P L D 1955 Lahore 179 (PLP)

ABDUL AZIZ KHAN, J.‑This is a petition under section 491 of the Code of Criminal Procedure by one Maulvi Muhammad Umar who has been ordered under section 5 of the Punjab Public Safety Act, 1949, to reside and remain within the Corporation limits of Lahore City. In order to understand the nature of the order it would be advantageous to reproduce it :‑ "Whereas the Punjab Government is satisfied with respect to Maulvi Muhammad Umar, son of Maulvi Muhammad Amin, resident of Ichhra, Lahore, that with a view to preventing him from acting in a manner prejudicial to the public safety and the maintenance of public order, it is necessary to make an order as hereinafter. Now therefore in exercise of the powers conferred by section 5 of the Punjab Public Safety Act, 1949, the Governor of the Punjab is pleased to direct that the said Maulvi Muhammad Umar‑ (a) shall reside and remain within Corporation limits of Lahore City ; (b) shall not leave the area of his restriction as prescribed above without prior permission in writing from the Senior Superintendent of Police, District Lahore, or in his absence of the nest senior Police Officer of the said District ; (c) shall abstain from making any speech, writing any article and issuing any statement relating to or having any bearing on any controversial matter which is likely to promote feelings of hatred or enmity between different sects or to further actives prejudicial to the maintenance of Public order. This order shall take effect from the date of the service on the said Maulvi Muhammad Umar and remain in force for a period or six months. By order of Governor of the Punjab, (Sd.) S. GHIAS‑UD‑DIN AHMAD, Home Secretary to Government, Punjab. The sole question for determination before me is whether an application in the nature of a habeas corpus as contem plated by section 491 .of the Code of Criminal Procedure lies in respect of the above order. The relevant portion of section 491 of the Code of Criminal Procedure reads :‑ "(1) Any High Court may, whenever it thinks fit, direct‑ (a) . . . . . (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty." The words "detained" and "custody" used in section 491 are significant. The word "detained" has been defined neither in the Code of Criminal Procedure nor in the Punjab Public Safety Act. Nor have I been shown any judicial pronouncement regarding the exact scope of these words. I have, therefore, to resort to the dictionary meaning of these words. According to Webster's New International Dictionary (Second Edition page 710) it means :‑ "Act or fact of detaining, or keeping back, or withholding unjustly; as, detention of wages also, a restraining, a holding back of as action or progress ; as, the detention of a motorist by a traffic officer.

2. State of being detained, confined, stopped, or hindered; forced delay: detention in a jail on a journey. According to the dictionary referred to above "custody" "Control of a thing or person for such actual or construc tive possession as fulfils the purpose of law, duty requiring it, imprisonment." I have carefully considered section 491 of the Code of Criminal Procedure in the light of the above meaning of the words "custody" and "detained". In my opinion the words "detained" and "custody" in section 491 of the Code of Criminal Procedure imply some sort of confinement or B physical restraint on the liberty of movement of a person. The use of the phrase "set at liberty" in clause (1) (b) of section 491 of the Code of Criminal Procedure supports the above construction. The word "custody" has been used in various sections of the Code of Criminal Procedure, e.g., in section 66, 167, 181, 217 (2), 220 and 466 (2). In each of these it has been used in a much narrower sense than the mere restriction of the movements of a person to any area specified in a restriction order. The distinction between "detention" and "restriction" is further clarified by a comparison of sections 3 and 5 of the Punjab Public Safety Act. Whereas the former refers to detention in custody, the latter refers to restriction of movement beyond a certain area. Section 491 (1) (b) of the Code of Criminal Procedure, which provides a remedy for illegal detention, cannot be invoked in cases of restriction orders under section 5 of the Punjab Public Safety Act, 1949, inasmuch as there can be no question of setting such a person at liberty. It has been admitted before me that no restriction of any kind whatever has been placed on the personal movements of the petitioner within the Corporation limits of the City of Lahore, but it is argued that the restraint imposed on him not to leave the area of his restriction is sufficient to entitle him to relief under section 491 (1) of the Code of Criminal Procedure. The restriction placed upon the petitioner does not constitute a curtailment of the liberty of his movements in the aforesaid area. It is, however, impossible to hold that it constitutes a detention in custody within the meaning of section 49 (1) (b) of the Code of Criminal Procedure. As already stated, detention implies some sort of confinement. On the admitted facts, there is a complete absence of any restraint on the petitioner's personal liberty of movement. The learned counsel for the applicant has not been able to refer to any authority in support of contention that the powers conferred by section 491 (1) (b) of the Code of Criminal Procedure would be available in the case of a person who enjoys the fullest liberty of movement but whose liberty of going beyond a certain area only is curtailed, as in the present case. In the view which I have taken of the meaning of "detention" and "custody" followed as these words are by1v the phrase "set at liberty", I am not satisfied that I am competent to go into this matter under section 491 of the Code. This being so, I am debarred from examining the legality and validity of the order in question as section 33 of the Punjab Public Safety Act explicitly provides "no proceed ing or order taken or made under the Act shall be called in question by any Court." For the reasons given above, the petition is dismissed. A. H. Petition dismissed.