P (PLP)

(7) .. (8) (i) In all cases of detention exceeding one month the Government shall within one month from the date of the order passed by it tinder subsection (3) or (4) place before a person who shall be a Sessions Judge having exercised for at least 3 years the rowers of a Sessions judge the material facts is and the circumstances in its possession on which the order has been based or which are relevant to the enquiry together with any such facts and circumstances relating to the case which may have subsequently come into its possession and a statement of allegations against the person in respect of whom an order has been made, and the said judge shall consider the said material facts and circumstances, and after such further enquiry, as he deems fit, shall report to the Government whether or not in his opinion there is sufficient cause for the order. (ii) On receipt of the said report the Government shall pass such orders thereon as appear to the Government to be just and proper. (iii) Nothing in this section shall entitle any person against whom an order has been made under this section to be heard in person or through a pleader during the proceedings under clause (i) above or to claim a copy of the proceedings or the report of the judge. The proceedings and the report of the judge shall be confidential and shall not be called into question in any proceedings. It must be noticed that the officer ordering the arrest must be satisfied before issuing tit; order of arrest. He cannot order the arrest on mere suspicion, There must be some reason on which he bass his satisfaction. Moreover, the reason for arrest must be relevant to the purposes mentioned in subsection (1) of section 3, that is, it must relate to the prevention of the doing of any act prejudicial to the public safety or public order. It is, however, equally important to remember that the words "if satisfied" are not preceded by any qualifying adverb, such as, "reasonably". It is the satisfaction of the arresting officer that forms the basis of the arrest of the detenu. The legislature ha omitted the word "reasonably" which would have enabled Courts Of law to examine the sufficiency of the reasons for the satisfaction of the arresting authority. In these circumstances, the satisfaction of the Officer ordering the arrest must be taken to be subjective satisfaction. The word "satisfaction" in the context cannot be held to have been used in an objective sense. In rule 129 of the Defence of India Rules it was laid down that any police officer may arrest any person whom he "reasonably suspects" of having acted in a manner prejudicial to the public safety. Rule 26 was to the effect that the Central Government or the Provincial Government, if it is "satisfied" with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the Defence of India, the public safety, the maintenance of public order it is necessary so to do may make an order directing that he should be detained. These two rules were the subject matter of interpretation by the judicial Committee of the Privy Council in the case of King Emperor v. Vimlabai Deshpande. L. R. 73 I. A.

144. The following observation from this judgment may be reproduced in extenso:

"On the first question it is important to notice the differences between rule 26 and rule

129. Under the former rule an order of detention can be made only by the Central or Provincial Government, though this power may be delegated under the Defence of India Act; and the Government may make an order of detention if it is satisfied with respect to any particular person that, with, a view to preventing him from indulging in the subversive activities specified, it is necessary so to do. It is to be noticed that the Government must be satisfied, mere suspicion is not enough, but there is no qualifying adverb such as "reasonably" or "honestly" attached to the word "satisfied". On the other hand, under rule 129, any police officer can arrest on mere suspicion, but the suspicion must be reasonable the exact words being " any person whom he reasonably suspects." As the High Court noticed in their judgment, the House of Lords, in Shearer v. Shields. 1914 A. C.

808. Had to construe a provision in the Glasgow Police Act authorizing constables to arrest if they had reasonable grounds of suspicion, and the House held that the burden rested on the constable concerned to show that his suspicion was reasonable and his act therefore justified. Their Lordships think that the same result must follow under rule

129. Reliance was placed by the appellant on Liversidge v. Sir John Anderson. 1942 A. C. 206, but as the High Court again noticed, there are two very material distinctions between that case and the present one. In the first place, the authority empowered to arrest under the Defence of the Realm Act is a high officer of state, namely, the Home Secretary, and not a mere police officer; and in the second place, the House of Lords was impressed with the obvious inconvenience and danger to the public which might ensue if the Home Secretary was bound to disclose confidential information on which he had acted. In India this danger is very largely mitigated by the existence of rule 26, under which the Government can act wherever it is satisfied as to the matters mentioned in the rule. Cases in India under the Defence of India Rules which may involve disclosure of secret and con fidential information will arise only in cases lying in the border land between the police being suspicious, and Government being satisfied, as to a person's subversive activities, and such cases are hardly likely in practice to be either numerous or serious." The observations quoted above show unmistakably that if the word " reasonably " is inserted by the Legislature before the word " suspects " or " satisfied " the burden lies on the arresting authority to satisfy the Court that his suspicion or satisfaction is reasonable. If, however, the Legislature omits to use the word " reasonably " before the word " suspects " or " satisfied " the word ` suspicion ' or ' satisfaction ' must be taken to have been used in a subjective sense. It was contended by Mr. Suhrawardy counsel for the detenu that the word " satisfied " as used in the Punjab Public Safety Act must be taken to mean " reasonably satisfied ", and therefore in accordance with the observations of the Privy Council in Deshpande's case the burden lay on the Senior Superintendent of Police to satisfy to Court that he had adequate reasons for detaining Abdul Wahid. In this connection, the Counsel relied on the following observations of Lord Wright in Liversidge v. Sir John Anderson (1942) A. C. 206 at p. 271. " Satisfied " must mean " reasonably satisfied ". It cannot import an arbitrary or irrational state of being satisfied, I find the distinction between " reasonably satisfied " and "has reasonable cause to believe" " too tenuous." It was urged that as the word " satisfied " must be taken to mean " reasonably satisfied " we must interpolate the word " reasonably " in the enactment itself and call upon the Police Officer to establish the sufficiency of the reasons which led to his satisfaction. In my opinion, there is no force whatever in this contention. If the Legislature introduces the word " rea sonably " before the word " satisfied " it makes it incumbent on the Courts of law to determine whether there were ade quate reasons for the satisfaction of the Police Officer concerned If, on the other hand, the word " reasonably " has to be interpolated before the word " satisfied " owing to the fact that the dictionary meaning of the word " satisfied " is " to reach a conclusion based on some reason ", the Courts do not acquire any jurisdiction to go into the question of the sufficiency of the reasons. If the Legislature omits the word " reasonably " and only uses the word " satisfied " it is clearly implied that the satisfaction must be the satisfaction of the officer ordering the arrest and that the Courts cannot substitute their own judgment for the discretion given to the arresting authority. Reference may be made in this connection to the decision of the King's Bench Division in Rex v. Denison

115. L. T. R.

231. The following observations of Lord Reading, C. J. may be reproduced with advantage :‑

" But that view of honest suspicion is not sufficient for the applicant in this case. He says that honestly, when Interpolated into these regulations, is really inter‑changeable with reasonable ; that consequently this Court must construe the language as if it were said a person must be " reasonably suspected "; and that when the action of a naval or military authority is challenged this Court must determine whether there was reasonable ground for the suspicion. This Court cannot accept such an argument. We have come to the conclusion that there is a broad line between honest suspicion and reason able suspicion. It may be a person is acting quite honestly and yet be acting on unreasonable grounds. For this reason we also are of the opinion' that Shearer v. Shields (1914) A. C. 808, has no application to the present case because in that case the section of the Glassgow Police Act which came under review by the House of Lords actually contained the very words " who. is reasonably suspected." The word " rea sonably " was actually in the language of the statute, and the House of Lords said where such language is used it is not sufficient for the police constable to say, " I suspected honestly ". This case has no application to the present because the word " reasonable " does not appear in the regu lations ". In the case of Liversidge v. Sir John Anderson (1942) A. C. 206‑283, it was held by the House of Lords that where the Secretary of State, acting in good faith under regulation 18 B of the Defence (General) Regulations, 1939, makes an order in which he recites that he has reasonable cause to believe a person to be of hostile associations and that by reason thereof it is necessary‑ to exercise control over him and directs that that pets on be detained, a Court of law cannot inquire whether in fact the Secretary of Suite had reasonable grounds for his belief. The matter is one for the executive discretion of the Secretary of State. Lord Atkin (1942) A. C. p. 237 gave a dissenting judgment and held that the words " the Secretary of State has reason able cause to believe " must receive au objective interpreta tion, and that it was open to the Court to determine whether the reasons which induced the Secretary of State to pass an order of detention were in fact, reasonable. Even Lord Atkin, however, observed that if the words were " the Secretary of State is satisfied ", it would have to be held that the " satisfac tion " referred to was " subjective satisfaction " of the Secretary ‑of State. At page 237 of the report Lord Atkin has observed as follows :‑-- " The organizations, therefore, are impugned if the Secre tary of State is satisfied as to their nature, but the person is not to be detained unless the Secretary of State has reasonable cause 'to believe that he is a member. The contrast is all the more marked when the words of 18 B (1) 'If the Secretary of State has reasonable cause to believe any person of hostile associations " are compared with the words of 18 B (IA) ‑which I have just quoted and which in substance say as to (b) if the Secretary of State is satisfied that the persons in control of the organization have hostile association;. Why the two different expressions should be used if they have the same " subjective " meaning no one was able to explain. I suggest that the obvious intention was to give a safeguard to the individual against arbitrary imprisonment. Finally, if all these considerations failed, if there were a certain ambiguity in the words " has reasonable cause to believe " the question would be conclusive ly settled by the fact that original form of the regulation issued in September, 1939, gave the Secretary of State the complete discretion now contended for : " The Secretary of State if satisfied etc. " But it was withdrawn and published ill November, 1939 in its present form. It is not competent to us to investigate what political reasons necessitated this change, but it is at least probable that it was made because objection had been taken to the arbitrary power and it was seen that Parliament might intervene. What is certain is that the legislators intentionally introduced the well known safeguard by the changed form of words. There might be sours difference of opinion between the House of Lords and the Judicial Committee of the Privy Council in interpreting the words " reasonable cause to believe " or " reasonably suspects ", but 'there is complete unanimity that if the word " reasonably " .has been omitted by, the Legislature the word satisfied must receive a subjective meaning. The Advocate‑General relied on a large number of decisions of Pakistan and Indian High Courts in support of his contention that if the word " satisfied " is used without a qualifying adverb, such as, " reasonably " the word " satisfied " must receive‑ a subjective interpretation and that the executive discretion of the officer making the arrest cannot be questioned in Courts of law. It is unnecessary to examine these judgments in detail as Mr. Suhrawardy, on behalf of the defence, admitted that there was not a single reported case where the word " satisfied " Standing alone had been held to be used in an objective sense. I have, therefore, no hesitation in holding that a Court of law has no jurisdiction to inquire into the sufficiency of the reasons which led the Senior Superintendent of Police to pass an order of detention against Abdul Wahid detenu. The position taken up on behalf of the Crown was that initially the burden is on the Crown to establish that the officer ordering the arrest was satisfied that the arrest was necessary in order to prevent the detenu from doing a prejudicial act. However, as soon as an order of detention was placed on the record, and it was found that the order was ex‑facie regular and proper, the detenu must accept the position that the presumption omnia esse rite acta applies to the order, and that once the order is proved or admitted, the Court must assume it to have been properly made. The burden then shifts and the detenu has to prove that the order was mala fide and that it amounted to a fraud on the statute. In this connection, reliance was placed on the observations of Sir Patrick Spens, C. J. in the case of Sibnath Bannerjee 1944 F. C. R P.

45. Mr. Suhrawardy relied on the observations of Zafrulla Khan, J. at page 20 which are to the following effect :‑-- " To meet this contention, reliance was placed by the Crown on the presumption that the official acts have been regularly performed. The words "may presume " in section 114 of the Indian Evidence Act leave it to the Court to make or not to make the presumption, according to the circumstances of the case, and the presumption when made is rebuttable." It was urged that in the present case no presumption should be made. Even Zafrulla Khan J., however, was of opinion that initially the presumption set out in Illustration (e) of section 114 of the Evidence Act, viz., that official acts have been regularly performed attaches to the order of detention, and that it is for the detenu to place some material on the record to show that the reduirerne4tp 9f rule 26 of the Defence of India Rules were grossly violated and that therefore no presumption should be made. At the bottom of page 32 of the report he observes as follows :‑-- "Assuming, however, that the orders are regular in form and are open to no objection on the face of them, there is so much material on the record showing that the requirements of rule 26 were grossly violated in the making of the orders that it would not be safe to make any presumption regarding their validity." It is clear, therefore, that all the judges of the Federal Court were in agreement that initially the presumption embodied in Illustration (e) to section 114 of the Indian Evidence Act must be made, and that it was for the detenu to point to some material which may justify the Court in refusing to make the presumption. Mr. Suhrawardy contended that a large unmber of bad characters were rounded up on the 16th of June, that action of a wholesale nature was taken, and that enough attention might not have been paid to the case of each individual. He further maintained that where a person is detained without a regular trial, the presumption should not be raised. I am not impressed with these arguments. The presumption under section 114 applies to all cases, and cases of preventive detention cannot be excluded from the operation of the presumption. It is, of course, open to the detenu to point to any material on the record to show that even if the presumption has to be made, it has been sufficiently rebutted. If he can point to any suspicious circumstances, it would be open to the Court in a particular case to hold that the presumption should not be made, and the Crown should be called upon under section 4 of the Evidence Act to prove that the officer ordering the arrest had sufficient reasons to pass the order of detention. In other words, in the absence of any material to the contrary, the bona fides of the arresting authority shall be presumed, and it would be for the detenu to prove his mala fides. Mr. Suhrawardy relied strongly on the judgment of the Lahore High Court in the case of Abdul Ghmfoor v. the Crown P. L, R. 1944 Lah. 498 where it was held" that a recital in an official record that the authority which directed the arrest of a par ticular person under section 3 was satisfied that it was necessary to arrest him with a view to prevent him from acting in a manner prejudicial to the public safety may give rise to the presumption that he was arrested for the reason stated therein. But the pre sumption is not one of law and the court may not raise it in all cases. The presumption, if raised, is rebuttable by proof to the contrary. "The presumption attaching to official acts is not invariable or conclusive. As the presumption is one of fact its strength would depend upon the formality of the proceedings taken and the status of the authority or officer taking them, and there may be cases when the court may not raise any presumption at all". These observations, in my opinion, are not of any great assis tance to the appellant. It is not contested that the presumption when raised can be rebutted. It is also admitted that material may be placed on the record which may induce the Court not to raise a presumption, but to call upon the prosecution to prove the bona fides of the officer ordering the arrest. The important point to notice however is that in the absence of any material on the record one way or the other, a presumption would be raised in favour of the regularity of official acts, and that it would be for the detenu to point to any material which may justify the Court in not raising the presumption. Mr. Suhrawardy urged repeatedly that the Punjab Public Safety Act was a repressive measure, that it enabled the executive to send a citizen to jail without a regular trial, that this enact ment was meant to be used when a grave national emergency existed, that Pakistan was not passing through a period of grave national emergency, and therefore resort to this measure amoun ted to an abuse thereof. It was urged that, in these circumstances, it was the function of the highest Court of Pakistan to interpret the provisions of the Public Safety Act in such a manner as to give the law courts jurisdiction to scrutinize the reasons which " satisfied " a police officer to issue an order of detention and to determine their sufficiency. While making these submissions, it was not realized by the counsel for the defence that this Court cannot and should not usurp the functions of the Legislature. If an Act passed by the Legislature is not ultra vires we must give effect to its provisions unaffected by political considerations. We are not concerned with the fact that the measure is an unpopu lar piece of legislation, and that there has been a great deal of agitation in the country to the effect that its provisions are being a bused. Our primary duty is to declare and. interpret the law. This Court cannot, under the colour of interpretation, alter or amend the law. That must be left to other authorities, It is the function of this Court to hold the scales of justice firmly even between the State and the citizen. In doing so, it cannot go against the express provisions of an enactment, however stringent the provisions might happen to be. If two interpreta tions are equally possible, this Court will prefer the interpretation which curtails the powers of the executive in detaining a person without a regular trial. If, however, the provisions of law are clear and unambiguous, we cannot interpret them in such a way as practically to repeal the legislation, which we are seeking to interpret. The provisions of the Public Safety Act and the Evidence Act cannot be given a strained or unnatural interpreta tion simply because an order of detention has been passed against Abdul Wahid without allowing him an opportunity of defending himself in a Court of law. The Advocate. General contended that Pakistan was passing through a period of grave national emergency, that the Kashmir affair was still unsettled, and that the armies of Pakistan and India were facing each other along the cease‑fire line. It is well‑known that there is a strong party in India which has not yet reconciled itself to the creation of Pakistan, and which is carrying on power ful propaganda for the absorption of Pakistan into India. According to the counsel, these considerations necessitate the continued existence of emergency legislation, and the Legislature has, there fore, rightly armed the executive with powers to detain persons in order to prevent them from acting in any manner prejudicial to the public safety or public order. The existence of a state of emergency in Pakistan cannot be denied. Even so, however, this Court is bound to interpret the provisions of the Public Safety Act in a fair gad impartial manner, and we would not give the plain language of the Act a strained and unnatural mean ing either in favour of the executive or in favour of the citizen The Advocate‑General invited our attention to subsection (8) of section 3 of the Act, and contended that a safeguard against arbitrary exercise of powers of detention had been provided in the Public Safety Act 1949, which did not exist in the Public Safety Act of 1947. The Legislature, the counsel urged, has in deference to public 6pinion, laid down that all the material facts and the circumstances in possession of the arresting authority, and a statement of allegations against the person in respect of whom an order has been made, shall be placed before a Sessions judge within one month of the date of the order of detention. The report of the Sessions judge has to be considered by the Pro vincial Government, and the Government can at any time termi nate the detention. This safeguard was stigmatized by Mr. Suhrawardy as ineffective, illusory, and even mischievous. The provisions of subsection (8) to a certain extent provide a safeguard for the detenu. It is for the Legislature to consider whether this safeguard is sufficiently effective, or whether a provision should be made in the Punjab Public Safety Act for the creation of an advi sory committee to hear the objections of the detenu. Such an advisory committee was brought into existence under. the Defence of Realm Regulations in England during the last war, and its procedure has been given in detail in the speech of Viscount Mau gham in the case of Liversidge v. Sir ,John Anderson. L. R. 1942 A. C. 206'. The Advocate-General took strong objection to the finding of the High Court to the effect that the reason given by the Senior Superintendent of Police, namely, the molestation of women, did not appear to be a genuine reason for the detention of Abdu Wahid, and that it had not been established that Abdul Wahid had in fact molested any women or that such molestation was one of the reasons for his arrest. The learned judge has' held that had there been any complaints that Abdul Wahid was molesting innocent girls and respectable women in public places, as alleged in the second affidavit of Agha Muhammad Ali, they should have been entered in his history‑sheet and the history‑sheet should have been produced. This observation loses sight of the fact that the burden of proving the males fides of the arresting authority was on the detenu, and it was for the counsel for the detenu to summon Agha Muhammad Ali with the history‑sheet. It was not for the Superin tendent of Police to come to the Court armed with the history‑sheet which he had not been asked to produce. In the absence of the history‑sheet, no finding could be given to the effect that there were no entries in the history‑sheet of Abdul Wahid that he had moles ted any women. It is quite likely that if summoned to produce the history‑sheet Agha Muhammad Ali might have claimed privilege against the production of such a document. It would then have been for the Court to determine whether the privilege was being properly claimed under the provisions of section 123 of the Evi dence Act. If the Court came to the conclusion that the privilege had not been properly claimed; it would have been its duty to compel the witness to produce the history‑sheet. If, however, the court came to the conclusion that privilege had been properly claimed, no adverse inference could be drawn from the non‑produc tion of 'the history‑sheet. The fact that the defence did not call for the history‑sheet cannot be taken to mean that no complaints regarding molestation of women had been entered in the history -sheet of Abdul Wahid. The second reason given by the learned judge for not relying on the statement of the Senior Superintendent of Police was that had there been any substance in the allegation that complaints about molestation of women by Abdul Wahid had been received by him, he would have mentioned this fact in his first affidavit. I am not impressed by this argument. By comparing the first affidavit of the Senior Superintendent of Police with the affidavit filed on behalf, of the detenu, it is clear that the affidavit of the Senior Superintendent of Police was an answer to the allegations in the affidavit of the detenu para by para. It did not contain any additional material. The Senior Superintendent of Police, when examined in court, stated that originally he was of the opinion that it was not incumbent on him to state .the reasons which satisfied him that the detention of Abdul Wahid was necessary in the interests of public safety and order. Later on, he was advised to state at least one of the reasons, and he gave this reason in his affidavit dated the 3rd July, 1950. The explanation given by the witness appears to be reasonable, The omission to make any mention regarding the molestation of women in the first affidavit cannot, therefore, be regarded as one of the reasons for discredit ing his testimony. The witness frankly stated that complaints about the molestation of women did not name the women moles ted or their relatives. He added that" the informers were reluctant to give this information as they considered it inadvisable to drag the names of their women into Courts of ' law ". The witness further stated that he had verified the information relating to the molestation of women by Abdul Wahid from 15 to 20 persons. These complaints had according to the witness, reached him several days before the list of bad characters was prepared at his instance by his subordinates. It was put to the witness that the information regarding the molestation of women by Abdul Wahid was not in his possession when he filed his first affidavit and that he " invented this story " later on merely because he feared that the Crown case would otherwise fail. 7 his suggestion was repudiated by the witness. It was also suggested to him that as he had arrested 30 persons under the Public Safety Act on the night between the 16th and 17th June, and that he included the name of Abdul Wahid in this list at the instance of Muhammad Zahid, Deputy Superinten dent of Police. This suggestion was also firmly repudiated by the witness. Both the reasons given by the High Court for not relying on the statement of this witness appear to me to be insufficient to discredit his testimony. I, therefore, hold that one of the reasons which induced the Senior Superintendent of, Police to issue an order of arrest against Abdul Wahid was that he had credible information that Abdul Wahid had been taking part in the molestation of women. That women were molested on a large scale in Lahore in the months of May and June last has been amply established. I agree with the learned judge of the High Court that molestation of women, under the circumstances, would be a pre judicial act and would fall within the purview of section 3 of the Punjab Public Safety Act. In the concluding para, of his statement the Senior Superintendent of Police deposed that lie might have issued orders to his subordinate officers to watch the movements of Abdul Wahid in order to prevent him from molesting women, but he would claim privilege against producing such communications if they existed in writing. The learned judge has stated in his judgment that :

" Communications made to the witness in official confidence may be privileged, if their disclosure would be against public interests, but I do not see how any orders issued by him to his subordinates to watch the movements of a suspected person would be covered by section 124 of the Evidence Act." He then observed that :‑

" If a witness claims privilege without valid grounds, the presumption which the Court may make under section 114 (e) Evidence Act, about his official acts having been regularly performed may not be made at all and the other presumption contained in clause (h) may be raised that information which the witness could not be compelled by law to disclose would have gone against him if he had disclosed it." If a witness is not entitled to claim privilege with respect to a certain communication he must be compelled to answer the question put to him. If he unjustifiably refuses to answer, he should be compelled to do so. The Court has to determine, when the witness is in the witness box, as to whether he is entitled to claim privilege with respect to certain communications or whether privilege cannot be claimed therefore. If privilege is properly claimed, no hostile inference under Illustration (h) of section 114 of the Evidence Act can be made against him. If he claims pri vilege improperly the Court must compel him to answer the question that is put to him. As regards the presumption mentioned in Illus tration (e) of section 114, this presumption would ordinarily be raised in every case unless any suspicious circumstances have been brought on the record which may lead the Courts not to raise this presumption. Even when such a presumption is raised, a stage may be reached where the Court may come to the conclusion that the presumption has been rebutted, and may call upon the prosecution to prove that official acts were in fact regularly performed. The Senior Superintendent of Police was asked whether he could give any reason for not mentioning in his first affidavit that he had received credible information about the molestation of women by Abdul Wahid. He stated that he did not want to answer this question, and claimed privilege. It clear that no privilege could be claimed for the reasons which might have induced him not to mention this fact in the first affidavit. Privilege can be claimed under section 124 if some communications have been made to a person in official confidence and he considers that public interests would suffer by the disclosure. The reasons why the witness did not mention the molestation of women in his first affidavit were his reasons and could not possibly be covered by section

124. In fact, shortly afterwards the witness stated that originally he did not consider it necessary to give this information in his affidavit, but on reconsideration thought it fit to do so. This shows that privilege was recklessly claimed and the witness did not apply his mind to the consideration of the question whether public interests' would suffer from the disclosure of his reasons. Public officers should claim privilege only when they are convinced that certain disclosures would injure public interests. The fact that the Crown case might suffer by certain disclosures is no reason whatever for claiming privilege. The Court also has an important duty to perform in this respect. When a claim of privilege is made, it should' be decided then and there. The question whether privilege can be claimed for certain communications cannot be reserved for decision until the final judgment is given. If a public officer claims privilege without due care and caution, the Court is not relieved of the duty of determining whether section 124 is not being made a device for keeping back from the Court information which the Court is entitled to obtain. Orders of detention are frequently based on confidential information which public officers cannot be made to disclose in view the provisions of sections 123 and 124 of the Evidence Act. This however, does not mean that tae public officer concerned cannot be asked the reasons which " satisfied " him that the detention of a certain person was necessary in order to prevent him from acting in a manner prejudicial to public safety and public order. When such a question is asked, it is for the witness to claim privilege and to establish that privilege has been rightly claimed. In a large number of cases, witnesses have answered such questions and have voluntarily given the reasons for the arrest. In some cases, the Courts have held that the reasons given by the public officer justified the order of arrest. In some reported cases, it has been held that the reasons given did not relate to public safety and public order, and that the arrest was made for a collateral purpose. In such cases, the detenus have been released. I would, therefore, hold that it is open to a Court of law to question the officer concerned as to the reasons for arrest, and that it is for, the witness to claim privilege and bring the communications which' he does not wish to disclose within the provisions of sections 123 and 124 of the Evidence Act. In this case Abdul Wahid has failed to establish that he was arrested for reasons for which he could not be arrested or that the order of arrest was mala fide. In these circumstances, I would dismiss this appeal. ABDUR RAHMAN, J.‑As to the first question formulated at the time of granting special leave and discussed by my Lord the Chief justice in the judgment, which he has just now delivered, I find myself in entire agreement with him that the evidence in the present case should be examined by this Court. . Not to speak of appeals (civil or criminal) which still lie to this Court under section 205 of the Constitution Act, 1935, from any judgment, decree or final order of a High Court after a certificate has been granted by it under that section, no criminal appeal, which is not covered by that section, can, as of right, be preferred by any aggrieved party to this Court. This follows from the fact that this is not a Court of criminal appeal. It may be however, done with the special leave of this Court. And once leave is granted, an appeal is, if it is otherwise competent, enter tainable by this Court, for with the abolition of jurisdiction of the Privy Council, whether exercisable by His Majesty's prerogative or otherwise, under the Privy Council (Abolition of Jurisdiction) Act, 1950, the jurisdiction to entertain or dispose of Pakistan appeals and petitions has been conferred under section 3 (1) of the Act from the 1st May, 1950, on this Court. This Court is, in consequence, possessed of the same privileges and jurisdiction which His Britannic Majesty had, by virtue of his, prerogative or otherwise, immediately before the 1st May 1950. And since the jurisdiction of His Majesty in Council to entertain an appeal from an order under section 491 of the Code of Criminal Procedure had not been curtailed by any Act of Parliament, His" Majesty's prerogative remained unaffected and the Privy Council thus had unlimited jurisdiction to hear such appeals and advise His Majesty how they should be decided. Inasmuch as that jurisdiction has been inherited now by this Court, it follows that it has also unlimited jurisdiction to bear and decide such appeals. But in granting special leave to appeal or even at the hearing after such leave was granted, their Lordships of the Judicial Committee had for reasons, both constitutional and administrative, imposed certain restrictions which have been expressed in Dillett's case 12 Appeal Cases 259 to be that " Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that by a disregard of the forms of legal process or‑by some violation of the principles of natural justice or otherwise, substantial or gross injustice has been done". In describing the practice of the judicial Committee, Lord Shaw observed in Arnold v. The King Emperor 1914 Appeal Cases 644 to the following effect :‑ " It is not guided by its own doubts of the appellant's inno cence or suspicion of his guilt, It will not interfere with the course of criminal law unless there has been such an interference with the elementary right of an accused as has placed him outside of the pale of regular law, or unless, within that pale, there has been a violation of the natural principles of justice so demonstratively manifest as to convince their Lordships, first, that the result arrived at was opposite to the result which their Lordships would themselves have reached, and, secondly, that the same opposite result would have been reached by the local tribunal also if the alleged defect or misdirection had been avoided." Being convinced of the soundness of the reasons given by the Privy Council for placing such restrictions on themselves in advising His Majesty on criminal matters, this Court has, in exercise of its jurisdiction under the Privy Council (Abolition of Jurisdiction) Act, 1950, adopted more or less tm same course and although fully possessed of jurisdiction it has consistently refrained from interfering with the course of criminal proceedings unless it has found substantial and gross injustice to have been done on account of a disregard of the well known forms of legal process or by some violation of the principles of natural justice or otherwise. It has also refused to examine the evidence when findings of fact have been arrived at by the trial Court and confirmed by the High Court on appeal. The same rule has not been an cannot be rigidly followed, however, either when the High Court has substantially differed from the trial Court and taken a different view of the evidence which had been accepted or rejected by the trial Court, or where the High Court has come to a finding on the basis of evidence which had been adduced before it for the first time and was not or could not be confirmed by it on appeal. In certain circumstances, it is not only proper but essential that the evidence may have‑to be carefully examined and the finding arrived at scrutinised if it is challenged in appeal before this Court. The main question which arises for determination in this appeal depends for its answer on the correct interpretation of the word ` satisfied ' used in section 3 (1) of the West Punjab Public Safety Act, 1950. The matter has been fully discussed by my Lord the Chief Justice and I can make very little contribution to what has been said by him. I may, however, add that the word ' satisfied ' without any qualifying adverb cannot but be taken in its context to convey anything other than what may probably be understood by the word ` convinced '. This word is perhaps stronger than the word ' satisfied ' and may convey a greater degree of firmness. But it serves my purpose as both of them convey the state of a person's mind regardless of the fact whether or not he would be able to persuade others to believe that he was right. To be satisfied with a state of things means, in my view, to be honestly satisfied in one's own mind and by itself without the use of any adverb would not mean that reasonable care was to be taken to make such enquiries before being satisfied as may be sufficient to convince others, or much less a Court, that the state of things had in fact existed. Har vard v. Frost 14 T. R.

306. The omission of the word ' reasonable ' (which would have led to an objective interpretation) appears to me to be deliberate. It is not possible for me to believe that this Act or its predecessor had been drafted in 1949 and 1947, without a perusal of rule 26 of the Defence of India Rules, 1939, which had not used the word ` reasonable ' and rule 129 of the same rules which had used that word. Nor is it possible for me to presume that the legislative authority or those responsible for drafting the Public Safety Acts of 1947 and 1949 were at the time unaware of the decisions of the House of Lords in Liversedge v. Sir john Anderson (1942) A. C. 206 which was delivered in November, 1941, or of the Privy Council in King Emperor v. Sibnath Benerji and others 72 I. A. 241, and King Emperor v. Vimla Bai Deshpande, 7.3 I. A. 144, which had been pronounced in July 1945 and May 1946 respectively. It may be taken for granted " that the legislature is acquainted with the actual state of the law Young v. Leamington, 8 A. C.

526. It was held by James L. J. in Dale's case, 6 Q. B. D. 376, 453, that when the words of an old statute (or of the Defence of India Rules, 1939, which were not only in pari materia with the Public Safety Acts of 1947 and 1949, but really precursor of the Acts which were legislated subsequently) are ...incorporated in ...a new statute, this is understood to be done with the object of adopting any legal interpretation which has been put on them by the Courts." I am therefore of the view that the word ' satisfied ', without any qualifying adverb such as reasonably', was used in the Public Safety Acts of 1947 and 1949 in a subjective sense only. It would, therefore, follow that the authority empowered to a t under section 3 (1) of the Act could not, after he had acted under that section, be compelled to disclose the reasons for Dissatisfaction to the Court, although if he wished to avoid the impression, or., at all event a suspicion of his having acted mala fide, or for Any collateral purpose, he would be well advised to take the Court into confidence and even to let the petitioner know them unless the facts were derived by him from unpublished records relating to affairs of State or the communication were made to him in official confidence and he considered that public interest would suffer by the disclosure. Counsel for the appellant took exception before us to certain observations made in Maulana Maudoodi's appeal (Constitutional Criminal Appeal I of 1949). P. L. D. 1950 F. C. 1, pp. 4 and

13. They were to the following effect :‑ (1) p. 4 of the Report " His detention was in the petition challenged on the grounds‑(a) of its being gala fide (b) of its being a fraud on the Act and (c) that the Maulana had never acted or in tended to act in a manner prejudicial to public safety or to the maintenance of public order. These were all questions of fact and were repelled for lack of proof by the learned Chief Justice of the High Court, who had heard the petition. Let it not, however, be understood that the result would had been any different if the allegation in regard to (c) had been substantiated for under section 3(1) of the Act, it was for the Provincial Government, the District Magistrate or any other servant of the Crown authorised in this behalf to be satisfied whether it was necessary to arrest the Maulana with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order and it was not possible for a Court to usurp this function or to substitute its judgment for that of any of the authorities referred to in the section." (2) p. 13 of the Report "It is impossible to argue, in our judgment, that the witness had given any reasons which had led him to arrest the Maulana, or had convinced him that it was necessary in the public interest to arrest the Maulana. I know that the reasons which had led the witness to arrest the Maulana could not be asked from him, but that would rather go to show that the witness was not deposing to the reasons which had led him to arrest the Maulana. There is no other evidence on the record to show as to what were the reasons which had led the witness to arrest the Maulana. We would, therefore, hold that the appellant has failed to establish that the Maulana was arrested by Zul Qarnain for reasons for which he could not have been arrested or detained by Zul Qarnain ; or, in other words, that the reasons for the Maulana's arrest were such as fell within the category of any item in List I of the Seventh Schedule of the Constitution Act." Basing his opinion on the above observations generally and on the second observation in particular, the learned judge of the High Court had in the concluding portion of his judgment under appeal stated as follows:‑

" The Senior Superintendent of Police has, however, said that this was not the only reason for which he arrested Abdul Wahid. There were other reasons which he refused to disclose. I have strong views against any public servant being allowed to arrest and imprison people, even under the Public Safety Act, without disclosing the reasons for doing so; unless the disclosure would really endanger public safety and injure public interests. I am not at all impressed that if Agha Muhammad Ali bad frankly stated his reasons for arresting Abdul Wahid public safety would have been endangered or public interests would have suffered. But the Federal Court of Pakistan has held in Maulana Maudoodi s case (A. P. L. D. 1950 Lah. F. C. I.) that an officer ordering arrest under section 3(1), Punjab Public Safety Act, cannot be made to disclose the reasons for which he ordered the arrest. I, therefore, refrained from compelling Agha Muhammad Ali to disclose his reasons. The Federal Court has further held that it is for the detenu to prove that he was arrested and detained for reasons for which he could not be arrested oT detained. The evidence led by the petitioner does not show that he was arrested or detained for any such reasons. The burden of proof placed upon the detenu has not been discharged in this case. The petition is, therefore, dismissed. As to the first observation appearing at p. 4 of the report, I do not see how exception could really be taken to it. Conten tion (c) advanced on behalf of the petitioner in that case was " that the Maulana had never acted or intended to act in a manner pre-judicial to public safety or to the maintenance of public order." This contention had been repelled by the learned Chief Justice of the High Court for lack of proof. Recalling the terms in which section 3(1) of the Safety Act was couched, it was observed by this Court in passing that the result could not have been any different even if the allegation contained in the conten tion (c) was found to have been substantiated for under section 3 (1) of the Act it was only for the Governor, the District Magistrate or any servant of the Crown to be satisfied that it was necessary for any or them to arrest a particular person" with a view #o preventing him from acting in any manner prejudicial to the public safety or public order" and the contention advanced on behalf of the petitioner would have been, even if found in his favour by a Court of law, of no avail "tit him. If the petitioner wished to succeed on that ground, it should have been alleged that the Superintendent of Police had not in tact been satisfied that Maulana Maudoodi had acted or was intending to act in any manner prejudicial to the public safety or public order. But such was not the case. And in the absence of such a contention and its proof, the finding of the Court of law that the Maulana had not acted or had not intended to act would not have served any useful purpose. The second observation to which exception was taken could not be torn from its context and has to be understood in its set ting. Having held in the beginning of the paragraph in which the second observation appears that there was " nothing on the record to show that these (alluding to the answers given by the witness in answer to certain questions put by the Court before his cross‑examination) were the reports which had convinced him that it was necessary in the public interest to arrest the Maulana " the judgment proceeded to show that although questions on various other topics were put to the witness, the counsel for the petitioner had failed to cross‑examine the witness on the point whether his answers to the questions put by the Court contained the reasons for .the Maulana's arrest. This was followed by the observation which has already been quoted in extenso. The sentence that " I know that the reasons which had led the witness to arrest the Maulana could not be asked from him " was intended to convey, as indeed it did convey to the learned judge of the High Court in his judgment under appeal, that the officer ordering arrest under section 3 (1) of the Punjab Public Safety Act could not be made to disclose the reasons for which he had ordered the arrest to be made. The expression `could not be asked ', although possibly cryptic, was used to signify that the reasons could not be asked from the witness so as to make him liable to certain consequences if he failed to state them, or in other words, he could not be compelled to disclose the reasons which had led him to pass an order under section 3 (1) of the Safety Act. That was not, however, meant to indicate that no question could be put to the officer ordering arrest, for it is quite possible to conceive that he may, for various reasons, decide to give either some or all of his reasons which had satisfied him to pass an order for the arrest of a person under the Public Safety Act. The burden of proving that the officer had not been in fact satisfied certainly lies on the detenu, as a presumption will normally be raised in favour of the Crown if the order is ex‑facie regular and in conformity with the language of section 3 of they Safety Act. The learned Chief Justice of the Federal Court of India had in his dissenting judgment in King Emperor v. Sibnath Benerji observed as follows: " It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to esta blish even a prima facie case that the recital is not accurate." Their Lordships of the Judicial Committee agreed with this statement, 72

1. A.

241. It is true that ordinarily it would be extremely difficult for a detenu to rebut the presumption and to establish that the officer ordering arrest under section 3 (1) had not been in fact satisfied, but that is exactly what the learned Chief Justice of the Federal Court of India meant by the obser vation ` The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a Prima f acre case that the recital is not accurate." I agree in the end that there is no merit in this appeal and it must, therefore, be dismissed. A. S. M. AKRAM, J.‑I agree with my Lord the Chief Justice that this appeal should be dismissed and for the reasons given in his judgment. A. H. Appeal dismissed. Attorney for appellant :‑M. Siddiq