P L D 1954 Peshawar 84 (PLP)

MUHAMMAD SHAFI, J.‑A man is born free, which means that his inclinations are determined by his instincts and desires, but then in order to be a member of any civilized community and organized society of individuals, it is neces sary for him to learn somehow or other to control and direct his instincts, his desires, his inclinations i.e. in order to be free he must to some extent lose his freedom. One, of the ways by which this object is achieved is by bringing into being a Government which controls and adjusts these. instincts by framing laws and regulations and issuing decrees. No Government, which is by the people, of the people, and for the exclusive benefit of the people, takes away the freedom of action of the people unless it 'is absolutely good. A Government realizes that the people feel, thrive act with a sense of freedom are every time better and responsible than the people who live under constraint compulsion and in daily fear of losing their freedom. In all democratic countries there is, therefore, no conflict between the Government and the people; it really is between the liberty of the people and the individuals who are entrusted with the task of enforcing the Government laws, regulations and decrees. To put it in brief language, the conflict is between the authority and the liberty of the people. If persons in authority do not exercise their, powers in strict accordance with the law of the country, but in a despotic, arrogant and Savage Way, then it is the Government which is undermined and becomes in the course of time unpopular. There was nothing wrong with the British Nation, which ruled India in pre‑partition days except that the conflict between them and us was intimately connected with a conflict regarding the value of our freedom. The result was that the British Nation had to leave. The inference is that if the persons in authority have any regard for the Government which they have the honour to serve, then they must abide by the laws of the country more than anybody else. The case before us is yet another case in which the Government;' North‑West Frontier Province, through its Chief Secretary, has violated the law of the country and has acted in a despotic way, by depriving one Mansab Ali, son of Rehmat Ali, of his freedom. Mansab Ali has made an application under section '491, Cr. P. C. in the nature of habeas corpus, questioning the legality of his deten tion, and requesting that he might be set at liberty forth with. We are regretfully may painfully conscious of the fact that our previous judgment in Miscellaneous application No. 16 of 1953 (Ajab Gul son of Inzar Gul of Tehkal Bala, Tehsil and District Peshawar v. The State P L D 1954 Pesh. 20) was treated by the authorities with complete indifference and contempt, by not only not taking any action against the defaulting officers whose action was severely criticized in it, but as we understand it arresting the very person whose immediate release was ordered by us, before our signatures on the judgment got dried up. In a spite of that, we must do our duty and do it fearlessly. The conceit of the Executive Authorities mug be matched by the independence, fearlessness and integrity of the judi ciary. With these preliminary remarks we proceed on with the case in hand. The Deputy Commissioner Bannu, by his Memorandum No. 313/ST, dated the 19th April 1952, reported to Mr. M. Ahmad, the Chief Secretary to Government, North West Frontier Province, that Mansab Ali mentioned above was strongly suspected to be an Indian spy, and, therefore, the orders for his detention under the Public Safety Act might be passed for a period of six months. This Memo randum was put. up to the Chief Minister, who approved the suggestion, but at the 'same time he observed that the external enemies, as Mansab Ali, was, could not be shown as North‑West Frontier Province Political prisoners. The necessary order for the detention of Mansab Ali, for a period of two months to start with and thereafter for a period of four months in the Central prison, was passed on 1st May 1952. Subsequently the detention of Mansab Ali was from time to time extended until 9th January 1954, when the period of detention under the North‑West Frontier Province Public Safety Act was further extended up till 30th of July 1954. In between, the Provincial Govern ment appointed a Special Committee consisting of the Chief Secretary, the Advocate‑General, the Inspector‑General, of Police and Mr. Habibullah Khan, the Sessions Judge, Peshawar, to review all cases of detention under (1) The North‑Vest Frontier Province Public Safety Act, (2) The Foreigners' Order, 1951, and (3) The Preventive Sections of the Frontier Crimes Regulation. This Committee in so far as the present detenu was concerned recommended on 4th November 1953, as under :‑ "The Committee is satisfied that pending further investigation (which should be completed early) he may remain under detention." This recommendation coming from a Committee, which in cluded two experienced law‑knowing gentlemen, has come to us as a complete surprise, because the North‑West Frontier Province Public Safety Act does not warrant the detention of any person in public custody for 'the purpose of interrogation: Before the 30th of July 1954, when his detention under the North‑West Frontier Province Public Safety Act expired, the detention of Mansab Ali on the recommendation of the Inspector‑General of Police, the Chief Secretary and the A. I. G., C. I. D., was con verted into one under the Foreigners' Order. The necessary order passed may be reproduced verbatim here. It is dated 30th of January 1954, and is signed by Mr. M. Ahmad, The Chief Secretary to Government, North‑West Frontier Province :‑ "Whereas in the opinion of the Provincial Government it is necessary for the public safety to detain Mansab Ali. Now; therefore, in exercise of the powers confirmed by paragraph 15 of the Foreigners' Order, 1951, the Pro vincial Government hereby require you‑the Superintendent, Central Prison, Peshawar‑to detain the above‑named person for a period of six months with effect from 30th January 1954. It is further ordered that the said Mansab Ali shall be treated as class same as before detenu." Now, Mansab Ali, even if he is a foreigner, has got the right to have complete freedom of action in the democratic State of Pakistan, unless, of course, the Government considers it necessary to arrest and detain or confine him. Under section 3 of the Foreigners' Act No. XXXI of 1946, the Central Government has got the power to make order, making provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into the Provinces and the Capital of 'the Federation, or their departure. There from or their presence or continued presence therein. In order to exercise powers, under section 3 of the Act, the Central Government by Notification No. 10/7/48‑Poll. (1), dated 22nd October 1951, has made any order (hereinafter referred to as Foreigners' Order) bringing into existence an elaborate machinery for the arrest and detention of a foreigner:‑ By this order a "Civil Authority" is appointed by the Central Government, which is given\ the discretion to arrest any foreigner without warrant if in his opinion it is necessary for the public safety so to do, and detain him in such manner and at such place as may to such authority appear suitable. The "Civil Authority", then, after he has exer cised his discretion in arresting and detaining a certain person as a foreigner is required to submit a report of such arrest or detention forthwith to the Central. Government with a statement of reasons therefore, and then it is for the Central Government to either cancel such order, or modify the' manner of such detention in such a manner as it may deem fit. The Central Government by Notification, dated 13th February 1952, has entrusted the functions of the Central Governments under the Foreigners' Order, 1951, to the Provincial Government with their consent, subject to the condition that notwithstanding this entrust ment the Central Government might itself exercise .any of the said functions in. any particular case, or class of cases. This action was taken 'by the Central Government in exercise of the powers conferred upon the Governor‑General by section 124 of the Government of India, Act 1935. It is under the Foreigners' Order, 1951, that the last order of detention of Mansab Ali is claimed to‑have been made by the Provincial Government: The ordinary reading of section 3 of the Foreigners' Act read with the Foreigners' Order, would show that the Central Government in order to deal with the foreigners, in particular to arrest and detain them, must appoint a "Civil Authority", which authority then in its turn must exercise those powers, if in its opinion it is necessary to do for the public 'safety: As a result of the delegation of powers by the Central Government to the Provincial Government, it is now the Provincial Government which also has got a power to appoint a "Civil Authority", which authority then can exercise the same powers as the "Civil Authority" appointed by to Central Government. It is conceded by the learned Advocate‑General that the Provincial Govern ment has not appointed such "Civil Authority" to deal with the foreigners. The Provincial Government, independently of the Foreigners' Order, has no jurisdiction to arrest or detain a foreigner, because it is the powers of the Central Government under the Foreigners' Order that have been entrusted to the 'Provincial and not its powers under the Foreigners' Act. The Provincial Government, therefore, has no authority to order the arrest or detention of any foreigner without appointing the "Civil Authority". In this, view of the case, the order of the Chief Secretary reproduced above will be absolutely without jurisdiction and ultra vires. The learned Advocate‑General' made an attempt to justify this order by putting up an argument from which it was very difficult, if not impossible, to form any precise idea of what he meant. His argument was somewhat like this; that by the‑ delegation of its powers under Foreigners' Order, by Notification, dated 13th February 1952, the Central Government should be presumed to have appointed the Provincial Government as the "Civil Authority". This argument is on the face of it untenable, and does not require much discussion to refuse it. Even if it be conceded for the sake of argument, that the Provincial Government was appointed a "Civil Authority" and it in that capacity ordered the detention of the applicant, in the Central Prison, Peshawar, then it was its duty under the second proviso to paragraph 15 of the Foreigners' Order to submit a report of such arrest and detention forthwith to the Central Government and the final word then lay with the Central Government either to cancel such order or modify the manner of such detention in such a mariner as it deem fit. It is clear from the statement of Mr. Ahmad, Chief Secretary, that no such report was submitted to the Central Govern ment, and when he was asked the reason for this default, he stated that it was because this provision of law was not brought to his notice. Ignorance of law is no defence for anybody, much less in the case of such a responsible officer as the Chief Secretary. The fact remains that the law enjoins that a report of arrest and detention should at once be submitted to the Central Government, and this was not done in this case. It is an elementary principle of law that in a case in which a certain person has got to be detained without trial, then the provision of law for such dentition must be strictly complied with. From whatever point of view, therefore, the case is looked at, Mansab Ali's detention is without jurisdiction and illegal. His application is, therefore, accepted, and he is ordered to be released forthwith: There shall be no order as to costs. Order announced. A. H Release of detenu ordered.