S. U. DURRANI Versus FEDERATION OF PAKISTAN
The petitioner, who at the relevant time was occupying the post of Governor of the State Bank of Pakistan, was dismissed from service under some Martial Order or Regulation (the exact number of which learned counsel for the petitioner was not in a position to quote). He has given in Para. 11 of his writ petition certain events which happened after his dismissal from service but it is not necessary to go into the details thereof and for the purpose of the present writ petition it is sufficient to mention that on 30‑12‑1972, the Governor of the Punjab passed an order restricting the movements of the petitioner to the Province of the Punjab. A photostat copy of that order has been filed in the form of Annex. "G", which reads as follows:‑
"Government of the Punjab. Home Department (Special‑1). Memorandum No. 3‑76‑H‑Spl‑1/72 dated Lahore, the 30th December 1972.
Whereas the Governor of the Punjab is satisfied that for the purpose of preventing Mr. S. U. Durrani, formerly Managing Director, P. I. A. at present residing with Mr. Asad Hayat Khan, Chief Manager, Pakistan Insurance Co., Lahore, from acting in a manner prejudicial to the security of Pakistan, it is necessary that his movements should be restricted to the manner hereinafter appearing.
Now, therefore, In exercise of the powers conferred by rule 32 of the Defence of Pakistan Rules read with rule 20 thereof the Governor of the Punjab is pleased to direct that the said Mr. S. U. Durrani, shall‑
(i) not leave the limits of the Province of Punjab, for a period of 15 days w. e. f. the date of service of this order;
(ii) execute a bond for a period of 15 days in the sum of R s. 50.000 (Fifty thousand) with two sureties to the like amount for the due observance of the restriction and condition imposed by this order, and
(iii) keep the District Magistrate concerned/Superintendent of Police, Informed about his stay in any district of the Province."
2. Immediately after the expiry of the aforesaid order another similar order was passed by the Governor of Punjab on 13‑1‑1973, a photostat copy of which has been filed as Annex. "H", which reads as follows t‑
"Order No. 3‑76‑H‑Spl‑1/72 dated Lahore, the 13th January 1973, of Government of the Punjab, Home Department.
Whereas the Governor of the Punjab vide Home Depart ment's Order No. 3‑76‑H‑Spl‑I/72 dated the 30 th December 1972, made under rule 32 read with rule 213 of the Defence of Pakistan Rules, 1971, with a view to preventing Mr. S. U. Durrani, formerly Managing Director, P. I. A. from acting in a manner prejudicial to security of Pakistan directed that the movement of the said Mr. S. U. Durrani be restricted to the limits of the Punjab Province for a period of 15 days.
And whereas the period of restriction of the said Mr. S. U. Durrani is due to expire on 13‑1‑1973.
And whereas the Governor of the Punjab is satisfied that with a view to preventing the said Mr. S. U. Durrani from acting in a manner prejudicial to security of Pakistan, it is expedient and necessary to extend the period of restriction of the said Mr. S. U. Darrani.
Now, therefore, in exercise of the powers conferred upon him under rule 32 read with rule 213 of the Defence of Pakistan Rules, 1971, the Governor of the Punjab is pleased to direct that the movement of the said Mr. S. U. Durrani be restricted to the limits of Punjab Province for a further period of one month with effect from 14‑1‑1973.
By Order of the Governor of the Punjab
(Sd.)
(Muhammad Saeed Mehdi), C. S. P.,
Deputy Secretary (General), Home Department."
3. The last mentioned order was then rescinded by the Governor of the Punjab by means of big order, dated 21‑1‑1973 a photostat copy of which has been filed as Annex. "I". It reads as follows:‑
"Government of the Punjab. Home Department (Special‑I) Order No. 3‑76‑H‑Spl‑1/72 dated Lahore the 21‑1‑1973.
Whereas the Governor of the Punjab vide Home Depart ment Order No. 3‑76‑H‑Spl‑1/72 dated the 13 th January 1973 made under rule 32, read with rate 213 of Defence of Pakistan Rules, 1971 directed the restriction of movement of Mr. S. U. Durrani formerly Managing Director of P. I. A. to the limits of Punjab Province for a further period of one month with a view to preventing him from acting In a manner prejudicial to security of Pakistan.
And whereas the Governor of the Punjab is satisfied that the said order should be rescinded;
Now, therefore, in exercise of the powers conferred on him under rule 32 read with rule 213 of Defence of Pakistan Rules, 1971, the Governor of the Punjab is pleased to direct that the said order restricting the movement of Mr. S. U. Durrani to the limits of Punjab Province shall stand rescinded with effect from the date of service of this order.
By Order of the Governor of the Punjab.
(Sd.)
(Khadim Hussain Malik),
Section Officer (Special‑1),
Home Department 21‑1‑1973. "
4. It appears that on the same day an order on the same lines was passed by the Federal Government (Annex. `J' which reads as follows:‑‑
"No. 10/45/72‑Poll. I (1)
Government of Pakistan
Interior Division Islamabad, the 21st January 1973.
ORDER
Whereas the Federal Government is satisfied that with a view to preventing Mr. S. U. Durrani, ex‑Governor of the State Bank of Pakistan, resident of Karachi, from acting in a manner prejudicial to the security and interest of Pakistan, it is necessary that his movements should be restricted so that he is not likely to act in the aforesaid manner;
Now, therefore, In exercise of the powers conferred by clause (d) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, the Federal Government is pleased to direct that the movements of the said Mr. S. U. Durrani shall be restricted to the provinces of the Punjab and Sind and Islamabad Capital Territory for a period of one month from the date of execution of this order and he shall not move out of the said provinces and territory without the prior permission in writing of the Secretary to the Government of Pakistan, Interior Division, Islamabad.
(Sd.)
M. Zia Hussain), T. Pk., T. Q. A.,
C.S.S. Deputy Secretary, Interior
Division, Islamabad."
5. The petitioner has come up in writ petition against the last mentioned order passed by the Federal Government.
6. Notice in this case was issued and the Federal Govern ment was required to file a written statement. The Federal Government has filed a written statement accompanied by two affidavits. One affidavit has been sworn in by Mr. Zia Hussain, Deputy Secretary, Interior Division, Government of Pakistan, Islamabad, wherein it has been deposed that the contents of paragraph 1, paragraph 2 and its sub‑paragraphs and paragraph 3 of the annexed written statement are true to the best of the information, knowledge and belief of the department. The ether affidavit is by Mr. All Asghar, Secretary to the Government of Pakistan its the Interior Division, wherein it has been deposed that the allegation in regard to apprehended indulgence in activity prejudicial to the interest and security of Pakistan is amplified by stating that a foreign power is interested in Mr. Durrani's escape from Pakistan for using him against the interests and security of Pakistan and it was, therefore, necessary to restrict his movements to the area from where his escape could be effectively prevented. The affidavit further goes on to state that inasmuch as the matter bore an aspect involving Pakistan's relations with a foreign country, the Department claims privilege under section 123 of the Evidence Act, 1872, with respect to the secret reports on the basis of which the restrictions have been imposed on the movements of Mr. S. U. Durrani. I asked the learned counsel for the respondents to place before me the relevant files so that I could satisfy myself whether the privilege claimed, in the circumstances of the case, was justified or not. I have gone through the said file. In my opinion the privilege has been justifiably claimed in the interest of the State.
7. Learned counsel for the petitioner argued that this Court could go Into the relevant record for the purpose of finding out as to whether there was sufficient material before the Central Government for being satisfied that it was necessary to restrict the movements of the petitioner so as to proven him from acting in a manner prejudicial to the security and interest of Pakistan. He cited Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 S C 14) and The Government of East Pakistan v. Mrs. Rowshan Bijaya Shaukat Ali Khan (P L D 1965 S C 284) in support of his contention. The cases o cited, it may be pointed out, pertain to the detention whereas the instant case is of placing restrictions on the movements of a person and from that point of view it does not fall under sub‑clause (b) (i) of sub‑Article (2) of Article 201 of the Interim Constitution. Be that as It may the jurisdiction of this Court nevertheless is there under sub‑clause (a) of sub‑Article (2) of Article 201 of the Interim Constitution to examine as to whether the impugned order has been passed without lawful authority or not. Proceeding in that manner and after going through the material which was placed before me, on the basis of which the privilege was claimed by the Government, I am of the view that there was such evidence before the authorities concerned on the basis of which they could pass orders res tricting the movements of the petitioner. Learned counsel for the petitioner submitted that the impugned order was to lapse after one month from the date of its execution and if the case was to be approached from that point of view, then if after one month the apprehension mentioned therein was no longer to exist, even at the present moment, the said apprehension could not be said to exist. What is to happen in future or in what manner the authorities concerned will act hereafter is not for me to postulate and, therefore, I cannot give any attention to the plea raised by the learned counsel,
8. Learned counsel also placed on record a photostat copy of a letter which purports to have been written by Maulana Mufti Mahmood. Chief Minister, North‑West Frontier Province, to Mr. Ghulam Mustafa Khar, Governor of the Punjab. Learned counsel argued that in the face of the assurance given by the Chief Minister of the N.W.F.P. in the aforesaid letter, regarding the return of the petitioner, there was no justification to pass the impugned order against him. This plea was not raised in the writ petition nor any affidavit in support thereof was filed. The document filed is only a photostat copy and in the absence of any justification for non‑production of the original, I cannot attend to this copy which was not produced from proper custody. Even otherwise, the letter referred to was addressed to the Governor of the Punjab and not to the Central Government. I think that with regard to the aforesaid letter, I need not dilate any further and would stop the topic at this stage.
9. The next argument raised was that in the written statement and the annexed affidavits, it had been stated that, "the Government has information that Mr. S. U. Durrani might escape from Pakistan with the aid of a foreign power which is interested in using him against the interests and security of Pakistan and this is the reason why his movements have been restricted to the said areas." Learned counsel submitted that if there was any apprehension from the side of any foreign power that it nary use the petitioner against the Interests and security of Pakistan, then the apprehension was against the said power and not against the petitioner. In other words, he submitted that according to the pleas taken in the written statement, it might be a foreign power which was interested in this escape but not the petitioner himself and from this point of view, the plea of apprehension from the side of the petitioner was ill‑founded. The argument is, with respect, too subtle and cannot be accepted. I have already stated that after going through the file of the Government which was shown to me for the purpose of justifying the claim of privilege, enough material existed on the subject in hand and, therefore, I need not dwell further on the aforementioned plea of the learned counsel.
10. The result is that this writ petition has not merit and is dismissed with no order as to costs.
K. B. A. Petition dismissed.