' AJMAL MIAN, J.-The petitioner is a student having Jordanian nationality. He has filed the present petition to challenge the detention of his two fellow students, who are also according to him Jordanians, namely, Ayyad Fayag son of Abdul Latif Issa, and Muhammad Essam Ghazi, hereinafter referred to as Fayag and Ghazi respectively.
2. The brief facts leading to the filing of the above petition are that in pursuance of two separate orders, dated 4-3-1984, issued by respondent No. 1 under section 3(2)(g) of the Foreigners Act, 1946, ' hereinafter referred to as the Act, read with the 'Ministry of Interior' Notification No. 10/6/54-Poll-(i), dated 11-3-1958, the detenus were taken in custody on 5-3-1984 and were committed to the custody of the Superintendent, Central Prison, Karachi, for a period of 7 days. In the above order it was stated that the Government of Sind was satisfied with a view to preventing the above detenus from acting in a manner prejudicial to the - security of Pakistan, it was expedient and necessary to arrest and detain the above detenus who were Palestinian nationals. It seems that since then the above detenus are in custody as they have not yet been deported. It may be observed that alongwith the above petition the detention order pertaining to detenu Ghazi has not been filed as according to the petitioner's counsel the same was not available. The petitioner has challenged the above detention orders.
3. Mr. Siddique Mirza, the learned counsel for the petitioner has contended as follows :-
(i) That by virtue of Notification No. 10/6/54-Poll-(1) gazetted on 14-3-1959, issued in pursuance of Article 2 of the Federation Order, 1955 read with Notification No. 1o/6/54-Poll-(i), gazetted on 14-3- 1958 (wrongly typed in the. Notification pertaining to the Provincial Governments as dated 8-11- 1958 in P .1, D 1958 Central Statute 298) issued in exercise of the powers conferred by Article 15(B) of the Foreigners Order, 1951, both issued by the Central Government, the Commissioner of Karachi is the competent authority to issue detention order under the Act and not respondent No. 1, the Provincial Government through the Home Secretary.
(ii) That even otherwise in the absence of appointment of a civil authority under Article 15(B) of the Foreigners Order, 1951, the respondent No. 1 could not have passed the detention order.
' On the other hand, Mr. Muhammad Ibrahim Memon, the learned Additional Advocate-General appearing for the respondents, has urged as follows :-
(i) That by virtue of Notification No. 10/6/54-Po11-(i) issued under clause (1) of Article 127 of the Constitution authorizing the Provincial Governments to exercise the powers under the Act read with Article 19 of the Province of West Pakistan (Dissolution) Order, 1970 (President) (Order No. 1 of 1970), hereinafter referred to as the Order, the respondent No. 1 was competent to pass the impugned orders.
(ii) That even otherwise the detention orders have been passed in compliance of the directions issued by the Federal Government, and, therefore, the same are legal.
4. Adverting to the first contention of the learned counsel for the parties, it may be appropriate to refer to the relevant provisions of law and the Notifications. It may be observed that section 3 of the Act (the Foreigners Act, 1946) provides that the Central Government may by. Orders make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners, for prohibiting, regulating or restraining the entry of foreigners into Pakistan, or their departure therefrom or their presence or continued presence therein. Subsection (2) of section 3 further provides that in particular and without prejudice to the generality of the foregoing powers orders made under the above section may provide that the foreigner :-
(a) shall not enter Pakistan or shall enter Pakistan only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed ;
(b) shall not depart from Pakistan or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed ;
(c) shall not remain in Pakistan, or in any prescribed area therein ;
(d) shall remove himself to, and remain in, such area in Pakistan as may be prescribed ;
(e) shall comply with such conditions as may be prescribed or specified-
(i) requiring him to reside in a particular place ;
(ii) imposing any restriction on his movements ;
(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified ;
(iv) requiring him to allow his photographs and finger-impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified ;
(v) requiring him to submit himself to such medical examination by such authority and at such time and 'place as may be prescribed or specified;
(vi) prohibiting him from association with persons of a prescribed or specified description ;
(vii) prohibiting him from engaging in activities of a prescribed or specified description ;
(viii) prohibiting him from using or possessing prescribed or specified articles ;
(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified.
(f) shall enter into a bond with or without sureties for the due observance of or as an alternative to the enforcement of any or all prescribed or specified restrictions or conditions ;
(g) shall be arrested and, in the interest of the security of Pakistan, detained or confined.
' It may also be pointed out that proviso to subsection (2) provides that a person shall not be detained longer than two months without authority of the Board consisting of a Judge of the Supreme Court who shall be nominated by the Chief Justice of the Supreme Court and another senior officer in the service of Pakistan who shall be nominated by the President It may also be observed that subsection (3) of section 3 lays down that an order passed under subsection (2) may also make provision for such incidental and supplementary matters as may in the opinion of the Central Government be expedient or necessary for giving effect to the provisions of the Act. It may also be stated that subsection (4) provides that the provisions of subsection (2) of section 6 of the Security of Pakistan Act, 1952, and those of section 6-A of that Act shall mutatis mutandis apply in relation to a person detained under the Act as they apply in relation to purring detained under that Act. It may be pertinent to refer to subsection (2) of section 6 of the Security of Pakistan Act which provides that in case of an order under clause (b) of subsection (1) of section 3 of the Security of Pakistan Act, the authority, making the order shall except where the Federal Government in the interest of the security of Pakistan directs otherwise, inform the person detained under that order of the grounds of his detention at the time he is detained or as soon as thereafter as is practicable not later than 15 days from the date of his detention. Whereas section 6-A of the Security of Nissan Act, 1952, provides that a person shall not be detained under an order made under clause (b) of subsection (I) of section 3 fora period exceeding three months unless the Board, to which a reference shall be made by the Federal Government, has reviewed his case and reported before the expiration of the said period that there is in its opinion, sufficient cause for such detention if the detention is continued after the period of said three months unless the Board has reviewed his case and reported before the expiration of such period of three months that there is, in its opinion sufficient cause for such detention. It also provides that the person affected by an order under clause (b) of subsection (I) of section 3 shall be entitled to be heard in person before the Board and to consult in the presence of an officer nominated' by the Central Government but not to be represented before the Board by a legal practitioner. It further provides that the Board upon a reference made, to it under subsection (1) shall, after considering the material placed before it and calling for such further information as it may require from the Government submit a report together with its recommendation and that all the proceedings of the Board shall be secret.
It may also be observed that section 11 of the Act provides that any authority empowered by or under or in pursuance of the provisions of the Act may give any direction or may exercise any other power or may in addition to any other action expressly provided for in the Act, take or cause to be taken such steps and use or cause to be used such force as may in its opinion, be reasonably necessary for securing compliance with such direction or for preventing or rectifying any breach thereof, or for the effective exercise of such power as the case may be. It may further be stated that section 12 of the Act empowers any authority upon which any power to make or give any direction, consent or permission to do any other act is conferred by the Act or by any order made thereunder may unless express provision is made to the contrary, in writing authorise, conditionally or otherwise, any authority subordinate to it to 'exercise such power on its behalf, and thereupon the said subordinate authority shall, subject to such conditions as may be contained in the authorisation, be deemed to be the authority upon which such power is conferred by or under the Act.
It may be pertinent to mention that in exercise of the powers conferred by section 3 of the Act and in supersession of ere Foreigners Order, 1939, published in Notification No. 21/84/39-Poll , dated 26- 8- 939 by the Home Department of late Government of India in a notification amending the same the Central Government through Notification No. 10/7/48-Poll-(i), dated 22-10-1951 issued Foreigners Order, 1951. The above Order provides a machinery for the purpose of effectively enforcing the provisions of the Act. It also contemplates the appointment of a civil authority by Central Government for such area as it thinks fit which is to exercise the powers under the above Foreigners Order, 1951. The above Order inter alia provides the power to grant or review the permission to enter into Pakistan. Power to grant permission to deport from Pakistan, restrictions on sojourn in Pakistan, .Providing prohibited places and protected areas, restrictions on employment, restrictions on movement, power to remove foreigners from cantonment, power to close clubs and restaurants, power to arrest and detain etc.
5. It may be mentioned that Karachi was the Federal Capital of Pakistan upto the time of issuing of a notification under the West Pakistan Administration (Merger of Federal Territory of Karachi) Order, 1961 (President's Order No. 9 of 1961). Consequently, the Central Government issued two separate notifications for the purpose of exercising the power under the Act subject to the conditions mentioned in the notifications, namely, Notification No. 10/6/54-Poll (1) (gazetted on 14-3- 958) authorising the Chief Commissioner of Karachi to exercise the powers inter alia contained in the clauses of subsection (2) of section 3 specified in the above Notification, section 12 of the Act and Foreigners Order, 1951 subject to the conditions mentioned therein and, Notification No. 10/6/54 gazetted on 14-3-1958, authorising the Provincial Governments to exercise the aforesaid powers under the Act and the Foreigners Order, 1951. It may also be stated that the Central Government through a Notification No. 10/6/5--Poll-(1) issued in exercise of the power contained in clause I5(B) of the Foreigners Order, 1951 authorised the Chief Commissioner of ,Karachi to exercise all the powers and functions of a civil authority under the said Order, in all classes of cases in the area of Federal Capital with retrospective effect namely 2-10-1Q51. It may be advantageous to reproduce hereinbelow the above notification, dated 11-3-1958 empowering the Chief Commissioner, Karachi to exercise the aforesaid powers as both the notifications are more or less identical, which read as follows :- "No. 1016/54-Poll (1), 11th March, 1958 (Gazette, 14th March, 1958.- In pursuance of Article 2 of the Capital of the Federation Order, 1955.
(G. G.
0. XXII of 1955), and in supersession of all previous notifications on the subject the President is pleased to direct that within the Federal Capital, the Chief Commissioner, Karachi, shall, subject to Paragraph 2 below, exercise on his behalf the following powers of the Central Government namely, the powers-
(a) of making orders of the nature specified in clauses (c) and (g) of subsection (2) of section 3 of the Foreigners Act, 1946 (XXXI of 1946).
(b) of making orders of the nature specified in clauses (d), (e) and (f) of subsection (2) of section 3 of the aforesaid Act.
(c) of authorising under section 12 of the aforesaid Act, authorities subordinate to him to exercise on his behalf the powers entrusted to him under part (b) above.
(d) of the Central Government under the Foreigners Order, 1951.
(2) That aforesaid delegation of the powers shall be subject to the following conditions, namely
(1) Notwithstanding anything in this notification, the Central Government may itself exercise any of those powers either generally. Or in any particular case or class of cases.
(2) The Chief Commissioner shall not exercise any of those powers in a manner inconsistent with any orders which have been, or may hereafter be, issued.By the Central Government under the aforesaid Act or the aforesaid order ;
(3) The Chief Commissioner shall not delegate any of the powers' which he is authorised to exercise under part (a) of paragraph I of the notification to any authority subordinate to him.
(4) The Chief Commissioner shall not make an order for the arrest or detention of a person under clause (g) of subsection (2) of section 3 of the aforesaid Act without the previous consent of the Central Government unless the arrest or detention is immediately necessary for preventing the foreigner from acting in a manner prejudicial " to the defence, external affairs or the security of Pakistan.
(5) The Chief Commissioner shall, when authorising, in pursuauce of section 12 of the aforesaid Act, any authority subordinate to him to exercise the powers entrusted to him under part (b) of Paragraph 1 of this notification, require those powers to be exercised by such authority only in the circumstances specified in the order of authorisation".
6. It may be noticed that under the above notification the Chief Commissioner, Karachi, was inter alia empowered to pass order of the nature referred to in clauses (c) and (g) of subsection (2) of section 3 of the Act, but this power was subject to proviso, namely, that the Chief Commissioner shall not make an order for the arrest or detention of a person under clause (g) of subsection (2) of section 3 of the Act without the previous consent of the Central Government unless the arrest or detention is immediately necessary for preventing the foreigner from acting in a manner prejudicial to the defence, external affairs or for the security of Pakistan. It was also provided that the Chief Commissioner shall not exercise any of the powers in the manner inconsistent with any orders which have been or may hereafter be issued by the Central Government under the Act or the aforesaid Foreigners Order 1951. It was also provided that notwithstanding contained in the notification the Central Government may itself exercise any of those powers either generally or in particular case or class of cases.
7. In Karachi it is an admitted position that after the change of designation of the Chief Commissioner as Commissioner after the above Merger Order of 1961, the Commissioner continued to exercise powers under the Act and Foreigners Order, 1951, as the civil authority. In the instant case, the orders have been passed by the Provincial Government and not by the Commissioner of Karachi. It has been contended as observed hereinabove by the learned counsel for the petitioner, Mr. Siddique Mirza, that the order should have been passed by the Commissioner and not by respondent No. 1 whereas it was urged by Mr. Muhammad Ibrahim Memon, the learned. Additional Advocate-General, that after the dissolution of the West Pakistan the Provincial Government is the competent authority to exercise the power under the Act and Foreigners Order, 1951. Mr. Siddique Mirza has referred to the following cases :-
(i) Mansab Ali v. The N.-W. F. P. Government (1), in which the order passed by the Provincial Chief Secretary under Paragraph 15 of the Foreigner Order, 1951, was impugned. A Division Bench of the Judicial Commissioner of the Peshawar Chief Court held that the Provincial Government was not civil authority for the purpose of exercising the powers under the Foreigner Order, 1951; therefore, the order was illegal. It may be advantageous to reproduce herein below the relevant observation which reads :- "The ordinary reading of section 3 of the Foreigners Act read with the Foreigners Order, would show that the Central Government in order to deal with the foreigners. In particular to arrest and to detain the s. Must appoint a 'Civil Authority' which authority then in its turn must exercise those powers, if in its opinion it is necessary to do for the public safety. As a result of the delegation of powers by to Central Government to the Provincial Government it is now to Provincial Government which also has got a power to appoint al authority' which authority then can exercise the same powers as to "civil authority" appointed by the Central Government. It is conceded by the learned Advocate-General that the Provincial Government has not appointed such 'civil authority' to deal with the foreigners.
' The Provincial Government, independently of the Foreigners Order, h no jurisdiction to arrest or detain a foreigner, because it is the power of the Central Government under the Foreigner's Order that have be entrusted to the Provincial and riot its powers under the Foreigner Act. The Provincial Government, therefore, has no authority to order the arrest or detention of any foreigner without appointing civil authority' "
(ii) Akhtar Khan v. Commissioner, Karachi and 2 others (2), in which the order of the Commissioner of Karachi passed under section 3(2)(c)(d) and under clause (g) of the above subsection (2) of section 3 of the Act was challenged. It was contended by the petitioner who was a cousin of the detenu that after merger of Karachi with the West Pakistan, the compete authority was the Provincial Government and not the Commissioner. On the other band, it was argued by the learned Advocate-General on behalf of t Commissioner that in spite of the above merger of Karachi with the We Pakistan, the Commissioner of Karachi remained the competent authority exercise the above powers under the Act. A Division Bench of the erstwhile High Court of Sind and Baluchistan.
After reviewing the relevant provision and upon relying on the case of Captain Muhammad Azhar v.
Commissions {{FOOT NOTE}}
(1) PLD 1954 Pesh. 84 (2) PLD 1972 Kar. 132 {{FOOT NOTE}} ' of Karachi and another (1), held that the Commissioner of Karachi was competent authority to exercise the powers under the Act notwithstanding the merger of Karachi with the West Pakistan by virtue of President's Order No. 9 of 1961. The relevant observations are as follows :- "It, therefore follows, that the powers under the Foreigners Act which were originally conferred on the Chief Commissioner were to be exercised by the Commissioner on account of the change of the designation as agent of the Central Government within the federal area of Karachi.- As already stated, the federal terrritory of Karachi was merged into the Province of West Pakistan by President's Order. No. 9 of 1961, and, therefore, that territory became. a division of the Province of West Pakistan under its administrative control. However, by Article 4 of the same Order it was laid down- 'as from the appointed day any reference to the Specified Territory in any Act or Ordinance, or in any rule, regulation, order, bye-law or notification, shall be construed as a reference to the Province of West Pakistan, or as the context may indicate, to the Karachi Division.'
It is, therefore, plain that in the aforesaid notification conferring powers of the Central Government upon the Chief Commissioner of Karachi to be exercised within the federal territory of Karachi we have to read 'Karachi Division' instead of the 'Federal Territory of Karachi'. That being so, the Commissioner upon whom the powers had been conferred under the Foreigners Act by the aforesaid notification was required to continue to exercise the same powers and functions till notification was rescinded or some contrary notification was issued. It is an admitted position that neither the notification has been rescinded nor an-j contrary notification has been issued divesting the Commissioner of the powers conferred by the aforesaid notification. Of course the powers were also conferred upon the Provincial Governments and were exercisable by the Provincial Government of West Pakistan of which Karachi was a division, but these were powers of the Central Government and the exercise of the same powers simultaneously by the Province of West Pakistan did not affect the exercise of powers by the Commissioner of Karachi which was exercised by him prior to the merger. Consequently the Commissioner was competent to pass the original order ordering the deportation of th petitioner out of Pakistan, and therefore, the action of the Commissioner in ordering the arrest of the petitioner on his re-entry into Pakistan and his prosecution are not open to exception."
8. It may be pointed out that the stand taken by the learned Additional Advocate-General, Mr. Muhammad Ibrahim Memon, in the present case is quite contrary to what was urged in the above- reported Karachi case. To justify the above contrary stand Mr. Muhammad Ibiabim Memon has submitted that the learned Judges of the above Division Bench who decided the above Karachi case had not taker. Note of the effect of Article 19 of the Province of West.Pakistan (Dissolution)
Order, 1970 (President's Order No. 1 of 1970) which provides as follows :- "(19) Continuation and adaptation of existing laws.-(1) Except as expressly provided by or under this order all existing laws shall continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other competent authority. {{FOOT NOTE}}
(1) PLD 1966 SC 253 {{FOOT NOTE}}
(2) For the purpose of bringing the provisions of any existing law into accord with the provisions of this Other, in relation to laws in the Central Legislative field, the President, and in relation to other laws, the Governor of the Province concerned, may by order, make such adaptations, whether by way of modification, addition or omission, as he may deem necessary or expedient, and any order so made shall, unless otherwise provided therein take effect or be deemed to have taken effect on the appointed day.
(3) Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no actual adaptations have been made in such law by an order made under clause (2), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this order.
' Explanation.-In this Article, "existing law" means any Act, Ordinance, Order, Rule, Regulation, bye- law, notification or other legal instrument which, immediately before the appointed day, had the force of law in the whole or any part of the Province of West Pakistan whether or not it had been brought into operation."
' It was contended by Mr: Muhammad Ibrahim Memom that since upon the enforcement of the above President's Order No. 1 of 1970, the Province of Sind came into existence which included Karachi Division as per schedule to the above Order, by virtue of above Article 19 the aforesaid notification issued by the Central Government authorising the Provincial Governments to exercise the power under the Foreigners Act, 1946 and Foreigners Order, 1951, became applicable to Karachi.
It may be observed that under the above notification the Central Government did not delegate the power to the Provincial Governments to exercise the power under the Foreigners Act,
194. And Foreigners Order, 1951 in respect of Karachi Division as admittedly by a separate notification, dated 11-3-1958, the Chief Commissioner, Karachi, was authorised to exercise the aforesaid power within the federal capital. The above notification admittedly remained in the field even after the merger of Karachi with the West Pakistan in 1961 by virtue of Article 10 of the President's Order No. 9 of 1961 as has been held by the aforesaid Division Bench in the Karachi case of 1972. The only question,' therefore, in issue is whether the above position was altered by Article 19 of the President's Order No. 1 of 1970 i. e. Province of West Pakistan (Dissolution) Order, 1970. It may be observed that in that above-quoted Article 19 it has been provided that except as expressly provided by or under the above Order all existing laws shall continue in force as far as applicable with necessary adaptation unless altered, repealed or amended by the appropriate Legislature or competent E authority. It also provided that any Court, tribunal or authority required or empowered to enforce the existing law, shall, notwithstanding that no actual adaptations have been made in such laws by an order made under clause (2) construe the law with all the adaptations as are necessary to bring it into accord with the provisions of the above Order. It may also be observed that the explanation explains the term "Existing Law" by providing that it means any Act, Ordinance, Order, rule, regulation, bye-law, notification or other legal instruments which, immediately before the appointed day had the force of law in the whole or any part of the Province of West Pakistan whether or not it had been brought into operation. It may also .Be mentioned that Article 2 of the above President's Order No. 1 of 1970 provides that the above Order and any order made under _Article 20 shall have the effect notwithstanding anything to the contrary contained in the Provisional Constitution Order or any other law for the time being in force. If we read the above notification gazetted on 14-3-1958 with the necessary adaptation in terms of above Article 19 read with Article 2, the effect would be that the Provincial Government after the dissolution of West Pakistan have become competent to exercise the power even in respect of Karachi Division. The above Articles 2 and 19 were not taken into consideration by the Division Bench in the above Karachi case of 1972, and, therefore, the same is distinguishable.
10. As regards the second contention of Mr. Siddique Mirza, it may be observed that in the Peshawar case of 1954, the detention order was passed by the Chief Secretary, N.-W. F. P. Under the Foreigners Order, 1951, and, therefore, it was held by the Division Bench of the Judicial Commissioners that in the absence of the appointment of a civil authority in terms of the above Foreigners Order, 1951, the order was not sustainable. In the present case, from the impugned order, it seems that the orders have been passed under section 3(2)(g) of the Foreigners Act, 1946 and not under the Foreigners Order, 1951, and, therefore, the above Peshawar case bas no application to the present case. Mr. Muhammad Ibrahim Memon, the learned Additional Advocate-General has placed the two relevant departmental files before us in order to show that the impugned orders have been passed with the concurrence of the Federal Government. We had shown the above files to the learned counsel for the petitioner. The above tiles indicate that the Provincial Government has taken action in pursuance of the directives of the Federal Government.
11. For the aforesaid reasons, the above petition has no merits, and, therefore, is dismissed with no order as to costs.