P L D 1956 (W (PLP)

CONSTANTINE, J.‑

The petitioner, was first externed by the Chief Commissioner of Karachi by Order dated 28th May 1955, for one year. On 23rd May 1956, the Chief Commissioner passed another order externing the petitioner under section 3 (1) (c) of the Security of Pakistan Act (XXXV of 1952) for three months and it is this latter order against which the writ of certiorari has been sought. The petitioner founds his case upon Articles 4 and 11 of the Constitution. These Articles, so far as relevant, are as follows :‑ "4. (1) Any existing law, or any custom or usage having the force of law in so far as it is inconsistent with the provisions of this Part, shall, to the extent of such incon sistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law in contravention of this clause shall, to the extent of such contravention, be void". "

11. Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right (a) to move freely throughout Pakistan and to reside and settled in any part thereof". His case is that no grounds upon which the impugned order or the previous order was passed have been supplied to him, and he has had no opportunity of meeting the case which has satisfied the Chief Commissioner and that since the Security Act has not provided such an opportunity the restriction which it imposes upon the right of residence in any part of Pakistan is unreasonable. In Khare v. State of Delhi (A I R 1950 S C 21.) the learned Chief Justice, delivering the majority opinion (and upon this point the minority did not disagree) stated that in determining whether a law has imposed unreasonable restrictions, one has to consider not only the substantive, but also the procedural provisions of that law. The learned Chief justice then dealt with the argument that in the enactment under which the petitioner had been externed there was no provision for furnishing the grounds of externment to the citizen. He repelled this argument for the reason that the enactment did in fact make provision for the furnishing of grounds, and it is to be inferred that the principle of the argument had been accepted and only its application rejected. With respect, we agree. It is a principle of natural justice that a man shall not be condemned unheard. It is true that it is not unreasonable that this principle of natural justice should yield to the emergencies of the case; an ex‑parse order to come into immediate effect may well be required in order to maintain public order. But we see no reason why the externee should not be furnished with grounds so as to have an opportunity of representation after the expiry of a reasonable period. The learned Attorney General argued that because an express provision for the furnishing of grounds to detenus was made in Articles 7 (5) we should infer that the‑ Constituent Assembly did not think such a safeguard was necessary for externees. We do not think that this argument should prevail, for it is an equally attractive argument that the Constituent Assembly considered preventive detention such a serious inroad upon the liberty of a citizen that it laid down express and particular conditions, while in the case of less serious inroads on the liberty of a citizen, such as externment (as also in the case of restrictions on the freedom of holding property) it left the judiciary to determine whether the restrictions were reasonable or not. The learned Attorney General, as we understood him, contended that if the Legislature passed an Act, then we should presume that that Act was reasonable in its restrictions. The President by virtue of Article 224 had adapted the Security Act so as to bring its provisions into accord with Article 7 regarding preventive detention, but had made no change in the Act regarding externment. While it is true that this Court will not lightly consider that any authority entrusted by the Constituent Assembly with legislative powers has disregarded or overlooked the provisions of the Constitution, yet the Constitution itself does contemplate in Article 4 (2) that an enactment may abridge a fundamental right, and it is for the Courts to determine whether or not a restriction is or is not reasonable. It is, therefore, our opinion that in so far as the Security Act omits to provide for the furnishing of grounds to an, externee and the affording to him of an opportunity 01,4 making representation, this Act imposes an un‑reasonable restriction and to this extent is inconsistent with Article 11 and to this extent is void under Article 4 of the Constitution. We, therefore, quash the order of the Chief Commis sioner No. F. 2/19/56‑PS, dated 23rd May 1956. We certify under section 157 that this case involves substantial question of law as to the interpretation of the Constitution. A. H. Order quashed