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Writ Petition No. 132 of 1957 and 28 other petitions, decided on 15th October 1957.
‑Sind Control of Goondas Act (XXVIIl of 1952)‑Acts not bad as discriminatory under Art. 5. Constitatron of Pakistan.
Held that the Karachi Control of Disorderly Persons Act (XXIX of 1952) and the Sind Control of Goondas Act (XXVIII of 1952) are not bad as discriminatory under Article 5 of the Constitution.
The classification implied in the two Acts is a reasonable one and bears a fair and substantial relation to the objects of the two enactments because the objects, procedures and the resultant consequences are different in the case of the ordinary or general laws as compared with the two Acts.
The protection meant to be afforded to society by these enactments is different from the protection aimed at by the P. P. C., or Criminal P. C.
The ordinary law namely P. P. C. and Criminal P. C., is content with dealing with crime, their punishment and prevention, but these Acts aim at protecting society against unrestrained indulgence in turbulence or revelry and at creat ing an atmosphere of peace and security which is the result of orderliness of behaviour. These special laws do not deal with those persons only who commit some of those acts which are dealt with by the Pakistan Penal Code and Code of Cri minal Procedure but they also deal with persons who indulge in practices which in a large measure are not dealt with by' the general laws.
Bazal Ahmad Ayyubi v. The West Pakistan Province P L D 1957 Lah. 388 ; Saurashtra's case A I R 1952 S C 123 ; A. K. Gopalan v. State of Madras A I R 1950 S C 27 at 45 ; Jibendra Kishore's case P L D 1957 S C (Pak.) Sand Way‑is Meah v. The State and the State Bank of Pakistan P L D 1957 S C (Pak.) 157 ref.
Deodat Rai and others v. State A I R 1951 All. 718 dis tinguished.
, S. 5 (b)‑Evidence by affidavit‑Not inadmissible.
Section 5 (b) of the Karachi Control of Disorderly Persons Act (XXIX of 1952) is not invalid for providing that evidence may be accepted on affidavit.
Ordinarily the denial of the right of cross‑examination would make the statement of a witness inadmissible in evidence but that is neither a fundamental right nor such a principle of justice as would make invalid a provision made by the legislature in contradiction to it for the purpose of meeting special circumstances.
Affidavits can be easily counter‑balanced by the pro duction of counter‑affidavits.
Gurbachan Singh v. State of Bombay and another A I R 1952 S C 221 at p. 224 ref.
, S. 5 (c)‑"In camera"‑Meaning‑Exclusion of un concerned persons only‑Exclusion of counsel‑Violation of Art. 7, Constitution of Pakistan‑S. 5 (c) void to that extent --Sind Control of Goondas Act (XXVIII of 1952), S. 6 (c)k
Recording a statement in camera does not mean exclusion of the parties and their counsel. It only means to the ex clusion of the public or of unconcerned persons.
But provisions by which proceedings can be conducted in the absence of the counsel of the person complained against on the ground only that such person is deliberately evading appearance is in violation of clause (1) of Article 7 of the Constitution and void.
‑Sind Control of Goondas Act (XXVIII of 1952) Nature of detention‑Whether punitive or preventive‑Constitu tion of Pakistan, Art. 7.
The Karachi Control of Disorderly Persons Act (XXIX of 1952) and the Sind Control of Goondas Act (XXVIII of 1952), do not have as their direct object either punitive detention or preventive detention.
While clauses (3) to (5) of Article 7 of the Constitution deal with preventive detention, clauses (1) and (2) of Article 7 are in a restricted sense the residuary provisions and confer the right of adequate hearing in a specified manner. This is in a way an extension of the principle of natural justice that nobody shall be condemned without being heard.
Ganga Saran v. Firm Ram Charan Ram Gopal A I R 1952 S C 9 ; Jumma Khan v. Pakistan and others P L D 1957 Kar. 939; Bazal Ahmad Ayyubi's case P L D 1957 Lah. 388 at p. 396; Inderjit Singh v. State of Delhi A I R 1953 Puiij. 52; Rao Mahroz Akhtar v. District Magistrate, Dehra Ghazi Khan P L D 1957 Lah. 676 at 682 ; Dr. N. B. Khare v. The State of Delhi A I R 1950 S C 211 ; Gurbachan Singh v. State of Bombay and another A I R 1952 S C 221 and Gopian's case 1950 S C 27 ref.
, Ss. 5 (g) (h), 6 (2). & 26‑Do not provide chance of adequate defence‑Void as contravening Art. 7 (1), Constitution of Pakistan‑Sind Control of Goondas Act (XXVIII of 1952), Ss. 6 (b), 7 (2).
Held, that sections 5(g) (h), 6 (2), [= sections 6(b) & 7(2), Sind Control of Goondas Act (XXVIII of 1952)] and 26 (with the exception of provision regarding secrecy of record from High Court, which is an unreasonable restriction under Art. 11 of the Constitution) of the Karachi Control of Disorderly Persons Act (XXIX of 1952), contravene the provisions of clause (1) of Article 7 of the Constitution and are void because right of defence and opportunity of being heard as have been given to the person complained against by these provisions is a farce. There are no chances of adequate defence as long as they stay to the Acts. The presence of a counsel, even if a counsel is present, is meaningless without the means of preparing a defence and the chances of adequate hearing.
, S. 13 (2)(a)‑Providing for internment, externment of, and reporting by, person proceeded against‑Provision (excepting that relating to reporting) void as contravening Art. 11, Constitution of Pakistan‑Sind Control of Goondas Act (XXVIII of 1952), S. 14 (d).
Held, that the whole of section 13 (2)(a) [=section 14(d), Sind Control of Goondas Act (XXVIII of 1952)] of Karachi Control of Disorderly Persons Act (XXIX of 1952), providing for internment and externment of the person proceeded against, except the provision under which a declared dangerous disorderly person may be directed to report himself, is void as contravening Article 11, Constitution of Pakistan.
Jeshingbhai Ishwarlal v. Emperor 1950 Boni. 363 at p. 368 ; Deodar Rai v. State 1951 All. 718 at 733; B. Sharma v. The State of Behar 1950 Pat. 322 (F B); Bazal Ahmad Ayyubi's case P L D 1957 Lah. 388 ; and Rao Mahroz Akhtar v. The District Magistrate P L D 1957 Lah. 676 ref.
Bazal Ahmad Ayyubi's case P L D 1957 Lah. 388 disting.
‑Sind Control of Goondas Act (XXVlll of 1952) Invalidity of some provisions does not make the Acts invalid as a whole.
Muhammad Naseem, A. A. Fazeel and Tufail Ali A. Rahman for Petitioners.
H. T. Raymond and Sikandar Baig Mirza, A. A. G. for Respondents.
.‑Twenty‑nine writ petitions Nos. 168 of I 1956, 496 of 1956, 497 of 1956, 542 of 1956, 543 of 1936, 6 of 1957, 18 of 1957, 55 of 1957, 132 of 1957, 196 of 1957, 302 of 1957, 317 of 1957, 333 of 1957, 337 of 1957, 342 of 1957, 351 of 1957, 352 of 1957, 356 of 1957, 357 of 1957, 374 of 1957, 381 of 1957, 384 of 1957, 388 of 1957, 389 of 1957, 394 of 1957, 396 of 1957, 399 of 1957, 444 of 1957 and 449 of 1957, have been filed to challenge certain provisions of the Karachi Control of Dis orderly Persons Act, 1952, (hereinafter referred to as the Karachi Act) and six writ petitions (Nos. 102 of 1956, 57 of 1957, 105 of 1957, 237 of 1957, 259 of 1957 and 432 of 1957) have been filed to challenge the validity of certain provisions of the Sind Control of Goondas Act, 1952 (hereinafter referred to as the Sind Act). All these writ petitions have been heard together and it is proposed to deal with them jointly with a view to dispose of the objections to the validity of the provisions of these Acts and thereafter to decide the writ petitions according to the conclusions arrived at in this order. We shall refer to the two Acts jointly as 'the Acts'.
The Acts are very similar in nature. There are four main differences between them. Firstly the Sind Act is a permanent Act while the Karachi Act is a temporary one. The Karachi Act was originally enacted for a period of five years [section 1 (2)] and its life was subsequently extended for another five years by Ordinance No. II of.1957 upto the 13th of April 1962. Under section 13 of the Sind Act, a person can be declared to be a goonda and under section 12 of the Karachi Act, a person can be declared to be a disorderly person or a dangerous disorderly person. The Sind Act makes no distinction between a goonda and a dangerous goonda. The third main difference between the Acts is that while sections 24 and 25 of the Karachi Act provide for the appointment of a Probation Officer who is to look after the welfare and work for the betterment of disorderly persons and who can recommend that any of them may be relieved of the restrictions imposed on him and his name be removed from the list of disorderly persons, there is no such provision in the Sind Act, but under section 24 of the latter Act the Tribunal itself can grant similar relief if a person who is declared a goonda behaves well. The fourth main difference is that while section 5 (g) of the Karachi Act enables the Tribunal to debar the persons complained against from making or obtain ing copies and extracts of specified portions of the record of enquiry, the Sind Act does not authorise the Tribunal to do so. Other differences between the two Acts are not of a substantial character and no arguments have been addressed to us on their basis. We can therefore, deal with the pro visions of the Karachi Act against which a larger number of petitions has been filed and, subject to the four differences mentioned above, need not specifically deal with the provisions of the Sind Act. We therefore propose to give below a fairly comprehensive summary of the provisions of the Karachi Act only. After giving the summary we shall use the expression "Goonda" to refer to a Goonda, a dis orderly person as well as a dangerous disorderly person.
The Karachi Act extends to the Capital of the Federation. The Preamble of the Act declares that it is expedient to provide for special measures for better control of disorderly persons and for ancillary matters and then the Act proceeds to lay down that there shall be a Tribunal with powers to conduct enquiries under the Act and to issue summonses and warrants for this purpose. Its proceedings are to be deemed to be judicial proceedings. The Tribunal is granted the power of the Court of Record for punishing contempts of its authority. It is not bound to follow the rules of evidence prescribed under the Evidence Act, 1872, and is empowered to hold enquiries in camera ; to accept evidence on affidavits of witnesses under certain circumstances ; to record the statement of any witness in the absence of the person com plained against, as well as his counsel if it is satisfied that such person is deliberately evading appearance ; to receive evidence of previous convictions or of previous occasions, at which the person complained against was bound over to keep the peace or to be of good behaviour as well as of his general reputation ; to direct any Magistrate having jurisdic tion in the area to take such steps to protect the life or property of any person who has given or is required to give evidence in any enquiry under this Act, and to grant immunity from prosecution to any witness appearing in any enquiry under the Act. The Tribunal is allowed to take cognizance of a case only if information in respect of a specified person is laid before it by a Police Officer, who is not lower in rank than Inspector of Police. The information so laid before the Tribunal is to consist of the practices of the person com plained against ; instances of such practices ; a statement of any relevant general reputation of the person complained against and the particulars of the witnesses proposed to be produced in support of the allegations made by the Police Officer. The Police Officer is entitled to enclose any particulars of information submitted by him in a sealed cover with a request that they shall be kept secret and the Tribunal is bound to keep them secret. In addition to this provision secrecy contained in subsection (2) of section 6, there are further provisions in section 26 according to which the record of the proceedings of the Tribunal is to be kept secret if the person laying the information or conducting the prosecution before the Tribunal claims privilege or makes a request that it shall be kept secret during the enquiry before the Tribunal or during revision proceedings before the High Court. When information is received by the Tribunal under section 6 it is bound to summon the person complained against and to enquire into the truth or otherwise of the information laid before it. If the Tribunal is satisfied that the information submitted with regard to a person is true and is covered by subsection (1) of section 12 then it is bound to declare such person to be a disorderly person and if it is satisfied that such information is true and is covered by subsection (2) of section 12, then the Tribunal is bound to declare such person to be a dangerous disorderly person and to direct in either case that his name shall be publicly notified in a prescribed manner. The person who is declared by the Tribunal to be a disorderly person may be released after due admonition if a suitable person becomes responsible for his good behaviour, or may be required to furnish a bond or may be ordered that he shall not visit any specified locality. A person who is declared a dangerous disorderly person may be dealt with more severely. The Tribunal may restrict his movement to a specified area, may direct him to report himself as ordered or that he shall not visit or go within any specified surround ings or that he shall be externed from Karachi. Any breach of an order by which a disorderly person is prohibited from visiting a specified locality is made punishable by imprisonment which may extend to one year and the breach of any order by which a dangerous disorderly person is ordered to be restricted in his movements or to report himself or to be externed from Karachi or not to visit or go within any specified surroundings is made punishable by imprisonment which may extend to three years. If a dangerous disorderly person is convicted for the offences mentioned in the Schedule to this Act enhanced punishment can be awarded to him. A person against whom an order is made under this Act is not given the right of appeal but he can prefer a revision to the High Court, and the High Court is given the power to issue such directions as may be deemed sufficient for the rectification of any error made by the Tribunal in exercising a jurisdiction which was not vested in it and for the rectifica tion of any omission or illegality found in the exercise of a jurisdiction vested in it. The power of revision of the High Court is subject to the secrecy of the record of the proceeding held by the Tribunal as mentioned above.
The arguments against the Karachi Act were led by Mr. Muhammad Nasim and Mr. Muhammad Fazeel advocates and the arguments against Sind Act were led by Mr. Tufail Ali advocate, who, however, generally adopted the arguments of Mr. Muhammad Nasim. The Karachi Act was defended by Mr. Raymond and the Sind Act was defended by the Additional Advocate General. The provisions of the two Acts have been attacked on the basis of Articles 5, 7 and 11 of the Constitution. In other words the objections are that the Acts are discriminatory, that they do not give an opportunity of defence as required by the Constitution and that the restrictions imposed by them relating to the freedom of movement are unreasonable. The principles of natural justice have also been invoked in support of the contention that the persons dealt with under these Acts are not given the opportunity of adequate hearing. From the outset it was made clear by the learned advocates that their object was to distinguish the recent ruling of a Division Bench of this Court on the Punjab Control of Goondas Act, 1951 reported in Bazal Ahmad Ayyubi v. The West Pakistan Province (P L D 1957 Lah. 388), in so far as it goes against the petitioners and to try to advance arguments in addition to those which were advanced before that Bench. Mr. Fazeel and Mr. Tufail Ali have con fined their arguments to the objections based on Article 5 of the Constitution and Mr. Muhammad Nasim has confined his arguments to the objections based on Articles 7 and 11 of the Constitution.
Elaborate arguments have been addressed to us to show that the procedure laid down in the Act is disadvantageous as compared to the procedure of the ordinary law. We have given a fairly elaborate summary of the provisions of these Acts from which it is clear that substantial and real dis advantages result to the persons dealt with under them. It appears from the outline of the provisions of the Punjab Goonda Act, as given in the said ruling, that the provisions of that Act were similar to the provisions of the Karachi Act. It was held in that case that the law was not bad as discriminatory under Article 5 of the Constitution. The judgment is therefore an authority against the proposition that provisions like those of the Karachi Act are assailable as discriminatory under Article 5 of the Constitution. Mr. Tufail Ali has in view of this referred to the following passage of the judgment and contended that sufficiently analytical arguments were apparently not addressed to their Lordships :
"It is contended that, in so far as a police officer is given option under the Act either to take action against a particular person under the above mentioned sections of the Criminal P. C., or to lay information against him before the District Tribunal, it implies an arbitrary discrimination between persons situated in similar circumstances. In my opinion the argument is unsound. The consequences of action under the Act are not identical with those envisaged in the relevant sections of the Criminal P. C., though in part they seem to overlap. Moreover, as would appear from section 13 of the Act, the grounds on which a person can be declared a goonda, or a "dangerous goonda, are not in all cases coincident with the grounds which would justify the demand of security for keeping the peace or for good behaviour from a person under the Criminal P. C. The Act, therefore, does not provide a parallel procedure to that envisaged under the Criminal P. C., for identical acts ; nor does it lead to similar results in the matter of prohibitive action. The question of discrimination, there fore, does not, in my opinion, arise."
"Only irrational or arbitrary discrimination such as would amount to "legislative despotism", would offend against Article 5".
His argument firstly is that if different consequences and results are to follow on account of a special law for the people who are situated in the same circumstances as others to whom the ordinary law applies then this amounts to unlawful Lt discrimination and is surely hit by the provisions of Article 5 of the Constitution. Secondly, if the grounds on which a M person can be declared a goonda are not in all cases the same as the grounds which would justify action under Criminal P.C. Q and P. P. C. then to the extent to which the grounds differ there may be a justification for making special laws, but there is no justification for declaring a person a goonda under special laws on the same grounds on which he can also be dealt with under Criminal P. C. or P. P. C. Different treat ment on the similar grounds according to the counsel means legislative despotism because in ultimate analysis legislative despotism in relation to those matters means nothing more than the absence of reasonable classification. The real question for decision according to this argument is whether on the same grounds one person can be dealt with in one way under the P. P. C., or Code of Criminal Procedure and another person in another way under the Acts. According to him, there is a clear absence in this treatment of a rational differen tiation. A classification between goondas and the other inhabitants of an area might be possible if the essence of Goondaism was conceivable and made the basis of the classi fication but the law under examination has, according to the counsel, failed to disclose that the legislature could have any conception of Goondaism and that on account of the absence of such a conception it has proceeded to ground the classification on certain acts of individuals which, or a good many of which, are not different from the acts of ordinary inhabitants to whom the ordinary law applies. He has com pared the acts for which a person may be declared to be a goonda with those acts of the same nature for which a person can be dealt with under the Code of Criminal Procedure or P. P. C. Some instances of such acts are given below and it will be seen that the provisions of the Criminal P. C., and P. P. C., relating to them are wider of application and not narrower than the provisions of the Karachi Act. Moreover, the practices which are offences under the P. P. C., remain offences and the offenders are or may be subjected to additional hardship through a disadvantageous procedure under the Acts
Karachi Act
Cr. P. C. or P. P. C.
Section 12 (1) (vi). Making fraudu‑ Section 110 (d) Cr.
lent collection in the name of P. C. Habitual
charity. cheating.
Publication etc. of obsene matter. Section 292, P. P. C.
Section 12 (2) (iv). Publication etc of obscene matter.
Kidnapping or seducing young per‑ Habitually commits,
sons or women for immoral attempts or abets kidnapping.
purposes. Section 12 (2) (vii). Section 110 (d), Criminal P. C.
Karachi Act Cr.P.C or P.P.C.
Indulging in unnatural carnal inter‑
course. Section 12 (2) (viii).
Extortion of money. Section 12 (2) Habitual extortion.
(xiii). Section 110
Criminal P. C)
Intimidation. Section 12 (2) (xiii) Section 506, P. P. C,
Uttering counterfeit coins. Counterfeiting
Section 12 (2) (xiv). coins and stamps. Section 110 (d)
Criminal P. C.
Habitual forgery. Section 12 (2) (xvi) Section 110(a) and (d),
Criminal P. C.
Receiving and disposing of stolen Section 110 (b) and
property. Section 12 (2) (xvii). (c), Criminal
P. C.
Mr. Fazeel has pushed the argument further and con tended that every act specified in section 12 of the Karachi Act is a subject‑matter of some other penal law and has made comparisons between the provisions of this section with the provisions of other special enactments. He has, for instance, compared section 12 (1) (i) of the Karachi Act with the section 5‑A (2) of the Bombay Prevention of Prostitution Act, 1923 as in force in Karachi and section 12 (1)(ii) with sections 4 and 5 of the Sind Prevention of Gambling Act, 1887 and section 7 of the Sind Opium Smoking Act, 1940. We are not satisfied that the provisions of section 12 of the Karachi Act are identical with the provisions of the other special enact ments, but, it is unnecessary to compare them in detail because the nature of the arguments is the same as of Mr. Tufail Ali although the result of more extensive research work.
The essence of their argument is that there being no logical definition of a "goonda" there is no rational basis for telling goondas from non‑goondas and that the absence of a rational basis has compelled the legislature to differentiate between goondas and non‑goondas by certain practices which are substantially the same as those to which the ordinary law applies. The error of this argument lies in the presumption that indulgence in the practices enumerated in the Acts is alone the basis which distinguishes the goondas from the other inhabitants. A correct appreciation of the Acts would show that the practices enumerated in them should be judged in the light of the objects of the Acts. The legislature felt the need of providing for special measures of better control of those persons who have a tendency to indulge in certain disorderly practices. A practice may be a crime as well as a disorderly practice. The need for better control of the persons who indulge in such practices is expressed in the Preamble of the Karachi Act by the words "to provide for special measures for better control of disorderly persons" and certain 'practices are, named which are to be the basis of action under the Acts. The effects of this object are easily traceable its the scheme and the provisions of the Acts. Since great emphasis has been laid before us on the discriminatory nature of these Acts we propose to point out some of the basic differences between them and the ordinary law and to show how even those grounds which appear to be common for taking action under them and the ordinary law are really different causes of action.
The first difference to be kept in mind is that the com mission of a single unsocial act or one offence cannot, for instance, be the cause of action under these Acts [section 6(1) (a) of Karachi Act]. The submission of a statement of relevant general reputation is another instance. [section 6 (1) (c) of Karachi Act]. This shows that the protection meant to be afforded to the society by this legislation is different from the protection aimed at by the P. P. C., or) Criminal P. C. A few unsocial practices like appearing in public while drunk combined with a reputation for them, can for instance, create an alarm in the public mind which needs to be set at rest. A significant difference between putting a person to security for keeping the peace or for being of good behaviour under the Criminal P. C., and the scheme of the Acts is found in the provision of clause (d) of section 5 of the Karachi Act, according to which the Tribunal can receive evidence of previous occasions on which a person against whom action is taken was bound over for keeping the peace or for being of good behaviour. This evidence is irrespective of whether he had honoured the bond or not.
The ordinary law namely P. P. C. and Criminal P. C., is content with dealing with crime, their punishment and pre vention, but the Acts aim at protecting the society against unrestrained indulgence in turbulence or revelry and at creating an atmosphere of peace and security which is the result of orderliness of behaviour. These special laws do not deal with those persons only who commit some of those acts which are dealt with by the P. P. C., and Code of Criminal Procedure but they also deal with these persons who indulge in practices which in a large measure are not dealt with by these general laws. The Karachi Act for instance deals with persons who frequent resorts of vice [section 12 (1) (ii)] ; appear in public while drunk [section 12 (1) (iii)] ; corrupt young men [section 12 (2) (ii)] ; behave riotously [section 12 (2) (x)] ; cause fear or alarm [section 12 (2) (xi)] or are bullies [section 12 (2) (xii)]. These are not the practices of those inhabitants who conduct themselves in an orderly manner and are not dealt with by the ordinary laws. The method of dealing with them is not the ordinary method of punishing them or of binding them over only but keeping them in control by making somebody responsible for them [section 13 (1) (a)] or by restricting their movements [section 13 (1) (c) and section 13 (2) (a)] or by getting rid of them by expelling them from the places where they have succeeded in establishing themselves and have made a nuisance of themselves.
Some of the acts with which the Acts deal are apparently common with the acts which are covered by the P. P. C. and Code of Criminal Procedure, but their effects on the Society with which the Acts deal and the objects of the Acts make them different causes of action. One and the same act may constitute more causes of action than one. This difference in the nature of the causes of action can be illustrated by an instance of a school master of a Government School established by a special statute, who hits a pupil. A criminal Court may let him off after a trial under section 223, P, P. C. on the ground that the action of hitting is not satisfactorily proved and that in any case the chastisement was for the benefit of the pupil under section 88, P. P. C., but he may be dismissed from service on a complaint for the same allegation by the Governing Body of the School after a summary enquiry made according to his rules of service on the ground that corporal punishment is against the accepted and known policy of the institution. In the two cases the alleged acts on the basis of which the complaints are made remain the same but the causes of action are different, procedures are different, the objects of the actions are different and the consequences are different. Similarly the objects, procedures and the resultant consequences are different in the case of the ordinary or general laws as compared with the Acts. We may quote here the words of Das, J. in Saurashtra's case (A I R 1952 SC 123), which carry the argument near to the point which we are making, namely, special circumstances can make the same species of offences to be different causes of action. He says
..it is easy to visualise a situation when certain offences ..may legitimately call for a special treatment .Are we not aware of gruesome crimes of murder during communal riots ..are they not really different from the case of a stray murder Do not these special circumstances prevailing in Shashtra) add a peculiar quality to the offences specified in the notification they do clearly distinguish these offences from similar or even same species of offences committed under ordinary circumstances."
The practices which are enumerated in section 12 of the Karachi Act form a class by themselves‑a class of causes of action which has a direct relation to the object of the Acts, namely, adoption of special measures for dealing with dis orderly persons who, in the terms of section 12 of the Karachi Act, are those who indulge in the named practices. In the words of Kania, C. J. in A. K. Gopalan v. State of Madras (A I R 1950 SC 27 at p. 45), "it is obvious that classification can be by grouping the activities of people or by specifying the objectives to be obtained or avoided." The classification is thus a reasonable one and bears a fair and substantial relation to the objects of the legislation.
The above is a reply to another objection also which was raised by the learned counsel. Their objection was that the determination of the question whether a person falls in the class of goondas should be governed by the ordinary pro cedure of law and that the special procedure should be applicable only after it is determined that he is a goonda. In other words, the objection is that before a declaration under section 12 of the Karachi Act that a person is a goonda he is an ordinary inhabitant of Karachi and that the application of a special procedure is justifiable only after the person complained against is classed as a goonda. This objection is in a way based on the objection dealt with above that a goonda should have been defined. If a definition was existing then it could be applied to the person complained against in accordance with the procedure of the ordinary law and after he was found to be a goonda he could be further dealt with under the special provisions of the Karachi Act. As pointed out above, the object of the Act is to provide for special measures for better control of disorderly persons and for ancillary matters, and the declaration whether a person is or is not a goonda depends on finding out whether or not he indulges in certain practices. These practices, as pointed out above, are not in their nature the same as are dealt with by the ordinary laws. Some of them appear to be common with the practices which form the causes of action under the ordinary laws, but the object of these special laws and the different methods of dealing with them make them different causes of action.
It is conceded by learned counsel that if some of the causes of action and some of the consequences are the same as under the ordinary law, then this is not sufficient to invalidate these special laws because this only shows that the classification is to that extent overlapping, and a classification need not be scientifically perfect in order to be valid. They, however, contend that a substantial majority of the practices on which action can be taken under the Acts are causes of action under the ordinary law which means that to call it a partly overlapping classification is a misnomer. The reply to this contention is that the extent to which a classification overlaps is immaterial and that it is enough as laid down by the Supreme Court in Jibendra Kishore's case (P L D 1957 S C (Pak.) 9), if the classification is not arbitrary or capricious and is natural and reasonable and if it bears a fair and substantial relation to the object of the legislation.
The learned judges who decided the writ petition of Bazal Ahmad Ayyubi against the Punjab Goondas Act, did consider Jibendra Kishore's case, but it has been argued before us that dibendra Kishore's case has been distinguished by the Supreme Court itself in Waris Meah v. The State and the State Bank of Pakistan (P L D 1957 S C (Pak.) 157), and that as the latter mentioned case seems to have been decided after judgment was given on the Punjab Goondas Act, a different view should be taken by us on the question of the discriminatory nature of these special Acts. The counsel has relied on the following passage which occurs in the State Bank's case : (p. 167)
We emphatically rejected the contention that the Act questioned in that case was on the face of it discri minatory and proceeded to hold that where a statute is not ex facie discriminatory but is capable of being administered III a discriminatory manner, the party challenging the constitu tionality of that statute must show that it has actually been administered to the detriment of a particular class and in a partial, unjust and oppressive manner. In the present case, the question to be determined is whether the impugned Act is ex facie discriminatory, and we have no hesitation in saying that it is.
These observations do not help the petitioners because the Acts are distinguishable on .the basis of the following obser vations made by the Chief Justice of Pakistan in the same case p. 169 ;
in the present case, if the Act had merely set up a Tribunal of exclusive jurisdiction, though with a procedure different from that prescribed by the Criminal P. C. for the trial of ordinary offences, no objection could successfully have been taken to the constitutionality of the Act because the offenders against the Foreign Exchange Regulation could validly and reasonably be considered to be a class different from offenders under the ordinary law. Nor, could any objection on the strength of Article 5 of the Constitution succeed if the Act itself had indicated the classes of cases which were to be tried by the ordinary Courts, the Tribunals and the Adjudication Officers respectively. Even if the Act itself made no such classification but had required the Central Government to make it, the discretion so vested in the Central Government would have been constitu tional, provided the classification made by the Govern ment proceeded on a rational and reasonable basis and was not arbitrary, capricious or whimsical.
Reliance has been placed by Mr. Fazeel on an Indian authority in support of the view that the classification is not reasonable. He has referred to Deodat Rai and others v. State (A I R 1951 All. 718), which is a ruling on the U. P. Prevention of Crimes (Special Powers) (Temporary) Act. This Act was meant to deal with the persons of bad character or certain habitual offenders. The counsel has relied on the following passage which occurs in para 28 at page 731
"The discrimination lies in the fact that some are left to be prosecuted under section 110 of the Code while the others are prosecuted under the Act. A notorious habitual criminal is liable to be run in under the Code or under the Act, whether he is run in under one or the other has been left by the Act to the fancy or whim of the Magistrate and the police who move him. "The Act has laid down no standard to guide the Magistrate's choice of one of the two procedures and no standard can even be imagined by the Court. The discretion (if it at all is a discretion) 'that is conferred upon the Magistrate is naked and arbitrary ; there is absolutely nothing to guide him. It is section 3 (1) (a) (i) (b) and (c) which makes this irrational and arbitrary discrimination and it must be held to be a piece of legislative despotism. I am, therefore, of the opinion that section 3 (i) (a) (i), (b) and (c) is unconstitutional. The provision in section 3 (1) (a) (iii) is, on the other hand, not uncon stitutional ; it applies equally to all keepers of gambling dens who are by repute bad characters. They are all liable to be proceeded against under the Act and under no other provision."
The learned judge has no doubt observed that a notorious habitual criminal is liable to be run in under the Code or under the Act impugned at the fancy of the Magistrate and he has held this to be unconstitutional on the ground that the Act laid down no standard to guide the Magistrates' choice. This observation does not apply to the Acts before us because it was not taken into consideration that there is guidance in the Preambles of the Acts and the enumeration of the action able practices in the Acts themselves. We may mention here that in Aniuar Ali's case (A I R 195Z SC 75), the Supreme Court of India held that the object of a speedy trial stated in the Preamble of West Bengal Special Courts Act, 1950 was not a sufficient guide for applying a different procedure to any case or class of cases at the choice of the Special judge but in Saurashtra's case (1952 S C 123), that Court did not object to the same disadvan tageous procedure prescribed by the Saurashtra State Public Measures (Third Amendment) Ordinance because the object of the law was clear and could serve as a sufficient guide for the application of the Ordinance. The object was
"to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra."
The object of the Acts is no less lucid and definite.
We have held above that the Acts are not bad as dis criminatory under Article 5 of the Constitution. The other objections raised against them under Articles 7 and 11 of the Constitution are less abstruse in their nature.
Under Article 7 of the Constitution objection has been taken to the following provisions (1) " . . . . accept evidence on affidavit of witnesses . . ."
Section 5 (b) of the Karachi Act.
(2) " record the statement of any witness in camera in the absence of . . . . . his counsel.
Section 5 (c) of the Karachi Act.
(3) Grant immunity from prosecution to any witness appearing in any enquiry under this Act, in respect of any matter relevant to the enquiry contained in his evidence Section 5 (8) of the Karachi Act.
(4) "Direct with reference to specified portion of record of the enquiry that no copies or abstracts shall be made or furnished to .the persons complained of."
Section 5 (h) of the Karachi Act.
(5) "The officer laying information may ..close any particulars in a sealed cover and ..such particulars shall not be disclosed at any stage of the enquiry .."
Section 6 (2) of the Karachi Act.
(6) "The record of the proceedings ..for which the person laying information has claimed privilege shall not be available for inspection .during enquiry .or any revision proceedings before the High Court ''
Section 26 of the Karachi Act.
The first objection is not difficult to meet. The right of cross‑examination is a very valuable right and a useful weapon for discovering the truthfulness of a witness Ordinarily the denial of this right would make the statement of a witness inadmissible in evidence but it is neither a fundamental right nor such a principle of justice as would make invalid a provision made by the legislature in contradic tion to it for the purpose of meeting special circumstances. According to the Supreme Court of. India such a provision is not even unreasonable when made to suppress goondaism. It has been observed in Gurbachan Singh v. State of Bombay and another (A I R 1952 S C 221 at page 224)
"The only point which Mr. Umrigar attempts to make in regard to the reasonableness of this procedure is that the suspected person is not allowed to cross‑examine the witnesses who deposed against him and on whose evidence the proceedings were started. In our opinion, this by itself would not make the procedure unreasonable having regard to the avowed intention of tree legislature in making the enactment. The Law is certainly an extraordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person: or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein. This object would be wholly defeated if a right to confront or cross‑examine these witnesses was given to the suspect".
Moreover, the Additional Advocate General pointed out that affidavits can be easily counter‑balanced by the production of counter‑affidavits. The objection to the first part of the second provision is misconceived, because proceedings in camera do not mean exclusion of the parties and their counsel as has been suggested before us. It only means to the exclusion of the public or of unconcerned persons.
The objection to the latter part of the second provision appears to be valid because while clause (1) of Art. 7 of the Constitution gives a right to consult and be defended by a legal practitioner, section 5 (c) of the Karachi Act permits the Tribunal to record statements of witnesses in the absence of the counsel if it is satisfied that the person complained against has been evading appearance. There are observations in favour of a provision like section 5 (c) in (Deodat Rai and others v. State) at page 733 in the following words :‑
"The facts that the Evidence Act does not apply and that the person has no right to be present during the proceedings or be defended by a legal practitioner would not make the restrictions unreasonable."
We are unable to see how at least in view of clause (1) of Art. 7 of our Constitution proceedings under the Acts can be valid if there is a denial to the person complained against to consult and be defended by a legal practitioner of his choice. The advantage of this type of defence can be taken away if clause (1) of Art. 7 is not applicable. We enquired from Mr. Raymond and the Additional Advocate General if they would argue that clause (1) of Art. 7 did not apply to the proceedings under the Acts. They appeared to be on the horns of a dilemma and contended that the results of the proceedings taken under the Acts were "akin to preventive detention". There is very little for them to choose between cruses (1) and (2) of Art. 7 on the one hand and clauses (3) to (5) of Art. 7 on the other hand. They have taken a middle position and tried to argue that no provision of Art. 7 has been violated. Mr. Muhammad Nasim on the other hand contended that the restrictions which can be imposed under the Acts should not be described as "akin to preventive detention" because preventive detention is the subject‑matter specific provisions of the Constitution namely clauses (3) of Art. 7 and that all arrests and detentions excepting those which are of preventive nature are covered by clauses (1) and (2) of Art. 7. According to him the expression "akin to preventive detention" is a dangerous one and amounts to recognising a type of proceedings which the Constitution does not recognise. This contention raises two questions, firstly whether all detentions which are not preventive detention must fall within clauses (1) and (2) of Art. 7 and secondly whether detentions which are not preventive detentions but are only akin to preventive detention should not fall within the scope of clauses (3) to (5) of Art. 7
In reply to the first question it may be said that there is no reason to presume that clauses (1) and (2) and clauses (3) to (5) of Art. 7 exhaust between them all kinds of arrests and detentions. This is proved by an able judgment of the Supreme Court of India in Ganga Saran v. Firm Ram Charan Ram Gopal (P L D 1957 Kar. 339) and support is found to this view in a Division Bench judgment of this Court in Writ Petition No. 184 of 1957 dumma Khan v. Pakistan and others (P L D 1957 Kar. 339). It is easily possible to conceive of arrests like arrests in civil proceedings which do not fall within the ambit of Art. 7 at all. It is, therefore, not correct to contend that all arrests must either fall within the scope of clauses (1) and (2) of Art. 7 or within the scope of clauses (3) to (5) of Art. 7. The danger to which Mr. Nasim has referred lies in the chances that it may be argued with some force that restrictions which are akin to preventive detention are attracted more by clauses (3) to (5) of Art. 7 than by clauses (1) and (2) of Art. 7 and if the provisions of clauses (3) to (5) are not applied to them then there is no better reason for applying to them clauses (1) to (2) of Art. 7. There are judicial observations which allay these fears but there are also judicial observations which aggravate, these fears. Rahman, C. J. has observed in Bazal Ahmed Ayyubi's case (1) on page 396 :‑
Whatever may be the position with regard to arrests under orders of Civil Courts, I am disposed to hold that Article 7 of our Constitution covers all arrests effected in criminal or quasi‑criminal proceedings, including those made under orders of Criminal Courts.
These are general observations and. appear to be somewhat inconsistent with some of the observations made in the unre ported case of Jumma Khan v. Pakistan and others (P L D 1957 Lab. 388)in which the question to be considered was the arrest and detention pf certain Iranians with the purpose of externing them under orders passed by the 'Authority' appointed under the Foreigners Act. The proceedings were of quasi‑criminal nature because under the Foreigners Act punishment is provided for violation of orders. It was observed in it that
..steps taken and physical force applied for securing compliance only with a legitimate order to deport them from the country should be neither arrest nor deten tion for the purposes of Art. 7 of the Constitution.
Whatever the correct view may be with regard to all arrests and detentions under criminal and quasi‑criminal proceedings the argument has arisen before us on the ground that the respondents have taken a middle position between clauses (1) and (2) on the one hand and clauses (3) to (5) of Article 7 on the other hand and tried to exclude the applica tion of either of them. They are not wrong in contending that some of the restrictions imposed by the Acts are akin to preventive detention. We would go further and say that some of them fall under Article 11 of the Constitution. But this does not mean that clause (1) of Article 7 does not apply to them. We shall explain below why some of the restric tions imposed by the Acts are akin to preventive detention, how this argument itself leads to the application of Article 7 and how the application of clause (1) of Article 7 is not excluded.
The proceedings under the Acts result in consequences like externment section 13 (2) (a) of the Karachi Act, prohibition against visiting a specified locality [section 13 (1) (c), section 13 (2) (b) of the Karachi Act] or restriction of movement to any specified area [section 13 (2) (a) of the Karachi Act]. Externment from an area and prohibition against visits to specified localities are not real detention which moons stopping the detained person from leaving a specified place but are akin to detention. In the words of Weston, C. J. in Inderjit Sing v. State of Delhi (A I R 1953 Ph. 52).
"It may perhaps be accepted that externment or banish ment is something akin to preventive detention. It is a precautionary measure; its object is not to punish but to prevent; ‑it is not imposed on criminal conviction; its justification is suspicion or reasonable probability. The fact remains, however, that externment or banishment is not detention. Detention means that the person detained is at liberty to go nowhere. A person externed from Delhi may go anywhere he likes in the rest of India. It is true that the proviso set out above to clause (2) of section 5, Goondas Act is not an absolute bar to the person arrested under the Act being represented by a legal practitioner of his choice. But so far as this proviso makes such representa tion a matter of discretion with the advising judges, this proviso must be held to infringe the fundamental right given by Article 22 (1) of the Constitution, and in my opinion this infringement is not saved by clause (3) of that Article."
On this argument restriction of movements to a specified area would be more than akin to detention. It would amount to internment and would attract Article 11 of the Constitution. Rahman, C. J. has observed in (Rao Mahroz‑Akhtar v. District Magistrate, Dera Ghazi Khan) (P L D 1957 Lab. 676 at p. 682)
"The order of internment within a specified area seems to us to fall more appropriately within the purview of Article 11 of the Constitution than within the scope of preventive detention dealt with in Article 7".
If we apply Article 11 to internment, we must also apply it to externments. Externment orders have been dealt with under the corresponding provisions of the Indian Constitution, in Dr. N. B. Khare v. The State of Delhi (A I R 1950 S C 211) and Gurbachan Singh v. State of Bombay and another (A I R 1952 S C 221) and in many other judgments. This however does not need that the application of Article 7 of our Constitution to such cases is necessarily excluded. Three learned Judges of the Supreme Court of India have held in Gopalan's case (1950 S C 27) that Article 19 of the Indian Constitution does not apply to a legislation which deals with punitive or preventive detention as its direct object. Without entering into this argument we may state that the Acts do not have as their direct object either punitive detention or preventive detention, It is significant that while Rahman, C. J. held in1 Rao Mahtoz Akhtar's case that orders of externment fall within the purview of Article 11 he has also held in Ayyubi's case that "the, restrictions imposable under the (Punjab Control of Goondas) Act on a person complained against after the termination of proceedings, are I think, akin to those falling within the purview of Preventive Detention". These restric tions, we know, include internment as well as externment.
Article 11 may apply but this does not exclude the application of Article 7 to the restrictions imposable by the Acts. The question before us is as to why clauses (1950 S C 27) and (2) of Article 7 should be applied to the provisions relating to the restrictions imposable by the Acts in preference to clauses (3) and (5) of Article 7. The reasons which appeal to us are that while clauses (3) to (5) of Article 7 deal with preventive detention, clauses (1) and (2) of Article 7 are in a restricted sense the residuary provisions and confer the right of adequate hearing in a specified manner. This is in a way an extension of the principle of natural justice that nobody shall be condemned without being heard. We, according, hold that the provisions by which proceedings can be conducted in the absence of the counsel of the person 1 complained against on the ground only that such person is deliberately evading appearance is in violation of clause (1) of Article 7 of the Constitution and void.
The third, fourth, fifth and sixth objections fall within the same category as the second objection dealt with above. They relate to the right of defence and adequate hearing. According to section 5(g) of the Karachi Act immunity can be granted to witnesses for committing perjury. This immunity can theoretically be granted to the prosecution as well as to the defence witnesses, but there is no guiding principle under which the defence witnesses may claim it or with any hope pray for it. They cannot be in the good books of the executive authority. This provision is in practice bound to be a licence to the prosecution witnesses to tell lies orally or through affidavits to the full satisfaction of the prosecutors. This provision alone is sufficient to reduce the inquiry to a condemnable farce and is completely unjustifiable. Under section 5(h) of the Karachi Act the Tribunal can direct that copies or abstracts of any portion of the record of enquiry shall, presumably on inspection of the record by the person complained against or his counsel, neither be allowed to be made nor on application for copies be furnished. There are no limits to this power and there is no principle to guide the action of the Tribunal in this respect. The weakest parts of the prosecution case from the point of view of the truth and the worst from the point of view of condemning the person complained against can be withheld under this provision. It is not provided in this provision that the portions of the record so withheld cannot be seen during the inspection of the record, but there are other provisions which provide for further secrecy. Under section 6 (2) the Tribunal is bound to keep secret during the enquiry any information which the officer laying information may require to be kept secret, by enclosing its particulars in a sealed cover. The refusal to allow to make or obtain copies therefore necessarily relates to the information which is not kept secret. The surreptitious nature of these provisions adversely affects the right of defence of the person complained against during the enquiry, and section 26 carries the disadvantage to its farthest limits. Under this section inspection too of any part of the record can be prohibited if the person conducting the prosecution claims privilege to it or merely requests that it should be kept secret. Once the privilege is claimed successfully or a request is made those parts of the record to which such privilege or request relates become secret and cannot be seen by the defence during the enquiry or by the High Court in revision proceedings. In the presence of these provisions it is well nigh impossible for any person against whom information is laid to successfully defend himself irrespective of whether he is guilty of the practices complained of or not if the officer laying information before the Tribunal or the person conducting the prosecution would at all mean that restrictions must be imposed on him. It has been represented to us by the Additional Advocate‑General and Mr. Raymond that these provisions have not been used at all or may have been used very sparingly. If it is so then they are unnecessary or may be necessary within strictly defined limits but their presence itself is a threat to a deter mined defence and a free and fearless presentation of one's case. If used, they would be nugatory of any hearing worth the name.
The right of going in revision to the High Court is with out substance in the presence of section 26 because material parts of the record of the proceedings may be kept secret from the High Court or the High Court may be entirely unwilling to interfere when any part of the record is kept secret by reason of the uncertainty created by the possibility that there may be some information to justify the order in the possession of the Tribunal of which the High Court is not aware. The powers of the High Court under section 16 of the Karachi Act are very limited because they relate to the jurisdiction of the Tribunal only and these too cannot be exercised properly if full information is not before it. How can the High Court, for instance, find out whether the orders passed by the Tribunal were based on relevant facts, if facts are kept secret, or the conclusions of the Tribunal are correct, if the data is withheld, or there was no legal malice or fraud on power or no law in the exercise of jurisdiction, if the entire case is not before it
The Constitution, however, does not grant a right of revision or right of appeal. The principles of natural justice too do not grant them. But a restriction on the disclosure of the entire record to the High Court is an unreasonable restriction under Article 11 of the Constitution which shall be considered by us presently. At this stage we may state that our examination of the provision of the Karachi Act to which objections 3 to 6 relate leads us to the conclusion that such right of defence and opportunity of being heard as have been given to the person complained against are by reason of the provision to which objection has l9een taken reduced to a farce. There are no chances of adequate defence as long as they stay in the Acts. The presence of a counsel, even if a counsel is present, is meaningless without the means of preparing a defence and the chances of adequate hearing. These provisions namely section 5 (c), (g), (h), section 6 (2) and section 26 (excepting secrecy from High Court, contravene a, the provisions of clause (1) of Article 7 of the Constitution and are void.
There are four provisions of the Acts to which Article 11 of the Constitution applies. Two of them namely internment (section 13 (2) (a) and the other externment (section 13 (2) (a)) have been mentioned above and two relate to restrictions on entering specified localities (section 13 (1) (c) and section 13 (2) (b)). Article 11 of the Constitution is a short one and runs as under
"Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right‑
(a) to move freely throughout Pakistan and to reside and settle in any part thereof ;
(b) to acquire, hold and dispose of property."
The question in view of this Article is whether these restrictions are reasonable and in public interest Nobody has expressed any doubt before us and we do not doubt that imposing restrictions on a goonda is in public interest. But they must be reasonable. A restriction on entering specified localities is ex facie not unreasonable. In practice also this provision has not been misused because Writ Petitions Nos. 384/57 and 394/57 show that ban on entering Jamshed Quarter area of Karachi and Nazimabad area of Karachi has been imposed on the persons concerned and the rest of the city is left open for their normal life and pursuit. There is no case of internment in the writ petition before us but in defer ence to the arguments addressed to us on restrictions of movement to a specified locality under section 13 (2) (a) of the Karachi Act, we may only point out that this provision does not appear to be better from the point of Article 11 of the Constitution than the corresponding provision in the Punjab Control of Goondas Act, 1951 and the additional drawback in it is that there is no provision in it so as to control the power granted under it by Rules, nor is there any rule which contains any guiding principles for the exercise of this discretion. The considerations therefore on the basis of which Rahman, C, J., did not declare void the corresponding provision of the Punjab Act in Bazal Ahmad Ayyubi's case (P L D 1957 Lah. 388) are not applicable to the provision of the Karachi Act relating to internment.
The provision relating to externment (section 13 (2) (a)) has been used extensively. According to this provision the Tribunal may direct any person who is declared a dangerous disorderly person.
"that he shall be externed from Karachi".
It has been argued on behalf of the petitioners that according to this provision a person can be completely uprooted from the place where he has been residing and following his vocation if the externment is permanent or of long duration ; his life can be thoroughly‑ unsettled if the period is of medium duration and he may have to starve and be compelled to resort to unlawful means of livelihood if it is of a short duration. This argument however, relates to the policy of law of which the legislature is the best judge. All that the Court can do is to see whether the restrictions imposed by law are reasonable and in public interest or not. We have held that they are in public interest an 12 we cannot hold that externments for short or moderate periods are unreasonable. Externments for an unlimited period, or for good need closer examination. The Additional Advocate‑General and Mr, Raymond have argued that the executive officers are not likely to pass orders of permanent banishment, but this argument is contrary to facts, because there are fifteen cases before us (Writ Petition Nos. 168/56, 317/57, 337/57, 342/57, 351/57, 352/57, 356/57, 374/57, 381/57, 388/57, 389/57, 396/57, 399/57, 444/57 and 449/57) under the Karachi Act in which orders have been passed for externment without prescribing any length of time or for good. It cannot therefore be said that such orders are not or will not be passed. Mr. Raymond argued that the Karachi Act is a temporary Act and the orders will cease to have effect when the Act expires. This argument can be met in the words of Chagla, C. J. in a Full Bench case in Jeshing bhai Ishwarlal v. Emperor (1950 Bom. 363 at p. 368)
"It has been pointed out to us that no period for the duration of the externment order is laid down in the statute. The Advocate‑General has pointed out that the Act is for a temporary period and therefore, the duration of the extern ment is limited by the duration of the statute. In a sense he is right but it must also be pointed out that even a temporary statute can be renewed from time to time by the Legislature and even a permanent statute may be repealed by the Legislature. This very statute which originally was for two years, was amended by the Legislature to be for a duration of three years, and then subsequently for a period of six years. Therefore, there is no limit to the power of the Legislature to continue the duration of the statute. But what is much more important and to my mind what is fatal to the validity of the restriction placed by the Legislature, is the fact that the person against whom an order of extern ment is to be made has no right whatever to be heard in his defence before he is asked to leave his home and hearth and go and reside in some other place. There is no obligation upon the authorits to tell him what he is charged with or what are the grounds against hint which make it incumbent upon the Government to ask him to leave his home town. Nor there is any obligation upon the authority to hear the person against whom the order is intended to be trade in his defence before the order is made."
The words of Desa1, J, in Deodat Rain v. State (1951 All. 718 at p. 734) are more pithy although based on the observations of Chagla, C. J. He has approvingly said
"According to Chagla, C. J. a restriction is unreasonable if no right to be heard is allowed and if no period of deten tion is fixed. It is the law and not an order passed under it that should impose reasonable restrictions."
The distinction between the unreasonableness of an order and the unreasonableness of restrictions prescribed by law is important. There is no difference in this respect between Article 11 of our Constitution and Article 19 (5) of the Indian Constitution. Both of them deal with restrictions imposed by law and not with restrictions imposed by orders passed under the law. But a question arises as to whether Article 11 of our Constitution takes into account the unreasonableness of restrictions which may be existing in the procedure of law. According to the Indian authorities unreasonableness of procedure is a relevant consideration in view of the language of clause (5) of Article 19 of their Constitution. The language prevents the State "from making any law imposing" unreason able restrictions on the exercise of the right "to move freely throughout" India. "The wording of Article 19(5)", therefore, in the language of Meredith, C. J. in B. Sharma v. The State of Behar (P L D 1957 Lah. 676) "makes it quite clear that the words "reasonable restrictions" refer to the law itself." In the words of Das, J., in the same authority at p. 332, "It is to be observed that Clause (5) of Article 19 of the Constitution refers not merely to the operation of an existing law, but also to the making of any law in the future by the State under which restrictions can be imposed on the exercise of the right conferred by sub‑clauses (d) and (e) of Article 19 of the Constitution." Clause (5) of Article 19 of the Indian Constitution prevents "making any law imposing, unreasonable restrictions." The word 'imposing' is important. It has a reference to the process of the imposition of restrictions. The same object is achieved in our Constitution by a different method. Article 11 of our Constitution speaks of "any reasonable restrictions imposed by law" in the public interest. It does not speak of reasonable restrictions on freedom of movement only. The restrictions may not relate to the area or duration of time within which a citizen may not move freely but may be of any other nature. If a law requires that no citizen shall leave the Capital of the Federation without giving intimation of his departure to the C. C. of Karachi then such a law would fall within the purview of Article 11 although no penalties be prescribed for its breach and no restrictions be imposed on the places to which he may go. In other words procedural restrictions are also covered by the Article. Reliance has been placed on Bazal Ahmad Ayyubi's case and on Rao Mahroz Akhtar v. The District Magistrate (P L D 1957 Lah. 676) in support of the proposition that for purposes of determining the reasonableness of the provisions of a statute placing restrictions on the free movements of a citizen, the substantive as well as the procedural part of the Act can be brought under scrutiny." It has been suggested that these rulings are based entirely on Indian authorities and the langu age of Article 11 of our Constitution has not been examined in them. We have, however, found little difficulty in arriving at the same conclusion on the basis of the language of Article 11 of our Constitution.
We should note an argument advanced in favour of externments for unlimited time. It is argued that under sections 24 and 25 of the Karachi Act read with Rule 8 of the Karachi Control of Disorderly Persons Rules, 1952 a person who is externed can be allowed to go back to his original place of residence if the Probation Officer makes favourable recom mendations. The rule is as follows :‑
"(d) recommend the removal of any restriction imposed or a reduction in the amount of the bail bond, if any, or the cancellation of such bond ;".
The contention is that in the presence of this Rule it cannot be said that an externment without limit of time or of perma nent nature is in reality permanent or for an indefinite period. This argument merely suggests a possibility of a restriction being removed under Rule 8 (d) of the Disorderly Persons Rules but the chances of the removal of restrictions cannot be relied upon. There are more than equal chances of their not being removed. Moreover, a Probation Officer appointed under section 24 of the Karachi Act cannot have jurisdiction outside the Capital of the Federation. His services are of little value for those who are externed from the Capital. Mr. Raymond has said that as a matter of practice the Proba tion Officer keeps himself in touch by correspondence with the police officers of the districts in which the externed persons reside. According to him this is practicable because of the co‑operation which exists among the officers of the Government. This may be so but the arrangement, if it exists, has obvious drawbacks. The Probation Officer cannot have a direct touch with an externed person and cannot know facts at first hand. Whatever facts may be communicated may come to him very late. He has to depend on others who are not his subordinates or the subordinates of the Tribunal and unlike him their duty is not to reform or to render assistance to the persons externed from Karachi. They have in fact no duties to perform under the Karachi Act and the Rules made under it. It is true that section 24 of the Karachi Act and Rule 8 make no distinction between externed goondas and other goondas for purposes of superintendence and control by the Tribunal through the Probation Officer, but it is doubtful if the law can be reasonably interpreted to impose a responsibility on the officers regarding those persons who have been by the same law pushed out of their territorial jurisdiction. We have tried to analyse this argument in deference to the great pains which Mr. Raymond took in pressing it, but we are satisfied that the provision of section 13 (2) (a) which speaks of externment from Karachi without any limit of time or for good is unreasonable ex facie under Article 11 of the Constitution.
The conclusion is that the following provisions of the Karachi Act and Sind Act are ultra vires of the Constitution and void
Karachi Act. Sind Act.
Section 5 (c) to the extent to which Section 6 (c) to the
it is permissible that the state‑ same extent as
ment of only witness may be in Karachi Act.
recorded in the absence of the
counsel of the person com
plained against.
Section 5 (g) to the extent to which Section 6 (b) as above.
immunity can be granted to
witnesses against giving or
producing false evidence.
Section 5 (h) to the extent to which
copies or abstracts of record
may not be allowed to be made
or furnished to the person com
plained against and his counsel.
Section 6 (2) the whole of it. Section 7(2) as above.
Section 13 (2) (a) The whole of it, Section 14(d) as above.
except the provision under
which a declared dangerous
disorderly person may be
directed to report himself.
Section 26. The whole of it, except Section 25. As above.
secrecy from persons other
than the person complained
against, his counsel, or the
High Court.
The invalidity of the above provisions do not make the Karachi
Act or Sind Act invalid on the whole and all parties before us l0 are agreed on this.
The final conclusion is that Writ Petitions Nos. 168/56, 317/57, 337/57, 342/57, 351/57, 352/57, 356/57, 374/57, 381/57, 388/57, 389/57, 396/57, 399/57, 444/57 and 449/57 (fifteen in all) in which orders of externment for an indefinite period or for good have been passed succeed and the orders of extern ment passed in them are hereby quashed. The prosecution of the petitioner in W. P. No. 168/56 for the violation of the order of externment is also hereby quashed. As to the writ petitions which are pending before the Tribunals namely, Writ Petitions Nos. 496/56, 497/56, 542/56, 543/56, 6/57, 18/57, 302/57 and 333/57, under the Karachi Act and Writ Petitions Nos. 57/57 and,105/57 under the Sind Act (ten in all) it is directed that they be heard de novo by the respective Tribunals unfiltered (sic) by the provisions held to be void in this order. There are two Writ Petitions (Nos. 384/57 and 394/57) in which the petitioners have been restrained from entering certain areas and eight Writ Petitions Nos. 102/56. 55/57, 132/57, 196/57, 237/57, 259/57, 357/57 and 432/57, in which the petitioners have been directed to execute bonds.
These orders do not become void automatically in view of the above decision unless it is found that any of the provisions of law which are held to be void have been used against any of the persons against whom orders have been passed in them. Notices may, therefore, be issued to them and they may be heard for the decision of this question. As one of the Judges of this bench is shortly proceeding to Lahore on official duty these petitions may be heard and decided by such bench as the Senior judge may order.
A. H. Order accordingly.
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