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Writ Petition No. 1200 of 1967, decided on 14th November 1967.

r. 32 (1)(c)‑‑Expression "shall riot remain within specified area in Pakistan except on the conditions . . . . and subject to the restrictions specified"‑Use of word "except" does not imply that authority in first instance is bound to impose certain conditions and restrictions on suspected person and it is only when he contravenes such conditions or res trictions that order of externment can be passed‑Authority, acting under rule, competent straightaway to extern person by passing order of externment simpliciter.

A Deputy Commissioner exercising his power under rule 32 (1)(c) of the Defence of Pakistan Rules, 1965 passed an order against a person and directed that he‑

"shall not remain or enter in the area within ten miles of Indo‑Pak border of the Lahore District."

This order was challenged by a writ petition in the High Court wherein it was contended that an authority acting under the said rule has no power to pass an order whereby he could straightaway extern a person from any area. It was argued that since the intention under the law was to safeguard the interest, security, defence, etc. and the Legislature deemed it possible that such interests may be safeguarded by simply placing restrictions or conditions on the stay of a particular person in a particular area it was provided that it was only on his committing a default in the observance of such conditions or restrictions that he was to be visited with the penalty of externment from that area. Refe rence was made to S. 5 (1) (a) of the West Pakistan Maintenance of Public Order Ordinance, 1960 and it was urged that the language employed in that section left no doubt in one's mind that a District Magistrate under that law could straightaway extern a person from any area. While there was no mention in the said Ordinance about the impositions of conditions or restric tions, the provisions of rule 32 (1) (c) of the Defence of Pakistan Rules, 1965, it was said, made such imposition and its breach condition precedent to the externment of a person under the rule

Held, that the argument possessed all the superficial attraction which an ingenuous submission based upon the catchword "civil liberty" normally possesses. It, however, did not correctly interpret the provision of law under which the person has been dealt with. The liberty of an individual cannot be allowed to override the existence of the State itself, for if the latter loses its sovereignty the citizens whose liberty is sought to be pro tected would not only lose such liberty but be subjected to all other consequences which follow enslavement by a foreign power. The first part of clause (c) to sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, 1965 authorises the officer concerned to direct a person that he shall not remain within any specified area in Pakistan; It is followed by the word "except" and thereafter lays down that conditions and restrictions could be specified in the order or the authority or person who may specify conditions may be mentioned in the order and the person may be permitted to stay in that area subject to the observance of those conditions and restrictions. There is no difficulty in appreciating the reason for the insertion of the latter part of the clause after the word "except". If instead of extern ing a person from a particular area the authority concerned were to impose restrictions and conditions upon him and this clause was not a part of the Statute, a possible argument could be advanced on behalf of the person against whom the order was directed that the authority concerned has only the power to pass an order of externment simpliciter but does not enjoy gap power of making his stay in that area conditional, upon the observance of restrictions etc. specified by him.

The conclusions reached by the Court, therefore, was that (a) the mere circumstance that different words had been employed in the West Pakistan Maintenance of Public Order Ordinance, 1960, in the section providing for externment of citizens is not relevant for the purpose of construing corresponding provisions of the Defence of Pakistan Rules, 1965, which were framed in circumstances entirely different from those that obtained when the first‑named Ordinance was passed; (b) rule 32(1)(c) of the said Rules is in two part3, the first empowering the authorities laid down therein to pass orders externing any person hit by the provisions of that law, and the second providing for the impostion of restrictions and conditions on any citizens which, if not observed, would be punished by his externment from the area in which he is living; (c) it is not obligatory for an authority acting under rule 32 (1) (c) to require a person against whom the order is being made to observe certain conditions and restrictions before actually externing the person from any area.

Variation appearing in language employed in different statutes‑Change in language, despite facts that provisions in two in pari materia, cannot be considered to be indicative of change in intention of Legislature.

Maxwell on Interpretation of Statutes, 11th Edn. p. 319 ref.

Interpretation calculated to suppress mischief and advance remedy‑Likely to be more in accord with intention of Legislature.

Messrs S. A. Haroon and others v. The Collector of Customs, Karachi and another P L D 1959 S C (Pak.) 177; Keats v. Lewis M. Consolidated Collieries Ltd. 1911 A C 641; Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees' Union, Dacca and others P L D 1961 S C 403 ref.

M. Aslam Nagi for Petitioner.

Mian Aslam Riaz Hussain, A. A.‑G. for Respondent.

Dates of hearing: 1st and 2nd November 1967.

Muhammad Akbar, who resides in village Naiyake, Tehsil Kasur, District Lahore, a place situated within six miles of the Indo‑Pakistan Border, has felt aggrieved by an 'order of the Deputy Commissioner, Lahore, dated the 26th of June 1967, whereby it has been directed that he

"shall not remain or enter in the area within the ten miles of the Indo‑Pak border of the Lahore district,"

till further orders, and has, therefore, filed the present writ petition.

2. The order purports to have been passed in exercise of the powers conferred upon the Deputy Commissioner under rule 32 (1) (c) of the Defence of Pakistan Rules, 1965, the same having been delegated to him by the Government of West Pakistan by a notification dated the 2001 of September 1965. The Provincial Government in turn enjoyed these powers under a delegation from the Government of Pakistan, the statutory repository of this power, by virtue of ‑a notification dated 6th September 1965.

3. The petitioner has challenged the order on the following grounds‑--

(a) An authority passing an order under clause(c) of rule 32(1). has per force to specify in the order, the conditions which the object of the order must fulfill for staying in a particular area on pain of being externed. Instead of specifying any condi tions the order in dispute simply directs the petitioner to make himself scarce in a particular area; and (b) the order is based on the report of the Senior Superintendent of Police who moved in the matter on the initiative of the Station House Officer who is acting malts fide.

It has also been asserted that the action of the Station House Officer in refusing permission to the petitioner to live in any of the villages named by him i.e. Orara, Kotli Rai Abu Baqar, Raja Jang and Todeypur, is without any lawful authority because these villages are situated outside the ten mile border belt in respect of which alone an order could have been made.

4. Learned counsel for the petitioner contended that pro visions of section 5 (1) (a) of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) may be referred to with advantage for elucidating the intention of the Legislature on the question of externment of citizens from a particular area. The relevant provision runs as under:‑‑‑

"5. (1) Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may by order in writing, give any one or more of the following directions, namely, that such persons‑

(a) shall not enter, reside or remain in any area that may be specified in the order;".

It is maintained that the language used in this section left no doubt in one's mind that a District Magistrate acting under this law had the power to pass an order whereby he could straightaway extern a person from any area. It was not necessary for the District Magistrate to make his order conditional upon the non‑fulfillment of certain restrictions imposed upon the person against whom the order was passed. It was submitted that an order, like the one passed in the present case, could be legally and validly made under that law had the same been applicable.

5. As against this, the provisions of rule 32 (1) (c) of the Defence of Pakistan Rules, 1965, run as follows:

"32. Restriction of movements of suspected persons, restriction orders and detention orders.‑(1) The Central Government, if satisfied with respect to any prejudicial to the security, the public safety or interest or the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other powers, the maintenance of peaceful conditions in any part of Pakistan the maintenance of essential supplies and services or the efficient conduct of military operations or prosecution of war, it is necessary so to do, may make an order‑

(a)

(b)

(c) directing that he shall not remain within any specified area in Pakistan except on the conditions and subject to the restrictions specified in the order or to be specified by an authority or person specified in the order;"

while there was no mention in the Ordinance of 1960 about the imposition of conditions or restrictions, failure to observe which could result in externment of a person, this rule, according to learned counsel for the petitioner, made such imposition and its breach preconditions to the externment of a person under rule 32 (1) (c). It was argued that since the intention was to safeguard the interest of security, public safety, defence and maintenance of public order etc. and the Legislature deemed possible that such interest may be safeguarded by simply placing restrictions or conditions on the stay of a parti cular person in a particular area it was provided that it was only on his committing a default in the observance of such conditions or restrictions that he was to be visited with the penalty of externment from that area.

6. Strength for this argument was sought to be drawn from section 15 of the Defence of Pakistan Ordinance, 1965, which lays down:‑--

"Ordinary avocations of life to be interfered with as little as possible. An authority or a person acting in pursuance of this Ordinance shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of Pakistan."

It was suggested that since the Legislatures was greatly interested, and rightly so, in preserving the ordinary economic and social life of the country and the individuals, it deemed it necessary that persons against whom it became necessary to pass orders under the Ordinance should nevertheless be as far as possible allowed to carry on their normal life without unnecessary interven tion. It was in keeping with this declared object of the law that while making the rules the Government took care not to authorise an officer to extern a person straightaway from a district if the object could be achieved by placing restrictions upon him or making his stay conditional upon observance of certain limitations, it was only if the person against whom the order was made offended against such conditions or restrictions that he was liable for externment.

7. This argument of learned counsel for the petitioner possesses all the superficial attraction which an ingenuous) submission based upon the catchword "civil liberty" normally possesses. It, however, does not correctly interpret the provision of law under which the petitioner has been dealt with. The liberty of an individual cannot be allowed to override the existence of the State itself, for if the latter loses its sovereignty the citizens whose liberty is sought to be protected would not only lose such liberty but be subjected to all other consequences which follow enslavement by a foreign power.

8. It cannot be forgotten that' the Defence of Pakistan Ordinance and the Rules were promulgated at a time when Pakistan was faced with aggression by a neighbouring power, at least six times stronger than itself, which had tried to sneak into its borders unannounced by trying to enact another Pearl Harbour. If the argument of learned counsel were correct the result would be that the security of the border, which had already been infiltrated by enemy forces quietly in the dark of the night, would have been further jeopardised because no order of externment of people indulging in espionage against the interest of the country could be passed without first laying down certain conditions for their stay and waiting for evidence that those conditions had not been fulfilled. Irrepa rable damage could meanwhile be caused by such a person to the country. As the learned Assistant Advocate‑General, who conducted the case with remarkable ability on behalf of the Government, pointed out, the circumstances under which the law was enacted could never be forgotten by those who live in this country. People indulging in espionage on the border belt were keeping the invaders so well informed about strategic movements in this part of the country that no sooner railway trains carrying ammunition or vital war supplies arrived at the bases near the border belt enemy planes would appear and swoop down upon them in an effort to blast the very material which was so crucial to the defence of the country. The object of the law was to stop such activity by nipping the evil in the bud and not to give a long rope to the offenders in the vague and vain hope that they will ultimately hang themselves by it.

9. The mere fact that the phraseology employed in the Ordinance of 1960 was different from that used in the Ordinance and Rules of 1965 does not lead to the conclusion that different results were necessarily intended. Apart from the fact that one of them is a Provincial piece of legislation while the other was enacted by the Central Legislature, Courts have never tried to place fetters upon the draftsman in improving upon the language used in previous Statutes and unless impelled to do so by circumstances which were apparent any such deviation from the language previously employed has not normally been taken as an indicia to a change in the intention of the Legislature. Such a change has never made the Courts desist from giving the words their natural meaning irrespective of the employment of different phraseology.

10. It is a general rule that "when an amending Act alters the language of the principal Statute, the alteration must be taken to have been made deliberately." (Maxwell on Interpre tation of Statutes, 11th Edn., p. 319). And therefore while interpreting the amended language one has to bear in mind the fact that an anxious deliberate alteration has been made with a view to attaining a different object. This would, however, not be correct in the case of the use of different language in different Statutes though in some respects they may be in pari materia. While dealing with the subject "variation of language" Maxwell has observed at p. 316 of his book "Interpre tation of Statutes"‑‑‑

"Even where the variation occurs in different Statutes the change is often not indicative of a change of intention."

The mere circumstances, therefore, that the language employed in the Ordinance of 1960 is not the same as that used in the Rules of 1965, does not necessarily mean that the intention of the Legislature was to limit the power of externment of persons conferred upon authorities, by making orders for that purpose conditional upon the breach of certain conditioners prescribed in them. We have, therefore, to fall back upon the unambiguous language used in Rules 32 (1) (c) without invoking the aid of odious comparisons with the language employed in the Ordinance of 1960.

11. It was rightly submitted by Mr. Aslam Riaz Husain, the learned Assistant Advocate‑General that rule 32 (1) (c) consisted of the two parts‑the first part empowering the District Magistrate to extern a person from a particular area and the second permitting him to prescribe conditions on which a person could stay in a particular area on pain of being externed. The first part of clause (c) to sub‑rule (1) of rule 32 authorises the officer concerned to direct a person that he shall not remain within any specified area in Pakistan; It is followed by the word "except" and thereafter lays down that conditions and c restrictions could be specified in the order or the authority or person who may specify conditions may be mentioned in the order and the person may be permitted to stay in that area subject to the observance of those conditions and restrictions.

12. There is no difficulty in appreciating the reason for the insertion of the latter part of the clause after the word "except". If instead of externing a person from a particular area the authority concerned were to impose restrictions and condition upon him and this clause was not a part of the Statute, a possible argument could be advanced on behalf of the person against whom the order was directed that the authority concerned has only the power to pass an order of externment simpliciter but does not enjoy any power of making his stay in that are conditional upon the observance of restrictions etc. specified by him.

13. There is another well known tenet of interpretation of Statutes that a Statute should be so interpreted as to suppress the mischief against which it is directed and to advance the remedy which it has provided. In Messrs S. A. Haroon and others v. The Controller of Customs, Karachi and another (P L D 1959 S C 177) the Supreme Court observed as follows :‑-

"All rules of interpretation have been devised as aids to the discovery of the legislative intent behind an enactment. Where the words are plain and unambiguous that intent can be best judged by giving full effect to the ordinary grammatical meaning of those words. But when this is not the case, an attempt should be made to discover the true intent by con sidering the relevant provision in the context of the whole Act in which it appears and by having regard to the circumstances in which the enactment came to be passed. The previous state of the law the mischief sought to be suppressed and the new remedy provided are relevant factors to be given due consideration. An interpretation which is calculated to suppress the mischief and advance the remedy is likely to be in accord with the intention of the Legislature. It would not be a far‑fetched surmise that the enactment of item S1 of section 167 was found necessary in order to deal with the evil of smuggling which had assumed large proportions in the country. There can be no other object in bringing mere possession of the relevant type of goods within the pale of this penal law, and presumably this measure was resorted to, as smuggling is a surreptitious process and the public autho rities could not be expected to adduce proof that the goods in question had been brought across the customs frontiers, without payment of duty or the legal sanction of a permit from the relevant authority This view would be consistent with the object of eradication of smuggling which appears to be the foundation for this legislation and would avoid the pitfalls which the literal interpretation of item 81, standing by itself, would appear to uncover."

The conclusion that we have arrived at finds support from these observations made by the Supreme Court since, as already stated, we are of the view that the mischief sought to be suppressed by the Act had grave propensities and its suppression a sine qua non for the very existence of Pakistan as‑ a sovereign State.

14. The Supreme Court also approved of the observation made by Lord Atkinson in Keats v. Lewis M. Consolidated Collieries Ltd. (1911 A C 641) while daciding the case Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company, Employees Union Dacca, and others (P L D 1961 S C 403 at p. 417).

"In the construction of a Statute, it is, of course, at all times permissible to have regard to the state of things existing at the time the Statute was passed, and to the evils which as it appears from its provisions it was designed to remedy."

15. The second point raised by the learned counsel for the petitioner is that the order in dispute was passed mala fide, The only reason advanced in support of this assertion is that the Station House Officer at whose initiative the order is said to have been passed had his own axe to grind against the petitioner. The very basis of this allegation has been knocked out by the learned Assistant Advocate‑General who has produced before us the letter on the basis of which the order was passed. We have shown this letter to the learned counsel for the petitioner also. It is clear that the source of information against the petitioner did not emanate even from the department to which the Station House Officer belongs but from an entirely independent agency of the Government of Pakistan. The petitioner has not levelled any allegations against that agency. The attack on the grounds of mala fides is, therefore, without any foundation. As for the third grievance, suffice it to say that the respondents have denied that the Station House Officer has placed any restrictions on the stay of the petitioner in the villages named by him.

16. Our conclusion, therefore, are that‑--

(a) the mere circumstance that different words had been employed in the West Pakistan Maintenance of Public Order Ordinance, 1960, in the section providing for externment of citizens is not relevant. for the purpose of construing corres ponding provisions of the Defence of Pakistan Rules, 1965, which were framed in circumstances entirely different from those that obtained when the first‑named Ordinance was passed;

(b) rule 32 (1) (c) of the said Rules is in two parts, the E first empowering the authorities laid down therein to pass orders externing any person hit by the provisions of that law, and the second providing for the imposition of restrictions and conditions on any citizen which, if not observed, would be punished by his externment from the area in which he is living;

(c) it is not obligatory for an authority acting under rule 32 (1) (c) to require a person against whom the order is being made to observe certain conditions and restrictions before actually externing the person from any area; and

(d) that the allegations of mala fides are ill‑founded and have no basis whatsoever.

17. In these circumstances we dismiss the petition but since contentions points of law were involved we leave the parties to bear their own costs.

K.B.A. Petition dismissed.

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