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Writ Petition No. 456 of 1967, decided on 18th August 1967.

Ss. 123, 114 (e) & 114 (g) Evidence as to affairs of State‑Document regarding which privilege claimed on basis of its being unpublished record relating to affairs of State‑Objection regarding its production in evidence if taken in proper form by head of department Conclusive ‑ Adverse presumption, in such circumstances, cannot be raised on account of non production of such document Action taken under r. 32, Defence of Pakistan Rules, 1965‑Pre‑ ventive and not punitive‑Contention that raising of initial presump tion of regular performance in favour of official act likely to displace initial presumption of innocence of accused‑Held, falla clous‑Defence of Pakistan Rules, 1965, r. 32.

On the point of privilege that can be claimed under section 123 of the Evidence Act, 1872 in respect of a document on the basis of its being unpublished record relating to tilt: affairs of the State, Judicial authorities are not quite uniform. However, the view that has been expressed in Ghulam Ali v. Abdul Hafeez P L D 1962 Lah. 765 and subsequently approved by a Full Bench in Nasim Fatma v. Government of West Pakistan P L D 1967 Lah. 103 holds the field wherein it has been stated that " if objection is taken in proper form by a head of depart ment under section 123 of the Evidence Act to the production of an evidence on the ground that it relates to affairs of State, it is conclusive. The anxiety expressed in some of the judg ments in which the opposite view has been taken is with due respect misplaced. In the larger interest of the State the provision of section 123 of the Evidence Act must be given full effect irrespective of any possible injury to a private litigant".

Where, therefore, the Court as satisfied from the sworn state ment of the Home Secretary that privilege had been claimed in respect of document falling within ambit of section 123 of the Evidence Act, 1872, the Court would not be justified in raising an adverse presumption on account of non‑production of such document in evidence and a fortiori an initial presumption regard ing the regular performance of the official act would be available under S. 114 (e) of the Evidence Act, 1872. The contention that the availability of the initial presumption of regular performance in favour of official act in such circumstance would run counter to the initial presumption of innocence available to an accused person under the law, is fallacious where the cases do not concern punitive actions but relate to preventive detention (e.g. under r. 32 of the Defence of Pakistan Rules, 1965) which is not resorted to in normal circumstances but is an action sought to be taken in exceptional circumstances, when there is imminent threat to public peace and tranquility.

Ghulam Ali v. Abdul Hafiz P L D 1962 Lah. 765 ; Nasim Fatima v. Government of West Pakistan P L D 1967 Lah. 103 and Umar Hayat v. Crown P L D 1951 F C 15 ref.

r. 32‑Order of deten tion signed by Home Secretary on direction of Provincial Governor who had satisfied himself on basin of information received from various sources‑Order challenged in writ petition and Home Secre tary examined in Court as to satisfaction of Governor‑Contention that evidence of Home Secretary mere hearsay and, therefore, could not be relied upon‑Held, not valid‑Constitution of Pakistan (1962), Arts. 80 & 81‑Evidence Act (I of 1872), S. 60.

In order of detention under Rule, 32 of the Defence of Pakistan Rules, 1965 against a person mentioned that "whereas the Governor of West Pakistan" was satisfied and further that "there fore in exercise of the powers conferred on him by clause (b) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, 1965 . . . the Governor of West Pakistan was pleased to direct" that that person should be taken into custody. This order of detention was authenticated by the Home Secretary. The order was impugn ed in a writ petition. The Home Secretary was examined by the High Court and he gave evidence as to the satisfaction of the Governor in respect of the passing of the impugned order. The petitioner argued with vehemence before the High Court that the evidence of the Home Secretary as to the satisfaction of the Governor was mere hearsay and therefore could not be relied upon to sustain the impugned order. The High Court repelled the contention and relying on provisions of Articles 80 and 81 of the Constitution of Pakistan, 1962.

Held : According to the Concise Oxford Dictionary the expression "authenticate" means, 'establish the truth of; establish the authorship of; make valid . . . .'. Therefore, a proper authen tication of an order signifying the Governor's satisfaction for the relevant purpose will establish the factum or the truth of such satisfaction obviating the requirement of direct proof. Rules excluding hearsay evidence fur the purpose of any judicial pro ceedings must be read subject to the provisions of the Constitution. To give effect to the above rule of evidence would amount to robbing the above provisions of the Constitution of their content and true meaning. According to rule 2 (x) of the Rules of Busi ness of the West Pakistan Government, the Government means, the executive Government of the Province of West Pakistan and the 'Governor' means the Governor of the Province and both these terms are differently defined. There is thus no warrant for the view that the power conferred by the Central Government under section 3 (4) of the Defence of Pakistan Ordinance was a confirmation on the Governor personally and not on the executive authority of the Province, to be exercised in accordance with the provisions contained in the Rules of Business. The Home Secretary is admittedly the departmental head responsible for the conduct of business under rule 3. Public Order and preventive detention are respectively mentioned as entries (1) and (26) in the list of business assigned to the Home Department. In the case the impugned orders emanated from the Governor himself. But even otherwise matters relating to preventive detention under rule 32 (1) (b) could be disposed of by the Home Secretary and no reference to the Governor under rule 11(1) was necessary inas much as the cases were not likely to cause major political repurcussions.

Malik Ghulam Jilani v. Government of West Pakistan P L D 1967 S C 373 and Concise Oxford Dictionary ref.

r. 32‑Renewal of order of detention from time to time Justified if Government satisfied and honestly formed opinion that detenu if released would engage himself in same activity.

Inayatullah Khan Mashriqi v. Crown P L D 1952 Lah. 331 rel.

Abid Hasan Minto for Petitioner.

Ghulam Safdar Shah, Additional A.‑G., Mian Aslam Riaz Hussain, A. A.‑G. assisted by Mian Muzafar Ahmad for Respon dents.

Dates of hearing : 19th, 20th, 21st, 22nd, 24th and 25th July 1967.

Writ Petitions Nos. 456, 414 and 455 of 1967 have been moved under Article 98 of the Constitution to call in question a number of orders made under Rule 32 (1) (b) of the Defence of Pakistan Rules, 1965, for the datention of certain Trade Union leaders and railway workers for their alleged prejudicial activities in connection with the railway strike lasting for eight days or so from 31^st January 1967, completely paralyzing the railway communi cations in the province at a time when there was an acute food shortage and the Government was seriously engaged to rush food grains from Karachi port and surplus areas with the greatest possible speed to deficit areas to obviate general distress.

2. Writ Petition No. 456 of 1967 relates to the deten tion of Mirza Muhammad Ibrahim, President, Railway Workers Union. The initial order of his detention was made by the Governor on 3rd February 1967 and authenticated by Mr. Masud Nabi Nur, the Home Secretary. The order read as follows:

"Whereas the Governor of West Pakistan is satisfied that with a view to preventing Mirza Muhammad Ibrahim . . . . from acting in a manner prejudicial to the maintenance of public order, it is necessary to arrest and detain the said Mirza Muhammad Ibrahim immediately.

Now therefore in exercise of the powers . . . . . by clause (b) of sub‑rule (1) of rule 32 of the Defence of Pakistan Rules . .. . The Governor of West Pakistan is pleased to direct the said Mirza Muhammad Ibrahim shall be arrested and committed to the custody of the Deputy Inspector‑General of the Police, Special Branch, West Pakistan, at Fort Lahore for detention for a period of two months from the date of the arrest as class III detenu."

By two subsequent similar orders, respectively, dated 31st March and 31st May 1967, fresh orders for the detention of Mirza Muhammad Ibrahim were made by the Governor each to be effective for a period of two months from the expiry of the previous order but nevertheless with the modification that the detenu was to remain in the custody of Superintendent Jail in the District Jail, Lahore, instead that of Deputy Inspector‑General Special Police.

3. Writ Petition No. 414 of 1967 relates to the detention of Shaikh Abdul Ghafur, General Secretary, (P. W. R. 'Workers Union'). The order for his detention was made on 7th January 1967, by the Governor and authenticated by the Home Secretary and was in similar terms as the order relating to the detention of Mirza Muhammad Ibrahim. There were similar subsequent orders for the detention of Shaikh Abdul Ghafur made on the 31st March and 31^st May 1967, each for a period of two months to be effective on the expiry of the previous order. There was also a similar change in the place of detention.

4. Writ Petition No. 455 originally related to the detention of Muhammad Anwar, Muhammad Tufail and Nisar Ahmad, railway workmen. It was subsequently amended to include the case of Abbas Khan also. Of the four detenus in this Writ Petition, Muhammad Anwar is the Joint Secretary of the Railway Workers' Union' led by Mirza Muhammad Ibrahim detenu in Writ Petition No. 456. The other three detenus are active members of the same Union. The orders for their detention were made by the Deputy Commissioner, Lahore either on 3rd or 4th February 1967, each of which for the material purpose read as follows:--

" . . Whereas on consideration of the report of the Divisional Superintendent Pakistan Western Railway, Lahore Division, I, S. Mustafa Zaidi, Q. P. A., C. S. P., Deputy Commissioner, Lahore, am satisfied that the activities of Anwar Muhammad Tufail, Nisar Ahmad and Abbas Khan are prejudicial to the interest of States as well as of public, in that he is inciting the railway workers to become violent and to stop work of utmost public utility. On his incitement, the railway workers are likely to damage the railway property and it is absolutely necessary to detain the aforesaid Abbas Khan with a view to prevent him from acting in a manner prejudicial to public saftey, maintenance of public order and peaceful conditions in Lahore and elsewhere in West Pakistan.

Now, therefore, in exercise of the powers delegated to me . . . . I, S. M. Zaidi . . . . . do hereby direct that the said Abbas Khan etc., shall be arrested forthwith under rule 32 (1)(b) of the Defence of Pakistan Rules, 1965 and be detained in the District Jail, Lahore, for a period till further orders.

The detenu shall be treated as class III detenu.

With each order of detention, grounds of detention were separately served upon such detenu, although it was not the requirement of the law. It appears that since the institution. of this Writ Petition, Muhammad Tufail and Nisar Ahmad have been released and, therefore, the Writ Petition so far as it concerns them has abated and only the cases of Muhammad Anwar and Abbas Khan fall for determination.

5. According to the averments in the three Writ Petitions, the railway strike beginning on 31st January 1967, was altogether spontaneous, being the result of rising prices particularly of food grains and other strain and stresses under which the railway workers had to work and the apathy of the Railway Administration to the demands of the railway workers made from time to time for the supply of wheat atta at subsidized rates and also grant of Rs. 50 per month as special dearness allowance to each worker in view of the price‑spiral obtaining in the country. On behalf of each detenu it was denied that he incited the railway workers. to strike work or to resort to violence or holliganism. In. Writ Petitions 456 and 414 it was, however, admitted that Mirza Muhammad Ibrahim and Sheikh Abdul Ghafur were in full sympathy with the strikers and their demands though each of them protested that they urged the strikers to remain peaceful. On behalf of Mtrza Muhammad Ibrahim it was further averred that he by his conduct had shown that he was anxious for a settlement and indeed was a party to settlement signed at the residence of the Provincial Labour Minister at about midnight on the night of 2nd February which the authorities concerned deliberately suppressed to prop up the rival labour Union and its leader, Ch. Umar Din. It was further averred that the order of detention in each case was ultra vires and without lawful authority in that it was made mechanically without there being real or genuine satisfaction of the detaining authority as required by the statute. Absence of reasonable grounds necessary to induce satisfaction in the detaining authority were also pleaded. Plea of mala fide of the order of detention was also raised in each case.

6 The respondent in the written statements and counter affidavits maintained the validity of each detention order on the grounds that it was made by the detaining authority concerned after a careful consideration of the situation reports submitted by the Special ' Police, reports of the Railway Administration and other information reaching the detaining authority in the context of the general situation then obtaining in the province. Allegation of the mala fide nature of the impugned order was also denied in each case.

7. The main points urged being common, this judgment will dispose of all the three Writ Petitions.

8. A brief statement of facts leading to the arrest and the detention of each of the four detenus appears necessary at this stage. There are four labour Unions of the labour workers with their head office at Lahore They are:

(i) The United Union of P. W. R. Workers' is led by its General Secretary, Ch. Umar Din. It is registered under the Trade Unions Act, 1926 and is also recognized by the Railway Administration. In the course of arguments on behalf of the petitioners in Writ Petitions 456 and 414 of 1967 this Union was, however, referred to more than once as "pocket Union" and Ch. Umar Din as a puppet of the Railway Administration who did not exercise any effective influence with the majority of railway workers at Lahore.

(ii) "Mazdoor Union" led by its Chairman, Mr. M. A. Rahim. It is also both registered and recognized by the Railway Administration. However, its membership does not appear to be sizeable nor is it otherwise very effective.

(iii) "The P. W. R. Union" led by its General Secretary Shaikh Abdul Ghafur (detenu in Writ Petition No. 414 of 1967). It is registered under the Trade Union Act, but is not recognized by the Railway Administration. It com prises two sub‑unions, namely, "P. W. R. Union (Workshops)" and P. W. R. Union (Open Lines)", each having office bearers of its own.

(iv) "The Railway Workers Union" led by its President, Mirza Muhammad Ibrahim detenu in Writ Petition No. 456 of 1967. It is neither registered nor recognized by the Railway Administration. It appears that the majority of the workers employed in the Carriage Shops and the Power House are members of this Union.

Though each Union exists for the avowed object of ameliorating the service conditions of the workers yet there appears to be considerable rivalry between them, particularly the 'P. W. R. Union' led by its 'General Secretary, Shaikh Abdul Ghafur and the Railway Workers Union' led by its President, Mirza Muhammad Ibrahim on the one hand and the United Union of P. W. R. Workers' led by its General Secretary, Ch. Umar Din on the other. This was brought into sharp relief in the course of arguments in these cases.

9. It is common knowledge that the Province of West Pakistan was in the grip of an acute food crisis towards the end of 1966. Wheat, which is the stable food in the province became non‑available except at prohibitive prices, far beyond the reach of common man. The situation became really grave in November and December 1966. To relieve this food shortage, the Government imported large quantities of wheat and other food grains which had to be rushed to different. parts of the Province, with the greatest possible speed. Obviously railway was the quickest and cheapest means of transport. The railway workers who had the largest concentration at Lahore were under similar strains and stresses. Their demands made from time to time through their Unions, particularly for the opening of cheap ration shops had gone unheeded or at any rate were not redressed. For instance, the P. W. R. Workers Union' though its General Secretary, Shaikh Abdul Ghafur gave a strike notice on 9th October 1966, listing 112 demands includ ing the one for the opening of cheap ration shops for the supply of wheat atta at subsidized rates to the railway workers. The matter was discussed by a representative committee under the presindency of Raja Salim Akhtar, Additional Deputy Commissioner (General) Lahore, on 1st and 10th November 1966. This Committee unanimously recommended to the Government for the acceptance of the workers' demand for the opening of the cheap ration shops. The other 111 demands were not pressed by Shaikh Abdul Ghafur. The strike notice was also withdrawn. However no action was taken on this recommendation. Ch. Umar Din's Union, namely, United Union of the P. W. R. Workers' also gave a notice on 23rd January 1967, for strike demanding inter alia the opening of the cheap ration shops and the grant of special de4rness allowance to the railway workers. This notice was to expire on the 30th January 1967, so that if the demand was not accepted in the meantime then the Union would strike work on the 31st January 1967.

10. A few days before the expiry of the notice served by Ch. Umar Din, the Railway Workers Union' led by Mirza Muhammad Ibrahim, which appears to have the largest following among railway workers in the Carriage Shops and the Power House decided to take out, what is, described as "mammoth procession" on 28th January 1967, just two days before the zero hour fixed for general strike to present a memorandum of demands upon the authorities concerned including the Governor. A copy of the memo. of demands is Annex. B' to Writ Petition No. 456 of 1967 which listed twenty‑nine demands. The move to take out the procession was, however, frustrated because the Deputy Commissioner, Lahore in the meantime issued an order under section 144 of the Criminal Procedure Code, 1898, prohibiting assembly of more than five persons and taking out processions within the railway premises. On the 30th January 1967, Mirza Muhammad Ibrahim held a press conference in Lahore Hotel where lie read a prepared statement protesting against the prohibitory order under section 144, Cr. P. Code. A copy of the prepared statement is also on the record of Writ Petition No. 456. In his statement, Mirza Muhammad Ibrahim had also a fing at the "self‑styled labour leaders" whom he described as stooges of the Administration propped up to impede the Trade Union activities of the true represen tatives of the railway workers by driving a wedge between the workers employed in the Carriage Shops and the Loco Shed. The statement ended on a note of self‑praise and denunciation of the discreminatory attitude of the Administration. At about the same time a pamphlet captioned as "the unholy alliance between the Railway Administration and the self‑styled labour leaders exposed" was also issued by the Secretary of the same Union:

11. There can be no manner of doubt that references in the prepared statement by Mirza Muhammad Ibrahim and in the pamphlet issued by the Secretary of his Union to the self‑styled labour leaders in the unholy alliance with the Administration was to Ch. Umar Din whose Union had been accorded recognition and who also secured membership of the West Pakistan Labour Advisory Board. Ch. Umar Din incidentally had also stolen a march in serving the strike notice which was to expire in matter of two days and unless there was a settlement, in the meantime, the workers belonging to that Union could have struck work under his leadership. To attract the attention of the authorities, Mirza Muhammad Ibrahim planned to take out a mammoth procession on the 28th January 1967, but the move was frustrated by the prohibitory order under section 144, Cr. P. Code which he and his secretary had no qualms to attribute to the unholy alliance between the Administration and the "self‑styled labour leader", the oblique reference obviously being to Ch. Umar Din.

12. On 30th January 1967, there was a token strike lasting for about an hour in Carriage Shops where Mirza Muhammad Ibrahim had undoubtedly the largest following. This also infected the workers employed in the Power House. This is described in the Writ Petition No. 456 as spontaneous and symptomatic of the general unrest among the workers. By the 31st January 1967, the strike spread throughout Pakistan Western Railway bringing railway traffic to an almost complete standstill. Cases of damage to the Railway property were reported, ultimately Army had to be called in to protect the Railway property at Lahore, it had once to resort to firing. Army was alerted at other places of potential danger to come to the aid of the civil authorities where the situation was getting out of control.

13. It appears that Mirza Muhammad Ibrahim was in the meantime contacted by the Administration to use his influence with the striking workers at Lahore to call off the strike. The Provincial Ministers for Finance and Labour also tried to address the strikers in the premises of the railway workshops but the workers were in no mood to hear them and proclaimed Mirza Muhammad Ibrahim as their true leader who alone could negotiate on their behalf. The Ministers are said to have sent for Mirza Muhammad Ibrahim who on arriving addressed the workers reiterating their demands, but at the same time urged them to hear the Ministers as well. After the speeches, the strikers showed their readiness to call off the strike if the following two demands were accepted forthwith, namely:--

(i) that the Railway Administration shall open cheap ration shops where wheat atta shall be sold to the railway workers at subsidized rates ; and

(ii) that the Railway Workers' Union headed by Mirza Muhammad Ibrahim shall be duly recognized by the Administration so that he could negotiate a binding settlement on their behalf.

The two Ministers are stated to have accepted in principle the above two demands adding that the second demand required certain legal formalities to be satisfied. The strikers are then stated to have insisted that the acceptance of the above demands should be reduced into writing to exclude the possibility of going back upon them by any of the parties. However, the above terms despite the persistent demands of the strikers could not be reduced into writing either on the 31st January or 1st February 1967. It is alleged in the Writ Petitions that "certain interested parties both inside and outside the Government" pooh‑poohed the idea of executing the written agreement with the Railway Workers Union, led by Mirza Muhammad Ibrahim. Instead these "interested elements" suggested written agreement with the Union of Ch. Umar Din. In consequence of this stalemate, the strike continued unabated even on the 2nd February 1967. It was late in the evening of 2nd February 1967 that a meeting was convened at the residence of the Labour Minister where just before midnight a formal agreement (a Photostat copy of which is Annex. A') was signed by the Chairman and the Vice‑Chairman Railway Board, representing the employer and Mirza Muhammad Ibrahim as the sole representative of the Railway Worker, Union. The terms of the settlement read as follows :--

"It has been agreed, in principle, that the atta will be supplied to the workers of Railway Workers' Union (Unregistered) at a rate lower than the controlled rate. The quantum of this subsidy will be decided within ten days, by a Committee consisting of two representatives of Railway Workers' Union (Unregistered), the represen tatives of the Railway Board and of the Government. The Railway Administration has agreed to recognise the above‑named Union after observing certain legal formalities.

The Railway Administration has agreed not to make any deduction from the wages of workers for the strike period.

The five representatives of the Railway Workers' Union (Unregistered) have agreed to call off the strike with immediate effect and to resume duty w. e. f. the morning of 3^rd February 1967, and the Management has undertaken not to victimise any worker for abstaining from work on this occasion."

According to the understanding reached at the time of the signing of the agreement, Mirza Muhammad Ibrahim was to issue a statement appealing to the strikers to call off the strike and return to work. It is averred in the Writ Petition on his behalf that he did issue a press statement the same night detailing the terms of the settlement reached between him and the Railway Administration and he also appealed to the workers to call off the strike. However, the newspaper appearing on the morning of 3rd February 1967, completely blacked out any reference to the agreement between Mirza Muhammad Ibrahim and the Administration. Instead accord ing to the news item an agreement had been reached between the Railway Administration and Ch. Umar Din under which the strike was to be called off. The strike, however, con tinued for, according to the averments in the Writ Petition the strikers were sceptical about the genuineness of the settlement reported in the newspaper.

14. On the morning of 4th February 1967, Mirza Muhammad Ibrahim along with Sardar Shaukat Ali Advocate who incidentally had assisted Mirza Muhammad Ibrahim during ‑the meeting at the Labour Minister's residence went to see the Deputy Commissioner at his residence to find out the real state of things, but Mirza Muhammad Ibrahim was told that the Governor had ordered him and his companion's detention under the Defence of Pakistan Rules because of their prejudicial activities. They were accordingly arrested.

15. As pointed out already, Sh. Abdul Ghafur detenu in Writ Petition No. 414 of 1967 is the General Secretary of the P. W. R. Union. He is stated to Have left Lahore on the 26th or 27th of January 1967, ostensibly in connection with the marriage of his niece at Karachi. However, while on way to Karachi he addressed an assembly of the railway workers at Sukku, It is admitted that after the railway workers had struck work on the 31st January 1967, he addressed a large gathering of strikers in the railway pre mises at Karachi, exhorting them inter alia to hold fast to their demands till they were accepted by the Administration but nevertheless urging them to remain peaceful. A memo randum of his speech is not placed on the record. From the issues of various newspapers in which his speech was reported were placed on record by the learned counsel for the petitioner, it is abundantly clear that he held out a threat that unless the railway workers' demands were accepted: the entire body of employees of Karachi Division numbering about twelve thousand will, also strike work in sympathy with the demands of the railway workers. He further impressed upon his listeners to discount any rumours about the alleged settlement between the railway workers and the Administra tion at Lahore and dismiss any such rumour as inspired. Shaikh Abdul Ghafur returned from Karachi on 6th February 1967 and was arrested on the 7th February 1967 under the orders made by the Governor and authenticated by the Home Secretary.

16. Muhammad Anwar and Abbas Khan were arrested under the orders signed on the 3rd and 4th February 1967 by the Deputy Commissioner for having carried on virulent campaign among the railway workers to strike work and exhorting them by shouting such slogans "Bhooke Mar Gai hai hai", "Maro Churian hai hai" and "Goonge Bahre hai hai."

17. Mr. Abid Hassan Minto, who addressed the principal. argument in these cases on behalf of the petitioners raised the following three main contentions to attack the vires of various order of detentions:

(1) The impugned orders were merely a mechanical reproduction of the relevant statutory provision; the detaining authority failed to bring to bear its own judgment on, the question, and that at any rate there was nothing to show that there were reasonable grounds to induce satis faction of the detaining authority for the relevant purpose. In support of the arguments, the recent judgment of the Supreme Court in Malik Ghulam Jilani's case P L D 1967 S C 373 was cited.

(2) There were clear indications on the record that the impugned orders were tainted with mala fides and, therefore are liable to be struck down on that ground alone.

(3) Finally that there were no grounds, whatever, to sustain the subsequent orders of detention made on 31st March 1967 and 31st May 1967 in the case of Mirza Muhammad Ibrahim, when the strike had already been called off and conditions had returned to normalcy.

The same contentions were reiterated by Shaikh Muhammad Rashid, the learned counsel for Shaikh Abdul Ghafur detenu.

18. It was conceded on behalf of the respondents that in view of the latest interpretation of section 3 (2) (x) of the Defence of Pakistan Ordinance, 1965, read with rule 32, by their Lordships of the Supreme Court in Malik Ghulam Jilani's case, a mere declaration of satisfaction in the cases of preventive detention was not sufficient and it lay on the detaining authority to discharge the initial onus of its satisfaction for the relevant purpose, resting on reasonable grounds. To discharge this onus the respondents filed supplementary affidavits sworn by the Home Secretary, who also entered the witness box to testify to the various reports which were placed before the Governor on the 2nd February 1967, and even earlier, on the basis of which the latter was satisfied that the detention of Mirza Muhammad Ibrahim and Shaikh Abdul Ghafur among others was necessary for the maintenance of law and order in the province. The Home Secretary also placed on record copies of first information reports Exhs. R‑1 to R‑3, relating to registration of criminal cases against some unruly and violent workers. Similarly in the case of Muhammad Anwar and Abbas Khan, the Deputy Commissioner who had ordered their detention was also examined.

19. In his statement the Home Secretary traced the entire background of the strike which gave rise to a very grave situation resulting in complete disruption of railway communications which seriously hampered the Government's efforts to despatch food to the deficit areas. He made specific reference to incidents of violence and damage to the railway property. He swore that there were reports that trains were stopped, railway tracks were blocked, two engines were derailed one near Sukkur and the other between Lahore and Shaikhupura, trains carrying food grains were stopped and pillaged, engine drivers were pulled out and beaten up, willing workers were physically man‑handled to prevent them from resuming duty even one death was reported either at Sukkur or Rohri. In these circumstances the Army had to be called in at Lahore to assist the civil administra tion in the maintenance of law and order. The West Pakistan Rangers were also deployed to escort food grain trains to guard against possible looting. Once a contingent of the police and the Army had also to open fire. It was categorically stated by the Home Secretary that according to reports the labour leaders who took prominent part were Muhammad Ibrahim, Shaikh Abdul Ghafur and a few others who were responsible for fomenting trouble. It was also affirmed by the Home Secretary that the impugned orders were signed by him on the direction of the Governor who had satisfied himself on the basis of the information received from various sources. The witness referred to two statements made by Mirza Muhammad Ibrahim on 24th and 30th January 1967 as being particularly inflammatory in respect of which privilege was however claimed under section 123 of the Evidence Act.

20. Regarding Shaikh Abdul Ghafur detenu the Home Secretary stated that the former delivered inflammatory speeches at Lahore, Sukkur and Karachi and that in con sequences of the speech delivered by him on 2nd February 1967, the railway workers resorted to violence, pulled out an engine driver and beat him up besides doing damage to the railway engine. Privilege was also claimed in respect of the speeches delivered by Shaikh Abdul Ghafur, though the speech made on 2nd February was also reported in the press, to which reference has already been made. That the strikers at Karachi resorted to hooliganism and that Shaikh Abdul Ghafur was their only recognized labour leader at Karachi who addressed the strikers are undeniable facts. The authorities were well justified to conclude that the speeches made by the detenus were the immediate cause or rowdyism and indiscipline among the strikers.

21. For a proper determination of the question relating to the satisfaction of the detaining authority, it is necessary to first dispose of the contention relating to privilege. Judicial authorities are not quite uniform on the point. But it was argued by the learned Additional Advocate‑General that the divergence of judicial opinion in regard to the competence of the Court to grant or refuse a privilege under section 123 of the Evidence Act, 1878 or to inspect the document regarding which privilege may be claimed on the basis of its being unpublished record relating to the affairs of the State, had been resolved by a Division Bench of this Court in Ghulam Ali v. Abdul Hafiz (P L D 1962 Lah. 765) wherein the learned observed as follows:-----

"If objection is taken in proper form by a head of department under section 123 of the Evidence Act to the production of an evidence on the ground that it relates to affairs of State, it is conclusive. The anxiety expressed in some of the judgments in which the opposite view been taken is with due respect misplaced. In the larger interest of the State the provision of section 123 of the Evidence Act must be given full effect irrespective of any possible injury to a private litigant."

This view was approved by the Full Bench in Nasim Fatima v. Govt. of West Pakistan (P L D 1967 Lah. 103) which we consider is binding upon us. Even otherwise, the question before us does not arise in an acute form, inasmuch as we are satisfied from the sworn statement of the Home Secretary that privilege has been claimed in respect of an unpublished official record relating to the affairs of State which falls within the ambit of section 123 of the Evidence Act. Therefore, we will not be justified to raise an adverse presumption against the respondents for their non‑production of the record of the speeches by the detenus and a fortiori an initial presumption regarding the regular performance of the official act would be available to the respondents under section 114 (e) of the Evidence Act, not withstanding the fact that certain documents have been with held. We are fortified in this view by Umar Hayat v. Crown (PLD1951FC15). It was argued by the petitioners counsel that the availability of the initial presumption of regular performance in favour of the official act in the instant case would run counter to the initial presumption of innocence available to an accused person under the law. The argument is fallacious. The instant cases do not concern punitive actions but relate to preventive detention which is not resorted to in normal circumstances but is an action sought to be taken is exceptional circumstances, when there is imminent threat to public peace and tranquility.

22. We have already set out in some detail the evidence brought on the record by the respondent. It was not controverted that it is not the sufficiency of the reasons justifying the orders of detention which would be question able before us; the real question that falls for determination is that of the existence of reasonable grounds which could induce a State of satisfaction in the mind of the detaining authority. We have already referred to the grave situation arising in the country owing to the railway workers' strike. The Government charged with the functions of running administra tion and the maintenance of law and order in which means of communications play a vital part but which at the relevant time stood almost wholly paralysed, was keen for the resolution of the dispute. The position of Muhammad Ibrahim as an influential labour leader being the President of the Railway Workers Union' was not controverted before us by the Respondents. It is also an admitted fact that notwithstanding mutual jealousies and rivalries amongst the labour leaders, the workers belonging to Mirza Muhammad Ibrahim's Union also joined the strike of which notice was given by Ch. Umar Din. Not only that they staged token strike one day earlier that is to say on the 30th January 1967 to demonstrate the independence of their action. This had direct relation with Mirza Muhammad Ibrahim's plan to take out "Mammoth procession" on 28th January 1967. It is impossible to believe that the workers belonging to Mirza Ibrahim's Union should have had staged a token strike on 30th January 1967 with out his blessings or inspiration. The psychological effect of the above circumstances on the mind of the Governor, the factum of whose satisfaction in regard to the existence of reason able grounds for taking the impugned action is to be con sidered, cannot be overlooked. First information report Exh. R‑2 lodged by Mr. Masud Khan, P. C. S., Magistrate First Class, Lahore, at Railway Police Station, Lahore on 3rd February 1967, gives a fairly detailed picture of the mood of the workers, the acts of sabotage committed by them, their refusal to disperse in spite of several warnings, and pelting of stones by them, causing injuries to policemen with the result that ultimately the contingent of the police and the Army had to open fire on them. This goes along way to show that the Governor on the basis of the infor mation received by him from official agencies was satisfied as to the existence of reasonable grounds for taking a preventive action against important labour leaders including Mirza Muhammad Ibrahim. Another noteworthy fact in this behalf is that the detention of the various labour leaders was decided upon after the meeting at the Governor's House on 2nd February 1967 after his return from the interim capital. At this meeting which was attended by the representatives of the various agencies concerned with the maintenance of law or order in the province, the whole situation was reviewed, before the final action was decided upon.

23. In the case of Shaikh Abdul Ghafur, besides the testimony of the Home Secretary, the two copies of the judg ments of the Additional Sessions Judge (Annexures G' and H') filed by the petitioner setting aside the detenu's conviction under sections 13 and 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960, also throw considerable light on the latter's antecedents. It is clear that the authorities looked askance at him and feeling shy of his activities had to register cases against him under the aforesaid Ordinance. His acquittal would only signify that upon the evidence produced the cases were not established against hits. As already pointed out his learned counsel also placed on the record press reports relating to a speech delivered by the detenu at Karachi on the 2nd February 1967 exhort ing the workers to hold fast to their demands till they were accepted by Railway Administration with the prospect of another 12,000 employees of Karachi Administration icii1in‑ them in their struggle.

24. It was also argued with some vehemence before us that the evidence of the Home Secretary as to the satisfac tion of the Governor was mere hearsay and, therefore, could not be relied upon to sustain the impugned orders. Support for this argument was sought from an observation made by a Division Bench of this Court in Sardar Muhammad Hayat Khan Tumman's case. Speaking with the greatest respect, it seems to us that the attention of the learned Judges way not drawn to the provisions of Articles 80 and 81 of the Constitution which are directly relevant to the subject and in our opinion, conclude the issue. Articles 80 and 81 read as under:

"80. Executive authority of Province vests in Governor.‑The executive authority of Province is vested in the Governor of the Province and shall be exercised by him, either directly or through officers subordinate to him, in accordance with this Constitution the law and the ,directions of the President.

81. Execution of instrument, etc.--- The Governor of a Province may‑

(a) specify the manner in which orders and other instruments made and executed in pursuance of any authority or power vested in the Governor shall be expressed and authenticated ; and

(b) regulate the allocation and transaction of the business of the Government of the Province and establish departments of that Government.

According to the Concise Oxford Dictionary the expression "authenticate" means, establish the truth of establish the authorship of ; make valid . . . .' Therefore, we have no doubt in our mind that, a proper authentication of an order signifying the Governor's satisfaction for the relevant purpose will establish the factum or the truth of such satisfaction obviating the requirement of direct proof. Rules excluding hearsay evidence for the purpose of and judicial proceeding must be read subject to the provisions of the Constitution. To give effect to the above rule of evidence would amount to robbing the above provisions of the Constitution of their content and true meaning.

25. According to rule 2 (x) of the Rules of Business of the West Pakistan Government, the Government means, the Executive Government of the Province of West Pakistan and the 'Governor' means the Governor of the Province and both these terms are differently defined. There is thus no warrant for the view that the power conferred by the Central Government under section 3(4) of the Defence of Pakistan Ordinance was a confirmation on the Governor personally and not on the executive authority of the province, to be exercised in accordance with the provisions contained in the Rules of business. The Home Secretary is admittedly the departmental head responsible for the conduct of business under rule 3. Public Order and preventive detention are respectively mentioned as entries (1) and (26) in the list of business assigned to the Home Department. In the instant case the impugned orders emanated from the Governor himself. But even otherwise matters relating to preventive detention under rule 32 (1) (b) could be disposed of by the Home Secretary and no reference to the Governor under rule I 1(I) was necessary inasmuch as the cases were not likely to cause major political repurcussions. Precisely the same argument was raised in Nasim Fatima's case and their Lordships of the Full Bench repelling the same observed as follows:

"Therefore, when Article 80 speaks of the exercise of the executive authority of a Province by the Governor through officers subordinate to him in accordance with the Constitution and the law and the directions of the President, the reference is also to the Rules of Business framed under clause (b) of Article 81. In rule 2 (x) of the Rules of Business of the West Pakistan Government, also, Government means the Executive Government of the Province of West Pakistan and the Governor means the Governor of the Province and both these terms are differently defined. Is there therefore, reason to believe that when the power was conferred by the Central Government under sub section (4) of section 3 on the Provincial Government and not the Governor, it was conferred on the Governor personally and not on the executive authority of the Province to be transacted in accordance with the provisions in the Rules of Business "

In view of the above, we have no hesitation to reject the argument. 26. The upshot of the above discussion is that reasonable grounds existed for the inducement of the satisfaction of the Governor to pass the impugned orders against Mirza Muhammad Ibrahim and Shaikh Abdul Ghafur with a view to preventing them from acting prejudicially.

27. The cases of Muhammad Anwar and Abbas Khan are comparatively simpler and need not detain us any longer. In their case, the detaining authority was the Deputy Commissioner who himself entered to witness box in proof of his satisfaction. His competence to pass the impugned orders in exercise of the delegated powers cannot be questioned in the light of the Full Bench authority in Nasim Fatima's case upheld by the Supreme Court with slight modification in relation to the case of Nawabzada Nasrullah Khan. The affidavits submitted by him were supplemented by his own testimony, further supported by documentary evidence in the form of two communications Exhs. R‑7 and R‑8 addressed to him by the Divisional Superintendent, P. W. R. on the 3rd and 4th February 1967, respectively. Annex. R‑7 contains allegations against Muhammad Anwar and one Shah Muhammad with whom we are not concerned, of inciting the workers to become violent and cause damage to railway property and stop work which admittedly related. to a public utility services. The Divisional Superintendent expressed his strong apprehensions that in case immediate action was not taken against Muhammad Anwar and Shah Muhammad, an alarming situation was likely to developed which could involve the whole of Pakistan. Annex. R‑8 mentions Abbas Khan detenu as one of the six persons inciting railway workers not to resume duty. Action was recommended against them to prevent them from acting in a manner prejudicial to the public peace and tranquility, Then there are situation reports Exhs. R/9 to R/11. Exh. R/9 describes Abbas Khan as chief of the mischief mongers while in Exh. R/l0 there is specific reference to Muhammad Anwar as a person raising slogans, such as 'Hartal Jari Rakho', Pahia Jam Karo' etc. Exh. R/11 makes a reference to Muhammad Anwar having had discussion with the strikers from 2‑15 to 2‑50 p.m. on 2nd February 1967 in the company of Mirza Muhammad Ibrahim. It is significant to point out that although the railway authorities recommended: the detention of 103 employees yet he took action only against 26. It is also noteworthy that on receipt of situation report dated the 1st February Exh. R/9 containing, direct allegations against Abbas Khan no action was taken against him until the receipt of a subsequent communication Exh. R/8 on the 4th February 1967. This amply shows that the Deputy Commissioner had fully applied his mind to the information laid before him which constituted reasonable grounds to induce his satisfaction for making the orders of detention.

28. It was argued by their learned counsel that the impugned orders were based exclusively on the recommen dation of the Divisional Superintendent and contained no reference to other sources of information, namely, the situation report and the discussion of the Deputy Commissioner with the Deputy Magistrates. The argument is without force inasmuch as the law does not insist on the disclosure of the grounds of satisfaction even otherwise it was a mere omission which did not impair the validity of the impugned order in any manner.

29. We now come to the second contention, namely, allegations of mala fides. It was earnestly urged before us by Mr. Abid Hussan Minto that the order of detention was tainted with mala fides. He was at pains to show that the conduct of Mirza Muhammad Ibrahim was consistently co‑operative, showing his keenness for a workable settlement of which he gave practical demonstration by addressing the workers in response to a call from the two Provincial Ministers and participating in negotiations held at the residence of the Labour Minister, which culminated in a signed settlement Annex. A', to the Writ Petition. A reference was also made to a news item appearing in the Pakistan Times of the 3rd February 1967, Exh. Y', in which he is reported to have urged upon the striking workers to resume work in view of the settlement reached between him and the Railway Administration. It was alleged that contrary to the under standing reached at the above meeting a. garbled version was got published in the news paper in which there was no mention whatever, of the agreement with Mirza Muhammad Ibrahim. Instead it contained reference to an agreement purporting to be with Chaudhury Umar Din, General Secretary to the United Union of P. W. R. Workers with a view to boost up his status as the acknowledged labour leader and to relegate Mirza Muhammad Ibrahim and his Union to the background. Another circumstance relied to support the plea of mala fide was the cyclostyled appeal by Mirza Muhammad Ibrahim of which copies were taken into possession by the police on the night between 2nd and 3rd February 1967, from the office of the Pakistan Trade Union Federation and as such could not be distributed. Lastly, it was urged that Mirza Muhammad Ibrahim visited the residence of the Deputy Commissioner so as to inquire the reason why agreement reached between him and the Railway Administration was not publicised, and it was there that he was confronted with the order of detention and was thus deprived of an oppor tunity to contact the workers with a view to pursuade them to resume work.

30. Having given our anxious consideration to the circumstances urged by the learned counsel, we find it difficult to avoid the impression that the agreement Annex. 'A' was signed by the railway authorities with certain mental reservations and they appear to be more concerned to establish Ch. Umar Din as the true labour leader with whom alone the Railway Administration would deal. But the question that still remains to be answered is whether this finding will sustain an inference as to the mala fides of the order of his detention To this aspect of the matter we have given our close consideration and our answer is in the negative. The contention overlooks the cardinal fact that the order of detention was made by the Governor and not by the Railway Administration who were the other party to the labour dispute and who may have prejudices or preferences against or m favour of one or the other of the labour leaders. The Governor's responsibility for the maintenance of law and order in the province was paramount. Owing to the acute food crisis in the province which was further aggravated by the strike by the railway workers, it was of the highest importance to him to see the trains start moving once again by any means so that transport of the food grains could be rushed from the Karachi port town to the deficit areas with greatest possible speed to alleviate distress of the general public lest the situation might get out of control by general commotion in the 'public. It is nobody's case that the Governor shared the Railway Administration's prejudices against Mirza Muhammad Ibrahim. The position taken up by the respondents on the other hand was that Mirza Muhammad Ibrahim was all the time playing a double game by entering into negotiations with the authorities on the one hand and inciting the workers to continue the strike on the other and was thus running with the hare and hunting with the hound. Be that as it may, there is neither any allegation, nor an indication of the existence of personal animus between the Governor and the detenu. Furthermore, the Governor was to act on the information laid before him by the different official agencies including the Railway Administration. The decisive judgment was his which it is not disputed was subjective and, therefore, he could not have been expected to embark upon any inquiry as to the veracity of any information reaching him. Secondly, he was to act with speed and determination. A half‑hearted measure could scarcely resolve the situation which was assuming animous dimensions. If per chance any information placed before the Governor was garbled or interested and he acted on the same, the resultant action cannot on any known principle be described as tainted with mala fide. For it is important to bear in mind that the action to be taken is preventive in nature, when there is imminent threat to public peace and tranquility and not punitive, and the authorities concerned are to catch the time by the forelock as it were. Failure to take timely action might in such circumstances amount to an inexcusable omission leading to some dire consequences. In somewhat similar context, their Lordships of the Supreme Court observed in Ghulam Jilani's case as follows:--

"Against this must be considered the duty resting upon the authorities, operating under law, for the maintenance of public peace and order. They would not be justified and the public interest would certainly be defeated, if they were to allow such a dangerous experiment to be carried out. Inevitably there would be breaches of the public peace and there was no means of calculating to what extent they might not be carried."

31. Similar contention was raised by Sh. Muhammad Rashid the learned counsel on behalf of Shaikh Abdul Ghafur detenu who based his arguments on the fact that Shaikh Abdul Ghafur was prohibited from entering the railway premises under an order made under the West Pakistan Safety Ordinance and was also prosecuted for having con travened that prohibitory order, but was ultimately acquitted each time. In order to show his bona fide as a law‑abiding citizen, it was stressed that he had already withdrawn 111 out of his 112 demands and was never keen to exploit the situation. On the contrary, he readily participated in a tripartite meeting presided over by the Additional Deputy Commissioner (General) Lahore and even withdrew the notice of strike on an assurance given to him therein. We have no hesitation to overrule the contention for the reasons detailed earlier.

32. Having upheld the validity of the original orders of dentention, we now proceed to consider the legality of the subsequent orders dated the 31st March and 31st May 1967, made in respect of both Mirza Mohammad Ibrahim and Shaikh Abdul Ghafur. From the statement of the Home Secretary it is quite clear that the cases of all the detenus were reviewed from time to time and most of the detenus have already been released; in fact 39 out of 47 have already been released as a result of periodical review. He also stated that the food situation though considerably eased has not returned to normalcy and particularly in view of the mood of the Workers, the Government has not turned the corner so as to afford to be complacent. It was held in the case of Innayatullah Khan Mashriqi v. Crown (PLD 1952 Lah 331) which was a case arising out of renewal of orders of detention from time to time without affording the detenu a locus penitentiae, that renewal of order of detention would be justified if the Government upon the material available against the detenu honestly formed the opinion, that if released the detenu would engage himself in the same activity. We are satisfied that the same reasons which compelled the authorities to pass the original orders of detention were still obtaining at the time when the two successive orders were made in each case.

33. For the foregoing reasons, we maintain the validity of the impugned orders and dismiss all the three writ petitions. The parties are, however, left to bear their own costs.

K.B.A Petitions dismissed.

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