1968 SCMR 210 (PLP)

S. A. RAHMAN, J.-This certificated appeal arises out of a petition under Article 98 of the Constitution presented in the-Dacca High Court by M.otahat Hossain Siddiqui, to call in question the validity of the detention of Mr. Tofazzal Hussain, Editor of the Bengali Daily `Ittefaq', by order of the District Magistrate, Dacca, passed under Rule 32 (1) (b) of the Defence of Pakistan Rules, 1965. The petition was heard by five learned Tulips of tke High Court four of whom agreed in dismissing the petition, but Abdullah, J. wrote a dissenting judgment, and recorded the finding that the impugned order was made without lawful authority, and was therefore, void. In accordance with the majority view, the Rule that had been issued on the petition, was discharged, but on the oral request of the learned counsel for the petitioner, it was certified that this was a fit case for appeal to this Court under Article 58 of the Constitution, as it involved substantial question of law as to the interpretation of the Constitution. The detenu, Mr. Tofazzal Hossain, has since been released from detention. It is, however, represented on his behalf by Mr. A. K. Brohi that as the detention has exceeded nine months, if the order is allowed to stand as valid, his client would have incurred a disqualification under the Electoral Law, and consequently despite Mr. Tofazzal Hossain's release, the points raised on the petition are by no means dead issues. A number of grounds of challenge were raised to the validity of the impugned order in the High Court. Mr. Brohi, however, confined his submissions to one point, and it is, therefore, unnecessary to detail or comment on other grounds for the disposal of this appeal. Learned counsel for the appellant pointed out that the majority view that prevailed in the High Court proceeded on the legal presumption that the subjective satisfaction of the detaining authority, as to the necessity for detention, would justify an order under Rule 32 (1) (b) of the Defence of Pakistan Rules. It is further stated that on behalf of the appellant a petition was moved in the High Court praying that the Deputy Commissioner, who had issued the impugned order may be called as a witness in order that particulars of the material on which the detention order was based, may be elucidated from him. The prayer was rejected. The approach of the learned Judges would be apparent from the following extract from the majority judgment:- "In a case of preventive detention, the law stands securely established that it depends upon the subjective satisfaction of the detaining authority and not on the objective satisfaction. The order being for prevention of the activities of the detenu, which the detaining authority considers to be prejudicial to the several matters mentioned in the order itself, the Courtshall not question that order provided the Court is satisfied that the order has been made under lawful authority by the detaining authority. Once it is established upon the materials placed before the Court by way of affidavit that the detaining authority was satisfied before passing, the order, the Court generally does not go beyond it unless the petitioner can prove mal a fides either in law or in fact. In the present case, the learned Attorney-General who appeared for the State, was good enough to place before us the materials upon which the detaining authority made up its mind for passing the order, of detention and the learned Advocate for the petitioner had, far from having any objection to our looking into those, expressed himself in favour of our looking into those materials. Having looked into those materials, I have no doubt left in my mind that it cannot be said that there were no materials before the detaining authority to supply any basis for forming its opinion to pass the order of detention." Mr. Brohi brought it to our notice that the materials to which reference is made in the above extract from the judgment of the High Court, were examined by the Judges, but not shown to the counsel for the appellant despite a request to that effect. It was not, therefore, possible for the learned counsel for the appellant to address the Court on the sufficiency or reasonableness of the grounds on which the impugned action was based. Learned counsel contends with force on the authority of the majority judgment of this Court in Malik Ghulam Mani v. Government of West Pakistan (P L D 1967 S C 373) that the grounds or materials on which thei detaining authority satisfied itself of the necessity of detention, are open to judicial review, and mere subjective satisfaction of the detaining authority would not suffice for lending validity to the detention order. The Court itself has to be satisfied on the point of sufficiency and reasonableness of the grounds that formed the basis of the order. This judgment was rendered after the disposal of the present case in the High Court, and the learned Judges were, therefore, not aware of the law laid down by this Court on the point. The learned Advocate-General for the Province, Mr. Asrarul Hossain, did not contest the proposition that the satisfaction of the detaining authority is subject to judicial review on the authority of the above cited judgment of this Court. This aspect of the matter has not been investigated by the High Court, and consequently, the only proper order in the case would be that it should be remitted back to the High Court for such investigation. We, therefore, allow the appeal and direct that the case be remitted back to the High Court for disposal in the light of the principles laid down by this Court in Ghulam Jilani's case. In the circumstances we make no order as to costs in this Court. Appeal accepted. Case remanded.