P L D 1977 Karachi 440 (PLP)

Z. A. CHANNA, J.‑This constitutional petition calls in question the proceedings instituted before respondent No, 1, the Special Tribunal, Sind, constituted under the Defence of Pakistan Ordinance, 1971, against the petitioner's father, Afzal Khan son of Rehmat Khan (hereinafter for the sake of brevity referred to as the accused) under rule 42 (6) (a) and (s) of the Defence of Pakistan Rules read with rule 49 thereof.

2. The facts which have given rise to this petition, briefly stated, are that on 28‑11‑76, the accused was arrested by respondent No. 2, the Station House Officer, Ferozeabad Police Station, Karachi, under the Defence of Pakistan Rules on the basis of an F. L R. which was registered against him on the same date. In the said F. I. R.. it was stated that the accused was reported to be "indulging in activities prejudicial to Pakistan's relations with foreign powers by taking out Charas and other narcotics out of Pakistan in contravention and prohibition imposed by law for the time being in force." Subsequently on 4‑12‑1976, an order was passed against the accused by the District Magistrate, Karachi East, under section 3 of the Sind Maintenance of Public Order Ordinance, 1960, directing the detention of the accused for a period of 30 days. The accused was served with a copy of the grounds of his detention which mentioned several instances of alleged smuggling o! any dealing in large quantities of Charas by the accused. The detention order expired bay efflux of time and the detention was not extended. However, before the expiry of the period of detention, an interim charge‑sheet was submitted against the accused on 17‑12‑1976, before respondent No.

1. On 31.‑12‑1976, final charge‑sheet has been submitted against the accused. In the charge‑sheet, which is under rule 42 (6) (a) and (s) of the D. P. R read with rule 49 thereof, the accused has been charged with smuggling Charas outside Pakistan and thereby tarnishing Pakistan's good relations with friendly countries.

3. Mr. Azizullah Shaikh, the learned counsel for the petitioner has assailed the proceedings before respondent No. 1 against the accused on the following grounds:‑ (1) That rule 42 (6) (a) of the Defence of Pakistan Rules is ultra vires of the Defence of Pakistan Ordinance, 1971; (2) that in any case. the language of rule 42 (6) (a) of the D. P. R. is too wide and gives no indication as to what is meant by an act prejudicial to foreign relations with foreign powers; and (3) that there is no evidence whatsoever in support of the charge against the accused and consequently respondent No. 1 had no jurisdiction to entertain this charge-sheet.

4. In support of his first contention, namely, that Rule 42 (6) (a) of the Defence of Pakistan Rules is ultra vires of the Defence of Pakistan Ordinance, 1971, the learned counsel for the petitioner referred us to section 3 of the Ordinance, particularly subsection (i) and clauses (vi) and (xi) of subsection (2) thereof. The precise argument of the learned counsel was that so far as subsection (1) of section 3 of the Defence of Pakistan Ordinance is concerned, it makes no mention whatsoever of Pakistan's relations with foreign powers and therefore the said subsection does not empower the making of any rule concerning Pakistan's relations with foreign powers. In regard to clause (vi) of subsection (2) of section 3 of the Ordinance, the submission of the learned counsel was that though this clause does refer to Pakistan's relations with foreign powers, the power under the said clause can only be exercised for framing a rule for preventing the doing of an act which is likely to prejudice Pakistan's relations with foreign powers, and the power of preventing the doing of such an act do not include the power to punish for the doing of such an act. According to him both clause (vi) and clause (xi) of subsection (2) contemplate the making of a rule for the apprehension and detention of persons, and in exercise of this power, the Government has framed rule 32 which provides for detention of persons indulging fin prejudicial activities, including activities prejudicial to Pakistan relations with foreign powers. We, however, find no substance in the contentions of the learned counsel. In our view subsection (1) of section 3 of the Defence of Pakistan Ordinance gives wide powers to the Federal Government to make rules "for ensuring the security, the public safety and interest and the defence of Pakistan, or for securing the maintenance of public order. " The language of the aforesaid subsection is similar to the language used in section 2 (1) of the Defence of India Act. 1939. In Re : V. Bhurarah Iyengar (A I R 1942 Mad. 221), it was held that though the matters specified in section 3(1) of the Defence of India Act, 1939, do not include bail applications, this does not mean that the Government cannot make rules with regard to the bail applications if it considers that in the public interest it is necessary to do so. This ruling was referred to with approval by our Supreme Court in Criminal Review Petition No. 11‑R of 1976, wherein Muhammad Afzal Cheema, J., while construing the scope of section 3 of Defence of Pakistan Ordinance, 1971, specially in regard to bail applications, observed as follows :‑ "Subsection (1) of section 3 empowers the Government to make such rules as appear to it to be necessity or expedient for purposes of (a) ensuring the security, the public safety, the interest and the defence of Pakistan; or (b) for securing the maintenance of public order, or the efficient conduct of military operations, or the prosecution of war, or for maintaining supplies and services essential to the life of the community. Subsections (2) and (3) enumerate a large number of subjects about which rules could be framed and the authorities concerned could be empowered to make relevant orders. This list is merely illustrative and is by no means exhaustive. The fact that it does not in any manner impinge on the vastness of the power vesting in the Government under subsection (1) stands clearly established by the opening clause of subsection (2) 'without prejudice to the generality of the powers conferred by subsection (I)'. which would justify the framing of a rule on the mere appearance of necessity or expediency for ensuring the objects detailed above. In view of the scope of this amplitude, no exception could be taken to the vireo of rule 210 on its reasonable interpretation merely because the enumeration of subjects does not make a specific reference to bail

5. Although, the language of section 2 (1) of the Defence of India Act, 1939, is substantially similar to that of section 3 (1) of the Defence of Pakistan Ordinance, 1971, there is an important difference, in that that the latter Ordinance includes a new category, namely, "interest of Pakistan" which was not found in the Indian Act. The expression "interest o Pakistan" is of wide amplitude and would, 9n our opinion, include everything that would affect the well‑being and prosperity of Pakistan, including it relations with foreign powers. In Jeshing Bie v. Emperor A I R 1950 Bom. 363 , it was held that 'public interest' is a very wide expression and embraces public security, public order and public morality. We may add that it would also, in appropriate cases, include foreign relations.

6. The matter, however, is not concluded by the provisions of section 3(1) of the Defence of Pakistan Ordinance, but there is a further special provision regarding the framing of rules relating to acts likely to prejudice Pakistan's relations with foreign powers. This is clause (vi) of section 3 (2) which reads as follows:‑ "(2) without prejudice to the generality of the powers conferred by subsection (1), the rules may provide for, or may empower any authority to make orders providing for, or any of the following matters :‑ (vi) Preventing the spreading without lawful authority or execution of false reports or the prosecution of any process likely to cause disaffection or alarm, or likely to prejudice Pakistan's relations with foreign powers or to prejudice the security, public safety or interest, or the defence of Pakistan, or any part thereof, including the maintenance of supplies and services essential to the life of the community, and the maintenance of peaceful conditions in any area included in Pakistan, or likely to promote feelings of enmity and hatred between different classes of citizens."

7. We find no force in the submission of the learned counsel for the petitioner that the word 'preventing' does not include prohibiting or making it a penal offence to do an act specified in the said clause. In Black's Law Dictionary, the word 'prevent' has been defined as: "to hinder, frustrate, prohibit, impede, or preclude; to obstruct; to inercept". It is thus clear that the word 'preventing' would include prohibition of an act and one of the modes of preventing the doing of an Act is if the doing of it is made a, penal offence No doubt, the commission of an act can be prevented in certain cases by the detention of the person proposing to do the act, or 'C imposing some other restriction on him, and this power is conferred on the Federal Government by clause (xi) of section 3(2) of the Defence of Pakistan Ordinance, 1971, but this is not the only mode of preventing the commission of an offence. As already pointed out, making an act punishable would be one of the modes of preventing the commission of such an act, for persons would be reluctant to do such an act for fear of the consequences which it would entail to them.

8. In order to appreciate the next contention of the learned counsel that the language of rule 42 (6) (a) of the Defence of Pakistan Rules is too wide to indicate what precise act is being prohibited or prevented, it would appear desirable to reproduce the said rule. It reads as follows :‑ "(6) 'Prejudicial act' means any act which is intended or is likely (a) to prejudice Pakistan's relations with any other power or the maintenance of peaceful conditions in any area included in Pakistan." No doubt, the aforesaid rule does not give any indication of the matters or acts which are likely to prejudice Pakistan's relations with any other powers, but keeping in view the complexity of foreign relations it is obviously. impossible to precisely define the various acts which are likely to prejudice such relations or even to specify broad categories thereof. However, in order to ensure that a person lawfully or innocently doing an act, Which may possibly prejudice Pakistan's relations with foreign powers, is not made to suffer, a prejudicial act is made; punishable under rule 49 of the Defence of Pakistan Rules only if it is done without lawful authority or excuse.

9. This brings us to the last submission of the learned counsel for the petitioner that there is no evidence whatsoever against the petitioner in respect of a charge against him under rule 42 (6) (a) or (,r) of the Defence of Pakistan Rules, and consequently the proceedings before respondent No. 1, the Special Tribunal Sind, are without jurisdiction. The learned counsel has pointed out that the only witness cited in the charge‑sheet against the petitioner are police officers, who have investigated the case and have no personal knowledge of the matter. He has taken us through the 161, Cr. P. C. statements of some of the police officers, which statements, in our opinion, do not support the contention that there is no evidence in support of the charge against the petitioner. A perusal of these statements does show that there is some material against the petitioner indicating that he has been habitually smuggling Charas to foreign countries. We would like to make it clear that we express no opinion either with regard to the admissibility of such evidence or the weight to be given to it. These are matters to be considered by the trial Court.

10. The learned Advocate‑General submitted that in addition to the witness cited in the challan, the prosecution propose to examine some more witnesses and for this purpose has submitted an application to respondent No.

1. According to him reference to these witnesses has been made in the 161 statements of some of the police officers cited in the challan. It is not known what evidence these witnesses are likely to give before respondent No. 1 or even whether their evidence would be admissible or relevant, but we do find from the material which has been produced before us that there is a case against the petitioner which could be tried by the respondent No. 1 under the Defence of Pakistan Ordinance, 1971.

11. Mr. Azizullah Shaikh, the learned counsel for the petitioner, finally submitted that even if the allegations against the petitioner are deemed to be founded on fact, there would at best be against him only a case under section 13 of the Dangerous Drugs Act, 1930, which section makes it punishable for a person to export Charas or any other narcotics. The mere fact that the actions of the petitioner may amount to an offence under the Dangerous Drugs Act, 1930, would not preclude his prosecution under the Defence of Pakistan Rules before respondent No. 1, in view of the provisions of section 26 of the General Clauses Act that where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted under either or both of those enactments. The illicit export of Charas to friendly countries could possibly prejudice Pakistan's relations with foreign countries, specially in view of the Single Convention on Narcotics Drugs, 1961 and the Geneva Convention on dangerous drugs, to both of which Pakistan is a signatory. Of course, the prosecution of the petitioner under rule 42 (6) (a) of the Defence of Pakistan Rules may possibly be pleaded as a bar to his prosecution under section 13 of the Dangerous Drugs Act, 1930, on the basis of the provisions of Article 13 (a) of the Constitution, but since the petitioner has not been prosecuted under the Dangerous Drugs Act, there would appear to us to be no bar to his prosecution under rule 42 (6) (a) of the Defence of Pakistan Rules.

12. The learned Advocate‑General also pointed out to us that in addition to being prosecuted under rule 42 (6) (a) of the Defence of Pakistan Rules, the petitioner was being prosecuted under rule 42 (6) (s). The said clause inter alia prohibits the taking of any goods out of Pakistan, in r contravention of any prohibition or restriction for the time being in force. The allegation against the petitioner is that he has been smuggling Charaa to foreign countries in contravention of the prohibition contained in the Dangerous Drugs Act, 1930. If this allegation is found to be true, the petitioner would prima facie come within the mischief of rule 42 (6) (s) o the Defence of Pakistan Rules.

13. For the reasons discussed above, we are of the opinion that there is no merit in this petition. We accordingly dismiss the same with costs. S. A. H. Petition dismissed.