P L D 1963 (W (PLP)

MANZUR QADIR, C. J.‑In pursuance of a notification issued by the Governor of West Pakistan (Notification No. 1235/BDSB, dated the 22nd February 1963, and referred to hereinafter as the notification), the Deputy Inspector‑General of Police (Special Branch), West Pakistan, made an order (hereinafter referred to as the order), directing Mr. Mahmud Ali. Qasuri to appear before a named Deputy Superintendent of Police for interrogation at a specified time and on a specified date. The Deputy Superintendent concerned took the said order personally to Mr. Qasuri. Mr. Qasuri questioned the legality of the order. He says he asked for time to obtain the verdict of the High Court on the legality of the order and, according to him, this request of his was not refused. According to the Deputy Superintendent of Police, however, Mr. Qasuri refused to answer the questions put to him in spite of having been told that the matter was of such urgency that it could not be delayed. On the allegation that what Mr. Qasuri did, amounted to a dis obedience of a lawful order under the West Pakistan (Maintenance of Public Order) Ordinance (hereinafter referred to as the Ordinance), which is an offence, punishable under section 13 of the Ordinance, Mr. Qasuri was taken into custody. A friend of Mr. Qasuri moved this Court by this petition under Article 98 of the Constitution and section 491 of the Code of Criminal Procedure, praying that Mr. Qasuri be brought before this Court and set at liberty because his arrest and detention, according to the petitioner, were illegal. It was also prayed that the Ordinance, the notification and the order, each be declared to be without lawful authority and of no legal validity or effect.

2. At the hearing, the argument was mainly confined to the validity of the notification. It was not contended that the order would independently be without lawful authority even if the notification were found to be valid. Nor was the attempt to argue that the Ordinance was an invalid piece of legislation, persisted in, after a preliminary statement of the points intended to be raised in that behalf. Some arguments were addressed on the question of the acceptability of one version of facts in preference to the other. We did not think that it would be appropriate in these proceedings to make any attempt to resolve that controversy, because it related to disputed facts. During the arguments, considerable time was spent on the examination of the question whether or not, even on the facts as stated by the prosecution, the conduct of Mr. Qasuri would amount to an offence if it were found that the notification that was shown to him was defective in form though not in substance. In view of the fact that I have arrived at the conclusion, that in the context of the liberty of the citizen, the said notification must be held to be defective in substance, it is not necessary to give a decision on that point.

3. The Ordinance, however, essential for public safety or for the maintenance of order, is a law which makes a serious inroad into the liberty of the citizen and must, therefore, be construed strictly. By its third section, it provides the Government with the power to deprive any citizen of his liberty at any time, "if it is satisfied" that it is necessary in the interest of public safety or public order to do so. The judge of the necessity being the Government itself, and the right to be confiscated as a result of that judgment being that cherished possession of all free individuals‑the right to personal liberty‑this is a very wide power indeed, should the Legislature be presumed to have given this very wide power to the executive without any check, at least to ensure that it is not exercised without due care, caution and attention? I should think not. If, therefore, in the Ordinance some requirements are specified which bear on the question of how the Government is to be "satisfied" of the necessity, it should be presumed that the Legislature intended of those requirements to be in the nature of limitations for the purpose of ensuring due care, caution and attention before the serious consequence of depriving a citizen of a free country of his personal freedom could be allowed to ensue. When the second subsection of that section, therefore, says that if a District Magistrate or any other servant of Government, who has been specifically authorised in this behalf, has reason to believe that any person has acted, is acting, or is about to act, in a manner prejudicial to public safety or public order, he shall forthwith refer the matter o the Government for orders, must it not be assumed that the intention was that the act of referring the matter to the Government could only be done by authorised persons and not by unauthorised persons ? And when the tenth subsection of the same section says that the persons who are authorised under the second subsection may interrogate anyone or cause him to be interrogated, must it not be taken to mean that the power to interrogate or cause inter rogation to be made is an adjunct of the authorisation under the second subsection and may not be exercised by persons other than those who have been authorised under that subsection? In the present case, however, a person who was not authorised under the second subsection of the third section attempted to cause the interrogation of Mr. Qasuri to be made. He did so because he had been authorised by the Governor to do precisely that. It is contended by the learned Additional Advocate-- General on behalf of the respondents that even if. it be held that the tenth subsection of the third section does not envisage any separate conferment of power and merely declares the powers of the persons authorised under the second subsection, the defect in the notification may be looked upon as being only a defect of form and not of substance. The steps he takes are these : It is open to a person who is duly authorised under the second subsection of section 3 to depute someone else for interrogation under the tenth subsection. If, therefore, the Governor in the notification had referred to the second subsection of section 3 instead of to the tenth subsection of that section, the notification would not be open to objection. He contends that the reference in the notification to the tenth subsection should, therefore, be regarded as a wrong reference to the source of the power. He argues that the material question is whether the Governor had the power to authorise under the second subsection to section 3, officers whom he did authorise under the tenth subsection ; and if he had that power, the mere fact that he referred to another subsection would not make any difference. He cited several authorities on this proposition. The correctness of the pro position of law on which this contention is based being undoubted, is not making any reference to the authorities cited in support of it. That proposition is that if the power exists to do the thing that was done, it does not matter whether the correct source of that power was referred to or not referred to, or whether the source referred to was the correct source of that power or not the correct source. In the present case, however, the position is different. The power to authorise someone to perform the function of interrogation independently of the function described in the second subsection of section 3 is not vested in the Governor. It is that power which has been exercised by him as is, clear from the actual order of the Governor on which the notification is based. This order of the Governor was very properly produced by the respondents at the hearing. It is in the form of a proposal made by the D. I. G. of Police (Special Branch) which the Governor approved. The relevant portion of the proposal is in the following terms:- "The powers authorising interrogation under subsection (10) of section 3 of the West Pakistan Maintenance of Public Order Ordinance * * * * * * * are vested in the District Magistrate only * * * Interrogation of certain important politicians of West Pakistan is in hand at present and it is desired that it may be kept as secret as possible and conducted simultaneously without loss of time. So it is proposed that approval of the Governor may be obtained authorising the Inspector‑General of Police, West Pakistan, and the Deputy Inspector‑General of Police, Special ranch, West Pakistan, to exercise powers conferred under subsection (10) of section 3 of the said Ordinance." The specific references to the power to interrogate make the intention manifest. This is a conscious decision to confer the power of interrogation. The question whether the Governor would like to empower the Inspector‑General of Police or the Deputy Inspector‑General of Police to perform the functions mentions mention in subsection (2) of section 3 was never put to him. It is thus a case of the exercise of a power not vested, and not the case of the exercise of power vested but wrongly described. The learned Additional Advocate‑General contended that if the matter was regarded in this way, it would mean that the Governor bad no power to do that which a person authorised by himself under the second subsection had the power to do. I agree that this result seems somewhat anomalous‑that if the Governor authorises a person to perform the function mentioned in the second subsection, that person should have the power further to ask someone else to conduct an interrogation but that the Governor should himself have no power directly to ask someone to conduct an interrogation without having authorised him o perform the function under subsection (i). A little reflection shows that the anomaly is perhaps only on the surface. The scheme of the Act seems to be that the process by which a citizen is to be deprived of his liberty is split up into a preliminary and a final stage. The preliminary stage is to be conducted by a person other than the Governor, and the final stage by the "Government", i.e. by the Governor himself. A double check is thus provided. It does not seem to be a part of the intention of the law‑maker that the double check should be reduced to a single determination. Be that as it may‑the policy of the law not being a concern of the Courts of law this result follows from a strict construction of the opening words of they second subsection. Those words are, "if a District Magistrate or any other servant of Government authorised in this behalf by * * * * order of Government, has reason to believe * * * * * " It is clear that the power mentioned in the tenth subsection is available only to the persons mentioned in subsection (2). In the present case it is the Governor himself who has authorised certain persons to perform the function of interrogation, which is a power under sub section (10). This power being available only to persons authorised under the second subsection, it must be held that it has been wrongly exercised by the Governor unless the Governor himself is to be regarded as included among the persons authorised under the second subsection. In other words, unless it can be said that the phrase, "a District Magistrate or any other servant of Government" can include the Governor himself, the source of the notification must be held to be defective. I find it impossible, in the context, to construe those words to include the Governor himself.

4. Accordingly, I accept this writ petition and declare that Notification No. 1235/BDSB, dated the 22nd of February 1963, issued in the name of the Governor over the signature of Mr. M. H. Shah, is invalid and all acts performed in pursuance of that notification have no legal effect. There shall be no order as to costs. ABDUL AZIZ KHAN, J.‑‑I agree. A. H Petition accepted.