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Criminal Miscellaneous No. 2212 of 1968, decided on 3rd. June 1968.

S. 3(2), cl. (x) [as amended by Defence of Pakistan (Amendment) Ordi nance (11 of 1968) ] and Defence of Pakistan Rules, 1965, r. 32 Preventive detention‑"Opinion" of authority empowered to act under Rules‑Must be based on some material to satisfy Court' that he had acted in a reasonable manner‑Powers of High Court under Art. 98(2)(b), Constitution of Pakistan (1962)‑Untrammelled" by limitations placed on Court by amendment of clause (x),. subsection (2) of S. 3‑Mere subjective satisfaction of detaining authority‑Not sufficient for formulation of "opinion" as to necessity of detention ‑ Constitution of Pakistan (1962),. Art. 98(2)(b) and Art. 6, Fundamental Right No. 2.

The opinion' of the authority empowered to act under the Rules must be based on some material to satisfy the Court that the authority had acted in a reasonable manner. This is also culled out from looking at the provision in clause (xc) of subsection (2) of section 3, Defence of Pakistan Ordinance, 1965.

The power conferred on the High Court under Article 98 of the Constitution is untrammelled by any such limitation placed on the Court by the amendment of clause (x) of subsection (2) of section 3.

The provision in Ordinance II of 1968, is in the nature of subordinate legislation and it can place no limitation in exercise of right of a person conferred on him by the Constitution to question the order of detention made Under rule 32 of the Defence of Pakistan Rules, 1965, and it is the function of the Court to, satisfy itself that he is not being held in custody without lawful, authority or in an unlawful manner.

In holding that the sufficiency of grounds of detention cannot be gone into in this case merely because the authority empowered to act had formed the opinion that the apprehension and detention of a particular person was necessary for the purpose of preventing him from acting in a prejudicial manner is to stultify the power conferred under Article 98 of the Consti tution of examining the question whether the custody was without lawful authority or the person was held in an unlawful manner.

It is not the subjective satisfaction of the detaining authority alone which is sufficient but it is also his duty to satisfy the Court that there existed material on Which any reasonable person could have formulated the opinion as to the necessity of the detention. No amount of legislation can deprive a person of the protection afforded to him by Article 2 of the Constitution.

The amendment to clause (x) of subsection (2) of section 3, has kept alive the existing powers and jurisdiction of the High Court under Article 98(2)(b) of the Constitution.

Ghulam Jilani v. Government of West Pakistan P L D 1967 S C 373 ; Maulvi Farid Ahmad v. Government of West Pakistan P L D 1965 Lah. 135 and Abdul Baqi Baluch v. Government of Pakistan and others P L D 1968 S C 313 rel.

Abdur Rashid v. Crown P L D 1951 F C 14 ref.

Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and others P L D 1968 S C 101 held not relevant.

Provisions of subordinate legislation in conflict and inconsistent with constitutional provi sions‑Cannot be given effect to.

If there is a conflict between any subordinate legislation and the constitutional provision and the inconsistency cannot be recon ciled then the subordinate legislation in so far as it is repugnant to the constitutional provision cannot be given effect to.

Lal Khan v. Crown P L D 1955 Lah. 215 rel.

M. Anwar and Saeed Akhtar for Petitioner.

Qazi Akhtar Ahmad, A. A.‑G. for Respondent No. 1.

Dates of hearing : 28th, 29th, 30th and 31st May 1968.

‑Begun Agha Abdul Karim Shorish Kashmiri has filed this petition under Article 98(2)(b) of the Constitution of Islamic Republic of Pakistan challeng ing the order of detention of her husband purporting to be made under clause (b) sub‑rule (1) of rule 32 of the Defence of Pakistan Rules, 1965. The order of detention was passed on the 7th of May 1968, by the Governor of West Pakistan. We admitted this petition to hearing by our order dated the 17th of May 1968, and notice was issued to the State to justify the detention of the detenu under rule 32 of D. P. R. The Home Secretary of the Provincial Government has filed the written statement supported by his affidavit. On the 28th of* May 1968, the Attorney‑General of Pakistan put in an. application seeking permission to intervene and join the proceedings to assist the Court on legal and constitutional points This permission was accorded by the order of even date.

2. Before examining the case on merits we proposed to examine the effect of amendment of clause (x) of sub section (2) of section 3 of Defence of Pakistan Ordi nance (XXIII) of 1965, by Ordinance 11 of 1958, for the proposition that the High Court is precluded from examining, the order of detention made after the said amendment by ordinance II of 1968.

3. Cause (x) of subsection (2) of section 3, Defence of Pakistan Ordinance (XXIII) of 1965 provided as under :‑

"(x) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain, as the case may be suspects on ground appearing to such authority to be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to Pakistan's relations with foreign powers, the security, the public safety or interest, or the defence of Pakistan, or any part thereof, including the maintenance of supplies and services essential to the life of the community and the maintenance of peaceful conditions in any area included in Pakistan or prejudicial to the maintenance of public order, or the efficient conduct of military operations or prosecution of war or with respect 0 whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such preju dicial manner, the prohibition to such person from entering or residing or remaining of any area, and the compelling in such person to reside and remain in any area, or to do or abstain from doing anything."

4. The Supreme Court (Pak.) considered the effect of section 3(2)(x) of Ordinance (XXIII) of 1965 in relation to rules 32 and 204 of the Defence of Pakistan Rules and laid down while deciding Ghulam Jilani v. Government of West Pakistan (P L D 1967 S C 373) that "reading clause (x) according to the tenor of its language, and bearing in mind that it makes legal pro vision for restraint on personal liberty which is fundamental right of citizens in Pakistan, the conclusion that appears unavoidable is that to gain protection for any action there under, the existence of reasonable grounds is essential and a mere declaration of satisfaction is not sufficient."

5. It was further held in the case referred to above that "the ascertainment of reasonable grounds is essentially a judicial or at least a quasi judicial function * * * * * * * * * * * * * * * * * * * * * * * * * *

public power is now exercised in Pakistan under the Constitu tion of 1962, of which Article 2 requires that every citizen shall be dealt with strictly in accordance with law. If then rule 32 owes its vices to section 3(2)(x), it must follow that by the use of the words "reasonable grounds" clause (x) has unmistakably imported into this rule controlling the exercise of public power, the requirement that to gain the protection of the rule for its action thereunder, the authority should be prepared to satisfy the Courts, to which the subject is entitled to have resort for determination of question whether he has been treated in accordance with law, that it has acted on reasonable grounds".

6. What was done after the majority judgment in Ghulam Jilani's case was to split clause (x) into two parts. It is now worded by the amending Ordinance (11) of 1968 as under:‑

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

Explanation.‑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.

(xa)* * * * *

(xb)* * * * *

(xc) the apprehension and detention in temporary custody of any person whom the authority empowered by or under the rules to apprehend and detain suspects, on grounds appearing to such authority to be reasonable :‑

(a) of being of hostile origin, or

(b) of having acted, acting, being about to act, or being likely to act in any such prejudicial manner as is mentioned in clause (x)."

Mere "opinion" of the authority empowered under the rules to apprehend and detain any person has been substituted for "grounds appearing to such authority to be reasonable" in the amended clause (x). By amending this clause, provision has been made separately in the case of detention and the material change which has been brought about is that in preventive detention it is no longer necessary for the detaining authority to be satisfied' but it will be sufficient if he is, of the opinion' that it is necessary to do so.

7. The question is whether by the amendment the power conferred by Article 98(2)(6) of the Constitution on this Court to satisfy itself that a person in custody is not being held without lawful authority or in an unlawful manner has, in any way, been curtailed.

8. The learned Additional Advocate‑General, who appeared for the Provincial Government, frankly conceded and rightly too that the jurisdiction conferred on this Court by Article 98(2)(6) of the Constitution to satisfy itself that a person in custody is not being held without lawful authority or in an unlawful manner has, in no way, been curtailed or whittled down by the amending Ordinance (II) of 1968. He also conceded that if it is proved in a giver, case that the order of detention was mala fide, this Court has ample power to interfere.

9. The learned Attorney‑General, who represented the Central Government, however, strenuously argued that after the amendment of clause (x) this Court was precluded from examining the sufficiency of grounds upon which the detaining authority had formed the opinion as regards the necessity of the order of detention. In this connection, he relied on the decision in the case Abdur Rashid v. Crown (P L D 1951 F C 14). The relevant portion from the judgment runs :‑

"It is, however, satisfied" important to remember that the words "if satisfied are not preceded by any qualifying adverb, such as, reasonably". It is the satisfaction of the arresting officer that forms the basis of the arrest of the detenu. The Legislature has omitted the word "reasonably" which would have enabled Courts of law to examine the sufficiency of the reasons for the satisfaction of the arresting authority. 1n these circumstances, the satisfaction of the officer ordering the arrest must be taken to be subjective satisfaction. The we'd "satisfaction" in the context cannot be held to have been used in an objective sense."

l0. It is true that there is a difference between "suspects, on grounds appearing to such authority to be reasonable" and is of the opinion. but the opinion' of the authority empowered to act under the rules must be based on some material to satisfy the Court that the authority had acted A in a reasonable manner. This is also culled out from looking at

the provision in clause (xc). It runs :‑

"(xc) the apprehension and detention in temporary custody of any person whom the authority empowered by or under the rules to apprehend and detain suspects, on grounds appear ing to such authority to be reasonable :‑

(a) of being of hostile origin, or

(b) of having acted, acting, being about to act, or being likely to act in any which prejudicial manner as is mentioned in clause (x)."

11. It is remarkable that in the case of temporary custody a duty has be on cast on the authority empowered to act of being satisfied and to satisfy the Court that he acted on grounds appearing to such authority to be reasonable but in the case of preventive detention this safeguard has been done away with.

12. The power conferred on this Court under Article 98 of the Constitution is untrammelled by any such limitation placed on the Court by the amendment of clause (x) o subsection (2) of section 3. The relevant portion from the Article reads as under :‑

"98(1) (2)

(b) on the application of any person, make an order‑‑

(i) directing that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being hold in custody without lawful authority or in an unlawful manner."

13. In our view, the provision in Ordinance II of 1968, is in the nature of subordinate legislation and it can place no limitation in exercise of right of a person conferred on him by the Constitution to question the order of detention made under rule 32 of the Defence of Pakistan Rules, 1965, and it is the C function of this Court to satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. This Court in Maulvi Farid Ahmad v. Government of West Pakistan (P L D 1965 Lah.135) laid down that the right of the petition for habeas corpus is a high prerogative right and is a Constitutional remedy for all matters of illegal confinement. This is one of the most fundamental rights known to the Constitution. There being no limitation placed on the exercise of this right, it cannot be imported on the actual or assumed restriction which may be imposed by any sub ordinate legislation". We may also reproduce with advantage the observation by the Supreme Court to the recently decided case of Abdul Baqi Baluch (P L D 1968 S C 313) :‑

"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 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 material upon which the authorities have purported to act."

In Ghulam Jilani's case their Lordships also observed :‑

"Under the Constitution of Pakistan a wholly different state of affairs prevails. Power is expressly given by Article 98 to the Superior Court to probe into the exercise of public power by executive authorities, how high so ever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own "satisfaction" for imposing restraints on the enjoyment of the fundamental rights of citizens."

14. In our view notwithstanding the amendment of clause (x), it is still the duty of the authority empowered to act to satisfy the Court that in forming the opinion he acted in a reasonable manner.

15. The learned Attorney‑General invited our attention to the observations by their Lordships of the Supreme Court in Muhammad Yusuf v. The Chief Settlement and Rehabilita tion Commissioner, Pakistan, Lahore and others (P L D1968 S C 101) and Malik Ghulam Jilani v. The Government of West Pakistan through the Home Secretary and another. The observations in the former case are not relevant to the decision of the matter grim before us. Muhammad Yaqub Ali, J. observed in Ghulam Jilani's case that the detaining authority is expected to exercise the public power of apprehension and detention in accordance with law as enjoined by Article 2 of the Consti tution and not arbitrarily or perversely. In holding that the sufficiency of grounds of detention cannot be gone into in this case merely because the authority empowered to act had formed the opinion that the apprehension and detention of a particular person was necessary for the purpose of prevention him from acting in a prejudicial manner is to stultify the power conferred under Article 98 of the Constitution of examining the question whether the custody was without lawful, authority or the person was held in an unlawful manner. We therefore, feel no difficulty in coming to the conclusion that notwithstanding the amendment of clause (x) by Ordi nance II of 1968, this Court can still examine the sufficiency of the grounds, on which the authority to act formulated its opinion. It is not the subjective satisfaction of the detaining' authority alone which is sufficient but it is also his duty to satisfy this Court that there existed material on which any reasonable person could have formulated the opinion as to the necessity of the detention. No amount of legislation in our humble opinion can deprive a person of the protection afforded to him by Article 2 of the Constitution. If there is a conflict between any such legislation and the Constitutional pro vision and the inconsistency cannot be reconciled then the sub ordinate legislation in so far as it is repugnant to the Constitutional provision cannot be given effect to. Set Lal Khan v. Crown (P L D 1955 Lah. 215). It is our duty to protect and guard the Constitution.

16. The result is that we are of the view that amendment to clause (x) of subsection (2) of section 3, has kept alive the existing powers and jurisdiction of the High Court under Article 98(2)(b) of the Constitution.

17. We would like to add to yards the end that when the detention file as well as the file relating to confiscation of Chattan Press and the cancellation of declaration of Weekly Chattan, were produced before us the Advocate‑General did not claim privilege.

18. Qazi Akhtar Ahmad, learned Additional Advocate-General did not make any secret of the fact that there was difference of opinion between various authorities in the Government regarding the action to be taken against the detenu.

A. E. Order accordingly.

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