P L D 1957 (W (PLP)

QADEERUDDIN, J.

This is a writ petition by the Secretary of Pakistan Baloch United Front' on behalf of the 18 persons named in the writ petition. One of them, Ahmad Shah, is a male adult, two of them are boys of 3 years and 10 years of age and the rest of them are girls and women including an infant of one year of age. The petitioner has alleged that he is a citizen of Pakistan and has purported to show his interest in these persons on the ground that their arrest and detention "is being deeply resented by all Balochis in Pakistan" (para. 6 of the petition). He has alleged that the detenus belong to the frontier areas between Baluchistan and Iran, that they are poor nomads and spend a part of every year in Pakistan and a part in Iran, and that they belong to the Baloch tribes which live both in Iran and West Pakistan. The grounds on which the petition is based are stated in para. 7 of the petition. They are as follows: (i) "That the said detenus mentioned in para. 2 above are illegally and improperly detained under the orders of the Respondents Nos. 1 and 2 in the District Jail Quetta within the appellate criminal jurisdiction of this Hon'ble Court. (ii) That they are about to be thrown across the Pakistan frontier into the Iranian territory without any legal sanction. (iii) That the detenus have been deprived of their liberty in contravention of Articles 5 (2) and 7 of the Constitution of Pakistan." The petitioner has made three prayers : firstly, that the detenus should be produced before this Court ; secondly, that they should be released from "custody", and lastly, that the respondents should be restrained from forcibly ejecting the detenus from Pakistan or from removing them outside the jurisdiction of this Court. This writ petition was considered by Lari and Wahid ud-Din, JJ. on 4th May 1957 for the admission of the petition itself and for interim orders on an application to restrain respondent No. 1 from deporting the detenus from Pakistan or removing them to any place outside the jurisdiction of this Court. The petition was not admitted but an interim injunction order was granted and notices of the application were issued to the respondents. In response to the notices an affidavit was submitted by Major Muhammad Afzal, Deputy Commissioner and `District Magistrate' of Mekran under whose orders the 18 persons were arrested and detained. He has stated in the affidavit that information was received to the effect that a group of persons was likely to enter Pakistan territory ; whereupon lie passed an order dated the 1st April 1957 prohibiting their entry. The order is as follows: "Order by the District Magistrate and Civil Authority Mekran District. Dated Turbat, the 1st April 1957. No. 201/J/57 whereas I have received information that a party of bandits belong ing to notorious bandits of Iran namely Dad Shah is likely to enter in the area of Sub-Telisil Mand in Mekran District through an unauthorised route and whereas it has also been reported that gang of bandits headed by Dad Shah had been responsible for the murder of two Iranians and two Americans and kidnapping Mrs. Annita Carrol wife of an American national somewhere in Iran and whereas l am satisfied that the entry of said gang of foreigners will not be in the interest of public safety in my district. Now therefore in exercise of the powers conferred on me by clause (4) of para. 3 of Foreigner's Order of 1951 read with notification No. 12 (6) HPP/56 dated 3rd May 1956, issued by the Governor, West Pakistan, I, Major M. Afzal Khan, District Magistrate and Civil Authority, do hereby prohibit the entry of all the members belonging to Dad Shah and their families into (any) place of Mekran District. (Sd.) District Magistrate and Civil Authority, Mekran. Copy forwarded to (1) Tehsildar Mand (2) Tehsildar Jiwani (3) Tehsildar Panjgur (4), Commandant, Mekran Militia, Panjgur A sharp look out shall be exercised on the border to ensure that the said party of the foreigners do not enter the district. In case any of the members of the party enter or found present in the district they shall immediately be arrested and placed in custody till further orders. Copy forwarded to the Additional Commissioner, Kalat Division, Kalat for information who may kindly forward to the Government for information. (Sd.) District Magistrate and Civil Authority Mekran." It is to be noted that all members of Dad Shah's party and their families were for the reasons stated in the order prohibited from entering the Mekran District, Nineteen persons crossed the Pakistan-Iranian border and were arrested on the 4th April 1957. This arrest was the con sequence of the infringement of the prohibitory order and was obviously of a punitive and not of a preventive nature. After the arrest the same officer ordered their detention in Turbat levies lock up. This arrest lasted for a few hours because he ordered their transfer to District Jail, Quetta until the disposal of their case for reasons of the security of the prisoner's as well as of public safety in view of possible attempts' by some agitators to "rescuse" (or get released) the prisoners. They were not transferred because they were likely to commit prejudicial acts against the State while in the lock up at Mekran. The order is as follows: "Order by the District Magistrate and Civil Authority Mekran District. Dated Turbat the 4th April 1957. No. 208/JB/57, In continuation of my order dated 1st April 1957, the following Iranian nationals who were arrested for having contravened my aforesaid order shall be detained at Turnat luck up in the first instance. As levies lock up is insecure and their presence in Mekran or other Baluch area in Kalat Division, is likely to create agitation or a possible attempt at their rescue, therefore in the interest of public safety and security of the prisoners themselves I order under clause (5) of para. 3 and all other powers anabling in this behalf that the said prisoners shall as soon as possible be removed from Turbat lock up and detained in District' Jail Quetta (pending the disposal of their case, (1) Ahmad Shah son of Kamal. (2) Shumba son of Jalal. (3) Jarak son of Pir Dad. (4) Shumba son of Mahmud. (5) Mst. Janak daughter of Yar Muhammad. (6) Mst. Hanak daughter of Jalali. (7) Mst. Nurak daughter of Jahan Shah. (8) Mst. Behak daughter of Ahmad Shah. (9) Mst. Malkuk daughter of Rustom. (10) Mst. Harrak daughter of Muradak. (11) Mst. Mahtoon daughter of Muhammad. (12) Mst. Marium daughter of Muhammad. (13) Mst. Dajuk daughter of Nazarak (14) Mst. Dur Bibi daughter of Yar Muhammad. (15) Mst. Meerak daughter of Mahmud. (16) Mst. Bi Khatoon daughter of Abdul Aziz. (17) Mst. Nazul daughter of Lal Muhammad. (18) Mst. Nazuk daughter of Dadullah. (19) Mst. Nur Malik daughter of Ghulam Muhammad. (Sd.)............... District Magistrate and Civil Authority, Mekran. Copy forwarded to (1) Naib Tehsildar Mand.- . (2) Tehsildar and incharge of levies lock up Turbat. (3) Commandant, Mekran Militia, Panjgur. (4) Superintendent District Jail, Quetta, for necessary action. (5) Additional Commissioner Kalat, Division Kalat. (6) Political Agent and District Magistrate, Quetta Pishin. Quetta for information. (Sd.). .......... District Magistrate." Major Muhammad Afzal has denied, in his affidavit submitted to this Court, that the detenus resided in any frontier area between Iran and Pakistan or that they resided in Pakistan during any part of a year. He has stated that they are Iranian Nationals who belong to a gang and families of notorious bandits namely, Dadshah, and Ahmadshah and have been declared outlaws by the Iranian Government. He has further denied that there is any "frontier area" between Iran and Pakistan. He has stated that he has been appointed a "Civil Authority" in terms of clause (b) of para. 1 of Foreigners Order 19:51 by an order issued on behalf of the Central Government in exercise of the powers conferred on it by section 3 of the Foreigners Act, 1946 (XXXVI of 1946). His stand is that the prisoners infringed the provisions of the Foreigner Act and the Passport Act but chat as racial colour has been given to the incident and an agitation has peen started by a section of the public, the detention of these- persons is essential in the interest of "public order" (para. 5 of his affidavit). He has stated that if the detenus "are set at liberty this may give rise to inter-stated and international complications and estrange ment" (Para. 6 of his affidavit). According to him the arrest and detention "are with the full authority and approval of both the Central and Provincial Governments" (para. 7 of his affidavit). The petitioner Jumma Khan Baloch submitted a rejoinder to the affidavit of Major Muhammad Afzal and objected to the validity of the order dated the 1st April 1957, on the ground that it is ambiguous inasmuch as it does not specify or name any foreigner. According to him the detenus do not belong to a gang of bandits. The contents of the order dated the 4tli April 1957 are said to be wrong as the detenus are not Iranian nationals and as their nationality has not been determined. It is contended that they were illegally removed from Turbat to Quetta "with a view to deporting them to Iran by air or" by other means (para. 3 of the rejoinder). But it is admitted that the names given in the order are correct. It is contended that the statement of Ahmad Shah, a copy of which was submitted along with the affidavit of Major Muhammad Afzal, was not 'admissible' unless that statement is admitted by the detenu in Court. It is denied that the detenus are outlaws. It is contended that the detenus were never produced before a Magistrate as required by Article 7 of the Constitution nor were they furnished with any grounds for their detention to enable them to make a representation to the Government. From a reading of the orders dated the first and fourth of April, from the racial resentment and agitation and, according to the respondents the consequent need for taking measures to prevent forcible release, as well as from the contention of the petitioner that the transfer of the prisoners from Mekran to Quetta was with the object of deporting them from Pakistan, it is obvious that in no view of the situation it can be concluded that the detention was of a preventive nature. There was 'arrest' as it should be understood for purposes of Article 7 of the Constitution because the object at that time of taking the unwelcome visitors into custody was not to protect their persons but in consequence of the violation by them of a prohibitory order issued by an executive authority. Detention on the basis of this accusation lasted for a few hours only. The object of subsequent detention has been keenly dis puted by the parties. There is a big divergence between the versions of the petitioner and of the respondents regard ing the object of their transfer to Quetta. The plea of the respondents is that the accusation of the infringement of the prohibitory order was super-added with the consideration of their security against forcible release and therefore they were transferred from the insecure levies lock-up to the District Jail, Quetta. According to this version punitive detention continued and therefore it appears to us that clauses (1) and (2) of Article 7 of the Constitution may be said to be applicable to such detention. But the plea of the petitioner is that they were transferred with the object of their deportation to Iran and that orders of deportation had been actually passed and were awaiting execution. According to this plea the idea of punishment was abandoned and the sole object of their custody was their restoration to their own country. If this plea is accepted then with the abandon ment of the charge of an offence the 'arrest' for purposes of Article 7 can be said to have been nullified and there emerge the possibilities of the view that there was no detention at all for purposes of Article 7 of the Constitution. One begins to see similarities between this custody and the custody of an abducted woman for restoration to her kins-folk or the physical restraint placed before judgment on a defendant in a civil suit or after judgment on the judgment-debtor by a Civil Court in execution of a decree. Neither the custody of an abducted woman nor physical restraint placed on a defendant or a judgment-debtor under such circumstances is detention for purposes of Article 7 of the Constitution as was pointed out by the Supreme Court of India in The State of Punjab v. Ajaib Singh and another (A I R 1953 S C 10). A remarkable feature of this case however, has been that the plea of the respondents which might have suited the petitioner was disputed and refuted on behalf of the petitioner and the plea of the petitioner which might have suited the respondents was contradicted and rejected on their behalf. We have heard interesting arguments on behalf of the parties for three days. It is not for us to settle the form of attack for the petitioner or to frame a defence for the respondents. We wish, however, to take a view of the pleadings which may be most favourable to the persons who are subjected to physical restraint and have lost their liberty to free move ment. It appears to us that the most favourable view, in the present circumstances, to them is that they should be regarded to be under punitive detention after arrest by an executive authority on the charge of an offence. This means that the authorities were under an obligation to observe the provisions of clauses (1) and (2) of Article 7 of the Constitution. These provisions are as under: "(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate." The petitioner has alleged that these provisions were not observed and therefore the detention is illegal and that it is incumbent on the Court to order immediate release. Before we examine this contention of the petitioner, we have to consider a few side issues raised by the parties some of which have a vital significance for the purposes of the decision of this writ petition. Lastly, we propose to examine the contention raised by the petitioner that the detenus cannot legally be externed from Pakistan. Mr. Yahya Bakhtiar, the learned counsel of the petitioner, began his arguments by attacking the first order of Major Muhammad Afzal dated the 1st April 1957. He said that the detenus were not members of the party of Dadshah nor did they belong to the families of his party. He admitted that the detenu Ahmadshah was a brother of Dadshah and that Shambe was a son of Dadshah but expressed his inability to state whether the other detenus belonged to Dadshah's party or to his party's families or not. When pressed to substantiate as to how he questioned the correctness of the description of the detenus, he said that this was only a minor point in his attack against the legality of the action taken by the res pondents. We may, however, add that it appears from the statement of Alimadshah, which was recorded by the D. C. Mekran, that the detenus belong to the patty of Dadshah and their families. He has stated that at the instigation of certain persons he, his brother Dadshah and Dad Karim their brother in-law attacked a 'vehicle' and shot dead four men and one woman taking them to be members of the Iranian police. Then the party returned to their residence at Nilag and after collecting their families tried to make good their escape from the Iranian territory. They planned to enter Pakistan through Gwadar territory. All routes were found well guarded in advance by the Iranian police and therefore they adopted various routes and arrived at a place called Kalagjuggiri, Where the Iranian police opened fire on them killing Hamal son of Dad Shah and injuring some of the womenfolk and children. At last they crossed the Iranian border and entered Pakistan on the 4th of April 1957, where they were im mediately arrested. Mr, Bakhtiar has objected to the admissibility of this statement on the ground that it was made during police custody and has relied on section 26 of the Evidence Act. Section 26 is as follows:- "No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the im mediate presence of a Magistrate, shall be proved as against such person". This section is not helpful to support the contention of the counsel because the statement was recorded by Major Muhammad Afzal who is a Deputy Commissioner as well as Nazim-e-Zila or Magistrate in charge of Mekran District. The counsel has also contended that the statement should not be taken into consideration because according to him it has been recorded in contravention of the principles of natural justice inasmuch as the prosecutor should not be the judge himself and as Major Muhammad Afzal was the officer who ordered the arrest he could not be expected to reliably record a statement of one of the detenus. This objection is clearly incorrect because Major Muhammad Afzal was not trying the detenus, There is no allegation that any coercion or threats were used at the time of recording the statement. We way add that the objection raised by Mr. Bakhtiar against the order dated 1st April 1957 is not substantiated because be is not in a position to state regarding 16 of the detenus as to who they are, what their families are and whether they were in any way connected with the party of Dadshah or not. A bare denial without any basis makes the onus of proof, if there was onus of proof on the respondents, a very light one which can be said to have been discharged by them in the circum stances of this case. It is to be noted that the petitioner who speaks for the detenus can give no information about them. Ordinarily it could be expected that authentic information regarding the identity would be in his possession rather than in the possession of the respondents. The counsel of the petitioner argued that the order of the Civil Authority dated the 1st April 1957, which could be issued under clause (4) of para. 3 of the Foreigners Order, 1951, is invalid, because according to sub-clause (a) of clause (4) of para. 1 of the Order the entry of "any" foreigner into Pakistan could be prohibited. The word "any" according to him, has imposed a condition that the person whose entry is prohibited should be named or he should be described with sufficient particularity. It was pointed out too the counsel that the word "any" can in law also mean "all". He did not dispute the possibility of this construction and was content with repeating his objection. As pointed out above, the description given in the order of the party which entered Pakistan appears to be satisfactory. Sub-clause (b) of clause (4) of para. 3 of the Foreigners Order, 1951 lays down that whenever the Civil Authority issues an order under sub-clause (a), it has to report the matter forthwith to the Central Government. The counsel stated, during the arguments, that this provision was not complied with. It is a question of fact as to whether the required report was sent to the Central Government or riot. He ought to have taken this objection in the rejoinder sub mitted in reply to the counter affidavit of Major Muhammad Afzal, along with which copies of the orders were supplied to him. He did not raise this objection in his rejoinder, and we do not think that his objection is based on any information or knowledge of facts but is merely the result of the reading of sub-clause (b) of clause

4. We, however, did orally inquire from Major Muhammad Afzal whether the report was duly forwarded to the Central Government, and he stated that the requirement was fully complied with. We believe his state ment, because he had in advance deposed in para. 7 of his affidavit that all actions against the detenus were taken with the full authority and approval of both the Central and Provincial Governments. The counsel of the petitioner has raised two objections against the order, dated 4th April 1957. According to him this order is bad, because it contains a direction for the removal of the detenus from the Mekran levies lock-up to the District Jail, Quetta, in spite of the latter place being outside the jurisdiction of the officer who passed the order. Moreover the jailor-in-charge of the Quetta Jail could not, according to the counsel, for this reason receive the detenus in the Jail. Their detention in the District Jail, Quetta, is therefore said to be illegal. He referred to section 15 of the Prisoners Act, 1900 and relied on Nazar Muhammad v. Crown (P L D 1949 Lah. 494). In that case the Court of Session at Karnal had issued a warrant against the accused persons before the partition of India. The accused persons were kept in the custody of the officer in charge of the Central Jail at Lahore. It was contended that the Prisoners Act extended only to the Courts within Pakistan, and not to Courts in India. It was held that the accused persons were duly committed to custody before the Appointed Day, and could be legally detained at the Central Jail, Lahore. This ruling is not applicable to the facts of the present case. It was not denied before us that the Prisoners Act, 1900, applies to Mekran as well as to Quetta. The legality of the detention is basically not questionable. It is, only a matter of internal arrangement as to how prisoners sent from Mekran would be received and detained at Quetta. This objection was not raised in the Writ Petition or in the rejoinder of the petitioner, yet we inquired from Major Muhammad Afzal, who informed us that he had sent the detenus along with a letter and has pointed out that copies of the order dated 4th April 1957, were also sent to the Political Agent and District Magistrate, Quetta, as is indicated at the bottom of the order itself. In our view these objections are not valid and the orders of the Civil Authority dated the 1st April and the 4th April 1957, cannot be said to be invalid on their account. An attempt was made by Mr. Bakhtiar to argue that the detenus were not foreigners. He contended that their nationality was not determined under sections 8 and -9 of the Foreigners Act, 1946, as such no nationality could be ascribed to them and that as their nationality is not known, they cannot be taken to be foreigners. He apparently did not consider that the term "foreigner" is separately defined in section 2 (a) of the Act. The definition is as follows:-- "(a) "foreigner" means a person who- (i) is not a natural-born British subject as defined in sub sections (1) and (2) of section 1 of the British Nationality and Status of Aliens Act, 1914, or (ii) has not been granted a certificate of naturalization as a British subject under any law for the time being in force in Pakistan, or (iii) is not a citizen of Pakistan, (iv) is not a native of the Tribal areas; Provided that any British subject who, under any law for the time being in force in the Provinces and the Capital of the Federation, ceases to be a British subject shall there upon be deemed to be a foreigner". We questioned him clause by clause of the section to find out if the detenus could under or on account of any of them be regarded as non-foreigners. He conceded that they were foreigners. A more substantial objection of the counsel for the petitioner was that Major Muhammad Afzal was not a "Civil Authority" as defined in clause (b) of para 2 of the Foreigners Order, 1951. The definition is as follows :- " 'Civil Authority' means such authority as may be appointed by the Central Government in this behalf for such area as it thinks fit ". The appointment was made by a general notification, dated the 3rd May 1956 which is as follows:-- "In exercise of the powers conferred by clause (b) of para. 2 of Foreigners Order, 1951, which has been entrusted to him by the Central Government, the Governor of West Pakistan, in supersession of all previous notifications in this behalf, is pleased to appoint all the District Magistrates in West Pakistan to be 'Civil Authority' for the purposes of the said order, within their ordinary jurisdiction". The contention of the counsel is that Major Muhammad Afzal is not a 'District Magistrate' of the District of Mekran but that he is only a Deputy Commissioner and Nizim-e-Zila in terms of the Code of Criminal Procedure of Kalat, if this Code is applicable to Mekran, and that his substantial appoint ment is that of an Additional District Magistrate for the purposes of other districts of West Pakistan. He has referred to section 10 of the Code of Criminal Procedure, 1898 (Act V of 1898) which defines a District Magistrate and has pointed out that unless the Provincial Government appoints a Magis trate of the 1st Class under this section and gives him the name of District Magistrate an officer cannot be said to answer this description. As this Code is not applicable in Mekran no Magistrate in this District can be said to be a District Magistrate. Mr. Farooqi who appeared for the Central Government has met this objection by pointing out that the order of the appointment of Civil Authorities dated the 4th of May 1956 was not made under the Code of Criminal Procedure, 1898. It was made under the Foreigners Order, 1951 and therefore the expression "District Magistrate" used in the order should not be construed in terms of section 10 of the Code of Criminal Procedure, 1898, and should be taken to be a short and convenient expression to describe Magis trates-in-charge-of-Districts. He has pointed out that it is not denied on behalf of the petitioner that the Foreigners Act, 1946 and the Foreigners Order, 1951 are applicable to Mekran. If they are applicable to Mekran and the Code of Criminal Procedure, 1898 is not applicable to that District then an attempt to apply section 10 to an order passed under the Foreigners Order, 1951 would amount to applying a law which cannot be applied. The Code of Criminal Procedure of Kalat lays down that one of the Courts under it will be of 'Nazim-e-Zila', which literally means the administrator of a District, and Nazim-e-Zila, according to this Code, is the officer-in-charge of a District. This means that Nazim-e-Zila F is the Magistrate-in-charge-of-District and as such Major Muhammad Afzal answers the description of District Magis trate' used in the order of appointment. We agree with him that section 10 of the Code of Criminal Procedure, 1898 should not be applied to interpret an expression used in the order of appointment issued under the Foreigners Order, 1951 with reference to those regions to which this Code is not applicable and to which the Foreigners Order, 1951, applies. We accor dingly hold that Major Muhammad Afzal is a 'Civil Authority' properly appointed in terms of clause (b) of para. 2 of the Foreigner s Order, 1951. The most important objection of the counsel was that the terms of Article 7 of the Constitution were not complied with. According to clause (1) no person who is arrested can be detained in custody without being informed, as soon as may be, of the grounds of such arrest, nor can he be denied the right to consult and be defended by a legal practitioner of his choice. According to clause (2) every person who is arrested and detained in custody is to be produced before the nearest Magistrate within a period of 24 hours of such arrest and no such person can be detained in custody beyond this period without the authority of a Magistrate. There is no allegation that the detenus were denied the right to consult and be defended by a legal practitioner of their choice, but it is denied that they were informed of the grounds of their arrest within the period of time prescribed in the Constitution by the expression " as soon as may be ". It is also denied that the detenus were produced before the nearest Magistrate within a period of 29 hours of their arrest. The learned counsel of respondent No. 1 tried to take several positions in defence irrespective of some of them being mutually destructive. Firstly, he took the position that about 5 weeks only had elapsed from the date of arrest till the hearing of the petition and that this period was not more than the time indicated by the expression " as soon as may be , no fixed time having been laid down the circumstances of each case are to be taken into consideration and in this case the Central and Provincial Governments were in constant touch with the development of events as a result of which the grounds could not be communicated earlier than the time which has already passed. Secondly, he took the stand that in the circumstances of this case, it was not necessary at all to inform the detenus of the grounds of their arrest because the detenus knew that they had crossed the Pakistan-Iranian border which act was an offence. Thirdly, he took the position that the detenus were waiting to be deported, as admitted by the petitioner in para. 5 of the petition, and therefore there was no inten tion to keep them in custody and as such there was, no question of their defending themselves or making a representation against the order under which they were kept in custody. Lastly, and at a late stage, he took up the position that they were orally informed of the grounds of their arrest on the day of their arrest and submitted an affidavit, dated 14th May 1957 of Major Muhammad Afzal. The relevant portion of the affidavit is as follows :- . . . . . I say that the detenus were produced before me on 4th April 1957 when I passed the order already produced by me and marked ' B " (dated 4th April 1957) and orally explained the contents of the said order to the detenus: The detenus are illiterate persons and do not understand any other language but Baluchi and a dialect of Persian . . . . . . The petitioner has not contradicted this statement and has not filed a counter-affidavit or any objection, whatsoever to it although he was granted an opportunity to do so. Mr. Bakhtiar, the counsel of the petitioner, has criticised orally on the ground that verbal information does not satisfy the requirements of the Constitution. Mr. Farooq's argument is that it is not laid down in the Constitution that the information should be given in writing. The reason for explaining the order orally as given in the affidavit by Major Muhammad Afzal is that the detenus were illiterate persons and did not understand any other language except Balochi and a dialect of Persian. This statement is not denied on behalf of the petitioner. The illiteracy of the detenus would undoubtedly make it impracticable to communicate to them the grounds of their arrest in writing. The" affidavit has been submitted before us at a late stage of the arguments but it has not been contradicted by the opposite side. Mr. Bakhtiar did orally object to the delay in its submission at the time at which request made orally to submit it and Mr. Farooqi explained the delay by pointing out that the objection of the petitioner himself regarding the supply of information of grounds of arrest to the detenus was taken by him in para. 9 of his rejoinder to which no reply could be submitted on behalf of the res pondents. We had therefore to allow the affidavit to be submitted. We considered this to be a better course than declining to consider the objection of the petitioner on the ground that a new objection could not be raised by him in the rejoinder. Since we have considered the objection of the petitioner by taking a lenient view of it, we are unable to find any good ground for rejecting the affidavit submitted in reply to it, on behalf of the respondents. We might have doubted the propriety of the receipt by us of the affidavit if the contents of the affidavit were disputed by the petitioner. We are obliged to accept its contents as true and hold that information of the ground t of arrest was duly given to the detenus in terms of clause (1) of Article 7 of the Constitution. In view of this decision we need not discuss the other pleas raised on behalf of the respondents regarding the supply of information of the grounds of the arrest to the detenus. Mr. Bakhtiar raised one more objection with reference to Article

7. He asserted that the detenus were not pro duced before a Magistrate within a period of 24 hours of their arrest. This objection was also raised by his clients in claim (sic) 9 of the rejoinder, and the affidavit of Major Muhammad Afzal, dated 14th May 1957, is the answer to this objection also. The detenus were arrested on the 4th and were produced before him, who is a Magistrate, on the, same day. We should note that Mr. Farooqi raised an objection almost at the end of the arguments on the third day of the hearing to the maintainability of the writ petition on the ground that it was not filed by the detenus or their relations or personal friends but by the Secretary of a semi-political body who displayed ignorance of facts relating to the detenus of their personal nature and who based the attack on facts which appeared in papers and were of racial or political character. He contended that writ peti tions by such petitioners should not be encouraged as it amounted to an abuse of the process of law. He relied on the relevant observations made in In re: Hardial Singh son of Rallia Singh (A I R 1949 E. Pb. 130.). We recognised the strength of this contention but do not feel inclined to discuss the petition on this short ground because the objection was raised almost at the conclusion of the arguments and because in this case we do not see how detenus, who are absolute strangers in this country presumably without any personal friends and relations and without the means of coming to this Court, could be expected to seek legal redress. While overruling this objection on account of the peculiar circum stances of this case, we recognised its general soundness. Lastly, we have to consider the prayer of the petitioner that the detenus should not be allowed to be removed from the jurisdiction of this Court and to be expelled from Pakistan. The actual language of the prayer is as follows :- " It is, further prayed that the Honourable Court may be pleased to issue an ad interim injunction to the res pondents restraining them from forcibly ejecting the detenus from Pakistan to remove them outside the jurisdiction of this Honourable Court till this petition is finally disposed of by this Honourable Court ". This prayer is made as an interim relief only. We may state at the outset that we were not in the least impressed by this part of the petitioner's case and have been led slowly but surely, as we considered it, to the conclusion that this was the thinest ice on which he stood. The petitioner's counsel had to concede, as stated above, that the detenus were foreigners. They could claim no right under the International Law to insist on remaining within this country, whether as innocent visitors or as escaping offenders. As offenders this country could give them asylum but they had no right to claims it. Under the Municipal Law they were forbidden intruders. They were arrested as offenders and could be tried and punished for the offence. They could also be told only to depart and forced to carry out the direc tions. Section 3 (2) (b) of the Foreigners Act, 1946 says: " In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner- (a) . . . . . . . (b) shall not depart from Pakistan or shall depart only at such times and by such route and from 'such port or place and subject to the observance of such conditions on departure as may be prescribed. Section 11 of the Act provides .- " 11. (1) Any authority empowered by or under or in pursuance of the provisions of this Act to give any direction or to exercise any other power, may, in addition to any other action expressly provided for in this Act; take, or cause to be taken such steps and use, or caused to be used, such force as may, in its opinion, be reason ably necessary for securing compliance with such direc tion or for preventing or rectifying such breach thereof, or for the effective exercise of such power, as the case may be. (2) Any police officer may take such steps and use such force as may, in his opinion, be reasonably necessary for securing compliance with any order made or direction given under or in pursuance of the provisions of this Act or for preventing or rectifying any breach of such order or direction. (3) The power conferred by this section shall be deemed to confer upon any person acting in exercise thereof a right of access to any land or other property whatsover ". Para. 14 of the Foreigners Order, 1951 empowers the Govern ment to defray expenses of maintenance and voyage from the assets of a foreigner in the given circumstances. The provision is as follows :- " Where an order is made' in the case of any foreigner directing that he shall not remain in Pakistan or where a foreigner is refused permission to enter Pakistan or has entered Pakistan without permission, the Central Government may, if it think fit apply any money or property of the foreigner in payment of the whole part of the expenses of or incidental to the voyage from Pakistan and the maintenance until departure of the foreigner and his dependants, if any ". It has not been contended before us that the 18 foreigners on whose behalf the petition was filed could not be legally deported. Only the legality of their detention has been challenged. We have not been able to see the justification of the prayer for preventing their departure within the shortest period of time, because if their custody was otherwise illegal, then prolonging their departure would amount to pro longing their allegedly illegal custody. It appears, as indicated above, that steps taken and physical force applied for securing compliance only with a legitimate order to deport from the country would be neither arrest nor ' detention ' for the purposes of Article 7 of the E Constitution. Such physical restraint as might necessarily result, merely from action taken for this purpose would be neither punitive nor preventive nor malicious nor otherwise illegal detention. If we are right in this view of the law, then by looking from this angle of view we can see the weakness of the entire case of the petitioner. His claim for the release of the detenus even on the ground of any illegality of their arrest on a charge and consequential punitive detention, if there was illegality in it, would appear to be beside the point because as soon as the illegality, which at best constitutes one aspect of the case only, were to be redeemed by an order of release, any authority properly invested with the power to enforce orders to deport could keep the detenus in necessary custody as a step towards securing compliance with the orders to deport from this country. In this case orders of deportation, according to the petitioner, have already been passed. They could be legally passed, and in this case very properly so, because it appears from the whole trend of the writ petition itself that the detenus have not been agreeable to depart as ordered. The orders of this Court for the release of the detenus if passed, under these circumstances would be a dead-letter. There would be no question of disrespect to this Court as infructuousness would be inherent in the situation. It was this process of our thought which led us to announce our decision at the conclusion of the arguments to the following effect: " We are not satisfied that the detenus have a right to remain within the territory of Pakistan. The Govern ment is entitled to take steps and use necessary force to expel them from Pakistan. In these circumstances we cannot order their release. The order of injunction is dis charged and the petition is dismissed ". Reasons of this decision will be given later ". Our reasons are as above. The writ petition is disposed of. A. H. Petition dismissed.