P L D 1955 Peshawar 35 (PLP)

MUHAMMAD SHAFT, J.

This is an application under section 491 of the Code of Criminal Procedure and sec tion 223-A of the Government of India Act, 1935, by Muhammad Afzal Khan Bangash an Advocate of this Court, for his immediate release from the Central Prison Peshawar, where, as it is alleged by him, he is illegally and improperly detained under an order purporting to have been made by Governor North West Frontier Province on the 23rd of July 1954 under section 3 of the North-West Frontier Province Public Safety Act, 1948. On the 11th of November 1954, when this application came up before me for hearing, I found that the Government had placed upon the record typed copy of the notings which presumably led to the passing of the impugned order. Before autenticating by his signatures the arrest order of the appli cant, Mr. M. Ahmad the Chief Secretary to the Provincial Government had recommended that orders of detention under section 3 of the Public Safety Act (N.-W. F. P.) be passed against certain persons because the Inspector-General of Police had made available certain evidence against them. The names of these persons do not find their place in the notings. Before, however, obtaining orders from Honourable the Chief Minister he forwarded the papers on to the Advocate-General "To see". This authority noted down that he had scrutinized the orders of detention and that they might issue. Honourable the Chief Minister just wrote down "Paras 1-4" and then put his signatures on the notings. This brevity may have some significance from the official point of view, bur one cannot help noticing that Honourable Chief Minister's treatment of the case was casual and superficial in extreme. He may have but then he did not show that he bestowed that care and attention on all important question concerning the fundamental right of a subject of free state of Pakistan viz. his liberty which it deserved. This led the learned counsel for the detenu to argue, and I must say with considerable justification, that the notings show that the order of detention was in fact made by the Advocate-General and not the Chief Minister. Be that as it may, the notings make it quite obvious and the learned Advocate-General admits it unequivocaly that the arrest and the detention order in question emanated from Honourable the Chief Minister and not the Governor-as it claims to proceed from. To me prima facie it appeared that under the constitution contained in Government of India Act, 1935, as adapted by the Pakistan (Provisional Constitution) Order, 1947, the responsibility of depriving a person of his liberty so important and dear not to that person alone but to all right-thinking men and constitutionalists, does not rest on one single indivi dual, however highly placed he may be, but on combination of individuals namely the Governor and his Ministers. Since it was an extremely delicate question of vital importance, not only for this Province but for the whole of Pakistan, I referred it to the Bench for decision. My Lord the Judicial Commissioner, the only other member of the Bench of this Court, however, could not sit on the Bench because the detenu's' father was very closely related to him, and I am consequently deprived of His Lordship's esteemed assistance and profound knowledge of law, and compelled to decide the question. difficult though it is, quite alone. On the 20th of November 1954, when the application came up before me for the second time, learned counsel for the petitioner did not refer to the above question at all in his rather brief arguments. In spite of that I asked the learned Advocate-General to assist me in arriving at a correct decision on the above proposition of law. He expressed his inability to argue the point on that day and so the case had to be adjourned for another twelve days. In a way it was lucky because I had a few days more to do some more serious thinking about this question, which in my view, is extremely vital for the future of our young country though inhabited by an old nation. Under section 3 of the North-West Frontier Province Public Safety Act No. XXI of 1948, it is the Provincial Government, which, after having been satisfied about the existence of certain conditions, is alone authorised to pass orders of arrest and detention in custody of certain individuals. The questions which automatically follow the above direction of law are (1) what is a Provincial Government ? and (2) Who in law is entitled to exercise the authority of Provincial Government ? Herein lies the entire controversy and the real importance. The term Provincial Government has not been defined by the N.-W. F. P. Public Safety Act, nor by the North-West Frontier Province General Clauses Act 11 of 1932. It has, however, been defined by the General Clauses Act X of 1897 as adapted by the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947, as "Governor" in Governor's Province, but this definition will not be applicable to the present case because it arises out of the Provincial Act, while Act X of 1897 applies to the Acts and the Regulations made by Central Legislature or authority as the case may be. It does not find any place even in the interpretation section of the Govern ment of India Act, 1935, although "Local Government" is defined therein as meaning" "Any such Governor in Council, Governor Acting with Ministers, Lieut Governor in Council, Lieut Governor or Chief Commissioner as was at the relevant time at Local Government for the purposes of the Government of India Act or any Act repealed by that Act, but does not, save where the context otherwise requires, include any local Government in Burma or Aden." Some assistance may be derived from this definition but then the real and true meaning of this expression can only be gathered from different sections of the Government of India Act, 1935 (hereinafter called Constitution Act) dealing with the duties, functions and the business of a Provincial Government. Under section 49 of the Constitution Act, the executive authority of a Province is to be exercised by the Governor of that Province either directly or through officers subordinate to him. In the exercise of his these powers as well as other functions detailed 'in the Act, he has to be aided and advised by a Council of Ministers, the members of which are selected by him (sections 50 and 51 of the Constitution Act), The Provincial Government therefore is the Governor conducting the affairs of the Government of a Province including those c of the executive nature as aided and advised by a Council of Ministers. This was the definition which in substance was accepted as correct by a Bench of this Court in case Ajab Gul v. Crown (P L D 1954 Pesh. 20). The next question which arises is, as to who in law is entitled to exercise the authority of Provincial Government. The answer admits of no doubt whatsoever. It requires no straining of one's imagination or the possession of extra ordinary commonsense to understand from the plain meanings of sections 49, 50 and 51 of the Constitution Act that it is the Governor as aided and advised by his Ministers who is entitled to exercise this authority. Governor alone is not the Pro vincial Government and is therefore not authorised to act as such ; similarly the Ministers individually or collectively are not the Provincial Government and have no jurisdiction what soever in the matter, their only function in law being to aid and advise the Governor. That the Ministers are not the Provincial Government was held before too by an Honourable Judge of this Court Malik Khuda Bakhsh J. in case Khan Sahib Muhammad Hashim Khan v. Provincial Government N.-W. F. P. (P L D 1950 Pesh. 13). The Governor and the Ministers thus jointly from the Provincial Government and are both the integral part thereof, but separate one from the other they completely lose the jurisdiction to deal with the affairs of the Provincial Government. It is not for this Court to go into the sagacity and the propriety of these provisions of law, but even they are quite patent and obvious. Governor could not be given the absolute power because he was not the representative of the people, but then having regard to the circumstances which existed in prepartition India and which unfortunately still exist in Pakistan even seven years after its establishment it is necessary for the maintenance of sound Government that the ultimate responsibility of all executive acts of the Pro vincial Government should rest with the Governor. He in principle has no party history and is free from that bias which proceeds from party loyalty. He is the only person who in the present day political machinery of this country is capable of acting impartially. It is true that he cannot constitution ally pass any order unless advised to do so by the Council of his Ministers, but even then perpetual watchfulness on his part on the constantly increasing power of one or all of his Ministers is absolutely necessary. Democracy in this country is in the elementary stages of experiment. Pakistani people have still got to develop, their political and constitu tional ideas. The electorate is prominantly illiterate and ignorant and does not even know the value of its votes. Only recently the so-called politicians, who have still got to learn the elementary principles of politics had helped in the deterioration of political situation in the country to such an extent that a major shake-up at the centre was considered by His Excellency the Governor-General as absolutly necessary. With the electorate and politicians, mentioned above it is very difficult to even say that the legislatures existing -to-day are fairly elected or that they represent with any degree of precision or accuracy the opinion of the electorate. In this elementary stage of the political life of a country there must be somebody having power to curb the absolutism of a party possessed of a parliamentary majority or the growth of the authority of one single individual or a set of individuals who control that majority. The Constitution Act has given this power to the Governor, who, if he possesses personality and power of perception can bring to bear his influence on the Ministers and deter them from giving him a wrong advice or an advice which is unconstitutional, arbitrary or is based on malice or tends to disrupt the country or create a chaotic condition. If the Ministers in spite of the warning of the Governor insist , on their advice, then the Governor may refuse to Act on such advice which might result in the resignation or even dismissal of the Ministry. No doubt the Governor is bound to use these powers with vigilance and sagacity and only when it is absolutely necessary to do so, but still the powers are there and the Governor in the interest of the country and the nation shall be failing in his duty if out of regard to the Ministers he failed to exercise them whenever the occasion arose. Under the existing constitu tion the Governors are the safeguards against the arbitrary actions of the Ministers, and Ministers against those of the Governors. If the Governors are completely taken out from the machinery of the Provincial Government, then not only some of the provisions of the Constitution Act, will become redundant but the Ministers who do not possess any real power, will get unbounded and a formidable power, the thing which the existing constitution has tried to prevent. It is suggested that the Governor is a constitutional head of a Province without having any real power meaning thereby that he is only an ornament, a luxury which Pakistan can ill afford. This suggestion is completely untenable and against the clear provisions of the Constitution law. It was also suggested that his (Governor's) position is the same as that of the British monarch. This is again a very false idea. England does not possess any codified law of Constitution while this country has. There can, therefore, be no comparison of the Governors with the English Kings because in order to know the authority of the former we have to look to our written and formal document laying down the constitution of the Provincial Government; according to which, as has been argued at length, the Governor has special place and specific powers. It is argued by the learned Advocate-General that the Governor can strip himself of all his powers by making rules under section 59 of the Constitution Act. Under sub sections (3) and (4) of this section the Governor is authorized to make rules for the more convenient transaction of the business of the Provincial Government and the allocation among Ministers of the said business. It is important to note that the Governor can only make rules for the more convenient transaction of the business of the Provincial Government as distinguished from with regard to his executive authority and function and not divest himself of the authori ties assigned to him under sections 49, 55, 59, 62, 63 and some of the other sections of the Constitution Act. The British Parliament in using the words "Executive Authority" in section 49 "Functions" in section 50 and "Business of the Provincial Government" in section 59 must have a definite purpose to use these three expressions in three different sections. In my view the word "Business" implies the day to day and routine work of the Government. It is only with regard to this that the Governor is authorised to make the rules. It is an impossible construction which can be placed on these provisions of law that a Governor by just framing rules can turn sections 49 and 50 of the Constitution to naught, and can not only divest himself of the statutory authority, but vest it on some-body else. For example can it be said that a Governor by making rules under section 59, lay down that for more convenient transaction of the business of the Provincial Government he alone would discharge the functions of the Provincial Government without being aided and advised by his Ministers. The only sensible answer to this enquiry will be No . Well if he cannot under his rule making powers divest the Ministers of their statutory authority how can he possibly do so with regard to his. Again how can he exercising those powers give an independent status to an authority which has under the law got only advisory capacity. It can, however, be legitimately said that the Governor under section 59 of the Constitution Act can divide the business of the Provincial Government into different departments and then allocate those departments to different Ministers not to pass independent orders but to aid and advise him with regard to the matters concerning their respective departments. On certain matters he can say in, the rules that the advice shall be tendered by one Minister and in more important matters by all the Ministers jointly, but then that is all, he cannot go further than this. In the North-West Frontier Province the Governor has under his rule-making powers framed certain rules which are called Rules of Business 1951. Under Rule 3 the Business of the Government is classified and distributed amongst several departments. Preventive detention, with which we are concerned in this case, is placed in Branch (c) Public Order of the Political Department. Under sub-rule (2) of Rule (3) the Governor gives himself the power to allocate amongst the Ministers, in consultation with the Chief Minister, the term not at least recognised by the Constitution Act, the business of the Government by assigning different departments to the charge of different Ministers. Under Rule (5) business of a department shall ordinarily be disposed of by- or under the authority of the Minister in charge. This rule for the reasons already given is repugnant to and inconsistent with sections 49 and 50 of the Constitution Act and therefore ultra vires of the Governor. My attention has not been invited to any authority of the High Courts in Pakistan touching this important question of law. I have, however, been able td lay my hands on some authorities of the Indian High Courts, not qouted at the bar (In fact no authority was quoted). In that country under Article 154 the executive power of the State, as in Pakistan vests in the Governor who can exercise it directly or through officers subordinate to him. Under Article 163 there has to be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions. Under Article 166 (3) the Governor is required to make rules for the more convenient transaction of the business of the Government and for the allocation among Ministers of the said business. These provisions of the Indian Constitution except the provision with regard to the Chief Minister are the same as in Pakistan. There the Chief Minister is appointed by the Governor and the other Ministers also by the Governor but on the advice of the Chief Minister. Unlike Pakistan, the Council of Ministers in India is collectively responsible to the Legislative Assembly of the State. Under this law the first reported case is Gursewak Singh Harnam Singh v. The State (A I R 1954 Pepsu 129,) wherein it was held that all cases do not and need not go to the Rajparmukh and every Minister is competent to administer his department and give appropriate orders except in those cases which according to the Rules of Business must be submitted to the Rajparmukh. The learned judge further held that it was the essence of all democratic constitutions of the kind the Indians have in their country that even in the matters which must be submitted to the head of the State for his approval the latter is bound to follow the advice given to him by his Ministers, but in a case in which a Minister was not bound even to submit the case to the Rajparmukh the orders made by him are final and must be enforced. Apart from the fact that the learned judge without giving any cogent reason for his view, laid down the law rather loosely, he had to admit in his judgment that technically speaking there was no doubt that according to the Constitution Ministers merely acted as advisers to the Rajparmukh. If then this position was technically correct and the Minister could not give the final order then according to well established principles of law a judge, where a fundamental right of a subject is concerned has to act in strict accordance with law. He must not stretch the meaning of a certain law to such an extent that injustice be done to the individuals. If a Minister cannot order according to law the arrest and detention of a certain person and can only tender an advice on the matter to the Governor, it will be wrong to say that he has the jurisdiction to pass the final order. Second case is a Full Bench case Joseph John v State (A I R 1953 Trav. Coch. 130,). It was held "Articles 163 (3) and 167 (a) read together show that. "The question as to the tendering of advice is a matter purely between His Highness the Rajpurmukh and his Council of Ministers. Whether there is or is not a communication of the decisions under Article 167 and if so what the advice tendered under Articles 163 was is not justiciable as Article 163 clearly provides. The precise date when and the particular manner in which the communication was made to the Rajparmukh is be yond the jurisdiction of the Court to consider as it comes within the prohibition claimed in Article 163 (3)". This finding of the learned Court seems to be an obiter because their Lord ships observed in the body of the judgment that His Highness the Rajparmukh in that case had in fact intimation of the decision of the Council of Ministers against the petitioner and in fact the Rajparmukh approved of this action With due respect to their Lordships I have not been able to appre ciate the arguments advanced for empowering the Council of Ministers to pass independent orders in the case. I can quite understand that if a certain order is passed by the Governor or the Rajparmukh, the Courts under Article 163 (3) of the Indian Constitution are prevented to inquire into the question whether any, and if so what advice was tendered by the Ministers, but that surely does not mean that where it is proved that the orders were not made by the Rajparmukh or the Governor the Courts would still be prevented to set aside such order as having been made by an unauthorised authority. The question that where an'order is expressed to be taken in the name of the Governor and authenticated by the Chief Secretary to the Government competent to authenticate it according to the Rules of Business, whether it can be ques tioned in a Court of law or not, was considered by a Bench of this Court very exhaustively in case Ajab Gul v. The State (1). It was held therein that the authentication and the correct form of a certain order only raise a presumption which can be rebutted by bringing to the notice of the Court the facts to the contrary. Apart from the fact that I am bound by this authority iii preference to the authorities of the High Courts in India, it lays down sound principle of law and has the support of the Privy Council and the Federal Court of the Prepartition India. The case of the latter is reported as A I R 1943 Federal Court Page.

76. To revert back to the Indian authority, the following passage from it may be reproduced verbatim to show in what direction the minds of their Lordships were in fact working :- " If there is a failure to communicate as provided in Article 167 the Governor has his remedy under Article 164. (P L D 1954 Pesh. 20) which provides that " Minister shall hold office during the pleasure of the Governor." If the Governor who owes his existence to the Constitution does not accept the advice tendered by his Council of Ministers, the Ministers will have their remedy by way of resignation. The Governor may have a right to send back a recommen dation for reconsideration." This passage from the judgment of their Lordships makes it perfectly clear that all that the Ministers can do was to tender advice on a certain matter to the Governor. It is then for the Governor to pass the final order. If he considered that he could not accept the advice he could either send the matter back to the Ministers for reconsideration or compel them to resign. The question under discussion once before too came up for consideration in this Court but in different shape. This is In the matter of Hamidia Electric Press (P L D 1951 Pesh. 31). In this case an application was made in this Court for setting aside an order made by the Provincial Government directing the keeper of a press to deposit a security of Rs. two thousand because it was alleged that he printed an article which brought the Government established by law in this Province into hatred and contempt. The question discussed amongst other questions was whether the Council of Ministers was the Government. It was decided by a Bench of this Court after discussing sections 49 to 51 of the Constitution Act' that Executive authority of a Province had to be exercised by the Governor as aided and advised by his Council of Ministers. It was further held that the use of the word " said " in section 50 clearly vested the Ministers with power to exercise the executive authority in a Province just as much as it vested the Governor with such powers. The Local Government or the Provincial Government therefore would be the Governor as aided and advised by his Ministers. The cabinet of Minis ters, it was decided in this authority, is an integral part of the Government machinery in a Province and therefore a Government. The same view seems to have been taken by their Lordships of the Federal Court in already quoted authority A I R 1943 Federal Court page

75. The following passage from this judgment may be quoted here with advantage :- " It means the Governor acting in his discretion (in which case his Ministers are not entitled even to tender their advice to him), or the Governor exercising his individual judgment (in which case he must give his Ministers the opportunity of tendering advice but is under no obligation to accept that advice) or the Governor acting on the advice of his Ministers. In each case, it must be the Governor who acts." The above discussion then amply proves that in all matters concerning the executive authority of a Province or the functions of the Governor, it is the Governor who should act although with the aid and advice of his Ministers, and not the Ministers. Preventive Detention is as has not been denied by the learned Advocate-General, an executive act of, the Provincial Government, and it is therefore only the Governor although aided and advised by his Ministers who can exercise such tremendous power, as to take away the liberty of a subject of a free state for preventive detention. Since in the case before me this action has been taken, if it can be said that it was taken by him at all; by Honourable the Chief Minister and not the Governor, it is without jurisdiction and ultra vires. Again supposing if purely for the sake of argument it is conceded that the Governor under his rule-making powers has got the jurisdiction to authorise his Ministers to pass orders which he alone could have done under sections 49 and 50 of the Constitution Act, then at the utmost he could only do so by making a rule to that effect under section 59 of the Constitution Act and allocating these powers to a particular Minister. Under rule-3 of the Rules of Business, 1951, all that the Governor did was that he authorized himself to allocate amongst his Ministers in consultation with the Chief Minister the business of the Government by assigning the several departments to the charge of the Ministers. My attention has been drawn only to certain memorandums from the Secretary to the Governor to all Secretaries to the Government and to all heads of the Departments intimating to them that certain portfolios had been allotted to certain Ministers. They do not even claim to emanate from the Governor much less that they were the rules framed under the relevant law. The Chief Minister consequently could not acquire any jurisdiction in the matter on the basis of these memorandums even if he could be clothed with such powers by the Governor. From whatever point of view the case is looked at, the detention of Muhammad Afzal is completely illegal and without jurisdiction. I am consequently compelled to accept this petition and order the immediate release of the detenu. I leave the parties to bear their own costs. A. H. Petition accepted.