P L D 1957 (W (PLP)

S. A. RAHMAN, C. J.‑

This order will dispose of Writ Petitions Nos. 519, 572, 726 and 727 of 1956. They have all arisen out of proceedings taken under the Punjab Control of Goondas Act, 1951, (hereinafter referred to as the Act) and the questions of law raised in them are identical. In Writ Petition No. 519, Bazal Ahmad Ayyubi is being proceeded against by the District Tribunal; Gujranwala, in Writ Petition No. 572, a similar case is pending against Muhammad Shafi, Bashir, Muhammad Iqbal and Zahur‑ul‑Hassan before the District Tribunal, Gujrat, while Writ Petitions Nos. 726 and 727 relate to the cases of Ghulam Hussain and Ghulam Ali. who have been declared dangerous goondas and whose movements have been restricted to the Malakwal area by orders passed by the District Tribunal, Gujrat. In each case the plea has been taken that the provisions of the Goondas Act are repugnant to those of the Constitution of the Islamic Republic of Pakistan and are, therefore, void. The validity of the Act is challenged on the grounds that it is a discriminatory piece of legislation violating the equality clause embodied in Article 5 of the Constitution, that certain provisions of the Act, in so far as they deny the right to persons complained against to consult or be defended by a legal practitioner and envisage an ex parte or secret enquiry, come within the mischief of Article 7 of the Constitution and that the restrictions which the Act imposes on the right of citizens to move freely throughout Pakistan are unreason able and, therefore, offend against the provisions of Article 11 of the Constitution. One of the learned counsel also tried to maintain that departures from the law of evidence and the law of criminal procedure that the Act sanctions, would also affect its validity. Before taking up the specific grounds on which the Act is impugned, it may be useful to say something. about the scheme of the Act itself. The Act gives powers to a District Tribunal consisting of the District Magistrate and the Superintendent of Police of the district, to declare persons against whom information is laid by a police officer of a specified rank, goondas or dangerous goondas under section 13 of the Act. The grounds justifying such a finding are detailed in that section and may be compendiously described as anti‑social activities such as are calculated to cause breaches of the peace or disturbance of public tranquillity and social security. Section 14 authorises the Tribunal either to release a declared goonda after due admonition if some person pf mature age, who is in a position of authority over him, becomes responsible for his good behaviour and executes a bond to that effect or may require the person complained against to furnish a similar bond with one or more sureties for a period not exceeding three years and further direct that he shall not visit certain infamous places like brothels, gambling or opium‑smoking dens etc. In the case of a dangerous goonda, the direction may be given, inter alia, that his movements shall be restricted to any area specified in the order or that he shall not visit certain specified institutions or places without the written permission of the police officer in charge of his police station or that he shall report himself at specified times and places in the manner laid down in the order. The declaration of a person as a goonda or a dangerous goonda is required to be published with the necessary details, under section

15. A dangerous goonda becomes liable to enhanced punishment for certain offences, if convicted, by virtue of section

19. For purposes of record, his photograph and his finger impressions or specimens of his handwriting can be taken under section

21. Penalties can be imposed for breaches of orders passed under the Act which may take the form of imprisonment or fine. The Act also makes provision for appointment of probation officers for supervision of the conduct of goondas or dangerous goondas and on their recommendations, restrictions placed on him may be relaxed or he may be released from a bond or even his name may be removed from the list of goondas or dangerous goondas if he has reformed himself (Ss. 27 and 28). The procedure to be followed by the Tribunal enables it to keep certain portions of the information against the person complained against, secret, at the instance of the officer laying the information and to exclude the person concerned and his counsel and record evidence of some witnesses in their absence (Ss. 6, 7, 8 and 29). The Evidence Act and the Criminal P. C. are applicable to proceedings before the Tribunal subject to these and some other minor modifications. Exception has been taken in these petitions to the provisions of section 6 (1) (a) and (g), section 7 (2), section. 8, section 14 (2) and section 29 of the Act, besides impugning the Act generally as discriminating between citizen and citizen. I would first take up the question whether the Act is a discriminatory piece of legislation and, therefore, offends against the equality clause embodied in Article 5 of our Constitution. Article 4 of the Constitution declares that any existing law or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of Part II of the Constitution, shall to the extent of such inconsistency be void. Further, the State is precluded from making any law which takes away or abridges the rights conferred by that Part. The challenge to the Act is grounded on the argument that it provides an alternative procedure for taking preventive action against certain classes of persons as compared with sections 107 to 110 of the Criminal P. C. Section 107 empowers Magistrates of certain categories to put persons from whom breaches of the peace or disturbance of public tranquillity is feared, on security. Sections 108, 109 and 110 make provision for security for good behaviour from persons disseminating seditious matter, or from vagrants and suspected persons, or from habitual offenders. It is contended that, in so far as a police officer is given option under the Act either to take action against a particular person under the above‑mentioned sections of the Criminal P. C. or to lay information against him before the District Tribunal, it implies an arbitrary discrimination between persons situate in similar circumstances. In my opinion the argument is unsound. The consequences of action under the Act are not identical with those envisaged in the relevant sections of the Criminal P. C. though in part they seem to overlap. Moreover, as would appear from section 13 of the Act, the grounds on which a person can be declared a goonda or a dangerous goonda, are not in all cases coincident with the grounds which would justify the demand of security for keeping the peace or for good behaviour from a person under the Criminal P. C. The Act, therefore, does not provide a parallel procedure to that envisaged under the Criminal P. C. for identical acts; nor does it lead to similar results in the matter of prohibitive action. The question of discrimination, therefore, does not; in my opinion, arise. In any case, I do not think that the Act falls within the mischief of Article 5 of our Constitution. Differentiation. between classes of persons on the basis of a rational classification would be immune from attack on this ground. Reference in this connection may be made to a recent judgment of our Supreme Court as Jibendra Kishore etc. v. Province of East Pakistan (PLD1957SC(Pak)9). The equality clause in our Constitution does i not prohibit different laws for those differently circumstances, provided a rational standard is laid down to guide the discretion of the relevant authority to choose the appropriate law. Only irrational or arbitrary discrimination, such as, would amount to "legislative despotism," would offend' against Article

5. In the words of the Supreme Court "Classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legisla tion. Scientific accuracy in classification is not to be demanded. All that is necessary is that persons should be treated alike under like circumstances and conditions, both in the matter of privileges conferred and liabilities imposed." Judged from this standpoint, the Act does not appear to be open to exception. It is only persons who behave in one or more of the ways specified in section 13 of the Act that can be proceeded against under its provisions and they are susceptible of a reasonable classification. The orders that can be passed under the Act are clearly designed to effectuate the declared objects of the enactment. The act is not ex facie discriminatory but if in its actual working, discrimination is exercised against an individual, there may be cause of action for appropriate relief. The act as such cannot be assailed as bad. On behalf of the petitioners our attention was drawn to a case decided by the Supreme Court of India and reported as State of Bengal v. Anwar Ali (AIR 1952SC75). Six of the seven judges who decided that case held that the West Bengal Special Courts Act X of 1950, was repugnant to Article 14 of the Indian Constitution which corresponds to our Article

5. That Act made provision for more speedy trial of certain offences by a special procedure which was different from that available under the Criminal P. C., but the choice ,of cases of persons to be thus tried was left to the arbitrary discretion of the executive authority, without any guiding principles being laid down. The case is, therefore, distinguishable on its facts from the present one. The argument that departures in the Act from the general law of evidence or criminal procedure are enough to condemn the Act as a whole as contravening principle of natural justice, rests on no sure foundation. There is no vested right in procedure and the variations introduces by the Act in procedural matters, except in certain specifies aspects to be presently discussed, are not in any way unjust or violative of the principles of a fair trial. The next question that falls for decision is whether the provisions of the Act are offensive to Article 7 of our Constitution, clause (1) of which is couched in the follow ing terms "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice." It is not denied that the petitioners in these cases were arrested by order of the relevant Tribunal and so the clause is apparently attracted. It makes no difference that some one of the petitioners may have been enlarged on bail at a later stage in the proceedings. If once the right given by the clause has accrued, it enures till the end of the proceedings, though the persons concerned may not be detained in custody. We agree with the view expressed in Deodat Rai v. State (AIR1951All.718) and Lai Bachan Singh v. Suraj Bali Singh (AIR1952Al1924), in this respect. Prima facie section 6 (1) (c) of the Act appears to, be in direct conflict with Article 7 of our Constitution. at enables the District Tribunal, for reasons to be stated in the order, to exclude the person complained of and his counsel, while recording evidence of any witness. It will be noticed that the fundamental right guaranteed by Article 7 extends not merely to defence by a legal practitioner of one's choice but also to the right to consult him at the proper stage. How such a right can be exercised when the person concerned is kept in the dark about the evidence against him and the character, antecedents and demeanour of a witness, is difficult to understand. The learned Attorney General conceded that this provision of the Goondas Act was repugnant to Article 7 of our Constitution. Mr. S. A. Mahmud, who appeared for the State of West Pakistan, however, suggested on the authority of a decision of the Supreme' Court of India published as State of Punjab v. Ajaib Singh (AIR 1952SC10) that the word "arrest" occurring in Article 7 should be held confined to arrests other than those effected on a warrant, issued by a Court or a judicial Tribunal. I am disposed to agree with the learned Attorney‑General that this decision takes too narrow a view of the corresponding provision in the Indian Constitution. The main consideration that weighed with the learned judges who decided that case was that the Criminal P. C. itself contains provisions giving the right of defence by a counsel of one's choice to an accused person and that a warrant issued by a Court would on its face contain the grounds of arrest such as are required to be communicated to him by Article 7 of our Constitution. The learned judges, however, were careful to say that they need not pronounce a final opinion on this question as in the case they were discussing, they were able to hold that the detention of the person concerned would not fall within the definition of "arrest" at all. It is clear that the provisions of the Criminal P. C. are subject to legislative amendment but fundamental rights guaranteed by the Constitution cannot: be taken away by any enactment of the legislature. They scope of the fundamental rights guaranteed by the Consti tution should not, therefore, be cut down by the considera tion that similar rights are conferred by the ordinary law. Whatever may be the position with regard to arrests under orders of Civil Courts, I am disposed to hold that Article 7 of our Constitution covers all arrests effected in criminal or quasi‑criminal proceedings, including those made under orders of Criminal Courts. On this view it is impossible to uphold the validity of section 6 (1) (c) of the Act and this provision must, in my opinion, be held to be void on the ground of its repugnancy to Article 7 of the Constitution. In the same category as section 6 (1) (c) would appear to fall section 6 (1) (g) if it is interpreted to mean that the Tribunal is at liberty to direct that the person complained of should abstain from appearance during the proceedings. Ipso facto that would imply the exclusion of his counsel, though the second part of this clause to the effect that the person complained of need not attend personally on any specified hearing, would appear to be innocuous if it is treated as analogous to section 205, Criminal P. C. and is operated as a concession to the person complained against. Section 7 (2), which enables the Tribunal at the instance of the officer laying the information to keep part of the evidence secret and to with hold it from the knowledge of the person complained against and his counsel, and section 29, which similarly relates to a secret record being maintained apparently also militate against Article 7 of the Constitution in so far as they would make it impossible for any proper defence to be made with the help of a counsel. The Act contemplates placing of restrictions on the free movements of Pakistan citizens in certain eventualities. The provisions of Article 11 of our Constitution would, therefore, call for consideration and it has to be shown that the restric tions thus impossible are reasonable in character. Article 11 provides that reasonable restrictions can be imposed by the law, in the public interest, on a citizen's right to move freely throughout Pakistan and to reside and settle in any part thereof. There is ample authority for the proposition that in deciding whether any particular law provides for reasonable restrictions on this fundamental right, not only the substan tive portion of the law but also the procedural part by which the eventual result is secured, has to be scrutinized. Hart Khemu Gawali v. The Deputy Commissioner of Police, Bombay (PLD1957SC(Ind.)90), N. B. Khare v. State of Delhi (AIR1950SC211), Gurbachan Singh v. State of Bombay (AIR1952SC221) and Ramji Laxman v. The State of Kutch (AIR1954Kutch15), are authorities in support of this view. The Court in such cases has to consider the nature of the restrictions, the manner in which they are imposed and their extent both territorial and temporal, vice c7eshingbhai v. Emperor (A I R 1950 Bom. 363 (F.B.)). No exception is taken to the principles laid down in these decisions. The remaining provisions of the Act to which objection has been taken have, therefore, to be judged in the light of these principles. The restrictions imposable under the Act on a person complained against, after the termination of proceedings, are I think, akin to those falling within the purview of "Preventive detention". They are not penal in nature but they are directed towards preventing certain bad characters from committing certain offences or indulging in anti‑social activities. Even the meanest citizen, however, is entitled to invoke the fundamental rights guaranteed by the Constitution, and the question, therefore, is whether the restrictions thus imposable are reasonable in character. The point is raised that in so far as section 14 (2) ‑ of the Act empowers the Tribunal to direct that the person who is declared a dangerous Goonda shall be restricted to any area specified in the order, it amounts to an unreasonable restriction as there is no limitation in the Act with regard to the extent of the area within which he can be confined, nor is there any temporal limitation on the duration of such confinement. This argument omits to take notice of section 17 of the Act, which prescribes that the relevant order shall, so far as may be, conform to and its operation shall be governed by the rules made by the Provincial Government under section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918. Those rules, therefore, contain the guiding principles for the exercise of discretion vested in the relevant authority, and it would be incorrect to say that the exercise of that discretion is arbitrary and unreasonable. Rule 2 of the rules framed under section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918, expressly declares that the areas to which persons may be restricted shall ordinarily be, if a person resides in a village, the area of that village, to which may be added, at the discretion of the relevant authority, the areas of any contiguous villages in which the said person owns or occupies any immovable property or practises any trade or calling and if he resides in a town, the area of the town. In special cases, however, the Court or Tribunal may fix a larger area. In any case, the restriction cannot take the shape of an externment from the whole district to which the person belongs. It is only in the case of persons twice convicted and who are not owners of land or occupancy tenants that the area of restriction may be any settlement established under section 16 of the Criminal Tribes Act, 1911. Even then the authority concerned must obtain the concurrence of the Deputy Commissioner for Criminal Tribes before passing such an order. Under section 27 of the Act, further, machinery is provided for bringing under scrutiny the cases of individuals against whom orders have been passed under the Act from time to time, and they may even be released from any bond for good behaviour or from an order of prohibition or detention, if it is found that the person concerned has reformed his ways. Even his name may be removed, on that ground, from the list of Goondas or dangerous Goondas, as the case may be. The position is not, therefore, that an order of confinement within an area has a perpetual complexion, or the extent of that area is left r entirely to the sweet‑will of the Tribunal. In these circums tances the objection cannot be sustained that the contemplated restrictions are unreasonable. The learned counsel for the petitioners, however, are on firmer ground when they urge that the provisions of the Act with regard to the procedure to be followed before the passing of the final order, in so far as they exclude the possibility of a proper defence through counsel and the keeping of a secret record, would make the final order unreasonable as the procedural aspect of the matter leading up to that order has also to be considered. Such a secret procedure would not be in consonance with the principles of natural justice, apart from the question of its repugnancy to Article 7 of they Constitution. The denial of a right of proper defence through counsel would of course be offensive to that Article. On this ground too, therefore, section 6 (1) (c), subsection (2) of section 7 and section 29 of the Act should be held to be void. I am fortified in this view by the decision in Inderjit Singh v. State of Delhi (1), a D. B. judgment of the High Court of Punjab (India) whereby the U. P. Goondas Act, 1932, as modified and extended to Delhi, was declared to be bad law as it was repugnant to Articles 19 and 22 of the Indian Constitution, which are in pari materia with Articles 5, 7 and 11 of our Constitution. It was found that the proviso to clause (2) of section 5 of the Act under consideration, in so far as it made representation by legal practitioner of one's choice impossible, infringed the fundamental right given by Article 22 (A I R 1953 Pb, 52) of the Indian Constitution and was not saved by clause (3) of that Article which bears on preventive detention. Similarly, the special and secret form of procedure laid down under section 5 of the Act was held to be unreasonable, and as a consequence section 6, which provided for order of removal of Goondas, became inoperative. The whole Act in that case, therefore, failed. To sum up; therefore, the position that emerges is that sections 6 (1) (c), 6 (1) (g) (if it means that the person complained against can be kept out of the proceedings against his will), subsection (2) of section 7 and section 29 of the Act, are void as they are repugnant to constitutional provisions guaranteeing fundamental rights to citizens of Pakistan. The reference in section 8 to a portion of the record being kept secret would also in consequence have to go. The next question that falls for determination is whether) the Act, shorn of the offending provisions, still remains l workable or not. I think the answer must be in the afftrmative. If the provisions found to be void are excised from the Act, it would not materially affect its working and proper orders can .be passed after regular proceedings, in the presence of the person complained of and his counsel, without resorting to any secret inquiry. The doctrine of severability is well recognized, vide, A. G. of Alberta v. A. G. of Canada (A I R 1948 P C 194=P L D 1947 P C 387). I do not find that the invalid portions of the Act are so inextricably bound up with the rest of the Act as to vitiate the Act in its entirety. It was contended on behalf of the State that in the two cases of Writ Petitions 726 and 727, the, provisions with regard to exclusion of counsel and secret procedure, were followed, before the enforcement of our Constitution and as fundamental rights guaranteed by the Constitution cannot be, given retrospective effect, the orders passed by the District Tribunal in these cases cannot be impugned. Reliance was placed in this connection on Keshavan v. State of Bombay (AIR 1951 S C 128). It was ruled by five judges out of the seven who decided that case, that Article 13 (1) of the Indian Constitution. which corresponds to our Article 4, is prospective only and does not affect pending actions or liabilities accrued already, before that Constitution came into force. Two of the learned judges dissented from that view. The position under our Constitu tion is not dissimilar. But it is clear that the final orders declar ing the petitioners in these two cases as dangerous Goondas and restricting them to certain areas, were passed after the Constitution had come into force. This makes the principle available to these petitioners that the order by which, their liberty was restricted could only have been passed, if it came as the culmination of a procedure not repugnant to principles of natural justice and, therefore, not unreasonable. In view of the above 'discussion it cannot be said that this was the case here. I do not think, therefore, that the cases of these two petitioners are distinguishable from those of the others. The upshot of the whole discussion, consequently, is that in those cases where the proceedings are still pending before the relevant Tribunal, evidence should be recorded afresh in the presence of the person complained of and his counsel, without resorting to any provisions of the Act which enable a part of the evidence to be kept secret and then proper orders passed in accordance with law. This applies to Writ Petitions 519 and

572. In the case of Writ Petitions 726 and 727, the final orders passed by the Tribunal declaring them l dangerous Goondas and restricting their movements, must be set aside and their cases should also be tried afresh in the light of the observations made above. I would, therefore, issue directions to the respondents in the sense indicated in all the four cases. KAYANI, J.‑

I agree. A.H. Order accordingly