P L D 1967 Supreme Court 373 (PLP)

CORNELIUS, C. J.‑This judgment will dispose of the following four appeals by special leave:‑ (1) C. A. No. 101 of 1966. Malik Ghulam Jilani, son of K. B. Malik Nazar Muhammad Khan. versus The Government of West Pakistan, through the Horn Secretary, Lahore and another. (2) C. A. No. 102 of 1966. Sli. Inayat Ullah, son of Capt. Abdullah. versus The Government of West Pakistan. through the Horn Secretary, Lahore and another. (3) C. A. No. 103 of 1966. Nazir Ahmad Chaudhari, son of Umar‑ud‑Din Chaudhari. versus The Government of West Pakistan, through the Home Secretary, Lahore and another. AND (4) C. A. No. 104 of 1966. Nawabzada Nasrullah Khan. versus The Government of West Pakistan, through the Home Secretary, Lahore. They arise out of writs moved in the ,High Court of West Pakistan to challenge the detention under the Defence of Pakistan Rules of three persons, namely, Malik Ghulam Jilani in the first appeal, Sardar Shaukat Hayat Khan in Appeal No. 102 and Nawabzada Nasrullah Khan in Appeals Nos. 103 and

104. The cases of these three detenus were heard in the High Court along with similar petitions moved against the detention of a number of other detenus, who were held on account of the disturbances in Lahore Town, which followed the announcement on the 11th January 1966 of Tashkent Declaration. Regarding this Declaration, it will be sufficient in the present cases to say that it was signed at Tashkent in the U. S. S. R., by ,the President of Pakistan and the Prime Minister of India and represented an agreement arrived at through the good offices of the Prime Minister of Russia, Mr. Kosygin. The details of this Declaration in so far as they are relevant to the argument will appear later in this judgment. A sufficient description of the Tashkent Declaration for the purposes of these cases may be that it represented a stage in the unravelling of relations between Pakistan and India, which had become seriously involved as a consequence of the aggression on Pakistan commenced by India on the 6th September 1965, which led to sharp and severe hostilities that were brought to a halt on the 23rd September 1965, by a cease‑fire resolution of the Security Council of the United Nations. A brief history of the events, which led to the making of the detention orders here in question may be stated as follows. It is taken largely from the oral statement of Mr. Ghulam Hussain Butt, Deputy Superintendent of Police, Lahore, at the material times, who had personal knowledge of much of these happenings, apart from the reports reaching him. On the 11th January 1966, the Tashkent Declaration was announced in Lahore. It had been signed at about midnight on the previous night. The Declaration gave rise to feelings of strong resentment among certain sections of the people not only in Lahore, but elsewhere in West Pakistan as well. On the 12th January posters appeared in Lahore announcing a procession of protest on the following day. On the 13th January, a procession of students was taken out despite the fact that an order under section 144, Cr. P. C., was in force in Lahore prohibiting the assembly of five or more persons. Violence followed. There was extensive damage to public and private property. Police officers attempting to stop or otherwise to control the procession were attacked at several places and 11 Police Officers were injured. There was even a shot fired at the Police. On the 14th January, another procession was taken out and on this day a Police Sub‑Inspector was injured. Another procession was taken out on the 16th January and on the 18th January, there was a similar procession which was. it seems sponsored by the Combined Opposition Parties. These were four in number, namely, (1) the Council Muslim League, (2) the Jama'at‑i‑Islami, (3) the Nizam‑i‑Islam and (4) the National Awami Party. The party in power is known as the Convention Muslim League. All these processions were taken out in defiance of the order under section 144, Cr. P. C. and represented what in political language is described as "direct action." One of the participants at the procession of the 18th January was Sardar Shaukat Hayat Khan. He was taken into custody, but not imprisoned or tried. Instead, it is said that he was taken out of Lahore to a distance of 150 miles and left there to find his own way home, by way of punishment. Up to this time, there had been arrests of students and possibly others, but no orders of detention. On the 21st January, which was a Friday, following the afternoon prayer at the Badshahi Mosque, where there was a congregation of a hundred thousand persons, there was an attempt by a Mr. Manzar Bashir and four or five companions to address the people. Despite the efforts of the Police, they succeeded in making short speeches. Slogans were raised in consequence. And an ugly situation was developing when the Police removed the speakers in a van to the Kotwali, and took immediate steps to obtain detention orders. While these persons were at the Kotvvali, a crowd of three or four thousand persons gathered outside and slogans were shouted, but the staff at the Kotwali succeeded in pacifying them until, at about 5‑15 p.m., detention orders were received. These orders are not the subject of examination in the present case. The incident requires to be mentioned as a firm indication of the highly explosive nature of the agitation which had started among the people over the Tashkent Declaration. The next demonstration of this feeling was by processions on the 26th January, which are said to have been taken at the instance of the Combined Opposition Parties. On the 28th January an announcement was made after the Friday prayers outside Wazir Khan Mosque in Lahore City. It consisted of a "heartfelt appeal" by named representatives of the four parties (one of the names was that of Malik Ghulam Jilani) to their supporters that "in their efforts for restoration of basic rights, they should not endanger their personal liberty and defy the section 144, Cr. P. C. order until after the Conference called for the 5th/6th February by the Combined Opposition Parties had announced its decisions". A news‑item to this effect appeared in the newspapers on the following morning, together with an announcement of the Conference arranged for the 5th, 6th February by all the four above‑mentioned parties, to examine existing conditions in the country, to consider important national problems and to reach decisions thereon" The announcement said that an application had been made to use the garden at Nlochi Gate f r the purposes of the Conference, but if this was refused, the meeting would be held in the house of Ch, Muhammad Ali (leader of the i:i.‑ani‑i‑Islam Party) at 86‑D‑1, Gulberg Main. On the 5th February 1966, the Conference was duly held in Gulberg. It is admitted that the three detenus in these cases were among those present. On that day, an address of welcome was read by Mian Tufail Ahmad of the Jama'at‑i‑Islami, who was Chairman of the Convening (A the Conference, after which Ch. Muhammad Ali made a speech outlining the purposes of the Conference and indicating the agenda. The following is a brief summary of the contents of the Welcome Address. The speaker applauded the sacrifices of the troops and the civil population, as well, as the millitary successes gained by the armed forces, during the September War and immediately went on to say that "a valuable victory, which we hail won in the field‑ of battle was later lost at the conference table". The reference was to the Tashkent Declaration. feat ha appalled and shocked the people. The younger citizens Work they made spontaneous demonstrations against this met with violence and shooting. The vitality and strength of the nation, however, with the help of God, would ensure a dignified and honourable life for the people. In the past all groups and individuals who bad sought to monopolize leadership in Pakistan against the people's will had been ultimately defeated and disgraced. By the Constitution of 1962, the people had been deprived of their elementary rights and all effective power was placed in the hands of the President, who was responsible to no one. There were Legislatures, but these were important. Freedom of opinion and expression was smothered by a series of laws and curbs under section 144, Cr. P. C. and the Defence of Pakistan Rules. Under this monopoly of power, all decisions from the incident of the Rann of Katch (where there had been a clash between the forces of India and Pakistan in March 1965) up to the Tashkent Declaration, had been taken by a single person (i.e. the President) and the people were neither informed in advance nor invited to participate in the process. A reference was made to the Indian practice in this connection. Referring to the September War, it was said that the Security Council Resolution calling for a cease‑fire had been accepted by the Government of Pakistan with reservations, namely, that the cease‑fire line would be held until a self executing agreement was reached as to the Kashmir problem, that if there were no such settlement by January 1966, Pakistan would leave the United Nations, and that Pakistan would continue to fight for a thousand years, but would make no compromise with India until there was such a settlement. The address went on to say that by the acceptance of the Tashkent Declaration all this had been swept away, leaving the Kashmir dispute where it was. That Declaration, it was said, had destroyed the fine spirit created among the people during the September War and had smothered the fraternal relations with friendly nations. It had left oppressed Muslims in Kashmir and in India at the mercy of the Indian authorities. It had placed two nations particularly friendly to Pakistan, namely, China and Indonesia, in an embarrassing position. It had thrown Pakistan into the lap of "ruthless and iniquitous powers" and the United States and Russia were specifically mentioned. With the Kashmir issue frozen on one side, the Tashkent Declaration obliged Pakistan in three ways: (a) not to interfere in India's internal affairs, (b) not to use force in any circumstances, and (c) not to do anything which might tend to spoil relations with India. The speech went on to say that in the face of the frustration so caused, all outlets for expression of opinion were blocked by control of propaganda machinery, by the use of section 144, Cr. P. C., by the arrest of speakers and by violence against students. The nation, it was said, stood as a result in an encircling gloom" like a lost carvan that has been robbed. The speech was not, however, concerned merely with the Tashkent Declaration. It went on to say that it had become necessary to change the whole political system. For this a single conference was not enough. "Constructive and lasting changes can be brought about only through a determined, organised and sustained struggle planned and launched after careful consideration" and "if this Conference can make satisfactory arrangements, it is bound to succeed". Evidence has been given to the effect that a number of other speeches were made at this first meeting, but the publication of these was banned and they were not produced in the High Court, where oral evidence relevant to the detention orders was received on the part of the Government, and affidavits were obtained from the detenus in reply. Two witnesses for the Government, namely, Mr. Ghulam Hussain Butt, Deputy Superintendent of Police, Lahore and Mr. Zafar Ali Khan, Deputy Commissioner of Lahore had said with particular reference to Sardar Shaukat Hayat Khan that on this occasion he made a fairy speech. They did not wish to put it in evidence on account of the impression it might create. On the following day, six resolutions were passed by the Conference. The first recounted the sacrifices and successes of the September War and gave praise to the Almighty as well as thanks to friendly countries. The second was a lengthy resolution exhaustively condemning the Tashkent Declaration and saying finally that it washed out all previous efforts for a settlement of the Kashmir problem and destroyed all prospects for the future. The Tashkent Declaration had been signed without consultation with the people and against their manifest will. It was said roundly that despite this Declaration, the people of Pakistan would continue to fight for the right of self determination of the Kashmiri people and "will not make peace with India until the State of Jammu and Kashmir has been liberated from India's forcible occupation". The third resolution called for revocation of the Declaration of Emergency which had been made under the Constitution by the President at the commencement of the September War, on the solitary ground (of doubtful validity) that the Tashkent Declaration had ended the war with India and already the Pakistan Government was engaged in improving relations with India. The resolution said that the people whose voice had been "ruthlessly stifled" should be allowed to express themselves freely. The fourth resolution enumerated the existing controls on expression of opinion, mentioning even the University Ordinance as an instrument of regimentation and went on to say that the resulting frustration had "assumed unbearable intensity since the Tashkent Declaration", which was described as a "manifestly wrong decision". By such repression the people had been reduced to a condition of slavery, which was dangerous for the nation and for the Government itself. The fifth resolution condemned the 1962 Constitution as inadequate, undemocratic and unsuited to the genius of people and that it had "now become an instrument of oppression" and for perpetuation of individual rule. The resolution called for introduction of adult franchise and direct elections and predicted "fateful disaster" unless there were amendment and democratisation of the Constitution. The sixth resolution demanded a judicial enquiry into the use of teargas, lath charges and firing by the authorities for controlling the disturbances at Lahore and Multan. Following this Conference, a committee of five persons was appointed to "work for freedom and democracy". According to the affdavit of Nawabzada Nasrullah Khan, these persons were, Ch. Muhammad Ali of the Nizam‑i‑Islam Party, Maulana Abul Aala Moudoodi and Mian Tufail Ahmad of the Jama'at‑i‑Islaml, Mr. M. Anwar, Bar‑at‑Law (who appeared in this case as counsel for one of the detenus) and Nawabzada Nasrullah Khan of the National Awami Party. Nawabzada Nasrullah Khan's affidavit admits that between the 6th February and the 16th February 1966, there were meetings among the principals concerned in this political initiative, but he denied that the meetings were secret as had been said by the Government witnesses. On the 16th February 1966, Mr. Zafar Ali Khan, Deputy Commissioner of Lahore, made the detention order under rule 32 of the Defence of Pakistan Rules, made under power derived from section 3 of the Defence of Pakistan Ordinance, which is the subject of consideration in the present case. It recited that the powers which the Deputy Commissioner purported to exercise were powers delegated to him by the Government of West Pakistan, which itself had received those powers by delegation from the Central Government under section 3, subsection (2) of the Defence of Pakistan Ordinance, 1965. By subsection (4) the Central Government was empowered to delegate its powers to inter alia a Provincial Government and subsection (5) enabled the Provincial Government further to delegate such delegated powers to an officer or authority under it. The order went on to say that the Deputy Commissioner had considered "the report of the Police and all the attending circumstances, namely, the recent disturbances in the Province of West Pakistan and particularly in the city of Lahore, culminating in the commission of violence against the Police personnel and the public tranquillity and necessitating the closure of schools and colleges." By such consideration, he was satisfied that there was enough material to show that the three detenus concerned in this case along with two other persons "are or have been jointly engaged in activities which are likely to seriously prejudice the maintenance of public order and peaceful conditions in the city of Lahore and elsewhere in the Province". In order to prevent them from acting in the aforesaid manner, it was necessary that they should be arrested and detained and accordingly, the Deputy Commissioner directed that each of the named persons should be arrested and detained until further orders in the District Jail at Lahore. In compliance with this order, Malik Ghulam Jilani and Sardar Shaukat Hayat Khan were arrested in Lahore, but on the 16th February 1966, Nawabzada Nasrullah Khan had already left for his village in Muzaffargarh Tehsil, where a Deputy Superintendent of Police followed him and arrested him on the 17th February. As in the meantime an order had been made by the Home Secretary to the Provincial Government directing that Nawabzada Nasrullah Khan should be detained at Kohat, he was taken directly to that place and put under detention there. The order of the Home Secretary does not purport to detain Nawabzada Nasrullah Khan. It recites that his detention had already been ordered by the Deputy Commissioner and merely varies the place of detention from Lahore to Kohat. A serious argument has been raised to the effect that the arrest of Nawabzada Nasrullah Khan at Muzaffargarh was beyond the powers of the Deputy Commissioner of Lahore to order. The warrant directing the arrest was directly served on him by the Deputy Superintendent of Police without the intervention of the Muzaffargarh Police authorities. The validity of the arrest was challenged on this basis. The other two detenus were also moved to places outside Lahore under similar orders made by the Home Secretary. In the writ petitions the pleas taken on the facts were similar in each case. It was said that none of the three detenus was in any way connected with the disturbances in Lahore to which reference was made in the detention orders. Each of them had thought and said that the Tashkent Declaration was not in the best interests of Pakistan and it was averred that by the time that the writs were moved, the Pakistan Government itself had admitted that India was avoiding a solution of the Kashmir problem and this was advanced as a sufficient reason for saying that there was no further justification for continuing their detention. In Malik Ghulam Jilani's case, a further plea was taken by his wife that as a result of the detention, the bread‑winner of the family had been taken away and therefore, the provisions of section 15 of the Defence of Pakistan Ordinance had been violated. This section requires that section under the Ordinance should be so taken as to "interfere with the ordinary avocation of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the Defence of Pakistan." Various grounds were taken against the legal validity of the detentions. In Malik Ghulam Jilani's petition, it was said that rule 32 was ultra vires of section 3 of the Defence of Pakistan Ordinance and that it violates section 15 of that Ordinance. It was urged that the delegations under rule 32 were ultra vires and in particular and faculty of "satisfaction" necessary for the making of an order of detention under that rule was reserved to the Central Government by section 3 of the Ordinance and could not be delegated. It was said also that rule 32 is intended for the detention of persons, who have hostile associations and is not applicable in the case of loyal citizens, who disagree with the Government. For the latter class of persons rule 47 was said to be more appropriate. This rule renders the doing of a "prejudicial act" without lawful authority or excuse an offence punishable with imprisonment for five years or fine or both. A "prejudicial act" is defined in rule 41 and includes actions which "prejudice the security, the public safety or interest or the defence of Pakistan". In the writ petitions of Nawabzada Nasrullah Khan and Sardar Shaukat Hayat Khan certain additional grounds were taken. It was said that the Defence of Pakistan Rules were not made in compliance with proper procedure and that the delegation of powers under the rules had preceded the promulgation of the rules themselves. It was said further that the grounds disclosed in the detention orders were not relevant to the object of section 3(2)(x) of the Ordinance, and that the order itself was a routine order mechanically made. Some elaboration on the facts is contained in two affidavits of Malik Ghulam Jilani and Nawabzada Nasrullah Khan, which have been placed on the record of this Court. No similar affidavit by Sardar Shaukat Hayat Khan is to be found in the paper books. A few further details are also to be gathered from the statements contained in the petitions for special leave presented to this Court. In the affidavit of Malik Ghulam Jilani, it is said that between the end of September 1965 and the date of his detention, he stayed hardly 10 days in Lahore, that be never addressed any public meeting or joined in any procession and be never threatened to violate any order under section 144, Cr. P. C. The detention orders were made after the disturbances had died down and reference was made to the announcement of the 28th January 1966, forbidding defiance of the section 144, Cr. P. C., order until the decisions of the Conference of the 5th/6th February 1966. Another statement, namely, that between the 16th January and the 28th January 1966, there was "no single act of violence or disturbance" is disproved by the fact that on the 21st January, detention orders were made in consequence of a serious threat of disturbance caused by speeches made after the Friday prayers, And that 4 procession was taken out on the 26th January. Malik Ghulam Jilani also said that at the Conference of the 5tb/6th February, he made no speech, but gave his consent to all the resolutions. In this affidavit, there is mention of the Conference setting up a committee to explore the possibility of establishing "a National High Command" In the special leave petition relating to Sardar Shaukat Hayat Khan, it was said that the main reason for his detention was the violation by him of an order under section 144, Cr. P. C., that that order was itself illegal and that therefore his detention was bad. (No attempt has been made to show that the section 144, Cr. P. C., order in force on the 18th January 1966, suffered from any illegality). Nawabzada Nasrullah Khan, in a lengthy affidavit, said that when the Tashkent Declaration was announced, he was at Karachi and was about to go to Dacca in company with Ch. Muhammad Ali and Malik Ghulam Jilani presumably for political activities, but he cancelled this programme and all three came back to Lahore on the 12th January, where they conferred with Sardar Shaukat Hayat Khan and Maulana Abul Aala Maudoodi and fixed a Press conference for the following day, i e., the 13th January. That was the day of the first disturbances, and a Press conference was actually held at which it was announced that an All‑Parties Conference would be held in the first week of February. At the Conference, Nawabzada Nasrullah Khan had proposed the resolution on freedom of the press. Following the conference, the committee of five persons already mentioned was appointed to implement the resolutions and make a report by the middle of March. Presumably, the "National High Command" was to be established if and when advised by this committee. This affidavit adds in favour of Malik Ghulam Jilani that he never spoke at any of the Conference meetings. Probably as a result of the treatment together of a large number of writ petitions filed by persons detailed for different reasons at different times, there is not to be found in the judgment of the High Court any clear appreciation of the factual basis upon which the detention orders respecting the three detenus concerned in these appeals was grounded. Certain observations have, however, been made by the learned Judges, in considering the allegation of mala fide, which are of some relevancy as to facts. The following extract from the judgment under appeal is significant:‑ "It appears that the detentions have connection with the public meetings, which the detenus tried to hold, held, or intended to hold. The object of these meetings, as stated by Mr. Anwar, was to criticise the Tashkent Declaration, the cease‑fire and the system of Government in the contrary and to show to the public that the Tashkent Declaration was opposed to the national interest, and that in signing it, the people of Kashmir had been let down. The opposition parties also intended to hold a democracy week from the 23rd March 1966 to muster public opinion and support for the restoration of democracy." The learned Judges went on to say that from the point of view 9f the detaining authority, what was important was not the intention behind these moves, but "the effect which their activities are likely to have," in relation to the maintenance of public peace and tranquillity. If in good faith, the authority were satisfied that the detention was necessary to prevent expression of opinion by or before the public, such as was likely to excite the people, and so endanger public peace and tranquillity the action would be regarded as bona fide and the Court could not interfere. The learned Judges observed that at the relevant time "there were not lacking the conditions for the apprehension of breach of public peace to be entertained by the detaining authority" and they adduced in support, the unsettled conditions existing at the close of the September War and the disturbances of the 13th and 14th January, following the publication of the Tashkent Declaration on the 11th January. As to the disturbances, the learned Judges said that they "may have been spontaneous or been induced by interested parties". The examination of the legal questions raised was more extensive. As to the plea that the Defence of Pakistan Rules were only published after the making of the delegation of powers under those rules by the Central Government, reliance had been placed on the fact that the rules as well as the delegation orders were printed in the Gazette of Pakistan on the same day, ,q but the delegation order was given the earlier number in the sequence. The learned Judges found no difficulty in holding that this point by no means established that the delegations were in fact made before the rules themselves. A further argument that by section 3 of the Ordinance, uncontrolled legislative functions had been conferred upon a subordinate legislative authority was dealt with on the following basis. Section 3, subsection (1) provides to the Central Government general power to make such rules as appear to it necessary or expedient for ensuring inter alia "the security, the public safety and interest and the defence of Pakistan, as well as "the maintenance of public order". Subsection (2) of section 3 preserves the generality of the power given by the first subsection and at the same time prescribes the purposes for which rules may be made under 35 different headings of which the tenth is relevant, relating to the apprehension and detention in custody of specified persons. The major purpose of section 3 as set out in subsection (1) is the promulgation of rules controlling the exercise of public power for ensuring inter alia the maintenance of public order. Clause (x) of subsection (2) contains a statement of guide lines relevant to the apprehension and detention of persons whose character is such that their being at large is a menace to certain essential requirements. The relevant portions of this subsection are reproduced below:‑ "(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 w4om 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, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to Pakistan's relations with foreign powers, the security, the public safety or interest, or the defence of Pakistan, or any part thereof, including the maintenance of supplies and services essential to the life of the community and the maintenance of peaceful conditions in any area included in Pakistan, or prejudicial to the maintenance of public order, or the efficient conduct of military operations or prosecution of war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner, the prohibition to such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything." The detailed provisions contained in this clause are worded with precision to meet particular needs, and sufficiently support the view of the High Court that there are ample guide‑lines contained in this clause to meet fully the criticism that this clause constitutes excessive delegation of legislative power. Any rules made under this clause must be adapted to one or other of the numerous cases that are provided for. For the purposes of this judgment, it will be necessary to construe this clause as well as subsection (1) of section 3 in relation to the rules made thereunder and this may be a convenient occasion upon which to carry out the necessary examination. The number of rules made under the Defence of Pakistan Ordinance is

208. Of these, it appears to us, as at present advised, that only two rules, viz., Nos. 32 and 204 are relateable by subject to the power afforded by section 3(2)(x). Rule 32, so far as it is relevant to the present discussion as 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 power, the maintenance of peaceful conditions in any part of Pakistan, the maintenance of essential supplies and services or the efficient conduct of military operations or prosecution of war, it is necessary so to do, may make an order‑ (b) directing that he be detained;" Rule 204 is worded as follows in its relevant part: "204(1) Any police officer, or any other officer of Government empowered in this behalf by general or special order of the Central Government, may arrest without warrant any person whom he reasonably suspects of having acted, of acting, or of being about to act,‑ (a) with intent to assist any State at war with, or engaged in military operations against, Pakistan, or in a manner prejudicial to the security, the public safety or interest, or the defence of Pakistan or to the efficient conduct of military operations or prosecution of war; A point of initial importance to notice is that section 3(2)(x), makes suspicion of particular kinds, one of the necessary conditions for action to apprehend or detain. Rule 204 follows, in respect of persons with certain injurious intentions, the very words of section 3(2)(x), viz.:‑ "suspects, on grounds appearing to such authority to be reasonable, of having acted, acting, being about to act" in a prejudicial manner. The power of a police officer or other empowered officer given by rule 204 is dependent upon suspicion based on reasonable grounds that the person in question has performed or is performing or is about to perform a prejudicial act. The question may be asked‑supposing the officer believes on reasonable grounds that the person in question has acted or is acting or is about to act in prejudicial manner, is he debarred from exercising his power under rule 204, merely because his state of mind in the relevant respects is appreciably more definite than if he were acting on mere suspicion? Can it be supposed that he could not exercise the power of arrest conferred upon him by rule 204, if he in fact knew, not necessarily by direct observation, but on the basis of evidence which he could reasonably accept, that the person had committed, was committing or was about to commit a prejudicial act? And what if he had this knowledge by direct observation? Would his power under rule 204 be defeated because his state of mind was one of direct knowledge, or inferential conviction or reasonable belief, each of which, as a ground for action, is immeasurably stronger than mere reasonable suspicion? There can be no question, but that rule 204 must be construed and applied so that if the ground for action be stronger than mere suspicion, the power afforded by that rule would certainly be available. In perhaps a more pertinent aspect, i.e., the extent of protection that the public servant can claim for his actions, it is even more clear that a state of direct knowledge, or inferential conviction, or reasonable belief, would be at least as complete a justification as reasonable suspicion. A similar construction must be placed in my view upon the words "suspects on grounds appearing to such authority to be reasonable" that have been employed in section 3(2)(x) of the Ordinance. Even under these words, rules may therefore be made which enable action to be taken on grounds of direct knowledge, inferential conviction, or reasonable belief. It is in that light that rule 32 falls to be construed. Its wording follows a provision in clause (x) enabling the making of rules for the detention of persons "with respect to whom (such) authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner", e.g., in a manner prejudicial to the maintenance of public order. This rule requires a stronger ground for action than mere suspicion, however reasonable. 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 prejudicial manner, e.g., acting so as to disturb the public 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, even under the earlier words, viz., "suspects, on grounds appearing to such authority to be reasonable" of being about to act to the prejudice of public order. But if "satisfaction" may, for securing protection to empowered authorities, be deemed to be included within the meaning of "suspicion", the other condition must also be deemed to apply, viz., the requirement of reasonable grounds for satisfaction. Is it admissible to differentiate between protection for action on suspicion, and action on satisfaction, both understood as analysed above, so that in the one case reasonable grounds must be established to give protection and in the other, a mere declaration is sufficient? Clause (x) does not differentiate between the authorities which may be empowered to act, with the incident of protection, on suspicion and those which may act, under similar protection, on satisfaction. The element of status in the empowered authority does not appear from any words used in the clause, although it is present in rules 32 and

204. C Yet by virtue of subsections (4) and (5) of section 3, delegation of power under any rule may be made to any officer of the Central or a Provincial Government and under rule 204, the same power that a police‑constable has may be conferred upon any other officer, by general or special order of the Central Government, which may delegate this power of making orders to a Provincial Government. Reading clause (x) according to the tenor of its language, and bearing in mind that it makes legal provision for restraint upon personal liberty which is a fundamental right of citizens in Pakistan, the conclusion that appears unavoidable is that to gain protection for any action thereunder, the existence of reasonable grounds is essential and a mere declaration of satisfaction is not sufficient. 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, as the High Court has done, on the dictum in the English case of Liversidge (L R 1942 A C 206) for the purpose 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 in 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 prepare, , 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. The learned Judges of the High Court have evidently heel, guided in their conclusion, which is to the contrary effect some degree of parallelism between the relevant the Defence of Pakistan Ordinance and Rules and those in the Defence of India Act, 1939 and Rules thereunder. They have made reference to two judgments of the Privy Council, in the cases of Sibnath Banerji (L R 72 1 A 241) and Vimlabai Deshpande (L R 73 1 A 144). In the former case, the action under examination was that of a Provincial Government under rule 26 of the Defence of India Rules, corresponding to rule 32 of the Defence of Pakistan Rules. In the latter case, the action was by a constable under rule 129 of the Defence of India Rules, corresponding to rule 204 of the Defence of Pakistan Rules. The Judicial Committee drew a sharp distinction between the powers under the two rules 26 and 129, placing appreciable reliance on the difference of status between a high officer of the Provincial Government and a police‑constable. The argument is delineated with clarity in the following extract from the judgment in the Deshpande case: "On the first question it is important to notice the differences between rule 26 and rule

129. Under the former rule an order of detention can be made only by the Central or Provincial Government, though this power may be delegated under the Defence of India Act; and the Government may make an order of detention if it is satisfied with respect to any particular person that, with a view to preventing him from indulging in the subversive activities specified, it is necessary so to do. It is to be noticed that the Government must be satisfied, mere suspicion is not enough, but there is no qualifying adverb such as 'reasonably' or `honestly' attached to the word 'satisfied'. On the other hand, under rule 129, any police officer can arrest on mere suspicion, but the suspicion must be reasonable, the exact words being 'any person whom he reasonably suspects'. As the High Court noticed in their judgment, the House of Lords, in Shearer v. Shields 1914 A C 808 had to construe a provision in the Glasgow Police Act authorising constables to arrest if they had reasonable grounds of suspicion and the House held that the burden rested on the constable concerned to show that his suspicion was reasonable and his act therefore justified. Their Lordships think that the same result must follow under 'rule

129. Reliance was placed by the appellant on Liversidge v. Sir John Anderson 1942 A C 206, but as the High Court again noticed, there are two very material distinctions between that case and the present one. In the first place, the authority empowered to arrest under the Defence of the Realm Act is a high officer of state, namely, the Home Secretary and not a mere police officer; and in the second place, the House of Lords was impressed with the obvious inconvenience and danger to the public which might ensue if the Home Secretary was bound to disclose confidential information on which he had acted. In India this danger is very largely mitigated by the existence of rule 26, under which the Government can act whenever it is satisfied as to the maters mentioned in the rule. Cases in India under the Defence of India Rules, which may involve disclosure of secret and confidential information will arise only in cases lying in the borderland between the police being suspicious, and Government being satisfied, as to a person's subversive activities and such cases are hardly likely in practice to be either numerous or serious. In their Lordships' opinion, therefore, the High Court was right in holding that the burden lay on the police officer to satisfy the Court that his suspicions were reasonable and it is plain that on the evidence he had not discharged that burden." Note may be taken of the implication in the above quotation that the satisfaction of the Government under rule 26 of the Defence of India Rules was thought to be immune to judicial examination. This view was rested on the first‑mentioned case of Sibnaih Banerji, where the Judicial Committee had found that the power given by rule 26 of the Defence of India Rules to the Central Government to act in certain ways on being satisfied of the prescribed conditions, was derived from the first subsection of section 2 of the Defence of India Act, which gave the general power to the Central Government to make rules such as appeared to it to be necessary or expedient for inter alia the maintenance of public order. It was expressly held that this power was not relatable to clause (x) in subsection (2) of section 2 of the Defence of India Act, which gave power to apprehend and detain persons "reasonably suspected of having acted or acting or being about to act" in certain prejudicial ways. The Judicial Committee found that a judgment of the Federal Court of India in the case of Keshav Talpade (1943 F C R 49), which had construed the vires of rule 26 exclusively in relation to clause (x) of subsection (2) of the Defence of India Act, was wrongly decided. In the light of the conclusion reached earlier in this judgment, namely, that the mention of "suspicion" in rule 204 of the Defence of Pakistan Rules must be taken to include knowledge, inferential conviction and reasonable belief and that this construction must apply also to clause (x) of section 3(2) of the Defence of Pakistan Ordinance as a whole the construction placed upon the corresponding provisions under the Defence of India Act and Rules by the Judicial Committee in Sibnath Banerji's case, would seem not to be applicable in the present case. Undoubtedly, subsection (1) gives the power to make rules such as appear necessary or expedient to the Central Government to ensure inter alla the maintenance of public order, but here the question is as to the extent of protection which an authority can claim for an order of detention thought to be necessary for preventing certain persons from "activities are likely to seriously prejudice the maintenance of public and peaceful conditions". Rule 32 makes precise ordering detention in just these circumstances, and clause (x).of section 3(2) gives power to make such a rule enabling authorities to take preventive action in exactly the same Even in regard to legal provisions enabling the making,: statutory rules, the maxim expressum facit cesvare tacitum application. Where the power to enable the action in is relatable directly to specific provision in clause (x) it cannot be deprived from the general power in (1) of section

3. Moreover, to relate rule 32 to subsection 1) , fl section 3 of the Defence of Pakistan Ordinance immediately attract the criticism that the power given by that' subsection is a legislative power conferred at large upon a; subordinate legislative authority without the provision of any' guide‑lines to control the exercise of that power so as to within the four corners of the power conferred. As has been seen already, the High Court had itself found that the rule‑, making power given by section 3 was not open to challenge on the ground of excessive delegation, by reason of the detailed guide‑lines provided by subsection (2) where specific provision is made in clause (x) for detention orders. In the conditions existing under the Government of India Act, 1935, a conclusion such as that reached by the Judicial Committee in Sibnath Banerji's case was tenable. It was a period in which the control by the Courts of the exercise of public power by the authorities was at a minimum. The Central Government of India was in respect of matters of the highest importance, not an independent Government. Through the machinery provided by the Government of India Act, 1935, its action and operations were in those highly important respects, placed under the control of the British Government at Whitehall. It was not conceivable that in relation to a Law of such critical importance as the Defence of India Act attracting in many respects the powers of the Governor‑General in his discretion, such powers being directly controllable by the E Secretary of State for India, there could be any scope for the intervention of the Courts in India to control the exercise of such power. Therefore, the view taken in Sibnarh Banerji's case by the Judicial Committee can be placed on a parallel with the view of the House of Lords in the case of Liversidge quoted above, where the majority view was largely based on the consideration that the order of detention having been made by a high officer of the State, namely, the Home Secretary, it should be presumed that he acted under the relevant provision in the fence Regulations, i.e., that he had acted on reasonable satisfaction. Under the Constitution of Pakistan a wholly different state of affairs prevails. Power is expressly given by Article 98 to the Superior Court to probe into the exercise of public power by p executive authorities, how high so ever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own "satisfaction" for imposing restraints on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all its content through this process and the Courts would cease to be guardians of the nation's liberties. It is therefore impossible to construe the relevant provisions in the Defence of Pakistan Ordinance in the manner adopted by the Judicial Committee in the case of Sibnath Banerji for interpreting the somewhat similar provisions in the fence of India Act and Rules. Clause (x) of sub section (2) of section 3 must be construed as providing the specific guide‑lines which control any rules as to apprehension and detention that are to be made under the power given by sub section (1) of section

3. On that view, it is clear that "satisfaction" of the detaining authority acting under rule 32 must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction. The power of an authority acting under rule 32 is therefore no more immune to judicial review than is the power of a police officer acting under rule

204. With reference to rule 129 of the Defence of India Rules (corresponding to our rule 204), the Judicial Committee felt no hesitation in finding that there was an onus upon a police officer to satisfy the Court that he had reasonable grounds for his suspicion. Suspicion would include belief or knowledge, whether inferential or actual. On the same reasoning, it must follow that actions by other and perhaps higher authorities, under rule 32, like all other actions relatable to the power delineated in clause (x) aforesaid, are equally susceptible of judicial review, subject, of course to the right of the state to claim privilege in respect of secret information and the Court's power to hold proceedings in camera. Indeed, once the authorities have placed before the Court oral evidence and other material, whose purpose is to justify an action of arrest and detention, judicial review by the Court has K already been attracted and the Court cannot, but be influenced in its decision by that evidence. The learned Judges in the High Court, placing reliance on the case of Liversidge, have come to the conclusion that satisfaction under rule 32 is subjective and its reasonableness, cannot be examined in a Court of law; they in effect precluded themselves from bringing into the process of decision, the evidence which they had themselves recorded and received. On a true construction of the relevant provisions in the Constitution, the Defence of Pakistan Ordinance and the relevant rules that view appears not to be sustainable. It will therefore be necessary in this judgment to consider that evidence and reach a conclusion whether justification existed for the satisfaction expressed by the Deputy Commissioner in his orders of detention. For the present, I proceed with the state of the decisions on I other points of law by the High Court. It having been urged before them that power had been delegated by the Central Government to the Provincial Government to act in fields, which were outside the Legislative and executive functions reserved to the Province, the learned Judges pointed out, quite rightly that subsections (1) and (2) of Article 143 of the Constitution gave validity to the delegation. Article 143 of the Constitution provides for delegation of Central powers to the Provinces. Subsection (1) enables the President to entrust functions of the Central Government either conditionally or unconditionally to a Provincial Government, but with the consent of that Government The present case is related exclusively to the maintenance of public order, which is a Provincial subject under the Constitution and subsection (1) of section 143 does not govern the delegation of such power. Moreover, the Defence of Pakistan Ordinance is to be construed as a Central Act and by subsection (2) of Article 143, a Central Act may authorise conferment of powers and imposition of duties upon a Provincial Government in respect of matters outside the Legislative power of the Provincial Legislature. Next, the question was raised before the High Court that the faculty of satisfaction under section 3(2)(x) of the Ordinance was not susceptible of delegation. The learned Judges rejected this argument on the basis that power given by law in conditional form carries also with it the power of determination of the specified conditions. There is an appreciable volume of authority in the precedent law of the sub‑continent as well as of Pakistan in favour of this view. The matter appears to be placed beyond doubt by the terms of subsection (4) of section 3 of the Ordinance, which lays down that the Central Government may by order direct that "any power or duty which by rules under subsection (1) is conferred or imposed upon the Central Government" shall be exercisable inter alia by a Provincial Government. The terms in which rule 32 is worded clearly imply the exercise of volition, an operation involving several mental faculties. The requirement of satisfaction contained in rule 32 involves the exercise of judgment in relation to a number of relevant factors. Belief would be necessary as to the existence of certain facts and the potentiality they possess of danger to public order and thereafter upon an appreciation of all the surrounding circumstances, there would require to be made an estimate as to the extent of action needed to prevent the apprehended eventualities. To suggest that the delegate of power under rule 32 is not charged with the duty. of exercising such judgment is absurd. Appreciation of situations in the field of law and orders is primarily a function of the Provincial Government and its officers, who are in the best position to gain direct information of all the relevant factors. Here, the detention orders were made expressly for preservation of the public order. It cannot be argued that it was for the Central Government to exercise its judgment so as to be satisfied of the need of preventive action, and upon its communication of such satisfaction, the Provincial Government was merely to perform the machinery function of issuing the order of detention and seeing it carried out. Tae words of section 3 and rule 32 cannot reasonably bear such an interpretation. The High Court found no force in the contention that rule 32 was harsh and arbitrary, because it did not fix any period for detention ordered thereunder. A period of emergency is prima, facie to be regarded as of limited duration and it is to be borne in mind that an order of detention made under a temporary statute such as the Defence of Pakistan Ordinance is co‑terminus with the emergency and would lapse when the legislation came to an end. The argument was raised before the High Court that section 15 of the Ordinance prescribed that interference with ordinary avocations and enjoyment of property, etc., should be restricted to the minimum, in the making of orders under the Ordinance. It was suggested that action could well have been taken by the detaining authority under clause (f) of rule 32(1). This clause enables the imposition of restrictions upon a citizen in respect of his movements or business or his L association with other persons or in relation to dissemination of news or propagation of opinions. The answer given by the High Court was that it was for the detaining authority to decide under which clause it would act. In the view I take of the circumstances existing at the time when the detention order was made, a much more comprehensive answer was possible. The question will be examined later, after consideration of the evidence available in this case. Something was made before the High Court of certain instructions of the Central Government issued on the 16th November 1965, to support the contention that the detenus ought to have been dealt with in accordance with these instructions. The instructions are on the record, although the High Court held them to be privileged. In the face of certain. facts, namely, that these instructions had been shown to all the, detenus and that they had been exhibited in the East Pakistan M High Court, it does not appear to us that it could be held strictly that these instructions related to affairs of the State On the contrary as a result of these circumstances, the instructions had become an affair of justice. They are however, wholly irrelevant to the present case for the reason that they are addressed to the reviewing of detention orders made during the September hostilities. None of these cases fall in that category. On all other points of law raised before the High Court, the findings of the learned Judges went against the writ‑petitioners. It is not necessary to set out these findings here, as they do not appear to be of decisive import. A number of such points set out in the writ petitions appear not to have been raised in the High Court. The point of mala fides was raised before the High Court on, the basis that all the detenus belonged to parties in oppositions to the ruling party in Pakistan. The view taken by the High Court on this point, appears from the following passage in the judgment under appeal which should be read with the two passages already quoted earlier:‑ "It may be that the opposition parties considered it al legitimate activity on their part to express their views on the above matters and they may have believed in the righteousness of their cause, or they might be desiring to obtain political advantage out of it, but the detaining authority is not as interested in the nature of their intentions as with the effect which their activities are likely to have. The detaining authority had to decide whether it was necessary for the purpose of maintaining public peace and tranquillity to detain them. If the expression of certain opinions is considered likely by the authority to so excite the people and the public as to endanger public peace tranquillity and to lead to disturbances, the authority covered to make an order would be justified in making an order of their detention, provided it is so satisfied honestly and in good faith and if it is so satisfied, the action is bona fide and the Court cannot interfere." Speaking with due respect, the High Court was right in its statement as to the aspect from which the detaining authority had to consider the proposed activities of the detenus. At the same time, the statement of the intention of the detenus appearing in the first three sentences of the passage quoted above appears to be based on too restricted a view of those intentions as they appear from the evidence. For a true appreciation of the factual position, it is necessary to bring under judicial review the reasons put forward by the concerned authorities for the making of the detention orders in these cases as well as the evidence that has been led, in the shape of documents. Mr. Zafar Ali Khan, Deputy Commissioner of Lahore, who issued the detention orders was somewhat hesitant about giving detailed reasons for his action. He preferred to repeat what was said in the detention order, namely that they were made to prevent the persons concerned from acting in a manner prejudicial to the maintenance of public order and peaceful conditions in Lahore. When asked on what he based his view that such action was necessary he said that he went by Police reports of the activities of the parties concerned of which the persons detained were "operational heads" besides being persons of "status and standing" Although, he had no information of the activities of the detenus outside Lahore, he had mentioned such activities in the detention orders and thought this was not irrelevant giving the reason that the persons detained were "leaders of the respective parties operating all over Pakistan". He had gained knowledge from the newspapers and from the General Situation Reports of the Police regarding their activities in Lyallpur, Sialkot, Rawalpindi and Multan District. These admissions excite the reflection that it would probably have been more appropriate for the provincial Government to have made the detention orders rather than that the Deputy Commissioner of a single district should have taken the responsibility. Regard being had to activities in at least four named districts other than Lahore and that the persons concerned were, if not all "operational heads", nevertheless ", important and publicly known leaders of their respective political parties, which were operating all over Pakistan the conditions were appropriate for action to be taken directly by an authority exercising jurisdiction over a wider area than a single district. The Home Secretary of the West Pakistan Government, Mr. Niaz Ahmad when questioned on this point merely said that "since the power had been delegated to the Deputy Commissioner I left it to him to take action in the interest of law and order as its maintenance was his responsibility." He admitted having received reports of prejudicial activities by the persons concerned between the 21st January 1966 and the 16th February 1966, including reports of meetings in private houses. He had information that they planned to launch "direct action" and "civil disobedience". Asked to give his reasons for the detention orders, he said that they were made because of apprehension based on information that the persons concerned would plan disturbance of the public peace by various methods and this was likely because these persons had, in his opinion, based on information, done so already. As has been seen, the detenus in these cases have each denied any part in any of the disturbances in Lahore anti perhaps that last statement of the Home Secretary reproduced above should be accepted only to the extent that the Government had information that these persons intended to plan disturbance of the public peace by various methods. On that point, there is in our opinion, sufficient material provided by Mian Tufail Ahmed's address of welcome at the Conference on the 5th February 1966, supported to a certain extent by some of the resolutions that were passed, but more particularly by the admission of Nawabzada Nasrullah Khan that a committee of five persons had been set up to examine and assess the general situation and to report thereon to the Conference by the middle of March 1966, as well as the admission by Malik Ghulam Jilani that there was a plan to set up a National High Command". With these may be read an admission made before the High Court by Mr. M. Anwar, who appeared for certain of the detenus before the High Court and in this Court on behalf of Sardar Shaukat Hayat Khan. As a member of the 5‑man Committee, he may be presumed to speak from knowledge: Mr. M. Anwar admitted that the public meetings which the detenus intended to hold were to be for the purpose of criticising the Tashkent Declaration, the cease‑fire and the system of Government in the country, and to show to the public that the Tashkent Declaration was opposed to the national interest and that in signing it, the people of Kashmir had been let down. It is in respect of these matters, that the Court is called upon to exercise the function of judicial review to ascertain whether in the circumstances appearing, the necessity of detention orders to prevent disturbances of the public peace was or was not established. A resume of the address of welcome of the 5th February has been given earlier in this judgment. It sets out, with a high degree of clarity, that the objective was to plan and launch after careful consideration, "a determined, organised and sustained struggle" to secure radical changes in the Constitution. A political campaign was clearly envisaged. The word `struggle' has ominous implication, bearing in mind the, political history of the sub‑continent in the last thirty years of Britisk rule. It implies open conflict with the Government, as by law established. Within the previous fortnight or three weeks, there had been open breaches of a lawful order under section 144, Cr. P. C. on several occasions, which had been accompanied by violence. Ten days earlier, the four political parties, which had called the Conference, had appealed for a halt to such "direct action", pending the decisions of the Conference. It is evident that these parties were assuming the authority, through the Conference, to call upon their followers to resort to "direct action" They were aware that the strong feelings aroused by the Tashkent Declaration could be utilised for the purpose. The high emotions aroused by the September War could be revived and refreshed to provide the motive force for the launching of the comparing. All the elements requisite for a crusade lay ready to hand. Feelings of patriotism and national pride were at a high pitch. Every effort to contain them was felt as a frustration. At bedrock, there lay the smouldering fires which had led to the partition of the sub‑continent in 1947 and were apt to burst into flame at the very mention of Kashmir. The address of welcome, read with the resolutions passed at the Conference, can fairly be regarded as the first steps in preparation for embarking on a crusade within the country, to take the shape of a political "struggle" in which resort to "direct action" through defiance of lawful orders was envisaged. The plan was treated as a matter of urgency, for immediately after the Conference, the 5‑man Committee was appointed to assess the political situation and report back the following month. There were plans also for setting up a "National High Command", an expression familiar in the sub‑continent during the period of the political struggle that eventually brought freedom from British rule. It meant a group of top political leaders who would direct the "struggled" vis‑a‑vis the established Government. Mr. Brohi appearing on behalf of Malik Ghulam Jilani attempted to present the initiative taken at the Conference of the 5th/6th February in a different light. He argued that despite the fact that a declaration of emergency had been made on the 6th September 1965, political life in the country had not been "eclipsed", but on the other hand, the Assemblies were functioning and the newspapers were appearing regularly. The matter ought to be considered from the angle whether the action contemplated by the detenus was not within the legitimate sphere of political activity. If it were, then the potential danger to law and order was not the governing consideration. Nor must the Court judge the situation solely in the light of the explosive nature of the atmosphere, which was surcharged with emotion. The learned counsel suggested that however explosive the situation, if the action of the detenus was not in itself wrong, their detention would not be justified. He urged that the Court should see the action of the Combined Opposition Parties as au exercise in shock absorption. The frustration in the country was becoming dangerous and to meet the situation, the political parties arranged that their representatives should sit together and give constructive expression to their views as to the initiatives necessary to meet the conditions. Their initiatives were intended for channellizing the nation's excited energies into quiet courses, and thereby bringing under discipline, feelings which might otherwise assume disastrous forms. Their actions might even be regarded as being in aid of national integration. The argument requires that the things which were said and the actions performed and threatened should be understood in a sense totally different from their appearance. Their effect upon the people must be assessed in relation to the plain meaning of the words employed and the actions performed, or encouraged. Making full allowance for the recognised practice of political leaders of using exaggerated language and of playing upon sentiments in their handling of similar situations, it yet cannot be ignored that there was a clear and express intention of R utilizing the Tashkent Declaration which was admittedly and "explosive issue" for the purpose of "arranging" a direct conflict with administrative agencies to bring about radical changes in the Constitution of the Government as by law established. The argument of Mr. Brohi appears indeed to be a justification for politicians to play with fire in the hope that they will eventually be able to subdue the conflagration they cause. To bring about political changes by Constitutional means alone is legitimate. Against this must be considered the duty resting upon the authorities, operating under law; for the maintenance of public peace and order. They would not be justified and the public interest would certainly be defeated, if they were to allow such a dangerous experiment to be carried out. Inevitably there would be breaches of the public peace and there was no means of calculating to what extent they might not be carried. Here it may be pointed out that, in the course of the arguments in these appeals, it was mentioned that, before the detention order was made, two of the political parties which had joined in the Conference, namely the Jama'at‑i‑Islami and the Nizam‑i‑Islam had disassociated themselves from any suggestion of direct s action. An explanation is thus available for the fact that the detentions were confined to leaders of the other two political parties. In so acting, the authorities clearly conformed to the requirement of minimum restraint prescribed by section 15 of the Ordinance. But, as to those who were detained, the argument that the detention was bad, because they were prevented from following their ordinary persuits, from which they drew their livelihood, possesses no merit. Having committed T themselves to a crusade cum‑political campaign, that became their avocation for the time being which could not be allowed to be pursued unchecked. Accordingly, reviewing the factual situation as it appears from the evidence on the record, there seems no escape from the conclusion that the action taken by the authorities to detain those by whom such a threat to the public peace had clearly been issued, was justifiable for the purpose of preventing disturbances which were likely gravely to prejudice the maintenance of public order. In that view, it must be held that the detention orders were clearly within the powers given by the relevant law. A special argument advanced in respect of the detention order issued against the appellant, Nawabzada Nasrullah Khan requires to be noticed. It appears not to have been raised in the High Court. The delegated powers of the Deputy Commissioners under section 3 of the Ordinance are expressed to be exercisable only within their respective jurisdictions. It follows that the detention orders were executable only in the Lahore district. The detention order for Nawabzada Nasrullah Khan was, however, taken by a police officer from the Lahore district to another district, namely, the Muzaffargarh district and there without the intervention of the local police, it was carried into effect by the same officer by the arrest of Nawabzada Nasrullah Khan. The learned Advocate‑General was unable to meet the argument that the arrest was illegally effected. That being the starting point of the detention, it must follow that the v whole detention was vitiated thereby. The further order of the Home Secretary altering the place of detention to Kohat was ineffective to remedy the defect appearing at the first stage of the; implementation of the Deputy Commissioner's detention order. It follows therefore that the detention of Nawabzada Nasrullah Khan under the Deputy Commissioner's order of the 16th February 1966, was illegal. It remains to mention that during the course of the hearings of these appeals all the three detenus were released by the Provincial Government. In the ordinary course, such release would have had the effect of causing the appeals to abate, but in these cases, learned counsel urged that since in each case the detention bad exceeded a period of nine months, the detenus had thereby incurred disqualification in respect of their right to stand for elections to representative offices, by the effect of section 53 of the Electoral College Act and section 106 of the w National and Provincial Assemblies (Elections) Act. Each of them was a politician of standing and was gravely prejudiced by this result in respect of his future political career and each of them was therefore interested to establish that his detention was illegal. The Court was therefore asked to record a decision as to the legality of the detention order of the 16th February 1966. As a result of the above discussion, I would hold that the detention of Nawabzada Nasrullah Khan under the Deputy Commissioner's order of the 16th February 1966, was illegal, but as to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani, I would hold that the detentions were made in accordance with law and under lawful authority. The two appeals relating to Nawabzada Nasrullah Khan should accordingly be allowed and since his detention was bad ab initio, he should have his costs in the appeal filed by himself. The appeals relating to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani should be dismissed with no order as to costs. FAZLS‑AKBAR, J.‑I agree. HAMOODUR RAHMAN, J. ‑I agree. S. A. RAHMAN, J.‑I agree with the conclusions reached by my Lord the Chief Justice in this case and concur in the order proposed to be passed by him. I am, however, doubtful whether the `satisfaction', of the detaining authority in the relevant law and rules should be placed on a par with 'suspicion on reasonable grounds' of an arresting authority. If the Legislature has used two different expressions vis‑a‑vis the two authorities and the connotations of these expressions have been fixed by an antecedent judicial precedents, it should be presumed that the Legislature intended to use them in their established connotations. On this view, I venture to think that in the case of detaining authorities, Courts need not insist on the relevation of grounds such as would be regarded as reasonable after adjudication. The `satisfaction' in such cases should be of the authorities themselves and unless there is a colourable exercise of power for ulterior motives not contemplated by the law, so that the case is one tainted with mala fides, the scope for interference by Courts would be confined to examination of the question whether compliance with the formalities of the statute on the face of the record, is complete or not. However even if the interpretation suggested above be the guiding factor, the result of these appeals would not have been in any way different from that reached by my Lord. MUHAMMAD YAQUB ALT, J.‑I agree with the judgment proposed to be delivered by my Lord the Chief Justice. Rule 32 of the Defence of Pakistan Rules was framed in pursuance to clause (x) of subsection (2) of section 3 of the Defence of Pakistan Ordinance, 1965. The clause is in two parts. Under the opening part of the clause provision may be made for apprehension and detention in custody of any person whom the authority suspects, on "grounds appearing to such authority to be reasonable", of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the security, the public safety or interest, or the Defence of Pakistan, including the maintenance of supplies, etc. Under the second part provision may be made for the prohibition of a person from entering or residing or remaining in any area and the compelling of such person to reside and remain in any area or to do or abstain from doing anything if such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner. Rule 32 thus falls within the ambit of the opening part of clause (x) of subsection (2) of section 3 which confers conditional power on the detaining authority, namely, the existence of reasonable grounds on which his suspicion is based. It was argued that the use of the words "appearing to such authority to be reasonable" in the clause indicates that the ascertainment of "reasonable grounds" is not justiciable. There is little force in the contention. The detaining authority is expected to exercise the public power of apprehension and detention in accordance with law as enjoined by Article 2 of the Constitution and not arbitrarily or perversely. The more significant import of these words, however, is that the exercise of power by the detaining authority is subject to the ascertainment of reasonable grounds; which is a quasi judicial function. On the above premises the detaining authority can be required by the Court to show that reasonable grounds existed on which his suspicion was based and his subjective satisfaction will not be sufficient to protect the order of detention as was claimed on behalf of the State. I have nothing more to add. A. H.