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(This case was referred to the above‑noted Division Bench by Cornelius, J. vide His Lordship's order, dated the 16th, September 1952).
Petition No. 594 of 1952, decided on 21st November 1952 under section 439, Criminal Procedure Code, for revision of the order of P. R. B. May Sessions Judge, Lahore, dated the 1st May 1952, affirming that of Pir Salah‑ud‑Din, Special Magistrate with enhanced powers under section 30, Criminal Procedure Code, Head Quarter at Lahore, dated the 17th March 1952 convicting the petitioner.
S. 17---- Externment order under S. S‑Prosecution for disobedience of order‑Crown to prove ingredients of offence by evidence‑How much and what kind of evidence may be produced depends upon circumstances of each case‑If factum of issuing authority's "satisfaction" can be legitimately presumed from order itself, no further evidence may be necessary--‑Presumption regarding official acts‑Evidence Act (I of 1871), S. 114, illus. (e).
In a prosecution under section 17, Punjab Public Safety Act, as in a prosecution under any other criminal law, the burden of proving the guilt of the accused is upon the prosecution and, it cannot be laid down that a Court must, in every case, be satisfied by the mere production of the order complained of.
The prosecution must prove all the ingredients of an offence by evidence; but how much and what kind of evidence should be produced must depend upon the circumstances of each case. In some cases it may be desirable and even neces sary for the prosecution to call the officer concerned as a witness; in other cases it may be wholly unnecessary if the factum of satisfaction can be legitimately presumed from the order showing that the issuing authority was satisfied about its necessity.
It is of course not a conclusive presumption and can always be rebutted. If circumstances are brought on the file in the course of the case, casting doubt on the factum of the satisfaction of the relevant authority, expressed on the face of the document in question, the Court may then decide to call for proof of the fact, as required by section 4 of the Evidence Act. In a suitable case it would indeed be but meet and proper to raise such a presumption in favour of the prosecution, after considering the status of the officer signing the order and the circumstances in which it was passed.
P L R 1949 Lah. 497, Suraj Pakash Ram Lal v. Emperor A I R 1948 Lab. 84 and Muhammad Hayat v. Crown P L D 1951 Lah. 15 ref.
Emperor v. Abdul Majid A I R 1949 Bom. 387 and Emperor v. Bhiku Ramchandra Shinde A I R 1950 Bom. 330 distin guished.
S. 5 proviso--- Temporary residence does not attract operation of proviso---temporary residence does not attract the operation of the proviso to section 5, Punjab Public Safety Act.
The intention of settling down in a place does not make a person a resident of that place.
Mere casual or temporary visits do not constitute residence.
Carol v. Carol A I R 1933 All. 39 ref.
H. S. Suhrawardy and K. A. Rahim for Petitioner.
S. S. Mahmood, Assistant to the Advocate‑General for Res pondent.
In this appeal by one Sayed Zaheer‑ul -Hassan Jilani Chandpuri, who has been convicted under section 17 of the Punjab Public Safety Act, 1949, and sentenced to a year's rigorous imprisonment, an important question of law has been raised which, in my opinion, requires to be con sidered by a larger Bench so that it may be authoritatively pronounced upon.
On the 14th November 1950, an order was made under section 5 of the Act of 1949, requiring the appellant to leave the Punjab Province within thirty‑six hours. He applied for and obtained extension of the tithe allowed for compliance up till 4 a.m. on the 18th November 1950. In the meantime it appears that he was advised that the order was illegal and he, therefore, elected to disobey it and to face a trial. He, there fore, did not leave the Punjab on the 18th November, 1950, and he was consequently arrested, and on the 20th November 1950, a prosecution under section 17 of the Act was launched against him.
The provisions of law applicable to the case may be repro duced at this stage. Under section 5, "the Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order, it is necessary to do so, may, by order in writing, give any one or more of the following directions, namely, that such person‑
(c) shall remove himself from, and shall not return, to any area that may be specified in the order."
The order in this case was to remain in force for a period of six months.
Contravention of such an order is made an offence and a penalty is provided by section 17 which reads as follows:‑
"whoever disobeys or neglects to comply with any order made .....in accordance with its provisions (i.e. of the Act) shall. .be punishable with imprisonment which may extend to three years, or with fine, or with both."
Briefly, the argument advanced on behalf of the appellant is that the burden lies upon the prosecution in every case falling under section 17 to establish that the order, the disobedience of which is complained of, was made "in accordance with the provisions of the Act" and those provisions, as contained in section 5, are that the order should have been made by a com petent authority, such authority being satisfied with respect to the appellant that it was necessary to extern him from the Punjab Province in order to preventing him from acting in any manner prejudicial to the maintenance of public order. (This is according to the expression contained in the externment order). In the present case, there is no evidence led by the prosecution to establish such satisfaction. Satisfaction being a state of mind, it is susceptible of bring established by evidence and circumstances as provided by section 14 of the Evidence Act, 1872. The existence of such satisfaction in the mind of the authority making the order was a fact in issue in the case, the burden of proving which lay, in the first instance, on the prosecution. They had made no attempt to establish this fact, and this default, in the submission of the learned counsel, vitiated the conviction. In support of this argument, reference was made to two recent judgments delivered in the Bombay High Court by Division Benches, in the cases of Abdul Majid Abdul Aziz (A I R 1949 Bom. 387) and Bhikku Ramchandra Shinde (A I R 1950 Bom. 33A).
For the Crown, reliance is placed on the authorities which lay down, with reference to orders of detention made under section 3 of the same Act that the satisfaction of the compe tent authority regarding the necessity of arresting and detain ing any person with a view to preventing him from acting in any manner prejudicial to the public safety or public order, is sufficiently established for the purposes of a prima facie case if it is expressed in clear terms on the face of the order made by the authority under the relevant power. It is argued that in the present case also production of the order of extern ment, which on the face of it, bears an expression of the satisfaction in the relevant respect of the competent authority, should be sufficient to satisfy the Court that such authority was in fact satisfied. Reference was also made to sections 79 and 114 of the Evidence Act.
In reply it was pointed out for the appellant that there is a material distinction between an application under section 491, Cr. P. C., by a detenu alleging that he is illegally detained by virtue of an order passed under section 3 of the Act and a prosecution such as that in the present case. In a habeas corpus petition the burden lies upon the petitioner to establish that his detention is illegal, and that the appearance of legality is colourable. In a prosecution under section 17 the burden lies upon the Crown to establish that the order of which it alleges disobedience was made "in accordance with the provi sions of the Act" and one of these provisions is that there should be "satisfaction" of the authority making the order. As to section 79 of the Evidence Act, its effect is very limited, and in the absence of any law which provides that by mere production of a document such as an externment order, such document becomes evidence of the material fact, viz., satisfac tion of the authority in question, no help can be derived from section 79 in a case like the present. As for the presumption under section 114 that all official acts have been regularly per formed, it will hardly cover so specific and delicate a matter as the formation of an opinion by the competent authority regarding the necessity of taking certain severe action for pur poses of such far‑reaching importance as the maintenance of public peace and public order.
The point thus raised has not previously been the subject of determination by this Court. The view taken by the learn ed Judges of the Bombay High Court is, of course, not binding on this Court, but it is supported by weighty reasons, which require to be examined and considered with care before they are either accepted or rejected. The contentions raised for the Crown by the Learned Assistant Advocate‑General are equally deserving of thorough examination, particularly in view of the large volume of authority and opinion which has grown up in recent years in relation to the various statutes prescribing the satisfaction of a specified authority as a condition of an order for detention without trial. It is, in my view, undesirable that I should at this stage express my own opinion on the points arising out of the argument.
I accordingly direct that the case be laid before my Lord the Chief Justice for reference to a larger Bench. In a separate order I have directed that the appellant should be released on bail.
This is a petition for revision of the order passed by the Sessions Judge, Lahore, on 1st May 1952, rejecting the petitioner's appeal. It came up for hearing before Cornelius, J. who considered that an important ques tion of law was involved and asked the Hon'ble Chief Justice to refer it to a larger Bench. It has, accordingly, come to us for decision.
The petitioner, Zaheer‑ul‑Hasan Jilani, Chandpuri, was served with an externment order under section 5, Punjab Public Safety Act, 1949, on 14th November 1950. It reads as follows:‑
No. 12811‑RDSB. Whereas the Governor of Punjab is satisfied with respect to the person known as Zabir Hasan Jilani Chandpuri son of Dr. Hakim Muhammad Abdul Razzaq, originally of village Chandpur, district Bijnour (U. P.), later of Karachi, that with view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order:
Now, therefore, in exercise of the powers conferred by clauses (a) and (c) of subsection (1) of section 5 of the Punjab Public Safety Act, 1949, the Governor of tile Punjab is hereby pleased to direct that the said Zahir Hassan Jilani Chandpuri shall remove from himself from the Province of the Punjab within thirty‑six hours from the service of this order and shall not return to reside within the Punjab Province so long as this order remains in force.
This order shall remain in force for a period of six months.
BY ORDER OF THE GOVERNMENT, PUNJAB,
AHMAD ALI,
HOME SECRETARY TO GOVERNMENT, PUNJAB".
Zaheer‑ul‑Hasan elected to disobey this order. He was prosecuted under section 1 7, Punjab Public Safety Act, according to which any one who contravenes any provisions of this Act or disobeys or neglects to comply with any order made or direction given in accordance with its provisions shall, where no express provision is made by this Act for the punishment of such contravention, disobedience, or negligence, be punishable with imprisonment which May extend to three years, or with Fine, or with both.
The accused pleaded not guilty and said that he had disobeyed the order because he considered it to be wrong. He did not specify the grounds on which he considered it to be wrong but said that he would file a written statement which he did not do. He produced twenty two witnesses to show that before he was served with the externment order he was detained in Lahore Fort for about 21 days under section 3, Punjab Public Safety Act, that the purpose of that detention was mala fide and he was tortured during the period of detention.
I should have said that these allegations were wholly irrele vant to the present case but Mr. Suhrawardy has urged that the externment order was passed by the Home Secretary to prevent the petitioner from prosecuting his complaint against some police officials on the basis of these allegations. The allegations and the evidence produced in support thereof ware considered by the trial and the appellate Courts and found to be false. I purposely refrain from expressing any opinion in respect of these allegations because the petitioner's complaint was "filed", as distinguished from dismissed, on account of his absence and, so far as I can see, there is nothing to prevent him from reviving proceedings on that complaint or filing a new complaint about the same facts. The only question with which we are con cerned is whether the externment order passed by the Home Secretary was in accordance with the provisions of the Punjab Public Safety Act 1949. Four witnesses were produced by the prosecution, via, Ijaz Hussain, Inspector, C. I. D., Lahore; Malik Habib Ullah, S. P., C. 1. D., Lahore; Ibrar Ahmad, Inspector, C. I. D.; and Hafiz‑ur‑Rahman, Sub‑Inspector. Ijaz Hussain deposed that he served the externment order (Exh. P. A.), dated 14th November 1950, on the petitioner. He was familiar with the signature of the Home Secretary and said that the ex ternment order was signed by him. Malik Habib Ullah, S. P., C. I. D., deposed that the externment order was served on the petitioner by Ijaz Hussain Inspector in his presence on 14th November 1950. The petitioner was given a brief extension of time for leaving the Punjab, but he did not do so even after the expiry of the extension. The witness, therefore, ordered Ibrar Ahmad, Sub‑Inspector Police, to register a case against the petitioner under section 17, Punjab Public Safety Act. He had been seeing the Home Secretary signing documents almost every day and deposed that the externment order (Exh. P. A) was signed by the Home Secretary. The witness was asked whether it was a fact that the petitioner was served with the externment order with a view to preventing him from complaining against the police and from taking part in the general elections on behalf of the Awami Muslim League. He denied this and said that h had ordered the petitioner to be detained for a month in order to prevent him from acting in a manner prejudicial to public safety. Before the expiry of that period he was served with the externment order and it became unnecessary to detain him any further in Lahore. The witness therefore, terminated the period of de tention before it was completed. Ibrar Ahmad, Inspector, deposed that on 18th November 1950 he was ordered by Malik Habib section S P. to register a case against the petitioner under Punjab Public Safety Act, and he did so, vide Exh. P. D. Hafiz‑ur‑Rahman, Sub‑Inspector, said that he inves tigated the case and challaned the petitioner. This concluded the prosecution evidence.
On being questioned by Court, the petitioner admitted that he was duly served with the externment order (Exh. P. A.) and sub sequently with the order (Exh. P. C.) extending the time for his leaving the Punjab up to 4 a.m., on 18th November 1950. He admitted that he had disobeyed the order but said that he did so because be did not consider it to be "jaiz". This is a com prehensive word and can mean proper, valid or lawful. The petitioner never specified why he considered it to be improper, Invalid or unlawful.
Section 5, Punjab Public Safety Act, reads as follows:‑
"(1) The Government or the District Magistrate, if satisfied with respect to any particular person that with a view to pre venting him from acting in any manner prejudicial to the public safety or the maintenance of public order, it is necessary so to do, may, by order in writing, give any one or more of the follow ing directions, namely, that such person‑
(a) shall not enter, reside or remain in any area that may be specified in the order ;
(b) shall reside or remain in any area that may be specified in the order:
(c) shall remove himself from, and shall not return to, any area that may be specified fn the order;
(d) shall conduct himself in such manner, abstain from such acts, or take such order with any property in his possession or under his control, as may be specified in the order.
(2) An order under subsection (1) made by the District Magistrate shall not, unless the Government by special order otherwise directs, remain in force for more than three months from the making thereof.
(3) The Government may at any time cancel or vary any order made by the District Magistrate under subsection (1).
(4) An order under clause (a) of subsection (1) made by the Government may specify as the area to which the order relates the whole province or any part thereof, and an order made by the District Magistrate may specify as such area the whole district or any part thereof:
Provided that no such order made by the Government shall direct the exclusion or removal from the province of any person ordinarily resident in the Province; and no such order made by the District Magistrate shall direct the exclusion or removal from the district of any person ordinarily resident in that district"
The first question that arises is whether the petitioner dis obeyed or neglected to comply with an order made in accordance with the provisions of the Punjab Public Safety Act. It has been held frequently that an order made for a purpose other than that specified ire the Act is not an order in accordance with the provi sions of the Act. Section 5, like section 3, Punjab Public Safety Act, empowers the Government and the District Magistrate to arrest and detain a person with a view to preventing him from acting in a manner prejudicial to public safety and order, and it 9s necessary that the Home Secretary, who issued the externment order, should have been satisfied that, with a view to preventing the petitioner from acting in a prejudicial manner, it was necessary to order him to remove himself from the Punjab. In Muhammad Hayat v. Crown (P L D1951 F C 15), it was held that the satisfaction of the officer ordering the arrest under section 3, Punjab Public Safety Act, must be taken to be a subjective satisfaction. The Courts have no jurisdiction to go into the sufficiency of the reasons for the satis faction. The burden of proving that the officer issuing the order was, in fact, not satisfied lies on the detenu arid a presumption will normally be raised in favour of the Crown if the order is ex facie regular and in conformity with the language of the section of the Public Safety Act. The same view was taken in Chiragh Din v. Crown (P L D 1951 F C 39), and it was held that in the absence of any material on the record showing that the officer ordering the arrest acted in bad faith, the Crown cannot be called upon to prove that the order was not illegal or improper.
Mr. Suhrawardy has argued that these observations apply to orders under section 3 and not to prosecutions under section 17 of the Punjab Safety Act. In support of his argument he has relied on two cases decided by the sane Bench of the Bombay High Court, Emperor v. Abdul Majid (A I R 1949 Bom. 387) and Emperor v. Bhiku Ramchandra Shinde (supra). In the second case, the learned Judges (Chagla C. J. and Gajendragadkar, J.) merely re‑affirmed the view taken by them in the first case and the relevant portion in the first case is as follows:‑
"It is only a valid order made under the section, the contra vention of which constitutes an offence. It is not any order made under the section which requires obedience on the part of the person to whom the order is addressed. It must bean order which satisfies the condition laid down in subsection (1) of section 2, and as we have pointed out the condition which the Legislature requires and which it has imposed upon the executive authority is that it should be satisfied in a particular manner. Now, the Advocate‑General has argued that as soon as an order made by the Commissioner of Police is tendered and the order on the face of it says that the Commissioner of Police was satis fied as required by subsection (1), nothing further is to be proved by the prosecution, and the condition laid down under subsec tion (1) has been satisfied. In our opinion that is not the correct position in law. Section 6, inasmuch as it provides for a con viction at the hands of a Court, presupposes a judicial deter mination by the Court. Although the order to be made is an executive order, the determination that it is a valid order is a judicial determination, and for the purpose of a judicial determi nation all the principles underlying the Evidence Act and all principles underlying criminal jurisprudence must be complied with. And the most fundamental of these principles is that the burden of proving the guilt of the accused is, upon the prosecution and the prosecution must establish by evidence all the ingredients Which go to constitute an offence, and when an accused person is charged with the contravention of an order, and he pleads not guilty by challenging the validity of the order, one of the most important ingredients to be proved is that the Provincial Govern ment has been satisfied on materials placed before it that the accused is acting in a manner which is prejudicial to the public safety, the maintenance of public order or the tranquillity of the Province or any part thereof, and that ingredient, in our opinion, cannot be said to leave been proved merely by the prosecution flourishing in Court an order made by the Police Commissioner. The Advocate‑General has given the instance of proceedings under section 491 where a detained person under the Public Security Measures Act comes to Court complaining of his deten tion and challenging the order of detention. The position in proceedings under section 491 and the position that obtains when a person is charged in a Court of law for the commission of an offence are by no means identical and no analogy can be drawn between the two. In the case of habeas corpus proceedings, the petitioner comes to Court on a petition and he has got to make out, and he has got to state, that the order under which he is detained is a bad order on any of the grounds on which it is open to him to attack or assail the order. On that if the Court is satisfied that a prima facie case is made out, it calls upon the detaining authority to justify the order and to meet the challenge made to it by the petitioner. In the case of a criminal trial it is the prosecution that initiates the proceedings. It is the prose cution that has got to prove the guilt of the accused, and not merely make out a prima facie case. The accused is under no obligation to open his mouth, and the Court can only convict tire accused if it is satisfied that the prosecution has established that an evidence was committed by the accused. Therefore, it would not be proper for us to accept the suggestion of the Advocate‑General and to lay down that as in habeas corpus proceedings the Court must in every case be satisfied by the mere production of the order by treating it as ex facie valid unless it is challenged on some ground by the accused. To accept this contention would tend to undermine the basic principles of a criminal trial and virtually to throw the burden upon the accused, which burden should and must always lie upon the prosecution."
I am in respectful agreement that in a prosecution under section 17, Punjab Public Safety Act, as in a prosecution under any other criminal law, the burden of proving the guilt of the accused is upon the prosecution and, as observed in the passage quoted above, it cannot be laid down that a Court must, in every case, be satisfied by the mere production of the order complained of. In view of the words "in every case" used by the learned Judges of the Bombay High Court, I do not understand them to mean that in no case can the prosecution be said to have proved the "satisfaction" of the authority issuing the order by merely "flourishing" or produc ing the order in Court. The principle reiterated in this case is that the prosecution must prove all the ingredients of an offence by evidence; but how much and what kind of evidence should be pro duced must depend upon the circumstances of each case. In some cases it may be desirable and even necessary for the prosecution to call the officer concerned as a witness, in other cases it may be wholly unnecessary if the factum of satisfaction can be legitimately presumed from the order showing that the issuing authority, was satisfied about its necessity.
In the case of Muhammad Hussain Ata, Vice‑President, Pakistan Trade Union Federation (P L R 1949 Lab. 497), decided by a Division Bench of this Court of which I happened to be a member, it was observed by the learned Chief Justice that a recital in an official record that the authority which directed the arrest of a particular person under section 3 was satisfied that it was necessary to arrest him with a view to preventing him from acting in a manner prejudicial to public safety may give rise to the presumption that he was arrested for the reason stated therein, though the presumption is not one of law and the Court need not raise it in all cases. In Suraj Parkash Ram Lal v. Emperor (A I R 1948 Lah. 84), it was held by Muhammad Munir, J. (now C. J.) that where an application is made under section 491, Cr P. C., against an arrest and detention under the Punjab Public Safety Act, the Crown seeking to defend the arrest should produce the official record of the act of arrest stating the fact that the arresting officer was satisfied that it was necessary to make the arrest with a view to preventing the arrested man from acting in a manner prejudicial to the public safety or to the maintenance of public order. Where, instead of producing such record, the Crown only produces an affidavit of the officer who effected the arrest under section 3 (1), Punjab Public Safety Act, or an order of detention under section 3 (2) of the Act committing the person arrested to custody, the petitioner can require the attendance of the officer arresting or directing the arrest of the detenu with a view to cross‑examining him in regard to averments in the affidavit. Up to this sage the onus of justifying the arrest is throughout on the prosecution as the maxim omnia praesumuntur rite esse acta does not operate unless the Crown produces the record of the official act containing the recital that the authority arresting or directing the arrest was satisfied that it was necessary to arrest the person with a view to preventing him from acting in any manner prejudicial to the Public Safety or the maintenance of public order. It was further held in this case that in determining whether the arresting officer was personally satisfied that it was necessary to arrest the detenu with a view to preventing him from acting in a manner prejudicial to the public safety or the maintenance of public order, the Court cannot substitute its own judgment for the judgment of the arresting officer, nor can the Court go into the question whether the grounds on which the arresting officer acted were reasonable or sufficient inquiry into any such question being barred by section 43 of the Act. The short but difficult task that the Court has to perform in such cases is to read the mind of the arresting officer and in keeping in view the attendant facts the Court can accept the arresting officer's averments that he effected the arrest because he was satisfied that it was necessary to do so with a view to preventing the man concerned from acting in a manner prejudicial to the public safety, it must discharge the rule, however poor, illogical or absurd the ground on which the officer acted may be it not being a condition precedent to such arrests that the arresting officer had reasonable grounds to believe or reasonable suspicion against the person arrested that unless arrested he would act in a prejudicial manner. I have no doubt that these observations relating to arrests under section 3, Punjab Public Safety Act, apply with equal force to orders of externment under section 5, Punjab Public Safety Act. The condition precedent for the issuing of order under both these sections is identically the same; namely, the satisfaction of the authority issuing the order that it was necessary for preventing the person, against whom the order is issued, from acting in a manner prejudicial to public safety or maintenance of public order. In Muhammad Hayat v. Crown (supra) it was held that the presumption under section 114 applies to all cases, and cases of preventive detention cannot be excluded from the operation of the presumption. Nor, in my opinion, can cases of externment be excluded from the operation of that presump tion. It is, of course, open to the detenu to point to any material on the record to show that the presumption has been sufficiently rebut ted. If be can point to any suspicious circumstances, it would be open to the Court, in that particular case, to hold that the presum ption should not be made, and the Crown should be called upon under section 4 of the Evidence Act to prove that the officer ordering the arrest had sufficient reasons to pass the order of detention. In other words, in the absence of any material to the contrary, the bona fides of the arresting authority shall be presumed, and it would be for the detenu to prove his mala fides. As the presumption is one of fact, the status of the authority issuing the order can be taken into consideration along with other facts, and, in this case, I am unable to hold that the Home Secretary issued the externment order against the petitioner in order to protect some police officials who were alleged to have tortured the petitioner or to prevent him from prosecuting those police officials. Apart from the fact that both the Courts below have, after considering the evidence adduced by the petitioner, held that he failed to prove that he had been subjected to any torture, nothing has been brought to our notice which establishes any connection or conspiracy between the offending policemen and the Home Secretary. I am, therefore, quite convinced that the externment order in this case was issued by the Home Secretary quite honestly and independently for the reason specified in the order. I am not prepared to set aside the petitioner's conviction on the ground that the Home Secretary was not produced, by the prosecution, as a witness. If his appearance as a witness was considered to be vital for the defence, it was open to the petitioner, who was very well represented at the trial, to suggest that the prosecution should be asked to produce him. If the prosecution had refused to do so, it was open to the petitioner to ask the Court to call him as a Court witness and failing that to call him as a witness for defence along with the other 22 witnesses that he had called. None of these courses was adopted by the petitioner and, in my opinion, he cannot reasonably expect us to set aside his conviction on the ground that the prosecution did not produce the Home Secretary as a witness. The view expressed by the Bombay High Court in Emperor v. Abdul Majid (supra), that in a prosecu tion for the contravention of an externment order it is necessary to put the officer issuing the order in the witness box was presumably not considered to be sound by the Legislature and section 21‑A was inserted in the Bombay Public Security Measures Act, 1947, by Bombay Act I of 1950, whereby it was enacted that:‑
21‑A. Notwithstanding anything contained in any law for the time being in force, in a prosecution for an offence for the con travention of an order under this Act, on the production of an authentic copy of the order:‑
(1) It shall, until the contrary is proved and the burden of proving which shall lie on the accused, be presumed‑
(a) that the order was made by the authority competent under this Act to make it;
(b) that the authority making the order was satisfied that the grounds on or the purpose for which it was made existed, and that it was necessary to make the same; and
(c) that the order was otherwise valid and in conformity with the provisions of this Act; and
(2) no public officer shall be compelled to disclose any fact or to produce any document when he considers that the public interest would suffer by the disclosure of such fact or the production of such document although such fact or docu ment may be relevant to any of the matters contained in the order."
In my opinion, the petitioner has failed to rebut the presump tion that the Home Secretary was satisfied that it was necessary to make the order (Exh. P. A.) for the reasons stated therein.
It was also argued that the externment order could not have been made against the petitioner because he was a person ordinarily resident in the province of the Punjab. In the externment order the petitioner was described as, originally, a resident of village Chandpur, District Bijnaur (U. P.), and later of Karachi. On 14th November 1950, when the order was served on the petitioner, he made an application (Exh. P. B.) to the Home Secretary praying for extension of time to leave the Punjab. In this petition, he clearly stated that he had come to Lahore to sell some goods, that after his arrest the goods were removed to the house of Mr. Ghulam Muhammad Lundkhor for safe custody, that Mr. Ghulam Muhammad was out of station and it was not possible for him to get those goods in his absence. He, therefore, prayed that he may be given at least two days to get his goods. It is significant that he did not point out to the Home Secretary that his description as a resident originally of Chandpur and later of Karachi given in the externment order, the receipt of which he admitted in his application, was incorrect. He did not say that he had settled down in Lahore or that he had left Karachi for good. On the contrary, he definitely said that he had come to Lahore for the specific purpose of selling some goods which did not mean that he was ordinarily a resident of Lahore. On 17th November 1950, he made an application for bail, before arrest, through Mr. Suhrawardy and Mr. Mahmood Ali, Advocates. Even if it could be urged that the petitioner, being a layman, was ignorant of law and did not know that no order of externment from a province could be made against any person who was ordinarily a resident of that province, this ignorance of law cannot possibly be attributed to the learned Advocates who filed the petition for bail and appeared on his behalf. The learned advocate knew that the residence of a person in a province is a complete bar against his externment from that province and in the applica tion of more than four typed pages there was no suggestion whatsoever of the petitioner's being a resident of the Punjab or of his case being covered by the proviso to section 5, Punjab Public Safety Act, which clearly says that no order made by the Government shall direct the exclusion or removal from the province of any person ordinarily resident in the province. Clauses 10 and 11 of the petition state the purpose for which the petitioner came to Lahore and the reason why he wished to stay on. It was said that the petitioner had come to Lahore from Karachi on 15th September, 195:, a couple of months before the externment order, in connection with his business and it was necessary for him to stay in Lahore to wind up his affairs, to collect money from those to whom he had sold goods and to prosecute his case against the police officers who had maltreated him. Merely coming to a place in connection with business, winding up affairs, realising debts or prosecuting a case does not amount to ordinarily residing in that place. It is only a temporary residence which does not attract the operation of the proviso to section 5, Punjab Public Safety Act. On 4th December 1950, the petitioner stated for the firs It time, in his application for transfer under section 526, Cr. P. C. that he was a refugee from Chandpur, District Bijnaur (U. P.) that he had first gone to Karachi but could not rehabilitate himself there, that he had come to Lahore on 15th September 1950, from Karachi for the purpose of business and with the intention of settling permanently in Lahore. Even now he did not say that he had actually settled down or taken up residence in Lahore and the intention of settling down in a place does no make a person a resident of that place. In Carol v. Carol (A I R 1933 All. 39) it was held that intention had nothing whatever to do with the question of residence. Whether or not a person resides in a particular place is a question of fact and depends in each case upon the evidence. Mere casual or temporary visits do not constitute residence. In Stroud's Judicial Dictionary, Second Edition, Volume, 2, page 1355, under the heading, "ordinary residence" it is said that a man who has frequently stayed in a place with friends or in an hotel for some weeks is not thereby shown to have ordinarily resided there. The evidence relating to the petitioner's residence was given at the trial by three witnesses, namely, Inam Rasool, Salah‑ud‑din and Rao Mahroz Akhtar, P. Ws. 20, 21 and 22. Inam Rasul said that he had met the petitioner in the beginning of October 1950, in Bristol Hotel, Lahore, and the petitioner told him that he wished to reside per manently at Lahore and would like to find a house and an office. The witness said that his house was at the disposal of the peti tioner, but the latter replied that he wanted a separate house because he wanted to carry on business in Lahore. He was doing electroplating work. Salah‑ud‑din met the petitioner in the same hotel towards the end of September. He had a business talk with the petitioner who wished to settle down in Lahore. The witness decided to start a general merchant business jointly with the petitioner, but the petitioner was arrested and the matter came to an end, Rao Mahroz Akhtar said that the petitioner had come from Karachi to Lahore in September 1950, because the climate of Karachi did not suit him, and he had got no allotment there. He, therefore, wished to do business in Lahore. This evidence, in my opinion, does not prove that the petitioner had given up residence in Karachi or that he had become ordinarily resident in the province of the Punjab within the meaning of the proviso to section 5, Punjab Public Safety Act.
Finally it was urged that the petitioner, who was sentenced to one year's rigorous imprisonment on 17th March 1952, had already served half the sentence when he was allowed bail on 16th September 1952, and that the sentence already under gone may be treated as sufficient because the appellant disobeyed the externment order with a view to putting its validity to test and not in order to flagrantly defy it. With this submission I am inclined to agree and whilst dismissing the petition on merits I would reduce the sentence of imprisonment to the period already undergone.
I have had the advantage of reading the judgment recorded in this case by my learned brother, Jan, J. I agree with him generally in the conclusions reached by him and the order he proposes to make. I would, however, like to add a few observations on the questions raised in this case.
As has been pointed out by my learned brother the question whether a person is an "ordinary resident" of the province, within the meaning of the proviso to section 5 of the Punjab Public Safety Act, 1949 (hereinafter referred to as the Act) is one of fact, to be decided on the circumstances of each particular case. In the present case, the plea based on this proviso appears to have been an after‑thought with the petitioner and his counsel, as it is quite clear that in the initial stages of the proceedings leading up to his prosecution, he did not take up the position that he was an ordinary resident of the Punjab. It was, however contended that the petitioner had shifted from Karachi with the firm intention of settling down at Lahore as an ordinary resident. The forming of such an intention, assuming that he did entertain it, would not, in my humble judgment, entitle him to claim that he was an ordinary resident of this place despite the fact that he was a refugee from India. The question of intention may have had some bearing on the question of the petitioner's present domicile which is a technical term but "ordinary residence" is distinguishable from domicile as it involves only a factual determination. Barely a month after the petitioner's arrival in Lahore, he was ordered by the Superintendent of Police, C. I. D, to be detained under section 3 of the Act as a person likely to commit an act prejudicial to the public safety or public order and before the period of detention was over, he was ordered to be extended from the Province for a period of six months, under an order signed on behalf of the Provincial Government, by the Home Secretary. Some time had to elapse before the fact of arrival of the petitioner and his antecedents could become known to the relevant authorities and under the circumstances it cannot be urged with any decree of plausi bility that the petitioner had in the meantime acquired an "ordinary residence" in this Province. To subscribe to such a view would be tantamount to making the provisions of section 5 of the Act nugatory, as it would imply that the Government would be powerless to exclude frown the Province, from their point of view, an undesirable person who may have an ordinary residence elsewhere in Pakistan but which he now wanted to abandon, merely on the strength of a few days stay in this Province coupled with an intention to settle down here permanently. I may add that in the present case there is no satisfactory evidence available to show that the petitioner had ceased to be an ordinary resident of Karachi to which place he first migrated from India. I have, therefore no hesitation in agreeing with my learned brother that (1‑e petitioner's plea in this behalf is without any solid foundation.
Under section 5 of the Act, one of the authorities empowered to pass an. externment order is the Provincial Government. By virtue of section 59 of the Constitution Act, all executive action of the Provincial Government has to be taken, as a matter of form, in the name of the Governor. Orders, thus passed are to be authenticated in the manner specified in the rules of business, made by the Governor and the validity of an order, so authenticated, cannot be called in question on the ground that it is il ‑t asp order nr:adi or executed by the Governor. It is not disputed that the Nome Secretary could authenticate the order of externment in the present case, in the name of the Governor. The provisions of section 79 of the Evidence Act are also relevant in this connection. (3n the basis of these provisions, the presumption arises that the order of externment is genuine and that the officer signing it did occupy the position of Home Secretary to the Provincial Government at the material time.
The main contention of Mr. Suhrawardy on behalf of the petitioner is that without calling the Home Secretary into the witness‑box, the prosecution could not discharge the opus of proving that the Provincial Government was in fact satisfied of the necessity of action tinder section 5 of the Act with respect to the petitioner. Such satisfaction, It may be conceded, must precede the passing of an order under section 5 of the Act and is a sine qua non for :Its validity of a prosecution under section 17 of the Act. The later enactment provides for punishment of a contravention of a provision of the Act or of an order made or direction given in accordance with its provision". Stress is laid on the fact that in a criminal pro secution, the burden of proving all the ingredients of an offence lies on the prosecution whereas the position would be different where a detenu challenges the validity of his detention by a habeas corpus petition under section 491 of the Cr. P. C. In the latter case it is argued, the onus is legitimately placed on the petitioner to establish that an order which prima facie is a valid one, was in reality passed from ulterior motives or was mala fide. It is contended that in a prosecution under section 17 of the Act it is not open to the prosecution to I merely produce a prima facie valid externment order and to rely on the presumption exemplified in illustration (e) of section 114 of the Evidence Act for the purpose of proving this essential condition of satisfaction required by section 5. They must, it is suggested, established that fact by direct oral evidence of the officer concerned. Reliance is placed in this connection principally on two decisions of a Division Bench of the Bombay High Court reported as Emperor v. Abdul Majid (supra) and Emperor v. Baiku Ram Chandra Shinde (supra).
Speaking with the utmost deference, I am unable to assent to the broad proposition sought to be laid down by the learned Judges of the Bombay High Court that in no criminal case, can the prosecution take advantage of the presumption embodied in illustration (e) of section 114 of the Evidence Act to prove the ingredient of an offence. In my humble judg ment, that would amount to abrogation of the provision of that enactment so far as the prosecution is concerned and would unnecessarily fetter the discretion of the Court trying the case. The Court should be at liberty to raise such a presumption in favour of the prosecution even in a criminal case. I cannot see that the adoption of such a procedure would violate any fundamental principle of criminal adminis tration. It is of course not a conclusive presumption and can always be rebutted. If circumstances are brought on the file in the course of the case, casting doubt on the factum of the satisfaction of the relevant authority, expressed on the face of the document in question, the Court may then decide to call for proof of the fact, as required by section 4 of the Evidence Act. In a suitable case it would indeed be but meet and proper to raise such a presumption in favour of the prosecution, after considering the status of the officer signing the order and the circumstances in which it was passed. It is now well settled that in the absence of qualifying adjective' before the word satisfaction' occurring in section 5 of the Act, what has to be established is the factum of subjective satisfaction of the authority concerned and the Court is not entitled to probe into the reasons that weighed with that authority or to substitute its own judgment for that of the competent authority. It would then be a mere act of supererogation to insist that in all cases, without regard to circumstances, the authority should depose to the factum of such satisfaction in Court. Once the presumption is raised by the Court, the position in a criminal prosecution would, in my opinion, be parallel to that of a habeas corpus petition under section 491, Cr. P. C. and the principle of decision would be the same in both cases. I do not find that the Courts below exercised their discretion wrongly in raising the presumption in question in the present case. It is not, therefore, open to the petitioner to argue in revision that such a presumption should not have been drawn upon. I agree with my learned brother that no satisfactory evidence or circumstances have been brought on the file of the present case by the petitioner which could displace that presumption.
A. H. Petition dismissed.
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