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Criminal Miscellaneous No. 2657 of 1962, decided on 3rd January 1963.
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-----History in Pakistan.
S. 23 read with Art. 98, Constitution of Pakistan (1962)-S. 23 not a "complete" bar to High Court's jurisdiction-Art. 98 to prevail against S. 23-High Court's jurisdiction not barred, even apart from Art. 98, in case Govern ment's order is passed from ulterior motives or is mala fide or is not justified revisions of Ordinance Order passed "under tie Ordinance" means "order justified the Ordinance."
S. 491 (1) (b) "Detained"-Detention - Government's order under S. 5 (1) (b), West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) requiring a person to "reside and remain" within the limits of a village-Amounts to detaining such person within meaning of S. 491 (1) (b)-Words and phrases - "Custody"-Meaning [Rao Mehroz Akhtar v. The D. M., Dera Ghazi Khan P L D 1957 Lah. 676 ref. Phillip S. Wales v. William C. Whiteney 114 U. S. Reports (Lawyers' Edition) 277 distinguished and Muhammad Umar v. The Crown P L D 1955 Lah. 180 considered.]
S. 5(5) Information to be supplied to detenu-- Limits of such information-Depend upon facts of each case Principle : "sufficient" to enable detenu to make a representation Order of detention invalid if "none" of the grounds is communicated to detenu-Government maybe directed to "supply Information" to detenu or terminate detention" according as the case of defective information in minor detail or otherwise "Grounds" does not mean "conclusions" arrived at by Government but "facts" on which order passed.
[An epitome of the decisions on points of law arising in the case appears in para. 16 of judgment of Shabir Ahmad, J.]
Mahmud Ali Qasuri with Abid Hassan Minto and S. M.
Masood for Petitioner.
M. Anwar Advocate-General for Respondent:
-This Full Bench of three Judges was constituted by my Lord the Chief Justice with a view to disposing of two petitions in which orders of the nature of habeas corpus were prayed for. One of these cases, namely, Criminal Miscellaneous No. 2657 of 1962, came up before my Lord the Chief Justice sitting singly and as he was of the view that the question involved was of some importance, he directed that the case be placed before a Bench of two Judges, whereupon the case was laid before my Lord the Chief Justice and myself, and on the 14th of November 1962, it was referred to a Full Bench by reason of the fact that a decision of this Court reported in Rao Mahroz Akhtar v. The District Magistrate, Dera Ghazi Khan and another (P L D 1957 Lah. 676) had taken a view with regard to the question that arises and it was considered desirable that the case be heard by a Full Bench. Criminal Miscellaneous No. 2865 of 1962 was also directed by my Lord the Chief Justice to be heard by a Full Bench because the main questions that arise in that case are not materially different from those that arise in Criminal Miscellaneous No. 2657 of 1962.
2. The facts relating to Criminal Miscellaneous No: 2657 of 1962, are these. Lal Khan son of Farid Khan was served with an order under section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960 (to be referred to hereinafter as the Ordinance), in the month of February 1962, wherein he had been directed not to enter the districts of Lahore and Lyallpur for a period of six months and thereupon Lal Khan started living and working at Gujranwala. On the 10th of August 1962, when the period for which the first order was passed was about to expire, an order was passed by the Provincial Government wherein it was directed that Lal Khan shall reside and remain within the revenue limits of village Bhatial, Police Station Sadar Jhelum, District Jhelum and that he shall abstain from taking part in any political activity and shall abstain from making a speech and issuing a statement. This order, which was signed by the Secretary to the Government of West Pakistan, Home Department, on the 10th of August 1962, and bore No. 7218 (2) ADSB, was to come into force from the date of its service on Lal Khan and was to remain in force for a period of six months. On the same day, another order which bore No. 7219-(2) ADSB was also issued and this purported to contain the reasons which had led to the detention of Lal Khan. This order No 7219-(2) ADSB, which is Annexure B to the petition, was in the following terms :-
"(1) The Governor of West Pakistan is satisfied that there are strong grounds to believe that your activities are prejudicial to public safety and the maintenance of public order.
(2) You are hereby informed of the above reasons of your restriction in order to enable you to make, if you so wish, a representation in writing against the order of restriction.
(3) You are also hereby informed that you have the right to make such a representation."
On the 25th of October 1962, Chaudhri Muhammad Anwar, a resident of Fane Road, Lahore, put in a petition (Criminal Miscellaneous No. 2657 of 1962) wherein it was said that the order passed against Lal Khan amounted to one of detention for which reason a writ of habeas corpus could issue, and as for reasons which need not be detailed here, the detention was illegal, the detenu should be set at liberty. At the hearing before the Full Bench, a power-of-attorney executed by Lal Khan in favour of Mr. Mahmud Ali and the other counsel appearing for him was placed on the record with a view to making it clear that the petition had the approval of Lal Khan himself.
3. I will now briefly mention the more important facts pertaining to Criminal Miscellaneous No. 2865 of 1962. On the 6th of September 1962; an order was passed by the Provincial Government that the movements of Mirza Muhammad Ibrahim were restricted to the revenue limits of village Kala, District Jhelum, that Mirza Muhammad Ibrahim shall not leave that area without the permission in writing of the Superintendent of Police, Jhelum and that Mirza Muhammad Ibrahim shall abstain from taking part in any public meeting, procession or political or labour activities and shall abstain from making a speech and issuing a statement. This order was to remain in force for six months from the date of its service on Mirza Muhammad Ibrahim. The petition for release of Mirza Muhammad Ibrahim was not presented by himself but by Mirza Muhammad Saeed Beg, a resident of Mayo. Road, Lahore. Besides mentioning facts, some of which have been detailed above, the petition contained a reproduction of an order served on Mirza Muhammad Ibrahim bearing No. 3-37-H-Spl.-G/62. This order was in all material respects in the same terms as .the order relating to Lal Khan was and need not, therefore, be reproduced here, because the one relating to Lal Khan has been reproduced in paragraph No. 2.
4. The orders against Lal Khan, to whom Criminal Miscel laneous No. 2657 of 1962 relates, and those against Mirza Muhammad Ibrahim, to whom Criminal Miscellaneous No. 2865 of 1962 relates, were passed under section 5 of the Ordinance and as it will be of assistance to have the provisions of that section before one, it is reproduced here. The section runs as follow:-
"(Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may by order in writing, give any one or more of the following directions, namely, that such person--
(a) shall not enter, reside or remain in any area that may be specified in the order ;
(b) shall reside or remain in any area that may be specified in the order ;
(c) shall remove himself from, and shall not return to, any area that may be specified in the order ;
(d) shall conduct himself in such manner, abstain from such acts, or take such order with any property in his possession or under his control, as may be specified in the order ; and
(e) shall enter into a bond, with or without sureties for the due observance of the directions specified in the order.
(2) An order under subsection (1) made by the District Magis trate shall net, unless Government by special order otherwise directs, remain in force for more than three months from the making thereof.
(3) Government may at any time cancel or vary any order made by the District Magistrate under subsection (1).
(4) An order under clause (a) of subsection (1) made by Government may specify as the area to which the order relates, the whole Province or any part thereof, and an order made by the District Magistrate may specify as such area the whole district or any part thereof:
Provided that no such order made by Government shall direct the exclusion or removal from the Province of any person ordinarily resident in the Province- and no such order made by the District Magistrate shall direct the exclusion or removal from the district of any person ordinarily resident in that district.
(5) Where an order has been made under subsection (1) the authority making the order shall, as soon as may be but not later than fifteen days from the date of service of the order, communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so:
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.
(6) An order made under subsection (1) shall remain in force for such period not exceeding two years as may be specified in the order."
5. I have mentioned already that these two cases were referred to a Full Bench. The reference was with regard to the whole of each of the two cases and it was patently for this reason that points with which the Full Bench had to deal were not formulated. Before, however, the hearing by the Full Bench started, it was made clear to the learned counsel who appeared in support of the petitions as well as to the learned counsel who appeared to oppose them, that the following questions required determination :-
(I) Whether an order passed under clause (b) of subsection (1) of section 5 of the West Pakistan Maintenance of Public Order Ordinance, 1960, which purports to restrict the movements of a person within a specified area but puts no restriction on him in that area amounts to an order of detention
(2) If the order is not one of detention, can any direction be given by this Court either under section 491 of the Code of Criminal Procedure under which the petitions v& ere made or any other provision of law
(3) Does the information supplied to Lal Khan and Mirza Muhammad Ibrahim with a view to enabling them to represent their cases to Government satisfy the provisions of sub section (5) of section 5 of the Ordinance and if not what is the effect
(4) Should any relief be granted, and if so, what
(5) What is the effect of section 23 of the Ordinance which is in the following terms:-
" Except as provided in this Ordinance, no proceeding or order taken or made under this Ordinance shall be called in question in any Court and no civil or criminal proceeding shall be instituted against any person for anything in good faith done or intended to be done under this Ordinance."
6. I will first of all deal with the question whether, in view of section 23 of the Ordinance which has been reproduced in the last paragraph, there is jurisdiction in this Court to pass an order in favour of the persons to whom the petitions relate. There can be no manner of doubt that the section is intended to oust the jurisdiction of Courts with regard to orders passed under the Ordinance, but the question that arises is to what extent the jurisdiction is ousted. The jurisdiction to issue orders of the nature of habeas corpus has been with High Courts for a very long time. Originally when the present Code of Criminal Pro cedure (Act V of 1898) was passed in 1898, jurisdiction to pass an order under section 491 thereof was conferred only on three High Courts, namely, those of Calcutta, Bombay and Madras, which were called Presidency High Courts. By an amendment brought about in the section in 1923, by means of section 3 of the Criminal Procedure Code (Amendment) Act, 1923 (XII of 1923), the power to issue orders under section 491 of the Code of Criminal Procedure was conferred on all High Courts. Another change which was brought about by the above-mentioned amend ing Act of 1923 was that whereas in the beginning an order under section 491 of the Code of Criminal Procedure could be passed only with regard to persons within the ordinary original civil jurisdiction of the three High Courts that had power to act, the amending Act conferred jurisdiction on all High Courts to pass orders with regard to persons in places within the limits of their criminal appellate jurisdiction. The marginal note of section 491 of the Code of Criminal Procedure is to the effect that the High Courts could issue directions in the nature of habeas corpus. The position continued like this till the Partition of British India to which territory the Act was applicable, but sometime in 1953, section 223-A of the Government of India Act, 1935, which Act continued to be the Constitution of Pakistan for quite some nine years after its establishment, was added. This section gave the High Courts powers to issue some writs including that of habeas corpus and the power continued till the 23rd of March 1956, when the Constitution of the Islamic Republic of Pakistan came into force which Act of 1956, conferred powers of issuing writs on the High Court. The Act of 1956 was abrogated on the night of the 7th October 1958, when the whole of Pakistan was placed under Martial Law but even during the Martial Law regime powers of the High Court to issue writs of habeas corpus continued because a provision to issue those and some other specified writs was made in the Laws (Continuance in Force) Order, 1958. Then came the Constitution which is now in force, namely, the Constitution of the Republic of Pakistan, of which the commencement day was the 8th of June 1962. This Consti tution placed the matter on a footing which would make it clearly understood by everyone including persons who do not possess any knowledge of technical expressions used in laws of some countries. By this I mean that while section 223-A of the Government of India Act, as amended from time to time, and Article 170 of the Constitution of the Islamic Republic of Pakistan, as well as the Laws (Continuance in Force) Order, 1958, said that a writ of habeas corpus and certain other writs could be issued, the new Constitution in its 98th Article confers the power to pass precisely the same orders but is couched in a language which is easily understood and does not require knowledge of difficult expression used in some laws to understand what jurisdiction was being conferred and at the same time makes it unnecessary that the formalities which attach to the issuing of writs in countries the Courts of which have had powers to issue writs for many a decade. By its 98th Article, the new Constitution confers on High Courts the power to set free persons detained in unlawful custody and it is noticeable that while with regard to certain other orders mentioned in the said Article, the High Courts can grant relief only at the instance of a person aggrieved, no such restriction with regard to the person who can move the High Court is placed when the matter brought before the Court relates to setting at liberty a person detained without lawful authority.
7. That the power to set at liberty a person who is unlawfully detained exists in this Court by virtue of Article 98 of the new Constitution is hardly open to question, and if in this regard there is any conflict between the Ordinance and the Constitution of the Republic of Pakistan, it is undeniable that the provisions of the Constitution will prevail because though the Constitution keeps alive the laws passed before the coming into force of itself, those laws can continue in force only if they are not re pugnant to it, It follows, therefore, that even if section 23 of the Ordinance has, in any manner, curtailed or restricted the jurisdiction of this Court to pass appropriate orders with regard to setting at liberty persons who are unjustifiably or improperly detained, the Court will be competent to pass those orders by reason of the powers enjoyed by it under Article 98 of the Con stitution of the Republic of Pakistan.
8. But I am clear in my mind that even if Article 98 of the Constitution of the Republic of Pakistan could not be invoked with regard to the power of this Court to pass appropriate orders concerning persons who were unlawfully detained, section 23 of the Ordinance could not be a complete bar to the exercise of that jurisdiction. It will be noticed that section 23 of the Ordi nance bars the jurisdiction of Courts only in those cases in which the order impugned before them has been passed under the Ordinance. In other words, if the order is justified by the pro visions of the Ordinance, and none of those provisions clothes the order with an infirmity, the powers of the Courts to rectify the harm ensuing from those orders shall not exist. If, however, the impugned order does not fall within the four corners of the Ordinance, the power to this Court to issue an appropriate order would exist provided it does exist under the ordinary law of the land. I have no hesitation in saying that section 23 of the Ordinance can operate against the person who seeks an order from this Court only if it cannot be shown by him that the impugned order does in some manner contravene the very law under which it purports to have been passed. What I have said above may well be illustrated by one or two examples. If for example an order detaining a person is passed on grounds for which no order of detention can be passed under the Ordinance, it can hardly be doubted that the order could not be claimed to have been passed under the Ordinance. Or if an order is massed with an ulterior motive and order is passed with an ulterior motive an words which would make it appear that the order was passed for the purposes mentioned in the ordinance are used therein as a blind the powers of the Court to rectify the injustice thus perpetrated could not be taken away provided the person who wants the Court to set naught the order which purports to have been passed under the Ordinance can satisfy the Court that the order was entirely mala fide. This burden, which the applicant would have to discharge would be rather heavy and though it is true that it would be but in rare cases that evidence would be available to prove that the order was not passed for the reasons for which it purports to have been passed, it cannot be said that the task of the person who presents an application in the Court for exercise of its powers would be impossible of accomplishment. If, however, it cannot be established that the order was passed with an ulterior motive or that it was not justified by the provisions of the Ordinance, the powers of the Court to pass an order under Article 98 of the Constitution of the Republic of Pakistan or section 491 of the Code of Criminal Procedure could not be said to exist. For example, if it were established that though the material on the basis of which the authorities had passed the order actually existed, but the Court were of the view that it was insufficient to justify the order, in other words if the view of the Court were that the order could not leave been passed as distinguished from its being an order that could not have been passed, section 23 of the Ordinance would stand in the way of this Court to exercising the powers to set a man at liberty if approached under section 491 of the Code of Criminal Procedure, and the position would, in these circumstances be precisely the same even if the Court were considering whether or not its powers under Article 98 of the Constitution of the Republic of Pakistan be exercised. What have said with regard to the matter will have made it clear that the jurisdiction of this Court to set a detenu at liberty would exist only in certain circumstances and cannot be said to have been taken away by means of section 23 of the Ordinance whatever the circumstances of the case might be. It follows therefore, that the Court will have jurisdiction if it were established that the order was of a nature which could not at all have been passed under provisions of the-Ordinance.
9. I will now take up one of the other questions that arise, namely, whether an order passed under clause (b) of subsection (1) of section 5 of the Ordinance amounts to an order of detention as would attract the provisions of law under which the applica tions have been made namely section 491 of the Code of Criminal Procedure which reads as under :-
"(1) Any High Court may, whenever it thinks fit, direct-
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law ;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty ;
(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court ;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioner for trial or to be examined touching any matter pending before such Court-martial or Commissioner respectively ;
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial ; and
(f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attach ment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818, Madras Regulation II of 1819, or Bombay Regulation XXV of 1827, or the State Prisoners Act, 1850, or the State Prisoners Act, 1858."
What should be deemed to be detention for the purposes of section 491 of the Code of Criminal Procedure has not been defined either in the section itself or in the Code and it would be for the Court to determine what restraint on the liberty of a person would amount to detention for ending which the powers of the Court could be exercised under section 491 of the Code of Criminal Procedure. Mr. Mahmud Ali Qasuri, Advocate, who before the Full Bench argued the case on behalf of both the persons alleged to be detained contended that because neither of them could leave the village in which he was directed to remain, the order amounted to one of detention and could not be held, merely by reason of the fact that the limits of the place within which the person had to remain were not as close to each other as those of an ordinary jail, to be an order to which section 491 of the Code of Criminal Procedure did not apply. Now, if a person were detained in a room, the position would not alter materially if the walls of that room were moved from their original place and constructed at a very great distance from the place where they originally stood. Another way of looking at the matter is to consider whether the position would have been any different if the village in which either of the detenus was to remain and which he could not leave without the permission in writing of the Superintendent of Police in whose jurisdiction the village is situate if the village were a jail because even when a person is in jail he can come out of it with the permission of the person who has been put in charge of the jail in which he is confined. It appears to me that on principle there is but very little difference between the place which is walled on all sides and one which though it has no walls around it the person directed to remain in it cannot go away from it without permission of someone or without the risk of some injury to himself.
10. That if either of the detenus left the village in which he has been directed to remain consequences detrimental to him would follow is hardly open to- question. He would be making himself liable for being imprisoned under the orders of a Court because a provision to that effect exists in section 13 of the Ordinance. But if this were the only result that could follow, it would have had but little effect. One finds, however, that section 12 of the Ordinance confers on the Provincial Government authority to enforce the order which has been passed with regard to a person to remain in the place in which he has been directed, under clause (b) of subsection (1) of section 5 of the Ordinance, to remain. If for example one of the persons whose cases are being dealt with were to leave the village within which he has been directed to remain, the Provincial Government could enforce its order by using force by virtue of the power conferred by section 12 of the Ordinance and he could be arrested for being put back in the village. The fact that the Government can use force to enforce the orders which are under consideration in theses cases and the result of the orders clearly is that neither of the persons against whom they were passed can leave the village in which he has been directed to remain unless he has obtained the permission in writing of the Superintendent of Police of the district in which the village is situate and if he did leave without such permission he could be bodily lifted and put back in the village would make it appear that the persons concerned are undergoing a detention.
11. The learned Advocate-General for West Pakistan contended that as each of the detenus was at liberty to leave the village if he so chooses because no precautions were being taken to prevent their leaving, the case is not one of detention and in this con nection relied on a case decided by the Supreme Court of America which is reported as Philip S. Wales v. William C. Whitney (114 U S R (L E) 277) wherein it was held that the mere fact that a high-ranking officer of one of the armed forces had been informed -that he was under arrest and was not to leave a certain place, his case could not be treated to be one of detention and, therefore, did not attract the habeas corpus jurisdiction of the Courts. It appears to me that the decision in that case was to a very great degree influenced by the fact that the person alleged to be detained was a member of one of the armed forces and had been directed to remain at a particular place so that he could be available for being tried as soon as preparations for the trial had been made. Moreover, I am not in a position to say whether the order in that case could be enforced by the arrest of the person concerned and he could be taken to the place which he had been directed not to leave. Another case on which the learned Advocate-General placed reliance was a Single Bench decision of the High Court of Judi cature at Lahore reported as Muhammad Umar v. The Crown (P L D 1955 Lah. 180). This decision of the learned Single Judge was considered by a Division Bench of this Court in Rao Mehroz Akhtar v. The D. M., Dera Ghazi Khan (P L 13 1957 Lah, 676) and held not to have laid down the law correctly. Having given the matter my anxious consideration I have arrived at the conclusion that though the decision in Rao Mahroz Akhtar's case to the effect that the order considered in that case was ore of detention for which habeas corpus writ could issue was based mainly on the provisions of Article 11 of the Constitution of the Islamic Republic of Pakistan which remained in force from the 23rd of March 1956 to the 7th of October 1958, yet the view expressed by their Lordships in the course of their judgment that the order in that case which was in no material respect different from the orders that are under consideration now was an order of detention to set side which a writ of habeas corpus could issue was an entirely correct enunciation of the law. I would, therefore, hold that if it be established that the two persons concerned could be set at liberty on the ground that they are under illegal or improper detention, the Court would be fully competent to pass an order terminating that detention.
12. I will now consider the question whether the information supplied to Lal Khan and Mirza Muhammad Ibrahim under subsection (5) of section 5 of the Ordinance is defective in any D regard, and if so, what effect the defect if it exists, has. It will be noticed that subsection (5) of section 5 of the Ordinance makes it incumbent on the authority that passes the order under any of the clauses of subsection (1) of section 5 of the Ordinance to let the person against whom the order is passed know, within fifteen days of the beginning of the order, the reasons for passing the order so that he may represent his case- to the authority that had passed order to his detriment. The information sent both to Lal Khan and Mirza Muhammad Ibrahim, whose cases are under consideration, was precisely the same, namely, that on receiving information that the order against the person concerned was called for, the Governor of the Province of West Pakistan was passing the order. This information was sent to each of them on the very day that the order of detention was passed by the Governor in both the cases. That the information supplied is sketchy admits of no doubt but the question that arises is whether the fact that the information supplied was not sufficient in the opinion of the Court, the provisions of subsection (5) of section 5 of the Ordi nance can be deemed not to have been complied with. There is considerable force in the contention of Mr. Mahmud Ali Qasuri, the learned counsel for the petitioner that sending information to a person that he had been detained under a law which permitted detention because it was believed that he had indulged in things on the basis of which an order of detention could be passed is hardly and information for the reason that under the law the order could not have been passed if the provisions of law had not been believed to have been satisfied and I am clear in my mind that the information contemplated by the fifth subsection of section 5 of the Ordinance must be information that would afford the detenu enough information for representing to that authority that passed the order of detention that the material that had been acted upon for passing the order was either incorrect or did not justify the order of his detention on the ground that the acts or omissions of which the detenu had been believed to be guilty did not fall within the four corners of the law under which to the detenu disclosed none of the grounds for which the order of detention could be passed it is obvious that the Court will have to hold the order invalid and will give relief to the persons who had been detained.
13. But though I have held that under subsection (5) of section 5 of the Ordinance a detenu is entitled to be given infor mation so that he may make a representation against the order, the question whether or not the order of detention be held to have become invalid on the ground that the information was defective will depend on facts of each case. Cases can arise in which the information supplied may appear to the Court to be insufficient but had been accepted by the detenu to be sufficient for giving him the necessary information, in which case it is obvious that occasion will not arise for the Court declaring that the order of detention had become invalid for the reason that the thing which had to be done had not been done. If for example, the information sent to a detenu be that his detention had been considered necessary because of what he had done on a date specified in the order, the infor mation may not appear to the Court to be sufficient but may have been sufficient to give the requisite information to the detenu who, acting on that information, had made a representa tion against the order of detention on the consideration of which representation even the detention had not been set aside. It is obvious that in a case like this the detenu concerned cannot go to Court to claim his release on the ground that his detention had become illegal from the moment the authority that passed the order omitted to do a thing which had to be done under the law. It will be noticed that it is clearly mentioned in subsection (5) of section 5 of the Ordinance that the authority inking an order under subsection (1) of that section may refuse to give informa tion to the detenu on the ground that its disclosure will be against the public interest. If, therefore, the information sent to the person concerned by the authority . . . . . ... . that passed the order appears to the Court to be insufficient for the purpose for which the information had to be sent, the Court cannot give relief to the person unless it is satisfied that though the information given may be insufficient the reason for withhold further infor mation was not that the authority that passed the order was of the view that disclosure of further information would be against the interest of the State. It would appear from the provisions of subsection (5) of section 5 of the Ordinance that a detenu can ask for further information .which the authority passing the order of detention may or may not supply. If refusal to give further information is based on a ground other than the necessity of withholding it in the interests of the State, the Court will have no hesitation in coming to the conclusion that subsection (5) of section 5 of the Ordinance had not been complied with and the detention had ceased to be lawful. If, however, the original information is not implemented on the ground that the interests of the State prohibit the disclosure of more information no occasion for an order of release will arise because if an order of detention passed by a competent authority does not contravene any of the provisions of the law under which it was passed, the case cannot be one of illegal detention. The case would be entirely different if no information has been sent to the . . . . detenu at all because that would be a complete disregard of the relevant provision. A number of judicial decisions was cited to show that when the law required that the person who is detained should be given information that would enable him to make a representation and no information is given at all, the case was one of illegal detention from the date that the information should have been given, but I need not cite those authorities because I am clear in my mind that the considerations which apply to cases where no information is given at all stand on a different footing from those in which the information supplied is criticised on the ground that it is insufficient.
14. Now, in the present two cases, as already indicated, all the information that was sent to each of the two detenus was that the Governor of Vest Pakistan was satisfied that there were strong grounds to believe that the activities of the person concerned were prejudicial to the public safety and the main tenance of public order. It was further said that the person concerned had the right to make a representation in writing and it was with a view to enabling him to make the representation that the information had been given to him. It is undeniable that the information supplied to the detenu could not be described as information of any sort and that the information could be of no use to the detenu. The term . . . . . . "acts prejudicial to the maintenance of public order" is not defined in the Ordinance but the explanation appended to subsection (1) of section 3 is to the effect that dealing in the black-market or hoarding as defined in the Hoarding and Black Market Act, 1948, and an act of smuggling punishable under the Sea Customs Act, 1878, or the Land Customs Act, 1924, or under any other law for the time being in force, is an act prejudicial to the maintenance of public order and the order passed by the Governor could mean that the detenu concerned had been guilty of any, some, or all of the above-mentioned misdeeds and even of many an other. Can anyone seriously urge that any person can make a representation on the basis of the information which as regards the reasons for his detention makes the detenu no wiser than he was before he was put in detention. It is true that subsection (5) of section 5 of the Ordinance gives the authority that posses the order of detention option of refusing to disclose facts the disclosure of which in the opinion of the authority would be against public interest, but it is not possible to hold that the authority that passed the order of detention can merely copy out the provisions of the Ordinance wherein it is stated on what grounds an order of detention can be passed and claim that the information supplied was sufficient to satisfy the law because in the opinion of the authority disclosure of any further information would be against public interest. Deprivation of a person of his liberty without trial in a Court of law is an extraordinary power which should not be allowed to travel beyond the limits fixed for it by the law which allows it. The information which can be withheld under the provisions of subsection (5) of section 5 of the Ordinance on the ground that its disclosure would be against public interest cannot be infor mation without which it would not be possible for the detenu to make a representation. "While, therefore, it would be open to the authority that passed the order of detention to refuse to disclose the source from which information had come to it, it would not be open to the authority to refuse to disclose to the detenu a to information about what he is suspected of having done. It is neither easy nor necessary to detail all the circumstance to which the provisions of subsection (5) of section 5 of the Ordinance may be held to be applicable but it is hardly open to question that the provision cannot be invoked to deny the detenu information with regard to what he is suspected of having done.
15. This brings me to the question what order should be passed. A statutory provision of the Ordinance has been ignored by the authority that, passed the order of detention and as that provision gives the detenu a right which has been denied to him, I have no hesitation in holding that from the last day on which information contemplated by the Ordinance had to be supplied to each of the detenus, under subsection (5) of section 5 of the Ordinance such information is to be supplied not later than 15 days from the service of the order on the person concerned and it is clear that as soon as fifteen days elapsed from the date of the order of detention in each of the two cases the detention which was legal in its inception became illegal. One way of dealing with the matter is to direct that information be supplied while the other is that the detention should be terminated as it is no longer according to law. If it were a case of information being defective in some minor detail the order of the first of the above two kinds would have been appropriate but the circum stances of the present two cases call for the issue of an order of release of the detenus, and I would direct accordingly.
16. In view of what I have said above, my answers to the questions that were formulated before the hearing started, are as follows :-
(1) An order passed under clause (b) of subsection (1) of section 5 of the Ordinance amounts to an order of detention.
(2) As an order passed under clause (b) of subsection (5) of section 5 of the Ordinance is one of detention, the Court can in suitable cases pass an order releasing the detenu if circumstances justify such an order.
(3) If the information supplied under subsection (5) of section 5 of the Ordinance is in sufficient, the Court can pass an order of the release of the detenu, but whether or not such information is sufficient is a question of fact in each case and the mere fact that the information supplied appears to the Court to be insufficient is not conclusive for holding that it actually is so. If the information supplied to the detenu was considered by him to be sufficient, the Court cannot hold that it was insufficient nor can the Court hold the information to be insufficient unless it is satisfied that more details were not withheld on the ground that their disclosure would be against the interests of the State.
(4) In the present case each of the detenus has been established to be entitled to have an order of release issued in his favour.
(5) Section 23 of the Ordinance is not a complete bar to the jurisdiction of the Court to give suitable directions with regard to an order passed in exercise of the power conferred on the authority passing the order by the Ordinance because if the order does not comply with the provisions of the law by reason of which the power to pass it had been exercised the order cannot be deemed to be one covered by section 23 of the Ordinance and power to issue suitable directions will exist.
-Two separate and independent peti tions under section 491, Cr. P. C. have been referred to this Full Bench for final disposal. Since they raised identical questions they were heard together. The petitioner in either case was served with an order under section 5 of the West Pakistan Maintenance of Order Ordinance, 1960, referred to hereinafter as the Ordinance, requiring him not to go outside the boundaries of the village specified in the order. In both cases a statement, which in effect amounted to no more that saying that the appro priate authority was satisfied that grounds which the Ordinance prescribes in the most general terms as being sufficient to make an order under it, exist in the particular case, was supplied to the person concerned, in pursuance of the -mandatory requirement of the Ordinance that grounds on which the order is based must be supplied to the person in respect of whom an order is made, within a specified period, evidently in order to enable him to exercise the right given to him to make a representation against the order. In both cases the complaint is that the statement which purports to be a statement of the grounds, is in fact no such thing. In neither case has a represen tation been made and it is the case of both petitioners that they do not know what to represent against. It is contended on behalf of both that though the orders in question might not have suffered from any infirmity when they were made, they ceased to have any validity as soon as the period specified for supplying a statement of the grounds of the order, expired.
[Note.-In fact the petitions were moved by other persons, but as explained later in this judgment, I am treating the persons in respect of whom the orders were made, as the petitioners in these petitions.]
2. It is contended on behalf of the respondent that this Court has no jurisdiction to entertain these petitions because section 23 of the Ordinance provides that no order made and no proceedings taken under the Ordinance shall be called in question in any Court. It is urged that this operates as a bar against all exercise of jurisdiction relating to this Ordinance. I am of the opinion that this contention is not well founded. At distinction must be drawn between those orders and proceedings which satisfy all the requirements which the law lays down as conditions on which and limits within which the power conferred by the statute are permitted to be exercised, and those others which fail to satisfy those requirements. The former are protected. The latter are not. If an order or proceeding goes beyond the limits prescribed by the statute or contravenes conditions laid down by the statute, it is not under but outside the statute ; and the bar of jurisdiction is in respect only of those orders and proceedings which are under the statute. The jurisdiction of the Court to decide whether a particular order or a given proceeding is or is not under the statute has not been taken away by section 23 of the Ordinance. Indeed, so far as this Court is concerned, that jurisdiction could not be taken away without an amendment of the Constitution, even if a statute attempted to do so. The jurisdiction to decide whether an at in within or outside the powers conferred by law is vested in this Court by the Constitution in order to enforce the guarantee to the individual at all times to enjoy the protection of law and always to be treated in accordance with law and never to be treated otherwise be the birth-right of every citizen of this State and the right of every other person who may set foot on this sacred soil. That power of this Court is a trust and its exercise in all appropriate cases within the limits of the constitution. A duty which this court cannot lay aside. It is clear to me that section 23 of the Ordinance is not and was never intended to be a bar against the jurisdiction of any Court to decide whether a particular order or proceeding was or was not under and within the Ordinance
4. The question for decision is whether what was furnished to the two petitioners as grounds, satisfied the requirement of the statute. That requirement is put in the following words in the fifth subsection of the fifth section of the Ordinance :-
"Where an order has been made . . . . the authority making the order shall, as soon as may be, but not later than fifteen days from the date of the service of the order, communi cate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so:
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."
5. The object of this provision clearly is to give to the person concerned as full, as effective and as expeditious a right to make a representation as may be consistent with the purposes of the Ordinance. "Grounds on which the order was made" must, therefore, in the context mean such disclosure of facts as would inform him of the circumstances appearing against him and enable him to put his version before the Government. That the disclosure has to be of the facts themselves, and not of the conclusions drawn from those facts by the authority making the order, is made further clear by the existence and the language of the proviso. If the disclosure of the conclusions in terms of the statute were enough, there would, in the first place, be no need for this provision itself, for even without that disclosure, the person concerned can presume that the authority making the order would, if asked, say that in its opinion sufficient grounds exist for making the order. In the second place, if that were so, there would be no need for the proviso expressly exempting the authority from the disclosure of certain facts of a particular kind. Quite apart, however, from the obvious distinction between a disclosure of the grounds them selves, and an assertion as to the existence of grounds which in somebody's opinion are sufficient for some purpose, there are other and weightier reasons for thinking that the Legislature could never have intended that this provision should be complied with in any but the most careful manner.
6. Personal liberty is a basic human right of every indivi dual. An invasion of that right is a matter of most earnest and anxious concern. When that invasion is made without prior opportunity of being heard, a responsibility is cast upon those who in the interest of the State, or of the well-being of society are required to perform this onerous duty, to exercise a degree of care and caution which would reduce the ex parte nature of that invasion to a minimum. The Ordinance we are dealing with permits such an ex parte invasion of liberty. If then it brings as a substitute a post facto opportunity of making a representation that opportunity must be as. real, as effective, as full and as speedy, as it possibly can be in the circumstances. Since it can never in fact be a substitute for a prior opportunity, every effort should be made to reduce its ineffectiveness, and nothing must be done to take away from whatever protection it might provide.
7. What has been furnished to the petitioners as grounds in these two cases are not grounds at all but merely assertions as to the satisfaction of the authorities regarding the existence of grounds which have not been disclosed. They have riot even been broadly told which of the various categories enumerated in the statute they are supposed to fall in. For the purposes of making representation against the orders, they are not in the slightest in a better position, after being furnished with the so-called grounds than they were before receiving them. I have no doubt that the mandatory provisions of the fifth subsection of the fifth section of the Ordinances have not been complied with.
8. Since the period during which compliance is permissible is over, and there is no power in any Court or authority to extend it, we cannot now direct that compliance be made. The only other consequence can be that the continued operation of both the orders in question be declared to be without lawful authority and of no legal effect.
9. Before parting with this case, there is one other question which it is advisable to decide because at the initial stages of these proceedings it was of particular importance. Indeed it was the question which necessitated this reference to the Full Bench, but it lost its importance for the decision of these petitions at the hearing.
These petitions were filed under section 491 of the Code of Criminal Procedure by persons other than those in respect of whom the orders had been made. The prayer was that they be brought before be the Court to be dealt with in accordance with law. It seemed doubtful whether such an order could be made in respect of a person who was in no one s custody. Through section 491 does not in its first subsection refer to custody the very expression that a person be brought implies that the one who is being directed to bring him exercise some control of a physical nature over its movements. In these two cases, the orders were only served upon the petitioners telling them not to go out of certain boundaries. It seemed doubtful whether this amounted to custody, but even if it did, if they were to be brought to the Court, an order would have had to be made requiring someone first to take them into custody and then to bring them to Court, and it seemed that such an order perhaps could not be lawfully made. The power under Article 98 of the Constitution also 'seemed doubtful in relation to these, proceedings. Under a first paragraph of clause (b) of the second sub-Article of that Article power is given to-this Court to act on the application any person but the power is available only, in respect of persons in custody Under the second paragraph of clause (a) of that sub-Article, the Court is given the power to declare any act or proceedings to have been without lawful authority and of no legal effect, but that power can be exercised only at the instance of a person aggrieved. Since the petitions had not been filed by the persons concerned themselves, the issue whether the serving of the orders in question did or did not amount to custody assume importance. At the hearing, however, a power-of-attorney executed by one of the petitioners and an affidavit by the other were produced and placed on the record, in which the persons affected themselves sought permission to become petitioners. There being so far no formal requirements of a procedural nature in relation to this matter we did not think it necessary to require an amendment of these petition and proceed to hear them as if they had been filed by the aggrieved parties themselves. It is for this reason that I have referred to the persons in respect of whom the orders were passed as petitioners, throughout this judgment.
10. Having had the advantage of hearing learned arguments and examining a large number of decided cases, that were most ably analysed at the Bar. I have come to the conclusion that the restrictions placed on the movements of the petitioners in these cases do amount other being in custody. It seems to me that the essence of custody in that there should be a lack of freedom to move about where and when one pleases coupled with a physical power immediately available to prevent an attempt at breaking the restrictions imposed as distinguished from the power subsequently to punish for a breach of these restrictions. If a person has been ordered that he must not go beyond certain boundaries, but there is no physical impediment or threat of physical force to ensure that he does not go outside those boundaries, there would in my opinion be no confinement and no custody, even though that person may be liable to be punished in due course of law if he did go out. On the other hand, if he is told that he must not go beyond those boundaries and he sees, or is told that if he did, physical force would be available to prevent him doing so, there would in my opinion, then be no difference of kind between his confine ment or custody and that of a person confined in a jail, though there would, of course, be a difference of degree.
11. The Ordinance by its twelth section does make physical force available to ensure that orders made by an authority exer cising powers under the Ordinance are enforced and not broken. The existence of this power in my opinion puts the matter beyond doubt in the circumstances of these two cases. A general appli cation of the definition of custody I have attempted to give may perhaps lead to some difficult questions. What for example will be the position if exit from a country without permit were to be prohibited and guards were posted at various points of exit, to ensile that no one who did not have the requisite permission left the country or again if on account of disturbances or infection in any area it were to be cor doned off and entry into or exit from it were to be prohibited and prevented It may well be that these are also instances of custody, but I shall not attempt to answer these hypothetical questions.
12. Both these petitions should be accepted and the peti tioners should have their costs from the respondent.
I have had the advantage of seeing the judgment of my brother Shabir Ahmad J., and concur in the conclusions arrived at by him.
ABDUL AZIZ KHAN, J.-
I have had the advantage of going through the order proposed by the Chief Justice and Shabir Ahmad J., and agree that these petitions have to be accepted. I may, however, add the following
2. Muhammad Umar v. The Crown (P L D 1955 Lah. 180) is a case decided be fore the coming into force of the Constitution of the Islamic Re public of Pakistan which was, however, abrogated on the 8th of October 1958. That decision, therefore, has no relevancy for the purposes of the present cases.
The decision in Rao Mahroz Akhtar v. D. M., Dera Ghazi Khan is based on Article 11 of the late Constitution. The Article read as under:
"Subject to any reasonable restrictions imposed by law in 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 present Constitution has a similar provision, Article 5 reads as follows :-
"(1) No law should impose any restriction-
(a) On the freedom of a citizen to move throughout Pakistan or to reside or settle in any part of Pakistan;
(b) on the freedom of a citizen to acquire, hold or dispose of property in any part of Pakistan.
(2) This principle may be departed from where it is necessary so to do in the public interest."
The view taken in Rao Mahroz Akhtar v. D. M. Dera Ghazi Khan, in my opinion, applies to the present petitions.
BY THE COURT
In order that there should be no doubt we add that decision of the Full Bench is that these petitions are accepted with costs and the detenus are to be set at liberty.
A. H. Petitions accepted.
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