P L D 1967 Lahore 103 (PLP)

2. The facts are these. On the 23rd of November 1965 the District Magistrate, Lahore, promulgated an order under section 144 of the Code of Criminal Procedure, to prevent breach of peace, danger to human life or disturbance of public tranquillity, within the limits of Municipal. Corporation of Lahore and other areas specified therein, and prohibited for a period of two months, the assembly of five or more persons in any street, road, public place or public thoroughfare. This order was in force on the 21st of January 1966, on which day Jumat-ul-Wida fell. As the believers came out of the Badshahi Mosque, at about 3 p. m. having said their midday prayers, Mian Manzar Bashir began to deliver a speech in the grounds of the Hazuri Bagb, in front of the steps of the Badshahi Mosque, which attracted the attention of the crowd. Mr. Ghulam Husain Butt, D. S. P., along with a posse of police was at that time present in the Hazuri Bagh, as he was aware that the order of the District Magistrate made under section 144 of the Code of Criminal Procedure was likely to be defied and there was apprehension of breach of the peace and the occurrence of disturbances. Same disturbances had already taken places in the city of Lahore on 13th and 14th January 1966. Kh. Muhammad Rafique and Mian Manzar Bashir and applied to the District Magistrate for permission to hold a meeting on this day, but the District Magistrate had refused to accord his permission on the 17th of January 1966 (Exh. C.). The D. S. P tried to induce Mian Manzar Bashir not to hold or address a public meeting, but to no avail. Mian Manzar Bashir spoke for about four or five minutes. Other speakers also delivered speeches. These speeches lasted for about half an hour. The D. S. P. managed to segregate the speakers and organisers of this meeting, namely Mian Manzar Bashir, Kh. Siddiq-ul-Hassan, Ch. Kalim-Din, -Din, Sh. Muhammad Ismail, Mr. Mahboob Mustafa and Mr. Ejaz Ahmad, and removed them in a police van to Police Station Kotwali From the spot he sent information of the incident to the S. S. P., Lahore, who forwarded his report to Mr. Zafar Ali Khan, Deputy Commissioner, Lahore. Mr. Zafar Ali Khan on receiving information from the S. S. P. that Mian Manzar Bashir and 'others had held a demonstration outside the Badshahi Mosque and wanted to take out a procession, was satisfied that it was necessary to detain Mian Manzar Bashir, Kb. Siddiq-ul- Hassan, Ch. Kalim-ud-Din, Sh. Muhammad Ismail, Mr. Mahboob Mustafa and Mr. Ejaz Ahmad. He, therefore, passed orders under rule 32(I)(b) of .the Defence of Pakistan Rules directing that they be detained in jail for two months. These order (Exhs. D, E & G, etc.) Were sent to Police Station Kotwali, where they were served on them by Mr. Ghulam Husain and the detenus were sent to the District Jail, Lahore. Copies of the orders of detention were sent to the Commissioner, Lahore, and the Home Secretary to the Government of West Pakistan for information. The orders were in almost similar terms except for the particulars of each of the detenus. The order in the case of Mian Manzar Bashir is reproduced below, so as to indicate the reasons, which led to the making of the order. "Whereas I am satisfied with respect to Mian Manzar Bashir, Joint Secretary, West Pakistan Council Muslim League, son of Mian Bashir Ahmad, resident of 32, Lawrence Road, Lahore, that with a view to preventing him from acting in a manner prejudicial to the security, the public safety or interest of the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other power, the maintenance of peaceful conditions in any part of Pakistan, it is necessary so to do. Now, therefore, in exercise of powers delegated to me by the Government of West Pakistan, Home Department Order No. 9-86-H-Spl.-1/65, dated the 20th of September 1965, 1, Zafar Ali Khan, Deputy Commissioner, Lahore, hereby direct that the said Vian Manzar Bashir shall be, arrested forthwith under rule 32(1)(b), Defence of Pakistan Rules, 1965 and detained in the District Jail, Lahore/D. I. Khan for a period of two months with effect from the date of his arrest."

3. Paragraph 1 of the order is a reproduction of sub-rule (1) of rule 32 of the Defence of Pakistan Rules except that the words "the maintenance of essential supplies and services or the efficient prosecution of war" have been omitted. It is, 'therefore, argued that the order of detention was made mechanically without the application of his mind by Mr. Zafar Ali Khan and that he could not be satisfied as to the grounds, on which he ordered the detention of Mian Manzar Bashir and the others. Besides, Mr. Zafar Ali Khan ordered the detention of the detenus as under:- "Mian Manzar Bashir: District Jail, Lahore/D. I. Khan. Kh. Siddiq-ul-Hassan: District Jail, Lahore/Montgomery. Ch. Kalim-ud-Din: District Jail, Lahore/ Montgomery. Muhammad Ismail; District Jail, Lahore/Montgomery," The cases of the other two are not before us in these, writ petitions.

4. The question whether these detenus were to be detained further or not was put up to Ch. Niaz Ahmad, Home Secretary to Government of West Pakistan for his orders. On a consideration of all the material, the situation reports and information reports, being satisfied, on the 17th of March 1966, that it was necessary to make an order of detention of Mian Manzar Bashir, Kh. Siddiq-ul-Hassan, Ch. Kalim-ud-Din, Sh. Muhammad Ismail, Mr. Mahboob Mustafa and Mr. Ejaz Ahmad, in order to prevent them from acting in a manner prejudicial to the maintenance of public order and peaceful conditions in the Province, particularly in the city of Lahore, he, passed an order of detention against them, but as he was proceeding on tour on that day, he directed his Deputy Secretary, Mr. Riaz-ul-Haq, to sign, to authenticate and to issue the orders under his signatures. In consequence, Sh. R1az-ul-Haq issued the orders of detention, which were served on the six detenus in the various jails, where they were detained. These were fresh orders of detention, which he signed and authenticated on the 18th of March 1966. They were dated the 19th as they had to be served on the detenus on that date at their different places of detention. Though they had been put in Class III by Mr. Zafar Ali Khan, they were all placed in Class I by the Provincial Government. Kh. Muhammad Rafique, Kh. Siddiq-ul-Hassan, Ch. 'Kalim-ud -Din, Sh. Muhammad Ismail, Mr. Mahboob Mustafa, Nawabzada Nasrullah Khan, Malik Ghulam Jilani, Sardar Muhammad Zafrullah Khan and Sardar Shaukat Hayat Khan were classified as Class I on the 23rd of February 1966, Mr. Sikandar Hayat was so classified on the 15th of March 1966.

5. The orders of detention in the case of Mian Manzar Bashir, Kh. Siddiq-ul-Hassan, Ch. Kalim-ud-Din, Sh. Muhammad Ismail and Mr. Mahboob Mustafa were in similar terms stating as follows:- "And whereas on consideration of the reports of the police and of attending circumstances namely, the recent violent disturbance in the city of Lahore, in the second week of January 1966 and defiance by certain organisations and persons of orders passed under section 144, Cr. P. C. the Governor is satisfied that these persons have been individually and conjointly engaged and are likely to continue to engage in prejudicial activities, the details of some of which are more precisely described below, which are likely to seriously disturb the public order and peaceful conditions in Lahore and elsewhere in the Province of West Pakistan; And whereas with a view to preventing the said persons from acting in the manner as detailed above, it is necessary that he be arrested and detained; Now, therefore, in exercise of the power delegated to the Provincial Government of West Pakistan by the Government of Pakistan under rule 32, Defence of Pakistan Rules 1965, the Governor of West Pakistan is hereby pleased to order that be immediately arrested under clause (b) of sub-rule (1) rule 32 of the Defence of Pakistan Rules, 1965 and detained until further orders in the Central Jail." The details of their, activities described in the order were that on 21st of January ti 1966, they, in defence of the order of the district Magistrate, Lahore, unifier section 144, Cr. P. C., collected in Hazuri Bagh, after Jumaf-ul-Wida prayers and excited and exhorted the people, coming out of the Badshahi Mosque, to take out processions, in defiance of law, to disturb the public peace and tranquillity. Ch. Kalim-ud-Din, Kh. Siddiq-ul-Hassan, Mr. Mahboob Mustafa and Sh. Muhammad Ismail were ordered to be detained in the Central Jail at Montgomery and Mr. Manzar Bashir in the Central Jail at D. I. Khan these writ petitions challenge these, orders of detention of Mian Manzar Bashir, Kh. Siddiq-u-Hassan, Ch. Kalim-ud-Din and Sh. Muhammad Ismail made by the Home Secretary.

6. Mr. Sikandar Hayat, son of Sardar Shaukat Hayat Khan, was arrested in connection with the student s processions and the disturbances, which occurred, is Lahore. He was in jail, when on the 18th of January 1966, Mr. Zafar Ali Khan, Deputy Commissioner, Lahore, made an order of detention (Exh. L.) in the same terms as in the case of the above detenus for a period of one month from the date of his arrest, for him to be detained in the District Jail, Lahore. 7, The Deputy Commissioner extended his period of detention for a further period of one month on the 14th of February 1966 or again on 14th March 1966 being satisfied that it was not .in the interest of public safety, maintenance of public order and the defence of Pakistan to release him at that stage and his further detention was necessary: On the 22nd of March 1966, Mr. Mustafa Zaidi, Deputy Commissioner, Lahore, on a consideration of the report of the police and all attending circumstances, namely, the recent disturbances in the Province of West Pakistan, and particularly in the city of Lahore, culminating in the commission of violence against the police personnel and the public tranquillity and necessitating closure of schools and colleges, , being satisfied that there was enough material to show that Mr. Sikandar Hayat had been jointly engaged in activities, which were likely to seriously prejudice the maintenance of public order and peaceful conditions in the city of Lahore and elsewhere in the Province and it was necessary with a view to preventing him from acting in the manner aforesaid to arrest and detain him, directed in exercise of powers delegated to him by the Government of West Pakistan in supersession of the orders of his predecessor of the 18th of January, 14th of February 1966 and 14th pre March 1966 that he shall be arrested and detained in the District Jail, Lahore until further orders and treated as Class III detenu for the purposes of the West Pakistan Public Order Detenu Rules, 1962. The orders of Mr. Zafar Ali Khan are on the record, but the order, under which he is being detained at present, is that of Mr. Mustafa Zaidi of the 22nd of March 1966. It has been contended in his case that if he was involved in the disturbances, and was arrested in that connection, he should have been tried for the offence in a Court of law instead of being detained and his detention under the Defence of Pakistan Rules is not a bona fide exercise of power under these Rules. It 'is further argued that in view of the manner in which he was confined and sent to the Mental Hospital, it is manifest that .his detention was ordered mala fide.

8. On the 16th of February 1966, Mr. Zafar Ali Khan in exercise of the powers delegated to him, on a consideration of the report of the police and all the attending circumstances, namely, the recent disturbances in the Province of West Pakistan and particularly in the city of Lahore culminating in the commission of violence against the police personnel and the public tranquillity and necessitating the closure of schools and colleges being satisfied that there was enough material to show that Sardar Shaukat Hayat Khan, Nawabzada Nasrullah Khan, Sardar Zafarullah Khan, Kh. Muhammad Rafique and Malik Ghulam Jilani were and have been jointly engaged in activities, which were likely to seriously prejudice the maintenance of public order and peaceful conditions in the city of Lahore and elsewhere in the Province of West Pakistan and it was necessary with a view to preventing them from acting in a manner as aforesaid, that they be arrested and detained, ordered under rule 32 of the Defence of Pakistan Rules that they be arrested and detained until further orders in the District Jail, Lahore. They were classified as Class III detenus for the purposes of the West Pakistan Public Order Detenu Rules, 1962 and this has been admitted by him to be a wrong classification They, were placed in class I by the Provincial Government.

9. In Criminal Miscellaneous 567 of 1966 by Khawaja Muhammad Rafiq through Jail, he contended that the above order of detention did not relate to him, as the person ordered to be detained had a different parentage. On 21st March 1966 he was ordered to be released on the ground that the order of detention did not relate to him. On the same day Mr. Niaz Ahmad, Home Secretary made an order of detention until further orders against Khawaja Muhammad Rafique in terms similar to the order of Mr. Zafar Ali Khan made against him and others on 16th February 1966, but giving his correct parentage: Khawaja Muhammad Rafique was released from jail, but was forthwith served with the fresh order of detention and was confined in the Bahawalpur jail. This order is now being challenged.

10. In these writ petitions it is argued that the detention of Kh. Muhammad Rafique, Sardar Muhammad Zafarullah khan, Nawabzada Nasrullah Khan and Malik Ghulam Jilani has been mechanically ordered without their ever acting or there being any apprehension of their acting in the manner specified in the order of Mr. Niaz Ahmad and that their detention has been ordered mala fide with a view to stile the voice of the opposition parties and to prevent them from propagating their opinions on a matter of public interest namely, that the Tashkent Declaration was opposed to the interests of Pakistan and its long standing demand for a right of self-determination to be exercised by the, people of Kashmir.

11. In these petitions Ghulam Husain Butt, D. S. P., Mr. Zafar Ali Khan, Sh. Riaz-ul-Haq and Niaz Ahmad have been called to be cross-examined by the learned counsel, as desired by them.

12. On the 6th of September 1965, India invaded Pakistan and the President of Pakistan proclaimed an emergency under Article 30(1) of the Constitution of Islamic Republic of Pakistan. Simultaneously, Defence of Pakistan Ordinance, XXIII of 1965 was enacted and the Defence of Pakistan Rules were promulgated by Notification No. S. R. O. 112(R)/65. The detenus have been detained under rule 32(1)(b), which provides as under: "32(1).-The Central Government, if satisfied with respect to any particular person, that with a view to preventing him from acting in a manner prejudicial to the security, the public safety or interest of the Defence of Pakistan, or maintenance of public order, Pakistan's relations with any other powers, the maintenance of peaceful conditions in any part of Pakistan the maintenance of essential supplies and services or the efficient prosecution of war, it is necessary so to do, may make an order (a) . (b) Directing that he be detained." This power is a power exercisable by the Central Government, but is capable of being conferred under section 3(4) on and delegated to (a) an officer or authority subordinate to the Central Government or (b) any Provincial Government or by another officer or authority subordinate to such Government or (c) any other authority. The. Central Government directed in exercise of this power by Notification No. S. R. O. 111(R)/65 of the 6th of September 1965 that the powers and duties of the Central Government under the Defence of Pakistan Rules shall in the circumstances and conditions specified be exercised and discharged in the Provinces by the Provincial Governments concerned. It was in exercise of the power conferred on the Provincial Government that Mr. Niaz Ahmad, Secretary Home Department, Government of West Pakistan, passed orders of detention in the case of Mian Manzar Bashir, Sh. Muhammad Ismaili Kh. Siddiq-ul-Hassan and Ch. Kalim-ud-Din on the 17/19th of March 1966 and Kh. Muhammad Rafique on the 21st of March 1966. Subsection (5) of section 3 of the Ordinance further empowered the Provincial Governments to direct by order that any power or duty, which has been directed under subsection (4) to be exercised or discharged by the Provincial Government, shall in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged by any officer or authority not being an officer or authority subordinate to the Central Government. The Provincial Government directed by Notification No. 9-86-H-Spl. 1/65, dated the 20th of September 1965 published in the Gazette of West Pakistan (Extraordinary) of the 22nd of September 1965, in supersession of two earlier Notifications that powers and duties delegated to the Provincial Government under the Defence of Pakistan Rules specified in column 1 of the Schedule of this order, shall be exercised by the authorities or persons specified in column 2 of the Schedule within their respective jurisdictions in the circumstances and under the conditions, if any, specified in column 3 of the Schedule. The conditions prescribed in column 3 are that the power under rule 32 shall not be exercised by the Deputy Commissioners in a manner inconsistent with any order passed by the Central Government or the Provincial Government. Notification No. 9-86-H-Spl. 1/65, dated the 7th of February 1966 published in the Gazette of Pakistan of the 9th of February 1966 added proviso 3 that the Deputy Commissioners may specify any place within their respective jurisdictions where any person arrested by them to be detained is to be detained. The effect of these Notifications is to confer power on the Deputy Commissioners to make orders under rule 32(1)(6) within their jurisdiction and to specify any place within their respective jurisdictions where any person arrested by them to be detained is to be detained. Mr. Zafar Ali Khan in exercise of this power made the order of detention of Mr. Sikandar Hayat, Mian Manzar Bashir, Sh. Muhammad Ismail, Khawaja Siddiqu-ul-Hassan and Ch. Kalim-ud-Din, but these orders have expired and while Sikandar Hayat is at present being detained under the order of Mr. Mustafa Zaidi, the others are under detention under the order of Mr. Niaz Ahmad, Home Secretary. In exercise of the same power, Mr. Zafar Ali Khan, ordered the detention of Sardar Shaukat Hayat Khan, Nawabzada Nasrullah Khan, Sardar Zafar Ullah Khan, Malik Ghulam Jilani and Khawaja Muhammad Rafique on 16th February 1966. Whereas the detention of Khawaja Muhammad Rafique was set aside by this Court, a fresh order of detention was passed against him by Mr. Niaz Ahmad on 21st March 1966, the others including Khawaja Muhammad Safdar are being detained under the orders of Mr. Mustafa Zaidi.

13. A question of minor importance may be disposed of first. Since the Defence of Pakistan Rules were notified by Notification No. S. R. O. 112(R)/65 and the delegation of the power of the Central Government to the Provincial Government to make orders under the Rules was notified under Notification No. 1 l 1, it was argued that the delegation was ineffective as it preceded the promulgation of the Rules. This contention has no force, firstly because both the Notifications were published in the same Gazette and the juxtaposition of the Notifications in the Gazette is of no importance: It cannot invalidate the delegation of the power to the Provincial Government. A similar view was taken by S. A. Rahman, J. in. Syed Abul A'ala Maudoodi and others v. The Government of West Pakistan and others (P L D 1964 S C 673). The affidavit of Mr. S. K. Naqvi, Section Officer, Cabinet Secretariat placed on the record secondly proves that Syed Fida Hasan, Cabinet Secretary signed the Defence of Pakistan Rules first and then signed the orders delegating the powers of the Central Government to the Provincial Government. He took both the orders to the Government Printing Press, where the numbering of the notification was done by the employees of the Government Press The numbering of the Notifications has therefore, no significance. --

14. Subsections (1) and (2) of section 3 of the Ordinance, the framing of the Defence of Pakistan Rules, are claimed to be unconstitutional as conferring uncontrolled are claimed functions on the Central Government without legislative any guiding principles. The contention is not that the president did not have the power to enact the Ordinance in exercise of power under Article 30(1) of the Constitution; but exe the President in enacting subsections (1) and (2) of section 3 that e ordinance abdicated his own legislative functions and of the conferred them on the Central "3 1 : -The Central Government may, by Notification in the rules as appear to it to be official Gazette, make such public necessary or expedient for ensuring the security, the public safety and interest and the defence of Pakistan, or for securing curing the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community." "3(2)(x).-Without prejudice to the generality of the powers conferred by subsection (1) the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters, . (i) to (ix) . (X) the apprehension and detention in custody of any person powered by the rules to apprehend or detain, as the case maybe, suspects; on grounds appearing to such authority to be reasonable, or being of hostile origin, or f having acted, acting, being about to act, or being likely, to act in a manner prejudicial to the external affairs, the security, the public safety or interest, or the defence of Pakistan, or any Part thereof, including the maintenance of supplies and service. Essential to the life of the community and the maintenance of peaceful conditions in any area included in Pakistan, or Prejudicial to the maintenance of public order, or the efficient prosecution of war, or with respect of whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from of such person prejudicial manner, the prohibition or residing or remaining in any area and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything."

15. If we look at subsections (1) and (2)(x) of section 3 of the Ordinance, we find that the President has himself enacted in great detail the matters in respect of which provision is to be made in the Rules. There are also clearly discernable guiding principles and the objects to be served by the Rules to be framed. For the framing of rule 32(l)(b) there are ample guiding principles in subsections (1) and (2) of the Defence of Pakistan Ordinance. The principle is now well established that extensive delegation of powers by the Legislature has become necessary in the ever-growing complexity of a modern State; and that rules, regulations, schemes and bye-laws may be made by anyone, empowered to do so, within the frame-work of the main legislation itself. As A. R. Cornelius, J. (now Chief Justice of Pakistan) aptly observed in Sabho Gianchandani v. Crown (1), the difficulty which under' the increasing complexity of modern conditions- is felt by all Legislatures in making provisions for every case, which may arise within the contemplation of the statute, renders it necessary for some measures of ancillary powers to be delegated to the executive authorities to make the statutory rules and regulations for carrying into effect the provisions of the statute in matters of detail. Delegation to this extent has been a universal practice for a great many years and such provisions will be found in a great number of statutes. Thus, if the main legislative function is performed by the Legislature or the President and the guiding principles or the policy or the subject and the objects t6 be served by the rules to be framed are laid down, it cannot be said that the essential legislative function has been abdicated. The entrustment of the ancillary, executory or complementary functions to the executive authority or the Central Government in the framing of statutory rules and regulations in order to carry into effect the provisions of the statute in matters of detail is not delegation of legislative function and creation of a parallel Legislature. Subsection (2)(x) contains in detail the guiding principles and policy for clause (b) of rule 32(P L D 1952 F C 29) of the Defence of Pakistan. Rules. Hamood-ur Rahman, J., with whom the other learned Judges concurred, held in the District Magistrate, Lahore and Commissioner, Lahore Division v. Syed Raza Kazim (P L D 1961 S C 178), that it was impossible for the Legislature to attempt to provide for every detail and machinery to carry into effect the intention of the Legislature and it was permissible for it, while retaining its legislative power intact and maintaining its full legislative control, authorise the executive to carry into effect by rules, the policy of the Legislature.

16. Section 3 of the Defence of Pakistan Ordinance is in essential respects similar to section 2 of the Defence of India Act and rule 32(1)(b) corresponds to rule 26 of the Defence of India Rules. A similar argument that section 2 of the Defence of India Act was unconstitutional on the ground of excessive delegation of legislative function by the Central Legislature and that the rules were ultra vires of the powers conferred on the Central Government, was repelled in Meer Singh v. Emperor (1), H. N. Nolan and another v. Emperor (2), Haveliram Shetty v. Maharaja of Morvi (A I R 1945 Bom. 88), (in which the case-law was exhaustively considered), Mahabir Saint v. Emperor (A I R 1947 Pat. 16), State v. Basdeo (A I R 1951 .All. 44) Harikrishan Das on behalf of Durga Das Khanna v. Emperor (A I R 1944 Lab, 33,). 1n the last case, the Full ..Bench of the Lahore High Court abserved:- "It is clear that section 2 (2)(x) (corresponding to 3(2)(x) of Defence of India Rules) states inconsiderable detail who can be apprehended and detained and in what circumstances. The subsection does not leave it to the rule-making authority to apprehend and detain anyone at its discretion or for any reason, which it thinks fit. The power to make rules on this matter is circumscribed and strictly limited. In short, the Legislature has laid down principles to guide and direct the rule-making authority and to limit its powers and the scope of the rules, which it may make." The above observations answer the contention raised:

17. The learned counsel further contended that as the power under rule 32(A I R 1941 All: 321)(b) to detain for reasons connected with the Defence of Pakistan, Pakistan's relation with other powers and the efficient prosecution of war involves the executive function of the Central Government, it could not be entrusted to or be performed by the Provincial Government. We were referred to Articles 131, 135(b) and 136(A I R 1944 All. 118) of the Constitution. The argument is fully met by Article 1430) of - the Constitution, Which provides that notwithstanding anything in the Constitution the President may with the consent of a Provincial Government, entrust either conditionally or unconditionally to that Government, or to any officer or authority of that Government, functions in relation to any matter to which the executive authority of the Republic extends. There is also clause (A I R 1944 All. 118) of Article

143. Thus, it is clear that the performance, of functions and duties under the Defence of Pakistan Rules could be conferred on the Provincial Government by the President, or the Central Legislature, but it is argued that it is not shown that consent of the Provincial Government has been obtained. This plea was not specifically raised in the writ petitions and if no evidence of consent has been led by the State we cannot use the lack of evidence to hold that the Provincial Government's consent has not been obtained. There appears to be force in the contention of the learned Advocate-General that as the powers and duties under the Defence of Pakistan Rules are being discharged by the Provincial Government, its consent is implied and can be presumed.

18. Since under rule 32(A I R 1941 All: 321)(b) the power is to be exercised by the Central Government "if satisfied" it is urged that no other officer, authority or Provincial Government has power to make an order under this rule, because satisfaction is that of the Central Government and has not been delegated. The argument is attractive, but has no force. T he delegation of the power to make an order under rule 32(AIR 1945 P C 156)(b) carries with it the power and capacity to be satisfied as to the necessity for the order to be made. Since subsections (A I R 1926 Cal. 140) and (AIR 1951 All.44) of section 3 are effective if means of the delegation of power of the Central Government in the full sense, power to be satisfied must be deemed to be delegated along with the power to make the order of detention in case of rule 32(AIR 1945 P C 156)(6). The Judicial Committee of the Privy Council in Emperor v. Sibnath Banerji and others (AIR 1945 P C 156), has held that the two subsections (A I R 1926 Cal. 140) and (AIR 1951 All.44) provide a means of delegation in the strict sense of the words, namely, transfer of power and duty to the officer or authority defined in subsection (AIR 1951 All.44) of section 2 of Defence of India Act (corresponding to sub section (AIR 1951 All.44) of section 3 of the Defence of Pakistan Ordinance). A similar argument raised in connection with section 2 of the Defence of India Act and the Defence of India Rules was repelled in Pt. Baldev Nand in the matter of detention of Rameshwar Dutt and others v. U. P. Government (A I R 1945 Oudh 126), Kewalram v. Collector of Madras (A I R 1944 Mad. 285) and H. C. Gupta v. Mackertich John (A I R 1926 Cal. 140). The first was a case of an order of detention under rule 26 and it was held: "It is, we consider, clearly implied in subsection (A I R 1945 Oudh 126) that it is the officer or authority to whom the power is delegated, who -must be satisfied according to the terms of rule

26. There will be no object in delegating the power if it was still necessary for the Provincial Government to be satisfied in each case before the order was passed." In the second case of requisitioning it was observed: "When a power has been delegated under section 2(4) the person or authority to whom the delegation has been made has all the power of the Central Government, unless the order of delegation contains some restriction on the exercise of the power." In the third case, which was also of requisitioning of immovable property, Derbyshire, C. J., said: "In my view, the Notification, which unquestionably gives him the power to requisition the premises, gives him power and the duty of considering whether it is necessary or expedient to requisition them. The Notification delegates to him the powers conferred on the Government of India by rule 75-A and those powers in my opinion include the powers to consider whether the requisitioning is necessary and expedient and also the duty. Those powers were possessed by the Government of India, which has conferred them upon him." The satisfaction is a condition precedent to the making of an order of detention and, therefore, if the power of detention i conferred on the Provincial Government or on another office r, then it must carry with it the power to be satisfied as to whether it was necessary to make an order under rule 32(AIR 1945 P C 156)(6). The case Ahmad zafar The District Magistrate, Rawalpindi (1), on which the learned counsel relied, is clearly distinguishable as being a case under section 12 of the Security of Pakistan Act, under which on Govt. of the Central Government being satisfied, the Central Government west Pak. or the Provincial Government had power to make orders under subsections (1) and (2) The satisfaction of the Central Government was a condition precedent and as it was not proved nor alleged that the Central Government was satisfied, the action of' he Provincial Government was struck down. A case under rule 32(1)(6) is entirely different. The power to make an order been fully delegated, the delegation must carry under it having with it the necessary concomitants of the exercise of the power and capacity to be satisfied.

19. In the cases of Mian Manzar Bashir, Kh. Siddiq-ul -Hasan, Ch. Kalim-ud-Din, Sh. Muhammad Ismail and Kh. Muhammad Rafique, it is said that even if the power of the Central Government is competently conferred on the Provincial Government under rule 32(1)(6), the order of their detention made by Mr. Niaz Ahmad, Home Secretary, is incompetent, as the order had to be made by the Governor personally as the Provincial Government. We have been referred to section 3(43-a) of General Clauses Act,, which defines the Provincial Government in a Governor's Province as the Governor. The learned counsel for the detenus also contended that the rule laid down by the Judicial Committee of the privy Council in Emperor v. Sibnath Banerji and others is not, attracted, because the provisions of Articles 80 and 81 of the Constitution are materially different from sections 49 and 59 of Government of India Act and sub section (2) of section 59 has been entirely omitted. He further contends that the power under rule 32(1)(6) being that of the Central Government is not the executive business of the Provincial Government and to its transaction its Rules of Business were not applicable.

20. By reason of the delegation, the exercise of the power and the performance of the duties under rule 32(P L D 1960 Lah. 952)(6) are conferred on the Provincial Government. The question, which falls for determination, is whether the Provincial Government g means the Governor in person, or the Governor acting either directly or through officers subordinate to him, in accordance with the Rules of Business framed under Article 81 of the Constitution. In Article 242 of the Constitution of Islamic Republic of Pakistan "Government of a Province" means the executive Government of a Province and the "Governor" means the Governor of a Province and includes any person for the time being acting as the Governor of a Province. Both the terms M have been defined separately. Article 80 of the Constitution provides that the executive authority of a Province is vested in the Governor of the Province and shall be exercised by him, either directly or through officer subordinate to him,-in accordance with the. Constitution, the law and the directions of the President: The Constitution further provides in Article 81(a) that the Governor of a Province may specify the manner in which orders and other instruments made and executed in pursuance of any authority or power vested in the Governor shall be expressed and authenticated; and (b) regulate the allocation and transaction of the business of the Government of the Province and establish departments of that Government. Therefore, when Article 80 speaks of the exercise of the executive authority of a Province by the Governor through officers subordinate to him in accordance with the Constitution and the law and the directions of the President, the reference is also to the Rules of Business framed under clause (b) of Article

81. In rule 2(x) of the Rules of Business of the West Pakistan Government, also, Government means the executive Government of the Province of West Pakistan government also government means the executive government of the Governor of the Province and _ both these terms are differently defined. Is there, therefore, any reason to believe that when the power was conferred by the Central Government under sub section (4) of section 3 on the Provincial Government and not the Governor, it was conferred on the Governor personally and not on the executive authority of the Province to be transacted accordance with the provisions in the Rules of Business" The question raised in this case was also raised before the Judicial Committee of the Privy Council in Emperor v. Sibnath Banerji and others which the learned Judges answered as follows: "Their Lordships are, therefore, in agreement with the learned Chief Justice of the Federal Court that such matters as those which fell to be dealt with by the Governor under rule 26 could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chapter 2 of Part 3 of the Act of 1935 and particularly, under the provisions of section 49 and the rules of business made under section 59." In repelling the contention that the Governor has to act in his individual judgment in making his order under rule 26, the learned Judges relied on section 49 and the. Rules of Business framed under section 59 and not in particular on section 59(2). The contention of the learned counsel for the detenus that as a provision similar to subsection (2) of section 59 is not enacted in the Constitution there is a material difference, has no force, because this subsection was not used by the Judicial Committee to reach its conclusion. We have Rules of Business framed under Article 81 and corresponding to section 49 of the Government of India Act Article 80 of the Constitution. Therefore, the above observations are sufficient to meet the contention raised on behalf of the detenus and to hold that individual judgment of the Governor is not necessary unless the Rules of Business so require.

21. The cases, which have to be referred to the Governor for his orders before their issue, are stated in rule 11(l) of the Rules of Business, which reads as follows: "11(1).-No order shall be issued without the approval of the Governor in:

(a) cases involving important policy or departure from important policy; (b) cases involving a conflict between the Governor and the Assembly; (c) cases enumerated in Part A of Schedule III; and (c) cases relating to appointments and promotions to posts specified in Schedule IV." Other cases not falling within the above categories can be disposed of by the Secretary of the Department concerned under rule 4(2) as the official head and as being responsible for its efficient administration and discipline and the proper conduct of business assigned to the Department. Preventive detention is assigned to the Home Department. Therefore, the Home Secretary is competent to dispose off cases of preventive detention, unless the Rules require a reference to the Governor. As rule 11(2-a) provides that all cases of detention by Government under sub section (1) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, in which orders of the Govern ment are required shall be submitted to the Governor for his orders, it is argued that reference of the cases of these detenus to the Governor was necessary before the order could be issued, even if the Rules of Business have appli cation. The contention is misconceived, because rule 11(2-a) applies in particular to orders of detention under the West Pakistan Maintenance of Public Order Ordinance 1960 and not to other cases of detention. It is also urged that as such matters as place of detention or change of place of detention were referred to the Governor for his information, it means that it was necessary to refer their cases to the Governor for his orders. No such presumption can, however, be drawn and if the question of the place of detention was referred to the Governor for his information, the Rules are not affected, and under the Rules reference of cases under rule 32(1)(b) to the Governor for his personal orders does not appear to be necessary.

22. Our attention was also invited to rules 11(l)(a) and 14 of the Rules of Business. Under rule 11(1)(a) no order shall be issued without the approval of the Governor in cases involving important policy or departure from important policy. As the detentions involved were those of the members of the opposition parties, it was argued that the detention involved important policy and, therefore, the approval of the Governor was necessary. We do not think that rule 11(1)(a) is attracted to the cases, because there was no question of laying down or departure from any important policy. The question was purely one of exercise of power conferred on the Provincial Government and exercised in the normal course of executive business of the Government. Rule 14 requires that the Home Secretary shall in particular submit to the Governor through the Chief Secretary all cases likely to have major political repercussions, but we have not been shown that these cases were likely to have major political repercussions and in any event it is the Home Secretary who has to decide what cases to submit to the Governor as likely to have such repercussions.

23. The argument that the Rules of Business of the Provincial Government are not attracted to the exercise of power and performance of functions under the Defence of Pakistan Rules is based on the hypothesis that the power exercisable under the rules is that of the Central Government to be exercised as executive business of the Central Government. We were referred to Entry No. 34 of the Third Schedule to the Constitution, namely, preventive detention for reasons connected with the defence, external affairs or security of Pakistan and persons subjected to such detention and it was contended that this being the exclusive legislative sphere of the Central Legislature and not being within the competency of the Provincial Legislature the executive authority of the Province could not extend to the performance of duties and exercise of powers under the Rules. Our attention in particular was drawn to Articles 135(6) and 136(2) of the Constitution. Where the exercise of the executive business of the Central Government is involved, it is urged that the question of exercise of executive authority of the Province does not arise. We have already referred to Article 143(1) of the Constitution enabling the President to entrust conditionally or unconditionally to the Provincial Government or any officer or authority of that Government in relation to any matter to which the executive authority of the Republic extends. Article 80 of the Constitution also makes the exercise of the executive authority of a Province subject to the directions of the President. Article 143(2) also enables an act of the Central Legislature notwithstanding that it relates to a matter with respect to which the Provincial Legislature has no power to make laws, to confer powers and impose duties or authorise the conferment of powers and the imposition of the duties upon a Provincial Government or officers or authorities of the Provincial Government. Therefore, if the Central Legislature or the President entrusts the performance of the duties or the discharge of functions to the Provincial Government though may be originally exercisable by the executive authority of the center, they become by conferment on the Provincial Government the executive authority of the Province, dischargeable as such. When the powers and duties have been so conferred on the Provincial Government the argument is nod open, that the Provincial Government is not authorised to exercise and discharge them, in the normal course of its executive business. A similar argument, as has been raised before us, was raised before the Judicial Committee of the Privy Council in Emperor v. Sibnath Banerji and others and was repelled or the following reasons:- "Counsel for the respondents submitted a contention which the majority of the learned Judges in the Federal Court had accepted, based on subsection (2) of section 49 of the Act of 1935, to the effect that the subsection limited the operation of the section to matters with respect to which the Provincial Legislature has power to make laws and that the subject matter of the Defence of India was not within those powers. The learned Judges, in confirmation of this view, referred to subsection (2) of section 124, which provides that- An act of the Federal Legislature may, notwithstanding that it relates to a matter with respect to which the Provincial Legislature has no power to make laws, confer powers and impose duties or authorise the conferring of powers and the position of the duties upon a Province or officers and authorise thereof. Their Lordships are unable to agree with such a narrow reading of these provisions, which would involve the necessity of the Federal Legislature making provisions in each case for the executive machinery to carry out the powers and duties so imposed, instead of using the existing Provincial machinery. This view is supported by subsection (4) of section 124, which provides inter alia that where an Act of the Federal Legislature, by virtue of subsection (2) confers powers and imposes duties upon a Province or officers and authorities thereof in relation to a matter with respect to which a Provincial Legislature has no power to make laws, the Federation is to pay to the Province such sum as is agreed, or determined by arbitration, in respect of any extra costs of administration incurred by the Province in connection with the exercise of those powers and duties. This appears to contemplate extra costs incurred by the existing machinery of Provincial Administration. Their Lordships construe subsection (2) of section 49 as providing an extensible limit and not a maximum limit and the provisions of subsection, (2) of section 124 as affording a means of such extension." We have in place of subsections (2) and (4) of section 124 of the Government of India Act sub-articles (2) and (3) of Article 143 of the Constitution in similar terms and in place of subsection (2) of section 49 of the Government of India Act sub-Article (1) of Article 136 of the Constitution. Therefore, the contention raised on behalf of the detenus has no substance.

24. To sum up, therefore, an order as to detention under rule 32(1)(6) could be made by Mr. Niaz Ahmad, Home Secretary, as the official head of the Department responsible for the proper conduct of business assigned to the Department under rule 3 At entry No. 26 of the list of business assigned to the Home IT Department is preventive detention and public order is at entry No.

1. The matters relating to preventive detention under rule. 32(1)(6) can be disposed of by the Secretary of the Home Department, since their reference to the Governor for his orders before their issue is not necessary under rule 11(1).

25. It was also argued before us that even if it be assumed that the power conferred on the Provincial Government under rule 32(A I R 1948 All. 321)(6), could be exercised in the normal course of its executive business, the Provincial Government by the act of delegating its powers to the Deputy Commissioners divested itself of all the powers and was left with no power to make an order of detention. Support for this was sought from the observa tion of the Privy Council in Emperor v. Sibnath Banerii and others that: "Their Lordships would also add on this contention that subsection (5) of section 2 provides a means of delegation in the strict sense of the words, namely, a transfer of the power or duty to the officer or authority defined in the subsection with a corresponding divestiture of the Governor of any responsibility in the matter, whereas under section 49(L) of the Act of 1935 the Governor remains responsible for the action of his subordinates taken in his name." We do not interpret the above observations as meaning that the Provincial Government was denuded of its powers. Their Lordships in 'using their language were merely distinguishing between the position where the power of the Governor would be exercised by an officer to whom delegation has been made under subsection (5) of section 2 of the Defence of India Act from a case where the power of the Governor would be exercised by an officer subordinate to him under section 49(A I R 1948 All. 321) of the Government of India Act, 1935, with the emphasis on the word `responsibility'. This distinction was brought out by Wanchoo, J., in Daya Shankar Malaviya v. Emperor (A I R 1948 All. 321) as under: "I see nothing in the scheme of the Act which could imply that the Provincial Government should divest itself of any power Under the Act, before it could confer it on District Magistrate. The argument of the learned counsel was based on the complete misunderstanding of the Act, because their Lordships when they said that there was divestiture of the responsibility of the Governor on delegation were clearly distinguishing the position where the power of the Governor would be exercised by on officer to whom the delegation had been made under section 2 subsection (5), Defence of India Act, from a case where the power of the Governor would be exercised by an officer subordinate to him under section 49(A I R 1948 All. 321) Government of India Act 1935. The emphasis here was on the word `responsibility'. In one case where the power was exercised by an officer to whom it had been delegated the responsibility would be of that officer to be satisfied, while in the other case though the power may be exercised by a subordinate officer under section 49(A I R 1948 All. 321) Government of India Act, 1935, the responsibility would still be of the Governor. In one case, therefore, he would be divested of the responsibility, while in the other case his responsibility would still be there. But this observation of their Lordships of the Privy Council does not mean that by delegating his power to a subordinate officer the Governor would be divesting himself of the power to pass orders."

26. It is not possible to accept the contention that a delegate by the act of delegation denudes himself of the powers, which he has delegated to another. In Huth v. Clarks ((1890) 25 Q B D 391), Lord Coleridge, C. J., said: "But delegation does not imply a denudation of power in the authority." Wills, J., also concurred and stated that: "Delegation, as the word is generally used, does not imply a i parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. 'l tie best illustration of the use of the word is afforded by the maxim, delegatus non potest delegate, as to the meaning of which it is significant that it is dealt with in Brooms's Legal Maxims under the law of contracts: it is never used by the legal writers, so far as I am aware, as implying that the S. A. delegating person parts with his power in such a manner as to Mahmood, denude himself of- his rights. If it is correct to use the word in the way in which it is used in the maxim, as generally understood, the word `delegate' means little more than an agent. The notion, therefore, that the use of the word `delegate' implies that the executive committee parted with their own authority is misconceived." In Abdullah v. The Crown (l), it was also held that delegation of powers does not amount to renunciation or abdication of powers on the part of the delegator. Where by delegation the powers are transferred to a person to do things, which he could not otherwise do, in the absence of delegation. It would not mean that the delegator is thereby shorn of all his powers. This was a case in which the Central Government had delegated its powers under section 3 of the Security of Pakistan Act, 1952 to the Chief Commissioner, Karachi, who made an externment order against Abdullah petitioner, which was suspended by the Karachi Bench on the preliminary hearing of his petition under section 491, Cr. P. C. The petitioner went back to Karachi from where he had been externed. Thereupon, the Central Government made an order under section 3 of the same Act ordering the detention of the petitioner in Karachi for a period of one year. The contention on behalf of the petitioner that the Central Government having delegated its powers under section 3 of the Act, had denuded itself of the powers, which could no longer be exercised, was repelled. Therefore, by the act of delegation neither the Central Government nor the Provincial Government denuded itself of the powers under rule 32(1)(b). An interpretation to the contrary would be opposed to the clear intent, and purpose of the provisions in the Defence of Pakistan Ordinance and the Defence of Pakistan Rules.

27. The argument was also raised half-heartedly that as rule 32(P L D 1955 Sind 384)(b) contains no provision for extension of detention, neither an order of 'extension nor a further or successive orders of detention can be made. There is of course no provision for extension in the Rules and extension of detention is not strictly permitted, but we see no obstacle in the making of a fresh order of detention on the necessary conditions being satisfied. There is no force in the contention that in law no further order of detention can be made, because under section 14 of the General Clauses Act "where by any Central Act any power is conferred, then unless a different intention appears, that power may be W exercised from time to time as occasion arises." By reason of this section it is open to the authority to exercise the power under rule 32(P L D 1955 Sind 384)(b) from time to time, if the necessary conditions for the exercise of the power exist.

28. Mian Manzar Bashir, Kh.Siddiq-ul-Hassan, Ch. Kalim-ud-Din, Sh. Muhammad Ismail, Kh. Muhammad Rafique And Sikandar Hayat were already under detention when the Orders of detention, under which they are being detained at present, were made. It is admitted in their cases that while in jail they did not indulge in any prejudicial active It is therefore, argued that there was no occasion for Mr. s. Mustafa Zaidi to make the order of detention on the 22nd of March 1966 against Sikandar Hayat and for Mr. Niaz Ahmad to make the order of detention on the 17th of March 1966 against Mian Manzar Bashir, Kh. Siddiq-ul-Hassan, Ch. Kalim-ud-Din and Sh. Muhammad Ismail and against Kh. Muhammad Rafique on the 21st of March 1966. They being under arrest and detention and not having freedom of action, there could be no satisfaction in their case that it was necessary to detain them to prevent them from acting in a prejudicial manner. We were referred to Rameshwar Shaw v. District Magistrate, Burdwan and another (1), in which it was observed "It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration, which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under section 3(1)(a) (of the Preventive Detention Act, 1950) and this basis is already absent in the case of the petitioner." The facts of this case were that the detenu was arrested on January 25, 1963 and was in custody on February 15, 1963, when the order of detention was served on him. The learned Judges of the Indian Supreme Court ordered his release on the ground that the satisfaction that it was necessary to detain him for the Purpose of preventing him from acting in a prejudicial manner, which was the basis of the order of detention under section 3(A I R 1964 S C 334)(a), was clearly absent in his case. The learned Judges, in the same case laid down that, as an abstract proposition of law, there was no doubt that section 3(A I R 1964 S C 334)(a) did not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail. They were also satisfied that the question, as to whether an order of detention can be passed against a person, who is in detention or in jail, is to be determined in the circumstances of each case. Therefore, their Lordships cannot be understood to have laid down that an order of detention can in no case be made against a person, who is under detention or is in jail custody. They stressed that the two logical processes, to be followed by the authority in taking action under section 3(1)(a) are:-The first stage in the process is to examine the material adduced against a person to show either from his conduct or antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, the authority then has to consider whether it is likely that the said person would act in a prejudicial manner in the future, if he is not prevented from doing so by an order of detention and if this question is answered against the person, then the detention order can be properly made. If these are the two conditions requisite for an order of detention and they are satisfied, we do not see what further limitation there is on the power of the authority to make an order of detention. It cannot be logically asserted that if a person has been taken into custody, the danger, apprehension, or likelihood of his acting in a prejudicial manner on being released disappears and X therefore, by his merely being under detention or in jail custody, no order of detention can be made. That this is not what their Lordships intended to say is clear from their following observations:- "On the other hand, if a person who is undergoing imprisonment for a very short period, say for a month or two or so and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail and if the authority is bona fade satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary."

29. The Federal Court of India in Basanta Chandra Ghoshe v. Emperor (AIR 1945 F C 18) held in clear terms that there was no force in the contention that no order of detention could be passed against a person who is already under detention. S. A. Rahman, J., in Syed Sibte Hassan v. The Crown (P L D 1954 Lah. 142), also repelled a similar contention observing that it would be open to the Government to consider the past antecedents of the petitioner to decide whether he was, in their opinion, a person likely to act in a manner prejudicial to the safety or security of Pakistan and this being in effect what they seemed to have done, the Court could not substitute its own opinion for that of the Government.

30. Rule 32 (AIR 1945 F C 18)(b) is intended to prevent the commission of prejudicial acts and activities. The power to detain is to be exercised when the Government or authority is satisfied that a person is likely to act in a prejudicial manner. Therefore, in all cases where a person is likely to act prejudicially, a detention order can be made, so long as the officer is satisfied that he is likely to so act. If this be the case, why is it not possible for the detaining authority to make an order of detention if it feels that the person, if released, is likely to act prejudicially? Of course, if a person has been imprisoned for a long term there is no justification for making an order of detention, for he will remain in jail and there will be no possibility of his committing a prejudicial act, but if a person is about to be released can it be said that by his merely being under detention or in jail custody the likelihood of his acting in a prejudicial manner disappears? This is certainly not a legitimate conclusion to draw from his being under detention or being in jail for a short term. The position may, however, be different where a person has been in detention for years, because in that case locus penitentiae may be afforded to him and it may be that his long detention may have had the salutary effect of curbing his tendency to commit prejudicial acts. Where, however, a person has been in detention for a short term and the period of detention is expiring, it is in our view open to the competent authority to consider and decide whether his further detention is necessary to prevent him from acting in a prejudicial manner: For arriving at a decision that it is necessary to detain him, the authority is expected to apply its mind carefully to his antecedent history, past conduct and evidence or indication if any of his future ` activities, which he is likely to indulge in and all the attending circumstances, so as to be satisfied that it is necessary to detain him further. If on an honest and careful application of his mind he arrives at the conclusion that it is necessary to detain him with a view to prevent him from' acting in a prejudicial manner then the rule confers on him the power of ordering his detention. The reason is that the deciding factor is his satisfaction, which is subjective and is not justice able It is not open to the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by the application of an objective test nor is it open to the detenu to contend that the grounds do not necessarily or reasonably lead to the conclusion that if he is not detained he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law and the adequacy of the material on which the satisfaction purports to rest also cannot be examined in a Court of law. This is the true effect of the satisfaction being subjective. This was so held by the learned Judges of the Indian Supreme Court in conformity with the principle propounded in Riverside v. Sir John Anderson and another ((1942) A C 206). In Muhammad Hayat v. Crown (P L D 1951 F C 15), the same view has been taken. If, therefore, the satisfaction is subjective and its reasonableness cannot be examined in a Court of law, then how is it possible for the Court to say that an authority, who has passed an order of detention in case of a person already in detention and who is about to be released, he could not have been satisfied that he was likely to act in a prejudicial manner? As the person on being released would have the freedom of action, an order of detention could be made, because the order is made visualising that he would have his freedom of action, so that even if the making of an order of detention postulates freedom of action the condition is not unsatisfied. We are, therefore, unable to agree, with respect, that no order of detention can be made against a person, who is already under detention.

31. An order under rule 32(1)(b) can be made on being satisfied i e., on the subjective satisfaction of the Government or the authority. This rule, i t is claimed, contravenes clause (x) of subsection (2) of section 3 of the Defence of Pakistan Ordinance, which envisages objective satisfaction in providing for apprehension and detention on "grounds appearing to such authority to be reasonable." The word in italics, it is said. import objective satisfaction, for wherever the word "reasonable" is used the matter is justiceable. As the decision does not rest on the subjective satisfaction, the Courts can examine the reasonableness of the action. The contention has no merit as the words in clause (x) are not that the authority must be reasonably satisfied. In fact, clause (x) empowers the framing of rules to apprehend or detain if the authority "suspects on grounds appearing to such authority to be reasonable. Therefore, the empasis is on the word "suspects" and the grounds are to appear reasonable to the authority. The reasonableness of the grounds is personal to the authority and is not objective so that the Court can examine their reasonable ness. It is the authority who has to consider the grounds to be reasonable. The difficulty in the way of the Courts examining the mental processes of the detaining authority is obvious. The scrutiny by the Courts is rendered all the more difficult by the fact that the reasons for the satisfaction of the authority can be withheld from the Courts. Therefore, these words by no means imply that the authority is to be reasonably satisfied. In Liversidge v. Anderson and another the words used in the Regulation were "if the Secretary of State has reasonable cause to believe etc." The question was examined whether these words import an external fact as to reasonable cause or belief and one capable of being challenged in a Court of law or whether the words in the context in which they were found, pointed simply to the belief of the Secretary of State founded on his view of there being reasonable cause for the belief, which he entertains. The answer of the House of Lords was that the words cannot be read as meaning that the existence of reasonable cause is one, which may be discussed in a Court, which has not the power of eliciting the facts, which in the opinion of the Secretary amounts to reasonable cause. The, question was one of the personal belief of the Secretary of State. Lord Macmillan stated that the words "if the Secretary of State has reasonable cause to believe" at once introduce a personal and not an impersonal requirement. Lord Wright was of the view that the. Only relevant question was whether the Secretary had a belief, which to his mind was reasonable and his belief is something personal to himself. The words "reasonable cause" can only be material in so far as it is an element to his mind, which determines his own belief. The cause of belief is part of the content of his mind. Lord Roamer stated that not only is the belief to be his, but the estimate of the reasonableness of the causes that have induced such belief is also to be his and his alone. Therefore, we cannot hold that the words "on grounds appearing to such authority to be reasonable", even if they are to be read with clauses other than `of being of hostile origin', imply reasonable cause or reasonable satisfaction, i.e., the application of an objec tive standard. These words also imply the subjective satisfaction of the detaining authority and therefore, if rule 32(1)(6) leaves it to the satisfaction of the Central Government, the rule is not in excess of the empowering section 3 of the Defence of Pakistan Ordinance. Besides subsection (2) of section 3, as it is enacted `without prejudice to the generality of the powers conferred by subsection (1)', does not restrict the generality of the powers in subsection (1), and subsection (1) of section 3 does not entail the making of such a rule requiring an objective standard of reasonable satisfaction. Their Lordships of the Privy Council in Emperor v. Sibnath Banerji and others have clearly stated that: "In the opinion of their Lordships the function of sub section (2) is merely an illustrative one; the rule-making power is conferred by subsection (1) and the`rules' which are referred to in the opening sentence of subsection (2) are the rules which are authorised by and made under subsection (1); the provisions of subsection (2) are not restrictive of subsection (1) as indeed is expressly stated by the words `without prejudice to the generality of the powers conferred by subsection (1)'. There can be no doubt as the learned Judge himself appears to have thought that the general language of sub section (1) amply justifies the terms of rule 26 and avoids any of the criticism which the learned Judge expressed in relation to subsection (2)." Their Lordships of the Privy Council held, reversing the decision of the Federal Court, that rule 26 was made in conformity with the powers conferred by subsections (1) and (2) of the Defence of India Act, so that rule 32(1)(6) is not enacted in excess of the power conferred on the Central Government in subsections (1) and (2) of section 3 of the Defence of Pakistan Ordinance.

32. Nor is there any force in the contention that rule 32(1)(6) is unreasonable, arbitrary, harsh and unjust on the ground that it enables the making of an order of detention for an unlimited period. The Ordinance and the Rules, it should be remembered, have been enacted during an emergency and to deal with emergent conditions. Therefore, stringency in a preventive measure is to be expected, but it is not reasonable to assume that the detention ordered by rule 32(1)(6) is to be of indefinite duration, for the detention is intended to be for the purpose of preventing a person from acting in a prejudicial manner and on a reasonable interpretation the detention can last as long as the apprehension exists. How long the detention is to last must depend upon how long it is necessary to detain a person to prevent him from acting in a prejudicial manner, N umm though the detention cannot be ever-lasting or forever It is not open to this Court to read into the statutory rule in view of govt. of its clarity any period of limitation as it would be legislating, which is not the function of the Courts.

33. We were addressed at length to show that the orders of detention made in the case of the detenus contravene section 15 of the Defence of Pakistan Ordinance, as action under clause (f) of rule 32(A I R 1946 Bom. 216), it was contended, of imposing such restrictions in respect of communication with other persons or in respect of activities in relation to the dissemination of news or propagation of information s, could have met the exigencies of the situation and would have been consistent with the provisions of section 15, which provides that any authority or a person acting in pursuance of the Ordinance shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and Defence of Pakistan. The detenus, it is claimed, were only interested in the propagation of their views against the acceptance of the Tashkent Declaration and of the conditions of the cease fire and if these views were calculated to endanger public safety or maintenance of public order, an order under clanse (f) of rule 32(A I R 1946 Bom. 216) would have ensured the maintenance of public order. Section 15 of the Defence of India Act, which was similarly worded, was held in Tan Bug Taim and others v. Collector of Bombay (A I R 1946 Bom. 216), to be mandatory and not merely directory or recommendatory and in Vimlabai Deshpande w/o Purshottam Yeshwant Deshpande v. Emperor (A I R 1945 Nag. 8), as being express and strictly fundamental in terms; but the difficulty in treating it as such becomes apparent, when it is applied to a case of detention, where the order is to be made in the subjective satisfaction of the authority, which is not justiceable. It is the authority who has to consider and decide under what particular rule and what an action would meet the requirements of the situation and the Court cannot substitute its own opinion for that of the detaining authority. The learned Judges of the Full Bench in the Lahore Electric Supply Co. Ltd. v. The Province of Punjab, (A I R 1943 Lah. 41), correctly pointed out (in a case of acquisition by the Government of the Lahore Electric Supply Company) that section 15 was not a statutory limitation of the powers conferred by the Act, though it could be used as a guide in considering whether the powers invoked by the Government were exercised bona fide or not. It could, therefore, be considered whether the action of the Government tested by the principle laid down in section 15 went far beyond anything, which could be considered consonant with the purpose of ensuring public safety, interest and Defence of India. The Court cannot apply any objective standard by reason of section

15. It can only examine whether the detaining authority could have been satisfied that the particular action was necessary or that the power was exercised mala fide in ordering detention in a case under rule 32 (A I R 1946 Bom. 216)(b). In these cases, it is admitted that in spite of a ban on the assembly of five or more persons in any street, road or public place imposed under section 144, Cr. P. C. a meeting was held or attempted to be held by Mian Manzar Bashir and his companions on the 21st of January 1966 and that students' processions were taken out, in which Mr. Sikandar Hayat is alleged to have been involved. Consequently, the authority could have thought as has been stated, that action under clause (f) of rule 32(1) would have been as ineffective, as the order under section 144, Cr. P. C. and therefore, the taking of action under rule 32(1)(b) of detention cannot be held to be so much in excess of or far beyond what could have been ordered under the Rules against these persons, consonant with the requirements of the situation. The matter, 9 essentially rested in the satisfaction of the detaining authority whether an order under clause (f) or clause (b) (which was divided upon) was necessary to prevent these persons from acting in a prejudicial manner.

34. We were asked on behalf of the detenus to send for the instructions of the Central Government of the 16th of November 1965, alleged to govern the arrest and detention of persons under the Defence of Pakistan Rules, with a view to show that their detention, being contrary to the directions issued by the Central Government, was illegal and improper. We ordered the production of the document, but on behalf of the State privilege was claimed for its production under section 123 of the Evidence Act. The claim of privilege was accompanied by an affidavit of the Secretary in the Home Department of Government of West Pakistan, asserting that the secret letter of the Central Government was an unpublished official record relating to the affairs of the State and that having examined the latter, he was of the opinion that its production in the Court would be injurious to the public interest. The claim of privilege and the affidavit were in proper form. Having heard counsel on either side and examined the authorities cited at the Bar, we came to the conclusion that the principle was correctly stated (we say so 'F with respect) by Muhammad Yaqub Ali, J., in Ghulam Ali v. (F Abdul Hafiz (P L D 1962 Lah. 765), that when an objection is validly taken to the production of a document on the ground that this would be injurious to the public safety, it is conclusive and that if objection is taken in proper form by a Head of Department under section 123 of the Evidence Act to the production of an evidence on the ground that it relates to the affairs of the State, it is conclusive. In view of this, we upheld the claim of privilege, but Kh. Muhammad Rafique has produced, what purports to be a copy of the secret instructions of the Central Government, of which paragraph 2 provides for review of cases of the detenus and for their continued detention or otherwise, with paragraph 4 being an overriding provision, authorising the Provincial Government to decide the question of detention, in accordance with the seriousness of the cases, keeping in view the need of national security. We cannot say whether this is a correct copy of the Central Government's letter, but, even if it were so, as section 123 of the Evidence Act enacts that no one shall be permitted to give any evidence, derived from unpublished official record relating to the affairs of the State, this document of cannot be utilised in any manner. It does not in any event support the detenus in their contention that their detention - contravenes the instructions of the Central Government and their s. A. detention was opposed to the condition of delegation in Mahmood, Notification No. S. R. O. 111(R)/65 that the powers and duties of the Central Government under the Defence of Pakistan Rules shall be exercised and discharged by the Provincial Government in the circumstances and conditions specified by the Central Government.

35. The detenus also desired us to send for the report of Mr. Ghulam Husain D. S. P., which he had sent, to the S. S. P., Lahore about the incident of the 21st January 1966, but as privilege in proper form was claimed in respect of this document also, we upheld the claim of privilege for the above reasons. In Liversidge v. Sir John Anderson and another Viscount Maugham also observed that it was beyond dispute that the Secretary of State can decline to disclose the information on which he had acted on the ground that to do so would be contrary to the public interest and that this privilege of the Crown cannot be disputed. The claim of privilege had, therefore, to be upheld.

36. To support the plea that action of detention was taken mala fide against the detenus we were referred to the cases of Mian Manzar Bashir and Sikandar Hayat. In the case of Mian Manzar Bashir, a Board of three Doctors, who had examined him on the 31st of May 1966, had recommended that he should be sent to a well _ equipped hospital for investigation and treatment, but no action was taken on it and it was under our order of 1st June 1966 that he was sent to the Mayo Hospital. There was no real lapse in his case. In the case of Sikandar Hayat, it was pointed out that though he was arrested along with many other students in connection with the processions and disturbances of the 13th and 14th of January 1966, he was not relieved of the charges and released, although cases against all other students were withdrawn. He was also medically examined and on medical advice was sent to the Mayo Hospital, but, it was pointed out, that a peremptory order was made by Mr. Niaz Ahmad on the same evening to send him to the Mental Hospital, contrary to medical advice and without any justification whatever. Mr. Riaz-ul-Haq and Mr. Niaz Ahmad were questioned about the orders of his removal from the Mayo Hospital to the Mental Hospital. Where as Mr. Riaz ul-Haq stated that he was removed from the Mayo Hospital, as it was a public hospital, where the patients were likely to be bothered by the visitors and was sent to the Mental Hospital, where specialised treatment was available for mental cases, so that he suggested that he was a mental case. Mr. Niaz Ahmad deposed that he was, ordered to be sent to the Mental Hospital, because the Superintendent of District Jail bad suggested on telephone that he be sent there, as he was a mental case and was creating trouble in the District Jail. He acted on his advice in preference to the recommendation of the doctors, because he was reported by the Superintendent Jail to be violent and because he thought his stay in the Mayo Hospital might create a law and order problem. But it was admitted by Mr. Niaz Ahmad that he had no report in writing from the Superintendent District Jail or the Mayo Hospital that he was a mental case or was violent. He conceded that the Superintendent of the District Jail was not a doctor. We are, therefore, greatly surprised that Mr. Niaz Ahmad should have ordered the removal of Sikandar Hayat from the Mayo Hospital on the same evening on which he was sent there. We are not satisfied with the explanation that his stay in the Mayo Hospital might have created a law and order problem. To say the least, the sending of a young man to the Mental Hospital was most ill-advised, especially, when he had been advised to be sent to the Mayo Hospital for treatment under expert medical advice. We are more than surprised that the opinion of the Superintendent District Jail was preferred to the expert opinion of the doctors. We regret to find such disregard for the health and welfare of a detenu, which is the responsibility of the Provincial Government. Sikandar Hayat has also complained that he was badly maltreated in the Mental Hospital. While we have no evidence of his being man-handled in the Mental Hospital he appeared to need assistance in moving about. He complained that he had been lamed for life and though we are not aware of the cause of injury or damage to his leg, we feel that it is necessary that an inquiry be held into the complaint that he has made before us. It is also clear that initially the detenus were placed in class III erroneously and this was bad enough, but even on realisation of the mistake by Mr. Zafar Ali Khan, it was not rectified. These detenus were naturally, therefore, detained in cells in un favourable conditions and were not given privileges, to which they were entitled, if they had been correctly classified, of which their complaint is genuine and legitimate. (The Provincial Government put Sikandar Hayat in class I on 15-3-66 and the others on 23-2-66). We have anxiously considered, in view of these facts, whether we can treat the detention of all these detenus as mala fide, but find that there is no allegation of personal malice or hostility or that action of detention by the detaining authorities was guided by 1f, malice. We cannot, therefore, hold that the order of detention was made mala fide, i.e., in bad. Faith.

37. The main contention raised in the context of mala fide is that the detention of the detenus was ordered as they belong to the opposition parties and the object in ordering their detention was, to stifle the voice of the opposition parties from propagating the views on matters of national interest and from advocating the restoration of democracy in the country by building up public opinion in support of it. Many would certainly differ with the oppositions point of view, which they wished to advocate that the democracy does not exist in the country, or that the system of Government is not democratic and that the Tashkent Declaration, and the conditions on which cease-fire was accepted are opposed to the interests of the nation. Whereas the learned counsel for the detenus claim that the detentions have been ordered in bad faith for an ulterior purpose, the learned Advocate-General has argued that their detention was necessary, as the detaining authorities were satisfied, as the orders show, that it was necessary to detain them to prevent them from acting in a manner prejudicial to the maintenance of govt. of public order and peaceful conditions in Lahore and elsewhere in west Pak. the Province. It appears that the detentions have connections with the public meetings, which the detenus tried to hold, held or intended to hold. The object of these meetings, as stated by Mr. Anwar, was to criticise the Tashkent Declaration, he cease fire and the system of Government in the country, and to show to the public that the Tashkent Declaration was opposed to the national interest, and that in signing it, the people of Kashmir had been let down. The opposition parties also intended to hold a Democracy Week from the 23rd of March 1966 to muster public opinion and support for the restoration of democracy. It may be that the opposition parties considered it a legitimate activity on their part to express their views on the above matters and they may have believed in the righteousness of their cause, or they might be desiring to obtain political advantage out of it, but the detaining authority is not as interested in the nature of their intentions as with the effect which their activities are likely to have. The detaining authority had to decide whether it was necessary for the purpose of maintaining public peace and tranquillity to detain them. If the expression of certain opinions is considered likely by the authority to so excite the people and the public as to endanger public peace and tranquillity and to lead to disturbances, the authority empowered to make an order would be justified in making an order of their detention, provided it is so satisfied honestly and in good faith and if it is so satisfied, the action is bona fide, and the Court cannot interfere. There were not lacking the conditions for the apprehension of breach of public peace to be entertained by the detaining authority. The effect of invasion of Pakistan by India was to uproot lakhs of residents of Pakistan from their hearths and homes and to create excitement and unsettled conditions. The announcement of Tashkent Declaration on the 11th of January, 1966 was followed by serious demonstrations and disturbances by the students on the 13th and 14th of January 1966. These disturbances were actuated either by criticism of or by dissatisfaction with the Tashkent Declaration, which may have been spontaneous or been induced by interested parties. It was in this background that order of detention of Sikandar Hayat was made. He is stated to have been concerned in the demonstrations and he was even arrested therein. If all other students were released and Sikandar Hayat was not prosecuted, it does not necessarily follow that his detention is punitive, i.e., by way of punishment for the offence or offences committed by him in connection with the disturbances. The order of his detention shows that he has been detained to prevent him from acting in a prejudicial manner and a presumption attaches to it. There are no ostensible grounds for taking action against him mala fide. On the 21st of January 1966 Mian Manzar Bashir, Ch. Kalim-ud-Din and his companions endeavored to hold a public meeting in spite of a ban under section 144, Cr. P. C. with a view to criticise the Tashkent Declaration and the cease fire. This public meeting was held in spite of a ban and refusal of permission by the Deputy Commissioner to its holding. Therefore, their determination is obvious and it cannot be said that in the state of excitement that prevailed in those days, the action was taken against them mala fide or that the authority could not have been satisfied. The order of detention against the other detenus appears also to have been made in the same context. As already mentioned, the orders of detention on their face showed that they were made to prevent the detenus from disturbing public peace and order. There are no allegations of personal malice, and it is not made out that the orders of detention were made mala fide. The onus of proving that the orders of detention could not be made, or were made mala fide in view of the presumption as to their regularity arising under section 114(e) of the Evidence Act, lay on the detenus. This onus has not been discharged by them We were referred to the case of Husain Ali Chagla v. The District Magistrate Lahore and another (P L D 1954 Lah. 142), but the facts of this case are very peculiar. The order of detention was a mechanical reproduction of clause (P L D 1954 Lah. 142) of rule 32 in the case of either of the two detenus, and the learned Judges rightly held in the circumstances of the case that the conclusion was inevitable that the purported satisfaction of the detaining authority was fictitious and colourable and it had not applied its mind with the care or circumspection, commensurate with the gravity of cases affecting the liberty of the two citizens. The probabilities of the case threw doubt on the genuineness of the District Magistrate's satisfaction, which was found to be slovenly and sham. If the detaining authority applies its mind with care and diligence to the facts of a case, as it is expected to, with a full realisation of the gravity of consequences, which his order is bound to entail, namely, the deprivation of the liberty of a subject, without there being any trial or a conviction on evidence, it should be possible for the authority to state with particularity the grounds on which detention is ordered. If, therefore, the whole of sub-rule (P L D 1966 Lah. 309) of rule 32 is embodied in an order of detention, the Court is entitled to draw an inference, as it did in the above case, that the satisfaction of the detaining authority was not real, but was mechanical, colourable and sham. This is not so in the case of orders of Mr. Niaz Ahmad and Mr. Zafar Ali Khan, under which the detenus are now being detained.

38. Though we have expressed the view that it is possible for the detaining authority to pass an order of detention against a person, who is already under detention, we would like to say that a fresh order of detention is not to be made mechanically or automatically and that the authority must be honestly satisfied, on full realisation of its responsibility in depriving a citizen of his liberty, whether his further detention is necessary purely for the purpose of preventing him from acting in a prejudicial manner. We would like to refer to the observations of Muhammad Munir, J., in Inayatullah Khan Mashraqi v. The Crown (P L D 1952 Lah.331), that unless a man is known incorrigible or the danger apprehended is so 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 Nasim locus poenitentiae. S. A. Rahman, J., in Syed Sibte Hasan v. The Crown (P L D 1954 Lah. 142), also urged the affording of locus poenitentiae to govt. of the detenu by releasing him and putting his professions of loyalty West Pak. to the State to the test of actual experience. There is a need to afford to the detenue a locus poenitentiae, because the detention M s. A. may have had the salutary effect of curbing his inclinations to Mahmood, indulge in prejudicial activities.

39. On behalf of Ch. Kalim-ud-Din it has been urged that his detention is invalid as the order of detention does not relate to him, since he is son of Ch. Muhammad Umar Daraz and the parentage of Ch. Kalirn-ud-Din recorded in the order of detention is Ch. Muhammad Umar. From his enrolment certificate as an Advocate it is clear that his father's name is Ch. Muhammad Umar Daraz. Therefore, his father's name is not fully recorded in the detention order. It is also contended that he is resident of Haveli Mian Khan and not of Rang Mahal as recorded in the order. We have no doubt, however, that the order of detestation relates to him, because he was taken, from the grounds of Hazuri Bagh on the 21st of January 1966, when the order of detention by Mr. Zafar Ali Khan was made and served on him at Police Station Kotwali. He was- under detention ever since under that order and Mr. Niaz Ahmad, Home Secretary, made his order of detention on a consideration of the question whether his detention and that of his companions was to be extended or not. The particulars of the activities stated in the order, which led to his detention, connect him with the holding of a meeting outside the Badshahi Mosque on the 21st of January 1966 and it is not denied that he was there in that connection. Though Mr. Niaz Ahmad stated in his affidavit that Ch. Kalim-ud-Din, whose detention he ordered, was Ex-Mayor of Lahore, he admitted that it was not mentioned on his personal knowledge, but on the information supplied to him by his office. Therefore N the assertion is of no assistance in fixing his identity by itself, n' but we can hold, all the same, that the order of detention relates to him.

40. The order of detention by Mr. Zafar Ali Khan in the case of Mian Manzar Bashir and his companions was also assailed as being mechanical reproduction of most of sub-rule (P L D 1954 Lah. 142) of rule 32 and because in the grounds of his detention are mentioned security and Defence of Pakistan and Pakistan's relations with any other power, which it is alleged, could have no relationship with their activities, either alleged, or reported to Mr. Zafar Ali Khan. It may be that these grounds were irrelevant, though we are not to a position to hold so, in view of lack of availability of the material, on which Mr. Zafar Ali Khan based his order, but even if these grounds were irrelevant, there were the grounds relating to public safety and maintenance of public order, on which an order of detention could be made by Mr. Zafar Ali Khan. We would invite attention to the observations of Muhammad Munir, J., in Rafique Ahmad Sheikh v. Crown (P L D 1954 Lah. 142), that the proposition that if some of the grounds disclosed contained grounds some within the ambit of the Act and some outside it, the order of detention would be vitiated- wholly, was somewhat too broadly stated and was of doubtful correctness.

41. Be that as it may, the order of Mr. Zafar Ali Khan is now of academic interest', as it has been replaced by an independent and fresh order of detention made by Mr. Niaz Ahmad on the 17th of March 1966, which was served on the detenus on the 19th of March 1966. Even if the order of Mr. Zafar Ali Khan was not a lawful or regular and though the detention of Mr. Manzar Bashir, Ch. Kalim-ud-Din, Khawaja Siddiq-ul Hassan and Sh. Muhammad Ismail detenus in jails outside Lahore under his order was an improper manner of detention, the validity of the order of detention made by Mr. Niaz Ahmad is not affected. The Federal Court in Arbab Muhammad. Hashem Khan v. The Crown (P L D 1954 F C 1) has clearly held that a fresh order of 's not affected by the previous detention having been detention for there is material distinction between a fresh order of detention and an order of extension. The learned Judges of the Federal Court of India in Basanta Chandra Ghosh v. Emperor. (AIR 1945 F C 19) also observed that where an earlier order of detention is defective, there is nothing to preclude a proper order of detention being based on the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds is not examinable by the Court. Therefore, the order of Mr. Niaz Ahmad which is now in force not being in any way affected by the earlier order of detention, their detention is not invalid.

42. The orders of detention by Mr. Niaz Ahmad and by Mr. Mustafa Zaidi Deputy Commissioner mention that they have been made against the detenus with a view to prevent them from acting in a manner prejudicial to the maintenance of public order and peaceful conditions in Lahore and elsewhere. They state in their evidence that they were so satisfied. There is a presumption attaching to the orders under-section 114(e) of the Evidence Act, which is not lessened by their cross-examination. We can neither hold that they could not be satisfied nor that the orders of detention were made mala fide.

43. The learned Advocate-General contended before us that as former writ petitions in respect of detention of Nawabzada Nasrullah Khan (W. P. No. 335 of 1966) and of Sardar Shaukat Hayat Khan, Sardar Muhammad Zafarullah Khan, Mr. . Ghulam Jilani and Kh. Muhammad Rafique (W. P. No. 314 of 1966) were dismissed by this Court on the 16th of March 1966, these writ petitions on their behalf were not competent, as repeated writ petitions challenging the orders of detention cannot legally be instituted under Article 98 of the Constitution. This contention is based on two grounds, firstly, that a petition based on the same grounds as were agitated in a previous application, is not competent in view of the principle of finality attaching to the judgment of this Court, and secondly, that even if certain grounds have not been raised in the first application, but could have been taken, they cannot be urge in a second application and he, therefore, invoked the principle of res judicata in section 11, C. P. C. He has referred us to Haridas Damaji Awade v. Provincial Government C. P. and Bihar (A I R 1949 Nag. 201) Raghunandan Yadav and another v. Province of Bihar (A I R 1949 Pat. 262), In re. Prahlad Krishna Kurne (A I R 1951 Bom. 25), Malhari Ramji Chikate v. Emperor (A I R 1948 Bom. 326), Mst. Haydari Begum v. Jawad Ali Shah (A I R 1934 All. 22), which s. A. are cases under section 491, Cr. P. C. and In re: Prahlad Krishna Mahmood, J Kurne, which is a case under Article 226 of the Indian Constitution. With regard to the cases under section 491, Cr. P. C. it is enough to cite Ramjilal v. Rex (A I R 1949 E P 67), which takes a contrary view. In this case Mahajan, J., who wrote the majority judgment, disagreed with the decision of the Lahore High Court in Kishori Lal v. Crown (1 L R 1945 Lab. 573), on the ground that the judgment could not be supported by reason of the decision of their Lordships. of the Federal Court in Hori Ram Singh v. Crown (1 L R 1940 Lab. 400) and held that a decision of an application under section 491, by its dismissal on merits, cannot be held to be a judgment, in the sense in which that expression has been used in section 369, Cr. P. C. and this section could not be used as a bar to the determination of successive applications under section 491, Cr. P. C., even if previous applications have been dismissed. There was no rule framed under section 491(2) Cr. P. C. barring the making of successive applications and the question was, therefore, examined whether on grounds of public policy or on principle of res judicata, the maintainability of successive applications under section 491, in spite of a final decision on an earlier application, was prohibited. The conclusion reached was as follows:- "The section is intended for preserving the liberty of the subject and if on a certain reasoning an application for a writ has been refused, it may be that on a different reasoning though on identical facts, the application may succeed. It may be that a point of law was not urged before the Judge previously deciding an application or a matter, though raised, was not properly argued. In such circumstances, the subject can again show to the satisfaction of the same Court that he should be set at liberty. I cannot see that any principle of res judicata or any doctrine of the Court being functus officio. Can be pressed in service for declining to set at liberty who has been illegally confined even if at the moment when the second application is made, the Court is differently constituted and is not presided over by the same Judge who dealt with the matter earlier. Another Judge may be satisfied that the applicant is in illegal detention and in that situation I see no violence of any principle of law in a matter arising under section 491, Cr. P. C. . . . . . There is no rule similar to rule of civil law of res judicata debarring the hearing of it on any principle of functus officio that can be made applicable to such a case. The rule stated in Mst. Haydari Begum v. Jawad Ali Shah, was dissented from observing that the argument as regards waste of time and money is an argument of expediency and can hardly be considered by a Judge exercising judicial functions. The argument of unreasonableness about the maintainability of successive applications under section 491 to the Court in the absence of any prohibition contained in the law of Criminal Procedure Code or in the rule did not appeal to him. The writ of habeas corpus being a very valuable writ to the subject as it concerned his liberty and the High Court having been given jurisdiction to issue the writ whenever it thinks fit, if at any time it can be satisfied that the writ should issue, no technicality of 'law should stand in the way of setting the detenu at liberty. General principles, when pressed in service, should be in support of the granting of the relief and in favour of the liberty of the subject than against it and considerations of convenience should not be resorted to in such cases and that it'may be that in cases of successive applications the rule laid down by Rankin, C. J. in Rameswar Kheroriwalla v: Emperor (1), may be the proper one in most, cases to follow. In re. Prahlad Krishna Kurne the Full Bench held that under Article 226 a citizen has no right to present successive applications for issue of a writ of habeas corpus, because a decision of a Judge on the first application was a decision of the Court to which the principle of finality in criminal judgment applied, so that when an application under section 491 has been refused a subsequent application under Article 226 is incompetent. This decision was arrived at mainly on the ground that there was no power in the High Court to review its own orders in matters falling under Article

226. The Full Bench decision of the East Punjab High Court was not, however, cited or noticed by this Full Bench.

44. These petitions have been instituted under Article 98(2)(b)(i) which enacts that: "a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law "(a) (b) On the application of any person, make an order (i) Directing that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner." This sub-Article is not a reproduction of section 491 of the Code of Criminal Procedure, but enacts in other words clauses (a) and (b) of subsection (1 L R 1929 Cal. 32) of section 491 of the Code of Criminal Procedure. This is a Constitutional provision and has to be liberally construed. It is intended to preserve the liberty of the subject and is a safeguard against unlawful or improper manner of detention. It should be so construed as to advance the remedy and suppress the mischief, in accordance with another well-recognised principle of construction.

45. In England both under the common law and under the various statutes passed from time to time since the days of Charles 11, the powers have been invested in the Courts as well as in each individual Judge of the Court to entertain applications, West Pak. for habeas corpus, even though some other Judge has refused a - similar application on the merits, so that a person detained has a right to apply successively to every Court or judge competent to issue a writ of habeas corpus, and to have the opinion of each on the merits, unfettered by the decision of the other, though of co ordinate jurisdiction, until be has exhausted all the judges. The reason for this is to be found in the observation of Lord Herschel] in Cox v. Hakes ((1890) 15 A C 505), "that the law of this country is, very jealous of any infringement of personal liberty." The same rule prevails in Canada and even in a country like Nigeria Ashughyai v. Officer Administering the Government of Nigeria and another (AIR 1928 P C 300). f he Courts ,in Pakistan must equally jealously safeguard the liberty- of the subject and if general principles are to be invoked, the Court should lean in favour of granting relief in favour of the liberty of the subject rather than against it, unfettered by considerations of inconvenience or waste of time. The Courts in Pakistan do not, however, have jurisdiction to issue the common law writ of habeas corpus Matthen and others v. The District 'Magistrate of Trivandrum (1 L R 1939 Mad. 744). There is also this difference that while in England power is conferred on each Judge, in Pakistan the power is conferred on the Court as such and not on each Judge.

46. For an examination of the question whether these petitions 'are competent, it is necessary to state that the grounds, of challenge in these petitions are not the same as in the earlier two petitions, which were dismissed. They are based on entirely different grounds and on different facts. Therefore, the first objection is misconceived. We are not inclined to accept the second contention that because some grounds have not been raised in the first petition, they cannot be raised in the second or the third petition. It is practically settled that a habeas corpus T petition can be instituted on fresh grounds and that the principle of res judicata in section 11, C. P. C., has no application. We agree with the learned Judges of the East Punjab Full Bench that the principle of res judicata cannot be prayed in aid for declining to set at liberty a person, who is being illegally confined, even if a former application of his has been dismissed on other grounds and the ground on which the detention has been shown to be illegal was not taken in the earlier petition.

47. The question does not arise for our consideration whether if a petition has been dismissed, a second petition can be entertained on the same facts, if it is shown that the detention is illegal and we will confine ourselves to the consideration of the question whether on different facts and on fresh grounds a second or successive petitions are not competent under clause (b)(i) of Article 98(2) of the Constitution. This sub-Article imposes a U sacred trust on this Court to preserve the liberty of the subject U. and to safeguard against unlawful or improper manner of Detention. The duty cannot be shirked and if it is shown to, the Court that a detention is unlawful, it must release the person in custody. It may be that even where an order of detention has been upheld on the ground that it is lawful, it may be shown on a subsequent application that the continued detention is either unlawful or that the person is being detained in an unlawful manner. Supposing a person is detained under rule 32(A I R 1944 I,ah. 373)(b) under the orders of a Deputy Commissioner within his jurisdiction and his order, though challenged, is upheld by the Court, but the person is removed under the orders of the Commissioner to a place of detention outside his jurisdiction his detention outside his jurisdiction would be unlawful manner of detention. Would it not be open to this Court to entertain an application and to grant relief to the petitioner on a second application? Instances can be multiplied to show that an application on fresh grounds can never be barred. It can be visualised that the decision of rejection of a former petition of this nature may not in every case operate as res judicata or have finality. Even in a case in which the Court has determined that on the day of the order the person in custody is being lawfully detained, a subsequent petition, if directed against his continued detention, on a date subsequent to the order of the Court, need not involve a review of the earlier order of the Court, dismissing the earlier petition, nor may violate the principle of finality of judgment of the Court. If the detention is shown to be either unlawful or unlawful manner, it is the duty of this Court to release the person in detention and it is no answer to the petition that an earlier petition has been. dismissed. The purpose of the Constitution will be defeated if a second application is not entertained on the technical ground that a 'former petition has been dismissed. We cannot visualise a technicality to stand in the way of setting at liberty, a person, who is being detained without lawful authority or m an unlawful manner. If the W question is to be decided on general principles of public policy,) then obviously the Courts must lean in favour of granting the relief rather than refusing it, unless there is a prohibition in the) rules or the statute, but there is no prohibition on successive applications in the rules or the statute. The wording of the Constitutional provision enables a challenge to an order of detention and the Court is authorised to satisfy itself that the person in custody is not detained without lawful authority. This duty the Court must perform. The Court is not relieved of this duty, because a certain ground, or a question of law, or fact, or a certain reasoning, which could have shown the order of detention to be unlawful, was not raised or taken before the Court in an earlier petition. Therefore, a second petition on fresh grounds is not barred by reason of the dismissal of earlier petition, for the Court is concerned with the examination of the question whether the custody is in fact lawful or not, which depends upon the lawfulness of the order and not on the rejection of an earlier petition. It is generally accepted and we X may refer to only two cases, S. Dilbagh Singh v. Emperor (A I R 1944 I,ah. 373) and Ramji Lal v. Rex (AIR 1949 E P 67) that a second application under section 491 is competent, if fresh facts have emerged and on fresh grounds. Since in these petitions fresh grounds have been raised, there is no force in the contention of the learned Advocate-General that they cannot be entertained.

48. For the reasons given above, since we cannot hold that the detenus are being held in custody without lawful authority or in an unlawful manner, we dismiss these writ petitions, but make no order as to costs. A.H. Petitions dismissed.