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Criminal Miscellaneous Application No. 566 of 1965, decided on 11th January 1966.

S. 491 and Con stitution of Pakistan (1962), Art. 98--Writ-Habeas Corpus ---Powers of High Court to set at liberty person detained without lawful authority-West Pakistan Control of Goondas Ordinance (XXXV of 1959), S. 24.

The jurisdiction to issue orders of the nature of habeas corpus has been with the High Courts for a very long time. Apart from the powers given to the High Courts under section 491, Cr. P. C. there is Article 98 of the new Constitution which confers on the High Court the powers to set free persons detained in unlawful custody and it is noticeable that while with regard to certain other orders mentioned in the said Article, the High Courts can grant relief only at the instance of a person aggrieved, no such restriction with regard to the person who can move the High Court is placed when the matter brought before the Court relates to setting at liberty a person detained without lawful authority.

Maulvi Farid Ahmad v. (government of West Pakistan P L D 1963 Lah, 109; Zafrul Ahsan v. Republic of Pakistan P L D 1960 S C 113; Muhammad Ayub Khouro v. Pakistan P L D 1960 S C 237; P L D; 1965 S C 67; P L D 1957 Lah. 462; P L D 1957 Pesh. 41 and P L D 1965 Lah. 135 ref.

Ss. 8 (2), 19 & 24 read with Constitution of Pakistan (1962), Art. 98----Tribunal while passing impugned order under S. 8 (2) not shown to have acted mala fide and used Power under Ordinance merely as a cloak---Such order neither challengeable under S. 24 or Ordinance or Art. 98 of Constitution nor revisable by High Court under S. 19.

S. 491--Petitioner challenging order of his detention under S 8(2), Nest Pakistan Control of Goondas Ordinance (XXXV of 1959), as being illegal ---Pending disposal of petition valid order Produced before Court ---Detenu held cannot he set at liberty, in circumstances of case.

A I R 1945 F C 18; P L D 1950 Pesh. 22; P L D 1958 Pesh. 38; P L D 1959 Azad J & K 12 and P L D 1965 Dacca 514.

Muhammad Ali Shaikh for Appellant.

Kazi Akhtar A. A.G. assisted by Shamsuddin for Respondents.

Dates of hearing: 3rd and 4th January 1966.

This is the second petition by Sher Alam under section 491, Cr. P. C. for release of his brother Muhammad Ismail from detention made in pursuance of an order passed by the District Magistrate and Tribunal, Hyderabad in exercise of his powers under section 8 (2) of the West Pakistan Control of Goondas Ordinance, 1959 (hereinafter called Ordinance on 7-9-1965).

2. Relevant facts for our purpose are that Muhammad Ismail was arrested in pursuance of the non-bailable warrant issued by the District Magistrate and Tribunal, Hyderabad after he had taken cognizance of the case filed by S. H. O., City Police Station, Hyderabad under section 5 read with sections 13 and 1 4 of this Ordinance on 6-9-1965. His request for release on bail was refused by this Tribunal - and thereafter it passed the order under section 8 (1) of this Ordinance for his detention in custody until the enquiry was concluded. But it appears that this Tribu nal made no reference to the Divisional Commissioner, Hyderabad within the meaning of proviso to subsection (2) of section 8 of the Ordinance when the period of 2 months expired on 6-11-65. First Petition (Criminal Misc. Application No. 488/65) was filed by the same petitioner and during its pendency in this Court, reference was made by the Tribunal to the Divisional Commissioner who by his order dated 30-11-65 extended the period of detention from 7-11-65 till 6-1-66. In view of this position became infructuous and was therefore dismissed by me by an order dated 13-12-65. Thereafter the present application was filed on 16-12-65.

3. Main objection raised on behalf of the State is that this Court has no jurisdiction in view of section 24 of this Ordinance and it is reproduced below:

"No proceedings taken or orders passed under this Ordinance, shall be called in question otherwise than as provided hereunder, and no civil or criminal proceedings shall be instituted against any person for anything done or intended to be done under this Ordinance, or against any person for any loss or damage caused to, or in respect of any property as a result of an act done or intended to be done under this Ordinance.

The learned Additional Advocate-General in support of this contention had argued before me that the petitioner has disputed the validity of the order passed by the Divisional Commissioner on 30-11-65 extending the period of detention from 6-11-65 td 6-1-66 but this Court had no jurisdiction to question this order. Undoubtedly this section 24 is intended to oust the jurisdiction of Court with regard to orders passed under the Ordinance but the question that arises is to what extent the jurisdiction is ousted. The jurisdiction to issue orders of the nature of habeas corpus has been with the High Courts for a very long time. Its history i.e. how the High Courts were invested with certain power is given in details in the case reported in P L D 1963 Lah. 109. Apart from the powers given to High Court under section 491, Cr. P. C. there is Article 98 of the new Constitution which confers on the High Court the powers to se free persons detained in unlawful custody and it is noticeable that while with regard to certain other orders mentioned in the said Article, the High Court can grant relief only at the instance of a person aggrieved, no such restriction with regard to the person who can move the High Court is placed when the matter brought before the Court relates to setting at liberty a person detained without lawful authority. It was observed in the above stated case that:

"That the power to set at liberty a person who is unlawfully detained exists in this Court by virtue of Article 98 of the new Constitution is hardly open to question, and if in this regard there is any conflict between the Ordinance and the Constitu tion of the Republic of Pakistan, it is undeniable that the provisions of the Constitution will prevail because though the Constitution keeps alive the laws passed before the coming into force of itself, those laws can continue in force only if they are not repugnant to it ..But I am clear in my mind that even if Article 98 of the Constitution of the Republic of Pakistan could bat be invoked with regard to the power of this Court to pas appropriate orders concerning persons who were unlawfully detained, section 23 of the Ordinance could not be a complete bar to the exercise of that jurisdiction. It will be noticed that section 23 of the Ordinance bars the jurisdiction of Courts only in those cases in which the order impugned before them has been passed under the Ordinance. In other words, if the order is justified by the provisions of the Ordinance, and none of those provisions clothes the order with an infirmity the powers of the Courts to rectify the harm ensuing from those orders shall not exist. If, however, the impugned order does not fall within the four corners of the Ordinance, the power to this Court to issue an appropriate order would exist provided it does exist under the Ordinary law of the land. I have no hesitation in saying that section 23 of the Ordinance can operate against the person who seeks an order from this Court only if it cannot be shown by him that the impugned order does in some manner contravene the very law under which it purports to have been passed. What I have said above may well be illustrated by one or two examples. If for example an order detaining a person is passed on grounds for which no order of detention can be passed under the Ordinance, it can hardly be doubted that the order could not be claimed to have been passed under the Ordinance. Or if an order is passed with an ulterior motive and the words which would make it appear that the order was passed for the purposes mentioned in the Ordinance are used therein as a blind the power of the Court to rectify the injustice thus perpetrated could not taken away provided the person who wants the Court to set at naught the order which purports to have been passed under the Ordinance can satisfy the Court that the order was entirely mala fide.

Similar view was expressed in two decisions of the Supreme Court reported in Zafrul Ahsan v. Republic of Pakistan (P L D 1960 S. C 113) and Muhammad Ayub Khouta v. Pakistan (P L D 190 S C 237). In the first case it was held;

"Where, however, the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken, though it purports to have been taken, under the statute, the order will not, it accordance with a long line of decisions in England and in the sub-continent, be treated as an order under the statute."

Second case was in respect of an order passed under the Martial Law Regulation Act and it was observed;

But calling in question an order made under a Martial Law Order is entirely different; it may or may not amount to questioning the Martial Law Order itself, the former being prohibited, the later not.

Another case referred to me in this connection is reported in P L D 1965 S C 671 where it was held that

"A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. A mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for soiree other collateral or ulterior purposes."

In this particular matter it is not the case of the petitioner that the two orders passed by the Tribunal on 7-9-65 and Divisional Commissioner, Hyderabad on 30-11-65 are mala tide i.e. the Ordinance has been used as cloak for the detention of Muhammad Ismail. Finding this position Mr. Muhammad Ali Shaikh the learned advocate for the petitioner argued before pie that the validity of the order passed by the Divisional Com missioner on 30-11-65 was not being challenged by him. He had urged before me that the detention of Muhammad Ismail after 7-11-65 was illegal for the reasons that the reference was not made by the Tribunal under the Ordinance before the expiry of 2 months period, and secondly that the order passed by the Tribunal on 7-9-65 had died its natural death as the period of detention was not extended by the Divisional Commissioner before 6-11-65. He had further urged before me that the order passed by the Divisional Commissioner on 30-11-65 was not an independent action taken by him as reference by the Tribunal was necessary. He had also argued before me that the Divisional Commissioner under his order dated 30-11-65 could not legalise the detention of Muhammad Ismail retrospectively. According tar him the Divisional Commissioner had refused through the matter and violated the principles of natural justice when the detenu was not served with any notice after the reference was made to him by the Tribunal. Last contention raised by him was that the provisions of the Ordinance must be strictly followed. In this connection he had relied upon a case reported in P L D 1951 Lah. 462 where it was observed that

"The provisions of a Statute which imposes restrictions on the personal liberty of a subject must be strictly and rigorously complied with before an order of detention without trial it a regular Court of law, can be upheld by the Courts. The liberty of the subject is too precious an asset to be interfered with unless an order of detention as passed in strict conformity with the provisions of the detention law however formal an character they may appear to be, arid alb the statutory obligations enjoined on the detaining authority are carried out to the letter, "

Another case referred to me in this connection is reported in P L D 1957 Pesh. 41. It was observed that:

"Where the custody of a person, whether public or private is found to be completely illegal and without jurisdiction then the question that, the petitioner has come to the Court seeking relief after some delay is absolutely irrelevant. No body can be detained in public or private custody without the order of a competent authority, and if an illegal detention comes to the notice of a High Court either tender section 491 of the Criminal Procedure Code or under Article 170 of the Constitution of Pakistan, it would be its duty to interfere at once and release the person so illegally detained.

Last case in this respect is reported in P' L D 1965 Lah. 135. It was observed that:

"If the arrest of a person cannot be justified in law, there is no reason why that person should not be able to invoke the jurisdiction of this Court immediately for the restoration, of his liberty which is his basic right. In all cases where a. person is detained and hr alleges that his detention is unconstitutional and in violation of the safeguards provided in the Constitution, or that it does not fall within the statutory requirements of the law under which the detention is ordered, he can involve the jurisdiction of this Court under Article 98 of and ask to be released forthwith. It has to be observed that the right of the petition for habeas corpus is a high prerogative right and is a constitutional remedy for all matters of illegal confinement. This is one of the most fundament rights known to the Constitution. There being no limitation placed on the exercise of this right it cannot be imported on the actual or assum ed restriction which may be imposed by any subordinate legislation."

It is not the case of the petitioner that the Divisional Com missioner or the Tribunal has acted mala fide and used their powers under the Ordinance merely as a. cloak. Finding this position i.e. the petitioner could not question the order dated 30-11-65 of the Divisional Commissioner under section 241 of the Ordinance and secondly that he could not at present approach this Court under Article 98 of the Constitution the petitioner has urged before me that the orders passed by the Tribunal for issue of non-bailable warrant and the detention of Muhammad Ismail are illegal. But in this respect powers to High Court under the Ordinance are limited to revisions o specified matters mentioned under section 19. But the order challenged. by the petitioner do not fall under section 19 of this Ordinance and hence the petitioner has no case in this respect also.

4. Lastly it was urged before me by the learned Additional Advocate-General that a valid order passed by the Divisional Commissioner on 30-11-65 has been produced before the disposal of the present petition and hence the detention of Muhammad Ismail cannot be said to be illegal. It w held in a case reported in A I R 1945 F C 18 that:

"If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner."

This decision has been followed with approval in later cases reported in P L D 1950 Pesh. 22, P L D 1958 Pesh. 38, P L D 1954 Azad J & K 12 and P L D 1965 Dacca 514. In this particular case the Divisional Commissioner, Hyderabad had jurisdiction to pass an order on 30-11-65. Reference had been made to him by the Tribunal for further detention as it was expected that the inquiry would continue for more than 2 months. As a result of this discussion I find very little substance or material in this application which is accordingly dismissed.

Application dismissed.

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