P (PLP)

ORDER.‑Qazi Ataullah Khan and Abdul Wali Khan peti tioners submitted to this Court a petition for a writ of habeas corpus provisions of section 491, Criminal Procedure Code against their order of detention under the provisions of section 3 of the N.‑W. F. P. Public Safety Act (Act XXI of 1948). They were accordingly given an opportunity to appear before me in person and a notice was served on the Advocate‑General of the N.‑W. F. P. Government also to appear. The grounds on which the petitioners claim that their detention was illegal were that their original detention in jail was ordered under the provisions of section 40, F. C. R. while subsequently they were detained during the period that the N.‑W. F. P. Safety Ordinance was in force and that finally they were detained under the provisions of the Public Safety Act which is still in force. They claim that the first order of detention under the Ordinance was illegal. In reply to the various arguments adduced by Qazi Ataullah Khan on behalf of himself and his co‑petitioner Abdul Wali, the learned Advocate‑General contended that this Court was only concerned with the present order of detention and not with any previous order of detention which may have been in force. In support of his argument he has drawn my attention to A. I. R. 1949 Born. 319 and also to P. L. D. 1950 Pesh.

22. In the Bombay ruling referred to above a Full Bench of the learned judges held that " where a person is arrestee illegally and imprisoned and when in imprisonment an order o detention under Bombay Public Safety Measures Act is served upon him and the detenu applies for a writ of habeas corpus, what the Court is concerned, is not whether the arrest of the applicant is legal or illegal but whether his detention under the order passed is legal or illegal. The detention of which he complains by his application is the detention in the jail on the date when he made the application, and it is immaterial for the determination of the question as to whether his prior arrest and his prior detention were or were not legal. The question under the habeas corpus Act is as to whether the detention of which the detenu complains, that means the detention at the time when he seeks to take out a writ of habeas corpus, is valid or not, which again resolves itself into the question whether at the moment there is for his detention a valid order in existence, and if there be such an order, then no writ of habeas corpus can be issued in his favour." With the views expressed in this judgment I am disposed to agree. For where a series of orders detaining a person have been issued, it must be abundantly clear that previous orders, even though they may have been invalid, or illegal, have been superseded. As the period of detention under which a petitioner was detained, in pursuance of those orders has passed, it would not be within the competence of any Court of law to set matters right at a subsequent stage. Redress, however, is invariably open to a petitioner who is still detained by an order which is still in force. If that order is either illegal or invalid, it can and will be set aside and the petitioner will regain his liberty. In these circumstances, I do not propose to examine in detail the arguments adduced by the petitioners against the various previous orders of detention which were made against them since they are no longer in force. This Court is therefore only concerned with the present order of detention. The present order of detention is in printed form and reads as follows :‑ " The Governor, North‑West Frontier Province, being satisfied that with a view to prevent ‑‑from endangering public safety and maintenance of public order in the North‑West Frontier Province and from bringing into hatred and contempt and from exciting disaffection towards Government established by law in the North‑West Frontier Province, it is necessary to arrest the said‑‑‑‑‑without warrant, in exercise of the powers conferred upon him under section 3 of the North‑West Frontier Province ' Public Safety Act (XXI of 1948) is pleased to order the arrest without warrant of the said‑‑‑. The said‑‑ shall be committed in custody to Central Jail, Mach (Baluchistan) for a period of six months. The Governor, North‑West Frontier Province, is further pleased to order that during the period of his detention the conditions as to maintenance, discipline, punishment of offences and breaches of discipline, shall be those as laid down in the North‑West Frontier Province Security' Prisoners Rules, 1944. Dated Peshawar, Sd. The 17th November 1950. Chief Secretary to Government, N.‑W.F.P." The two orders of detention‑are exactly similar in the case of both the petitioners except for the difference of names and address. Qaza Ataullah Khan in his argument claimed that the words appearing in this last order, namely " being satisfied " are a fraud on the Act since they are not genuine and the addition of these words was an after‑thought and therefore mala fide. To this extent only it is necessary for me to take into consideration the wording of the first order of detention. This order, which was issued under Ordinance VII of 1948, does not make use of the words " being satisfied " though from perusal of the Ordinance itself it is apparent that the power to detain rust only follow the satisfaction of the Provincial Government that the person to be detained was likely to act or was acting in a prejudicial manner or in some other manner which was contrary to the provisions of the Ordinance., As I have already stated, however, it is only necessary for me to consider the validity or otherwise of the present order which is dated November 17, 1950. This order states, in unequivocal terms, that the Provincial Government was satisfied that the detention of the petitioner was necessary and it would not be proper for me to assume that since the words " being satisfied " did not appear in the first order of detention, their addition in subsequent orders was mala fide. In challenging these orders of detention, the onus of proving that the orders were mala fide or were illegal or invalid rests on the petitioners. And the only arguments they have produced are certain allegations about the circumstances under which they were detained. These arguments are, however, unsupported by any evidence, either direct or circum stantial ; and in the absence of evidence to the contrary, I must, assume that the orders of detention were issued in a bona fide, manner after the Provincial Government had satisfied itself that the detention of the petitioners was necessary. 'If was further argued that the detention of the petitioners could not be extended but that a fresh order of arrest and detention must be passed each time. It was also contended that the order could only be served within the territorial jurisdiction of the N.‑W. F. P. Government and that each order of detention must be covered by a fresh order of arrest. It appears clear from subsection) (2) of section 3 of the N.‑W. F. P. Public Safety Act that the Provincial Government have power not only to commit any person arrested to custody in any part of Pakistan and for any period of time but also to direct his continued detention from time to time. The petitioners under the previous orders were being detained in the Mach Jail. In the light of the provisions of subsection (2) of section' 3 of the Act, it was within the competence of the Provincial Government to issue a further order of detention. I can find no ground to assume that the subsequent order of detention is therefore illegal. Since the section permits of arrest without warrant, no order of arrest was necessary. The words " from time to time" appearing in subsection (2) of section 3 of the Act would indicate that the intention of the Legislature was to give power to the Provincial Government to continue the detention of the persons periodically according to the circumstances of the case. As for the question as to whether it was within the competence of the Provincial Government to issue an order of detention outside the territorial jurisdiction of the Government of N.‑ . F. P., I see nothing improper in such an action since the Act itself gives authority to the Provincial Government to order the detention of a person outside .the limits of N.‑W. F. P. If therefore the Provin cial Government desired the further detention of the petitioners outside its limits it would, as a matter of course, issue the necessary detaining order to the officer incharge of the jail‑where they were detained. In' this view I am supported by A. I. R. 1949 All., p.‑28 in which it was stated, inter alia,‑ that " normally of course, the jurisdiction of a District Magistrate is his district, but where a person is detained by the order of a District Magistrate in the jail in his district and is then transferred under section 3 (5) to another jail in‑ another district, the jurisdiction to deal with him under section 3 (5) must be held to remain with the District Magistrate. The mere transfer of the detenu from the jail where he was first detained by the order, of the District Magistrate to another jail under section 3, subsection (5) of the Act does not take away jurisdiction of the District Magistrate who passed the order of detention originally, The detenu even when he is being held in another jail is so held under the order of the District Magistrate who passed the original order and he may in a sense be called a prisoner of that District Magistrate. Hence if that order has to be revoked before the period fixed in it expired, it can only be revoked by the District Magistrate who passed it and by no other authority. Similarly, if the order has to be extended there is no reason why it should not be possible for the District Magistrate who passed it to extend it, even though the detenu is not in jail in his district but in another jail in another district. The detenu must be held to remain within the jurisdiction of the District Magistrate, so far as the matter of detention is concerned, even though he may have been bodily kept in jail in another district." It follows therefore that the jurisdiction of the N.‑W. F. P. Government over the petitioners may continue to be exercised irrespective of where they are detained. The petitioners further alleged that they had not only been detained but also that their property had been forfeited to Government under the provisions of section 10 of the Act and that these two sections were part and parcel of each other and must be read together. I am unable to accept these arguments, for if it were the intention, of the Legislature to treat these two sections as one they would have done so. As they appear in the Act, they are two distinct and separate sections ; the one relating to detention and the other to forfeiture of property ;though the latter section relates to the forfeiture of property of those persons detained under section

3. As for the order regarding forfeiture of property I am not concerned with this matter since the only plea before me from the petitioners is one of wrongful detention. The petitioners also contended that their order of detention was in bad faith for various political motives. They were unable to produce any direct testimony but claimed by circumstantial evidence that their detention was a matter of revenge for acts done even prior to the promulgation of the Ordinance, since they were the political opponents of the present party in power in the Province The arguments in this connection do not, however, attract the since it is no concern of this Court to draw any inference from certain allegations made to it regarding the activities of any political party unless there is evidence in support thereof. This Court is not concerned with the reasons for detention and it cannot he accepted as valid argument that the petitioners have been detained for certain acts committed before this legislation was pass ed rote law since there is no evidence to this effect. The present order R of detention is, in my view, a preventive order for it states that with a view to prevent. These words can have only one interpretation. They must imply that the executive authority wished to detain the petitioners in order to prevent them from committing some prejudicial act and that the Provincial Government were also satisfied that they were likely to commit such an act, It would not be inconsistent with the provisions of the Act to take into consideration the past behaviour of persons when, after being satisfied, the Provincial Government decided to detain then, for the reasons stated. Finally the petitioners protested that the grounds for detention had not been disclosed to them as required by section 11 of the Act. This section is, however, qualified by the proviso that such grounds will be disclosed only if the Provincial Government are of opinion that it would not be against the public interests to disclose them. Even if, as is alleged, the petitioners have received' no reply To their requests, the failure of the Provincial Government to comply, or their refusal to comply, with the provisions of this section is no valid ground for setting aside an order of detention under section

3. Since I have held that I am only concerned with the present orders of detention and not with any previous orders under 'which the petitioners had been detained, I can find nothing in the present orders which would lead me to believe that they are either invalid much less that, in the absence of evidence to this effect, are male fide. In the circumstances I see no reason to ad accordingly dismiss the petition. K.M.A Petition dismissed.