P (PLP)

MUHAMMAD MUVIR, C. J.-This is an application under section 491 of the Code of Criminal Procedure by Rafiq Ahmad Shaikh, Joint Secretary of a Committee 'called the Preparatory Committee of the Proposed Pakistan Civil Liberties Conference, alleging that one Abdul L1tif Afghani is being illegally detained in the custody of the Inspector- General of Prisons and praying that he be set at liberty. Afghani was directed to be arrested under subsection (1) of section 3 of the Punjab Public Safety Act, 1949, by Malik Habib Ullah, Superintendent of Police (B), C. I, D., Punjab. He was arrested by Syed Ijaz Hussain, Inspector of Police, C. I. D., on the 9th March 1950 and committed to police custody the same day. A report of the arrest under subsection (2) of section 3 of the Act was sent to the Provincial Government, and it is understood the period of detention has been extended by Government under subsection (4) of section 3 of the Act by six months. The applica tion recites the achievement and services of Afghani and suggests that he has been arrested by the police not because he was going to do some act prejudicial to the public safety or public order but, because .he was actively engaged in the promotion of certain political organisations which are not liked by the Govern ment. It is denied that Afghani ever acted or intended to act in any manner prejudicial to public safety or public order and is alleged that since his arrest and detention have been prompted by a desire to stifle the demand for restoration of Civil Liberties and the withdrawal of oppressive legislation like the Public Safety, Act, they are mala fide and unlawful and thus not under the Act, so as to take away this Court's jurisdiction to set him at liberty by a writ in the nature of habeas corpus. The application is opposed by the Crown and as authority for Afghani's arrest and detention an attested copy of as order by Malik Habib Ullah directing the arrest under subsection (1) of section 3 of the Punjab Public Safety. Act has been put in, together with a brief affidavit from that officer to the effect that at the time of directing the arrest he was satisfied that with a view to prevent Afghani from acting in a manner prejudicial to the public safety it was necessary to arrest him. At the hearing we permitted Afghani to make a statement as his own witness and also called Malik Habib Ullah for cross-examination. The former, in his statement, has recounted the history of his activities first in connection with the organi sation of the Muslim League, Refugee Relief and the Kashmir campaign and then in connection with the formation of the Progressive Writers Group, the Civil Liberties Union and the Democratic Students Federation. He says he has no know ledge why he has been arrested, but he guesses the reason of his arrest to be the fact that he was engaged in certain activities which were embarrassing the Government and because he was suspected to be connected with the publication of a pamphlet, purporting to be issued by the Democratic Students Federation, which strongly criticised the public expenditure incurred on the visit to Pakistan of his Imperial Majesty the Shahinshah of Iran. Both in his evidence before us and in the order directing Afghani's arrest Malik Habib Ullah has stated that the reasons for the arrest of Afghani were connected with the preservation of public safety and not with the maintenance of public order. He has refused to disclose the details of these reasons but has categorically denied that he directed the arrest because Afghani was a member of the Civil Liberties Union or because he belonged to the Progressive Writers Group or the Democratic Students Federation which was suspected to have published the pamphlet relating to the expenditure on the Shahinshah Iran's visit. Though he has definitely stated that he apprehended no disorder from Afghani's activities,- he has at the same time alleged that these activities were calculated adversely to affect the public safety and that Afghani was also suspected of having something to do with a country not friendly to Pakistan, though the last was not the sole reason for the arrest. Full reasons for the arrest have not been disclosed by. Malik Habib Ullah, on the ground that by so doing he would be giving evidence from certain documents which are State documents and also contain confi dential communications which are privileged under sections 123 and 124 of the Indian Evidence Act. Mr. Mahmud Ali's main argument in support of the petition is founded on Malik Habib Ullah's admission that he did not arrest Aghani because his, activities were considered to be prejudicial to public order but because, if not arrested, he would have acted in a manner prejudicial to the public safety. The point sought to -be made is that under the Provincial legislation, powers of preventive can be exercised in respect of person only for reasons connected with the maintenance of Public order and that since Malik Habib Ullah admits that Afghani did not intend to do any act pre-judicial to the maintenance of public order, the detention must be deemed to have been ordered for reasons of State connected with defence or external affairs, a subject on which only the Federal Legislature can make laws. It is not contended that the Punjab Public Safety Act, 1949, is ultra vires in so far as it professes to legislate on preventive detention in connection with the maintenance of public safety, and the Federal Court's recent decision in Maulvi Muhammad Ali v. Crown, Constitutional Criminal Appeal No. 1 of 1949, is conclusive on that point Although Malik Habib Ullah admits that one of the activities of the detenu on the basis of which he was arrested was an anti-State activity inasmuch as he was engaged with some foreign power in doing an act which might have jeopardised public safety, he does not say that that was the only reason for his arrest. He explains that the reason for the arrest was that Afghani was engaged in such activity that if he had not been arrested, public safety would have been endan gered. From these admissions, Mr. Mahmud Ali asks us to infer that Afghani has been detained for reasons of State connected with defence or external affairs, which are reasons for which he could have been arrested and detained only under the Pakistan Public Safety Ordinance, 1949. I am afraid, we cannot accept this argument as correct because a man may do an act which may not cause disorder and yet it may adversely affect public safety, and the reasons for arresting a man in order to prevent him from doing something prejudicial to public safety may not be reasons of State connected with defence or external affairs. This argument does not require any elaborate treatment, because, it has been the subject-matter of several decisions including the decision of our own Federal Court referred to above. If Mr. Habib Ullah had disclosed to us the detailed reasons for the arrest of Afghani, we would have been in a position to determine whether they were reasons of State connected with defence or external affairs, or whether they were merely reasons connected with the preservation of public safety. The words ` public order ' in Item l of List 2 of the Constitution Act have been used in a generic sense and are not necessarily antithetical to disorder. They are wide enough` to include considerations of public safety within their signification. Even if the result of a man being allowed to acting a certain manner may be an invasion or a wide spread internal commotion because of some foreign 'power being interested in the disturbances of public order, he may rightly be detained under- the. Provincial Act on the ground that the act, if it had been permitted to be done, would have prejudicially affected public safety, and in such a case it need not necessarily be held that the reasons for preventing him to do the apprehended act were exclusively reasons of State connected with defence or external affairs. If the dominant aspect of the apprehended act be the prejudice to public safety, the arrest and detention would be within the provincial sphere even if the act be done with the assistance or at the instigation of a foreign power. That being the position, it cannot be said that the reasons for Afghani's arrest have been proved to be reasons of State connected with defence or external affairs, and, unless that, be proved, the arrest would be legal under the powers given to the Provincial authorities by the Punjab Public Safety Act, 1949. It was next contended by Mr. Mahmud Ali that though Malik Habib Ullah has not disclosed the reasons for the arrest, his evidence produces an irresistible impression that one or more of those reason may be exclusively referable to reasons of State connected with defence or external affairs, and that in that case the order of arrest would be unsustainable from the very beginning, and the present order of detention under 'subsection (4) of section 3 which is founded on the original order of arrest would itself be illegal. In this connection reliance is placed on certain observations of Gwyer, C. J. in Keshev Talpade v. Emperor A. I. R. 1943 F. C., 1, and on In re. Rajdhar Kalu Patil, A. I. R. 1908 Bom. 334 (F. B.) and Mani v. District Magistrate Mathurai, A. I. R. 1950 Mad.

162. In the first of these cases where a judge of the Bombay High Court in the judgment under appeal had made the following observations:

" As I have pointed our, there is no doubt that it was competent to the Government of Bombay to detain the applicant on the ground that his detention was necessary inasmuch as he was acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It ray be that the other two grounds given in the order are not justified by any of the items in the Seventh Schedule. But if the two or even one of the two grounds are justified as coming wither, the competence of the Indian Legislature I do think it makes any different to the validity of the order if the Government of Bombay proceed to give further reasons which are not well- founded ". Gwyer, C. J. observed that he was doubtful about that state ment of the law. He proceeded to say that " if a detaining author ity gives four reasons for detaining a man without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them." This obiter dictum was followed in the other two cases cited above as, an authority for the proposition that if the grounds disclosed contained grounds, some within the ambit of the Act and some outside it, the order of detention would be vitiated wholly as in that event it would be impossible to say to what extent the detaining authority was influenced by acts outside the act in making the order of detention. I am doubtful of the correctness of this rule which appears to me to have been stated somewhat too broadly, The logical result of the rule, if it were applied in the unqualified manner suggested in the two cases cited above, would be that, if among ten reasons for the arrest of a person who was believed to be acting in a manner prejudicial to public safety was an insignificant reasons that in addition to the other acts which were calculated to prejudice public safety, he was also engaged in an activity not within the power of the Provincial Govern ment to prevent, the order of arrest will have to be held to be wholly unsustainable. Any such result in my opinion has to be avoided, because otherwise, the High Court while hearing a habeas corpus petition would in such a case be substituting its own judgment for the judgment of the arresting authority in holding that the remaining nine reasons anyone of which could have been a good reason for the arrest were not, individually, or collectiv ely in fact the reasons on which he could have been arrested, and thus that Court would be taking upon itself a responsibility which under the Statute rests on and vests in some other authority. At the same time since in this case the detailed reasons for the arrest are not before us, and we cannot avoid the feeling, though we are not in a position to find it, that one or more of the reasons for the arrest may be reasons of State connected with reasons of defence or external affairs, I consider the proper course for us, though somewhat remarkable, would be to remit this case for consideration of the Provincial Govern ment with certain directions. I have had the occasion to remark before more than once that the Punjab Public Safety Act, a curious and somewhat illogical piece of legislation, an I should take this opportunity of suggesting that the sooner it is amended the better for the authorities on whom rests the responsibility for the maintenance of order and the preservation of public safety in somewhat difficult times. Emergency legislation such as the Punjab Public Safety Act has almost become a normal feature of States at war or in a state of transition because during such period the executive needs extraordinary powers to protect the State from invasion or wide spread internal commotion. Such legislation was the very first thing to be passed when the last war, or the war before that, broke out between England and Germany, and in the neighbouring State of India most of the Provinces even now have a corresponding legislation. But in having any such legislation the first consideration shall always be and has been that the extraordinary powers of arrest and detention are not indis criminately delegated to officers of Government who cannot be relied on to administer the Act in the spirit in which it was enacted and are likely to abuse it in their own personal interests without there being an effective safeguard against such abuse. These considerations were present to the minds of those who framed the Defence of India Act and the rules under that Act which were in force just before the enactment of the present safety legislation which replaced them. Thus under that Act the power to detain a person vested under Rule 26 only in the Central Government or the Provincial Government, and no order of detention could be made by any other authority except where the Government delegated its own functions to some other authority. There was a clear distinction between the power to order detention and the power to arrest which under Rule 129 vested in all police officers and such other officers as were em powered in this behalf by a general or special order of the Central Government or of the Provincial Government. The latter power however, cold only be exercised when the arresting authority reasonably suspected a person of having acted, of acting or of being about to act in a particular manner. Thus a police officer, be he a Superintendent of Police or a foot-constable, could arrest a person only if he had reasonable grounds for suspect ing that that person had acted, was acting or was about to act in a manner which, among other matters, was prejudicial to public safety. This power was subject to four important qualifications: (1) the arresting officer should reasonably suspect the person concerned and, as held by the Privy Council in Emperor v. Vimlabai Deshpande, A. I. R. 1946 Penal Code 123, the onus of proving that the suspicion was reasonable was on the Crown; (2) the suspicion must be about that person having acted, acting or being about to act in a particular manner ; (3) the person concerned could not be arrested if what he had done, was doing or was about to do was prejudicial to the maintenance of public order unless it was also prejudicial to the public safety ; and (4) the person so arrested could not be kept in custody for more than fifteen days unless Government extended the period to a maximum of two months. The Central or the Provincial Government could order a person to be detained irrespective of whether he had or had not been arrested under Rule

129. In the case of a person arrested under Rule 129, the Government had to make an independent order directing his detention and such cases stood on the same footing as those of others in whose cases Government could make an order of detention on information received. The important pint about these rules was that the order of detention was the sole responsibility of the Government and that it could not be made for the reasons stated in Rule

26. The present Punjab Public Safety Act owes its origin to, and is almost identical with, the Punjab Public Safety Ordinance, 1946, and the Punjab Public Safety Act, 1947, both. of which, it is common knowledge, were framed by a pre-Partition Governor who, apprehending some sort of disorder preliminary "to, or consequent upon, Partition, but not fully realising the nature and extent of that disorder,: was anxious to equip the executive with an armoury of emergency powers with little or no regard to its possible abuse. That such powers can be, and were abundantly, abused will be apparent from the records of a large number of cases that come up to this Court before the Partition. The Ordinance and the Act both differed in fundamentals from their predecessor, the Defence of India Rules, and the provisions in the former relating to arrest and detention were a clumsy attempt to consolidate with some modifications the provisions of sub-rule (1), clause (b) and sub-rule (5) of Rule 26, and sub-rules (1) and (2) of Rule 129 of the latter into a single section and to reduce two distinct principles into a single rule. Under the present Act which follows the scheme of the Ordinance of 1946 and the Act of 1947 the power to arrest vests in the Government and every District Magistrate, and can also be delegated to any servant of the Crown by a general or special order of the Government. In exercise of these powers the authority to arrest has been delegated by Government to all Superintendents of Police. The result, therefore, is that the district officers like the District Magistrates and tile Superintendents of Police have been given the power to arrest but the restrictions under which this power could be exercised under Rule 129 of the Defence India Rule, namely, that a person should be reasonably suspected of having acted, acting or being about to act in a manner prejudicial to public safety, have been done away with and the power can be exercised merely if the arresting authority is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or public order, it is necessary to arrest him. Under the Defence of India Rules, the Central or the Provincial Government alone could make an order of detention but under the present Act this power can also be exercised .by the district officers, and there is no provision similar to Rule 26 (1) (b) of the Defence of India Rules by which an order of detention had specifically to be made. But the same end is sought to be attained under the present Act by authorizing the Provincial Government to make an order of extension of detention under subsection (4) of section

3. This subsection, however, is free from all restrictions which existed in the case of orders of detention under Rule

26. The Act does not say that when the Provincial Government makes an order under subsection (4). it should be satisfied with respect to a particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order, it is necessary to detain him for a further period, and in my experience of hearing habeas corpus petitions, not a single case has come to my knowledge wherein an order under subsection (4), the Provincial Government ever stated that further detention of the person arrested was necessary to prevent him from acting in a manner pre-judicial to public safety or the maintenance of public order. It may be that the Government does in fact consider this aspect of the matter when making an order under subsection (4), but the Act does not seem to make it necessary to do so, and it is difficult to see how the intra vires of this subsection could be defended against a carefully thought out and well directed argument. The point has not been argued before us and I am refraining from going into that question because the order under that subsection has not been produced and the petition was not founded on the alleged illegality of that order. In the next place under the several Provincial Safety Acts in India, and at least under one Provincial Act in Pakistan, i.e., the Sind Maintenance of Public Safety Act, the Provincial Government has to communicate to the person affected by the order so far as such communication can be made without disclosing the facts which they consider it would be against the public interest to disclose, the grounds on which the order has been made against him and such 'other particulars as are in their opinion sufficient to enable him to make if he wishes to make a representation against the order, but under the present Act no such thing need be done and all that is necessary under subsection (8) is that where the detention exceeds one month, the Government have to place before a Sessions judge the material facts and the circumstances in their possession on which the order under subsection (3) or subsection (4) has been based which are relevant to the inquiry together with any such facts and circumstances relating to the case which may have subsequently come into their possession and a statement of allegations against the person in respect of whom an order has been made, and that judge has then to consider the said material facts and circumstances and hold such further inquiries as he deems fit and to report to the Government whether or not in his opinion there is sufficient cause for the order. The arrested person is not entitled to be heard before the Sessions judge or to claim copy of the proceed ings, or of the report of the judge which are declared to be confidential and not liable to be called in question in any proceedings. The result, therefore, is that whereby in the case of persons detained under the Provincial Acts in India, the detenu knows the grounds for his detention and can challenge their legality as distinguished from their reason ableness by a habeas corpus, petition, no such course is open to a detenu under the Punjab Public Safety Act, and the High Court itself has no power to discover the particulars of the grounds on which the order of arrest or detention was made because the arresting authority, as in the present case, can refuse to disclose all information and claim privilege both under section 123 and section 124 of the India Evidence Act and render the Court powerless to consider the question whether the arrest was made for reasons which came within the Act and whether the requisite satisfaction of the arresting authority on which alone an order of arrest could be made existed or not Thus in the present case the detenu has no notice of the grounds of his detention and notwithstanding an endeavour on our part to probe into the matter within the limits open to us under the law, we have been left guessing and our attempts to know something more specific have been foiled by a mechanical incantation of the formula relating to the arrestor's satisfaction and the prejudice to public safety, which the arrestor might well have misunderstood. In fact, we do not know whether the reasons for which the detenu has been arrested had or did not have anything to do with the preservation of public safety, and whether the power to arrest in this case has been exercised within the limits prescribed by the Act. The best course, therefore, for us to follow in the circumstances is to request the Government to reconsider the case of this detenu in the light of the material that has come before us and the other material which has not been disclosed to us but which must be in the possession of Government: By now this detenu's case must have been considered by the Sessions judge as as well as by the Government under subsection (4) of section 3 of the Act, and we have no reasons to suppose that the order of further' detention for a period of six months has been made without a due consideration of that material. It has been vehemently represented to us that no conceivable ground for the arrest of the detenu could exist-and that the apprehension to public safety was no more than an excuse for the arresting of a person who was 'proving' inconvenient to Government in the several ways alleged in the petition. There is no doubt that this detenu has a brilliant record of services of which Malik Habib Ullah professes complete ignorance. There are affidavits in support of the claim that the detenu organised the Muslim League National Guard of which he was the Naib Salar-i-Suba and the Muslim League Refugee Relief Committee of which he was a member and an office-holder. In the Kashmir strugglee he claims to have occupied Kohala and 'fought his way with a Pathan Company under him to the Srinagar Aerodrome and on retreat to have blown up an important bridge between Uri and Chikoti. He was instrumen tal in raising the first regiment of Azad Kashmir Forces and the Azad Kashmir Home Guard of which he was appointed an Honorary Colonel by an order of General Taraq. We have seen a photograph in which he is conducting the Prime Minister of Pakistan during an inspection of the Azad Kashmir Rally. He is also stated to have been mentioned in dispatches by the Commander of Pakistan Forces and to have earned the distinguished title of Mujahid-i-Hydri from the Azad Kashmir Government. On his return from Kashmir the detenu engaged himself in political activities and became We convener of the Muslim League Progressive Group and the Secretary of the Preparatory Committee of the Pakistan Civil Libeties Conference the object of which is stated to be to agitate against, and press for the repeal of; the Punjab Public Safety Act. He is actually shown to have sworn an affidavit in support of the application of a detenu under section 491 of the Code of Criminal Procedure as recently as the '6th March, 1950, i. e. only two days before 'his arrest. On .the basis of these achievements of the detenu and his subsequent political activity just before his arrest, it is contended that there could be no real reason connected with public safety or public order for his arrest and that he has in fact been arrested because of his having engaged himself in activities which though and Government are not within the ambit of subsection (1) of section 3 of the Act. We have no means of going into this matter and since we are requesting the Government to examine the case of this detenu on another point, we suggest that these allegations in the petition be kept in view by the Government when re-considering this case. If after considering the matter the Provincial Govern ment is of the view that there exist reasons which are good reasons for the detention of a person under the Provincial Act, the Government will inform the, detenu accordingly. If, however; Government is of the view that the main reason for this arrest was a reason of State connected with reasons of defence or external affairs, his detention would be illegal and we have no doubt that in that case Government will set him at liberty, leaving it to the Central Government to take such action against him as it considers, necessary under the Central Ordinance. Of course, if Government has reasons to doubt the bona fides of the arresting authority, it will be its' duty to release the detenu and we would suggest that while considering this question Government give an opportunity to the detenu to represent his, case. Before I close, I might notice two other points that were taken by Mr. Muhmud Ali in support of this petition. The first of these is that no reason of section 20 of the Police Act, the power to arrest under the Punjab Safety Act could not be exercised by a Superintendent of Police. There is no force in this contention because under section 35 of the Act an order inconsistent with any other law can be made, and when made, it has' effect notwith standing the inconsistency. The other point is that the Punjab Public Safety Act, 1949, has not been properly assented, to by the Governor-General and for that reason has not come into force, A Full Bench of this Court has fully gone into the question and repelled that contention, but on this point we certify this to be a fit case for appeal to the Federal Court. The petition is dismissed but this order will, not preclude the detenu if he is so advised to question the legality of the order under subsection (4) of section 3 which was made subsequently to the presentation of this petition. MUHAMMAD SHARIF,. J.

I agree. The narrow limits within which this Court can act in the case of a person detained under section 3 of the Punjab Public Safety Act, were explained by me in Abdul Gafoor Vs. Crown, reported as Pak. L. R. (1949) Lah. 531: = P. L. D. 1949 Lahore

55. A. H. Petition dismissed.