P L D 1969 Lahore 985 (PLP)

MUHAMMAD AKRAM, J.

‑By this petition under Article 98 of the Constitution of Islamic Republic of Pakistan Begum Sardar Muhammad Hayat Khan has called in question the validity of the order dated 23‑6‑1967, passed by the Governor of West Pakistan, under rule 32 of the Defence of Pakistan Rules for the detention of her husband.

2. Sardar Muhammad Hayat Khan of Tamman was a Minister in the Government of West Pakistan headed by Nawab Amir Muhammad Khan of Kalabagh as the Governor until he resigned on 18th of September 1966. The detenu originally belongs to village Tamman in Tehsil Talagang, District Campbellpur.

3. It is averred in this writ petition that the detenu after his resignation settled at 5‑B Model Town, Lahore, where he was living with his family members and did not shift to his home village in Campbellpur. According to the petitioner, on 13‑5‑1967, at about 4 a. m. a police party headed by a Deputy Superintendent of Police raided their house at Model Town and when at about 6.30 a. m., the detenu came out of the house, he was informed by the police that he was summoned by the Inspector‑General of Police who was at the time at Talagang. At the asking of the police the detenu, in the company of the police, left for Talagang in his own car, followed by a Police pick‑up. He reached Talagang at about 1 p. m. and was interrogated for about 3/4 hours by the police. This finished, he was immediately arrested at 5‑30 p.m. for the murder of one Muhammad Khan a notorious dacoit and a proclaimed offender.

4. Pausing here for a while, the version of the respondents on this part of the case is that in F. I. R. No. 24 dated 11th May 1967, registered at the Police Station Talagang concerning this occurrence S. I. Muhammad Afzal of Campbellpur District Police had been deputed to serve the "parwana talbi", issued under, section 160, Criminal Procedure Code, on the detenu at Lahore to appear before the S. H. O., Talagang on 13th May 1967. He took the Deputy Superintendent of Police, Headquarters, Lahore, with him to the house of the detenu in Model Town to assist him in effecting the service of the summons, on him, on 13th May 1967, in the morning. In response to the notice served on him, the detenu travelled in his own car from Lahore to Talagang followed by a jeep belonging to the police.

5. It appears that on 11th May 1967, at 8 p. m. the police had registered the case against the detenu and five other co accused under section 302/364, P. P. C. at the instance of Mst. Nur Bibi wife of the said Muhammad Khan on the allegations that her husband was a proclaimed offender and during the period he was absconding he had developed close contacts with the accused persons. They, when they were in power, had been utilizing his services for the commission of various heinous offences. Now that the authorities have started their search for her husband, the accused in conspiracy with each other have killed him to save their own skin because they grew apprehensive that if her husband was apprehended alive, many secrets would be divulged implicating them for the crimes committed through him.

6. To continue the narration, the petitioner has further averred in this petition that on 14‑5‑1967, the detenu and his co‑accused submitted a bail application before the S. D. M., Talagang, which was afterwards rejected by the learned Duty Magistrate. On 16‑5‑1967, the detenu then filed an application for bail in the Court of the Sessions Judge, Campbellpur, who adjourned the same for a number of hearings but did not decide the case. The detenu was then constrained to apply to the High Court of West Pakistan, Peshawar Bench, under section 498, Cr. P. C. for bail on 22‑5‑1967 in which the notice to the State was sent for 24‑5‑1967. After hearing the parties on 24‑5‑1967, the Court granted bail to the detenu and the other co‑accused in the sum of Rs. 10,000 each to the satisfaction of the Addl. Registrar, High Court of West Pakistan, Peshawar Bench. As this order shows it was admitted on behalf of the State at the bar that the police was not able to lay its hand on the dead body of Muhammad Khan. The learned Additional Advocate‑General had also to admit that the police did not have any other incriminating material in its possession against the accused. On 25‑5‑1967, the Additional Registrar at Peshawar duly attested the bail bond for the release of Sardar Muhammad Hayat Tamman.

7. But, so it is alleged that Pir Salah‑ud‑Din, the then Deputy Commissioner, Campbellpur, when he learnt about the order passed by the High Court for bail allowed to the detenu, promptly passed an order directing his detention under rule 32 of Defence of Pakistan Rules, 1965, for a period of three months with effect from the date of his arrest which was directed to take place forthwith, with a view to preventing him from acting in a manner prejudicial to the public safety, the maintenance of public order and the maintenance of peaceful conditions in the District of Campbellpur. The detention order was serve, on the detenu on 25‑5‑1967 at 7.50 hours by the Deputy Superintendent of Police, Headquarters at the police station Talagang before he could be released on bail allowed to him by High Court. So that the custody of the accused was thus made over to the Superintendent District Jail, Campbelipur, for his detention for a period of three months.

8. In these circumstances the petitioner had to file the Writ Petition No. 213 of 1967 in the High Court of West Pakistan Peshawar Bench challenging the validity of the detention order dated 24‑5‑1967, passed by the Deputy Commissioner, Campbellpur, against her husband on a number of grounds. But in his written statement, the Deputy Commissioner, Campbellpur, controverted all these allegations. He contended that he had passed the order for detention of Sardar Muhammad Hayat Khan Tamman on 24‑5‑1967, on the report of the Superintendent of Police, Campbellpur, which was accompanied by the enquiry report of S. H. O., Tammaan after mature consideration and after he had completely satisfied himself that with a view to preventing the detenu from committing any prejudicial acts against the interest of public law and order it was necessary to detain him under rule 32 of the Defence of Pakistan Rules. He, however, claimed absolute privilege under section 123 of the Evidence Act from disclosing the ground or the reasons which impelled him to make the detention order. During the course of the hearing of that petition on 23‑6‑1967, Mr. Sailor Shah, the learned Additional Advocate‑General on behalf of the respondents made the following statement is writing before the Court :‑‑ "Since the detention orders dated 24‑5‑1967 passed by the D. C., Campbellpur, relating to the detention of Sardar Muhammad Hayat Khan of Tamman and Malik Salim Iqbal do not conform to the requirements of law as declared by the Supreme Court of Pakistan in C. As. Nos. lot‑104/1966‑Malik Ghulam Jillani and others v. Government of West Pakistan and others‑the D. C. withdraws the said orders without prejudice to his or the Government's powers and jurisdiction to pass, if necessary, any fresh orders against the said detenus in accordance with law." In accordance with this statement the High Court on 23‑6‑1967, held that the writ petition had become infructuous and directed the release of the detenu.

9. A copy of the release order was received by the Jail authorities at about 2 p. m. on 23‑6‑1967 and as the detenu had just came out of the inner gate of the Central Prison Peshawar at 3 p. m., a police officer specially deputed for the purpose, served a fresh order dated 23‑6‑1967, passed by the Governor of West Pakistan under rule 32 of the Defence of Pakistan Rules on him for his detention for a period of two months.

10. The present writ petition is directed against this second detention order passed against Sardar Muhammad Hayat Khan of Tamman under the circumstances narrated above. This writ petition was filed in the High Court of West Pakistan Peshawar Bench on 27‑6‑1967. But afterwards the case was transferred to this" Court on 3‑7‑1967, on the application made by the respondents, under the order of the Chief Justice.

10. In this writ petition it is alleged that the impugned order of detention dated 23‑6‑1967, is absolutely illegal, ultra vires without lawful authority, mala fide and illegal. It is averred that the so‑called grounds mentioned in this order of detention of Mr. Tamman are absolutely vague and frivolous. The purported satisfaction of the detaining authority on the basis of which this order was passed, besides being malicious was altogether fictitious and colourable. The petitioner has pointed out that the detenu, after his resignation as a minister, did not make any public speech or attend any public meeting or gave any press statement from which it could possibly be inferred that he had been exciting feelings of hatred, contempt and disaffection among the people towards the Government of West Pakistan as given out in the detention order. After his resignation he did not go to Campbellpur but settled down in and was residing peacefully at Lahore. He was taken to Campbellpur District by the Police from Lahore on 13‑5‑1967 and has remained in custody ever since. In these circumstances he cannot be possibly said to have indulged in any of the activities prejudicial to public safety, maintenance of public order and peaceful conditions in the District of Campbellpur. According to the petitioner there was not even a semblance of truth in any of the allegations on the basis of which he was being detained. He has all along been a law abiding and a loyal citizen of Pakistan.

11. In their written statement in this Court, the respondents have controverted these allegations. They have asserted that in this case the detaining authority, before he passed the impugned order, was fully satisfied, on the material placed before him, that it was necessary to detain Mr. Tamman so as to prevent him from acting in a prejudicial manner. Under the circumstances his freedom had to be curtailed by the competent authority in the exercise of the powers lawfully vested in him under rule 32 of the Defence of Pakistan Rules. The respondents have also averred that grounds on which the detenu is being detained are mentioned in the impugned order of detention. But the respondents are not bound to disclose the evidence in their possession for reasons of state and they have claimed absolute privilege against it under section 123 of the Evidence Act.

12. When Pakistan was threatened with war from India the President in exercise of the powers vested in him under Article 30(1) of the Constitution of Islamic Republic of Pakistan, issued the Proclamation of Emergency on 6‑9‑1965. Some of the Fundamental Rights had to be suspended and the Defence of Pakistan Ordinance XXIII of 1965 and Rules were brought into force. Rule 32(1) (b) of the Defence of Pakistan Rules provides that the Central Government, if satisfied with respect to any particular person, that with a view to preventing him from acting in a manner prejudicial, to the security, the public safety or interest or the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other powers, the maintenance of peaceful conditions in any part of Pakistan the maintenance of essential supplies and services or the efficient conduct of military operations or prosecution of war, it is necessary so to do, may make an order directing that he be detained.

13. On this question of preventive detention, now we need not go into and examine at length the power of judicial control exercised by the superior Courts. At one time relying on the two leading cases of Liversidge v. Sir John Anderson and another (1942 A C 206) and King‑Emperor v. Sibnath Banerji and others (L R 72 IA 241) in this country the view had prevailed that the law has invariably left it to the detaining authority to determine upon the basis of its satisfaction as to whether a person should be detained and the Courts cannot institute an enquiry into this matter unless the order passed by the detaining authority is a mala fide one. But quite recently, this view has been expressly departed from and overruled by the Supreme Court of Pakistan in Malik Ghulam Jilani v. The Govern ment of West Pakistan (PLD 1967 SC 373). On a consideration of the relevant provisions of section 3(2) (x) of the Defence of Pakistan Ordinance read with rules 32 and 204 of the Defence of Pakistan Rules, the Court has held that the satisfaction of the detaining authority was not at all immune from judicial review. In this connection the Supreme Court has observed : "It is too late in the day to rely, as the High Court has done, on the dictum in the English case of Liversidge (L R 1942 A. C. 206) for the purpose of investing the detaining authority with complete power to be the Judge of its own satisfaction. Public power is now exercised in Pakistan under the Constitu tion of 1962, of which Article 2 requires that every citizen shall be dealt with strictly in accordance with law. If then rule 32 owes its vires to section 3(2) (x), it must follow that by the use of them words "reasonable grounds" clause (x) has unmistakably imported into this rule, controlling the exercise of public power, the requirement that to gain the protection of the rule for its action there under, the authority should be prepared to satisfy the Courts, to which the subject is entitled to have resort for determination of the question whether he has been treated in accordance with law, that it has acted on reasonable grounds." In this connection emphasizing upon the change in the legal position, that has been introduced after the Independence and with the promulgation of the Constitution of Islamic Republic of Pakistan, the Court remarked : "In the conditions existing under the Government of India Act, 1935, a conclusion such as that reached by the Judicial Committee in Sibnath Banerji's case was tenable. It was a period in which the control by the Courts of the exercise of public power by the authorities was at a minimum. The Central Government of India was in respect of matters of the highest importance, not an independent Government. Through the machinery provided by the Government of India Act, 1935, its action and operations were in those highly important respects, placed under the control of the British Government at Whitehall. It was not conceivable that in relation to a law of such critical importance as the Defence of India Act attracting in many respects the powers of the Governor‑General in his discretion, such powers being directly controllable by the Secretary of State for India, there could be any scope for the intervention of the Courts in India to control the exercise of such power. Therefore, the view taken in Sibnath Banerji's case by the Judicial Committee can be placed on a parallel with the view of the House of Lords in the case of Liversidge quoted above, where the majority view was largely based on the consideration that the order of detention having been made by a high officer of the State, namely, the Home Secretary, it should be presumed that he acted under the relevant provision in the Defence Regulation, i.e., that he had acted on reasonable satisfaction. Under the Constitution of Pakistan a wholly different State of affairs prevails. Power is expressly given by Article 98 to the superior Court to probe into the exercise of public power by executive authorities, howhighsoever, to determine whether they have acted with lawful authority. 'The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own "satisfaction" for imposing restrains on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all its content through this process and the Courts would cease to be guardians of the nation's liberties. It is therefore impossible to construe the relevant provision in the Defence of Pakistan Ordinance in the manner adopted by the Judicial Committee in the case of Sibnath Banerj1 for interpreting the somewhat similar provision in the Defence of India Act and Rules. Clause (x) of subsection (2) of section 3 must be construed as providing the specific guidelines which control any rules as to apprehension and detention that are to be made under the power given by subsection (1) of section 3." The Supreme Court has, therefore, summed up the true legal position as under :‑ On that view, it is clear that "satisfaction" of the detaining authority acting under rule 32 (Defence of Pakistan Rules) must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction. The powers of an authority acting under rule 32 is therefore no more immune to judicial review than is the power of a police officer acting under rule

204. With reference to rule 129 of the Defence of India Rules (corresponding to our rule 204), the Judicial Committee felt no hesitation in finding that there was an onus upon a police officer to satisfy the Court that he bad reasonable grounds for his suspicion. Suspicion would include belief or knowledge, whether inferential or actual. On the same reasoning, it must follow that actions by other and perhaps hi5hyr authorities, under rule 32, like all other actions relatable to the power delineated iii clause (x) aforesaid, are equally susceptible of judicial review, subject, of course to the right of the State to claim privilege in respect of secret informa tion and the Court's power to hold proceedings in camera."

14. This is the law declared by the Supreme Court and is binding on all other Courts in Pakistan. Faced with this situation the learned counsel for the respondents did not and could not argue before us that it is not permissible for this Court to consider whether the executive authority was really satisfied upon the question that the order of detention be made. To this extent it is a justiciable issue and the Court is not precluded from examining it. The matter no longer rests finally with the subjective satisfaction of the authority.

15. The question, therefore, is how best to convince this Court as to whether in the instant case "justification existed for the satisfaction expressed" by the detaining authority in his impugned order passed for the detention of Mr. Tamman ? But instead of leading any direct evidence on this issue, so vital for a correct decision of the case, the respondents have claimed absolute privilege under section 123 of the Evidence Act. This was the main plank in the arguments addressed to us on behalf of the respondents. Section 123 of the Evidence Act provides that no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the officer at the head of the department concerned who shall give or withhold such permission as he thinks fit. On the face of it, this section constitutes a very serious departure from the ordinary rules of evidence, inasmuch as a material and relevant document is allowed to be withheld from the Court. It is on grounds of public policy that informa tion relating to the affairs of State contained in unpublished official record is protected from disclosure except with they permission of the head of the department concerned. Under the section two questions are involved ; firstly whether the document in respect of which the privilege is claimed is one relating to the affairs of the State and secondly whether the disclosure of the contents of the document would be against public interest. As the section itself indicates, the head of the department concerned I is to be the Judge for the second question and the expediency of withholding the document from evidence. This section does not say as to who is to decide the preliminary question ; whether the document is such which relates to any affair of the State ? Under section 162 of the Evidence Act, a person summoned to produce a document is bound to bring it to Court notwith standing any objection that he may have to its production and admissibility. The validity of the objection has got to be decided by the Court. It is further provided in the same section that the Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. By necessary intendment, the Court is debarred from inspecting a document which refers to matters ref the State for the purpose of determining this objection. But although the inspection of such a document is prohibited, the Court may under section 162, take "other evidence to enable it to determine its admissibility" after the privilege was claimed. The Judicial Committee in the leading case of Robinson v. South State of Australia (A I R 1931 A C 254) held that the Court has always in reserve the powers to enquire into the nature of a document and to require some indication of the nature of the injury to the State which would flow from its production. The Privy Council observed "The privilege is a narrow one, some sparingly to be exercised Its foundation is that the information cannot be disclosed without injury to the public interest and not that documents are confidential or official, which alone is no reason for their non‑production."

16. The position that emerges by reading sections 123 and 162 of the Evidence Act together is that when a public officer is summoned to produce a document in respect of which he desires to claim a privilege he is bound to appear before the 6 Court notwithstanding any objection that he may have as to its admissibility. It is then for the Court to decide as to whether the document in question relates to any affair of the State. Once the C Court holds that the document is of the kind in regard to which privilege can be claimed, that it is an unpublished official record relating to any affairs of the State, the question whether disclosure of the contents would be against public interest and whether privilege should be claimed for it or not is entirely within the discretion of the head of the department. If, on the other hand, the Court were to hold that it does not relate to any matter of State there is no privilege of any kind. In Ghulam Ali v. Abdul Hafiz (P L D 1962 Lah. 765) this Court in examining the true scope of section 123, has held that the question whether production of document would be injurious to public interest, can best be determined by the head of the department having custody of document than by the Court. In this connection a learned Judge of this Court in Crown v. Abdul Ghani (P L D 1955 Lah. 39) has held that the expression "affairs of State" in section 123 of the Evidence Act covers only such affairs of State whose disclosure or divulgence would be likely to seriously injure or jeopardise some important interest of the State. Similarly in a Full Bench case from the Indian jurisdiction, in Governor‑General‑in‑Council v. H. Pir Muhammad Khuda Bakhsh and others (A I R 1950 E Pb. 228) it was held that the expression "affairs of State" may be defined as matters of public nature in which the State is concerned and the disclosure of which will be prejudicial to the public interest and injurious to national defence or detrimental to the good diplomatic relations. It was further remarked that the Court can hold an enquiry into the validity of an objection on the ground that the document relates to the affairs of State. It is nevertheless true that once the Court comes to the conclusion that the document relates to affairs of State the decision of the head of the department to give or withhold permission to its production must be accepted as final. It is not any and every unpublished official document for which privilege can be claimed under section 123 of the Act. The test for the purpose was laid down by Viscond Simon L. C. in Duncan v. Cammell Laird & Company (1942 A C 624) when he observed :‑ "The principle to be applied in every case is that the documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. This test may be found to be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which on the ground of public interest, must as a class be withheld from production."

17. Now let us apply these principles to the facts of the present case. On behalf of the respondents Mr. S. A. M. Khan C. S. P., Additional Chief Secretary, Government of West Pakistan, Lahore had filed a sworn affidavit dated 14th July 1967, claiming the privilege under section 123, Evidence Act. He has affirmed that he has., personally applied his mind to the various documents, which are unpublished official records relating to the affairs of the State in his possession, on the basis of which the Governor of West Pakistan passed the detention order in this case. He has further affirmed that he was satisfied that the disclosure of these documents or their contents would cause injury to the public interest. According to him these documents contain "some reports, enquiries and conclusions of the law and order maintaining agency of the Government of West Pakistan vis‑a‑vis the prejudicial activities of the detenu and their disclosure or the disclosure of any of its contents could expose the secret mechanics, ways and methods in which the State Government agency functions and operates with a view to maintaining public law and order in the Province." He has also added that "for the proper functioning of the State law and order maintaining agency it is essential that its ways and methods be kept secret in the public interest". Mr. Khan has also appeared as a witness in this case to once again claim the privilege in respect of all the documents con tained in the relevant file, pertaining to the detenu, brought by him to Court. He has deposed that the documents in the file pertain to the affairs of the State and their production in Court would be prejudicial to the security of the State. In cross‑examination in answer to a question as to the nature and character of these documents, the witness deposed that these are comprised of a lengthy report submitted by the Superintendent of Police, Campbellpur, and the three reports by the S. H. O. attached to it.

18. Unfortunately in this case, before us the learned Additional Chief Secretary has claimed the privilege at random with respect to the whole file generally, without specifying each of the relevant documents in his custody. In this respect it may be mentioned that in the previous writ petition between the parties, Begum Sardar Muhammad Hayat v. The Government of West Pakistan (W. P. No. 213 of 1967, Peshawar Bench) on behalf of the respondents two separate affidavits one by Mr. Tarik Jaffery, C. S. P., Deputy Commissioner and the other by Mr. Salah‑ud‑Din Qureshi, Inspector‑General of Police, West Pakistan, were filed claiming the privilege under section 123 of the Evidence Act, in respect of the specific documents enumerated below:‑ (i) Complaints received from various respectable citizens against the detenu, (ii) The enquiry conducted by S. H. O., Tamman in regard to these complaints, (iii) Confidential note book of Police Station, Tamman containing relevant entries, (iv) Reports of S. H. O., D. S. P., Talagang and Superin tendent of Police, Campbellpur. But in the present case the privilege has been claimed generally with respect to the entire office file. 1n the course of his tes timony Mr. Khan deposed that he had received a letter from the Deputy Commissioner, Campbellpur, along with the two sets of enclosures. One of the enclosures contained a detailed report from the S. P., Campbellpur. To this were enclosed the three further reports from the S. H. O., Police Station, Talagang. After having gone through these documents the Additional Chief Secretary formed the opinion that it was a fit case in which the detention order ought to be passed against the detenu. In his cross‑examination the witness admitted that he had gone through these four documents only in claiming the privilege and no other document on the file was brought to his notice for this purpose. It is to be deplored that without knowing the contents of the remaining documents on the file and without even applying his mind to them the learned Additional Chief Secretary should have ventured to claim privilege in respect of the whole file. In Chandra Dhar Tewari and others v. Deputy Commissioner, Lucknow (A I R 1939 Oudh 65) the Court held that it is not proper for the authority claiming the privilege without considering particular papers and then coming to a decision whether privilege should or should not be claimed. Similarly in Mohan Singh Bath and others v. Emperor (A I R 1940 Lab. 217) the Court observed that the law requires that before privilege is claimed the head of the department concerned should have the document iii front of him, should give his attention to the matter and should weigh carefully whether the privilege should be claimed or not do this connection the Court drawing the attention of the respective heads of the departments observed: ‑ "I would therefore like to draw the attention of the Inspector‑General of Police and other heads of the departments to the matter should it arise again that the law requires that before privilege is claimed the head of the department should have the document in front of him, should give his attention to the matter, should weigh carefully whether the privilege should or should not be claimed and unless he is satisfied that the affairs of State are concerned he should not claim privilege for a document or withhold from a Court the means of judging whether a particular witness's statement is true or not true. It is true that the head of a department has an absolute privilege on the point, it is for him to decide whether the matter is one in which privilege should be claimed or should not be claimed, but as pointed out by their Lordships of the Privy Council, it would be good to follow the practice of the English law, namely that some indication should be given to the Court as to why privilege is claimed or what affairs of State are involved in the matter. Without such indication, there is always a danger that the Court may draw an adverse inference from the non‑production of the document."

19. Before concluding the discussion on this part of the ‑case, we are left to deal with the objection raised on behalf of the petitioner that in this case the privilege was not competently claimed by the Additional Chief Secretary to the Government of West Pakistan. Under section 123 of the Evidence Act no one is permitted to give any evidence derived from unpublished official records relating to any affair of State, except with the permission of "the officer at the head of the department concerned". The precise objection raised is that this case relates to the Home Department of which the Home Secretary to the Government of West Pakistan is the permanent head entitled to claim the privilege and the Additional Chief Secretary has no powers in the matter. In his evidence Mr. S. A. M. Khan, the Additional Chief Secretary admitted that the present case pertains to the Home Department of the Government of West Pakistan for which the Home Secretary and the Chief Secretary are the heads of the Department. According to him the functions and duties of the Additional Chief Secretary are the same as those of the Chief Secretary. The jurisdiction of the Chief Secretary and the Additional Chief Secretary is concurrent but between them there is a working arrangement for the allocation of their business. The witness also admitted that normally these affairs are entrusted to the Home Secretary but in his absence, the Chief Secretary had asked him to handle this case and that was how he came into the picture. Under rule 2 (vi) of the West Pakistan Government Rules of Business, 1962 the "Chief Secretary" includes the Additional Chief Secretary as well. Rule 6 of these Rules provides that the Chief Secretary shall (a) be the Chief adviser to the Government in administrative matters and (b) be the official head of the secretariat. Rule 14 specifically enjoins upon the. Home Secretary to keep the Chief Secretary generally informed of all matters affecting public tranquility. He shall, in particular, submit to the Governor, through the Chief Secretary, all cases likely to have major political repurcussion. From the above it follows that the Chief Secretary as well as the Additional Chief Secretary are considered to be the head of the Secretariat, and the Home Secretary is also responsible to them. Moreover, in the absence of the Home Secretary this case was entrusted to the Additional Chief Secretary. By virtue of this transfer of the case to him it was placed under his direct charge and he thereby assumed the position of the officer as head of the depart ment concerned for the purposes of this case. The file of the case remained in his custody and charge and he produced it in the Court at the time of his evidence.

20. In L M. Lall v. Secretary of State (A I R 1944 Lah. 209) the docu ments in question related to an enquiry against a member of the Indian Civil Service and the privilege was claimed in respect of the two sets of documents. So far as the documents with the Punjab Government' were concerned these were in the actual custody of the Chief Secretary, Mr. Bourne, who had put in an affidavit claiming the privilege. The other documents in the custody of the Government of India were in charge of the Secretary Home Department Mr. E. Conran Smith, who had put in an affidavit showing that the documents were in his possession. In these circumstances it was urged by Mr. Lah that the words "heads of the departments concerned, in, section 123, Evidence Act, were applicable to the Ministers in the case of the Provincial Government and to the Members of the Viceroy's Executive Council so far as the Central Government was concerned and not to any of the Secretaries. The Court, in repelling that contention observed that in England permanent, heads of departments are placed on the same footing as the Ministers in respect of affidavit relating to production of document and no legitimate exception could, therefore, be taken that the: affidavits produced in the case were sworn by the Chief Secretary, Punjab Government and not by the Minister or Member of the Executive Council. Similarly in the Full Bench case of the Governor‑General‑in‑Council v. H. Pir Muhammad Khuda Bakhsh. and others the Court held that ordinarily, the head of the depart ment will mean the officer who is in control of the department and, in whose custody records of that department remain. In Miss Rajuh Rao Ji Bhai Shaw v. Provincial Government of C. E. and Barar (A I R 1951 Nag. 212). the Court has gone even so far as to hold that the Provincial. Government, where it is a party, has to decide whether it should claim privilege in respect of documents of which inspection or production is sought and that it can authorise any of its officers to swear an affidavit on its behalf. It is only when the Provincial. Government is not a party that the contention may be raised that the privilege should be claimed by the head of the department concerned. For these reasons we find no force in: this objection raised by the learned counsel for the petitioner. To sum up the above discussion we are constrained to uphold the privilege claimed on behalf of the respondents. But this shall extend only to the report submitted by the S. P., Campbell pur, and the three reports of the S H. O. Police Station, Talagang enclosed therewith, specified by the Additional Chief Secretary during the course of his evidence. Subject to this it G cannot be extended to the whole of the file at random without consideration of the particular documents contained in it.

21. We now turn to the main question about the merits of the objections raised in the writ petition against the validity of the detention order dated 23‑6‑1967, passed by the Governor. In view of the change in the position of the law, as propounded by the Supreme Court of Pakistan in Ghulam Jillani v. Government of West Pakistan discussed above, the conclusion that appears unavoidable is that to gain protection for the action taken by the detaining authority, the existence of reasonable grounds is essential and a mere declaration of satisfaction is not b sufficient". Under the relevant rule 32 of the Defence of Pakistan Rules, in the words of the Supreme Court". "For the making of an order of a detention of any person, it is necessary that the detaining authority should be satisfied in relation to such person, that it is necessary to make such an order for the purpose of preventing him from acting in a prejudicial manner, e.g., acting so as to disturb the public order. There must be in the mind of the detaining authority a belief that the person in question is either about to act or is likely to act in the aforesaid manner, only so can the word "satisfied" be construed. Preventive action is called for only by imminent and real necessity, under this rule. It goes without saying that it is the "satisfaction" of the detaining authority that matters in such a case. No one else‑not even the Court, is permitted to substitute its own satisfaction for that of the authority constituted under the law to take the decision. Nor does this Court within the scope of its powers of judicial review sit in appeal over the decision by the authority. Within the limited scope of its powers this Court is often called upon to intervene in the matter if the authority appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction vested in it by law or to have acted in the exercise of its jurisdiction illegally and with material irregularity. The superior Courts in this country have never hesitated to interfere in case it is found that the exercise of the jurisdiction by the authority was colourable and in abuse of the power conferred on it under the law.

22. Before us, however, a feeble attempt was made on behalf of the respondents to distinguish this case from Ghulam Jillani's case before the Supreme Court. For this reliance was placed on the following observation by the Supreme Court on page 393 of the report Malik Ghulam Jillani v. Government of West Pakistan, in that case:‑ "On the same reasoning, it must follow that actions by other and perhaps higher authorities, under rule 32, like all other actions relatable to the power delineated in clause (x) aforesaid, are equally susceptible of judicial review, subject, of course to the right of the State to claim privilege in respect of secret information and the Court's power to hold proceedings in camera. Indeed, once the authorities have placed before the Court oral evidence and other material, whose purpose is to justify an action of arrest and detention, judicial review by the Court has already been attracted and the Court cannot, but be influenced in its decision by that evidence." But certainly these learned observations cannot possibly be construed‑or shall we say misconstrued, to mean that if the Government for reasons best known to it has chosen to withhold the evidence and claimed privilege, the Court is rendered helpless. Far from it, the duty still devolves upon the Court to pronounce its judgment on the basis of the facts and circumst ances of the case on the material placed before it‑although the task before it was made immeasurably difficult in the absence of the direct evidence withheld from it. In this connection no hard and fast rules can be laid and each case has got to be decided in the light of its own facts.

23. In the absence of the direct evidence in the case, the arguments addressed to us on behalf of the parties have entered upon an interesting phase. According to the learned counsel for the petitioner, in accordance with the illustration (g) to section 114 of the Evidence Act, all legitimate presumptions must be drawn against the Government who has done its befit to withhold all the available evidence from this Court. On the contrary not only the learned Advocate‑General has repelled this contention; he has pressed us to raise a presumption, under illustration (e) of the same section, that in this case the detaining authority had regularly performed the official acts in passing the detention order against Mr. Tamman.

24. But we find no force in this contention raised by the learned counsel for the petitioner. The privilege claimed by the respondents under section 123 of the Evidence Act against the production of the reports by the Police officers, has been upheld by this Court. Therefore, it cannot be said that they have wrongfully refused to produce them in Court. In these circum stances, the claim to privilege cannot give rise to any adverse inference against the party. In this connection in W. C. Went worth v. J. C. Lloyd and others (10 H L C 589) the Court observed:‑ I wish to distinguish between the case of suppression of evidence by a witness, and the case where he declines to answer the question on the ground that he is not bound to criminate himself; in which case no presumption of guilt can be fairly drawn from his refusal to answer, or the privilege would be at once destroyed." Similarly in D. Weston v. Peary Mohun Das (23 IC 25) a Full Bench of the Calcutta High Court observed :‑ "On this point of privilege, another matter must be noted ; when a document is in fact privileged no adverse inference can be drawn from its non‑production, for to allow this would be in fact to destroy his privilege. This rule applies as regards the party claiming privilege."

25. Phipson on Evidence page 203 (Ninth Edition) has observed that no adverse presumption is to be drawn from the non‑waiver of the privilege. Similarly according to Powell on Evidence, page 410 (Ninth Edition) where a party refused to allow his farmer solicitor to give evidence on matters connected with the professional relation, no adverse presumption can be drawn against him. For this opinion expressed by the two learned authors reliance has been placed on the case of Wentworth v. Lloyd. Similarly Woodroffe and Ameer Ali on Law of Evidence, Volume 4, page 2262 (11th Edition), have observed that when a document is in fact privileged no adverse inference can be drawn from its non‑production, for to allow this would be in fact to destroy the privilege and that this rule also applies as regards the party claiming privilege. Similarly in Principle and Digest of the Law of Evidence by Monir, Volume II, page 809, it is mentioned that there is no adverse inference from a refusal to give evidence derived from unpublished official documents relating to any affairs of State. The two learned authors from the Indo‑Pak sub‑continent have relied on Weston v. Pearey Mohan Das discussed above.

26. But a contrary view was taken by a Division Bench of the Lahore High Court in Mohan Singh Bath and others v. Emperor. The Court observed that while it is entirely for the head of the department to claim privilege for a document and the Court is bound to allow the claim if made, it does not follow from this that the Court is not entitled according to the circumstances of each particular case to draw an inference adverse to the party claiming the privilege. The Court further observed:‑ "In this connection the learned counsel for the Crown drew our attention to Weston v. Peary Mohan Das 23 I C 25 a Full Bench decision of the Calcutta High Court. The privilege there claimed however was under section 125 and it was further pointed out that it was not a party to the case that was claiming privilege but the Crown which was not a party to the case and therefore that no adverse inference could or should be drawn against the party who had nothing to do with the question of the claim of privilege. That case therefore does not help at all in deciding this question in the present case where privilege is claimed under a different section and where the considerations influencing the matter are entirely different to the considerations arising under section

125. It is obvious that section 125 is intended to cover the source of information received by a certain department, and it is equally obvious that to disclose the names or to disclose the machinery by which certain information is acquired by Government might be highly prejudicial to the State at large. Under section 123, it is only when the document deals with affairs of State that privilege can be rightfully claimed under the section." But with due deference to the learned Judges of the Lahore High Court this distinction appears to us to be without any difference. It does not even exist if one is to carefully examine the ratio of the Full Bench case in Weston v. Peary Mohan Das.

27. Now coming to the counter argument advanced by the learned Advocate‑General according to section 114, illustration (e) of the Evidence Act, the Court may presume that judicial and official acts have been regularly performed. In preventive detention cases the law appears to be well settled now that the initial onus is thrown on the State to justify the detention order, and the State may seek to do so by production of the order of detention and if the performance of the condition precedent, namely, the satisfaction of the Governor can be presumed, the initial onus is discharged and the burden would then lie on the detenu, to show' that the Governor was not, in fact, satisfied. Depending upon the circumstances of each case the Court can under section 114 (e), Evidence Act, make a presumption as to the satisfaction of the g Governor from the terms of the order itself when the order, on the face of it, is regular and unobjectionable in any way. In this connection in Emperor v. Sibnath Banerjee and others (A I R 1943 F C 75) Spens, C. J. observed as under:‑ "It is quite a different thing to question the accuracy of recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of 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 datenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. These classic remarks of the learned C. J of the Federal Court were quoted with approval by the Privy Council on appeal from the same case in Emporer v. Sibnath Banerji and others (A I R 1945 F C 156) In Muhammad Hyat v. Crown (P L D 1951 F C 15) the Court observed that 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. The learned counsel for the petitioner has strongly relied on certain obser vations made by the Supreme Court of Pakistan in this connection is the case of Malik Ghulam Jilani v. The Government of West Pakistan. The Supreme Court has reproduced the following remarks from the judgment of the Privy Council in Vimlabai Deshpande (A I R 1946 PC 12 = LR 73 IA 144): "In their Lordships' opinion, therefore, the High Court was right in holding that the burden lay on the police officer to satisfy the Court that his suspicions were reasonable and it is plain that on the evidence he had not discharged that burden." And commenting on this the Supreme Court has observed that the Judicial Committee felt no hesitation in finding that there was an onus upon the police officer to satisfy that he had reasonable grounds for his suspicion. But from these learned observations by the Supreme Court it cannot be inferred that the view of the law in Sibnath Banerji's case in this respect as well was overruled by it. At the very outset the initial onus lies on the detaining authority to show that he was in fact satisfied about the necessity of the detention of the detenu before he passed the order. This indeed is a condition precedent before the authority can invoke his powers in this respect. But depending upon the circumstances of a particular case the onus may even shift where a duly authenticated and a regular order of detention is produced.

28. In the background of these general principles let us now closely examine the challenge against validity of the Impugned order of detention dated 23‑6‑1967, passed by the Governor. This order is reproduced below in extenso :‑ "Whereas the Governor of West Pakistan is satisfied that with a view to preventing Sardar Muhammad Hayat Khan son of Malik Nawab Khan caste Awan resident of village and Police Station Tamman, Tehsil Talagang, District Campbellpur from acting in a manner prejudicial to maintenance of public order and peaceful condition in the District of Campbellpur and elsewhere in the province for the reasons amongst other that :‑ (1) He has been exciting hatred, contempt and disaffection towards the Government of West Pakistan established by law. (2) He has been causing fear and alarm to the public maliciously propagating that the present day Government is inefficient not being able to supply food to the people and that the food shortage is created due to smuggling by persons having influence with the Government. (3) He has been creating fear and alarm to the public by harbouring a notorious dacoit and criminal and being in complicity with him, has let loose a reign of terror in the area, it is necessary to order his detention. Now, therefore, the exercise of the power conferred on the Central Government by clause (b) of the sub‑rule (1) of Rule 32 of the Defence of Pakistan Rules, 1965, as entrusted to the Provincial Government: under the Government of Pakistan Cabinet Secretariat Cabinet Division's order published with in Notification No. SRO III(R)/65 dated the 6th September 1965 the Governor of West Pakistan is pleased to direct that the said Sardar Muhammad Hayat Khan son of Malik Nawab Khan shall be arrested and committed to the custody of Superintendent Central Prison, Peshawar, for detention for a period of 2 months from the date of arrest. Before us no objection was raised in the arguments against the mode of authentication of this order. On the face of it this order purports to show that the Governor was satisfied with the necessity for passing the order against the detenu.

29. In this case the petitioner has failed to lead any evidence at all. But the circumstances and the background of this whole affair does arouse genuine suspicions about the impugned order.

30. The detenu was a responsible Minister in the province. All of a sudden on 13‑5‑1967, in the morning, the police is said to have raided the premises at 5‑B Model Town, Lahore, in which the detenu was living with his family. According to the averments in the written statement, S. I. Muhammad Afzal of Campbellpur, District Police had gone there to serve the "parwana talbi" issued under section 160, Cr. P. C. in case F. I. R. No. 24, dated 11‑5‑1967, under section 364/302, P. P. C.,. Police Station Talagang. He took along with him the Deputy Superintendent Police, Lahore, to assist him in his mission. The detenu was taken in his private car to Talagang followed by the police van.

31. Section 160, Cr. P. C. lays down that any police officer making an investigation under Chapter XIV may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who appears to be acquainted with the circumstances of the case: and such person shall attend as so required. It is extremely doubtful that under the order of the S. H. O. Talagang, as is alleged, the detenu could have been made to, travel from Lahore to Talagang under the virtual custody of the police.

32. Be that as it may, at Talagang the detenu was interrogated for about 3/4 hours in connection with the case F. I. R. No. 24, dated 11‑5‑1967 registered against him and some others at the Police Station Talagang under section 364/302, P. P. C. for the alleged murder of Muhammad Khan, proclaimed offender. This led to his arrest by the police at 5‑30 p.m. in the case on the allegations which up to this date have remained too general and vague. And when on 24‑5‑1967, his application for bail came up for hearing before the High Court Peshawar Bench, the prosecution had to admit that the police was not able to lay their hand on the dead body of Muhammad Khan. The learned Advocate‑General appearing for the State was also constrained to admit that the police was not in possession of any incriminating evidence against the accused. The High Court, therefore, felt no hesitation in granting bail to them on 24‑5‑1967.

33. But before the accused could be actually released, the Deputy Commissioner, Campbellpur, on 24‑5‑1967, passed the order under rule 32 of the Defence of Pakistan Rules for the detention of Sardar Muhammad Hayat Khan for a period of three months with a view to preventing him from acting in a manner prejudicial to the public safety, the maintenance of public order and the maintenance of peaceful conditions in the District of Campbellpur. Beyond this the order did not give any grounds for his detention The petitioner had to challenge the validity of this order by Writ Petition No. 213 of 1967 Begum Sardar Muhammad Hayat Khan v. The Government of West Pakistan and another filed in the High Court of West Pakistan Peshawar Bench on 2‑6‑1967. When the writ petition came up for hearing before the Court on 23‑6‑1967, the learned Additional Advocate‑General made a statement in writing, reproduced above, admitting that the detention order dated 24‑5‑1967, passed by the learned Deputy Commissioner did not conform to the requirements of the law. This was, of course without prejudice to the right of the government to pass any fresh order of detention against the detenu. Accordingly on 23‑6‑1967, the High Court ordered his release.

34. But once again the move to secure the release of the detenu was thwarted. This time, it was on account of the impugned order passed by the Governor on 23‑6‑1967. From the statement of Mr. S. A. M. Khan, C. S. P., Additional Chief Secretary, recorded by us, it appears that on 22‑6‑1967 at about 8 p.m., the Chief Secretary had contacted him on telephone to inform him that he would be receiving an important letter from the Deputy Commissioner to be forwarded to the Governor who would keep awake in the Government House waiting for it. At about 10 p.m. he received the much awaited letter from the Deputy Commissioner. From the enclosures to this letter the witness was satisfied that it was a fit case in which the detention of Mr. Tamman should be ordered. The Provincial Law Secretary who was with him at the time was also of the same opinion. Accordingly they forwarded the file to the Governor who passed the necessary order late in the night. The Additional Chief Secretary issued the formal order of the detention of Mr. Tamman on 23‑6‑1967 at 12‑30 to 1 a.m. as authenticated by him. Mr. S. A. M. Khan has admitted in his cross‑examination that he did not bring it to the notice of the Governor while for warding the file to him on 22‑6‑1967, that at the time the case against Mr. Tamman was sub judice before the Peshawar Bench. This was by no means an innocuous omission on his part.

35. In these circumstances one may well ask was the conduct of the detenu so greatly dangerous that a moment's release for him under the two successive orders passed by the High Court was going to prejudicially affect the safety of the State and public order in the District of Campbellpur? Was the matter so imminent that the government took this extra precaution to pass the impugned order at the dead of the night ? We have pondered over these questions and the irresistible answer is in the negative. At least no circumstance has been disclosed to us to arrive at a contrary conclusion. This in its turn compells us to believe that the detention order was made on other consideration not relevant under rule 32 of the Defence of Pakistan Rules.

36. Strictly speaking there is nothing unconstitutional in passing successive orders of detention against a person on the same grounds. It was open to the authority to revoke an N order of detention found to be defective for any reason and substitute it by a fresh order against him (Naranjan Singh v. State of Punjab (A I R 1952 S C 106)). In Basant Chandra v. Emperor (AIR 1945 F C 18) the Federal Court has laid down two propositions: Firstly, that where an earlier order of detention is defective merely on formal grounds, there is nothing to preclude a proper order of detention being passed on the same grounds afterward. And secondly that if at any time before the Court directs the release of the detenu a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. At the same time in the Government of East Pakistan v. Mss. Rowshan Bijaya Shaukat All Khan (P L D 1966 S C 286) their Lordships of the Supreme Court of Pakistan have held that if the previous illegal detention is continued by a subsequent order, the detention continues to be illegal. There is a distinction between a fresh order of detention and one extending a period of a previous illegal detention order. At any rate it is not open to any State to play with the life and liberty of its citizens and the State must, therefore, exercise due care and attention in these matters lest it may be accused of bad faith on account of the hasty and ill‑advised successive orders passed by it.

37. According to the impugned order, the reasons for the preventive detention of Sardar Mohammad Hayat Khan, "among" others", are :‑ (i) That he has been exciting feelings of hatred, contempt and disaffection among the people against the Government. (ii) That he has caused alarm to the public by accusing the Government for inefficiency in supplying the food to the people and for the food shortage caused on account of the smuggling by persons having influence with the Government. (iii) That he has been creating fear and alarm to the public by harbouring a notorious dacoit and criminal in complicity with him and has let loose a reign of terror. These allegations are altogether vague and too general. No further particulars have been divulged. Even in the written statement filed in this Court there are no better particulars. There is no disclosure about the time, place or other prominent features of any of the occurrences and the incidents used against the detenu. So that he has been left in the dark altogether. Beyond these too general and stereotyped allegations, he does not know anything about the precise case he is required to meet before us. What are the "other" reasons on the basis of which the detenu is made to suffer this detention, nobody even knows. It is even doubtful if the detaining authority was also fully aware about them. By reason of this conduct of the case at the hands of the respondents, the petitioner is placed at a great disadvantage and handicap.

38. These activities of which the detenu is accused are allegedly confined to his home district of Campbellpur. The petitioner has pointed out that after the detenu resigned from the Ministry (during September 1966) he had settled down in Model Town, Lahore. He was taken to Talagong in police custody on 13‑5‑1967 and ever since he has remained under detention. So that he had no opportunity to indulge in any of the objectionable activities in the District of Campbellpur. As regards the first ground taken against the detenu in the impugned order of his detention, the petitioner has specifically challenged it in para. 9(i) of her writ petition. She has inter alia, alleged "The so‑called grounds mentioned in the order are absolutely vague and frivolous ; The detenu after his resignation from the Ministership never made any public speech or attended any public meeting or gave any press statement wherefrom it could be legitimately inferred that he has been exciting, hatred, contempt and disaffection towards the Government of West Pakistan as alleged in the detention order." The respondents have replied to this in the corresponding para. of their written statement as under :‑ "The grounds mentioned in the detention order are precise, definite, proper and based on cogent materials. While it may be true, which, however, is not admitted, that the detenu after his resignation as a Minister never made any public speech or attended any public meeting or gave any Press Statement, yet his activities were highly prejudicial as fully described in the detention order and for the purpose of achieving which end the detenu had resorted to a secret nature and which modus operandi was subsequently unearthed by the efforts of the law and order maintaining agency of the Government of West Pakistan. Similarly about the second ground of detention, the petitioner has, inter alia, alleged in para. 9(ii) of the writ petition : '' As every citizen of the country is aware that the food shortage occurred in the month of October or November 1966. Had there been any semblance of truth in this wild and false allegation, the respondents must have taken action much earlier than 23‑6‑1967. Again, as already stated above the detenu never made any public speech or attended any public meeting of any of the political parties of the country or issued any press statement to the effect that the present day Government is inefficient not being able to supply food to the people." To this, reply by the respondents in the corresponding para. of the written statement is :‑ "Whatever has been stated in ground No. 2 of the detention order is true and correct. The food shortage in the country continues even to day and any allegations contrary to this fact in the grounds mentioned by the detenu are incorrect and denied. As stated earlier the detenu hack resorted to a modus operandi of a secretive character which could only be unearthed at subsequent stage and it was for this reason he could not be arrested earlier. The allegations of non‑participation in public meetings and non‑making of any public speeches by the detenu have been answered earlier while dealing with Ground No.

1. It is denied that any grounds have been fabricated against the detenu or that they are bogus. It is also denied that the action of the detenu's detention is malacious or with an ulterior motive or was designed to frustrate, as alleged, the reliefs secured earlier by the detenu." It has not been specifically denied by the respondents that after his resignation as a Minister, the detenu did not make any public speech or attend any public meeting or gave any press statement to incite the people against the Government. According to the respondents he had indulged in secret activities to subvert the Government and this was discovered only afterwards. To fix the period for which the detenu is said to have acted in the objectionable manner, Mr. S. A. M. Khan, Additional Chief Secretary, in his cross‑examination deposed :‑ "The reports covered a long period of the activities about the detenu but cannot specify this period now. But the most important and relevant facts concerning Mr. Tamman related to his activities during the preceding 5/6 months. I cannot say if any of those reports covered the period prior to January 1967. 1 would not like to refer the file in order to fix the exact period about which these reports had been made." There could be nothing secret about fixing the "exact period" over which the detenu had acted in the objectionable manner. No affair of the State would have suffered by this disclosure. We are, therefore, driven to the conclusion that this demeanour on the part of the witness was evasive in keeping with the general pattern of the defence set up in this case before us. It is, therefore, permissible for us to raise the legal presumption under section 114 (h), Evidence Act, for the refusal of the witness to answer the questions.

39. We are of the opinion, that quite apart from the permissible privilege allowed to the respondents, they have also withheld the other remaining evidence in their possession and power. The privilege allowed to the respondents was confined to the detailed report received from the S. P., Campbellpur and the three reports of the S. H. O., Talagang enclosed therewith. Under the circumstances no one was permitted to give any evidence derived from these records. But even without disclosing the contents of these documents the S. H. O., Talagang, the S. P., Campbellpur were the best competent witnesses in the case who could have deposed about the activities of the detenu. From the evidence it appears that even the Deputy Inspector‑General of Police and the Inspector‑General of Police were in Talagang when Mr. Tamman was first arrested on 13‑5‑1967 after interrogation. They could have thrown a good deal of light on the prevailing situation in the District. But the respondents have felt content with the plea of the privilege raised by them. In fact the learned Additional Advocate -General during the course of his arguments was definite that he would not lead any evidence in case the privilege claimed by `him was upheld. We are, therefore, of the opinion that the respondents have deliberately failed to lead the remaining evidence in their possession and power. In these circumstances, this Court is justified in raising the presumption against the respondents that this evidence if produced would not have been helpful to them.

40. Last but not the least, in this case the detention order was passed by the Governor on the basis of his own satisfaction from the material placed before him. To prove this, the respondents have produced Mr. S. A. M. Khan, Additional Chief Secretary, as a witness in the case. They have also is produced a sworn affidavit from him in support of their case. But the Opinion of the witness, that the Governor had fully satisfied himself that this was a fit case for the detention o Mr. Tamman, is inadmissible in evidence. Even otherwise his is a hearsay evidence.

41. The petitioner has pointed out to these suspicious circumstances; and this Court can legitimately refuse to draw any presumption in favour of the validity of the detention order in this case, as observed in Muhammad Hayat v. Crown discussed above. For the reasons discussed above I find that the respondents have altogether failed to establish that the detaining authority was in fact satisfied about the necessity of detaining Mr. Tamman with a view to prevent him in acting in a manner prejudicial to the State. There are no reasonable grounds disclosed before us to arrive at a conclusion in favour of the respondents. Accordingly I find that detention order dated 23‑6‑1967, is against law and without lawful authority and direct the detenu to be released forthwith if not wanted in any other case. This petition is, therefore, accepted with costs. KARAM ELAHEE CHAUHAN, J.‑

I have gone through the elabo rate and able judgment proposed to be delivered by my learned brother Muhammad Akram, J., with whom I fully and respectfully agree. However, in view of the circumstances of the present case,. I want to add a few words of my own. The broad facts of the case are that on the 11th of May 1967, at 8 p.m., a first information report No. 24 was registered at Police Station Talagang, District Campbellpur, at the instance of one Mst. Nur Bibi (hereinafter called the complainant) against six persons whose names are (i) Sardar Muhammad Hayat Khan Tamman, (iii) Auliya Khan, (iii) Amir Muhammad Khan, (iv) Malik Muhammad Altaf, (v) Malik Salim Iqbal and (vi) Shah Faiz (hereinafter called the accused under section 302/364, P. P. C.). In the instant case we are concerned only with the person mentioned at No. 1, who will hereinafter be called as a detenu. The case of the complainant was that her husband Muhammad Khan was a proclaimed offender and during his abscondence he developed close intimacy with the; accused who got various serious crimes committed from him. When the Government of the day made efforts to arrest her husband, then the accused started fearing that in case he was arrested he would bring to light the crimes which he had been committing at their instance and the accused will fall in the clutches of law. The accused, the report went on to say, in conspiracy have consequently murdered Muhammad Khan and, therefore, action may be taken against them. In connection with this case, the written statement of the respondents states, that the Station House Officer, Talagang, issued a "parwana talbi" under section 160, Cr. P. C. to the detenu requiring his attend ance. This section reads as follows:‑ "

160. Police Officer's power to require attendance of witnesses--‑Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required." The points which are noticeable in this section are that (i) it authorises only the officer making the investigation under Chapter XIV of the Cr. P. C. to issue an order; (ii) which should be in writing; (iii) to require attendance of any person who is within the limits of his own station; or (iv) any adjoining station. The other thing to be noticed is that the order con templated in this section is the order addressed to the person whose presence is required. An order given to a subordinate officer to produce a person before the sub‑Inspector is not an order contemplated by the section, disobedience of which could be made punishable under section 174, Penal Code even though the order might be brought to the notice of the person concerned. (See Bhambhia Neghanji and others v. The State of Kuthe (A I R 1954 Kuthe 25). Where an order in writing by the police officer, requiring the attendance of a person is disobeyed, the only course open is to prosecute that person for such disobedience. There is no provision of law empowering the police to compel that person to attend (See Queen v. Behary Singh and others (7 SWR (Cr.) 3CL 2), Emperor v. Ratan Satharan (4 BLR 79) and Empress v. Purshoram (1896 Rat. 850)) . (The two last mentioned cases were not available but their reference is given in Criminal Procedure Code by Chitaley and by Sheikh Shaukat Mahmood). So much so that even a District Magistrate cannot issue a warrant for his arrest and production before the investigating officer (See Queen Empress v. Jogendra Nath Phukraya and others (I L R 24 Cal. 520)) The Courts have gone so far in holding that where a person does not attend, the police officer cannot himself arrest and detain him in custody. If he does so, he will be liable for an offence of wrongful confinement (See Lakshmigadu and two others (2 Weir's 121)). Anyhow, to advert to the facts of this case, in the light of the above law, it is to be noticed, as written in the written statement of the respondents, "S. I. Muhammad Afzal of Campbellpur District was deputed to serve the "parwana talbi" issued under section 160, Cr. P. C. upon Sardar Muhammad Bayat Khan Tamman at Lahore, which he did in the morning of the 13th of May 1967. He took D. S. P/H. Q. to assist him for the job". The details as to how the house of the detenu was raided, his premises were guarded by the police, his telephone was disconnected and how he was taken to Talagang are controversial and I need not enter into the same, but the broad admitted facts are that followed by a Government jeep with the S. I. and the D. S. P/H. Q., the detenu appeared before the S. H. O., Talagang on the 13th of May 1967. He was there interrogated for 3‑4 hours and ultimately was arrested at 5‑30 p.m. on the same day at the said Police Station for alleged murder of Muhammad Khan aforesaid. This will show that the detenu had been taken into custody (as a punitive arrest) during the course of and in connection with the investigation of the criminal case mentioned above. He had consequently all the rights and privileges which Cr. P. C., gave him in that behalf. He, accordingly, to cut the long story short, on the 14th of May 1967, moved a bail application, which was rejected by the Duty Magistrate, Campbellpur. He approached the Sessions Court, but the case got delayed over there without being finally disposed of, so he moved the High Court for bail on the 22nd of May 1967. A Division Bench of this Court (Peshawar Bench) granted bail to the detenu on the 24th of May 1967, to the satisfaction of the Addl. Registrar, Peshawar. The bond was given on the 25th of May 1967, whereafter the release order was issued. Before, however, of the issuance of the release order, the Deputy Commissioner, Campbellpur, passed an order under rule 32 of the Defence of Pakistan Rules, 1965, for detention of the detenu on the 24th of May 1957, for three months. This was served on the detenu at 19‑50 hours on the 25th of May 1967 by the D. S. P./H. Q. (who had gone from Lahore) at Police Station, Talagang and the detenu was delivered to the custody of S. P., Jail, Campbellpur. On the 2nd of June 1967, Writ. Petition bearing No. 2 (3/67 was moved against the aforesaid detention in the Peshawar Bench of this Court. This petition came up for arguments in the presence of the learned counsel for the petitioner and the learned Addl. Advocate‑General for the State in Peshawar Bench on the 20th, 22nd and 23rd of June 1967. On the last date, the learned Addl. Advocate‑General made a duly signed statement in Court to the effect that the detention order not being in conformity with law, the Deputy Commissioner withdrew the same. Consequently, the Peshawar Bench disposed of the writ petition. However, when the petitioner had just come out of the inner gate of the Peshawar Jail, he was re‑arrested under a fresh order of detention, dated the 23rd of June 1967, which is now impugned in this writ petition.

2. All these events will show that the very issuance of the "parwana talbi" by the S. II. O. Talagang, was illegal because at the time when he issued it, the detenu was not within the bounds of Talagang, but was in his residence, in Model Town, Lahore. Nor was Model Town (Lahore) Police Station adjoining to Talagang Police Station. Similarly, as discussed earlier, the police could not compel the detenu to go to Talagang in pursuance of the aforesaid parwana. The action of the police, in taking the detenu to Talagang, was also illegal and unjust and might amount to a wrongful confinement but I need not go into the same in detail or give any final or considered opinion on it. Anyhow, the detenu was arrested in connection with F. I. R. No. 24 for which again, as admitted before Peshawar Bench there was no incriminating material at all. At this stage, the question that arises for consideration is that could the punitive arrest of the detenu for some past crime be continued or 1 converted into a preventive detention under Rule 32 of the Defence of Pakistan Rules. My answer is in the negative. As deposed to by the Addl. Chief Secretary, the incidents or events, for, which the detenu was detained, pertain to a period of about six months prior to that. On the 13th of May 1957 (which falls within the period of said six months) the authorities had a choice either to arrest him for a past offence and then proceed with his trial or to detain him under the preventive detention Laws. They chose to adopt the former course. After having chosen the former course, they later on could not convert the punitive detention into a preventive detention. This again, on their part, does not speak of their bona fides. The punitive detention having been suspended by the bail order, the authorities could not continue it by taking resort to the preventive detention. The principle which I have laid down has the support of authorities also and reference can be made to a few of them. In Muhammad Abdur Rahman and others v. Hyderabad State (A I R 1950 Hyd. 66) it was held in the head note as follows :‑ "The expression `preventive detention' means that restraint whose object is to prevent probable, and in some cases possible, activity on the part of a person which is deemed prejudicial and which is apprehended froth him on grounds of his past conduct." The distinction between punitive and preventive detention is fundamental, and should not be allowed to be obliterated. Its disregard leads to his constitutional right and other safeguards given to the accused under the Criminal Procedure Code being rendered nugatory and does not serve the object for which this detention is allowed. The two forms of detention cannot be concurrent, and a choice must be made between the two. Hence, where a person is already detained in jail awaiting his trial in respect of certain offences alleged to have been committed by him a warrant issued under section 3 of the Preventive Detention Act would be illegal." In Kamla Kant Azad v. Emperor (A I R 1944 Pat. 354) it was held as follows :‑ It is not open to the executive, once a man has been brought before a Court of law on some specific charge, to substitute for the warrant, under which he is detained in jail awaiting his trial, an order of detention under rule 26, and then to deprive him of his right to clear himself on the charge by entering a nolle prosequi or intimating to the Court that they do not propose to adduce evidence against him. It is very undesirable and indeed quite wrong for an order of detention under Rule 26(l) (b) to be made against him before he has been tried on the charge and his guilt or innocence finally determined. If he is convicted and sentenced, the necessity for any order of detention ceases to exist, at least until he has served out his sentence, by which time conditions may have entirely altered but the passing of an order of detention under Rule 26 (1) (b) shortly before the expiry of the sentence would not be wrong. If, on the other hand, he is acquitted and an order of detention is sought against him, the official on whom the responsibility of making such an order rests, should obtain and study a copy of the judgment before making that order. If he neglects to send for and study a copy of the judgment it may very well be said that he has failed to act with due care and attention in the discharge of that duty. In Vinilabai Deshapande v. Emperor (A I R 1945 Nag. 8) it was held as follows :‑‑ "If a Police officer, for facility of carrying on an investigation unhampered and unrestricted detains an accused person, or a witness supposed to be acquainted with the facts and circumstances of the case, under Rule 129 that would be an abuse of the power conferred under Rule 129." In Maledath Bharathan Malyall v. The Commissioner of Police (A I R 1950 Bom. 202). It was held as follows :‑ "When the detaining authority makes up his mind to detain a person who is alleged to have committed an offence, then, the detaining authority has made his choice at it would not be permissible to him to investigate the offence while still keeping the person under detention and not complying with the provisions of the law with regard to investigation. If the purpose of detaining a person is a collateral purpose i.e., to deprive him of his rights and safeguards under the Criminal Procedure Code and to carry on an investigation without the supervision of the Court, then the detention is mala fide and cannot be justified." In Khalifa Janki Das v. Imperator (A I R 1950 E Pb. 172) it was held as follows :‑ "The executive must not detain a subject in order to punish him for what he has already done but in order to prevent him from doing something which in the opinion of the executive is likely to affect the public safety etc. The Act can only be used for prevention and not for punishing of persons. If the District Magistrate is of the opinion that the detenu had started malicious propaganda and had issued posters, which, according to him, were objectionable from communal point of view, then it is open to him to take action against the detenu under section 153‑A, Penal Code or under section 108, Criminal P. C. The Act is not intended to suspend the ordinary Criminal Tribunals of the land or prevent thetas from exercising their ordinary jurisdiction. In such a case, the action of the executive certainly is dehors the object of section 3 and the detention of the detenu is illegal." In Labaram Deka Barua and another v. The State (A I R 1951 Assam 43) it was held as follows :‑ "When a person is already in detention in pursuance of his being accused of a non‑bailable offence, another order of deten tion under section 3 is not necessary. He is not in a position to act in a manner prejudicial to the maintenance of public order. The detaining authority in these circumstances, cannot feel satisfied that an order of detention is necessary for any of the purposes mentioned in section 3, for, by serving the order of detention on him the situation does not improve at all, the person on whom the order is served being already in confinement. The satisfaction, therefore, of the detaining authority cannot be regarded as real." In the said case Ram Labhaya, J., further held :‑ "The order effectively prevents the detenu from asking for bail in order to defend himself and thus easily exposes itself to the attack that it is beyond the scope of section 3 of the Preventive Detention Act, 1959 (India)

3. The case‑law quoted above leads to the conclusion that if a person is already under a punitive detention then his detention cannot be converted into a preventive detention." Applying the aforesaid principles to the facts and the circumstances of the present case, it is crystal clear that originally the order of preventive detention was passed by the Deputy Commissioner in order to frustrate the bail order granted by this Court. Moreover, at that time that is the 24th of May ) 967, the detenu was already in punitive detention for an offence under section 302/364, P. P. C;. This detention was admitted by the learned Addl. Advocate‑General himself as not being in conformity with law, before the Peshawar Bench on the 23rd of June 1967. Before that statement was made, however, the impugned order had already been passed on the midnight of the 22ni of June 1967, which as laid down in Ghulam Nabi Bhullar v. Crown (P L D 1955 Lah. 61) operated from the time it was passed and not from the date of its communication. The impugned order was, therefore, nothing but an attempt to continue the earlier illegal detentions. As laid down by their Lordships of the Supreme Court in the Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan (P L D 1966 S C 286) that if a previous illegal detention is continued by a subsequent order, the detention continues to be illegal. There is a distinction between a fresh order of detention and one extending a previous illegal order of detention. The facts of the present case suggest that though the order, dated the 2'rd of June 1967, was passed afresh but in fact this was really an attempt to continue the illegal detention already ordered. The Deputy Commissioner bad passed an order of detention for three months on the 24th of May 1967. The fresh order of detention was then passed on the 22nd of June 1967, when a month had already expired. The new order was for the remaining two months and there can be no doubt that it was to continue the earlier detention to its maximum limit. The order was passed during the continuation of the earlier detention without in fact freeing the man or releasing him from the same. Another thing to be noticed is that the impugned order of detention was passed without bringing it to the notice of the Governor the earlier illegal detention or the fact that the matter was already sub judice in the High Court. The Addl. Chief Secretary has admitted that he himself also did not know of these facts. An order which has been passed without taking these important aspects of the case into consideration cannot be said to have been passed after having been reasonably satisfied within the meaning of law after due care and attention.

4. Last but not the least, another factor to be noticed is that the impugned order shows that the detention was being ordered "amongst others" on three reasons mentioned therein. This indicates that there were some other reasons also which were intended to be covered by the words "amongst others". This has not been shown as to what those other reason:, were and not their particulars were given to the detenu. Reading the order as a whole, the inference is inescapable that the order is vague and indefinite. The Court is not in a position to judge as to what those reasons were which were covered by the phrase "amongst others" and how far could they have led to a reasonable satisfaction for passing an order of detention.

5. The result is that the order impugned is hereby quashed and the detenu is directed to be released forthwith unless lawfully needed in some other case the petitioner will get her costs. S. A. H. Petition accepted