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(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi dated the 20^th March 1967 in Writ Petition No. 632 of 1966).;

(a) Constitution of Pakistan (1962), Art. 58 (2) (a), (3)‑Peti tion for leave to appeal under Art. 58 (3)‑High Court granting certificate for appeal in meantime‑No order made on petition for leave.

(b) Supreme Court Rules, 1956, 0. IV, r. 7‑‑Advocates appeared without attorney in circumstances of case.

The appeal in this case came up for hearing on the 20th March 1968, when the appellant (a detenu under r. 32, Defence of Pakistan Rules) appeared in person to argue his appeal. He sought to challenge the vires of rule 32 itself. But finding himself in some difficulty in arguing this point, he sought legal aid. The appeal was then adjourned and a request was sent to the President of the High Court Bar Association at Lahore to find out if any counsel was prepared to help the appellant. Notice of the appeal was also given to the Attorney‑General of Pakistan. The appeal was ultimately heard on the 10^th and 11^th April 19688, when the appellant was represented by a Senior Advocate and an Advocate who appeared gratis at the request of the Bar Association but without an Attorney with them.

(c) Constitution of Pakistan (1962), Art. 98 (2) (b) (i) read with Defence of Pakistan Rules, r. 32 (1) (b) and Defence of Pakistan Ordinance (XXIII of 1965), S. 3 (2) (x)‑Scope of powers of judicial review by high Court of orders of detention‑High Court can insist on disclosure of materials on which executive authority had acted, subject to right of State to claim privilege in respect of secret information‑Such judicial review not, however, in nature of an appeal against decision of executive authority‑Mere production of order of detaining authority in proof of "satisfaction" not sufficient‑Not only jurisdiction of executive authority to make the order but manner of exercising jurisdiction also subject to judicial review‑Question (f privilege to be decided by Nigh Court‑"Being satisfied" and "suspecting on reasonable grounds"‑ Difference " Being satisfied" borders on "conviction"

Re‑calling the decision in Ghulam Mani v. The Government of West Pakistan P L D 1967 S C 373, Hamoodur Rahman, J, observed that it was laid down in that case that actions taken under rule 32, Defence of Pakistan Rules are like other actions relatable to the power derived from clause (x) of subsection (2) of section 3 of the Defence of Pakistan Ordinance itself "equally susceptible of judicial review, subject of course, to the right of the State to claim privilege in respect of secret information and the Court's power to hold proceedings in camera".

It had been pointed out in that case that whatever may have been the position under the English law or the Government of India Act, 1935, the position under the Constitution of 1962 was wholly different, for, by Article 98 (2) (b) (i) of the Constitution, a duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court, to "satisfy itself that he is not being held in custody without laws at authority or in a7 unlawful manner". Can this constitu tional duty be discharged merely by saying that there is an order which says treat he is being so detained Can the High Courts be expected to be satisfied on the mere ipse dixit of the detaining authority If this could be so, then this "judicial power" would, as pointed out in that case, be "reduced to a nullit if laws are so worded or interpreted that the executive authority ties may make what statutory rules they please thereunder an may use this freedom to make themselves the final judges of the own "satisfaction", for imposing restraints on the enjoyment for the fundamental rights of citizens" and Article 2 of the Constitution itself would "be rendered meaningless". If the mere. production of an order of a detaining authority, declaring that he was so satisfied, was to be held to be sufficient also to 6'satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty.

The view taken in the case of Ghulam Mani is not new or radical; indeed it seems that it was the conventional view generally accepted even in England until the House of Lords in the case of Liversidge v. Anderson gave the doctrine of the "subjective test" a new dimension.

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

The trend of decisions both in this country as well as in England has been to regard the decision in Liversidge s case as limited to the interpretation of Regulation 18 (B) of the English Defence (General) Regulations, 1939 as a special war measure.

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

After the decision in Ghulam Mani's case the High Court should have examined the grounds of detention to test their reasonableness. On this ground alone, this appeal was liable to be allowed and the case sent back to the High Court for rehear ing, after examining the materials produced before it.

Though it is true that there is a difference between "being satisfied" and "suspecting upon reasonable grounds" the difference, is this that the former connotes a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any. from the mind and taken it out of the stage of suspicion. If so, then it is not reason able to presume that the law by making such significant differentiation intended to cast a duty of a more onerous nature upon the person charged with the duty of being satisfied and to "satisfy" the Court that he had acted in such manner.

Ghulam Jilani v. The Government of West Pakistan P L D 1967 S C 373 ref. Greene v. Secretary of State for Home Affairs 1941 A E L R 388; Nakhuda Alf's case 1951 A C 66 ; Farldsons Ltd. The Govern ment of Pakistan P L D 1961 S C 537; and Harvard Law Review, Vol. 56, p. 808 ref.

Liversidge v. Anderson (1941) 3 A E R 338 considered.

(d) Defence of Pakistan (Amendment) Ordinance (II of 1968) Not retrospective in effect ‑ Interpretation of statutes‑Law not retrospective unless it is expressly or by necessary intendment made so.

(e) Constitution of Pakistan (1962), Art. 30 (1), (4)‑Presi dent's power to legislate by Ordinances in a state of emergency not restricted to particular portion of cl. (1) of Art. 30‑Proclamation of Emergency referring only to immediate danger of being threatened by war ‑ President may nevertheless legislate by Ordinance on subjects as maintenance of security or the economic life of Pakistan.

Held that Art. 30 (1), Constitution of Pakistan (1962) is in the nature of an enabling provision, It gives power to the Presi dent to proclaim an emergency if either or any of the conditions mentioned in sub‑clause (a) or (b) [of Art. 30 (1)] exists. But once an emergency has been validly proclaimed for any one or more of the grounds given in sub‑clauses (a) and (b), it is the emergency that has to be met and it is to meet it that clause (4) authorises the President to make immediate legislation by Ordinance. [p. 327]L

The emergency was not circumscribed by the words of the recital contained in the Proclamation. What had to be looked at was the operative portion of the Proclamation Looked at in this way the power to legislate by Ordinance which accrued to the President thereby cannot be restricted to any particular portion of clause (1) of Article 30.

Even assuming that the immediate cause which gave rise to the issue of the Proclamation was the imminent danger of being threatened by war, no clear demarcation is possible of what is not necessary for meeting that emergency. Internal disorder, sabotage behind the lines, prejudicial acts threatening or disturb ing law and order within the country may all have far‑reaching effects on the measures needed to be taken for effectively meeting the threat or danger of war. It cannot, therefore, be said that the maintenance of the security or the economical life of Pakistan is not a matter having any bearing on the measures necessary for meeting the emergency created by the imminent danger of war.

(f) Constitution of Pakistan (1912), Art. 30 (I), (4), (8) read with Art. 131 (2) and Third Schedule‑Proclamation of Emergency under Art. 30 (1)‑President may issue Ordinances under Art. 30 (4) read with sub‑cl. (8) and Art. 131(2) with respect to any matter not enumerated in Third Schedule.

(g) Constitution of Pakistan (1962), Art. 6 (2) read with Art. 30 (9)‑Defence of Pakistan Ordinance (XXIII of 1965) ‑Validity of Ordinance cannot be questioned on basis of Art. 6 (2) in view of President having suspended certain Fundamental Rights under Art. 30 (9)‑[Khair Muhammad Khan v. The State P L D 1966 S C 604 considered].

(h) Constitution of Pakistan (1962), Art. 30 (3)‑‑Revoking of Proclamation of Emergency function of the President‑Political question not within competence of Courts.

(i) Defence of Pakistan Ordinance (XXIII of 1965), S. 3 (4), (5) read with Constitution of Pakistan (1962), Art. 143‑Delegation of powers, under S. 3 (4), (5) to Provincial Government, and, then, by such Government to Deputy Commissioner ‑ Not invalid Principle delegation potest delegare not applicable‑[Ghulam Jilani v. The Government of West Pakistan P L D 1967 S C 373 ref.]

(j) Defence of Pakistan Rules, r. 32‑Show‑cause notice not attracted to detention order‑Detaining authority under no obliga tion to act judicially or even quasi‑judicially‑[Abut A'la Mau doodi v. The Government of West Pakistan P L D 1964 S C 673 ref. ; Messrs Faridsons Limited v. The Government of Pakistan P L D 1961 S C 537 not applicable].

(k) Constitution of Pakistan (1962), Art. 98 (3) (b) (i)‑Mala fides of detaining authority within scope of inquiry by High Court.

Muhammad Shaft, Senior Advocate Supreme Court (Muhammad Ismail, Advocate Supreme Court with him). No Attorney with them for Appellant.

Muhammad Nadir Khan and S. Nastr Ahmad, Advocates Supreme Court instructed by Iftikharuddin Ahmad, Attorney for Respondent No. 1.

Raja Said Akbar Khan, Advocate‑General, West Pakistan (S. M. Bashir, Aslant Riaz Hussain, Masud Ahmad Khan and Saeedur Rahman Khan, Advocates Supreme Court with him) ins tructed by Ijaz Ali Sheikh, Attorney for Respondents Nos. 2 to 6.

Dates of hearing : 10th and 11th April 1968.

HAMOODUR RAHMAN, J.‑

This is a certificated appeal from the judgment and order of a Division Bench of the High Court of West Pakistan at Karachi, dismissing a petition under Article 98 (2) (b) of the Constitution, filed by the appellant herein from jail, to challenge the validity of his detention, in pursuance of an order passed by the Deputy Commissioner, Karachi, on the 11th August 1966, under rule 32 (1) (b) of the Defence of Pakistan Rules, 1965. The judgment of the High Court was delivered on the 20th March 1967, before the judgment of this Court in the case of Ghulam Jilani v. The Government of West Pakistan (P L D 1967 S C 373) was announced on the 12th May 1967,

It appears that during the pendency of the present appeal in this Court, the appellant flied another petition, through Jail on the 5th June 1967 (No. 265 of 1967) but the High Court also dismissed the Name on the 12th February 1968, on the ground that a certificated appeal from its previous judgment as pending in this Court and this Court had, on the 20^th March 1967 on the appellant's application for interim bah, directed that the hearing of the appeal should be expedited. The High Court also was of the view that the second writ petition should not be entertained as propriety demanded that a petitioner should not proceed simultaneously both in the Supreme Court and in the High Court, in the same matter, even though his alleged wrongful detention may amount to a continuing wrong.

The appellant also filed a petition for special leave to appeal from the judgment of the High Court, on the 25th April 1967, but since a certificate had been granted in the meantime, no order was made on this petition. This appeal came up for hearing on the 20th March 1968, when the appellant appeared in person to argue his appeal. He sought to challenge the vires of rule 32 of the Defence of Pakistan Rules itself. But finding himself in some difficulty in arguing this point, he sought legal aid. The appeal was then adjourned and a request was sent to the President of the High Court Bar Association at Lahore to find out if any learned counsel was prepared to help the appellant. Notice of the appeal was also given to the Attorney‑General of Pakistan. The appeal was ultimately heard on the 10th and 11th April 1968, when the appellant was represented by Mr. Muhammad Shafi and Mr. Muhammad Ismail who have appeared gratis in this matter at the request of the Bar Association.

The order of detention passed by the Deputy Commissioner, Karachi is in these terms

"Karachi

Dated 11th August 1966.

Whereas 1, Ahmad Sadik, C. S. P., Deputy Commissioner, Karachi, on consideration of the reports and all other attending circumstances, am satisfied that Mir Abdul Baqi Baluch, son of Mian Khan, at present in P. E. C. H. S., Karachi, was engaged in inciting persons to acts of lawlessness, disaffection amongst people and encouraging persons to commit acts of violence against the Government established by law, in the District of Karachi, in last week of June 1966 and in the second and fourth weeks of July 1966 and is likely to continue to be engaged in prejudicial activities which are likely to seriously disturb and endanger public peace anti peaceful conditions in the District of Karachi And whereas, with a view to preventing the said Mir Abdul Baqi Baluch, son of Mian Khan, from acting in a manner prejudicial to public safety, maintenance of public order and peaceful conditions in the District of Karachi, it is necessary that he be arrested and detained.

Now therefore, I, Ahmed Sadik, C. S. P., Deputy Commis sioner, Karachi, in exercise of the powers delegated to me by the Government of West Pakistan, by virtue of Notification No. 9‑56‑H‑Spl‑1/65 dated the 20th September 1966, read with Notification No. 9‑86‑H‑Spl‑1/65, dated 7‑2‑1966 under rule 32 of the Defence of Pakistan Rules, 1965, hereby direct that the said Mir Abdul Baqi Baluch be arrested forthwith, under clause (6), sub‑rule 1, rule 32 of Defence of Pakistan Rules, 1965 and be detained in the Central Prison, Karachi, until further orders. I further direct that he be treated as a Class 1 detenu. During such detention the said Mir Abdul Baqi Baluch shall be subject to the conditions laid down in West Pakistan Public Order Detenu Rule, 1962. "

The appellant contended before the High Court the these grounds were wholly fictitious and imaginary. According to him, the action of the Deputy Commissioner was male fide for his detention was for ulterior purposes, wholly unconnected with the purposes for which rule 32 of the Defence of Pakistan Rules was intended. According to him, this was done in pursuance of a conspiracy hatched with the parents of his wife, a grand daughter of the late Mr. Hossain Shaheed Suhrawardy, whom he had married against the wishes of her parents.

It is unnecessary to recite herein in any great detail the acts from which tile appellant sought to cull the inference of male fides and colourable exercise of power, but it will be sufficient to state her that the legal grounds upon which the validity of the order of detention was sought to be challenged in the High Court were as follows :

(i) that the impugned order was beyond the scope of rule 32 of the Defence of Pakistan Rules;

(ii) that the grounds given in the order for the impugned detention were false and fictitious and had no factual basis at all;

(iii) that the order was made in the colourable exercise of power or in abuse of powers for wholly ulterior purposes which had no relation whatsoever, to the purposes for which an order of detention could be made under rule 32 of the Defence of Pakistan Rules;

(iv) that the detaining authority had not applied his mind to the necessity of the detention or acted in accordance with law; and

(v) that the order had been made wholly mala fide and arbitrarily.

The petition was contested by the Deputy Commissioner who himself filed a counter‑affidavit controverting the allegations contained in the petition. He denied that the order of detention had been passed either illegally or upon irrelevant or extraneous grounds. He maintained that he had no knowledge of the private affairs of the detenu, either matrimonial or otherwise, or that the order of detention had anything, whatsoever, to do with the earlier refusal of an exit permit to him. To quote his own words, the Deputy Commissioner asserted that the order of detention had been passed on the basis of "credible and reliable information placed before me that the petitioner/detenu was secretly and surreptitiously in league with certain criminals, out‑laws, decoits, etc., who have been engaged in activities of murders, looting and arson in some of the neighbouring districts of Karachi. On occasions public transport buses were attacked and looted, public servants were ambushed and killed in these districts. Sufficient material was available to show and satisfy me that the petitioner/detenu was attempting to create similar conditions in the District of Karachi by inciting persons to acts of lawlessness, disaffection amongst the people and encouraging persons to acts of violence against the Government established by law." He, however, by a subsequent affidavit, declined to produce the reports and other documents on which the detention order was alleged to have been based, claiming that they were privileged documents which it would not be in the public interest to disclose.

The appellant file. an affidavit‑in‑reply in which he introduced fresh materials in support of his allegation male fides anti added that in fact the order had been made by the Deputy Commissioner at the behest of his superiors. Permission was, accordingly, given to the Deputy Commissioner to file a further counter‑affidavit in which he again deeded these new allegations and maintained that the order had been made upon good and sufficient grounds, after due application of his independent mind, without any influence from any other quarter.

Although the vires of the Defence of Pakistan Rules were not challenged in the petition, this formed the main ground of attack during the course of argument. It was argued, will, reference to Article 30 of the Constitution, that the power of the President to promulgate Ordinance under sub‑Article (4) of Article 30, was confined to making immediate legislation necessary to "assist in meeting the emergency that gave rise to the issue of the Proclamation" and that such Ordinances could only be made "to meet the; emergency" declared and none other. Hence, since the Proclamation issued on the 6th September 1965, only declared that the President was satisfied that "a grave emergency exists in which Pakistan is in imminent danger of being threatened by war" the only Ordinances that the President could validly make under sub‑Article (4) of Article 30 were to meet that emergency, namely, the "imminent danger of being threatened by war" and not to secure the public safety or to maintain public order and peaceful conditions. It is, therefore, contended that in so far as rule 32 of the Defence of Pakistan Rules seeks to empower the detention of a particular person also "with a view to preventing him from acting in a manner prejudicial to the security, public safety or interest. . . of Pakistan, the maintenance of public order . . . . the maintenance of peaceful conditions in any part of Pakistani", it is to that extent beyond the powers of the President, Under Article 30 of the Constitution. Thus, the order of detention in the present case is bad, because, it has ex facie been made for this illegal purpose and not for either the efficient prosecution of tiny war or to prevent any imminent danger of being threatened by war.

The High Court repelled this contention holding that "if the conditions laid down in sub‑Article (1) of Article 30 are satisfied, the power of the President extends to the making of such Ordinances as appear to him to be necessary to meet the emergency." The High Court was also of the opinion that this conclusion flowed logically from the provisions of sub‑Article (8) of Article 30 which gave to the President the same powers to legislate by Ordinances as the Central Legislature possessed.

The subsidiary argument to the effect that laws relating to the security and maintenance of public order being subjects within the Provincial Legislative field, could not be legislated upon by the President in exercise of his powers under sub Article (4) of Article 30, by reason of the limitation prescribed by sub‑Article (8) of the same Article, was also rejected on the ground that under sub‑Article (2) of Article 131, the Central Legislature had the power to make laws for the whole or any part of Pakistan with respect to any matter not enumerated in the Third Schedule, if, inter alia, the national interest of Pakistan in relation to the security of Pakistan, including its economic and financial stability, so demands. Thus, even though the security of Pakistan or the maintenance of public order and supplies and services essential to the life of the community are not mentioned in the Third Schedule to the Constitution, which prescribes the exclusive Central Legislative field, the President had the power to legislate in respect of these subjects during an emergency, by virtue of the provisions of sub Article 4 of Article 30, read with sub‑Article (2) of Article 131.

The argument that the impugned order of detention was not covered by rule 32 of the Defence of Pakistan Rules, was also repelled by the High Court, on the ground that if the vires of rule 32 was not open to challenge then the impugned order was well within the ambit of the powers given by that rule. It in no way travelled beyond the compass of rule 32.

An objection raised to the legality of the delegation of powers, under rule 32 of the Defence of Pakistan Rules, to the Deputy Commissioners, was also held to be misconceived, as the delegation appeared to have been competently made under Article 143 (3) of the Constitution and subsections (4) and (5) of section 3 of the Defence of Pakistan Ordinance itself. The relevant powers, it appears, were delegated to the Provincial Government on the 6th September 1965, by Notification No. S. R. O: 3(R)/65 and the Provincial Government, in its turn, delegated that power to all the Deputy Commissioners, by its Notification No. S. O. (D. C.)‑11‑115‑162‑65, dated the 12th September 1965. These powers were later extended and the restriction placed on the powers of the Deputy Commissioners, to order detention for two months only, was removed by a subsequent Notification of the Provincial Government, being Notification No. 9‑86‑H‑Spl‑1/65, dated the 20th September 1965.

The High Court also repelled the contention that the grounds of detention were insufficient, by holding that it was not open to the High Court to go into the question of the sufficiency of the grounds for "the satisfaction of the detaining authority is a subjective process and as long as the reasons given are relatable to the object of the law and there is some evidence to form the basis of the detention order, the Courts will not interfere to supplant the opinion of the detaining authority, by their own opinion or by saying that the evidence is not sufficient to arrive at the impugned decision." Hence, the High Court was of the view that it could neither go into the question of quantum of the evidence nor call upon the detaining authority, as a matter of course, to divulge the exact nature or source of its information on which its satisfaction was claimed to have been based. Furthermore since the appellant had neither declined nor accepted the suggestion made from the Bench to summon the Deputy Commissioner for cross‑examination, without disclosing the report which formed the basis of the detention order or formed part of unpublished official records, it was inclined to believe the statements of the Deputy Commissioner in his affidavits, to the effect that he had in fact received the reports mentioned in his order and that he was satisfied that the likelihood of prejudicial acts being committed by the detenu was there.

Lastly, the allegations mala fide were also disbelieved, because, most of the facts alleged in support thereof were not to be found in the petition originally filed but had been introduced through subsequent affidavits. These were therefore, in the nature of embellishments over the original case and did not furthermore, "appear to be correct in more than one aspect". The petition was, accordingly dismissed.

It may be pointed out here that the conclusions of the High Court in so far as they relate to the scope of its power of judicial review of orders of detention, under the Defence of Pakistan Rules, are clearly opposed to the majority view of this Court in the case of Ghulam Jillani v. The Government of West Pakistan (P L D 1967 S C 373). It has clearly been laid down in that case that actions taken under rule 32 are like other actions relatable to the power derived from clause (x) of sub section (2) of section 3 of the Defence of Pakistan Ordinance itself "equally susceptible of judicial review, subject of course, to the right of the State to claim privilege in respect of secret information and the Court's power to hold proceedings in camera." The High Court has, in coming to its conclusion, of course, relied upon the dictum of the House of Lords in case of Liversidge v. Anderson ((1941) 3 A E R 338) and other decisions following it which had hithertofore formed the basis of the view that the satisfaction of the detaining authority in provisions of this kind was merely a subjective satisfaction and that it was a sufficient answer to the writ for the authorities to show that the detaining authority had, on the face of the order itself stated that he was satisfied that grounds of the kind mentioned in the law giving the power of detention, did exist in a given case. This Court has pointed out that whatever may have been the position under the English Law or the Government of India Act, 1935, the position under ‑the present Constitution of Pakistan is wholly different, for, by Article 98 (2) (b) (i) of the Constitution, a duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court, to "satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". Can this constitutional duty be discharged merely by saying that there is an order which says that he is being so detained Can the High Courts be expected to be satisfied on the mere ipse dixit of the detaining authority

If this could be so, then this "judicial power" would, as pointed out in that case, be "reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own "satisfaction", for imposing restraints on the enjoyment of the fundamental rights of citizens" and Article 2 of the Constitution itself would be "rendered meaningless". If the mere production of an order of a detaining authority, declaring that he was so satisfied, was to be held to be sufficient also to "satisfy" the Court then what would be the function that the Court was expected to perform in the discharge of this duty.

The view taken in the case of Ghulam Jdani is not so new, or radical as the learned Advocate‑General would have us believe, for, indeed it seems that it was the conventional view generally accepted even in England until the House of Lords in the case of Liversidge v. Anderson gave the doctrine of the "subjective test" a new dimension. It was not canvassed on, behalf of the Crown and it is interesting to note that in another case which was heard contemporaneously with the case of Liversidge v. Anderson the Attorney‑General himself suggested a "middle course", as would appear from the opinion of Lord Wright in the case of Greene v. Secretary of State for Home Affairs ((1941)AELR388atp.401) where he says that: "In addition, a middle course has been discussed, which is that, while, on the one hand, the order is not a sufficient return, some statement, I suppose, on oath, of the evidence on which it is based and on which the respondent acted, is necessary, so that if the respondent is debarred by the exigencies of official secrecy from disclosing all his reasons, he must at least disclose sufficient to satisfy the Court that he had reasonable cause to believe."

The decision in the case of Liversidge v. Anderson raised a storm of controversy even in 1942 in England itself. Professor C. K. Allen, the learned author of "Law in the Making", writing in the Law Quarterly Review (vide 58 L Q R 232 at p. 23 opined that "Liversidge v. Anderson has put the clock to a day when Englishmen found it necessary to declare that the power of the executive has increased and ought to be diminished. If they had not entirely lost the spirit of their ancestors, they would say so again when the full effect of this case becomes apparent in our jurisprudence". Indeed he thought that case had, for the first time in English legal history, introduced the "subjective test of reasonable cause" even though this did not form any part of the argument for the Crown.

The Editors of the Harvard Law Review', commenting on this decision in their 56th Volume 1 at page 808 observed that "in this case it looks to an American as if the House of Lords went out of its way to reach this result so thoroughly have two wars changed the general attitude of Englishmen towards civil liberty secured by law" and ultimately concluded at page 812 that "in Great Britain, where there are no constitutional limitations upon Parliament, circumstances indicating that an unlimited arbitrary power was meant to be conferred, may well be decisive," implying thereby that where, as under the American Constitution, a system of judicial review was available, the position might well be different.

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

In England, the Privy Council in 1951, in the case of Nakhuda Ali (1961 A C 66) set the controversy at rest by declaring that "it would be a very unfortunate thing if the decision of Liversidge's case came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments . . . . The elaborate consideration which the majority of the House gave to the question, b.‑fore adopting that construction, itself shows that there is no general principle that such words are to be so understood."

It is not without significance that Lord Radcliff, who delivered the opinion of the Board on this occasion thought that "however read, they (such words) must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power."

In the case of Nakhuda All too the Defence Control of Textile Regulations, 1945 of Ceylon were under consideration. But even so the Privy Council did not extend to the Controller, acting under the said Regulations, the same immunity as was extended to the Home Secretary in the case of Liversidge, and insisted that the words of the Regulation before the Board, which were to the effect that the Controller could act, in a particular manner, if he "had reasonable grounds to believe" should be treated as meaning "that there must, in fact, exist such reasonable ground known to the Controller before he can validly exercise the power." The Controller was, therefore, bound to make disclosure of the facts in his possession.

In the case of Farldsons Limited v. The Government of Pakistan (P L D 1961 S C 537) both Cornelius, C. J. and S. A. Rahman, J. (as he then was) , noticed Nakhuda Ali's case but thought that even there the Privy Council had not gone far enough. S. A. Rahman, J. was definitely of the opinion that the Privy Council should have gone further and held that wherever an executive authority is empowered to determine upon questions affecting the rights of the subjects,. there must be added a duty to act "judicially" and that administrative decisions affecting individual's rights and liberties should be quashed if the party concerned had not been given a fair opportunity to make objections.

The trend of decisions both in this country as well as in England has, therefore, been to regard the decision in Livfrsidge's case as limited to the interpretation of Regulation 18 (B) of the English Defence (General) Regulations, 193) as a special war measure in which the authority to take action had been vested in the highest executive authority in the country, namely, the Home Secretary (Home Minister) himself, who was answerable to the House for his actions. He is certainly an officer who is much more responsible than a Deputy Commissioner in our country.

However, as I have said earlier, my reading of the majority decision in Ghttlam Jilani's case to which I am a party, is that'

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

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

Before parting with this question, 1 would also like to add that though it is true that there is a difference between "being satisfied" and "suspecting upon reason able grounds" the difference, in my humble opinion, is ,t this that the former connotes a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken it out of the stage of suspicion. If so, then is it not reasonable to presume that the law by making such a significant differentiation intended to cast a duty of a more onerous nature upon the person charged with duty of being satisfied and to "satisfy" the Court that he had acted in such manner.

The learned Advocate‑General, appearing on behalf of the Government has, however, contended that clause (x) of section 3 (2) of the Defence of Pakistan Ordinance has now been amended by Ordinance No. II of 1968, promulgated by the President on the 4th March 1968, and that the present case should be governed by the amended Ordinance. By this amendment all that has been done, is that clauses (x), (xa) and (xi) of subsection (2) of section 3 of the Ordinance, 1965, have been substituted by clauses (x), (xa), (xb) and (xi) and section 18 of the Ordinance has been slightly altered. The old clause (x) has thus been split up into portions providing separately for detention and the material change in this behalf is that in ordering detention, for the purposes of preventing a person from acting in a prejudicial manner it is no longer necessary for the authority concerned to be "satisfied" as to the necessity of the detention but it will be sufficient if he is "of the opinion" that it is necessary to do so. Furthermore, an explanation has been added to the effect that "for the avoidance of doubt it is hereby declared that the sufficiency of the grounds on which such opinion as aforesaid is based shall be determined by the authority forming such opinion."

The learned Advocate‑General has argued that since detention is in the nature of a continuing wrong, the validity of the detention today has to be judged on the basis of the altered law, even though the amendment introduced on the 4th March 1968, has not been given retrospective effect. It is well‑settled that a law is not to be given retrospective effect unless it is expressly or by necessary intendment made retrospective. This is not the case here. In the present case, what was under challenge in the High Court, was the validity of the detention order passed on the 11^th August 1966, which was made before the present amendments came into force. The validity of that order has, of necessity, therefore, to be judged on the basis of the law prevailing on that day. The detention is in pursuance to that order and not in pursuance of any order made after the introduction of the amendment. Hence, it is clear that the amendment cannot have retrospective effect. 1, therefore, refrain from expressing any opinion at this stage, as to the effect of the amendments, for, the question does not arise for consideration in the present case which is governed by the law as it prevailed in 1966 and that was as declared in the case of Ghulam Jilani.

Coming now to the question of the wires of section 3 (2) (x) of the Defence of Pakistan Ordinance itself which has been reagitated before us by the learned counsel appearing on behalf of the appellant, it will be noticed that the attack on the wires of the Ordinance is three‑fold. Firstly, it is based on the wording of the Proclamation itself. It is contended that the President, having chosen to declare in the Proclamation that a , grave emergency had arisen due to the fact that "Pakistan is in imminent danger of being threatened by war" must be taken to have defined the emergency which was thought to be met. Hence, under clause (4) of Article 30 of the Constitution, the; only power that the President bad was to make and promulgate such Ordinances as were necessary to meet "the emergency that gave rise to the issue of the Proclamation." There was no power in the President to provide for a different kind of emergency such as the preservation of the security of Pakistan or the public safety or the maintenance of public order.

We are unable to agree that the language used in the Proclamation can have the effect of curtailing the powers granted to the President by the Constitution. Article 30 (1) is in these terms

"If the President is satisfied that a grave emergency exists‑

(a) in which Pakistan, or any part of Pakistan, is (or is in imminent danger of being) threatened by war or external aggression; or

(b) in which the security or economic life of Pakistan is threatened by internal disturbances beyond the power of a Provincial Government to control, the President may issue a Proclamation of Emergency." The power of legislation given by clause (4) is as follows:

If, at a time when a Proclamation of Emergency is in force (whether or not the National Assembly stands dissolved or is in session a, that time), the President is satisfied that immediate legislation is necessary to assist in meeting the emergency that gave rise to the issue of the Proclamation, he may, subject to this Article, make and promulgate such Ordinances as appear to him to be necessary to meet the emergency, and any such Ordinance shall, subject to this Article, have the same force of law as an Act of the Central Legislature."

It will be noticed that this is in the nature of an enabling provision. It gives power to the President to proclaim an emergency if either or any of the conditions mentioned in sub. clause (a) or (b) exists. But once an emergency has been validly proclaimed for any one or more of the grounds given in L sub‑clauses (a) and (b), it is the emergency that has to be met and it is to meet it that clause (4) authorises the President to make immediate legislation by Ordinances. Again though the Proclamation issued by the President stated "that a grave emergency exists in which Pakistan is in imminent danger of being threatened by war", yet it did not say that the Proclamation was being issued only in exercise of the power conferred by sub‑clause (a) of clause (1) of Article 30. The proclamation is in these terms:

"Whereas the President is satisfied that a grave emergency exists in which Pakistan is in imminent danger of being threatened by war;

Now, therefore, in exercise of the powers conferred by clause (1) of Article 30 of the Constitution, the President is pleased hereby to issue this Proclamation of Emergency."

What was said, therefore, was that the President was, in exercise of the powers conferred upon him by clause (1) of Article 30, pleased to issue the Proclamation. The emergency was not, therefore, confined only to meeting the imminent danger of being threatened by was but the emergency was of a wider connotation which compared the grounds mentioned in both of the said sub‑clauses (a) and (b). The power of legislation derived by clause (4) was thus for the purpose of meeting the emergency declared under "clause (1) of Article 30" and not any particular portion of that clause This does not mean that the emergency was circumscribed by the words of the recital contained in the Proclamation. What had to be looked at was M the operative portion of the Proclamation. Looked at in this way the power to legislate by Ordinance which accrued to the President thereby cannot be restricted to any particular portion of clause (1) Article 30.

In any event, even assuming that the immediate cause which gave rise to the issue of the Proclamation was the imminent danger of being threatened by war, no cleat demarcation is possible of what is or what is not necessary for meeting that emergency. Internal disorder, sabotage behind the lines, prejudicial acts threatening or disturbing law and order within the country may all have far reaching effects on the measures needed to be taken for effectively meeting the threat or danger of war. It cannot, therefore, be said that the maintenance of the security or the economical life of Pakistan is not a matter having any bearing on the measures necessary for meeting the emergency created by the imminent danger of war. In such a situation threats of breaches of law and order or dangers to internal security may be more important for keeping up the morals of the people so necessary for any efficient prosecution of war efforts and it is not difficult to comprehend that the prevention of such a pernicious situation might well be beyond the power of the Provincial Government to control. It cannot, therefore, be said that although the emergency had been lawfully proclaimed (this is not disputed), the President had no power to make Ordinance to meet that emergency in the fullest measure.

The second attack on the vires of the Ordinance is on the ground that it covers fields which are outside the exclusive legislative competence of the Central Legislature and, therefore, outside the competence of the President by reason of the provisions of clause (8) of Article 30. This clause reads thus:

"The power of the President to make laws by the making and promulgation of Ordinances under this Article extends only to the making of laws within the legislative competence of the Central Legislature."

This argument is equally without any substance, for, under cause (2) of Article 131 where the national interest of Pakistan in relation to the security of Pakistan including that economic and financial stability of Pakistan or the achievement of uniformity in respect of any matter in different parts oar Pakistan so requires the Central Legislature has the power to, make laws for the whole or any part of Pakistan with respect to any matter not enumerated in the third Schedule, which, enumerates the subjects in respect of which the Central Legislature has exclusive power to make laws. The Defence of Pakistan Ordinance is clearly in the national interest and if provides for matters relating to the security of Pakistan, including its economic and financial stability. The legislation was,] therefore, in every way a competent piece of legislation.

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

The decision of this Court in the case of Khair Muhammad Khan v. The State (P L D 1966 S C 604) relied upon by the learned counsel, has no manner of application in this connection, for, all that was said there was that an order which merely purported to be made under the West Pakistan Land Reforms Regulation, 1959, could under Article 98 of the Constitution, be declared to have been made without lawful authority, if it was in fact not in compliance with the relevant provisions of that Regulation. This Court did not go to the extent of holding in that case that an order lawfully made under that Regulation could be declared to have been made without lawful authority even though the Regulation itself barred the jurisdiction of the Superior Courts to call in question any order made thereunder. The immunity, it was there held, attached to an order made in accordance with the Regulation and its relevant provisions. No such question arises here. The point here is whether a law which purports to take away a Fundamental Right can be declared to be void even though the Courts are prevented from entertaining or proceeding with an application for the enforcement of that Fundamental Right. I think not, because, the consequences of declaring the law to be void would automatically result in the enforcement of the Fundamental Right.

The next contention advanced on behalf of the appellant is that since clause (3) of Article 30 of the Constitution requires that the President shall, when he is satisfied that the grounds on which he has issued a Proclamation of Emergency have ceased to exist, revoke the Proclamation, the President was bound to do so as soon as hostilities ceased and the Tashkent Declaration was announced. If he has not done so, the appellant contends the High Court should declare the Proclamation as revoked. This argument is wholly misconceived, for, it is the President who has to be satisfied that the grounds on which he issued the Proclamation have ceased to exist. It is not for the courts to substitute their satisfaction for the satisfaction of the President. In any event, it cannot be said that merely because hostilities have ceased, the emergency is also at an end. This is a purely political question which is outside the competence of the Courts to decide, for, the declarations of war and peace are within the exclusive competence of the executive Government of the Country. In such matters the Courts speak in the same voice as the Chief executive of the State, for, these are no questions which are amenable to judicial determination. No Court can give a declaration that a state of war has ceased to exist when the Chief executive does not say so.

Learned Counsel for the appellant has also questioned the competence of the Deputy Commissioner, Karachi, to make the impugned order. His contention is that the declaration of power made under subsections (4) and (5) of section 3 are not valid. There is no substance in this contention either, for, the power to delegate governmental functions is given by Article 143 of the Constitution itself, and such power can be given either conditionally or unconditionally. Therefore, the Central Government could lawfully delegate to the Provincial Government its own powers under section 3 of the Defence of Pakistan Ordinance by virtue of subsection (4) of that section and under subsection (5) the Provincial Government could, in its turn, direct that any power or duty which had been entrusted to it under subsection (4), should be discharged by such officer or authority under it, as it may think fit to entrust with that power. There can be no question, therefore, that the delegation to the Deputy Commissioner was a valid delegation, for, the principle delagatus non potest delagare has no application in this case since the statute itself expressly vests the delegatee with this power of sub‑delegation This question is, in any eve qt, no longer res integra for it has been already held in the case of Ghulam Jilani that such delegation could be competently made.

Another point that remains to be dealt with is as to whether a show‑cause notice ought to have been given to the appellant before making the impugned order. For this purpose reliance is placed upon the decision of this Court in the case of Messrs Faridsons Limited v. The Government of Pakistan. But it has to be pointed out that the principles laid down in that case are not attracted in the case of a preventive detention S for, such orders are made purely on considerations of policy or expediency. There can be no question of the detaining authority being under any obligation to act judicially or even quasi judicially. It is only where there is a duty to decide judicially or quasi judicially that the principles of natural justice referred to m Faridsons case are attracted. Besides, as I had occasion to point out, in the case of Abul A'la Maudoodi v. The Government of West Pakistan (P L D 1964 S C 673) ft is not difficult to conceive of situations where from the very nature of the case the giving of a prior notice cannot possibly be insisted upon. The situation in which it becomes necessary to detain a person in an emergency is one of such situations. In such a situation to insist upon the issuance of prior show cause notice may well amount to stultifying the action itself.

Apart from the above the other questions raised are as to whether the impugned order was made mala fide or for collateral purposes or upon wholly false or fictitious grounds. The answers to these questions must depend upon the grounds on which the order was made. But since I propose to remand the case to the High Court to ascertain from the materials that will T have now to be placed before it by the Government, as indicated in the case of Ghulam Mani, to consider as to whether there were grounds upon which any reasonable person could have been satisfied as to the necessity of the detention, I do not think that it would be proper for me to say anything with regard to these matters.

For the reasons I have given above, I would, therefore, allow this appeal and remand the writ petition to the High Court to be disposed of in accordance with the principles enunciated in Ghulam Jilani's case. But there will be no order as to costs, as the grounds upon which the appeal is being allowed became available to the appellant after the announcement of the judgment of the High Court.

FAZLE‑AKBAR, J.‑I agree.

MUHAMMAD YAQUB ALI, J.‑I agree.

SARAD AHMAD, J.‑I agree.

A. H.

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