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Writ Petition No. 436 of 1957, decided on 10th December 1957, for issue of writ of Habeas corpus under Article 170 of the Constitution.
(as subsequently amended)‑History of amendments.
S. 3 read with Art. 7 (4), Constitution of Pakistan‑S. 3 not invalid for lack of a provision for examination of detenu's case by the Advisory Board, as envisaged in Art. 7(4)‑Incorporation of such a provision not necessary for validity of Act‑Detention under S. 3 legal if provisions of Art. 7 (4) complied with‑Art. 7 (4) guarantees "another" fundamental right and does not prescribe a qualification for validity of preventive detention laws‑West Pakistan Preventive Detention Laws (Amendment) Ordinance (V1 of 1956), S. 2‑Lapse of Ordinance‑Effect.
Held, that clause (4) of Article 7, Constitution of Pakistan guarantees another fundamental right; it does not prescribe a special qualification for laws relating to preventive detention in the sense that without including such a provision that law would be invalidated. The result is that the detention could be challenged if in fact the provisions of clause (4) of Article 7 were not complied with in cases of detention exceeding three months.
In the present cases, the provisions of that clause had been strictly complied with, despite the omission of the amend ments introduced in the Act by West Pakistan Preventive Detention Laws (Amendment) Ordinance VI of 1956, the omission being the consequence of lapsing of the Ordi nance itself by flux of time.
Orders of detention, therefore, did not suffer from any legal defect on this ground.
Prahalad Jona and others v. State A I R 1950 Orissa 157 and Brahmeshwar Prasad v. State of Bihar A I R 1950 Pat. 265 distinguished.
Fazal Ahmad Ghazi v. The State P L D 1957 Kar. 190 dissented from.
Art. 7 (5)‑Incorporation, in a detention law, of provision in regard to communication of grounds of detention not necessary for validity of detention law.
That a provision with regard to communication of grounds of detention had to be included in a detention law, in order to make it valid, appears to be untenable on the plain wording of Article 7 of the Constitution. Clause (5) of that Article is clearly independent of clause (4) and merely guarantees to the detenu the right of being supplied with the grounds of detention by the detaining authority, as soon as may be, but does not prescribe that the detention law must necessarily contain any such provision.
Courts should lean in favour of constitutionality of statutes.
Courts should normally lean in favour of constitutionality of statutes and if two interpretations of a constitutional provision are possible, one of which would invalidate a statute while the other would support its validity, the second inter pretation should be preferred.
Ceasing to operate by lapse of time‑May be treated as never having existed, being a temporary enactment- Constitution of Pakistan, Art. 102.
Lapse of, by flux of time‑Effect on S.3, West Punjab Public Safety Act (XVIII of 1949) (as amended subsequently)‑West Pakistan General Clauses Act VI of 1956), S. 4 (2).
If it is assumed that subsection (2) of section 4 of the West Pakistan General Clauses Act (VI of 1956) is not incon sistent with Article 102 of the Constitution and full effect is given to its provisions, the conclusion may be that sub sections (6) to (8) of section 3 of the West Pakistan Public Safety Act (XVIII of 1949) (as subsequently amended) stand deleted because they were not in force at the time when the Ordinance lapsed, having been replaced by new subsections introduced by that Ordinance. On the expiry of the Ordi nance those new subsections also vanished. The Act would, however, remain workable without these provisions as it would only mean that a reference to the Chief Justice of the High Court would no longer be possible. On the alternative view, if it is suggested that subsection (2) of section 4 of the Provincial General Clauses Act is ultra vires the Constitution, then it would only mean that the provisions of subsections (6) to (8) enabling a reference to be made to the Chief Justice of the High Court would be revived. Those provisions cannot be attacked as being inconsistent with Article 7 of the Consti tution as they may only ensure a cumulative remedy to the detained person by way of approach to the Chief Justice in addition to the fundamental right guaranteed by the Constitution. On either view, therefore, section 4 (2) of the Provincial General Clauses Act does not affect the position materially.
Cannot be automatically read into all relevant enactment.
Held, that Fundamental Rights included in Part II of the Constitution of Pakistan cannot be read into all relevant enactments as it would rob Article 4 (1) of the Constitution, of all meaning.
Sh. Khurshid Ahmad for Petitioner.
S. A. Mahmood, Additional Advocate‑General for Respondents.
Date of hearing: 11th November 1957.
This order will dispose of 38 writ petitions which were filed in this Court to challenge orders of detention passed by the Provincial Government against certain persons under section 3 of the Punjab Public Safety Act, 1949 (hereinafter referred to as the Act) as amended from time to time. Some of these petitions came up for hearing before a Division Bench composed of my brothers Kaikaus and Muhammad Shafi, JJ., but the learned judges differed on the question of validity of section 3 of the Act, and, therefore, referred the cases to a Full Bench. Some other petitions were meanwhile filed, raising the same point and they have been heard together by this Full Bench.
The main ground of attack against the impugned detention orders is that the relevant provisions of the Act are repugnant to Article 7 of the Constitution and, therefore, void by virtue of Article 4 (1) of the Constitution. In order to appreciate the contention raised, it is necessary to consider the history of amendments of the Act which was originally enacted as the West Punjab Public Safety Act, 1949 I. Section 3 of that Act empowered the Provincial Government the District Magistrate or any servant of the Crown authorised in this behalf by general or special order of the Government if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or public order it was necessary so to do, to order his arrest and detention in such custody as the Government may by general or special order specify in this behalf. An arrest made by or on the direction of any authority other than the Government, was required to be reported to the Government by the authority so making or directing the arrest and, unless Government by special order directed otherwise, the detention ill custody could not last for a period exceeding one month. It was further pro vided that no order made by Government under this section shall remain in force for a period of more than six months, but the Government was authorised to renew such order for another period of six months. Subsection (8) of this section made it incumbent on Government, in all cases of detention exceeding one month, to make a reference to a Sessions Judge within a month of the date of the order and the said judge was authorised, after consideration of the material facts and circumstances of the case end after making such further enquiry as he may deem fit, to report to Government whether or not in his opinion there was sufficient cause for the order. This opinion was of an advisory nature and Government was not bound to accept it. By the Punjab Public Safety (Amend ment) Act, 1951, section 3 of the old Act was replaced by the following provisions:‑
"3 (1) The Government, if satisfied that with a view to preventing any person from acting in any manner pre judicial to public safety or the maintenance of public order, it is necessary so to do, may by an order in writing direct the arrest and detention in such custody as may be pres cribed under subsection (9), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and the Government, if satisfied that for the aforesaid reasons it is necessary so to do, may subject to the other provisions of this section extend from time to time the period of such detention.
(2) If a District Magistrate or any other servant of the Crown authorised in this behalf by general or special order of the Government, has reasons to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to the Government for orders Provided that if the District Magistrate or the other servant of the Crown, as the case may be, while making such a reference, or at any time thereafter but before the receipt of the order of the Government on the reference made to it, is satisfied that with a view to preventing such person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, pending the decision of the Government on the reference made to it, he may order the arrest of the afore said person and direct him to be detained in such custody as may be prescribed under subsection (9), for a period not exceeding 15 days, and shall report the matter to the Government without avoidable delay.
(3) (i) An order of arrest under subsection (1) or sub section (2) may be addressed to a Police Officer or any other person and such officer or person shall have the power to arrest the person mentioned in the order and in doing so he may use such force as may be necessary. The Police Officer or the other person, as the case may be, shall commit the arrested person to such custody as may be prescribed under subsection (9).
(ii) A Police Officer not below the rank of Sub‑Inspector, if satisfied on receipt of credible information that a person against whom an order of arrest or of arrest and detention has been made under this section is present within such officer's jurisdiction, may arrest him without a warrant, in the same manner as he would have done, if such order of arrest had been addressed to him
Provided that before taking action under this clause, the Police Officer shall record in the roznamcha at his police station, a report about his having received such information, and if he is not in charge of a police station, or the infor mation is received by him when he is not at his police station, he shall prepare a note about it and transmit such note to the nearest police station, where on its receipt, a report shall be forthwith recorded in the roznamcha.
(4) On receipt of a reference under subsection (2) the Government may,‑
(a) reject the reference, and order the release of the aforesaid person in case he has been arrested and detained under the proviso to subsection (2) ; or
(b) make an order of arrest and detention in terms of subsection (1), and where the aforesaid person has been arrested and detained under the proviso to subsection (z), the Government may extend the said detention for such period as it may, subject to the other provisions of this section, deem necessary.
(5) No order of detention or of extension of detention under this section shall be passed for a period of more than six months at a time.
(6) (i) Where an order of detention or as the case may be, of extension of detention, is passed under subsection (1) or subsection (4), for a period exceeding one month, the Government shall, within one month of the commencement of such detention, place before a Sessions judge a statement of the allegations against the person under detention, along with all the material facts and circumstances in the posses sion of the Government on which the order has been based or which are relevant to the enquiry as well as any facts and circumstances relating to the case as may have subsequently come into the possession of the Government, and the said judge shall after considering all such allegations, material facts and circumstances, report to the Government whether in his opinion there is sufficient cause for the order.
(ii) On receipt of the report of the Sessions Judge the Government shall consider the same and shall pass such order thereon as appears to the Government to be just and proper.
(iii) Notwithstanding anything contained in any law for the time being in force, a person whose case has been referred to a Sessions Judge under this subsection, shall not be heard in person or otherwise, during the proceedings under clause (1) above, or be allowed to inspect the record placed before the judge or the record of the proceedings held and the report made by him, or be supplied with a copy of such record, proceedings or report, and such record, proceedings, and report shall be confidential and shall be deemed to be information and documents within the meaning of section 5 of the Official Secrets Act, 1923.
(iv) The proceedings and the report of the Judge shall not be called in question in any proceedings before any Court or otherwise.
(7) No legal practitioner shall appear in any proceedings under this section to represent the person against whom the proceedings are held.
(8) Where the report of the Sessions judge under sub section (6) is not received before the expiry of the period of detention during the currency of which the reference was made, or where though the report is received, Government has not yet passed a final order thereon, Government may notwithstanding anything to the contrary contained in this section from time to time extend the period of detention till such time as the report is received and Government is able to pass a final order thereon or as the case may be, the Government has passed a final order.
(9) So long as there is in force in respect of any person an order under this section directing that he be detained, he shall be liable to be detained in such custody and under such conditions as to maintenance, discipline and punishment for offences and breaches of discipline as the Government may from time to time prescribe by general or special order.
(10) If the Government or a District Magistrate has reason to believe that a person in respect of whom an order of arrest and detention has been passed under this section has absconded or is concealing himself so that such order cannot be executed, the Government or the District Magistrate, as the case may be, may,‑
(a) forward a copy of the order, with a declaration that such person cannot be found, to a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 87, 88 and 89 of the Code shall apply in respect of the said person and his property as if the order directing that he be arrested and detained were a warrant issued by the Magistrate ;
(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order ; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had within the period specified in the order, informed the officer concerned of the reasons which rendered compliance therewith impossible and of his where abouts or taken all possible steps to give such information, be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(11) The Government may at any time release a person detained under this section.
(12) The District Magistrate or any servant of the Crown, referred to under subsection (2), may summon and interro gate or cause the summoning and interrogation of any person, including a person arrested or detained under this section, if in his opinion such interrogation is likely to lead to the discovery of information which may enable the more effective exercise of powers under this Act, whether in respect of the person interrogated or any other person, and the person interrogated under this subsection shall be bound to answer truthfully all questions pertaining to the subject of the enquiry."
The Act was further amended by the Punjab Public Safety (Amendment) Act, 1954, and for subsections (6) to (8) of section 3 of the Act the following were substituted.‑
"(6) (i) A person detained under this section may, at any time during his detention, either himself or through any other person not being a legal practitioner represent to the Chief Justice of the High Court of Judicature at Lahore against the order of detention and the Government shall thereupon make available to the Chief Justice the entire material relevant to the order, including such material as may have come to its knowledge after the order of detention.
(ii) The Chief Justice shall, after examining the aforesaid material, hearing the person detained, if the person detained so desires, and making such further inquiry as he considers necessary, record a finding whether in his opinion there is sufficient cause for the passing of the order; if there is no sufficient cause, he shall direct that the person detained be released forthwith.
(7) The Chief Justice shall forthwith communicate to the Government his finding together with the grounds thereof, but to the person detained he shall communicate the finding only.
(8) The person detained or any other person shall not be entitled to inspect the record placed before the Chief Justice or the record of the proceedings held and the report made by him, or be supplied with a copy of such record, proceedings or report, and such record, proceedings or report shall be confidential and shall be deemed to be information and documents within the meaning of section 5 of the Official Secrets Act, 1923, provided that the Chief justice may make available to the person detained such material bearing on the case as he thinks fit."
By this amendment, therefore, instead of the reference to a Sessions Judge, the Chief Justice of this Court (which has replaced the Lahore High Court after the integration of West Pakistan) was empowered to give an opinion about the propriety of the detention, in each case, to the Government and the opinion of the Chief Justice was to be binding on the Government inasmuch as he could direct the release of the person detained, forthwith.
The Constitution of the Islamic Republic of Pakistan came into force on the 23rd of March 1956. Article 7 of the Constitution is the main plank in the arguments addressed to us in these cases and may be set out in extenso:‑
"(7).‑(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to
consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty‑four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person‑
(a) who for the time being is an enemy alien ; or
(b) who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a period exceeding three months unless the appropriate Advisory Board has reported before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention.
Explanation.‑--In this clause "the appropriate Advisory Board" means, in the case of a person detained under a Central Act or an Act of Parliament, a Board consisting of persons appointed by the Chief Justice of Pakistan, or, in the case of a person detained under a Provincial Act or an Act of a Provincial Legislature, a Board consisting of persons appointed by the Chief Justice of the High Court for the Province.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order
Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose."
With this provision has to be read the declaration contained in clause (1) of Article 4, which lays down that any existing law, or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of Part II of the Constitution, shall, to the extent, of such inconsistency, be void. Part II of the Constitution guarantees fundamental rights and includes Article 7.
5. The Governor of West Pakistan. in exercise of the powers conferred by Article 102 of the Constitution, promul gated an Ordinance called the West Pakistan Preventive Detention Laws (Amendment) Ordinance, 1956. and this was published in the Gazette Extraordinary of the Provincial Government dated the 23rd March 1956. By this Ordinance, section 3 of the Act was amended and subsections (6) to (8) of that section were replaced by the following provisions:‑
"(6) Where a detention‑order has been made under sub‑section (1) or subsection (4), the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and inform him that he is at liberty to make a representation against the order
Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public interest to disclose.
(7) (a) Where an order has been made under sub section (1) or subsection (4) for detention of a person for a period exceeding three months, including, in the case of a person who is already in detention under the detention under the provisions of this Act, the period of his previous detention, the authority making the order shall, as soon as may be, but not later than three months from the first date of detention of such person, place before the Advisory Board, constituted under subsection (8), the grounds on which the order has been made on the representation, if any, made by the person affected by the order.
Provided that in the case of a person who is under detention at the time of coming into force of the West Pakistan Preventive Detention Laws (Amendment) Ordi nance, 1956, the period of three months shall commence from the date of coming into force of the said Ordinance.
(b) The Advisory Board shall, after considering the material placed before it and, after calling for such further information from Government or from any person concerned or affected, as it may deem necessary, report to Govern ment, before the expiration of the period of three months referred to in clause (a) of this subsection, whether in its opinion there is sufficient cause for such detention. The report of the Advisory Board shall be confidential and no person shall be entitled to get a copy of the same nor shall any person be allowed to inspect the original report, without permission of Government.
(c) On receipt of the report of the Advisory Board, Government shall consider the same and shall pass thereon such orders as it may deem fit
Provided that if in the opinion of the Advisory Board there is no sufficient cause for such detention, Government shall rescind the order of detention and such person shall be released forthwith.
(d) A person against whom an order has been made under subsection (1) or subsection (4), shall be permitted and may be required by the Advisory Board to attend in person before it, but shall not be permitted to produce any witness before the Board.
(8) The Chief Justice of the High Court of West Pakistan shall, for the purposes of this section, appoint persons to constitute an Advisory Board."
By virtue of the provisions of Article 102 of the Constitu tion, the Ordinance had to be placed before the West Pakistan Legislative Assembly at its next meeting. The Assembly actually met on the 18th or the 19th of May 1956, but the Ordinance was not placed before it. Consequently, it ceased to operate at the expiration of six weeks from the date of the starting of the session. The Ordinance being a temporary measure, the normal result would follow that the amend ments effected by it in section 3 of the Act, would fall with it and the provisions of the Act, as they stood before the amendments, would be revived. However the provisions of section 4 of the West Pakistan General Clauses Act, 1956, may also call for consideration in this respect. Subsection (1) of that section declares, inter alia, that where that Act or any other West Pakistan Act repeals any enactment, then, unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect. Subsection (2) of that section, as subsequently amended, made the provisions of subsection (1) applicable on the expiry or withdrawal of any Ordinance promulgated by the Governor under section 88 of the Government of India Act, 1935, of under Article 102 of the Constitution, as if it had been repealed by a West Pakistan Act.
The main ground of attack against the vires of the Act is based on the argument that after the lapse of Ordinance VI of 1956, the Act has become inconsistent with Article 7 of the Constitution and has thus been invalidated. It is con tended that clause (4) of Article 7 does not merely guarantee a fundamental right to the person concerned but lays down a qualification of the law providing for preventive detention and, therefore, it was necessary for the validity of the Act that the provisions of clauses (4) and (5) of the Article should have formed part of the Act. Reliance is placed, in this connection, on three authorities reported as Prahalad Jona and others v. The State (A I R 1950 Orissa 157), Brahmeshwar Prasad v. The State of Bihar (A I R 1950 Pat. 265) and Fazal Ahmad Ghazi v. The State (P L D 1957 Kar. 190).
In the first case, a Full Bench of the Orissa High Court held that the provisions of the Orissa Maintenance of Public Order Act (IV of 1948), as amended in 1949, dealing with preventive detention, were void under Article 13 (1) of the Indian Constitution on account of their inconsistency with Article 22 of that Constitution. The learned judges were of the opinion that if the offending portions of the Act were excised, the Act would not remain workable, and, therefore, was invalidated as a whole: The provisions of Article 22 of the Indian Constitution are parallel to Article 7 of our Constitution. Clause (4) of Article 22 of the Indian Constitution is in the following terms:‑
" No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless‑
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub‑clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub‑clause (b) of clause 7; or
(b) such person is detained in accordance with the provisions of any law made by Parliament under. Sub- clauses (a) and (b) of clause (7)."
Clause (5) of that Article placed a duty on the authority making the detention order to communicate to the person concerned the grounds on which the order has been made so that he may make a representation against the order at the earliest opportunity. It will be seen that the opening part of clause (4) is expressed in the same language as the opening part of our clause (4) of Article 7. The learned judges of the Orissa High Court were of the opinion that this language obviously hit the law providing for preventive detention and did not merely affect the rights of a person. In their view the interpretation that it merely guarantees a fundamental right to a person would render Article 13 (1) of the Indian Constitution practically nugatory, which corresponds to Article 4 (1) of our Constitution. With all respect, it seems difficult to understand the reasoning of the learned judges in this respect. Article 31 of the Indian Constitution, which relates to compulsory acquisition of property and prescribes qualifications of laws pertaining to that subject, would still be available for giving effect to Article 13 (1) of that Constitution.
In the second case, a Division Bench of the Patna High Court on an identical view upheld a challenge to the validity of the relevant provisions of the Bihar Maintenance of Public Order Act (III of 1950). Apparently, in that case, the learned Government Advocate did not deny the alleged inconsistency between the provisions of the impugned Act and Article 22 of the Indian Constitution. There was thus hardly any dis cussion on the point involved and it seems to have been assumed that the repugnancy existed.
In the third case, Inamullah and Wahiduddin Ahmed, JJ. of this Court, came to a finding that the Baluchistan Public Safety Regulation (I of 1947) was invalid in so far as it did not contain any provision as regards communication of the grounds of detention to the detenu and reference to an Advisory Board, as required by Article 7 of the Constitution. There, again, the learned judges assumed without discussion that there was a repugnancy between section 3 of the Baluchistan Regulation and Article 7 of the Constitution. Incidentally, it may be noted that the observation of the learned Judges to the effect that a provision with regard to communication of grounds of detention had to be included in a detention law, in order to make it valid, appears to be untenable on the plain wording of Article 7 of the Constitu tion. Clause (5) of that Article is clearly independent of clause (4) and merely guarantees to the detenu the right of being supplied with the grounds of detention by the detaining authority, as soon as may be, but does not prescribe that the detention law must necessarily contain any such provision.
Clause (4) of Article 7 of our Constitution does not appear to be happily worded. It is not in our opinion, susceptible of only one unequivocal interpretation. The argument raised on behalf of the petitioners is that as this clause begins with the words, " No law providing for pre ventive detention shall authorise the detention of a person * * * * * " this is a qualification of the relevant law. and by way of contrast, our attention was drawn to the wording of clauses (1) and (2) of that Article. These two clauses, no doubt, start with the words, "No person who is arrested" and "Every person who is arrested". The inference sought to be drawn is that the Constituent Assembly deliberately departed from the expressions used in the first two clauses and, therefore, may be deemed to have intended to prescribe a qualification of the validity of the law relating to preventive detention, in clause (4). It may, however, be pointed 'out that such an interpretation would make the latter part of clause (4) of the Article inapt. It would mean, if the latter part of clause (4) has to remain intact in its literal sense, that the validity of the law in question would depend on whether an Advisory Board has reported before the expiration of a period of three months from the date of the detention order that there is, in its opinion, sufficient cause for such detention. This is hardly intangible unless some more words are read into the clause so as to make it clear that the words "unless the appropriate Advisory Board has reported" are equivalent to the words "unless there is a provision in the law for a reference to the appropriate Advisory Board ". No doubt, the expression "shall authorise" may mean, inter alia "shall contain a provision for", but that is not the only meaning attachable to this expression. It may also be equivalent to "shall be authority for" or "shall be regarded as sanction for" or "shall warrant" and taken in this sense, the latter part of the clause assumes a sensible shape, without any modification. If this meaning be adopted, it would follow that the clause has the effect of depriving a detention law, providing for detention for more than three months of full effect, unless sanction is provided for such detention by the report of an Advisory Board contemplated by the Constitution. On this reading of the clause, the two parts of the clause would become consistent and coherent without addition of any unnecessary words. Courts should normally learn in favour of constitutionality of statutes and if two interpretations of a constitutional provision are possible, one of which would invalidate a statute while the other would support its validity, the second interpretation should be preferred. On this view, there appears to be no inconsistency between clause (4) of Article 7 of the Consti tution and the impugned detention law, as it stands after the lapsing of Ordinance VI of 1956. The clause apparently guarantees another fundamental right and it is not necessary to go further and hold that it prescribes a special qualification for laws relating to preventive detention in the sense that without including such a provision that law would be invalidat ed. The result is that the detention could be challenged if in fact the provisions of clause (4) of Article 7 were not complied with in cases of detention exceeding three months. However, in the present cases, as a matter of fact, the pro visions of that clause have been strictly complied with, despite the omission of the amendments introduced in the Act by Ordinance VI of 1956. It cannot be, therefore, maintained that the orders of detention suffer from any legal defect on this ground.
The suggestion was advanced on behalf of the peti tioners that after an amendment had been made in the Act by Ordinance VI of 1956, the Courts would be precluded from reading the Act subject to any adaptations required by Article 7 (4) of the Constitution, in the face of. the provisions of Article 224 of the Constitution. The‑latter Article continues in force all existing laws, save as may be otherwise expressly provided in the Constitution, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other competent authority. It is urged that after being amended once by the appropriate Legislature, Article 224 of the Constitution would cease to become applicable to such a law so that the law in question could not be read with the necessary amend ments required by the Constitution. The short answer to this objection seems to be that on the Ordinance ceasing to operate, it must be deemed never to have existed, being a temporary enactment. The very premises on which the argument is based, namely, that an amendment was effected in the Act, would, therefore, vanish and the point need not be dilated upon further.
The question of the effect of section 4 (2) of the West Pakistan General Clauses Act, 1956, remains to be considered. If it is assumed that subsection (2) of section 4 of that Act is not inconsistent with Article 102 of the Constitution and full effect is given to its provisions, the conclusion may be that subsections (6) to (8) of section 3 of the Act stand deleted because they were not in force at the time when the Ordinance lapsed, having been replaced by new subsections introduced by that Ordinance. On the expiry of the Ordi nance those new subsections also vanished. The Act would, however, remain workable without these provisions as it would only mean that a reference to the Chief justice of this Court would no longer be possible. On the alternative view, if it is suggested that subsection (2) of section 4 of the Pro vincial General Clauses Act is ultra vires the Constitution, then it would only mean that the provisions of subsections (6) to (8) enabling a reference to be made to the Chief justice of this Court would be revived, Those provisions cannot be attacked as being inconsistent with Article 7 of the Constitution as they may only ensure a cumulative remedy to the detained person by way of approach to the Chief Justice in addition to the fundamental right guaranteed by the Constitu tion. On either view, therefore, section 4 (2) of the Pro vincial General Clauses Act does not affect the position materially.
The view we have taken, it may be observed, is fortified by the consideration that the provisions of Article 7 of our Constitution are slightly different from those of Article 22 of the Indian Constitution. Whereas in the Indian Constitu tion, provision is made for reference to an Advisory Board consisting of persons whose qualifications are laid down, there is no indication as to the appointing authority for such members. On the contrary, our Constitution seems self -sufficient in this regard inasmuch as the appropriate Advisory Board can be constituted by the Chief Justice of Pakistan or the Chief Justice of a High Court, as the case may be. The fundamental right guaranteed by clause (4) of Article 7 of the Constitution, therefore, becomes fully effective without its being enacted as a part of any detention law.
Mr. S. A. Mahmood, who appeared for the State, attempted to argue that all fundamental rights included in Part II of the Constitution had to be read into all relevant enactments. We are unable to subscribe to that view as it would rob Article 4(1) of the Constitution, of all meaning. An instance of the validity of a law being dependent on its including certain specific provisions as a result of enactment by the Legislature itself, is furnished by Article 15 of the Constitu tion, which guarantees certain rights of property. It lays down, inter alia that no property shall be compulsorily acquir ed or taken possession of, save for a public purpose and save by the authority of a law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given. Certain existing laws are saved from the operation of this provision, but that is not an aspect of the matter with which we are concerned. The general proposition advanced by Mr. Mahmood is, how ever, untenable.
Barring the constitutional point raised, there appears to be no other ground in these cases for holding that the deten tion orders were, in any way, open to exception. The formali ties of law have been fully complied with in each case and no interference appears to be called for by this Court. As a result, we dismiss all these writ petitions.
--I agree.
---‑I agree.
[Bail orders granted pending hearing of these cases must be deemed to have been vacated and the D. M's concerned may be informed accordingly].
A. H. Petitions dismissed.
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