P L D 1969 Dacca 183 (PLP)

M. R. KHAN, J. The Deputy Commissioner of Dacca made an order on 8‑5‑66 under clause (b) of sub‑rule 32 of the Defence of Pakistan Rules, 1965, detaining one Tazuddin Ahmad for a period of three months from the date of service of the order. By the same order, he was directed to be detained in the Dacca Central Jail. He made that order in exercise of the power delegated to him by the Government of East Pakistan by Notification No. 115‑Poll (II), dated the 13th September 1965. Within a few days after the order of detention, that is, on 12‑5‑66, the detenu was transferred to the Mymensingh Jail. While he was in detention in the Mymensingh Jail, the Deputy Commis sioner of Dacca made successive orders of detention at an interval of every three months one of these orders was made on the 28th July 1967. During the currency of that order, Syeda Zohra Khatoon, wife of the detenu Tazuddin Ahmed moved this Court for a writ of habeas corpus to secure the release of her husband. Accordingly, a rule nisi was issued on the Pro vince of East Pakistan, the Deputy Commissioner of Dacca and others to show cause why the detenu Tazuddin Ahmad should not be brought before this Court and set at liberty. During the pendency of the Rule, another order of detention was made by the Deputy Commissioner of Dacca on 24‑10‑67 when the immediately preceding order of detention was about to expire. In the habeas corpus application, the petitioner raised a number of grounds one of which related to the jurisdiction of the Deputy Commis sioner of Dacca to make an order of detention in respect of the detenu detained in the Mymensingh District Jail. The Rule issued in the case came up for hearing before a Division Bench of this Court. The question with regard to the jurisdiction of the Deputy Commissioner of Dacca to make an order of detention in respect of the detenu detained in the Mymensingh District Jail was canvassed before that Bench. The learned Judges sitting on the Division Bench considered that question in the light of the two decisions of the Supreme Court reported in P L D 1967 S C 3.73 and 19 D L R (S C) 543 and observed that the question involved was of the utmost importance and not free from difficulty. Accordingly, the Division Bench referred the matter to the learned Chief Justice for constituting a larger or Special Bench for determination of the point raised which, as formulated by the Division Bench, is as follows: ‑ "Whether the Deputy Commissioner of a particular district (in this case Dacca) had territorial jurisdiction to serve a ; fresh order for continuing the detention under rule 32 of the Defence of Pakistan Rules upon a detenu who is presently held under detention in another district, namely, Mymensingh while the previous and original order of the said Deputy Commissioner of Dacca under the said Rules was for his detention at Dacca." This Special Bench was accordingly constituted for the purpose. The point formulated for our consideration is, in substance, a general question as to whether the Deputy Commissioner of one District has jurisdiction to make an order of detention under rule 32(1)(b) of the Defence of Pakistan Rules In respect of a person who, at the time of making the order, is outside the limits of his district. A correct answer to this question will depend upon the extent of the power delegated to the Deputy Commissioner to make an order of detention under the said Rule. The power to make an order of detention under rule 32(1) (b) is the power of the Central Government. But it appears from subsections (4) and (5) of section 3 of Defence of Pakistan Ordinance, 1965, that the Central Government may, subject to conditions, if any, delegate its powers and duties under the Defence of Pakistan Rules to a Provincial Government and that the Provincial Government, in its turn, may, subject to condition, if any, delegate such powers and duties to any officer or authority, not being an officer or authority subordinate to the Central Government. Accordingly, the Central Government, by Notification No. S. R. O. 111 (R) 65, dated the 6th September 1965, delegated to the Provincial Govern ment its powers and duties under the various rules including rule 32 of the Defence of Pakistan Rules. The Government of East Pakistan then, as it appears from Notification No. 115‑Poll. (II), dated the 13th September 1965, delegated to all Deputy Commissioners the powers and duties under the Defence of Pakistan Rules except the power under clause (a) of sub‑rule (1) of rule

32. The said Notification delegating powers and duties to Deputy Commissioners runs thus: "Government of East Pakistan, Home Political Department Section II. Notification. No. 115‑Poll. (II)‑13th September 1965‑Whereas the Central Government has directed the Provincial Government to exer cise the powers and duties under rules 11, 15, 18, 19, 20, 27, 30 and 32 of the Defence of Pakistan Rules, 1965. Now therefore, in exercise of the power conferred by sub section (5) of section 3, of the Defence of Pakistan Ordinance, 1965, the Governor is pleased to direct that the powers and duties under the aforesaid Rules except the power under clause (a) of sub‑rule (1) of rule 32, shall be exercised and discharged by the Deputy Commissioners of the districts within their respective jurisdictions in a manner not: inconsistent with any orders made in this behalf by the Central Government. By Order of the Governor, A. Q. Ansari, Secretary to the Government of East Pakistan." This Notification clearly states that the powers and duties dele gated thereby shall be exercised and discharged by the Deputy Commissioners of the districts within their respective jurisdiction. This makes it perfectly clear that the delegated power of a Deputy Commissioner is exercisable only within the limits of his district. This is a conditional delegation in that the power delegated is exercisable only within the district of the Deputy Commis sioner concerned. In view of subsection (5) of section 3 of the Defence of Pakistan Ordinance, the Provincial Government could have delegated the powers and duties under the Defence of Pakistan Rules even to a particular Deputy Commissioner for their exercise by that Deputy Commissioner throughout the Province. But this was not done. Instead, the Deputy Commis sioners of the districts have been empowered by the Notification. No. 115‑Poll (II), dated 13th September 1965 to exercise powers and discharge duties under the Defence of Pakistan Rules, except the power under rule 32(1) (a), within their respective jurisdictions. We do not, therefore, find any escape from the conclusion that on the strength of the delegation as per Notification No. 115‑Poll (II), dated the 13th September 1965, a Deputy Commissioner can make an order of detention under rule 32 (1) (b) only in respect of a person who, at the time of making the order, is within the limits of his district. It therefore, necessarily follows that a Deputy Commissioner of one district has no jurisdiction to make a detention order in respect of a person who is in another district at the time of making the order. Now, let us see if the two decisions of the Supreme Court, as mentioned in the referring order of the Division Bench, made any departure from the legal position as stated above. We have gone through the two decisions and find that the consistent view taken by their Lordships of the Supreme Court is not at all different from the view taken by us in this case. In the first case considered by the Supreme Court, i.e. the case of Malik Gholam Jilani v. Government of West Pakistan (P L D 1967 S C 373) the Deputy Commissioner of Lahore made a detention order under rule 32(1) (b) of the Defence of Pakistan Rules in respect of Nawabzada Nasrullah Khan. As however, Nawabzada Nasrullah Khan, had already left for his village in Muzaffargarh Tehsil, a, Deputy Superintendent of Police of Lahore followed him and arrested him in Muzaffargarh which was beyond the limits of' the Lahore District. On these facts, an argument was advanced in that case to the effect that the arrest of Nawabzada Nasrullah Khan at Muzaffargarh was beyond the powers of the Deputy Commissioner of Lahore to order. On this argument, their Lordships of the Supreme Court observed:‑‑ "The delegated powers of the Deputy Commissioners under section 3 of the Ordinance are expressed to be exercisable only within their respective jurisdictions. It follows that the deten tion orders were executable only in the Lahore District. The detention order for Nawabzada Nasrullah Khan was, however, taken by a police officer from the Lahore District to another district, namely, the Muzaffargarh District and there without the intervention of the local police. It was carried into affect by the same officer by the arrest of Nawabzada Nasrullah Khan. The learned Advocate‑General was unable to meet the argument that the arrest was illegally effected. That being the starting point of the detention, it must follow that the whole detention was vitiated thereby. The further order of the Home Secretary altering the place of detention to Kohat was ineffective to remedy the defect appearing at the first stage of the implemen tation of the Deputy Commissioner's detention order. It follows therefore that the detention of Nawabzada Nasrullah Khan under the Deputy Commissioner's order of the 16th February 1966, was illegal." The learned Advocate‑General submits that an implication is there in the above observations to the effect that the arrest of Nawabzada Nasrullah Khan under the detention order made by the Deputy Commissioner, Lahore, would have been valid had he been arrested in Muzaffargarh with the intervention of the Muzaffargarh police and not by the Deputy Superin tendent of Police, Lahore. We do not, however, think that such an implication is there in the said observations. The arrest of Nawabzada Nasrullah Khan at Muzaffargarh by the Deputy Superintendent of Police, Lahore, without the intervention of the local police, was merely a statement of facts. Such statement of facts cannot affect, in the least, the finding of their Lordships that "the detention orders were executable only In the Lahore District." The second case decided by their Lordships of the Supreme Court is the case of Fazlur Rahman Choudhury (19 D L R S C 543). In that case, the order of detention in respect of Mr. Mizanur Rahman Choudhury was made by the Deputy Commissioner of Dacca on the 7th June 1966, but the order was carried into effect on the 23rd June 1966, at Chandpur in the district of Comilla, by a Police Inspector of the Special Branch at Dacca. The com petence of the Deputy Commissioner of Dacca to make an order of detention in respect of Mr. Mizanur Rahman Choudhury during his stay in the district of Comilla was called in question. Their Lordships, after a review of the earlier case of Gholam Jilani v. Government of West Pakistan, held: "By a parity of reasoning it would appear that the entire detention of Mr. Mizanur Rahman Choudhury is vitiated by the fact that it started with an illegal detention effected in the district of Comilla under an order passed by the Deputy Commissioner, Dacca, whose jurisdiction was confined to persons in the district of Dacca." In that case, an attempt was made to distinguish it from the case of the detenu Nawabzada Nasrullah Khan on the ground that Mr. Mizanur Rahman Choudhury was arrested by the Dacca Police at Chandpur in the district of Comilla with the co‑ope ration of the local police, whereas Nawabzada Nasrullah Khan was arrested at Muzaffargarh by the Lahore Police without the intervention of the Police at Muzaffargarh. On this argument, their Lordship: of the Supreme Court observed: "Whether or not the Police Inspector from Dacca obtained the aid of the Police of Chandpur to effect the arrest, the arrest itself was made by the said Police Inspector acting under the orders of the Deputy Commissioner of another district. The fact that the Lahore Police Officer in the precedent case acted without the co‑operation of the local police to arrest Nawab zada Nasrullah Khan in the Muzaffargarh District was a possible additional ground for an allegation of ultra vires, to be added to the excess of jurisdiction represented by the enforcement of an order of the Deputy Commissioner of Lahore outside the confines of his own district, to which the powers delegated to him under the Defence of Pakistan Rules were confined." The above observations of their Lordships of the Supreme Court make it quite clear that the arrest of a detenu in one district by a police officer of another district with the intervention or co‑operation of the local police, is not a factor which would determine the vires of the order of detention made by a Deputy Commissioner of a district which is other than the district in which the arrest was effected. This is all the more clear from the conclusion arrived at in the case of the detenu Mr. Mizanur Rahman Choudhury. Their Lordships' conclusion is in the following words: "We hold that the detention of Mr. Mizanur Rahman Choudhury is vitiated by the fact that his arrest on the 23rd June 1966, which was the commencing point of his detention was effected outside the jurisdiction of the authority by whom the order for his detention was issued . . . ." Thus it appears that the consistent view taken by their Lordships of the Supreme Court in the said two cases is that the jurisdiction of a Deputy Commissioner to make an order of detention is confined to persons in his own district. This is the view we have taken in this case. Accordingly, our answer to the point of law referred to us, is fn the negative. Before we part with this case, we would like to observe that the detention order, dated the 24th October 1967, made by the Deputy Commissioner of Dacca in respect of the detenu Tazuddin Ahmad, which was one for a period of three months, ceased to be operative by efflux of time. It was, however, brought to our notice by the petitioner Syeda Zohra Khatun that the detenu has since been transferred to the Dacca Central Jail from the Mymensingh District Jail and that a fresh deten tion order in respect of the detenu was made by the Deputy Commissioner of Dacca on 24‑1‑1968 for a further period of 3 months from the date of service of that order. In this case, we are not called upon to consider this detention order, dated 24‑1‑68 on merits. SALAHUDDIN AHMED, J.‑I agree. MAKSUMUL HAKIM, J.‑I agree. A. E. Reference answered in the negative.