P L D 1954 Lahore 172 (PLP)

RAHMAN, J.‑This order will dispose of a petition under section 491, Criminal Procedure Code, by Moulvi Muhammad Baqir, a detenu under section 3 of the Punjab Public Safety Act, 1949 (hereinafter referred to as the Act). The relevant facts may be briefly summarised as follows. The detenu was first arrested on the 13th March 1953 under section 3 of the Act, by order of the District Magistrate, Multan. On the 18th of March 1953, the Punjab Government passed an order extending his period of detention until the 12th of June 1953. This order was signed by Mr. Ghias‑ud-Din Ahmed as Home Secretary to Government Punjab. On the 13th of June 1953, another order was passed in the name of the Governor of the Punjab, extending the period of detention of Maulvi Muhammad Baqir until the 11th of December 1953 and this has been followed up by an order dated the 10th of December 1953 extending the period of detention to the 10th of June 1954 Copies of the relevant orders have been placed on the file. The main ground on which the legality of the detention is impugned by the petitioner is that the first extension order expired at midnight on the 12th of June 1953 and the second extension order purporting to have been passed on the 13th of June 1953 could not be availed of to validate the subsequent detention. Reliance was placed on a recent judgment of the Federal Court in this connection, passed in Criminal Appeal No. 39 of 1953, decided by the Federal Court of Pakistan on the 16th of November 1953. The second contention raised in the petition is that the original order of the District Magistrate, Multan, was passed mala fide in as much as the petitioner, who had attended a meeting of citizens of Multan City called by the District Magistrate on the 12th of March 1953, happened to annoy the District Magistrate by what he had said at the meeting, in connection with the Khatm‑i- Nabuwwat agitation. A third point was raised by Mr. Nazir Ahmad Khan who appeared for the petitioner, to the effect that the order signed by the Home Secretary dated the 13th of June 1953 was per se defective as it did not mention that the order was being passed with a view to prevent the petitioner from acting in any manner prejudicial to the public safety or the maintenance of the public order. This was necessary under section 3 of the Act as amended by Punjab Act IX of 1951. This lacuna was sought to be remedied by the Crown by the production of an affidavit by the Home Secretary, Mr. Ghias‑ud‑Din Ahmad, to the effect that he had applied his mind to the facts of the case and bad come to the conclusion that the detention of Maulvi Muhammad Baqir until the 11th of December 1953 was necessary in order to prevent him from acting in a manner prejudicial to the public safety and the maintenance of public order. Taking up the question of male fides first, an affidavit of Mr. Muhammad Rashid, formerly District Magistrate, Multan has been placed on record on behalf of the Crown, in which that officer has denied that there was any occasion for him to take offence at the remarks made by Maulvi Muhammad Baqir in the meeting called by him in the month of March 1953, He has affirmed that he took action against Maulvi Muhammad Baqir bona fide as he considered his activities to be prejudicial to public safety and the maintenance of public order. In the presence of this affidavit, I Cannot accept the contention of the petitioner on its face value. I do not think, therefore, that there is any substance in the plea of mala fides raised in the petition. It does not appear to be necessary to go into the point raised by Mr. Nazir Ahmad Khan based on the fact that the order of extension signed by the Home Secretary on the 13th of June 1953, did not mention any grounds for the order, as I consider that the petition must succeed on the first objection which I proceed to discuss. It is clear that at the most, under the order dated the 18th of March 1953, passed in the name of the Governor of the Punjab, the detention of the petitioner could be held to be valid till the midnight of the 12th of June 1953. His detention became illegal after that moment, as no order of extension was passed before the expiry of the previous period. This should follow from the judgment of their Lordships of the Federal Court in Criminal Appeal No. 39 of 1953 (Arbab Muhammad Hashem Khan on behalf of Arbab Abdul Ghafoor Khan v. The Crown) (P L D 1954 F C 1,). Mr. S. A. Mahmud, however, has raised an ingenious point and has tried to argue that the order of extension passed on the 13th of June 1953 operated validly to extend the period of detention, as the 12th of June 1953 was a gazetted holiday and section 8 of the Punjab General Clauses Act 1898, was attracted to the case. Learned counsel concedes that if section 8 of the Punjab General Clauses Act cannot be pressed into service, the principle laid down by the Federal Court in the above‑mentioned case would apply and the detention of the petitioner would become illegal from the midnight of the 12th of June 1953. Section 8 of the Punjab General Clauses Act is in the following terms:- "Where, by any Punjab Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, This section is evidently founded on the maxims ''Lex non cogit ad impossibilia"‑the law does not compel a man to do that which he can not possibly perform‑and "actus curiae nemi nem grarabit"‑an act of the Court shall prejudice no man. It is argued that since the Punjab Public Safety Act allows the provincial Government to pass order of extension or detention from time to time, which cannot enure for more than six months on any one occasion, section 8 would be available to Government for passing the requisite order of detention on the 13th of June 1953. In my opinion, this argument is unsound. The important words in section 8 of the Punjab General Clauses Act, appear to be "in any Court or Office". The Punjab Public Safety Act nowhere lays down that an extension order is to be passed in relation to any Court or office and in terms, therefore, section 8 is not applicable to the case. This Act places restrictions on the liberty of the subject and as such ought to receive a strict construction. Mr. S. A. Mahmud suggested that the order of extension could have only been passed by the relevant authority in some office and consequently section 8 would cover the case. I am unable to assent to that proposition in the absence of any statutory direction that the order of extension could only be passed, within a prescribed period, in some office. This being the position; it is clear that the order dated the 13th of June 1953 was wholly inapt in the circumstances of this case. It sought to extend a period of detention which had already expired and was, therefore, legally of no effect. I have, therefore, reached the conclusion that the detention of the petitioner without a fresh order passed in conformity with the law on the subject is invalid and he must, therefore, be set at liberty at once. I order accordingly. A. H. Petition accepted.