P L D 1958 Supreme Court (Pak (PLP)

CORNELIUS, J.‑This judgment relates to Criminal Appeals numbered serially 42 to 54 of the year 1958. In the last mentioned case, viz., No. 54 of 1958, leave to appeal was granted in the course of the hearing. All the appeals were heard together, as the questions for decision were common to all of them. The appellants are all persons who are subject to orders of preventive detention, i.e., detention without trial, made by the West Pakistan Government on different dates, which orders have been extended from time to time. These ‑ orders were made in exercise of power derived from S. 3 of the Punjab Public Safety Act, 1949. The condition of the making of an order of detention, with which is coupled the power of extending the period of such detention, is the satisfaction of the Provincial Government that the making of such an order is necessary "with h view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order". It is provided by the section that no order of detention or of extension of detention shall be for a period of more than six months at a time, which makes it clear that the statute permits of the making of orders of detention for periods in excess of three months. The point is relevant to the main question in the case, which concerns the validity of the statute in the face of the provisions of clause (4) of Article 7 of the Constitution, which will be reproduced presently. Another provision included in this section enables the Government at any time to release a person detained under the statute. In the case of each of the appellants before us the initial order for his detention was for a period of six months, which period has been extended from time to time, so that all of them are up to the present subject to such orders of detention, although bail has been granted to most, if not to all of them, pending the hearing of their appeals. The cases of these appellants came before the High Court of West Pakistan upon motions for the issue of writs of habeas corpus. The grounds upon which the detention was challenged as being invalid in each case were of a purely constitutional nature. Before stating these grounds, it is necessary to set out in full the provisions of clause (4) of Article 7 of the Constitution:‑ "7 (4) No law providing for preventive detention shall authorise 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. Explanation.‑In this clause `the appropriate Advisory Board' means, in the case of a person detained under a Central Act or an Act of Parliament, a Board consisting of persons appointed by the Chief Justice of Pakistan, or, in the case of a person detained under a Provincial Act or an Act of a Provincial Legislature, a Board consisting of persons appointed by the Chief Justice of the High Court for the Province." The Explanation is in fact a definition clause and it will conduce to a proper understanding of the clause if the full expressions, as required by the‑definition, are incorporated in the main body of the clause and set out in the long form. Since the law in question is a Provincial law, it is of advantage also in writing out the clause to include an amendment upon this footing as well. The clause would then read somewhat as follows:‑ "No law of the Provincial Legislature providing for preventive detention shall authorize the detention of a person for a period exceeding three months, unless a Board consisting of persons appointed by the Chief Justice of the High Court for the Province has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention". The Punjab Public Safety Act, 1949, was amended immediately upon the coming into force of the Constitution by means of an Ordinance made by the Governor of West Pakistan, entitled the West Pakistan Preventive Detention Laws (Amendment) Ordinance, 1956, whereby subsections (6), (7) and (8) of S. 3 were replaced by new subsections, providing specifically that a detenu under the Act should as soon as may be, be informed of the grounds on which he has been detained, and that he may make a represen tation against the order. Further, where the order of detention was for a period exceeding three months, the authority making that order was to place before "the Advisory Board constituted under subsection (8)" the grounds of the detention and any representation made by the detenu. The Advisory Board was empowered to call for further information from both parties or either party and to report within the time limited by the Constitution, whether "in its opinion there is any sufficient cause for such detention". Provision was made for an order by the Government upon receipt of the report of the Advisory Board Finally in subsection (8), it was provided that the Chief Justice of the High Court of West Pakistan shah. for the purposes of this section, appoint persons to constitute an Advisory Board". On the 19tn April 1956, a notification was published in the Provincial Gazette to the effect that "in exercise of the power conferred by Article 7 (4) Explanation of the Constitution of the Islamic Republic of Pakistan, read with subsection (8) of S. 3 of the West Punjab Public Safety Act, 1949, as amended by the West Pakistan Preventive Detention Laws (Amendment) Ordinance, 1956", the Chief Justice of the High Court of West Pakistan had been pleased to appoint two Judges of that high Court to be the Advisory Board "for the purposes of the said section". It should be noted here that in making this order, the Chief Justice did not purport to derive power from the statute, but from the relevant provision in the Constitution. Also, it is noteworthy that the appointment is made not for the purposes of any subsection o1 section 3 of the statute, but for the purposes of the section as a whole, which purposes are by expression the making of provision for preventive detention of persons in order to safeguard public safety and public order. These matters are of significance for the reason that the Ordinance, by the operation of Article 102 or the Constitution, ceased to have operation six weeks after the commencement of the sitting of the Provincial Legislative Assembly next following after its promulgation. Article 102 of the Constitution provides that an Ordinance of the kind here in question, "shall cease to operator at the expiration of six weeks from the next meeting of the Assembly, or if a resolution disapproving it is passed by the Assembly, upon the passing of that resolution". On this basis it has been ascertained that the date upon which the Ordinance it question "ceased to operate" was the 29th June 1956, On that date therefore, the provision in subsection (8) of S. 3 of the statute empowering the Chief Justice to appoint urn Advisory Board ceased to have effect, along with subsections (6) and (7). This circumstance has given rise to two points of contention, viz., firstly that with the expiry of subsection (8) of S 3, the Advisory Board itself ceased to exist, and, secondly, that by virtue of certain provisions of the Punjab General Clauses Act, the effect of the expiry of the Ordinance was the same as if the Ordinance had been a permanent statute, and had been repealed, i.e., that the previous subsections (6), (7) and (8) of S. 3 were not revived when the Ordinance expired, but that, upon the happening of that event, S. 6 of the statute stood as if it contained no subsections so numbered. The opposite view was pressed before us in respect of both points, and these questions will be considered in the judgment at their proper places. The facts stated are now sufficient for understanding of the grounds upon which the statute, namely, S. 3 of the Punjab Public Safety Act, 1949, was impugned in the petitions before the High Court. These may be stated in serial order as under:‑ (1) that the statute is a law providing for preventive detention for a period exceeding three months and since it makes no provision for an Advisory Bu4rd to function in accordance with clause (4) of Article 7, it is violative of the Constitution and void for repugnancy; (2) that the period of detention ab initio was six months, and in the absence of "antecedent consultation" with the Advisory Board it was void ab initio, and could not be validated by consultation with an Advisory Board within the initial period of three months; in other words in point of duration the detention order is not severable into two orders, the first for three months and the other for the balance ; (3) that the Advisory Board constituted on the 19th April 1956, was a Board constituted under the Ordinance and perished with the Ordinance; therefore consultation with this Board in respect of the present detentions was of no avail in law (4) that this Advisory Board cannot be thought to have been constituted in accordance with powers derived from the Constitution, because clause (4) of Article 7 does not confer any such powers and does not itself create any Board ; (5) that the statute cannot be deemed to have been adapted so as to bring it into conformity with clause (4) aforesaid, by operation of Article 224 of the Constitution, which provides that "all laws * * * in force * * * immediately before the Constitution Day, shall so far as applicable and with the necessary adaptations, continue in force * * * "; the argument was fortified by the statement that an amendment which was intended to carry out the necessary adaptations had been made by the Ordinance, which had been deliberately allowed by the Provincial Legislature to perish; and (6) that the law was bad also because it did not incorporate the provisions of clause (5) of Article 7, which requires that the grounds of a detention shall be communicated to the detenu as early as possible, and he should be allowed an opportunity of making a representation against the order. These contentions were dealt with by the High Court in the following manner. As to the argument of non‑availability based on clause (5) of Article 7, the learned Judges found that this clause clearly guarantees certain rights to the detenu, but does not prescribe that the detention law must necessarily contain any corresponding provision. That this conclusion is correct appears with absolute plainness from the very terms of the clause, which reads as follows:‑ "(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, com municate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order: Provided that the authority making any such order may refuse to disclose facts which such authority considers to be against the public interest to disclose." The point was not raised in the arguments before us, and nothing further need therefore be said upon it. As regards clause (4), the learned Judges commenced their observations by saying that it was not happily worded and went on to observe that it was capable of an interpretation in more than one ways. These observations were, naturally enough, employed to found the usual argument that where a law is capable of various interpretations, that which favours the subject should be given effect to in making the decision. As will appear later, the ambiguity to which these observations are addressed is more apparent than real. The Article provides sufficient material upon which a firm conclusion may be reached as to the true intention of the constitution‑makers in the enactment of clause (4). The learned Judges then went on to observe that to construe the clause as if it was "intended to prescribe a qualification of the validity of the law relating to preventive detention" would have the effect of making the latter part of the clause "hardly intelligible" for then, "the validity of the law in question would depend on whether an Advisory Board has reported". In order to maintain the argument, it would be necessary, in the opinion of the learned Judges, to understand the words "unless the appropriate Advisory Board has reported" as if they were equivalent to, "unless there is a provision in the law for a reference to the appropriate Advisory Board", and this they did not feel competent to do. They thought that the words "shall authorise", while they could mean "shall contain a provision for", could also mean "shall be authority for" and they found that if the latter meaning were adopted, "the latter part of the clause assumes a sensible shape without any modification", so that the effect of the clause would be "of depriving a detention law, providing for detention' for more than three months, of full effect, unless sanction is provided for such detention by the report of an Advisory Board contemplated by the Constitution". They went on to observe that "Courts should normally lean in favour of constitutionality of statutes and if two interpretations of a constitutional provision are possible, one of which would invalidate a statute while the other would support its validity, the second interpretation should be preferred". That observation appears to us, speaking with due respect, to call for comment. If what is meant is that constitutional provisions may be stretched by interpretation with the object of saving the validity of statutes, which ex facie contravene the Constitution, it must be said at once that this view cannot be accepted. The correct view is that a constitutional provision must be interpreted, as befits an organic instrument; in the widest possible sense. It is not permis sible to place narrow constructions upon provisions contained in a Constitution, if the result be that thereby the validity of a statute is prejudiced. In all circumstances, the full scope and extent of the constitutional provision must first be determined, and if the statute in question is capable of a construction which is conformable to the true meaning of the relevant constitutional) provision, then that construction should be accepted. It is possible that the learned Judges meant to convey this impression by the words which they have employed, and we have only found it necessary to comment upon those words to ensure that they should not be interpreted as allowing Courts to adapt the Constitution for the purpose of saving a statute when in fact the requirement is that all statutes and more generally, all sub-constitutional laws should conform to the Constitution. Upon the construction which has been indicated above, the learned Judges came to the conclusion that there was no in consistency between clause (4) aforesaid and the impugned deten tion law and further that the clause did not prescribe any special qualifications or provision to be satisfied by or incorporated in the statute, on pain of invalidity. They pointed out that where the Constitution requires that a law on a particular subject should contain a particular provision, it says so expressly, and they referred, with justification, to Article 15 which is contained in the same part of the Constitution as Article 7, namely, the part relating to Fundamental Rights. This Article lays down expressly that private property shall not be compulsorily acquired "save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given". They concluded by saying that the provisions of clause (4) aforesaid had been complied with in the cases before them, meaning presumably by the concurrence of the Advisory Board having been obtained within the time limited by the Constitution. They did not, however, deal with the question whether the Advisory Board, which was consulted, could be regarded as an Advisory Board for the purposes of clause (4) aforesaid. This is the manner in which, the High Court has dealt with the first of the contentions placed before it on behalf of the detenus. No answer was given by the learned Judges to the second argument, namely, that as the period of detention was six months in the first instance, there should have been antecedent consultation with the Advisory Board. The argument is, how ever, plainly weak for the clause itself requires that the report of the Advisory Board should be available before the expiration of the said period of three months, which clearly suggests that a period of detention in excess of three months has commenced and the question to be settled by the report of the Advisory Board is whether it should be continued after the initial period of three months has expired. The argument was indeed not pressed before us in the form in which it is contained in the grounds of appeal before this Court, but it was said that the making of an order for six months' detention, under a law which did not expressly provide for consultation with an Advisory Board of the nature contemplated by the Constitution, was unconstitutional. This argument will be dealt with later, but proceeding at this point with a statement of the answers provided by the learned Judges in the High Court to the contentions raised before them, it falls to be mentioned that the third and fourth arguments regarding the validity of the Advisory Board which was consulted by the Government in the present cases, were not dealt with at all. As to the applicability of Article 224, the learned Judges appear to say that the argument is of no avail, because the amendment effected by the Ordinance lead disappeared, through the expiry of the Ordinance, before ever the detention orders were made in the present cases. They did not consider the question raised by the detenus that there had been conscious refusal by the Provincial Legislature to conform in the relevant respect with the requirements of the Constitution. However, in a different context and a little later in the judgment the learned Judges afford a sufficient reply to the argument based upon Article 224, namely that the Article is clearly not available for the making of adaptations otherwise than by legislation, since to allow this would be to render Article 4 nugatory. The purpose of Article 4 is to invalidate all existing laws in so far as they are inconsistent with the Fundamental Rights conferred by Part II. In our opinion, this is a sufficient answer to the argument, which was rested on Article 224 and on that point nothing further need therefore be said. Before this Court two fresh arguments were raised, which may be stated somewhat as follows. The first was that the statute may not in itself be unconstitutional, but that that law as interpreted and applied b. the makers of tile detention orders here in question, was violative of me Constitution. The further plea was raised that it was right and proper that all subjects should know their rights in relation to any law which affects them adversely, by reference to that law, and without being under the necessity of having to refer to the Constitution for that purpose. The second argument raised was that after the expiry of the amending Ordinance of 1956, if it be assumed that the previously existing sub‑ss. (6), (7) and (8) of S. 3 were revived, then an inconsistency would be seen to arise between the requirements of clause (4) aforesaid, and the provisions of those subsections and the inconsistency would be such that the statute would be unworkable and for that reason it should perish for unconstitutionality. It will be necessary in the course of this judgment to deal with these arguments as well as with the further argument that the interpretation of clause (4) accepted by the learned Judges of the High Court, is not sustainable upon the wording of that clause. In order to reach a proper understanding of this clause, it is necessary that close attention should be paid to the question what is the pith and substance of this particular provision of the Constitution? The expression "pith and substance" is familiarly applied to the examination of statutes in point of their com petency i.e., in a Federal Constitution, for the purpose of determining whether a statute relates to one subject or to an other subject. It is unusual to employ this expression when construing the scope and content of a constitutional provision, but as will presently be seen, the clause here under examination possesses such a character as makes the application of this expression to it both possible as well as apt. The whole of Article 7 is addressed to the making of provision for "safeguards as to arrest and detention". 'I his is clear iron the marginal description given to the Article. Arrest 4 detention, however, are clearly matters relating to the liberty of the subject and as to that, the general provision is contained in clause (2) of Article 5 in the following words:‑ "No person shall be deprived of life or liberty save in accord ance with law". The intention of the clause appears to be that law, by which should ordinarily be understood the kind of law which has previously in this judgment been distinguished by the description "sub‑constitu tion", shall govern every action which may have the effect of depriving a person of his liberty. When therefore, Article 7 proceeds to make detailed provisions regarding particular aspects of arrest and detention, it is clearly laying down law in a field which is included in the larger subject of the liberty of persons under the law. While constitutions are largely concerned with laying down principles, which shall be followed in the making of laws, there is nothing to prevent a constitution‑making body from making law of a special nature dealing with a special subject in the course of making a Constitution. It seems perfectly clear that in Article 7 there are included general statements of conditions affecting the questions of arrest and detention of persons, under all sub‑constitutional laws relating to that subject. In so doing, the Article makes fresh law, of a detailed character, belonging to the category of statute law, albeit enacted in the Constitution. Thus, the first clause of the Article lays down that an arrested person shall not be detained without being informed as soon as possible of the grounds of his arrest, and shall, not be denied the right to consult and be defended by his own lawyer. This is completely new law, of a detailed nature, applying to persons who have been arrested under any existing statute. The words of the clause do not convey the sense that the Constitution makers required that it should be incorporated in every law providing for arrest of persons that the necessary information and facility to consult a lawyer should be allowed to him.. The Article itself makes this law. The second clause repeats, but with higher and all‑embracing authority, certain provisions contained in the Criminal Procedure Code regarding production of an arrested person before a Magis trate within a precisely specified period of very short duration and that further detention must be under, the orders of a Magistrate. The third clause merely saves from .the operation of the first two clauses, persons who are enemy aliens and persons who are under preventive detention. The second clause clearly‑does not fall in the category of "organic law"; it contains provisions, which are already included in a statute, namely, the Code of, Criminal Procedure. It does not contain any words conveying the impres sion that its provisions are to be expressly 'incorporated in every law which provides for the arrest of persons. Passing over the fourth clause, which is under detailed examination in this judgment, we may next refer to the fifth clause, which requires that a detenu shall be provided as soon as possible, firstly, with a statement of the grounds upon which he has been detained, and secondly with an opportunity of making a representation against the order of detention, and by a proviso the authority ordering the detention is invested with discretion to disclose to the detenus only so much as may be safely stated without prejudice to the public interest. No words of emphasis are needed to make it clear that this clause in all its parts makes fresh law, applicable to the field of detention without trial. The law thus made is not of an organic nature, in the sense that it does not authorize the making of laws, nor does it impose conditions upon the making of laws relating to preventive detention. The clause does not require that its pro‑, visions shall be incorporated in any law of the relevant kind. The fact that it makes fresh law,, essentially of a nature belonging to the sub‑constitutional field is made clear beyond doubt by the conferment of power upon detaining authorities to withhold information from the detenu which it might be prejudicial to the public interest to disclose. Provisions of a similar kind are found in the statute‑book in a number of places. It is thus clear, upon examination of the other provisions contained in Article 7, that there can be no assumption that clause (4) constitutes a law of an "organic" nature or that it imposes any obligation or condition applicable to sub‑constitu tional laws of the relevant kind. The terms of the clause may therefore be examined without pre‑disposition in favour either of treating it as pure constitutional law or as law, which ordinarily belongs to the sub‑constitutional category. If the words have the effect only of making law of a sub‑constitutional character, that effect must be allowed to the clause, for it may lead to fallacious interpretation to commence the examination of the clause as if, merely by virtue of being included in the Constitution, it must be designed to hit the relevant sub‑Constitutional Laws, and cannot be aimed at matters which are in the nature of action under such laws. An adequate mode of examination might be to consider whether the clause goes to the competence of any laws relating to preventive detention, or to the content of these laws, or merely to the operation of those laws. It seems clear enough that the attack is not on the point of competence of any law for in that case, it must be assumed that by saying "no law shall authorize", the clause really means that "no Provincial Legislature shall authorize" and then the absurdity of the matter would stand revealed by the clear requirement of the latter part of the clause. It is inconceivable, that a Constitution which creates Provincial Legislatures which are to be completely autonomous within their spheres, should at the same time place upon the power of such a Legislature to make a law of the relevant kind, the condition that the power shall itself be dependent upon a report of a specified body regarding the detention of a particular person, which report is by expression, to be submitted after that law has been put into operation by the commencement of the detention, and may be submitted as long as three months after such commencement. Clearly, if the clause be read as a whole, it cannot be contended for a moment that it goes to the com petence of laws coming within its mischief. Does the clause then go to the content of any law of the relevant kind? Here, we are in agreement with the view of the learned Judges of the High Court that where the Constitution requires that a particular provision should be included in a statute, it says so expressly, and the provisions of Article 15 are directly in point. As is the case with every other clause in Article 7, clause (4) does not contain any words from which the inference might be drawn that it obliges the inclusion in every statute of the relevant kind, of provisions for the appointment and functioning of an appropriate Advisory Board. If then, clause (4) does not hit a statute of the relevant kind either on the point of its competence or its content, does it apply in respect of the operation of such a law? Now, a statute pro viding for preventive detention may conceivably be enacted for the detention of a particular person, and in that case, the statute would operate of its own force. The familiar statutes on the subject are however general in their expression and in respect of individual persons, they operate by virtue of an order specifying such person. In that aspect, it is important to note the words in clause (4), which describe the subject‑matter to which the clause is intended to apply. These words are "the detention of a person for a period exceeding three months". If the intention had been that these words should be of general intent, that intention would have been better conveyed by the use of the expression "any person". On the other hand, the use of the 'words "a person" clearly denotes a particular person, namely, the person, subject to the order of detention for a period exceeding three months and in regard to whose detention the requisite of a favourable report by the Advisory Board has been made sine qua non. Further, as has been observed already, the words "unless * * the Advisory Board has reported before the expiration of the said period of three months", clearly convey the expression that the detention has commenced and with it the time limited within which the report of the Advisory Board must be received, if the detention is validly to continue after the" initial three months' period has expired. It is extremely difficult to conceive of a law losing its authority, after action has been taken under it, for failure of a condition applicable to such action. On the other hand, the action itself may be invalidated either wholly or, it may be, after a 'certain point of time, by reason of the failure of a specified con dition. In this sense, clause (4) would be understood as being aimed at detentions under law and not at the law under which the detentions have been ordered. A little consideration will show that the clause cannot effectively operate, and therefore must be believed not to have been intended to operate, in respect of detentions, which commenced more than three months prior to the Constitution Day. In the case of such detentions, the condition would be one impossible of performance, and it could not be assumed that the Constitution intended to legislate for such detentions as well by means of clause (4). This supports further, if indeed support be necessary, that the plain intent of the clause is to hit not the law itself, but the operation of the law in respect of individuals, and then not all individuals, but only those who are undergoing detention whose duration is in excess of three months, provided that the detention did not commence three months or more before the Constitution Day. On this view it becomes plain that the words "shall authorize" are to be understood in a single sense and are not susceptible of being understood in more than one senses. They are to be understood to mean that the law under which a detention has been ordered which is hit by the clause shall not be valid authority for the continuation of the detention beyond three months, unless the condition specified in the clause has been satisfied in respect of such detention. The Constitution having laid down a specific requirement for the continuation of a deten tion beyond the necessary period of three months, the authority of the law under which the detention is ordered will be insufficient for carrying a detention beyond three months, unless the deficiency is made good by obtaining the concurrent opinion of the Advisory Board to support that of the detaining authority, on the point of sufficient cause. The statute in question is one of general application. If the case were one of a statute directing detention of a particular person the effect upon it of clause (4) would be that in the absence of the condition being satisfied, the authority of the statute itself would fail, for the purpose of continuing the detention beyond the initial period of three months, and thus by the failure of the condition, the statute would be deprived of all force. But in the case of a statute of general application, whose operation in relation to individuals would be by means of orders made thereunder, it is the validity of the orders which would be l hit by the non‑observance of the condition prescribed by clause (4), and not the validity of the statute itself. Upon this view, we find it unnecessary to discuss the two cases from the Indian jurisdiction, which have been examined by the learned Judges of the High Court although the facts and the statutes considered in those cases indeed bear close resemblance to those of the present cases. Our analysis of Article 7, and in particular of clause (4) thereof, makes it impossible for us to agree that a provision of the kind contained in clause (4) "obviously hits the law and not the detenion in a particular case. The third case referred to by the learned Judges is a decision, within our jurisdiction, by a Division Bench of the Karachi High Court in the case of Fazal Ahmad Ghazi pub lished as (P L D 1957 Kar. 190). The decision in that case turns upon the interpreta tion of clauses (4) and (5) in Article 7 of the Constitution and is to the effect that the Baluchistan Public Safety Regulation, 1947, became void upon the enactment of the Constitution because it contained no provision as regards the communication of the grounds of detention to the detenu and for reference to the Advisory Board. The learned Judges of the High Court have observed in the judgment under appeal that the decision in the case of Fazal Ahmad Ghazi is based upon an assumption of repugnancy. They have declined to follow it, and m our opinion rightly. For reasons which appear with sufficient clarity from the foregoing portions of this judgment, we must hold that on the point of the validity of the Baluchistan Public Safety Regulation, 1947, in the light of clauses (4) and (5) of Article 7, the case of Fazal Ahmad Ghazi cited above was, wrongly decided. It is necessary to consider next the argument that the statute in question is unconstitutional to the extent of its application upon a certain construction of clause (4) aforesaid, in relation to the present appellants. We have said enough already to indicate that in our opinion, the clause in question 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 further requirement of the clause is as to the Advisory Board and the question in this respect raised before us is that the clause does not of itself empower the Chief Justice of the West Pakistan High Court to constitute an Advisory Board, and therefore the detaining authority has not acted on a proper construction of the clause, in acting as if the requirement or the condition of ' the clause has been satisfied by a reference to the Advisory Board constituted by the Chief Justice of the High Court, on the 19th April, 1956, without there being any statutory obligation upon the Chief Justice to do so, or any statutory conferment of power upon him for the purpose, as was included in the expired Ordinance of 1956. The argument appears to us to be unsustainable upon the wording of the clause. Those words clearly envisage the existence of an Advisory Board and specify the Chief Justice as tire authority for the appointment of persons to form such a Board. Now, the very existence of Article 7 sufficiently shows that the constitution‑makers were aware that there were in operation laws empowering preventive detention. It can hardly be contended that when in clause (4) the constitution‑makers expressed themselves in terms showing that they were assuming the existence of an Advisory Board capable of performing the functions for which they were providing and when the same constitution‑makers had nominated a person who was to appoint that Board, they did all this without intending to create a definite duty in that regard, relative to the constitution of such a Board. They must be assumed to have been aware that no such Boards were as yet in existence at any rate in West Pakistan. It is clear from the action taken by the Chief Justice of the West Pakistan High Court, as appearing from the notification of the 19th April 1956, that it was in the sense indicated above that he i.e. the Chief Justice, interpreted the provision relating to him in clause (4). Therefore, even though clause (4) does not contain words directly obliging the Chief Justice to appoint the Board in question, yet by inescapable implication the duty of appointing such a Board was clearly intended to be imposed upon the Chief Justice. The argument that the words "appointed by the Chief Justice" are intended only to identify persons appointed, for the purpose of their membership and the constitution of the Advisory Board, minimised the degree of solemnity attaching to the functions created by the clause, namely, a function of the Chief Justice to constitute an Advisory Board, a function of the Board to act in relation to detentions without trial, and a function of the Provincial Government or other detaining authority to consult that Board and to act with its concurrence upon pain of having all preventive detentions being reduced to a period of three months. The need for a Board was evident in view of the existence of detaining statutes, and it was a recurring one as the statutes were in regular operation. It was clearly of a highly important public nature. Bearing these matters in mind it is hardly possible to urge with any seriousness that the Constitution did not intend by the words used in clause (4) that the appropriate Advisory Boards should be constituted by the respective Chief Justices without delay. If then the Advisory Board appointed by the Chief Justice of the West Pakistan High Court was a competent Board under the clause, is it an unconstitutional application of that clause for the Provincial Government to obtain the concurrence of the Board without there being a specific provision to that respect; in the statute? The answer, it appears to us, must be clearly in the negative. The action taken appears on the contrary to have been precisely in accordance with the very words of the clause. Indeed, to require that these words should be implemented only through the mediacy of a statute would be plainly to legislate, and thus outside the functions entrusted to the Judiciary. The argument that in order that the Fundamental Rights guaranteed by Article 7 should be truly effective, it is necessary that they should be incorporated in the relevant statutes as was done by the expired Ordinance of 1956, has an appreciable measure of persuasive force, but that force is hardly adequate to invalidate a statute. In particular, clause (4) has for its purpose the imposition of a duty upon the detaining authority. It does not directly confer any rights upon the subject. The facts appearing in the present cases show that systematically the detaining authority in question has been complying with the constitutional requirements of the clause in a manner, which conforms to the letter of that clause most faithfully. We find no force in the argument that in. acting as it has done the detaining authority, namely, the Provincial Government, in the present cases, has in any way misconstrued the clause or mis‑applied it. The contention that the Advisory Board constituted on they 19th April 1956, expired with the expiry of the Ordinance of 1956 can be briefly answered. In constituting that Board, the Chief' Justice of the West Pakistan High Court relied on the powers conferred upon him by clause (4) of Article 7 of the Constitution. In the view, which we have expressed above, it becomes clear that reliance was well placed. The mere fact that an additional reference was made to a subsection in S. 3 of the relevant statute, which subsection ceased to have effect on the 29th May 1956, long before the present detention order were made, cannot be urged in diminution of the authority derived from the Constitution itself. As we have mentioned above, the notification was expressed so as to relate the appointment of the Advisory Board; not to the expired subsection mentioned above, but to the section as a whole. The section deals with preventive detention and, therefore, falls within the mischief of clause (4) of Article 7 so that the appointment of the Advisory Board for the purposes of the section was clearly and perfectly in order. The argument of invalidation by inconsistency is presented in a conditional form. Briefly, the position which was developed was: that depending upon the interpretation of a certain new provision in the Punjab General Clauses Act, as in relation to the provisions of Article 102 of the Constitution, there would r' be either no subsections (o), (7) and (8) in S. 3 of the Punjab) Public Safety Act, 1949, or there would be subsections so' numbered in the form in which they stood prior to the promulga tion of the Ordinance of 1956 mentioned above. If these sub sections were missing from the section, there would be no question of inconsistency and, consequently, of repeal through repugnancy. This question would only arise if those subsections stood in the form in which they were given as a result of an amendment brought about in 1954, making provisions to the following effect, namely, that a detenu was empowered at any time during his deten tion to represent against the order of detention to the Chief Justice, and thereupon the following consequences would follow, viz. (1) the Government would furnish all available material relevant to the order to the Chief Justice ; (2) the Chief Justice would hear the person detained and make such further inquiry as he considered necessary ; and (3) the Chief Justice would record; a finding whether there was in his opinion sufficient cause for the passing of the order and if he found no sufficient cause, he was to "direct that the person detained be released forthwith"; the findings were to be communicated to the Government and. to the detenu. It was stated before us that the question of law relating to the validity of the provision in the Punjab General Clauses Act referred to above, in the light of article 102 of the Constitution, is before this Court for decision in another case, and it is therefore desirable that we should refrain from expressing any view upon that point. But, assuming that subsections (6), (7) and (8) still stand in S. 3 of the statute in question with the content indicated above, it is impossible for us to see that any difficulty could possibly arise in the application of the provisions of those subsections side by side with the provisions of clause (4) aforesaid. The power vested in the Chief Justice by those subsections is a power to give relief upon motion by the subject, and thus falls in a different category from a restraint imposed upon the Provincial Government or other detaining authority by clause (4), where the detention is intended to continue for a period exceeding three months. The power of the Chief Justice to order release of a detenu at any time cannot, it seems to us, be challenged by the detaining authority whether or not it has the concurrence of the Advisory Board in regard to its own opinion. Similarly, the power of the Government to release a detenu at any time may be exercised despite the opinion of the Advisory Board or the finding of the Chief Justice that there is sufficient cause for continuing the detention. The requirements of clause (4) that the Advisory Board's concurrent opinion should be obtained to continue a detention for more than three months does not in any way create a conflict with any power of release provided by the statute. Consequently, the argument that the existence of sub sections (6), (7) and (g) of S. 3 if assumed, makes the relevant statute unworkable in the presence of clause (4) of Article 7, is wholly without force. For these reasons, we are of opinion that the validity of S. 3 of the Punjab Public Safety Act is not affected by anything contained in clause (4) of Article 7 of the Constitution, and that operation of the latter clause is confined to detentions under the aforesaid S.

3. We are further of the opinion that in the present cases, the detentions are covered by orders made in conformity with the provisions of the aforesaid clause (4). These appeals fail and we hereby dismiss them.. The parties will bear their own costs. All orders granting bail to the appellants or any of them, ad interim, are hereby cancelled. A.H. Appeals dismissed.