P L D 1954 Lahore 364 (PLP)

ABDUL AZIZ KHAN, J.‑The District Magistrate, Sargodha, ordered on the 12th of January 1954 the arrest and detention of Hakim Sharif‑ud‑Din (detenu) under section 3 (2) of the Punjab Public Safety Act. Hakim Sharif‑ud‑Din was actually arrested on the 17th of January 1954. The District Magistrate sent a report to the Government under section 3 (2) of the Acton the 19th of January 1954. The Government by its order dated 25th January 1954 extended the period of deten tion up till 16th June 1954 under section 3 (4) (b) of the Act. Hakim Sharif‑ud‑Din has come up to this Court under section 491 Criminal Procedure Code. It is contended on behalf of him that the District Magistrate ordered his arrest and detention without a reference to the Government under section 3 (2) of the Act and, therefore, his arrest and deten tion is illegal. The learned Assistant Advocate‑General urged that a reference had been made. In support of his contention, he relied on the order which may be reproduced for the sake of convenience :‑ "Whereas, I Bashir Ahmad Khan Tarar, District Magis trate, Sargodha, am satisfied that with a view to preventing Hakim Sharif‑ud‑Din of Sillanwali from acting in a manner prejudicial to the public safety and the maintenance of public order, it is necessary to proceed against him in the manner hereinafter appearing, pending the decision of the Government on the reference made to it under subsection (2) of section 3 ............ The learned Assistant Advocate‑General was unable to produce the "reference" or a copy of it. He, however, stated that it could not be traced. Subsection (2) of section 3 of the Act is, in my opinion, quite unambiguous and provides that if a District Magistrate or other servant of the Crown, specifically empowered in this behalf has reasons to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Govern ment for orders. But if, while making such a reference, or at any time thereafter, but before the receipt of the order of the Government on the reference, such District Magistrate or other servant of the Crown is satisfied that with a view to preventing such person from acting in any manner prejudicial to public safety etc., it is necessary so to do pending the decision of the Government on the reference, he may order the arrest of the aforesaid person and direct him to be detained in the prescribed manner for a period not exceeding fifteen days. Proviso to the subsection, however, further requires that where such arrest or detention is ordered, the District Magistrate or other servant of the Crown, shall report the matter to the Government without avoidable delay. It is quite clear from the above analysis of the subsection that the arrest and detention of a person cannot precede a reference to the Government, but must be made simul taneously with or after the making of the reference to the Government and before the receipt of its order on the reference. I agree, therefore, with the contention of the learned counsel for the detenu that a reference prior to the order of arrest is necessary. The Crown has failed to place the reference or a copy thereof on the record. Nor has it produced an affidavit of the District Magistrate showing that a reference was made by him to the Government prior to the order of arrest and detention. In the absence of such evidence it must to held that no reference was made to the Government prior to the order of arrest and detention. The arrest and detention by the District Magistrate, therefore, is illegal. The next question for determination is its effect on the order of the Government dated 25th January 1954. If it were a fresh order of detention the previous illegal order of arrest and detention would not have affected it but the order of 25th January 1954 is an order of extension as will appear from the order:

"Now, therefore, in exercise of the powers conferred by subsection 4 of section 3 of the Punjab Public Safety Act, 1949 the Governor of the Punjab is pleased to extend the period of detention of the aforesaid Hakim Sharif‑ud‑Din uptil 16th June 1954 . The above order being an order of extension, it will be saffected by the previous illegal order of detention. In Arbab Muhammad Hasham Khan v. Crown (P L D 1954 F. C. 1.) it was held: -- "If, therefore, the detention of Abdul Wali Khan on the 9th of December 1952 was illegal, it could not' be extended in any legal sense by the order of 10th December 1952, and the further extension by the order of 16th May 1953 is, on the same ground equally bad in law". For the reasons stated above it must be held that the order dated 25th January 1954 is bad in law. The petition is, therefore, accepted. The detenu shall be released forth with. A.H. Petition accepted.