P (PLP)

SAKER, J. C.‑

This is an application under section 491, Criminal Procedure Code, by Fazal Ahmad who is now detained in the jail in consequence of an order passed by the Chief Com missioner in Baluchistan on 31st January 1950 under the provisions of section 3 (5) of the Baluchistan Public Safety Regulation, 19447 as amended by Regulation No. 1 of 1949 directing the detention of the petitioner for a further period of six months in continuation of au order by the District Magistrate, Quetta‑Pishin detaining the petitioner for one month under the provisions of the same Regulation. The petitioner prays that he be set at liberty on the ground that his detention is illegal or that he be brought before this Court and dealt with according to law so that he may have an opportunity of proving his innocence. In the first place, it is necessary for me to refer to my order of 24th April 1950 regarding the privilege claimed by the District Magistrate, Quetta‑Pishin, who was a witness in this Court, but who claimed privilege under the provisions of sections 123 and 124 of the Evidence Act not to disclose the information on which be had acted or the grounds on which he had ordered the detention of the petitioner. My order in this connection ruled that the privilege claimed was proper and that it was not for a Court of law to demand the disclosure of information, evidence or documents if this privilege was claimed as being against the public interest disclose either the contents of such evidence or the source from which information was obtained. It was, however, considered necessary to examine the District Magistrate in regard to his action in detaining the petitioner in the first place which was subsequently followed, as stated above, by an order of the Chief Commissioner further detaining the petitioner. The evidence of the District Magistrate is therefore on record and discloses that the District Magistrate, in ordering the detention of the petitioner under the Regulation applied his mind to the facts or allegations before him and, having personally satisfied himself that his deten tion was necessary, issued the detaining order. As a result of my ruling therefore, it became clear. that the entire onus of disproving or discrediting the detention order fell upon the petitioner and in' the light of my ruling admitting the privilege the proceedings continued in this Court with, as admitted by the learned counsel for the petitioner, the onus resting on the petitioner himself to show that he had been wrongfully detained. It therefore becomes clear that this case before me is of an unusual character to the extent that not only does the petitioner profess pot to, know the reasons why he bas been detained but, having admitted privilege, the Court is itself unaware of the grounds on which the petitioner has been detained. The arguments in favour of the petitioner, who challenged the validity of the detaining order, are mainly based on legal grounds and I propose to deal with them as they have been presented to me by learned counsel, The first ground ‑argued before me was that powers of arrest and detention conferred by the Governor‑General on the, Chief Commissioner in Baluchistan and on a District Magistrate are emergency powers. Learned counsel for the petitioner has emphasized that this is made clear by the wording appearing at the head of Chapter II of the Regulation in which the words "Emergency Powers" are used. It is, however, clear from the Regulation that with. the exception of the definition appearing in paragraph 2 (b) regarding dangerously disturbed areas which may be declared as such by the Chief Commissioner, the Regulation is silent on the question of a declaration of an emergency. Chapter I of the Regulation makes no mention of either the necessity or the desirability of declaring a state of emergency before the powers held by the Chief Commissioner or the District Magistrates as defined later in the Regulation can be used. Learned counsel on this point has further argued that it is contrary to the provisions of all such Regulations, which he claims should deal only with states of emergency, that Regulations should remain in force for an indefinite period. He has draw n my attention to the fact that Regulations of a similar nature in other Provinces, as also the late Defence of India Rules and Act, were promulgated for a specified period, In the case of the Defence of India Rules this period was for the duration of the war and for a period of six months after' the cessation of hostilities. However that may be, this Court is solely concerned with the Regulation as in force before it and it is not incumbent upon this Court to question the character of the Regulation on these grounds. In fact learned counsel for the petitioner has stated that he does not call to question the legality of the Regulation itself, but that his arguments in favour of the petitioner are based on irregularities appearing in the orders of detention issued under the Regulation. As a rule a Regulation is not issued for a specific period but such rule is normally 'applicable to ordinances.' I interpret the orders "Emergency Powers" appearing under Chapter II to mean not that these powers could not only be used in a state of emergency but that they are powers which are distinguishable from powers under other enactments and are intended to meet circumstances specially catered for by the. Baluchistan Public Safety Regulation. The second ground for appeal is that the orders themselves are ultra sires and defective on the face of them. Learned counsel for the petitioner has drawn my attention to two rulings, namely A I R 1949 Bom. p. 75 and A.I.R 1945; Nag. p.29. In the Bombay case it was held that orders of detention must be of an absolutely accurate nature and that inaccuracy would make such an order invalid. I observe that, in the Bombay case a certain person was, detained on grounds alleging that be was likely to instigate a strike among, the workers of a company described in the detaining order as Tata Air India It was subsequently found that no such company as. Twin Air. India existed and View of this fact the learned judges rightly, in my opinion, decided that the petitioner before them had been illegally detained on the grounds that he was accused of attempting to instigate a strike among workers of a company whirl did not in fact exist. This was clearly a material ert‑,or and showed want of due care and caution on the part of the detaining authority. In the case before me; however, learned counsel for the petitioner has argued that there are two orders of the Chief Commissioner on the file, one of them substituting the other. It is clear from these two orders that they are both dated the 31st January 1950 while the endorsement on the second order, which is in substitution of the first order, is dated 18th February 1950. Learned counsel therefore protests that the period of petitioner's detention was extended by the Chief Commissioner under his second order on a date which was several days after the first order by the District Magistrate detain ing him for one month had expired. He states that this is contrary to the provisions of Regulation I of 1949 which amends the Regulation No. I of 1947 (vide the second proviso to pare 2 of the Amend ing Regulation) which states that an extending order shall be made before the beginning of the extention to which it relates. It is relevant, however, to note that the date of the order itself is the 31st January 1950, i e., the same day on which the first order was also written. Learned counsel, however, claims that the validity of the order is the date on which the order itself was conveyed to the Superintendent of the jail, namely the 18th February 1950. This Court must only be concerned with the actual date of the order and not any endorsement conveying the gist or the order or a copy of it to any subordinate executive officer. It therefore follows that as there is no evidence to the contrary it must be presumed that the order was actually passed by the Chief Commissioner on the date appearing in that order, namely the 31st January 1950. It is also common knowledge that muder Government practice endorsements conveying orders do not necessarily follow immediately the passing of such orders. In this case before me the Secretary to the Chief Commissioner conveyed this order in writing to the Jail Superintendent and to other officers. The fact that he did so some 18 days later appears me to be immaterial. Even if it be assumed for the sake of argument that the second order was not passed on the same date, it being only a substituting order precisely on the same lines cannot be treated as a different order‑‑it only corrects the date of extension of the period of detention. I hold therefore that no irregularity was committed. The order of the Chief Commissioner therefore is legally correct as required by the Amending Regulation referred to above. Learned counsel has further argued that there is an irregularity in the original detaining order of the District Magistrate in which the District Magistrate has described the petitioner as "M. Fazal Ahmad son of Haji Ali Ahmad of Kandhar now in Quetta". Learned counsel contends that the petitioner himself was born in Quetta and that his domicile, as assumed by the wording of the District Magistrate's order, is incorrectly stated. He claims that the petitioner is not of Khandhar although admitting that his father still resides there. He therefore contends that the words used by the District Magistrate' in his order are incorrect and are therefore a gross irregularity which vitiates the order itself. If therefore I were to hold that the order of the District Magistrate were illegal it follows that the order directing the continued detention of then petitioner by the Chief Commissioner would also be invalid. In this connection, the District Magistrate himself has beers examined and his evidence is on record. ;'e states in his evidence` that by the use of these words he meant :hat the place of origin of the petitioner as well as of his ancestors was Kandhar and that he worded his orders in this manner in order to differentiate between any other Fazal Ahmad who might be living in Quetta or any other sons of Haji Ali Ahmad. It is quite clear that the order of detention under Regulations of this nature must be accurate so that there can be no question of doubt. The executive when issuing an order detaining a person must make no mistake as to the identity of the person who is intended to be detained. It is a fact, as admitted by the learned counsel for the petitioner, that the father of the petitioner is still residing in Kandhar. It follows, therefore, that the place of origin of the ancestors of the petitioner, wherever he might have been born, was Kandhar and as the name Fazal Ahmad is not uncommon there is some force in the argument of the District Magistrate that he wished to make his order absolutely clear so that the correct Fazal Ahmad was detained and not arty other person. I do not therefore) feel disposed to think that any material irregularity has been committed by the District Magistrate in his order when giving the description of be petitioner as he did. I therefore find no grounds for setting aside the order of the District Magistrate as it contains no material irregularity and can in no way be described as ultra vires. An order as such must clearly be a direction to detain a specific person and it has never been argued before that the petitioner is the wrong person and that he has been detained on some misapprehension. The third ground put forward by the learned counsel for the petitioner is, that powers under section 3 of the Public Safety Regulation have beets abused and that fraud has been committed on that section. Learned counsel maintains that the petitioner has been arrested for collateral purposes and not for purposes contemplated by the Regulation. I first observe that this Court does not know the grounds on which the petitioner has been detained and the latter also professes that they were not disclosed to him. It is therefore an extremely difficult matter for the petitioner himself to argue that his detention has been for reasons other than those contemplated under the Regulations. I do not, however, propose to ignore this argument on behalf of the petitioner as it has considerable bearing on the case ‑before me It is obvious that detention under section 3 of the Regulation is intended as a preventive measure and that the main ingredient of this section is that the detaining authority must satisfy himself before detaining any person under the provisions of this section. On examining the District Magistrate, who claimed privilege against disclosure of the grounds for detention, I was satisfied that be had taken meticulous care in sifting the information laid before him and has fully satisfied himself personally that the detention of the petitioner was necessary to prevent form acting in any manner prejudicial to the public safety. On the question of satisfaction it bas been held by the learned judges of the Lahore High Court in P I. D .1949, Lah. p. 55 that a Court can only go into the question of the factum and not of the quantum of satisfaction. If the factum is proved the Court shall not, interfere simply because the grounds upon which the arresting authority was satisfied were not reasonable or sufficient in its view, The satisfaction required is of the officer making or directing the arrest or detention and not of the Court. With this view I am disposed to agree. It is thus clear that the sufficiency or insufficiency of the evidence on the basis of which a person is detained is matter for the authority ordering deten tion under section 3 of the Baluchistan Public Safety Regulation to decide. It is not a matter which can be scrutinized or inquired into by a Court of Law. All that the Court has to do is to satisfy itself on the question that the order complained of was passed after full care and. caution and in conformity with the powers conferred by the Regulation. I must therefore make the presumption, after having heard the evidence of the District Magistrate on this point, that the detenu has been detained by an order of the District Magistrate after he has personally satisfied himself that the detention was necessary. The same argument must also apply to the order issued by the Chief Commissioner in which he directs the continued detention of the petitioner. The detaining authority in the first place was the District Magistrate and in the absence of any evidence to the contrary I must accept the evidence of the District Magistrate to the effect that he personally and fully satisfied himself before ordering the detention of the petitioner. I will now go into other questions regarding detention which have been raised by learned counsel for the petitioner that be has been detained for collateral reasons. Oral evidence on behalf of the petitioner has been led in this Court to point out that the petitioner belonged to one faction of' the Baluchistan' Muslim Leaguer It has been argued fore me that owing to two factions in the Muslim League of Baluchistan the petitioner belonging to majority party‑‑the minority party whole it is alleged, are able to wield great power have by press propaganda and by influencing the officers concerned been. able to arrange for the detention of the petitioner. I cannot tot a moment accept this argument for it is obvious that if, as alleged, there are two parties in the Muslim League it must be assumed that the majority party would wield greater power and that the minority party are unlikely to have the same degree of power or influence. It is equally obvious that I can never accept the argument that this small minority party could influence officers to the effect of ordering the detention of the petitioner. However, documentary evidence in the form of newspaper articles have been placed on record in this Court and they indicate a strong attack against the petitioner. It has therefore been further alleged that these attacks were engineered by certain influential persons in the minority party. Two such articles making grave allegations against the petitioner were published before the order of his detention and it has been argued before the that the detaining authority was therefore influenced by these articles to the extent of ordering his detention, I cannot, however, accept this argument in view of tie evidence given by the District Magistrate. It is clear that while not willing to disclose the evidence on which the petitioner has been detained the District Magistrate states that he had evidence. It would be incorrect therefore to assume that the personal satisfaction of the District Magistrate when deciding to detain the petitioner was based on newspaper articles unsupported by other evidence whether documentary or oral. A further argument on behalf of the petitioner is to the effect that a fraud has been committed on section 3 of the Baluchistan Public Safety Regulation because the petitioner himself was detained under this preventive section with the object of carrying out further inquiries into his conduct. It is alleged that at the time the order of detention was issued another order was issued to search his house and that while he was detained in jail certain C. I'. D. Police officers. visited him and questioned him about his passport and other matters. Learned counsel for the petitioner therefore draws the inference that the object of detaining the petitioner was merely to permit of the Police to carry out further investigations against him while he was in jail. He relies in his argument mainly on A I R 1945 Nag. (17) in which it was bold that the provisions of the Defence of India Rules, which are, very similar to the present Regulation applicable to Baluchistan, relate to detention and to nothing else, In their order in that case the learned Judges of the Nagpur High Court held that if either the Police or the Provincial Government desire an investigation into an offence, whether' under the Penal Code or under the Defence of India Rules, then they are bound to conduct their inquiry in accordance with the provisions of Criminal Procedure Code. They cannot call, in aid their powers of detention and In the guise of exercising those powers conduct a secret investigation` Into a crime. While accepting this view as a correct Inter pretation of law, I cannot, in the case before me, And any evidence to Indicate that the intentions of the detaining authority, worm mala fide (b) that they intended to detain the petitioner in order to cal try out investigations against him after his detention. I have little evidence In this connection on which to base an opinion except once more rely on the evidence of the District Magistrate. He states that there, were sufficient grounds for ordering the detention of the petitioner and that having satisfied himself personally on this point he ordered his detention. As this evidence stands un rebutted it must be accepted as being correct and I must therefore bold that the order of detention was based on certain evidence and that it was not intended merely to detain the petitioner for the purposes carrying out investigation. As for the powers of search, it would be customary in the case of detaining a person under the pro visions of such regulations to direct a search of his house in order to see whether ‑he was in possession of any incriminating document or article, Learned counsel, however, holds that all the preliminary investigations should have been carried out before the petitioner was detained and that it should be inferred from the interrogation of the petitioner in Jail after his deten tion that the detaining authority was not fully satisfied as to grounds for detaining him but wished to make the case all the stronger. I cannot in this order attempt to make surmises about the grounds for detaining the petitioner as they are not within my knowledge, but the wording of the detaining 6rder to the effect that the petitioner has been detained for the pur poses of public security would appear to indicate that the allegations 'against him are of a grave nature. It would there. fore not be illegal for the police, nor only to carry out search of his house at the time or shortly after he was detained but also, if necessary, to question him regarding his passport while in jail as .this had not been found when his house was searched. The petitioner himself in his statement does not attempt to claim that he was subjected to a rigorous searching examination after his detention but that the police was mainly concerned with his passport. It is common knowledge that a passport, though issued to private individual, is to some extent a public document. Failure, therefore, to find a passport of the petitioner would require investigation into that simple matter. Incorrect inferences cannot therefore be drawn from the questioning of the petitioner to the effect that the police were carrying out investigations against him and that he had been detained for that purpose. The final grounds on which the learned counsel has argued in favour of the petitioner are as to the alleged facts of the case. This, as I have already stated, is an extremely difficult matter for the grounds are neither known to this Court nor are they allegedly known to the petitioner himself, It has been held by the learned judges of the Nagpur High Court, A I R 1945, Nag, p. 8 that as the responsibility of the High Court is great it has the right to accept that the Crown would place all facts before it frankly, or at any rate so much of the facts .as will, without disclosing secret information, enable the Court to reach a conclusion on the issues raised. The Provincial Government has undoubtedly a right to withhold its sources of information, as also the evidence on which the conclusion was reached.. But it must state frankly matter on which there can be no question of secrecy, particularly when they have already been made public and have even been published in the papers". With this view I am in entire agreement, but the circumstances of this case differ as the District Magistrate: was asked to disclose the grounds for detaining the petitioner, but he claimed privilege and as already ruled by this Court the plea of the District Magistrate was accepted. The various newspaper articles on which the learned counsel for the petitioner relies make gross allegations against the petitioner. They relate mainly to the facts that he was an Afghan spy and so on but I cannot assume without knowledge of the actual facts that these newspaper articles correctly disclose the grounds. I am, however, prepared to examine carefully the arguments adduced by learned counsel in which he maintains, on the basis of these newspaper articles, that the petitioner was detained because he was a spy of the Afghan Government and that he was carrying on propaganda for that Government and that his activities were nefarious and prejudicial to‑ the interests of the State and against the public peace and order. Learned counsel maintains that even if secret information is not disclosed, at least the grounds on which the petitioner has beers detained should have been disclosed. On this point I am disposed to agree, for grounds for detention and the allegations against the petitioner may be of a secret nature which it would not, in the public interest, be advisable to disclose I have examined the oral evidence before me on behalf of the petitioner together with his own statement in which he claims that he 'is a loyal subject of Pakistan and that ,his activities have been directed to the public good in the various matters relating to Pakistan. I am not necessarily satisfied either with the statement of the petitioner or with the evidence adduced on his behalf in regard to his loyalty to the State. While I do not know the grounds of his detention it is common knowledge that certain persons who profess to be loyal to their State and who act in an outward manner of loyalty may not be so; they may indeed be the enemies of the State to which they profess their loyalty The oral evidence‑‑though I have no reason to doubt the honesty of the witnesses‑is no positive proof of the real loyalty or otherwise of the argument, the petitioner were not a loyal subject but was in fact in the pay of some foreign Government he would very naturally govern his behaviour in such a manner as would not cast any aspersions upon himself or lead him to be suspected. His outward profession of loyalty might even be the greater in order to hide such nefarious activities as he was indulging in. Learned counsel has drawn my attention to the provisions of section 114 of the Evidence Act (Illustration `D'). He claims that in view of the evidence in favour of the petitioner, coupled with his own statement, the presumption must go in favour of the petitioner to the effect that lie is a loyal subject and his activities are not prejudicial to the inier6sts of the State. I cannot, however, accept this view. While on the one hand presumption might be raised in favour of the petitioner, it has obviously been rebutted by the actions and the evidence of the original detaining authority where not only does he state the necessity for detaining the petitioner but also passes the necessary detaining order against him. I find therefore that the oral evidence in favour of‑the petitioner must be weighed against the actions of the executive in directing him to be detained. I cannot therefore accept the argument that presumption should be made in favour of the petitioner to the effect that he is a loyal unless proved disloyal against the fact that the executive thought fit to detain him for activities pre judicial to the public safety. It remains therefore for me to sum up my conclusions. In cases of this nature where persons are detained under what I may describe as Security or Emergency Regulations, it has" been repeatedly laid down even in the House of Lords in "the leading cases Liversidge v. Sir John Anderson and Green v. Secretary of State for Home Affairs A I R Nag. 1949, pp. 50. 53 that the "omnia acta rite ease praesumuntur" applies to such order and that if the order was either proved or admitted, it must be taken, prima facie, that is, until the contrary is proved‑have been properly made. The principle laid down in these important cases which came before the highest judicial Tribunal of that time should, I feel, be followed with advantage by the Courts of Pakistan while dealing with applications of this nature. Briefly therefore in the case before me a detaining order was issued and has been proved the evidence of the officer who originally issued the first order has also been recorded. I must therefore make The first plea is obviously not entertainable on .the face of it The Judicial Commissioner's Court is itself the highest Court of appeal or, revision for the Province of. Baluchistan within the meaning of section 4 (1) W of the Criminal Procedure Code and is not under the appellate jurisdiction ,of any, other High .Court'. I have pronounced my final order and the matter ends there so far as this Province is concerned. The alternative prayer apparently comes within the purview of section 205 of the Government of India Act; 1935 as adapted by the Pakistan (Provisional Constitution) 'Order, 1947:‑ The Baluchistan Public Safety Regulation of 1947 was promulgated under section 95 of the aforesaid Act and the order which I have just announced Certainly raises substantial questions of interpreta tion of the Constitution Act. I therefore regard this case as a At one for appeal to the Federal Court. The only difficulty which may bar the hearing of an approach by the Federal Court is that the Court of. the the Judicial Commissioner in Baluchistan is not included in the list. of Courts shown in section 219 of the Constitution' Act‑ which alone constitute High Courts for the purposes of section

205. According ' to the definition, contained in Rule 2 (1) of the Federal Court Rules. 1950 a 'High Court' means a High Court within the meaning of section 219 of the Government of India Act, 1935. In the unusual circumstances of this case I am, however, prepared to grant a certificate of appeal subject to the proviso that it ilk legally acceptable to the learned judges of the Federal Court. A. H. Application dismissed.