P L D 1957 Karachi 190 (PLP)

INAMULLAH. J.

This is an application under section 491 of the Code of Criminal Procedure by one Fazal Ahmad Ghazi who was ordered under subsections (1) and (5) of section 3 of the Baluchistan Public Safety Regulation, 1947 by the Government of West Pakistan to be detained for a period of six months from the date that he was arrested. We are informed by the learned advocate for the applicant, Mr. Riaz Hashmi, that his client was arrested on 9th November 1955. The date of the arrest for the purposes of the present application, however, is not important. Another order had been passed on 4th May 1956, by the Home Secretary to Government West Pakistan by order of the Governor of the West Pakistan extending the period of detention of the detenu under subsections (1) and (5) of section 3 of the Baluchistan Public Safety Regulation 1947, for six months until " 8th November 1956 ". We have heard the learned advocate for the applicant and the learned Additional Advocate-General for the State. We are of the view that this application should be allowed on two grounds- (i) The grounds of detention have not been served on the applicant "as soon as may be" within the meaning of subsection (5-A) (i) of section 3 of the Baluchistan Public Safety Regulation of 1947 ; (ii) The order dated the 4th of May 1956, being an extension of an illegal order dated the 4th of November 1955, was illegal and inoperative. So far the first ground is concerned, we may state that according to the affidavit filed by one Khurshid Ali. Office Superintendent of the Additional Advocate-General, it would appear that the grounds of detention is dated the 16th of May 1956. The affidavit of Mr. Khurshid Ali does not disclose the date on which the said grounds of detention have been served on the detenu; An affidavit in reply has been filed by the detenu himself. He has stated in the affidavit, which is dated the 4th June 1956, that the grounds of deten tion have not been supplied to him at all. In this connection, we may also state that the present application was moved in this Court on 26th March 1956 and the same was admitted on 17th April 1956, by a Division Bench of this Court. One of the grounds, as would appear from the affidavit filed by one Sher Muhammad on behalf of the detenu states that no ground of detention had been served on him. This affidavit is dated the 16th of April 1956. This application came before us on the 14th May 1956. The learned Additional Advocate-General on that date asked for adjournment, and we adjourned the case at his request. The relevant portion of subsection (5-A) (i) of section 3 of the Baluchistan Public Safety Regulation, 1947, reads as under :- "Where a detention order has been made under section 3, the authority making the order shall, as soon as may be, communicate to such person the ground on which the order has been made and inform him that he is at liberty to make a representation against the order." This subsection was introduced in order to bring the Baluchis tan Public Safety Regulation in line with the Constitution. Clause (5) to Article 7 of the Constitution reads as under :- "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order:" An amendment to section 3 of the Baluchistan Safety Regula tion 1947 was made on 23rd March 1956, and the same came into operation from the same date. The provisions of sub section (5-A) (i) of section 3 of the Baluchistan Regulation I of 1947 are mandatory requiring the executive to communi cate to the detenu the ground of detention. The question before us is a short one : whether the delay of about two months in communicating the grounds to the detenu is such as to lead to an inference that it was not in keeping with the spirit of the words "as soon as may be" as provided under clause (5) of Article 7 of the Constitution, or subsection (5-A) (i) of section 3 of the Baluchistan Public Safety Regulation 1947. The question whether the grounds had been communicated to the detenu "as soon as may be" is a question of fact, which would depend upon the particular facts and circum stances of each case. In this case, the detenu was detained on the 4th November 1955 at a time, no doubt, when the Baluchistan Safety Regulation did not require the communica tion of the grounds. It, however, became mandatory since the amendment of section 3 of the Baluchistan Public Safety Regulation came into operation on the 23rd March 1956. We have mentioned this date of 4th November 1955 only to emphasise that the delay in this case was an inordinate one inasmuch as whatever the grounds may have been, was within the knowledge of the detaining authority since November 1955. The detaining authority could easily on the amendment having been made to section 3 of the Baluchistan Public Safety Regulation, 1947, communicate the grounds latest by the first week of April 1956, in order to enable the detenu to make such representation as he thought fit. In this connection, we may also mention that section 6 of the Security of Pakistan Act XXXV of 1952 requires that the grounds of detention should be communicated to the detenu within one month. The words "as soon as may be" to our mind, strongly denote that the detaining authority would expeditiously enable the detenu by supplying the grounds to make a representation to the authority concerned. We find difficult to read the words "as soon as may be" to mean an indefinite period, as the learned Additional Advocate-General would like us to do. Moreover, as we have already observed, it is a question of fact whether the authority concerned has supplied the grounds "as soon as may be" or not. In the present case, we find that the grounds have not been supplied "as soon as may be" as required by subsection (5-A) (i) of section 3 of the Baluchistan Public Safety Regulation 1947. In support of this view, we may mention two cases : the case of Murat Patwa v. Province of Bihar (A I R 1948 Pat. 135) and the case of Muzaffaruddin and Muhammad Shafi v. The Crown (P L R 1949 Kar. 77). The other ground that remains to be considered is whether the order of 4th May 1956, is an extention of an illegal order or not. The relevant portion of the order detaining the detenu, dated the 4th May 1956, reads as under :- "The Governor of the West Pakistan is hereby pleased to extend the period of detention of the said Fazal Ahmed Ghazi for a further period of six months, until 8th Novem ber 1956". On the construction of the language of this order, it is clear that this is an extension of an order that had already been passed on 4th November 1955 detaining the detenu. The question before us is whether this extension can be held to be legal. The provisions of Article 7 of the Constitution, which requires the communication of the grounds of deten tion to the detenu and a reference to an Advisory Board, and of Article 4 of the Constitution which states that any existing law which is inconsistent with the provisions of the Constitu tion as given in Part II of the Constitution will be void, require consideration. Article 7 is one of the Articles embodied in Part II of the Constitution. The Baluchistan Public Safety Regulation, 1947, did not contain any provision as regards the communication of the grounds of detention to the detenu, and a reference to the Advisory Board. Section 3 of the Baluchistan Public Safety Regulation would, therefore, be inconsistent with Article 7, of the Constitution and there fore void as it stood on 22nd March 1956. Any order, there fore, passed in pursuance of section 3 of the Baluchistan Regulation as it stood on 22nd March 1956, would be an illegal order. The first order detaining the detenu, admittedly, was passed on 4th November 1955, and would, therefore, be an illegal order. No fresh order admittedly was passed, except the one we have already referred to i.e., the order of 4th May 1956, by the Government of West Pakistan. Mr. Riaz Hashmi, the learned advocate who appears for the application has relied on the case of Arbab Muhammad Hashim Khan v. The Crown (P L D 1954 F C 1) in supports of his contention that an extension of an illegal order would be illegal. We respectfully agree with the principle laid down by their Lordships of the Federal Court in that case. We, therefore, hold that the order dated the 4th of May 1956, being only an extension of an illegal order is illegal and inoperative. We would, for the reasons given above, allow the applica tion. The applicant to be set free forthwith. A. H. Petition accepted.