CONTROLLER OF STATE DUTY Versus KISHWAR SULTANA

This writ petition has been filed to challenge the order passed by the District Magistrate, Multan on 2-9-1975 under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, for arrest and detention for a period of thirty days, of Muhammad Anwar. The grounds for the detention served on the detenu, copy of which has been furnished as Annexure `B' to the writ petition, are as under : -

"(a) You were convicted in five cases of theft, nine cases of narcotics two cases of gambling, one case of cheating and one case under Martial Law ;

(b) you were twice bound down under section 110, Cr. P. C., twice under section 109, Cr. P. C. and once under Goondas Ordinance in 1971 ;

(c) Suspicions were laid against you in 21 cases of theft ; and

(d) You are facing trial in the following cases :

F.

1. R. No. Under section______________________________________________

1. 507/73 61/1/14 Excise Act.

2. 103/74

3. 160/74

4. 2/75

5. 588/75

6. 93/75

7. 206/75

8. 490/75

9. 488/74 91 / 1 /78 Opium Act

10. 233/74 506, P. P. C.

11. 161/74 13/20/65 Arms Ordinance.

12. 356/75 411, P. P.C.

13. 352/75 411, P. P. C.

______________________________________________________________________________

(e) Your nearious activities, dealing and smuggling of narcotics are prejudicial to the maintenance of public order."

2. The order is challenged, in the first instance, on the legal plea that the District Magistrate was not competent under the law to issue such order. Before adverting to the plea, it will be useful to reproduce the relevant provision of the aforesaid West Pakistan Maintenance of Public Order Ordinance. The power to order arrest and detention is contained in subsection (1) of section 3 of the Ordinance which reads as follows :-

"3. Power to arrest and detain suspected persons.-(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied, that for the aforesaid reasons it is necessary so to do, may, subject to the other provisions of this section, extend from time to time the period of such detention."

Subsection (2) of this section 3 reads 3-

"(2) If a District Magistrate or any other servant of Government authority in this behalf by a general or special order of Governments has reason to believe that any person within his territorial jurisdiction has acted. is acting or is about to act in a manner prejudicial to public safety or the maintenance of public ~~ order, he shall forthwith refer the matter to Government for order."

Section 26 of the Ordinance enables the Provincial Government to direct by order in writing that the power under subsection (1) of section 3 shall, subject to such restriction as may be specified, be exerciseable by any District Magistrate within his jurisdiction". The then Government of West Pakistan had, by its Notification No. 3-104-H. Spl. 1/64 dated 27-2-1965, delegated the power under section 3(1) to the District Magistrates. The relevant portion of the Notification is-

"In exercise of the powers conferred on him by section 26 of the West Pakistan Maintenance of Public Order Ordinance. 1960 (XXXI of 1960) the Governor of West Pakistan is pleased to direct that-

(a) the powers exerciseable by Government under subsection (1) of section 3 of the said Ordinance shall be exercised by all District Magistrates in West Pakistan subject to the condition that the period of detention under an order passed in exercise of the said powers shall not exceed 30 days."

3. The plea taken proceeds from the contention that the function of being "satisfied" was not a power and as such was not delegateable under section 26 of the Ordinance. It was urged, on this basis, that notwithstanding the delegation, the function of reaching satisfaction remained with the Government and as such the District Magistrate had to refer the matter to the Government for that purpose, which not having been done in the present matter, he could not order the arrest and detention of the detenu. Reliance for this was placed on the Authority of a Division Bench of Sind & Baluchistan High Court in Liaqat All v. Government of Sind (P L D 1973 Kar. 78). The Bench, while examining the validity of detention under the West Pakistan Maintenance of Public Order Ordinance, 1960, considered the question whether the requirement of subsection (2), that first a reference should be made by the District Magistrate to the Provincial Government before detaining a person without trial under the Ordinance, is dispensed with upon the delegation by the Provincial Government of its powers under subsection (1) of section 3 to the District Magistrate. The Division Bench held :-

"In our opinion, the requirements laid down in subsection (2) of section 3 are not dispensed with when powers of the Provincial Government under subsection (1) are delegated to the District Magistrates. Notwithstanding such delegation, it would still be necessary for a District Magistrate to make a reference to the Provincial Government with regard to the prejudicial activities of a citizen, and, when such a reference is made, the Provincial Government may pass such order as it may deem fit. Therefore, section 26, which permits delegation of the Provincial Government's powers under subsection (1) of section 3 should be interpreted in the context of the provisions of subsection (2) of this section. What can be delegated under section 26 is only the power to arrest and detain a citizen. But the faculty of satisfaction cannot be delegated to the District Magistrate. Even section 26 itself makes this position clear, in that it provides only for delegation of the Provincial Government's 'power' under subsection (1) of section 3. 'Power' is not the same thing as 'satisfaction'. Sub. section (1) of section 3 first requires the Provincial Government to be satisfied with regard to the necessity of preventive detention of a citizen, and such satisfaction being reached, the Provincial Government can exercise the powers of directing arrest and detention of such person. Reading subsections (1) and (2) of section 3 and section 26 together, the legal position, which emerges is that what can be delegated is only the power to arrest and detain a citizen. But as regards 'satisfaction' this has to be of the Provincial Government and not of the District Magistrate to whom power of arrest and detention is delegated."

4. It is obvious that such an interpretation that the District Magistrate has to follow the requirement of subsection (2) of section 3, in spite of the delegation of powers under subsection (1) of that section, has the effect of rendering the provision of section 26 redundant. In formulating its above view, the Division Bench, I may say with all due respect, made no reference to any case-law, not even to the decision on a similar question by a 'Full Bench of the Lahore seat of the then High Court of West Pakistan, in Nasim Fatima v. Government of West Pakistan (P L D 1967 Lah. 103). .Although, this Full Bench authority was in respect of the provisions of the Defence of Pakistan Ordinance (XXIII of 1965) and of the then Defence of Pakistan Rules, yet as the relevant provisions and the question involved are similar, the authority is applicable to the point in hand. The power of detention under the then Defence of Pakistan Rules is contained in Rule 32(1) which reads :-

"The Central Government, if satisfied with respect to any particular person, that with a view to preventing him from acting in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other powers, the maintenance of peaceful conditions in any part of Pakistan the maintenance of essential supplies and services or the efficient prosecution of war, it is necessary so to do, may make an order. , . . . . . .

The Central Government could delegate this power under subsection (4) of section 3 of the Defence of Pakistan Ordinance, 1965, which reads as under :-

"The Central Government may by order direct that any power or duty which by rules under subsection (1) is conferred or imposed upon the Central Government, shall in such circumstances, and under such conditions, if any, as may be specified in the direction be exercised or discharged-

(a) by any officer or authority subordinate to the Central Government, or

(b) by any Provincial Government or by any officer or authority subordinate to such Government, or

(c) by any other authority."

5. The above provisions, as can be seen, are in terms similar to those contained in subsection (1) of section 3 and section 26 of the West Pakistan Maintenance of Public Order Ordinance, 1960, as already reproduced. The absence of the word 'duty' in section 26 of the West Pakistan Maintenance of Public Order Ordinance, which figures in section 3(4) of the Defence of Pakistan Ordinance, 1965 is insignificant, for, if the exercise of a power under a law by an authority is contingent upon the performance of a duty, then the authority must perform that duty before exercising the power. In Nasim Fatima's case, the argument advanced before the Full Bench that no other officer, authority or Provincial Government had power to make an order because satisfaction was to be of the Central Government which could not be said to have been delegated, had been repelled after an elaborate discussion and with reference to case-law including the decisions of the Privy Council. The Bench expressed the view that :-

"The satisfaction is a condition precedent to the making of an order of detention and, therefore, if the power of detention is conferred on the Provincial Government or on another officer then it must carry with B it the power to be satisfied as to whether it was necessary to make an order under rule 32(1)(b)."

The decision of the Full Bench came up before the Supreme Court in Ghulam Jillani v. Government of West Pakistan (P L D 1967 S C 373). Their Lordships of the Supreme Court, while upholding the view taken by the Full Bench observed

"To suggest that the delegate of power under rule 32 is not charged with the duty of exercising such judgment is absurd. Appreciation of situation in the field of Law and Order is primarily a function of the Provincial Government and its officers, who are in the best position to gain direct information of all the relevant factors. Here, the detention orders were made expressly for preservation of the public order. It cannot be argued that it was for the Central Government to exercise its judgment so as to be satisfied of the need of preventive action, and upon its communication of such satisfaction, the Provincial Government was merely to perform the machinery function of issuing the order of detention and seeing it carried out. The words of section 3 and rule 32 cannot reasonably bear such an interpretation."

6. The Full Bench authority of this Court as duly affirmed by the Supreme Court has binding effect. I, therefore, hold that the District Magistrate had the power to order the arrest and detention of the detenu on the basis of his own satisfaction.

7. I need not go into the other contentions, because today, when the case came up for further hearing, learned counsel for the petitioner informed this Court that the petition has become infructuous as after the expiry of the present detention order on 1-10-1975, the period of detention was not 'extended and the detenu was released. In view of this changed situation, the writ petition has become infructuous and is disposed of as such.

S. A. H. Order accordingly.