P L D 1961 (W (PLP)

West Pakistan." 3‑3‑1961. "Whereas Masum son of Torsam, caste Afghan, resident ‑ of Tehkal Payan, P. S. Tehkal, District Peshawar was arrested and detained for a period of three months with effect from the 23‑9‑1960 under subsection (1) of section 3 of the N.‑W. F. P. Public Safety Act 1948 ; And whereas the Government is satisfied that with a view to preventing Masum son of Torsam from acting in a manner prejudicial to public safety and the maintenance of public order, it is necessary to extend‑the period of his detention ; Now, therefore, in exercise of the powers conferred by sub sections (1) and (7) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Governor of the West Pakistan is pleased to extend the period of detention of the aforesaid Masum son of Torsam for a further period of six months with effect from the issue of this order and to order that he shall remain .in the custody of Inspector‑General of Prisons, West Pakistan. And further to order that the said Masum son of Torsam shall be treated as Class III detenu. By order of the Governor of West Pakistan, Dated Lahore The 3‑3‑1961. (Sd.) Secretary to Government, West Pakistan, Home Department."

2. The first order dated the 21st of September 1960 came into effect on the 23rd of September 1960 when Masum was arrested. According to this order, Masum had to be detained for three months from the date of his arrest. Thus, the order of his detention was to expire on the 22nd of December 1960. The order is ex facie regular and contains a recital about the satisfaction of Governor. A recital in an official record that the authority directing the arrest was satisfied graves rise to a rebuttable presumption, under section 114 (e) of the Evidence Act, that the action was properly taken. In rebuttal the detenu has not led any evidence to show that the order was mala fide or was based on any ulterior motive. In the circumstances it has to be held that Masum was legally arrested and detained under a valid order of the Governor of West Pakistan dated the 21st of September 1960.

3. The second order dated the 22nd of December 1960 was passed under section 3 of the N.‑W. F. P. Public Safety Act, 1948 (hereinafter referred to as the Act) and it extended the period of detention by six months. The West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) (hereinafter referred to as the Ordinance) was published on the 2nd of December 1960 and there being nothing to the contrary the Ordinance came into force with effect from the date on which it was published in the official Gazette, i.e., the 2nd of December 1960. The Ordinance had repealed the Act. Thus the second order dated the 22nd of December 1960 was under a statute which had ceased to exist. Learned counsel for the State relied on the saving clause of the Ordinance. Section 28 ibid. reads :‑‑-- " (1) (a) Sections 3, 4, 6, 7, 12, 17, 21, 22, 28, 29 and 30 of the Baluchistan Public Safety Regulation, 1947, and sections 2, 4, 6, 7, 12, 17, 21, 22, 28, 29 and 30 of the Baluchistan States Union Public Safety Regulation are hereby repealed. (b) The following Acts are hereby repealed :‑ (i) The Bahawalpur State Public Security Act, 1944. (ii) The North‑West Frontier Province Public Safety Act, 1948, (iii) The Punjab Public Safety Act, 1949 and (iv) The Khairpur Public Order and Detention Khairpur Act 1954. (2) All such orders (whether notified or not) made and direc tions issued under the enactments repealed under subsection (1) as were in force immediately before the commencement of this Ordinance shall, so far as they are not‑ inconsistent with the provisions of this Ordinance continue in force and shall be deemed to have been made and issued under this Ordinance." This section does not help the State. Section 28 keeps alive orders passed under the repealed Act while it was in force. The second order should have been an order of detention and had to be passed under the Ordinance and not under the Act which had been repealed. The second order (dated 22nd of December 1960) was, therefore, null and void.

4. The last order dated the 3rd of March 1961 under the Ordinance is an order of extension. It extended the term of deten tion for a period of six months with effect from the date of the issue of the order. Relying on Arbab Muhammad Hashem Khan v. The Crown (PLD 1954FCI) learned counsel for the petitioner argued that the first order dated the 21st of September 1960 had expired on the 22nd of December 1960 and, therefore, the detention of Masum from the 23rd of December 1960, to the 2nd of March 1961 was not based on a valid order. The detention during this period was, therefore, illegal. The subsequent order of extension dated the 3rd of March 1961 did not remedy the defect. If the last order were one of detention and not of extension the position might have been different.

5. In Arbab Muhammad Hashem Khan v. The Crown, Abdul Wali Khan was detained for six months vide order dated the 8th of June 1951 passed under the N: W. F. P. Public Safety Act (XXI of 1948). He was, therefore, entitled to be released on the 8th of December 1952. No order of his further detention was passed before the 8th of December 1952 but an order extending the period of detention was made on the 10th of December. It was urged on behalf of the detenu that his detention on the 9th of December 1952 not being under any order was illegal and, therefore, the order of the 10th of December 1952 and a subsequent order dated the 16th of May 1953 were also illegal as they were orders of extension, extending the period of detention. The Advocate‑General argued for the State that the order of the 10th December be regarded as a fresh order detention though it purported to be an order of extension. Shahabuddin, J., with whom Cornelius, J., concurred observed :‑ "The order of 10th December 1952 is undoubtedly an order of extension. That there is a material distinction between a fresh order of detention and an order of extension of detention is common ground and the very fact that the learned Advocate General pressed for the order of 10th December 1952 being regarded as a fresh order emphasises the importance of the distinction which lies in this that a fresh order is not affected by the previous detention having been illegal, whereas an order of extension of detention becomes illegal if the detention, which it extends, was itself illegal. It, therefore, appears to me that when an order purports to be one of extension it cannot be regarded as an original order unless there be circum stances that compel us to such a conclusion. * * * * * I, therefore, consider that the detention of Khan Abdul Wali Khan on the 9th was illegal ; and as the order of 10th December 1952 is one of extension of that detention and, as already 'held by me, the latest order of 16th May 1953 is another order of extension, the present detention of Khan Abdul Wali Khan is, therefore, illegal. I regret that in reaching this conclusion I have not been able to agree with my Lord the Acting Chief Justice." The present Chief Justice of Pakistan, Cornelius, J., concurred with Shahabuddin, J., and observed as follows : -- "The order relating to Abdul Wali Khan subsequent to the 10th December 1952 is one dated the 16th May 1954 and is, in terms, an order of an extension of an existing detention. Such an order plainly cannot operate to validate either the detention which it seeks to extend, or the order by which such detention has been directed. If, therefore, the detention of Abdul Wali Khan on the 9th December 1952 was illegal, it could not be extended in any legal sense by the order of 10th December 1952 and the further extension by the order of the 16th May 1953 is, on the same ground, equally bad in law." A. S. M. Akram, J.; the then Acting Chief Justice, took a different view, and observed:-- "No doubt the word `extension' has been used rather loosely in the several orders of detention ; at times it has been used for specifying a particular period of detention and at times for signifying the lengthening of that period, but if in the light of the circumstances known to Government an order of detention is made, the mere use of inappropriate language or the statement that it is an extension will not invalidate the order, if the order itself is a proper order which carries out the purpose of the statute. In doing substantial justice in the exercise of prerogative powers mere technical errors or formal defects are hardly to be taken into consideration ; one has to look to the substance of the thing and not to the form of it. I cannot say that in this case there has in fact been .any injustice to the detenus even if the word `extension' is considered to be inapt with regard to some of the orders." In view of the majority opinion, Abdul Wali Khan's petition was accepted and he was released.

6. In Basanta Chandra Ghose v. Emperor (AIR 1945 FC 18), Spens, C. J., held:-- "The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked in habeas corpus proceedings. If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the fact of the later valid order the Court can direct the release of the petitioner." In re : Javantilal Nathubhai Parekh (A I R 1949 Born. 319) a Full Bench of the Bombay High Court held :‑ "Where a person is arrested illegally and imprisoned, and when in imprisonment an order of detention under Bombay Public Safety Measures Act is served upon him and the detenu applies for a writ of habeas corpus, what the Court is concerned is not whether the arrest of he applicant is legal or illegal but whether his detention under the order passed is legal or illegal. The detention of which the complains by his application is the detention in the jail on the date when he made the application, and it is immaterial for the determina tion of the question as to whether his prior arrest and his prior detention were or were not legal. The question under the Habeas Corpus Act is as to whether the detention of which the detenu complains, that means the detention at the time when he seeks to take out. a writ of habeas corpus, is valid or not, which again resolves itself into the question whether at the moment there is for his detention a valid order in existence, and if there be such an order, then no writ of habeas corpus can be issued in his favour. It is not as if in this case after an illegal order for detention was made, subsequently, because of powers conferred, an order was made continuing the original order for detention which was in itself illegal. In such cases, where the subsequent order, even though made after the amendment conferring greater powers, continued the original order for detention which was bad, the subsequent order is also bad." The Federal Court and the Bombay Court view is not different from the view taken in Arbab Muhammad Hashem Khan v. The Crown. If a valid order is produced at the time of the hearing of the petition, the detenu cannot be released. In the present case, there is no valid order of detention. The order of the 3rd of March 1961 is merely an order of extension and, it was 1 made to continue a detention which in itself was illegal. There fore, the order of the 3rd of March 1961 cannot be treated as a valid order of detention.

7. In view of what has been said above, I accept the petition and direct that Masum be released forthwith if not required in connection with any other matter. K. B. A. Petition accepted.