' This Constitutional petition calls in question the detention of petitioner, Abdur Rashid alias Master Rashid son of Nizam Din, who was directed to be placed under preventive detention for a period of three months under C. M. L.
0. 12 by the order of the respondent D. M. L. A., Rawalpindi, on 19-12-1979. The Detaining Authority was directed to produce the material and the record on the basis of which the detention order has been made. Learned A. A.-G. Did so on 30-1-1980.
2. The petitioner is admittedly the President of the Labour Union of the Rachna Textile Mills, Gujjar Khan, where he is employed as a Head Jobber. According to the allegation contained in the petition, which is borne out by the record, the petitioner has been ordered to be detained on the basis of his involvement in the occurrence of December 11, 1979, an account of which is given in F. I.
R. No, 234, registered under section 307/325/148/149, P. P. C. At P. S., Gujjar Khan on 11-12-1979, at the instance of Ijaz Ahmad, Spinning Manager of the Rachna Textile Mills. According to the F. I. R., the informant and three other Officers were attacked by Nazar Hussain and six others, resulting in serious injuries to him and two of his colleagues. The incident is stated to have occurred on account of the petitioner and Nazar Hussain, afore-referred, having been charge-sheeted by the Labour Department and the Mills Management respectively.
3. According to the memorandum containing the grounds of detention, the petitioner is stated to habitually indulge in criminal activity, having been involved in the following cases:- AO F. I. R. No, 131 dated 12-8-1964 under section 308, P. P. C. P. S. Cantt., Rawalpindi.
(b) F. I. R. No, 134 dated 7-9-68 under sections 148/149/452/307 and 364, P. P. C., P. S. Warburton, Tehsil and District Sheikhupura.
(c) F. I. R. No, 1135, dated 7-9-1968 under sections 148/149/3071;53 and 332, P. P. C., P. S. Warburton, Tehsil and District Sheikhupura.
(d) F. I. R. No, 115 dated 6-10-1969 under sections 148/149/452 and 320, P. P. C., P. S. Warburton, Tehsil and District Sheikhupura.
(e) F. I. R. No, 115 dated 6-10-1972, under sections 148/149, 324/325 and 452, P. P. C. Police Station Jatli, Tehsil Gujjar Khan, District Rawalpindi.
(f) F. I. R. No, 158 dated 15-7-74 under sections 379/307/365, 506/148/149, P. P. C., P. S. Gujjar Khan, District Rawalpindi. In this case you were convicted by the Court of A. C. Guar Khan, for 5 years. You are now on bail by the High Court till the proceedings start.
(g) You were involved in a case under section 307, P. P. C. Pending in the Court of Magistrate, Section 30, Gujjar Khan."
4. It is not denied on behalf of the ,petitioner that he was involved in the cases enumerated above, excepting one. However, it is stated that he was convicted only in one case. A. S. I. Awais Muhammad, S. H.
0., Gujjar Khan, who produced the past record of the petitioner did not deny that the petitioner had been acquitted in the cases arising out of F. I. Rs, Nos, 131/64, and 115/72, was discharged in the cases arising out of F.
1. Rs, Nos, 114/68 and 1135/68 and was neither named nor challana in F. I. R. No, 115/69. The petitioner was, however, convicted in the case arising out of F. I. R. No, 158/74 and sentenced to undergo 5 years' imprisonment against which sentence an appeal is pending disposal before this Court.
Learned A. A.-G. Stated that the case registered under F. I. R. No, 234 on 11-12-1979 has been investigated, and on 31-1-1980 a challan has been submitted against seven persons excluding the petitioner. It was stated by learned A. A.-G., that no punitive action was initiated against the petitioner, despite his being named in F. I. R. 234, that it was decided to proceed against him on the preventive side, and accordingly he was ordered to be detained on 19-12.1979.
5. The ground for the detention of the petitioner is:- "You are involved in cases of criminal trespass, violence, attempt to murder, kidnapping, armed conflict and use of arms in conflict. Again you started up trouble in Rachna Textile Mills, Gujjar Khan, employing 1290 workers on the evening of 11th December, 1979, as a result of which three Officers of the Mills were seriously injured and another received minor injuries. It becomes clear from your activities over the years that your future designs will be detrimental to the purpose for which Martial Law has been proclaimed."
6. There is a clear distinction between preventive detention and punitive detention. Preventive detention is based on apprehensions and its purpose is to obviate apprehended future acts, whereas the purpose of puniti confinement is to punish the wrong doer. As pointed out in Amina Yaqub v. District Magistrate (1), preventive detention is essentially designed to contain future activities of the detenu. However, this does not mean that preventive action cannot be taken against a person on the basis of his past conduct. In this context it was observed by the late Chief Justice Tufail All A. Rehman, in Abdul Hamid v. District Magistrate (2), that:- "I am fully in agreement with the argument that a law of preventive detention could not be used for the purpose of punishing a person for his past actions, however, blameworthy or criminal those actions might be. This is a well-established principle of law and, although Mr. Jatoi never put the argument in so many words, underlying his contention there was, (apart from the question of mala fides with
(1) PLJ 1978 Lah. 295=1979 P Cr. L J Note 75 at p. 50
(2) PLD 1973 Kar. 344 which I will deal separately), an under current, suggesting that the detenu is really being punished for what he has done that his detention is not a preventive measure taken in the interest of public order. But while it is true to say that a power of preventive detention cannot be used for punishment this is not the same thing as saying that the past conduct of a person cannot be the basis of the authorities' satisfaction that his detention is necessary as a preventive measure.
Indeed unless there is something which the detenu has already done from which an inference could properly be drawn that his conduct in the future is likely to be prejudicial to one of the purposes which the law seeks to serve I can hardly conceive of a case where the powers of preventive detention could properly be exercised. The contrast between the two kinds of action was admirably stated, if I may say so with respect, by Mr. Justice Sajjad Ahmad Jan while still a Judge of the High Court in the case of Mairaj Muhammad Khan v. The Government of West Pakistan PLD 1966 Kar. 282 in which at page 287 he observed:- ' It is now well-settled that preventive detention can properly be contrasted to punitive detention, one having reference to the apprehension of wrongdoing and the other coming after the illegal act is actually committed. Preventive detention is justified by a reasonable probability of commission of a prejudicial act by the suspected person whereas his conviction can only be justified by legal evidence.
' Now upon what basis is the reasonable probability of the commission of prejudicial act to be inferred if not upon the basis of what the suspect is already known to have done? I do not say that it is not conceivable that a person should be suspected of the likelihood of future prejudicial activity except upon the basis of past conduct; in a given case an inference of this kind might possibly be reasonably drawn by reason of the suspect's own professed beliefs but since I any not dealing with a case of that kind it is unnecessary to dilate further upon this particular aspect. I do think, however, that in the great majority of cases the material upon which the likelihood of a person's future conduct will be judged will in all probability be his previous conduct." [p. 351]
7. Situations in which contemporaneous action both on the preventive and punitive sides may be necessary are not difficult to envisage. See Muhammad Asif v. D. M. L. A. (1). Indeed as observed by Sajjad Ahmad Jan, J in Mairaj Muhammad Khan v. Government of West Pakistan (2) : "As for the argument that the action of the Government under the preventive law of detention is bad as the petitioner is being prosecuted for his alleged unlawful activities under the punitive law, we find that it does not hold good legally. The two actions, preventive and punitive, are not mutually exclusive, and resort can be had to either or both, depending on the choice of the executive authority, with this limitation that the Courts will certainly interfere in aid of the accused person if it is found that the action is taken to deprive him of his legal rights and privileges arising from his trial under the punitive law by action under the preventive law, or when such action is manifestly malicious and mala fide." [p. 288]
(1) PLJ 1978 Lab. 378 =1979 P Cr. L J Note 22 at p. 15
(2) PLD 1966 Kar. 282 ' In this context reference may also be made to the following paragraph from the judgment in Muhammad Youns= V. Province of Sind (1) : "Where definite charges are brought against the detenu for substantive offences and the detenu is undergoing prosecution thereof, the administration has made up their mind and their choice, that is, that the detenu should be prosecuted for these offences, and, having made this choice, it would ordinarily not be open to the administration to also use such charge as ground of preventive detention." [p. 711]
8. Where there are allegations of lawlessness or illegal activities against a person, it is for the executive authorities to decide whether to take punitive or preventive action. The discretion is theirs. However, after it has been decided to proceed on the punitive side, and the accused is either facing trial or has been convicted, it may be difficult to justify preventive action based on the same allegations. This may amount to the utilization of the power to order preventive detention for purpose of punishment. Ref: Shams Din v. D. M. L. A. (2). The past conduct of a person, including his past record and conviction, is, and cannot but be, relevant for the purposes of, determining whether or not to detain such a person in order to prevent the repetition of such acts in future. In Masood Ahmad v. Government of Sind (3), it was observed that:- "There is no doubt that in a given case the executive authority may, on the basis of the past conduct of a person resulting in the commission of offences indicating an apprehension that such conduct would be repeated in the future, pass an order of detention. But it would be the onus of the detaining authority to show that the past instances do really indicate alongwith other materials a probability that the detenu would indulge in prejudicial activities, if not detained." [p. 315] ' This view was further elaborated in Shams Din v. D. M. L. A. Where it was observed that:- "It has been held by the Sind High Court in Abdul Hamid Khan v. District Magistrate, Larkana (2) that a law of preventive detention cannot be used for the purpose of punishing a person for his past actions, however, blameworthy or criminal those actions might be. But while it is true to say that power of preventive detention cannot be used for punishment, this is not the same thing as saying that the past conduct of a person cannot be the basis of the authorities' satisfaction that his detention is necessary as a preventive measure. It means that if a person has done something from which inference can properly be drawn that his conduct in future is likely to be prejudicial to any of the purposes which the law seeks to serve, his detention on that ground would be justified."
[p. 78]
9. However, where a person is sought to be detained on the basis of past activity or past convictions then in the words of Shafi-ur-Rehman, J. In Syed Zafar Abbas v. District Magistrate, Jhang (4) : "For invoking powers possessed under rule 208 of the Defence Pakistan Rules, it is necessary that the suspicion should be and the suspicion should relate to the detenu's having acted, or acting
(1) PLD 1973 Kar. 694 (2) PLD 1979 Lah. 74
(3) PLD 1976 Kar. 311 (4) PLD 1976 Lah. 622 or of being about to act 'inter alia' in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan". A person cannot be said to have so acted if the only factors were that in the year 1931, 1935, or for that matter, in 1953, pie was accused of having committed a cognizable offence for which a regular trial had taken place. There must be the proximity of time, the causal nexus between the activity complained of and the threat to the public safety before resort could be had to rule 208. In other words, the past bad conduct of an individual cannot be the ground for action under rule 208 unless there be the connecting material to show that such past conduct combined with such material presented an imminent threat to public safety or was already threatening it." [p. 6281
10. Prior to July, 1954, the 'habeas corpus' jurisdiction vested in the High Courts under the provisions of section 491 of the Code of Criminal Procedure, 1898. The High Courts were for the first time conferred jurisdiction to issue writs in the nature of habeas corpus, by the insertion of section 223- in the Government of India Act, 1935, by the Government of India (Amend ment) Act, 1954. This jurisdiction was continued in the same form b Article 170 of the Constitution of 1956. The Constitutional jurisdiction in th nature of 'habeas corpus', presently vesting in the superior Courts w initially conferred by Article 98 of the Constitution of 1962, and has bee continued as such by Article 199 of the Constitution of 1973. See Mumtaz Ali Bhutto v. D. M. L. A. (1), Muhammad Ajmal Khan v.
Muhammad Shafaat (2). The Constitutional jurisdiction under Article 199 is similar to, but wide than the jurisdiction conferred by section 491 of the Code of Criminal Procedure, 1898. See Muhammad Ajmal Khan v. Muhammad Shafaat; Ghulam Jilani v. Federal Government (3). The distinction between the constitutional jurisdiction of the superior Courts in proceedings in the nature of 'habeas corpus' as conferred by the Constitution of 1956, and that of 1962 was examined in 1967, by the Supreme Court in its celebrated judgment delivered on 12th May, 1967, in Malik Ghulam Jitani's case (4).
11. Before the judgment in Malik Ghulam Jilani's case the view was that the 'satisfaction' of the detaining authority was subjective in nature, i. e. The 'reasonableness' of the grounds of detention was 'personal' to the detaining authority. In other words it was not an 'objective satisfaction', and as such superior Courts would not in the exercise of their constitutional jurisdiction enquire into the reasonableness of the satisfaction of the detaining authority. The last of a long series of judicial pronouncements following this view, was that of a Full Bench of the West Pakistan High Court in the case of Nasim Fatima v. Government of West Pakisum (5). In this context reference can also be invited to Liversidge v. Anderson (6), Emperor v. Sibnath Banerji (7), Emperor v. Vintlabai Deshpande (8), Muhammad Hayat v. Crown (9) and Syed Sibte Hasan v. The Crown (10).
12. The judgment in Nasim Fatima's case was the subject-matter of the appeal in Malik Ghulam Jilani's case. The Supreme Court after an exhaustive survey of the law and the Constitution, defined and declared the
(1) PLD 1979 Kar. 307 (3) PLD 1975 Lah. 65 (5) PLD 1967 Lab. 103 (7) AIR 1945 P C 156 (9) PLD 1951 FC 15 (2) PLD 1976 Lah. 396
(4) PLD 1967 SC 373
(6) (1941) 3 A E R 238=1942 A C 206
(8) AIR 1946 P C 123
(10) PLD 1954 Lab. 142 extent and limits of the constitutional jurisdiction in the nature, of `habeas corpus', conferred on the superior Courts by Article 98 of the 1962 Constitution. It was observed:- "In the conditions existing under the Government of India Act, 1935, a conclusion such as that reached by the Judicial Committee in Sibnath Banerji's case AIR 1945 P C 156 was tenable. It was a period in which the control by the Courts of the exercise of public power by the authorities was at a minimum. The Central Government of India was in respect of matters of the highest importance, not an independent Government. Through the machinery provided by the Government of India Act, 1935, its action and operations were in those highly important respects, placed under the control of the British Government at Whitehall. It was not conceivable that in relation to a law of such critical importance as the Defence of India Act, attracting in many respects the powers of the Governor- General in his discretion, such powers being directly controllable by the Secretary of State for India, there could be any scope for the intervention of the Courts in India to control the exercise of such power. Therefore, the view taken in Sibnath Banerji's case by the Judicial Committee can be placed on a parallel with the view of the House of Lords in the case of Liversidge, 1942 SC 206 where the majority view was largely based on the consideration that the order of detention having been made by a high officer of the State, namely, the Home Secretary it should be presumed that he acted under the relevant provision in the Defence Regulations, I. e. That he had acted on reasonable satisfaction.
' Under the Constitution of Pakistan a wholly different state of affairs prevails. Power is expressly given by Article 98 to the Superior Courts to probe into the exercise of public power by executive authorities, how highsoever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final judges of their own 'satisfaction' for imposing restraints on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all its content through this process and the Courts would cease to be guardians of the nation's liberties. It is therefore impossible to construe the relevant provisions in the Defence of Pakistan Ordinance in the manner adopted by the Judicial Committee in the case of Sibnath Banerji for interpreting the somewhat similar provisions in the Defence of India Act and Rules. Clause (x) of subsection (2) of section 3 must be construed as providing the specific guidelines which control any rules as to apprehension and detention that are to be made under the power given by subsection (1) of section 3.
' On that view, it is clear that `satisfaction' of the detaining authority acting under rule 32 must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction. The power of an authority acting under rule 32 is therefore no more immune to judicial review than is the power of a Police Officer acting under rule 204. With reference to rule 29 of the Defence of India Rules (corresponding to our rule 204), the Judicial Committee felt no hesitation in finding that there was an onus upon a Police Officer to satisfy the Court that he has reasonable grounds for his suspicion. Suspicion would include belief or knowledge, whether inferential or actual. On the same reasoning, it must follow that actions by other and perhaps higher authorities, under stile 32, like all other actions relatable to the power delineated in clause (x) aforesaid, are equally susceptible of judicial review, subject, of course to the right of the State to claim privilege in respect of secret information and the Court's power to hold proceedings in camera.
' Indeed, once the authorities have placed before the Court oral evidence and other material, whose purpose is to justify an action of arrest and detention, judicial review by the Court has already been attracted and the Court cannot but be influenced in its decision by that evidence.
The learned Judges in the High Court, placing reliance on the case of Liversidge, have come to the conclusion that satisfaction under rule 32 is subjective and its reasonableness, cannot be examined in a Court of law; they in effect precluded themselves from bringing into the process of decision, the evidence which they had themselves recorded and received. On a true construction of the relevant provisions in the Constitution, the Defence of Pakistan Ordinance and the relevant rules that view appears not to be sustainable." [p. 392]
13. The issue was again raised before the Supreme Court, in Mir Abdul Baqi Baloch v. Government of Pakistan (1), where it was reiterated that:- "Under a constitutional system which provides for a judicial review of executive action, it is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to see that the executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied. It is not uncommon that even high executive authorities act upon the basis of information supplied to them by their subordinates. In the circumstances it cannot be said that it would be unreasonable for the Court in the proper exercise of its constitutional duty, to insist upon a disclosure of the materials upon which the authority had so acted so that it should satisfy itself that the authority had not acted in an 'unlawful manner'. . . . [p. 324] ' However, as I have said earlier, my reading of the majority decision in Ghulam Jilani's case to which I am a party, is that it alters the law laid down in Liversidge's case only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can in discharge of its duty under Article 98(2) (b) (i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (b) (i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review, If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the
(1) P L 1968 SC 313 authorites have purported to act. If any such material is of a nature for which privilege can be claimed, then that too would be, a matter for the Court to decide as to whether the document concerned is really so privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own -opinion for the opinion of the authority concerned." [p. 325]
14. Consequent to certain amendments in the law relating to preventive detention, the extent of the constitutional jurisdiction again came up for examination of the Supreme Court in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmir' (1). The Court re-affirmed its earlier pronouncements in Malik Ghulam Jilani's case and Abdul Baqi's case. Notwithstanding the alterations made in the sub-constitutional law and declared:- "It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub-clause (b) of clause (2) of Article 98 they advisedly left it to the High Courts to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to, the vires of the law or the Officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts.
The Court must, nevertheless, in deciding this question necessarily have regard to the language of the statute under which the power is exercised, the purpose for which the detention is sought to be made and the circumstances in which it came to be ordered. The context of the power vested by the Constitution in the High Court cannot be limited or taken away by a sub-constitutional legislation but the reference to the statute and the other factors mentioned above is rather for determining its true nature, scope and legality.
' This power as has been pointed out in the case of Abdul Baqi Baluch is not co-equal to the power of a Court of appeal or a Court of error or a review committee, for, the Court cannot claim in the exercise of this power to usurp the functions of the authority on which the power has been vested nor to substitute their own decision for the decision of that authority. Nor can the Court insist upon being satisfied that there were materials upon which it would have taken the same action. It is in this sense that it has been said that the Court is not concerned with either the adequacy or the sufficiency of the grounds upon which action is taken. But if this argument is to be pushed to the extent of saying that the Court can never even ask the authority concerned to disclose the grounds upon which it has acted then we are unable to agree, for the Court in order to be satisfied as required by the Constitution, must know that there were in fact grounds relatable to the purposes of the statute upon which the action of the authority concerned could at all have been founded after an honest application of the mind of the authority concerned to all the relevant considerations. [p. 31]
(1) P D 1%9 SC 14 ' An examination of the above pronouncements shows that in Malik Ghulam Jilani's case, the Supreme Court declared that the satisfaction of the detaining authority was to be based on reasonable grounds and that the superior Courts were required to examine whether this was so, and if not, the detenu was to be set at liberty. In the case of Abdul Baqi Baluch, the Supreme Court re-affirmed the duty of the superior Courts to pronounce upon the reasonableness of the grounds of detention, and declared that it was enough if the material before the detaining authority was such as to satisfy a reasonable person. Finally in Shorish Kashmiri's case, the Supreme Court placed reliance upon the language of Article 98 of the Constitution, and laid down that it is only when the material is such that could not satisfy any reasonable person, that the Court would declare the detention to be unlawful.
15. After the adoption of the Constitution of 1973, the extent and scope of the jurisdiction of the superior Courts under its Article 199, in proceedings in the nature of habeas corpus and as declared by the Supreme Court, in the aforenoted three cases, was examined and if I may say so with utmost respect, admirably summed up in the leading judgment of the late Chief Justice Tufail Ali A. Rehman, in Zarina Gauhar v. Province of Sind (1). Reference in this context, can also be made to the judgments in Habiba Jilani v. Federation of Pakistan (2), Abdul Hamid Khan v. District Magistrate, Larkana (3) and Mumtaz Ali Bhutto v. D. M. L. A. (4).
16. After the proclamation of Martial Law in July, 1977, it was declared by the Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff (5), which was a petition questioning the detention under C. M. L.
0. 12 of Z. A. Bhutto and others, that the Constitutional jurisdiction of superior Courts remained unaffected notwithstanding the constitutional deviation. In this context reference can also be made to a judgment of this Court in the case of Begum Nusrat Bhutto v. D. M. L. A. (6), as well as to the judgments in the Full Bench case of Mumtaz Ali Bhutto v. A M. L. A.
17. However, presently on the substantive side, the Fundamental Rights conferred by Chapter I of Part II of the Constitution, stand suspended by virtue of Article 2(3) of the Laws (Continuance in Force) Order, 1977. Begum Nusrat Bhutto v. Chief of Army Staff, Syed Alamdar Hussain Shah v. Abdul Bamer Qureshi (7), Saeed Ahmad Malik v. Federation of Pakistan (8), Rustam All v. M. L. A. (9), Mumtaz Ali Bhutto v. D. M. L. A.
18. In proceedings in the nature of habeas corpus, subject to any valid claim of privilege, this Court can require the detaining authority to lay before it the record on the basis of which the detention has been ordered and may E even inspect the documents regarding which privilege has been claimed. In the case of Government of West Pakistan v. Begum Agha Shorish Kashmiri (10), it was declared by the Supreme Court that:- "It is lawful for the Court to inspect the documents for the purpose of
(1) PLD 1976 Kar. 1257 (3) PLD 1973 Kar. 344 (5) PLD 1977 SC 657 (7) PLD 1978 SC 121 (')) PLD 1978 Kar. 736
(2) PLD 1974 Lah. 153 (4) PLD 1979 Kar. 307 (6) PLD 1979 Lah. 91 (8) PLD 1978 Lah. 1218 (10) PLD 1969 SC 14 deciding that the privilege is not being claimed inadvisedly or lightly or as a matter of routine". [p.
35] ' Thereafter, as observed by Chief Justice A. R. Cornelius in Malik Ghulam Jilani v. Government of West Pakistan (1). . . . Subject to the right of the State to claim privilege ... Once the authorities have placed before the.
Court oral evidence and the other material, whose purpose is to justify an action of arrest and detention, the Court cannot but be influenced in its decision by that evidence." [p. 393] ' Once the record has been produced before it, the Court is to determin the matter on the basis of the material produced, including the materia regarding which privilege is claimed and allowed. In detention matters, as evident from the passages in Agha Shorish Kashmir's case and Malik Ghula Jilani's case reproduced above, the only consequence of allowing privilege is that the material is not made public. See: Shams Din v. D. M. L. A. (2), If= Masood v. D. M. L. A. (3), where the Court for the purpose of validating the detention relied upon the material regarding which privilege was allowed.
19. It would now be appropriate to refer to some of the leading pronouncements touching upon the manner of exercise of the constitutional jurisdiction of judicial review.
' In this context reference can first be made to the pronouncements of the Supreme Court in this regard.
' In Abdul Baqi Baloch's case (4), it was observed:- "It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency." [p. 324] ' In Government of West Pakistan v. Agha Shorish Kashmiri (5), it was declared:- "This power as has been pointed out in the case of Abdul Baqi Baloch, is not co-equal to the power of a Court of appeal or a Court of error or a review committee, for, the Court cannot claim in the exercise of this power to usurp the functions of the authority on which the power has been vested nor to substitute their own decision for the decision of that authority." [p. 32] ' Finally in Z. A. Bhutto's case (6), in the words of Chief Justice Anwarul Haq:- "The Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority." fp. 59]
20. In elaboration thereof reference can also be made to a passage from the judgment of the late Chief Justice Tufail All A. Rehman, in Abdul Hamid v. District Magistrate (7).
(1) PLD 1967 SC 373 (2) PLD 1979 SC 74
(3) PLD 1979 Lah. 719 (4) PLD 1968 S C313
(5) PLD 1969 SC 14 (6) PLD 1978 SC 40
(7) PLD 1973 Kar. 344 "The Legislature in its wisdom has given the power to the executive authority and not to the Court to decide whether a person should and/or should not be detained. It has also refrained from giving to the Court any power of an appellate Court. Once, therefore, we are satisfied that the detaining authority had before it such material as could induce reasonably an inference of the kind drawn and that the authority did draw such an inference it is not, I think, for us to substitute our own judgment and say that, had we been in the place of the executive authority, we would not have ordered the detention of the detenu." [p. 357] ' The same learned Judge reiterated the proposition in the following words in Zarina Gauhar v.
Province of Sind : "The concept of reasonableness is not taken to the point where the Court feels itself either entitled or bound to reach its own conclusion upon the material and substitute it for the opinion of the detaining authority all that is being insisted upon is that the view taken by the detaining authority be such that a reasonable man could possibly reach upon its examination. It is only when the material is such that no reasonable man could claim to be satisfied that the Court would declare the order unlawful." [p. 1316]
21. In Habiba Jillani v. Federation of Pakistan, in the words of Nasim Hasan Shah, J. :- "The Court, while exercising its jurisdiction under Article 199 of the Constitution cannot claim in exercise of this power to usurp functions of the authority on which the power has been vested nor to substitute its own decision for the decision of that authority nor will it hold a decision to be without lawful authority on the ground that materials on which the action was taken did not satisfy it and it would not have itself taken the same action on the said materials. The law is that if materials relatable to the grounds on which the action has been taken existed and the relevant authority is satisfied that on its basis action was called for, this Court cannot substitute its own decision for the decision of the competent authority and hold the action taken to be bad. It is in this state of the law that it is to be seen whether the action taken was bad in law. We observe that, in the present case, the action in question was ordered by the highest Executive Authority in the State.
It was based on materials that are adequate and relevant. It is true that in the light of all the circumstances that have been disclosed before us, during the lengthy proceeding held by this Court, it is possible to take another view. But the view actually taken is also a possible one. It cannot, therefore, be said that the impugned order has not been passed after an honest application of mind. We cannot hold the action taken to be unlawful, only because another view is possible. This Court not being the appellate Authority in such matters, it cannot substitute its own discretion, for the discretion of the competent authority." [p. 166]
22. A Division Bench of the High Court of Sind elaborated the manner of exercise of constitutional jurisdiction, in the case of Mumtaz Ali Bhutto v. D. M. L. A. (1), as under :-- "Our jurisdiction in examining the material before the detaining authority
(1) PLD 1979 Kar. 125 vital as it is, is not unlimited. In the language of the Supreme Court of Pakistan in the case of Abdul Baqi, under our Constitutional system, which provides for a judicial review of executive action, it is a fallacy to think that such a judicial review must be in the nature of appeal against the decision of the executive authority. It is not the purpose of the judicial authority reviewing executive action to sit in appeal cver the executive or to substitute the discretion of the Court for that of administrative agency". As tersely put in Abdul Baqi Baloch's case the Court should examine the grounds of detention to test the reasonableness and while doing so the Court does not substitute its own opinion for the opinion of the authority concerned. It will follow, therefore, that the Court is not concerned with the truth or otherwise of the material unless of course the record itself demonstrates its falsity, but then detention will not be set aside because of this falsity but that no reasonable man could found the order on such material. If the material before the detaining authority was adequate and relevant Court will not interfere. It may as well be that the Court may be inclined to take another view of the material but if the view taken by the detaining authority is also possible and has been taken after an honest application of mind, there will be no room for interference. When we examine the material in this context the least that can be said is that there could be two equally possible views on the material, namely, the one urged by the petitioners and the other taken by the detaining authority. In this view of the Matter it cannot be said that the material was such as could not have pursuaded a reasonable person that the petitioners' detention was necessary under Martial Law Order No,
12. The argument of Mr. Pirzada that no overt prejudicial act has been attributed to the petitioners in the material appears to be irrelevant for it is sufficient if the state of mind of the detenu as disclosed in the material justifies the conclusion that the detenu was likely to act in a manner prejudicial to maintenance of peaceful conditions." [p. 144]
23. In Shamas Din v. D. M. L. A. In the words of my learned brother Zakiuddin Pal, J. : "According to law jurisdiction of this Court while examining the material before the detaining authority is not unlimited. When an order passed by an executive authority detaining a particular person is challenged by invoking extraordinary jurisdiction of this Court it is always by means of judicial review and cannot be treated as appeal or revision. The Court cannot substitute its discretion for that of administrative agency. The only function of the Court in such cases is to see whether the order of detentionn is reasonable and objective. It is also possible that there may be two different opinions with regard to sufficiency or insufficiency or the grounds of detention being reasonable or otherwise but if the material shows that the detaining authority could reasonably reach the conclusion already arrived at then the Court would not interfere with the order. The only test in such cases is that the detaining authority has applied its mind with all reasonable care in order to see that there is sufficient material for detention. The Court is not concerned whether the material is correct or not unless it is otherwise shown on record." [p. 76]
24. ' Here it may also be noted that the prevalent circumstances and conditions are relevant and material for purposes of determining the reasonableness of the detention. In Begum Agha Shorish Kashmirrs case it was observed by Chief Justice Hamoodur Rehman, that:- "It remains now to consider another contention of the learned Attorney-General, namely;-that we must not be unmindful of the fact that the legislation here with which we are dealing is an emergency legislation which must be interpreted with due regard to the consideration that "being comes before well-being". I am not oblivious of the fact that this is an emergency legislation. We have already in the case of Abdul Baqi Baluch upheld that we cannot go behind the emergency but I find it difficult to accept the contention that the laws must be interpreted differently during an emergency. In answer to this contention I would content myself by quoting the words of Lord Atkin from Livers"dge v. Anderson to the effect that "admidst the clash of arms the laws are not silent.
They may be changed but they speak the same language in war and peace". Having said this much, however, I must, also point out that whilst laws cannot be interpreted differently at different times or in different circumstances the existence of the emegency will have a material bearing if the Courts are to decide upon the reasonableness of the action, for what is reasonable in the time of an emergency may well not be reasonable in ordinary circumstances when the emergency has ended. The emergency will, therefore, be a relevant factor in determining the reasonableness of the act which, as we have already held, has to be considered in a limited sense by the Courts in the exercise of their power of judicial review." [p. 35] ' In Begum Nusrat Bhutto's case, the maintenance of law and order was identified as one of the objectives for which Martial Law had been proclaimed, and it was further declared that the superior Courts continue to have the power of judicial review. Elaborating this later in its judgment in Zulfiqar Ali Bhutto's case the Supreme Court observed that:- "It seems to us, therefore, that it must be clearly understood that in judging whether an action taken by the President or the Chief Martial Law Administrator is valid under the law of necessity, the Court is not to sit in appeal over the executive or legislative authority concerned, nor substitute its own discretion for that of the competent authority. The responsibility for the relevant action, its methodology and procedural details, must rest on that authority. In exercising its power of judicial review the Court is concerned with examining whether the impugned action reasonably falls within any of the categories enumerated by this Court in Begum Nusrat Bhutto's case, while spelling out the powers which may be exercised by the Chief Martial Law Administrator, or the President of Pakistan acting on his advice. As to what is reasonable or not in this context must be judged by the standards of an ordinary, prudent and reasonable citizen, and will depend on the prevailing circumstances and the object with which the action has been taken. These observations are, of course, without derogation to the other accepted principles governing the exercise of powers conferred by Article 199 of the Constitution." [p. 591
25. The jurisdiction of this Court in its very nature is attracted ex post facto, i. e. After detention having been made, Ghulam Jillani v. Federal Government (1), and is basically directed towards ensuring through the process of judicial review, that the detenu is not, in terms of Article 199 of the Constitution "being held in custody without lawful authority or in an unlawful manner". See Government of West Pakistan v. Begum Agha Shorish Kashmiri, Begum Shamim Afridi v. Province of Punjab (2). However, where the detenu has been released, the long established practice of our Courts is to refrain from recording decisions merely as an academic exercise. Ref: Zafar lqbal v.
Province of Sind (3). However in certain circumstances the writ petition may continue to be heard even after the release of the detenu. Ref: Malik Ghulam Jillani v. Government of West Pakistan, Zafar lqbal v. Province of Sind and Amina Yakub v. D. M. (4) and Sardar Sikandar Hayat v. Government of A. J. & K. (5).
26. It will therefore, be seen that in constitutional proceedings in nature of habeas corpus, the detaining authority is required to disclose the materials upon which the authority has acted, and the Court is, after to satisfy itsel in the exercise of its power of judicial review, that the detention is not in any manner contrary to law. In deciding this question the purpose, for which it detention is sought to be made, and the circumstances in which it came to ordered are relevant considerations. The Court is further required to satisf itself that the grounds Are relatable to the purposes of the statute upon which the action of the authority concerned could at all have been founded, and that the detention order was made after an honest application of three mind of the detaining authority. The satisfaction of the detaining authority is to be based on reasonable grounds. What is reasonable or not is to judged by the standard of an ordinary, prudent and reasonable citizen an will depend upon the prevailing circumstances and the object with which action has been taken. It is only when these conditions are not satisfied that the Court may declare the detention to be unlawful. However, in doing so, this Court is not to sit in appeal over the executive authority concerned nor to substitute its own discretion for that of the competent authority. If the material before the detaining authority is adequate an relevant, and the view taken by it possible, this Court does not intervene, notwithstanding that it may be possible to take another view of the material. Whether to detain a person or not, is under the law a decision initiall entrusted to the executive authority. Primarily it is the function and indeed the duty of the executive authorities to maintain law and order, for which purpose Article 10 of the Constitution even permits preventive detention, Malik Ghulam Iliad v. Government of West Pakistan Mumtaz Ali Bhutto v. D. M.
L. A. In the later case where the vires of C. M. L. O. 12 were questioned, the majority held it to be a valid piece of legislation.
27. A careful examination of the grounds of detention, reproduced in para. 5 above, shows that the detention is based on two grounds. Firstly, the involvement of the petitioner in six cases of criminal trespass etc. Th particulars of which are given in para. 3 above, and secondly, his startin trouble in the Rachna Textile Mills.
28. In relation to the first of the two grounds as has already bee noted in paragraph 4 above, out of the six cases in which the petitioner
(1) PLD 1975 Lah. 65 (2) PLD 1974 Lah. 120
(3) PLD 1973 Kar. 316 (4) PLD 1978 Lah. 295
(5) PLD 1978 SC (A J & K) 12 allegedly involved, he was not challaned in one, he secured acquittal in two cases, got discharged in another two, whilst his conviction in the sixth case is sub judice in an appeal pending before this Court: There is some force in contention of learned counsel for the petitioner that as the petitioner had been discharged, acquitted or not challaned in five of the six cases, their registration could not validly form the basis of the first ground of detention. He further pointed out that of the six cases, the first was registered sixteen years earlier in 1964, the next two were registered eleven years ago in 1968, the fourth case ten years ago in 1969, the fifth case eight years earlier in 1972 and the last one six years ago in 1974. He pointed out that there is no record of any criminal activity on the part of the petitioner from 15-7-1974 t. 11-12-1979, when F. I. R, 234 was recorded and argued that as such these cases do not measure up to the condition of proximity of time. It is evidence that the basis of the first ground is the involvement of the petitioner in the six criminal cases. In the circumstances, and for the reasons noted above, however, the first ground of detention appears to be based on incorrece information. In fact the inclusion of this ground based as it is on the material described above, reveals that the detaining authority did not best the care and attention that is demanded of it in matters effecting the liberty of a citizen. This ground cannot be sustained.
29. Mr. Tanveer Ahmed Khan, however, argued that notwithstandin that the first ground may not be sustainable, the detention of the petitioner was justifiable on the second ground and the material produced in support thereof. According to the second ground the petitioner is alleged to have started trouble on 11th December, 1979, at the Rachna Textile Mills and according to learned A. A.-G.
It is the real basis of the petitioner's detention.
30. The record and the material produced in relation to the second ground indicates that the detenu was involved in the incident of December, 11, 1979, as a consequence of which four Officers of the Textile Mills were injured. There is no reason to doubt the correctness of this information. The detenu is the President of the Mills labour union, and it could >have been expected of him that he would be have more responsibly, instead of involving himself in incidents, which if not checked could result in the creation of a serious law and order situation and the breach of industrial peace.
On the basis of this material an inference can reasonable be drawn that unless prevented the actions of the petitioner, (i. e. Disturbance of industrial peace), could create a situation detrimental to the maintenance of law and order and peaceful conditions, which is one of the objectives for which the proclamation of Martial Law has been validated.
31. In this context learned A. A.-G. Referred to the judgment in Kashave Talpade v. Emperor (1), in which it was observed:- "If a detaining authority gives four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reason had been before them."
32. It will be note() that in this passage the Court used the word `reasons' At the time this judgment was pronounced, the law did not require the communication of the "grounds of detention" to the detenu.
(1) AIR 1943 FC I Only the 'purpose' or the 'reason' for the detention were conveyed to the detenu, that being an integral part of such an order. In this context the term 'reason' used in this judgment cannot obviously refer to the grounds of detention. The distinction between the terms 'reason' and 'ground' was noted in Zarina Gauhar v. Province of Sind which though it was decided on 7th December, 1972, was not printed till October, 1976, i. e. After four years. In this case it was observed that the term 'ground' means the statement of the conclusions which the detaining authority has reached, or the conclusions of which the detenu is informed in compliance of the constitutional or statutory requirements, whereas the term 'reason' refers to the purpose behind the detention order. Whilst a ground may be bad on account of vagueness, lack of particulars or lack of sufficient material upon which it is based or not being within the ambit of the statute, a 'reason' may be bad on account of its being outside the ambit of the statute authorising detention. Amplifying the distinction and commenting on the judgment of the Federal Court in Talpade's case afore-noted, the late Chief Justice Tufail Ali A. Rehman observed in Zarina Gauhar's case: ' If therefore, in the present case it be found that, there is a bad reason, as opposed to a bad ground, 1 think I should be bound to hold that the entire order is bad. On the other hand, if one of the grounds is found to be bad for any reason, it would not necessarily follow that the entire order is bad inasmuch as it might be possible to distinguish this case on the ground that their Lordships of the Federal Court were not dealing with the effect of a bad ground at all." [p. 1321]
33. In Pakistan the issue was examined in the case of Muhammad Ali v. Crown (1), in which the judgment of the Federal Court In Talpade's case was noted and it was observed that question was not free from difficulty and would be examined in a latter case.
34. The issue was examined by Mr. Justice Muhammad Munir (as he then was), in the case of Rafique Ahmid Sheikh v. Crown (2), where after noting the judgment in Talpade's case it was observed:- "This obiter dictum was followed in AIR 1948 Born. 334 and AIR 1950 Mad. 162 as an authority for the proposition that if the grounds disclosed contained grounds, some within the ambit of the Act and some outside it, the order of detention would be vitiated wholly as in that event it would be impossible to say to what extent the detaining authority was influenced by acts outside the Act in making the order of detention. I am doubtful of the correctness of this rule which appears to me to have been stated somewhat too broadly. The logical result of the rule, if it were applied in the unqualified manner suggested in the two cases cited above, would be that, if among ten reasons for the arrest of a person who was believed to be acting in a manner prejudicial to public safety was an insignificant reason that in addition to the other acts which were calculated to prejudice public safety, he was also engaged in an activity not within the power of the Provincial Government to prevent, the order of arrest will have to be held to be wholly unsustainable. Any such result in my opinion has to be avoided, because otherwise, the High Court would in such a case be substituting its own judgment for the judgment of the arresting authority in holding that the remaining nine reasons any one of which could have been a good
(1) PLD 1950 FC I (2) PLD 1951 Lah. 17 reason for the arrest were not, individually, or collectively in fact the reasons on which he could have been arrested, and thus that Court would be taking upon itself responsibility which under the Statute rests on and vests in some other authority." (p. 22]
35. It may be noted that the detention in Rafiq Ahmad's case was effected under the Punjab Public Safety Act, 1949, which did not provide for the furnishing of grounds to a detenu and an examination of the judgment shows that the Court took note of the fact that in the Provincial Safety Acts in India, after the adoption of the Constitution of India, provisions had been made for the communication of grounds to the detenu, whereas this was not so in Pakistan. The term 'reason' was not taken to be synonymous to the term 'ground'. It is evident that the Court was conscious of the distinction between the term 'reason' and 'ground'.
36. Whilst analysing the judgments in Talpade's case and Rafiq Ahmad Sheikh's case it has been pointed out that the terms "reason" and 'purpose' are synonymous and ought not to be mistaken for the term 'ground'. In 1956, the term 'ground' was accorded constitutional recognition in Pakistan, as Article 7 thereof required the detaining authority to communicate to the detenu the 'grounds' of detention. Unfortunately the distinction was not noted or examined till the judgment in Zarina Gauhar's case. In Rehmat Elahi v. The Government of West Pakistan (1), the Court set aside the detention on the basis that some of the grounds on which the detention was based fell outside the scope of the Maintenance of Public Order Ordinance, 1960, i. e. Outside the ambit of the statute. It was observed in this case:- "What then is the effect of the wrongful inclusion of the two grounds set out above on the validity of the impugned orders of arrest and detention made under section 3 of the Ordinance? At first, the learned Advocate-General conceded, and rightly so that the orders are rendered illegal, but in his subsequent address he sought to make a distinction that if an insignificant ground be foreign to the scope of the relevant law it did not take away from the efficacy of the other grounds. The argument is met in two ways. Firstly, the satisfaction of the detaining authority that sufficient material exists for detaining a person in preventive custody is entirely subjective and the Courts cannot sit in judgment and decipher as to which of the grounds had appealed to him as determinative and what material he considered to be insignificant. Secondly, if there is more than one ground on which the order of preventive detention is based, then each ground has contributed to the satisfaction of the detaining authority and none could be excluded from consideration.
Conversely, if the detaining authority considered any material as insufficient to warrant preventive detention he will not set it out in the grounds of detention served on the person detained to make an effective representation against it." (p. 121] ' It may be observed in relation to the first reason given by the Court, in the para. Reproduced above, that the judgment was given prior to the pronouncement of the Supieme Court in Malik Ghulam Jilani s case which declared that the satisfaction of the detaining authority was 'objective' and not 'subjective'. The second reason was examined in the case of Government of
(1) PLD 1965 Lab. 112 West Pakistan v. Hadar-Bur Jatoi (1), to which reference will be made later.
37. In this context it may be pointed out that in a latter Full Bench case of Nasim Fatima v.
Government of West Pakistan (2), the Court observed:- "The order of detention .. . Was also assailed .. . Because in the grounds of " his detention are mentioned security and defence of Pakistan and Pakistan's relations with any other power, which it is alleged, could have no relationship with their activities, either alleged, or reported to Mr. Zafar Ali Khan. It may be that these grounds were irrelevant, though we are not in a position to hold so, in view of lack of availability of the material, on which Mr. Zafar Ali Khan, based his order, but even if these grounds were irrelevant, there were the grounds relating to public safety and maintenance of public order, on which an order of detention could be made by Mr. Zafar Ali Khan. We would invite attention to the observations of Muhammad Munir, J. In Rafique Ahmad Shaikh v. Crown, that the proposition that if some of the grounds disclosed contained grounds some within the ambit of the Act and some outside it, the order of detention would be vitiated wholly, was some what too broadly stated' and was of doubtful correctness". [p. 145]
38. After the judgment in Malik Ghulam Jilani's case, the Supreme Court for the first time had occasion to examine the issue in the case of Government of West Pakiston v. Haider Bux Jatoi. In that case the Review Board had recommended that there was sufficient cause for the extension of the period of detention, whereafter the Government extended the period of detention. The extension was impugned before the High Court, which released the detenu as one of the grounds on which the Board had recommended extension (his being a protagonist of Akhand Bharat), was neither a ground on which the original order of detention had been found nor had it been communicated to the detenu. The Supreme Court upheld the view of the High Court that the ground was unsustainable and after noting the passage from the judgment in Rafique Ahmad Sheikh's case reproduced above, observed that:- "The primary ground on which the Board acted was that the respondent was a protagonist of Akhand Bharat and undoing of Pakistan which amounts to high treason and would call for a most stringent punishment not to speak of mere detention for three months. The opinion of the Board was, therefore, largely based on a ground which could not be said to be insignificant or not to have contributed to the satisfaction of the Board." [p. 223]
39. Here I may be permitted to once again refer to Zarin(' Gauhar's case where after noting this aspect of the issue it was observed:- "Although I am inclined prima facie to agree with the learned Attorney-General that any cases which hold that bad ground vitiated an order would have to be reviewed in the light of the decision of the Supreme Court in Jilani's case, for part at least of the reasoning which supports that view is based upon the subjective nature of the detaining authority's satisfaction. I do not think it necessary for me in this case to embark upon a discussion of that question." [p. 1328]
(1) PLD 1967 SC 210 (2) PLD 1967 Lab. 103
40. Reverting back to Jatoi's case, it will be seen that the Supreme Court quashed the order extending the period of detention, as the primary ground on which the extension was recommended had not been sustained. The term `primary ground' has further been explained to be a ground which is not insignificant or which could have contributed to the satisfaction of the detaining authority. It may be pointed out that the term 'insignificant' was used both in Rafique Ahmad Sheikh's case and Rehmat Elahi's case and repeated in Jatoi's case. It follows that where out of the several grounds of detention a primary ground is not sustained, the detention cannot be upheld, but where the ground not sustained is not primary, i. e. Insignificant or could not have contributed to the satisfaction, the detention order will not be vitiated on this account only. In the latter case it will be for the Court t determine on the basis of the oral evidence and the material placed before it whether the detention can be justified on the remaining grounds. It will be a different thing if any of the reasons or the purposes of detention are beyon the ambit of the statute authorising detention in which case the detention cannot be sustained.
41. Applying the above principles to the facts of this case it will be seen that the purpose and grounds of detention of the petitioner are within the ambit and scope of C. M. L.
0. 12, i. e. Preventing a person from acting in any manner prejudicial to the purposes for which the Martial Law has been proclaimed, and the maintenance of peaceful conditions in Pakistan. It cannot, therefore, be said that the reasons or grounds of detention of the petitioner were beyond the scope of C. M. L.
0. 12.
42. In so far as the grounds of detention are concerned, the first ground is in relation to the involvement of the petitioner in cases of criminal trespass, violence etc. Details of which are given in the ground. As already noted, this ground appears to be based on information which is not entirely correct. The petitioner it seems was convicted in only one of these cases. Furthermore, in my view, this ground is not an insignificant ground and cannot be said not to have contributed to the satisfaction of the detaining authority.
43.' It would have been quite different, had the detention been ordered solely on the ground of the involvement of the petitioner in the incident of December 11, 1979, or had the involvement of the Petitioner in the six cases not been made a part of the grounds for detention.
44, No other point was raised.
45. For the reasons above, the detention of the petitioner is declared to be without lawful authority and of no legal effect. The detenu shall be released forthwith if not required in any other case.
' In the circumstances of the case, there will be no orders as to costs.