P L D 1969 Supreme Court 14 (PLP)

The second ground was that since Article 98. of the Con stitution of Pakistan gives express power to the High Court to probe into the power of an executive authority how, high so ever, the principles laid down in the cases of Liversidge v. Anderson, (L R 1942 A C 206) Sibnath Baierji (L R 721 A 241) and Vimlabai Dashpande (L R 73 I A 144) were no longer good law and actions by authorities under rule 32 must; like all other actions relateable to the, power derived from clause (x) aforesaid were equally susceptible of judicial review and the detaining authority had to show that there existed a state of mind which had been induced by the existence of reasonable grounds under which he could only say that he was satisfied that the action taken was necessary in the circumstances of the case. This Court then proceeded to examine the evidence, which had been placed before the High Court to satisfy itself as to whether "justification existed for the satisfaction expressed by the Deputy Commissioner in his order of detention". It was contended before the High Court that the ratio decidendi was that the words "on grounds appearing to such authority to be reasonable" applied to both parts of the clause, namely to the first part under which action could be taken on mere suspicion as also the second part which required that the authority should be "satisfied" as to the necessity of the deten tion. To this extent, the learned Attorney‑General suggests, the judgment could well be supported even though it has been argued by the learned counsel appearing for the Province of West Pakistan that this Court was not justified in mixing up the two parts of clause (x) which were independent parts and were in no way dependent upon each other. In this first part since action was to be taken on the basis of mere suspicion, the Legislature, it is said, thought that such suspicion should be based upon reasonable grounds but in the second part where a firm state of mind was required namely, that the detaining authority had to be satisfied that the detention was necessary for the purposes mentioned in the clause the satisfaction of the authority was merely as subjective" satisfaction and the Courts had, according to the hithertofore accepted connotation of this term, no power to examine either the sufficiency or the reasonableness of the grounds upon which such satisfaction was based. It would be apparent from the extracts quoted above from the judgment of this Court in Ghulam Jilani's case that this Court was not unmindful of the fact that clause: (x) of subsec tion (2) of section 3 of the Defence of Pakistan Ordinance was in two parts. Nevertheless, it took the, view that since the Legislature had insisted upon the existence of reasonable grounds for detention for a comparatively shorter period, it was impossible to argue that on the other hand it could have intended that a citizen may be deprived of his liberty for a much longer period upon the mere subjective satisfaction of the detaining authority. This Court was conscious of the difference in the language of the two parts but nevertheless, came to the conclusion that this did not disclose any intention on the part of the Legislature to make any irrational differentiation. It has also been argued with some force by the learned counsel appearing for the Provinces of East and West Pakistan that the intention of the Legislature has now been made abundantly manifest by the subsequent amendment of 1968 whereby clause (x) has been split up into three parts. The first Part being confined to detention merely on the basis of the "opinion" of the detaining authority as to the necessity of the detention, to this clause has also been added .an explanation for the avoidance of doubt to the effect that "the sufficiency of the grounds on which such opinion as aforesaid is based shall be determined by the authority forming such opinion". We are not concerned with the second part but the third part deals separately with temporary detention upon mere suspicion but upon "reasonable grounds". Rule 32 of the Defence of Pakistan Rules is now relatable to amended clause (x) with the explanation and rule 204 is referable to clause (xc) where still the detention must be upon grounds appearing to the detaining authority to be reasonable. The High Court has, however, held that this amendment has not made any difference to the power conferred upon the High Court by Article 98 of the Constitution. Such amendment by sub‑constitutional legislation, it has maintained, could not have the effect of either limiting or curtailing the scope of the power given to the High Court by a Constitutional provision. Therefore, the power of the High Court under Article 98 of the Constitution has in no way been affected by the amendments introduced in the Defence of Pakistan Ordinance and the Court is still empowered to "examine the `sufficiency' of the grounds on which the authority competent to act formulated its opinion. It is not the subjective satisfaction of the detaining authority alone which is sufficient but it is also his duty to satisfy this Court that there existed material on which any reasonable person could have formulated the opinion as to the necessity of the detention". In coming to this conclusion the High Court has also relied upon a later decision of this Court in the case of Mir Abdul Baqi Baluch (P L D 1968 S C 313) where although no opinion was expressed as to the effect of the amended provisions of the Ordinance of 1968, as they were not applicable to the facts of that case where action had been taken before the coming into force of the Ordinance, yet the views taken in Ghulam Jilani's case as to the un-amended provisions of clause fix) were re‑affirmed and it was pointed out that it could "no longer be regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can in discharge of its duty under Article 98 (2) (b) (i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlaw ful manner. The wording of Sub‑clause (6) (i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review. If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act". In further clarification of the scope of this judicial function it was also pointed out: "Under a constitutional System which provides for a judicial review of executive action, it is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to see that the executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. It is not uncommon that even high executive authorities act upon the basis of information supplied to them by their subordinates. In the circumstances it cannot be said that it would be unreasonable for the Court, in the proper exercise of its constitutional duty to insist upon a disclosure of the materials upon which the authority had so acted so that it should Satisfy itself that the authority had not acted in an "unlawful manner." The learned counsel appearing on behalf of the Province of West Pakistan has contended that whatever might have been the position before the amendment introduced in 1968, the position now is that there is a reversal to the position which prevailed until the decision is Ghulam Mani's case. In other words wherever the power given under a law providing for preventive detention is not controlled or conditioned by the existence of reasonable grounds, it is not open to the Courts to go into questions of sufficiency or reasonableness of such grounds, and in a writ of habeas corpus it is sufficient for the authorities concerned to produce a validly authenticated order in proper form stating that the authority competent to act has been satisfied or has formed the opinion that the detention is necessary. According to him, if the order has been made with jurisdiction and is ex facile an order in proper form, then the presumption is that it has been made in a lawful manner and it can only be challenged on the ground of mala fides. The onus of proving which must be entirely upon the detenu and unless he can succeed in establishing mala fides the validity of the order cannot be challenged nor can the Court go behind the statement contained in the order itself. The learned Attorney‑General of Pakistan and the learned Advocate‑General of East Pakistan, who have appeared in pursuance of a notice issued by this Court, do not however, go so far. They concede that though the power of judicial review under Article 98 of the Constitution cannot be taken away by a sub‑Constitutional legislation., its scope must necessarily be limited by the language of the statute under which action for Preventive Detention is being taken. Where the words of the Statute empowering the authority to detain give to that authority unrestricted power, then the decision, it is contended is his subjective decision and the Courts cannot go behind the order to test either the sufficiency of the materials upon which it was based or the reasonableness thereof. These latter questions become justiciable only where the Statute requires action to be taken on reasonable grounds. The learned Attorney‑General has frankly conceded that he will not rely upon the majority judgment of the House of Lords in Liversidge v. Anderson and another as it was opposed to the principles laid down earlier by the House of Lords itself in Shearer r and another v. Shields (1914 A C 808) and had not been accepted in to r by the Privy Council even in the case of Emperor v. Vimlabai Deshpande (A I R 1946 P C 123). Its soundness has also been doubted in a Subsequent case in England itself, namely, Nakhuda Ali v. M. F. De S. Jayaratne (1951 A C 66). He relies very strongly, however, on .the obser vations of Lord Atkin in his dissenting opinion in the case of Liversidge v. Anderson where the Noble Lord pointed out that since the regulation under which the impugned action was taken itself provided that the Secretary of State must have reasonable cause to believe, it was patent that the reasonableness of the cause was justifiable, if the intention of the Legislature had been otherwise, these words would have been omitted from the regulation. In his opinion wherever the executive action is required to be reasonable or to be based upon reasonable cause or reasonable ground, then the obvious intention of the Legislature is "to indicate that mere honest belief is not enough." The learned counsel quotes in support of his contention the observation of Professor C. K. Allan from his book Law and Orders, 2nd Edition, page 291 that where the word "Satisfied" simplicitor is used in a statute delegating powers to executive authorities, then the Statute is almost "judge proof " for the effect of these words would be "virhially to exclude judicial review on the ground that ministerial action taken under their authority is purely administrative". A large number of decisions from foreign jurisdictions, mainly Indian and Australian have also been cited to show that where the Statute merely requires the authority to be "Satisfied" or to act if he has reason to believe" then neither the sufficiency of the grounds upon which he acts nor the reasonableness thereof can be examined by a Court in the exercise of its power of judicial review and it has to leave it to the "Subjective Satisfac tion" of the authority empowered to act. These were the cases of Lloyd v. Wallach. ((1915) 20 C L R 299); Adelaide Company of Jehovah's Witnessed Incorporated v. The Commonwealth ((1943) 67 C L R 116); Little v. The Commonwealth ((1947) 75 C L R 94); Eliezer Zabrovsky v. General Officer Commanding, Palestive and another ((1947) A C 246); A. K. Gopalan v. The State of Madras (A I R 1950 S C 27): Dr. N. B. Khare v. The State o f Delhi (A I R 1950 S C 211) and Virendra v. The State of Punjab (A I R 1957 S C 896). The learned Attorney‑General has also adopted for the purposes of his argument the observations made by this Court with regard to the scope of judicial review in the appeal of the Province of East Pakistan v Dr. Azizul Islam (P L D 1963 S C 296) which arose out of a writ proceeding under the abrogated Constitution. The passage relied upon is to the following effect :‑ "It will perhaps be pertinent to mention in this connection that when dealing with such cases the High Court is merely concerned with seeing as to whether the officer empowered to requisition and acted bona fide in the discharge of his duties and as to whether there was any material upon which the subjective satisfaction of that officer with regard to the necessity and the expediency of the requisition could have been founded. It is not concerned with the adequacy or sufficiency of those reasons nor has it any power to sit in appeal over his action." The upshot of the elaborate arguments advanced by the three learned counsel appearing in support of the appeal is that while none of them dispute that the High Court has undoubtedly under Article 98 of the Constitution the power of judicial review of executive action yet they contend that unless the statute under which action is taken by the executive authority itself requires the authority to act honestly or reasonably or upon reasonable grounds, the satisfaction or the opinion or belief of the authority concerned in his subjective satisfaction and it is enough for him to state that be is so satisfied. It must then be presumed that he had acted bona fide in the lawful exercise of his powers and unless the party challenging his action is able to substantiate that he had acted mala fide or without any grounds whatso ever, the Courts cannot call upon the authority or the officer concerned to disclose the material upon which he had based his opinion, belief or satisfaction. It is further contended that even if it was possible to say that "satisfaction" being a firmer state of mind than mere "belief" or "opinion" or "suspicion" had of necessity to be grounded upon some facts than the amendments in the present case have even taken care of that by not using the word " satisfied " but merely saying that it would be enough if the authority concerned "is of the opinion" that the apprehension or detention is necessary. This argument does not of course taken into account the, difference that has been made to the jurisdiction of the Court by the language of Article 98 of the Constitution itself.) The relevant provisions of Article 98 of the Constitution are as follows :‑ 98.‑(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of Province may, if it is satisfied that no other adequate remedy is provided by law :‑ (a) on the application of any aggrieved party make an order :‑ (i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or (ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect; or (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 is an unlawful manner ; or (iii) requiring a person in the Province holding or pur porting to hold a public office to show under what authority of law he claims to hold that office ; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government, exercising any power of performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter 1, of Part II of this Constitution". It will be observed that this Article is radically different; from the Old Article 170 of the abrogated Constitution off Pakistan or Article 226 of the Indian Constitution. It hasl given to the Courts the power to give directions to person performing certain functions in connection with the affairs of the Government or local authority to do or to refrain from doing that which the law requires them to do or which it does not permit them to do and to declare acts done by such persons to "have been done or taken without lawful authority and as being of no legal effect". In the case of persons detained in custody, however, the power given is to issue a direction to have such a person brought before the high! Court so that the Court may "satisfy itself that he is not being held in custody without lawful authority in an unlawful manner." The difference in the language of the provisions of sub‑clauses (a) and (b) of clause (2) of Article 98 is worth nothing. Whilst in the first case the direction is limited to the making of an order for doing or refraining from doing that which the law permits or does not permit, as the case may be, in the case of detention the High Court is enjoined upon to " satisfy itself " that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner. This distinction in the terminology of the two clauses of Article 98, which was pointed out by this Court in the case of Abdul Baqi Baluch for the first time, was placed before the learned counsel and they were invited to assist this Court in the ascertainment of its true meaning. They all agreed that the expressions "without lawful authority" and "in an unlawful manner" occurring in sub‑clause (b) were not merely tautologous. A definite meaning had, therefore, to be given to each of them. The Constitution it appears, caste a heavy responsibility upon the Court to satisfy itself with regard to both these two matters. The question there fore, arises as to what are these matters. It is agreed that without lawful authority will be comprised all questions of vires of the statute itself as also of the person or persons acting under the statute, i.e., there must be a competent law authorising the detention and the officer issuing such an order must have been lawfully vested with the power. But what is it that falls within the expression unlawful manner"? The learned counsel for the Government of West Pakistan thought that it might refer only to the manner or mode of detention. The learned Attorney‑General went a little further and suggested that it might include all matters of procedure. The learned Advocate‑General of East Pakistan, however, conceded that all matters which fell within the scope of judicial review apart from questions of vires were covered there under. In my opinion the learned Advocate‑General of East Pakistan is perhaps nearer the mark than the others. In my view the words "in an unlawful manner" in sub‑clause (b) of Article 98(1) have been used deliberately to given meaning and content to the solemn declaration under Article 1 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law of my mind, therefore in determining as to how and in what circumstances a detention would be detention in an unlawfu manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawfu manner. Law is here not confined to statute law alone but i used in its generic sense as connoting all that is treated as law this country including even the judicial principles laid down from time to time by the Superior Courts. It means according to the; accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb. It is in this sense that an action which is mala fide or colour-able is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considera tions is also not :action in accordance with law. Action taken upon no ground at all or without proper application of the said of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down) as being action taken in an unlawful manner. It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub‑clause (b) of clause (2) of Article 98 they advisedly left it to the High Courts to review the actions of the detaining authority, technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts. The Court must, nevertheless, in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered. 7 he content of the power vested by the Constitution in the High Court cannot be limited or taken away by a sub‑constitutional legislation but the reference to the statute and the other factors mentioned above is rather for determining its true nature, scope and legality. This power as has been pointed out in the case of Abdul Baqi Baluch is not co‑equal to the power of a Court of appeal or a court of error or a review committee, for, the Court cannot claim in the exercise of this power to usurp the functions of the authority on which the power has been vested nor to substitute their own decision for the decision of that authority. Nor can the Court insist being satisfied that there were materials upon which it would have taken the same action. It is in this sense that it has been said that the Court is not concerned with either the adequacy or the sufficiency of the grounds upon which action is accentuate if this argument is to be pushed to the extent of saying that the Court can never even ask the authority concerned to disclose the grounds upon which it has acted then we are unable to agree, for the Court in order to be satisfied as required by the Constitution, must know that there were in fact grounds relatable to the purposes of the statute upon which the action of the authority concerned could at all have been founded after an honest application of the mind of the authority concerned to all the relevant considerations. There can be no doubt and this is conceded that the Court can satisfy itself that the action taken is not a mere colour-able exercise of power or a fraud upon the statute. The question, however, that still remains to be considered is as to whether the reasonableness of the action can be examined when the statute itself does not require the authority to act upon reasonable grounds but leaves him to act upon his own subjective satisfaction. in view of the provisions of Article 98 of the Constitution I am of the view that that degree of reasonableness that at least to be established which has been indicated in the case of Abdul Baqi Baluch. Otherwise if an authority could protect himself by merely saying that he believed himself acting in pursuance of a statute then what would be the material upon which the Court could say that it was satisfied that the detention or impugned action had not been taken in an unlawful manner. If the argu ment be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial review then even questions of bona fides or good faith would be beyond the scope of judicial review but it has, throughout without any exception whatsoever, been always consistently held that a mala fide action is not action in accordance with law. Decisions are also not wanting to show that very often the requirement of reasonableness has also been added to the requirement of good faith. Indeed it has even been said that the question of reasonableness would be pertinent in an enquiry as to mala fides. Thus to determine as to whether the officer concerned really believed that facts existed which would bring the case within the statute and honestly intended to put the law into force, the question of reasonableness may well become material but reasonableness in the limited sense indicated in the case of Abdul Baqi Baluch would always be material. In other words when it is said that no reasonable person could have upon such and such material, formed the opinion that the person detained had brought himself within the mischief of the statute, in effect the contention is that the officer concerned has in these circumstances acted mala fide in law, (I make a distinction between mala fide in fact or malice in fact and mala fide or malice in law). 7hus in the case Cann v. Clipperton (10 A & E 588) Denman C. J. said "I am unwilling to say that if a party acts bona fide as in the execution of a statute he is justified at all events, merely because he thinks he is doing what the statute authorises, if he has not some grounds in reason to connect his own act with the statutory provision", In Hermann v. Seneschal (P. 13 C V N S 392) it was conceded that reasonable ground or belief was an important ingredient in ascertaining the existence of bona fides. The real question, to my mind, in every case of mala fides is; Did the authority or officer concerned reasonably believe that his dot; as such officer required him to act as he did? A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner. This Court did not express any different opinion in the case of Azizul Islam, for, even there it was said that the Court was entitled to see as to whether there were any materials upon which the satisfaction could be grounded obviously by a reasonable person. In this view of the matter we are inclined to agree with the learned counsel appearing on behalf of the respondent j in this appeal that the amendment of clause (x) of the Defence of Pakistan Ordinance "has been an exercise in futility". The splitting up of the provisions has in no way affected the reasons given by this Court in Ghulam Mani's case. If it is an incident of the power of judicial review granted to this Court by Article 98 of the Constitution then the question as to whether there are grounds upon which a reasonable person would have formed the same opinion is certainly within the ambit of the power of judicial review no matter what the language used in the sub‑Constitutional legislation. In this connection I would also like to point out that it is a misconception to think that either under the Defence of Pakistan Ordinance or the Rules framed there under any arbitrary, unguided, uncontrolled or naked power has been given to any authority. My approach to these provisions is that they have only confer a power which is coupled with a duty. The power can only be exercised after the duty has been discharged in accordance with the guide lines provided in the statute and the rules. Thus both under clause (x) of subsection (2) of section 3 of the Ordinance and rule 32 of the Rules, the duty cast upon the authority empowered to detain is to apply its mind to the particular matters mentioned therein, namely, as to v Nether the action of the person sought to be, detained was in any manner prejudicial to Pakistan's relations with foreign powers, or to the security the public safety or interest the defence of Pakistan or any part thereof, the maintenance of supplies and services essential to the life and to the community, the maintenance of peaceful conditions in any part of Pakistan or the efficient conduct of military operations for the prosecution of war and then to form an opinion as to the necessity of the detention: Until such an opinion is formed by the honest application of the mind of the detaining authority the jurisdiction to make the order of detention cannot arise: In addition to this the detaining authority has also to keep in mind that section 15 of the Ordinance itself requires that the authority concerned should interfere as little as may be consistent with the purpose of ensuring the public safety and interest and the defence of Pakistan with the ordinary avocations of life of the person sought to be detained. Do these provisions then give such arbitrary or plenary powers as is now sought to be contended for by the learned counsel appearing in support of the appeal? Do they indicate that the reasonableness of the action of the detaining authority is a matter entirely foreign to the provision of the Ordinance? I think not. In my opinion, the reasonableness of the action is on the face of these provisions also necessary ingredient with regard to which the detaining authority must form an opinion and if it fails to do so, then its action cannot be said to be an action in accordance with law. Thug, according to me, the reasonableness of the action at least, to the extent indicated in Abdul Baqi Baluch's case is not only h necessary concomitant of the power given to the High Court under Article 98 of the Constitution but also an essential requirement of the Defence of Pakistan Ordinance and the Defence of Pakistan Rules themselves. In saying this, however, I would again draw the attention of the High Court to the observations in the case of Abdul Baqi Baluch as to the scope of the enquiry itself. It is not to be turned into a roving enquiry permitting the detenu to hunt for some ground to support his case of mala fides nor should are enquiry be launched upon merely on the basis of vague and indefinite allegations. Mala fide must be pleaded with particularity and once one kind of mala fide is alleged, the detenu should not be allowed to adduce proof of any other kind of mala fide. It must also be remembered that initially the onus is on the: detaining authority to justify the detention by establishing the legality of his action for under the principles of English law, which have been adopted in our system also, the presumption is that every imprisonment without trial and conviction is prima facie unlawful (per Lord Atkin in Liversidge v. Anderson) and it is only then that the onus shifts on the detenu to show mala fides. Again having regard to the fact that in such cases the materials' upon which the belief is based will be mainly in the special knowledge of the detaining authority and not of the detenu, section 106 of the Evidence Act itself would require the detaining authority to discharge this burden. The contention that the detaining authority may avoid doing so by claiming privilege under section 123 of the Evidence Act omits to take into account that even where such a claim is preferred section 162 of the Evidence Act gives to the Court abundant power to inspect the document in order to determine the validity of the claim of privilege. The privilege is indeed a narrow one, as pointed out by Lord Blanesburgh in the case of Henry Greer Robinson v. State of South Australia (A I R 1031 PC254) and it is lawful for the Court to inspect the document for the purpose of deciding that the privilege is not being claimed inadvisedly or lightly or as a matter of routine. It remains now to consider another contention of the learned Attorney‑General, namely; that we must not be unmindful of the fact that the legislation here with which we are dealing is an emergency legislation which must be interpreted with due regard to the consideration that "being comes before well‑being". I am not oblivious of the fact that this is an emergency legislation. We have already in the case of Abdul Baqi Baluch upheld that we cannot go behind the emergency but I find it difficult to accept the contention that the laws must be interpreted differently during an emergency. In answer to this contention I would content myself by quoting the words of Lord Atkin from Liversidge v. Anderson to the effect that "amidst the clash of arms the laws are not silent. They may be changed but they speak the same language in war and peace." Having said this much, however, I must, also point out that whilst laws cannot be interpreted differently at different times or in different circum stances the existence of the emergency will have a material bearing if the Courts are to decide upon the reasonableness oil the action, for what is reasonable in the time of an emergency may well not be reasonable in ordinary circumstances when the emergency has ended. The emergency will, therefore, be a relevant factor in determining the reasonableness of the act which, as we have already held, has to be considered in a limited sense by the Courts in the exercise of their power of judicial review. The learned counsel for the respondent has sought to attack even the vires of the Defence of Pakistan Ordinance and the amendments thereof but apart from the fact that this question is concluded by the decision of this Court in the case of Ghulam Jilani, we see no reason to go into it at this stage, for, the High Court has merely decided a preliminary objection and the appeal before us is confined to that. The question of vires etc. may be raised before the High Court at the time of the hearing of the petition, if so desired. Some other questions were also sought to be raised by the learned counsel for the respondent regarding the competency of the appeal but we have not allowed him to do so as they were not raised in the High Court. For the reasons I have given, this appeal must in my view, be dismissed, but having regard to the fact that Government has already undertaken to bear the expenses of the respondent for the hearing at Karachi, I would order that costs assessed at Rs. 2000 only by allowed to the respondent in respect of this appeal. A question was also raised as to validity of the order of the High Court directing the payment of Rs. 50,000 to the respondent for her expenses in this case. Since the transfer of the case to Karachi was at the request of the Government of West Pakistan and the Government had agreed to pay such expenses, I see no necessity of making any order in that behalf. The actual expenses, I have no doubt, will be worked out at the appropriate time on the basis of the relevant rules relating to the taxation of costs in the High Court and adjusted against the amounts, if any, advanced. Appeal dismissed. FAZLF‑AKBAR, C. J.‑

I agree. M. YAQUB ALI, J.‑

I agree JAJJAD AHMAD, J.‑

I agree. ABDUS SA TTAA, J.‑

I agree.