P L D 1966 (W (PLP)

JUGDMENT S. A. MAHMOOD, J.‑By this writ petition under Article 98 (a) (b) (i) of the Constitution of Islamic Republic of Pakistan Malik Hamid Sarfraz impugns the validity of the order of detention made against Nawabzada Nasrullah Khan by the Deputy Commissioner of Lahore under rule 32 (1) (b) of Defence of Pakistan Rules on the 16th of February 1966, on the following grounds :‑ (a) That the order of the Deputy Commissioner could not have been executed at a place outside the District of Lahore. (b) That the detention of the detenu outside the District of Lahore on the basis of the order of the Deputy Commissioner, Lahore, is not permitted by law. It is prayed in consequence that the detenu be directed to be produced before this Court and an appropriate order be passed in regard to him.

2. The Deputy Commissioner, Lahore, ordered his detention under rule 32 (1) (b) of the Defence of Pakistan Rules, exercisable by the Central Government and conferred on him, and directed his detention in the District Jail, Lahore. He was arrested on the following day from his village Khangarh in the District of Muzaffargarh. On the 16th of February 1966, the Provincial Government made an order under sub‑rule (4) of rule 32 of the Defence of Pakistan Rules read with Government of Pakistan Notification No. S. R. O.III, dated the 6th of September 1965 that he be detained in Kohat Jail.

3. The learned counsel for the petitioner has challenged the legality of the order of arrest and detention made by the Deputy Commissioner, Lahore, and the order of his detention in the Kohat Jail. The objection to the order‑ of arrest and detention made by the Deputy Commissioner is that it could only be made in respect of a person within his jurisdiction, because the exercise of power under the sub‑rule is limited within his jurisdiction by Notification of the Provincial Government No. 9‑86‑H‑Spl.‑1/65, dated the 20th of September 1965 published in the West Pakistan Gazette Extraordinary dated the 22nd of September 1965, and the detenu was in his village Khangarh in Muzaffargarh District on the day on which the order of detention was made, and this order could not be executed at village Khangarh. The second objection is that the Provincial Government had not the power to direct his detention in Kohat Jail, since the delegated power in rule 32 (1) (b) had been exhausted by its exercise by the Deputy Commissioner.

4. We have held in the case of Writ Petition No. 314 of 1966 (Begum Sardar Shaukat Hayat Khan v. The Deputy Commissioner, Lahore, etc.), Writ Petition No. 315 of 1966 (Begum Sardar Muhammad Zafarullah v. The Deputy Commissioner, Lahore and another); Writ Petition No. 316 of 1966 (Begum Jilani Malik v. The Deputy Commissioner, Lahore and another and Writ Petition No. 342 of 1966 (Kh. Muhammad Shafi v. The Deputy Commissioner, Lahore) decided today, that the Provincial Government had authority under sub‑rule (4) of rule 32 to make an order as to the place of detention, in a case in which an order of detention has been made by the Deputy Commissioner under rule 32 (1) (b). The power in sub‑rule (4) is not conferred on the Deputy Commissioner and no question arises that the delegate having exercised the delegated power, it is not available to the Provincial Government. There is no delegation of power of Provincial Government to the Deputy Commissioner, but a conferment of power under subsection (5) of section 3 of the ordinance. Since we have stated our reasons in our order in those petitions, it is not necessary for us to detail them here, We see no force in the second contention.

5. There is no proof before us to support the contention of the learned counsel for the petitioner that the detenu was not residing at Lahore or was not in Lahore on the date on which the Deputy Commissioner made the order of arrest and detention. On the contrary, the Deputy Commissioner has filed an affidavit that he was residing at 131‑E, Gulberg at the residence of Malik Ghulam Jilani at the relevant time. This affidavit stands unrebutted. Therefore, the objection that the Deputy e Commissioner in making the order of arrest and detention did not exercise his power within his jurisdiction, has no force.

6. The further question, which remains to be considered, is whether the order of arrest and detention made by the Deputy Commissioner in respect of a person within his jurisdiction could be executed outside his jurisdiction. Regarding this contention, our attention has been drawn to rule 208 of the Defence of Pakistan Rules, which reads as under :‑ "208. (1) Any authority, officer or person who is empowered by or in pursuance of the Ordinance or any of these rules to make arty order or to exercise any other power may, in addition to any other action prescribed by or under these rules, take or cause to be taken, such steps and use or cause to be used such force as may, in the opinion of such authority, officer or person, be reasonably necessary for securing compliance with, or for preventing or rectifying any contravention of such order or for the effective exercise of such power. (2) Where in respect of any other provisions of these rules there is no authority, officer oar person empowered to take action under sub‑rule (1) the Central Government may take, or cause to be taken, such steps and use, or cause to be used, such force as may in the opinion of the Central Government be reasonably necessary for securing compliance with, or preventing or rectifying any breach of such provision. (3) The power to take steps under sub‑rule (1) or under sub‑rule (2) includes the power to enter upon any land or other property whatsoever." Since we have held that the Deputy Commissioner had authority and had validly made an order of detention against the detenu under rule 32 (1) (b), and he was empowered by and in pursuance of the Ordinance and the rules to make the order, he could take or cause to be taken such steps for securing compliance with the order as were necessary. A distinction between the making of an order of detention and the execution of the order exists. An order of detention is made under rule 32 (1) (b) and the execution of the order is governed by sub‑rule (4) of rule

32. Therefore, in our view, a valid order of the Deputy Commissioner having been made, its execution at village Khangarh, District Muzaffargarh, was possible and was not invalid.

7. For the reasons given above, the detenu is neither detained unlawfully nor in an unlawful manner. We, therefore, dismiss this writ petition, but make no order as to costs. K. M. A. Petition dismissed.