P L D 1959 (W (PLP)

??????????? West Pakistan, Lahore." On the 10th of February 1959, he was transferred from the Central Prison, Hyderabad, to the custody of the C. I. D., Lahore, and has since been detained in Lahore. He was kept in the fort for about seven weeks and now he is lodged in the Central Jail.

2. The learned counsel for the petitioner has challenged the order of detention on a number of grounds, but on the view which I am taking in the matter, it will be unnecessary to express any opinion on any of the other contentions raised, except on the following two points :‑ (1) Whether the Sind State Prisoners Regulation XXV of 1827 is one of the existing laws in Pakistan, and (2) Whether this Regulation authorises detention of any person outside the area formerly known as Sind ?

3. As regards the first point, it has been contended that the Regulation had been rendered void upon the enactment of the Constitution of the Islamic Republic of Pakistan, because it contains no provisions for an Advisory Board to function in accordance with clause (4) of Article 7 of the Constitution, and further because it contains no provision as regards the com?munication of the grounds of detention to the detenu, as required by clause (5) of Article 7 of the Constitution. In support of this contention, the learned counsel for the petitioner has placed reliance on an unpublished judgment of a Full Bench of this Court (Karachi Bench) in Writ Petition No. 795 of 1958, Hasham alias Channu v. Tribunal and D. M. Karachi (P L D 1959 Kar. 286) decided on the 10th of December 1958, whereby it has been held that the enactments rendered void by the Articles relating to Fundamental rights in the late Constitution are not in force in Pakistan. A different view appears to have been taken by the Supreme Court in the case of The State v. Dosso (P L D 1958 S C (Pak.) 533). But I need not pursue this matter; any further, because it has been expressly held by the Supreme Court in another case that the detention laws have not become void on the ground that they do not contain any provision in accordance with clauses 4 and 5 of Article 7 of the Constitution. The precise point came up for consideration before their Lordships of the Supreme Court of Pakistan in Abdul Aziz alias Labha and others v. The Province of West Pakistan (P L D 1958 S C (Pak.) 499), where a decision of this Court (Karachi Bench) in the case of Fazal Ahmad Ghazi v. The State (P L D 1957 Kar. 190) to the effect that the Baluchistan Public Safety Regulation, 1947, had become void upon the enactment of the Constitution because it was inconsistent with clauses 4 and 5 of Article 7 of the Constitution, was overruled, and their Lordships were pleased to observe as follows :‑ "But in the case of a statute of general application whose operation in relation to individuals would be by means of orders made thereunder, it is the validity of the orders which would be hit by the non‑observance of the condition prescribed by clause (4) and not the validity of the Statute itself." As to the argument based on clause 5 of Article 7, their Lordships were pleased to affirm the conclusion arrived at in the case by the High Court (Lahore Bench) that that clause clearly guaranteed certain rights to the detenu, but did not prescribe that the detention law must necessarily contain any corresponding pro?vision. The principles enunciated above were laid down by their Lordships in cases arising out of orders of detention passed under section 3 of the Punjab Public Safety Act. The same objections had been raised before their Lordships as have been pressed into service before me in the present case. When in the course of the arguments, the attention of the learned counsel for the petitioner was directed towards this ruling, he very frankly conceded that in view of the clear law laid down by the Supreme Court, there was no substance in the contention raised by him. In the light of the aforesaid ruling there can be no doubt that the Regulation had not become void, because of the apparent inconsistency with clauses 4 and 5 of. Article 7 of the late Constitution.

4. The learned counsel, however, raised another objection as to the non‑existence of this Regulation on the ground that the Scheduled Districts Act XIV of 1874, under which this Regulation had been declared to be in force in the Province of Sind vide Notification No. 1254, dated 30th November 1880, ceased to have effect under the Government of India (Adaptation of Indian Laws) Order, 1937, and consequently this Regulation also ceased to be operative. Rule 3 of the Government of India (Adaptation of Indian Laws) Order, 1937 provides as follows :‑ "

3. The Indian Laws mentioned in the Schedules to this order shall, until repealed or amended by a competent Legis?lature or other competent authority, have effect subject to the adaptations and modifications directed by those Schedules to be made therein or, if it is so directed, shall cease to have effect." The plain meaning of this rule is that the laws mentioned in the Schedules to this Order shall have effect subject to the adaptations and modifications directed by those Schedules to be made therein, or if it is so directed shall cease to have effect. The Scheduled Districts Act XIV of 1874 is mentioned in the First Schedule, and what is stated thereunder is as follows :‑‑ "This Act shall cease to have effect, without prejudice to the continuing validity of any notification, appointment, regula?tion, direction or determination made thereunder and in force immediately before the commencement of Part III of the Government of India Act, 1935: "Provided that, where immediately before the first day of April 1937, any enactment is, by virtue of any notification made under this Act, in force in any area in British India, either with or without restrictions or modifications, the Central Government, in relation to matters enumerated in List I of the Seventh Schedule to the Government of India Act, 1935, and the Provincial Government, in relation to other matters, may, within six months from the said date,, by notification in the Official Gazette, declare that the enactment in question shall have effect in that area subject to such notifications and adaptations specified in the notification as the Government in question may deem necessary or expedient to bring it into accord with the 0ovcrnment of India Act, 1935." It will thus be seen that the validity of any notification, appointment regulation, direction or determination made under the Scheduled Districts Act has been expressly saved, subject to the proviso, that where any enactment was by virtue of any notification made under this Act, in force in any area before the 1st day of April 1937 then the Central Government or the Provincial Government could have declared within six months from the said date that the enactment in question shall have effect subject to such modifications and adaptations specific‑d in the notification, as the Government in question might have deemed necessary or expedient to bring into accord with the Government of India Act, 1935. It does not mean that the Government concerned had to declare that such an enactment was to remain in force. It means only this that the enactment was to remain in force by virtue of the main clause and under the proviso the Government concerned was empowered to make the modifications and adaptations according to their require?ments to bring it into accord with the provisions of the Govern?ment of India Act, 1935. In this view of the matter, the conten?tion raised on behalf of the petitioner is devoid of any force. I am, therefore, of the view, that the Regulation, though very old, archaic and antiquated, is still alive and is one of the existing laws in Pakistan.

5. On the question whether the Regulation authorises detention of any person outside the area formerly known as Sind, the learned counsel for the petitioner seems to be on firmer ground. In order to appreciate this point, it will be convenient to set out the relevant provisions of the law on the subject. Rule I enacted under the Sind Regulation XXV of 1827 is as follows :‑ "

1. First.‑When reasons connected with the maintenance of public order in the Province inn; seem to the Provincial Government to require that an individual should be placed under restraint, without any immediate view to ulterior pro?ceedings of a judicial nature, it shall be lavful for the Provincial Government * * * * to cause such individual to be apprehended in such manner as the Provincial Government may deem fit, and, when apprehended, to be delivered over to any officer in whose custody it may be deemed expedient that he shall be placed, with a warrant of commitment to such officer's address. Second.‑The warrant of commitment shall be in the form specified in Appendix A, and shall be sufficient authority for the detention of any State Prisoner in any fortress, jail or other place within the Province." "Rule 10 reads thus :‑ "

10. This Regulation extends to the whole of the Province of Sind as constituted under the Government of India Act, 1935." The various Provinces and States were integrated into the Prqvince of West Pakistan by the Establishment of West Pakistan Act, 1955. Section 4 of this Act reads as follows :‑ "Amendment of laws.‑As from the appointed day any reference in any Act, including the Government of India Act, 1935, and the Indian Independence Act, 1947, or in any rule, regulation, order, bye‑law or public notification to any specified territory snail be construed as a reference to the Province of West Pakistan, or as the context may indicate, to a part thereof. Section 10 (1) is in the following terms :‑‑ "10. (1) Continuation of laws.‑(1) Except as otherwise provided in this Act, and subject to any order of the Governor-General under section 5 of this Act and to the powers of any competent legislature, all laws in force in West Pakistan immediately before the appointed day shall (continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed." The combined effect of the aforesaid provisions is too obvious to need any detailed analysis. It would be apparent from a perusal of section 10 (1) of the Establishment of West Pakistan Act that except as otherwise provided in this Act, all laws in force in West Pakistan immediately before the appointed day shall continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed. In the light of this and having regard to the relevant provisions of the Regula?tion there can be no manner of doubt that the provisions of the Regulation are applicable to the area and the persons referred to in the Regulation. Rule 1 (Second) of the Regulation leaves no room for doubt that the person concerned leas to be detained in any fortress, jail or other place within the Province formerly known as the Province of Sind.

6. The learned Assistant Advocate‑General argued that section 4 of the Establishment of West Pakistan Act, 1955, authorises the detention of such a person in the whole of the Province of West Pakistan, because the reference to the specified territory in the Regulation shall be construed as a reference to the Province of West Pakistan. This argument is based on the words used in section 4 that a reference to any specified territory in any Act, Regulation, rule etc. shall be construed as a reference to the Province of West Pakistan or as the context may indicate to a part thereof. In my opinion, the words underlined are of special significance and cannot be lightly overlooked. The learned Assistant Advocate‑General had to concede that reference in rule 10 of the Regulation to the Province of Sind could not be construed as a reference to the Province of West Pakistan Surely, the Governor of West Pakistan is not empowered to detain any person living in the area formerly known as West Punjab, or in the North‑West Frontier Province, or in any other area outside the area formerly known as the Province of Sind The learned counsel for the petitioner strenuously urged that where a law is capable of various interpretations, that which favours the subject should be given effect to in making the decision. I have given the matter my earnest consideration in view of the importance of the question involved and having regard to the context in which the word "Province" is used in Rule 1 (Second) of the Regulation, I have come to the conclusion that the reference to the specified territory in it shall be construed as' a reference to that part of the Province of West Pakistan, which' was formerly known as the Province of Sind. It, therefore, follows that the petitioner could have been detained under the Regulation in any fortress, jail or other place only within the area of the Province formerly known as the Province of Sind and not outside of it.

7. For the aforesaid reasons, I hold that the detention of the petitioner in Lahore is illegal and unwarranted. The detention of the petitioner in Lahore being illegal, I direct that the detenu who is present in Court be set at liberty forthwith. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Detenu set at liberty.