P L D 1964 (W (PLP)

As the Government of West Pakistan has reasons to believe that you Safdar Hassan Siddiqui Shoba Tanzeem, Jamaat‑e‑Islami, Pakistan, Lahore, have in your custody monies, securities or credits, which are being used or intended to be used for the purposes of the Jamaat‑e‑Islami which has been declared by the said Government to be an unlawful association under sub section (1) of section 16 of the Criminal Law Amendment Act, 1908: Now, therefore, the Government of West Pakistan, in exercise of the powers vesting in it under subsection (5) of section 17‑E of the said Act, hereby prohibits you the said Safdar Hassan Siddiqui from paying, delivering, transferring or otherwise dealing in any manner whatsoever with the same, save in accordance with written orders of the said Government. By ORDER OF THE GOVERNOR OF WEST PAKISTAN S. ALAMGIR, Secretary to the G.overnment of West Pakistan, Home Department. No. S. O. Spl. 1 (3)/64. Dated Lahore The 6th January 1964."

51. Section 17‑E (5) of Act XIV of 1908 reads as under :‑ Where the Provincial Government has reason to believe that any person has custody of any monies, securities or credits which are being used or are intended to be used for the purposes of an unlawful association, the Provincial Govern ment may, by order in writing, prohibit such person from paying, delivering, transferring or otherwise dealing in any manner whatsoever with the same, save in accordance with the written orders of the Provincial Government. A copy of such order shall be served upon the person to whom it is directed. There is no prayer in the petition that orders under section 17‑E(5) of the Act be declared to be illegal and ineffective. I, therefore, do not consider it necessary to go into this matter.' No order as to costs.

52. While my brothers and I am grateful to Mr. Brohi and the learned Attorney‑General for their valuable assistance, we would be failing in our duty if we do not express dissatisfaction with the handling of the case by the learned Advocate‑General. J. ORTCHESON, J.

‑I agree. MUHAMMAD DAUD KHAN, J.

‑I agree. INAMULLAH, J.

‑I agree that the petition be dismissed and have appended a separate note. WAHIDUDDIN AHMAD, J.‑

I agree that the petition should be dismissed but have given my own reasons in a separate note. ABDUL AZIZ KHAN, C. J., J. ORTCHESON, INAMULLAH AND WAHIDUDDIN, JJ.‑On the verbal prayer of Mr. S. M. Zafar, Advocate, we grant a certificate under Article 58 (2) (a) of the Constitution. INAMULLAH, J.‑I have gone through the elaborate and carefully considered judgment of my Lord the Chief Justice. I agree with his conclusions, and that the petition should be dismissed. I may only mention that at one stage I was of the view that the principle of natural justice audi alteram partem applied to the impugned order under section 16 of Act XIV of 1908 declaring the Jamaat as an unlawful association. I am, however, after going through the judgment and further consi deration, of the view that this principle would not apply to the said order.

2. The two leading cases on the subject, laying down the rule of natural justice, are Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) and Messrs Farid Sons Ltd. v. Government of Pakistan (P L D 1961 SC 537). The rule deducible from these cases is that the principle of natural justice is not confined only to judicial or quasi judicial tribunals, but also applies to administra tive authorities, whose orders may deprive a person of his liberty or property. I venture to state, as I understand these decisions, that it is not all administrative orders to which the maxim of audi alteram partem will apply. The principle of natural justice would apply in the case of an administrative body which has to determine facts in an objective manner and to act judicially. A perusal of these cases clearly lead's to the conclusion that an administrative authority is not bound b the said maxim where it has neither to ascertain facts objective nor to act judicially. Under section 16 of Act XIV of 1908, the determination of the question admittedly is purely subjective, and the authority is, in no way, required to act judicially.

3. It is noticeable that the Provincial Government under section 16 of Act XIV of 1908 has to act in an emergency. In some cases, the very object may be frustrated by giving a show- cause notice before an action is taken. It may be said that the show‑cause notice should be given after the association has been declared unlawful. In the first place, the rule contemplates that no one should be condemned without being heard, and where a person has already been condemned, the question of application of the rule of natural justice could not arise. No case has been cited, and I am not aware of one in which it may have been laid down that the principles of natural justice, in a case where an expediency requires that an order be passed immediately ignoring the rule, may be applied later on. In the second place, Mr. Brohi, the learned counsel for the petitioners, did not advance any such argument. His only point was that the principle of natural justice should have been applied before the impugned order was passed. Lastly, there is no prayer in the petition that the Provincial Government be called upon to give a show‑cause notice as to why the impugned order be not maintained. Presumably, no such relief has been claimed as this could be made only on the assumption that the impugned order was legal. Mr. Brohi, on the other hand, urged that the impugned order was void for want of the application of the rule of natural justice. At any rate, it is now a well‑settled rule that this Court in exercise of its extraordinary jurisdiction will not grant a relief which is no claimed in the petition. I am clearly of the view that the rule of audi alteram partem cannot be made applicable to the circum stances of the present case. WAHIDUDDIN AHMAD, J.

‑The points raised in this writ petition are of considerable Constitutional importance. The petitioners have challenged the validity of the order of the West Pakistan Government dated 6th January 1964 banning the Association known as Jamaat‑e‑Islami throughout West Pakistan on number of grounds. This action was taken against the said Political Organization under section 16, subsection (1) of the Criminal Law Amendment Act XIV of 1908. , At first the Government of West Pakistan extended the application of the Criminal Law Amendment Act of 1908 to the whole of Province of West Pakistan by notification dated 6th January 1964. By another notification of the same date it declared the said Associa tion to be an unlawful association, under section 16 (1) of the said enactment. Simultaneously by the same notification the Provincial Government in exercise of its powers under section 17‑A (1) notified the places which were used for the activities and purposes of the said Association. Both the notifica tions were published in the official Gazette on 6th January 1964. In pursuance of these notifications the local subordinate authorities have taken possession and sealed all the places notified in the Schedule to the said notification, which are used as head office and branch office for conducting the activities of the Jamaat‑e -Islami. As a result the Jamaat‑e‑Islami is banned throughout the West Pakistan Province and any person who continues to be a member of this unlawful association, or takes part in meeting of any such association, or contributes or receives or solicits any contribution for the purposes of any such association, or in any way assists the operations of any such association, is liable to be punished with imprisonment for a term which may extend to six months,. or with fine, or with both. Thus the petitioners and other members of the said Association are up longer permitted to function under it and their political activities are completely banned during the continuance of the said impugned orders.

2. The respondent Government has justified this action on the ground of public safety and maintenance of law and order in the Province of West Pakistan. The Government's case is that for some time before 6th January 1964 disturbing reports about the activities of Jamaat‑e‑Islami and its members were being received and the impugned orders were passed on the basis of these reports and other information received by them. It is alleged that on the examination of the material in its possession the Provincial Government came to the conclusion that Jamaat‑e‑Islami was indulging in subversive activities against the State and the impugned order had to be issued for the following reasons contained in the impugned notification declaring the Jamaat‑e -Islami as unlawful Association :‑ (i) That the Jamaat‑e‑Islami was vehemently opposed to the creation of Pakistan and continues to oppose its existence by unlawful means. (ii) That with this objective it is indulging in subversive activities against the State, such as inciting students to indulging in unlawful activities and commit acts of violence, fomenting trouble between workmen and employers, and attempting to create a feeling of disloyalty and dissatisfaction amongst Government servants. (iii) That the object of the Jamaat‑e‑Islami is to interfere with the administration of law and the maintenance of law and order; to excite disaffection towards Government established by law. (iv) Its activities are such as to constitute a danger to the public peace.

3. The petitioners have denied these allegations. According to them all those, who were the members of the Jamaat‑e‑Islami believe in the solidarity and strength of Pakistan and to them the interests of Pakistan are very dear. They further alleged that their association believed in the efficaciousness of constitutional means for propagating its ideals and never considered violence or force as a possible substitute. It is alleged that the action taken by the Government of West Pakistan is mala fide, without lawful authority and of no legal effect whatever, and the action taken has seriously prejudiced the rights of the members of the Jamaat.

4. Amongst others the petitioners have challenged the validity of the impugned orders on the ground that the Criminal Law Amendment Act XIV of 1908 has been indirectly repealed by Political Parties Act III of 1962. In the alternative, it is contended that the Criminal Law Amendment Act is a Provincial Legislation and as it is in conflict and inconsistent with the Political Parties Act, a Central Legislation, it must give way to the Central Legislation and is no longer operative and effective as a valid legislation. This point has been fully dealt with by the learned Chief justice and it will serve no useful purpose to traverse on the same ground. I agree with his conclusion that both the enactments are Central Legislations and there is no conflict and inconsistency between each other. In my view the Political Parties Act deals with those cases in which total disband ment of any Association is contemplated. On the other hand, the Criminal Law Amendment Act contemplates to deal with a case in which it is necessary to stop immediately the unlawful activities of any Association which are found prejudicial to the State. The action contemplated under it is to meet an emergency and is not intended to totally disband an association. The order passed under it can be rescinded at any time.

5. The next objection of the petitioners that the impugned orders are illegal because sufficient time has not passed between the publication of the notification extending the enactment to the Province of West Pakistan and the notification declaring the said Association as unlawful has no force. This objection has been fully discussed in the judgment of the learned Chief Justice. The requirement of the enactment of publishing the notification in the official Gazette is only a formality. The moment this formality is complied with, the action taken becomes effective. There is nothing to prevent the authorities to pass two orders simultaneously. What is of importance is whether they came into force in their proper order. On the affidavit filed on behalf of the Government I am satisfied that the notification extending the enactment was published first and thereafter the other notification was published. I do not find any illegality in this procedure particularly as at best it is an irregularity which could be easily cured.

6. It was urged by Mr. Brohi that the offices of the Jamaat e‑Islami were sealed much before the notifications under sections 16 (1) and 17‑A were published in the official Gazette. He referred to the affidavit of Umar Farooq in which he affirmed that notice under section 17‑E of the said Act was served at 4 a.m. on 6th January 1964 and the office of the Jamaat‑e‑Islami in Lahore was sealed at the pre‑dawn time of 6th January 1964. Even if it is correct, it is only an irregularity and cannot have any adverse effect on the declaration of the Jamaat‑e‑Islami as unlawful Association. In law such irregularity can have no far reaching effect on the contentions raised in the petition. It might s have some effect in a case in which any person is charged with the offence under section 17 of the said Act. But this question is not involved in this matter. I would, therefore, repel these objections.

7. The difficulty, however, arises on the other two grounds raised by the petitioners. I felt this difficulty at the time of the admission of the writ petition for final hearing. In my view the respondent has not been able to meet these objections effec tively. It will be noticed that the respondent Government has levelled serious charges of subversive activities against the Jamaat -e‑Islami. The opinion formed by the Provincial Government under section 16 (1) of the Criminal Law Amendment Act XIV of 1908 is based on factual existence of certain objectionable activities of the Association which have been totally denied and controverted by the petitioners in the writ petition. It cannot be denied that by declaring the said Association as unlawful the petitioners have been condemned unheard and deprived of their valuable fundamental right to form Association recognised under the Constitution of Pakistan. It is for consideration whether it is open to the respondent Government to take such a drastic action without affording reasonable opportunity to the offending Association to explain the charges levelled against it. It seems to me that this is not permissible under the law as administered in Pakistan. It is now a well recognised principle of law that the maxim audi alteram partem "no man shall be condemned unheard" applies to judicial as well as administrative bodies particularly where the proceedings taken may affect the right of the person or property or other rights of the parties. This view was expressed by their Lordships of the Supreme Court in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45). The learned Attorney‑General, however, urged on behalf of the respondent that this principle cannot be applied to administrative orders. This contention was repelled by their Lordships of the Supreme Court of Pakistan in Faridsons Ltd. v. Government of Pakistan (P L D 1961 S C 537). In this connection, Rahman, J., at page 554 of the report, observed as under :‑ "This Court laid it down as rule in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak that the maxim audi alteram partem no man shall be condemned unheard applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Even if therefore the proceedings before the Chief Controller were neither strictly judicial nor even quasi‑judicial in character, the principle of natural justice embodied in the above maxim could be called in aid by the appellants. The High Court was in error in holding that this principle was a peculiarity of English Law and could not be invoked in this country where statute law covers the relevant field of litigation. This principle is of universal application where the statute itself prescribes no specific procedure for ascertaining the necessary facts and no express exclusion of the principle can be spelt out of the words of the statute." In a recent decision their Lordships of the Supreme Court have reaffirmed this view in Commissioner of Income‑tax v. Fazlur Rahman (P L D 1964 S C 410). Kaikaus, J., who wrote the judgment on behalf of the Court, on this point observed as under "At the same time it should be pointed out that the right to be heard is not confined to proceedings which are judicial in form. As has been held by this Court in the Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak the maxim no man shall be condemned unheard' is not confined to Courts but extends to all proceedings by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute, and the maxim will apply with no less force to proceedings which affect liability to pay a tax. We hold that an opportunity of hearing was essential and in its absence the order of the Commissioner of Income‑tax is void."

8. It was urged that in a case where an action is taken b any authority on subjective consideration, the principle of natural justice is not applicable. With respect, I find no justification to make any such distinction. In the present case the Provincial Government had to form its opinion not on suspicion but on factual existence of certain grounds capable of objective determina tion. In spite of the fact that the Provincial Government is the sole Judge in such matters, I cannot ignore the fact that there is a judicial element involved in the formation of the opinion leading to the declaration of an association as unlawful. The moment such an element is found to be present this principle will be applicable with full force.

9. In my view, in the present case a very valuable right of the petitioners has been taken away on account of certain allegations made against them. It was, therefore, essential for the Provincial Government, at some stage, to provide an oppor tunity of hearing to the petitioners so that they might have been able to advance cogent reasons for the cancellation of the order affecting their right. Since this was not done, I have not the slightest doubt that the impugned order offends the principles of natural justice and being void is liable to be quashed.

10. There is yet another difficulty in the way of the respon dent. Admittedly, from 10th January 1964, under the Constitu tion of Pakistan of 1962, certain fundamental rights have been recognised which are enforceable in Courts of law. Under Article 6 of the Constitution, if any existing law is found to be in conflict with the fundamental rights, it is the duty of the Court to hold such laws as void and to declare any order passed under such void laws as illegal and ineffective. In this connection Mr. Brohi referred us to Fundamental Right No. 7 recognised in Chapter I on Fundamental Rights which is in the following terms :‑ "Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of morality or public order." The learned counsel contended that the Criminal Law Amendment Act XIV of 1908 cannot be considered to be based on any reasonable restrictions imposed by law in the interest of morality or public order. According to him the very nature of the orders contemplated in this enactment are of an arbitrary one. It does not provide any opportunity to the offending party of a hearing and it confers on the Government an arbitrary power to declare any association as unlawful on the opinion formed for reasons enumerated under section 16 of the enactment without any redress.

11. This argument was hotly contested on behalf of the Government. Both Mr. Tufail Ali Abdur Rehman, the learned Attorney‑General, and Mr. Khalid M. Ishaq, the learned Advocate‑General, contended that the impugned legislation is of a preventive nature and has an element of emergency. Its chief object is to take prompt action for preventing apprehended" danger to the maintenance of law and order and public peace. It was urged that if in such cases Government is invested with the power to take immediate drastic action against the offending parties, it cannot be considered to be unreasonable restriction. In my opinion, the contention of the respondent has no merit whatever. In the first place, the Constitution has not provided that the Legislature can impose such restriction in the interest of public safety and integrity of the State of Pakistan. A reference to the Constitution would bear out that wherever it considered necessary it has provided so in clear terms. For instance, in Fundamental Right No. 2, which deals with safeguard as to arrest and detention, it is provided that nothing in subsections (1) and (2), namely, that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds of such arrest etc., shall apply to any person who is arrested or detained under any law provided for preventive detention. Secondly, the answer to this question depends on the construction and effect of section 16 (1) of the Criminal Law Amendment Act XIV of 1908, which is reproduced below :‑ "If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may, by notification in the official Gazette, declare such association to be unlawful." and other provisions contained in this enactment.

12. The effect of these provisions is that the Provincial Government is the final authority and sole judge to declare any association as unlawful on the grounds stated in the parent section. It will be noticed that though the grounds on which the opinion is to be formed have to be factually in existence but the declara tion is based on subjective consideration. Neither the Act provides for a right of hearing to the offending party nor does it contain any provision for appointing any higher authority for reviewing the impugned order. Thus it is quite clear that though the order contemplated under section 16 (1) of the said Act is capable of being objectively determined by a Court of law or some other body, no provision has been made in the impugned enactment for determining whether the alleged grounds really exist or not in those cases where the allegations contained in the declaration are challenged by the offending Association. Besides the enactment does not provide that the order contemplated under section 16 (1) would be passed for a definite period. In the absence of any such provision any order passed under it will have effect for an indefinite period. It is thus left entirely to the sweet‑will of the Government to withdraw or cancel it whenever it likes. In a democratic set up any enactment vesting the Government with such vast and unlimited powers cannot be considered to be based on reasonable restrictions, otherwise the obvious consequence would be that a party‑Government would easily be able to silence its critic and opposition parties.

13. I can visualize cases requiring immediate action but that does not mean that the party in power should be made the sole judge of such important matters. Any legislation affecting such right must provide for some forum for the adjudication of the allegations made against the offending party. In the absence of any such provision it is not possible for me to accept the con tention that the impugned legislation imposes or is based on reasonable restrictions. Having regard to these facts and circumstances, there is little doubt that the impugned legislation offends and is inconsistent with Fundamental Right No. 7.

14. The view taken by me is strengthened by a number of Indian decisions cited at the Bar. This and similar enactments were the subject matter of several authoritative Indian decisions an d~ there is preponderance of view that such legislations are void for) V being in conflict with Fundamental Rights.

15. In Y. G. Roy v. The State of Madras (A I R 1951 Mad. 147), Satyanarayana, J. on this point observed at page 151 as under "I shall now examine how and to what extent the provisions of the Criminal Law Amendment Act, unamended and amended, are inconsistent with the fundamental rights in Part III of the Constitution. It is not seriously disputed by the learned Advocate‑General, though he did not concede, that section 16 of the unamended Act is void as being inconsistent with the fundamental rights recognised in the Constitution. That section confers upon the Provincial Government the power to declare an association unlawful if it is of opinion that the association interferes or has for its object interference with the administration of law or with the maintenance of law and order or that it constitutes a danger to the public peace. That declaration is final and conclusive and cannot be questioned in a prosecution under section 17 of the Act. The accused has no right or opportunity to show that the declaration was erroneous and was not justified. It is a naked arbitrary power conferred upon the Provincial Government to impose a restriction on the right of a free association conferred by Article 19 (c) of the Con stitution and is of such an absolute nature which cannot and indeed was not attempted to be supported as a reasonable restriction on the exercise of the right. In my opinion, it offends also Art. 14 as it denies equal protection of the law to persons. As no serious attempt was made on behalf of the respondent to support the legality of that provision it is unnecessary to give more reason to hold that it is inconsistent with the provisions of Part III of the Constitution. In view of Art. 13 of the Constitution, it must be held that section 16 which is inconsistent with the provisions of the Constitution is void" The learned Judge further observed at page 154 as under :‑ "The next question is whether the restrictions imposed are reasonable. I feel no difficulty in answering the question under the unamended Act. An unrestricted power is conferred by section 16 on the Provincial Government to declare an associa tion unlawful and the satisfaction of the existence of the grounds enumerated in the section is the subjective satisfaction of the Provincial Government and not of an external authority. The declaration carried with it a finality and it is not a justiciable right. No machinery is provided to test the correctness of the order by the persons affected and no opportunity is provided for them to show that the association is not such as falls within the purview of the grounds enumerated in the section. The declaration carries with it the penalties specified in section 17‑A or 17‑B, or 17‑E. The declara tion cannot be questioned in a proceeding under section 17 nor under section 17‑A or 17‑B or 17‑E. The penalties contemplated under these sections proceed on the basis that the declaration is valid and is not subject to any judicial review. A total prohibition of a right of a person to defend himself is not only a restriction on the right to defend himself but a negation of it. It cannot be argued and indeed no attempt was made to support the position that the provision in section 16 is a reasonable restriction."

16. A similar enactment came up for consideration before a Full Bench of the Travancore High Court in the case of George Chadayammury v. State (A I R 1952 Trav. Co, 217). In this connection, Koshi, J. observed as under :‑ "The Cochin Criminal Law Amendment Act XXVII of 1124 was intended to be a piece of permanent and peace‑time legislation. Notwithstanding its preventive aspect it is mainly punitive. Transgressions of a notification issued under it are to be visited with punishment ranging from imprisonment for a period of six months to imprisonment for three years with or without fine. Once a prosecution is launched against an association declared to be unlawful the criminal Court cannot question the validity of the notification and it cannot, therefore, be said that the law gives person hit by it an opportunity for a fair trial. Serious inroads are made regarding the right to property also. There is no time‑limit prescribed for the duration of a notification issued under section

3. Government alone have authority to decide how long an association declared to be unlawful should continue to remain under the ban imposed by them." The learned Judge further observed :‑ "With respect to a law which contains such draconian provisions and serious inroads on the liberty of the citizens the law does not enjoin upon Government to specify the grounds on which the declaration is made or the reasons for making it or other particulars, if any, that may have a bearing on the necessity for the declaration. Nor is there a provision for service of the notice of the declaration directly on the associations concerned or on the members thereof. Where an association heretofore lawful is made unlawful, the most elementary principles of justice and fair play require some notice of the illegality to be given to the members of the association so that they may regulate their conduct accordingly. The only publicity sought to be given to the notification is by publication of the official Gazette. This together with the imposition of a time-limit for approaching the High Court to get the declaration cancelled makes the safe‑guard of a judicial review really illusory. In our opinion the cumulative effect of the absence of a provision for proper notice or sufficient publicity and the imposition of a time‑limit to seek a review of the Government order by the High Court is to make the law overstep the bounds of permissible legislation in such a manner that sub‑clause (4) of Art. 19 would not save it. In other words, it offends clause (4) of Art. 19 as an unreasonable restriction on the exercise of the right conferred by Art. 19 (1) (c). With the coming into force of the Constitution, the law (section 3 of the impugned Act) as also the notification issued under it becomes void."

17. In The State of Madras v. V. G. Row (AIR 1952 SC196), the Indian Supreme Court also considered the validity of a similar legislation in the light of the fundamental rights recognised under the Indian Constitution. In that case the Madras Government declared an association known as Peoples Educational Society as an unlawful association under the Indian Criminal Law Amendment Act, 1908. The association challenged the impugned order in writ jurisdiction before the Madras High Court. During the pendency of the petition the Madras Criminal Law Amendment Act XI of 1950 was passed effecting certain changes in the parent Act. The amending legislation provided that a notification issued in respect of any association shall (a) specify the ground on which it is issued, the reasons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefore; and (b) fix a reasonable period for any office‑bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification. It further provided that the Government would place the representa tions received from the offending association and the material in its possession before a Board constituted by it for consideration. If it was found by the Board that there was no justification or sufficient cause for the issue of the notification declaring any association as unlawful, the Government was required to cancel it. In spite of these provisions the amended legislation was found by the Madras High Court to have offended the Fundamental Rights, recognised under the Indian Constitution. The matter was taken by the Government before the Indian Supreme Court who upheld the decision of the High Court though on different grounds. It was held by the Indian Supreme Court 'that the view of the High Court was supportable on a broader and more fundamental grounds. In this ~ connection their Lordships observed as under :‑ "Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of the authorised restrictions on the right conferred by Art. 19 (1)(c). The right to form associations or unions has such wide and valid scope for its exercise, and its curtailment is fraught with such potentional reactions in the religious, political and economic fields that the vesting of authority in the executive Government to impose restriction on such right, without allowing the grounds of such imposition both in their factual and legal aspects to be duly tested in the judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by section 15 (2) (b) on the exercise of fundamental right under Art. 19 (1) for no summary and what is bound to be a largely solid view by an Advisory Board, even where its verdict is binding on the executive Government, can be a substitute for judicial inquiry. The formulae of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override the freedom guaranteed to the citizens may be reviewed as reasonable only in very exceptional circumstances and within the narrowest limits and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights." Their Lordships further repelled the contention that the impugned legislation involved an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tran quility and observed as under:‑ "These features are however absent in the grounds in which the Government is authorised under section 15 (2) (b) to declare associations unlawful. These grounds taken by themselves are factual and not anticipatory or based on suspicion. An associa tion is allowed to be declared unlawful because it `constitutes' a danger or `has interfered or interferes' with the maintenance of public order or `has such interference for its object' etc. The actual existence of these grounds is amenable to objective determination by the Court, quite as such as the grounds men tioned in clause (a) of subsection (2) of section 15, as to which the Attorney‑General conceded that it would be incumbent on the Government to establish as a fact that the association, which it alleged to be unlawful `encouraged' or `aided', persons to commit acts, of violence, etc. We are unable to discover any reasonableness in the claim of the Government in seeking, by its mere declaration, to shut out judicial enquiry into the under lying acts under clause (b)." In the light of the above discussion, there is not the slightest doubt in my mind that after the introduction and enforcement of the fundamental rights under the Constitution of Pakistan, the impugned legislation has become unconstitutional and is void.

18. The learned Attorney‑General, however, contended that the provisions of the Constitution have no retrospective effect. He urged that the impugned order was passed under the Criminal Law Amendment Act XIV of 1908 on 6th January 1964. It was, therefore, immune from attack on the strength of the fundamental rights which came into force on 10th of January 1964. The contention of the learned counsel for the Government would have much force provided the impugned order is found to be in the nature of‑past and closed transaction. I am in respectful agree ment with my Lord the Chief Justice that the Constitution has no retrospective effect unless provided to the contrary. On this view any action taken by the Provincial Government under the impugned legislation before the 10th of January 1964 is not open to challenge provided the impugned order is final in the sense that it is past and closed transaction.

19. The question, therefore, arises whether in the present case it can be held that the impugned order, had become final in that sense prior to the enforcement of the fundamental Rights so that it cannot be challenged on the grounds that it offends the principles enumerated in Fundamental Right No.

7. On exami nation of the provisions of the Criminal Law Amendment Act XIV of 1908, it seems to me that the impugned order cannot be considered a past and closed transaction, and is not final in all respects. It is quite true that the Jamaat‑e‑Islami was declared an unlawful Association on 6th January 1964 but the effect of this declaration was only this much that the Provincial Government besides taking custody of the assets and possession of its property was enabled to penalise any person who continues to act as member of the said unlawful association or commits any other acts mentioned in section 17 of the impugned enactment. Thus the impugned order had the effect to continue from day to day till the order is withdrawn by the Provincial Government. Even after 10th January 1964 no person belonging to this Organisation can indulge in political activities or hold himself out as its member. Any person declaring himself as member of the Jamaat‑e‑Islami after 10th of January 1964 is liable to be prosecuted under section 17 of the Criminal Law Amendment Act XIV of 1908. It was even conceded by the learned Attorney‑General that if the impugned disbandment is held to be void on account of the infringement of the Fundamental Rights, any such prosecution would be rendered illegal and void. The impugned order is not in the nature of total disbandment of the Association concerned because it is open to the Government to revoke the impugned order at any time it likes. In fact by fiction of law any person found to be acting under any changed name is to be treated as belonging to this Association and subject to the penalties imposed under section 17 of the said Act. There is thus no doubt that although the Asso ciation concerned was declared unlawful under an order passed prior to the enforcement of the Fundamental Right, it continues into operation from day to day and affects the valuable Funda mental Rights of its members even after the 10th of January 1964. In my opinion, therefore, the impugned order cannot be considered to be of a final nature.

20. In Shanti Sarup v. Union of India (A I R 1955 SC 624) the Indian Supreme Court set aside an order passed before the enforcement of the Constitution on the ground that the deprivation of the Fundamen tal Right continued from day to day. In that case a Cotton Spinning 4Vlill was closed by the owners as it was running at a loss on 19th March 1949. On 21st July 1949 the Government of U. P. passed an order purporting to be made under section 3 (f), U. P. Industrial Disputes Act, 1937, by which they appointed one of the partners of the firm as "authorised controller" of the under taking. The order directed the said partner to take over the possession of the mill to the exclusion of the other partners and run the undertaking himself subject to the general supervision of the District Magistrate of Aligarh. In 1952 the Union of India (Ministry of Commerce and Industry) passed an order purporting to be made under section 3 (4) of Essential Supplies (Temporary Powers) Act, 1946, by which the Central Government appointed the same person as an authorised controller under the provisions of that section and directed him to run the said undertaking to the exclusion of all the other partners. The petitioners contended that both the orders were illegal and inoperative by reason of their not being warranted at all by the provisions of law under which they respectively purported to have been passed. Their Lordships upheld the contention of the petitioners and declared the order passed prior to the coming into force of the Indian Constitution as void amongst others on the following observations:‑ "Assuming that the deprivation took place earlier and the time when the Constitution had not come into force, the order affecting the deprivation which continued from day to day must beheld to have come into conflict with the fundamental rights of the petitioners as soon as the Constitution came into force and became void on and from that date under Article 13 (1) of the Constitution."

21. In Jeshingbhai v. Emperor (A I R 1950 Born. 363) an order was passed against a person by the District Magistrate, Ahmedabad on 12th Decem ber 1949 to the effect that he should not be in any area of the District of Ahmedabad except with the permission of the District Magistrate, Ahmedabad. This order was challenged on the ground that it was in violation of Fundamental Right guaranteed to the citizens under Article 19 (1), sub‑clauses (d) and (e) of the Indian Constitution which provided that all citizens shall have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India. It was urged on behalf of the Government that the impugned order was made on 12th December 1949, prior to the commencement of the Consti tution, and the operation of the order was saved under section 6 of the General Clauses Act. This contention was rejected by Chagla. C. J. on the following observations:‑-- "The other argument advanced by the Advocate‑General is that this order was made as I pointed out on 12th December 1949 and inasmuch as the order was made prior to the commence ment of the Constitution the Advocate‑General contends in view of section 6, General Clauses Act, the operation of the order is saved and the order cannot be challenged. But what Mr. Purshottam is doing before us today is not so much the challeng ing of that order as the assertion of a fundamental right which :‑is granted to him after 26th January 1950. If we are satisfied that today when we are hearing this petition the petitioner is deprived of his fundamental right of movement and of residence, then we can undoubtedly interfere. The saving of the order under section 6 does not mean that the State is entitled after 26th January 1950 to deprive a citizen of a fundamental right which is guaranteed to him. These fundamental rights have come into existence after 26th January. Our Constituent Assembly has provided remedies for safeguarding these rights. These rights have been made justiciable and, therefore, even though the operation of the order may have been saved by section 6, General Clauses Act, as I said before, we are not so much concerned with the validity of the order as the violation of the fundamental rights which have come into existence after 26th January 1950." The learned Judge further observed as under:‑ "It is true that the fundamental right has not been in fact violated after the Constitution came into force, but so long as the order stands there is undoubtedly a threat of the violation of that right and Mr. Purshottam says that he should not be driven to enter Ahmedabad and face a prosecution at the hands of the Government. In my opinion, therefore, the Court should issue an order against the respondents calling upon them to forbear from preventing the petitioner from entering the d6frict of Ahmedabad."

22. The above discussion would show that any order which has its effect from day to day cannot be treated as of final nature and, therefore, cannot be treated as a past and closed transaction. With respect I would like to point out that the impugned order in its effect cannot be considered to be of that nature. Any person who holds himself out to be a member of the Jamaat‑e‑Islami and disregards the impugned order after the 10th of January 1964 is liable to be punished under section

17. In these circumstances the petitioner's grievance that it threatens the violation of their fundamental right and prevents them from exercising it after the 10th of January 1964 cannot be lightly disregarded. I would, Y therefore, hold that the impugned order after the 10th of January 1964 had become void and is rendered ineffective and illegal in view of Article 6 of the Pakistan Constitution of 1962.

23. The next question for consideration is whether it would be proper to quash the impugned order and issue a writ in exercise of the powers vested in this Court under Article 98 of the Constitution. The power vested in this Court to exercise this, jurisdiction is purely discretionary., It is open to this Court to decline to exercise this jurisdiction in those cases where the writ issued is Z likely to become ineffective on the taking of certain remedial steps. In my view it is still possible for the Government concerned to amend the Criminal Law Amendment Act XIV of 1908 in such a manner so as to bring it conformity with the Fundamental Rights affected in this matter. It cannot be overlooked that the impugned order was immune from constitutional attack at the time when it was passed. The point involved in this matter is most complicated and difficult. It is possible that the Government may, in the light of the above discussion, amend the impugned legislation and validate the order passed by it with effect from the 10th of January 1964. Having regard to the fact that serious allegations are made against the Jamaat‑e‑Islami I would not like to pass any hasty order in this matter.

24. In Rahmatullah v. Deputy Settlement Commissioner (P L D 1963 S C 633), their Lordships observed as under at page 645:‑ "The Court will not grant a writ to produce a certain effect when the law provides power to one of the parties `affected' by the writ, to nullify the Court's writ unilaterally and the circum stances enabling such action are found to be present." Keeping these observations in view, I have no doubt that the Government concerned can unilaterally nullify any writ issued by this Court by affording the petitioners an opportunity of hearing and making suitable amendment in the impugned legislation. At this stage, therefore, I am not inclined to issue any writ against the Government. If the respondent Government fails to take action within a reasonable time it will be open to the petitioners to move this Court by a fresh petition if so advised for the redress of their grievance.

25. Subject to the above remarks, I agree that this petition be dismissed with no order as to costs. A. H. Petition dismissed.