P L D 1957 (W (PLP)

RAHMAN, C. J.‑

This order will dispose of Criminal Miscellaneous Petitions Nos. 1124, 1125 and 1126 of 1957 sent through Jail by Siraj‑ud‑Din, Farman Ali and Muhammad Din. These three persons are being detained under the Security of Pakistan Act, 1952 (hereinafter referred to as the Act) by virtue of orders passed by the Central Government under subsection (1) of section 3 of the Act. The petitioners have challenged their detention as illegal and have prayed that they may be released forthwith. I have had the assistance of Mr. S. A. Mahmud, Additional Advocate‑General, in considering the facts of these cases. The facts are similar and identical law points are involved in these petitions. It will, therefore, be con venient to dispose of them together. The history of these cases is as follows. Siraj‑ud‑Din was originally detained under the N. W. F. P. Public Safety Ordinance, 1948, with effect from the 10th of October 1948. His detention was extended from time to time under valid orders passed by the Governor, N. W. F. P., till the 31st of January 1950, when he was ordered to be detained by the Central Government for six months under clause (b) of subsection (1) of section 3 of the Pakistan Public Safety Ordinance, 1949. The detention of Siraj‑ud‑Din was duly reviewed and extended by the Central Government from time to time under the provisions of the Act, the last order in this connection being dated the 23rd of March 1956. The case of this detenu was examined by the Advisory Board within three months of the date of the order .as laid down in. Article 7 (4) of the Constitution. He had previously sent an application by way of habeas corpus (Criminal Miscellaneous No. 1204 of 1956) last year which was dismissed by me on the 12th of November 1956. In the case of Farman Ali, the first order of detention was passed under clause (b) of subsection (1) of section 3 of the Act, on the 29th of September 1955. This order was served on him on the 14th of October 1955, while he was being detained in the Sialkot jail under the Punjab Public Safety Act. The grounds of detention were duly com municated to him on the same date. With the promulgation of the Constitution, a fresh order of detention, which was to remain in force until further orders, was passed in respect of this detenu by the Government of Pakistan on the 23rd of March 1956 and the grounds of his detention were also intimated to him in the Sialkot jail on the 28th of March 1956. His case was examined by the Advisory Board constituted under Article 7 of the Constitution and it was found that there was sufficient cause for his detention. The detenu was informed of the decision of the Advisory Board on the 23rd of June 1956. He too filed a petition by way of habeas corpus (Criminal Miscellaneous No. 1355 of 1956) which was dismissed by me on the 17th of December 1956. Muhammad Din was being detained in the Sialkot jail under the Punjab Public Safety Act when he was served with an order of detention passed under clause (b) of sub section (1) of section 3 of the Act, on the 14th of October 1955. Along with the order, the grounds of detention were also communicated to him. After the new Constitution had come into force, a fresh order of detention was passed by the Government of Pakistan on the 23rd of March 1956, the grounds of detention being intimated to him in Sialkot jail on the‑ 28th of March 1956. The Advisory Board, as constituted under Article 7 of the Constitution, was con sulted and they were of the opinion that there was sufficient cause for his detention. The detenu was duly informed of this opinion. He too filed a petition by way of habeas corpus (Criminal Miscellaneous No. 1.356 of 1956) which was dismissed by me on the 17th of December 1956. The question arises, therefore, whether in the case of Siraj‑ud‑Din after the 12th of November 1956 and in the other two cases after the 17th of December 1956, the detention of the petitioners was in any way open to legal objection. Under the Act, as it originally stood, detention orders could be passed under section 3 and restrictive orders controlling subversive associations or the dissemination of certain kind of information by publication, could be made under sections 10, 11 and 12 of the Act. Section 7 of the Act provided that in every case where a detention order was passed under clause (b) of subsection (1) of section 3, or where an order was made under sections 10, 11 or 12, the authority making the order shall, within three months of the issue of the order, place before the Advisory Board constituted by the Central Government under section 5 of the Act, the grounds on which the order had been made and the representation, if any, made by the person or persons affected by the order. There was thus a common Advisory Board which had to be consulted in respect of all these orders. Section 8 of the Act enacted, inter alia that on receipt of the report of the Advisory Board, the Central Government, after considering it, shall pass such order thereon as appeared to the Central Government to be just and proper. An obligation was, however, laid on the Central Government to review all such orders every six months from the date of the order unless revoked earlier and specifically in the case of an order under clause (b) of subsection (1) of section 3, it was prescribed that the person affected by the order must be informed of the result of the review. The President promulgated the Adaptation (Security Laws) Order, 1956, with effect from the 23rd of March 1956 and it was published in the gazette dated the 15th of June 1956. Certain changes were introduced in the Act, by this adaptation. In order to bring the provisions of the Act into conformity with the constitutional position, as envisaged in Article 7, a new subsection (8) was inserted in section 3 of the Act to read as follows :‑ " No order of detenion made under clause (b) of sub section (1) of section 3 shall remain in force for more than three months from the date on which it was made unless before the expiration of that period an Advisory Board set up in pursuance of clause (4) of Article 7 of the Constitu tion has reported that there is in its opinion sufficient cause for such detention." As a consequence, section 5 of the Act was amended to make it clear that the Advisory Board constituted under that section would only be consulted in respect of orders other than those passed under clause (b) of subsection (1) of section

3. The Advisory Board mentioned in Article 7 of, the Constitution thus replaced the Advisory Board contem plated by section 5 in respect of detention orders passed under clause (b) of subsection (1) of section

3. The reference to an order made under clause (b) of subsection (1) of section 3, was deleted from sections 7 and 8 of the Act and section 9 of the Act which permitted detention of a person in certain circumstances without obtaining the opinion of the Advisory Board was altogether omitted. The result was that with these amendments of sections 7 and 8, there 'was no statutory obligation left on the Central Government to review every six months, orders of detention passed under clause (b) of subsection (1) of section 3 or to inform the persons affected by the order, of the result of such a review. The question is whether the amendment of section 8 in this sense was intra vires the President or not. In the preamble to the President's Order VIII of 1956, [Adaptation (Security Laws) Order, 1956. reference is made to clause (2) of Article 224 of the Constitution as providing legal sanction for the order. This clause of Article 224 may be reproduced in full with advantage: " For the purpose of bringing the provisions of any law in force in Pakistan or any part thereof into accord with the provisions of the Constitution, the President may, within a period of two years from the Constitution Day, by Order, make such adaptations and modifications in such law, whether by way of amendment or repeal, as he may deem necessary or expedient, and any order so made shall have effect from such date, whether before or after the date of the making of the order, but not being prior to the Constitution Day, as may be specified in the Order." It is contended by Mr. Mahmud that this provision conferred ample powers on the President to make not merely adaptations in any law in order to make it consonant to the constitutional provisions but also to make any other modifications or amend ments that he might consider necessary or expedient. By way of analogy, learned counsel invited my attention to section 9 of the Indian Independence Act which empowered the Governor‑General to make such provisions as appeared to him to be necessary and expedient, inter alia for bringing the provisions of that Act into effective operation and for making omissions from, additions to and adaptations and modifications of, the Government of India Act, 1935, and the Orders in Council, rules and other instruments made there under, in their application to the two new Dominions of Pakistan and India. To my mind there is no analogy between Article 224 of our Constitution and section 9 of the Indian Independence Act, 1947. Clause (1) of subsection (1) of section 9 of that Act authorised the Governor‑General in so far as it appeared necessary and expedient in connection with any of the matters mentioned in the section, to vary the constitution, powers or jurisdiction of any legislature, Court or other authority in the new Dominions and to create new legislatures Courts or other authorities therein, besides making such changes in the Government of India Act, 1935, as were considered necessary or expedient. These were very wide powers enabling the Governor‑General even to make constitutional changes. Article 224, clause (2), on the contrary, gives a restricted power inasmuch as the opening words of this clause make it clear that the changes to be effected in any law in force in Pakistan must be directed towards the object of bringing its provisions into conformity with the Constitution. These are admittedly words of limitation and must be given full force and play. Although in this clause the Governor-General is empowered not only to make adaptations but also modifications in the law whether by way of amendment or repeal, it is in my opinion clear that such amendment or repeal would also be subject to the limitation imposed by the opening words of the clause. Such modifications or repeal would also be really an adaptation so as to remove any repugnancy between the provisions of the Constitution and such law. In a recent judgment of the Supreme Court in Remington Rand of Pakistan v. The Islamic Republic of Pakistan (1) the learned Chief Justice of Pakistan observed that "adapta tion" does not include the making of fresh laws and is confined to the making of verbal changes in a law to suit its provisions to the changed conditions. In my view this dictum of his Lordship clearly governs the situation in the present case, and it would be wrong to assume that by virtue of clause (2) of Article 224 of the Constitution, the President could make any but verbal changes in the relevant law so as to bring it into consonance with the constitutional provisions. Indeed, even if the President had not passed any such order of adaptation, the Courts would have been entitled under clause (PLR1957SC1=PLD1957SC170) of Article 224 to read the necessary adaptations into the relevant law vide the observations of the learned Chief Justice of Pakistan at page 44 of Jibendra Kishore v. The Province of East Pakistan (P L D 1957 S G 9). It must, therefore, be considered whether the deletion of the provisions in the Security of Pakistan Act, 1952, which made it obligatory for the Central Government to review all orders of detention every six months from the date of such order unless revoked earlier and to inform the person affected of the result of such review, was legally effected or not. The answer, in my opinion, should be clearly in the negative. The Constitution did not require the deletion of any such provision from the Act. Clause (4) of Article 7 of the Constitution merely declared that no law providing for preventive detention shall authorise the detention of a person for a period exceeding three months, unless the appropriate Advisory Board has reported before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention. In the Explanation appended to this clause the " appropriate Advisory Board " is defined as meaning in the case of a person detained under a Central Act or an Act of parliament, a Board consisting of persons appointed by the Chief Justice of Pakistan, or, in the case of a person detained under a Provincial Act or an Act of a Provincial Legislature, a Board consisting of persons appointed by the Chief Justice of the High Court for the Province. Such Boards have 'undoubtedly been set up and the amend ment of section I of the Security of Pakistan Act, 1952, by the insertion of subsection (8) was perfectly in order. But there is no warrant for the deletion of the provision, from section 8 of the Act, laying an obligation on the Central Government to review its order every six months and to A inform the detenu of the result in the Constitution. The result is, therefore, that this provision of Article 8 must be regarded as still standing in the Act intact, because its deletion was ultra vices the powers of the President under clause (2) of Article 224 of the Constitution. It is not contended that this result could have been achieved by the) President in view of any other provision of the Constitution. It is conceded by Mr. S. A. Mahmud that although as a matter of practice the Central Government had reviewed the orders of detention in all the three cases under discussion, the results of such review were not communicated to the detenus as required by the proviso to subsection (4) of section 8 of the Act. The failure of the Central Government to comply with the statutory obligation in respect of the detention orders, in my opinion, makes the further detention of these persons illegal. The provisions of a Statute which imposes restrictions on the personal liberty of a subject must be strictly and rigorously complied with before an order of detention without trial in a regular Court of law, can be upheld by the Courts. The liberty of the subject is too precious an asset to be interfered with unless an order of detention is passed in strict conformity with the provisions) of the detention law however, formal in character they may appear to be, and all the statutory obligations enjoined on the detaining authority are carried out to the letter. I am, therefore, constrained to the conclusion that at present the detention of these three petitioners has become illegal for want of compliance with the proviso to subsection (4) of section 8 of the Act which must be regarded as still subsisting in the Act despite its deletion by Order of the President. I, therefore, direct that the three petitioners be set at liberty forthwith. Announced. A.H. Petition accepted