention order issued by the deputy commissioner, Malakand, on April 26, for detaining a petitioner, suspected of drug pushing, under the MPO Ordinance.

The bench accepted the petition filed by the detainee, Ali Shah, and declared as illegal the application of the MPO Ordinance against him by the administration.

In the impugned order, the DC Malakand had stated that the detainee (petitioner) was a threat to public order and menace for the people of local society being involved in volatile law and order situation, so he was warned repeatedly but he didn’t mend his ways, as such his activities lead to disturb the public peace and tranquility.

An additional advocate general produced certain record stating that several FIRs had been registered against the petitioner under the Control of Narcotics Substance Act in Dargai area, Malakand.

Declares application of MPO Ordinance against petitioner illegal

The petitioner’s counsel Jehangir Khan contended that the DC Malakand had overstepped his powers under the MPO by issuing the impugned detention order.

“It is also relevant to mention here that whether any act cognizable and triable by the special/criminal law could be a valid ground for the preventive detention of the petitioner, which, in our considered view, would not as where a complete and comprehensive mechanism for the trial of those offenders have been provided, then in such state of affair, it would not be open to the district administration to also use such charges as a ground for preventive detention under MPO Ordinance 1960,” the bench ruled adding that it was an improper and unreasonable exercise of powers to issue order of preventive detention.

The court observed: “It is pertinent to mention here that it is the fundamental right of every citizen as mandated by Article 10 of the Constitution that he is to be informed of the reason of the grounds of his arrest and detention and those reasons must be very specific and particulars regarding the acts done which warrants his arrest/detention. However, in the present case, the impugned order lacks any specifications of the alleged activities of the petitioner, which has prompted the district administration to pass the impugned order.”

The bench ruled that the CNSA 1997 was replaced in the province with Khyber Pakhtunkhwa CNSA 2019, which was an exhaustive law providing a complete and comprehensive mechanism for the trial of those offenders, who were involved in business of narcotics.

“In this view of the matter, the alleged character/act of the petitioner is governed by the special law, where proper FIRs have also been registered against him,” the bench observed.

Referring to an earlier judgment of the court in almost identical case, the bench observed that the court had found that the alleged act of the petitioner had got no nexus with the purpose and object of the MPO.

“If the government wanted to deal with him, they had at their disposal a robust legal regime in the form of Khyber Pakhtunkhwa Control of Narcotics Substance Act, 2019, wherein the legislature has taken care to deal with all aspects of the business in trade of narcotics,” the bench observed.

“The petitioner even if found to have been dealing with any such business of selling narcotics, may have been dealt with under the provisions of the said law. Recourse to the provision of section 3 MPO was not at all justified in the circumstances of the case,” the court further observed.

Published in Dawn, May 13th, 2024