P L D 1954 Peshawar 20 (PLP)

MUHAMMAD SHAFI, J.‑On the 9th of March 1953, Mr. M. Ahmad, Chief Secretary of Government N.‑W. F. P‑ province, issued a detention order in respect of Hamesh Gul, son of Inzar Gul, of village Tehkal Bala, Tahsil and District Peshawar. It was addressed to the Inspector‑General of Police N.‑W F. Province, directing him to arrest the said Hamesh Gul and commit him to the custody of Police for detention for a, period of three months from the date of the arrest, because His Excellency the Governor, North‑West Frontier Province was satisfied that with a view to preventing Hamesh Gul from acting in a manner prejudicial to public safety, it was necessary to arrest and detain him under subsection (1) of section 3 of the N.‑W. F. P. Public Safety Act of 1948 (hereinafter called "The Act"). Hamesh Gul was, as a consequence of the above order, arrested on the 14th of March 1953. Subsequently on the 30th of March 1953, a revised order of detention signed by the same Officer was sent to the Inspector‑General of Police N.‑W. F. P., for the detention of the said Hamesh Gul in Police custody for a period of three months from the date of arrest. This order seems to have been made in view of some amendment having been made in the meanwhile of section 3 of the Act. On the 11th of June 1953, Mr. M. Ahmad Chief Secretary to the Government N: W. F. Province, sent an extension order to the Inspector‑General of Police N.‑W. F. P., for Hamesh Gul's conti nued detention for a further period of one year with effect from the 14th of June 1953. This time he was to be detained in the custody of the Superintendent Central Prison, Peshawar, and not in that of the Police as was done in the two earlier orders. There was, however, a note made on this order to the following effect :‑ "The Government of the N.‑W. F. P. is further pleased to authorize the A. I. G. (C. I. D.) to .take this man out of jail whenever he is required for interrogation." On the 28th of April 1953, while the detenu was still in the Police custody and no extension order had yet been passed, Ajab Gul, son of Inzar Gul, of Tahkal Bala, elder brother of Hamesh Gul, made an application to this Court under section 491 Cr. P. C. questioning the legality of the detention of Hamesh Gul, and requesting that he be set at liberty at once. It was mentioned in the application "That section 3 of the Public Safety Act contemplates detention for the purposes of preventing a person from acting in any manner prejudicial for the safety of the State. Section 3 does not contemplate interrogation and use of third degree methods which are outside the scope of this Act". It was further mentioned therein that the detention of Hamesh Gul was mala fide, and was an act of illegal and unjustified oppression. A notice was issued to the Government and Mr. M. Ahmad, the Chief Secretary, was examined as a Court‑witness. Since the detention was made under section 3 of the Act, it will not be out of place to reproduce the section here. It runs as under :‑ "(1) The Provincial Government, on being satisfied that any person has committed any prejudicial act or that with a view to prevent him from committing any prejudicial act, it is necessary so to do, may order the arrest without warrant of such person, and in effecting such arrest all means necessary for the purpose may be used. (2) The Provincial Government may commit any person arrested under the last preceding subsection to such custody in such part of Pakistan and for such length of time, as the Provincial Government may, from time to time order in that behalf. (3) The Provincial Government may, by general or special order; determine the conditions as to the maintenance, discipline and punishment of offences and breach of discipline which shall be applicable in the case of persons committed to custody as aforesaid". The 'prejudicial act' talked of in the above section is defined in section 2 of the same Act as under :‑ "Prejudicial act shall include any act which is intended or is likely‑ (i) to prejudice the relations of the Government of Pakistan or Provincial Government with, or the maintenance of peace conditions in any State, foreign power or tribal area, adjacent to the North‑West Frontier Province ; (ii) to endanger public safety or the maintenance of the public order: (iii) to bring into hatred or contempt, or to excite disaffection towards the Government established by law ; (iv) to promote feelings of enmity and hatred between different classes of people in the North‑West Frontier Province or any State or Tribal Area ; (v) to cause fear or alarm to the public or to any section of the public: (vi) to disrupt the integrity of Pakistan as by law established; (vii) to associate itself with any movement prejudicial to the interest of Pakistan". The Explanation attached to this definition is not relevant for the purpose of this case, and is, therefore, not reproduced. Section 3 was amended by the N.‑W. F. P. Public Safety (Amendment) Act III of 1953 which received the assent of the Governor‑General of Pakistan on 2nd January 1953. A new section 3 was substituted for the old one, and this reads as follows :‑ "3. (1) The Provincial Government, if satisfied that with a view to preventing any person from acting in any manner preju dicial to public safety or the maintenance of public order or to the maintenance of supplies and services essential to the commu nity, it is necessary so to do, may by order in writing direct the arrest and detention in such custody, as may be prescribed under subsection (3) of such person for such period as may be specified in the order, and the Provincial Government, if satisfied that for the aforesaid reasons it is necessary so to do, may extend from time to time the period of such detention. (2) (i) An order of arrest under subsection (1) may be addressed to a Police Officer and such Officer shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer shall commit the arrested person to such custody as may be prescribed under subsection (3). (ii) A Police Officer not below the rank of Sub‑Inspector, if satisfied on receipt of credible information that a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdic tion, may arrest him without a warrant in the same manner as he would have done if such order of arrest had been addressed to him. (3) So long as there is in force in respect of any person an order under this section directing that he be detained he shall be liable to be detained in such custody and under such conditions as to maintenance, discipline and punishment for offences and breaches of discipline as the Provincial Government may, from time to time, prescribe by general or special order. (4) The Provincial Government may, at any time, release a person detained under this section". It is obvious that the first order of detention was passed under section 3 as it originally stood, and the subsequent two orders under the amended section 3 of the Act. The question for determination is whether the order under which the detenu now stands detained is a legal order or not. The detention order or the subsequent extension order under section 3 of the Act must satisfy the following conditions :‑ (1) It should be made by the Provincial Government, and (2) it should be made only when the Provincial Government is satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, or to the maintenance of supplies and services essential to the community, it was necessary so to do. The order may direct the detention in such custody and under such conditions as to maintenance, discipline, and punishment for offences and breaches of discipline as the Provincial Government may, from time to time, prescribe by general or special order. The Act does not define the term Provincial Government. This term has not even been defined in the N: W. F. Province General Clauses Act. It has, however, been defined by the Central General Clauses Act, 1897 as adapted by the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947, as under :‑ "Provincial Government‑ (a) as respects anything done or to be done after the establish ment of the Federation of Pakistan, shall mean in a Governor's Province, the Governor, and in a Chief Commissioner's Province, the Central Government ; (b) as respects anything done before the establishment of the Federation of Pakistan, but after the commencement of Part III of the Government of India Act, 1935, shall mean in a Governor's Province, the Governor acting or not acting in his discretion, and exercising or not exercising his individual judgment, according to the provision in that behalf made by and under the said Act, and in a Chief Commissioners Province the Central Government ; and (c) as respects anything done before the commencement of Part III of the said Act, shall mean the authority or person authorised at the relevant date to administer executive government in the Province in question. This definition applies only to the Central Acts and not to the Provincial Acts as is clear from section 3 of the General Clauses Act itself, which provides that the definitions given in the Act only apply to the Central Acts, and the Regulations made after the commencement of the General Clauses Act of 1897. This definition, thus, bas no relevancy so far as the N.‑W. F. P. Public Safety Act is concerned. The term Provincial Government is not defined in the Government of India Act, as adapted by the Pakistan (Provisional Constitution) Order, 1947 (hereinafter referred to as the Government of India Act), but the term Local Government has been defined therein as follows :‑ "Local Government means any such Governor in Council, Governor acting with Ministers, Lieut‑Governor in Council, Lieut‑Governor or Chief Commissioner as was at the relevant time a Local Government for the purposes of the Government of India Act, or any Act repealed by that Act, but does not, save where the context otherwise requires, include any Local Government in Burma or in Aden". Taking a clue from these definitions and from the sense in which this term has been used in the Government of India Act, and in the Act, it can be said without fear of contradiction that the Provincial Government means the authority, which exercises for the time being the Executive Powers in the relevant Province. Under section 49 of the Government of India Act, the executive authority of each Province extends to the matters with respect to which the legislature of the Province has powers to make laws and it has to be exercised by the Governor either directly or through officers subordinate to him. In the exercise of these powers the Governor has got to be aided and advised by a Council of Ministers, which the Governor has a right to choose and summon. Originally the Governor was to exercise to some of his functions in his discretion, and arrive at his individual judgment in certain cases specified in the Government of India Act. The Indian Independence Act, however, took away both the discretion and the individual judgment of the Governor with the result that all his functions now have to be performed as aided and advised by his Council of Ministers, and that is the Provincial Government of a Province. It has now to be seen whether Hamesh Gul's detention or its' subsequent extension was made by the competent authority, namely, the Provincial Government. Mr. M. Ahmad, the Chief Secretary to the Government N.‑W. F. P., as had already been observed, was called by us as a witness in the case. He gave his evidence from his Office file No. 46/558 P. 9, of 1953. He stated that the detention order of Hamesh Gul dated 9th March 1953, was issued on the reference made by the Inspector‑General of Police N.‑W. F. P. on 28th February 1953. He first obtained the order of Hon'ble the Chief Minister (Hon'ble Khan Abdul Qayum Khan), and then issued the necessary warrant of arrest. A reference to the actual order on the file would show that on the receipt of the secret letter from the Inspector‑General of Police, the Chief Secretary wrote on the margin of the copy of the secret letter attached with the Inspector‑General's letter the words "For perusal. I think Hamesh Gul should now be arrested and interrogated. Detention orders for three months may issue. This note is dated 2nd March 1953. Hon'ble the Chief Minister (Khan Abdul Qayum Khan) then wrote the following on the 7th of March 1953, "Suggestion approved". It was after this that the actual detention order was signed by the Chief Secretary on 9th March 1953, and sent to the Inspector General of Police for necessary action. This order was superseded by a subsequent order of the 30th of March 1953. Speaking about this order the Chief Secretary stated the following: "I am unable to explain why this order was issued without my asking the clerk, who is dealing with this case. I have not been able to look at any order of the Provincial Government authorizing the detention of Hamesh Gul or approving my order for the same". From this statement of the Chief Secretary, it is clear that this order was made by the Chief Secretary, and did not originate from either the Governor, his Council of Ministers, or Hon'ble the Chief Minister of the N.‑W. F. Province. The detention was subsequently extended by an extension order dated 10th June 1953, which is again signed by Mr. M. Ahmad, the Chief Secretary. It is this order under which Hamesh Gul has been detained and remained so until the time his habeas corpus application was heard. Making a statement about this order, the Chief Secretary said in his evidence the following :‑ "On 30th May 1953, the Inspector‑General of Police again made a reference that it was necessary to keep Hamesh Gul under detention for a further period of one year. It was on this reference that the detention order of the 10th of June 1953, was issued. I issued the order and the detention warrant as Hon'ble the Chief Minister was not available on account of his absence from Nathiagali. I submitted the case later on to him for approval. This was after the detention order was served on Hamesh Gul. The Hon'ble the Chief Minister approved it on the 15th of October 1953". This statement of Mr. M. Ahmad leaves no room to doubt that the extention order, like the order immediately before that, was made for whatever reasons it may be, by the Chief Secretary and not by His Excellency the Governor, his Council of Ministers or Hon'ble the Chief Minister of the N.‑W. F. Province. It consequently follows from the above discussion that the detention order and the extension order were not made by the Provincial Government, but by Mr. M. Ahmad, the Chief Secretary. It is also clear, and has in fact been admitted by Mr. M. Ahmad in his statement that he has no statutory powers to detain any man under the Act. The facts reproduced above were discovered from file No. 46/558 P. 9, of 1953, and it was to elicit these facts that Mr. M. Ahmad was summoned by one of us as a Court‑witness. He made a very straightforward statement throughout, but at the end, taking a hint from the Advocate‑General, he stated that be was not prepared to give permission that the file be shown to the defence counsel, because it contained the matter relating to the affairs of the State. Under section 123 of the Evidence Act, an officer as the head of a certain department of a Government, can give or withhold his permission to somebody called to make a statement to give evidence derived from unpublished official record relating to any affairs of the State. It is not disputed that file No. 46/558 P. 9 of 1953 is an unpublished official record. Under section 124 of the same Act, a public officer cannot be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by such disclosure. If the Chief Secretary considered that the above‑mentioned file contained something relating to the affairs of the State, or there was some communi cation on that record which was made to him in his official confidence, he could have very well refused to send the file on to this Court. The learned Advocate‑General, explaining as to why the file was sent to this Court, submitted that the Provincial Government by doing so wanted to take the Court "in confidence", but it certainly did not want the file to be shown to the defence counsel. This argument does not commend itself to our judicial conscience. It is the paramount duty of a Court of law to see that all parties arraigned before it have complete confidence in its impartiality. If one party is conceded the privilege of taking the Court into its confidence and of thus influencing the Court's opinion behind the back of the other party, then the feeling of confidence in the administration of its justice which is so essential to the social order and security is completely frustrated. All parties to a case have an equal right to bring all facts to the notice of the Court. but they must do so in an open Court and in the presence of the other party and not in private. The learned Advocate‑General when his attention was drawn to the above rule of justice expressed his sorrow that the file was at all sent to this Court, and stated that in future Government shall be more careful and not send such files to it at all. The attitude which the Provincial Government through its Advocate‑General con templates to adopt is extremely unfortunate, because it would materially affect a detenu's case, who is detained without a trial and without knowing the reasons as to why he is put behind the bars. It certainly would enhance the painfulness of his case. This Court, however, as it is at present constituted will not be able to shake the idea off its mind in the habeas corpus petitions when they are brought to its notice, that the Chief Secretary of the North‑West Frontier Province is in the habit of issuing warrants of detention without the order of the statutory authority. In any case, the Provincial Government and the learned Advocate‑General should realize that it is the duty of all the parties concerned to acquaint the Court with all the facts which are within their respective knowledge, and if the Court arrives at the conclusion that any party is withholding or suppressing any evidence which it is not in law entitled to withhold then it shall have to bear the consequences entailed to it. The learned Advocate General then contended that as the Chief Secretary stated in his evidence that he withheld the permission (presumably to himself) to give evidence derived from the file referred to above, and that he was not prepared to disclose communication qua the detention of Hamesh Gul made to him in his official confidence, the Court should treat the evidence of the Chief Secretary as not recorded, and proceed to decide the case without it. We must confess that we have not been able to understand the sense behind this argument. Chief Secretary's evidence was recorded in open Court. The Advocate‑General himself cross‑examined him. This evidence is now a part of this Court's record, and, if we may say so is an integral part of it. It can under no circumstance be taken off the record, and consequently off' our consideration. Learned Advocate‑General, however, wishes us to shut our eyes to all the facts mentioned above, and hold that the order has in fact been made by His Excellency the Governor, because it is expressed to be taken and is made and executed in his name, and is authenticated in the manner specified in the Rules of Business, framed under section 59 of the Government of India Act, in 1951, for the conduct of Business of the Provincial Government of the North‑West Frontier Province (hereinafter called the Rules of Business). It will be convenient if section 59 of the Government of India Act is reproduced at this stage. It reads as follows :‑ "(1) All executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Provincial Government, and for the allocation among Ministers of the said business. (4) The rules shall include provisions requiring Ministers and Secretaries to Government to transmit to the Governor all such information with respect to the business of the Provincial Government as may be specified in the rules, or as the Governor may otherwise require to be so transmitted". Under the Rules of Business, the business of the Government is classified and distributed among several Departments, which are specified in the schedule attached with the Rules. The Departments are then organized by the Secretaries concerned into a number of working units known as branches. Each Depart ment consists of a Secretary to Government, and of such other officials subordinate to him as the Government may determine. The Rules contemplate joint Secretaries, Deputy Secretaries, Under Secretaries and Assistant Secretaries, to be appointed to the Depart ments, if the Secretary finds it necessary so to do. Preventive Deten tion and Administration of Press Laws, which are grouped together are placed in Branch C (Public Order) of the Political Department of the N.‑W. F. P. Government. The Chief Secretary is in charge of this Department. Under rule 7 of the Rules of Business, the following officers are authorized to authenticate by signature all orders and other instruments made and executed in the name of the Governor :‑ (i) Secretary. (ii) Joint Secretary. (iii) Deputy Secretary. (vi) Under Secretary, or (v) Assistant Secretary, in the Deportment, concerned. Ordinarily, therefore, if an order of detention or an extension order is produced before a Court of law, and is authenticated by one of the Secretaries mentioned in Rule 7 of the Rules of Business the Court shall not call in question such order, on the ground that it was not an order or instrument made or executed by the Governor. But all that it means is that the Courts shall raise a presumption that the order so expressed, made, executed and authenticated is made by the Governor, which presumption can be rebutted by bringing to the notice of the Court the facts to the contrary. To hold otherwise would be a deliberate travesty of justice and bring the law into extreme ridicule, because Secretary, may, even an Assistant Secretary can make an order affecting the liberty of a certain person, and express it as having been taken in the name of the Governor, and thus tie down the hands of a Court of law so tightly, that it should not be able to take any action in the matter at all. It is true that the British Parliament, which enacted the Government of India Act, containing section 59, is the Parliament of a country where democracy and respect for law has reached its climax. The people there cannot even imagine that an officer of the Government can usurp the powers of the Ministers and exer cise them with such boldness and impunity. But in spite of that we cannot conceive that the British Parliament was not conscious of the fact while making the above law, that in a small province situated in a remote corner of India, where democracy bad not even yet come into existence and where respect for law was scanty, there might come into being a Secretary, who would in actual practice usurp the functions of the Provincial Government, and make the orders taking away the liberty of a citizen. It cannot therefore, be said to have laid down a hard and fast rule that even if an unauthorized and illegal order is passed, it must be given effect to provided it is expressed to be taken in the name of the Governor, and is authenticated by a Secretary. A State comes into existence for the benefit of the people therein. All policies, political, social and economic, are directed towards the betterment of those people. The laws are made for the preservation of the individual and collective liberty and security of the people of the State. It is inconceivable that a law can be framed by no less a Body than the British Parliament itself, which can authorize a person not chosen by the people nor responsible to them to take away the liberty of one of its individuals. The liberty of a person as well as of a Nation is something sacred, which it is the duty of every person living in the State to respect and jealously guard. The State of Pakistan has by the grace of God just come into existence, and has emerged out of a foreign rule. There unfortun ately still are some officers in this State, who have a wrong idea that they are from amongst the ruling class and the rest of the people living in the State are the ruled. Having this miscon ception they commit acts which are arbitrary and oppressive. It is the duty of the Courts of law to see that the exercise of the executive powers of all officers and in particular of the officers mentioned above is kept within reasonable bounds and in strict supervision. No one in an honourable and free society is entitled to turn the liberty of a subject into a mockery. It is now well established principle of law that the 'preventive detention legislations as they make serious encroachments on the liberties of the subjects must be interpreted in favour of the person detained. N.W. F. P. Public Safety Act 1948, is by no means a novel legislation, nor the provisions of section 59 of the Government of India Act are foreign to the jurists in India and Pakistan. Preventive Detention in India was legalized as long back as 1818, when the Bengal State Prisoners Regulation III of 1818 was passed on the 7th of April 1818. Under this Regulation the Governor‑General‑in‑Council if he so required for the reasons of the State embracing the due maintenance of the alliance formed by the British Government with foreign powers, the preservation of tranquility in the territories of Native Princes entitled to its protection and the security of the British dominions from foreign hostility and from internal commotion, that an individual should be placed under personal restraint, then without any immediate view to ulterior proceedings of a judicial nature, a warrant of commitment under the authority of Governor‑General‑in‑Council, and under the hand of the Chief Secretary, or one of the Secretaries to the Government, could be issued to the officer in whose custody such person was to be placed. In 1898, when the Code, of Criminal Procedure was enacted and section 491, which contained directions of the nature of habeas corpus, was included in it, it was specifically mentioned in its subsection (3), that it. would not apply to the persons detained under the above Regulation: This Regulation, however, was very sparingly used, and only top ranking leaders were detained under it, who did not consider it consistent with their creed to question their detention in Courts of law, which according to their view were constituted and manned by the very power which they were trying to overthrow. There is, therefore, very little case law on point whether a person detained under the above Regulation could question the legality of his ‑detention for some reason or another in a High Court or not. The preventive detention was subsequently more extensively used by the British during the last Great War. It came into existence in the shape of Rule 26 of the Defence of India Rules framed under the Defence of India Act XXXV of 1939. This rule is a very lengthy one according to the relevant portion of which the Central Government or the Provincial Government if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order etc, etc., it was necessary so to do, could make an order directing that such person be detained. Under section 16 of the Defence of India Act, an order made in the exercise of the powers conferred by or under the Act, could not be called in question in any Court of law. The persons detained under Rule 26 referred to above, did, in spite of section 16 of the Defence of India Act time and again question the legality of their detention in the High Courts of India, under section 491 of the Cr. P. C. The most important case which throws light on the subject is reported as Emperor v. Sibnath Banerjee and others (A I R 1943 F C, p. 75,). The following was held in this case :‑ "The Court cannot investigate the sufficiency of the material or the reasonableness of the grounds upon which the Governor had been satisfied. But whatever powers of this kind or indeed other special statutory powers are conferred they must, to the extent to which specific provision has been made in the Statute conferring the powers, be exercised by the authority and in the manner specified in the Statute and in strict conformity with the provisions thereof and the Court can see whether this is done." Again it was held in the same judgment that "section 59 (2) prohibits a duly authenticated order being called in question on one and one ground only, namely, that it is not an order or instrument made or executed by the Governor. It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. If, however, in any case a detenu can produce admissible evidence to that effect, the mere existence of the recital in the order cannot prevent, the Court considering such evidence, and, if it thinks fit, coming to the conclusion that the recital is inaccurate." This last. paragraph was quoted with approval by their Lordships of the Privy Council, when they heard the appeal from the above judgment of the Federal Court (A I R 1945 Privy Council page 156). The same question came up again in the famous case Basanta Chandra Ghose v. Emperor before their Lordships of the Federal Court, and they decided, as reported in (A I R 1945 F C, p. 18,) that "it is no doubt open to the detenu to show that the order (of detention) was not in fact made by the Governor of the Province or that it was a fraudulent exercise of the power but the burden of substantiating these pleas lies on the detenu." After India was divided, Safety Legislations were even more extensively used by both India. and Pakistan, and the question now before us, came up before different High Courts in both the countries on more than one occasion. It is, in our opinion, now well settled that in cases in which even though the orders of detention, on their face, are regular and conform with the form of law, the validity of such orders can be challenged if the detention constitutes a clear fraud on an enactment, or amounts to an abuse of power given to the Executive, or the detaining authority has not complied with any mandatory provision of the Act, or the detention order was passed by the authority other than the statutory authority, or the statutory authority passed such order not property and formally, deliberately and in the manner laid down in the Ac;. The onus, of course, lies very heavily on the detenu to establish, the above facts, but once they are established the Court must step in and set the detenu free. The Executive cannot claim to wield absolute and arbitrary powers. The right to liberty of an individual is a most fundamental right and highly prized in all civilized countries. It yields place to none but to the safety of the State, and strictly according to the law of the country. This right cannot be taken away by the whims of one single individual, however highly placed he may be. Not even the Head of the State is entitled to invade the liberty of a subject otherwise than by the authority of and in strict compliance with law. In the case before us the detenu has succeeded in discharging the difficult onus placed upon him, that his detention was illegal, without authority, a fraud on the enactment and an abuse of power by Mr. M. Ahmad, the Chief Secretary. In law all that Mr. M. Ahmad was entitled to do was to authenticate the order of detention i.e., set his signature to such an order, but certainly not to make one, which power was vested in some other authority. Hamesh Gul has further succeeded in proving that it was not the Provincial Government which was really satisfied that his detention was necessary for the reasons stated in the order. Why could Mr. Ahmad, the Chief Secretary, not take the order of Hon'ble the Chief Minister prior to issuing the detention order dated 30th March 1953, and the extension of detention order dated 10th June 1953, is absolutely immaterial for the purposes of this case. The reason, however, advanced by him, that he could not obtain such orders because Hon'ble the Chief Minister was absent from Nathiagali seems to be extremely flimsy and on the face of it absurd He did not get the orders of His Excellency the Governor and the other Ministers of the Provincial Government, because according to him, Hon'ble the Chief Minister alone being in charge of law and order dealt with such matters. The fact whether Hon'ble the Chief Minister in his individual judgment without sharing his responsibility with his Cabinet Colleagues and the Head of the Unit can take away the liberty of a subject involves a vital and interesting question of Constitutional Law, which shall be decided when it is relevant so to do. In this case it does not arise, because the order of detention has not even been made by Hon'ble the Chief Minister. The above discussion, thus, leads us to the irresistible conclusion that the detention order of Hamesh Gul does not satisfy the first ingredient of section 3 of the Act, namely, whether it was made by the Provincial Government or not. The second ingredient in order to validate this order, as has already been mentioned by us in the earlier part of this judgment, was that such an order should only be made when the Provincial Government is satisfied that with a view to preventing any person from acting in any manner prejudicial to the public safety, or the maintenance of public order, or to the maintenance of supplies and services essential to the community it was necessary to do so. Here too the statement of Mr. M. Ahmad, the Chief Secretary, is decisive on the matter. He stated that the Inspector‑General of Police wanted the Provincial Government to arrest Hamesh Gul and detain him under the Safety Act for the Investigation of the case, because he was suspected to be anti‑Government agent working for a foreign Government. This, as the Chief Secretary stated, was the reason why the first order of detention of Hamesh Gul was made. So far as the second order of detention is concerned the Position is wrose still, because when talking about it the Chief Secretary said that he could not say why this order was made without his asking the clerk, who was dealing with this case. This clerk has not been produced by the Government in the witness‑box to disclose the conditions under which this order was issued. The fact remains that as the record stands there is nothing to show that this order was issued for the reasons mentioned in section 3 of the Act. This takes us to the last order of the 10th of June 1953, under which Hamesh Gul stands detained at the time when this application is heard. In connection with this order the following statement of the Chief Secretary has got an important bearing and is worth reproduction verbatim (It would not be correct to say that either of the two Hon'ble Chief Ministers has ever stated to me that he was satisfied that the present detenu Hamesh Gul 'has committed prejudicial act or was about to commit any such act, although during my discussions with them I got the impression that they were so satisfied." Under the Act no order of detention can be passed unless there is a definite satisfaction on the part of the Provincial Government that with a view to preventing any person from acting in the manner stated in section 3 of the Act it is necessary to detain him in the custody mentioned in the section itself. The Executive much less a Chief Secretary, who is only, authorized to authenticate an order, cannot take away the valuable right of liberty of a certain individual, which is safe‑guarded by the Constitution itself with utmost and anxious care on account of mere impressions that the Chief Secretary gets in his casual talk with Hon'ble the Chief Ministers. Be that as it may, the real purpose, for which Hamesh Gul has been detained, is sufficiently clear from the note which is appended to the detention order of the 10th of June 1953. The note reads as under : "The Government of the N.‑W. F. P. is further pleased to authorize the A. I. G. (C. I. D.) to take this man out of jail whenever he is required for interrogation." This note read with the reason for which Hamesh Gul was originally arrested and detained, makes it abundantly clear that Hamesh Gul is continued to be detained not for the reasons mentioned in section 3 of the Act, but for the purpose of interrogation in connection with a certain criminal case. This in itself, in our view, is a fraud on the Statute, and is an abuse of the power conferred under the Act. Section 3 of the Act nowhere mentions that a person can be detained for the purpose of interrogation in connection with a certain criminal case. It, thus, follows that the order of detention of Hamesb Gul does not satisfy any of the ingredients of section 3 of the Act, and it consequently is illegal. The result is that we accept the habeas corpus petition. Hamesh Gul is already on bail. He is set at liberty and is freed of his obligations under the bonds. Orders announced. A. H. Petition accepted.