P L D 1952 Lahore 624 (PLP)

MUHAMMAD SHARIF, J.‑This is a petition under section 491 of the Criminal Procedure Code by one Abdul Ghafur that the arrest and detention of Mirza Muhammad Ibrahim, Professor Eric Cyprian and Firoz Din Mansur were illegal and they should all be set at liberty. It was alleged that Mirza Muhammad Ibrahim was the President of the Pakistan Trade Union Federation and the North‑Western Railway Workers' Trade Union ; Professor Eric Cyprian was the joint Secretary of the North‑Western Railway Workers Trade Union and Firoz Din Mansur the joint Secretary of the West Pakistan Kisan Committee. The object and policy of the Pakistan Trades Union Federation and the North‑Western Railway Workers' Trade Union are to strive for the welfare of Labour and to see that nepotism, favouritism and jobbery were eradicated from the Railway Administration. It was urged that on account of these activities the detenus had incurred the displeasure of the high Railway Officials and in order to prevent them from continuing their lawful activities, the police in concert with the Railway Administration put them in detention. It was also pointed out that on a previous occasion Mirza Muhammad Ibrahim had been arrested under the Punjab Public Safety Act and .later prosecuted under section 447, Indian Penal Code, but his arrest and detention were held to be illegal by this Court on 20th April 1948. Notice was issued to the Crown to file the relevant orders of detention and arrest supported by requisite affidavits. These papers were duly produced. From their perusal it appears that Mirza Muhammad Ibrahim was directed to be arrested by Mr. Zulqarnain, Superintendent of Police C. I. D., West Punjab, on 25th April 1948, and the order of commitment to the Superintendent, Central Jail at Lahore, was made on 26th September, 1948. There is also the affidavit of Mr. Zulqarnain that he was satisfied that with a view to preventing the said Mirza Muhammad Ibrahim from acting in any manner pre judicial to the public safety, it was necessary to arrest him. Professor Eric Cyprian was also directed to be arrested by Mr. Zulqarnain, Superintendent of Police, C. I. D., West Punjab, on 26th September, 1948. The arrest was actually effected on 26th September and the detenu was committed to the custody of the Superintendent, Central Jail, Lahore. This too is supported by relevant affidavit in the terms noted in relation to the arrest and detention of Mirza Muhammad Ibrahim. Firoz Din Mansur was released by my order, dated 10th January, 1949, and the point involved in his case was the same as that arising in Criminal Miscellaneous No. 660 of 1948, (detention of Muhammad Hussain Ata) which was referred to the Division Bench. The Division Bench by its judgment of 16th February, 1949, See page 497, endorsed my view that detention for the purposes, of interrogation by the Police, was not one of the objects allowed by section 3 of the Punjab Public Safety Act and the arrest and detention were therefore wholly illegal. Both Mirza Muhammad Ibrahim and Professor Eric Cyprian filed their affidavits. It was claimed that their Union was engaged in lawful activities and the main object of their organization was to ameliorate the lot of the Labourers and other workers in the Railway Administration and for that purpose they had off and on to expose the mal‑administration and the corruption of the higher Railway Officials. This had brought them the displeasure of the Railway Officials. The petitioner Abdul Ghafur also filed his lengthy affidavit on similar lines. At, the request of the petitioner, the statement of Mr. Zulqarnain now Deputy Superintendent of Police, C. I. D., Lahore, was recorded in open Court. He deposed that he passed the orders of arrest and detention against Mirza Muhammad Ibrahim and Professor Eric Cyprian in his capacity as Superintendent of Police, C. I. D. He further revealed that since the partition of the Province, he himself had been watching the activities of the detenus or having them watched by others. The order of arrest and detention passed by him, was based on his own personal knowledge and was not made at the instigation of any Railway Officials. The witness profess ed ignorance as to Mirza Muhammad Ibrahim having started a compaiogn against the Railway Officials for their supposed jobbery, nepotism and favouritism. It was admitted that Professor Eric Cyprian, the Secretary, addressed no public meeting of the Railway Workers after February, 1948, but he was considered as the brain of the Communist Party in the West Punjab. In re‑examination, it was disclosed that the order of arrest and detention was not passed on the ground that the detenus were members of the Pakistan Trade Union Federation or the North‑Western Railway Workers' Trade Union. From the evidence produced in the case, it further trans pired that Mirza Muhammad Ibrahim was prosecuted in January, 1948 under section 447 of the Indian Penal Code. He was also arrested under section 3 of the Punjab Public Safety Act on 15th February 1948. A petition under section 491 of the Criminal Procedure Code was presented to this Court and it was decided by Cornelius J. on 20th April 1948 (Cr. M. No. 108 of 1948). The learned judge held that "the authority directing the detention did not in its order say anything con cerning its satisfaction regarding the necessity of such deten tion" and about the end observed "nor in my opinion is the lacuna made good by the detaining authority's affidavit made six weeks after the arrest when the legality of the detention has been seriously challenged". The detention was, therefore, held illegal and Mirza Muhammad Ibrahim was directed to be released from custody. It would thus be apparent that the order of 20th April 1948 did not go into the merits of the detention but the petition was accepted for the short reason that there was no proof that the authority directing the arrest was "satisfied" as required by subsection (1) of section

3. The criminal prosecution under section 447 of the Indian Penal Code resulted in the conviction of Mirza Muhammad Ibrahim on 31st August 1948, and he was awarded three months' imprisonment. An appeal was preferred to the Court of the Sessions Judge and Mirza Muhammad Ibrahim, was during the pendency of the appeal, admitted to bail. The appeal was ultimately dismissed on 6th November 1948 and the conviction and the sentence were upheld. In the meantime, Mirza Muhammad Ibrahim was again arrested and detained under section 3 of the Public Safety Act and the present petition is concerned with this arrest and detention. It was vehemently contended by the learned counsel for the petitioner that the arrest and detention were mala fide, a fraud upon the Act and abuse of power and that the expres sion "satisfied" must be read as "reasonably satisfied" in the sense that conscience of the Court should also be satisfied that the action taken, was necessary in the interests of public safety or public order. It would be desireable here to reproduce the relevant provisions the section 3 of the Punjab Public Safety Act (II of 1947) :‑ "Section 3, subsection (1). The Provincial Government, the District Magistrate or any servant of the Crown authorised in this behalf by general or special order of the Provincial Government, if 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 the maintenance of public order, it is neces sary so to do, may arrest such person without warrant, or may direct the arrest without warrant of such person and in making such arrest any means that may be necessary may be used. Subsection (2). An arrest made by or on the direction of any authority under this section other than the Provincial Government shall be reported forthwith to the Provincial Government by the authority so making or so directing the arrest as the case may be and the authority making the report may by order in writing commit and person so arrested to such custody as the Provincial Government may by general or special order specify in this behalf. Subsection (3). The Provincial Government may by order in writing commit any person arrested by it or on its direction to such custody as the Provincial Government may deem fit. Subsection (4). No person shall unless the Provincial Government by special order otherwise directs, be detained in custody for a period exceeding one month. Subsection (5). No person shall be so detained in custody for a period exceeding six months." By Ordinance IV of 1948 (The West Punjab Public Safety Amendment Ordinance of 1948) published in Gazette Extraordinary, dated 10th December, 1948 subsection (5) of section 3 was amended and the Provincial Government acquired the power, before the expiry of the period of deten tion, to renew such order by a further period of six months. This is necessary to mention as the first period of six months of detention ordered by the Provincial Government would have expired on 26th March, 1949, and by order dated 21st March 1949. the period of detention was extended to 24th September, 1949. A cursory glance at section 3 above would show that the word "reasonably" does not qualify the expression '6 satisfied". The contention, however, was that the adverb may not be there but the intention of the Legislature was so. Reference was made to Prabhakar Kesho Tare v. Emperor 1943 A I R (Nag.) 26 ; Kamla Kant Azad v. Emperor 1944 A I R (Pat.) 354; The Lahore Electric Supply Co. Ltd. Lahore v. The Province of Punjab I L R 1943 Lah. 617 (F B). The Nagpur High Court was interpreting Defence of India Rule 26 (f) and section 2 of the Defence of India Act. The wordings of the rule were identical and the Provincial Government "if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the main tenance of public order . . . . .it is necessary so to do, may make an order". The contention for the Crown in that case was that this provision abrogated the remedy provided by section 491 of the Criminal Procedure Code and that it was no longer open to the Courts to enquire into the detention so ordered. The learned judges did not accept this contention and it was held that "the Courts have jurisdiction to see whether there has been a fraud upon the Act or abuse upon the powers granted by the Legislature". It was also held that this jurisdiction was not taken away by section 16 of the Defence of India Act : "No order made in the exercise of power conferred by or under this Act shall be called in question by any Court." This case is no authority for saying that the "satisfaction" required is that of the Court and not of the authority empowered to act under the Rules. In Kamla Kant Azad v. Emperor 1944 A I R (Pat.) 354, Rule 26 (1) (b), Defence of India Rules was‑under considera tion. Where the Governor had the power to deprive a person of his liberty and to order his detention, it was held that " it is not open to a Court of law on an application made by a person detained under that rule for a writ of habeas corpus or in a suit to recover damages for false imprisonment to inquire into and pronounce on the validity of the reasons which led to the making of the order of detention. The Courts are debarred from considering the propriety of the order and set ting it aside merely on the ground that in their opinion it was not an order which should have been made. But the High Court may examine the correctness of the recital contained in any such order, and if it comes to the conclusion that the recital is incorrect, may declare the order to be invalid and the detention of the individual concerned illegal ". It was further held that‑‑ "the word `satisfied' in Rule 26 (1) (b) must be construed as meaning `reasonably satisfied'. If therefore the detenu can show that there existed no ground, on which the Governor could, as a reasonable man, have been satisfied that his detention was necessary, he is entitled to be released. Similarly, if he can show that the Governor acted under a misapprehension as to the extent of the powers entrusted to him, did not in fact, order his detention with a view "to preventing him from acting in a manner prejudicial to the public order," but with some other ulterior object such as to regularize his illegal detention or to punish him for acts, which he had already done rather than to prevent him from doing or instigating the doing of similar acts again, he would be entitled to be released. In such a case it could not be said that the Governor had in law acted in good faith, and the order of detention would be practically a sham order. If the order was not a bona fide order or was a sham order it must be set aside ". Apart from the dictum that "the regularisation of the illegal detention or punishment for acts already done" amounted to ulterior object‑a dictum not approved by their Lordships of the Federal Court in Emperor v. Nazir Ahmad 1945 A I R (P C) 18, at page 21‑the learned judges of the Patna High Court understood by the expression "reasonably satisfied" as meaning that the order was made tin "good faith" or that if; was not a "sham order". If it was not a bona fide order or was a sham order it must be set aside. Here also the powers of the Court were held to extend only to finding out whether the order was not a sham order" or not made in good faith and nothing further. The Court could not substitute its own judgment for that of the authority empowered to act under the Defence of India Rules. The object as the learned Judges put it, with reference to Rule 129 of the Defence of India Rules, could only be "to protect the individuals against the caprice or malice of the subordinate and the carelessness or neglect of the high officials". At page 367 column I Shearer J. observed:- "I should like to observe that the powers of this Court are not the powers of a Court of Appeal. We do not know the material on which the orders were made. We cannot compel the Crown to disclose them and, therefore, we can not pronounce on their validity or otherwise. But the power to order the detention of a man under Rule 26, Defence of India Rules, is not an arbitrary power. There are limitations on it and this Court may and is bound to satisfy itself that these limitations have not been exceeded. If the executive have gone beyond them and have used the rule in a way not intended, the order is not a bona fide order but a "sham" order, and this Court may interfere." Similarly in `the Lahore Electric Supply Co. Ltd., Lahore v. The Province of Punjab I L R 1943 Lah. 617,(F B) it was laid down that‑ "the Court can interfere if it is satisfied either that the order under the Act is ultra vices or that the order was not made bona fide but for some collateral object. Section 16 (Defence of India Act) in such a case is not a bar to the Court dealing with the matter". Reliance was placed upon The Secretary of State for India v. Mask & Company I L R 1940 Mad. 599 (P C) where Lord Thankerton at page 614 said :‑ "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well‑settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been compli ed with". In The King v. Governor of Brixton Prison L R 1916 2 K B 742, 749, Lord Reading observed :‑ "If we are of opinion that the powers were being misused we should be able to deal with the matter. In other words, if it was clear that an act was done by the executive with the intention of misusing those powers this Court would have jurisdiction to deal with the matter." The meaning of the expression "satisfied" as used in some of the 'Defence Regulations was discussed and considered Liversidge v. Anderson and another 1941 All Eng. L R 338 Vol. III. The words of the Regulation were‑ "Whereas I have reasonable cause believe etc. . . and the order of detention was made by the Secretary of State for Home Affairs, the contention of the detenu was that the burden rested upon the Secretary of State to show that he had reasonable cause to believe that the detention was of a person of hostile associations and for that reason it was necessary to exercise control over him." Viscount Maugham observed as follows at page 348: " I can now deal much more shortly with the question whether an onus is thrown on the first respondent, the Secretary of State who made the order for detention to give evidence to show that he had reasonable cause to believe the appellant to be a person of hostile associations, and that by reason thereof, it was necessary to exercise control over him. The order on its face purports to be made under the regulation, and it states that the Secretary of State had reasonable cause to believe the facts in question. In my opinion, the well‑known presumption omnia acta rite esse praesumuntur applies to this order, and, accordingly, assuming the order to be proved or admitted, it must be taken prima facie‑that is, until the contrary is proved‑to have been properly made and it must be taken that the requisite as to the belief of the Secretary of State was complied with. It will be noted that, on the view, I have expressed as to the construction ‑of the regulation, it is the personal belief of the Secretary of State which is in question, and that if the appellant's contention on this point were correct the same question would arise in the numerous cases where an executive order depends on the Secretary of State or some other public officer being "satisfied" of some fact or circumstance. It has never, I think, been suggested in such cases that the Secretary of State or public officer must prove that he was so "satisfied" when he made the order. Just as the fact that the act of the Secretary of State acting in a public office is prima facie evidence that he has been duly appointed to his office, so his compliance with the provision of the statute or the order in council under which he purports to act must be presumed unless the contrary is proved." From the foregoing, the following propositions emerge. Where a valid piece of legislation empowers an executive officer to curtail or take away the liberty of a citizen on his being satisfied that such an action was necessary in the interests of public safety or public order, the Courts would not enquire into the policy or reason of the legislation as that is a matter for the law‑makers and these are concerned only with its meaning and interpretation. Where for the specified purposes, the official act is performed by a person so authorised in full and strict compliance with the conditions laid down in the law, and the record shows that he was "satisfied" a presump tion shall arise in favour of its legality and the onus would ; shift to the citizen to prove the contrary. The expression "satisfied" means the "satisfaction" of the officer concerned as he alone is in possession or knowledge of the material to which others have no access. His "satisfaction" means nothing more nor less than his "own satisfaction" and the Courts car: not hold an inquisition into its‑ reasonableness or otherwise but the' "satisfaction" must be real and not sham ; bona fide and not actuated by malice ; a fact and not a pretext and this can properly be determined from all the facts and circumstances of the case. Where the factum of "satisfaction" is not establish ed, it is not only the right but the duty of the Court to protect the citizen against the excesses of the executive and restore his liberty. Judged in the light of the principles enunciated above the petitioner has failed to rebut the presumption arising in this case. No malice is proved and there is nothing to suggest that Mr. Zulqarnain was not‑acting on his own initiative or on his own "satisfaction" but had become a willing tool in the hands of those to whom the detenu had made themselves abominable. Mr. Zulqarnain was explicit in his statement that he watched the conduct and the activities of Mirza Muhammad Ibrahim and Professor Eric Cyprian for several months, before he issued orders for their arrest and detention. I would, therefore, dismiss this petition about the arrest and detention of M. Muhammad Ibrahim and Professor Eric Cyprian and hold that action against them under section 3 of the Punjab Public Safety Act was taken in accordance with the requirements of law. The order of arrest and detention of Feroz‑ud‑Din Mansoor is hereby set aside. K. M. A. Order accepted.