P L D1957 (W (PLP)

RAHMAN, C. J.‑

This order will dispose of Writ Petition No. 512 of 1957 which raises an important constitutional question. The petition was filed by Rao Mahroz Akhtar and is founded on the following allegations. The Pakistan National Party of whose Provincial Organisation, petitioner is a member, arranged for a public meeting at Dera Ghazi Khan scheduled to beheld after Isha prayers on the 10th of May 1957. The petitioner, when he arrived in the city, was informed that members of the District Organising Committee had been arrested by the police, on the night between the 9th and 10th of May 1957 and extended from Dera Ghazi Khan City, with a view to their detention in some outlying places. Some thirteen persons were thus stated to have been arrested and transported to distant places where they were interned. The District Magistrate had purported to act by virtue of powers conferred on him by section 5 of the Punjab Public Safety Act, 1949 (hereinafter referred to as the Act). The legality of the orders was challenged on the ground that section 5 of the Act, was repugnant to Articles 7, 8, 10 and 11. of the Constitution and, therefore. void. On behalf of the District Magistrate, Dera Ghazi Khan, and the Province of West Pakistan, a written statement has been put in, setting out, inter alia, that the petition was misconceived as there had been no arrest or deportation, that the petitioner had no locus standi to present the petition, that all that the District Magistrate had done was to restrict the movements of certain persons within the limits of specified areas, all situate within the district of Dera Ghazi Khan, in the interest of public security and that the orders impugned were perfectly legal, not being in violation of any constitutional provision. It was stated by Mr. M. Anwar, who appeared on behalf of the respondents, that orders issued against Muhammad Yasin, Muhammad Ayyub Ali Nomani Dr. Ahmad Yar, Amir Ali Shah and Abdur Rahim Ghauri had since been withdrawn and that no orders were ever passed against Sheikh Abdul Hakim out of the thirteen persons named in the petition. This laves us with the case of seven persons, namely, Khuda Bakhsh, Nazir Ahmad, Allah Wasawa, Shafiq Ahmad, Ghulam Shabir, Muhammad Khan and Hazur Bakhsh. The fact was admitted that the District Magistrate had restricted the movements of these persons to specified areas in the district of Dera Ghazi Khan, the areas being named revenue estates. Notice was issued in this case to the respondents only in respect of the prayer that the persons named be released from illegal custody. A habeas corpus petition, it is well settled, can be moved even by a friend of the person detained illegally, and, therefore, the objection with regard to the locus standi of the petitioner cannot be regarded as well founded. The next question that falls to be considered is whether the orders restricting the movements of the seven persons concerned, to certain specified areas, attracts the incidents of habeas corpus jurisdiction of this Court or not. In this connection, learned counsel for the petitioner, Mr. Mahmud Ali, relied on certain observations made in Bird v. Jones ((1847) 7 Q B 742 at p. 744). In that case the plaintiff was obstructed by the defendant from going in one particular direction but he was free to move in other directions. It was held that there was no imprison ment. The learned counsel however drew our attention to the following observations occurring in the judgment :‑ "And I am of opinion that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and detention. A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be movable or fixed : but a boundary it must have ; and that boundary the party imprisoned must be prevented from passing ; he must be prevented from leaving that place within the ambit of which the party imprisoning would confine him, except by prison‑breach. Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom : it is one part of the definition of freedom to be able to go whithersoever one pleases ; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own. It is contended that the internment orders passed in the present case amount to imprisonment in the sense indicated in the above extract. Ferris in his book on "Extraordinary Legal Remedies" (1926 Edition) has made the following pertinent remarks in relation to habeas corpus, at pages 32 and 33 :‑ "The test as to the right to the writ is the existence of such imprisonment or detention, actual though it may not be, as deprives one of the privileges of going when and where he pleases. Actual physical restraint, as confine ment in jail, is not necessary. Obviously, the extent and character of the restraint which justifies issuance of the writ must vary according to the nature of the control which is asserted. Petitioner must be in such control or custody of the person against whom the petition is directed that his body can be produced in Court. Therefore the writ will not lie where the party is permitted to go at large without apparent restraint, as where the order of Court read 'that the defendant may depart without giving any recognizance, subject to the issuing of a new warrant, if ordered by this Court'; where petitioner is out on bail; or when no effort is being made to enforce a judgment ordering commitment, and defendant is at liberty on bail pending notion for a new trial, as he is on bond, and is con structively in the custody, not of the Sheriff or the Court, but of his bondsmen." One of the authorities mentioned for these remarks by the learned author is an American case as Wales v. Whitney (114 U S 564) Mr. Mahmud Ali also referred to the definition of "habeas corpus ad subjiciendum" in Wharton's Law Lexicon (14th Edition) wherein the learned lexicographer has, inter alia, expressed himself in these terms :‑ "If a probable ground be shown that the party is imprisoned without a cause and has a right to be delivered, this writ ought of right to be granted to every man com mitted or detained in prison or otherwise restrained, though by command of the sovereign, the Privy Council, or any other powers." Stress is laid by learned counsel on the words "or otherwise restrained". It is added by the learned author that the writ of habeas corpus at Common Law is confined to cases of restraint of liberty otherwise than for some criminal or supposed criminal matter, or for debt, or by process in any civil suit. He goes on to say that besides the efficacy of the writ of habeas corpus in liberating the subject from illegal confinement in a public prison, it also extends its influence to remove every unlawful restraint of personal freedom in private life, availing, for instance, to restore children to the lawful custody of their father‑, unless he is leading a vicious life. After a consideration of these authorities we are satisfied that in the circumstances alleged, the habeas corpus jurisdiction of this Court could prima facie be invoked. Mr. M. Anwar on behalf of the respondents at first attempted to argue that if the movements of a person were restricted to a limited extent, as in the instant case, there would be no occasion for pressing into service the law of habeas corpus. Our attention was invited in this connection by learned counsel to the judgment of Kania. C. J. in A. K. Gopalan v. State of Madras (AIR 1950 SC 27 at p.37). The learned Chief Justice there discussed the scope of Articles 19 and 21 of the Indian Constitution (which correspond in part to Articles 11 acid 5 of our own Constitution) and pointed out that Article 19 did not apply to a substantive law depriving the citizen of personal liberty which must not be confused with restrictions on the right to move freely. The discussion does not appear to us to be of much assistance in deciding the question raised. Two other cases, which the learned counsel cited, are also not apt in the circumstances of the present case. They are Girindra Nath v. Birendra Nath (A I R 1927 Cal. 496) and Muhammad Umar v. The Crown (P L D 1955 Lah. 180), which deal with specifically cases falling within section 491, Criminal P. C. That section, inter alia, uses the words "illegally or im properly detained in public or private custody." Generally the writ of babeas corpus ad subjiciendum is issued in cases of such custody, but as is pointed out in Halsbury's Laws of England, Volume II, page 24. (3rd Edition), the writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty. The basis of jurisdiction in such cases appears to be the deprivation of personal liberty without legal justification, Eventually, however, Mr. M. Anwar had to concede that a writ or direction in the nature of habeas corpus could be issued in the circumstances of the present case, if the deprivation of liberty involved could be held to be legally unjustified. Part 11 of our Constitution deals with fundamental rights. Article 4 of that Part declares that any existing law or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Mr. Mahmud All suggested that an order passed under section 5 (1) (b) of the Punjab Public Safety Act, 1949, requiring a person to reside or remain in any area that may be specified in the order, would be within the mischief of Article 7 of the Constitution, which deals with cases of arrest and/or detention in custody and provides, inter alia, that a person arrested and detained in custody, shall be produced before the nearest Magistrate within a period of twenty four hours of his arrest, excluding the necessary time for the journey to the Court of the Magistrate; shall be communicated the grounds of his arrest as soon as may be and shall not be detained in custody beyond the said period of twenty‑four hours, without the authority of a Magistrate. Clause (3) of the Article, how ever, contains an exception and saves orders passed in respect of an enemy alien or one who is arrested or detained under any law providing for preventive detention. Clause (4) of the Article further lays down that no law providing for preventive detention shall authorise the detention of a person for a period exceeding three months unless the appropriate Advisory Board has reported, before the expiry of the said period of three months, that there is, in its opinion, sufficient cause for such detention. "The appropriate Advisory Board" means, in this context, a Board appointed by the Chief Justice of the High Court of the Province. According to the learned counsel, as an order passed under section 5 (1) (b) by the Provincial Government can continue for an indefinite period of time, clause (4) of Article 7 is attracted to the case. We are not inclined to accept this suggestion as sound. The order of internment within a specified area seems to us to fall more appropriately within the purview of C Article 11 of the Constitution than within the scope of preventive detention dealt with in Article

7. Article 11 is in the following terms :‑ "Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right‑ (a) to move freely throughout Pakistan and to reside and settle in any part thereof ; (b) to acquire, hold and dispose of property." It is plain that a person who is confined within a specified area, though he is free to move within that area, is unable to exercise his right to move freely throughout Pakistan and reside and settle in any part thereof. The question, therefore, arises whether the restrictions imposable by the Act, on this right, are reasonable or not. The issue of reasonableness is a justiciable issue admittedly, and the Court can, therefore, go into the question whether the restrictions impugned have the character of reasonableness or not. The phrase "preventive detention" occurring in clause (4) of Article 7, it seems to us, involves some species of custody or arrest which may be wanting in an order of internment such as we are dealing with in the present case. The main grounds on which the validity of section 5 of the Act, is assailed are that (a) no right to make a representa tion against the order is given by the Act at any stage whether before or after the passing of the order, (b) that there is no provision in the Act for furnishing the grounds of the order to the person concerned without which he could not make an effective representation, and (c) that an order under section 5 (1) (b) of the Act could be passed without any limitation as to the period for which it would hold good, if the promulgating authority is the Provincial Government. There is authority for the view that in assessing the reasonableness of the provisions of a statute placing restrictions on the free movements of a citizen, the substantive E as well as the procedural part of the Act can be brought under scrutiny. Reference in this connection may be made to a Division‑Bench judgment in this Court as Bazal Ahmad Ayyubi v. The West Pakistan Province (P L D 1957 Lah. 388) and Dr. N. B. Khare v. The State of Delhi (A I R 1950 S C (Ind.) 211). It will not, therefore, suffice to urge, as Mr. M. Anwar attempted to do, that the restrictions imposable under, section 5 of the Act were such as are well designed to achieve the object aimed at by this piece of legislation in the interest of public security or the security of the State. Not only the nature and the extent of the restrictions in question must be looked at, but also the procedure by which the final result is achieved, must receive attention. It may be useful to refer to certain authorities in which legislation similar to that under consideration in the instant case, has been held to be invalid for want of provision giving a right to represent against an order of externment or internment. In Maulana Abdul Quddos Bihari v. The Chief Commissioner of Karachi (P L D 1956 (W. P.) Kar. 533) a Division Bench of this Court held that in so far as the Security of Pakistan Act, 1952, omits to provide for the furnishing of grounds to an externee and the affording to him of an opportunity of making representation, the Act imposes an unreasonable restriction and to this extent is inconsistent with Article 11 of the Constitution and, therefore, void. The contention that because an express provision for the furnishing of grounds to detenus was made in Article 7 (5) of the Consti tution, the inference should be drawn that the Constituent Assembly did not consider such a safeguard was necessary for externees was repelled as unsound. It was remarked by the learned judges that the Constituent Assembly may have considered preventive detention such a serious inroad upon the liberty of a citizen that it laid down express and particular conditions in respect of it in the Constitution itself while in the case of less serious invasions of the liberty of a citizen, such as externment, it left the judiciary to determine whether the restrictions were reasonable or not. In Jesingbhai Ishwarlal v. Emperor (A I R 1950 Bom. 363 (F. B.)) Chagla, C. J. and Bavdekar. J. held that the Bombay Public Security Measures Act, 1947, to the extent that it empowers the Government to issue an externment order under section 2 (1) (b), is void inasmuch as it imposes a restriction on the fundamental rights of the citizen under Article 19 (1), sub-clauses (d) and (e) of the Indian Constitution and such a restriction would be unreasonable. The grounds on which it was found that the order in question was unreasonable were that the person against whom an order of externment is to be made, has no right whatever to be heard in his defence before he is asked to leave his hearth and home and go and reside at some other place. There is no obligation upon the authority to tell him the grounds on which action is taken against him. Bavdekar, C. J. added that at least an opportunity must be given to the person concerned of showing cause against the order, even though, in the first instance, an ad interim order restricting his freedom may be passed ex‑parte. In order to decide whether a restriction is reasonable or not, according to the dictum of the learned judges, the Court must look at the nature of the restriction, the manner in which it is imposed and its extent both territorial and temporal. In Ismail v. State of Orissa (A I R 1951 Orissa 86 (D. B.)) the want of provision for a reasonable opportunity of being heard in the Orissa Maintenance of Public Order Act, 1950, was held sufficient to invalidate that Act in so far as it permitted an order of internment to be passed without such an opportunity being given. In State v. Motilal Kaluram (A I R 1952 Madhya Bharat 114) the restrictions imposed by the United States of Gwalior, Indore and Malwa (Madhya Bharat) Maintenance of Public Order Act, 1949, by section 3 thereof, were held to the unreasonable; inter alia on the ground that the person concerned is not given any right of representation. The learned judges aptly remarked that the authority making the order may have acted on wrong information or under a mistaken belief as to the existence of a set of circumstances which really do not exist and yet the person against whom an order is made, if it is an order other than one for his detention, may be left without any remedy. These grounds appear to us to have force in the present case also. The Supreme Court of India in Ebrahim Vazir v. State of Bombay (A I R 1954 S C (Ind.) 229), per the majority of the judges constituting the Bench, declared that section 7 of the Influx from Pakistan (Control) Act, 1949, in so far as it has infringed the funda mental right of a citizen of India under Article 19 (1) (e) of the Indian Constitution was void by virtue of Article

13. The reasons given for ‑the decision were that the question whether an offence had beep committed under that section, was left entirely to the subjective determination of the Government, the discretion of the Government being arbitrary and unrestrained and that the section did not provide for the issue of a notice to the person concerned to cause against the order nor was he afforded any oppor tunity to clear his conduct of the suspicion entertained against him. For similar reasons a Division Bench of the Calcutta High Court in Tozammal v. Government of West Bengal (A I R 1951 Cal. 322) declared sections 21 and 22 of the West Bengal Security Act, 1950. to be invalid as repugnant to Article 19 (1) (d) and (e) of the Indian Constitution, which corresponds roughly to Article 11 of our own constitution. A survey of these authorities lends strong support to the contention raised on behalf of the interned persons that inasmuch as section 5 (1) (b) of the Act. permits an order of internment to be passed against a Pakistan citizen, without communicating the grounds therefore to him or affording him an opportunity to represent against such an order, it imposes an unreasonable restriction on the freedom of movement possessed by him and therefore, would offend against the provisions of Article 11 of the Constitution. Another factor, in these circumstances, which points in the same direction is the power enjoyed by the Provincial Government to make an order of indefinite duration. Placing curbs of this character on the personal liberty of an individual may entail very serious consequences. They may have the effect, in certain cases, of even depriving the person concerned, of any effective means of earning his livelihood, as he might be forced to live in an area where he can find no work to do, suiting his special aptitude or his peculiar capabilities. An order of such drastic character, passed ex‑parte without a chance being afforded for defence at any subsequent stage, cannot be supported and the law which gives sanction to it, must be held to be ex‑facie, unreasonably burdensome. We are conscious that some cases of an emergent nature may require an ex‑parte order to be passed initially, restricting the personal liberty of a citizen, but surely an opportunity to be heard at some stage, ought to be there before he is virtually ostracised from society. After carefully considering the matter, we have reached the conclusion that the contention raised in the petition rests on a solid foundation and section 5 o' the Act must be declared to be void in so far as it inflicts unreasonable restrictions on the right of free movement guaranteed under Article 11 of the Constitution. The inference follows that the orders of internment issued in the present case, deriving their vires as they do, from an invalid piece of legislation, have no legal force. We, therefore, hold that these orders should be treated as non‑existent and we hereby issue a direction to the respondents not to hold the seven persons named above, confined within the areas specified in the orders issued against them. They will be forthwith freed from all such restrictions. In the circumstances of the case, the parties will be left to bear their own costs. A. H. Petition accepted