P L D 1973 Karachi 78 (PLP)

(8) That you have generally shown disregard and disrespect for law. During September 1971, the Civil Judge & F. C. M., Mehar had issued summons to you twice for your appearance in his Court, but you refused to take the delivery of the summons, with the result that the said Court had issued a warrant against you. The Civil Judge & F. C M., Mehar, categorically mentioned in his D. O. letter No. CR/78/71 dated 2‑10‑1971 addressed to the Deputy Commissioner, Dadu that you being a representative of the people had disregarded the law of the land. That on the grounds stated above, it is necessary to prevent you from acting in a manner prejudicial to the maintenance of public order and that the order of detention under the law referred to above has been passed. The above grounds are being communicated to you in pursuance of the requirement of subsection (5) of section 3 of the aforesaid Ordinance, with a view to enable you to make, if you so desire, a representation to the Government of Sind, against the aforesaid order of the Government, and you are hereby informed that you are at liberty to make such a representation to Government against the said order within a period of 10 days."

3. Now, it would be useful to refer to the relevant provisions of the West Pakistan Maintenance of Public Order .Ordinance (XXXI of 1960). This Ordinance was amended in' Its several provisions by the West Pakistan Ordinance XVIII of 1964. The relevant portions of section 3(1) and (2) of the Ordinance, as amended, read as under :‑ "3.‑(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under sub section (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may extend, from time to time the period of such detention for a period not exceeding six months at a time. Explanation. * * * * * * * * * * (2) If a District Magistrate or any other servant of Govern ment authorised in this behalf by a general or special order of Government, has reason 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 Government for orders." Subsection (5) of section 3, in the form substituted by the amending Ordinance, provides that the Government shall constitute an advisory board consisting of a Judge of the High Court, who shall be nominated by the Chief Justice, and a Senior Officer in the service of Pakistan, who shall be nominated by the Government. Subsection (5‑d) of this section enables the Boari not only to consider the material placed before it by the detaining authority, but also to consider the representation which the detenu may make and even to hear the detenu in person if he so desires and to call for further information from the Government. Under subsection (5‑f), it is provided that if the Board reports that there is no sufficient cause for the detention of any detenu whose case had been referred to it, for a period exceeding three months, then in that case the Government shall rescind the detention, order. But, if the Board reports that there is sufficient cause for detention, then the Government may, subject to the provisions of subsection (1), continue the detention of the detenu for such period as the Government may deem fit. Subsections (6) and (6.a) of the Ordinance have also material bearing in this case, and therefore may be reproduced hereunder in full "(6) Where a detention order has been made under this section the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose. (6‑a) Where a representation is made to Government under subsection (6), Government may, on consideration of the representation and giving the person detained an opportunity of being heard, modify, confirm or rescind the order." It may here be noted that before the amendment introduced in the Ordinance by the amending Ordinance XVIII of 1964, subsection (6) of section 3 required that the grounds of detention shall be served on the detenu as soon as may be, but not later than fifteen days from the date of detention. The expression "but not later than fifteen days from the date of detention" was deleted by the amending Ordinance. Another relevant section of the Ordinance is section 26, which provides that the Provincial Government may, by order in writing, direct that the power under subsection (1) of section 3 shall, subject to such restrictions as may be specified, be exercisable by any District Magistrate within his jurisdiction.

4. We have above referred to the application made on behalf of the detenu for examination of the Home Secretary to the Government of Sind, Superintendent of Police, Larkana and the S. H. O. of the Bagrani Police Station. When the case came up for regular hearing before us on 15‑6‑1972, arguments were addressed to us on the question as to whether the Home Secretary should or should not be examined in Court. We disagreed with the objections of the learned Advocate‑General and permitted the examination of the Home Secretary on various grounds stated in detail in our order of that date, that is to say, that our opinion was that some of the grounds of detention appear ed to be extraneous to the purpose and object of the Ordinance, such as the ground that the detenu had been giving private judgments in dispute between parties in his District, some of the grounds were attacked as being vague and indefinite and, further, the fact that the order of detention passed by the Provincial Government was in consequence of the withdrawal by the District Magistrate, Dadu, of his own order of detention due to the technical defect noted above, made it necessary, in our opinion, to ascertain, whether the detaining authority had (independently applied its mind and formed its opinion as to the necessity of the detention of Mr. Abdul Hamid Khan Jatoi under the Ordinance. On 16‑6‑1972, we allowed the examination of Mr. Abdur Razzaq Memon, S. h

3. O. of the Bagrani Police Station, mainly on the it ground that the case set up by the State was that the detenu was placed under arrest only on 17th May 1972, whereas this witness's writing, Exh. 7/1, which he admitted to be In his own hand, signed by him, showed that the detenu was under arrest since 2‑00 p.m. of 16th May 1972.

5. The order of detention, which is the subject‑matter of the present petition, has been attacked on several grounds. We propose to discuss these grounds and other grounds which the superior Courts have generally to take into consideration to determine the validity or otherwise of preventive detention. But before doing so, we must refer to four judgments of the Supreme Court in which the law relating to preventive detention has been elucidated with sufficient clarity, so as to remove much of the confusion which arose on this subject due to conflicting judicial opinions. These judgments are :- (1) Ghulam Jilani v. Government of West Pakistan P L D 1967 S C 373. (2) Abdul Baqi Baluch v. Government of Pakistan P L D 1968 S C 313. (3) Govt. of West Pakistan v. Begum Shorish Kashmirl PLD1969SC14. (4) Govt. of West Pakistan v. Haider Bun Jalol P L D 1969 S C

210. Before these decisions, the Courts in this country followed the rule laid down by the House of Lords in Liversidge v. Sir John Anderson (L R 1942 A C 206) that the detaining authority was invested with complete power to be the judge of its own satis faction with regard to the detention of the detenu and that this satisfaction was subjective in nature and was therefore immune to judicial examination. However, in Ghulam Jilani's case, the Supreme Court departed from this rule. In this case, the Supreme Court had before it the construction of sections 3(1) and 3 (2) (10) of the Defence of Pakistan Ordinance, 1965, and Rules 32 and 204 of the Defence of Pakistan Rules, 1965. The relevant portions of these rules read as under . . . . . "32.‑(1) The Central Government, If satisfied with respect to any particular person, that with a view to preventing him from acting in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other power, the maintenance of peaceful conditions in any part of Pakistan, the maintenance of essential supplies and services or the efficient conduct of military operations or persecution of war, it is necessary so to do, may make an order . . . . . (b) directing that he be detained ; 204.‑‑(1) Any police officer, or any other officer of Govern ment empowered in this behalf by general or special order of the Central Government, may arrest without warrant any person whom he reasonably suspects of having acted, of acting, or of being about to act." The relevant portion of rule 8 (2) (10) was to this effect, "suspects, on grounds appearing to such authority to be reason able, of having acted, acting, being about to act." In both these provisions, the power of arrest is qualified by suspicion, which is based on reasonable grounds, of a person arrested of having acted, acting or about to act in a manner prejudicial to the State. The words "reasonable grounds" are not used in Rule 32 of the Defence of Pakistan Rules reproduced above. In this respect, Rule 32 corresponds to Rule 26 of the Defence of India Rules made under the Defence of India Act, 1939 and Rule 204 to Rule 129 of the Defence of India Rules. The Judicial Committee of the Privy Council drew a distinc tion between these two Rules in King‑Emperor v. Yimlabal Deshpande (L R 73 I A144) to the effect that in Rule 26, the word "satisfied" is not qualified by such adverbs as "reasonably" or "honestly", whereas the power of arrest conferred on a police officer under Rule 109 was qualified by the existence of "reasonable" grounds and therefore in a case arising under Rule 159, the burden rested on the police officer to show that his suspicion was reasonable. The majority of the Supreme Court, however, held in Ghulam Jilani's case that the conclusion reached by the Judicial Committee of the Privy Council with regard to the construction of Rule 26 of the Defence of India Rules may have been tenable under the Government of India Act, 1935, but that under the Constitution of Pakistan of 1962, a wholly different state of affairs prevailed, In that Article 2 of that Constitution required that every citizen should be dealt with strictly in accordance with law and Article 98 empowered the superior Courts to probe into the exercise of public power by executive authorities to determine whether they have acted with lawful authority. Accordingly, it was held that the "Satisfaction" of the detaining authority acting under Rule 32 must be induced by the existence of reasonable grounds, the question of reasonableness being justici able in the Courts. In the next case, that Is, Abdul Baqi Baluch's case the Supreme Court had again to construe sections 3(1) and 3 (2) (10) of the Defence of Pakistan Ordinance XXXIII of 1965 and Rules 32 and 204 of the Defence of India Rules made thereunder. Hamoodur Rahman, J. (as he then was) with whom Fazie‑Akbar, Muhammad Yaqub Ali and Sajjad Ahmad, JJ. concurred, re‑affirmed the rule laid down in Ghulam Jilani's case and held that under Article 88 (2) (b) (1) the superior Courts had to determine whether the executive or administrative authority had before it sufficient material upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied, and that it was not sufficient for the executive authority merely to produce the order of detention, saying that it is satisfied that the detenu should be detained, but, further, that the executive authority must place before the Court material upon which it claims to have been satisfied so that the Court can, in discharging its duty under Article 98 (2) (b) (i), in turn be satisfied that the detenu is not being held without lawful authority or in an unlawful manner. With regard to the material forming the basis of the order of detention, their Lordships held that if privilege was claimed for document, even then the material would have to be shown to the Court, for it is the Court which has to decide as to whether the document concerned is really a privileged document. Abdul Baqi Baluch's case was followed by Shorish Kashmiri's case, in which the Supreme Court reiterated the rule laid down in Ghulam Jilani's case and Abdul Baqi Baluch's case that the question whether there are grounds on which a reasonable person would have formed the same opinion as that formed by the detaining authority with regard to the detention of the detenu, is within the ambit and power of judicial review under Article 98 of the Constitution of Pakistan of 1962 and, that in an enquiry about the reasonableness of detention the initial burden lies on the detaining authority to establish the legality of action. It was further reiterated that the Court had power to inspect any document with the detaining authority to determine the validity of the claim of privilege. Shorish Kashmiri's case was followed by Haider Bux Jatoi's case, which was a case under the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), and therefore may be said to have a material bearing on the case before us, as Mr. Abdul Hamid Khan Jatoi has been detained under an order of detention passed under section 3 of this Ordinance. In this cases Muhammed Yaqub Ali, J., giving the opinion of the Fail Court, again reaffirmed that the "satisfaction" of the detaining authorit3 is not subjective. The following passage from the judgment is relevant for the purpose of the present case: "The position which emerges from a close study of the provisions of section 3 of the Ordinance reproduced above is: (i) the satisfaction of the Provincial Government is not subjective, but must be based on grounds set out in sub section (1) of section 3 and supported by material which will satisfy the Board that there is sufficient cause for detention ; (ii) the person detained has a right to contend against the grounds of detention both before the Provincial Government and the Board ; (iii) the opinion of the Board must rest on the material produced before it or the material called for by the Board which is relatable to the grounds on which the order of deten tion is based and against which the person detained has been given an opportunity to represent ; (iv) the proceedings before the Board are of quasi judicial nature and amenable to judicial review by superior Courts ; and (v) the authority of the Provincial Government to extend the period of detention is derived from a favourable opinion given by the Board and not under the preliminary power conferred by subsection (1) of section 3." Proceeding further, their Lordships approved the view of the West Pakistan High Court in Rehmat Elahi v. Government of West Pakistan (P L D 1965 Lah. 112) that the whole order of detention is rendered invalid if one of the grounds of detention is bad or is non existent or irrelevant and supported this view by the rule laid down by the Federal Court of undivided India in Keshew Talpada v. Emperor (AIR 1943 F C 1), in which Gawyer, C. J. had stated that "if a detaining authority gives four reasons for detaining a man without distinguishing between them and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them." As has been noted, these four decisions were given on petitions brought under Article 98 of the Constitution of Pakistan of 1962, and their Lordships of the Supreme Court took the view that the construc tion placed by the Judicial Committee of the Privy Council on Rule 26 of the Defence of India Rules could be tenable only under the Government of India Act, 1935, but could not be imported in a case brought under Article 98 of the Constitution of 1962, which provision, read with Article 2 of that Constitution, expressly required the superior Courts to determine whether an executive action was lawful or was made with lawful authority. The present petitioner has come to this Court under the Interim Constitution of the Islamic Republic of Pakistan. Article 3 (1) of this Constitution is in identical terms with Article 2 of the Constitution of 1962. Likewise, Article 201 in no way departs from the language of Article 98 of the former Constitution. Hence, the judgments of the Supreme Court referred to above would effectively apply in matters coming before the superior Courts under Article 201 of the Interim Constitution.

6. An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (1) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention ; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non‑existent or irrelevant, the whole order of detention would be rendered invalid ; (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preven tive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention ; that each of the requirements of the law relating to preventive detention should be strictly complied with ; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu ; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be" ; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representa tion against his detention to the authority prescribed by law ; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice.

7. We will first take up the contention of Mr. M. Enver, the learned counsel for the petitioner, that the order of detention impugned in the present proceedings has not been made by the prescribed authority, that is, the Provincial Government, as required by section 3 of the Ordinance. This contention was raised in view of the provisions of Article 104(4) of the Interim Constitution. This Article 104, together with Articles 103, 105 and 106, finds place in Part IV of the Interim Constitution relating to the Governors of the Provinces and comes under the head "administration of provincial affairs". It is no one's case that the administration of the West Pakistan Maintenance of Public Order Ordinance, 1960, is not a provincial affair. Article 104(4) of the Interim Constitution provides that "in the exercise of his functions, the Governor shall act in accordance with the advice of the Council of Ministers or, as the case may be, the appropriate Minister, except as otherwise provided in this Constitution". Mr. Enver's contention with regard to this provision was raised in view of the evidence of the Home Secretary that the Chief Minister of Sind, who also holds the portfolio of Home Affairs, was not consulted with regard to the order of detention in the present case. Mr. A. H. Memon, the learned Advocate‑General, however, invited the attention of the Court to Article 103(2) of the Interim Constitution, which provides that "the question whether any and, if so, what advice has been tendered by the Council of Ministers or a Minister shall not be inquired into in any Court or tribunal whatsoever". A provision similar to the one under Article 104(4) was made in Articles 37(7) and 71(7) of the Constitution of 1956 with regard to the administration of central and provincial affairs, But no such provision is found either in the Government of India Act, 1935, or in the Constitution of 1962 or other Constitutions which have generally followed the British Parliamentary pattern. The point is whether the question that Governor has acted, in the exercise of his functions in the administration of provincial affairs with the advice of the Council of Ministers or the appropriate Minister, is a justiciable question. It is difficult to reconcile the provisions of Article 103(2) with the provision made in Article 104(4) of the Interim Constitution. However, in this case, we do not consider it necessary to express any opinion so as to lay down a definite proposition with regard to the construction to be placed on Articles 10'3(2) and 104(4), as sufficient arguments were not address to us by either side to resolve this point. But the question still remains whether the order of detention impugned in the present proceedings was made by the authority prescribed in the West Pakistan Mainte nance of Public Order Ordinance. Under section 3, it is the Provincial Government which has to be satisfied as to the necessity to detain a person and to make the necessary order in this connection, subject of course to the delegation of such functions by the Provincial Government to the District Magis trates under section 26 of the Ordinance. The Provincial Government under the Interim Constitution, by virtue of the provisions contained in Articles 103 and 104, is the Governor acting with the advice of the Council of Minsters or the appropriate Minister. Assuming (though we do not commit ourselves on this point) that the correct view is that the Court cannot make any enquiry as to whether any, and if so, what advice was given by the Council of Ministers or the appropriate Minister to the Governor, still the Court cannot close its eyes to evidence before it showing that the order of detention was not made by the Provincial Government as defined in Articles 103 and 104 of the Interim Constitution. The West Pakistan Maintenance of Public Order Ordinance, 1960, being a law which provides for detention without trial, is an infringement of the personal rights and liberties of the citizens, and therefore the Court would insist on strict compliance with the provisions of this Ordinance, and if the evidence shows that the prescribed authority did not make the order of detention, then the Court will strike down this order. In the instant case, the evidence of the Home Secretary, to the relevant portion of which no objection was taken in the course of his examination shows that the Chief Minister of the Province, who holds the portfolio of Home Affairs also, was not at all consulted with regard to the order of detention purporting to be made by the Provincial Government and, further, he was not even in Karachi when this order was made. This would mean that the order of detention was not made by the Provincial Government as defined under Articles 103 and 104 of the Interim Constitution, as, in the making of the order, neither the Council of Ministers nor the Home Minister was consulted. This question may also be viewed from another aspect, that is, that 'satisfaction' of the detaining authority should exist in fact. It is open to a detenu to show, on evidence that such `satisfaction' did not exist. See King‑Emperor v. Sibnath Banerji (L R 72 I A 241), in which case the Judicial Committee of the Privy Council went behind the order of detention and tested it on the evidence brought before the High Court to ascertain whether the competent authority was satisfied that the order of detention should be made. The' authority to be satisfied with regard to the necessity of detention,R that is, the authority which has to form its mind on the basis of the material placed before it that a particular person should be detained without trial under the Ordinance is the Provincial Government. Whatever may be the position under Article 103(2) of the Interim Constitution, we are of the view that under this Ordinance, which infringes the rights and liberties of the citizens, it is open to the detenu to show that there was no satisfaction in fact on the part of the Provincial Government with regard to the necessity of his detention. In effect, the satisfaction has to be of the Governor acting on the advice of the Council of Ministers or of the appropriate Minister, that is, the Home Minister. In Sibnath Banerji's case, the High Court allowed evidence to be brought on record with regard to the existence or otherwise of the satisfaction of the Home Minister for preventive detention of certain persons. Likewise, in case arising under the West Pakistan Maintenance of Public Order Ordinance, 1960 the Court would allow evidence to ascertain whether or not the Provincial Government, being the appropriate authority, wits satisfied particular citizen should be detained without notwithstanding the provisions of Article 106 of the interim Constitution, which requires executive action of the Provincial Government to be expressed in the name of the Governor and which makes provision for authentication of orders made in the Governor's name. A similar provision existed in the Government of India Act, 1935. But the High Court, as well as the Judicial Committee of the Privy Council, allowed evidence to be brought on record in Sibmath Banerji's case to show that satisfaction in fact did not exist with regard to orders of preventive detention of some particular persons. As has been said above, provision similar to one made under Article 104(4) of the Interim Constitution did not exist to the Government of India Act, 1935. Accordingly, in the presence of such provision, the detenu is placed in a more advantageous position for the purpose of showing that the authority prescribed in the law under which he is detained, was in fact not satisfied with regard to his detention. This the present detenu has succeeded in doing as it has come clearly on record that the order of detention was passed by the Governor, not under advice of the Council of Ministers or the appropriate Minister, but on the advice of the Hone Secretary, Therefore, the order of detention suffers from two serious legal infirmities, firstly, that the order of detention was not made by the Provincial Government which is the authority prescribed for preventive detention under section 3 of the Ordinance and, secondly, it has been shown that satisfaction of the detaining authority that is, the Provincial Government, for the preventive detention of the present detenu did not in fact exist. For these reasons alone, the Court should strike down the order of detention.

8. We have stated above that there should be strict com pliance with the provisions of any law which permits detention without trial of a citizen. In the instant case, we are of the view that two essential requirements of the West Pakistan Maintenance of Public Order Ordinance, 1960, were not carried out, that is to say, (t) the grounds of detention were not served on the detenu "as soon as may be", as required by subsection (6) of section 3 of the Ordinance, and (il) there was no compliance with subsection (2) of section 3 of the Ordinance, which requires the District Magistrate to refer the prejudicial activities of a person to the Provincial Government, which reference would appear to be a condition precedent for the order of detention. We have here it before noted that, in the first instance, Mr. Abdul Hamid Khan Jatoi was detained under an order dated 19th May 1972 of the District Magistrate of Dadu passed under section 3 read with section 26 of the Ordinance. This order was the subject‑matter of Constitutional Petition No. 203 of 1972, and no grounds of detention were served on Mr. Abdui Hamid Khan Jatoi for the whole duration that this order remained in force, that is, up to 29th May 1972, when the District Magistrate withdrew this order. On this date, another order was passed, expressed to be in the name of the Governor and authenticated by the Home Secretary, directing the detention of Mr. Abdul Hamid Khan Jatoi in the Central Prison, Karachi, for one month. This new order was served on Mr. Abdul Hamid Khan Jatoi in the morning of 30th May 1972 in the Karachi Central Prison, and on the same day Constitutional Petition No. 203 of 1972 was fixed for hearing in this Court. In the circumstances of this case, we are of the view that the detention of Mr. Abdul Hamid Khan Jatoi under the order dated 29th May 1972, purporting to be passed by the Provincial Government, was in effect continuation of his detention under the order of the District Magistrate of Dadu dated 19th May 1972. We have formed this opinion, because the District Magistrate of Dadu withdrew his order of detention, and a new order was passed, purporting to be made by the Provincial Government, on 29th May 1972, only on the ground that the District Magistrate felt that his order was likely to be quashed by the High Court In Constitutional Petition No. 203 of 1972 due to a technical defect in the order, that is, when the order was passed by the District Magistrate, Dadu, the detenu was already in the District Jail of Larkana, outside the District Magistrate's jurisdiction. This being the reason for the new order of 29th May 1972, ft should be held that the detention of Mr. Abdul Hamid Jatoi under the order of 29th May 1972 was in effect continuation of his detention under the District Magistrate's order dated 19th May 1972. In this view of the matter, we feel that there was inordinate delay in serving the grounds of detention on Mr. Abdul Harald Khan Jatoi. As we have hereinbefore stated, the grounds of detention was served on the detenu only on 3rd June 1972, and that also in compliance with the directions of the Court given on 1st June 1972. Thus, the grounds of detention were served after more than fifteen days of the first order ref detention dated 19th May 1972. Subsection (6) of section 3 requires that the ground's of detention' should be served on the detenu `as soon as may be'. It is no doubt correct that no hard and fast rule can be laid down as to the time within which grounds of detention should to served on the detenu, and that this question has to be determined with reference to the circumstances of each particular case which comes before the Court. But no explanation has been given as to why it was not possible to serve the grounds of detention on Mr. Abdul Hamid Khan Jatoi earlier than 3rd Jane 1972. Accordingly, this inordinate delay in serving the grounds of detention on Mr. Abdul Hamid Khan Jatoi has resulted in contravention of the mandatory requirement of subsection (6) of section 3 of the Ordinance, and this fact also should render the order of detention against Abdul Hamid Khan Jatoi invalid.

9. We have also reproduced subsection (2) of section 3 of the Ordinance. In view of the provisions of this subsection, first a refer ence has to be made by the District Magistrate the Provincial Government with regard to the prejudicial activities of a person before an order of detention is made under subsection (1) of this section. It was, however, contended that the Provincial Government has, by reason of the provisions of section 26 o the Ordi nance, delegated its power under section 3(1) of the Ordinance to the District Magistrate. But the question is, whether this delega tion of the Provincial Government's powers renders ineffective the requirements of subsection (2) or, in other words, the require ment that first reference should be made by the District Magis trate to the Provincial Government before detaining a person without trial under the Ordinance, is dispensed with when the Provincial Government delegates its powers under subsection (1) of section 3 to the District Magistrate. The West Pakistan Maintenance of Public Order Ordinance, 1960, being an infringe ment of the rights and liberties of the citizens, should be strictly construed, and, when two interpretations of a provision are possible, then the one which is in favour of the citizen should be adopted. In our opinion, the requirements laid down in sub section (2) of section 3 are not dispensed with when powers of the Provincial Government under subsection (1) are delegated to the District Magistrates. Notwithstanding such delegation, it would still be necessary for the District Magistrate to make reference to the Provincial Government with regard to the prejudicial activi ties of a citizen, and, when such reference is made, the Provincial Government may pass such order as it may deem fit. Therefore, section 26, which permits delegation of the Provincial Govern ment's powers under subsection (1) of section 3 should be inter preted in the context of the provisions of subsection (2) of this section. What can be delegated under section 26 is only the power to arrest and detain a citizen. But the faculty of satisfac tion cannot be delegated to the District Magistrate. Even section 26 itself makes this position clear, in that it provides only for delegation of the Provincial Government's "power" under subsection (1) of section 3. "Power" is not the same thing as "satisfaction". Subsection (1) of section 3 first requires the pro vincial Government to be satisfied with regard to the necessity o preventive detention of a citizen, and upon such satisfaction being reached, the Provincial Government can exercise the power of directing arrest and detention of such person. Reading sub sections (1) and (2) of section 3 and section 26 together, the legal position, which emerges is that what can be delegated is only the power to arrest and detain a citizen. But as regards "satisfac tion", this has to be of the Provincial Government, and not of the District Magistrate to whom power of arrest and detention is delegated. The procedure under these provisions, therefore, would appear to be that first a reference is made by the District Magis trate to the Provincial Government with regard to the prejudicial activities of a citizen and then it is the Provincial Government which should be satisfied as to the necessity that such person should be detained under the Ordinance, and, upon such satisfac tion being reached, the necessary order is made directing the District Magistrate to arrest and detain such person. The evidence of the Home Secretary establishes that no reference whatsoever was received by the Provincial Government from the District Magistrate of Dadu before he made the order of detention dated 19th May 1972, and not even thereafter. It is correct that there is a letter of the District Magistrate, Dada, dated 29th May 1972, which has been referred to above, but this letter cannot be treated as reference under subsection (2) of section 3 of the Ordinance, as it merely points out the technical defect in the District Magis trate's order dated 19th May 1972 and recommends withdrawal of this order and the making of another order of detention by the Provincial Government. This view becomes clear from the follow ing relevant portion of the District Magistrate's letter dated 29th May 1972 "

2. The High Court of Sind & Baluchistan. Karachi have admitted a writ petition filed on behalf of Abdul Hameed Jatoi detained by me on 19‑5‑1972 under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960. The High Court has been pleased to order me to show cause why the said detenu may not be released. The matter Is fixed for tomorrow. I have been advised that the orders passed by me regarding the detention of Abdul Hameed Jatoi suffer from certain technical defect; for instance, at the time of passing these orders, the detenu was confined in the District Jail, Lar kana and also these orders were served on him in that district. I have, therefore, thought it advisable to withdraw these orders today. I am passing regular orders on this behalf, a copy of which would be sent to you separately.

3. In this connection I feel it necessary to bring it to your notice that there are sufficient grounds to take some action against Abdul Hameed Jatoi either under the East Pakistan Maintenance of Public Order Ordinance, 1950 or some other preventive law with a view to preventing him from acting in a manner prejudicial to the maintenance or public order, It Is reasonably apprehended on the basis of the material available with me that if Abdul Hamee3 Jatoi comes out of jail, he would create a serious law and order situation and thereby paralyse the District administration. ate is involved is a serious case of abduction of a girl and her minor child and it is feared that if he is out he would resist with full force the Police efforts to recover the abducted girl and her child.

4. I am enclosing a copy of Memorandum No. PB/CR/ Secret/A/1972, dated 19‑5‑1972, from the Superintendent of Police, Dadu to nay address giving full account of the activities of Abdul Hameed Jatoi justifying" the taking of certain preven tive action against him." Since it is our view that the detention of Mr. Abdul Hamid Khan Jatoi under the order of 29th May 1972, is in effect a con tinuation of his detention under the District Magistrate's order dated 19th May 1972, the necessary conclusion would be that the whole detention, whether under one order or the other, is render ed invalid, as there was no compliance with the requirements of subsection (2) of section 3 of the Ordinance before detaining Mr. Abdul Hamid Khan Jatoi preventively under the West Pakistan Maintenance of Public Order Ordinance, 1960.

10. The above letter of the District Magistrate would shoav that the primary considerations for the order of detention dated 29‑5‑1972 were‑(i) that the order of detention passed by the District Magistrate. Dadu was likely to be quashed by the High Court in Petition No. 203 of 1972, (ii) that the detenu was involv ed is a serious case of abduction of a girl and her minor child (which charge was already the subject‑matter of prosecution, is which the detenu had been released on bail by the Sessions Judge, Larkana), and (Ml that the detenu If released, will create a serious law and order situation and would resist with full force the efforts of the Police to recover the abducted girl and her child. Thus, apart from the bare allegation that the detenu will create a serious law and order situation if released from detention, the main considerations for the impugned order of detention were the apprehension that the dentu may resist with full force the efforts of the Police to recover the abducted girl and her child, and that the order of detention of the District Magistrate, Dadu was likely to be quashed by the High Court in Petition No. 203 of 1972. For reasons which we will discuss hereinafter these con siderations are ex facie extraneous to the object of the West Pakistan Maintenance of Public Order Ordinance, 1960.

11. We now come to the question whether the material available before the Home Secretary was such upon which a reasonable person would have come to the conclusion that Mr. Abdul Harold Khan Jatoi should be detained without trial under the Ordinance. We may here note one contention of Mr. M. Enver, the learned counsel fear the petitioner, to the effect that, on the relevant date, that is, 29th May 1972, when the impugned order of detention was made, there was no material available with the Provincial Government, or even with the Home Secretary for consideration of the question whether Mr. Abdul Hamid Khan Jatoi should be ordered to be detained by the Provincial Govern ment under the Ordinance, as this material, according to indica tions available in the record of Petition No. 203 of 1972, had been handed over to the Attorney‑General of Pakistan for his opinion, but that the Attorney‑General was then out of Karachi. However, the Home Secretary has stated in his evidence that on 29th Play 1972, he had with him the letter of the District Magis trate of Dadu dated 29th May 1972. Exh. 6/1, with annexures thereto, Exh. 6/1/1 (which is a memorandum. from the Superin tendent of Police, Dadu to the District Magistrate of Dadu) and Exh. 6/I/2 (which is a letter from the Civil Judge and First Class Magistrate, Mehar, addressed to the District Magistrate of Dadu to the effect that Mr. Abdul Hamid Khan Jatoi had twice refused to accept the service of notice under section 174, Criminal Pro cedure Code). It is on the basis of this material alone, it may be presumed, that the order of detention was made. Before dealing with these documents, we may discuss the grounds of detention served on the detenu on 3rd Juno 1972. These grounds have been reproduced above in full. The first four grounds relate to the offences alleged to have been committed by the detenu under section 363/366, P. P. C. and under section 353/506, P. P. C. But, in both these cases, the detenu had been ordered to be released on bail, the orders of bail being Exh. 8 and Exh. 9 of cur record. The F. I. R. with regard to the first of these two cases is Exh. 6/2 and the F. I. R. with regard to the second case is Exh. 6/8, The Home Secretary admitted in the Court that he did not have before him these first information reports or the orders of bail made by the learned Sessions Judge of Larkana. On 29th May 1972, the Home Secretary did not even have the other material which is referred to in Exh. 6/1/1, the memorandum of the Superintendent of Police addressed to the District Magistrate of Dadu. Now, with regard to the first of these prosecutions, relating to the alleged abduction of Mst. Hidayat Khatoon and her minor child, the first information report was registered on 27‑2‑1972 and the accused mentioned therein were (1) Pario, (2) Ramzan, (3) Attan, (4) Hamzo and (5) Akram. Mr. Abdul Hamid Khan Jatoi'3 name does not figure in this first information report. His name came to figure in the case only when an application was made by the complainant, Lal, on 6‑3‑1972 that Mr. Abdul Hamid Khan latoi was responsible for the abduction and kidnapping of the girl and her minor child. It has further come in evidence before us that so far none of the five accused mentioned in the first information report has been arrested, and the girl and her minor child have not been recovered. Though it la claimed by the two prosecution witnesses examined by the police that Mst. Hidayat Khatoon had been divorced by her husband and had been permitted by the First Class Magistrate to remarry, the Investigation Officers did not oven take the trouble of examining the husband of rest. Hidayat Khatoon who is alleged to have given this divorce, nor even to obtain the order of the Magis trate by which Mst. Hidayat Khatoon was permitted to remarry. This question was specifically put to Mr. Abdur Razzaq Memon, the Investigating Officer, and his only reply was that the complai nant, Lal, father of Mst. Hidayat Khatoorl, did not produce this document. As regards the second prosecution, curious situa tion came before this Court. The case put forth before us by Mr. Abdur Razzaq Memon was that Mr. Abdul Hamid Khan Jatoi was arrested him on 17th May 1972. But this statement cannot be accepted, in view of this witness own writing, which is under his own signature, Exh. 7/1, which shows that Mr. Abdul Hamid Khan Jatoi was under arrest from 2‑00 p.m. of 16th May 1972. This fact has been dealt ;with elaborately by the learned Sessions Judge in his order of bail. Further, Mr. Abdur Razzaq Memon stated on oath in this Court that he was in Karachi from 13th May to 6th June 1972. We find is very difficult to reconcile this statement wit), Exh. 7/1 and his further statement that he placed Mr. Abdul Hamid Khan Jatoi under arrest at Bagrani Police Station ova 17th May 1972. How could all this be correct when the Investigating Officer, who arrested Mr. Jatoi, himself stated on oath that he was in Karachi from lath May to 6th June 1972. All these aspects of the case should have received the consideration of the detaining authority, and. since this was not done, we ace compelled to take the view that the detaining authority did not at all apply is mind to the question whether there was need to detain Mr. Abdul Hamid Khan Jatoi under the West Pakistan Maintenance of Public Order Ordinance, 1960.

12. The fifth ground of detention contains allegation that the detenu gave evidence as defence witness in the Military Court against and Mir Muhammad Jamali. This fact would hardly constitute e, relevant consideration for detaining a person under the Ordinance, This ground also contains a statement that in May 1970, Mr. Abdul Aziz Jaffer, Deputy Superinten dent of Police, Dadu, left a note, on the eve of his transfer, to the effect that the detenu interfered with police administration, that the detenu had a group of history‑shooters as his followers and that he used to get false complaints filed against the Police Officers who did not succumb to his illegal demands. No such complaint was placed before the Court. As regards the note of Mr. Abdul Aziz Jaffer, it is Exh. 6/9 and is dated 24‑5‑1970 and consists of three pages. A bare glance at this report would show that the second and third pages of this note have been typed on a different typewriter from the one used for the first page. The first page gives a brief resume of the political affiliations and the status of the detenu. It is only on the second and third pages, which would appear to have been typed much after the first page, that allegations are made against tae detenu. In view of the fact that the second and third pages prima facie appear to have been added to this note much after the first page was written, we consider that Mr. Abdul Aziz Jaffer's allegations do not justify detention without trial of Mr. Abdul Hamid Khan Jatoi.

13. The sixth ground of detention stags that the detenu was in the habit of making private "Faislas" to prevent the people from reporting their cases to the Police, and thereby he was impeding the process of law. No evidence of such private "Faislas" has been produced before the Court. Further, the question is whether is it at all an undesirable act to bring about settlement of disputes between citizens through amicable means without resorting to Courts ? Of course, the situation may have been different if the detenu was imposing his own decisions on parties in disputes by force, but no such allegation of use of force is contained in the grounds of detention. In our view, to bring about private settlements between parties in disputes through amicable means cannot be made a ground of detention under the Ordinance. Ground No. 7, in its opening part, is not relatable to the situation or events which prevailed or which had happened when the order of detention was passed, but contains allegations as to what the detenu and his relations intended to do after tine detenu's release from detention. There fore, as far as this material is concerned, it was not in existence at all at the time the order of detention was passed. Further, no particulars of these allegations were placed before the Court to enable the Court to come to the conclusion whether the allegations contained in the opening part of this ground have at all any rational probative value to justify the order of detention.

14. Sub‑grounds (i) to (iv) under ground No. 7 refer to the alleged interference on the detenu's part with police investigations. The case diaries of these cases were shown to the Court, and it was found that these allegations were made on loose leaves, and not in regular registers of the Police Station concerned. Further, it was not explained why appropriate action could not be taken against the detenu under the relevant provisions of the Penal Code for interference with police investigations. Ground No. 8 relates to the refusal on the detenu's part to take delivery of the summons issued by the Civil Judge and First Class Magistrate, Mehar on two occasions. Again, in our view, this ground is outside the purview of the Ordinance.

15. We may now revert to Exh. 6/1/1, the memorandum of the Superintendent of Police, Dadu to the District Magistrate, Dadu which is said to have been one of the enclosures to the letter of the District Magistrate, Dadu addressed to the Home Secretary (Exh. 6/1 dated 29th May 1972). This document refers to a note dated 1‑3‑1962, left by S. I. P. Aijaz Akhtar, who later retired as Deputy Superintendent of Police. The note is to the effect that one Wali Muhammad Jatoi was under arrest on a charge under section 332/333, P. P. C. and that, on refusal by the S. I. P. to release the accused, the detenu became annoyed. This note, even if relevant, is too remote In time to deserve serious consideration for the purpose of ordering preventive detention in May 1972. The memorandum of the Superintendent of Police also refers to notes made by S.

1. P. Fazal Hussain Shah on 9‑11‑1965 and 30‑4‑1967. The note dated 9‑11‑1965 Is to the effect that Mr. Abdul Hamid Khan Jatoi is a revengeful person and could get Government servants transferred if they did not comply with his directions. This note is not only remote in time but also very vague and indefinite. The note dated 30‑4‑1967 is to the effect that Mr. Abdul Hamid Khan Jatoi had given a bullock of his Hari, Hakeem Lashari, to one Omar Bughio in a private arbitration, in consequence of which Hakeem Lashari stole two bullocks of Mr. Abdul Hamid Khan Jatoi's "Kamdar", whereupon Mr. Jatoi lodged a complaint with the police. This particular note is in fact against Hakeem Lashari, who is described in the note as a history sheeter, and not against the present detenu. Then this memorandum contains references to the note of S. I. P. Muhammad Idrees made in 1957 in connection with police investigations of various cases. The events mentioned in these notes took place as long ago as in 1957, and, in our view, are too far back in time to justify the order of detention in the present case. The memorandum then refers to the statements made by various persons against the detenu to the effect that he is a cruel person and has created a reign of terror it his locality. But it is not stated whether these statements were given in the course of investigations of any cases or whether they were the result of opinion poll conducted by the local police administra tion. Further, the originals of these documents were not shown to the Court. Further, two of the opinions, that is, the opinions recorded on 1‑3‑1962 and 22‑10‑1971 by the police officers are contained in as register, which bears the title "Register No. 9 (Part IV) of Police Station, Mehar". No law was shown to us under which these opinions were recorded or this register is maintained. However, Mr. Usman Ghani Rashid, the learned Assistant Advocate‑General, referred to the Punjab Police Rules. But these Rules make provisions for maintenance of surveillance register and register of history sheeters. It is admitted that Register No. 9, shown to the Court, is neither the surveillance register nor the register of history‑sheeters. We have, therefore, not been satisfied with regard to the legal value of these opinions, of which, admittedly, the detenu had no notice. In our opinion, it would be unsafe to treat such opinions as the basis of orders of detention without trial.

16. The above review of the grounds of detention and the material on which the order of detention is based shows that the primary consideration, for which the order of detention was made, was to facilitate the Investigation of the offences with which the detenu was charged and the apprehension that the detenu, if he comes out of prison as a result of quashment of the order of detention in Petition No. 203 of 1972, would resist the efforts of the police in the recovery of Mst. Hidayat Khatoon and her minor child. This review further reveals that the material before the Home Secretary was of such nature that no reasonable person could have come to the conclusion that it was necessary to detain Mr. Abdul Hamid Khan Jatoi under the West Pakistan Maintenance of Public Order Ordinance, 1960. The main grounds relate to the charges of abduction and kidnapping and the attempt to hit the S. H. O. with the police station diary, for which the detenu is already facing prosecutions and in which he was ordered to be released on bail by the Sessions Judge of Larkana. Now, by bringing definite charges against the detenu under section 363/366, P. P. C. and section 353/566. P. P. C. and by subjecting the detenu to prosecution for these offences, the local administration made up their mind and their choice, that is, that the detenu should be prosecuted for the alleged offences. Having made the choice that a person should be prosecuted in Court for commission of an offence, it would ordinarily not be open to the authorities to also use this charge as a ground of preventive detention under the Ordinance. We are conscious of the view taken in a decision of the West Pakistan High Court, Mairaj Muhammad Khan v. Government of West Pakistan (P L D 1966 Kar. 282). But, in our view, this decision is distinguishable from the present case, in that Mr. Mairaj Muhammad Khan, the detenu in that case, was charged in four separate cases for organizing violent demonstra tion of students and for arson etc., and it was hell that there was reasonable apprehension that if Mr. Mairaj Muhammad Khan came out of the jail, lie would again organizes students demonstrations which would become violent in nature. Thus, there was likelihood in Mr. Moiraj Muhammad Khan's case that he would repeat the acts for which he was under prosecu tion, and that, even though he had been granted bail in those prosecutions, there was a reasonable apprehension that a law and order situation would be created if he came out of prison. But Mr. Mairaj Muhammad Khan's case cannot be equated with the case before us. Here, there is no allegation that the detenu organised violent demonstrations, for which he was sander prosecution in the ordinary Courts of law. The allegation against him is that he participated in the abduction and kidnapping of one Mst. Hidayat Khatoon and her minor child. Can it be said that, if released from prison, the detenu was likely to repeat this act of abduction and kidnapping ? Was there any reasonable apprehension that the detenu would abduct and kidnap other persons also on his release from prison? There is no allegation of this nature against the detenu, nor was such allegation likely to be made in this case, and therefore the rule laid down in Mr. Mairaj Muhammad Khan's case cannot be applied to justify the preventive detention of Mr. Abdul Hamid Khan Jatoi on grounds for which he is already facing prosecutions in the ordinary Courts of law and in which prosecutions he has obtained bail. We are supported in our view by the decision in Shahidul Haque v. Government of Fast Pakistan (1969 P Cr. L J 449), in which it was held that activities in relation to which separate prosecution proceedings had already started against the detenu could not betaken as reasonable basis for detention under rule 32 of the Defence of Pakistan Rules, 1965.

17. The foregoing discussion would show that the order of detention impugned in these proceedings does not satisfy any of the constitutional or legal requirements laid down by their Lordships of the Supreme Court in the four judgments referred to above and the other tests generally required to be satisfied by the superior Courts to justify an order of detention without trial. in the case before us, the appropriate authority, that is, the Provincial Government, cannot be said to have passed the order of detention. As regards `satisfaction', it has been noted above that the Provincial Government was in fact not at all satisfied with regard to the necessity of making the impugned order. Further, the grounds of detention are either irrelevant to the purpose of the West Pakistan Maintenance of Public Order Ordinance, 1960, or are vague and indefinite, and, in the later case, it can legitimately be contended that the detenu has been deprived of his statutory right to make representation to the Provincial Government or even to the Advisory Board by reason of the vagueness and indefinite nature of certain grounds of detention. Thus, the material before the Home Secretary was such that it could not be said to have satisfied the objective standards of satisfaction for detaining the present detenu under the Ordinance. On these grounds, in our view, the petition should be accepted.

18. Before we conclude we must refer to two further points agitated before us. At the end of the examination of the Home Secretary and Mr. Abdur Razaq Memon, S. H. O. of the Bagrani Police Station, the learned Advocate‑General submitted written objections to the examination of these two witnesses, which objections are to this effect : "(1) It is not open to the Court to probe into the detail scrutiny with a view to find truthfulness or otherwise of the allegations of the grounds of detention. (2) The questions asked by the Hon'ble Court have materially prejudiced the criminal cases which are sub judice before the Court and where prosecution has not opened its case and, therefore, most of the questions asked by the Hon'ble Court as well as allowed by the Hon'ble Court to be asked by the petitioner's counsel are likely to materially prejudice the case of the prosecution. (3) The questions which have been asked from the witnesses on the basis of sections 161 and 164 statements materially affect the prosecution case in those criminal cases and that in spite of any observation by the Court that these questions should not be taken into consideration, the questions are bound to affect the proceedings in these criminal cases." As regards the first objection, eve have only to say that the learned Advocate‑General did not bring to our notice any decision laying down the rule that the superior Courts are precluded from enquiring into the existence or non‑existence of any of the grounds of detention. As noted in our order of 17‑6‑1972, Mr. Usman Ghani Rashid had stated that he would place the relevant case‑law before the Court, but it has not been done. In our opinion, the superior Courts are not precluded from enquiring whether any grounds of detention at all existed or not. In the present case, however, the examination of the two witnesses, namely, the Home Secretary and the S. H. O. of the Bagrani Police Station, was mainly directed on the questions whether the order of detention was at all passed by the Provincial Government, whether the Provincial Government was in fact satisfied as to the necessity for making the impugned order of detention and whether the material before the Home Secretary was such as to justify this order, and all these are questions which are relevant for the adjudication of a habeas corpus petition. As regards the other two objections, this Court has in no way pre judged the pending prosecution against the detenu. The two witnesses were allowed to be questioned on these prosecutions only for the purpose of ascertaining whether the detaining authority applied its mind to those aspects of the prosecutions which have been referred to in the orders of bail of the learned Sessions Judge of Larkana. We have not made any comments on the truthfulness or otherwise of the charges on which the detenu is facing prosecutions. But what we have noted is that certain aspects of these prosecutions were not taken into consideration by the Home Secretary, and that if these aspects had attracted the attention of the Home Secretary, then it is quite possible that the impugned order of detention may not have been passed at all. The second point which we have to take note of is the question of allegation of malice. The learned Advocate‑General placed on record a comprehensive note explaining the legal position with regard to allegation of mala fides In detention cases. But it is not necessary to refer to these legal arguments for the reason which we will discuss here. The petitioner before us is Mr. Liaquat Jatoi, the son of the detenu. His affidavit in support of the petition contains allegations of personal malice against certain political leaders. But these allegations could have been made only on the basis of the information which Mr. Liaquat Jatoi must have received from his father, the present detenu. But the detenu contended himself with sending a statement in writing, dated 7th June 1972, from the Central Prison, Karachi, which statement has been referred to above. Though he was physically present in the Court throughout the proceedings before us, the detenu did riot support the allegations contained in this statement by his affidavit, nor was any attempt made to examine the detenu on; oath in the Court in support of these allegations. The question is whether, in cases where the detenu is physically present in Court, allegations of personal malice should be accepted, even though these allegations are not supported by the rule of best evidence, which, in the instant case, would be the evidence on oath of the detenu himself. In our opinion, if it is physically possible for the detenu to substantiate his allegations of personal malice by his own statement on oath, then he should do so. Since this has not been done In the present case, it is not necessary to discuss this aspect of the case which, in our opinion has not been substantiated in view of what we have stated above. We should also refer to the fact that no question, having any material bearing on the allegations of malice, was put to Mr. Abdur Razak Memon, S. H. O. of the Bagrani Police Station. In these allegations, reference has been made to the Superintendent of Police of Larkana, who was summoned to this Court on the petitioners' application, but was not at all examined. As regards the evidence of the Home Secretary, in one material respect the allegation of personal malice has been shown to be non‑existent, that is, that part of the allegation which referred to the Minister of the Provincial Government who held the portfolio of Home Affairs at the relevant time. The Home Secretary made a categorical statement that the Minister was not at all consulted for the purpose of making the order of detention. As a matter of fact, it is the detenu's own case, as is evident from the trend of the examination of the witnesses by Mr. M. Enver and his arguments addressed to the Court, that the impugned order is void, as it was not made either with the advice of the Provincial Council of Ministers, or that of the appropriate Minister, under Article 104(4) of the Interim Constitution. This plea would be inconsistent with that part of the allegation of malice which refers to the Minister concerned. Thus, we will rest the judgment on the legal aspects of the case which have been fully discussed above by us. By a short order, dated 19th June 1972, the detenu had been set at liberty and this judgment contains the detailed reasons for that short order. K. B. A. Petition accepted.