ZARINA GAUHAR Versus PROVINCE OF SIND

TUFAIL ALI A. REHMAN. C. J. -The petitioner in each of these petitions is one Mrs. Zarina Altaf Gauhar who seeks to challenge the validity of the detention of her husband, Mr. Altaf Gauhar, who was, at the time of his initial detention, the Editor-in-Chief of the Dawn, an English daily newspaper published from Karachi. The earlier of these two petitions, namely, Consti tutional Petition No. 40 of 1972, was filed in this Court on the 7th February 1972, and is styled as a petition under Article 98 of the Constitution of Pakistan, 1962, read with section 491, Cr. P. C. read with the Provisional Constitution Order of 1969. The second petition, namely, Constitutional Petition No. 270 of 1972, was filed on the 30th of June 1972 and purports to be a petition under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan or, in the alternative, under various constitutional predecessors of the said Article in earlier constitutional instruments. The reference to Article 98 of the 1962 Constitution in the first petition and that to Article 201 of the Interim Constitution in the second petition is, of course, understandable because in the meantime, the Interim Constitution had been enacted but the reference in the alternative to the various constitutional pre decessors of this Article has a significance which will be apparent later in this judgment.

2. It will be convenient to set out a brief outline of the facts which have led up to these petitions and the history of their progress thereafter. Some of these facts, -it will be necessary to state in greater detail in their proper context later on ; a brief reference will suffice at the moment to intro duce the matters in controversy. The petitioner was a member of the Civil Service of Pakistan and, at the time when Field Marshal Mohammad Ayub Khan stepped down the Presidency of Pakistan, i.e. on the 25th March 1969, the detenu was the Secretary, Ministry of Information of the Government of Pakistan. On that day the then Commander-in-Chief of the Pakistan Army General Agha Mohammad Yahya Khan assumed to himself all the powers of the Government of Pakistan, styling himself first as the Chief Martial Law Administrator, and subsequently, as the President of Pakistan as well. This state of affairs continued until 20th December 1971 when the General also stepped down and handed over power to the present President who until enactment of the Interim Constitution of Pakistan, functioned as Chief Martial Law Administrator and President of Pakistan.

3. After the assumption of office by General Mohammad Yahya Khan the detenu continued in the service of Government of Pakistan for a short while though he was removed from the secretaryship of the Ministry of Information almost immediately. Eventually, however, he was dismissed from Government service on the 26th May 1969, purportedly under the provision of Martial Law Regulation 58 of 1969. He then formed a firm which set up in business as Management Consultants under the name of Micas Associates. Although that rum still continues to "so the detenu s connection with it came to an end, in a practical sense, upon his appointment as Editor-in-Chief of the Dawn and all the publications of the Herald publications on the 25th of December 1971. On the night between the 4th and 5th of February 1972,. the detenu was arrested and, although according to himself, no authority was shown to him under which his detention had been ordered, it subse quently transpired that he had been detained by reason of an order purportedly made under Martial Law Regulation No. 78 of 1971. It was in order to challenge the legality of that detention that Constitutional Petition No. 40 of 1972 was instituted in this Court.

4. On the date on which the petition came up for Kutcha Peshi, how ever, it was not clear whether the petitioner was held under that Martial Law Regulation or not and in the meantime, a question had arisen in the Supreme Court of Pakistan, which had granted leave to appeal in the matter of Malik Gbulam Jilani's detention, whether a petition questioning the detection under that Martial Law Regulation could be entertained by the Court. The Bench which heard the matter, therefore, ordered the issue of rule nisi but directed that a date be fixed after the decision of the appeal in the Supreme Court. The Court further directed, however, that if the detention was found to be under a provision other than the Martial Law Regulation an application could be moved for an earlier bearing of the main petition. Within the next few days however, the Advocate-General of Sind filed a true copy of the detention order which showed that the detention was indeed under Martial Law Regulation 72. On the 11th February several miscellaneous applications were filed, including an application for bail pending the hearing of the main petition, and all these were heard and disposed of on the 18th February 1972. They were dismissed substantially on the ground that this Court had no jurisdiction to grant relief against orders passed under Martial Law Regula tion. This view of the law was itself based upon the fact that the Supreme Court of Pakistan had held in Dosso's case (P L D 1958 S C (Pak.) 533), to a similar effect and that the High Court was bound to follow that case. It will be seen, therefore, that although the order of the Court was merely one of dismissing various miscellaneous applications, the ground upon which the dismissal was based was such that, so long as Dosso's case held the field, the High Court felt that it had no jurisdiction to entertain the main petition, the result of which would have been a forgone conclusion if Dosso's case had not been overruled by the Supreme Court in the meantime.

5. A petition was filed in the Supreme Court for leave to appeal against this order of the High Court and, leave being granted, the Supreme Court heard the matter along with the case of Malik Ghulam Jilani to which I have referred ; the result was the celebrated judgment commonly referred to as the Asma Jilani's case (P LD 1972 S C 139), whereby the Supreme Court overruled its former decision in Dosso's case. The result was that the Supreme Court allowed the appeal and declared the impugned order void, directing the release of the detenu immediately.

6. Since the appeal in the Supreme Court had been directed only against the dismissal of an application for interim relief, the result would have been that the main petition would have continued to be pending in tots Court as in fact it has been treated to be pending. Of course by reason of the release of the detenu which would have occurred in con sequence of the actual operative part of the Supreme Court judgment in which their Lordships held the order of detention itself to be bad, the petition in this Court would then have abated. In the meantime, however, the peti tioner had been arrested or, at least, his confinement continued by reason, of a new order passed by the Government of Sind. Whether or not this petition abated or should have been allowed to remain pending, with or without amendment, is now a matter of academic, if any, importance. The petition was treated as being a pending petition but the next order that appears in the order-sheet of this petition is dated the 4th September 1972, which is well after the institution of Constitutional Petition No. 270 of 1972' along with which it has then been heard.

7. After the re-arrest or continuance in detention, as the case may be, of the detenu by reason of the fresh order of the Government of Sind no steps seem to have been taken for having Petition No. 40 of 1972 fixed for hearing and Petition No. 270 of 1972 was filed in this Court only as late as the 30th of June 1972. The reason would seem to be that, in the meantime, the detenu was served with a memorandum stating that his case would be reviewed by the Central Government Advisory Board which consisted of a fudge of the Supreme Court and a Secretary to the Government of Pakistan, a Board stated to be constituted by the President of Pakistan under the provisions of Article 9 of the Interim Constitution. This order, however, was served on the detenu only on the 25th May 1972, and in fact, for reasons which will need to be stated later in this judgment, a review by this Board never took place. When this petition was filed this Court was in vacation but the matter was fixed before a vacation Bench which admitted the petition to regular hearing on the 3rd of July 1972. On the 21st of July 1972, as a result of an application made by the petitioner an amendment in the petition was allowed. The case then came up for regular hearing on the 8th August 1972, that being the first date: upon which a Division Bench of this Court was working after the vacation, the Court having re-opened upon the 7th August.

8. In the meantime, three other matters had been admitted for hearing. sad several questions of constitutional law were raised in all these matters, including even the validity of the Interim Constitution itself. These were (i) a petition on behalf of the Sun, an English newspaper daily published from Karachi, challenging certain orders including one of confiscation passed in regard to its press, (ii) an application on behalf of Mr. Wazir Ali challenging; the validity of his prosecution under section 124-A of the Pakistan Penal Code, and (iii) a petition by Syed Sharifuddin Pirzada challenging the power of Government to impose the restrictions on travel abroad by means of requiring the production of a `no-objection certificate'. I accordingly thought it best to fix all these matters before a Full Bench, at any rate for hearing the common questions of law involved, and in these circumstances the present two petitions and the three other matters to which I have referred were fixed before a Full Bench on the 8th August and of this Bench both of us were members, the third member being Mr. Justice Muhammad Haleem. It so happened that Mr. Brohi who appeared before us in the present case also appeared in one of the other matters, namely, the case of Syed Sharifuddin Pirzada. When the hearing opened Mr. Brobi stated that, neither in the case of Syed Sharifuddin Pirzada nor in the present cases, would be raise any question as to the vices of the Constitution itself though of course he reserved to himself the right of raising other questions of constitutional law. In these circumstances the Full Bench commenced upon the 8th of August to hear arguments on questions of con stitutional law in all the cases, other than the present case, and the only progress that was made in this case on the 8th was that an application which had been presented for the summoning of certain witnesses was deferred for hearing ; eventually this application has been, as I will show, by implication at least, withdrawn. Before the Full Bench it was agreed, in order to suit both the convenience of Mr. Brohi and the Attorney-General, that this case should be taken up on the 4th of September 1972.

9. Learned counsel in the case of Wazir Ali having stated that there was no particular urgency in his case since his client was on bail urged that he might be heard more or less an amicus curiae upon questions of law which concerned his case and then to have the matter separated from the others which were pending before the Full Bench. This was agreed to and, Mr. Brohi having taken the position that he would not canvass the vires of the Constitu tion in the present case, was also heard so far as the present cases are concerned to the limited extent that the questions involved were common with the others and the Full Bench really heard only two cases completely, namely, the cases of Sun and Syed Sharifuddin Pirzada. As it happened, however, before the Full Bench could deliver a judgment the order in the case of Sun was withdrawn and the necessity of a judgment in that case no longer existed, with the result that the Full Bench delivered a judgment only in the case of Syed Sharifuddin Pirzada. In these circumstances counsel on both sides agreed that it was no longer necessary to have a Full Bench to hear the present cases which were then ordered to be heard by a Division Bench and continued before this Bench which consisted of two of the Judges who had heard the Full Bench cases. From then on arguments were heard upon law in the-first instance from day to day and then upon the material produced by the Attorney-General as being the one upon which reliance had been placed by the detaining authority for the purpose of detention.

10. This material upon which it was stated that the detaining authority relied for the purpose of satisfying itself that an order of detention was necessary was placed before us by the learned Attorney-General in a sealed .envelop for our own examination and satisfaction on the question whether the order of detention was itself justified. However, the learned Attorney-General asked for so privilege in regard to any of these documents and a full examination has been permitted to the detenu and his counsel, not only initially but several times thereafter and indeed whenever counsel has made a request for being allowed to see it. Only upon one small point did the Attorney-General request that the material be examined, arguments heard and evidence, if any, taken in chambers and this not out of any desire to exclude it from inspection by the detenu or his counsel but only with a view to prevent its publication in the press because the name of a certain foreign power was mentioned. To this reservation counsel for the detenu readily agreed and this is the only part, therefore, of the case which has been heard in camera the rest having been heard in open Court. On one other point also the learned Attorney-General requested that the case be heard in camera but this was really with a view to saving embarrassment to the detenu himself since it involved reference to his relations with certain ladies and, when counsel for the detenu, with the full knowledge and approval of the detenu, opposed it the learned Attorney-General made it clear that he had no other reason for excluding this part from the public proceedings or the press and therefore agreed that it be heard in open Court. In the case of two ladies, however, their actual names do not appear in the deposition of the detenu, who eventually was the sole witness to be examined as I will presently show, but was recorded upon a piece of paper and put in an envelope which was then sealed and initialled by one of us.

11. When the examination of the material and such arguments. as learned counsel on both sides could advance without the deposition of any witness, had been heard learned counsel for the detenu renewed his earlier request that the detenu be examined as a witness. The main purpose for which counsel sought to examine the detenu was to establish a case of mala fides. We were initially reluctant to allow the detenu to be examined for this purpose for it is well settled that the onus of alleging and establish ing facts which constitute mala fide, is upon the detenu. In Petition No. 40 of 1972 the challenge to the validity of the order of detention is based upon several points of law and the only ground in which a case of mala fide is alleged in para. 9 which claims that the detention is designed to exclude the detenu from pursuing his avocation as an independent journalist without any further detail and the ground stated in para. 10-D in general terms alleges that the detention is "otherwise mala fide". In any case the reference in the petition can hardly be to the order under which the detention is now sought to be justified since that petition was dated the 15th of January 1972, and was directed against the order of the Sind Government while the order now in force is one dated the 7th of July and is by the Government of Pakistan.

12. Even in Petition No. 270 of 1972, both as originally filed and as later amended, mala fides are not really alleged any where. It is true of course that the word "mala fide" is used at some places during the petition but in each case in the context of the plea of mala fide in the sense of mala fides in law. In the manner in which the case of mala fide was sought to be put by examining the detenu as a witness, that is, for pursuading us that the order of detention was passed for malicious and extraneous reasons, such a case has never at any time been pleaded except in ground 10-D of the earlier petition to which I have referred, for what it is worth there is indeed an assertion of "personal animosity and grudge" on the part of the authorities towards the detenu in para. 10(iii) of the second petition but this is stated to be inferable from the circumstances ; none are expressly pleaded. The explanation referred by counsel was that the petitions had in each case been made by the detenu's wife who could hardly be expected to have a knowledge of the various facts which, according to the detenu, constitutes mala fides in the sense now used. It was, therefore, urged upon us that it would be taking too severely technical a view to insist that these facts should have been pleaded, much less stated on affidavit, before we should agree to examining the detenu as a witness. This argument obviously overlooked the fact that the detenu himself has, at least since the 8th of August been afforded as full an opportunity as he desired for consultation with his counsel and facilities fur drafting out and swearing affidavits or statements. Indeed, instead of merely permitting his counsel to see him in jail, whenever a request was made to us for affording such a facility we instead directed the production of the detenu in Court where we made it possible for him to consult with his lawyer without interference by anybody and with a full opportunity of writing out statements, affidavits etc. When arguments began in this case, counsel did indeed request that the detenu be examined but left it to us to decide after arguments on law had been heard to decide what evidence needed to be recorded. By the time finally the request was made to us for examination after the record had been examined, the detenu had had ample opportunity to swear an affidavit if he wished to do so. In these circumstances I do not think it would be taking too technical a view to disallow examination of the detenu in Court as a witness. Nevertheless, regard being had to the fact that this was a case of detention, we desired to give as much indulgence and facility as possible to the detenu to establish a case by evidence if he could. Accordingly we acceded to his request and the examination of the witness commenced on 21st September 1972; with the reservation which I have already mentioned the entire deposition was taken in open Court.

13. The deposition concluded on the 1st of November, which was a Tuesday. The following Friday, being Jumat-ul-wida, was a holiday and, therefore, the only two remaining working days in the week were Wednesday and Thursday. The following week bad also only two working days the Wednesday, Thursday and Friday being Eid holidays and according to the programme of the Court neither on Monday nor on Tuesday was a Division Bench normally scheduled to sit. This being so, counsel on both sides thought that they could not, conclude arguments in two days and, being of that view thought that it would be a waste of time to argue in part for these two days and then to resume arguments on the 14th. By consent, therefore, the matter was fixed for the 14th for arguments. Final arguments were then heard from the 14th till 24th November, 1972 when the cases were reserved for judgment.

14. A few more facts relating to the arrest and various orders of detention against the detenu and similar matters would serve to complete the statement of facts. It will be recalled that the detenu was arrested on the night between the 4th and 5th of February 1972 and that no order of detention was served upon him at that time. On the 8th of February, 1972, however, the learned Advocate-General of Sind filed, in this Court a true copy of an order passed by the Martial Law Administrator, Zone 'D', under Martial Law Regulation No. 78 whereby the Martial Law Administrator, purporting to have reasons to believe that one Altaf Gauhar, Editor-in-Chief, 'Dawn' (English), is acting or intending to act in contravention of the provisions of paragraph 1 of Martial Law Regulation No. 78, and deeming it to be necessary to prevent him from so acting, directed the detention of the said Mr. Altaf Gauhar for a period of six months with immediate effect ; the order is dated the 4th of February, 1972. It is to be noted that although the Martial Law Administrator, Zone 'D', was also the Governor of Sind, the order does not purport to be by him. in the latter capacity and it is only in the latter capacity that he could have acted under the Defence of Pakistan Rules. The action of course was taken under Martial Law Regulation No. 78 which, assuming its validity of course, 'empowered the Martial Law Administrator and not the Governor. It is the order which held the field until the 20th of April, 1972 when the Government of Sind passed an order of detention purporting to be under rule 32(1) (b) of the Defence of Pakistan Rules, directing the detenu's detention for a period of six months with effect from the date of the service of the order. The first paragraph of this order recites the opinion of the Governor of Sind that for the purpose of preventing the detenu from acting in a manner prejudicial to the security, interest and defence of Pakistan it is necessary to make such an order. It is admitted ground that this order was served upon the detenu in prison and that he was not released ; indeed, as far as we can see, the first order has never been cancelled.

15. It might also be noticed that the order was to take effect from the date of its service ; in another case, namely, Mohammad Wassan v. Deputy Commissioner & District Magistrate, Sanghar and another (Const. Petition No. 495 of 1972), we have held that an order of detention cannot take effect from the date of service but from the date of its actual passing. However, -even if the legality of the detention of the detenu depended upon the validity of this particular order, which I think it does not, he being now under detention on account of a later order of the Government of Pakistan, this question would have been, in the instant case, entirely academic because it was in fact served on the date on which it purports to be made. The other thing which needs to be noticed as to this order is the fact that upon the same day that it purports to have been passed in Karachi, that is, the 20th of April, 1972, the Supreme Court announced judgment in Asma Jilani's case at Peshawar. The final noteworthy coincidence upon which a great deal of comments has been made in the course of arguments in this case is that the Interim Constitution of Pakistan was to come into force and did in fact come into force on the 21st of April, 1972 that is, at mid-night succeeding the day upon which this order had been passed.

16. On the 25th of May, 1972 the Home Secretary to the Government of Sind wrote to the detenu informing him that his case had been referred for review by the Central Advisory Board, constituted by the President of Pakistan under Article 9 of the Interim Constitution and consisting of Mr. Justice Salahuddin Ahmed, Judge, Supreme Court of Pakistan and Mr. Mumtaz Ali Alvi, Secretary to the President, Rawalpindi. The date upon which the review was to take place is not stated in this letter but it is stated that it would be reviewed shortly. The detenu was asked to state within two days whether he wanted to appear before the Board personally and/or send any representation. To this letter the detenu answered that he did wish to be heard orally and also that he wanted to make a represen tation, for which latter purpose he requested that he be supplied the grounds upon which action had been taken against him. On the 29th of May, the Home Secretary again wrote to the detenu and attached to the letter a statement of the grounds upon which the Governor of Sind had formed his opinion. The letter further stated that the Advisory Board was to meet on the Ist of June, 1972 at 3-00 p.m. and that the Board had been informed of the detenu's desire for personal hearing and to make a written representation; however, the request for obtaining the services of Mr. Manzoor Qadir, Barrister-at-Law, for whom the detenu had asked, or failing this the assistance of his own brother, Mr. Tajammul Hussain, as "friend and adviser" was refused. It might be mentioned that Mr. Tajammul Hussain is also an enrolled Advocate and did in fact appear before us on behalf of the detenu. However, the detenu was not taken to appear before the Advisory Board on the 1st as had been indicated and he waited until the 20th of June, 1972 when he made a representation to Mr. Justice Salahuddin Ahmed through the Home Secretary. It might as well be mentioned here that no hearing has at any time been given to the detenu by any Advisory Board. In these circumstances Constitution Petition No. 270 of 1972 was filed, challenging the detention of the detenu.

17. On the 7th of July, 1972 the Government of Sind withdrew its orders and upon the same date the Government of Pakistan passed a fresh order, also under rule 32(d) (i) of the Defence of Pakistan Rules and this order was to be in force for -a period of three months from the 7th of July, 1972. As a consequence the petitioner applied for being permitted to amend the petition and this prayer was allowed. The period of this order also came to an end during the course of arguments, that re, on the 6th of October, 1972 and by that date yet another order was passed by the Government of Pakistan extending the detention for a further period of three months. The basis, therefore. of the detenu's present detention is the order of the Govern ment of Pakistan dated the 7th of July, 1972 as extended by the order dated the 4th of October, 1972.

18. The arguments that have been addressed to us in this case on both sides may be divided, broadly, into three categories. The first of these categories consisted of a number of questions of pure law including consti tutional law. As I have earlier indicated Mr. Brohi refrained from any attack upon the vires of the Constitution. In the main this part of the arguments was an attack upon the vires of the Defence of Pakistan Ordinance itself, the basis of the argument being the contention that it was in conflict with the fundamental rights. Of necessity, therefore, this really amounted to canvassing the question whether the fundamental rights can be maintained in view of the Proclamation of Emergency. Subsidiary questions as to the vires of the rules, on the assumption that the Ordinance itself was valid, and, finally the authority of the action taken even upon the basis that the Rules themselves were intra vires, were canvassed before us. The second part of the case which was handled by Mr. Mohammad Ali Sayeed consisted of an argument based upon the record produced before us by the learned Attorney-General in support of the order of detention and this was followed, as I have stated earlier, by the oral examination of the detenu himself. At the close of that examination Mr. Mohammad Ali Sayeed, in the circumstances which we narrated in the course of an order dated the 31st of October, 1972, withdrew from the case and Mr. Tajammul Hussain, to whom I have referred earlier and who had of course been throughout appearing for the detenu carried on with the re-examination. It will be convenient to mention here that, at the end of the re-examination Mr. Tajammul Hussain stated that he did not wish for the examination of any other witness and the learned Attorney-General also made a statement to the similar effect. The third part of the case was to be an argument based on the testimony of the detenu and was to commence on the 14th November 1972. On that day Mr. Mansoor Qadir appeared before us and argued the case generally. His main argument was on the validity of the order in relation to the grounds, that is, an examination of their relatability to the purposes of the Defence of Pakistan Ordinance and Rules and of the material on which the grounds were based. He also addressed us on the law relating to these matters and wished to argue the applicability of Article 9 of the Constitution but when we pointed out to him that the argument on questions of constitutional law had already been addressed to us in full by Mr. Brohi he did not press his request to be heard on these matters. However, since we felt that if there was any fresh argument on these matters we should like to hear Mr. Manzoor Qadir he did refer to some aspects of the matter, to which I shall refer in the appropriate place. Although I have put the arguments in this case in these three categories these were, of course, not watertight compartments, and, of necessity, there was a certain amount of overlapping.

19. It would be convenient to consider first the attack on the validity of the Defence of Pakistan Ordinance and/or the Rules in the light of the Provisions of the Interim Constitution relating to fundamental rights, without reference, at the moment, to those relating to the Proclamation of an Emergency and its effect upon the fundamental rights and their enforcement, Article 7 (1) of the Interim Constitution states :

7.--(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void."

It will be seen that the sub-Article is in terms identical with Article 4(1) of the 1962 Constitution and Article 6(2) of the 1956 Constitution as also Article 13(1) of the Constitution of India. The various cases decided, there fore, under these provisions will be relevant for a consideration of the present question, though of course some of these cases may not have authority of a binding character.

20. The provisions as to the appointment of an Advisory Board is contained in Article 9(4) of the Interim Constitution which is in the following terms :

"9.-(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or the external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding one month unless the appropriate Advisory Board has reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and if the detention is continued after the said period of one month, unless the appropriate Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention."

A comparison with Article 7(4) of the 1962 Constitution and Article 2(4) of the 1956 Constitution as also Article 22(4) of the Indian Constitution would show that the material words in all these provisions are identical. There are of course changes in the arrangement of the provisions and there are differences also in the constitution of the appropriate .Advisory Board but so far as is material to the present question, namely, the validity of a law which runs counter to these provisions in the sense that it does not make any provision for an appropriate Advisory Board, they are identical. Each of them uses the expression "no such law shall authorise the detention of a person . . . . . .". Here again, therefore, cases decided upon the previous Constitutions are relevant to our present purposes and cannot be brushed aside upon the mere argument that they were decided under different provisions.

21. That the Defence of Pakistan Ordinance does not provide for the review of the case of a detenu after a specific period, does not, of course, admit of any dispute. In that sense, undoubtedly, the Defence of Pakistan Ordinance is, within the meaning of Article 7(1), "inconsistent with the rights conferred". If, therefore, Article 9(4) is interpreted as meaning that any law which does not provide for an Advisory Board is in conflict with a Fundamental Right it would under Article 7(2) "to the extent of such inconsis tency be void."

22. I think it should be noticed that Article 7, though it consists of four sub-Articles is divided as to future effect and effect on laws already in existence by the different provisions made in sub-Article (1) and in sub Article (2) ; the former directs that laws already in existence and inconsistent with the rights conferred by the chapter are to the extent of such inconsistency to be void, while sub-Article (2), referring to the future, prohibits the State from making any law which takes away or abridges the right "conferred and provides that any law made in contravention of this prohibition is, to the extent of such contravention, to be void.

23. In the forefront of Mr. Brohi's contentions of a constitutional character was the argument that, upon the enforcement of the Interim Constitution, the Defence of Pakistan Ordinance to the extent that it provides for detention ceased to be a valid law inasmuch as it offended Article 9(4) of the Constitution and was by reason of Article 7(1), therefore, void. In order fully to understand Mr. Brohi's argument which has several aspects and the answer made by the learned Attorney-General, Mr. Yahya Bakhtiar, to these contentions it is necessary to state certain dates in relation to the Constitution and -orders made under it and also to refer to some of the provisions of the Constitution. The Interim Constitution was adopted and enacted by the National Assembly of Pakistan on the 17th day of April 1972 as is borne out by the certificate attached to the Constitution, as published in the Gazette. Below the certificate appears the assent of Mr. Zulfikar Ali Bhutto, who is described as the President of Pakistan, Chief Martial Law Administrator and President of the National Assembly of Pakistan. The printed copy made available to us does not show any date upon this endorsement but I do not think that would matter inasmuch as the commencing day of the Interim Constitution is stated in Article 12 of the Constitution itself as the 21st day of April 1972. Upon that date a notifica tion appeared in the Gazette of Pakistan, Extraordinary publishing an order made by the President under Article 139(3) of the Constitution whereby the President declared that the right to move any Court for the enforce ment of the Fundamental Right provided for in Article 9 was to remain suspended for the period during which the Proclamation of Emergency was in force. The order itself, however, is dated 20th April, 1972. Another order was published in the Gazette of Pakistan of the 30th April 1972 which is in terms identical with the order to which I have referred save for the important exception that instead of referring to Article 9 it refers also to Articles 12, 13, 14, 15, 16, 20, 21, 22 and 24. It is to be noted that Article 9 is again referred to in this order.

24. Though there can be no doubt, of course, that the second order to which I have referred was after the enforcement of the Constitution; the first order is dated the 20th of April that is, even before the enforcement of the Constitution. Mr. Brohi,-therefore, argued, in the first place, that on the 20th April 1972, the President could .not pass an order under Article 139 for the simple reason that Article 139, being itself a part of the Constitution, was not yet in force The order of the 20th April, therefore, being a nullity the Defence of Pakistan Ordinance ceased to be a part of the law of the country on the 21st April 1972. Of course, in this context I do not mean that he argued that the entire Ordinance became a nullity but only so much of it as related to preventive detention; any reference that I may make hereafter to the allegedly void character of the Ordinance is, therefore, to be understood to mean only voidness to this limited extent. Mr. Yahya Bakhtiar on the other hand claimed that, by reason of Article 294 of the Constitution, the President bad the power to pass such an order even before the enforcement of the Constitution; if he were right there then, of course, there can be no question of the first order being a nullity even though the second order may, to the extent that it specifies Article 9, be a superfluity. Articles 139 and 294 are in the following terms :

"139.-(1) Notwithstanding anything in the last two preceding Articles, the Federal Legislature shall,-if the President has declared by Proclama tion (in this Constitution referred to as a "Proclamations of Emergency") that a grave emergency exists whereby the security or economic life of Pakistan or any part thereof is threatened by war or internal disturbance or circumstances arising out of any mass movement of population from or into Pakistan, have power to make laws for a province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List, or to make laws, whether or not for a Province or any part thereof, with respect to any matter not enumerated in any of the Lists in the Fourth Schedule or to make laws, notwithstanding anything in any other provision of this Constitution, relating to the custody, management and disposal of the property of any person concerned in any mass movement as aforesaid: _

Provided that no Bill or amendment for the purposes aforesaid shall be introduced or moved without the previous sanction of the President, and the President shall not give his sanction unless it appears to him that the provision proposed to be made is a proper provision in view of the nature of the emergency.

(2) Nothing contained in Articles 12, 13, 14, 15, 16 and 20 shall, while a Proclamation of Emergency is in force, restrict the power of the State as defined in Article 6 to make any law or to take any executive action which it would, but for the provisions contained in the said Articles, be competent to make or to tare, but any law so made shall, to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked. .

(3) While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to mare any Court for the enforcement of such of the Fundamental Rights conferred by Chapter 1 of Part 11 as may be specified in the order, and any proceeding in any Cohort which is for the enforcement, or involves the determination of any question as to the infringement, of any of the rights so specified, shall remain suspended for the period during which the Proclamation is force, and any such Order may be made in respect of the whole or say part of Pakistan.

(4) Nothing in this Article shall restrict the power of a Provincial Legislature to make any law which under this Constitution it hag power to make, but if any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature has under this Article power to make, the Federal law, whether passed before or after the Provincial law, shall prevail, and the Provincial law shall, to the extent of the repugnancy, but so long as the Federal law continues to have effect, be void.

(5) A Proclamation of Emergency may be revoked by a subsequent Proclamation by the President.

(6) A law made by the Federal Legislature which that Legislature would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.

(7) A Proclamation of Emergency declaring that the security or economic life of Pakistan or any part thereof is threatened by war or internal disturbance or circumstances arising out of any mass movement of population from or into Pakistan may be made before the actual occurrence of war or disturbance or circumstances if the President is satisfied that there is imminent danger thereof.

(8) The Proclamation of Emergency issued on the twenty-third day of November 1971, shall be deemed to be a Proclamation of Emergency issued under this Article, any law, rule or order made or purported to have been made in pursuance of that Proclamation shall be deemed to have been validly made,

294. Where by this Constitution a power is conferred to maize rules or to issue orders with respect to the enforcement of any provision thereof, or with respect to the establishment of any Court or office, or the appointment of any Judge or officer thereunder or with respect to the person by whom, or the time when, or the place where, or the manner in which, anything is to be done under any such provision, then that power may be exercised at any time between the enactment of this Constitution and its commencement."

25. It is obvious that the learned Attorney-General can place reliance on that part of Article 294, if at all, which refers to "a power conferred to make rules or to issue orders with respect to the enforcement of any provision thereof." Now Mr. Brohi raised several objections to invoking Article 294 for the purpose of giving validity to the order of the President dated the 20th. He argued first that the power conferred by Article 139(3) was not one to issue orders with respect to the enforcement of any provision ; the provision in question, namely, Article 139 would come in force with the Constitution any how and nothing that the order could provide would make it come in force any earlier. I do not fee! inclined to agree with Mr. Brohi on this contention. Article 139 gives power to the President to declare by Proclamation that a grave emergency exists. Upon such Proclamation certain consequences follow without any further order of the President, as for example the Federal Legislature becomes empowered to legislate even with regard to the matter enumerated in the Provincial Legislative List. As against this sub-Article (3 whereby certain rights become suspended does not come into force automatically upon the Proclamation of Emergency, but has effect only when the President, by order, so declares. It is to be noticed that the President is not required under sub-Article (3) to make an order in respect of all the Funda mental Rights which are to be affected. It seems to me prima facie, therefore, that a power under Article 139(3) is one of the powers which is contemplated by Article 294 and that consequently the President would have the right even before the commencing day to pass an order thereunder. As will be seen hereinafter, however, I think I can found the conclusion which I have reached in the present case without attempting to decide this question finally and, I, therefore, refrain from discussing it further.

26. The other argument of Mr. Brohi upon this question has impressed me even less. According to learned counsel the word "enactment" has not been defined in the Constitution and is vague and, therefore, one does not really know what is the period of time which is referred to in Article 294 by the use of the words "between the enactment of this Constitution and its commencement." Now of course the mere fact that a particular word is not defined in a statute cannot mean that it has to have no meaning. Its ordinary grammatical meaning or, if it be a term of art, then such technical meaning would have to be given full effect. The word "enacted" is used in the certificate appended "by the member presiding at the meeting of the National Assembly of Pakistan" which is stated to have been held on the 17th April 1972. Clearly, therefore, the period which is spoken of in Article 294 is the period between the 17th and the 21st April 1972. If, therefore, the order was, passed upon the 20th, which it purports to be, I think it was, so far as time goes at any rate, perfectly within the power contemplated by Article 294.

27. Assuming, however, without deciding that there was, in the eye of the law, no order existing before the 30th of April 1972 under Article 139(3) Mr. Brohi's argument then is that the Defence of Pakistan Ordinance ceased to be law as from the 21st April 1972 and that, therefore, any question of considering the effect of Article 139 as negativing the right to approach a Court for the enforcement of the Fundamental Right guaranteed by Article 9 does not arise at all. It is then argued that the only Fundamental Right which the petitioner is seeking to enforce is that conferred by Article 8 which provides that "no person shall be deprived of life or liberty save in accordance with law." Admittedly Article 8 is not one of the Articles specified in the orders of the President and, therefore, is in full force. Mr. Brohi says, quite rightly, that on this view of the matter he need not even go so far as to claim the protection of Article 8 and can quite adequately rest his case upon Article 3 which is not a part of the Fundamental Rights and which is neither sought to be nor can be suspended by an order of the President. Article 3 reads as follows :

"3.-(l) To enjoy the protection of law, and to be treated in accordance with law and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular-

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law ;

(b) no person shall be prevented from, or be hindered in doing anything not prohibited by law ; and

(c) no person shall be compelled to do anything the law does not require him to do."

28. It is plain, therefore, that if the Defence of Pakistan Ordinance is not a valid law or at least ceased to be such upon the enforcement of the Constitution, it is quite unnecessary to examine Article 139 and its effect upon a petition of the kind with which we are dealing. The determination of this question really involves a consideration of two matters, namely, first, what is the effect of Article 7 upon existing laws and secondly, whether the Defence of Pakistan Ordinance is ultra vires on account of being inconsistent with Article 9.

29. It will be easier to examine the first question if we suppose for the time being, contrary to the fact, that there was no Proclamation of Emergency in force when the Constitution came into being. I do this because it is only on that footing that one is enabled to understand the pronouncements of the Supreme Court in earlier cases where the question was canvassed and because the present Proclamation of Emergency of the relevant part of Article 139 has a feature which is, of necessity, different from those of its constitutional predecessors. The insertion of a provision like Article 139 which provides for a Proclamation of Emergency and the consequences that flow from such a proclamation, which broadly are the lifting of an embargo upon the legislative power particularly that of the Central Legislature, is not an uncommon feature of written constitutions, particularly when they make provision for Funda mental Rights. The Constitution of 1956 made provision for such an emergency in Articles 191 to 196 but it suffices for our present purpose to reproduce Article 191(1) and (2)(a) and Article 1920)

"191.-(1) If the President is satisfied that a grave emergency exists in which the security or economic life of Pakistan, or any part thereof, is threatened by war or external aggression, or by internal disturbance beyond the power of a Provincial Government to control, he may issue a Proclamation of Emergency, in this Article referred to as a Proclamation.

(2) While a Proclamation is in operation, notwithstanding anything in the Constitution-

(a) Parliament shall have power to make laws for a Province, or any part thereof, with respect to any matter not enumerated in the Federal or the Concurrent List . . . . .

192. (1) While a Proclamation issued under Article 191 is in operation, the President may, by Order, declare that the right to move any Court for the enforcement of such of the rights conferred by Part II as may be specified in the Order, and all proceedings pending in any Court for the enforcement of the rights so specified, shall remain suspended for the period during which the Proclamation it; in force."

Article 30 of the 1962 Constitution also provided for a Proclamation of Emergency. Inasmuch, however, as that Constitution, when first promulgated, did not provide for Fundamental Rights it was unnecessary for it to make provision for lifting any restraint over the Legislature or even the executive which would have been the effect of Fundamental Rights. However, when that Constitution was amended so as to provide for Funda mental Rights sub-Article (9) had to be added to Article 30 of the Constitution and it reads as follows

"30.-(9) While a Proclamation of Emergency is in force, the President may, by order, declare that the right to move a High Court for the enforcement of such of the Fundamental Rights conferred by Chapter I of Part II of this Constitution as may be specified in the Order, and all proceedings pending in Courts for the enforcement of the rights so specified, shall remain suspended for the period during which the Proclamation is in force."

(That sub-Article (9) had to be amended further is a matter to which I shall come at a more convenient stage in this judgment). Nor was it necessary in Article 30 to provide that the Central Legislature should have the power to legislate in the provincial field, inasmuch as, although, there was a division of power between the Centre and the Province in matters of legislation the Courts were not empowered by the Constitution to decide whether either Legislature bad trespassed upon the field of the other. So far it will be seen, therefore, that the provisions in the three Constitutions, namely, of 1956, 1962 and 1972 are much the same and provide for the effect of a Proclamation of Emergency which might be declared by the President after the Constitution comes into force. The peculiar feature of the Constitution of 1972, however lies in the fact that it was enacted at a time when there already was a Proclamation of Emergency in force. It is true that that Proclamation was made by a person who, the Supreme Court has held, was a usurper who had no right whatever to exercise that authority. The fact remains however, that he did in fact exercise the powers conferred upon the President by the 1962 Constitution and, in purported exercise of that power, there was a Proclama tion of Emergency issued. The 1972 Constitution coming at such a juncture in national affairs had, therefore, to make some provision as to the legality or otherwise of the acts of that person. Of several courses that might be thought to be open to the National Assembly they chose-and it is not for me to attempt to judge of the wisdom of that choice-to validate the acts of the former de facto president. It, accordingly, provided in Article 139 that the Proclamation of Emergency issued on the 23rd November 1971, should be deemed to be a Proclamation of Emergency issued under the Article itself (sub-Article (8)). The emergency provisions of the Constitution of 1972 are, therefore, unique in this that they do not merely, as in the former Constitutions, provide for an emergency and its consequences, but also provide that even as the Constitution comes into force a Proclamation of Emergency pre-exists. It would, therefore, be complicating the issue to attempt to consider the meaning of Article 7 with a pre-existing emergency and instead it would be easier to consider its effect, as if Article 139 had been enacted in what might be called the normal way of dealing abnormal situations without the insertion of sub-Article (8). One would then have the advantage that the reasoning in previous decisions would be available for guidance in reaching present conclusions. Indeed, on any other approach. there would the danger of ignoring what might be binding authority, at least unconsciously run counter to a decision already rendered by the Supreme Court of Pakistan.

30. The question that needs examination first is whether in truth the Defence of Pakistan Ordinance is inconsistent with Article 9 in that it does not make any provision for an Advisory Board. Mr. Brohi argued that the expression "no such law shall authorise" was intended to mean that a restric tion was being placed upon the law-making power inasmuch as a Legislature was being forbidden from making a law which would purport to authorise the detention in any other fashion. I must confess that 1 myself was attracted by this argument and, uninfluenced by the weight of previous judicial authority, particularly binding authority, should have been inclined to accept Mr. Brohi's contention on this point. After all the provision is part of an Article which is to be found in the chapter relating to Fundamental Rights and the opening Article of that Chapter namely Article 7 talks of "the right conferred by this chapter". It is to be presumed, therefore, that the succeeding Articles are conferring Fundamental Rights. It is to be noticed again that in so many words nowhere does the Chapter make the Fundamental Rights a restriction on executive power. I am not to be understood to mean that I think that the executive is free to take action in contravention of a Fundamental Right. I would even agree with Mr. Brohi when he later argued that, since the rights vest in persons they must find their corresponding duty in the State and the executive, as indeed the judiciary also, are as much a part of the State and one of its organs as the Legislature itself is and that therefore the Fundamental Rights are really an abridgement of power in each of these three organs. What I am emphasising, however, at the moment is that in express language it is the validity of a law which is negatived by Article 7 if it contravenes one of the Fundamental Rights and neither Article 7 nor any other Article talks of executive or judicial acts. However, it would not be necessary for any Article in this chapter so to state inasmuch as Article 3, which in a sense is more firmly embedded than the fundamental Rights themselves, in that it cannot even be suspended, declares it to be "the inalienable right of overy citizen wherever he. may be and of every other person for the time being within Pakistan to enjoy the protection of the law and to be treated in accordance with law and only in accordance with law" It would follow that executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other person in Pakistan in contravention of a Fundamental Right. I say nothing of the judiciary; obviously it is the duty of the Judiciary even more than any other person or authority to act in accordance with law and only in accordance with law.

31. The words which I have quoted from Article 9(4) however, are capable of meaning that no law shall be sufficient authority for the detention of a person for a period longer than that specified unless there has been a review by the Advisory Board and a report by that Board that there is in its opinion sufficient cause for such detention. Upon the basis of that p meaning the law itself would be perfectly valid but any action taken by the executive in pursuance of that law would be invalid after the expiry of the said period unless the case has been reviewed and reported upon by the Advisory Board. Unfortunately for the argument of learned counsel that is the meaning which has appealed to the Supreme Court in the case reported as Abdul Aziz v. Province of West Pakistan (P L D 1958 S C (Pak.) 499) and, of course, the learned Attorney-General has placed reliance upon this case. In fairness to Mr. Brohi, however, I think it right to say that the case was first brought to our notice by Mr. Brohi himself, while dealing with this point and we studied this case carefully at that time. Action had been taken against the detenu in this case under the Punjab Public Safety Act, 1949 which was of course, an Act passed before the enactment of the 1956 Constitution. Whatever be the correct interpretation, therefore, of Article 9 of the present Constitution or the corresponding Article 7 of the 1956 Constitution, the Act could not be said to be required, when it was first enacted, to include in its own self any provision relating to an Advisory Board. In point of fact it did not. Immediately, however, after the coming into force of that Constitution the Governor of West Pakistan passed an Ordinance called the West Pakistan Preventive Detention Laws (Amendment) Ordinance, 1956 which so amended that Act as to include provisions for the supply of grounds to the detenu, the right of making a representation against the order and the review of his case before the Advisory Board. Provision was made in the Act itself by means of this amendment for the appointment of an Advisory Board precisely in the same terms as Article 7 of the Constitution. It is of interest to note that, although the Act as amended provided for the appointment of an Advisory Board, the actual notification issued constituting the Board was stated to be in exercise of the power conferred by the relevant Article of the Constitution read with the relevant section of the Act as amended. The amendment, however, being by an Ordinance, ceased to have operation six weeks after the commencement of the sitting of the Provincial Assembly next following its promulgation. It seems that during that sitting the Assembly did not pass an Act in the same terms as the Ordinance. The result was that after the relevant date the Act stood as unamended. The Advisory Board, if it had been constituted under the Act as amended, should have ceased to exist but in fact continued to function. Admittedly the cases of the detenus were placed before the Board and were duly reviewed and reported upon. The Government apparently proceeded on the basis that the constitution of the Advisory Board with of a course the necessary supply of grounds to the detenu was a sufficient compliance with the requirements of the Constitution. The detention was then challenged in the High Court but unsuccessfully; this gave rise to the appeal before the Supreme Court to whose judgment I am now referring. The contention of learned counsel for the appellant in that case was precisely the same as I have stated as the argument put before us on behalf of the petitioner; perhaps this is not surprising since learned counsel was also the same. It was, in addition, argued that, even if the law could be regarded as valid and all that the Constitution required was a consultation with an Advisory Board constituted under the relevant Article of the Constitution, then consultation with the Board which had in fact been constituted could not be regarded as such consultation inasmuch as the Board was constituted under the Ordinance and, therefore, perished with the Ordinance. With this second part of the argument we are not concerned in the instant case because it is an admitted part of the case that although an Advisory Board was constituted under the 1972 Constitution as well, it has not reviewed the case of the detenu before us nor has it reported upon same. It is, therefore, no more than as a matter of passing interest that I mention that the Supreme Court held that the Board was constituted not under the Ordinance but under the Constitution itself and, therefore, did not cease to function upon the expiration of the Ordinance.

32. Delivering the judgment of the Supreme Court Cornelius, J., as he then was, after dealing with the question whether the relevant clause of the Article in the 1956 Constitution constituted, a law of an organic character (a matter to which I will return) observed: "an adequate mode of examination might be to consider whether this clause goes to the competence of any laws relating to preventive detention or to the contents of these laws or merely to the operation of these laws" (,page 510). His Lordship then went on to answer the first of these questions in the passage immediately following:

"It seems clear enough that the attack is not on the point of competence of any law for in that case, it must be assumed that by saying 'no law shall authorise', the clause really means that 'no Provincial Legislature shall authorize' and then the absurdity of the matter would stand revealed by the clear requirement of the latter part of the clause. It is inconceivable that a Constitution which creates Provincial Legislatures which are to be completely autonomous within their spheres, should at the same time place upon the power of such a Legislature to make a law of the relevant kind, the condition that the power shall itself be dependent upon a report of a specified body regarding the detention of a particular person, which report is by expression, to be submitted after that law has been put into operation by the commencement of the detention, and may be submitted as long as three months after such commencement. Clearly, if the clause be read as a whole, it cannot be contended for a moment that it does to the competence of laws coming within its mischief."

In the passage immediately following this part of the judgment, the second of the questions was also answered negatively, it being held that the provisions of Article 7 (4) of the Constitution did not oblige the inclusion in every statute of the relevant kind of similar provisions. It would be convenient to note here that when Mr. Manzoor Qadir appeared for the petitioner in the final stage of hearing before us the one question of law turning upon an interpretation of the Constitution upon which he addressed us was the contention that the relevant part of Article 9(4) should be read as being in the nature of a General Clauses Act. He argued that what the provision really enjoined was that each law relating to preventive detention should be read as if the appropriate words were enacted in itself. This contention, he however, agreed could not be appropriately raised before us by reason of the view adopted in the Supreme Court Judgment in this passage which reads :-

"Does the clause then go to the content of any law of the relevant kind? Here, we are in agreement with the view of the learned Judges of the High Court that where the Constitution requires that a particular provision should be included in a statute, it says so expressly, and the provisions of Article 15 are directly in point. As is the case with every other clause in Article 7, clause (4) does not contain any words from which the inference might be drawn that it obliges the inclusion in every statute of the relevant kind, of provisions for the appointment and functioning of an appropriate Advisory Board."

33. In that view of the matter the final conclusion of the Supreme Court is clearly stated in the next two paragraphs starting on page 511:

"If then, clause (4) does not hit a statute of the relevant kind either on the point of its competence or its content, does it apply in respect of the operation of such a law? Now, a statute providing for preventive detention may conceivably be enacted for the detention of a particular person, and in that case, the statute would operate of its own force. The familiar statutes on the subject are however general in their expression and in respect of individual persons, they operate by virtue of an order specifying such person. In that aspect, it is important to note the words in clause (4) which describe the subject-matter to which the clause is intended to apply. These words are 'the detention of a person for a period exceeding three months'. If the intention had been that these words should be of general intent, that intention would have been better conveyed by the use of the expression 'any person'. On the other hand, the use of the words 'a person' clearly denotes a particular person, namely, the person subject to the order of detention for a period exceeding three months and in regard to whose detention the requisite of a favourable report by the Advisory Board has been made sine qua non. Further, as has been observed already, the words 'unless the Advisory Board has reported before the expiration of the said period of three months', clearly convey the expression that the detention has com menced and with it the time limited within which the report of the Advisory Board must be received, if the detention is validly to continue after the initial three months' period has expired. It is extremely difficult to conceive of a law losing its authority, after action has been taken under it, for failure of a condition applicable to such action. On the other hand, the action itself may be invalidated either wholly or, it may be, after a certain point of time, by reason of the failure of a specified conditions. In this sense. clause (4) would be understood as being aimed at detentions under law and not at the law under which the detentions have been ordered,

A little consideration will show that the clause cannot effectively operate, and therefore must be believed not to have been intended to operate, in respect of detentions which commenced more than three months prior to the Constitution Day. In the case of such detentions, the condition would be one impossible of performance, and it could not be assumed that the Constitution intended to legislate for such detentions as well by means of clause (4). This supports further, if indeed support be necessary, that the plaint intent of the clause is to hit not the law itself, but the operation of the law in respect of individuals, and then not all individuals, but only those who are undergoing detention whose duration is in excess of three months, provided that the detention did not commence three months or more before the Constitution Day. On this view it becomes plain that the words `shall authorize, are to be understood in a single sense and are not susceptible of being understood in more than one senses. They are to be understood to mean that the law under which a detention has been ordered which is hit by the clause shall not be valid authority for the continuation of the detention beyond three months, unless, the condition specified in the clause has been satisfied in respect of such detention. The Constitution having laid down a specific requirement for the continuation of a detention beyond the necessary period of three months, the authority of the law under which the detention is ordered will be insufficient for carrying a detention beyond three months, unless the deficiency is made good by obtaining the concurrent opinion of the Advisory Board to support that of the detaining authority, on the point of sufficient cause. The statute in question is one of a statute directing detention of a particular person the effect upon it of clause (4) would be that in the absence of the condition being satisfied, the authority of the statute itself would fail, for the purpose of continuing the detention beyond the initial period of three months, and thus by the failure of the condition, the statute would be deprived of all force. But in the case of a statute of general application, whose operation in relation to individuals would be by means of orders made thereunder, it is the validity of the orders which would be hit by the non-observance of the condition prescribed by clause (4), and not the validity of the statute itself."

I think it undeniable in the circumstances, therefore, that on this view of the Supreme Court Article 9 (4) does not affect the validity of the Ordinance. I have already quoted from the 1956 Constitution with a view to showing that the words which are material in Article 7 (4) of that Constitution and those in Article 9 (4) of the present Constitution are identical. There are of course, differences in such matters as the duration of the period specified for the Constitution of Advisory Board and authorities who are to appoint the Advisory Board but the language on which alone the validity of the law could be challenged are, as I have shown, identical. Clearly, therefore, the Supreme Court case is relevant.

34. Faced with this situation, therefore, Mr. Brohi with characteristic pursuasiveness advanced a skilfully ingenious argument in an attempt to pursuade us that a decision of the Supreme Court, however, highly to be respected, was not binding if pronounced before the enforcement of the present Constitution. He argued that the Supreme Court referred in Article 191 of the Interim Constitution which provides that "any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, shall be binding on all other courts in Pakistan" referred to the Supreme Court constituted under the present Constitution and not any of its predecessors. He argued that the Supreme Court is not a body corporate with perpetual succession. The Supreme Court as at present constituted is a creature of the Constitution itself and indeed it is clear that, were it not for the relevant provisions of the Constitution the Supreme Court would have no power. From this learned counsel argued that a decision of the Supreme Court under Article 191 means the decision of the Court which derives its authority from the present Constitution and clearly the Supreme Court as constituted before the 21st of April 1972, was not such a Court. If for no other reason, our natural respect for the Supreme Court would have inhibited us from accepting this contention but I think the argument is plainly wrong. On the technical plane on which it is put it can be answered by reference to Article 285 (1) of the Constitution which reads as follows:

"285.-(1) Subject to this Constitution and the law, any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in service of Pakistan on the same terms and conditions as were applicable to him immediately before that day."

Sub-Article (2) then provides that Sub-.Article (1) shall apply in relation to a person holding office immediately before the commencing day as one of the several functionaries therein mentioned and the Chief Justice of the Supreme Court of Pakistan and the other Judges of the Supreme Court of Pakistan are expressly mentioned in clause (a). It might be thought that this merely means that such person continue in the service of Pakistan on the same terms and conditions as were applicable to them immediately before that day but do not on that account necessarily have the same power. Sub-Article (4) of the same Article, however, reads thus :

"285.-(4) Any person who, under this Article, is continued in an office in respect of which a form of oath is set out in the Second Schedule shall, as soon as is practicable after the commencing day, make before the appropriate person an oath in the form."

Clearly, therefore, the persons designated in Sub-Article (2) are not only to continue to enjoy the same terms and conditions but are to continue in the same office even though they have not yet taken an oath in the form set out in the Schedule. In the circumstances I cannot understand how the Chief Justice or a Judge of the Supreme Court of Pakistan continues to be in office unless the Supreme Court of Pakistan also continues to be in being. 1 am, therefore, clearly of the opinion that the Supreme Court of Pakistan referred to in Article 191 does not mean merely the Supreme Court as constituted on and after the 21st day of April, 1972, but includes that court as it has stood throughout from the commencement of the 1956 Constitution.

25. But even if Mr. Brohi was technically right in his contention that pre-Interim Constitution decisions of the Supreme Court of Pakistan would not be binding on us under Article 191 of the Constitution I think that would make little difference to the binding nature of the decisions and, in any case, to the decision of the question at present before use; namely, whether the Ordinance is invalid as being in contravention of Article 9 (4). The principle that the decision of the Supreme Court is binding on us does not rest upon the constitutional requirement under Article 191 only. That a Court is bound on a question of law by the decision of a Court to which an appeal lies from itself is part of the principle upon which the heirarchy of Courts is established and, even if the constitution did not expressly give this binding effect to the decisions of the Supreme Court, I think we would still be bound to follow the Supreme Court. Even before the 1956 Constitution the decisions of the Federal Court of Pakistan were regarded as binding and if I may say so with great respect, quite rightly. Even now a decision of the Privy Council given in the time during which appeals lay to that body from the High Courts In India is binding on us though not upon the Supreme Court and we would continue to follow the Privy Council decisions unless they have been dissented from by the Supreme Court. I cannot, therefore, really see how it can properly be argued that we are not bound by the decisions of the Supreme Court whenever rendered. Mr. Brohi, however, conceded at least that, even if not binding, the decisions of so august a body as the Supreme Court would not normally be departed from by the High Court except for compelling reasons. 1 think it right for me to add, with respect, that the decision in question was rendered by such eminent Judges, all being in turn Chief Justices of Pakistan, that had they delivered this Judgment while they were Judges of some other Court I should still have found it difficult to dissent from then except on very compelling grounds indeed. As I have already stated I did feel inclined to take a contrary view upon a plaint reading of the Article in question, but I feel bound to say that the language is clearly capable of meaning what the Supreme Court has found it to mean. In line with that thinking there is no question of any compelling reasons.

36. An attack made by Mr. Manzoor Qadir later based on Article 9 may be noticed at this stage. He argued that the fundamental right itself is not suspended by a Proclamation of Emergency or a Presidential Order under Article 139(3), as indeed is conceded; he desired us to construe the expression "right to move any Court" as meaning a right conferred by the Constitution itself. Although ordinarily the right to move a Court, of course by appropriate proceedings need not be conferred. Article 7(4) of the Interim Constitution does confer the right, as a fundamental right, to move the Supreme Court for the enforcement of a fundamental right. Perhaps even the right to move the High Court under Article 201 could be regarded as such a right; while these two therefore might be suspended a High Court could still be moved under section 491 of the Criminal Procedure Code. But this ingenious argument was also available under the 1956 Constitution which contained provisions corresponding to Articles 7(4) and 20.1 though the 1962 Constitution contained none corresponding to the former. Abdul Aziz's case, it will be remembered, is a decision on the 1956 Constitution and not the 1962 Constitution.

37. Mr. Brohi, however, had another attack to make upon the vires of rule 32 of the Defence of Pakistan Ordinance based on Article 9 of the Interim Constitution though this would not be an attack upon the validity of the Ordinance itself. This is the rule which purports to confer the power of preventive detention upon the Central Government and so far as is material reads thus :

"32. Restriction of movements of suspected persons, restriction orders and detention orders.-Where with respect to any person the Central Government is of opinion that, for the purpose of preventing him from acting in a manner prejudicial to Pakistan's relations with foreign powers, or to the security, the public safety or interest, the defence of Pakistan or of any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful conditions in any part of Pakistan, or the efficient conduct of military operations or prosecution of war, it is necessary to do so, it may make an order--

(a)

(b) directing that he be detained ;".

In order to appreciate Mr. Brohi's argument it is necessary to contrast the language used in this rule with that in the earlier part of Article 9(4), that is, the words "no law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or the external affairs of Pakistan, or public order, or the maintenance of supplies or services." It will be noticed that here at least it is clearly provided that no law shall be made which provides for preventive detention except to deal with persons acting in a specified manner. If, therefore, the law does purport to provide for preventive detention for any other purpose then clearly such a law would be in contravention of Article 9(4). Quite apart from the fact that Article 7 renders such law void the language used in Article 9(4) also is clearly prohibitory of the making of such a law. It cannot in this case be argued that the law itself would be valid but that no action could be taken thereunder. The language on account of which it was so held in regard to the second part of sub-Article (4) in the case of the Supreme Court to which I have just referred is clearly very different and the plain meaning of the earlier part gets added emphasis by contrast to that used in the second part. If, therefore, Mr. Brohi were right in thinking that the rule goes beyond the purpose mentioned by Article 9 then the rule would in terms of Article 7 be void. (I am of course still speaking on the assumption that a Proclamation of Emergency is not in force). Mr. Brohi's objection is to the use of the words 'public safety or interest'; he concedes that the other purposes mentioned in rule 32 namely the prevention of action prejudicial to Pakistan's relation with foreign powers or to the security, the defence of Pakistan or any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful conditions in any part of Pakistan or the efficient conduct of the military operation of prosecution of war are covered by the words in sub-Article (4) of Article 9. Now it is true of course that the words 'public safety and interest' in rule 32 do not find place in sub-Article (4). But although, these and other expressions have long been used in statutes of this kind they have not been defined nor do I think it can be said that they have acquired an technical meaning by now. They must, therefore, be understood in the' ordinary sense. In that sense I do not see how they would not be covered by the expression 'integrity, security or defence' and of the expression public order' admittedly used in sub-Article (4). 1 am, therefore, not greatly impressed by this attack on the validity of the rule and frankly Mr. Brohi did not press this contention very seriously.

38. Having thus come to the conclusion that neither the Defence of Pakistan Ordinance itself nor the relevant rule made thereunder are in consistent with any part of Article 9, the question of the effect that Article 7 has upon an existing law, if it is inconsistent therewith, does not really arise in this case. The question has been ably debated before us by both sides and two opposite views have been propounded, the first being that a law inconsistent with the Constitution on the commencing day becomes void and, having become void, no Proclamation of Emergency, no lifting of embargo upon the legislative power and indeed nothing snort of re-enactment by a Legislature competent to re-enact it, by reason of being freed from the restriction of the fundamental right, could have possibly restored it. The contrary view is that its validity has to be judged in a case which calls for its operation and, if in such a case the law is in conflict with the fundamental right then it must yield to the fundamental right but only so long as the fundamental right is itself in existence. The consequence would be that, if for any reason the fundamental right itself ceases to exist as a part of the constitutional law of the country, there would be no conflict and the law would operate in full force. It is the second view which was upheld by the Supreme Court in the case of the Province of East Pakistan v. Muhammad Mehdi Ali Khan (P L D 1959 S C (Pak.) 387). In relation to this case, as in relation to the case of Abdul Aziz, Mr. Brohi invited us to take a view contrary to that of the Supreme Court. It is unnecessary for me to repeat the reasons which t have already stated for refusing to do so.

39. If then the question does not really arise in this case I do not see any real necessity for our examining it. It has often been held that courts do not decide questions for mere academic purposes. I think the Courts ought particularly to refrain from examining questions relating to the validity of a statute unless the circumstances of a case really call for such a g decision. There is an initial presumption in favour of the validity of a statute and I am not eager to embark upon an examination of its constitu tionality if a case can be properly decided without such examination.

40. As an alternative to his contention that the Defence of Pakistan Ordinance is ultra vires by reason of Article 9, Mr. Brohi proceeded to argue that the requirement of Article 9(4) (except in so far as it prohibits the enactment of a law authorising preventive detention save for the purposes specified) are a part of the ordinary law as distinguished from constitutional I aw. Curiously enough for this purpose he relied upon the Supreme Court case to which I have earlier referred, namely, that of Abdul Aziz. For this purpose reference was made to a passage in the judgment immediately preceding the passages which I have already quoted and is in the following words :

"In order to reach a proper understanding of this clause, it is necessary that close attention should be paid to the question; what is the pith and substance of this particular provision of the Constitution? The expression 'pith and substance' is familiarly applied to the examination of statutes in point of their competency i.e. in a Federal Constitu tion, for the purpose of determining whether a statute relates to one subject or to another subject. It is unusual to employ this expression when construing the scope and content of a constitutional provision, but as will presently be seen, the clause here under examination possesses such a character as makes the application of this expression to it both possible as well as apt. The whole of Article 7 is addressed to the making of provision for 'safeguards as to arrest and detention. This is clear from the marginal description given to the Article. Arrest and detention, however, are clearly matters relating to the liberty of the subject and as to that, the general provision is contained in clause (2) of Article 5 in the following words :-

'No person shall be deprived of life or liberty save in accordance with law'.

"The intention of the clause appears to be that law, by which should ordinarily be understood the kind of law which has previously in this judgment been distinguished by the description 'sub-constitution', shall govern every action which may have the effect of depriving a person of his liberty. When therefore, Article 7 proceeds to make detailed provisions regarding particular aspects of arrest and detention, it is clearly laying down law in a field which is included in the larger subject of the liberty of persons under the law. While constitutions are largely concerned with laying down principles which shall be followed in the making of laws, there is nothing to prevent a constitution making body from making law of a special nature dealing with a special subject in the course of making a Constitution. It seems perfectly clear that in Article 7 there are included general statements of conditions affecting the questions of arrest and detention of persons, under all sub-constitutional laws relating to that subject. In so doing, the Article makes fresh law, of a detailed character, belonging to the category of statute law, albeit enacted in the Constitution.

Thus, the first clause of the Article lays down that an arrested person shall not be detained without being informed as soon as possible of the grounds of his arrest, and shall not be denied the right to consult and be defended by his own lawyer. This is completely new law, of a detailed nature, applying to persons who have been arrested under any existing statute. The words of the clause do not convey the sense that the Constitution-makers required that it should be incorporated in every law providing for arrest of persons that the necessary informa tion and facility to consult a lawyer should be allowed to him. The Article itself makes this law.

The second clause repeats, but with higher and all-embracing authority, certain provisions contained in the Criminal Procedure Code regarding production of an arrested person before a Magistrate within a precisely specified period of very short duration and that further detention must be under the orders of a Magistrate. The third clause merely saves from the operation of the first two clauses, persons who are enemy aliens and persons who are under preventive detention. The second clause clearly does not fall in the category of 'organic law', it contains provisions which are already included in a statute, namely, the Code of Criminal Procedure. It does not contain any words conveying the impression that its provisions are to be expressly incorporated in every law which provides for the arrest of persons. Passing over "the fourth clause, which is under detailed examination in this judgment, we may next refer to the fifth clause, which requires that a detenu shall be provided as soon as possible, firstly, with a statement of the grounds upon which he has been detained, and secondly with an opportunity of making a representation against the order of detention, and by a proviso the authority ordering the detention, is invested with discretion to disclose to the detenus only so much as may be safely stated without prejudice to the public interest. No words of emphasis are needed to make it clear that this clause in all its parts makes fresh law, applicable to the field of detention without trial. The law thus made is not of an organic nature, in the sense that it does not authorise the making of laws, nor does it impose conditions upon the making of laws relating to preventive detention. The clause does not require that its provisions shall be incorporated in any law of the relevant kind. The fact that it makes fresh law, essentially of a nature belonging to the sub- constitutional field is made clear beyond doubt by the conferment of power upon detaining authorities to withhold information from the detenu which it might be prejudicial to the public interest to disclose. Provisions of a similar kind are found in the statute-book in a number of places.

It is thus clear, upon examination of the other provisions contained in Article 7, that there can be no assumption that clause (4) constitutes a law of an 'organic' nature or that it imposes any obligation or condition applicable to sub-constitutional laws of the relevant kind. The terms of the clause may therefore be examined without pre disposition in favour either of treating it as pure constitutional law or as law which ordinarily belongs to the sub-constitutional category. If the words have the effect only of making law of a sub-constitutional character, that effect must be allowed to the clause, for it may lead to fallacious interpretation to commence the examination of the clause as if, merely by virtue of being included in the Constitution, It must be designed to hit the relevant sub-Constitutional Laws, and cannot be aimed at matters which are in the nature of action under such laws."

Learned counsel argues that the Supreme Court have held that the detailed provisions regarding arrest and detention including those which require the appointment of and consultation with an Advisory Board are not of a constitutional character and are specifically described as not being laws of an organic nature. Indeed in the same paragraph it is held that the provisions constitute "fixed law essentially of a nature belonging to the sub-constitutional field" Mr. Brohi uses this argument for the purpose of inducing us to hold that these provisions being thus not of a constitutional character, are to be treated upon the same level as ordinary statute law and that, therefore, the order of the President suspending the enforcement of Fundamental Right is not attracted. All that the detenu is asking for, according to learned counsel, is the enforcement of ordinary law and if at all any appeal is made to a Fundamental Right it is that which is guaranteed by Article 8. Article 8, it has been already noted, protects a person from being deprived of life or liberty save in accordance with law. It has also been noted that the two orders of the President dated the 20th and the 29th of April 1972, do not mention Article 8. The contention, therefore, is that the bar provided in Article 139 is not attracted. Now, of course, the finding that the defence of Pakistan Ordinance is not ultra vires by reason of conflict with Article 9 of the Constitution does not at all mean that we are no longer concerned with Article 9 in the present case. The Fundamental Rights are, as I have already stated, not merely a restriction on legislative power but also on executive power. Indeed the very judgment of Supreme Court which I am at present examining held that action taken under a law of the present kind would. still have to be examined as to its legality vis-a-vis, a Fundamental Right. If, therefore, recourse is to be had to Article 9 the question whether Article 139(3) bars a proceeding of the present kind to that extent still has to be considered. This I propose to do a little later and am mentioning it now only lest, in dealing with Mr. Brohi's present argument in reference to Article 139(3) I may be understood to mean that the full content of that Article has been finally dealt with. The argument which Mr. Brohi has built up appears to me to involve, with all respect, the fallacy that the mere fact, that the statute is of an ordinary character and not of a constitutional character necessarily means that it stands upon a footing lower than that of the Constitution itself or that no question of a Fundamental Right is involved. It is true, of course, that on the view held by the Supreme Court the relevant part of Article 9 is dealing with a subject not usually dealt with in constitutional documents. It is also true that sub-constitutional legislation cannot normally confer a fundamental right, as we understand the term inasmuch as a Fundamental Right is constitutionally guaranteed and also because in most cases the vires of a law can be tested by the extent of its conflict, if any, with a fundamental right. But I look at the judgment of the Supreme Court in vain, for any expression from their Lordships which would lead to the view that Article 9. in so far as it is material, is ordinary law in the sense that it is not a part of the constitution or that it does not confer a fundamental right. All that Cornelius, J., was saying in this judgment is that the kind of subject with which the Article was dealing is one which belongs to the class which is ordinarily dealt with by sub-constitutional statute law. I refer particularly for this purpose to a sentence appearing at page 509 "in so doing the article makes specific law of a detailed character belonging the category of statute law albeit enacted in the constitution". If I have understood the judgment of the Supreme Court rightly what their Lordships are talking of is the nature of the provisions involved and not of its status. These provisions are enacted in the constitution and I can find no warrant for the assumption that, being described as belonging to the category of statute law, they are, therefore, sub constitutional in the sense that they are of lower validity than the Constitution itself. If that had been so then Article 9 would yield to any other part of the Constitution if the two were in conflict. I am not, of course, suggesting that there is any such conflict but I am pointing out that it would be at least fanciful to imagine that, although enacted in the constitution itself, Article 9 was relegated to some position of an inferior kind and to be upon the same plane, as to validity, as if it were legislation enacted in the ordinary way and not provided for in the Constitution itself.

41. It is true that the judgment itself uses the expression "sub-constitu tion" and elsewhere referring to a provision already enacted in the Code of Criminal Procedure, the case does not fall in the category of that Code or any law. But these merely are descriptive of the character of a law and not of its status. Indeed in the very paragraph in which the expression "organic law" occurs it is stated that the clause in question repeats certain provisions which are already included in a statute, namely, the Criminal Procedure Code "but with higher and all embracing authority". If it was their Lordships' intention to hold that Article 9 was ordinary law, in the sense in which the Criminal Procedure Code is ordinary law and of the same degree of validity, then obviously it would not have "higher and all embracing authority". If the Constitution chooses to provide for a matter which is normally enacted by ordinary non-constitutional statutes there is nothing that I can see which would present the framers of the constitution from doing so. This fact, however, that such provisions are of the kind which are ordinarily made by way of simple legislation or even are not of the character which it is necessary for a constitution to specify would nut lower the validity which they would have as apart of the Constitution. It would not be possible, for example, to say that if the constitution were to provide that the death penalty is abolished then such a provision occurring in the constitution could be repealed by ordinary legislation. I am, therefore, quite unable to hold that because the Supreme Court spoke of the provision in Article 9 as being of a sub-constitutional character or of a non-organic character or as statute law that makes them any the less a part of the Constitution or of the provisions which confer Fundamental Rights. A petition, therefore, which is based upon the provisions of Article 9, even though it does not challenge the validity of the law in question but merely the executive action taken under it would still be a petition for the enforcement of a Fundamental Right and the embargo in Article 139(3) would apply as much or as little as if the validity of the law was being called in question.

42. I have so far considered the effect of the fundamental rights upon the validity of such laws as are in conflict with them apart from the provisions of Article 139 relating to a Proclamation of Emergency or at least upon the assumption, unfounded in fact, that an emergency was not in force at the actual time when the Constitution came into being. I did so because the effect of a Proclamation of Emergency upon the laws in force at the time of the Proclamation would depend upon how much of the laws could be said to be in force at that time. If the correct view was that certain statutes, though appearing on the statute book, were not in the eye of the law valid statutes at all, as being in conflict with the fundamental rights then it might be possible to take the view that the removal of restriction imposed by Article'7(2) upon the power of the Legislature at least as to curtain Fundamental Rights by Article 139(2), would not have the effect of reviving the law in question at all. But since as I have shown. the law as laid by the Supreme Court in Mob& Ali's case is that a statute which pre-exists at the time of coming into force of the Constitution is not effaced therefrom by reason of a conflict with the Fundamental Right but continues with suspended, but as it were potential, animation, then, clearly, upon the imposition of a Proclamation of Emergency there can be no question but that the law, as it originally stood, operates once more with full vigour. Had this not been so a difficult question could well have arisen. Even if the order of the President dated the 20th April 1972, was valid-and I have stated my reasons for thinking that it was valid--it is related only to Article 9. Until the 29th April 1972, therefore, there was no question of any restriction upon the courts to grant a remedy dependent upon the Fundamental Right. Mr. Brohi's argument would then have been formidable that, even after the Proclamation of Emergency had come in, the remedy that was being sought was no longer based upon a fundamental right inas much as during the period 21st April to 29th April 1972, the offending laws had in fact died and were incapable of revivification. It is to be noted that, while the effect of loosening the restriction on the Legislature under Article 139(2) is automatic and not dependent upon an order made by the President, that sub-article is restricted to certain stated Fundamental Rights among which Article 9 does not find place. But holding, as I have done, in conformity with the decision of the Supreme Court in Mehdi Ali's case and in Abdul Aziz's case, that the pre-existing laws did not become "non est" if in conflict with a fundamental right and that laws authorising preventive detention are not void if they fail to provide for the requirement of the latter part of Article 9(4), the question does not really arise at all. In the first place a law which is treated to be in conflict of this kind is not on that account, void in the sense that it cannot again operate at any future date and, secondly, the law with which I now am concerned at any rate was never in conflict with the Fundamental Right since Article 9 does not prohibit the making of a law of this character but only inhibits executive action taken thereunder.

43. It remains on this part of the case to examine the feature of this Constitution which I have earlier described as unique in that it not merely contemplated the possibility of a future Proclamation of Emergency as did its constitutional predecessors but was actually passed in a time of emergency. It is true of course that the emergency which existed at the time when the Constitution was passed had, at that time, no legal validity. The Interim Constitution itself, however, the validity of which I think must be accepted as axiomatic itself provides in Article 139(8) as follows :

"139.-(8) The Proclamation of Emergency issued on the twenty-third day of November, 1971, shall be deemed to be a Proclamation of Emergency issued under this Article, and any law, rule or order made or purported to have been made in pursuance of that Proclamation shall be deemed to have been validly made."

The effect of this validation of the Proclamation of Emergency is, to my mind, two fold. In the first place it makes the pre-existing Proclamation of Emergency one which is to be deemed to have been issued under Article 139. This is obviously fictional and, therefore, the word "deemed" has been used. That Proclamation could not have been issued under Article 139 as it w u issued on the 23rd November 1971, much before the enactment of the Constitution itself. The second effect of it is that it puts the validity of the Proclamation of Emergency beyond dispute and in itself on the footing of a Constitution, that is, while it may be possible in regard to some future Proclamation of Emergency to hold that it has not been validly issued under Article 139 and, therefore, is void in the eye of the law, in regard to this particular Proclamation of Emergency its validity is provided for by Constitution itself, No question, can, therefore, a rise as to whether or not it was properly issued under Article 139, the Courts must accept that as entirely beyond dispute.

44. I turn now to an examination of Mr. Yahya Bakhtiar's contention that in so far as a fundamental right is involved the present petition is no maintainable. It is necessary for that purpose to revert to a history of the constitutional provisions corresponding to Article 139 . . . . . . which have held the field in Pakistan before. The relevant provision of the 1956 Constitution, namely Article 192(1) provided for the suspension of the right to move any Court for the enforcement of the right. We have already seen why the 1962 Constitution, as originally promulgated, did not need to have any such provision, and also that, when the need arose by reason of the provision made for fundamental rights, this was done by enacting sub-Article 9 of Article 30 which followed the language of the earlier provision. On this language the question was found to arise some day whether the suspension of the remedy impliedly also suspended the right itself for, if it did not, then a petition for relief could be so framed as not directly to ask for a fundamental right being enforced but questioning the action taken by the evecutive by means of showing that there was no legal authority for the action, the law under which it purported to be taken being itself ultra vires by reason of infringement of a fundamental right. It did in fact arise in India in the cast of Makhan Singh v. State of Punjab (A I R 1954 S C 381) although, the majority of the Courts rejected. the contention of the detenu to that case and held, in substance, that if the relief claimed by the citizen was such that it would be necessary for the Court to inquire into the question whether any specified fundamental right had been contravened, then the petition would be hit by Article 359(1) of the Indian Constitution which corresponds to the provision in the 1956 Constitution and the provision in the 1962 Constitution as amended by the insertion of sub-Article (9) to Article 30. Nevertheless, a minority took an opposite point of view. Although this judgment was, of course not of any effect in Pakistan it would seem that in order to forestall any argument of this character Article 30 of the 1962 Constitution was amended again by re-casting sub-Article (9) and adding a new sub-Article (10.) These are in the foll8Wing terms :

"30.-(9) Nothing contained in paragraphs 5, 6, 7, 8, 9 and 13 of the fundamental rights conferred by Chapter 1 of Part 11 of this Constitu tion shall, while a Proclamation of Emergency is in force, restrict the power of the State as defined in Article 5 of this Constitution to make any law or to take any executive action which it would, but for the provisions contained in the said paragraphs, be competent to matter or to take, but any law so made shall, to the extent of incompe tency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked.

30.--(10) While a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter I of Part II of this Constitution as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any part of Pakistan."

The material change so far as concerns our present purposes lies in the words occurring in Sub-Article 10 "or involved the determination of any question as to the infringement of any of the rights so specified." This language it will be seen has been repeated in Article 139(3) of the present Interim Constitution.

45. The effect of the new language came up for examination in the cage of Abdul Ghani Khan v. Government of West Pakistan (P L D 1968 Lah. 1244). The petitioners in that case were mortgagees of certain lands- and the Collector had assumed jurisdiction to determine the applications of the respondents who were mortgagors for restitution of the mortgaged lands purporting to act under the West Pakistan Redemption and Restitution of Mortgaged Lands Act. This Act provided that in certain cases the Collector could pass an order that the mortgage be redeemed and that the mortgagor be put in possession. This, it was claimed on behalf of the mortgagees, was an infringement of Fundamental Right No. 14 (2) enumerated to the Constitution in that it was a law which in effect provided for the compulsory acquisition of an immovable property, namely, the right of the mortgagee, without compensation. An infringement of Fundamental Rights Nos. 13 and 15 was also claimed but it is not really necessary for the purpose of understanding that judgment in relation to the question which I am now examining to state the argument upon which these claims were made ; it suffices that the validity of these laws as being in conflict with the fundamental rights was involved in the petition. When the petition came up for-- hearing the President had already, in exercise of his power under Article 30 (1) of the Constitution, issued a Proclamation of Emergency. On the same day he had also issued the order under sub Article (9) suspending the right of a person to move the High Court for the enforcement of fundamental rights. Be it noted that when the President passed this order the sub-Article stood in the form that it was originally enacted. However, before the petition was filed, or at least before it came up for hearing the second amendment whereby sub-Article (91 and sub Article (10) added had already been enacted and the Constitution was amended accordingly. It might also be noted that after the Article was amended a second time the President did not issue a fresh order suspending any proceedings in a Court which involved the determination of any question as the infringement of any of the rights specified in the order of the President. The position was, therefore, precisely the same as in the present case for here too while the right to move a Court for the enforcement of the fundamental right conferred by Article 9 has been suspended the Orders of the President dated the 20th and 29th April, 1972 made no mention of any proceeding which "involves the determination of any question as to the infringement of any right so specified", that is, specified in the order.

46. It was, therefore, argued that, although the right to move a Court for the enforcement of a fundamental right and all proceedings pending in the Courts for the enforcement of such a right was suspended, nevertheless where the petitions were not for the enforcement of the right as such but involved the determination of the validity of a law on the ground of conflict with a fundamental right the proceedings were not suspended. It was argued that such a result might have been followed if the President had in fact passed an order suspending such proceedings also but, that not having been done, they were not barred. It was also argued that the right itself as distinguished from the remedy was not suspended. The Division Bench of the West Pakistan High Court sitting at Lahore did nor agree with this contention and held that whenever a case is required to examined from the point of view of the petitioners there was no essential difference between the suspension of a proceeding for their enforcement and the suspension of a proceeding which involves the determination of question as to the infringement. The learned Judges followed the case reported in Makhan Singh v. The State of Punjab to which I have already N referred. In essence the judgment held that to hold otherwise would be indirectly permitting what was not directly permissible. With this view of the law 1 find myself in respectful agreement, and it has, I think, the high) approval of the Supreme Court which observed in the case of Abdul Baqi Baloch v. Government of Pakistan ( P L D 1968 S C 313).

"The third and last challenge posted to the validity of the Defence of Pakistan Ordinance is on the basis of the language of clause (2) of Article 6 of the Constitution. This too is untenable, for, as long as the fundamental rights remain suspended, this question cannot be agitated in the Courts. For, to declare the Ordinance invalid would be tantamount to enforcing a Fundamental Right, which cannot be done as long as the President's Orders No. F. 24 (1)/65/Pub. dated the 6th September 1965 and the 16th September 1965, are in force. There fore, what cannot be done directly cannot be allowed to be done indirectly."

I am, of course, bound by this judgment of the Supreme Court but even otherwise I should have been reluctant to hold, unless the language of the statute was compelling, that so vital a matter as the effect of a fundamental right could depend on the form in which a petition is drafted.

47. The addition, therefore, of the words which I have quoted in the new sub-Article (10) really made no difference to the law and would seem to have been inserted by way of abundant caution. At any rate that would be the position where the question is being raised by a petitioner who is in effect asking for the enforcement of a fundamental right. The question may, however, arise in some different fashion, for instance, if a detenu were to escape from custody and be prosecuted for the offence of escaping from lawful custody, it is possible that the may raise the question that the custody itself was not lawful inasmuch as it was made in the exercise of power granted by a law which ceased to be a valid law because of conflict with the funda mental right. That would be an interesting question which does not arise here and I do not mean to pursue the point any further.

48. The present I think would be convenient time to consider two statements, one of the Law Minister and the other of the Home Minister, who bath soon after the enactment of the Constitution and, indeed, after the President's Orders under Article 139 (3), expressly stated that, despite the emergency, the provisions of Article 9 as to the Advisory Boards were alive and effective. Both Mr. Brohi and Mr. Manzoor Qadir sought to use these statements in support of their respective contentions. Mr. Brohi pressed the statement into service in order to assert mala fides (a matter with which I shall deal later) and also as same authority for the correctness of his interpretation of the meaning of Article 9. Mr. Manzoor Qadir also urged that if the Law Ministry so intimately and so recently concerned with the drafting of the .Constitution, thought that there was a provision in the Constitution which required an Advisory Board and which was not affected, by the Proclamation of Emergency, it behoved the Courts to make assiduous search for such a provision which be claimed to find in the second part of Article 9 (4), and therefore argued that it ought to be construed as a General Clauses Act governing the interpretation of alt laws relating to preventive detention. Mr. Yahya Bakhtiar, on the other hand, stated that since the Proclamation of Emergency did not and could not affect the fundamental right though the Order of the President suspended its enforcement, Govern ment was, by means of these statements giving an assurance that it would honour the right because it was its moral duty so to do. As to this I can only say that I cannot read the statements of the two Ministers as indicating any consciousness of a moral duty ; they plainly profess a legal duty. That there is a moral duty to do one's legal duty is, I think, obvious : whether it was obvious to the Ministers or not I cannot speculate. The short answer of course to learned counsel for the petitioner is that the opinion of a Minister, even a Law Minister on a question of law and even though he be an eminent lawyer, however worthy of respect. is not binding on us. In my opinion their view was plainly wrong and does not affect my conclusion.

49. I think, therefore, that, however Article 9 be looked at, that is, as invalidating a law already in existence or merely requiring the executive to conform to certain mandatory requirements of the Constitution before an order of detention can be regarded as valid, any proceeding which seeks to challenge the validity of a detention and is based upon Article 9 must fail by reason of Article 139 (3). In that view of the matter I think it quite un necessary to examine the contention that the right itself neither is nor can be suspended, which Mr. Brohi advanced, or the reply of Mr. Yahya Bakhtiar that a right may exist and yet be without remedy.

53. The learned Attorney-General's final answer upon the question of the validity of the Defence of Pakistan Ordinance or any of the Rules made thereunder is premised on Article 139 (8). Now this sub-Article is the one by reason of which I have characterised the provisions of the Interim Consti tution as to an emergency as unique and reads thus : '

"139.-(8) The Proclamation of Emergency issued on the twenty-third day of November, 1971, shall be deemed to be a Proclamation of Emergency issued under this Article, and any law, rule or order made or purported to have been made in pursuance of that Proclamation shall be deemed to have been validly made."

A plain reading of the sub-Article yields the inference, I think that the Ordinance and the Rules in question must be regarded as having been validly made. Mr. Brohi's contention in this regard was that the last five words, namely, "to have been validly made", mean to have been made by a competent authority. In other words he argued that the purpose, as the effect, of the sub-Article was merely to regard the person who declared the emergency and who made the law, rule or order in question, to be one who was authorised by law to do so. Such instruments were, according to Mr. Brohi, not to be regarded as having been made by a person incompetent to exercise the power. But the question whether, granted the validity of the source of power, the actual order was even then good or bad, he suggested, was not provided for by sub-Article (b). But if that was all the meaning intended to be given to sub-Article (8) I do see no reason why the framers of the Constitution should not have instead of the words I have quoted, used the words "to have been made by competent authority". Indeed Article 281 to which I shall again presently refer, does use precisely these words though in that Article the word 'made is modified by the adverb 'validly'. It seems to me that the language of the sub-Article is as wide as it could possibly be. Where laws have been passed validating previous incompetent laws, the expression "purported to" have often been used. Where there have not been used the Courts have often held that, notwithstanding the validity of the law or the parent instructions, as it were, the subordinate law or the order, as the case may be, would still be bad if not within the ambit of the validated law. But where the expression has been used, all that the Courts are concerned to see is whether the authority in question in making the subordinate law or order claimed that it was acting in exercise of the power granted by the parent instrument. The present instrument being validated or being otherwise not in doubt, the fact in those cases that the rule or order may be itself ultra vices of that law would not be a sufficient reason for striking it down in as much as the validating law gives effect to it as if it were within authority. The validity of the Proclamation of Emergency which existed before the Constitution and the law, rule or order made or purported to be made in pursuance of that Proclamation is now, therefore, upon the plane of the Constitution itself. This does not, of course, mean that it cannot be repealed. All that it means is that it is not open to us to hold that it is invalid as being ultra vices of the Constitution, or any other statute.

Mr. Brohi did indeed argue that the rules in question were never made or even purported to be made in pursuance of the Proclamation but only in pursuance of the Defence of Pakistan Ordinance, which of course was made or purported to be made in pursuance of the Proclamation. He therefore, contended that while the Defence of Pakistan Ordinance, whatever its effect, is validated by sub-Article (8) the Rules are not, it seems to me that the argument is fallacious. In effect the argument would have us insert the word 'immediately' after the word 'made' in sub-Article (8) where it first occurs. On that basis it would only be such laws as are' made in pursuance of that Proclamation directly that are validated and anything that is made in pursuance of the Defence of Pakistan Ordinance for example, is not to made. In that view of the matter the validity of the rule would be governed by the question whether it is intra vires the Ordinance itself. This view would, however, render utterly meaningless the words "rule or order" appearing in sub-Article (8). I cannot conceive of any order which can be directly made in pursuance of the Proclamation of Emergency except perhaps an order suspending the right to move the Courts for the enforcement of the Fundamental Rights contemplated by Article 139 (3). Even as to this, how ever, strictly, such an order would not be in pursuance of the Proclamation of Emergency but would be under powers obtained from sub-Article (3) which would apply of course only when a Proclamation of an Emergency is in force. In any case, there is no rule which has been made in pursuance of the Proclamation in the sense in which Mr. Brohi would have us interpret the word "pursuance". Quite apart from the question whether a rule could in deed be so made it must be remembered that sub-Article (8) is not dealing with any rule that might be made thereafter but is validating rules already made. Presumably the framers of the Constitution were aware what rules had been made or purported to be made and, if this was the meaning that they intended to attach to sub-Article (8), it seems to me incomprehensible why they thought it necessary to use the words "rule or orders" at all. I cannot, therefore, escape the conclusion that Rule 32, being one made or purported to be made in pursuance of the Ordinance, which itself was made or purported to be made in pursuance of the Proclamation of Emergency is now so completely validated that an attack upon its validity is an attack upon the Constitution itself, which of course I think, it is quite impossible to entertain.

51. Holding this view I should have thought it quite unnecessary to examine the learned Attorney-General's further contention that under Article 281, which validates among other things laws and orders made after the 2-5th of March 1969, on which date General Yahya assumed power, the questions raised by Mr. Brohi cannot be canvassed in Court at all. Article 281 reads as follows :

"281.-(1) All Proclamations, President's Orders, Martial Law Regu lations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March, 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question ,in any Court.

(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the twenty-fifth day of March. 1969, in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken or done.

(3) No suit or other legal proceedings shall lie in any Court again at any authority or any person for or on account of or in respect of any order made, proceedings taken or act done, whether in the exercise or purported exercise of powers referred to in clause (2), or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers."

I am, however, constrained to do because Mr. Brohi argued that his contention as to the validity of rule 32 was supported by the judgment of the Supreme Court in Asma Jilani's case. With all respect I have not been able to find any part of that judgment which supports the argument but in any event it is to be noted that Article 281 (1) declares valid all laws passed during the relevant period "notwithstanding any judgment of any Court".

52. Mr. Brohi's next attack was upon the validity of rule 213 of the Defence of Pakistan Rules. To appreciate this argument, it is necessary to refer to section 3 of the Defence of Pakistan Ordinance, which authorises the Central Government, by a notification, to make rules. The Ordinance itself, wherever it confers authority upon a Government, invariably does so upon the Central Government. The only mention of the Provincial Government that I can find is in section 3 (2) clause (iv) which provides for the conferment of power upon the Central or the Provincial Government or even upon officers and authorities of any such government. In the first place, however, it is 'to be noted that sections 3 (3) or 3 (1) to which the sub section also refers do not by themselves confer any power on the Provincial Government ; the power is being conferred upon the Central Government to make rules which would then confer power and it is such a rule which is spoken of in clause (iv) which may confer power or impose duty even upon the Provincial Government. Nevertheless rule 213 enumerates certain powers and duties of the Central Government which, according to that rule, may be exercised and discharged in the provinces also by the Provincial Government. concerned subject to certain conditions. On a variety of grounds the vires of rule 213 was challenged. The argument was exceedingly interesting but I think it would be an unnecessary exercise for me to set out the various contentions put by learned counsel on both sides because, as I have already held, Article 139 (8) of the Interim Constitution puts the validity of each of! the rules contained in the Defence of Pakistan Rules beyond dispute. I must, therefore, negative Mr. Brohi's contention and hold that Rule 213 is also valid.

53. Learned counsel then argued that the order of the Central Government dated the 7th July, 1972 (which is the order now operating against the detenu being in express language, continued by the order of 4th October, 1972) was void because the Provincial Government had acted in exercise of the power under rule 32 vested in it by rule 213 in that it had earlier ordered the detention of the detenu; the power under rule 32 was exhausted and was no longer available to the Central Government. It was said that although normally, in the case of delegation of power, the delegator is not thereby denuded of power, where the delegates has, in reference to some particular case, exercised power, the delegator cannot then act for the delegatee is in complete control of the case and the authority of the delegator stands wholly transferred to the delegatee. An analogy that was debated in Court was that of a person who gives to another a general power of attorney.

It was said that in such a case although the delegator could continue to exercise his lawful authority over all his property he could not revoke an action lawfully taken by the agents; he could not, for example, rescind an agreement made by the latter to sell a specified item of property though his power as to other properties remained unabated. For reasons which I shall presently state I do not think this is a case of delegation at all but, even on the footing of delegation. I confess that I find it difficult to accept or even wholly to comprehend this contention. In the case postulated I should have thought that the principal would continue to have the power he had before the agent acted or even before the agent was constituted but, of course the act of the agent would be deemed to be the act of the principal. The rescission would not be a void act and one could not say of it that it did not exist in the eye of the law. It could however be illegal, in that it would give rise to a liability in damages or that a suit for specific performance might nonetheless succeed. In other words the rescission may be wrongful but not void so here too I would say that the order of the Government of Pak istan would not be void, on account of the Provincial Government having already acted, in the sense that it is one by a person who has no authority under rule 32. It may, however, be unlawful for some other reason which would equate the Government of Sind's previous order with an order of the Central Government. If the earlier order, had it been passed by the Central Government, for some reason, suffices to render illegal the subsequent order, then of course the subsequent order would be illegal and, in that sense, "without lawful authority" but not because the power conferred by Rule 32 was no longer available to the Central Government.

54. But is this a case of delegation at all? Rule 213 is in the following terms:

"213. Certain powers exerciseable also by Provincial Governments. The powers and duties of the Central Government under the rules specified in column I of the Table below shall, in the circumstances and under the conditions, if any, specified in column II of that Table, be exercised and discharged in the provinces also by the Provincial Government concerned."

Then follow a series of entries each of which mentions one or more rules, and against each such entry, is a statement of the "circumstances in which and the conditions subject to which the power and duties shall be exercised and discharged." The fifth entry relates to a number of rules of which rule 32 is one and against this are the words "The same conditions as mentioned against rule 6." The corresponding conditions against rule 6 are stated to be that "the power shall not be exercised in a manner inconsistent with any orders made in this behalf by the Central Government.

55. This, I think, is not delegation at all. Delegation occurs, in my view, when authority is conferred on one entity with the added power of authorising some other entity to exercise the authority conferred upon itself. The power the Provincial Government derives by reason of rule 213 is no however the result of any such transfer or conferment of power by the Central Government upon whom the power is first bestowed by the Rules. It is the result of the rule itself and is concurrent with the power of the Central Government itself subject to its not being- exercised in a manner inconsistent with an order of the Central Government. It is true, of course, that the Rules themselves are made by the Central Government but this it does as a subordinate legislative authority being empowered in this behalf by section of the ordinance, not as an executive authority on whom power to act is conferred with the further power to pass that power on to some one else.

56. I do not therefore think any principle of the law of delegation is really attracted to this case. In any event, the Rule itself, by clear implica tion, contemplates the continuance of authority in the Provincial Government titer the Central Government has acted in a given case, for otherwise how is the limitation on the power of the Provincial Government not to act in a manner inconsistent with an order of the Central Government, to be explained? If then the Provincial Government can act after the Central Government I can see no difficulty in holding that the Central Government may, likewise, act after the Provincial Government has exercised power.

57. There were other questions also raised by Mr. Brohi as to the interpretation of the Defence of Pakistan Rules and the validity of the action taken in the present case. All these wore. however, contentions which, if accepted would affect the legality of the orders of Government of Sind, particularly that dated the 20th April. 1972 ordering the detention of the detenu. Admittedly the period envisaged by the order has expired and even before its expiry, an order was passed against the dotenu by the Government of Pakistan on the 7th October, 1972 and it is this order, as extended by another dated 4th October, 1972, which now holds the field and a determination of the legality of which will decide the present petition. An attack upon the earlier order is not, as therefore, relevant unless the later be regarded as an extension of the former or its illegality could ardor can affect the legality of the subsequent order, which it could, for example, on a case of mala fide and claim that the two Governments were acting in illegal collusion (as distinct from lawful consultation) with each other. An exten sion, the later order clearly is not, as it is passed by a different Government and operates of its own force. Indeed Mr. Brohi conceded as much while Mr. Manzoor Qadir, in his final address, although inclined to treat the detention as continuous, which of course physically it was hesitated to describe it as extended, in law, by the order of 7th July. As to the illegality in the previous order affecting the present detention I think it could be relevant on a case of ma la fides for a Court in matters of this kind is concerned, only with the legality of present detention and the fact that at some previous time the detenu was unlawfully detained would not suffice for that he is now improperly held. To be fair to Mr. Brohi he did canvass these matters not for their own sake but in relation to a case of mala fides which was, at that time, yet to be set up. An attempt has been made to do so and then, as I shall presently show, expressly given up not however, until a grout deal of time was spent on it. In these circumstances I do not consider that any, useful purpose will be served by burdening this judgment with an examination of the remaining questions on the interpretation of the Defence of Pakistan Rules.

58. As I have stated in the introductory part of this judgment, Mt. Brohi's argument on law, was followed by an examination of the material produced by the learned Attorney-General and stated to have been relied upon by the detaining authority. In opening the case Mr. Brohi had referred to an application which had been made, at the outset, on behalf of the petitioner, to summon certain witnesses and documents but Mr. Brohi asked that a consideration of this be deferred until he had argued the law, after which he said we might decide as to the most convenient mode of examining the case; the examination of the detenu orally was referred to as one of the several possible modes. Mr. Mohammad Ali Sayeed and the learned Attorney-General were then heard on the material whereafter Mr. Sayeed made the request that the detenu be examined as a witness; for reasons I have stated earlier we were reluctant to accede to this request but were pursuaded to do so out of a desire to ensure that the detenu's case was fully placed. An inordinately long examination of the detenu followed unguided, as it was, it ran into matters which we could not help feeling were of little use to the determination of this case. At the conclusion of this the application for summoning evidence was given up and thereafter Mr. Manzoor Qadir appeared for the detenu and addressed us mainly on the grounds on which the order is said to have been based and the material produced in their support. The questions of law which he raised were themselves directed to these matters and the authority and duty of the Court in such matters; besides these was a brief argument on Article 9 of the Interim Constitution which I have already noticed at the end of his address. Mr. Manzoor Qadir said quite candidly that no part of the evidence of the detenu, whether in examination in chief or cross-examination. could make the slightest contribution to the decision of this matter. I have no hesitation whatever in agreeing whole-heartedly with Mr. Manzoor Qadir on this point; indeed I cannot avoid the thought that the evidence was an appeal to a forum other than any Court. Since in any case actual mala fides in fact must actually be pleaded and established by the detenu this virtually meant that the case mala fides was being given up Mr. Manzoor Qadir did, in fact, expressly refrain from alleging any such mala fides and suggested no personal malice or vindictiveness on the part of the detaining authority though of course he did argue that the grounds were extraneous to the object of the statute and that the material did not suffice to establish even such grounds. Again later when the learned Attorney-General was attempting to reply to this case on the assumption that we had to decide it we stopped him. Since however he felt that it might still be argued that the detention was mala fide in fact, we asked Messrs Tajammul Hussain and Mumtaz Hussain, who were than appearing for the petitioner and the former of whom had appeared throughout the hearing and they expressly confirmed our under standing that such a case was no longer sought to be advanced.

59. Before I go on to discuss the grounds put forth by the Government of Pakistan and the material on which it is stated the Government was satisfied of the need to detain Mr. Altaf Gauhar I think it necessary to state the test which Courts, I consider, should adopt in such matters and also the standard which it will set up before itself as to the quality and quantity of the material which goes to the satisfaction of the detaining authority. In an earlier unreported judgment of this Court, namely, the one in Constitution Petition No. 291 of 1972, Abdul Hamid Khan v. District Magistrate, Larkana three cases of outstanding importance decided by the Supreme Court were referred to and their effect summarised. I delivered the judgment of the Court in that case and, after having quoted relevant extracts from the said judgments I stated as follows:-

"As a result of the judgments to which I have referred with which I am in respectful agreement and which I am in any case bound to follow, I think the Court is entitled to be satisfied first that the detaining authority was in fact satisfied that it was necessary to act as it did and not merely that it pretended to be so satisfied. Secondly the Court must be satisfied that the material upon which the authority was satisfied was such as could reasonably lead to such satisfaction.

If the Court is not satisfied on either of these points I consider it to be the duty of the Court to declare the detention illegal and to order the detenu to be set at liberty. Further than this, however, I do not think the Court ought to go. The Legislature in its wisdom has given the power to the executive authority and not to the Court to decide whether a person should and/or should not be detained. It has also refrained from giving to the Court any power of an appellate Court. Once, therefore, we are satisfied that the detaining authority had before it such material as could induce reasonably an inference of the kind drawn and that the authority did draw such an inference it is not, I think, for us to substitute our own judgment and say that, had we been in the place of the executive authority, we would not have ordered the detention of the detenu."

I should have been content in this case to follow the criterion which I stated there as being the result of the Supreme Court decisions and would not have embarked upon a fresh inquiry, but that reliance was placed before us upon another unreported decision of this Court given by a different Bench which. too considered the Supreme Court cases and summarised their effect. I do not myself consider that the summaries given in these two judgments are really materially different but since an argument has been based upon some difference in the language it has become necessary to examine the Supreme Court cases afresh.

6. Until 1967 the course of authority was almost unanimous that the satisfaction contemplated by laws relating to preventive detention was that of the detaining authority alone and that a Court would not enter into the sufficiency of the material upon which that satisfaction was based inas much as the satisfaction was held to be a subjective one. In other words, once satisfied as the honesty of the conduct of the detaining authority, the question whether it ought or riot to have felt satisfied as to the need of" 69 passing an order of preventive detention was held to be entirely outside the competence of the Court. From this course of authority in Ghulam Jilani's case made a radical departure ; for the first time the Supreme Court held that the Court must also be satisfied that the material upon which the order was based could lead a reasonable man to the conclusion that such an order was necessary. The necessity that the detaining authority must in fact be satisfied, of course, continued to be a requisite for the validity of such an order but to that was added the need that the Court be satisfied that such a conclusion could reasonably be drawn from the material, which the detaining authority had before it. In all other respects, however, I think the law as to these matters remained unchanged by the decision of Ghulam Jilani's case and the decisions rendered by the Supreme Court thereafter have elaborated the position. In that case the order of detentions was made under Rule 32 of the Defence of Pakistan Rules, themselves made under the Defence of Pakistan Ordinance, 1965, which is the legislative predecessor of the Defence of Pakistan Ordinance, 1971 and the Rules made thereunder, rule 32 whereof is the authority under which the challenged, order of detention has been purported to be made. Since the language of the two Rules and section 3 of each of the Ordinances is in terms identical,, for the purpose of judicial comparison Ghulam Jilani's case may be stated to be on an exact par with the present case on this question.

61. In that case the High Court had dismissed the petitions filed on behalf of the detenus substantially on the ground that the purported satisfac tion of the Government could not be challenged in Court except, of course on what would amount virtually to established dishonesty. Before the appeal was heard by the Supreme Court the detenus had in fact been released but for reasons stated in the decision of the Supreme Court the cases were nevertheless examined. The High Court decision was reversed upon the question of law but the operative judgment of the Supreme Court was nevertheless against the petitioners, it being held that the action was in fact justifiable for the purpose of preventing disturbances which were likely gravely to prejudice the maintenance of public order. In delivering the leading judgment the then Chief Justice, after having surveyed the circum stances which led upto the appeal, examined first rule 204 of the Defence of Pakistan Rules, 1965 which authorises a police officer to arrest without warrant any person "whom he reasonably suspects of having acted or acting or being about to act" in certain specified ways. His Lordship then went on to construe the effect and meaning of section 3(2) (x) of the Ordinance and rule 32 of the Rules. It is to be noted in terms rule 32 does not refer to any requirement which include reasonableness. The word, however, is used in the section itself and his Lordship proceeded to observe :

"A similar construction must be placed in my view upon the words "suspects on grounds appearing to such authority to be reasonable" that have been employed in section 3(2) (x) of the Ordinance. Even under these words, rules may therefore be made which enable action to be taken on grounds of direct knowledge inferential conviction, or reasonable belief. It is in that light that rule 32 falls to be construed. Its wording follows a provision in clause (x) enabling the making of rules for the detention of persons "with respect to whom (such) authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner", e.g. in a manner prejudicial to the maintenance of public order. This rule requires a stronger ground for action than mere suspicion, however, reasonable. For the maintaining of an order of detention of any person, it is necessary that the detaining authority should be satisfied in relation to such person, that it is necessary to make such an order for the purpose of preventing him from acting in a prejudicial manner, e.g. acting so as to disturb the public order. There must be in the mind of the detaining authority a belief that the person in question is either about to act or is likely to act in the aforesaid manner ; only so can the word "satisfied" be construed. Preventive action is called for only by imminent and real necessity, under this rule. Such satisfaction, as has been said above, would be within the power of the rule-making authority to prescribe under section 3(2) (x) of the Ordinance even under the earlier words, viz., "suspects, on grounds appearing to such authority to be reasonable" of being about to act to the prejudice of public order. But if "satisfaction" may, for securing protection to empowered authorities, be deemed to be included within the meaning of "suspicion", the other condition must also be deemed to apply, viz., the requirement of reasonable grounds for satisfaction. Is it admissible to differentiate between protection for action on suspicion, and action on satisfaction, both understood as analysed above, so that in the one case reasonable grounds must be established to give protection and in the other, a mere declaration is sufficient 7 Clause (x) does not differentiate between the authorities which may be empowered to act, with the incident of protection, on suspicion and those which may act, under similar protection, on satisfaction. The element of status in the empowered authority does not appear from any used in the clause, although it is present in rules 32 and 204. Yet by virtue of subsections (4) and (5) of section 3, delegation of power under any rule may be made to any officer of the Central or Provincial Government and under rule 204, the same power that a police constable has may be conferred upon any other officer, by general or special order of the Central Government, which may delegate this power of making orders to a Provincial Government. Reading cause (x) according to the tenor of its language, and hearing in mind that it makes legal provision for restraint upon personal liberty which is fundamental right of citizens in Pakistan, the conclusion that appears unavoidable is that to gain protection for any action thereunder, the existence of reasonable grounds is essential and a mere declaration of satisfaction is not sufficient."

Having concluded, then, that the element of reasonableness must be read into rule 32 his Lordship then went on the show why the dictum in Liversidge's case (1942 A C 206) no longer applied at least in our country. For that purpose be relied upon the language of Article 2 of the 1962 Constitution which is in terms identical with Article 3 of the present Interim Constitution. His Lordship observed-:

"The ascertainment of reasonable grounds is essentially a judicial or at least a quasi-judicial function. It is too late in the day to rely, as the High Court had done, on the dictum in the English case of Liversidge for the purpose of investing the detaining authority with complete power to be the judge of its own satisfaction. Public power is now exercised in Pakistan under the Constitution of 1962, of which Article 2 requires that every citizen shall be dealt with strictly in accordance with law. If then rule 32 owes its vices to section 3(2) (x), it must follow that by the use of the words "reasonable grounds" clause (x) has unmistakably imported into this rule, controlling the exercise of public power, the requirement that to gain the protection of the rule for its action thereunder, the authority should be prepared to satisfy the Courts, to which the subject is entitled to have resort for determination of the question whether he has been treated in accordance with law, that it has acted on reasonable grounds."

62. The Judgment then considered the fact that the High Court was guided in its conclusion by the well known judgment of the Privy Council in the cases of Shibnath Bannerji (72 I A 241) and Vimla Bai Despande (73 I A 144). It was pointed out that the Privy Council itself drew a very sharp distinction between the power conferred by rule 26 and rule 129 of the Defence of India Rules. The former was a rule conferring power upon the Central or Provincial Government while the latter dealt with the power of a police officer comparable to rule 204 of the Defence of Pakistan Rules, 1965 to which I have earlier referred. Having quoted this passage from the Privy Council case the judgment proceeds :

"Note may be taken of the implication in the above quotation that the satisfaction of the Government under rule 26 of the Defence of India Rules was thought to be immune to judicial examination. This view was rested on the first-mentioned case of Sibnath Banerji, where the Judicial Committee had found that the power given by Rule 26 of the Defence of India Rules to the Central Government to act in certain ways on being satisfied of the prescribed conditions, was derived from the first subsection of section 2 of the Defence of India Act; which gave the general power to the Central Government to make rules such as appeared to it to be necessary or expedient for inter alia the maintenance of public order. It was expressly held that this power was not relatable to clause (x) In subsection (2) of section 2 of the Defence of India Act, which gave power to apprehend and detain persons 'reasonably suspected of having acting or acting or being about to act' in certain prejudicial ways. The Judicial Committee found that a judgment or the Federal Court of India in the case of Keshav Talpade, which had construed the vices of rule 26 exclusively in relation to clause (x) of subsection (2) of the Defence of India Act, was wrongly decided.

In the light of the conclusion reached earlier in this judgment, namely, that the mention of 'suspicion' in rule 204 of the Defence of Pakistan Rules must be taken to include knowledge, inferential conviction and reasonable belief and that this construction must apply also to clause (x) of section 3(2) of the Defence of Pakistan Ordinance as a whole the construction placed upon the corresponding provisions under the Defence of India Act and Rules by the Judicial Committee in Shibnath Bene'ji's case; would seem not to be applicable in the present case. Undoubtedly, subsection (1) gives the power to make rules such as appear necessary or expedient to the Central Government to ensure inter alia the maintenance of public order, but here the question is as to the extent of protection which an authority can claim for an order of detention thought to be necessary for preventing certain persons from 'activities which are likely to seriously prejudice the maintenance of public order and peaceful conditions'. Rule 32 makes precise provision for ordering detention in just these circum stances, and clause (x) of section 3(2) gives power to make such a rule enabling authorities to take preventive action in exactly the same circumstances. Even in regard to legal provisions enabling the making of statutory rules, the maxim expressum facit cessare tacitum has application. Where the power to enable the action in question is relatable directly to specific provision in clause (x) aforesaid, it cannot be deprived from the general power in subsection (1) of section 3. Moreover, to relate to rule 32 to subsection (1) of section 3 of the Defence of Pakistan Ordinance would immediately attract the criticism that the power given by that subsection is a legislative power conferred at large upon a subordinate legislative authority without the provision of any guidelines to control the exercise of that power so as to keep it within the four corners of the power conferred. As has been seen already, the High Court had itself found that the rule-making power given by section 3 was not open to challenge on the ground of excessive delegation, by reason of the detailed guidelines provided by sub section (2) where specific provision is made in clause (x) for detention orders.

In the conditions existing under the Government of India Act, 1935, a conclusion such as that reached by the Judicial Committee in Shibnath Banerji's case was tenable. It was a period in which the control by the Courts of the exercise of public power by the authorities was at a minimum. The Central Government of India was in respect of matters of the highest importance, not an independent Government. Through the machinery provided by the Government of India Act, 1935, its action and operations were in those highly important respects, placed under the control of the British Government at Whitehall. It was not conceivable that in relation to a law of such critical importance as the Defence of India Act attracting in many respects the powers of the Governor-General in his direction such powers being directly controlable by the Secretary of State for India, there could be any scope for the intervention of the Courts in India to control the exercise of such power. Therefore, the view taken in Sibnath Banerji's case by the Judicial Committee can be placed on a parallel with the view of the House of Lords in the case of Liversidge quoted above, where the majority view was largely based on the consideration that the order of detention having been made by a high officer of the State, namely, the Home Secretary, it should be presumed that he acted under the relevant provision in the Defence Regulations, i.e., that he had acted on reasonable satisfaction."

It will be noted that so far the judgment is based upon the language of the statute and the rule made thereunder and the concept of reasonableness is brought in by reference to the statutory language. Had this been all, therefore, it might possibly be argued today that the decision of the Supreme Court does not require the concept of reasonableness to be kept in mind by a Court dealing with an order of detention unless the case is one under the Defence of Pakistan Rules or a statute which contained similar language. The Chief Justice has not yet spoken of any requirement generally as to such matters or of the power of the Court generally. Immediately however, after the passage which I have last quoted his Lordship proceeded

"Under the Constitution of Pakistan a wholly different state of affairs prevails. Power is expressly given by Article 98 to the superior Courts to probe into the exercise of public power by executive authorities, howhighsoever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction' for imposing restraints on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all its content through this process and the Courts would cease to be guardians of the nation's liberties. It is therefore impossible to construe the relevant provisions in the Defence of Pakistan Ordinance in the manner adopted by the Judicial Committee in the case of Sibnath Banerji for interpreting the somewhat similar provisions in the Defence of India Act and Rules. Clause (x) of subsection (2) of section 3 must be construed as providing the specific guidelines which control any rules as to apprehension and detention that are to be made under the power given by subsection (1) of section 3.

On that view, it is clear that 'satisfaction' of the detaining authority acting under rule 32 must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction. The power of an authority acting under rule 32 is therefore no more immune to judicial review than is the power of a police officer acting under rule 204. With reference to rule 129 of the Defence of India Rules (corresponding to our rule 204), the Judicial Committee felt no hesitation in finding that there was an onus upon a police officer to satisfy the Court that he had reasonable grounds for his suspicion. Suspicion would include belief or knowledge, whether inferential or actual. On the same reasoning, it must follow that actions by other and perhaps higher authorities, under rule 32, like all other actions relatable to the power delineated in clause (x) aforesaid, are equally susceptible of judicial review subject, of course to the right of the state to claim privilege in respect of secret information and the Court's power to hold proceedings in camera.

Indeed, once the authorities have placed before the Court oral evidence and other material, whose purpose is to justify an action of arrest and detention, judicial review by the Court has already been attracted and the Court cannot, but be influenced in its decision by that evidence. The learned Judges in the High Court, placing reliance on the case of Liversidge, have come to the conclusion, that satisfaction under rule 32 is subjective and its reasonableness, cannot be examined in a Court of law ; they in effect precluded themselves from bringing into the process of decision, the evidence which they had themselves recorded and received. On a true construction of the relevant provisions in the Constitution, the Defence of Pakistan Ordinance and the relevant rules that view appears not to be sustainable. In will therefore be necessary in this judgment to consider that evidence and reach a conclusion whether justification existed for the satisfaction expressed by the Deputy Commissioner in his orders of detention."

63. It is clear, therefore, reading the entire judgment the material parts of which I have successively quoted above that the Courts are now bound' not merely by reason of the statutory language in the Defence of Pakistan Ordinance or Rules but by reason also of Articles 98 and 2 of the Constitu tion of 1962 to consider the legality of the order in relation to the question whether the detaining authority could reasonably have been satisfied upon F the material which was before it. When to this is added the fact that Articles 201 and 3 of the present Constitution are in language identical respectively to the two Articles of the earlier Constitution, I think there can be no doubt of the power and duty of the Courts at present. With the judgment of the Chief Justice Fazle Akbar and Hamoodur Rahman, J. as their Lordships then were, agreed. Mr. Justice S. A. Rahman no doubt was inclined to doubt whether the satisfaction of the detaining authority and the suspicion of reasonable grounds of the arresting authority could be equated. ,,His Lordship observed :

"S. A. RAHMAN, J.- I agree with the conclusion reached by my Lord the Chief Justice in this case and concur in the order proposed to be passed by him. I am, however, doubtful whether the 'satisfaction', of the detaining authority in the relevant law and rules should be placed on a par with 'suspicion on reasonable grounds' of an arresting authority. If the Legislature has used two different expressions vis-a-vis the two authorities and the connotations of these expressions have been fixed by an antecedent judicial precedent, it should be presumed that the Legislature intended to use them in their established connotations. On this view, 1 venture to think that in the case of detaining authorities, Courts need not insist on the revelation of grounds such as would be reported as reasonable after adjudication. The 'satisfaction' in such cases should be of the authorities themselves and unless there is a colourable exercise of power for ulterior motives not contemplated by the law, so that the case is one tainted with mala fides, the scope for interference by Courts would be confined to examination of the question whether compliance with the formalities of the statute on the face of the record, is complete or not. However, even if the interpretation suggested above be the guiding factor, the result of these appeals would not have been in any way different from that reached by my Lord."

64. As will be seen his Lordship contented himself with au expression of his doubt ; even if this judgment is to be regarded as disagreeing with the Chief Justice (which I respectfully suggest it does not) it was a minority judgment. In a short concurring judgment Mr. Justice Mohammad Yaqoob Ali indicated clearly that the ascertainment of reasonable grounds under section 3(2) which would govern the interpretation of rule 32 was necessarily a quasi judicial function and that the detaining authority was by reason of Article 2, to exercise his public power of apprehension and detention in accordance with law.

65. The net effect of the judgment I think therefore is that the Supreme Court has laid down that the satisfaction of the detaining authority must itself proceed upon reasonable grounds and that the Courts were both empowered and under a duty to see whether this in fact has been done ; if in the opinion of the Court this has not been done then clearly it must follow that the duty of the Court would be to hold the detention itself was unlawful and to direct that the detenu be set at liberty. Beyond this I do not think the judgment goes.

66. The question was again examined by the Supreme Court in the case of Abdul Baqi Baloch v. The Government of Pakistan (P L D 1968 S C 313). The detenu in that case was also detained under an order purporting to be made under rule 32 of the Defence of Pakistan Rules, 1965. The order, was challenged by means of a petition under Article 98 of the then Constitution in the High Court upon several grounds one of which was that the detaining authori ty has not applied his mind to the necessity of detention or acted in accord ance with law. This contention was repelled by the High Court which held that, the satisfaction of the detaining authority being a subjective process, so long as the reasons given are relatable to the object of the law and there is some evidence to form the basis of the detention order, the Courts would not interfere to supplant the opinion of the detaining authority by their own opinion or by saying that the evidence is not sufficient to arrive at the impugned decision. The judgment of the High Court was rendered before the Supreme Court decided the earlier case of Ghulam Jilani. The view taken by the High Court was expressly reversed by the Supreme Court and present Chief Justice in delivering the judgment of the Supreme Court stated at page 322 of the report as follows :

"It may be pointed out here that the conclusions of the High Court in so far as they relate to the scope of its power of judicial review of orders of detention, under the Defence of Pakistan Rules, are clearly opposed to the majority view of this Court in the case of Ghulam Jillani v. The Government of West Pakistan. It has clearly been laid down in that case that actions taken under rule 32 are like other actions relateable to the power derived from clause (x) of sub section (2) of section 3 of the Defence of Pakistan Ordinance itself equally susceptible of judicial review, subject of course, to the right of the State to claim privilege in respect of secret information and the Court's power to hold proceedings in camera'. The High Court has, in coming to its conclusion, of course, relied upon the dictum of the House of Lords in case of Liversidge v. Anderson and other decisions following it which had hithertofore formed the basis of the view that the satisfaction of the detaining authority in provisions of this kind was merely a subjective satisfaction and that it was a sufficient answer to the writ for the authorities to show that the detaining authority had, on the face of the order itself stated that he was satisfied that grounds of the kind mentioned in the law giving the power of detention, did exist in a given case. This Court has pointed out that whatever may have been the position under the English Law or the Government of India Act, 1935, the position under the present Constitution of Pakistan is wholly different, for, by Article 98 (2) (b) (i) of the Constitution, a duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court, to satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner'. Can this constitutional duty be discharged merely by saying that there is an order which says that he is being so detained? Can the High Court be expected to be satisfied on the mere ipso dixit of the detaining authority? If this could be so, then this 'Judicial power' would, as pointed out in that case, be 'reduced to a nullity of laws are so or inter preted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction', for imposing restraints on the enjoyment of the fundamental rights of citizens' and Article 2 of the Constitution itself would be 'rendered meaningless'. If the mere production of an order of a detaining authority, declaring that he was so satisfied, was to be held to be sufficient also to 'satisfy' the Court then what would be the function that the Court was expected to perform in the discharge of this duty."

67. Clearly the Supreme Court re-affirmed the view already taken by it in Ghulam Jilani's case and put beyond doubt, if indeed it was in any doubt before, the proposition that the power of the High Court to demand that it be satisfied that the custody of the detenu was with lawful authority and in a lawful manner and, therefore, I think its duty to do so was not based merely upon the language of the Defence of Pakistan Ordinance and Rules. Clearly that power and duty was being derived from Articles 2 and 98 of the then Constitution. His Lordship then goes on to consider the case of Liversidge which till then was regarded as authority for applying the doctrine of the subjective test. He noticed that Liversldge's case was regarded as itself an innovation at the time and had since raised a storm of controversy. He then referred to the comment of the Editors of the Harward Law Review that while the decision may be correct in England, where no constitutional limitations are placed upon the power of Parliament and noted the application that the American position would be different. Immediately after this passage and, therefore, in the context of the reasoning noticed appears another passage at page 324 :

"Under a constitutional system which provides for a judicial review oft executive action, it is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with ig to see that the executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. It is not uncommon that even high executive authorities act upon the basis of information supplied to them by their subordinates. In the circumstances it cannot be said that it would be unreasonable for the Court, in the proper exercise of its constitutional duty, to insist upon a disclosure of the materials upon which the authority had so acted so that it should satisfy itself that the authority had not acted in an 'unlawful manner'."

'I would pause here to emphasise that the criterion which his Lordship is ;laying down for the administrative authority is that it should have "before it sufficient material upon which a reasonable person could have come to the ,.conclusion that the requirements of a law were satisfied". The word used is "could" and not "would" and to this distinction I will revert in the course .of this judgment. In a final passage so far as concerns this point his Lordship ,laid down at page 325 :

"However, as I have said earlier, my reading of the majority decision to Ghulam Jillani's case to which I am a party, is that it alters the law laid down in Liversidge's case only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can, in discharge of its duty under Article 98 (2) (i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (h) (i) of Article 98 (21 shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction in subject to judicial review. If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of a nature for which privilege can be claimed, then that too would be a matter for the Court to decide as to whether the document concerned is really so privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned.

It is clear, therefore, that after the decision in Ghulam Jilani's case the High Court should have examined the grounds of detention to test their reasonableness. On this ground alone, this appeal is liable to be allowed and the case sent back to the High Court for rehearing, after examining the materials produced before it."

Clearly this judgment, therefore, affirmed the power as the duty of the High Court to examine the grounds of detention to test their reasonableness. Although the Supreme Court demanded that the material before the detaining authority be such as would suffice for a reasonable person to come to the necessary conclusion it neither laid down that the High Court be satisfied that on such material it would itself come to that conclusion nor required that facts be established before the detaining authority in the same fashion and with the same regard to the rules of the law of evidence as would be necessary in a Court of law. In other words, I think it might be safely stated that except for introducing the element of reasonableness in the manner and to the extent that I have noticed the Supreme Court left the law unchanged.

68. The case reported in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 S C 14) arose by way of appeal by special leave against a decision of the High Court of West Pakistan deciding a preliminary objection taken to its jurisdiction to examine the grounds of detention of the detenu in that case, After the decision of the Supreme Court in Ghulam Jilani's case. Clause (x) of section 3 (2) of the Defence of Pakistan Ordi nance, 1965 had been amended, and although the amendment had been noticed in the case of Abdul Baqi Baloch, since their Lordships held that it was not retrospective in operation it was not deemed to govern that case and its effect had not, therefore, been considered by the Supreme Court in that case. In order to appreciate the objection and indeed the judgment of the Supreme Court itself in Shorish Kashmiri's case it is necessary to reproduce the clause as it originally stood and as amended :

"(x) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain, as the case may be suspects on grounds appearing to such authority to be reason able, of being hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to Pakistan's relations with foreign powers, the security, the public safety or interest, or the defence of Pakistan, or any part thereof, including the maintenance of supplies and services essential to the life of the community and the maintenance of peaceful conditions in any area included in Pakistan, or prejudicial to the maintenance of Public order, or the efficient con duct of military operations or prosecution of war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner, the prohibition to such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.

(x) the apprehension and detention of any person with respect to whom the authority empowered by or under the rules to apprehend and detain is of the opinion that this apprehension pad detention are necessary for the purpose of preventing him from acting in a manner prejudicial to Pakistan's relations with foreign powers, or to the security, the public safety or interest, the defence of Pakistan or of any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful condition in any part of Pakistan, or the efficient conduct of military operations or prosecution of war."

For the words originally occurring 'suspects on grounds appearing to such authority to be reasonable' were substituted the words 'is of the opinion that' and, in an effort to make the amendment plain and beyond dispute, an explanation was also added. It was, therefore, argued both in the High Court and before the Supreme Court that the law was deliberately changed in order to reverse the position that the Supreme Court had found prevailed when deciding Ghulam Jilani's case. In re-stating what the Court had in fact decided in Ghulam Jilani's case Hamoodur Rahman, J. as his Lordship then was, delivering the judgment of the Court stated that the decision in Ghulam Jilani's case was based upon two grounds, the first being the language used in section 3 (2) of the Defence of Pakistan Ordinance clause (x) of which has been reproduced above and rule 32. His Lordship then went on to say :

"The second ground was that since Article 98 of the Constitution of Pakistan gives express power to the High Court to prove into the power of an executive authority how highsoever, the principles laid down in the cases of Liversidge v. Anderson, Sibnath Bannerjl and Vimlabai Dashpande were no longer good law and actions by authorities under rule 32 must, like all other actions relateable to the power derived from clause (x) aforesaid were equally susceptible of judicial review and the detaining authority had to show that there existed a state of mind which had been induced by the existence of reasonable grounds under which he could only say that he was satisfied that the action taken was necessary in the circumstances of the case."

I venture to think that the use of the word "only" towards the end of the passage that I have quoted was not intended to lay out that it was the requirement of the law that the only possible conclusion which the detaining authority should be able to draw from much reasonable grounds as existed before itself was that action was necessary. The passage quoted does not itself purport to lay down the law but is intended as a paraphrase of the decision already delivered by the Supreme Court in Ghulam Jilani's case. That decision I have already quoted from and I humbly think that it lays down no such requirement and I do not think that the Chief Justice was doing anything more in this passage than to re-state what had been decided earlier by the Supreme Court.

69. The Supreme Court then goes on to consider the difference in language in the two parts of clause (x) and points out that the difference now emphasised before itself was in fact noticed in Ghulam Jilani's case also. His Lordship then proceeds to notice that on the preliminary objection the High Court held that the amendment in clause (x) had made no difference to the power of the High Court this conclusion the High Court obviously based on the fact that the power of the High Court had not been held by the Supreme Court in Ghulam Jilani's case to be founded upon the language of the Defence of Pakistan Ordinance alone but more firmly embedded in Article 98 of the then Constitution. The High Court also relied upon the decision in Abdul Baqi's case to which I have referred. His Lordship then proceeds to notice the stand taken by the various counsel in the case as also the cases of the House of Lords and the Privy Council a number of foreign judgments and the views of Professor Allan and then in the following passage sumarises the arguments placed :

"The upshot of the elaborate arguments advanced by the three leaned counsel appearing in support of the appeal is that while none of them dispute that the High Court has undoubtedly under Article 98 of the Constitution the power of judicial review of executive action yet they contend that unless the statute under which action is taken by the executive authority itself requires the authority to act honestly or reasonably or upon reasonable grounds, the satisfaction or the opinion or belief of the authority concerned is his subjective satisfaction and it is enough for him to state that he is so satisfied. It must then be presumed that he had acted bona fide in the lawful exercise of the powers and unless the party challenging his action is able to sub stantiate that he had acted mala fide or without any grounds whatso ever, the Courts cannot call upon the authority or the officer concerned to disclose the material upon which he had based his opinion, belief or satisfaction. It is further contended that even if it was possible to say that satisfaction being a firmer state of mind than mere "belief" or 'opinion' or 'suspicion' had of necessity to be grounded upon some facts than the amendments in the present case have been even take care of that by not using the word 'satisfied' but merely saying that it would be enough if the authority concerned "is of the opinion' that the apprehension or detention is necessary."

70. His Lordship then in a significant observation points out that the arguments have not taken any notice of the difference made to the jurisdiction of the Court by reason of the language of Article 98 of the then Constitution which he reproduces. The judgment thin proceeds

"It will be observed that this Article is radically different from the old Article 170 of the abrogated Constitution of Pakistan or Article 226 .of the Indian Constitution. It has given to the Courts the power to give directions to persons performing certain functions in connection with the affairs of the Government or local authority to do or to refrain from doing that which the law requires them to do or which it does not permit them to do and to declare acts done by such persons to 'have been done or taken without lawful authority and as being of no legal effect'. In the case of persons detained in custody, however, the power given is to issue a direction to have such a person brought before the High Court so that the Court may 'satisfy itself that he is not being held in custody without lawful authority in an unlawful manner'. The difference in the language of the provisions of sub-clauses (a) and (b) of clause (21 of Article 98 is worth noting. Whilst in the first case the direction is limited to the making of an order for doing or refraining from doing that which the law permits or does not permit, as the case may be, in the case of detention the High Court is enjoined upon to 'satisfy itself' that the person is not being held in custody (a) without lawful authority or (b) in an unlawful manner.

This distinction in the terminology of the two clauses of Article 98, which was pointed out by this Court in the Case of Abdul Baqi Baloch for the first time, was placed before the learned counsel and they were invited to assist this Court in the ascertainment of its true meaning. They all agreed that the expressions "without lawful authority" and "in an unlawful manner" occurring in sub-clause (b) were not merely tantalogus. A definite meaning had, therefore, to be given to each of them. The Constitution it appears, casts a heavy responsibility upon the Court to satisfy itself with regard to both these two matters. The question therefore, arises as to what are these matters. It is agreed that without lawful authority will be comprised all questions of vires of the statute itself as also of the person or the persons acting under the statute L e. there must be a competent law authorising the detention and the officer issuing such an order must have been lawfully vested with the power. But what is it that falls within the expression 'unlawful manner' ? The learned counsel, for the Government of West Pakistan thought that it might refer only to the manner or mode of detention. The learned Attorney- General went a little further and suggested that it might include all matters of procedure. The learned Advocate-General of East Pakistan, however, conceded that all matters which fell within the scope of judicial review apart from questions of vires were covered thereunder.

In my opinion the learned Advocate-General of East Pakistan is perhaps, nearer the mark than the others. In my view the words 'in an unlawful manner' in sub-clause (b) of Article 98 (2) have been used deliberately to given meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore in deter mining as to how and in what circumstances a detention would be detention in an unlawful manner one would inevitably have first to see whether the action is in accordance with law, if not, then it is action in an unlawful manner. Law is here not confined to statute law of one but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means accord ing to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner.

It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution makers intended that this most cherished right should not be taken away in an ordinary manner and hence by sub-clause (b) of clause (2) of Article 58 they advisedly left it to the High Courts to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of writ of habeas corpus or the Rules laid down under the various Habeas Corpus Acts. The Court must, nevertheless, in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered. The content of the power vested by the Constitution in the High Court cannot be limited or taken away by a sub-constitutional legislation but the reference to the statute and the other factors mentioned above is rather for determining its truer nature, scope and legality.

This power as has been pointed out in the case of Abdul Baqi Baluch: is not co-equal to the power of a Court of appeal or a Court of error or a review committee, for, the Courts cannot claim in the exercise of this power to usurp the functions of the authority on which the power has been vested nor to substitute their own decision for the decision of that authority. Nor can the Court insist being satisfied that there were materials upon which it would have taken the same action. It is in this sense that it has been said that the Court is not concerned with either the adequacy or the sufficiency of the grounds upon which action is taken. But if this argument is to be pushed to the extent of saying that the Court can never even ask the authority concerned to disclose the grounds upon which it has acted then we are unable to agree, for the Court in order to be satisfied as required by the Constitution, must know that there were in fact grounds relatable to the purposes of the statute upon which the action of the authority concerned could at all have been founded after an honest application of the mind of the authority concerned to all the: relevant considerations.

There can be no doubt and this is conceded that the Court can satisfy itself that the action taken is not a mere colourable exercise of power or a fraud upon the statute. The question, however that still remains to be considered is as to whether the reasonableness of the action can be examined when the statute itself does not require the authority to act upon reasonable grounds but leaves to act upon his own subjective satisfaction. In view of the provisions of Article 98 of the Constitution I am of the view that that degree of reasonableness that at least to be established which has been indicated in the case of Abdul Baqi Baluch. Otherwise if an authority could protect himself by merely anything that he believed himself acting in pursuance of a statute, then what would be the material upon which the Court could say that it was satisfied that the detention or impugned action had not been taken in an unlawful manner. If the argument be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial review then even questions of bona fide or good faith would be beyond the scope or judicial review but it has, throughout without any exception whatsoever, been always consistently held that a mala fide action is not action in accordance with law. Decisions are also not wanting to show that very often the requirement of reasonableness has also been added to the requirement of good faith. Indeed it has even been said that the question of reasonableness would be pertinent in an enquiry as to mala fides. Thus to determine as to whether the officer concerned really believed that facts existed which would bring the case within the statute and honestly intended to put the law into force, the question of reasonableness may well become material but reasonableness in the limited sense indicated in the case of Abdul Baqi Baloch would always be material. In other words when it is said that no reasonable person could have upon such and such material, formed the opinion that the person detained had brought himself within the mischief of the statute, in effect the contention is that the officer concerned has in these circumstances acted mala fide in law."

71. His Lordships uses the words "mala fides in law" in clear distinc tion, as he himself points and, to mala fide in fact or malice in fact. With the letter I am not at present concerned but in dealing with mala fides in law his Lordship stated :

"A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statute justifies him in what he does. If the cast;, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute, then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner."

72. In regard to this judgment I should like to offer two comments if I may with respect do so. In the first place the development of the law is now clear. In Ghulam Jilani's case their Lordships of the Supreme Court approached the case on the language of the statute concerned though, of course, they did not limit their conclusion to that ground alone. Then in that case, it has been pointed out, reliance was really placed upon the provisions of the Constitution but certainly the decision proceeded initially upon the language of the statute in question and the conclusion was based at least upon both the grounds. By the time the Shorish Kashmiri's case was decided the new view is being firmly rested upon the Constitution and as intervening change in language in the Defence of Pakistan Ordinance. 1965 which might otherwise have been conclusive, if therefore regarded as immaterial. Secondly, the concept of reasonableness is not taken to the point where the Court feels itself either entitled or bound to reach its own conclusion upon the material and substitute it for the opinion of the detaining authority all that is being insisted upon is that the view taken by the detaining authority be such that a reasonable man could possibly reach upon its examination. It is only when the material is such that no reasonable man could claim to be satisfied that the Court would declare the order unlawful.

73. These three judgments of the Supreme Court to which I have referred were all concerned with orders purporting to be made under the Defence of Pakistan Ordinance. The last of the cases, however, to which reference is necessary namely, the Government of West Pakistan v. Haider Bakhsh Jatoi (P L D 1969 S C 210) was a case under the West Pakistan Maintenance of Public Order Ordinance. That statute itself contained provisions which required the supply of the grounds to the detenu within a reasonable time and a review by and consul tation with an Advisory Board, the constitution of which is therein specified, requirements do not exist and are not attracted in the case of orders under Defence of Pakistan Ordinance, unless of course the provisions of Article 98 of the Interim Constitution or the corresponding Fundamental Rights in the 1962 Constitution could have been attracted. Then as now, however, a Proclamation of Emergency was in force and the right to enforce the funda mental right in a Court of law was itself suspended. This aspect of the case I have dealt with earlier in this judgment and I refer it now only to point out that this is an added element in the case of Haider Bakhsh Jatoi which is not relevant to the present case. The opinion of the Review Board in that case that there was sufficient cause for the detention of the respondent was largely based upon a ground which both the High Court and Supreme Court held had no basis or justification in the material available against him. The High Court, therefore, held that the detention was unlawful and this decision of the High Court was upheld by the Supreme Court. It was argued before the Supreme Court that there were other grounds of detention which had received no consideration from the High Court. Mr. Justice Muhammad Yaqoob Ali, delivering the judgment of the Supreme Court, held that the other grounds were not such as would justify the order and consequently came to the conclusion that even if they be taken into consideration the order would still not be sustained. Cases were no doubt cited before the Supreme Court and noticed in the judgment which dealt with the question whether, if a detaining authority gives one or more reasons which are held to be bad, the entire order must be held to be unlawful although there was other good and valid reasons given for it. The case of Kashav Talpade v. Emperor (AIR 1943 F C 1), which is the first case which took that view, is no doubt referred to us is the judgment of West Pakistan High Court reported in P L D 1965 Lah.

112. But I do not think that the Supreme Court either approved or disapproved these cases for it also refers to the judgment of Mr. Justice Muhammad Munir, then Chief Justice of Lahore, in Rafiq Ahmed Shaikh v. The Crown (P L D 1951 Lah. 77) where that learned Jurist expressed his view that the proposition was stated somewhat broadly by the Federal Court. Having quoted from that judgment Mr. Justice Muhammad Yaqoob Ali observed that "even if the latter view was adopted it will not advance the case of the appellant". In my respectful opinion Mr. Justice Muhammad Yaqoob Ali was clearly refraining from expressing any final view upon this point inasmuch as his Lordship did not think that the decision of the question was really necessary for that particular case.

74. In the unreported judgment to which I was a party and to which I have earlier referred, namely, the case of Abdul Hamid Jatoi v. The District Magistrate, Larkana. I referred only to the first three of the Supreme Court cases to which I have now referred and did not notice the case of Haider Bakhsh Jatoi. This I did because that case was not; like the present case one under the Defence of Pakistan Rules, 1971 and although the first three Supreme Court cases were decided upon the language of the Defence of Pakistan Ordinance, 1965, as I have shown, they were strictly relevant and binding when this Court was concerned with cases under the Ordinance of 1971. Haider Bakhsh Jatoi's case, as I have shown, was not concerned with those matters and, I therefore. think humbly that the summary. I gave in that case of the effect of those three cases, albeit short, was so far as it goes correct.

75. Reference has been made in the course of the argument before us in this case to a judgment delivered by a Bench of this Court in the case of Liaquat Ali Jatoi v. The District Magistrate, Larkana (Petition No. 217 of 1972) which too. after noticing the three judgments to which I referred and also the judgment of the Supreme Court in Haider Bakhsh Jatoi's case, made a summary of the law on the point. I reproduce the relevant passage of that judgment :

"An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say (1) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention ; (ii) that satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid ; (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privileges with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied in case of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention; that each of the requirements of the law relating to preventive detention should be strictly complied with ; that "satisfaction' in fact existed with regard to the necessity of preventive detention of the detenu that the grounds of detention had been furnished within the period prescribed by law, and, if no such period is prescribed, then 'as soon as may be' ; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law ; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice."

The second part of the passage in which the learned Judges have laid down additional requirements, was not intended, I think, to be a statement of what the Supreme Court had decided. The Supreme Court did not in the four cases to which I have referred laid down some of the requirements to which the learned Judges have referred; I am not of course to be understood to mean that the learned Judges are, therefore, wrong in making that statement of the law. As to the earlier part, however, the judgment expressly states the requirements to be much as are to be deduced from the judgment of the Supreme Court. It is only on two matters in this judgment in each of the two passages that comment is necessitated by reason of the arguments advanced before us. The first of these is in the first requirement so deduced and depends on the use of the word "would". Now I have referred earlier to various passages in the judgments of the Supreme Court for the purpose of showing that the Court has not, at least as I have understood them, laid down either that the conclusion which the detaining authority has purported to reach should be the only possible conclusion which a reasonable man could have reached or that it should be such a conclusion that the Court would itself reach upon that material. I think all that the Supreme (Court had stated is that it should be a conclusion which a reasonable man could reach. Indeed the Supreme Court have gone on to the emphasise that the High Court should not substitute its own judgment for that of the detaining authority. In saying so I think it is clear that the Supreme Court is contemplating the possibility that two different persons equally reasonable, might reach different conclusions upon the same material. Otherwise the question of substituting its own judgment would not arise; if the conclusion of the detaining authority was reasonable then the Court would also reach the same conclusion; if it was not the order was bad on that account. Indeed, with respect, I do not think that my learned brother, Noorul Arfin, J. meant to lay down any different rule and it is only because of an interpretation that was canvassed at the Bar that I felt it necessary to refer to this matter at all. If however,, the word "would" was intended to mean that the conclusion should be such that a reasonable person would, in contrast to, could reach upon the material in question then I must express my respectable disagreement with that view, both as a statement of the law and as a statement of what their Lordships of the Supreme Court have !aid down.

76. The other conclusion of the learned Judges to which reference has been made is that stated in (ii), namely, "that satisfaction should be established with regard to each of the grounds of detention and if one of the grounds is shown to be bad, non-existent or irrelevant the whole order of detention would be rendered invalid". Now this is a question which has been argued by the learned Attorney-General before us with elaborate and painstaking care and we have also had the advantage of an argument by Mr. Manzoor Qadir advanced largely on our own request. It is a question upon which a conflict of views is possible and, despite an earlier decision to which I was a party myself and which I will refer to, I do think with respect that the manner in which the proposition has been worded in this judgment is a little too wide. At the moment however I content myself with pointing out that, irrespective of the correctness of this view, it does not seem to me to follow from the decisions of the Supreme Court to which reference is made in that judgment.

77. Before I go on to mention and examine the outstanding cases which have considered this question it would be useful to state two matters which the learned Attorney-General thought ought to be kept in mind in such an examination. In the first place. he said, the expression "ground" is to be found in Article 9 of the Interim Constitution and in the corresponding provision of the two previous Constitutions and the Indian Constitution, as also in a large number of Indian and Pakistani-statutes which deliberately adopted the language of the prevailing Constitution. In this context the word is used to mean a statement of the conclusions which the detaining authority has reached and may well be described as bad on account of vagueness, lack of particulars and lack of sufficient material upon which they are based. As against that in the cases on the Indian Statutes before 1950 and the Pakistan Statutes before 1956, being the dates respectively when the two countries adopted a Constitution,- the expression, if used at all, would have no such fixed meaning and would be the equivalent of the word "reason" which indeed was used in the first of the cases to which I shall presently refer. The result is that when those cases described a reason or a ground as being bad it was simply on account of that reason of ground being outside the ambit of that statute in question. The learned Attorney-General thought that it was one thing to hold that an entire order was bad because such a reason was found to be bad and quite another to say that because one of the grounds, in the sense in which I have the Constitution or the statutes used it, was bad for lack of particularity or some similar cause. On this account in his address, he used the word "ground" in this limited sense only, that is, as meaning a stated conclusion of which the detenu was informed in compliance with the constitutional and/or statutory requirements, while employing the expression "reason" for the larger meaning and I propose to do the same for avoiding any confusion of thought. In the second place he argued that much of the reason for decision of this kind lay in the fact that the satisfaction of the detaining authority, was, following Liversidge's case, always held to be subjective and that, therefore, with that basis for the reasoning having disappeared on account of the view of the Supreme Court in Jilani's case, re-affirmed and strengthened as I have shown in the cases of Abdul Baqi Baloch and Shorish Kashmiri, the Courts ought not to-look at the matter in quite the same way.

78. The first of these cases is the decision of the Federal Court of undivided India in Keshave Talpade v. Emperor. Now the order in that case was under rule 26 of the Defence of India Rules, themselves made under the Defence of India Act of 1939. Section 2 of the Act authorised the making of a Rule empowering the apprehension and detention in custody of persons reasonably suspected of being of hostile origin or of having acted in certain stated manners. The section itself, it was held, was intra vires as coming within Entry No. 1 of List I of the 7th Schedule to the Government of India Act, 1935. The Rule in question, however, it was held one beyond the terms of section 2 and indeed beyond the entry in List 1. As a consequence it was held that an order under rule 26 would itself have to be regarded as bad although the order may have been only in respect of such persons, as were mentioned in the section and therefore, might have come within that part of the Rule which was not ultra vires. Nevertheless the Federal Court held that the "question is not what the Government has in fact done under the Rule but what the Rule authorises them to do". The Federal Court then quotes a passage from the judgment of the learned Chief Justice of Bombay which is in the following words:-

"As I have pointed out, there is no doubt that it was competent to the Government of Bombay to detain the applicant on the ground that this detention was necessary inasmuch as he was acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It may be that the other two grounds given in the order are not justified by any of the items in Sch.

7. But if the two or even one of the two grounds are justified as coming within the competence of the Indian Legislature, I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well-founded."

It may be noted in passing that the learned Chief Justice used the word "ground", clearly the context is one of reasons rather than ground in the terminology which I have adopted. Commenting on this his Lordship the Chief Justice of India Sir Maurice Gwyer observed:-

"We doubt whether this is a correct statement of the law. If a detaining authority give four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reason had been before them."

79. Now this is the passage which is not only the first of the cases in question but the foundation of all subsequent arguments upon the point. Clearly both learned Chief Justices are talking of reasons and not grounds. While discussing the binding nature of the judgment of the Supreme Court delivered before the 20th April, 1972, I have stated that the judgments of the Federal Court of undivided India and those of the Privy Council rendered at the time when appeal lay to that body from Courts in our country continue to be binding on the High Court unless dissented from by the Supreme Court; learned counsel on both sides agree that this was so but, curiously enough, both contended that this particular case was not binding inasmuch as the Supreme Court had expressly left the question open, With that aspect of the matter I shall deal when I examine the case of Supreme Court in which according to learned counsel the question was left open. Suffice it just now to say that, unless that be the true effect of the Supreme Court decision, the Federal Court case is binding on me. If, therefore, in the present case it be found that there is a bad reason, as opposed to a bad ground, I think I should be bound to hold that the entire order is bad. On the other hand, if one of the grounds is found to be bad for any reason, it would not necessarily follow that the entire order is bad inasmuch as it might be possible to distinguish this case on the ground that their Lordships of the Federal Court were not dealing with the effect of a bad ground at all. That this case was itself reversed by the Privy Council is I think a matter of no importance since the decision of the Privy Council proceeded upon a different basis and the question with which I am now concerned was not even discussed by the Privy Council.

80. The point again arose for examination in a case of the Bombay High Court (In re: Rajdhar (A I R 1948 Bom. 334), and the judgment of a Full Bench of that Court was delivered by Chagla, C. J. who also had delivered the earlier Bombay judgment which was considered by the Federal Court in Talpade's case. The learned Chief Justice quotes the passage first from the judgment of the Federal Court which I have reproduced and then the passage in his own judgment which also I have reproduced and proceeds:-

"Therefore, according to the learned Chief Justice of India, with whose opinion with respect we entirely agree, if a reason is given for the detention of a person which is not within the scope and ambit of the Act confer. ring the power upon the Government to detain, then the whole order is vitiated notwithstanding the fact that the other reasons given are good, because something may have operated upon the mind of the detaining authority which is foreign and extraneous to the purpose of the Act. In that case the two grounds were not justified because they were not covered by any of the items in the Seventh Schedule in the Govern ment of India Act and therefore those two grounds were ultra vires of the Legislature. But if some of the grounds given are not outside the scope and ambit of the Act but are merely vague and indefinite, it cannot be said that some extraneous consideration has weighed with the detaining authority in making the order it has made. Therefore, we must draw a sharp distinction between a ground which is outside the purview of the statute and a ground which is bad because it lacks precision and accuracy. In the latter case the ground has to be completely ignored as if no ground was furnished at all. If after eliminating the grounds which are not grounds at all, inasmuch as they furnish no precise information to the detenu, there still remain a ground or grounds which are precise and accurate and which can justify the order, then we see no reason why the order made by the detaining authority should not stand. If the Court can come to the conclusion that there is a ground or grounds which are within the ambit of the Act and which the detaining authority can legitimately consider in order to be satisfied that it is necessary, to detain the person concerned, then the Court must uphold the order." Now in this passage it will be seen that the words "reasons" and "grounds" are used interchangeably and, I hasten to add with respect, quite correctly, since the learned Chief Justice was using the words in their ordinary meaning and not in the artificial meaning which I have assigned to them for my present purpose. But if regard be had to that distinction it will be seen that the learned Chief Justice of Bombay is really distinguishing the Federal Court case for he agrees if a reason is bad, then the entire order is bad but, if merely a ground is bad because it is vague or indefinite, then the order is not bad for the consideration which weighed with the Chief Justice of India would not then be present. And indeed, regard being had to the fact that the Federal Court decision was binding upon the Bombay High Court, it would be right I think to conclude that the Bombay High Court is distinguishing the Federal Court case and not really refusing to following it.

81. The judgment of the Full Bench of the Bombay High Court was considered by a Division Bench of the same Court in In re : Bhanras (A I R 1950 Bom. 126) where the order stated the conclusion of the detaining authority in language which the Court thought vague. Weston, J. delivering the judgment of the Bench, pointed out that the authority of the Court to interfere was confined to cases where the detaining authority had not applied its mind to the question whether detention was justified. His attention being drawn to the Full Bench case the learned Judge observed:-

"That was a case where several grounds were furnished, some of which could be challenged as vague, but some of which were precise. It was held that when there are several grounds given, some of which are good and some bad, the whole order is not vitiated; there is a sharp distinction between a ground which is outside the purview of the statute and a ground which is bad because it lacks precision and accuracy. In the latter case the ground has to be completely ignored as if no ground was furnished at all, inasmuch as no precise information was furnished to the detenu, are eliminated, and there still remain a ground or grounds which are precise and accurate and which can justify the order, then the order made by the detaining authority must stand.

Apart from authority, I should myself have been inclined to think that any vagueness in the grounds furnished was evidence of vagueness of the mind of the detaining authority, which might be sufficient, notwith standing that some one or more grounds were stated precisely, to justify the conclusion that there was no proper application of the mind of the detaining authority to the facts of the case. We are, however, bound by the view taken by the Full Bench. But in the present instance we do not think that that view assists to preserve the order of detention which has been made. The expression "ignorant people" seems to us an expression of such vagueness that any ground asserting likely action on the part of the detenu in respect of ignorant people is bad for want of precision, and shows that the detaining authority cannot have considered properly the facts or evidence placed before it on which this ground is based. It may be said that the allegation of incitement, to loot and drive away the Gujrati Saukars and to take forcible possession of their lands is precise enough, but this incitement, as the other less precise incitements, mentioned in the grounds, relates to the indefinite ignorant people mentioned by the District Magistrate. We think therefore that this is not a case where one or more grounds can be said to be precise. 16 the words of the Full Bench, after eliminating the grounds which are no grounds at all, inasmuch as they furnish no precise information to the detenu, there remains no ground at all, and, that being so, we consider that the order was not passed after proper consideration, and that we must interfere."

82. It does seem, therefore, that the Division Bench was inclined to disagree with the Full Bench view but accepted it as binding and then went on to hold that there was no good ground available at all. Whatever the effect of this case may be, therefore, it is of no assistance on the question now being examined.

83. There is next a short observation on the point in the case of Ramanlal v. The Commissioner of Police (A I R 1952 Cal. 26) where Mukerji, J., said, "I am unable to assent to the proposition that when one out of many grounds is too vague the order of detention itself is bad even though such order is based not only on that ground alone but also on other grounds which do not suffer from vagueness"-(Page 29, column 1). Now here the learned Judge was clearly dealing with a ground and not a reason. Equally clearly that ground was being held bad not because it was outside the scope of the statute but because it failed to meet a mandatory requirement of the Constitution and of the statute itself which had been amended to bring it in line with the Constitution that the detenu be supplied with the grounds in order to be able to make a representation. Obviously the consideration which would weigh with any Court in this context is of a kind entirely different from those which arise where a reason is held to be bad.

84. The contention was noticed for the first time in Pakistan in the case of Mohammad Ali v. The Crown (PLD1950FC1). Having noticed the contention and the fact that it was supported by the judgment of the Federal Court in Talpade's case and in some Indian cases Mr. Justice Abdul Rahman, delivering the judgment of the Federal Court, observed that the question was not free from difficulty and would need to be examined carefully when it really arose for decision. On the facts of that particular case his Lordship held that it did not really arise.

85. The first real comment on the question in Pakistan is to be found in an observation of Mr. Justice Mohamed Munir, then Chief Justice of Lahore, in the case of Rafiq Ahmad Shaikh v. The Crown (P L D 1951 Lah. 17) in the matter of Abdul Latif Afghan. The learned Chief Justice first reproduced the passage in the Bombay judgment which was under appeal to the Federal Court and then quotes the passage from the judgment of Sir Maurice Gayer which I have reproduced. He then observed:

"This obiter dictum was followed in the other two cases cited above as an authority for the proposition that if the grounds disclosed contained grounds, some within the ambit of the Act and some outside it, the order of detention would be vitiated wholly as in that event it would be impossible to say to what extent the detaining authority was influenced by acts outside the act in making the order of detention. I am doubtful of the correctness of this rule which appears to me to have been stated some what too broadly. The logical result of the rule, if it were applied in the unqualified manner suggested in the two cases cited above, would be that, if among ten reasons for the arrest of a person who was believed to be acting in a manner prejudicial to public safety was an insignificant reason that in addition to the other acts which were calculated to prejudice public safety, he was also engaged in an activity not within the power of the Provincial Government to prevent, the order of arrest will have to be, held to be wholly unsustainable. Any such result in my opinion has to be avoided, b. cause otherwise, the High Court while in such a case be substituting its own judgment 1for the judgment of the arresting authority in holding that the remaining nine reasons any one of which could have been a good reason for the arrest were not, individually, or collectively in fact the reasons on which he could have been arrested, and thus that Court would be taking upon itself a responsibility which under the Statute rests on and vests in some other authority."

Now in the first place I must confess that I find it difficult to regard the observation of the Chief Justice of India as merely obiter. It is made in the context of the reasons on which the decision of the Federal Court holds that the order is bad. It is true that other reasons are also advanced and it is also true that those other reasons would be a sufficient basis for the decision but that, I think, is not reason enough to regard the observation as obiter. Certainly the Chief Justice of Bombay in the judgment reported in A I R 1948 Bombay did not so regard it. I do feel also that the reason ing which appealed to the learned Chief Justice of Lahore that in such circumstances to hold the order of detention bad would amount to substituting the judgment of the Court for the judgment of the arresting authority seems to me to lead to exactly the opposite conclusion. I say so with an extreme sense of difidence for I have always had high respect for the clarity of mind of the eminent jurist I should have thought that, to hold the order good in such circumstances on the contrary is to presume to say that detaining authority would, even if not influenced by the invalid reason, still have thought it proper to order the detention. It will be noticed that I used the word "reason" although the expression "ground" is used in the judgment. Be that as it may, in any case Mohamed Munir, C. J., only says that he is "doubtful of the correctness of the rule which appears to him to have been stated somewhat too broadly" He does not go on to say within limits the rule ought to be enunciated and observed. In any manner that the case is looked at therefore I think it still leaves the authority of the Federal Court decision and its reasoning on the same plane as before.

86. The next case of importance is a decision of a Full Bench of the High Court of West Pakistan Rehmat Elahi v. The Government of West Pakistan (P L D 1965 Lah 112). Mr. Justice Muhammad Yacoob Ali, then a Judge of the High Court, observed at page 121 of the report

"14. The impugned orders are also liable to be set aside on the ground that at least two of the grounds (in the case of Sayed Abul 'Ala Maudoodi grounds Nos. 5 and 7 and in the case of other detenu grounds Nos. 5 and 6) on which those orders are based fail outside the purview of section 3 of the Ordinance. The relevant grounds, with some unimportant variations, in the case of Sayed Abul Ala Maudoodi end others, are to following effect:-

'(5) that the said Jama'at is attempting to create dissatisfaction among the Armed Forces by means of objectionable speeches by its leaders;

(7) that you in the October 1963, issue of your monthly Periodical 'Tarjuman-ul-Quran' have published a vicious and unwarranted attack on Iran and its Royal Family with the object of undermining the friendly relations between Pakistan and Iran, which is its traditional ally.'

(15) The third Schedule to the Constitution enumerates the matters with respect to which the Central Legislature has exclusive power to make laws. One such matter is "preventive detention" for reasons connected with defence, external affairs or the security of Pakistan, and persons subjected to such detention' (Item No. 34). The Provincial Legislature, which includes 'any other authority or person empowered by or under the Constitution to make Laws' was thus not competent to make laws for preventive detention for reasons connected with defence, i.e. spreading disaffection among armed forces and external affairs, viz. undermining the friendly relations of Pakistan with Iran. A somewhat feeble argument was raised by the learned Advocate General in justification of the second of the t% o grounds that the publication of the article in question in Tarjuman-ul-Quran was likely to provide feelings of ill-will between two major sects of Muslims in West Pakistan. There was however, no warrant for it because the ground itself describes the object, namely, to undermine the friendly relations between Pakistan and Iran which is its traditional ally.

(16) What then is the effect of the wrongful inclusion of the two grounds set out above on the validity of the impugned orders of arrest and detention made under section 3 of the Ordinance ? At first, the learned. Advocate-General conceded, and rightly so that the orders are rendered illegal, but in his subsequent address he sought to make a distinction that if an insignificant ground be foreign to the scope of the relevant law it did not take away from the efficacy of the other grounds. The argument is met in two ways. Firstly, the satisfaction of the detaining authority that sufficient material exists for detaining a person in preventive custody is entirely subjective and the Courts cannot sit in judgment and decipher as to which of the grounds had appealed to him as determinative and what material he considered to be insignificant. Similarly, if there is more than one ground on which the order of preventive detention is based, then each ground has contributed to the satisfaction of the detaining authority and none could be excluded from consideration. Conversely, if the detaining authority considered any material as insufficient to warrant preventive detention he will not set it out in the grounds of detention served on the person detained to make an effective representation against it."

It will be noticed that no reference is made in the judgment either to the case of Kishav Talpade or that of Abdul Latif Afghani. Although the reference is made to the consideration that if the material was regarded insufficient by the detaining authority itself it would not have been set out in the grounds of detention so as to enable the detenu to make an effective representation against it, the reason why the learned Judge held the order vitiated was precisely the same as appealed to Sir Maurice Gayor in the Federal Court case. It is also to be noted that the ground which was being held bad was in the sense in which I am using those expressions a reason rather than a ground.

87. I refer next to another Full Bench case decided at Lahore, namely Nasim Fatma v. The Government of West Pakistan (P L D 1967 Lah. 103): The point was considered in the following passage of the judgment which is quoted from page 145 of the report :

"The order of detention by Mr. Zafar Ali Khan in the case of Mian, Manzar Bashir and his companions was also assailed as being mechanical reproduction of most of sub rule (1) of rule 32 and because in the grounds of his detention are mentioned security and defence of Pakistan and Pakistan's relations with any other power, which it is alleged, could have no relationship with their activities, either alleged, or reported to Mr. Zafar Ali Khan. It may be that these grounds- were irrelevant, though we are not in a position to bold so, in view of lack of availability of the material, on which Mr. Zafar Ali, Khan based his order, but even if these grounds were irrelevant, there were the grounds relating to public safety and maintenance of public order, on which an order of detention could be made by Mr. Zafar Ali Khan. We would invite attention to the observations of Muhammad Munir, J., in Rafique Ahmad Shaikh v. Crown, that the proposition that if some of the grounds disclosed contained grounds some within the emit of the Act and some outside it, the order of detention would be vitiated wholly, was somewhat too broadly stated and was of doubtful correctness."

It will be noticed first that the learned Judges are not in fact holding that the grounds, or reasons as I would call them, were really irrelevant but are holding, on the assumption that they were, that this would not vitiate the order. This clearly, I think, is reasoning in conflict with the observation: of the Federal Court and reliance is being placed upon the remarks of Mohomed Munir, C. J., which I have already quoted. But I do not think that the learned Judges, if I may so with extreme respect, really considered the question, because after having referred to those remarks they go on to say "Be that as it may the order of Mr. Zafar Ali Khan is now of academic: interest". The main grounds upon which that decision is based, therefore,, would remain unaffected by a decision on this point and it does not seem as if the learned Judges intended really to lay down a rule on this particular question.

88. Before I refer to the only Supreme Court case on this point it would be convenient to refer to an unreported judgment of this Court to,, which I was a party. In Constitutional Petition No. 385 of 1972: Chandar Bhan v. Government of Sind the grounds of detention served on the detenu recited four matters which had led to the satisfaction of the detaining authority that an order was necessary. One of these was the association of the detenu, with one Sobho Giancbandani. This my learned brother Fakhruddin held to be no reason for making an order and observed:-

"Now it is obvious to me that to have connection, howsoever thick, with one Sobho Gianchandani unrelated to the maintenance of public order etc., cannot under rule 32 be the reason for making the impugned order of detention. Nothing has been said or alleged against Sobho Giancbandani in the grounds. On behalf of the detenu it was stated at the Bar that Sobho Gianchandani is a free man and is a practising advocate at Larkana. Be that as it may, mere association with a person howsoever undesirable re may allegedly be from the point of view of maintenance of public order or safety, cannot justify the inference that the detenu was acting in a manner prejudicial to public safety or maintenance of peaceful conditions. This ground, therefore, in my view falls outside ambit and, therefore, extraneous to the said Rule 32 of the Defence of Pakistan Rules."

In my concurring judgment I held that yet another ground was one upon which detention could not be ordered but otherwise agreed with Fakhruddin, J. Both of u9 held that the "ground or grounds" were irrelevant: clearly "reasons" in the sense which I am attaching to the word. Reference is made in the leading judgment to the Federal Court case and the Bombay case and to a Madras case which I have not quoted and finally to Haider Bakhsh Jatoi's case which is cited as binding authority for the proposition that in such circumstances the order would be wholly bad. Here I think. as I will presently attempt to show, we were wrong: so far as the actual decision goes however, it relates to the effect of a bad reason rather than a bad ground although, I confess, we were not consciously making that distinction.

89. I come next to the case of Haider Bakhsh Jatoi which I have earlier referred in which again the remarks of Gayer, C. J. and Muhammad Munir, C. J., are considered and Mr. Justice Yaqoob Ali who delivered the judgment of the Court then proceeds to observe:

"Even if the latter view was adopted it will not advance the case of the appellant as the grounds that the respondent was an irreconcilable opponent of One Unit or that he criticised the Government as autocratic and dictatorial were hardly grounds on which the satisfaction of the Board could be based that there was sufficient cause for detaining the respondent."

In the context his Lordship is using the words "latter view" as referring to the observations of Mr. Justice Muhammad Munir. As I understand his Lordship I cannot read the passage as meaning that the Supreme Court is endorsing the view taken by the Chief Justice of Lahore. On the contrary, if anything, it seems to me that the use of the words "even if" at the begin ning of the passage quoted would imply a preference against it but a refusal to consider the matter more carefully because a decision on the point would not affect the decision in the case. I think this meaning gathers strength from the fact that his Lordship had earlier, as a Judge of the High Court, expressed that view in P L D 1965 Lahore to which I have already referred. In any case I am in agreement with the view advanced by learned counsel on both sides that the Supreme Court left the matter open. But open for whom? That their Lordships left it open for themselves to decide on a future occasion is quite plain. I cannot, however, regard the judgment as an invitation to the High Courts to disregard the decision of the Federal Court in Keshav Talpade's case and to treat the matter as if it was res integra. I do not say that the Supreme Court necessarily affirmed the Federal Court view but I do think it safe to say that they left the authority f that case, whatever it was, unchanged. In the view that I have taken of this Court's duty to follow the decisions of the Federal Court of undivided India, unless dissented from by the Supreme Court I would. therefore, regard the Federal Court view as binding and, therefore, hold that if one reason stated for an order of detention is bad the whole order is l necessarily bad. In dealing with grounds, however, I do think that the learned Attorney-General is right in saying that the case is distinguishable, for a case is after all authority for what it actually decides and the question. of the effect of a bad ground upon the validity of an order was not before the Federal Court at all. Although I am inclined prima facie to agree with the learned Attorney-General that any cases which hold that bad ground vitiated an order would have .to be reviewed in the light of the decision of the Supreme Court in Jilani's case, for part at least of the reasoning which supports that view is based upon the subjective nature of the detaining authority's satisfaction, I do not think it necessary for me in this case to embark upon a discussion of that question because of what I have just held as to the effect of the Federal Court case. In my view, as will be seen when I examine the material before us in this case, the question does not really arise and ought therefore to be left for examination in a more appropriate case.

90. I turn now to an examination of the plea of the learned Attorney -General that in examining the reasonableness of an order passed during an emergency, as opposed to one passed in normal times, the Court must have due regard to the nature of an emergency and therefore to the nature of the responsibility of the executive in such a time. Reliance was placed on a passage in the judgment of the Supreme Court in Shorish Kashmiri's case. The argument there advanced by the then Attorney General was that emergency legislation ought to be given a different interpretation from that which would be proper to normal peacetime legislation. In repelling this contention Mr. Justice Hamoodur Rahman contented himself by quoting the well known words of Lord Atkin in Liversidge's case to the effect that "amidst the clash of arms the laws are not silent. They may be changed but speak the same language in war and peace". His Lordship then went on to observe :

"Having said this much, however. I must, also point out that whilst laws cannot be interpreted differently at different times or in different circums tances the existence of the emergency will have a material bearing if the Courts are to decide upon the reasonableness of the action, for what is reasonable in the time of an emergency may well not be reasonable in ordinary circumstances when the emergency has ended. The emergency will, therefore, be a relevant factor in determining the reasonableness of the act which, as we have already held, has to be considered in a limited sense by the Courts in the exercise of their power of judicial review."

By this observation I am of course bound and would in any event respectfully agree. I think it is inherent in the concept of reasonableness that the time during which an order is passed must be taken into account for the purposes of deciding what is or what is not reasonable. When it is said that the criterion which the Court must adopt for examining the validity of an order of detention is whether a reasonable mind could have reached such a v conclusion, I think it must follow that one is not talking of a reasonable man in the abstract, isolated from any consciousness of the facts of a prevailing situation. On the contrary the reasonable man envisaged is a reasonable man in the position of the detaining authority, armed with the power, possessed of all the knowledge of events and conscious of all the responsibility of the detaining authority. If then such a person acts, it must be with the knowledge of the existence of a period of emergency and all. that is implied with it. But by emergency here I think ought to be meant not merely the fact that there is in force a Proclamation of Emergency but rather an emergency which necessarily influences the opinion of a detaining authority in considering what it ought to do to avert an apprehended peril. Clearly what I have in mind is not a Proclamation of Emergency (with a Capital E) but an emergency in the ordinary sense in which the expression is to be understood ; in order to keep the two concepts mentally separate and to avoid confusion which might be caused by the use of the same expression I propose for the word `emergency' in its ordinary sense to use the expression `intranquillity' confining the word "emergency" for use as a part of the! phrase "Proclamation of Emergency".

91. To make the existence of a period of intranquillity dependent upon a Proclamation of Emergency, is I think, to lose sight, of the reasonable man altogether : If the whole reason why a detention order is to be differently regarded at different times is the difference in the situation which compels the order or, at any rate, forms the background against which action is taken, it must follow, I think, that the Court itself be convinced of such a situation before it would give the benefit to the detaining authority of an order being examined, in the light of a period of intranquillity. While, therefore, it should be possible to reach the conclusion that there is intranquillity even though there is no Proclamation of Emergency it should equally be possible to hold that, despite a Proclamation of Emergency there is in fact no intranquillity. For otherwise startling results might well follow. Suppose for instance the Constitution did not provide for a Proclamation of Emergency does it follow that, within the limits of the power conferred by legislation the executive cannot act except on the footing that its action must be judged as if taken in ordinary times ? The Proclamation of Emergency after all even in the Constitution does no more than to enlarge the scope of legislative power and to prohibit, if the President chooses to make an order a challenge in the Courts to action as being in contravention of fundamental rights. Even if such a provision did not exist, I conceive that any action taken by the executive in exercise of any enhanced powers that the Legislature choose to confer upon it or even its ordinary normal powers would receive at the hands of the Courts that kind of examination which the Supreme Court has said, in the case of Shorish Kashmiri, should be accorded to actions taken in disturbed times.

92. I am far from wishing to be understood to mean that the fact that there is a Proclamation of Emergency is not relevant at all to the finding that there is also a period of intranquidity. On the contrary, I think, it would be a very weighty circumstance for coming to the conclusion that 9ntranquaillity does in fact exist, indeed it would be of near-conclusive effect. Nevertheless the actual finding that there is intranquillity, must be the finding, I think, of the Court. In coming to that finding the Court is of course handicapped by the fact that it can take notice only of such facts as are proved before it or are such that a Court is allowed to take judicial notice of them. For that reason too, it would behove a Court except for grave reasons, to accept the Proclamation of Emergency as the equivalent of a period of intranquillity. The executive has after-all vast means of knowledge denied to the Court and, in the nature of things, must have access to valuable information which would be its own basis for holding that there is such a set of circumstances as justify the Proclamation of Emergency or at least to pass orders of the kind that I am dealing with just now. To require that all these matters be proved before it with that meticulous care which we normally and, quite properly, insist upon for the proof of facts, specially criminal charges would, I think, be to arrogate to ourselves a function which more appropriately belongs to the executive which is also more adequately equipped to perform it. It is for this reason, I think, that a Court would ordinarily accept a Proclamation of Emergency as proof of the existence of a period of intranquillity. Nevertheless in a given case, I think, that finding must be recorded, expressly or impliedly, by the Court itself. For, having set up the criterion of examining the order of detention by the standard of a reasonable man the Court must ask itself what is the nature of the time during which the order is being passed ? All this I think necessarily flows from the observation of the Supreme Court which I have quoted.

93. An interesting consequence might follow from this. Suppose in a given case the Court comes to the conclusion that at the time the order of detention was passed the country was going through a period of intranquillity and is on that account prepared to treat, as reasonable, an order of detention as on the day that it was passed. Nevertheless by the time the question comes up for examination in the Court that period of intranquillity has passed : should the Court then uphold the order even though satisfied that a reasonable man could not then pass such an order ? Take a hypothetical example which, I confess, is oversimplified for it is only in the light of such an example, I think, that it is really possible to consider the validity of the principle I have in mind. Suppose A delivers a scurrilous speech derogatory to a personality whose memory the people of Pakistan cherish and who is no more with us. As a consequence let us assume that there is in the immediate neighbourhood a strong resentment resulting in considerable tension. In such a situation B, either for political ends or moved by righteous indignation, proposes to make a speech inciting the audience to go and attack A. It can hardly he doubted that this would be a period of intranquillity even though both local and temporary in character. In such circumstances an order of the relevant executive authority detaining B could scarcely be regarded as improper. If, however, by the time a petition moved by B challenging the validity of his detention comes up for hearing, it so transpires that A has in the meantime died of natural causes should the Court still say that the continued detention of B is necessary or that a reasonable man could direct that he be continued to be detained ? It is to be remembered that an order of detention is after all one of continuing operation and I think I may, therefore, venture to say that it will have continued validity only so long as the basis upon which its validity depends continues to exist. During the course of his argument I put this very example to the learned Attorney-General who was at first inclined to agree that in such circumstances the order should not be upheld. The following day. however, he took the position that the Court has, after all a limited jurisdiction which is to examine the validity of the order when passed and, having done that, its function is over. In that view of the case, he thought, that the Court should be bound to hold that the order was valid. There is, I admit, force in what the learned Attorney-General said but that view of the law leaves me with the uneasy feeling that in such a case the decision would be highly technical. Moreover I think it would ignore the standard of reasonableness now clearly a part of the law on the subject.

94. The argument is not entirely novel ; it was mooted at least as early as Ghulam Jilani's case for in the report of the judgment of the Supreme Court in that case appears at page 383 this sentence : "each of them has thought and said that Tashkent Declaration was not in the best interests of Pakistan and it was averred that by the time the writs were moved the Pakistan Government itself had admitted that India was avoiding a solution of the Kashmir Problem and this was advanced as a sufficient reason for saying that there was no further justification for continuing their detention". This argument was not commented upon in the judgment and one reason for this possibly may be that in that case, by the time the Supreme Court heard the matter, the detenus had in fact been released and in the ordinary course the Supreme Court would not have proceeded to give judgment. The following passage from the judgment at page 400 makes the position ,clear :-

"It remains to mention that during the course of the -hearing of these appeals all the three detenus were released by the Provincial Government. In the ordinary course, such release would have had the effect of causing the appeals to abate, but in these cases, learned counsel urged that since in each case the detention had exceeded a period of nine months, the detenus had thereby incurred disqualification in respect of their right to stand for elections to representative offices, by the effect of section 53 of the Electoral College Act and section 106 of the National and Provincial Assemblies (Elections) Act. Each of them was a politician of standing and was gravely prejudiced by this result in respect of his future political career and each of them was therefore interested to establish that his detention was illegal. The Court was therefore asked to record a decision as to the legality of the detention order of the 16th February 1966."

Whether or not, ordinarily, an order of detention is to be examined only from the point of view of its validity at the time that it was passed, clearly in this case at least the Supreme Court concerned itself only with its validity at that point of time ; the question of continuing validity did not arise.

95. In Baqi Baluch's case, however, the Supreme Court did use language which would seem to reject the view that the Court may refuse to sustain an order of detention on the ground of changed circumstances. At page 326 of the report the observation is made : "The validity of that order has of necessity therefore to be judged on the basis of the law prevailing on that day.." It is to be remembered, however, that the sentence occurs in the context, of the examination of the argument, that the amendment made in section 3(2) of the Defence of Pakistan Ordinance to which I have earlier referred, made a change in the law in that it was no longer open to the Court to examine the validity of an order on the basis that the satisfaction of the detaining authority was to be regarded as objective rather than subjective.

96. Again in the case of Shorish Kashmiri, the Supreme Court observed : "The Court must nevertheless in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be given, and the circumstances in which it came to be ordered", (Page 32 of the Report ; means that in the circumstances which are to be examined are those which existed at the time of the making of the order. Those circumstances have of course to be examined in every case but I do not think, with very great respect. that their Lordships are laying down that the circumstances !prevailing at time of examination can never be relevant. The sentence occurs again in a different context ; in the paragraph from which it is taken what was being reviewed was power of the High Court under Article 98 of the 1962 Constitution and this was held to be "untrammelled by the formalities or technicalities of either section 491 of the Civil Procedure Code or the old prerogative writs of habeas corpus not only with regard to the ,sires of the law or the officer concerned but also enjoined upon them to .satisfy themselves that the detention is not in any manner contrary to law."

97. I am, therefore, respectfully of the view that the Supreme Court has not in any of these judgments finally rejected the proposition which I have suggested. The learned Attorney-General, however, said that once we are satisfied that a period of intranquillity has prevailed since the 1971 War we ought not to hold that the circumstances will have so radically changed that a Court ought to come to a different conclusion at the present time. That there was a period of intranquility at that time can hardly be doubted. As I have said before I would regard the Proclamation of Emergency as near-conclusive to the finding that there is a period of intranquillity. Even after the War was over the circumstances were such that I think we can, even on the basis of judicial notice alone, have come to that conclusion in the absence of Proclamation of Emergency. A substantial portion of the territory of the country was in foreign occupation and de facto separate. Half or more than half of its population was under foreign subjugation and there were a series of crises resulting from such matters as labour disputes and language controversies. While it is the sincere hope of every Pakistani that the situation is today much better, I think in holding that there is no longer a period of intranquillity, I would be guilty of coming to a conclusion on inadequate material and arrogating to myself a function which I have earlier said properly belongs to the Executive. Feeling, therefore, that 11 should hold that there is even now a period of intranquillity I refrain from examining this question further since the result would, anyhow, be academic.

98. In approaching the material which the learned Attorney-General: has placed before us and which is the basis of the satisfaction of the detaining authority that it was necessary to make an order of detention in the present case he emphasised his earlier contention that Article 9 of the Interim Constitution was not attracted and that, therefore, there was, neither from the Constitution nor from the statute itself, to be derived any requirement binding on the detaining authority to supply any grounds to the detenu: If we accept his contention and t have in fact accepted it-he went on to say that the grounds which have in fact been supplied in this case are not, again using the artificial terminology that he suggested and I have adopted, to be looked at in the light of any such requirement. We could not, therefore, examine these by any such standard as adequacy, precision or other test intended to ensure that the detenu had a sufficient opportunity of meeting what was being used against him as a foundation for the order. Here I think the learned Attorney-General was entirely right ; obviously, to say of any of these grounds that they were based on material which could not yield an inference on which alone a reasonable man could act or that they were so imprecisely formulated as not to enable the detenu to make an effective representation would, in the view of the law that I have taken, be entirely beside the point. I think it would be going a little too far, however, to say that the grounds which have in fact been drawn up by the detaining. authority and communicated to the detenu cannot be looked at for any purpose at all. They are surely an indication at least of the mind of the detaining authority. Although the learned Attorney-General himself agreed that this was so, he pointed out that if, despite the absence of any statutory or constitutional duty to furnish to the detenu any such grounds. The detaining authority as a matter of propriety and honesty thought it fit to give him such grounds for the purpose of satisfying itself that the order should or should not be rescinded or extended, that ought not to be seized upon as a reason for invalidating the order even if the grounds went somewhat further than the material warranted. He said these grounds were furnished, as it were in the way of a show-cause notice and it may well be that the detaining authority might even put the case against the detenu at its worst or exaggeratedly so that be would then have as full an opportunity as possible to give an explanation which might satisfy the detaining authority that its action was not necessary. Relying upon the decisions of the Supreme Court he said it was his duty as the representative of the detaining authority in Court to place before us the entire material upon which the detaining authority in fact proceeded and leave it to us to judge whether a reasonable man could on that material have taken the action which in fact has been taken. In that view of the matter the grounds formulated would have no bearing on our conclusion as to the justifiability of the action.

99. He supplemented this argument by another consideration. What ever be the position in regard to grounds strictly so-called and required by the provision of the Constitution or the statute grounds such as are given in the present case would not be findings made in water-tight compartments which could not overlap each other; some of the grounds may well add to or explain another ground. He wished us to examine the grounds, if at all, therefore, as a whole contending that some which might otherwise seem immaterial or even flimsy would gather strength and more significant meaning from the others. I think there is considerable substance in what the learned Attorney-General said and, relieved as we are of the necessity of examining the grounds from the point of view of asking whether they satisfied the requirements of any statute or enabled the detenu to make an adequate representation, we need not hold the order unlawful if the material which has been placed before us could satisfy us, in the light of the tests laid down, that the order is a proper one.

100. One question, however, which has caused me considerable anxiety whenever we have looked at the material or the grounds may I think be stated, though I shall have to revert to it at the end of my examination: of the material. It is true that we have to see on the material whether a reasonable man could take a view that it was necessary for the purposes and objects envisaged by the statute to make an order of detention. I do think, however, that the detaining authority could hardly be expected to make up its mind on this point unless it also is able to make up its mind that the detenu is likely to indulge in a specified form of activity which is prejudicial to one of such objects. It does not suffice, I think, to say that he is likely otherwise to act in a manner "prejudicial to the safety etc. etc.". It is also essential that the authority should come to a conclusion as to what the detenu is actually likely to do; such apprehended act, of course, must be one which is prejudi cial to such objects. For instance in a given case the apprehended activity may be that, in order to supply information to a foreign hostile power, the detenu was likely to commit acts of espionage in relation to certain military installations. That this would be activity prejudicial to the security of the State can hardly be doubted. It would not suffice in such a case merely for a detaining authority to believe that he would act in a prejudicial manner but I think it necessary that the detaining authority should be satisfied that he is likely to do certain things which are themselves prejudicial to the security of Pakistan. I should then expect the detaining authority to state what the particular apprehended activity is. Of course, I would agree that, it not being necessary to state this conclusion in express terms anywhere; whether in a given case it is necessary or not would I think depend upon the circumstances of that case. I would even agree that where. as in this case, grounds have been formulated they need not necessarily reflect such a conclusion though of course that would be eminently desirable. I do expect however, that it should be possible at least now while the case is being examined in Court for the apprehension to be somewhat more precisely stated than has been in this case. I recognise that it is not possible about a future apprehended activity to describe it with such precision or in such detail as it is possible to describe an event which has already occurred. To pursue the example which I gave, it may not be possible to state on what particular date, at what particular place and to which particular person the information obtained by spying would be passed on, as it would be possible in regard to a past event to say that at such and such a time, at such and such a place and to such and such a person the information was in fact supplied. But the nature of the actual act apprehended, as distinct merely from its legal description, is something which I think the detaining authority should be able to state. At least it should now be possible on the basis of the material to say what was the act which it was apprehended the detenu would commit if not detained.

101. It will be remembered that the detenu was arrested on the night between the 4th and 5th of February 1972 in pursuance, as it transpired later, of an order of the Martial Law Administrator, Zone `D' (i e. the Province of Sind) under Martial Law Regulation 78. This detention was held unlawful by the Supreme Court by a judgment dated the 20th of April 1972 on which date however a fresh order was passed against the detenu by the Governor of Sind under rule 32 of the Defence of Pakistan Rules. Not until the 29th of May 1972. however, were any grounds supplied to the detenu for his detention but on that date a letter of the Home Secretary, Government of Sind, addressed to the detenu enclosed these grounds. The order of the Governor of Sind was superseded by an order of the Central Government dated the 7th July 1972 which has been extended by an order of the same Government dated the 4th of October 1972. Both these orders are accompanied by a set of grounds which are identical and which are very similar to those formulated by the Government of Sind. There are what, on the surface at least, are minor variations which have been the subject-matter of considerable debate before us as learned counsel for the detenu sought to make out first, that the grounds set forth by the Government of Sind did not exist in the sense of being based on actual material, at least in part, on the 20th of April 1972 and, second, that they were carefully varied by the Government of Pakistan in order to make them conform more to tae material. I do not propose to enter into any examination of this and similar contentions or the apparent contradiction between this argument and the contention that nobody in the Central Government has really applied his mind to the material for obviously any variation, however, skilful, necessarily implies the application of such a mind, because I think the learned Attorney- General is quite right in saying that the order which must now be considered is the one dated the 7th of July or the one dated the 4th of October. In matters of this kind the Court is always concerned with the legality of the present detention and the present detention alone. The fact that a detention x was, at some previous period, illegal does not invalidate the present detention, though, of course, in a particular case the legality of the first might affect the legality of the second upon some such grounds as mala fide. I do not therefore think it necessary to enter into what I consider in the circumstances of the instant case a superfluous examination of the grounds earlier given by the Government of Sind. The grounds as now set forth are as follows:-

"(1) From about March 1971, you started a systematic campaign to patronise anti-State elements of East Pakistan and to encourage them in their ideas of secession and ultimate disintegration of Pakistan.

(2) In March 1971, you wrote a letter to Mrs. Rukkia Kabir in London, an East Pakistani who was residing there, in which you had stated that you were in constant touch with Dacca, that the country was going apart, that East-West separation had taken place, and that you were most happy about this, even though the country had been divided and that you were proud of what the Bengalis had done.

(3) On 27th March 1971, you held conversation with Masihur Rehman of the United Bank Limited, an East Pakistani, wherein you spoke of non-co-operation parallelism guerilla action and sabotage and expressed probability of a foreign country walking in.

(4) You maintained close contacts with one OSAMU OKUDA, a Japanese national with whom you held political talks concerning the blow up in East Pakistan and the dismemberment of Pakistan.

(5) You also maintained close contacts with one representative of a foreign country, with whom you held close door discussions in your Office in the Cotton Exchange, Karachi on August 18, 1971.

(6) In about February 1972, at a dinner in the house of Mr. Afzal Khan, Karachi, you stated that you were no longer a Pakistani and the whole of Pakistan no longer existed."

It would be convenient to deal with the first three grounds together. Indeed it was the learned Attorney-General's own case that these are connected and that ground (1) is a general statement particularised by grounds (2) and (3). It is to be noticed that the campaign spoken of in ground No. (1) is stared to commence in March 1971. In passing I might note that the corresponding ground given by the Government of Sind puts the commencing point as the detenu's dismissal from Government service which took place almost two years before March 1971. March 1971, it is also to be remembered, is as we can judicially notice the period of a significant and unhappy chapter in the history of our country. For about three weeks of that month ending with the night between the 25th and the 26th of March the Awami League's efforts to set up a parallel Government in East Pakistan had reached their height. On that night however began the military action ordered by the then authorities. It is, of course, neither my desire nor our function o enter into any discussion of the political situation or the right and wrongs of the matter. I merely state that it was a period of an extreme turmoil and the beginning of the last chapter of events which ultimately led to the 1971 War and the de facto separation of East Pakistan. From the 4th March 1971 onwards communications between the two wings were disrupted and for private citizens at least, well nigh impossible. The particular significance of the date, 27th March 1971, stated in ground No. (3) is that that would be the day following the evening when the public of West Pakistan generally had any Information as to what had happened on the night before in East Pakistan. The fact that the conversation spoken of is actually admitted by the detenu, though of course he denies the inference drawn from it as he denies the accuracy of the version reported, is of importance. Similarly the letter referred to in ground (2) which is entirely admitted and in relation to which there can be no question of accepting or denying a particular version has to be examined in the background of the situation then prevailing. The significant conflict between the detenu and the respondent on this point before us is the date upon which the letter was written. It does not itself bear a date and both sides have tried to show by intrinsic evidence what the date could be. According to the detenu it was written before the 25th of March or at any rate before news bad come to Karachi of the military action while it is conten ded on behalf of the respondent that this was after the 26th, probably on the 27th.

102. A further comment upon the persons named in grounds (2) and (3) might be appropriate before I go on to examine the material which is said to support these three grounds. Mrs. Ruqiya Kabir is an East Pakistani who was at the relevant time in London engaged in some research on some aspects of the history of the sub-continent. She was employed by the Government of Pakistan for this purpose or at least her research was subsidised by the Government; for the purposes of this case it does not greatly matter which. She was a married lady and had three brothers at least one of whom the Masihur Rehman referred to in ground (3), was then employed and continued to be employed in the United Bank Ltd., at Karachi. The other two are named Razaur Rahman and Ziaur Rahman both of whom normally reside in Dacca. With the last two brothers the detenu had business relations into the details of which it is unnecessary to go for the purposes of this case. Suffice it that these are admitted by the respondents who, however, claim that the relationship was more than a business relationship. They claim and indeed it is admitted that the detenu was extremely friendly with the whole family. A certain special relationship between the detenu and Mrs. Ruqiya Kabir is suggested and this also is admitted except the precise nature of it. I have found it quite unnecessary to decide whether the detenu is speaking the truth when he denies the suggestion made by the respondent. On any version of the matter the two were very fond of each other, each regarding the other with considerable affection and resposing in the other a large measure of trust and confidence. If any definition of the relationship of the two is necessary for the purpose of this case, I think what I have stated suffices.

103. In commenting upon this material the learned Attorney-General asked us to keep two matters in mind. The first I shall deal with only shortly as I have in fact already noticed it. This is the background of the prevailing situation from December 1971 onwards and specifically he asked us to consider six circumstances:-

(1) that in December 1971 the country was in fact dismembered and East Pakistan occupied by foreign forces,

(2) that there was aggression even within West Pakistan and a large area of that wing was in Indian hands,

(3) that a very large number of Muslims had been butchered in East Pakistan,

(4) that a discredited group of senior army officers were compelled to handover power to representatives of the people and there was in the country a general sense of insecurity occasioned by the threat of disintegration and the fear that the very concept of Pakistan is in jeopardy,

(5) that the first objective of the new President was to attend to the matters I have enumerated including saving the morale of the army, and

(6) that many persons entertained feelings perhaps quite honestly of deep frustration; at the same time relations between businessmen and labour were at least difficult; the police sometimes on strike and the bulk of the army on the frontiers.

104. Now, so far as this is concerned I have not. the least doubt, as I have already stated, that without taking notice of any one particular event or fact we can and should take judicial notice of the entire prevailing situation as, in the language in which I put it, a period of intranquillity. I quite agree that nothing in the material need show all these facts and that that we ought not to ask to be satisfied that the detaining authority had before it actual evidence of all these matters. I should be willing to go a step further ; while denying that as a judge I can take notice of anything except what is proved or what is capable of being judicially noticed, I think I must recognise the fact that the executive, which is the detaining authority, has far more detailed and complete information of such subjects and that not only it may take into account all such matters but that it would be failing in its duty if it did not. I am therefore quite prepared to bold that what sufficed to give satisfaction to the mind of the detaining authority is not simply what is stated in the material but all the background of its own knowledge. All this must however be of a general character; in regard to anything which concerns or connects the detenu specifically there must be before it material upon which it could reasonably act. It cannot be heard to say that, over and above the material which has been placed before us, the detaining authority has some other information which connected the detenu, and, to be fair to the learned Attorney-General, I should like emphatically to say that not even by implica tion has he tried to pursuade us otherwise.

105. The other matter which the learned Attorney-General wanted us to bear in mind was the character and the personality of the detenu, but -this of course only so far as it appears from the record. Now this character and personality upon which reliance was placed is evidenced by these facts. It is pointed out that the detenu was a senior civil servant who had risen rapidly and high entirely due, of course to his own undoubted ability. The pinnacle of his career was during the regime of Field Marshal Muhammad Ayub Khan to whom he became very close. It has been brought out that on very important occasions indeed he acted as the then President's official spokesman instead of the appropriate Minister. The learned Attorney -General relied in this connection on certain other matters also but I do not think I need dilate upon them for it is admitted that the detenu enjoyed the high favour and confidence of Field Marshal Mohammad Ayub Khan. Contrasted with this was his position after the advent of General Mohammad Yahya Khan who distrusted him almost instantaneously. It is unnecessary to speculate on the reasons for this. It might be the very fact of what was regarded as his privileged position with the Field Marshal or it might be in some way associated with the admitted fact that during the time that the 1969 Round Table Conference was in progress it was the detenu who brought Shaikh Mujibur Rahman to the house of the General, apparently clandestinely, at the behest of the Field Marshal though the detenu denies that be was present at any conversation which took place between the General and the Shaikh. This sudden fall, the learned Attorney-General said, would naturally frustrate and embitter the detenu and the fact, pleaded by himself, that the Government of the day then impeded even his efforts to set up in a business to earn his livelihood could hardly have mitigated his resentment. As a senior civil servant, particularly at a time when the bureaucracy had rather more than its fair share of political power, the detenu would naturally be a person of wide acquaintance and connections and, probably, influence. When to this is added the fact that he was the Editor in-Chief of a group of newspapers which included a very leading English daily newspaper of the country the learned Attorney-General claimed that expressions of opinion from such person on political matters, even if not motivated towards a sinister object could well have disastrous effects. I think the learned Attorney-General had put this summation of the detenu's influence and propensities somewhat strongly but I would be quite prepared to agree with him that the detaining authority could take this view of his capabilities and I have therefore given the benefit of every possible construction of the material before u9 to the detaining authority within the limits of course of what a reasonable man could think.

106. Reverting then to the material there are first a series of letters from Mrs. Ruqiya Kabir to the detenu of which photographic copies have been placed. There is of course no question of their authenticity being denied. The earliest of these letters bears the date 28th November 1968 and the last is dated the 15th of December, 1970; they were all written from London. On the one dated 6th of June 1970 particular reliance has been placed and I am therefore reproducing it in extenso except for some short passages which are, I think, of no interest to us at all:-

"You are jobless now. How does it feel like being jobless. I suppose you. know that I am rather pleased about it. So don't expect any sympathy from this quarter. Problem with you was that you were too damn efficient a bureaucrat, and efficient bureaucrats are not good to have around when the Government is dictatorial; it just makes that Govt. last longer. Ayub's Government survived so long because you people made it a success in certain fields. It did the country economic prosperity in certain limited cases. But in the long run it did the people no good. Because it just brought them Yahya Khan. If we were allowed to blunder through all by ourselves may be we would have learnt something. Lucky for you and I and all others that the present regime has successfully destroyed the bureaucracy machinery through which some sort of semblance of order was maintained before. Now whatever Yahya Khan or any other Khan wants to do they will have to do it in a bloody way. I know politician has not learnt a thing-but I don't think it would really matter so much. Whether the present regime continues with the Martial Law or whether they set up a puppet Government of 1935. Act, the very fact remains, East Pakistan is fast approaching a state of chaos. Only out of that chaos we will emerge as a decent self-respecting State. If we cannot do that we will just be wiped out, that's all. What I don't see at all is the survival of Great Big Islamic State of Pakistan. Muslims of this Sub-continent played up Islam to the hilt. Caused the death, millions got a State for themselves, pretending that's going to solve problems. As if just because the members of their Government are born Muslims it will solve all their . problems. Historically Islam was a national religion and nationality is one thing completely lacking among our people. Wave the red rag of Islam under them and they go mad. Hence Martial Authorities whose people stick to the principles of Islam. Jamaate-Islami is howling that Islam is in danger if they don't lead the country. Muslim Leaguers' and sundry version of it want to be the defenders and upholders of Islam and their version of democracy. Even Moulana Bhashani off and on pops up with Islamic socialism yet this sort of vicious Islam can only be found in Pakistan and may be in Saudi Arabia. What do you think is basically wrong with us? Why can't we leave Islam alone or may be for people like you make Islam a personal matter and get on with the job of doing something for the people. What's wrong with the State where you and I and Moulana Moudoodi would be sent off to the field to do a bit of hard physical labour for a change. If I must have my head chopped off, I would much rather have lit chopped off for the cause of humanity than for the cause of Islam.

I seem to be talking too much about politics-that's because of the mess politicians are making all over again. Anyway to hell with politics at least for the time being.

I suppose what I am really worried about is the fact that Martial Law Administration is continuing beyond October. Even a vague form of civil Government is desperately wanted by me. You seem to have too many in the Army. I do feel frightened of what other things they might think up to harrass you. No that they may make an attempt to try you further. What he could not tell me whether it is going to be a judicial trial or some sort of nasty little sneeky or cowardly thing they have been doing till now. It is so excruciating to wait and wait. You sounded so relaxed and happy that l relaxed with you. Now again the waiting has started. It is a pecularity unusual feeling. It is so terribly difficult to face all these form so far. You hardly can manage to see the silver lining. You always think the end you just wait. I wish I was there in Dacca. I would have faced it better. Worst is not been able to write to you. Not being able to say what I want to say . . . .Now desperately I want to see you and talk to you. Yet I don't know at all when that will be. And I go on living, talking, laughing and carry on with my work. The day the news of your dismissal came out in the paper, Farhad looked terribly upset.

We discussed whether anything more can happen. I must have looked thoroughly calm and rather aloof-may be also disinterested. Because a few days after when one morning I told him that I dreamt of you the whole night, his rather abrupt comment was "about him too". Apparently he thought that I was not really touched by all what you are going through. Even if his judgment was not that harsh he certainly felt certain lack of response in me. Funny: Is not it? Funny the way you can always cover up your feelings so that nobody really knows what you are going through. What else can you do? I have to stop myself from thinking even just to survive. How else can I possibly survive when I am all alone so far away from you. I can't possibly face it. So I just try to turn away from it. Turn away from that future might bring. Future might even bring the partition of the country, you know. Then how do I see you ever. So what also can I do but nothing about the future in fact not even think about the present if I possibly can . . . . . . . . . .I resent not being able to write to you that whenever I want to. I resent the Censors and I resent Martial Law Government. I resent their interference in my personal life. I have always resented that and also I hate being bullied and I certainly feel bullied. There is a peculiarly indirect way of bullying going on. I resent that they should pick on you when I am not there. I resent also that I should be forced into a position where I won't even be able to write what I want to write. Damn them all.

Please do write to me immediately. I am desperate to know whether they are going to leave you alone now or do they intend to carry on with their vendetta. What also do they want to do. It would have been so much easier for me if all this had been happening to me. I would not have to worry then. But it is impossible to go on waiting, indefinitely and knowing what to expect-when it concerns some one you love. How does one go on waiting. Farhad is so utterly vague about everything about the future. It only makes me more worried. I suppose he is avoiding to tell me the worst which can happen or may be he really does not know. I wish I knew. It might have been easier if I had known.

I know it is rather silly of me to be hysterical. There is nothing you can do to make it easier for me, and I am certainly making it difficult for you by being this silly. But I needed to do that-so just ignore it. They all can go to hell to whatever they want . . . . . . . .Rokiya."

107. Now the Attorney-General looked upon this letter as indicating clearly that Mrs. Ruqiya Kabir was working for or, at least, was deeply interested in the separation of East Pakistan. On the other hand Mr. Manzoor Qadir was at pains to show that it brought out her personality as one of a person devoted to a single Pakistan and the freedom of Muslims generally in the sub-continent, resentful not of West Pakistan as such but of the Military Government. Now, although I will of course examine several passages in this letter, I think I should make it clear that in my view any such close dissection of the letter is inappropriate in these proceedings. T have always carefully guarded myself against such an approach for it is too dangerously near the attitude of an appellate Court sitting to correct, if necessary, findings of fact given by the detaining authority. I am concerned only with seeing whether there is anything in these letters, as indeed in all the remaining material, which would reasonably induce the detaining authority to take the view that it has taken. It will be noticed that the letter starts with a criticism of the Ayub Government which is described as dictatorial supported by too efficient a bureaucracy. The object, however, of the writer is not to attempt an essay upon that Government; the writer has the personal angle of some concern with the personal unhappiness of the detenu. It is because that the detenu was himself part of that efficient bureaucracy that the remark is being made. It goes on to say that, despite the fact that that regime did some good, even that good did not recoil to the good of the people eventually because it brought in its train Yahya Khan. The writer does not in terms say so but the implication appears to be fairly plain that a dictator ship, even if benevolent, results in something worse. In that context it describes East Pakistan as fast approaching a State of chaos from which she expects "we emerge as a decent self-respecting State and that if we cannot do that we will just be wiped out". Now it is on the pronoun "we" that a great deal of arguments hinged, the learned Attorney-General contending that in the context it could not but refer to the people of East Pakistan and therefore clearly to the emergence of that wing as a separate State. This was supported by the succeeding sentence which says that the writer does not see at all the survival of the "great big Islamic State of Pakistan". I am inclined to agree that it does mean this or at least that the detaining authority could have so interpreted it. That is however far from saying that the writer is wishing it. The utmost that can be said is that, this being the general state of the whole of Pakistan, so far as East Pakistan at any rate is concerned, since survival of the entire State as one entity connected by Islam does not appear possible, East Pakistan would probably emerge as a decent self-respecting State. One can probably understand that, even though an East Pakistani might not wish for separation, if he is disgusted with the condition of the entire country and envisages that it will not hold together then, selfish as all human beings are in some measure, the East Pakistani is thinking purely in terms of what is going to happen in East Pakistan. The question what will happen to West Pakistan becomes immediately one of subsidiary importance. Whether this be so or not, it 1148 at least clear that this is the reflection, if not, of a calm philosopher, of a bystander, perhaps an agitated bystander but nevertheless a bystander. 1t is not the language of a participant.

108. It then goes on to speak of what appears to the writer to be a hypocri tical use of the word. "Islam" and all that it stands for selfish and partisan political ends. Far be it from me to say whether or not the writer is correct in her appreciation. All I point out is the viewpoint which she is adopting. The learned Attorney-General pointed out that, whatever, be tee individual political feelings or appreciation of any particular person, the fact remains outstandingly that Islam and Islam alone could be a connecting link between two wings of the country separated physically by long distances and the physical presence of a country which was naturally opposed to the creation of Pakistan, since it was itself a part, and the major part, of the country whose division resulted in Pakistan. That is true but I am not with the Attorney-General in thinking that one who professed this view could on that account be regarded as wanting the separation of Pakistan. She is pointing out perhaps with emotion, what according to her is actually taking place and she assigns a reason for it. I can see nothing in this passage which could lead to the conclusion that the lady was working for the separation of East Pakistan or was even an advocate of such separation.

109. Indeed the next two sentences bear this out completely when she says "I seem to be talking too much about politics that's because of the mess politicians are making all over again. Anyway to hell with politics at least for the time being." And she goes on from there to a reference to the Martial Law Administration and her desperate wish for a civil government but all these matters are closely interlinked with the purely personal angle. In the following paragraph which is almost entirely personal occurs the sentence "future might even bring the partition of the country, you know." But there again the context is her desire to see the detenu. She says this about the future as a possibility and here that possibility is important only because she wonders how if partition of the country, as she calls it, takes place, she would ever again see the detenu.

110. And that besides a reference to the Martial Government again and the censors with the necessary consequence of interference in her personal life is really all that the letter states. Even without Riving this letter the minute examination to which Mr. Manzoor Qadir subjected it I am wholly unable to regard it as any proof whatever that Mrs. Ruqiya Kabir was engaged or was likely to engage in activities designed to effect the separation of East Pakistan. Muchless am I able to regard the fact of her writing to the detenu as indicative of any such design on her part.

111. If I do not refer to the remaining letters in very great detail it is not because I have not carefully studied them. Barring a couple of passages which I shall presently cite, there is no mention of politics of any kind in them. They relate to personal matters sometime giving chatty news and sometimes talking of the detenu's future prospects in life with an occasional reference to documents of historical interest and probably of special interest to her since she was engaged in some research on that subject. Indeed as to the rest of the material the learned Attorney-General made no reference at all except generally to say that they indicated the closeness of her relations with the detenu. Mr. Manzoor Qadir, on the other hand; made quite frequent use of these letters in an attempt to show how deeply patriotic Ruqiyai Kabir was. This is not because I find that she was not as Mr. Manzoor Qadir has pointed her to be but because I think it is unnecessary for me,.. having taken the view that I have, to go into that question at all. In a letter dated the 15th of December, 1970 appears a passage "yet at the cost of Pakistan, specially of East Pakistan's people, we maintained a gorgeous army, well-fed, well clothed, well-armed and well-paid. Why? To save us. from India? Ask those millions dead-ask those millions more who have lost all they have loved or cared for. Ask them whether they wanted tow sacrifice 75 per cent of country's wealth to build an army at a strength of' their mothers and daughters, their fathers and their sons--I don't think so, That is why Mujib has swept in East Pakistan, has given her verdict. Tragedy is that Mujib will betray these people. Oh yes'. He will be given a chance-chance to be the Prime Minister he will ask every single Pakistani. So will he betray every single Pakistani". This is one of the two passages in the remaining letters which has any reference to the current Pakistan politics. This is far from indicative of separatist tendencies or even admiration for Sheikh Mujibur Rahman. In the same letter towards the end is a single sentence "I am sick and tired of political stagnation of the military rule". It is of course one sentence in the whole passage which refers to possible future constitutional squabbles. A little further she remarks "Bhutto's positive contribution has been that for the first time West Pakistan ever had economic slogan". I really cannot see In these passages any indication of a desire, much less a design, to separate East Pakistan; if anything the contrary is~ the effect.

112. In this connection the other letter prominently placed before us is one of the detenu himself. It does not bear a date but is admittedly in, the year 1971 and refers to a letter of Ruqiya Kabir of the 17th March. This is a letter on which there was controversy as to the precise date upon which it was written. The importance of the date, if any, is whether or not it was before the 25th of March 1.971. Before I discuss that aspect of the: matter it would be profitable to reproduce the letter in its entirety.

"Darling !

I just got your letter of 17th March, you must have received a detailed' letter which I sent by hand. I am in constant touch with Dacca. In fact I got a letter from Raza only yesterday which I am sending; you in a separate cover. Hablu's address is "22-B East Defence Housing Society, Karachi. I have given your love to Munna and Liz. They are fine. I meet Hablu and some other East Pakistanis quite regularly. There are nearly 2 lac Bengalis here and the situation is quite tense. This Bastard is trying to create trouble but so far the situation is under control.

The latest news from Dacca is bad, I think Bhutto is succeeding in making a total mess and nothing but disaster is in sight. Who gave you the idea that he is wooing me? He would like to shoot me at sight.. When this mad and criminal adventure began I made it known than. it was the most dastardly conspiracy and he knows my views about him.

The country is coming apart. East West separation has taken place.. The Bengalis have put up a most magnificant fight and they are going to be a vital force in South East Asia. Not all the armies in the world with a hundred Bhuttos can browbeat them. They have won and I am most happy even though the country has been divided. What is a country when human dignity, freedom and the right to live as a decent human beings is at stake, I am not interested in what happens now. The Bengalis have created history-more than history they have paid a tremendous price but they have achieved what normally should have taken 20 years. There may yet be another round. But they will not be beaten. So why are you agitated. You should really be proud, as I am of what Bengalis" have done. All my love. I shall be writing to you regularly now . . . . . . . . . yours."

The first few lines of the letter are obviously concerned with purely personal ,shatters but among them is the sentence "I am in constant touch with Dacca." The argument advanced by the learned Attorney-General was that, regard being had to the fact that at this time private citizens had very little, if any, ,means of communication from Dacca it was clear that the detenu however had some. The second paragraph referred to the latest news from Dacca being bad and then there is a comment upon the Chairman of the Pakistan People's Party. By themselves all this is indicative, at most, of the fact that somehow the detenu had obtained some news from Dacca. When I have said, however, that private citizens bad little means of information from Dacca, however, I do not think it is wholly accurate to say that there was no news trickling in at all. Admittedly a large number of West Pakistan politicians had gone for the round of talks that took place in Dacca in March 1971 and all of them were back in the West Wing by about the 26th. In between some people were coming and going and, let alone men who according to the Attorney-General himself had a wide acquaintance, but even lesser people heard bits of news coming in, sometimes reliable but quite often not quite so reliable. Nevertheless, people talked and probably each time the news was passed on from one to another it tended to acquire a little coating. I really find it impossible, even interpreting the second paragraph in the light of the third, to say that by the latest news from Dacca was meant news of the military action and that it was therefore unpalatable to a secessionist. The third paragraph upon which much reliance was being placed again seems to me a statement of what is actually taking place rather than of what the detenu particularly desired. But be that as it may and, assuming without deciding, that it shows or can be thought to show a sympathy in favour of separation it cannot at any rate be read as indicative of any participation by the detenu in a design to effect separation. After all it is not thoughts which are intended to be prevented by the Defence of Pakistan Ordinance but actions. In saying so I do not at all mean, of course, that a person's thinking might -not be an indication of what he is likely to do or at least might not suffice as a reasonable basis for a detaining authority to think that he will do something. What I am saying, however, is that the passage that I am now construing is not of the kind which can give rise even to the inference that this was the thinking of a person who could well take a positive step towards the fulfilment of what is supposed to be his desire. I do not want ,to say that fair interpretation of this would be that he is lauding the Bengalis for the fight which they are putting up against the authorities. If that was all some other fair interpretation could also prevail. But I think this is clearly the language and the language only of a person who is watching rather than acting, even though watching with agitated interest.

113. The next item in this part of the material is a typed letter dated the 17th of March, 1971 from Razaur Rahman in Dacca to the Jetenu on which the detenu has, in his own handwriting, made an endorse ment forwarding it to somebody. Although that somebody is not named other circumstances clearly indicate that it was Ruqiya Kabir and that the detenu had also sent her another letter by hand and not by post. I do not refer to these circumstances because this conclusion is an- admitted position. Again I reproduce this letter in full:-

Dacca 17th March, 1971.

"Dear A. G.

It is most heartening to hear from you. We seem to be living in a state of siege. Do you realise that we do not receive mail or cables or telephone calls from outside E. P. Nor can one get out of E. P.- not that I want to at the moment. Your letter was, therefore, most welcome.

In fact it was very analytical and I can only hope with you that we do not blunder now. In fact, I am feeling like discussing your letter with the Mujib group.

I have a new theory now. Let me put it to you so that you can find the weak points in it. It goes as follows:-

(a) The Army never wanted to hand over power to the civilians without a definite say in future arrangements-constitution or whatever it may be.

(b) I know for a fact that they collected funds from industrialists well before the election. Some of our clients had paid. I presume others must have.

(c) Tajammul also knows that money has been paid out to various parties by the Army intelligence.

(d) The Army intelligence expected at least 4 to 8 major parties emerging from the elections.

(e) With this expectation, the L. F. O. becomes really effective. Thor L. F. O. can be helpful for the Army ONLY if unanimity amongst political parties is lacking. If enough diversity could be created, the Army with its L. F. O. could become the mediator.

(f) The first set-back-the emergence of only two political parties.

(g) The silver lining-Two parties from two wings reasonably well, balanced.

(h) The Honest Broker goes into action-Meets Mujib-declares him as the Prime Minister. Keeps the other military members in the back ground. No pictures (covering them) in the papers. It is Mujib and Yahya collaboration.

(i) Bhutto annoyed. The Honest Broker now moves in with Bhutto. His military colleagues well covered in the press. Bhutto and Yahya in the gardens: What. the hell is Bhutto and Yahya up to now-says Mujib and his party men.

(j) Up to now-one can well question the necessity for Yahya to go flying. all over East and West supposedly patching up differences between Mujib and Bhutto. Was he patching up? Or was he giving private!: and separate re-assurances to both so as to ensure that differences are created? If you recall his pre-election speech, Yahya bad asked All the national leaders to use the post election and pre Assembly Meeting period to get together to work out agreements. Did he allow enough time for this before taking up his Honest Broker act?

(k) Things going well for the Honest Broker.

(l) Problems for the Honest Broker: There are dissents in Bhutto's camp. Bhutto named Miraj and Khar as his successors. Yet the leftist group-possible led by Miraj-were quite prepared to sit in the opposition. They were also quite prepared to attend the Assembly meeting.

(m) Bhutto acknowledges that certain party members were in favour of attending the Assembly Session. How big was this Group 20-25?

(n) Bhutto now threatens any one who goes to E. P. for the Assembly. True he threatens Khaki clads, etc. But is he really threatening the Army-They are not for the Assembly. 13 he threatening Wali or Bizenjo or Daulatana? Or is he threatening his own party people?

(o) Bhutto drops Miraj and Khar. It is now Pirzada and Rahim making all party statements. What happened to the suddenly nominated successors. It would be interesting to meet these people.

(p) Bhutto has a long session with the Honest Broker. Did not the Honest Broker call him to Pindi "for discussing national affairs"?' Ts the Honest Broker worried that if Bhutto's party breaks, then the mediator's role vanishes for the Army. The L. F. O. become ineffec tive against an overwhelming majority.

(q) Something must be done to hold Bhutto's party in line. Bhutto makes his statement on 28th. He cannot demand postponement only. His party will not agree. So he throws in another alternative-With draw 120 days restriction.

(r) The Honest Broker, picks up. Announces on 1st, the postponement. Refers to the major W. P. parties' refusal to attend, but conveniently makes no mention at all to that party's other alternative. If the Honest Broker genuinely wants to resolve the problems and if Bhutto wants postponement or 120 days restriction withdrawn, whilst Mujib does not want postponement, WHY not withdraw the restriction. After all this 120-day thing is his own creation and there can be no objection from Mujib if his own condition is relaxed.

(s) Action "r" taken-BUT with finesse. The 1st March statement is READ out. Has the Honest Broker fallen? Mujib is led to believe so. He wonders about the "alleged" statement. Now in retrospect one can wonder why the MOST IMPORTANT statement was read out. Frankly, Mujib had always stated to his colleagues that Yahya would not-let him down. Even now he believes so.

(t) Mujib reacts strongly. Takes up the challenge. Something has to be done. The Honest Broker now removes the velvet glove. He announces again. Now in no uncertain terms. He is very much in and challenges Mujib back. Puts all the blame on Mujib for the failure of the R. T. C. Does not say anything for the failure of the 3rd March Meeting due to Bhutto's action. After all, if you attack Bhutto also-perhaps people will wonder about that small 120 matter. He then insinuates that private understandings were there between him and Mujib. This could perhaps help to weaken and thereby annoy Mujib enough for him to take a rash action.

(u) Having announced, the Army now waits to see what Mujib will do on the 7th. Perhaps Mujib will after all take that one step that can now justify their plan-namely U. D. 1.-No luck-although provocations were enough.

(v) The waiting game cannot go on. The longer it goes the more established does Mujib become. A parallel Government automa tically takes shape. The world gradually realises that there are de facto two Governments-two countries. This cannot help the Army's image of being an Honest Broker. If non-co-operation becomes the order of the day Mujib wins. But then Mujib is under tremendous pressure. How long can he hold out.

(w) The Army decides the time is ripe for letting Mujib have a way out. Yahya announces that he will visit Dacca.

(x) The pressure must, however, be kept on. So the delaying tactics start. Will he go? When will he go? Will he come? When will he come? Put the pressure on: Announce that Yahya will be opening a dispensary in Karachi on the 26th. Has he really given up the idea of the Assembly Meeting on the 25th?

(y) The Honest Broker arrives . . . But why is be not getting straight to a meeting? Suspense.

(z) They meet.

THE END

Sorry, if I kept you biting your nails. My Theory.-The Army is the -culprit. Bhutto and Mujib are but pawns well moved by them. If Mujib had realised this at the very beginning, he and Bhutto may well have arrived at a settlement which would have rendered L. F. O. redundant.

What happens now? Does Mujib give ground? Can he bear the pressure a bit longer? Can he call the Honest Broker's bluff? We have to wait for the next move.

So much for politics. Please keep this letter yourself. Would hate to get into trouble over the first "Play" I have written.

With regard to business-it is in another letter.

REZA."

114. Now I do not propose to analyse every passage in this letter as has been done before us by learned counsel on both sides. It is clear, I think, that in itself it purports nearly to assess the situation, correctly or incorrectly I do not mean to say. The only real point in the letter is the sentence in the second paragraph "I am feeling like discussing your letter with the Mujib Group." Now the learned Attorney-General wanted us to infer from this that the writer was in close touch with Shaikh Mujibur Rahman. And his political associates and that, therefore, what purports to be an analysis is really intended to be the basis of thinking out a plan upon which he wants first the comments of the detenus with a view to exposing any weakness and next to discuss it with associates of Shaikh Mujibur Rahman. There are several reasons why I am not inclined to agree with the learned Attorney-General on this point. It is to be remembered that Sheikh Mujibur Rahman had won the elections in East Pakistan taking almost all the seats. Naturally there must, therefore, have been in East Pakistan then a very large number of people, certainly the majority, who could be described as associates of Shaikh Mujibur Rahman or affiliated to the party of which he was the bead. It is hardly amazing then that Razaur Rahman should have contact with somebody who in turn had relations with the party leadership. Indeed even if an East Pakistani residing in Dacca at the time had no sympathy with the Awami League he would be heroic indeed to profess this. But, if really the sentence that I have quoted discloses some such association with the Mujib group as would suffice to base the conclusion that the detenu was then working with the Mujib group, it makes total nonsense of the passage that 1 have quoted from Ruqiya Kabir's letter which talks of Shaikh Mujibur Rahman in the most uncomplimentary, terms. How then can one really say with any measure of apparent reason that the letters of Ruqiya Kabir placed together with the detenu's own letter and that of Razaur Rahman addressed to him on the 17th indicate the work of conspirators ?

115. It is curious also that the letters to and from Ruqiya Kabir ceased in December, 1970. In the coming months communications between East and West Pakistan certainly became difficult but not communications between West Pakistan and England. Either there are other letters which have not been utilised for the purpose of satisfying the detaining authority or the Government of the time ceased to take any further interest in the letters of the detenu. In any view of the matter I am quite unable to say that what I have so far examined can possibly yield any inference which would suffice to form the basis of the detention order.

116. Closely connected with these letters is the conversation referred to in ground (3). Now what has been produced before us is a typed script of this conversation which took place on the 27th of March, 1971. That such a conversation took place need not be doubted. The detenu himself in the witness-box admitted that he did talk to Masihur Rahman though he was not sure about the precise date. He even admitted that parts of the transcript used sentences which did sound like his own but he could not admit it in its entirety since much of it was unintelligible. The principal argument, therefore, of Mr. Manzoor Qadir that there is nothing to vouchsafe for the authenticity of this transcript is not really, I think, borne out. It is true that such a transcript would certainly not be evidence in a court of law and, even before the detaining authority, I should imagine that the detaining authority would normally wish to feel satisfied that it was a genuine transcript of a tape-recorded conversation. The usual guarantee, however, in such matters I suppose is that these transcripts would be backed up by the availability of the tape-recording and that the detaining authority, if suspicious, could always call for it. Whether or not that was done in this case I do not of course know but I am willing to assume that anything that was necessary for the purpose of satisfying the detaining authority that the transcripts were genuine was in fact done. At any rate I am willing to assume that the detaining authority took all steps which a reasonable man, not bound by the laws of evidence, would take. Now this conversation is a disjoined and rambling one and I really cannot find any passage which is both intelligible and capable of yielding the kind of inference that is sought to be drawn. For instance there is a sentence ascribed to the detenu "sabotage must go on . . . . . let them control Pabna, Bogra they have to do like that . . . . ." What does this mean ? Again the transcript starts with the detenu saying "the question is, it does not happen like that, it is just humanly not possible, it is never happened in the history anywhere in the world, but what have you to see this non-cooperation, parellelism, guerilla actions, sabotage . . . " to which Masihur Rahman answers Yes sabotage" after which comes the sentence I have earlier quoted. Now clearly this is not the start of the conversation ; what went before it would certainly have bearing on the meaning. But, whatever the context, is there any really sensible meaning to be drawn from these disjoined sentences at .all ? Such meaning as I can draw from it is the kind of conversation which most people were holding in those troubled times. Indeed the learned Attorney-General himself went so far as to say that, in itself, this conversation was such as could quite well have been of perfectly innocent people. The damage, he said, lay in the context of the person who was holding out that ,kind of language and the activity that be was at that time engaged in. Now so far as his association with Ruqiya Kabir and her relations is concerned I have already examined what material there is. From this, at any rate, I do not find it possible to say that the detenu was a man of such suspect associations. The other material I shall also presently examine keeping that viewpoint in mind.

117. Unspecified in the grounds but also, I think, connected with ;grounds (1), (2) and (3) are transcripts of three conversations between the detenu and Mark Ghulam Jilani. There is no evidence on record who Ghulam Jilani is. Perhaps the detaining authority knew but the only clue that I have, as a judge, to the identity of the person is the judgment of the Supreme Court which declared the detention of the detenu invalid on the 20th of April, 1972. The other petition heard by their Lordships was that of the same Gbulam Jilani who also had been detained under Martial Law Regulation 78. There are of course references in covering letters signed by the Director of the Intelligence Bureau to Ghulam Jilani but we were told by the learned Attorney-General that these are not part of the ,material strictly but a summary made by the Director and the detaining :authority must of course have applied its mind to the material request and not to these covering letters. In fact it was argued by Mr. Manzoor Qadir that these summaries were deceptive and that, on that account alone, we .ought to refuse to sustain the order of detention inasmuch as the detaining .authority may have been misled by these summaries even though honest in its own approach. To this the learned Attorney-General had answered that, while upon a given point the summary did indeed go beyond the material, the grounds did not indicate clearly that the detaining authority had not relied upon the summary but upon the material itself. Nevertheless I will assume that the detaining authority knew who Ghulam Jilani was and I will assume, therefore, that he was a person whose activities were, for some reason or the other which I shall presume to be valid, regarded as suspect by the authorities. But, even viewed with that presumption, I am wholly unable to make much sense out of the transcripts in question. As in the case of the conversation with Masthur Rahman most of it is gossip rather than news of what was happening in East Pakistan. There is, no doubt, a reference to some paper of a political character which the detenu either drafted for Ghulam Jilani or helped in drafting. We do not hear more of this paper and it is difficult to base any conclusion upon this.

118. The fourth ground relates to a Japanese national. It is the case of the respondent that this Japanese national was really an under-cover agent but they do not say that there is anything to indicate that the detenu knew this. However, I do think that if the conversation was of a dangerous kind, then this contact with a person known to the authorities to be a spy would be quite sufficient for a detaining authority to take the view that the detenu's liberty ought to be curtailed, irrespective of. whether he did or did not know the real occupation of such agent. Indeed it might possibly be thought that, even though there was no positive evidence of such knowledge on the part of the detenu, the fact that he did indulge in this kind of conversation with a foreign spy was itself evidence of such knowledge, and that, even without such knowledge, it would be dangerous to permit more such conversations by a person who, during the course of his official career, must have had access to fairly important Government secrets. All this I should have been willing to hold if the conversation itself give some indication, however slight, that the detenu was voluntarily giving secrets to him or even that, quite unconsciously, he was betraying knowledge which was dangerous. This in spite of the tact that it is an admitted position that. In respect of his ostensible occupation at least, the Japanese had good and legitimate reason to associate with the detenu since there was some business deal being conducted between them. The transcript of the conversation however is in the same state as those of the conversation with Masihur Rahman and Ghulam Jilani. There is little in them that is intelligible and that little clearly talks of matters which was far from being secret and were openly discussed in every place in the country. The learned Attorney-General however pointed out that the interest of the Japanese ostensibly was in business which was to be conducted in East Pakistan. In the context, surely therefore, it should have been in the detenu's own interest to inspire confidence in the conditions in that part of the country rather than to paint a dismal picture. If, therefore, he talked of such matters as these the inference ought to be, according to the learned Attorney -General, that that was not the real object with which he was talking with the Japanese. Now I find it difficult to follow this. By definition the Japanese was a well informed person. Mr. Altaf Gaubar is admitted to be a man of intelligence. He could hardly expect to pursuade the Japanese that conditions in East Pakistan were normal. In the ordinary way a conversation on these topics could not be avoided either. I cannot really see, therefore, that any such inference can be drawn from this conversation as is claimed on behalf of the detaining authority. Even so the conversation, so far as relates to the situation in East Pakistan, is really in the context of the difficulties which the detenu is facing in the business there. When I say 'conversation' it would really be more accurate to say the talk of the detenu, because, apart from about a dozen words, all that was said by the Japanese is described as inaudible.

119. There is next a ground arguments about which we heard in chambers. This was ground (5) which I have reproduced above except that I have omitted mention of the actual name of the intelligence officer as also of the country to which he belonged. Now this person was admittedly officially a member of the embassy of that country. There is admittedly in regard to this ground no record of any conversation, taped or otherwise. That the detenu knew the officer concerned and had meetings with him and had also invited him to lunch on one occasion is not disputed by the detenu. His explanation is that he was, on behalf of the firm of management consultants, which had set up engaged in finalising a deal between the East Pakistani firm of which Ziaur Rehman was a member and a foreign firm. The actual transaction was between the governments of the two countries but the suppliers and the purchasers locally were private firms Now this transaction again is admitted by the respondent. It is claimed, however. that the person referred to in the ground was stationed at Karachi although the Embassy in question had a similar ranking officer in East Pakistan and since the transaction bad to do with East Pakistan there was no reason to contract a Karachi Officer. Be that as it may the only actual material that appears is, first the fact that the detenu talked with him in his office (i.e. the detenu's office) behind closed doors and second, four photographs were taken outside the Boat Club on the 31st of March 1971 which show the detenu and another Pakistani, one Mr. K. A. Rahman, along with the person named in ground (5) and one other person belonging to the same country. This other person, according to the detenu, had come to Pakistan especially for the signing of the contract and yet, admittedly, the contract does not bear his signature. The learned Attorney-General would therefore have us infer that the explanation is false and that the contact between the detenu and these foreigners was not as innocent as claimed. The detenu however says that by coming for signing the contract in such matters is not meant for axing the actual signature but supervising the final phase including the signature. I do not think this really matters. If the conclusion to be drawn is to be incrimi natory by reason of the detenu's explanation being adjudged false it is to be remembered that this explanation was not before the detaining authority who did not adjudicate upon its truth. Moreover the detaining authority was not thinking of this person but the one named in the ground. These photographs, therefore, really establish nothing at all. It is anyhow admitted that the detenu met the person concerned and the explanation offered is an innocent one. I will not take it upon myself to say that the explanation is necessarily a true one. It is however undoubtedly correct that the fact upon which it is based, namely a contract that was being finalised, is true and admitted. The least that one can say in favour of the detenu, therefore, is that the explanation he puts forward is upon a known and admitted factual position. The photographs prove nothing more than they had lunch together at the Boat Club, again a fact which is admitted and is subject to the same explanation and comments that I have made in regard to the meeting in the office. The question however is not whether the explanation can be regarded as true or even plausible ; the question rather is whether upon this material it was possible to infer reasonably that there was a sinister motive of meeting the person concerned or at any rate that there was danger inherent in his meeting him. I do not see how such an inference is possible.

120. The last ground relates to a dinner held in the house of one Mr. Afzal Khan, a friend of the detenu, in which he is alleged to have made the remarks stated. There was considerable criticism of the material which is said to support this and which consists entirely of the statement of one Mr. Hassan Bukhari who is alleged to be present at the dinner. The criticism lay in this that there were other witnesses, even witnesses who are described in the report of the Director of the Intelligence Bureau as men of known integrity, who do not support the version put forward by Hassan Bukhari. I do not think that in a case of the present kind I can entertain such criticism. It was for the detaining authority to decide and, so long there was evidence from which he could reasonably draw the inference in question, I would not displace that finding on the ground that that was a wrong assessment of evidence. I must therefore accept Hassan Bukhari's statement as true or at least as one upon which the detaining authority could justifiably have relied. What however is the worth of the statement ? Now this statement is in writing and the relevant part reads "during the meeting which took place after dinner Mr. Gauhar in the general conversation stated that he was not a Pakistani that the concept of Pakistan no longer existed. At that he was severally reprimanded by my wife and later retracted the statement". The date of this conversation or statement might be noticed. According to the grounds it is in February 1972 and this corresponds with the date assigned in the statement of Hassan Bukhari. As an indication of design to work for the separation of East Pakistan de facto the statement makes no sense 4t oil. Separation de facto had already taken place in the end of December 1971. It is not the case of the detaining authority that tire detenu has ever worked politically for the recognition de jut a of East Pakistan as Bangla Dash, a separate foreign State. In any event such a case, even if put forward, would not take us much further inasmuch as it is not argued before us that it was necessary to detain the detenu in order to prevent him from canvassing for such recognition de jure. What then does the remark mean ? I cannot see that it can mean anything but a historical expression which would of course convey the criticism of the policy of a government which has resulted in the situation prevailing when the conversation took place. Indeed, learned Attorney-General frankly conceded that it would normally mean nothing more than an expression somewhat of the following nature "if that is what is meant as being a Pakistani I am not one"; a sentiment, he agreed, which could be expressed by any patriotic Pakistani inasmuch as the apparent denial of being a Pakistani is in a context which robs the denial of any such meaning. On the contrary nobody but one who is sincerely a Pakistani would be moved enough to express himself in such terms. A Pakistani would not say for example "If this is what it means to be a citizen of so and so country I am not one". He might say "thank God I am not one" that is he would be happy that he is not. But here the Pakistani is disclaiming Pakistan nationality if to be a Pakistani means whatever is being talked about, implying clearly that it does not. This material too, therefore, I cannot regard as any possible indication of such a likely activity as would justify an order of detention.

121. It might seem as if I have been examining the grounds rather than the material though I have earlier stated that I agree with the learned Attorney-General that, where the detaining authority is not bound to give grounds and yet does, it is nevertheless our duty to look at the material rather than the grounds in order to see whether there was such satisfaction as the law required. I have taken up the grounds one by one not because I have examined the grounds as such but because each was a convenient label to the summary of the material which existed upon a particular part of the case. Indeed I do regard the grounds in this case as a categorisation by the detaining authority of the material. In the course of the actual discussion, however, it will be noted that I have examined the material itself rather than the grounds.

122. Nor have I been oblivious of the fact that the learned Attorney -General argued that the grounds ought to be taken collectively and not examined separately. I wholly agree with him. But even when one examines the grounds in their entirety or rather the material in its entirety, one has nevertheless got to examine it bit by bit and then see what the cumulative effect of it is. In examining it, therefore, piece by piece it was not my intention to say about each part of the material whether or not it sufficed and, if none did, then to say that the entirety does not suffice. However, the view that I have taken of the material in each part is incapable of yielding the inference claimed, and, therefore looking upon the material as a whole also I think the inference cannot possibly be drawn. The situation might have been different if in regard to some part of the material I thought that some inference could be drawn but not strong enough to warrant an order of detention. In such a case if there were several parts of the material it might have been possible to say that taken as a whole the material justified the detention. In such an eventuality what is really the position is this the detenu is alleged on a number of occasions to have behaved suspiciously ; Do one of these occasions suffices to create such an impression in the mind of the detaining authority as would justify detention. But when the detaining authority regards all these suspicious circumstances cumulatively, it is forced to the conclusion or, at least is justified in reaching the conclusion, that the activities of the detaining authority need to be curbed.

123. In this view of the matter I have not burdened this judgment, already too long, with a reference to many other arguments which Mr. Manzoor Qadir advanced of comparatively minor importance. Whatever view I might have taken of it would not have affected my decision in the case.

124. It remains to refer back to a question which I have earlier posed. What is the activity which the detaining authority wanted to prevent ? Although nothing was clearly stated at any time the utmost that I can think of is that the detaining authority might have come to the conclusion that it was necessary to prevent the detenu from acting in such a manner as would result in the separation of East Pakistan. There was a trifle said about the provinces of West Pakistan also. The utmost however, that could have been said against the detenu, if the material justified it, was that in working for the separation of the East Pakistan he was not concerned whether in the process West Pakistan was also split up. Nowhere is there the faintest suggestion that the breaking of West Pakistan or any other harm to it was the object of the detenu ; the utmost that has been said is that his primary object being the separation of East Pakistan he did not care if, in the process, West Pakistan also suffered. But in February 1972 when the detenu was arrested the separation of East Pakistan was already an event fn the past. I am unable to see what then it could be desired to prevent. Taking the most severe view against the petitioner if he was guilty of treason even that would not suffice to justify detention. No doubt past criminal activity can be a basis for apprehending future prejudicial activity but such is not the case here. If it were necessary one would have to hold that there was in any case no real and imminent necessity such as would justify detention.

125. I would, therefore, allow this petition, declare the detention of the detenu to be unlawful and direct that he be released forthwith unless held under some other valid order or warrant.

FAKHRUDDIN G. EBRAHIM, J. -This. case has a chequered history and makes a painful and pathetic reading. The detenu, Altaf Gauhar, Editor in-Chief of 'Dawn' and other allied Herald Publications, was arrested in the early hours of the morning of 51h of February 1972, without any warrant of arrest and even without being informed of the reasons for his arrest. Fol lowing the arrest, it is further alleged and this allegation has not been denied, the detenu's house was searched, again without any order. On the following morning, the petitioner, who is the wife of the detenu, made several attempts to discover where her husband had been taken, but was not able to get any information. The petitioner later on the same day learnt that the Minister for Information in the Central Government in a press interview bad stated that the arrest of petitioner's husband was not connected with his activities or position as Editor-in-Chief of the Dawn group of newspapers, but was in continuation of the action taken in 1969, which had resulted in his dismissal from service under M. L. R. No. 58 and that the Government of Sired will issue a statement that evening in regard to the arrest of the petitioner's husband. The petitioner was also informed that the Minister bad said that the arrest of the petitioner's husband was under Martial Regulation No. 78. The petitioner alleges that a statement was issued by the Sind Government, but on the succeeding day following two items under Rawalpindi date line appeared in the national press :-

Body to Probe Dismissed 303 Cases

"Rawalpindi February S.-A Committee has been appointed to examine cases of those Government servants who were dismissed under M. L. R. 58, according to a decision of the Presidential Cabinet here today.

It will be recalled that inquiries under this regulation were instituted against Government officials and 311 officials were either dismissed or compulsorily retired from service in November-December 1969. At that time it was stated that this action was without prejudice to further action which may be taken by the Government against the dismissed officials under the law. Since then there have been public demands, including comments in newspapers, as to why the promised further action had not been taken by Government in cases which prima facie called for such action.

The official spokesman said today that the Committee which has already started its work is now seized of this matter [A. P. P.]

Rawalpindi February 5.-[A. P. P.] Former Secretary Information and Editor-in-Chief of Daily Dawn, Mr. Altaf Gauhar was arrested this morning from his residence in Karachi. According to Official source his arrest has taken place in connection with his dismissal from service in 1969 and his activities thereafter. Mr. Altaf Gauhar was the Information Secretary during the regime of ex-President Ayub Khan. He has been arrested under Martial Law Regulation No. 78 by the Martial Law Administrator Zone 'B' (Zone 'D')."

2. On 7th of February 1972, the petitioner moved in this Court Constitutional Petition No. 40 of 1972. in the nature of habeas corpus. In this petition, a specific grievance was made of the fact that the detenu was neither served with an order of arrest nor informed of the law under which he had been arrested. It was further contended that if it was found that the detention was under M. L. R. No. 78, the detention was illegal and without lawful authority inasmuch as the said Regulation itself did not constitute the law of the land. At the summary hearing of this petition, this Court was pleased to summon the Advocate-General, Sind who appeared and stated that an order was most likely passed and, in any case, he will verify before making a certain statement and in case it was passed, he would place a copy of it on record. Subsequently, the learned Advocate -General, in fact, placed before the Court an order of detention under Martial Law Regulation No. 78.

3. In the said constitutional petition, an application was moved for grant of bail, which was, by order dated 18th February 1972, rejected on the ground that this Court had no jurisdiction to grant relief against the Martial Law orders. Against this order, the petitioner filed a petition for Special Leave to Appeal before the Supreme Court of Pakistan. The hearing of this petition was bell over till after the decision of the appeal of one Mr. Ghulam Jilani, which was then pending in the Supreme Court and in which the main issue involved was the same as in the case of petitioner's husband. However, as allegations were made in the petition that the detenu had not been committed to the custody of the Superintendent, Central Prison, Karachi, as expressly stated in the aforesaid order of detention and the petitioner was unaware of even the whereabouts of the detenu, as nobody had been allowed to meet the detenu since the detention, the Supreme Court, by its order dated 23rd February 1972, directed the Advocate-General, Sind, to file, on the next day, a parawise written statement in answer to the allegations contained fn the petition and intimate the Court the place where the detenu was then lodged and also inform the Court if the respondents bad any objection to the petitioner or her counsel seeing the detenu under the supervision of the detaining authority. At the hearing, on the next day, the learned Advocate-General, Sind, took up, to use the expression of the learned Judges of the Supreme Court "a rather surprising position". The Advocate-General stated that he was not ready with the written statement, that the order of detention was made by Martial Law Administrator, Zone D, and not the Government of Sind and since he represented the latter, he was not in a position to submit parawise written statement on behalf of the Martial Law Administrator, Zone D. It was further stated that the Government of Sind had no authority over the detenu and it will be the Martial Law Authorities, who will, therefore, be in a position to furnish the whereabouts of the detenu. Nonetheless, he submitted out of the respect of the Court that arrangements could be made for a Court Officer to visit the detenu, who was lodged in Karachi at a place unknown to him. The Supreme Court observed that the mystery regarding the place of detention of Mr. Altaf Gauhar was bound to create all sorts of misgivings and was, particularly, tormenting to the detenu's wife, children and other relations. As a sequence to this order, a further order was made by the Supreme Court by which the Government was directed to allow the detenu to be interviewed by an Officer of the Supreme Court of Pakistan, which interview took place on 13th March 1972. The judgment of the Supreme Court in Ghulam Jilani's petition, which also disposed of the above petition, filed on behalf of the detenu, was announced at Peshawar on 20th April 1972. By this order, the detenu was set at liberty unless he was being detained under an other order passed under a valid law.

4. On 20th April 1972, the Governor of Sind, in exercise of the powers conferred on him by clause (b) of sub-rule (1) of rule 32 read with rule 213 of the Defence of Pakistan Rules, 1971, passed an order directing the detention of Altaf Gauhar for a period of six months with effect from the date of the service of the order and that the said detenu be committed to the custody of the Superintendent, Central Jail, Karachi, as Class 'A' detenu. The reason advanced, on behalf of the Central Government in paragraph 6 of the counter affidavit filed in this Court -for making this order, was that the detention order passed under M. L. R. 78 was quashed by the Supreme Court on the ground that M. L. R. 78 itself was a void law and "hence the detenu was detained under rule 32 of the Defence of Pakistan Rules, which is a valid law and this detention under Defence of Pakistan Rules is in accordance with the judgment of the Supreme Court".

5. The present petition was filed on 30th June 1972, and was originally directed against the aforesaid order of detention dated 20th April 1972 made by the Governor of Sind, During the pendency of this petition, the Government of Sind, by its order dated 7th July 1972, revoked the order of detention dated 20th April 1972 and the Central Government was pleased to pass a fresh order of detention bearing the game date under the same Rule and to quote paragraph 13 of the counter affidavit filed by the Central government "in exercise of their original authority, while the Provincial Government had exercised the same power only as a delegatee of the Central Government". The reason advanced by the Provincial Government for revoking the order of the detention and the exercise by the Central Government of its original powers and authority (as stated in paragraph 11 of the counter affidavit) are that "the detenu had to be taken to Rawalpindi and Lahore for his appearance before the Advisory Board for review of his detention case and the detenu could not be kept under detention at these places under the orders of the Sind Government having no jurisdiction there". The petition, in view of the order of detention made by the Central Government, was amended so as to enable the petitioner to challenge the detention order dated 7th July 1972 passed by the Central 0overament. This order expired on 5th October 1972 and the detenu has placed before us an order dated 3rd October 1972, extending his period of retention for a further period of three months.

6. The detenu, who was, as aforesaid, arrested in the early hours of the morning of 5th February 1972, without any warrant, to prevent him, to quote the order of detention "from contravening or intending to contravene any of the provisions of paragraph 1 of M. L. R. 78", was taken from his place of residence to a premises in P. E. C. H. S. (contrary to the order of detention, which expressly stated that the detenu was to be committed to the Superintendent, Central Prison, Karachi), where he was kept in solitary confinement until 28th February 1972. On 28th February 1972, he was taken to Pindi and was until 12-4-1972 kept at Sihala Rest House. While at Sihala, he was served with the order of detention dated 4th February 1972, on 12th March 1972 and was interviewed by the Officer of the Supreme Court of Pakistan on 13th March 1972. On 13th April 1972, he was brought back to Karachi, on 20th May 1972, the Government of Sind was informed by the Central Government that the detenu will be produced before the Advisory Board on 1st June 1972.

7. On 25th May 1972, the Provincial Government informed the detenu that the Central Government bad referred his case for review to the Central Advisory Board constituted by the President of Pakistan under Article 9 of the Interim Constitution and that his case was expected to be reviewed by the Board shortly. He was asked to intimate within two days whether he would like to appear before the Board personally and/or send any written representation. In his reply, the detenu made a grievance of the fact that no grounds of detention had been communicated to him so far, which was, according to him, in violation of Article 9 of the Interim Constitution. He further stated that he would like to appear before the Advisory Board in person and also make a representation but to enable him to make such a representation he should be communicated grounds of detention and further allowed to consult Mr. Manzoor Qadir, Barri3ter-at Law or in the alternative his brother Mr. Tajammul Hussain. The detenu was taken to Pindi on 28th May 1972. While at Pindi, the Provincial Government, by their letter dated 29th May 1972, forwarded to the detenu the grounds of detention and further informed him that.-the review of his detention will come up before the Central Advisory Board on 1st June 1972 and that Ministry of Interior had been informed that the detenu wished to appear before the Board personally and make a written representation. As regards the request for consulting Mr. Manzoor Qadir or Mr. Tajammul Hussain, it was not acceded to by the Government.

8. On 29th May 1972, the detenu, allegedly at the suggestions of certain Police Officers, made a written request for an adjournment of the hearing before the Advisory Board. On 1st June 1972, the detenu was brought back to Karachi Central Jail. On 6th or 7th of June 1972, the Provincial Government informed the detenu that his application dated 29th May 1972 seeking adjournment had been placed before the Advisory Board and they had observed that they would like to give an opinion after examining the representation, if any, by the detenu. The detenu was, therefore, directed to submit his representation, as the Board was expected to meet shortly. The detenu was further asked to inform the Government if he desired personal hearing.

9. As the detenu did not hear anything further in the matter, on 20th June 1972, he addressed a direct representation to the Chairman, Central Advisory Board. On 6th July 1972, the detenu was informed that be would be taken to Lahore to appear before the Advisory Board on 8th July 1972. He, accordingly, appeared before the Advisory Board on 8th July 1972 and on the same day he was served with two orders dated 7th July 1972, one by the Provincial Government revoking the earlier order of detention and another by the Central Government detaining him for a period of three months from 7th July 1972 under clause (b) of sub-rule (1) of rule 32 of Defence of Pakistan Rules. Alongwith the order of the Central Government "grounds and reasons" of detention were served upon the detenu.

10. As mentioned above, the reasons advanced by the Provincial Government in paragraph 11 of their counter affidavit, for revoking its order of detention and its replacement by an order of detention by the Central Government, was that the detenu had to be taken to Lahore and Pindi for the appearance of the detenu before the Advisory Board and the detenu could not be kept under detention at these places under the orders of the Provincial Government as these places were outside its jurisdiction. How far the reasons advanced were correct can be seen from the fact that the detenu, while in detention under the orders of the Provincial Government, was, in fact, taken out of the Province of Sind on several occasions without even serving him with any order requiring the detenu to be taken from place to place, except on 12th April 1972 and 6th July 1972, on the latter occasion at the detenu's insistence, but since the revocation of order of detention made by the Provincial Government, the detenu (who was brought back from Lahore or about 8th July 1972) has remained in the Central Jail, Karachi.

11. The detenu alleges that he was interrogated when in detention. It may, however, be observed that the object of the interrogation was not to ascertain the designs of the detenu in achieving the objectives for the prevention of which he was sought to be detained nor to ascertain his likely associates.

12. Though strictly speaking, we are in this petition concerned with the detention order dated 7th July 1972 made by Central Government and its last extension for a further period of three months, for this is the effective order under which the detenu continues to remain in detention, I rave adverted to events prior thereto in some detail, as I am rather alarmed by the manner in which the law enforcing authorities have shown respect for propriety if rot law. No attempt was, made to serve the order of detention dated 5th February 1972 on the detenu for 34 days and that too only on the eve of the visit of the official from the Supreme Court; the detenu's house was searched, without any warrant; be was detained in a place other than that stated in the order of detention; taken from place to place without serving upon the detenu any order and finally he was interrogated in the manner aforesaid, while in preventive detention. I must, however, add that the learned Attorney-General when his attention was drawn to some of these events depricated it in no uncertain terms.

13. I have earlier referred to the grounds of detention served upon the detenu by the Provincial Government on 29th May 1972 and by the Central Government on 7th July 1972. Since considerable argument was addressed before us by both Mr. A. K. Brohi and Mr. Manzoor Qadir, the learned counsel on behalf of the detenu on the question of variations and omissions between the two sets of grounds, and admittedly the grounds were formulated by the two Governments on the basis of almost the same material, it may be advisable to reproduce these grounds in the form below to make the variations and omissions self-evident :-

Grounds of detention furnished by the Grounds of detention furnished by the

Central Government Provincial Government

(1) from about March 1971, (1) Since your dismissal you you started a systematic campaign undertook a systematic campaign to patronise anti-State elements of to malign the Government and

East Pakistan and to encourage them encourage anti-State elements. To in their ideas of secession and ulti- this end you remained in league with mate disintegration of Pakistan. Sheikh Mujibur Rahman and his fellow travellers encouraging them in their ideas of secession and ultimate disintergation of Pakistan.

(2) On 18th March 1971 during the course of a dinner with some friends at your residence you had remarked that India will capture

Pakistan and nobody could rave us from them.

(2) In March 1971, you wrote a (3) You wrote a letter to an East letter to Mrs. Rukkia Kabir in Pakistani friend in which you had

London, an East Pakistani who was stated that you were in constant residing there, in which you had touch with Dacca, and that the stated that you were in constant country was going apart and East touch with Dacca, that the country West separation had taken place. was going apart, that East-West You were most happy even though separation had taken place, and that the country had been divided, etc. you were most happy about this, even though the country had been divided and that you were proud of what the Bengalis had done.

(4) In numerous letters you indi cated that you remained in constant touch with anti-Pakistan persons living outside Pakistan. A foreign

AGENT arrived in Karachi on 17th

March 1971, delivered you a letter from an East Pakistani friend and discussed the country's political situation with you and Mahmood

Haroon. Subsequently, you wrote a letter to a foreign friend in

New York about your talk with this visiting foreigner.

(3) On 27th March 1971, you held conversation with Masihur Rahman of the United Bank Limited, an East

Pakistani, wherein you spoke of non- co-operation parallelism guerilla action and sabotage and expressed probability of a foreign country walking in.

(4) You maintained close contacts (5) You maintained close contact with one OSAMU OKUDA, a with another foreign agent who

Japanese national with whom you visited your office on many occasions held political talks concerning the ostensibly for business purpose. But blowup in East Pakistan and the the talks you had with him were dismemberment of Pakistan. mostly political and concentrated on a violent upheavel in East

Pakistan so that Pakistan could be dismembered. From the material available on the subject it is evident that you gave all the assistance required in the collection of Intelli gence for achieving subversive ends.

(5) You also maintained close (6) You remained in close contact contacts with one Mr. X, an under- with an under-cover foreign Intelli- cover Intelligence Officer of a foreign gence Officer located at Karachi. power with whom you held close Your sustained efforts to bring about door discussions in your office in the the dismemberment of Pakistan and

Cotton Exchange, Karachi on your association with this foreign

August 18, 1971. Intelligence Officer show that you conspired with a foreign power.

(6) In about February 1972 at a (7) It is believed that you are dinner in the house of Mr. Afzal ashamed of calling yourself a

Khan, Karachi, you stated that you Pakistani. A few days before your were no longer a Pakistani and the arrest daring a dinner party at a whole of Pakistan no longer friend's house at Karachi. you said existed. that you were not a Pakistani and that the concept of Pakistan no longer existed.

14. The learned Attorney-General contended that in so far as the grounds furnished by the Provincial Government were concerned, the same may be ignored as these were superseded by the grounds furnished by the Central Government, following its order dated 7th July with which order alone we are presently concerned. Even as regards the grounds of detention furnished by the Central Government his contention was that it was really unnecessary to examine them for the reasons that there was no obligation on the part of the Government to furnish grounds and that in any event the Central Government had placed before the Court the entire material which was the basis for making the order of detention. In sofar as the grounds of detention furnished by the Central Government are concerned, to my mind, its relevancy can hardly be denied, for they indicate at least the mind of the detaining authority, for these are the conclusions drawn by the detaining authority from the material placed before him.

15. Assuming therefore that the Government was not obliged to furnish the grounds of detention, these grounds were in fact made the basis for making the order of detention and I cannot ignore this basis. To my mind, it is, therefore, necessary to examine the grounds in the light of the material placed before us and to ascertain how far the material justifies these grounds.

16. The scope of the superior Court's powers of judicial review of orders of detention has now been well and truly laid in the three historic decisions of the Supreme Court of Pakistan. These are the cases of Malik Ghulam Jilani (P L D 1967 S C 373), Abdul Baqi Baloch (P L D 1968 S C 313) and Sorish Kashmiri (PLD1969SC14). My Lord the Chief Justice in his leading judgment in this case has brilliantly summarised these decisions. Thanks to these decisions, a curtain has been rung down on the era of subjective satisfaction. We in this country can be justly proud of the unique contribution made by the Supreme Court to relieve the rigours of a harsh and unbending law. The purported satisfaction of the detaining authority is no longer immune from the judicial examination. We have travelled far and beyond Liversidge's case to the extent at least that it is no longer regarded as sufficient for the executive authority merely to produce its order saying that it is satisfied. It is the Court's duty to see that the detaining authority has proceeded upon reasonable grounds. The Court must be satisfied that the material before the detaining authority was such as would suffice for a reasonable person to come to the conclusion that action was necessary. To quote the Chief Justice . . . . . "It is clear that the satisfaction of the detaining authority acting under rule 32 must be a state of mind which has been induced by the existence of reasonable grounds for such satisfaction . . . . . ."

17. It is, therefore necessary to examine the material before the detaining authority to ascertain firstly how far the conclusions arrived at by the detaining authority in its grounds of detention are justified by this material and how far the detaining authority was, in the light of the principles laid down by the Supreme Court of Pakistan, justified in making the impugned order of detention.

18. Chronologically, the material which was considered by the detaining authority and placed before this Court, consists of, twelve letters addressed to the detenu by Mrs. Raukeya Kabir, the earliest being in the year 1968 and the last is dated 15th December 1970. Out of these letters the learned Attorney-General picked out and read one dated 6th June 1970 to establish that the lady was a secessionist. All these letters, it may be noted, have been written from London to the detenu at Karachi. I do not find anything in these letters to warrant such a conclusion. Great reliance was placed by the learned Attorney-General on the following passages occurring in this letter:-

"Whether the present regime continues with the Martial Law or whether they set up a puppet Government of 1935 Act, the very fact remains, East Pakistan is fast approaching a state of chaos. Only out of that chaos we will emerge as a decent self-respecting State. If we cannot do that we will just be wiped out. That's all. What I don't see at all is the survival of Great Big Islamic State of Pakistan."

19. To my mind the aforesaid passage cannot be torn from its context and if read with the following passages occurring in the same letter, it will show that the letter is, in fact, directed against those, who, in the opinion of the lady, as an interested observer only, were exploiting the slogan of "Islam in danger":

"Muslims of this sub-continent played up Islam to the hilt; caused the death, of millions who got a State for themselves, pretending that it is going to solve their problems. As if just because the members of their Govern ment are born Muslims it will solve all their problems. Historically Islam was a national religion and nationality is one thing completely lacking among our people. Wave the red rag of Islam under them and they go mad. Hence Martial Authorities whose people stick to the principles of Islam. Jamaat-e-Islami is howling that Islam is in danger if they don't lead the country. Muslim Leaguers and sundry version of it want to be the defenders and. upholders of Islam and their version of democracy. Even Moulana Bhashani off and on pops up with Islamic socialism yet this sort of vicious Islam can only be found in Pakistan and may be in Saudi Arabia. What do you think basically wrong with us? Why can't we leave Islam alone or may be for people like you make Islam a personal matter and get on with the job of doing something for the people. What's wrong with the State where you and I and Moulana Maudoodi would be sent off to the field to do a bit of hard physical labour for a change. If I must have my head chopped off, I would much rather have it chopped, off for the cause of humanity than for the cause of Islam."

20. That the lady was in fact an interested observer and not a secessionist is borne out by following passage occurring in this letter:-

"I seem to be talking too much about politics that's because of the mess politicians are making all over again. Any way to hell with politics at least for the time being.

I suppose what I am really worried about is the fact that Martial Law Administration is continuing beyond October. Even a vague form of civil Government is desperately wanted by me."

21. That the lady far from being a secessionist, in fact, believed in one Pakistan is borne out by following passages occurring in other letters:-

"When I asked you not to get involved in politics, what I meant was wrong politics. I didn't mean that you are not going to fight against the Martial Law notification but that must be in the Court of Law may be People's Court when the time comes. How can you clear your name by joining politics. Only way to do it is to bring back the rule of law or may be People's Government. So there I don't want you to accept Martial Law verdict guilty because I wouldn't have done so". "What Pakistan certainly needs is sensible politicians. East Pakistan is not very much better, but often recent incident, I have come to the firm conclusion that as far as human quality is concerned East Pakistan's record is certainly better. I can't imagine a single East Pakistani newspaper writing such cowardly articles like those published in Urdu rage of West Pakistan. Moreover in East Pakistan 'Islam in danger' will not be the slogan which we will have to fight. We might nave to fight America or India. But they are modern and very much a material problem. But this seventh Century slogan to emotion is sickening and can be most difficult to overcome. God help you all. Reodad also seems to have changed. He likes and believes in strong Centre. He feels that the only way to keep Pakistan together. Haven't I heard that before. From Liaquat Ali to Ghulam Mohammad to Mirza to Ayub Khan to Yahya Khan (I really don't know the spelling of this chappie's name) to Maulana Maudoodi all says so. And I do not say so. And I hope I am not the only one". "That is why Mujib has swept in East Pakistan, has given her verdict. Tragedy is that Mujib will betray these people. Oh yes; he will be given a chance-chance to be the Prime Minister-he will sell every single Pakistani and so will he betray every single Pakistani. I hope the Army will give him that chance. I wonder if Bhutto and Mujib will join hands. They should really."

"I hope to God constitution will be formed and that civil Government will come in. I am sick and tired of political stagnation of the military rule. One good result of this election is that the State has been wiped clean nearly all the old guards have vanished from the political field. Now there is scope for new brand of leadership who better offer something positive if they want to come to the forefront. Bhutto's positive contribution has been that for the first time West Pakistan ever had economic slogan and people have reacted to it sweeping away Jamaat Islami and all other old guards under the carpet. Jamaat's defeat is heartening."

22. These letters would also show- that the lady was deeply interested :in the contribution made by the Muslims of the sub-continent in the freedom movement, in which subject she was apparently engaged in research. She regrets her inability to read Urdu as she was being deprived of reading important historical works in this language.

23. The next document in the material, in the chronological order, are photostat of bits of torn papers recovered from the waste paper basket in the detenu's office on 27th February 1971. These are unreadable and in most parts unintelligible. In the forwarding letter dated 1st March 1971 from Assistant Director, Intelligence Bureau to Director, Intelligence Bureau. Rawalpindi, these pieces of pap.-r put together are described as jottings based on discussions held with Mr. Reodad Khan and that they relate to different alternatives to resolution of the present constitutional tangle including a reference to the postponement of the National Assembly Session by President Yahya without the consent of Sheikh Mujibur Rahman and a likely revolt in East Pakistan as a result of this postponement. It would, therefore, appear that even according to this forwarding letter the jottings were of no consequence and it would further appear to be so as the learned Attorney General did not draw our attention to these jottings as a document relied on by the detaining authority.

24. The next document in the material is a letter dated 17th March 1971 addressed to the detenu by his partner in Dacca, Mr. Riazur Rahman. This letter was forwarded to Mrs. Rukaya Kabir by the detenu in a separate cover with endorsement in his hand "you should keep this carefully. Have you got the detailed letter I sent you by hand. I am in constant touch with the family. Have written to you a letter today" in the hand of the detenu. The learned Attorney-General placed considerable reliance on this letter and argued that this letter clearly indicated that Mr. Riazur Rahman was a secessionist and the detenu was encouraging secession. There is absolutely nothing in the material to show that Mr. Riazur Rahman was a secessionist unless of course this letter gives indication to that effect as contended by the learned Attorney-General. The learned Attorney-General read sinister meaning in even the most innocuous words like "it is most heartening to hear from you" . . . . I can only hope we do not blunder now . . . . I am feeling like discussing your letter with the Mujib Group". This letter has been reproduced by my Lord the Chief Justice in his judgment. The letter, to my mind, is nothing but an analysis of the situation by an observer. As the author puts it, it is "a new theory". There is nothing in this letter to indicate that Mr. Riazur Rahman was a secessionist or that the detenu was encouraging secession. The author of the letter has himself described the letter as "first play" and the following conclusion drawn by him from his theory would indeed show that he was desirous of one Pakistan :-

"Sorry, if I kept you biting your nails. My theory. The Army is the culprit. Bhutto and Mujib are but pawns well moved by them. If Mujib had realised this at the very beginning, he and Bhutto may well have arrived at a settlement which would have rendered L. F. O. redundant."

25. I then come to the undated letter addressed to Mrs. Rukaya Kabir by the detenu, which, according to the learned Attorney-General, was written after the army action on 26th March 1971, while, according to Mr. Manzoor Qadir, it was written somewhere around 22nd March 1972. This letter was very vehemently relied upon by the learned Attorney-General to show that the detenu was encouraging secession. In fairness to the learned Attorney -General, he conceded that the letter by itself was capable of an innocent interpretation but, if read in the context of the entire material, according to him, it gave a totally opposite picture. I have carefully considered this letter independently as well as in the context of other material and find nothing to warrant the conclusion sought to be placed by the learned Attorney-General. We must not lose sight of the fact that this letter was written in the light of the situation then prevailing in East Pakistan as viewed from Karachi. The learned Attorney-General read sinister meaning in the words "I am in constant touch with Dacca" as being in touch with the secessionists, while the material includes only one letter from Riazur Rahman, the brother of Mrs. Rukaya Kabir to the detenu, from Dacca. There is nothing on record to show that Mr. Riazur Rabman was a secessionist. On the contrary as pointed out by me earlier, his letter dated 17th March 1971 would indicate otherwise. This letter by the detenu does not show that he stood for secession or made endeavours to achieve this end. This will be borne out by the following two sentences occurring in this letter :-

"The latest news from Dacca is bad. I think Bhutto is succeeding in making total mess and nothing but disaster is in sight . . . . . when this mad and criminal adventure began I made it known that was the most dastartadly conspiracy . . . . they (Bengalis) have won and I an most happy even though the country has been divided. What is a country when human dignity, freedom and right to live as decent human beings is at stake. I am not interested 9n what happens now."

26. This letter, to my mind, is nothing more than the cry of an angui shed heart.

27. The next document in the material is the photostat of a letter dated 6-4-71 addressed by the Assistant Director, Intelligence Bureau to the Director Intelligence Bureau, Rawalpindi, enclosing a transcript of a talk which took place on 27th March 1972 between the detenu and Mr. Masihur Rahman, Senior Executive Director of the United Bank Limited. The transcript itself consists of four typed unsigned pages. Following relevant passage appears in the aforesaid forwarding letter :-

"Talking to another unidentified person, Mr. Altaf Gohar remarked that the people must at least know what the constitutional draft of the Awami League contains. May be it is good, may be it is mild, may be it is bad. He wondered how could the Peoples' Party say that this would have happened (if the Awami League's demands were accepted) when they did not go to the Assembly, the one place where they could sit together. There is no other place where they can now sit. The Awami League did not demand withdrawal of Martial Law as a condition precedent to the meeting of the Assembly before March 7th, 1971. All these demands came after the decision to postpone the Assembly session"

28. In so far as the transcript is concerned it is incomplete, incoherent, unintelligible and torn out of the context. Mr. Manzoar Qadir, the learned counsel for the detenu, with considerable force pointed out that the least that the detaining authority should have done was to call for the tapes recording this conversation but the authority examining the material appears to have been satisfied with this hopelessly inadequate document.

29. The next comes the transcripts of the alleged conversation between the detenu and Mr. Malik Ghulam Jilani ; the first is of 8th April 1971, it is a typed unsigned copy. The second is of 9th April 1971 and is a photostat unsigned copy ; the third is of 14th April 1971 which is a typed unsigned copy and the last is a photostat unsigned copy. These again are incomplete, incoherent, unintelligible and in some parts in indirect speech. Again Mr. Manzoor Qadir contended with considerable force that the transcripts being what they are, the detaining authority should have at least called for the tapes or made out a fair copy which was at least intelligible and not relied on these transcripts. I may add that no part of these transcripts has been referred to in the grounds of detention, perhaps for the reason suggested by Mr. Manzoor Qadir that these were in most parts unintelligible and/or of no consequence.

30. The next comes a letter dated 8th June 1471 addressed to the Deputy Director, Intelligence Bureau, Rawalpindi, by Assistant Director forwarding a transcript of a conversation between the detenu and Mr. Okuda, a Japanese national which took place in the former's office on June 2, 1971. The forwarding letter goes on to say that the conversation is mostly political in nature, "confirming the belief that Okuda is not just a businessman". The transcript itself, in the material, is an unsigned typed copy. It is incomplete, incoherent, unintelligible and it is not possible to appreciate what the detaining authority could have possibly read into it. It is remarkable that no part of Mr. Okuda's conversation has been transcribed for the remark is "inaudible". It is therefore impossible to give any meaning to what the detenu allegedly aid in the absence of what was said by the other person.

31. The next item in the material are four photographs in two of which, the detenu is seen coming out with the trade representatives of a foreign power and one Mr. K. A. Rahman from the Boat Club. Under the photographs, appear the date 31st August 1971. Except that these photographs have been referred to in "the brief on the case against Mr. Altaf Gauhar" forwarded by the Intelligence Bureau, which brief note is the next item in the material in chronological order, to the Home Secretary, Government of Sind on 19-4-1972, to which I will presently refer, there is no other material connected with these photographs.

32. The next document in chronological order is the aforesaid brief on the case against Altaf Gauhar. Before I come to the said brief note, I will conclude my reference to the material by referring to 4 documents obtained by Mian Anwarali from Messrs Admiral Ahsan, Afzal Khan, Haroon Bukhari and Syed Munir Hussain in the first week of March 1972. In so far as the statement of Mr. Munir Hussain is concerned, the same is nothing less than a personal tirade against the detenu and the detenu's alleged acts of commissions and omissions from 1949 until March 1969. This document has not been referred to either in the grounds of detention or by the learned. Attorney-General in his arguments. In so far as the letters addressed by the aforesaid three gentlemen are concerned considerable reliance was placed by counsel for both the sides. It may therefore be appropriate to reproduce them in toto

"About a month before his arrest Mr. Altaf Gauhar dined with me along with two other friends. During this dinner, he did not express any anti-Pakistan sentiments ; nor do I recollect him ever mentioning such sentiments before me during my acquaintenship with him.

After dinner, he departed, but I did not accompany him as has been, suggested to the house of Mr. Haroon Bokhari."

(Sd.) S. M. Ahsan

Admiral

1st March 1972.

"Dear Sir,

You enquired yesterday whether I had been to a party at Admiral Ahsan's house about four or five days before Mr. Altaf Gauhar's arrest and subsequently to Mr. Haroon Bokhari's house the same evening. I confirm that I did not attend any such party.

I also have no hesitation in confirming, that Mr. Altaf Gauhar has never expressed any anti-state views in my presence."

(Sd.) Afzal Khan.

"Dear Mian Anwar Ali,

Reference our discussion I write to confirm that my wife and I were: present at the house of Mr. & Mrs. Afzal Khan a few days before the: 5th February where also present were the hosts, Admiral and Begum Ahsan, Mr. Omar and Mr. Altaf Gauhar.

During the meeting which took place after dinner, Mr. Gauhar in a general conversation stated that he was not a Pakistani and that concept of Pakistan no longer existed. At that he was severely repri manded by my wife and later retracted his statement."

Yours sincerely,

(Sd.) Haroon Bokhari.

33. The learned Attorney-General has relied on the letter of Mr. Haroon Bokhari, while Mr. Manzoor Qadir has relied upon the letters of Admiral Ahsan and Mr. Afzal Khan and in so far as these proceedings are concerned, we are bound to assume that the version given by Mr. Haroon Bukhari of what the detenu stated in the course of a general conversation has to be accepted as correct. I cannot, however, understand what nexus there is between the letter and the order of detention. First of all the sentence is part of a private after dinner conversation ; secondly it is in the course of a general conversation. Surely these words were not uttered in isolation nor is it. so claimed. At its worst it is an opinion expressed ;an the context of a very recent traumatic experience. The learned Attorney -General very fairly conceded that though the words by themselves were innocent the same may be read in the context of the character, personality and influence of the detenu. I will presently come to this aspect of the argument but for the present it will suffice to say that these words by themselves cannot pursuade one to believe that the detenus were likely to act in a manner prejudicial to the security, public safety and interest and defence of Pakistan.

34. I lastly come to the brief note on the case against Mr. Altaf Gauhar referred to above and to which Mr. Manzoor Qadir made pointed reference in the course of his very able address before us. Mr. Manzoor Qadir contended that this brief note was part of the material placed before the detaining authority and that this note, which purports to summarise the material, is far from correct and it is most likely that the detaining authority may have been misled by it.

35. Paragraph 2 of this brief note deals with the undated letter addressed by the detenu to Mrs. Raukaya Kabir. The note to use the expression of Mr. Manzoor Qadir gives a juxtaposed version of the letter. The author of the brief goes on to say that the detenu was an active supporter of seces sionist movement in East Pakistan and that he does not see any justification in the continuation of West Pakistan. 1 have already discussed this letter at some length earlier, and come to the conclusion that the letter does not warrant the interference that the detenu was an active supporter of the secessionists in East Pakistan. The letter is addressed to a lady in London. There is nothing in the material to show that the lady is a secessionist or that sitting in London she had connection with the secessionist movement in East Pakistan. The further remark. in this paragraph that the detenu does not see any justification in the continuance of West Pakistan is unwarranted by the letter. In fact, the letter shows indifference of the detenu when he says "i am not interested in what happens now". Paragraph 3 of this report refers to Mr. Riazur Rahman's letter, dated 17th March 1971, addressed to the detenu as a letter of "one Raza in Dacca". The letter is understood by the author of the note as showing that Raza .and the detenu were both planning for the break up of Pakistan. It is difficult to understand by what process of reasoning this conclusion is drawn from the letter. It may, however, be noted that the author has made a very serious allegation against Riazur Rahman, though he has chosen to refer him in this paragraph as "one Raza in Dacca" as if he was of no consequence. Paragraphs 4 and 5 of this note refer to the three letters .addressed to Mian Anwar Ali by Messrs Haroon Bukhari, Admiral Ahsan, and Afzal Khan. Mr. Haroon Bukhari is only partly quoted. It further goes on to say that "unfortunately Admiral Ahsan despite his reputed integrity and the high office which he held has refused to confirm his state ment although Haroon Bukhari in his statement has said that the Admiral and his wife were present at the time". Paragraph 6 refers to photostat copies of telephone tapes of conversation with "foreigners" though the material consists of transcripts with only one foreigner. In this paragraph a reference is also made to the conversation between Altaf Gauhar and Motiur Rahman. The note further goes on to say that the detenu had joined bands with secessionist circles in fanning anti-West feelings and that the detenu was in constant correspondence with Mrs. Rukaya Kabir an East Pakistani in London ; that Mrs. Ksbir is a rabid Bangla Deshi and the detenu guided and abetted anti-Pakistan activities in U. K. through this lady ; and that her letters to the detenu indicate how the latter foisted and fomented the idea of a separate state for the Bangalis. All that I will comment on this part of the report is that no part of the material justified these inferences.

36. The learned Attorney-General submitted that this brief as well as the forwarding letters of Intelligence Bureau may be disregarded as what was considered by the detaining authority was the substantive material. I am: unable to accept this for more than one reason. Firstly these documents are admittedly part of the material which was placed before the detaining authority and as such placed before us. Secondly, the allegations that the Trade Representative of a foreign power was really an under cover agent and with whom detenu had close contacts, which allegations expressly find place in the grounds-are contained only in the brief note which is now sought to be ignored.

37. In my opinion, the material read collectively or individually does not stand the test of reasonableness laid down by the Supreme Court of Pakistan. In my view, the detaining authority could not have been reasonably satisfied upon the material which was before it that it was necessary to detain the detenu for reasons alleged.

38. When we examine the conclusions arrived at by the detaining authority from the aforesaid material placed before it, which conclusions are reflected in the grounds of detention, I find that the nexus between the material and the grounds is wanting. Ground No. 1 speaks of "a systematic compaign on the part of the detenu to patronise anti-state elements of East Pakistan and to encourage them in their ideas of secession and ultimate disintegration of Pakistan". Whatever connotation one may give to the word "patronise" in this context, the material does not disclose any systematic campaign. A systematic campaign will import a plan, a method or co-ordinat ing activities and in the material there is no evidence of any such plan, method or co-ordinating activities. The anti-state elements of East Pakistan referred to in this ground presumably refer to Mrs. Rukaya in London, Riazur Rahman in East Pakistan and Masihur Rahman in Karachi. The examination of the material as I have stated above does not warrant the conclusion that these persons entertained the ideas of secession. Ground. No. 2 refers to an undated letter addressed by the detenu to Mrs. Rukaya Kabir in March 1971. The ground does not state that this letter was written after the army action on 26th March 1971. The ground gives a. juxtaposed version of the letter. I have already discussed this letter and the sinister meaning sought to be drawn therefrom is unjustified. Ground No. 3 relates to a conversation between the detenu and Mr. Masihur Rahman of the United Bank Limited held on 27th March 1971. Stray sentences have been picked up from the transcript to give the conversation a subversive effect. I have discussed this transcript and I find that the conclusions sought to be drawn from it and as incorporated in this ground, are unjustified. The next ground relates to the Japanese national and the conclusions drawn in this ground are based on the transcript of a talk between the detenu and this Japanese national. To my mind, it is impossible to draw these conclusions from the transcript on record. Ground No. 5 relates to the under cover agent of a foreign power with whom the detenu is alleged to have maintained close contacts and held close door discussions on August 18th 1971. In so far as the material relating to this ground is concerned we have only two perfectly innocent photographs and nothing more, except, of course, that in the brief note referred to above, the allegation is made that this person was an under cover agent and that he had a meeting for 45 minutes with the detenu on 18th August 1971 and a luncheon at the Boat Club on 31st August 1971. This brief note significantly omits to mention that at least ostensibly the under cover agent was a trade representative of his country in Karachi or to allege that the detenu had any knowledge that he was also an under cover agent. The last ground relates to the remark made by the detenu at a dinner in the house of Mr. Afzal Khan in February 1972 and proceeds to reproduce the sentence attributed to the detenu that "he was no longer a Pakistani and the whole of Pakistan no longer existed". In the material the words attributed to the detenu are not the "whole of Pakistan", but "concept of Pakistan". I have discussed the material on which this ground is based and in my view there. is no rational connection between the sentences, torn as they are out of their context, reproduced in this ground and the order of detention.

39. It will further be noted that the entire material, except perhaps the letter of Mr. Haroon Bukhari, relate to secession of East Pakistan resulting in the disintegration of the country, which was allegedly encouraged by the detenu. The learned Attorney-General admitted that the disintegration had in fact taken place on 21st December 1972. What was then, to borrow the expression from the judgment of my Lord the Chief Justice of Pakistan in Jilani's case, "the imminent and real necessity" to detain the detenu for preventing him, in effect, to bring about secession, on 7th July 1972 or for that matter 4th February 1972? To meet this argument the learned Attorney- General invited us to taken note of the personality, influence and the position of the detenu and therefore his capacity to do enormous mischief. But then the learned Attorney-General was, in the cross-examination of the detenu at pains to establish (I should not be understood as implying that it was so established for we were neither called upon nor was it necessary to give any findings thereon) that the detenu was a thoroughly discredited dismissed government servant ; an immoral person ; a person who had acquired unjustified wealth ; a muzzler of press, a confidant of a hated dictator and one who did not hesitate to abuse his official position to advance the interest of his brother, wife and friends. When all this was pointed out to the learned Attorney-General he went on to say that the detenu was a highly frustrated and embittered person and if to this is added the fact that he was the Editor-in-Chief of the national daily `Dawn' any expression of opinion from such a person on political matters, even if not motivated towards a sinister object, could well have disasterous effect. He further went on to argue that Court should not in this context, lose sight of the existence of Emergency which made .the detenu all the more potentially dangerous. These contentions to my mind, in the absence of reasonable grounds in the material before the detaining authority, are irrelevant. Moreover any such apprehensions are belied by an examination of the editorials in the Dawn written by the detenu from 25-12-71 to 4-4-1972 ; these editorials which have been brought on record by the detenu have neither been referred to by the learned Attorney-General nor any of them relied on in the material. Surely, the germs if not the seeds of the alleged proclivities of the detenu would have found their way into these editorials. Since these editorials were never referred to us and were also not made subject matter of any grievance, it must follow that they do not contain any material to indicate the likelihood of the detenu acting in a manner prejudicial to the security, the public safety and interest, and defence of Pakistan.

40. I am, therefore, in respectful agreement with my Lord the Chief Justice that the material before the detaining authority, applying the standard of a reasonable man did not justify the making of impugned order of detention dated 7th July 1972. My Lord the Chief Justice has in a very lucid and learned judgment dealt with at length the numerous constitutional and legal contentions raised before us. I am in humble and most respectful agreement. In view of his acknowledged erudition on the subject of constitutional law it will be presumptuous on my part to add anything further.

I, therefore. agree with my Lord the Chief Justice that proper order in this case will be to direct that the detenu be released forthwith unless required to .be detained under any other lawful order.

K. B. A. Petition accepted.