P L D 1965 (W (PLP)

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 3 read with Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 2(4) [as inserted by Constitution (First Amendment) Act, 1963 (1 of 1964)]‑Preventive detention‑Embargo contained in Fundamental Right No. 2 (4), Art. 6 of Constitution Operative only in case of detention beyond period of 3 months‑Con currence of appropriate Advisory Board not necessary where detention does not exceed 3 months‑Satisfaction of Board to be in regard to preventive detention as well as in respect of time‑limit‑Initial order passed by authority for arrest and detention of person for period of "two months" only and case referred to Board during such period Board recording satisfaction about "detention of the detenu beyond period of two months"‑Satisfaction expressed by Board, held, did not authorise detention of detenu for period exceeding 3 months from date of arrest‑West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) [as amended by West Pakistan Maintenance of Public Order (Amendment) Ordinance (XLVII of 1962)], S. 5 (c) (i). Abdul Aziz v. Province of West Pakistan P L D 1958 S C (Pak.) 499 ref. Puranlal Lakhanpal v. Union of India A I R 1958 S C 163 not applicable. (b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 3 Grounds of detention: (i) creating dissatisfac tion among armed forces and (ii) undermining friendly relations of Pakistan with foreign State‑Outside purview of S. 3 inasmuch as Provincial Legislature not competent to legislate about such matters for which Central Legislature has exclusive power to make laws ‑ Constitution of Pakistan (1962), Third Schedule, Item No. 34. (c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 3‑Association (Jamiat) found guilty of prejudicial activities‑Mere membership of such association‑No ground for detention under section. (d) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 3 (5) (al [as amended by West Pakistan Maintenance of Public Order (Amendment) Ordinance (XLVII of 1962)],‑Officer (Home Secretary) dealing with case of detention on behalf of Government‑Cannot be member of Board‑Maxim: Nemo debet esse judex in propria causa (no one can be a judge in his own cause). The Judges v. Attorney‑General for Saskatchewan 55 T L R 464 (P C) ref. (e) West Pakistan Maintenance of Public order Ordinance (XXXI of 1960), S. 3 (5) (c) [as amended by West Pakistan Maintenance of Public Order (Amendment) Ordinance (XLVII of 1962)]‑Provision that "on satisfaction of. Board that sufficient material exists for detaining person beyond period of 2 months, Government may extend period front time-to-time"‑Not in conformity with requirements of Fundamental Right No. 2(4), Art. 6, Constitution of Pakistan (1962)‑Concurrence of Advisory Board required only if period of dentition exceeds 3'months‑Constitution of Pakistan (1962) [as amended], Art. 6, Fundamental Right No. 2 (4). Detenus: (1) Maulana Abul Ala Maudoodi, (2) Mian Tufail Muhammad, (3) Ghulam Jilani, (4) Sayyed Asad Gilani, (5) Maulana Waliullah, (6) Sayyed Siddiqui Hasan Gilani (7) Prof Khurshid Ahmad, (8) Ghulam Muhammad, (9) Fazalur Rehman Naeem Siddiqi, and (10) Maulvi Jan Muhammad Bhutto were also present in Court on all dates, under police escort. Sh. Ghias Muhammad, Deputy Attorney‑General for the Central Government. JUDGMENT MUHAMMAD YAQUB ALI, J.

‑One Rahmat Elahi, son of Allah Ditta, of Zaildar Park, Iehhra Lahore, has preferred this petition under Article 98 of the Constitution to impugn a series of orders issued .by the Governor of West Pakistan under section 3 of the West Pakistan Maintenance of Public Order Ordinance No. XXXI of 1960 (hereinafter referred to in, this order as the Ordinance) arresting and detaining Sayyed Abul Ala Maudoodi, Amir Jama'at‑i‑Islami, and forty‑three other members of the said body, with a view to preventing them from acting in a manner prejudicial to public safety and maintenance of public order.

2. The initial orders of arrest and detention of the said persons bearing the dates the 4th/5th of January 1964, were to last for two months, but during this interval their cases were referred to the Review Board constituted under section 3 (5) (c) (i) of the Ordinance and on their recommendation that "on the material placed before them they were satisfied that there were sufficient grounds for the further detention of the detenus beyond the period of two months" the period of detention was in each case extended by six months. Since then, by a further series of orders the period of detention has in each case been extended up to the 6th of March 1965, on the ground that the Review Board had given a clearance that sufficient material existed for their detention beyond the period of two months and the Governor of West Pakistan was satisfied that with a view to preventing the said persons from acting in a manner prejudicial to public safety and the maintenance of order it is necessary that they be further detained.

3. Before proceeding further, it will be appropriate to mention that almost simultaneously with the making of the initial orders of arrest and detention of Sayyed Abdul Ala Maudoodi and others two notifications were issued by the Provincial Government on the 6th of January 1964, (1) under section 16 of the Criminal Law Amendment Act declaring the Jama'at‑i‑Islami to be an unlawful association and (2) under section 17‑A, enabling the District Magistrates to take possession of the places used, by the said Jama'at. A concerted action was taken against the Jama'at by the Government of East Pakistan and identical notifications under the Criminal Law Amendment Act were issued on even date. Aggrieved by it, Sayyed Abul Ala Maudoodi and two other members of the Jama'at filed petitions under Article 98 of the Constitution, one at Dacca and the other at Karachi, challenging the validity of the notifications on numerous grounds, which it is not necessary to state for the purposes of this order. In the mean time, one Abdur Rahman Sabir of Zaildar Park, Ichhra, Lahore. filed an independent petition at Lahore under Article 98 (2) (b) of the Constitution, directing the Provincial Government and the Superintendent, District Jail, Lahore, to bring before this Court Sayyed Abul Ala Maudoodi and others and to set them free as they were being detained without lawful authority. On the 6th of March 1964, the petition was admitted to hearing and notice issued to the Provincial Government, the Central Govern ment, the Attorney‑General and the Advocate‑General; but, in the meantime, Mr. Sabir applied for the withdrawal of the petition as he had been given to understand that for the time being the detenus considered the lifting of the ban on the Jama'at‑i‑Islami more important than their own release. The prayer was granted and by order, dated the 17th of March 1964, the petition under Article 98 (2) (b) of the Constitution was dismissed as withdrawn. The petitions filed in the High Court of West Pakistan and the High Court of East Pakistan against the Notifications of the 6th March 1964, declaring the Jama'at to be illegal association followed a divergent course. While a Full Bench of this Court declined to interfere with the impugned orders, the High Court of East Pakistan found the provisions of the Criminal Law Amendment Act under which the Notifications of the 6th January 1964, were issued ultra vires of the Constitution and set them aside. To conclude this historical aspect of the case which has a bearing on the determination of the present petition, the matter was ultimately taken to the Supreme Court which has by order, dated the 25th of September 1964, upheld the decision of the High Court of East Pakistan arid in consequence dismissed Civil Appeal No. 19‑D of 1964, preferred by the Government of East Pakistan and allowed Criminal Appeal No. 43 of 1964, by Sayyed Abul Ala Maudoodi against the Government of West Pakistan. According to press reports, since this decision was given the Government of West Pakistan has withdrawn the Notifications issued on the 6th of January 1964, under sections 16 and 17-A of the Criminal Law‑Amendment Act, declaring the Jama'at‑i‑Islami to be an illegal association, and taking into possession the various places used by the Jama'at in the Province.

4. To advert to the facts of the present petition which was filed on the 8th of August 1964, the orders of arrest and detention of Sayyed Abul Ala Maudoodi and forty‑three other members of the Jama'at‑i‑Islami are assailed on the grounds: (i) the Ordinance is an invalid piece of Legislation being repugnant to the Constitution of Pakistan; (ii) that the detention on the grounds mentioned in Annexure `C' is not permissible under the Ordinance; (iii) that the Constitution of the Board (which reviewed the detenus' case under section 3 (5) (e) of the Ordinance is illegal, and (iv) that the detention is mala fide. The petition was admitted to hearing by a Vacation Bench on the 10th of August 1964, and notice issued to the Provincial Government and the Advocate‑General for an early date. In view of the general importance of the question raised before the learned Judges, they requested the learned Chief Justice to constitute a larger Bench to hear the petition and that is how the matter has come up before us without any formal order of reference.

5. In reply to the petition, the Provincial Government has m a comprehensive written statement repudiated the above grounds and in support of it filed (i) copies of the original orders of arrest and detention, (it) the grounds served on the detenus to enable them to make representations to the Review Board, (iii) affidavits of (a) Shahzada Alamgir who was Home Secretary of the Provincial Government at the relevant time and (b) Ch. Sardar Ali, Deputy Superintendent of Police, Special Branch, Lahore, who had forwarded to the Government the information and reports received from different sources about the prejudicial activities of the Jama'at‑i‑Islami and believed by him to be true (iv) copies of representations made by the detenus to the Review Board, (v) copy of the report made by the Board to the Provincial Government and (vi) orders extending the period of detention in each case up to the 5th of March 1965.

6. At the conclusion of arguments spreading over the period 29th of September to 5th of October 1964, the members of the Bench decided to accept the petition and grant the relief asked for in respect of the detenus but judgment was reserved in order that the order we propose to make in the case may appear together with the reasons in support thereof. 7. "The first ground urged by Mr. A. K: Brohi, learned counsel for the petitioners, with considerable emphasis is that on a true construction of Fundamental Right 2 (4), contained in Chapter I of the Constitution, the validity of a law providing for preventive detention will depend on making provision for satisfaction of the Advisory Board (i) that sufficient material exists to detain a person in custody without trial in a Court of Law and (ii) that the period fur which such detention may last is justified in the circumstances of the case. In other words, the period of detention exceeding three months must be stated in, the order in respect of which clearance is sought from the Advisory Board be their satisfaction will not confirm to the requirements of Fundamental Right 2 (4), which reads as follows:‑ "(4) No law providing for preventive detention shall authorize 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." Mr. Brohi laid stress on the words detention of 'a person' for 'a period exceeding three months' and 'such detention'. These words were interpreted to mean that the exact period of detention must be specified in the order in respect of which the opinion of the Board is sought. A fortiori it was contended that the provisions of F. R. 2 (4) did not contemplate extension of an order of detention and that the period for which the Government considered it necessary to detain a person in preventive custody must be determined before the case is laid before the Advisory Board for their satisfaction that such detention was justified. In support of this proposition an additional argument was raised that once the Government or the Advisory Board, as the case may be, have taken into consideration all the material available to them to form the opinion that it is necessary to detain a person in preventive custody, no further material can conceivably come into existence on the basis of which the period of detention may be extended. In substance, it was contended that the Constitution did not contemplate that if the Advisory Board expresses satisfaction that a person be detained in preventive custody the Government may thereafter continue his incarceration for an indefinite period. In theory, much can be said in favour of this argument, e.g., Article 2 of the Constitution provides: "2 (1) To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. "(2) In particular‑ (a) no action deterimental to the life, liberty; body, reputation or property of any person shall be taken except in accordance with law ; (b) * * * * * * * * * * * (c) * * * * * * * * * * * Fundamental Right No. 1 reiterates that no person shall be deprived of life or liberty save in accordance with law. The succeeding right provides safeguard against arbitrary arrest and detention. The person detained is to be informed as soon as may be of the grounds for such arrest, he shall be allowed to consult a legal practitioner of his own choice and within the period of twenty‑four hour he shall be produced before a Magistrate. Thereafter, further detention in custody can be with the authority of the Magistrate and not otherwise.

8. The emphasis is, thus, on curtailing the arbitrary power of the Executive authorities to deprive a person of his life and liberty and from this premise it may fairly be concluded that Fundamental Righi 2 (4) should be interpreted liberally in favour of maintaining the liberty of every person in Pakistan, but Courts can resort to such a course only if the words used in the statute A are susceptible to more than one meaning. Is that so in the present case? The answer is in the negative, for there are no words in Fundamental Right 2 (4) which may be interpreted 0 mean that the period of detention once fixed by the Government cannot be extended thereafter or that the order passed by the Government in the first instance must state outside limit on the period of detention.

9. Sub‑clause (3) of Fundamental Right No. 2 except preventive detention from the safeguard provided in clauses (1) and (2), but to mitigate the hardship which may befall persons arrested and detained in preventive custody an embargo is place that such a law shall not authorize detention of a person for period exceeding three months without the concurrence of the appropriate Advisory Board. What is being said in the clause is,, therefore, about the attributes of the law providing for preventive detention of 'a person' and not about the person who may fall within its mischief. This enunciation will become clear if we have before us a law providing for preventive detention for a maximum period of three months. Undoubtedly, such a law will be excluded from the embargo contained in clause (4) of Fundamental Right No. 2, and the opinion of the Advisory Board is not required as to the sufficiency of the cause for detaining a person in preventive custody. It is only in cases where the period of detention exceeds three months or more, a serious inroad on the liberty of a person, that the opinion of the Govern ment is made subject to a quasi judicial review by an Advisory Board consisting of a Judge of the High Court and a senior Officer in the Service of Pakistan. The sine qua non for the attraction of clause (4) of Fundamental Right No. 2 is, thus, detention for a period beyond three months and not the period set out in the initial order of the detaining authority. Although we are not concerned with the policy of law, it is not difficult to visualise circumstances which render it impossible for a detaining authority to fix in advance the period for which a person may be detained in preventive custody. For example, if an enemy alien is taken into custody during a war, no one would be able to predict as to when the war will end and till that event happens it will be endangering the security of Pakistan to release him from custody.

10. What worried Mr. Brohi was that on this interpretation, once the Advisory Board has given carte blanche the executive authorities will be enabled to misuse the provisions of preventive detention laws by detaining for an indefinite period political adversaries of the party in power. That such a possibility exists cannot be denied, but the remedy against it lies in the domain of Legislative and not Courts. In India, a maximum limit of 12 months for preventive detention has been provided by the law enacted by the Parliament as envisaged in Article 22 of their Constitution. On the enforcement of the 1956 Constitution the Safety Laws West Pakistan were amended and it was provided in section 3 of the West Punjab Public Safety Act, 1949, that‑ "Where an order has been made under subsection (1) or subsection (4) for detention of a person for a period exceeding three months, including, in the case of a person who is already in detention under the provisions of this Act, the period of his previous detention, the authority making the order shall, as soon as may be, but not later than three months from the first date of detention of such person, place before the Advisory Board, constituted under subsection (8), the grounds on which the order has been made and the representation, if any, made by the person affected by the order." In substance, it means that no person could be detained in preventive custody for a period exceeding three months without the concurrence of the Advisory Board not only at the initial stage but whenever it was intended to extend the period of detention beyond the total of three months. There is a famous saying by Sir Cecil Thomas Carr that laws and Constitutions are but paper safeguards of liberty; people must have the will to be free. In Liversidge's case on the same subject Lord Wright said, "But in tile Constitution of this country (England) there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved." To sum up, if the unfettered authority of the Government to detain a person in preventive custody infringes on the concept of liberty enshrined in Article 2 of the Constitution and the Fundamental Rights contained in Chapter 1, the remedy is to bring the laws on the subject into conformity with the will of the people and their good sense but not by the will of the Courts. The first branch of argument raised .by Mr. Brohi on the construction of Fundamental Right No. 2 (4), therefore, fails; but, as will be seen presently, to no benefit of the Government.

11. As noticed above, the Advisory Board must be satisfied that, in its opinion, sufficient cause exists not only for preventive detention of a person but for a period exceeding three months. While giving clearance to such an order the members of the Board will be cognizant that the Government may, thereafter, detain that person for an indefinite period; a circumstance which will weigh heavily on the judicial conscience of the Members of the Board, while forming an opinion for or against" the order of detention. How can the concept of time then be divorced from the functions of the Advisory Board? In the present case, the initial orders of arrest and detention bearing the dates 4th/5th January 1964, were expressed to be for a period of‑ two months from the date of arrest of each of the detenus. During this period their cases were under section 3 (5) (c) of the Ordinance referred to the Review Board consisting of a Judge of this Court and the then Home Secretary of the Provincial Government. The detenus put in written representations repudiating the grounds of their arrest and detention and were also heard in person by the Board. A specimen order passed by the Review Board in the case of Sayyed Abul Ala Maudoodi reads:

‑ "We have considered the material placed before us as well as the lengthy statement put in by the detenu in which he has tried to show that his arrest was mala fide and for an ulterior motive. It is stated that the Jama'at‑i‑Islami has never acted contrary to law. We have gone through the statement and carefully considered the other material placed before us. We are satisfied that there are sufficient grounds for the further detention of the detenu beyond the period of two months. Sd/‑ S. A. Mahmood, 28th February 1964. Sd/‑ S. Alamgir." We are not the Judges of the satisfaction of the detaining authority nor of the opinion formed by the learned Members of the Board that sufficient grounds existed for the further detention of Sayyed Abul Ala Maudoodi, but it is significant to point out that the satisfaction by the Board is for detention beyond the period of two months, whereas the constitutional requirement is "for a period exceeding three months."

12. It does not require a moment's thought to accept Mr. Brohi's contention that clearance for detention of a person for* a period "beyond the period of two months" does not necessarily mean `for a period exceeding three months'. It may be for a period of two months and one day or even three months but not necessarily a day more than that. As the counsel put it, this is simple arithmetic and no argument is needed to bring it home. This contradiction has arisen because the Ordinance has not been brought into conformity with the provisions of Fundamental Right 2 (4). To remedy this situation, the learned Advocate‑General relied on the decision of the Supreme Court to Abdul Aziz v. Province of West Pakistan (P L D 1958 S C (Pak.) 499) that: "Clause (4) of Article 7 of the 1956 Constitution (which q corresponds to the provisions of Fundamental Right 2 (4) does not hit a statute of the relevant kind either on the point of competence or that of content, but applies in respect of the operation of such statute. The clause like every other clause in Article 7, contains nothing in the way of a direction obliging the insertion of its provisions in every statute of the relevant kind. The clause imposes a condition upon the power of detention without trial vested in authorities under existing law, viz., that the satisfaction of the detaining authority regarding the need for detaining a particular person shall not by itself be sufficient for continuing that detention beyond an initial period of three months, unless an Advisory Board, as prescribed, has concurred in the opinion held by the detaining authority in that respect." The decision is of no avail to the respondent because in its report the Board has expressed satisfaction that sufficient material existed for detention beyond the period of two months and not for a period exceeding three months. "Prima facie, it is a serious matter to detain a person for a long period (more than three months) without any enquiry or' trial. But Article 22 (4) (a) provides that such detention may be ordered on the report of the Advisory Board. Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, vie calling for a report from the Advisory Board, loses its value, if the Advisory Board is not to apply its mind to the vital question before the Government, namely, whether prolonged detention (detention for more than three months) is justified or not." In the light of the above decision, we have no hesitation in holding that the detention of Sayyed Abul Ala Maudoodi and others in respect of whom this petition has been made is unlawful inasmuch as the Review Board constituted under section 3 (5) (c) of the Ordinance did not report that sufficient material existed for their detention for a period exceeding three months from the date of their arrest.

14. The impugned orders are also liable to be set aside on the ground that at least two of the grounds (in the case of Sayyed Abul Ala Maudoodi grounds Nos. 5 and 7 and in the case of other detenu grounds Nos. 5 and 6) on which those orders are based fall outside the purview of section 3 of the Ordinance. The relevant grounds, with some unimportant variations, in the case of Sayyed Abul Ala Maudoodi and others, are to following effect: "5. that the said Jama'at is attempting to create dissatisfac tion among the Armed Forces by means of objectionable speeches by its leaders; "7. that you in the October 1963, issue of your monthly Periodical `Tarjuman‑ul‑Quran' have published a vicious and unwarranted attack on Iran and its Royal family with the object of undermining the friendly relations between Pakistan and Iran, which is its traditional ally."

15. The Third Schedule to the Constitution enumerates the matters with respect to which the Central Legislature has exclusive power to make laws. One such matters is preventive detention for reasons connected with defence, external affairs or the security of Pakistan, and persons subjected to such detention (Item No. 34). The Provincial Legislature, which includes any other authority or person empowered by or under the Constitution to make laws was thus not competent to make laws for preventive detention for reasons connected with defence, i.e. spreading disaffection among armed forces and external affairs, vie. under mining the friendly relations of Pakistan with Iran. A somewhat feeble argument was raised by the learned Advocate‑General in justification of .the second of the two grounds that the publication of the article in question in Tarjuman‑ul‑Quran was likely to provide feelings of ill‑will between two major sects of Muslims in West Pakistan. There Was however, no warrant for it because the ground itself describes the object, namely, to undermine the friendly relations between Pakistan and Iran which is its traditional ally.

16. What then is the effect of the wrongful inclusion of the two grounds set out above on the validity of the impugned orders of arrest and detention made under section 3 of the Ordinance? At first, the learned . . . . . . Advocate‑General conceded, and rightly so, that the orders are rendered illegal, but in his subsequent address he sought to make a distinction that if an insignificant ground be foreign to the scope of the relevant law it did not take away from the efficacy of the other grounds. The argument is met in two ways. Firstly, the satisfaction of the detaining authority that sufficient material exists for detaining a person in preventive custody is entirely subjective and the Courts cannot sit in judgment and decipher as to which of the grounds had appealed to him as determinative and what material he considered to be insignificant. Similarly, if there is more than one ground on which the order of preventive detention is based, then each ground has contributed to the satisfaction of the detaining authority and none could be excluded from consideration. Conversely, if the detaining authority con sidered any material as insufficient to warrant preventive detention he will not set it out, in the grounds of detention served on the person detained to make an effective representation against it.

17. A distinction must be observed at this stage between the cases of Sayyed Abul Ala Maudoodi and Mr. Muhammad Tufail and the rest of the forty‑two detenus. Whereas in the case of the first‑named two detenus it is alleged that they have been personally indulging in activities prejudicial to public safety and maintenance of order, in the case of the others the allegation is that they have been members of Majlis‑i‑Shoora of the Jama'at i‑Islami, which was declared as an unlawful association and which had been indulging in the past in the above‑mentioned activities. A specimen of the rounds served on these detetius is reproduced below:‑ "(1) T ai you have until the 6th January 1964, when the J ama'at‑i‑Islami was declared an unlawful association under 'the Criminal Law Amendment Act, 1908, been a member of the Majlis‑i‑Shoora, the Executive of the aforesaid Jama'at which has for its objective the acquisition of political power and control by force and setting up a fascist regime. (2) That the aforesaid Jama'at was opposed to the creation of Pakistan and has continued to show open hostility to it and its Government; (3) That the aforesaid Jama'at has been infiltrating in the Government Offices and Labour organizations with intent to seize power by fomenting trouble and suborning the loyalty of Government servants; (4) That the said Jama'at through its students counter‑party, namely, Jama'at‑ul‑Tulaba, has been resorting to illegal strikes and creating disorders and disturbances in educational institu tions as well as in public places; (5) That the said Jama'at with the objective of discrediting the Government of Pakistan and in furtherance of its aim had attempted to disrupt friendly relations between Pakistan and Iran by publishing the October 1963, issue of the monthly periodical Tarjuman‑ul‑Quran' a vicious and unwarranted attack on Iran and its Royal family; (6) That the said Jama'at is attempting to create disaffection among the Armed Forces by means of objectional speeches by its leaders." We are clear in our mind that none of the grounds enumerated above satisfied the requirements of section 3 of the Ordinance. Firstly, as mentioned in, the earlier part of this order, the ban imposed on the Jama'at has since been declared by the Supreme Court to be illegal and withdrawn by the Provincial Government. Secondly, being a member of a Jama'at which had been guilty of prejudicial activities, is by itself not sufficient to take action against him since, for aught that the Government knows he may have done nothing to attract the provisions of the preventive detention laws, e.g. in the present case out of fifty members of the Majlis‑i‑Shoora only forty‑two have been detained and it is I not apparent on the record what is the point of distinction between them. The impugned orders in respect of these forty‑two person are, therefore, liable to be set aside on this additional ground a well.

18. The third and the last ground on which we find the impugned orders unsustainable in law is the improper constitution of the Review Board. As mentioned earlier, the Board consisted of our learned brother S. A. Mahmood, J. and Shahzada Alamgir, who happened to be the Home Secretary of the West Pakistan Government at the relevant time. In paragraph 10 (ii) of the writ petition it was averred as follows :‑ "That Mr. Shahzada Alamgir who was nominated to, the Board is the person who issued the detention order, served the detenus with the grounds of detention and, therefore, on the administration side dealt with the case on behalf of the Govern ment before the action was taken against the detenus. It may be added that even the action under the Criminal Law Amend ment Act was dealt with by Shahzada Alamgir and he gave an affidavit in the writ petition at Karachi supporting the grounds for an action under the Criminal Law Amendment Act. Thus while sitting in the Board he was a Judge in his own cause and, therefore, the constitution of the Board was not proper and legal." The above allegation was traversed on the premises that Shahzada Alamgir had, under Article 81 of the Constitution, merely authenticated the order made by the Governor of West Pakistan, who was "satisfied that there were grounds for detention". There was, however, no denial that before action was taken against the detenus, Shahzada Alamgir had dealt with the case on behalf of the Government. The matter does not rest here. The written statement filed on behalf of the Government is supported by an affidavit of Shahzada Alamgir running into three pages. It opens with the assertion that as Home Secretary Shahzada Alamgir was "fully congnizant of the reasons for and the circumstances in which orders under subsections (1) and (7) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, for the detention of Maulana Abul Ala Maudoodi and his associates were passed by the Provincial Government on the 4th and 5th January 1964, respectively". Paragraphs 2 and 3 of the affidavit are no less significant. They read as under: "

2. That for some time before 4th January 1964, disturbing reports about the activities of Abul Ala Maudoodi and his associates were being received by the Provincial Government and the orders mentioned in paragraph 1 were passed by the Government on the basis of these reports and other information received and believed to be true. "

3. That on examining the reports and information mentioned in paragraph 2 above the Government came to the conclusion that Sayyed Abul Ala Maudoodi and his associates were doing acts prejudicial to the public safety and the maintenance of law and order," Lastly, in paragraph 6 it is averred‑ "

6. That the Government of West Pakistan on examination of the material in its possession came to the conclusion that the detenus were indulging in subversive activities such as inciting students to indulge in unlawful activities and commit acts of violence, fomenting troubles between workmen and employers and attempting to create a feeling of disloyalty and disaffection amongst Government servants and that they had for their object interference with the administration of law and the maintenance of law and order and their activities were such as to constitute a danger to the public peace and maintenance of public order." It is significant that throughout the affidavit the warning authority is described as the Government of West Pakistan and not the Governor alone. `Secretary' is defined in the West Pakistan Government Rules of Business, 1962, as in charge of a Department. Rule 4 (2) provides that the Secretary shall be the official head and be responsible for its efficient administration and discipline and for proper conduct of business assigned to the Department. Under rule 3 (3) cases of preventive detention are assigned to the Home Department. Schedule III framed under rule 11 (c) enumerates cases to be submitted to the Governor for his approval before issue of order, and at the head of that list are mentioned `preventive detention and nominations to the Board to deal with cases of preventive detention'. An analysis of these rules of business, thus, shows that the Home Secretary must, in the first instance, deal with cases of preventive detention and if he is of the opinion that sufficient material exists to warrant such detention he shall obtain approval of the Governor before issuing the order. It is, therefore, abundantly clear that Shahzada Alamgir had examined the "disturbing reports" about Sayyed Abul Ala Maudoodi and his associates, believed them to be true and then passed them on to the Governor with the proposal that action under section 3 of the Ordinance be taken against them. Indeed, the averments made by him in his affidavit leave no doubt in our mind that our postulation is factually correct. In the course of his address we asked the learned Advocate‑General whether he had any instructions from the Department that Shahzada Alamgir had in no manner contributed to the making of the impugned orders by the Governor of West Pakistan, to which he replied in the negative.

19. From what has been said above, it follows that one Member of the Review Board was a Judge in his own cause. We are aware of the two exceptions to this salutary rule. Firstly, that departmental bias as opposed to particular bias‑ does not render a person unfit to be a Judge in a case and, secondly, that the rule of necessity may justify a person being a Judge in his own cause as in the case. The. Judges v. Attorney‑General for Saskatchewan (53 T L R 464 (PC)). Needless to say, neither exception is applicable to the facts of this case. The constitution of the Revie Board was, thus, improper and the report submitted by it on the ‑‑ ‑ ‑ the impugned orders have been made are illegal in

20. Before concluding this order, we may take notice of a preliminary objection raised by the learned Advocate‑General to the competence of the petition on the ground that Mr. Rahmat Ellahi was not an aggrieved party within the purview of clause (c) of Article 98 (2) of the Constitution. The argument proceeded thus. A petition for habeas corpus simplicitor will lie at the instance of any person but if it was intended to impeach the vires of a law as repugnant to the Constitution, it could be done by the person aggrieved and none else, i.e. by the detenu himself although he may have no access to the outside world. Clause (c) which was added by the Second Amendment of the Constitute reads as follows: "on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government, exercising any power or performing, any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter I of Part II of this Constitution." In so far as the petitioner claimed that some of the provisions of the Ordinance were repugnant to the Fundamental Rights contained in the first Chapter of the Constitution, it was maintained that this amounted to enforcing Fundamental Rights and, therefore. Mr. Rahmat Elahi had no locus standi to move this Court. With due respect to the learned Advocate‑General, the argument is wholly deviod of force. Article 6 of the Constitution lays down that any law in so far as it is inconsistent with the rights conferred by this chapter shall, to the extent of such inconsistency, be void. The Ordinance provides that if the Review Board is satisfied that sufficient material exists for detaining a person in preventive custody beyond the period of two months, the Government may extend that period from time to time as it thinks fit. To that extent, the Ordinance is, therefore, void for it does not conform to the requirements of Fundamental Right 2 (4). No declaration is required to be given by a Court in this behalf. Only the effect of it is to be seen. The present case will, therefore, squarely fall under clause (b) of Article 98 (2 of the Constitution, and inasmuch as there is no clearance by the, Board for detention for a period exceeding three months the detention of Sayyed Abul Ala Maudoodi and others is without) lawful authority.

21. For the foregoing reasons, this petition is accepted and it is directed that Sayyed Abul Ala Maudoodi and forty‑three other persons, whose names appear in Annexure `A' to the petition, be released from custody forthwith. K. B. A. Petition accepted.