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Criminal Miscellaneous No. 47 of 1949, decided on 24th February 1949.

Section 3‑Superin tendent of C.I. D. is Superintendent of Police.

A Superintendent of Police does not cease to be a Superintendent of Police because he is serving the C.I. D. branch of the Police Department.

I L R 35 Mad. 247 referred.

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--‑Superintendent of Police‑Who is.

Rule 1'8 of the Punjab Police Rules does not contain an exhaustive definition of "Superintendent of Police". It merely states that as the Superintendent of Police is the executive head of the District Police Force, he is directly responsible for all matters relating to the internal economy discipline etc., of the District Police Force.

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---Wide meaning be given to the words which confer the power to legislate.

It is well‑settled that interpreting a Constitution Act, wide meaning should be given to the words which confer upon any Legislature the power to legislate on certain topics and within the ambit of these words the most sovereign power must be understood to be given to the Legislature. The entries in the various Lists in the Constitution Act merely mention certain categories of subject and all subjects allied with or ancillary to these categories must be taken to fall within the categories mentioned in the various items of the Lists. The entries in the Lists must be given the most liberal construction, the reason being that the allocation of the subject in the three lists is not by way of scientific definition but by way of mere enumeration of broad categories.

AIR1941FC16; AIR 1947 PC 60 referred.

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---‑Schedule Seventh‑List II Public order' means Public Safety'.

The true nature and character of the Public Safety Act brings it within item 1 of the Provincial Legislature List. The expression "public order" in this list must in its context be taken in its com prehensive sense so as to include "public safety", except in so far as preventive detention in Pakistan for reasons of State connected with defence and external affairs is concerned.

A I R 1949 Pat. 1 referred to.

Mahmud Ali and Muhammad Sadiq for Petitioner.

Advocate‑General for Respondent.

‑This is a petition under section 491 of the Code of Criminal Procedure for the release of Maulana Abul Ala Maudoodi, Amir Jamaat‑i‑Islamic.

The Maulana was taken into custody by an order of Mr. Zulquarnain Khan, Superintendent of Police, C.I.D., West Punjab, on the 4th of October 1948, at 8 p.m. The order was issued by the Superintendent of Police on the 3rd of October and it was carried out by Manzur Wabid, Inspector of Police, on the 4th of October. On the same day the Superintendent of Police made a report to the Provincial Government with respect to the arrest of the Maulana. The present petition was presented in this Court by Maulvi Muhammad Ali, M. A., Secretary General of the World Muslim Association, through Mr. Mahmud Ali, Barrister‑at-Law, on the 5th February 1944. It was stated in the petition that the arrest of Maulana Abul Ala Maudoodi was mala fide in that it was made at the instance "of certain people who then happened to be in power in the West Punjab to remain in political control of this Province by all means at their disposal and who for the maintenance of their personal power believed in the suppression of all independent thought".

As allegations of mala fides were made in the petition, I asked the learned counsel to amplify and establish those allegations. In support of the allegations made in the petition, Mr. Mahmud Ali produced Maulvi Muhammad Ali petitioner as a witness in the case. Mr. Muhammad Ali stated that the information embodied in para. 5 of his affidavit it had been given to him by (1) Ghazi Abdul Jabbar, (2) Malik Nasrullah Khan Aziz, and (3) Maulana Abdul Ghaffar Hassan. It was stated that these witnesses had told the petitioner that the Nawab of Mamdot and certain other officers of the Punjab Government wanted to retain power in their hands at all costs, and that it was for that reason that the Maulana had been arrested and detained in custody under the Punjab Public Safety Act. After the statement of Maulvi Muhammad Ali had been taken, I recorded the statement of Mr. Zulquarnain Khan. He stated that he had never been told by the Nawab of Mamdot or any officer of the Punjab Government to arrest the Maulana. He had arrested the Maulana when he was convinced that it was necessary in the public interest to do so. When questioned by Court the Superintendent of Police stated that he had received reports from his subordinates to the effect that the Maulana was dissuading persons from joining the Pakistan armed forces till it was declared that the Constitution of Pakistan would be based on Islamic Laws. It was also reported to him that the Maulana was against Government servants taking an oath of loyalty to the Pakistan Govern ment until they were assured that the Pakistan Constitution would be based on Islamic Laws. A further report was received by him that the Maulana was of the opinion that the Muslims by. taking part in the Kashmir activities were not conducting Jehad. It was as a result of these reports that he was satisfied, with respect to the Maulana, that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it was necessary for him to arrest him. He, therefore, made the arrest.

The learned counsel for the petitioner was granted an adjournment to produce Qazi Abdul Jabbar, Malik Nasrullah Khan Aziz and Maulana Abdul Ghaffar Hassan. On the date fixed for the recording of this evidence the learned counsel stated that these persons were present in Court but bad asked ham not to produce them as witnesses as that would damage their cause politically. The learned counsel, therefore, gave up the witnesses. After the witnesses had been given up the learned counsel for the petitioner stated that he could not establish mala fides on the part of the Superintendent of Police and that, therefore, the arrest could not be held to be illegal on that ground.

I have heard lengthy arguments on two law points raised on behalf of the petitioner. The first point taken was that the Provincial Legislature could only legislate with respect to "public order" as this subject was mentioned in item 1 of List II of the Seventh Schedule to the Government of India Act. It was maintained that "public order" did not include "public safety" and that in so far as the Public Safety Act authorised an arrest with a view to preventing a person from acting it, any manner prejudicial to the public safety, the Act was ultra vires of the Provincial Legislature. The learned counsel elaborated his argument by a reference to item 1 of List I which deals with Federal Subject. Item 1 of the List I contains the following words, "preventive detention in British India for reasons of State connected with defence, or external affairs" The learned counsel urged that "public safety" was endangered only when a country had to be protected from invasion or external force and that, therefore, the words "public order" which only relate to internal commotion could not be held to include "Public safety" In my opinion this contention is wholly devoid of force. It is well settled that in interpreting a Constitution Act wide meaning should be given to the words which confer upon any Legislature the power to legislate on certain topics and within the ambit of these words the most sovereign must be understood to be given to the Legislature. The entries in the various Lists in the Constitution Act merely mention certain categories of subject and all subjects allied with or ancillary to these categories must be taken to fall within the categories mentioned in the various items of the Lists. The entries in the Lists must be given the most liberal construction, the reason being that the allocation of the subject in the three lists is not by way of scientific definition but by way of mere enumeration of broad categories. This point has been emphasized by all the three judges of the Federal Court in the case of Mst. Atiqa Begum and others (AIR 1941 FC 16). It was observed in that case that none of the items in the Lists is to be read in a narrow or restricted sense. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. The general descriptive words in‑ item 21 include the collection of rents and if a Provincial Legislature can legislate with respect to the collection of rents, it must also have power to legislate with respect to any limi tation on the power of a landlord to collect rents, that is to say, with respect to "the remission of rents" as well as to their collection. The Provincial Legislature had, therefore, power not only to legislate with respect to the collection of rents but also with respect to the remission of rents.

In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna (AIR 1947 PG 60) it was pointed out by their Lordships of the Privy Council that it was not possible to make so clean a cut between the powers of the various Legislatures that they would never overlap. Their Lordships observed as follows :‑

"Subjects must still overlap and where they do, the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with."

If these observations are kept in view, there can be no doubt that the true nature and character of the Punjab Public Safety Act brings it within item 1 of the Provincial Legislative List. The expression "public order" in this list must in its context be taken in its comprehensive sense so as to include 'public safety except in so far as preventive detention in Pakistan for reasons of State connected with defence and external affairs concerned. Reference may be made in this connection to the all Bench decision of the Patna High Court in the case of Nek Muhammad and‑ others v. The Province of Bihar (A I R 1946, Pat. 1).

In the present case the Maulana was arrested because he is reported to have dissuaded persons from joining the Pakistan Armed forces till it was declared that the Constitution of Pakistan would be based on Islamic Laws. He further dissuaded Government servants from taking an oath of loyalty to the Pakistan Government until they were assured that the Pakistan Constitution would be based on Islamic Laws. Both these subjects are closely connected with the maintenance of public order and the preservation of public safety. If there are any un‑Islamic Laws in Pakistan, it is open to any national of Pakistan to get them repealed or amended by constitutional means and to substitute Islamic Laws in place of enactments that are regarded as un‑Islamic by him. No one, however, has the right to tamper with the loyalty of the Pakistan Army, simply because he is of the opinion that certain laws that prevail in Pakistan are not in accordance with the injunctions of the Holy Quran. Similarly, if a person dissuades Pakistan Government servants from taking an oath of loyalty to the Constitution of Pakistan until they are assured that the Pakistan Constitution would be based on Islamic Laws, he is tampering with the discipline and loyalty of the Pakistan Government servants. He is asking the Government servants so usurp the function of the Legislature and to resort to illegal and unconstitutional means to gain their object. Activities like those referred to above would, if allowed to go unchecked, paralyse any Government. Moreover, it would give a Government servant the right to determine whether a certain law which is stated to be in accordance with the injunctions of the Holy Quran is or is not so, and to determine whether he would or would not continue to be loyal to the Constitution of Pakistan. I have, therefore, no hesitation in holding that the alleged activities of the Maulana were prejudicial both to the maintenance of public order and public safety.

The next point taken up by Mr. Mahmud Ali was that as Mr. Zulquarnain Khan was Superintendent of Police, C. I. D., West Punjab, and not Superintendent of Police, Lahore, he was not entitled to arrest the Maulana. It was maintained by the learned counsel that only District Magistrates and Superintendents of Police have been empowered to make arrests under section 3 of the Punjab Public Safety Act in their respective districts and that the Superintendent of Police, C. I. D., cannot be regarded as a Superintendent of Police of any district. The Notification issued by the Punjab Government (No. 4264‑HG‑47/40770, dated the 2nd July 1947) in this respect is as follows :‑

"In exercise of the powers conferred by subsection (1) of section 3 of the Punjab Public Safety Act, 1947, and all other powers enabling him in this behalf and in supersession of Punjab Govern ment notification No. 6865‑HG/42262, dated the 21st November 1946, the Governor of the Punjab is hereby pleased to authorise all District Magistrates and all Superintendents of Police to exercise the powers specified in the said subsection within their respective jurisdictions in the Punjab."

The learned counsel contended that Rule 1'8 of the Punjab Police Rules lays ‑down that "the Superintendent of Police is the executive head of the District Police Force. He is directly responsible for all matters relating to its internal economy, training and management, and for the mainte nance of its discipline mid the efficient performance of all its duties." As Mr. Zulquarnain Khan was not the executive head of the District Police Force, lie could not be regarded as a Superintendent of Police. In my opinion this contention is unsustainable. Rule 1'8 of the Punjab Police Rules does not contain an exhaustive definition of "Superintendent of Police." It merely states that as the Superintendent of Police is the executive head of the District Police Force, he is directly responsible for all matters relating to the internal economy discipline, etc., of the District Police Force. It has been brought out by the learned Advocate General that the Superintendent of Police, C. I. D., has jurisdiction all over the Province. In this connection reference may be made to Rules 1'1 and 1'3 of the Punjab Police Rules. A Superintendent of Police does not cease to be a Superintendent of Police because he is serving the C. I. D. branch of the Police Department. Reference may be made in this connection to a ruling of the Madras High Court reported as King Emperor v. Nilabanta and others (I L R 35 Mad. 247.). It was held that an Inspector of the Criminal Investigation Department had power to investigate in cases to which section 156 of the Criminal Procedure Code applies. As such his "local area" was the Presidency of Madras. Similarly, in the present case Mr. Zulquarnain Khan was entitled to investigate cases throughout the whole of the Punjab and there is no reason to hold that he cannot be regarded as a Superintendent of Police within the purview of the notification referred to above. The notification lays down that the Governor of the Punjab is pleased to authorise all District Magis trates and all Superintendents of Police to exercise the powers specified in the subsection within their respective jurisdictions in the Punjab. Had it been intended to exclude the Superintendents of Police, C. I. D., who exercise their functions throughout the Punjab, it would have been stated that the Superintendents of Police would exercise specified powers within their respective districts. The exercise of the powers under section 3 of the Punjab Public Safety Act by Superintendents of the C. I. D. who have jurisdiction throughout the Province is therefore, clearly envisaged by the notification.

It was conceded that it was not open to this Court to consider whether the Superintendent of Police had sufficient evidence to justify the arrest of the Maulana.

For the reasons given above, I dismiss this petition.

K. M. A. Petition dismissed.

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