P L D 1952 Lahore 331 (PLP)

MUHAMMAD MUNIR, C. J.‑This petition for a writ in the nature of habeas corpus is by Inayatullah Khan Al‑Mashriqi who will hereinafter be referred to as the Allama and, where necessary the Khaksar‑i‑Azam. The petition alleges that the arrest and detention of the petitioner are illegal and prays that he be set at liberty. The Allama was arrested by an order dated 10th January 1951 under subsection (1) of section 3 of the Punjab Public Safety .Act, 1949. The order which was passed by the Governor who by virtue of a proclamation under section 92A of the Constitution Act was then in effective control of the administration of the Province, stated:‑ "Having been satisfied that with a view to preventing Allama Inayatullah Khan Al‑Mashriqi, son of Ata Muhammad Rajput, of 34, Zaildar Park, Ichhra, Lahore, from acting in a manner prejudicial to the public safety and maintenance of public order it is necessary so to do, the Governor of the Punjab hereby directs Ch. Sikandar Hayat Khan, Deputy Superintendent of Police, Lahore, to arrest the said Allama Inayatullah Al‑Mashriqi without a warrant under sub section (1) of section 3 of the Punjab Public Safety Act, 1949". By another order dated 11th January 1951 passed under sub sections (3) and (4) of section 3 of the same Act he was ordered to be detained in the custody of the Superintendent of Jail, Mianwali, until 10th July 1951. Subsequently by orders passed under subsection (1) of section 3 of the Act, the period of his detention was extended from time to time and the order now in force which directs the Allama's detention till 10th July 1952 was passed by the Punjab Government on 28th December 1951. This is the third attempt to secure the Allama's release. The first petition was made by Inamullah Khan Akram son of the Allama only two days after the arrest. It contained no details or particulars and just alleged that the Allama had committed no offence and that his detention was wanton, illegal and mala fide. The petition was withdrawn when the peti tioner was confronted with the position that a dismissal of that petition might bar a fresh petition by the Allama himself. The second petition also was preferred by Inamullah Khan Akram and this was dismissed by a detailed order by Rahman J. on 9th April 1951. The present petition was presented through the jail authorities by the Allama himself and contained a prayer that the petitioner be ordered to be produced in Court. I directed the Allama to be brought to Court and since he expressed a desire to make a statement on oath in support of the petition, he was permitted to do so and was examined by Mr. H. S. Suhrawardy in great detail. He was given full opportunity to produce such evidence as he wished in proof of his allegations. Lengthy arguments were addressed by Mr. Suhrawardy for several days in which every possible legal aspect of the case was fully argued. The Government view was presented by Mr. Abdul Aziz Khan, the Advocate‑General of the Province. Only one witness was examined on behalf of Government, namely, Mr. Ghias‑ud‑Din Ahmad who was, at the time of the arrest of the Allama, the Secretary to the Governor and, at the time of the order of extension now in force, the Home Secretary to the Punjab Government.' In order to understand and determine the real issues in the case, it is necessary to refer in some detail to the history and activities of the Allama, which are either stated in the petition or emerge from the evidence. After completing his educational career at the Universities of the Punjab and Cambridge the Allama took service under the Government of India. During the course of that service, says the Allama, he began to feel very strongly that the Muslims of India were being oppressed by the Hindus and the Britishers and that the major cause of their trouble was their lack of character and deviation from the principles of Islam. Realising this, he made up his mind to dedicate his life to the welfare of the Muslims and the service of Islam, and in pursuance of that resolve he resigned from the service of Government in 1930. The petition makes no reference to the Allama's activities from 1930 up to the time of the Partition but it is common knowledge and also appears from the evidence that during this period he launched and led the Khaksar Movement which in its organization was essentially of a military pattern and on several occasions came in conflict with legally constituted authority. The Allama assumed for himself the title of Khaksar‑i‑Azam and remained the unquestioned leader of the movement for more than fifteen years. The Movement was disbanded by an announcement of the Allama on 4th July 1947 just before the Partition because the Khaksar rally in Delhi was not, as directed by the Allama, attended by 3,00,000 uniformed Khaksars armed with belchas. Another reference to this Movement is to be found in the Allama's own statement where he describes his meeting with the Quaid‑i‑Azam in 1939. The Allama's idea was that Muslims should be the sole possessors of the whole of India as they had ruled that country for 1200 years and had contributed 150 times more sacrifices than the Hindus during the British period. He was opposed to‑Pakistan being split into two parts separated by 1400 miles. Accordingly he expressed to the Quaid‑i‑Azam his fear that if the Muslims lost their cultural centres in India, which had been produced by an effort of 1300 years, they would be nowhere and suggested to him to claim the whole of India for the Muslims. To illustrate his point the Allama also wrote a pamphlet entitled "Majority or Blood". The Khaksar‑i‑Azam's offer to the Quaid‑i‑Azam was that the latter should lead the Muslims politically, while the former would lead them military. The Quaid‑i‑Azam did not agree to this, remarking: "It is too late. You should have put it forward ten or fifteen years back". From that time the Quaid‑i‑Azam and the Khaksar‑i‑Azam parted company and never came to like each other. The Khaksar movement was disbanded by the Khaksar‑i- Azam just before the Partition. When Pakistan became a fait accompli, the Allama founded another Movement called the Indo‑Pakistan Islam League. The constitution of that League which has been exhibited in this case begins with the following preamble: "Whereas after the division of India into the Dominions of Hindustan and Pakistan by the British Government on August, 15, 1947, events of the first magnitude have happen ed which threaten the very existence of 55 million Hindus thani Mussalmans as a separate nation holding Islamic ideals or even beliefs, and whereas the general and comparatively peaceful exodus of almost all Hindus and Sikhs from the West Pakistan in particular and the separation of East Pakistan from West Pakistan by a distance of 1400 miles tend to make this threat more real, it was most vehementally and unanimously resolved in the General Meeting held on the 4th July, 1948, at the Metro Hotel, Lahore in which a large number of representative Mussalmans of both the Dominions were present personally or by means of messages sent, that the setting up of an organization like the Indo- Pakistan Islam League, foreshadowed by Allama Mashriqi, the Founder of the great Khaksar Movement, and other most prominent Muslims as early as October, 1947, and on almost the same lines, was 'an absolute necessity'. Subse quent developments in Junagadh, Kashmere and Hyderabad in India and the enforcements of Western power politics in Indonesia and Palestine have confirmed these fears to a remarkable extent. In accordance, therefore, with that resolution the Constitution of Indo‑Pakistan Islam League is hereby put into force." The objects of the Islam League are mentioned in section 2 to be the following:‑ "

2. The immediate object of the Islam League shall be the protection of 55 million Mussalmans of the Dominion of Hindustan, as put forward in the pre‑emble above, and the acquisition, by lawful and constitutional means, of the remaining Pakistan as originally outlined, the Province of Delhi with Ajmer, the United Provinces and Bihar, the city of Bombay with the adjoining territories of Cutch and Kathiawar, the territory of Berar (already belonging to the Kingdom of Hyderabad), the land of the Moplas and other areas in India and Ceylon inhabited principally or imbued culturally by Mussalmans. Its general object will be the protection in general of Mussalmans and Islam throughout the world." By section 13 of the Constitution, Bye‑rules and regulations for the enforcement of discipline were to be made by the work ing committees in accordance with the local circumstances. It is admitted by the Allama that he was the Founder of the Islam League though he held no office in that organisation. The Government's position is that the Allama was not only the Founder of that League but the real directive force behind it. Though the object of the League was to acquire territories in India which were culturally Muslim, there was, according to the Allama, nothing military or militant in the movement. In execution of its objects the Islam League began to contract the Indian Muslims and print, publish and send across the border some literature to which India immediately object ed. Consequently on 25th August 1948, the Government of the Punjab served on the leading members of the Islam League including the Allama an order under clause (d) of sub section (1) of section 4 of the Punjab Public Safety Act prohibiting absolutely the publication of distribution of any letter, leaflet or other matter printed or issued by or on behalf of the Indo‑Pakistan Islam League. Subsequently some publi cations of the League or its supporters, as for instance, "Karachi Islam League Conference", "Akhri Umeed", "Izhar‑i -Haqiqat", Kashmir ke mutaalig Hazrat Allama Mashriqi "ka sansani khez inkishaf" and "Khitab‑i‑Lahore", were prescribed under section 19 of the Press (Emergency Powers) Act. Two of these proscription orders were made in May 1950 and three in October 1950. The Islam League intended to hold a conference in Karachi in October or November 1950 and in that connection it issued a leaflet called "Karachi Islam League Conference". This leaflet stated that 10,000 trained volunteers of the League wearing uniform and armed with guns, swords, pistols, bows and arrows sticks, hatchets, revolvers, belchas, knives, daggers, etc., would attend that meeting, that they would be governed by the same disciplinary rules as the Khaksars, that the Salar‑i- Muhalla would only be persons who had previously been Khaksars, that higher officers of the Khaksar Movement were not to wear uniform and could attend the meeting in plain clothes, and that the volunteers would be subject to an iron discipline and liable to be branded by way of punishment. The pamphlet also contained the directions that in case of inter ference by the police a volunteer was to be ready to sacrifice his life on the orders of the officer commanding, that no volun teer would take initiative in the use of violence unless he received a distinct order to that effect from his officer and that if an order under section 144 of the Code of Criminal Procedure was promulgated banning the Islam League Conference after the 15th October, the volunteers were still to reach Karachi to take part in the Conference. Every unit was to bring with it red flags displaying the following demands:‑ "First Demand.‑Ten crores of Indian and Pakistani Muslims have been living under tyranny for the last three years. Come to their deliverance. "Second Demand.‑If you do not take Kashmir, Pakistan will cease to exist. Take it by force. "Third Demand.‑Finish the Muslim League. Do not give it a single vote". Other banners were to bear inscriptions such as:‑ "Liaquat Ali Khan.‑Quit. "Nishtar.‑‑Quit. " Still others were to proclaim the tyranny of the Hindus, declare jehad against immodest women, anti‑Islamic indulgences like‑dancing, drinking, adultery and luxury of the rich, or denounce loot by the Muslim League.' The conference was banned by the Karachi Administration and never came off. The Islam League, however, held a meet ing at Rawalpindi and the Deputy Commissioner of that district addressed a strong protest to the Punjab Government against the manner in which arms including rifles were displayed by the volunteers. Not long after this the Islam League announced a meeting at Lahore to be held on 29th, 30th and 31st December 1950. But the Deputy Commissioner, Lahore, at once issued an order under section 144 of the Code of Criminal Procedure declaring that an emergency had arisen, which required speedy remedy to prevent the disturbance of public peace and tranquillity, and prohibiting for a period of two months with effect from the 12th December 1950 the carrying of lathis, arms or anything capable of being used as a weapon of offence at a public meeting or in processions within the limits of the Lahore Corporation and Lahore Cantonment. Another order under the same section prohibited all persons from arranging or taking part in any parade, exercise, move ment or drill, which was either of a military nature or involved the use or preparation for the use of weapons of offence or defence, and in particular, from arranging or taking part in any sham fight or a guard of honour. It is obvious that this step was taken in consequence of the apprehensions which the Deputy Commissioner of Rawalpindi had communicated to the Punjab Government. The order did not ban the meeting which came off on the dates fixed, namely, 29th, 30th and 31st December 1950. The C. I. D. had deputed an official photographer to take pictures of the scenes at the meeting and the film taken on that occasion which was projected in the presence .of Mr. Suhrawardy and the Advocate‑General in my Chamber shows volunteers in uniform and armed with spades or swords marching in formation and standing guard with drawn swords in front of a tent. There is also a scene which is alleged by the Government to be a part of the ceremony at which the Allama took a salute but it is not clear. The Allama can, however, be seen moving about and taking a leading' part in the proceedings. The Allama was arrested ten days after this meeting. The position of Government is that because the Islam League which was founded by the Allama and of which he was the moving spirit, had openly defied law and order and actually contravened the two orders under section 114 of the Code of Criminal Procedure by carrying arms and engaging in military parades, it had become necessary to arrest the Allama with a view to preventing these activities on the part of the Islam League which were bound to disturb the public order and safety. The contention of the Allama, however, is that he was not arrested for the activities mentioned above but because he was organising a strong opposition to the Muslim League at the forthcoming. elections which were to take place in March. There is some evidence that the Islam League had expressed its intention of contesting the elections and that then Allama was attempting to bring about a united opposition to the Muslim League. It is obvious that if the Allama was not arrested for any reasons connected with the maintenance of public safety and order but for his election activities, the order of his detention will have to be declared as void and the Allama will have to be set at liberty This, therefore, is the main issue in the case. The other two issues in fact it is one issue with two different aspects‑are whether the Allama was arrested with a view to preventing him from engaging in of carrying on activities in the supposed interests of the Indian Muslims and if so, whether for that reason the arrest is invalid. There is also the further point whether in the circumstances of the case an order of extension of detention could at all be made by the Government. These points I shall now discuss in their proper order. The main attack in the arguments was directed against the original order of arrest and detention which was made by the Governor on 10th January 1950. This order, which ex facie is in order, recites that the Governor was satisfied that it had become necessary to arrest the Allama in order to prevent him from acting in a manner prejudicial to the public safety and the maintenance of public order. On the principle of omnia praesumuntur rite esse acta and various authorities of the Privy Council and the Federal Court and numerous decisions of the High Courts, I have to presume that the Governor believed that the Allama had been engaged or was about to engage in activities which were prejudicial to public safety and the maintenance of public order and that the Governor was satisfied that it had become necessary to arrest and detain the Allama with a view to preventing him from engaging himself in those activities. This is conceded by Mr. Suhrawardy but he contends that there is sufficient material in this case, on the strength of which; keeping in view that in such cases every possible allowance has to be made in favour of the liberty of the subject, it is possible for me to come to the finding that the Allama was not arrested for the reasons stated in the Governor's order but with a view to preventing him from opposing the Muslim League in the elections. In this connection he has drawn my attention to some speeches made by the Ministers or the Governor of the Province as well as by the late Premier of Pakistan and some other Ministers of the Central Government. Mr. Ghias‑ud‑Din Ahmad, however, who was the Secretary to the Governor at the relevant time and through whose hands the file relating to the Allama's detention passed, has stated before me definitely and with complete confidence that the order directing the arrest of the Allama was not at all made with a view to preventing him from taking part in the elections. At another place in his evidence he repeats this assertion by saying that the Allama's detention had nothing whatsoever to do with his election campaign. Mr. Ahmad has not disclosed full reasons for the arrest but he has definitely repudiated the allegation which is made in the petition and by the Allama in his examination in Court that he was arrested because he intended to oppose the Muslim League in the elections by putting up candidates from the Islam League party and from other parties after amalgamating them with the Islam League. There is no evidence, not even a suggestion, before me that the Government attempted to prevent any other party from taking part in the elections by arresting its leaders under the Punjab Public Safety Act. The most formidable rival of the Muslim League at the elections was the Jinnah Awami League and it is nowhere alleged in the evidence that the Government took action against any of its leaders under the Punjab Public Safety Act. If the Government had used that Act to disable the opponents of the Muslim League from taking part in the elections, surely there should have been some indication in the evidence of such policy, system or design and in the absence of any such indication, I cannot accept' the allegation that the Allama was singled out as the solitary victim of any such policy. Though Mr. Ghias‑ud‑Din Ahmad has refused to disclose the precise reason or reasons for the arrest and detention of the Allama, the learned Advocate‑General both in the cross- examination of the Allama and by independent evidence has sought to show, that reasons did in fact exist for which the Allama could rightly be arrested under section 3 of the Punjab Public Safety Act, 1949: I have already pointed out that the basis of the Khaksar organization was essentially of a military pattern. This was in a way admitted by the Allama himself when in his evidence he referred to his offer to the Quaid‑i -Azam to be entrusted with the military aspect of the campaign to claim the entire Indian sub‑continent for the Muslims. It is further clear and is admitted in the statement of the Allama published at page 15 of the issue of Musawat dated the 20th December 1950 that this organisation on several occasions came into conflict with Government. When the Islam League conference was held in Rawalpindi, the Deputy Commissioner of that district complained to the Provincial Government of the open manner in which arms were displayed and carried. by the volunteers who attended that meeting. In the leaflet entitled "Karachi Islam League Conference" it was specially emphasised that the conference would be attended by 10,000 uniformed Razakars armed with different weapons, that they would be subject to rigorous discipline and have to live in conditions under which the army lives in times of war, that repeated disobedience to orders would be punished by branding, that under orders of the commanding officer they could resort to violence and that whether section 144 had expired or not, the conference would come off. The venue of the conference was the Federal Capital where most provocative banners including some inciting people to revolution and requiring the Premier of Pakistan to quit were to be displayed. The con ference, having been banned, was not held in Karachi. Instead, another meeting purporting to be an election meeting was held in Lahore on 29th, 30th and 31st December and the film taken on the occasion shows that despite an order under section 144 of the Code of Criminal Procedure prohibiting the carrying of arms and military parades, the meeting was attended by uniformed volunteers who were armed with swords and belchas. They can be seen in the picture marching in formation with Arab head clothes and belchas on their ‑shoulders and some of the volunteers can be seen guarding a tent with drawn words or escorting the Allama. The order under section 3 of the Punjab Public Safety Act directing the arrest and detention of the Allama was passed only nine days after the conclusion of this meeting. It is, therefore, reasonable to presume that the order was passed with a view to preventing the Allama from engaging himself in activities which were bound adversely to affect the maintenance of law and order. Mr. Ghias‑ud‑Din Ahmed has not stated that these activities were the reasons for the order impugned but since all this matter has brought in evidence by the Advocate‑General, the object could only be to show that there did exist cogent grounds for the Government to act in the manner it did. The raising of a private army and an invitation to it to use force when directed by a named authority in the hierarchy of a vast organization and persistent and contemptuous defiance of law are matters which no Government worth the name can overlook or connive at, and when I put it to the learned counsel for the petitioner whether, if he himself had been responsible for the maintenance of law and order in the Province and such activities on the part of an individual or organization had come to his notice, he would not have been duty bound to act, I received no reply except that Mr. Ghias‑ud‑Din Ahmad had not stated these activities of the Allama to be the reason for the arrest. Nor could the learned counsel suggest any reply to the question what would be the state of affairs in this country if a few other men like the Allama raised their own armies and each of them in order to carry out his policy threw down the gauntlet for the Government to take up. On the evidence it seems to me to be plain that very strong reasons existed for the detention of the Allama and the petitioner has failed to show that these in fact were not the reasons for which he was arrested. If reasons for the arrest existed and the arrest was ordered under the law, it is for the petitioner who attacks the order of detention to show that the detention was ordered oil grounds other than those which have been proved in the evidence produced by the Government. I now come to the next question whether the publication of some literature by the Islam League and its despatch to some Muslims in India was an independent reason for the arrest of the Allama and if so, whether that ground for the detention comes within the purview of section 3 of the Act. In this connection, Mr. Suhrawardy relies on two documents which may be considered to be an authorised version of some of the reasons for the arrest. In the White Paper issued under the authority of the Ministry of the Interior, Information and Broadcasting some time after the 2nd August 1951, the following passage occurs at page 4:- "Pakistan, on the other hand, has unreservedly accepted the Partition. The Radcliffe Award gave to India large areas, contiguous to Pakistan and containing a majority of Muslim population, which under any just demarcation should have been a part of Pakistan. This caused widespread dissatisfac tion but Pakistan, true to its commitments, faithfully accepted the Boundary Award. Pakistan Government have systema tically discouraged any movement directed against the territorial integrity of India and have not hesitated to take action where necessary. For example, when Mr. Inayatullah Mashriqi, leader of the Khaksar Movement, included within the objectives of his organization certain features, to which objection could be taken in India, the Government of Pakistan took drastic action against the organization and it has ceased to exist." In the Civil & Military Gazette of 28th September 1951 is published the following interview by a representative of the A. P. P. with a Government spokesman, namely, Mr. Nur Ahmad, Director of Public Relations, Punjab:‑ "Commenting on the demand which is being put forward in Islam League circles for Allama Mashriqi's immediate release, a spokesman of the Punjab Government said that Government had carefully considered the question when it decided in July last to extend the term of the Allama's detention by six months, reports the A. P. P. from Lahore on Thursday. "In fact, as required by the present law, he explained in reply to a question, Government had submitted relevant material to the scrutiny of a Senior Sessions Judge and obtain ed his, independent opinion before ordering the extension. "This is not, the spokesman said, the first time that Allama Mashriqi has tried to play what can only be described as an anti‑national role. Before the creation of Pakistan, he repeatedly tried to sabotage the national demand for Pakistan. His preachings even led to a murderous assault on the Qaid‑i‑Azam at Bombay by one of his followers. Unfortunately he has been persisting even after the estab lishment of Pakistan in activities which were not only in conflict with national policies, but were also calculated to injure the interests of this country and to make the position of thousands of Muslims in India more difficult than it already is‑ "For instance, the spokesman explained, the Allama started posting to individual Muslims in India literature about his plans for conquering parts of Indian territory. All recipients of this literature promptly became the targets of oppression by spy‑hunters across the border. The Allama did not desist from this practice despite repeated warnings, and at last the Government had to take action against him." Mr. Suhrawardy's argument is that in both these documents the reasons stated for taking action against the Allama were his designs against the territorial integrity of India and his des patching, with that object, of literature to certain Muslims in India and that this activity had nothing to do with the public safety or the maintenance of public order in Pakistan so as to give jurisdiction to the Provincial authorities to act under their own Public Safety Act and fell within Item I of List I of the Seventh Schedule to the Constitution Act as having refer ence to external affairs, for which only the Central Govern ment could take action. On the assumption that the reasons for the detention of the Allama were connected with external affairs, a further argument is put forward, namely, that even if one or the main reason for the arrest of the Allama fell within the provincial sphere, the fact that the arrest also proceeded on another ground which being connected with external affairs was not within the competency of the Provin cial Government, the whole order, according to certain autho rities cited, was bad. Mr. Ghias‑ud‑Din Ahmad, whose evidence I have no reason not to accept, has stated definitely that the Allama was not arrested because he had some pro gramme in respect of the Muslims residing in India. This should be a complete reply to the argument raised, but even if it beheld that the facts stated in the White Paper and the A. P. P. report were also taken into consideration when order ing the arrest, I am definitely of the view that the reasons connected with those facts were not independent or collateral reasons but were necessarily connected with the maintenance of public order and safety in the province. The printing and sending of literature to Muslims in India was and could only be in pursuance of the objects of the Islam League. The same is the position in regard to the movement directed against the territorial integrity of India which is mentioned in the White Paper. The immediate object of the Islam League as stated in the Constitution of the League was the protection of 55 millions of Muslims of the Dominion of Hindustan and the acquisition of several territories which now form part of India. It is no doubt stated in the section of the Constitution that this object was to be achieved by lawful and constitutional means, but how the object could be so achieved is not possible to imagine, and, when questioned, the Allama gave no satisfactory reply to it beyond suggesting that he intended to create a world opinion in favour of his view and wanted the Pakistan Government not only to give active help in the achievement of this object just as Pandit Nehru was helping the Mahasabha but also not to take any notice of his activities and to let him have a free hand in the matter, I must confess I have not been able to understand this argu ment and it appears to me to be clearly 'inconsistent with ‑what he intended to do in Karachi and with what he stated in the Musawat of 20th December 1950 in a signed letter dated 8th December 1950 in which he gave out that his object in assembling 10,000 uniformed Razakars in Karachi was to solve a problem which had appeared to be very difficult of solution by constitutional means, namely, elections, and that the rally of Razakars at Karachi, which on the next occasion was to consist of one lac members, was a little trick to solve that problem. The last seems .to the to be a correct explanation of the position, namely, that the real object of the Allama in organizing a private army was to stage a coup d etat, instale himself in power and then invade India in order to acquire the several territories which at present are a part of the Indian Union. And if this was the manner in which these territories had to be acquired, public disorder was a necessary consequence of the scheme. The sending of literature to Muslims in India was also a part of the same plan, namely, to create among the Muslims of India feelings of disloyalty against their State and to prepare them when war came between India and Pakistan to side with the invader. This could not, therefore, be described as an isolated or indepen dent act having no reference to the scheme to create a private army which would overthrow Government in Pakistan. The activity therefore fell within the scope of the Provincial Act. I cannot accordingly hold that if one of the reasons for the arrest of the Allama was his liaison with the Indian Muslims and his contemplated attack on India by installing himself in power in Pakistan with the aid of a private army, it did not come within the ambit of the Provincial Act and had reference only to external affairs. In any case, what has to be seen in such cases is whether `the arresting authority thought that the act intended to be done constituted a threat to the safety and order of the Province, and in this case it cannot be said that the reason for the arrest was something which had no reference to public safety and the maintenance of public order. I now came to the last point on which considerable emphasis was laid by Mr. Suhrawardy. He contended that since the Allama had been under restriction since 11th January 1951, the order by the Government, dated 20th December 1951, by which the Home Secretary extended the detention to 10th July 1952 could not have been made for anything that the Allama did during his captivity but must refer to what he had been doing or intended to do before the date of his arrest. The order impugned recites that the term of the Allama's detention was being extended because the Government was satisfied that with a view to preventing the Allama from acting in a manner prejudicial to the public safety and the maintenance of public order, it had become necessary to keep him in detention. Mr. Ghias‑ud‑Din Ahmad has frankly stated that. he made the aforesaid order to prevent the Allama from resorting to the activities in which 'he was engaged before he was arrested. The point taken by Mr. Suhrawardy is that for what the Allama had done or intended to do before the date of his arrest, he had been punished by having been kept in confine ment for a certain period and that thereafter he could be detained under the Act only if he had been released and had again engaged himself in those activities. He supports this argument by Zamir Qasim v. Emperor A I R 1948 Allahabad 285, and Kastoor Chand v. Sarkar A I R 1950 Rajasthan 40, in which the punitive aspect of the detention and the need for a locus penitentiae is emphasized before a fresh order of detention is made. The first of these cases was under the U. P. Maintenance of Public Order (Temporary) Act (IV of 1947) and the second under the Rajasthan Public Security Ordinance. Under both these statutes there was no provision for the extension of the period of detention and the fresh order of detention was in the circumstances of each case held to be an order of extension aid not a fresh order of detention. In the` Punjab Public Safety Act, 1949, however, under which extension has been ordered in the‑ present case, there is an express provision for extension in subsection (5) of section

3. The order impugned is not therefore a fresh order of detention but merely an order of extension specifically authorised by the statute. The only point that requires consideration in relation to this order is whether the recital in that order that the Government‑ was satisfied that it had become necessary to extend the period of detention with a view to preventing the Allama from acting in a manner prejudicial to the public safety and the maintenance of public order was true. The presumption is that it was a true recital and in view of the previous activities of the Allama Government could honestly come to that conclusion because Government could presume that since the main object of the Allama had always been to n organize a private army and, having disbanded the Khaksar Movement, he resurrected the same organization in the name of the Islam League, he would, after release, engage himself in the same activity. Mr. Ahmad has stated that that was his impression, and I have no reasons to doubt the honesty of his opinion or action. What the Court has to see in such cases is not whether the opinion was rightly formed but whether it was formed in fact and honestly. Though, in view of the above finding, the point does not affect this case, I must take this opportunity to explain that the distinction between an original order of arrest and an order extending the period of detention is fundamental, and must always be kept in mind by the authority ordering the exten sion. I do not share the view taken in the two cases just cited that such detentions have a punitive object because, in my opinion, the object of the section is solely preventive and not punitive. Repeated extensions of such detentions, how ever, are open to an obvious objection, and I can conceive of cases where such objection may succeed. The point does not need 'emphasis that under the Act as it stands an order of detention can be made in respect of a person as many times as he indulges in prejudicial activities. To take the present case, for instance, if the Allama were released today or on the expiry of his present term of detention and on his release he immediately or some time later engaged himself in the same activity as had necessitated his original detention, there can be no doubt that the Government could act again and detain him under a fresh order on the basis of the fresh activity: Unless; therefore, a man is a known incorrigible or the danger appre hended is no grave that it will be imprudent to take any chances, the Government would be well advised in avoiding an order of extension with a view to affording the detenu a locus penitentiae. If the man reverts to his former activities or engages in some other prejudicial activity, the Government could make a fresh order of detention and in this it would have public opinion with it. Repeated orders of detention without giving to the man concerned an opportunity to desist from his activities may in certain cases be taken. to be vindictive, dis honest or punitive and not preventive. And where such view can fairly be taken, it will be the duty of the High Court which is required to act under 'section 491 of the Criminal Procedure Code, to hold the order invalid and set the man at liberty. The argument in such cases can always be, "If Government is honest and the action taken is merely preven tive, why does not the Government release the man after the expiry of his term of detention and arrest him again if he engages himself in the same or similar activities?" The primary consideration in making orders of extension is whether, if the man were released, he would act in the same or some other specific manner because the action taken is to prevent the doing of an act and nothing else. It, therefore; means that when an order of extension is made, the authority making the order must be satisfied that, if released, the detenue would act in a particular manner. I have sustained the order of. extension in this case only because I have held that in view of the previous activities of the Allama extending over a period of 20 years Mr. Ghias‑ud‑Din Ahmad could honestly, rightly or wrongly is not the question, come to the conclusion that the Allama, if released, would again resort to his former activities. But even here, in view of the repeated statements by the Allama in the course of the hearing of the petition that he is a law‑abiding citizen and that it is not his inten tion to do anything unconstitutional, the Court will require definite proof, if the period of detention is further extended, that the authority extending the detention was satisfied after considering the relevant factors that the Allama intended to engage in the same activities as had led to his original arrest or in some other specific prejudicial activity. The presumption with which such acts of Government are received in Courts is permissive and no Court is bound to presume that though a man had been in incarceration. for 18 months, Government still honestly believed that, if released, he would act in precisely the same manner as he did or intended to do when he was first arrested. One thing more I must mention before I conclude. In almost every case of detention under the Public Safety Act the authority ordering the detention, when questioned by the Court about the reasons for the detention, mechanically repeats the formula of "public safety and maintenance of public order", and displays a positive disinclination to the matter being probed further. While such disinclination is understandable where high affairs of State are concerned, I do not see why in ordinary cases, as for instance, where a man is arrested for defying law and order, intending to lead a banned procession, fomenting labour discontent or communal hatred or for otherwise endangering public peace, the authority ordering the arrest should not take the Court and the public into confidence by giving a broad hint to ‑the reasons for the action taken. In such cases the Court does not desire to go into details or to ask for disclosure of the material on which the authority ordering the arrest formed his opinion except to the extent that such information is relevant to the question whether the action taken was bona fide. In the present case, for instance, Mr. Ahmad need not have attempted to build a fortress of privilege around him by repeated references to the instructions from his Minister and instead of saying tat the Allama was arrested with a view to preventing him from acting in a manner pre-judicial to public safety, he could be more plain and disclose that the Allama was arrested because Government believed that he was attempt ing to raise a private army which constituted a threat to public safety and order. For reasons which I have stated above in detail, I hold that it is not proved either that the original order of detention was made by the Government with any ulterior motive or that the order of extension under which the Allama is now being detained was made without reference to relevant cir cumstances or with any dishonest motive. The petition is, therefore, dismissed. A. H. Petition dismissed.