P L D 1952 Lahore 578 (PLP)

MUHAMMAD MUNIR, C. J.‑This is a petition under section 491 of the Code of Criminal Procedure by C. R. Aslam alleging that he is being illegally detained in the custody of the Inspector‑General of Prisons and praying that he be set at liberty. Aslam was arrested on 16th December 1948, under sub section 1 of section 3 of the Punjab Public Safety Act, 1947, by Mr. Muhammad Asghar, Superintendent, C. I. D. The period of his detention was extended from time to time by orders made by the Provincial Government under subsection (4) of that Act, and the order that was in force on 15th August 1949, was the order dated the 8th June 1949 by which the period of his detention had been extended up to 14th December 1949. On 9th December 1949 Aslam's detention was again ex tended, but this time under subsection (4) of section 3 of the Punjab Public Safety Act, 1949, (Act XVIII of 1949) till 14th of March 1950. A similar order extending the detention till 14th June 1950 was made on 14th February 1950, and it is this order under which he is now being detained. The question is whether the order that is in force now is a valid authority for the detention of the petitioner. An earlier petition under section 491 of the Code of Criminal Procedure filed by the petitioner on 5th February 1949 was dismissed by a learned judge of this Court on 14th April 1949, but that fact has no bearing on the question whether the present detention is legal. As the arrest was not made under the Act of 1949, it is obvious that the present order of detention can be held valid only if it is authorised by the provisions of section 36 of that Act, the relevant terms of which are :‑ "Notwithstanding the expiry of the Punjab Public Safety Act, 1947, any order, whether notified or not, made or any direction issued by whatever authority under the said Act which was in force immediately before the expiry thereof shall until other provisions are made under the Act continue in force so far as consistent with this Act and be deemed to be an order made or direction issued by a competent authority under the relevant corresponding provisions of this Act . . . . . .". To justify the present detention, therefore, two questions have got to be answered in the affirmative (1) whether there was on 15th August 1949 a valid order in force under the Act of 1947 authorising the detention of the petitioner and (2) if the answer to this question be in the affirmative, and the detention be deemed to have ordered under subsection (4) of the Act of 1949 whether there is any thing, express or implied, in that Act authorising the Provincial Government to add another order of detention after the expiry of that which was in force on 15th August 1949. It may be assumed, though I do not hold it, that the answer to the second question is in the affirmative. The question, however, still remains whether the order that was in force on 15th August 1949 in respect of, the detenu was a valid order. To seek reply to this question it is necessary to refer to the history of relevant legislation. Section 3 of the Punjab Public Safety Act of 1947, which was passed when the Governor of the Province had assumed to himself under section 93 of the Government of India Act, 1935, all powers vesting in the Provincial Legislature, was as follows :‑ "3. (1) The Provincial Government, the District Magis trate or any servant of the Crown authorised in this behalf by general or special order of the Provincial Government if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary so to do, may arrest such person without warrant, or may direct the arrest without warrant of such person and in making such arrest any means that may be necessary may be used. (3) The Provincial Government may by order in writing commit any person arrested by it or on its direction to such custody as the Provincial Government may deem fit. (4) No person shall, unless the Provincial Government by special order otherwise directs, be detained in custody for a period exceeding, one month. (5) No person shall be so detained in custody for a period exceeding six months". Subsection (5) of the Act of 1947 was subsequently repealed by Ordinance IV of 1948 and was substituted by the following subsection :‑ "No order made by the Provincial Government under the provisions of subsection (3), shall remain in force for a period of more than six months, but the Provincial Government may, before the expiry of such period, renew such order and thereafter such order shall remain in force for a further period not exceeding six months unless before the expiry of that period it is similarly renewed or cancelled". The, Act of 1947 expired on 15th August 1949, and section 3 of the Act of 1949 which replaced the Act of 1947 is almost identical in terms with section 3 of the Act of 1947 except that for the words. "Subsection (3)" that occurred in subsection (5) of the Act of 1947 the words "subsection (4)" have been substituted. Under the Act of 1947 the position was that: (1) The Provincial Government could itself arrest or direct the arrest of a person. (2) any servant of the Crown authorised in this behalf by the Provincial Government could arrest ; (3) the person arrested, whether by the Provincial Government or under its direction or by a servant of the Crown, could not be detained for more than a month unless otherwise directed by the .Provincial Government ; and (4) no order by the Provincial Government under sub section (4) could extend the period of detention beyond six months. It is thus clear from the scheme of that Act that though subsection (4) of section 3 gave to the Provincial Government powers of detaining a person for an unspecified period, sub section (5) had the effect of declaring that the period of detention that could be ordered under subsection (4) could not exceed six months. In other words, the unfettered powers given to the Provincial Government by subsection (4) were qualified by the condition contained in subsection (5) accord ing to which the maximum period of detention was six months. It is, therefore, reasonable to presume that even after the amendment of subsection (5) of the Act of 1947 by the Ordi nance of 1948. that subsection was intended to contain the qualifications by which the Provincial Government's power under subsection (4) is controlled. Now subsection (5) gave to the Provincial Government the power to make an order under subsection (4) only in respect of persons who were mention ed in subsection (3), namely, persons arrested by the Provincial Government or on the direction of that Government. And if subsection (5) contained a qualification as to the powers of the Provincial Government to order detention beyond the period of one month mentioned in subsection (4), then it must be held that unless the case fell within the terms of subsection (5). the Provincial Government could not order detention beyond the period of one month. In the present case, the arrest, as I have already pointed out, was effected not by the Provincial Government but by Mr. Muhammad Asghar. Subsection (3) of the Act of 1947 was, therefore, not applicable to the case of. this detenu, and that being so, the period of his detention could not be extended beyond one month because sub section (5) did not in terms apply to the case of this detenu. If that be a correct interpretation of the provisions of section 3 of the Act of 1947, it must follow that the order dated the 8th June 1949, which was in force on 15th August 1949, was void, and if that order was void, then section 36 of the Punjab A Public Safety Act of 1949 was not applicable and no order under subsection (4) of section 3 of that Act could have been made by the Provincial Government. The argument of Mr. Abdul Aziz Khan, learned Advocate General, is that subsection (4) of section 3 of the Act of 1947 must be read independently of subsection (5) of that section. I cannot accept this argument because the result, if that argu ment were accented, would be that whereas in the case of persons arrested by persons other than the Provincial Govern ment the period of detention could be indefinite, the Provincial Government was helpless in the case of persons who were arrested by it or under its direction and the period of detention of such persons could not be extended beyond 19 months. Any such interpretation, therefore, which leads to an absurdity has to be avoided. It is a cardinal rule of interpretation that statutes, which trench upon the liberty of the subject, must be construed strictly and nothing should be deemed to fall within the terms of any such statute unless ‑the words used are wide enough to cover it. In the present case on the words of sub section (5), as it stood before 15th August 1949, it is impos sible to contend that the Provincial Government had the power ' to extend the period of detention under subsection (4) in respect of persons who were not arrested by it or under its direction. This position seems to have been realised when the' Act of 1949 was passed because subsection (5) of that Act has been worded differently from subsection (5) of the Act of 1947, the words "subsection (3)" occurring in the latter having been replaced by the words "subsection (4)". Under the present Act, therefore, no such distinction as I have mentioned between persons arrested by or under the direction of Provincial Government and those arrested by any other servant of the Crown can arise. Another point taken by Mr. Abdul Aziz Khan is that the orders made by the Provincial Government after 15th August 1949 must be taken to be original orders of arrest under the new Act. I cannot agree with this contention because the Act draws a clear distinction between the classes of persons who are authorised to arrest, and I cannot hold that a person who was arrested under the Act of 1947 should even after the expiry of one month be deemed to have been arrested under the Act of 1949 or that a person who was arrested by a servant of the Crown in exercise of the powers delegated to him by the Provincial Government must be deemed to have been arrested by the Provincial Government itself. The result, therefore, is that because in respect of Aslam on 15th August 1949 there was no valid order in force authorising his detention, section 36 of the Act of 1949 is inapplicable and the present order of detention by the Provincial Government under subsection (4) of section 5 of the Act of 1949 is unauthorised. I, therefore, accept this petition and order C. R. Aslam to be set at liberty. K. M. A. Petition accepted.