P L D 1973 Peshawar 156 (PLP)

SHAH ZAMAN BABAR, J.

In this petition under Article 201(2)(b)(i) of the Interim Constitution of Pakistan, Fida Mohammad Khan has prayed that the detention of his brother Ghulam Naqshband Khan under rule 32(1)(b) of the Defence of Pakistan Rules, 1971, on the basis of the commit ment warrant dated 7-6-1973, issued by the Deputy Commissioner, Peshawar, be declared illegal, without jurisdiction and without lawful authority. Ghulam Naqshband son of Abdul Aziz Khan, is a resident of village Badaber, Tehsil and District Peshawar. He is an Advocate of the Peshawar High Court, Peshawar. There is a long-standing dispute over possession of certain area of land between the residents of village Badaber on one side and the residents of villages Maryamzai and Telaband on the other. It is alleged that on 2-6-1973, the residents of village Badaber indiscriminately fired shots on a passenger Bus bound for village Azakhel near village Dandian; on the Peshawar-Kohat Road. In this incident of firing on the Bus six persons were killed and five others were seriously injured. A case F. I. R. No. 170. dated 2-6-1973, under section 302/307/149-148, P. P. C. was registered at Police Station Badaber. The- detenu Ghulam Naqshband Khan, it is alleged, was in no way concerned with the incident and as such he was not given any role with respect to the firing. The police, however, apprehended the detenu on 3-6-1973 under section 107/151, Cr. P. C. The detenu was released, on furnishing security, by the Ilaqa Magistrate on 4-6-1973. The detenu was again arrested on 6-6-1973 in the firing case. He moved the Court of Sessions Judge, probably for pre-arrest bail. The Court allowed him interim bail on 8-6-1973. On 7-6-1973 the Senior Superintendent of Police. Peshawar, forwarded the undermentioned memorandum to the District Magistrate, Peshawar :- Most Immediate/Secret. From The Senior Supdt. of Police, Peshawar. To The District Magistrate, Peshawar. No. 4028/SP, dated Peshawar the 7-6-1973. Subject:

Detention. Memorandum It has been found that the persons mentioned in the enclosed list are the ring leaders of village Badaber. Due to their instiga tion and undesirable activities the relations between the villagers of Eadaber and Maryamzai Tela Band have become abnormal over the disputed land. The situation has now assumed an alarming shape. The undesirable activities of these persons have disturbed the peaceful conditions in Peshawar Distt. To prevent them from acting in a manner prejudicial to public safety, interest and the maintenance of peaceful conditions in the Distt. it is imperative that they may be detained under rule 32(1)(b) of Defence of Pakistan Rules, 1971. It is, therefore, requested that in exercise of the power vested in the Distt. Magistrate by Govt. of N.-W. F. P., Home Deptt. Notification No. SO(DC) 3/23-HD/71, dated 10th December 1971, their detention orders may please be issued. Encl.

as above. (Sd.) Senior Supdt. of Police, Peshawar. No.

Copy of the above alongwith the list for information to the:

1. Inspector-General of Police, N.-W. F. P., Peshawar.

2. Dy. Inspector-General of Police, Peshawar Range, Peshawar. (Sd.) Senior Supdt. of Police, Peshawar. Particulars of the persons. Police Station. Grounds for detention.

1. Ghulam Naqehband s/o Abdul Aziz r/o Badaber. Badaber. A ring leader of Bada ber. Instigates the villagers of Badaber due to which the relations between the villagers of Badaber and Maryamzal Tela Band have become strained over the dis puted land and thus disturbs the public peace and order."

2. The Deputy Commissioner, Peshawar on the same day issued commitment order No. 1002-05/P A, dated Peshawar the 7th June 1973, as under :- "Order under section 32(1)(b) of the Defence of Pakistan Rules, 1971. Whereas information has been laid before me by the Senior Superintendent of Police, Peshawar, that Ghulam Naqshband son of Abdul Aziz, resident of village Badaber, P. S. Badaber DIAL. Peshawar is a ring leader of village Badaber. He instigates the villagers of his village due to which the relations between the villagers of Badaber and Maryamzai and Telaband have become strained over the disputed land and thus disturbs the peaceful conditions in Peshawar District thus acting in a highly prejudicial manner to public peace and tranquillity. And whereas having considered the material, I am of the opinion that with a view to preventing the said Ghulam Naqshband son of Abdul Azim Khan of village Badaber, P. S. Badaber from acting in a manner prejudicial to public safety, interest and maintenance of peaceful conditions fn Peshawar District, it is necessary to make the order of detention. Now, therefore, I Khan Jehanzeb Khan, P.C.S., Deputy Commissioner, Peshawar, in exercise of the powers conferred by rule 32(1)(b) of the Defence of Pakistan Rules, 1971 read with Government of N.-W. F. P. Home Department Notification No. SO(DC) 3/23-HD-71, dated 10-12-1971 order the detention of the said Ghulam Naqshband son of Abdul Aziz Khan resident of village Badaber, P. S. Badaber, District Peshawar with effect from the date of execution of this order. The detenu may be detained in C-Class and commit him to the custody of Superintendent, Central Jail, Peshawar, for a period of thirty days. Given under my hand and seal of this Court, this 7th June 1973. (Sd.) Deputy Commissioner, Peshawar. No. 1002-05/P A, dated Peshawar the 7th June 1973. Copy forwarded to the :

1. Secretary to Government, N.-W. F. P. Home Deptt., Peshawar.

2. Commissioner, Peshawar Division, Peshawar, for information.

3. Senior Supdt. of Police, Peshawar alongwith two spare copies of the order one for delivery to the detenu and the other may be returned to this office duly served on the detenu after obtaining his signature/T.I.

4. Superintendent, Central Jail, Peshawar, for necessary action. The detenu may be detained in 'C' Class in Central Jail, Peshawar, for a period of thirty days. (Sd.) Deputy Commissioner, Peshawar. Vide memo. No. 1044-47/P A, dated 7th June 1973, the District Magistrate on the subject of warrant of commitment issued under rule 32(1)(b) of the D. P. R. against Ghulam Naqsh band informed the Supdt., Central Jail, D. I Khan to "read Central Jail, D.I Khan instead of Central Jail, Peshawar, appear ing in the 3rd para, of the above-mentioned jail warrant". The detenu was as such detained In the Central Jail, D. I. Khan. Mr. Sardar Khan learned counsel for the petitioner, and A. A.-G. for the State heard and relevant record produced in Court, perused. The learned counsel for the petitioner contended that the Deputy Commissioner, Peshawar (respondent No. 2) has issued the impugned commitment warrant without application of his mind under colourable exercise of powers conferred by rule 32(11(b) of the Defence of Pakistan Rules, 1971 and the order is not based on any cogent evidence and reliable material. In order to appreciate the legal aspect of the case, the law legislated with respect to the security and the public safety and the law declared by the Supreme Court of Pakistan, the following short history may be given with benefits: Section 3 of the Defence of Pakistan Ordinance, 1965 pro vides for the powers of the Central Government to make rules, section 3(2)(x) (its relevant portion) is reproduced below : "3(2) Without prejudice to the generality of the powers conferred by subsection (1), the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters, namely :- (x) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain, as the case may be, suspects on grounds appearing to such authority to be reasonable,- Rale 32(1)(b) of the Defence of Pakistan Rules, 1965, is also reproduced below: "32(1) 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 sufficient prosecution of war, it is necessary so to do, may make an order

(b) directing that he be detained." In Malik Ghulam Jilani v. The Government of West Pakistan through Home Secretary, Lahore etc. (P L D 1967 S C 393) at pages 388-389 it has been observed :- "For the making of an order of 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 pre judicial manner, e.g., acting so as to disturb the pubic 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. Such satisfaction, as has been said above, would be within the power of the rule making authority to prescribe under section 3(2)(x) of the Ordinance. The ascertainment of reasonable grounds is essentially a judicial or at least a quasi-judicial function. It is too late in the day to rely, s the High Court has done, on the dictum in the English case of Liversidge (L R 1942 A C 206) for the purposes 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 Constitution of 1962, of which Article 2 requires that every citizen shall be dealt with strictly to accordance with law. If then rule 32 owes its vires to section 3(2)(x), it must follow that by the use of the 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 thereunder, 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 another case Mir Abdul Baqi Baluch v. The Government of Pakistan through The Cabinet Secretary, Rawalpindi etc. (P L D 1968 S C 313), it was held : "The majority decision in Ghulam Jilani's case aitered the law laid down in Liversidge'a case only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before the Court the material upon which it so claims to have been satisfied so that the Court can, in discharge of its duty under Article 98(2)(b)(i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (b)(i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review. If this function is to be discharged in judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. After the decision in Ghulam Mani's case the High Court should have examined the grounds of detention to test their reasonableness."

3. Section 3(2)(x) of the Defence of Pakistan Ordinance, 1965 was substituted by Ordinance 11 of 1968, enforced on 5th March 1968, as under: "(x) the apprehension and detention of any person with respect to whom the authority empowered by or under the rules to apprehend and detain is of the opinion that his apprehension and detention are necessary for the purpose of preventing him from acting in a manner prejudicial to Pakistan's relations with foreign powers or to the security, the public safety or interest, the defence of Pakistan or of any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful conditions in any part of Pakistan, or the efficient conduct of military operations or prosecution of war. Explanation.

For the avoidance of doubt it is hereby declared that the sufficiency of the grounds on which such opinion as aforesaid is based shall be determined by the authority forming such opinion." The Defence of Pakistan Ordinance, 1971 came into force on the 23rd of November 1971. Section 3(2)(xi) reads: "3(2) Without prejudice to the generality of the powers conferred by subsection (1), the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters, namely :- (xi) the apprehension and detention of any person with respect to whom the authority empowered by or under the 5 rules to apprehend and detain is of the opinion that his apprehension and detention are necessary for the purpose of preventing him from acting in a manner prejudicial to Pakistan's relations with foreign powers, or to the security, the public safety or interest, the defence of Pakistan or of any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful conditions in any part of Pakistan, or the efficient conduct of military operations or prosecution of war. Explanation.

For the avoidance of doubt it is hereby de-.lured that the sufficiency of the grounds on which such opinion as aforesaid is based shall be determined by the authority forming such opinion." Rule 32(1)(6) of the Defence of Pakistan Rules, 1971, enforced on 23rd November 1971 lays: "

32. Restriction of movements of suspected persons, restriction orders and detention orders.--(1) Wherewith respect to any person the Central Government is of opinion that, for the purpose of preventing him from acting in a manner prejudicial to Pakistan's relations with foreign powers, or to the security, the public safety or interest, the defence of Pakistan or of any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful conditions in any part of Pakistan, or the efficient conduct of military operations or prosecution of war, it is necessary so to do, it may make an order- (b) directing that he be detained." It will be noted that section 3(2)(x) of the Defence of Pakistan Ordinance, 1965 as amended by Ordinance 11 of 1968 and section 3(2)(x1) of the Defence of Pakistan Ordinance, 1971, are similar. It may not be out of place to mention that Article 98(2)(b)(i) of the late Constitution of Pakistan, 1962 and Article 201(2)(b)(i) of the Interim Constitution of Pakistan are synonymous. Article 201(2)(6)(1) of the Interim Constitution is reproduced below: "201(2) Subject to this Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law- . . . . . . . . . . . . (b) on the application of any person, make an order

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before !t so that the Court may satisfy itself that he is not being held in .custody without lawful authority or in any unlawful manner; or , . . . . . . . . . . . . According to section 3(2)(xi), Explanation, of the Defence of Pakistan Ordinance, 1971, "the sufficiency of the grounds on which such opinion as aforesaid Is based shall be determined by the authority forming such opinion". The question arises whether the High Court can examine either the sufficiency or reasonableness of the grounds of detention under the Defence of Pakistan Ordinance, 1971. A similar objection was raised before the Supreme Court in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (P L D1969 S C14). This case was heard by the Supreme Court of Pakistan after the amendment of Defence of Pakistan Ordinance, 1965 by the Defence of Pakistan (Amendment) Ordinance, 1968. It was held: "It will be observed that Article 98 of the present Constitu tion is radically different from the old Article 170 of the abrogated Constitution of Pakistan or Article 226 of the Indian Constitution. It has given to the Courts the power to give directions to persons performing certain functions In connec tion with the affairs of the Government or local authority to do or to refrain from doing that which the law requires them to do or which it does not permit them to do and to declare acts done by such persons to 'have been done or taken without lawful authority and as being of no legal effect'. In the case of persons detained in custody, however, the power given is to issue a direction to have such a person brought before the High Court so that the Court may "satisfy itself that he is not being held in custody without lawful authority in an unlawful manner". The difference In the language of the provisions of sub-clauses (a) and (b) of clause (2) of Article 98 is worth noting, whilst in the first case the direction Is limited to the making of an order for doing or refraining from doing that which the law permits or does not permit as the case may be in the case of detention the High Court is enjoined upon to 'satisfy itself' that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner. This distinction in the terminology of the two clauses of Article 98, was pointed out by this Court in the case of Abdul Baqi Baluch P L D 1968 S C 313 for the first time. The expressions 'without lawful authority' and 'in an unlawful manner' occur ring in sub-clause (b) were not merely tautologous. A definite meaning has, therefore, to be given to each of them. The Constitution it appears, casts a heavy responsibility upon the Court to satisfy itself with regard to both these two matters. The question therefore, arises as to what are these matters. It is agreed that in 'without lawful authority' will be comprised all questions of vires of the statute itself as also of the person or persons acting under the statute, i.e., there must be a com petent law authorising the detention and the officer issuing such an order must have been lawfully vested with the power. But what is it that falls within the expression 'unlawful manner'. All matters which fall within the scope of judicial review apart from questions of vires were covered thereunder. The words 'in an unlawful manner' in sub-clause (b) of Article 98(2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Con stitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. Therefore, in determining as to how and in what circum stances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as bas been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not quality as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner. There can be no doubt that the Court can satisfy itself that the action taken is not a mere colourable exercise of power or a fraud upon the statute. The question, however, that still remains to be considered is as to whether the reasonableness of the action can be examined when the statute itself does not require the authority to act upon reasonable grounds but leaves him to act upon his own subjective satisfaction. In view of the provisions of Article 98 of the Constitution that degree of reasonableness has at least to be established which has been indicated in the case of Abdul Baqi Baluch. Otherwise if an authority could protect himself by merely saying that he believed himself acting in pursuance of a statute then what would be the material upon which the Court could say that it was satisfied that the detention or impugned action bad not been taken in an unlawful manner. If the argument be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial review then even questions of bona fide or good faith would be beyond the scope of judicial review but it has, throughout without any exception whatsoever, been always con sistently held that mala fide action is not action in accordance with law. Decisions are also not wanting to show that very often the requirement of reasonableness has also been added to the requirement of good faith. Indeed it has even been said that the question of reasonableness would be pertinent in an inquiry as to malafides. Thus to determine as to whether the officer concerned really believed that facts existed which would bring the case within the statute and honestly intended to put the law into force, the question of reasonableness may well become material but reasonableness in the limited sense indicated fin the case of Abdul Baqi Baluch would always be material. In other words whoa it is said that no reasonable person could have upon such and such material, formed the opinion that the person detained had brought himself within the mischief of the statute, in effect the contention is that the officer concerned has in these circumstances acted mala fide in law. (Distinction should however be drawn between mala fide in fact or malice in fact and mala fide or malice in law. The real question, in every case of mala fide is: Did the authority or officer concerned reasonably believe that his duty as such officer required hits to act as he did? A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner. In this view of the matter the amendment of clause (x) of section 3(2) of the Defence of Pakistan Ordinance 'has been an exercise In futility' The splitting up of the provisions has in no way affected the reasons given by this Court in Ghulam Jilani's case. If it is an incident of the power of judicial review granted to the Court by Article 98 of the Constitution then the question as to whether there are grounds upon which a reasonable person would have formed the same opinion is certainly within the ambit of the power of judicial review no matter what the language used is the sub-constitutional legislation. In this connection it may be pointed out that it is a misconception to think that either under the Defence of Pakistan Ordinance or the rules framed thereunder any arbitrary, unguided, uncontrolled, or naked power has been given to any authority. These provisions only confer a power which is coupled with a duty. The power can only be exercised after the duty has been discharged to accordance with the guidelines provided in the statute and the rules. Thus both under clause (xi) of subsection (2) of section 3 of the Ordinance and rule 32 of the Rules, the duty cast upon the authority empowered to detain is to apply its mind to the particular A matters mentioned therein, namely, as to whether the action of the person sought to be detained was in any manner prejudicial to Pakistan's relations with foreign powers or to the security, the public safety or interest or the defence of Pakistan or any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful con ditions in any part of Pakistan or the efficient conduct of military operations for the prosecution of war and then to form an opinion as to the necessity of the detention. Until such an opinion is formed by the honest application of mind of the detaining authority the jurisdiction to make the order of detention cannot arise." In the present case the impugned order of the Deputy Com missioner, Peshawar dated 7th June 1973 is based on Information laid before him by the S.S.P., Peshawar. The S. S. P., Peshawar In his memorandum dated 7-6-73 (reproduced earlier) has stated that he has found that Ghulam Naqashband detenu is a ring leader of vi113ge Badaber and that due to his Instigation and undesirable activities the relations between the villagers of Badaber and Maryamzal Telaband have become abnormal over the disputed land, and that the situation has assumed an alarming shape. The learned A. A: G. was directed to place before the Court the evidence or material on the basis of which the S. S. P., Peshawar had come to this finding, but he failed to produce any such evidence or material. In the comments of the District Magistrate, Peshawar, submitted on 20-6-73, the respondent No. 2 has referred to the recent mishap culminating in the registration of case F. I. R. No. 170. dated 2-6-1973. under sections 302, 307/149, 148, P. P. C. of P. S. Badaber. But this case has not been referred to in the memo. of the S.S.P., Peshawar dated 7-6-73 We, therefore, conclude that the finding of the S. S. P. against the detenu is base) on no evidence or other material. The only Information laid by the S. S. P., Peshawar before the Deputy Commissioner, Peshawar was his memo, dated 7-6-1973, which information was based on no evidence or B material. The information of the Deputy Commissioner, Peshawar, based on such material placed by the S. S. P. Is therefore, an information for which there are no grounds or the grounds are such that no reasonable person should hive acted on the supposition that he was acting under the authority of the statute. Tae opinion formed by the Deputy Commissioner is not formed by honest application of his mind and as such the im pugned order is without jurisdiction. In the result, we are satisfied that the detenu is being held in custody without lawful authority and in unlawful manner. We therefore, accept the petition, declare the impugned order of the District Magistrate, Peshawar, dated 7-6-1973 as without lawful authority and order that the detenu be sot at liberty forthwith. No order as to costs. Petition accepted.