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Criminal Miscellaneous Petition No. 723 of 1954 decided on 1st November, 1954, under section 491, Criminal Procedure Code.

S. 3 Order of extension of period of detention communicated to detenu when initial detention ordered by Police Officer had already expired‑Extension, held, not illegal.

It was argued that under section 3 of the Act the period of detention that the S. P., C. I. D., was competent to order, could not exceed fifteen days and that as the order of exten sion passed by the Provincial Government reached the detenu when the sixteen days' period had already expired, it should be held that the order of extension issued when the detention had become illegal.

Held, that the order obviously takes effect immediately on its being passed and not merely when it is communicated to the detenu. There are no words in this section which would lend support to the argument that the date of service of the order on the detenu, would be the date on which the order becomes effective.

(b) Government of India Act, (1935), S.

92‑A‑Not ultra vires the Governor‑General.

Mahmud Ali, for Petitioner.

Mushtaq Hussain (for the Advocate‑General) for Respon dent.

S. A. RAHMAN, J.

‑This order will dispose of a petition by Ghulam Nabi Bhullar under section 491 of the Code of Criminal Procedure. The petitioner had been arrested and detained under orders passed by Mr. Zulqarnain, S.P., C.I.D., Lahore, on the 2nd of May, 1954, under the provisions of section 3 of the Punjab Public Safety Act 1949 (hereinafter referred to as the Act). A reference was simultaneously made to the Provincial Government under subsection (2) of section 3 of the Act and the Home Secretary, Mr. Ghias‑ud -Din Ahmad, passed an order dated the 14th of May, 1954, extending the period of detention of the aforesaid Ghulam Nabi Bhullar till the 2nd of November, 1954, and directing his detention in the custody of the I. G: Prisons, Punjab, as Class II detenu. This order was served on the detenu on the 18th of May, 1954, while he was being detained in the Central Jail, Lahore.

The petitioner has challenged his detention as tainted with mala fides. Two witnesses were called by him to support his allegation. They are Mr, Zulqarnain, S. P., C. I. D., Lahore, (P. W. 1) and Mr. Ghias‑ud‑Din Ahmad (P. W. 2). Their statements did not bring out any irregularity of procedure on the part of the S. P. or the Provincial Government nor was any material elicited from them on which the allegation of mala fides could be founded. The orders of arrest and deten tion are in conformity with the legal provisions, and Mr. Mahmud Ali on behalf of the petitioner could not challenge their validity on the ground of any express statutory provision having been contravened.

Mr. Mahmud Ali put forward the contention somewhat feebly that the order of extension of the detention passed by the Provincial Government was not valid. He argued that under section 3 of the Act the period of detention that the S. P., C. I. D., was competent to order, could not exceed fifteen days and that as the order of extension passed by the Provincial Government reached the detenu on the 18th of May, A 1954, when the sixteen days' period had already expired, it should be held that the order of extension issued when the detention had become illegal. The argument does not rest on any solid foundation. Clause (b) of subsection (4) of section 3 of the Act, as amended by the Punjab Public Safety (Amendment) Act 1951, empowers the Provincial Government to make an order of arrest and detention in terms of sub section (1) on a reference being made to it, by the authorised officer and to extend the detention already ordered by that officer for such period as it may, subject to the other provisions of the section, deem necessary. The only limitation is that such an order can be passed for a period of not more than six months at a time, by virtue of subsection (5) of this section. The order obviously takes effect immediately on its being passed and not merely when it is communicated to the detenu. There are no words in this section which would lend support B to the argument of the learned counsel that the date of service of the order on the detenu would be the date on which the order becomes effective. I have no hesitation, therefore, in rejecting the contention as unsound.

Mr. Mahmud Ali next challenged the vires of the Act itself. It is to be noted that the Act was passed by the Governor of the West Punjab, as the province was then called, in pursuance of a proclamation issued by the Governor- General of Pakistan under section 92‑A of the Government of India Act, 1935, (hereinafter referred to as the Constitution Act). The argument of the .learned counsel is that section 92‑A of the Constitution Act itself was ultra vires of the Governor‑General. That provisions was introduced into the Constitution Act by the Pakistan Provisional Constitution (Third Amendment) Order 1948, promulgated by the Governor‑General on the 19th of July, 1948, in exercise of powers conferred by section 9 of the Indian Independence Act 1947 and of all other powers enabling him in that behalf. It is in the following terms :‑

"92‑A (1) If at any time the Governor‑General is satisfied that a grave emergency exists whereby the peace of security of Pakistan or any part thereof is threatened, or that a situa tion has arisen in which the (:government of a Province cannot be carried on in accordance with the provisions of this Act, he may by proclamation direct the Governor of a Province to assume on behalf of the Governor‑General all or any of the powers vested in or exercisable by any Provincial body or authority ; any such proclamation may contain such incidental and consequential provisions as may appear to the Governor‑General to be necessary or desirable for giving effect to the objects of the proclamation including provisions for suspending in whole or in part the operation of any provisions of the Act relating to any Provincial body or authority

Provided that nothing in this subsection shall authorise the Governor‑General to direct the suspension of any of the powers vested in or exercisable by a High Court, or to suspend either in whole or in part the operation of any provisions of this Act relating to High Courts.

(2) Any such proclamation may be revoked or varied by a subsequent proclamation."

The word "Act" in the context of this provision obviously refers to the Constitution Act. Mr Mahmud Ali has drawn my attention to the provisions of sections 8 and 9 of the Indian Independence Act. Subsection (2) of section 8 of that Act so far as material runs as under :‑" Except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under sub -section (1) of this section, each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance . with the Government of India Act 1935 ; and the provisions of that Act, and of the Orders in Council, rules and other instruments made there under, shall, so far as applicable, and subject to any express provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor -General under the next succeeding section, have effect accordingly

Provided that‑

(c) so much of the said ' provisions. as requires the Governor‑General or any Governor to act in his discretion or exercise his individual judgment as respects any matter shall cease to have effect as from the appointed day;

Clause (c) to subsection (1) of section 9 of that Act empowers the Governor‑General to make by order such provision as appears to him to be necessary or expendient for making omissions from,, additions to, and adaptations and modifications of, the Government of India Act 1935 and Orders in Council, c rules and other instruments made thereunder, in their application to each separate new Dominion. No such order could be passed by the Governor‑General after the 31st of March, 1948, according to the original provisions of sub‑section (5) of that section and after the 31st of March 1949 in accordance with the amendment introduced by the Indian In dependence (Amendment) Act, 1948. The Indian Independence (Amendment) Act, 1948 was passed by the Constituent Assembly of Pakistan and, therefore, its validity is not open to challenge. Consequently, ,it is clear that the Governor- General retained his powers to pass such orders till the 31st of March, 1949, and the order impugned was obviously passed before that date. In this respect, therefore, it is immune from attack. Mr. Mahmud Ali's contention is that the order in question comes within the mischief of proviso (c) to sub -section (2) of section .8 of the Indian Independence Act. 1947.

I am unable to subscribe to the view pressed for by the learned counsel. It is true that section 93 of the Constitution Act, as it originally stood, vested power in the Governor of a Province to issue a, proclamation assuming to himself all or any of the powers exercisable by any Provincial body or authority and that the functions in that regard were exercisable by him in his discretion. Section 93 was, therefore, omitted from the Pakistan (Provisional Constitution) Order, 1947, by an order, of the Governor‑General who purported to act under paragraph (c.) of subsection (1) of section 9 of the Indian] Independence Act. But there is nothing to prevent the Governor‑General from making any addition to the Constitution Act by virtue of his powers under paragraph (c) oft subsection (1) of section 9 of the Independence Act, provided that none of the limitations imposed by the Indian Indepen dence Act was thereby transgressed. The only provision in this connection relied upon by Mr. Mahmud Ali is proviso (c) to subsection (2) of section 8 of the Independence Act. There are no words in the new section 92‑A of the Constitu tion Act providing for the exercise of individual judgment or of discretion by the Governor‑General or any Governor. The enactment, therefore, does not to my mind come within the mischief of this proviso. Learned counsel tried to raise a general contention that such an enactment would be against the spirit and scheme of the Indian Independence Act, 1947 which, according to him, aimed at providing the new dominions with a democratic form of government and divested the Governor‑General and the Governors of the provinces of all special powers; But learned counsel was unable to support his argument by reference to any specific words to that effect in the Indian Independence Act. The words of the statute must be construed as they stand without importing any political considerations of a nebulous character into them. The result is that the enactment of section 92‑A of the Constitution Act was intra vires the Governor‑General and, consequently, the Act as passed by the Governor of the West Punjab was an act passed with legal sanction behind it.

No other point was raised in this petition which has obviously no merits. I hereby dismiss it.

A.H. Petition dismissed.

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