P L D 1954 Federal Court 1 (PLP)

SHAHABUDDIN, J.

This is an appeal by special leave from the judgment of the Court of the Judicial Commissioner N: W. F. P., by which two applications under section 491, Criminal Procedure Code,-one sent from jail jointly by the detenus Arbab Abdul Ghafoor Khan and Khan Abdul Wali Khan (referred to hereafter as detenu 1 and detenu 2 res pectively) and another presented by a brother of the first detenu on his behalf-were dismissed. The applications were heard jointly and dismissed by a common judgment, though on facts and some of the grounds there is a difference between the cases of the two detenus. Most of the grounds on which the legality of the orders of detention has been questioned are, however, common ; and it appears from the records that Mr. Suhrawardy appeared for both the detenus, but he represented to us that he did not appear for the second detenu. It is, however, clear from the record that information about the date of the hearing of the joint application was sent to the second detenu also. Facts relating to the first detenu Arbab Abdul Gliafoor Khan are these: On 11th June 1949 he was ordered by the Additional District Magistrate, Bannu, under section 40 of Frontier Crimes Regulations to execute a bond for Rs. 20,000 to be of good behaviour and keep the peace for three years, with ten sureties bound in a like sum, or, in default to undergo rigorous imprisonment for three years. The finding of the Additional District Magistrate was that the first detenu, in spite of the advice of the police, insisted on entering the Bannu District to disseminate sedition and provoke a serious breach of the peace. The first detenu did not furnish security and he was, therefore, committed to prison. The Commissioner in the exercise of his revisional jurisdiction under section 49 of the Regulation modified the order of the Additional District Magistrate by reducing the amount of security to Rs. 5,000 and the number of surities to two. The first detenu, however, did not furnish the reduced security and he continued in prison at Machh in Baluchistan from where he sent on 9th February 1950 a petition under section 491, Criminal Procedure Code, to the Court of Judicial Commissioner, which was dismissed on the ground that he was outside the criminal appellate jurisdiction of the Court. Thereafter, he was released on parole on 31st March 1951 or 1st April 1951 and was re arrested on 20th/22nd June 1951. However, after the re-arrest the first detenu was in jail at Machh, and while he was there an order dated 22nd January 1952 was passed under section 3 of the North-West Frontier Province Public Safety Act 1948 directing his detention for a period of one year in that jail. This was apparently the first order against him under the said safety Act. It was to expire on 21st January 1953, but on 15th May 1952 he was brought to the Central Prison D. I. Khan within the Province of N.-W. F. P. and on 8th June 1952 an order was passed authorising his detention for a period of six months up till 8th December 1952 This purports to be an order of extension, but in effect it modified the period of detention from one year to six months besides altering the place of detention. Thereafter, on the 7th December 1952 another order was passed extending his detention for a further period of six months. Lastly, an order was passed on 16th May 1953 further extending his detention for another six months from 8th June 1953 up till 8th December 1953. The judgment under appeal and the concise statements filed on both sides refer to an order dated 20th March 1953, but there is no such order on the record of the lower Court or amongst the orders received in this Court from the Provincial Government; nor was an argument addressed to us in respect of it. The following are the facts relating to the second detenu Khan Abdul Wali Khan. He was first arrested under section 40, Frontier Crimes Regulation on 15th June 1948 and a case under that provision of law was instituted against him before the Assistant Commissioner, Charsadda. In the meantime the Government of North-West Frontier Province had ordered his detention under the Public Safety Ordinance VII of 1945 for one year in the jail at Haripur within the Province ; and in view of this detention the case against him under the Frontier Crimes Regulation was dropped. On 17th May 1949 an order was made against him under the Safety Act directing his detention for six months in the Machh Jail, and before that period expired another order dated 17th November 1949 for his detention for six months in the same jail was passed. Then followed two orders, one of 17th May 1950 detaining him for six months and another dated 17th November 1950 for his fresh detention for another six months. On 17th May 1951 another order of detention for one year was passed and this was followed by the order dated 17th May 1952 which directed his detention for another year in the jail at Quetta ; but on 15th May 1952 the second detenu was brought to the jail at D. I. Khan and though the order of 17th May 1952 was to expire only on 16th May 1953, an order dated 8th June 1952 was passed against him purporting to extend his detention for six months. This order, as in the case of the first detenu, was not really an order of extension. It modified the period of detention from one year to six months and that period expired on 8th December 1952, but the second detenu continued in detention ; and the next order extending his detention for another six months was passed only on 10th December 1952. Then followed the order now in force, the order of 16th May 1953 which extended the period of detention by another six months. In respect of this detenu also the judgment of the lower Court and the concise statements mention an order dated 20th May 1952, but that order is not found on the record or amongst the orders received from the Provincial Government, nor were arguments addressed in respect of it. The orders of 16th May 1953 were not questioned by the detenus before the Court below, as the hearing of the petitions was closed on 14th May 1953, when the case was posted for judgment to 29th May 1953. The contentions raised before the lower Court were in main that their detention was illegal at the inception and at subsequent stages, that the latest orders covered by the appeal i.e., the orders preceding the one of 16th May 1953 were illegal as they were extensions of illegal orders of detention. The allegation of malice made in the petition presented on behalf of the first detenu Arbab Abdul Ghafoor Khan was pressed during the arguments in the Court of the Judicial Commissioner. The learned Judges took the view that the orders of detention passed at the inception and subsequently were legal, and that even if the earlier orders were assumed for arguments' sake to be illegal, the latest orders of detention i.e., those preceding the ones of 20th March 1953, were original orders of detention not affected by any prior illegal detention. They rejected the allegation of malice on the ground that no evidence was adduced to sub stantiate it and it did not find a place in the earlier petitions sent by the first appellant. The learned judges also referred to the fact that the first detenu Arbab Abdul Ghafoor Khan had been released on parole before he was detained under the Safety Act, and in that connection they relied on a secret letter from the Agent to the Governor-General at Baluchistan found in a file of the N.-W. F. P. Secretariat which is not on the record. Various Srounds were raised in this appeal which will be set out later. At this stage it is enough to indicate that these grounds relate mainly to the legality of the detention at the inception and at subsequent stages, and the procedure adopted by the lower Court, the main grievance being that the detenus were not brought to Court in spite of their request to enable them to conduct their cases, and that the Court relied on secret documents not shown to the counsel and this caused them prejudice. The learned Advocate-General of Pakistan raised a preliminary objection that the appeal was intructuous and the consideration of the points raised in the appeal would be only of academic interest as in view of the orders of 16th May 1953 the validity of which was not questioned before the lower Court, we could not release the detenus even if we accepted their contentions raised in the appeal. He relied in this connection on the decision of the Federal Court of undivided India in Basanta Chandra Ghose v. Emperor (A I R 1945 F C 18). There. objection was taken to the High Court, in a case remanded to it by the Federal Court, having taken notice of an order of detention passed pending the further nearing of the matter. It was held that "if at any time before the Court directs the release of the detenu a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention." This view was not contested on behalf of the detenus; but it was argued that the orders of 16th May 1953 were not valid, because they were orders of extension and as the prior detention was illegal, the orders which extended the illegal detention were not valid. The learned Advocate-General did not dispute that an order extending an illegal detention is itself invalid; but his contention was that the orders of 16th May 1953 were original orders, though they purport to be orders of extension, and that objection to these orders by the detenus could not be considered by us as it did not form the subject of enquiry to the Court below. There is in my opinion no force in the preliminary objec tion. It is only the production of an ex-facie valid order of detention that bars the release of a detenu. The Court has therefore to satisfy itself that the order produced is in fact a valid order. The orders of 16th May 1953 which are in force at present are ex-facie orders of extension. Had they been ex-facie fresh orders no necessity to consider their validity could have been said to arise, on the grounds that a fresh order of detention is not affected by the illegality of the previous detention and the fresh detention would constitute a case not adjudicated upon by the lower Court. The contention of the Crown that these orders of 16th May 1953 are not orders of extension but should be regarded as fresh order seems to be devoid of force. The orders are clearly to the effect that the Government of N. W.-F. P. was pleased to extend the detention of the detenus for a further period of six months. The Provincial Government themselves seems to have regarded these orders as orders of extension for if they had relied on them as fresh orders they would have produced them in the lower Court before it pronounced its judgment on 29th June 1953, as they could not have-been certain that the applications would be dismissed on merits. It is significant that in the concise statement drawn up by the Advocate-General, N.-W. F. P., after referring to the order on 8th June 1952, as a fresh order it is stated as follows : "The detention has thereafter been extended from time to time by virtue of various orders including the last order of 16th May 1953 which expires on the 8th December 1953." If therefore the con tention that the orders of detention covered by the appeal were illegal is found to be correct, the orders of 16th May 1953 would not stand in the way of the detenus being released. The result is that the determination of the points raised in the appeal, far from being of academic importance is essential for the proper disposal of the appeal. I proceed, therefore, to deal with the appeal on merits, but before discussing the various points raised before us it is necessary to refer to section 3 of the North-West Frontier Province Safety Act. 1948, as it stood till 27th October 1952, Ordinance II of 1952 which amended that section and the North-West Frontier Province Act 111 1953 which enacted that amendment, as some of the contentions raised before us are based on the language of the said section. Section 3 (1) of the Act of 1948 before the amendment was to the effect that the Provincial Government on being satisfied that any person had committed any prejudicial act or it was necessary to arrest any person to prevent him from committing any prejudicial act, might order the arrest without warrant of such person. Subsection (2) empowered the Provincial Government to commit any person arrested under subsection (1) to such custody in such part of Pakistan and for such length of time as the Provincial Government might from time to time order in this behalf. On 27th October 1952 the Governor of North-West Frontier Province promulgated Ordinance II of 1952 by which section 3 referred to above was substituted by two sections-section 3 and 3 'A'. The new section 3 was to the effect that the Provincial Government, if satisfied that with a view to prevent any person from acting in any manner prejudicial to public safety or the maintenance of order it was necessary to arrest and detain such person, might direct his arrest and detention in such custody as the Provincial Government might from time to time prescribe. This section also gave the Provincial Government power to extend from time to time the detention of such person, if it considered it necessary to do so for the purposes aforesaid. It, however, limited the period of detention that could be ordered at a time, to that of six months, and also stated specifically that the Provincial Government might, at any time, release a person detained under this section. Section 3 'A' was to the effect that any person who immediately before the commencement of the Ordinance was under deten tion in virtue of an order under the old section 3 and continued to be under detention at such commencement, the order should be deemed to have been made under the provisions of section 3 as amended by the Ordinance. This Ordinance, however, expired six weeks after the 13th/15 November 1952 when the Legislative Assembly re-assembled. The amendment of old section 3, with the omission of the clause that detention at a time should be for not more than six months, was enacted by Act III of 1953, which received the assent of the Governor-General on 2nd January 1953, but this Act was published in the Gazette only on the 13th of March 1953, and came inter force from that date as it is not expressed to come into operation oil a particular date. This Act contains a provision stating that any order passed or anything done or any action taken under the above said Ordinance should continue in force and be deemed to have been passed, done or taken under the corresponding provision of the said Act. In support of the contention that the detention of the detenus was illegal at the very inception, it was argued (a) that the words 'may order the arrest without warrant' in section 3 (1) read with the words 'may commit any person arrested under the last preceding subsection occurring in subsection (2) of section 3 of the Safety Act of 1948, as it stood prior to its amendment; indicate that action could be taken under that Act against persons who were free, and not against those who were undergoing imprisonment or had been already arrested under another Act. As the first detenu was undergoing imprisonment under the Frontier Crimes Regulation and the second detenu had been arrested under the same Regulation when the first orders of detention were passed against them under the Safety Act, those orders were illegal and (b) the first order of detention against the first detenu was illegal also on the ground that at the time it was passed he was outside the jurisdiction of the Frontier Government being in jail in Baluchistan. Subsection (2) of section 3 which empowered the Government of the Frontier Province to detain persons in any part of Pakistan was ultra vires, being in contravention of section 99 of the Government of India Act 1935 as adapted by Pakistan. For tile same reason, orders of detention passed against the second detenu when he was in jail in Baluchistan were also illegal. The first of these contentions over looks the fact that the Safety Act gives the Provincial Government power to arrest and detain persons for the purposes of preventing them from committing any prejudicial act, and it is clear from the preamble and the other provisions of the Act and the legislature vested this power in the executive to ensure public safety. That being so, it could not have been the intention of the legislature that this power should be exercised only in respect of persons who are free, and that in the case of those persons who are already in custody, Government should not take preventive action against them, though it is satisfied that they are likely to commit prejudicial acts the moment they are free, but should wait till they are released and then only arrest and detain them. Taking the entire section in the context in which it occurs it appears to me that the only reasonable construction that can be put on the words " may order the arrest without warrant " in section 3 (1) of the Act of 1948 as it stood before amendment and the words " direct the arrest and detention " in the new section 3 substituted for the old section, first by Ordinance II of 1952 and later by Act III of 1953 referred to above, is, that they apply not only to persons who are free but also to those who are in custody, the expressions in the case of the fatter class of persons meaning only symbolic arrest. Such an interpretation does no violence to the language of the section, as even in the case of persons who are free, arrest is symbolic when they submit to custody by word or action. As regards the second contention, section 99 of the Government of India Act 1935 as adapted by Pakistan, which shall be referred to hereafter as the Constitution Act, says that subject to the provisions of that Act a Provincial Legis lature may make laws for the Province ; and under section 100 the Provincial Legislature has power to make laws with respect to any of the matters enumerated in the concurrent list. This power, is, however, subject to the limitation under section 107 of the Constitution Act that any provision of a Provincial law on any of the matters mentioned in the con current list, which is repugnant to any provision of an 'existing law' on the matter dealt with by the Provincial law, shall be void, unless the Provincial law has received the assent of the Governor-General, in which case, it shall prevail in the Pro vince concerned, but the Federal Legislature may nevertheless enact at any time further legislation with respect to the same matter. Entry 3 of the concurrent list of the Constitution Act is "removal of prisoners and accused persons from one unit to another unit". It, therefore, cannot be said that the provision in the old section 3 (2) of the Safety Act empowering the Provincial Government to detain a person in any part of Pakistan or the provision in the new section 3 (3) of the Act which authorises detention under such custody as the Provincial Government from time to time may prescribe, deals with a matter on which a Provincial Legislature cannot legislate. As for an 'existing law' on this subject, section 29 of the Prisoners Act of 1900 passed by the Central Legislature gives the Provincial Government power to provide by general or special order for the removal of persons confined in a prison under sentences of death or transportation or imprison ment to any other prison outside the Province, with the consent of the Government of the Province, where the prison is situated. This section does not in terms refer to detention without trial or other proceedings, but even if on that account the above provisions in the Safety Act under discussion are assumed to be repugnant to section 29 of the Prisoners Act, there is the fact that the Safety Act of 1948 as well as the Act III of 1953 of N.-W. F. P., which amended section 3 of the previous Act, received the assent of the Governor. General, and, as pointed out already, under section 107 a Provincial law which has received such assent, prevails in the Province. I therefore, consider that the provisions of the Safety Act empowering the Provincial Government to order detention it any part of Pakistan or in such custody as it may prescribe are not ultra vires. It follows from this conclusion that prisoners of the North. West Frontier Province directed to be detained in jails outside the Province are still in the jurisdiction of the Government of the North-West Frontier Province. There can be no doubt that Government of North-West Frontier Province cat exercise its powers under section 402, Criminal Procedure Code, in respect of the prisoners detained by it in the jails outside the Province. It could have issued orders of release ii favour of the detenus, when they were in jails in Baluchistan As a matter of fact, it released the first detenu on parole whet he was undergoing imprisonment under the Frontier Crimes regulations in the jail at Machh in Baluchistan. It was sug gested during the arguments that in such cases action is taken through the Government of the Province, where the prisoner is actually confined or detained ; but no provision of law, nor any rule to that effect has been shown to us. I, therefore, consider that orders of detention in this case are not invalid I because they directed the detenus to be detained in jails outside the North-West Frontier Province, or they were passed against them while they were in those jails. It was also contended on behalf of the detenus : (a) that their detention in the jail at D. I Khan from 15th May 1952, to 8th June 1952, was illegal, and (b) that their detention between 27th October 1952, when Ordinance II of 1952 expired, and 13th March 1953, when Act III of 1973 came into force, was also illegal. I am unable to accept these contentions also. The argument on the first of these points is this : Under orders dated 22nd January 1952, and 17th May 1952, which were passed against the detenus respectively, the first detenu was to be detained for one year from 22nd January 1952, in the jail at Machh in Baluchistan and the second detenu was to be detained for one year from 17th May 1952, in the District Jail Quetta also in Baluchistan ; but on 15th May 1952, the detenus were removed to the jail at D. I. Khan and orders detaining them in that jail were passed only on 8th June 1952. The detention in the jail at D. I. Khan during the period 15th May 1952 to 8th June 1952 was therefore illegal. This argument assumes that during the period of detention Government cannot change the place of custody prescribed when the order of detention was passed, but I find nothing in subsection (2) of old section 3 which can be said to make it obligatory on the part of the Government to retain a detenu at the place of original confinement during the entire period of detention. On the other hand that provision gives the Pro vincial Government the power to decide from time to time the place of custody. It appears to me, that under that section, as long as there was an order covering the period of detention the custody could be changed during that period. This has been brought out clearly in subsection (3) of section 3 now in force, in virtue of Act III of 1953. This provision is not a change in the law as it stood prior to the above said Act. It is only a clarification of the law that was already in force. The detenus could not have been removed from the jail at Machh to the jail at D. I. Khan without orders of Government and it has not been shown that there were no such orders. While granting special leave in this case we directed that original orders of detention and orders of extension thereof should be submitted. It was not represented to us then that orders regarding the removal of these prisoners from the jails in Baluchistan should also be sent for. Further the important part of an order of detention, as far as the detenu is concerned is the period of detention, as at its expiry he becomes entitled to be released unless a further order of detention is made in time ; but he gets no such right by a change in the custody. I, therefore, consider that the deten tion during the period was not illegal. The argument on the next point was that the Ordinance of 1952 having substituted a new section for the old section 3, the latter ceased to exist, that when that Ordinance expired that section was not revived and that during the period between the expiry of the Ordinance and the coming into force of Act III of 1953 there was no provision under which persons could be detained and therefore the detention of the detenus during that period was illegal. In support of this contention reliance was placed on section 6 of the North-West Frontier Province (General Clauses) Act, 1932, the relevant portion of which is to the effect that where an Act enforced for a period ceases to operate on the expiry of the period, then unless a different intention appears, the expiry shall not revive anything not in force or existing at the time at which the expiry takes effect. As under section 88 (2) of the Constitution Act an Ordinance during its currency shall have the same force and effect as an Act of Legislature, it was argued that the above-mentioned provision of the North-West Frontier Province (General Clauses) Act, applied to this case. It is not necessary in my opinion to decide in this case what the effect of an expired amending Ordinance on the law in force, is, because, none of the orders under discussion was passed during the period 27th December 1952-13th March 1953 ; and as regards the orders that were passed during the currency of the Ordinance, the detention under those orders commenced even before its expiry. Under clause (b) of section 6 of the General Clauses Act, relied on for the detenus, previous operations of the temporary enactment or anything duly done or suffered thereunder are not affected by its expiry, and as has already been observed, Act III of 1953 contains a saving clause that any order passed or anything done or any action taken under any provision of the said Ordinance shall continue in force and be deemed to have been passed, done or taken under the corresponding provision of that Act. Further section 3-A of this Act to which reference has already been made, states that where any person who having been detained under old section 3, continues to be under detention at the commence ment of Act III of 1953, the order shall be deemed to have been made under the provisions of section 3 as amended by the Act of 1953 The detention of the detenus during the period in question was not therefore illegal. Mr. Suharwardy for the first detenu challenged the validity of the order of 8th June 1952, on the ground that under the original section 3 which was in force when that order was passed, Government had no power to extend the period of detention. His argument therefore was that that order was illegal and as the subsequent order were of exten sion, the detention of the first detenu at present was also illegal. I am unable to accept this contention also. It is true that the amended section 3 specifically confers on the Government the power to extend detention, but even under the unamended section the Government had such power. Subsection (2) of old section 3 empowers the Government to commit persons to custody for such length of time as they may from time to time order. There is no force in the argument that the words "from time to time" should be taken to meantime and again and that therefore if a person was to be detained again there should be a fresh order. The words "from time to time" clearly indicate the power to extend the period of detention. Specific mention of this power in the amended section is in my opinion not a change in the law but only a clarification of it. Further, the order of 8th June 1952, cannot be called an order of extension though the word "extend" is used in it. In the order of 22nd January 1952, Abdul Ghafoor Khan was directed to be detained for a period of one year from that date. According to that order he was entitled to be released only on 22nd January 1953, if no further order was passed, but the order of 8th June 1952, directed his detention only for six months and under that order he was entitled to be released on 8th December 1952. The order of 8th June 1952, seems to me a modification of the earlier order and not an extension of it. The above observations apply also to a similar order passed against Khan Abdul Wali Khan on 8th June 1952, but Mr. Mahmud Ali appearing for him contended further that even if this order was regarded as a legal order, the second detenu according to it, was 'entitled to be released on 8th December 1952, because there was no order for his further detention passed either before or oil that date and the next order directing and extension of this detention was passed only on 10th December 1952. His argument therefore was that as the detention on 9th December 1952, was not under any order it was illegal and therefore the orders of 10th December 1952 and 16th May 1953, were also illegal as they were orders of extension of detention. The position taken by the learned Advocate-General was, firstly, that orders dated 8th June 1952 and 10th December 1952, were only orders prescribing the place of custody, and that the detention of the second detenu on the 9th December 1952, was covered by the order of 17th May 1952, under which he had been directed to be detained for one year from that date. Alternatively, he argued that the orders of 8th June 1952 and 10th December 1952, should be regarded as fresh orders of detention though they purport to be orders of extension. These contentions of the learned Advocate-General break down on an examination of the terms of those orders. The order of 8th June 1952, cannot be considered as an order merely specifying the custody in respect of the detention ordered on 17th May 1952. It is to the effect that in exercise of the powers conferred by subsection (1) of section 3 of the Act of 1948 the Government of N.-W. F. P was pleased to extend the period of detention by six months and there is nothing in it to show that it was an order in respect of the detention ordered on 17th May 1952. On the other hand the mention of the period of six months in the order of 8th June 1952, as indicated already, shows that it modified the earlier order of 17th May 1952. The order of 10th December 1952, is undoubtedly an order of extension. That there is a material distinction between a fresh order of detention and an order of extension of detention, is common ground, and the very fact that the learned Advocate-General pressed for the order of 10th December 1952, being regarded as a fresh order emphasises the importance of the distinction, which lies in this, that a fresh order is not affected by the previous detention having been illegal, whereas an order of extension of detention becomes illegal, if the detention, which it extends, was itself illegal It therefore appears to me that when an order purports to be one of extension it cannot be regarded as an original order unless there be circumstances that compel us to such a conclusion. Interpreting the word "extend" in this order literally presents no such difficulty as is found in the case of the order of 8th June 1952, which, as already pointed, cannot possibly be regarded as an order of extension because the detention previously ordered was to continue for longer period. Further, when the order of 10th December 1952 was passed the Ordinance referred to above was in force and that Ordinance had amended section 3 specifically mentioning therein the power to extend from time to time the period of detention. Government, no doubt, had the power of extension even prior to this amendment, but I am referring to the Ordinance for this purpose that the word "extend" is used there and the order of 10th December 1952 passed during the currency of the Ordi nance uses the same expression. I. therefore, consider that the detention of Khan Abdul Wali Khan on the 9th was illegal ; and as the order of 10th December 1952 is one of extension of that detention and, as already held by me, the latest order of 16th May 1953 is another order of extension, the present detention of Khan Abdul Wali Khan is therefore illegal. I regret that in reaching this conclusion I have not been able to agree with My Lord the Acting Chief Justice. It now remains to consider the contention advanced on behalf of the first detenu Arbab Abdul Ghafoor Khan that he was prejudiced by the procedure adopted by the lower Court. The points urged in this connection are (1) that though in the joint application sent from jail this detenu had requested the Court to allow him to appear before it in order to conduct his case, he was not ordered to be so produced, with the result that evidence with regard to his allegation of malice could not be adduced and (2) that the learned judges decided the allegation of malice on looking into certain secret documents, which were not exhibited and to controvert the contents of which no opportunity was given to him, and this in itself vitiated the entire proceedings before the Court. Neither of these contentions can, in my opinion, prevail. Under section 491 Cr. P. C. the Court is not bound to order the production before it of the detenu. Arbab Abdul Ghafoor Khan was represented by counsel who urged the case and it was not submitted to the Court that he would like to give evidence in support of the allegation of malice. It was, how ever, said that arguments were heard mainly on the question of the legality of the detention ; but when it was not represen ted to the Court that there was oral evidence, which the first detenu could adduce or that he would like to get into the box, I fail to see how the Court erred in not ordering his production before it. In the application presented on his behalf it was stated that evidence would be adduced if permitted, but it was not said that he would like to get into the box. It appears to me that if it was really his intention to do so, an application for time or for his being brought to Court would have been made and pressed by his counsel, but no such step appears to have been taken. Nor was any evidence in support of the allegations of malice adduced. As regards the second point, it is clear from the judgment that a secret letter was looked into by the learned judge which is not a part of the record and observations were made in the Judgment on the strength of that letter. The various orders of detention discussed in the judgment are also not on the record and as indicated already they had to be sent for by this Court at the request of the detenu's counsel made at the time when special leave was granted. It was represented to us that copies of these orders were not furnished to the counsel at the time of the hearing of the petition but that he was allowed to took into them for a short time. An order dated 20th March 1953 which is referred to by the learned judges is not on the record or amongst the orders submitted to this Court by the Provincial Government. In the concise statement of the detenus com plaint is made about the Court having relied on the file dealing with what was said to have happened (luring the parole on which the. first detenu was released. It is alleged that his counsel was not informed of this file. In the concise state ment drawn up by the Advocate-General of N.-W. F. Province it is stated that the procedure adopted by the lower Court was in no i, iy inconsistent with the provisions of the N.-W. F. P. Court's Regulation 31 or rules framed thereunder This regulation or the rules were however not produced. On the other hand the Advocate-General of Pakistan who argued the case for the Crown frankly conceded that he could not support the procedure adopted in the lower Court, but his argument was that no prejudice had been caused thereby to the first detenu. On behalf of the detenu it was argued that the irregularity was such that prejudice must be presumed from it. In my opinion on the question of prejudice the contention for the Crown has to be accepted. As pointed out in the earlier part of this judgment the learned judges came to the conclusion that the allegation of malice was not established on two grounds : (a) that there was no evidence adduced in support of it and (b) that ii: the earlier application sent by the first detenu in 1950 or in the joint application which was sent from jail in 1952, the allegation of malice did not find a place. In view of the fact that the burden of proof in this respect lay, heavily on the first detenu it was not necessary for the learned' Judges to have gone further to look into secret documents to hold that the action of Government was bona fide. Government had not to establish their bona fide in this case ; as the first l had failed to establish his allegation of malice. In this view reference to the secret letter was unnecessary. There is' no force in the argument that from the very fact that the Court looked into the secret letter prejudice must be presumed. It is however regetable that this irregular procedure was adopted in the lower Court. It is of paramount importance that "justice must not only be done but must manifestly be seen to be done and it is unfortunate that the learned judges did not keep this in view. There is no force in the argument of the learned counsel that the application presented on behalf of the first detenu was accompanied by an affidavit regarding the allegations contained in it, and as no counter affidavit was filed those allegations should have been accepted as proved. The affidavit relied on by the learned counsel is to the effect that the allegations in the application are true to the information supplied to the deponent which he believed to be true, but the source of his information is not disclosed. It is not surprising that a counter affidavit was not filed and no value was attached by the learned judges to the assertions contained in the application. I cannot conclude this judgment without referring to the inordinate delay that occurred in the transmission of the joint application addressed by the detenus to the Court of Judicial Commissioner from jail at Dera Ismail Khan. According to the learned judges this application was submitted by the Superin tendent of Jail, Dera Ismail Khan on 12th December 1952 to the Inspector-General of Prisons who forwarded it to the Chief Secretary and he received it on 19th December 1952, but the application was sent to the Court by the Advocate-General, North-West Frontier Province, only on 18th February 1953. The learned judges have observed that as to what hap pened in between the dates was "a mystery only known to the Chief Secretary, the Advocate-General or their staff". The concise statement drawn up by (he Advocate-General, how ever, explains that owing to a wrong impression that another application had been sent to Court by the jail authorities, the Chief Secretary had filed this application on 18th January 1953 and that the Advocate-General on receiving instructions from Court, apparently in connection with the application presented by the brother of the first detenu, sent for files from the Secretariat and then forwarded the joint application to the Court. It is surprising that this explanation was not furnished to the lower Court in the letter forwarding that application. However. it is seen from this explanation that the executive seem to be under the impression that they can exercise their discretion in the matter of transmission of applications to Court from prisoners in jails. It is imperative that effective steps should be taken to remove this wrong impression and to make the officers concerned realise that applications addressed to Court by prisoners in jail should not be withheld or delayed. Had the brother of the first detenu not presented a petition to the lower Court, the joint application might not have reached the Court at all. I support the observations of the learned judges regarding the delay in the transmission of this appli cation. For the reasons given above, I do not consider that the detention of the first detenu Arbab Abdul Ghafoor Khan is illgal, and I would therefore dismiss the appeal as far as he is concerned. As regards the second detenu Khan Abdul Wali Khan, in view of my conclusion that his detention is illegal, I would allow the appeal as far as he is concerned and order that he be released. CORNELIUS, J.

I am in agreement with my brother Sbahabuddin, J., on all points arising out of this appeal, but think it desirable to state my own views in detail since we are disagreeing with several of the conclusions reached thereon by the judicial Commissioners. As regards Abdul Ghafoor Khan, the first order of deten tion in his case is dated 22nd January 1952, and was made under the North-West Frontier Province Public Safety Act, 1998. It provides that Abdul Ghafoor Khan shall be arrested without warrant and committed in custody to the jail at Machh in Baluchistan for a period of one year. When this order was made Abdul Ghafoor Khan was undergoing imprison ment at Machh in default of furnishing security as required by an order under section 40 of the Frontier Crimes Regulation 1901. As has been pointed out by my brother Shahabuddin. J the law provides means by which prisoners falling in this cate gory may be detained to a prison outside the Province where the order for their imprisonment was made, by arrangement with the Provincial Government within whose jurisdiction the prison lies. Since Abdul Ghafoor Khan was held in custody by the Provincial Government on the 22nd January 1952, such Government was competent to make an order for his detention under the North-West Frontier Province Public Safety Act, 1948, notwithstanding that Abdul Ghafoor Khan was held at that time in a place outside the territory of the North-West Frontier Province. The argument based upon absence of general jurisdiction in respect of Machh in Baluchistan is, in my view, irrelevant. The facts of the case of Abdul Wali Khan, relative to the question of his place of detention qua the making of the deten tion orders are slightly different. He too was proceeded against under section 40 of the Frontier Crimes Regulation, but no final order was made in that proceeding, because, during its pendency by an order dated the 17th July 1948, under the Ordinance, which was the precursor of the Public Safety Act, 1948, he was ordered to be detained for a period of a year in the Haripur Central Prison which is within the North-West Frontier Province. By the neat order of detention dated 17th May 1949, made under the Public Safety Act, 1948, it was provided that he should be held in custody at Machh in Baluchistan. The argument based on the provisions of section 29 of the Prisoners' Act, 1900, is not available in respect of orders of detention without trial, but I agree with my brother Shahabuddin, J. in thinking that the provision in the North- West Frontier Province Public Safety Act, 1948, enabling the Noth-West Frontier Government to detain persons arrested under section 3, in any "part of Pakistan" can be related to a subject contained in the Concurrent Legislative List, viz., "removal of prisoners from one snit to another unit", and as the Act had received the assent of the Governor-General, the order for detention of Abdul Wall Khan outside the Province would appear to be valid in law. (Section 107, Government of India Act, 1935). I can see no force in the contention that an order for detention of a person who is already outside the Province, at a place outside the Province, with the professed object of pre venting him from committing "prejudicial acts" within the Province, is absurd, or that its validity is affected in any way by this circumstance. Provided the power is available, it is certainly an effective way to prevent a person from commit ting prejudicial acts within the Province. The argument that the two appellants had been detained in custody for so great a length of time that it was not possible to predicate concerning them that they were likely to commit prejudical acts if released, invites the Court to scrutinize the opinion formed by the Provincial Government regarding the extent of the potentiality of each of them. Such an enquiry is not within the purview of the Court in cases of this kind, although the Court may take into consideration the plea that the Provincial Government's expression of "satisfaction" regarding the potentiality of the person detained is colourable, and the detention constitutes a fraud on the statute, by reason of having been ordered from an ulterior motive. Abdul Wali Khan never contested his detention on this ground. In the case of Abdul Ghafoor Khan his separate petition sets out certain allegations casting doubt upon the bona fides of the Minister who was responsible for making the order of detention against him, and also expressed willingness to produce evidence, in support, but at the hearing no effort was made to produce any such evidence, or to obtain an order from the Court for pro duction of such evidence. Accordingly, it is necessary only to examine, in the case of each detenu, the various orders made in respect of him, in the light of the provisions of the Public Safety Act, 1948, in order to test their regularity, ex facie. Section 3 of the Act as originally enacted, is in the following terms :- "Power to arrest and detain certain persons :- 3. (1) The Provincial Government, on being satisfied that any person has committed any prejudicial act or that with a view to prevent him from committing any prejudicial act, it is necessary so to do, may order the arrest without warrant of such person, and in affecting such arrest all means necessary for the purpose may be used. (2) The Provincial Government may commit any person arrested under the last preceding subsection to such custody in such part of Pakistan and for such length of time, as the Provincial Government may from time to time, order in that behalf. (3) The Provincial Government may, by general or special order, determine the conditions as to the maintenance, discip line and punishment of offences and breach of discipline which shall be applicable in the case of persons committed to custody as aforesaid." Between the 17th May 1949, and the end of November 1952, all orders made in respect of each of the detenus, were made under this section, which provided, by its express terms, a scheme for bringing persons regarding whom the Provincial Government held a particular opinion, within the custody of the Provincial Government and for retaining them in such custody. Subsection (1) provided power to the Provincial Government to direct that the persons in respect of whom the opinion was formed should be arrested, and that for his arrest no warrant, i. e., a formal order of a Court or police officer, or other authority, should be necessary. Subsection (2) enabled the Provincial Government to direct the detention of such person, and to prolong it indefinitely, by making orders, from time to time, directing the nature of the custody, and the place and period thereof. It would, of course, be open to the Provincial Government to order the release of the detenu from custody at any time. Alternatively, the same effect might be produced by refraining from making an order to take effect in continuation of a prior order, upon the expiry of the period of the latter order. In such circumstances, the person under detention would be entitled to his freedom upon the expiry of such period, and if he were held in detention for any period thereafter, without there being in existence at such time, a valid order under subsection (2) authorising his detention, I entertain no doubt that such continued custody would be illegal. It would amount to wrongful confinement, and could, in no sense, be regarded as detention falling within the terms of section

3. Further, the terms of the section do not admit of the possibility of an order of detention being made there under to take effect retrospectively, i e., in relation to a period prior to the making of the order. Therefore, where a detenu is held under wrongful confinement, as in the circumstances indicated above, it seems to me that the only mode in which his confinement could be given the quality of legal detention would be by directing his arrest fresh, and following it up with a fresh order under subsection (2). We were invited by learned counsel to hold that a direc tion regarding the place of custody has the same effect, so that if during a period of custody covered by a valid order, the place of custody is changed, without an express order being in existence to cover such change, the custody at the altered place is to be regarded as wrongful confinement. I am unable to see any analogy between the requirements as to time and those in respect of place. The requirement of express direction as to time is mandatory, and retention in custody after expiry of the stated period is wrongful, because the direction has the effect of fixing a date on which the prisoner must be restored to liberty He has a vested right to freedom, which cannot be curtailed except by valid order made in strict compliance with the statute. But no prisoner can be said to have a vested right to being detained at a particular place, which can be said to be infringed by his detention at some other place. The right of choice as to the place of detention is within the absolute discretion of the Provincial Government, and therefore, in the relevant sense, the statutory requirement must be regarded as directory and not mandatory, so that failure of compliance in respect of a period spent in detention, does not by itself operate to invalidate such detention. Each of the appellants was held in the jail at Dera Ismail Khan in the North-West Frontier Province from the 15th May 1952, till the 8th June 1952, during which period the orders relating to their detention prescribed places in B3luchistan for the purpose. On the view which I have formed above the detention was not invalidated during this period or in respect of any subsequent period by reason of this defect. I propose now to examine the law in force, and applying to the detenus, between the period 25th October 1952 and 30th March 1953. On the first of these dates, a change was effected in the law, i.e., in section 3 of the N.-W. F. F. Public Safety Act, 1948, by means of an Ordinance promulgated by the Governor of the Province under section 88 of the Government of India Act, 1935. By this Ordinance, it was provided that a new section, consisting of five subsections was substituted for the original section

3. The material changes affected thereby which are relevant for the purposes of the case were as follows. The initial order of the Provincial Government was now to be an order for arrest and detention for a specified period not exceeding six months. Such an cider could only be made if the Provincial Government were satisfied that it was necessary in order to prevent-these "from acting in a manner prejudicial to public safety or the maintenance of public order." The detention could be extended by order, from time to time, for a specified period not exceeding six months at a time, provided that the Provincial Government was satisfied of the necessity on the same grounds, on each occasion when such an extension was to be made. The Ordinance also provided that any person who was in detention under section 3 of the N.-W. F. P. Public Safety Act, 1948, immediately before the promulgation of the Ordi nance, should continue in detention, and his detention should be deemed to have been directed under the new provisions as substituted by the Ordinance. Such an Ordinance is limited in its effect, in point of time, by the provision that it shall be laid before the Provincial Legislature presumably at the meet ing next following its promulgation, and that it shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, or if a resolution disapproving it is passed by the Legislature, upon the passing of such resolution. An Act of the N.-W. F. P. Legislative Assembly (No. III of 1953) was published in the N.-W. F. P Gazette on the 10th March 1953, which purports to repeal the Ordinance mentioned above, while at the same time declaring that any order passed or anything done or any action taken under the Ordinance should continue in force and be deemed to be passed or done or taken under the corresponding provision of the new Act. The new Act substituted a fresh section for section 3 of the N.-W. F. P. Public Safety Act, 1948 provided further that the detention of any person who was under detention immediately before the commencement of the new Act, under section 3, should be continued and should be deemed to have been made under the amended section

3. The only difference of substance between the new section 3 and that which had been substituted by virtue of the Ordinance was the omission of the limitation of 6 months on the duration of detention and extension orders. It may be assumed from the fact of the passing of this Act that the Ordinance mentioned above was duly laid before the Legislative Assembly. The date of its re-assembly as given in the appellants' concise statement is the 15th November 1952, and six weeks from that date would end on the 27th December 1952. The new Act was reserved for the assent of the Governor-General, which appears from a printed copy to nave been accorded on the 2nd January 1953. By section 5 if the N.-W. F. P. General Clauses Act, 1952, it is provided that where a Provincial Act is not expressed to come into force on a particular day, it shall come into operation on the day on which it is first published in the Gazette after having received the assent of the Governor-General. That date was the 10th March 1953 (as appears from the appellants' concise statement) and the Act was not expressed to come into force on any particular day. On these facts the argument was advanced that between the 27th December 1952, and the 10th March 1953, there was no Provincial law in force under which the appellants could have been detained, and the references to the N.-W. F. P. Public Safety Act, 1948, in the orders of detention which cover this period are to that extent void. Further, if the detention for this period was merely wrongful detention, all subsequent detention being not under fresh orders of detention but under orders which were expressed to be and were in fact, orders of extension of a period of detention actually being undergone, were themselves bad. The same argument was presented before the Judicial Commissioners, and was rejected on the ground that, in their opinion, when the Ordinance ceased to operate, i.e., on the 27th December 1952, the original section 3 of the N: W. F. P. Public Safety Act, 1948, was thereupon revived. For the purpose of reaching this conclusion, the learned Judicial Commissioners have made reference to section 6 of the N.-W. F. P. General Clauses Act and have pointed out that its pro visions governing the effect of repeal or expiry of an enact ment, have reference only to Acts of the Provincial Legislature and do not, therefore, apply in the case of Ordinances which are "temporary enactments which have got force only for a limited period, and it is on account of this effect that section 6 of the N: W. F. P. General Clauses Act (II of 1932) is silent with regard to the Ordinance." At another place, the learned Judicial Commissioners have referred to subsection (2) of section 88, Government of India Act, 1935, and have repeated in their judgment the provision contained thereunder that an Ordinance under section 88" has the same force and effect as an Act of the Provincial Legisla ture assented to by the Governor." With respect, it seems to me that in reaching their conclusion on the important con tention, the learned Judicial Commissioners have overlooked the last mentioned provision in the Constitution Act. If an Ordinance has the same force and effect as an Act of the Provincial Legislature, then section 6 of the N.-W. F. P. General Clauses Act must apply to Ordinances in exactly the same way as it applies to Acts of the Provincial Legislature. Section 6 provides expressly for a case "Where an Act in force for a period ceases to operate on the expiry of the period" which condition is satisfied in the case of an Ordinance expiring in the manner suggested in the present case. The section goes on to say that this contingency, when it arises, shall not have certain effects, which are set out in five clauses of which two are relevant, namely, clause (b) which says that the expiry "shall not affect the previous operation of the expired enact ment", and clause (a) which says that the "expiry shall not revive anything not in force or existing at the time when the expiry takes effect." The simple position appears to be that, regarded as an enactment having the full force of an Act of the Legislature, the Ordinance operated to substitute for the original section 3 in the N.-W. F. P. Public Safety Act, 1948, a new section with effect from the 27th October 1952. The expiry of the Ordinance was, therefore, without effect upon this particular operation, being plainly previous in point of time. Secondly, at the time when the expiry took effect the original section 3 was not a part of the N.-W. F. P. Public Safety Act, 1948, and, therefore, the expiry could not have the effect of reviving this section, as the learned Judicial Commissioners appear to nave concluded. i entertain no doubt that the correct position in this behalf is that as from the 27th October 1952, section 3 of the N.-W.F.P. Public Safety Act, 1948, stood amended in the new form as provided by the Ordinance, and that the section continued in this form until the 10th March 1953, when it was replaced by the form as further modified by the Act of 1953. Thus, there was no hiatus in the law in this respect and in addition, in view of express legal provision on the point, all detentions under the original section 3 continued under the section in its inter mediate form and finally in the section in the shape which it assumed on the 10th March 1953. The detention orders in respect of each of the detenus which have been placed before this Court by the Crown may now be examined in point of continuity. Those relevant to Abdul Ghafoor Khan commence on the 22nd January 1952, with an order of that date under section 3 of the N.-W. F. P. Public Safety Act, 1948, for the arrest of Abdul Ghafoor Khan, and a direction that he be committed in custody for a period of one year to the Central Prison, Machh, where he was at the time undergoing imprisonment for failure to furnish security demanded under section 40 of the Frontier Crimes Regulation, 1901. The period of this order was to expire on the 22nd January, 1953 (excluding the date of the order itself in computing the period, as is the rule in relation to legal instruments of this kind). However, on the 8th June 1952, a fresh order was made which is peculiar, inasmuch as it is expressed in a form out of keeping with the terms of the original section 3, but entirely in keeping with section 3 in the form given to it on the 27th October 1952, and eventually on the 10th March 1953. For instance, it is expressed to be an order of extension of detention, and contains a declaration that the extension was necessary for the statutory purposes. It is noteworthy that two orders of subsequent date, namely the 7th December 1952, and the 16th May 1953, by which the period of detention was extended by six months in each case, were precisely in this form, but when these later orders were made, the law had been altered by the Ordinance of 1952 and the Act of 1953 respectively. How such an advance compliance with a contemplated change in the law occurred has not been explained. Learned counsel for the appellants made it a ground of complaint that neither of detenus had at any time been provided with copies of the orders of detention under which they were held. It should be mentioned also that at a number of places in that judgment, the learned Judicial Commissioners have referred to orders of detention made in respect of each of the detenus on the 20th March 1953, a date which does not figure on any of the detention orders which have been placed before this Court, in justification of their detention. It is unnecessary to expatiate on the dangers which attend a system where legal documents forming the entire basis for the detention of certain persons are retained by the authority which orders the detention, while such persons are kept in complete ignorance of their nature and content. Not only is the detenu thereby deprived of his legal right to challenge the validity of such orders by reason of defects appearing on the face thereof, but even the superior Courts, to whom is entrusted the duty of verifying the legality and propriety of the detention when moved in this behalf must perforce proceed on such documents as the detaining authority chooses to place before them. There is no need to emphasise the great advantage to be gained in this respect by furnishing copies of detention orders to then persons who are detained, so that their right of challenge, which is the only right they possess, there having been no trial, should be entirely unimpaired and further, that the Courts) may be enabled in scrutinising the validity of the detention to proceed upon the orders delivered to the detenus, without risk of substitution. In fairness, it should be stated that no allega tion of substitution was made before us on behalf of the detenus, in respect of this order of the 8th June 1952, or of any other of the orders under examination. This order of the 8th June 1952, may be considered along with a similar order of the same date made in relation to Abdul Wali Khan, who was at that time undergoing detention at Quetta in Baluchistan under an order of the 17th May 1952, made under section 3 of the Act directing his arrest, and com mitting him to custody in Quetta for a period of one year, terminating on the 17th May 1953. In each case the order of the 8th June 1952, was made before the expiry of the term of the existing order, and directed detention for six months at D. I. Khan. It was contended that the orders were bad because they referred to subsection (1) of section 3, which as then in force only provided for arrest without warrant, but the misdescrip tion does not invalidate the order, as power to fix the place of custody and the period of custody at such place is clearly derivable from subsection (2). It was then contended that the order was rendered bad, or at least doubtfully valid in law, because while expressed to be an extension order, it had the effect of curtailing the period of detention. There is a patent misdescription, but equally there is no doubt that, in substance, the order is within the terms of the empowering statute, and it operated clearly to the benefit of the detenu, since it brought forward the date of his release. I am clearly of the view that by altering the period of the detention as well as the place of detention, the Provincial Government intended to, and in fact did, cancel or supersede the earlier orders which empowered detention for longer periods at other places. It is, in my view, not open to the Crown to urge that after the expiry of the period of the orders dated the 8th June 1952, the detenus could be held in custody To any further period by virtue of the previous orders. It is also clear from the orders made in the two cases sub sequently to the orders of the 8th June 1952, that the Provincial Government itself was of the view that for further extensions, the commencing date was to be the 8th December 1952, and not any date derivable from the orders last previous to the 8th June 1952. For Abdul Ghafoor Khan an extension order was made on the 7th December 1952, extending his detention "for a further period of six months" and directing that he should be detained "up till 8th June 1953". In the case of Abdul Wali Khan the next order after the 8th June 1952, is dated 10th December 1952, a date whose significance will require careful examination presently, but even this order which purports to extend the detention "for a further period of six months" directs that Abdul Wali Khan be detained "up till 8th June 1953". In each case, therefore, the Provincial Government made it clear that its intention in making its order dated the 8th June 1952, was that the terminal date of the detention so ordered should be the 8th December 1952. Continuing the review of the orders in relation to Abdul Ghafoor Khan, following the order of 7th December 1952, which was made under section 3 of the Act in its interim form as provided by the Ordinance, another order was made in similar terms on the 16th May, 1953, extending his detention "for a further period of six months" and directing that he be detained "up till the 8th December 1953". In the absence of challenge on any valid grounds, these orders which are con tinuous in point of time appear to me to furnish a complete answer to the challenge raised by Abdul Ghafoor Khan in respect of his detention at the time when his case was brought before us. It is true that the order of the 16th May 1953, was not scrutinised by the learned judicial Commissioners, although, as their judgment shows, they dealt with another order of the 20th March 1953, which has not been produced before us. An order covering the present detention being presented before us which is ex facie regular, we cannot decline to give effect to it, particularly as it gives rise to no legal rights or obligations such as have not been examined and adjudicated upon by the Court below. In the case of Abdul Ghafoor Khan, the order of the 16th May 1953, purports to extend the existing detention. The detention which was to be extended was in itself unexceptionable, and, therefore, its further extension by an order of admitted legality cannot be called in question. But as respects Abdul Wali Khan the position is different in a significant respect going to the legality of his detention from the date 9th December, 1952, onwards. As has been seen, the next order in his case after that of the 8th June 1952, whose effect expired on the 8th December 1952, is dated the 10th December 1952. It has also been seen that the order of the later date purports to extend, the detention for a period of six months, with effect from the 8th December 1952, that is to say, with effect from a date in the past. Learned counsel appearing before us for the Crown refrained, and in my opinion wisely so, from attempting to argue that section 3 of the Act, in any of its three shapes which have required scrutiny in these proceedings, provided authority for the making of detention orders to take legal effect from a date in the past. Action of this kind is calculated to destory altogether the fundamental conception of the liberty of the subject which underlies all -the relevant law in force. It is difficult to conceive of a law which would authorise such action being passed in any civilised country to-day. Con sequently, before contemplating the possibility of allowing validity of action of this kind, the Courts would require to be satisfied that the statute authorised such action in express terms or by implication of a literally compelling nature. The statutes applying in this case contain no words from which an implication of any kind can be drawn such as is necessary to meet the case of the detention of Abdul Wali Khan on the 9th December 1952, if it is to be validated by reference to the order of the following day, namely the 10th December 1952. The order relating to Abdul Wali Khan subsequent to the 10th December 1952, is one dated the 16th May 1953, and is, in terms, an order of extension of an existing detention. Such an order plainly cannot operate to validate either the detention which it seeks to extend, or the order by which such detention has been directed. If, therefore, the detention of Abdul Wall Khan on the 9th December 1952 was illegal, it could not be extended in any legal sense by the order of 10th December E 1952, and the further extension by the order of the 16th May 1953, is, on the same ground equally bad in law. The case may have been different if the order of the 10th December 1952, had been a fresh order directing arrest of Abdul Wali Khan and following up such order by a direction for his detention and custody. The learned judicial Commis sioners have indeed declared their view that this order as well as the earlier order of the 8th June 1952, are to be regarded as fresh orders directing arrest and detention. With respect, I am unable to support the conclusion. If the Provincial Government were directing an arrest to be followed by deten tion, they could certainly have done so in express terms, in the manner employed by them once previously in the case of Abdul Ghafoor Khan and no less than seven times previously in the case of Abdul Wali Khan. It is quite clear from a careful examination of the various dates in the orders relating to him that Abdul Wall Khan was, in the eye of law, a free man on the 9th December 1952. He was held in illegal custody by the Provincial Government. In order to bring him once again into legal custody it was necessary to pass an order for his arrest, and upon this order being executed, it would have been competent to the Provincial Government to detain him. In the absence of an order for arrest a mere direction that he be committed to custody at a certain place for a certain period as if be was already in legal detention is plainly ineffective. I conclude accordingly that the present detention of Abdul Wali Khan is illegal and that he is entitled to immediate release. Before concluding this judgment, I think it is my duty to notice certain complaints affecting the conduct of the proceed ings before the Judicial Commissioners which were raised on behalf of the appellants. One such matter is that the Judicial Commissioners procured or, at any rate, had access to secret official files concerning the two detenus and allowed their minds to be swayed to such an extent by the contents of these files, that they have made a reference in their judgment to a secret letter on one file for the purpose of supporting their view that the order of detention of Abdul Ghafoor Khan was made by the Provincial Government in good faith. This was done without allowing Abdul Ghafoor Khan to inspect these files. The second such matter is the refusal of the Judicial Commissioners to furnish the detenus, even at the hearing of their petitions, with copies of the detention orders on which the Provincial Government relied for continuing to hold them in detention without trial. In each case, the action of the learned Judicial Commissioners appears to me to have been regretable. Although the hearing of a petition under section 491 Cr. P. C. is not in the nature of a trial, yet it is a judicial proceeding, and the procedure is to be governed so far as may be by the rules of natural justice as applicable in substance to all judicial proceedings. In the absence of any statutory justification, there is de parture from a rule of natural justice in a Court referring to certain documents produced by one of the parties, without allowing the opposite party access to such documents and the right to challenge them. The departure from such rule is aggravated and the danger of a failure of justice is emphasized when matters of fact appearing from such documents are accepted without further proof by the Court, and held against the opposite party, without allowing it an opportunity to challenge and if possible rebut such proof. A Court which acts in this way, might nevertheless believe that it is acting judicially and even perhaps justly, but it is certainly ignoring the fundamentally important requirement of the judicial process that justice must not only be done but must be seen to be done. The refusal of the learned Judicial Commis sioners to allow the detenus copies of the detention orders which were, in fact, the sole charter under which they were held in custody without trial, invites the same criticism. It is clear, however, that these matters have no bearing or effect in relation to the validity or otherwise of the detention orders in question. We dismiss the appeal in relation to Arbab Abdul Ghafoor Khan, but in accordance with the opinion of the majority of the judges the appeal as regards Abdul Wali Khan is allowed, and he is to be released forthwith. A. H. Order accordingly.