P (PLP)

The applicant contends before us that this detention was illegal. In his extremely lengthy petition he has challenged the bona fides of his Province, and the main burden of his complaint is that it was due to the malice of the Prime Minister that this order had been passed against the applicant, in fraudulent exercise of the powers conferred under the N.‑W. F. P. Province Public Safety Act. It is also argued that the enactment under which the order purported to be made was ultra virus. The applicant stated that, if given an opportunity, he was prepared to prove by leading evidence that the intention behind the order passed against him was to compel the applicant to‑ withdraw his opposition to the Prime Minister. We have heard Mr. H. S. Suhrawardy and Mian Ziauddin at great length on this application, and we have also heard Sheikh Muhammad Shafi, the Advocate General of the North‑.Vest Frontier Province on behalf of that Province. It is unnecessary, it appears to us, to give any decision on the assertion made on behalf of the applicant that the N. W. F. Province Public Safety Act of 1948 was ultra vires. It does appear to us, however, that it is very arguable that certain portions of the Act were ultra wires. Preventive detention for reasons connected with the main tenance of the public order is a subject covered by item 1 of List II in Schedule VII of the Government of India Act, 1935, and legislation on this subject is within the competence only of the Provincial legisla ture. On the other hand, preventive detention within Pakistan for reasons of State connected with external affairs is clearly a subject which is exclusively within the province of the Central Legislature as it is covered by item 1 in List I. It is argued that the definition of a " Prejudicial Act " in section 2 of the Act impugned would, if the Act be regarded as entirely valid, empower the N.‑W. F. Province to detain an individual, even when it was admitted that the individual had not done, and was not likely to do, anything which was at all likely to endanger the public safety within the Province or which amounted to a contravention of the law within the Province. A person could, if the Act be regarded as entirely valid, be detained on the ground that although he was doing none of these things, his presence within the Province was likely to prejudice the relations of Pakistan with some area outside the Province and even outside Pakistan. Provisions authorising such detention would clearly not only transgress upon the field exclusively reserved to the Central Legislature but also be wholly outs de the scope of the legislation covered by item 1 in list II, and in an Act passed by a Provincial legislature would be ultra vices. The entire sub‑clause (i) in clause (c) of section 2 of the Act, it is argued, is ultra vires on this ground. Similarly, it is argued that the words in sub‑clause (iv) " or any State or 'Tribal Area". and the entire sub clause (vi) were open to a similar objection. It was argued before us that this invalidated the entire Act. It appears to us that the objected portions could very easily be severed from the remainder of the Act, and in his arguments before us the learned Advocate‑General of the N. W‑ F. Province has not relied on any portion of the Act which has been objected to on this ground. We consider it quite unnecessary to say anything further on this matter. With regard to the actual grounds on which, it is alleged, action was taken against the applicant in this case, besides the order passed over the signature of the Chief Secretary, which have been set out above, there are certain affidavits filed by Sher Afzal Khan, the Deputy Commissioner of Mardan, and Pir Sarwar Shah, the Superintendent of Police Mardan, and a statement and all affidavit filed by the Advocate‑General of the N. W. F. Province, In his evidence, given before us, Mr. Sher Afzal Khan stated as follows :‑ The applicant was arrested on 29th July 1948 under the orders of the Provincial Government at my instance. I reported that applicant, who was then residing in my district, was making anti -Government speeches. What I had found was that the applicant was making speeches criticising the Government. What I considered objectionable in his speeches was that he was charging members of the Government with inefficiency, corruption, and personal enmity. He alleged that the Government had been charging him with an offence under section 409 of the

1. P. C. on personal grounds. I cannot say that I found anything else which was objectionable in his speeches. I also found that the applicant used to go to the police stations and the District Supply Office. It was reported to me that in 2 or 3 police cases he had gone to the police station and attempt ed to intimidate police officers and so influence them. It was reported to me that he once assaulted the District Supply Ins pector, though he did not cause any actual hurt or beat anybody. He was not reported to have been accompanied by anybody else at the time. I also found that he‑ was associating with Abdul Ghani. a son of Abdul Ghaffur Khan, who was found in the car with the applicant, and stayed a night with the applicant. This is the main allegation against the appellant. There may be other minor matters which I cannot think of. The prejudicial acts which in my opinion were being committed by the applicant of were likely to be committed consisted in defamation of Government servants, and bringing the Provincial Government into contempt. It is true that I am the principal officer on whose instigation the Provincial Government acted and arrested the applicant. I wish to add that the applicant used to maintain that the Government of Pakistan and the Provincial Government of Peshawar was run by refugees from India and Kashmere, and not by true Pakistanis. He meant that Pathans belonging to the N.‑W. F. Provinces itself should govern the Province and not outsiders. It was our contention that what I have stated above was a sufficient reason for the arrest of the applicant under the Ordinance ". This evidence was relied upon before us as showing the grounds necessitating the arrest of the applicant. It was urged with consider able force on behalf of the applicant, and is indeed obvious, that the mere making of speeches, however extravagantly worded, charging members of the Government with inefficiency, corruption and personal animosity, could not rightly be regarded as acts intended or likely to bring into hatred or contempt, or to excite disaffection towards, the Government established by law , such as to make them " prejudicial " acts within the meaning of the words in sub‑clause (iii) of clause (c) of Section

2. We were referred to certain decisions in which it was pointed out that ids such as those used in this Sub‑Clause, when used in an enactment dealing with measures for maintenance of public order and to prevent danger to the public safety, had to be construed as being restricted to such acts as were likely to overthrow the system of the Government established by law, and not merely to overthrow any particular ministry or any particular Minister. The learned Advocate‑General of the N.‑W. F. Province, however, made no attempt to justify the order on the ground relating to the speeches and Principally relied on the allegation that the applicant was :associating with one Abdul Ghani, a son of Abdul Ghaffur Khan, who it was alleged, was a principal participant in a movement which had been declared illegal by the N.‑W. F. Province. The learned Advocate‑General argued that the associating was for the purpose of assisting the movement which was illegal and was intended to be subversive of the Government established by law. It was argued on behalf of the applicant that the evidence with regard to the association of the applicant with Abdul Ghani, and of the applicant's assistance in the illegal movement, was of the flimsiest character, such that no reasonable person could act upon it ; and it was alleged that, as a matter of fact, it was well known that the applicant had throughout been a staunch opponent of the illegal movement for the creation of Pathanistan, and staunch supporter of Pakistan, and of the present system of Government as established by law in the North‑West Frontier Province. If the order made in this case had been shown to be a proper order as contemplate by section 3 of the Act, passed after the conditions stated in the section had duly been fulfilled, we do not think we could have gone into this question, whether on the information before them the N.‑W. F. Province were or were not justified in considering that the applicant was about to act in a manner which amounted to an offence or was likely to endanger the public peace. It was argued before us that the provision in section 12 of the Act, which prevents Courts from questioning an order made under section 3, even on an application made under section 491 of the Code of the Criminal Procedure, was nullified by the terms of section 23 of the Act in which it was stated that the provisions of the Act were in addition to and not in derogation of the provisions of any other Act in force. The contradiction in the terms of section 12 and of section 23 is obvious. It does not, however, necessarily follow that section 12 had been nullified. We have to construe the two sections together remember ing that the legislature enacted' both these sections, which must, therefore, be so construed as to give the enacted words the meaning which they clearly intended to have. . There is no difficulty in doing so here. It is clear that the contradiction is only the result of bad drafting, and that the inconsistency disappears if the words " shall be in addition to and not in derogation of the provisions of any other Act " are read as subject to the exceptions which were necessarily created where the terms of the Act had expressly enacted provisions which were in derogation of provisions in other acts. This matter we think, is of very little conse quence in the particular case before us. The most considerable point urged before us relates to the question whether we at all have before us an order passed under section 3 of the Act. The terms of section 3 make it quite clear that the Provincial Government is only empowered to pass an order tinder that section " on being satisfied " that it was necessary to arrest a person who had committed a prejudicial Act or in order to prevent a person from com mitting a prejudicial Act. It is obvious, on general considerations which apply to the construction of all provisions of this nature, that it is necessary for the Provincial Government to show that they had given the matter the kind of care and consideration that the law requires should be given to the matter when the liberty of an individual is concerned, that it had carefully considered the facts and the law appli cable to the matter, and that as a result of such careful consideration, it had been satisfied that the action proposed was necessary and was justified. In our view it is quite clear that in this case it would not be justified in holding that this essential condition, which must be shown to have a existed before the order‑can be regarded as a legal one, had been fulfilled. The material facts are that the Deputy Commissioner of Marian asked the Provincial Government to take action. The evidence of the Deputy Commissioner, which has been set out above, hardly makes out a case in which action under the Act could be justified, and makes it abundantly clear that there was need for a very careful con sideration of the facts of the case, that far more information than is mentioned in the evidence given by the witness would be necessary before it could reasonably be urged that an order under section 3 was called for. Government were hound to take into consideration the fact that a person could not be locked up merely for making speeches against a Minister in power, and attempting to get rid of him. There was need for a very careful consideration of the question whether the applicant was in fact concerned in assisting the movement which had been declared to be illegal, when he had been professing the contrary. It is remarkable, and under the circumstances most important, that there is no indication in the order signed by the Chief Secretary, of any such care and attention having been bestowed on the matter by any particular responsible member of the Provincial Government who was prepared to shoulder the responsi bility and state that he had after a careful consideration of the matter, satisfied, himself on the matter. This is far from being merely formal criticism of the terms in which the' order was passed, and is something which .is vital and of, the greatest‑ importance with regard to the question, whether we had before us an order which could be regarded as an order passed under section

3. We have an affidavit before us filed by Advocate‑General of the Province in which it is stated that the North West Frontier Province Government was satisfied on the matter and had carefully considered all the materials placed before it." We have not the slightest doubt that this is a statement made to the best of his knowledge and belief by the learned Advocate General, but we do not think that‑ such a statement, made long after the order was passed, can take the place of‑ an order, or a statement on the record from a res ponsible Minister or Officer entitled to represent the Provincial Government showing that he had given the matter personal attention, and had in fact satisfied himself after a. proper consideration of all aspects of the, matter, that the order contemplated was justified and necessary. It' would obviously be most dangerous to assume that such a thing was done when there was no proper document subscribed to by the person who had satisfied on the record made at the time when, or before, the order was passed. In considering the absence of a categorical, accurate, and sufficient statement on the point, in the order itself or in some other document made prior to the order, the emphasis, as was pointed out by the learned Chief Justice of Bombay In re Shoilen Dey (A. I. R 1949 Bombay 75), is not so much on the formal defect of the order ; the emphasis is on the state of the mind of the detaining authority. If the state of the mind of the detaining authority discloses that the authority had been casual in, its approach to the matter: and had not shown‑that diligence and care which the law insists upon in such cases, the order must be regarded as not one mad; under the provisions of the, Act. We are not at all concerned with the question whether, if proper considerations had been given, such an order might or might not have been properly and validly made. We are, therefore, of the view that the applicant's detention has not been shown to have been legal and proper. We accordingly order that he should be released. As in this matter a substantial question of law was raised, as to whether the Act under which the order against the applicant purports have been made, was valid, and regarding the validity of sections Is and 23 of the Act, a certificate will issue under section 205 of the Consti tution Act. The applicant prays for his costs. There is nothing in the rules of this Court entitling him to costs. We are informed that in the N. W. F. Province the applicant could claim his costs on succeeding on an application under section 491 of the Criminal Procedure Code. Although we cannot grant the applicant his costs, we give him the liberty to apply, if he so chooses, to the Court of the Judicial Commissioner, N. W. F. P., for his costs. A. H. Petition accepted.