P L D 1961 (W (PLP)

not authorise the President to make such a provision was parried with the argument that the Adaptation Order derived its existt nce from the Post Proclamation Order and that under clause 5 its validity could not be challenged in any Court. 4 The learned Advocate‑General next contended that in view of the circumstances in which the Constitution was abrogated, some of which are set out in the proclamation of the 7th of October 19`8, and repeal of the fundamental rights which included Article 7, it could not have been the intention of the author of the Post Proclamation Order to restrict preventive detention under security laws to a maximum period of three months. In reply, it was urged that the first sentence of the proviso to section 2 of the Regulation was so unambiguous and categorical that it was not susceptible to more than one interpretation and, therefore, the question of finding thg intention of its author did not arise. In any case, there was no material before the Court from which the intention canvassed by the Advocate‑General could be irresistably gathered because a more charitable intention could, with equal plausibility, be attributed to the author that no one should be detained for a period of more than three months without a judicial trial and that the object of doing away with Advisory Boards was to curtail the power of the executive to achieve such an end. Lastly it was contended, and not without force, that where two interpretations are possible, one in favour of the sub ject should be preferred. 5. 1n view of the conflicting interpretation of clause 7 of the Post Proclamation Laws (Continuance in Force) Order I of 1958, and the weighty considerations involved in the decision of the case, namely, the liberty and freedom of the subjects, on one hand, and the administrative necessity in detaining persons of the category mentioned in section 1 of the Regulation withcut any limitation of time, we deem it necessary to refer the following question to a larger Bench for an authoritative pronouncement :‑ Does clause 7 of the Post Proclamation Law (Continuance in Force) Order l of 1958, abrogate the whole of the proviso to section 2 of the Bengal Regulation III of 1818, or only the second clause which enabled the executive to detain a person without judicial trial for a period exceeding three months by obtaining approval of an Advisory Board ?

6. Papers will be laid. before our Lord the Chief Justice to nominate it Bench for early hearing of the reference. (1) P L D 1958 S C (Pak.) 499 JUDGMENT (FULL BENCH) KAYANI, C. J.‑This reference to a Full Bench arises out of << habeas corpus petition for the release of ex‑Captain Muitammad Khan of Azad Kashmir, who has been in detention since June 1959 under section 2 of the Bengal State Prisoners Re<,ulation, No. III of 1818, but the question referred will not be intelligible without some introduction to the relevant law Section 2 (First clause) reads thus :‑ "Whep the reasons slated in the preamble of this Regulation may seem to the Government to require that an individual shouldbe placed under personal restraint, without any immediate view to ulterior proceedings of a judicial nature, a warrant of commitment shall be issued by the Government to the officer in whose custody such person is to be placed Provided that tire period of restraint shall not exceed three months unless, before the expiration of the period, the appro priate Advisory Board set up in pursuance of clause (4) of Article 7 of the Constitution has reported that there is, in its opinion, sufficient cause for such restraint "

2. The reasons stated in the preamble include "the security of Pakistan from foreign histolity and from internal commotion" which "occasionally render it necessary to place under personal restraint individuals against whom there may nor be sufficient ground to institute any .judicial proceeding ..",and section 3 provides for a report on the detenu twice a year "on the conduct, the health and. the comfort of such State‑prisoner, in order that the Government may determine. whether the‑order for his denten tion shall continue in force or shall be modified "

3. The proviso was added by the Adaptation (Security Laws) Order (President's Order No. VIII of 1956), app~irently in pur suance of the following provision in Article 7 (4) of the Con stitution of 1956 :‑ "No law providing for preventive detention shall authorize the detention of a person for a period exceeding three months unless the appropriate Advisory Board has reported before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention."

4. When the Constitution vas abrogated in 1958, Article 4 (1) of the Post Proclamation Order, s;i~cd from anro,Tuti<~ tile Orders set oat in a Schedule, eighteen in number, passed under the abrogated Constitution, and at No. 3 of‑this list occurred "the Adaptation (Security Laws) Order, 1956 (except so far as concerns the reference of a detention order to an Advisory Board)". At the same time, Article 7 of the Post Proclamation Order r‑~luircd that "any provision in any law providine for the reference of a detention order to an Advisory Board shall be of no effect." 5. 'The question referred to the Full Bench is ,I ~~i~r Article‑7 of the Post Proclamation Order abrogates the ~ ,the proviso to section 2 of the Bengal Regulation, or only that part of it which provides for reference to an Advisory Board, preserving that part which forbids detention beyond three months. It was argued for the detenu that his detention was now illegal because it had exceeded three months. .

6. The argument is based on the language of Article 7 which prima facie hits only such provisions of the various security laws as provide for "the reference of a detention order to an Advisory Board", and it is argued that since the proviso to section 2 of the Regulation is capable of being split in two pay ts, the first part being "Provided that the period of restraint shall not exceed three months", the second part can be excised without damage to the first. We read out to the learned counsel the alleged second part‑ "Unless, before the expiration of that period, the appropriate Advisory Board set up in pursuance of clause (4) of Article 7 A of the Constitution, has reported that there is, in its opinion, sufficient cause for such restraint"‑ Our object being to point out that apart from the defect in the composition of what was left in the proviso after excising the first part, the words "unless before the expiration of that period" made the second part dependent on the first, for you could not think of the Advisory Board before deciding in the first instance that the period of restraint should exceed three months, learne counsel, however, argued that the enemy which Article 7 aimed at hitting was the Advisory Board, and he again appealed to its express language.

7. While we think that the proviso would have done well to follow the language of Article 7 of the abrogated Constitution, which instead of saying, as the proviso says, that `the period of restraint shall not exceed three months", merely states that no law "shall authorise the detention of a person for a period exceeding three months unless" the Advisory Board reports that there is sufficient cause for such detention, we do not think it is possible to break it into two parts. Its plain meaning is that if the period of restraint is intended to exceed three months, the matter should be referred to the Advisory Board; not that all restraint as a matter of course has to be for three months. In cases of this nature, a decision may have to be taken immediately by the Government, and the Constitution gave the Government a period of about three months to decide whether the restraint or detention should exceed that period. The provision about three months is, thus, insepar able from the provision relating to Advisory Boards.

8. The object of the proviso was to make provisibn for Advisory Boards, not to make provision for a three months' detention The whole scheme of the Regulation is for along period of restraint during which reports are received by the Government twice a year with a view to modifying the order in the light of the report, and trusting the intelligence of its executive counterpart, the legislature assumed that the Advisory Board, which consisted of two Judges of the High Court, would normally find that there existed sufficient cause for restraint. This intelli gence has not been trusted in vain and we think that if the Government had been made aware of the extent to which the Advisory Board had interferred, it would not have abolished and institution which inspired confidence in the public and which, in some measure, perhaps reconciled a detenu to his incarceration without trial.

9. Article 7 of the Post Proclamation Order says that the provision as to Advisory Boards "shall be of no effect". If Article 7 is interpreted as we are asked to interpret it, restraint becomes illegal after three months. But restraint becomes illegal after three months even if an Advisory Board exists, and no reference is made to it. What, then, is the effect of Article 7, if it only means that the Advisory Board is to be excluded ? It will be of no effect if the detention becomes illegal after three months. It will be of effect only if detention continues to be legal even if there is no reference to a Board. In short, Article 7 aims at the removal of the entire provision connected with Advisory Boards, and the restraint does not become illegal after three months.

10. We answer the reference accordingly. A. H. Reference answered accordingly.