P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑

This petition which was presented by Nur Muhammad for issue of an appropriate writ s) that Muhammad Sadiq, his rival candidate in an election to the Union Council Ward No. 1, Choah Saidan Shah, District Jhelum, should be declared disqualified for being a member of a Basic Democracy, came up for hearing before a Division Bench consist ing of my learned brothers, Muhammad Yaqub Ali and S. A. Mahmud. One of the questions that arose before that Bench was whether the fact that an order under section 3 of the Punjab Public Safety Act was passed against Muhammad Sadiq debarred him from seeking election to a Basic Democracy. The tentative opinion arrived at by the two learned Judges was that Muhammad Sadiq was debarred from contesting an election, and as another Division Bench consisting of my Lord the Chief Justice and Justice J. H. Rizvi had taken the view that an order under section 3 of the Punjab Public Safety Act did not disentitle a person from seeking election to a Basic Democracy, Muhammad Yaqub Ali and S. A. Mahmud, JJ. requested the learned Chief Justice that the case should be referred to a larger Bench for decision of this question of law that fell for determination and the learned Chief Justice directed that the case be laid before the present Full Bench.

2. The material facts are these. During the Anti‑Ahmadiya Agitation in the now defunct Province of the Punjab in the year 1953, Muhammad Sadiq was arrested as a result of an order issued by the District Magistrate, Jhelum, under section 3 of the Punjab Public Safety Act, 1949. He remained in confinement for a few days and was released on tendering an apology. This sudden curtailment of the period of detention initially ordered was in accord with the usual practice followed by the authorities during the Anti‑Ahmadiya Agitation. Nur Muhammad, the petitioner, raised before the Returning Officer the objection that because of his detention under the Punjab Public Safety Act Muhammad Sadiq was disqualified for seeking election to a Basic Democracy. The objection was upheld by the Returning Officer but was repelled .by the Collector of the Jhelum District to whom a revision petition was presented by Muhammad Sadiq. It was with a view to hav ing the effect of the order of the Collector passed on revision nullified that Nur Muhammad came to this Court with the present writ petition.

3. It is not denied that an order under section 3 of the Punjab Public Safety Act was passed against Muhammad Sadiq in 1953, during the Anti‑Ahmadiya Agitation. Mr. Ghias Muhammad who argued the case for the petitioner contended that the fact of the detention of Muhammad Sadiq being establish ed, Paragraph 5 of the Elective Bodies (Disqualification) Order, 1959, came into play and stood in the way of Muhammad Sadiq. The contention of Mr. S. M. Nasim, Advocate, who appeared for Muhammad Sadiq, respondent No. 2 to the writ petition, however, was that as the detention of Muhammad Sadiq in 1953 was ordered because it was deemed necessary for maintenance of Public Order and was consequently for preventing a breach of the peace and a disturbance of public tranquility Muhammad Sadiq was not disqualified for becoming a member. Reliance of Mr. S. M. Nasim was on the words used in sub‑paragraph (2) of paragraph 5 of the Elective Bodies (Disqualification) Order, 1959. This sub‑paragraph which was added by the Elective Bodies (Disqualification) (Amendment) Order, 1960, reads as follows :‑-- " Nothing in clause (b) of the preceding paragraph shall be construed as referring to any order or direction having for its purpose the prevention of a breach of the peace or distur bance of the public tranquility." In addition Mr. S. M. Nasim relied on the decision of my Lord the Chief Justice and Justice J. H. Rizvi in Ata Ullah and others v. Muhammad Ashraf and others (1) wherein it was held that if an order under the Punjab Public Safety Act was passed in order to prevent a breach of the peace or the disturbance of public tranquility, the disqualification mentioned in sub‑paragraph (Writ Petition No. 227 of 1960) of paragraph 5 of the Elective Bodies (Disqualification) Order, 1959, did not arise.

4. The case came up before this Bench for the first time on the 11th of July 1960 and when Mr. Ghias Muhammad bad concluded his arguments Mr. M. Anwar, the learned Advocate General, West Pakistan, who appeared for the Collector, Jhelum, respondent No. 1 to the petition, was asked by the Bench whether it was mentioned in the order passed against Muhammad Sadiq respondent for what reason he had been ordered to be detained, and the learned Advocate‑General replied that he would be able to give that information on the next day On the 12th of July 1960, the learned Advocate‑General informed the Bench that the Home Secretary to the Government of West Pakistan had requested for a short adjournment so that the views of the Central Govern ment may also be placed before the Court. He further stated that he had contacted the Attorney‑General who had informed him that he will be ready to argue the point within three or four days, whereupon a notice was issued to the Attorney‑General. The Attorney‑General appeared before the Bench to‑day and we have had the advantage of knowing the views of the Central Government on the point.

5. The learned Advocate‑General contended first of all that even if there were any substance in the contention raised on behalf of Nur Muhammad, the petitioner, no question of issue of a writ arises because another efficacious remedy being open to Nur Muhammad petitioner through an election petition, a aril should not issue. It is not open to this Bench to determine what weight this contention is entitled to because the only point referred to the Full Bench is the effect of the order passed under section 3 of the Punjab Public Safely Act against Muhammad Sadiq, respondent No. 2, with the result that the Bench is precluded from going into any other question. If the learned Advocate‑General wants to agitate this matter, the proper forum to do so is the Court of the Division Bench to which the case will be returned after the point referred to the Full Bench has been answered.

6. I will now take up the question whether Muhammad Sadiq, respondent No. 2, was debarred from seeking election to a Basic Democracy by reason of the fact that an order under section 3 of the Punjab Public Safety Act had been passed against him. The Division Bench which dealt with Writ Petition No. 227 of 1960, took the view that prevention of breach of the peace or disturbance of public tranquility, to some extent, was the maintenance. of public order and, therefore, an order passed against a person under the Punjab Public Safety Act on the ground that his detention was necessary for the maintenance of public order did not attract paragraph 5 (1) (b) of the Elective Bodies (Disqualification) Order, 1959. An exact definition of " public older " is not easy to give, but there is no denying the fact that a breach of peace or disturbance of public tranquility may, in certain cases, be reasonably construed to be a breach of the public order. The question, however, arises whether sub paragraph (2) of paragraph 5 of the Elective Bodies (Disqualifi cation) Order, 1959, means that if an order under a Safety Law has been passed against a person with a view to maintaining public order, sub‑paragraph (2) of the above‑mentioned para graph 5 comes to his aid and he cannot be held to be disqualified for seeking election to a Basic Democracy. It will be noted that the words " the prevention of a breach of peace or disturbance of public tranquillity " are the same as are used in the opening part of section 107 of the Code of Criminal Procedure and there is, therefore, considerable force in the contention of Mr. Ghias Muhammad, which was supported by the learned Attorney General and the learned Advocate‑General, that the orders passed as preventive measures which did not entail disqualification were only those which were passed under section 107 of the Code of Criminal Procedure or similar sections of other laws in force in some parts of Pakistan. This argument did not find favour with the Bench dealing with Writ Petition No. 227 of 1960, mainly for the reason that section 107 of the Code of Criminal Procedure was not mentioned in sub‑paragraph (2) of paragraph 5 of the Elective Bodies (Disqualification) Order, 1959, but, in my view, the omission to mention that section is not of much significance. The reason for the omission appears to be that an order contemplated by section 107 of the Code of Criminal Procedure may have been passed in some places in Pakistan, where the Code of Criminal Procedure may not be applicable, by virtue of some other law.

7. It appears to me that sub‑paragraph (2) of paragraph 5 of the Elective Bodies (Disqualification) Order, 1959, was deemed necessary because it was believed by some persons that even an order passed under section 107 of the Code of Criminal Procedure or some similar provisions would attract clause (b) of subpara graph (1) of paragraph 5 of the Elective Bodies (Disqualification) Order, 1959, and on the language of that sub‑paragraph this belief cannot be considered to be entirely unwarranted. It will be noted that after mentioning an order under section 3 of the Security of Pakistan Act, 1952, the sub‑paragraph goes on to say that if a similar order was passed for inter alia, maintaining public order, disqualification became attached to the persons against whom the order was passed and some persons may well have believed that the words " similar order " were intended to include orders passed under section 107 of the Code of Criminal Procedure. If by adding sub‑paragraph (2) to paragraph 5 of the Elective Bodies (Disqualification) Order, 1359, the intention of the lawmaker were that persons who were detained under a law authorising the Government to resort to preventive detention for the maintenance of public order without taking the case to Court, the words " public order " appearing in sub‑paragraph (1) (b) of paragraph 5 would have been deleted. It may be that breach of the peace or disturbance of public tranquillity can be considered to be distur bance of public order on a small scale, but I cannot bring myself to believe that the law‑maker intended to leave it to the officers entrusted with elections to Basic Democracies to determine whether the evil which was sought to be prevented by an order of deten tion under a Safety Law was disturbance of public tranquillity, breach of the peace or amounted to disturbance of public order.

8. The language employed in sub‑paragraph (2) of para graph 5 of the Elective Bodies (Disqualification) Order, 1959, which sub‑paragraph was inserted by the Elective Bodies (Disqualification) (Amendment) Order, 1960, could no doubt have been less ambiguous than it is, but it is clear that the intention was that sub‑paragraph (2) was meant to exclude those cases from the purview of clause (b) of sub‑paragraph (1) of paragraph 5 of the Elective Bodies (Disqualification) Order, 1959, in which orders bad been passed under section 107 of the Code of Criminal Procedure or some similar provision in some other law and not A those cases in which orders were passed under the Pakistan Security Act, 1952, or other similar legislative measures which aimed at keeping in detention, without orders from a Court, of persons believed by the executive authorities to be persons whose detention was necessary in the interests of the country. It is not unlikely that some orders of detention under the Safety Laws were issued because a person in authority wag of the view that a person who was opposed to him was a menace to the country, but if the person against whom the order had been passed did not succeed in having the order vacated by a Court or some other authority on the ground that it was a misuse of the powers conferred by law and, therefore, not an order under the law under which it purported to be, the disqualification will come into play. If, however, the order was vacated by a competent Court or authority on the ground that it was not justified, it shall be deemed not to have been passed at all and will not result in the disqualification contemplated by clause (b) of sub‑paragraph (1) of paragraph 5 of the Elective Bodies (Disqualification) Order. 1959.

9. In view of what I have said above I would hold that the case of Muhammad Sadiq, respondent No. 2, attracted clause (b) of sub‑paragraph (6) of paragraph 5 of the Elective Bodies (Disqualification) Order, 1959, and would direct that the case go back to the Division Bench which referred the question to the Full Bench, so that the other questions that may arise may be disposed of. B. Z. KAIKAUS, J.‑

I agree. A. R. CHANGEZ, J.‑

I also agree. A. H, Order accordingly.