P L D 1953 Peshawar 72 (PLP)

MUHAMMAD SHAFI, J.‑ Arbab Abdul Ghafoor Khan, son of Arbab Jumma Khan, of Tehkal Bala, Peshawar District, and Abdul Wali Khan. son of a well‑known Congress leader of pre‑partitioned India, Abdul Ghaffar Khan, who was best known then as the Frontier Gandhi, or Bacha Khan, resident of Utmanzai,. have been detained by the North‑West Frontier Province Government in the custody of Superintendent, Central Prison, Dera Ismail Khan, "with a view to preventing them from acting in a manner prejudicial to the public safety and maintenance of public order; under the orders purporting to have been passed undersection 3 of the North‑West Frontier Province Public Safety Act, 1948. On the 9th of December 1952, they jointly addressed an application to this Court, complaining that on the 8th of June 1952, they bad received an intimation that they were detained for a period of six months, which period expired on the 7th of December 1952, but since then they had neither been released from custody, nor had they received any information that their detention had further been extended. They further alleged in the application that Abdul Wali Khan was in custody continually from the 15th of June 1948, and Arbab Abdul Ghafoor Khan from the 11th of June 1949, and that this was against a certain judgment delivered by Their Lordships of the Lahore High Court, which held that a detenu could not be detained in jail continually for more than eighteen months. This application does not say so in so many words, yet the language used shows beyond any doubt that it is in the nature of a petition for the issue of a writ of habeas corpus under section 491, Cr. P. C. It was handed over to the Superintendent, Central Prison, Dera Ismail Khan, for transmission to this Court, Irrespective of what the jail rules are, it was the duty of the Superintendent, Central Prison, Dera Ismail Khan, to promptly forward the application on to this Court: He on the other hand fell a pray to red‑tapism, and sent the application with his forwarding letter No. 6691, dated Dera Ismail Khan, the 12th December 1952, to the Inspector‑General of Prisons, for onward transmission to this Court. The latter authority, as the seal of his office on the application shows, received it on the 16th December 1952, and forwarded it on, not to this Court as he should have done, but, for the reasons unknown to us, to the Chief Secretary to Government, North‑West Frontier Province, who got it on the 19th of December 1952. What happened to the application after that until it fell into the hands of the Advocate‑General, N.‑W. F. Province, who with his forwarding memorandum No. 931 /LD, dated : Peshawar the 18th of February 1953, sent it on to this Court, is a mystery only known to the Chief Secretary, the Advocate‑General or their staff. The learned Public Prosecutor, who represented the N.‑W. F. P. Government in this Court, expressed his complete inability to explain the inordinate delay in transmitting this application to this Court. It has been pointed out once before, and we take this opportunity to point it out again, that no power on earth has a right to withhold matter or delay petitions meant for this Court. The Officers concerned in not immediately transmitting the application to this Court have failed to realize their responsibility the matter, and do not seem to be conscious of the fact that their conduct has tended to interfere with the due course of justice, and constitute gross contempt of Court. We wish to make it clear once for all, that in future whoever, however great he may be, is found guilty of the above laches, shall do so at his own peril, and this Court under no circumstance shall tolerate any disrespect to it from whatever quarter it came. It is determined to maintain its dignity and authority, on which alone, in our opinion the ordered progress of the society and the State depends, at all costs and by all means placed by law at its disposal. It is in fact the duty of all including the Executive to maintain the dignity of the Court and see that its prestige doe3 not suffer in any way in the eyes of the public. The learned counsel for the petitioners has tried to take advantage of it by arguing that it shows the mala fides of the Government in respect of the detention of the two petitioners. We are, however, not inclined to impute bad faith to the Provincial Government merely because certain officials have not been prompt enough in doing their duty, or were guilty of certain irregularities or even illegalities. Before the above application reached this Court, Arbab Muhammad Hasham Khan, a younger brother of Arbab Abdul Ghafoor Khan, on 10th December 1952, presented an application directly to this Court, giving greater detail, for claiming that the detention of Arbab Abdul Ghafoor Khan in public custody was illegal, a fraud on the Statute, and malicious. This order will deal with both the applications as well as the detention of both the detenus mentioned above, because common questions of law and facts arise in the case. There are, however, a fact or two peculiar to the detention of Arbab Abdul Ghafoor Khan, which are dealt with first. This detenu, on the 11th of June, 1949 was required by Abdur Rauf Khan, exercising the power of a Deputy Commissioner, under the Frontier Crimes Regulation III of 1901, within. Bannu District, to execute a bond under section 40 of the Regulation in Rs. 20,000, with ten sureties promising to keep the peace for a period of three years. The detenu preferred to undergo imprisonment for the said period, the alternative provided is the order itself, rather than execute the required bond. He was confined to serve the imprisonment in Machh Jail in Baluchistan. It is contended that this Court should go behind this order, and scrutinize it in order to discover the mala fides of the Provincial Government in detaining Arbab Abdul Ghafoor Khan under the safety legislation of the Province. This order is attacked in the application made by Arbab Muhammad Hasham Khan in the following language: ‑‑ "On 11th June 1949, the aforesaid Arbab Abdul Ghafoor Khan was sentenced to three years' rigorous imprisonment under section 40, F. C. R. by Mr. Abdur Rauf Khan Qureshi. A. D. M., Bannu, who had always been a henchman of Hon'ble Abdul Qayum Khan, and owed his appointment to Hon'ble Abdul Quyum Khan. Copy of this order is enclosed herewith." The use of the word henchman is highly irresponsible, rude and certainly not expected of cultured people. An application made to a High Court should always be couched in a neat, respective and polite language. A Court of law, much less the Highest Court of law in a certain Province, is not to be used as apolitical arena, where political battles are fought and the opponents abused. So far as the merits of the objection are concerned, under section 49, F. C. R.. the only authority which can go behind an order passed under section 40, F. C. R., is the Commissioner, who has got the powers to call for the records and revise any order made thereunder. These powers can be exercised by the Commissioner suo mote, or on an application made in that behalf by the aggrieved party. Although this order was made on the 11th of June 1949, yet Arbab Abdul Ghafoor Khan did not, during all these years, ask the Commissioner to revise the above order. Legally we cannot appropriate to ourselves the functions of a Commissioner, or sit as a Court of appeal in exercise of our powers under section 491, Cr. P. C: for scrutinizing the correctness or otherwise of the exercise of the powers by Abdur Rauf Khan Qureshi under section 40, F. C. R. The language used in the application insinuates that Mr. Abdur Rauf Khan Qureshi passed the above order not because the evidence produced before him justified the order, but because he was made to do so by Hon'ble Khan Abdul Qayum Khan, an "Enemy" of the petitioner. If these allegations are correct, then the order of Mr. Abdur Rauf Khan Qureshi was malicious and a fraud on the Statute. This in itself entitled Arbab Abdul Ghafoor Khan to move this Court for the issue of the writ of habeas corpus under section 491, Cr. P. C. He made no such attempt for a period of more than three years. It will be now too late in the day for him to allege that an order passed three and a half years before was malicious. wrong, and against the facts proved upon that record. Under illustration (e) of section 114 of the Evidence Act, this Court is bound to presume that Mr. Abdur Rauf Khan Qureshi's act in demanding security from the accused being either a judicial or an official act, was regularly performed. If Arbab Abdul Ghafoor Khan wished to prove otherwise, he had to do so by bringing some positive facts on this record, which, we have no hesitation in saying, are completely lacking in this case. In the application dated 9th December 1952, no allegation of bad faith so far as Mr. Abdur Rauf Khan Qureshi was concerned, was even hinted much less made. The application dated 10th December 1952, made directly to this Court, does for the first time impute motive to the above officer, but this is supported by an affidavit, not that of Arbab Abdul Ghafoor Khan, the person directly concerned, but of Arbab Muhammad Hasham Khan, his younger brother. Even then the attack is not made in clear terms, but has only got to be inferred from the language used. In any case, Arbab Muhammad Hasham Khan does not stand in the same position as Arbab Abdul Ghafoor Khan to affirm to this part of a serious charge levelled against a judicial officer. Considering all the facts we have no hesitation in repelling the argument that the order passed under section 40, F. C. R. was in any way malicious or dishonest. It is contended that while Arbab Abdul Ghafoor Khan was undergoing imprisonment in default of his furnishing security in Machh Jail, on 22nd January 1952, the N.‑W. F. P. Govern ment ordered his arrest and detention for a period of one year under section 3 of the N: W. F. P. Public Safety Act of 1948. It is argued that under section 45 of the Frontier Crimes Regulation III of 1901, after Arbab Abdul Ghafoor Khan had suffered imprisonment for three years for failure to give security under section 40, F. C. R., he had to be released before an order of detention was passed against him. Section 45 of the above Regulation runs as under :‑ "Where a person has suffered imprisonment for three years for failure to give security under section 40 or section 41, he shall be released and shall not again be required to give security unless a fresh order is passed in accordance with the provisions of this chapter or of the Code of Criminal Procedure, 1898." The obvious meaning of this section is that a person who has suffered imprisonment for three years for failure to give security under section 40, has got to be first released, before another order requiring him to give security is passed. It certainly does not mean that a person who has suffered imprisonment for failure to give the security has, in any case, got to be released, even if he is required to be detained in the lock‑up under some other law. To stretch the meaning of this section to that far would be on the face of it ridiculous and absurd. It is then argued that while in Machh Jail Arbab Abdul Ghafoor Khan could not have committed any prejudicial act that in order to prevent him from committing such act it was necessary to detain him under section 3 of the N.‑W. F. P. Public Safety Act of 1948. In this connection it has been pointed out by the learned counsel for the detenu that it is possible that Arbab Abdul Ghafoor Khan, after being released on the expiry of three years' imprisonment from Machh Jail, might not have come to the North‑West Frontier Province at all, to endanger the public safety or the maintenance of public order here. There is nothing inherently illegal about an order passed against a person who is already in jail either undergoing imprison ment for committing a certain offence, or in default of furnishing security under section 40, F. C. R. A person so detained can still be considered by the Provincial Government as a threat, when at large, to the public safety, or the maintenance of public order in the Province. It is true that after having been released from Machh Jail, Arbab Abdul Ghafoor Khan might not have returned to the North‑West Frontier Province, but by reason of the fact that he belongs to this Province, the probabilities would be otherwise, and if the Provincial Government believed that Arbab Abdul Ghafoor Khan was likely to return to the North‑West Frontier Province, after being released from Machb Jail, it was perfectly within its right to pass an order under section 3 of the N: W. F. P. Public Safety Act, if it genuineh thought that the conditions precedent to passing an order under, that section were satisfied. So far as Arbab Abdul Ghafoor Khan is concerned, whatever the position of the other detenus may be, he has nothing to complain. At the time when the Government passed the first order of his detention, it had sufficient grounds to believe that he would carry on subversive activities prejudicial to the security of the State, and maintenance of public order, after his release from Jail. While he was still undergoing imprisonment in default of furnishing security he was released on parole for a period of three months, after he had given a declaration on the 7th of February 1951, to the following effect :‑ "I, Arbab Abdul Ghafoor Khan of Tehkal Bala, hereby sign this undertaking this 7th February 1951, to the effect that during the period of three months of my release or parole I will stay in Baluchistan, and confine my movements within the limits of Quetta Municipality. In addition I pledge loyal to the Government of Pakistan, will refrain from anti‑Pakistan activities and will be of good behaviour during the period of parole." This was done under the orders of Hon'ble Khan Abdul Qayum Khan, the then Chief Minister of North‑West Frontier Province. Arbab Abdul Ghafoor Kh in was actually released from Machh Jail on 31st March 1951, and the period of three months' parole had to commence from 1st April 1951, forenoon. A secret express letter from Secretary to the Agent to Governor‑General in Baluchistan, placed on the Civil Secretariat N.‑W. F. P. Political Branch File No. 46/418‑P9, informed the N.‑W. F. P. Government that Abdul Karim Shorash, a suspect of anti‑Pakistan views, Mir Ghulam Farooq Khan, the Afghan Trade Agent, and Sahibzada Abdullah Jan of Afghanistan, had visited Arbab Abdul Ghafoor Khan, and had remained with him for two hours. This conduct of Arbab Abdul Ghafoor Khan was considered by the Provincial Government as breach of the undertaking mentioned above, and the parole consequently was cancelled by Hon'ble Khan Abdul Qayum Khan on the 8th of June 1951. Arbab Abdul Ghafoor Khan was re‑arrested and again confined in Nlaehh Jail to complete the period, for which he was detained. Keeping in view these facts, the Provincial Government had sufficient material at its disposal in finding our IV, the potential activities of Arbab Abdul Ghafoor Khan, after his release from Machh Jail. Since that day when he was re-arrested Arbab Abdul Ghafoor Khan's detention in Jail has been extended from time to time by orders of the Government N.‑W. F. Province, dated the 8th of June 1952, 7th of December 1952, and 20th of March 1953. Abdul Wali Khan, the second detenu, was for the first time ordered to be arrested without warrant under section 3 of the N.‑W. F. la. Public Safety Act, with a view to prevent him from endangering the public safety and maintenance of public order, and from exciting disaffection towards the Government established by law in the North‑West Frontier Province, and detained in custody in District Jail Quetta, for a period of one year, on the 17th of May 1952. On the 8th of June 1952, the above order was modified to this extent that Abdul Wali Khan was committed to the custody of the Superintendent Jail, Dera Ismail Khan, uptill the 8th of December 1952. The detention was further extended to the 8th of June 1953, by an order dated 10th of December, 1952. On the 20th of March 1953, however, another order was passed, whereby Abdul Wali Khan was directed to be detained in the custody of the Superintendent, Central Prison, Haripur, uptill the 8th of June 1953. It will be seen from the above that at the time when the two habeas corpus petitions were received by this Court, the effective orders in the case of Arbab Abdul Ghafoor Khan were dated the 7th of December 1952, and in that of Abdul Wali Khan dated the 10th of December, 1952. It was argued on the 5th of March 1953 that the detention of the two detenus on that day in their respective Jails was illegal. Originally section 3 of the N.‑W. F. P. Public Safety Act XXI of 1948, stood as under :‑‑ "3 (1) The Provincial Government, on being satisfied that any person has committed any prejudicial act or that with a view to prevent him from committing any prejudicial act, it is necessary so to do, may order the arrest without warrant of such person, and in affecting such arrest all means necessary for the purpose may be used. (2) The Provincial Government may commits any person arrested under the last preceding subsection to such custody in such part of Pakistan and for such length of time, as the Provincial Government may, from time to time, order in that behalf. (3) The Provincial Government may, by general or special order, determine the conditions as to the maintenance discipline and punishment of offences and breach of discipline which shall be applicable in the case of persons committed to custody as aforesaid. On the 27th of October 1952, His Excellency the Governor North‑West Frontier Province, promulgated an Ordinance, sub stituting the following section for the above section :‑ "3 (1) The Provincial Government, if satisfied 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 order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (4) of such person for such period as may, subject to the other provisions of this section, be specified in the order, and the Provincial Government if satisfied that for the aforesaid reasons it is necessary so to do, may, subject to the provisions of this section, extend from time to time the period of such a detention. (2) (i) An order of arrest under subsection (1) may be addressed to a Police Officer and such Officer shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer shall commit the arrested person to such custody as, may be prescribed under subsection (3). (ii) A Police Officer not below the rank of Sub‑Inspector, if satisfied on receipt of credible information that a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdiction, may arrest him without a warrant in the same manner as be would have done if such order of arrest had been addressed to him. (3) No order of detention or of extension of detention under this section shall be passed for a period of more than six months at a time. (4) So long as there is in force in respect of any person an order under this section, directing that he be detained he shall be liable to be detained in such custody and under such con ditions as to maintenance, discipline and punishment for offences of the breach of discipline as the Provincial Govern ment may, from time to time, prescribe by general of special order. (5) The Provincial Government may at any time release a person detained under this section." Under section 88 (2) (a) of the Government of India Act, an Ordinance. promulgated by His Excellency the Governor has the same force and effect as an Act of the Provincial Legislature, assented to by the Governor, but it has to be laid before the Provincial Legislature and ceases to operate at the expiration of six weeks from the re‑assembly of the Legislature, or if a Resolu tion disapproving it is passed by the Legislative Assembly, upon the passing of the Resolution. There is nothing on the record to show that. the Assembly passed any Resolution disapproving it. It consequently automatically ceased to operate at the expiration of six weeks from the re‑assembly of the Legislature, which event took place on the 13th of November 1952, i.e., on the 25th of December 1952. The argument is that on the 5th of March 1953, the Ordinance having expired, there was no section 3 existing, under which the two detenus could be continued to be detained. It was contended that no sooner the Ordinance was promulgated, substituting new section 3 for the old one, the latter ceased to exist for all times to come, and was not revived after the Ordinance outlived its utility. Reference has been made to section 6 of the N.‑W. F. P. General Clauses Act II of 1932, under which where an Act repeals any enactment, or where an Act enforced for a period ceases to operate on, the expiry of that period, then unless a different intention appears, the repeal or expiry does not revive anything not in force or existing at the time at which the repeal or expiry takes effect. This section obviously does not deal with Ordinances which are distinct from the Acts. The Acts are permanent legislations placed on the Statute Book for all times to come, while the Ordinances are temporary enactments which have got force only for a limited period, and it is on account of this fact that section 6 of the N.‑W. F. P. General Clauses Act II of 1932 is silent with regard to the Ordinances. In our view, therefore, when the N.‑W. F. P. Public Safety (Amendment) Ordinance II of 1952, ceased to operate, section 3 of the N.‑W. F. P. Public Safety Act of 1948 revived. It is further contended that in all orders extending the detention of the two detenus in jail the provisions of law mentioned was subsection (1) of section 3 of the N.‑W. F. P. Public Safety Act of 1948, which did not authorise the Provincial Government to detain the detenus in the respective lock‑ups. Section 3 (1) of the afore‑mentioned Act has been reproduced above. The argument advanced is correct inasmuch as sub section (1) only authorizes the arrest of the detenu and not his detention in any custody, which is done under subsection (2) of section

3. This argument, however, cannot be availed of by the learned counsel with respect to the last order of detention made in cast, of both the detenus on the 20th of March 1953, by which time section 3 of the N.‑W. F. t'. Public Safety Act XXI of 1948, had been amended by the N.‑W. F. P. Public Safety (Amendment) Act III of 1953, which received the assent of His Excellency the Govern6r‑&meral of Pakistan on 3rd January 1953, and was published in the N.‑W. F. P. Official Gazette Extraordinary on the 10th of March 1953. Section 3 as amended is as under :‑ "3. (1) The Provincial Government, if satisfied that with a view to preventing an; 1 person from acting in any manner prejudicial to public safety or the maintenance of public order, or to the maintenance of supplies and services essential to the community, it is necessary so to do, may by order in writing direct the arrest and detention in such custody, as may be prescribed under subsection 3 of such person for such period as may be specified in the order, and the Provincial Government, if satisfied that for the aforesaid reasons it is necessary so to do, may extend for time to time, the period of such detention. (2) (1) An order of arrest under subsection (1) may be addressed to a Police Officer and such officer shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer shall commit the arrested person to such custody as may be prescribed under subsection (3). (ii) A Police Officer not below the rank of sub‑inspector, if satisfied on receipt of credible information to a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdiction, may arrest him without a warrant in the same manner as he would have done if such order of arrest had been addressed to him. (3) So long as there is in force 9n respect of any person n order under this section directing that he be detained, he shall be liable to be detained in such custody and under such conditions as to maintenance, discipline and punishment for offences and breaches of discipline as the Provincial Government may, from time to time, prescribe by general or special order. (4) The Provincial Government may, at any time, release a person detained under this section." In the case of the prior orders too we do not think that merelvi because the Governor N.‑W. F. P. invoked the provisions off section 3 (1) of the N.‑W‑ F. P. Public Safety Act, in extending 13 the period of detention of the detenus, it invalidates the order off detention, or on account of that reason it can be said that they Governor did not pay due care and attention to the action that he took. In any case, the argument that the orders of arrest, detention, or extension of detention passed by the Provincial Government prior to the 20th of March, 1953, were invalid for one reason or another, has now got only academic interest, because the question before the. Court is not the validity or invalidity of any order, but the validity of the applicant's detention at the time of the disposal of his application. It automatically follows from the above proposition of law, that if at any time before the release of the detenu is directed, a valid order directing the detention of the detenu is produced, the Court cannot release the detenu merely because at some prior stage there was no valid order for detention passed by the relevant authority. This was the view taken originally by Their Lordships of the Federal Court in Basanta Chandra Ghose v. Emperor, reported as (A I R 1945 F C 18). It was followed by the Allahabad High Court in Indu Bhushan Deb v. The District Magistrate Allahabad, reported as (A I R 1949 All. 82) and by this Court in Shad Muhammad of Turlandt v. Crown reported as (P L D 1950 Pesh. 22). That the order dated the 20th of March, 1953, was passed under the correct provision of law is not controverted by.Mr. Suhrawardi, the learned counsel appearing for the detenus. He has, however, argued that this order only extends the detention of the two detenus and as the original detentions were illegal, therefore, the extension should also be held to be illegal. Assuming for the sake of argument, without holding it, that the detention of the detenus in its inception or at some subsequent stage was illegal, still we do not think that the extension of that detention by the latest orders would be on account of that fact illegal. In our view, the latest orders in cases of both the detenus are original orders of detention and should in fact, irrespective of the language used in the order be taken as such. Under subsection (1) of section 3 of the N.‑W. F. P. Public Safety Act No. XXI of 1948, the Provincial Government on being satisfied that any person has committed any prejudicial act or with a view to prevent him from committing any prejudicial act, it is necessary so to do, may order the arrest without warrant of such person. Under subsection (2) of the same section, the Provincial Government may commit any person so arrested to such custody in such part of Pakistan as the Provincial Government may order. So far as the length of the custody is concerned, the Provincial Government can detain such person for an unlimited period, which period has got to be determined by it periodically, meaning thereby that the Provincial Government cannot fix an unreasonably long period at one time ; but should initially fix a small period and extend it from time to time only when it is in fact and honestly satisfied, after applying its mind to the facts of the particular case, that in order to prevent the detenu from carrying on subversive activities prejudicial to the security of the State and the maintenance of public order, it is necessary so to do. The N.‑W. F. P. Public Safety Act does not lay down any special mode of arrest. Under section 46 Cr. P. C., a person is arrested if he submits to the custody of the arresting authority by word or action, and if he does not do so, when the arresting authority touches him. If a person at the time of the arrest is at large, then the arresting authority can touch him or catch hold of him, and where it is necessary so to do handcuff him, but where a person is already then the conditions of subsection (1) of section 3 of N.‑W. F. P. Public Safety Act are satisfied, if he is told that has further got to be confined for a particular period of time all that is necessary for the Provincial Government do is to say in the order that his detention is further extended purposes amounts to a fresh order i and it cannot be questioned on account of the reason that the Provincial Government has not been given any power extend the detention by section 3 of the N.‑W. F. P. Public Act, particularly when the order fulfils all the requirements 1 order, laid down in the section itself. All the therefore, extending the detention of the two detenus from time to time are original orders, and have got to be judged as Apart from that, under section 3‑A, of the North‑West Province Public Safety (Amendment) Act, 1953, the two detenus shall be deemed to have been detained under the provisions of the amended section 3, which has been reproduced at an earlier stage in this judgment. The learned counsel for the petitioners in support of his argument referred to Rahmat Aslam v. Crown, reported as (A I R 1950 Lah. 232). Following was held by Munir, C. J. in this authority "Where a person is arrested and detained on 16th of December, 1948, by a Police Officer, subsection (3) of section 3, Punjab Public Safety Act, 1947, does not apply and the period of his detention cannot be extended beyond one under sub section (5) because that subsection applies only to the case of detention by the Provincial Government or by its discretion and not to the arrest by Police Officers. The order purporting to extend the detention for six months under section 3 (5) of the Act of 1947, passed on 8th of June, 1949 is therefore void and thus there is no valid order on 15th July, 1949, which could have been continued in force by section 3f,, and further extended under section 3 (4) West Punjab Act XVIII of 1949. All the orders made under the above provisions extending the detention till 14th June, 1950 are therefore invalid and in effective." A careful reading of the above authority would show that the facts of that case were absolutely different from the facts of the case of the two detenus now before us. In the Punjab Public Safety Act of 1947, there was a provision, which is missing in the N.‑W. F. P. Public Safety Act, that no person unless otherwise directed by the Provincial Government could be detained in custody for a period exceeding one month. There was sub section (5) attached to section 3 of the Punjab Public Safety Act, which was to the effect that no person could be detained in custody for a period exceeding six months. This subsection had subsequently been amended first by an Ordinance, and then by a regular Act. It was in face of these two provisions, that His Lordship, the Chief Justice, held that a person, who was arrested under the Act of 1947, could not be deemed to have been arrested under the Act of 1 949, particularly when the maximum period during which he could be detained had expired. It further appears that in the Act of 1949, there were no provisions corresponding to section 3‑A of the N.‑W. F. P. Public Safety (Amendment) Act III of 1953, which is to the following effect :‑ "Where any person, who immediately before the commence ment of this Act is under detention in virtue of an order under section 3 of the said Act,' continues to be, under detention at such commencement the order shall be deemed to have been made under the provisions of that section as amended by this Act". Apart from that, in the original section 3 of the N.‑W. F. P. Public Safety Act XXI of 1948, there was no time limit for the detention of a person in custody. The other objections taken by the learned counsel for the petitioners to the last orders of detention or extension of detention are stereotyped, that are taken practically in most of the habeas corpus petitions in the High Courts of India and Pakistan. It is since the Defence of India Rules came into operation in India, that people have been taken in custody for security reasons, and applications under section 491, Cr. P. C. have been made in one High Court or the other. The legal position has more or less crystallized and does not admit of any doubt or difficulty. When in answer to a writ of habeas corpus the order of detention is produced by the detaining authority, then the Court would first see if the order is in correct form, and if it finds that it is so, then applying the maxim omnia praesumuntur rite esse acta, reproduced in illustration (e) of section 114 of the Evidence Act, the Court shall have to presume that the order was rightly and regularly made. It shall also presume that the detaining authority when it mentions in the order that it was satisfied with a view to preventing a certain person from acting in a manner prejudicial to the public safety and the maintenance of public order it was necessary to do a certain thing, it was in fact and honestly so satisfied. The Court cannot examine the conscience of the detaining authority to find out whether the material on which it was satisfied was sufficient or reasonable. The detenus, however, can show that while passing the order of detention or extension of detention, the detaining authority did not apply its mind and j passed the order mechanically, without proper satisfaction. He can also show that the order of detention was passed with a view to gain ulterior motive, and that there was lack of bona fide.5 on the part of the authority exercising the statutory power, which had in fact been abused and was exercised fraudulently and with malice. Though the burden to prove the fraudulent and dishonest nature of the exercise of the power originally lies upon the detenu, yet since the security detentions infringe the fundamental rights of personal liberty of a subject, the burden is not so heavy, as it is in other cases. This, however, does not mean that the detenus have no responsibility in the matter at all ; they have to bring on the record some material from which a reasonable inference can be drawn that the orders passed by the Government are malicious, fraudulent and in excess of the powers conferred upon it by the legislature. We cannot lose sight of the fact that the safety legislations empower the Executive to deal with the actual and potential enemies of the State, and it is their duty to protect the State from all risks both from within and without and from national and international points of view. The Executive has very onerous and difficult duties to perform, and the Courts normally should not sit as Courts of appeal against their orders, and try to find out all what they know even if it is not in the interest of the State that they should disclose it. The learned counsel for the petitioners has, as has already been observed, not taken any exception to the form of the orders of detention passed in the case of the two detenus on the 20th of March, 1953. So far as Abdul Wali Khan is concerned, he has not attacked the order of detention on the ground that it was made fraudulently, maliciously and without the detaining authority applying its mind to it. In fact no such allegations were made by Abdul Wali Khan even in his application addressed to this Court. In the case of the detention of Arbab Abdul Ghafoor Khan, however, it has been strenuously argued by Mr. Suhrawardi that the order passed in his case was malicious and based on the enmity, which Arbab Abdul Ghafoor Khan had with Hon'ble Khan Abdul Qayum Khan, the Ex‑Chief Minister of the North West Frontier Province. Giving the details of this enmity he has referred us to the application of Muhammad Hasham Khan, made to this Court on the 10th of December, 1952. In this application the malice attributed to the Ex‑Chief Minister was that Arbab Abdul Ghafoor Khan was opposed to the formation of Ministry by Hon'ble Khan Abdul Qayum Khan from the very beginning, and he along with Ghulam Muhammad Khan of Lund Khwar had protested to late Quaid i‑Azam and late Liaquat Ali Khan about it. It is further stated in the application that he along with some other persons had led an assault on the Indian Troops on Mirqadal Bridge near Srinagar, when a hasty and treacherous retreat was ordered by the Chief of Police Mr. Khushdil a henchman of Hon'ble Khan Abdul Qayum Khan, and it was in order to cover this shameful episode that Arbab Abdul Ghafoor Khan is being kept by Hon'ble Khan Abdul Qayum Khan as a detenu in the lock‑up. It is also stated that Arbab Abdul Ghafoor Khan was vehement opponent of Hon'ble Khan Abdul Qayum Khan in the Muslim League Working Committee. It was mentioned in the application that in order to substantiate these allegations the petitioner was in a position to lead reliable oral and documentary evidence. On the different hearings of the case, Mr. Suhrawardi or anyone on behalf of Arbab Abdul Ghafoor Khan did not seek permission of this Court to lead any oral evidence, nor was any documentary evidence produced for the consideration of this Court. In the absence of any evidence we have no hesitation in holding that the allegations of malice made against the person of Hon'ble Khan Abdul Qayum Khan are baseless. Apart from that, there is no affidavit of Arbab Abdul Ghafoor Khan, who alone was in a position to know the facts mentioned in the application, in support of those facts. Again, Arbab Abdul Ghafoor Khan was for the first time arrested in 1949. An application was addressed by him from jail, the reference to which has been made in detail in the beginning of this judgment, but no allegations of malice against Hon'ble Khan Abdul Qayum Khan were made by him in that application, from which it can safely be presumed that if the facts mentioned in the subsequent application were correct, they should have been deposed to earlier and in any case in the first application addressed to this Court. What subsequently happened in the case of Arbab Abdul Ghafoor Khan belies tile allegations of malice made against the Ex‑Chief Minister. As has already bc~ii observed, it was Hon'ble Khan Abdul Qayum Khan, who ordered the release of Arbab Abdul Ghafoor Khan on parole, which order had to be subsequently cancelled on account of the report made by the Baluchistan authorities with regard to the subversive activities of Arbab Abdul Ghafoor Khan, and his meeting with the persons proved to be the enemies of Pakistan. Mr. Suharwardi next contended that at one time when the detention of the two detenus was extended they were in Machh Jail, outside the jurisdiction of the North‑West Frontier Province Government, and, therefore, those orders of extension were certainly illegal. This argument does not hold good in view of the fact that then the latest orders of detention were passed, the two detenus were detained in Jails in the N.‑W. F. Province, and consequently within the jurisdiction of the Provincial Government. The most serious objection which has been taken by Mr. Suhrawardi against the detention of the two detenus was that on the 20th of March, 1953, the Provincial Government could not have been honestly satisfied that the detention of the two detenus was necessary with a view to prevent them from acting in a manner prejudicial to the public safety, and the maintenance of public order. It is argued that the two detenus had been con tinually in the lock‑up, Abdul Wali Khan from June, 19.18, and Arbab Abdul Ghafoor Khan from June, 1949, and the Government could not have honestly come to the conclusion that they would act in the manner mentioned above. It is contended that the two detenus should be afforded locus poenitentiae before they are further detained for the reasons mentioned in the relevant section. In support of this argument the learned counsel has referred us to Kastoor Chand v. Sarkar reported as (A I R 1950 Rajastahn 40) wherein it was held that where as soon as the previous period of six months' detention expired, the Government re‑arrested and detained the detenu for another period of six months, the order of detention was mala fide. In the course of the judgment Their Lordships wrote the following :‑ "For aught we know, the detention in jail may have had salutary effect upon the applicant, and he may have abstained from activity in watch he was possibly indulging previously. How did the Government assume that be "was about to act" "would act" in the same manner again ? The Government should have given him a chance and allowed some time to elapse before passing the second order of detention. Truly speaking this amounts to an extension of the previous order of detention and is not legally permissible". From these observations of Their Lordships it is clear that the law which they were enforcing did not permit the extension of detention, and also that the words used in that enactment were "was about to act" and "would act". In this Province the extension of detention is permissible by the N: W. F. P. Public Safety (Amendment) Act of 1953, and also the words used in section 3 (1) are, "The Provincial Government if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety ". The use of the words "was about to act" or "would act" would signify that the Government is in possession of certain material, which shows that the detenu was going to do something and in order to prevent him from doing that thing it was necessary to pass the order of detention. These words are not used in the N.‑W. F. P. Public Safety Act of 1948, as amended up to date. In this Province if the Government from the past acts of a certain person and taking into consideration his mental make up and his antecedent history is satisfied that he was likely to act in a manner prejudicial to public safety and maintenance of public order, it would be perfectly within its jurisdiction to pass an order of detention in respect of him. This was the view taken in the matter of M. Subramaniajn reported as (A I R 1950 Mad. 405). The same was the view taken in Haqiqullah Khan v. The State, reported as (A I R 1951 Rajasthan 69), Ananta Charan and others v. The State; reported as (A I R 1951 Orissa. 27), Ujjagar Singh and another v. State of Punjab, reported as (AIR 1952 S C 350), Chekuri Narayana Raju v. The Chief Secretary to the Government of Madras and another reported as (A I R 1.951 Mad. 182), and Alama Inalatullah Khan Mashraqi v. Crown, reported as (P L D 1952 Lah. 331). It may be mentioned here, that Abdul Wali Khan had at some previous stage moved the Baluchistan Judicial Commissioner's Court for releasing him from custody. His application was rejected, and it was held that the orders passed by the Provincial Government detaining Abdul Wali Khan were issued in a bona fide manner, after the Provincial Government had satisfied itself that the detention of the petitioner was necessary. This case is reported as P L D 1951 Bal.

65. Lastly it was argued that it was incumbent upon the Provincial Government to supply to the detenu the grounds or, the reasons on which he had been detained, and since no such supply had been made in the case of the two detenus, their detention was against law. This point was discussed at length by Their Lordships of L this Court in case of Maulvi Shad Muhammad of Turlandi v. Crown reported in (P L D 1950 Pesh. 22) and it was held that according to section 11 of the N‑W.F.P. Public Safety Act of 1948, the Government can supply such information as is not considered to be against the public interest and no time limit has been fixed for doing so he detenu, therefore, has no valid grievance on this account. Section 11 of the N.‑W. F. P. Public Safety Act of 1948 runs as under :‑ "Any person against whom an order under section 3, sub section (1) or under section 4, subsection (1) is made or who is affected by any order made under section 5, or whose property is forfeited under section 10, shall be entitled to receive intimation only in respect of those grounds on which such order or declaration is male which in the opinion of the Provincial Government would not be against the public interest to disclose." The ordinary reading of this section does not at all make it imperative on the part of the Government to furnish a copy of the grounds to the detenu. It is not open to this Court to import into the Statute what is not there and put an extra burden on the Government. The learned counsel for the petitioners has read out to us several authorities given on the basis of the security legislations passed in different Provinces of India, and has argued that section 11 of the N.‑W. F. P. Public Safety Act should be read as to make it imperative upon the Government to furnish a copy of the grounds, on which he is detained, to the detenu. In all those legislations it would be seen that a detenu has been given a right of making a representation to some authority created for the purpose, and in order to facilitate such representation a provision for the supply of the grounds of detention is read as having been made in those enactments. There is no provision of such representation in the N.‑W. F. P. Public Safety Act of 1948, and it, therefore, necessarily follows therefrom that the legislature did not intend to make it compulsory for the Govern ment to supply such grounds to the detenus. There is no other ground argued before us for holding that the detention of tie two detenus was either illegal or was an abuse of the power conferred on the Provincial Government. The result is that both the petitions fail, and are hereby dismissed. There will be no order as to costs. Orders announced. A.H. Petition dismissed.