TUFAIL ALI A. RAHMAN, C. J.-This is a petition challeng--ing the validity of the detention of one Hadi Bux son of Ghaibi Khan Jatoi, a resident of Larkana District, who has been in detention by reason of orders passed under the West Pakistan Maintenance of Public Order Ordinance, 1960.
2. The detenu is admittedly a case-fellow of the pet1tloner, Abdul Hamid Khan. The petitioner himself is a Member of the National Assembly and it is common ground that he also was detained under the West Pakistan Maintenance of Public Order Ordinance, 1960. The petitioner's detention was challenged in this Court by means of Constitution Petitions 203 and 217 of 1972 which were allowed by a judgment announced on 19-6-1972. It is also admitted that before the petitioner was detained in pursuance of the order under the Ordinance he was arrested on criminal charges and was directed by the learned Sessions Judge, Larkana to be released on bail; the detenu offered himself as a surety for the release of the petitioner In pursuance to the orders of bail.
3. The detenu was arrested on the evening of the 15th July but although, admittedly, no order was actually served upon him on that date an order in fact had been passed by the District Magistrate of Larkana under section 3 of the Ordinance; section 26 of which authorises the Government to delegate its powers under section 3, subsection (1) to a District Magistrate to be exercised within the jurisdiction of the delegatee. No complaint has been made before us of the illegality of this order on account of the delegation ; it is common ground that powers were duly delegated to the District Magistrate and the attack on the validity of the order and a subsequent order are based on other grounds.
4. Upon the same day, that is, 15th of July 1972 a state--ment of grounds was also drawn up by the District Magistrate but was not actually served upon the detenu until the 20th of July 1972. These grounds are in the following terms : "That you Hadi Bux son of Unknown Jatoi resident of Larkana have taken part in the recent language agitation, by inciting people to agitate, commit arson and promote hatred between Old and New Sindhis and you are still doing the above activities, which are pre-judical to the public safety, main--tenance of public Order and public Interest."
5. The period of the order passed by the District Magistrate was due to expire on the 13th of August 1972 and upon that date the Government in exercise of its own power under section 3 (1) of the Ordinance passed an order directing the detention of the detenu for a further period of two months. This order reads as follows "No. 3/13-H (S.1. I)/72..-Whereas the District Magistrate, Larkana vide his Order No. J/-72, with a view to preventing Hadi Bux son of Ghaibi Khan Jatoi resident of Larkana from acting in a manner prejudicial to public safety and maintenance of public Order detained the said Hadi Bux for a period of 30 days under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, read with the former Government of West Pakistan Home Department Notification No. 3-104- B. S.1. 1/64, dated the 24th February 1965.
And whereas the period of detention of the said Hadi Bux is due to expire on 13-8-1972.
And whereas the Governor of Sind, is satisfied that the circumstances under which the said Order was made still continue to exist and in case the said Hadi Bux is released he is likely to act in a manner prejudicial to maintenance of public safety and public order in the Province of Sind; And whereas with a view to preventing the said Hadi Bux from acting in a manner prejudicial to public safety and maintenance of public order it is necessary that the said Hadi Bux be further detained Now, therefore; in exercise of the powers conferred on him by subsections (1) and (7) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Governor of Sind is pleased to direct that the said Hadi Bux shall continue to be detained for a further period of two months with effect from the 13-8-1972 and committed to the custody of the Superintendent, Central Prison, Sukkur as Class B detenu."
Mr. N. K. Jatoi who appeared for the petitioner in this case has attacked the validity of the order passed against the detenu and his consequent detention on a number of grounds. The first of these is that the original order passed by the District Magistrate was not served upon the petitioner.
This fact, the learned Additional Advocate-General, does not dispute but he argues that the not- service of an order does not by itself invalidate the order. He points out that section 3, subsection
(1) talks only of the Government making an order, in writing, directing the arrest and detention in custody of a person for specified period. (Of course by reason of section 26 and the delegation to which I have already referred the Government would here include the District Magistrate for the purpose of the first order). There is nothing expressly in the subsection or any where elsewhich requires that a copy of the order must necessarily be given to or served upon the detenu. I think there is substance in what the learned Additional Advocate-General argues inas--much as whenever the Ordinance requires that it shall be served upon the person affected it specifically provides for such service. For example subsection (6) of the same section requires the communication to the detenu of the grounds on which the order has been made. On the other hand section 9 Provides that where any power is to be exercised or any order or direction, given by order in writing how and to whom such order is to be, addressed. The various clauses under it clearly do not, contemplate the service of an order of detention upon they detenu. Although, however, I find myself in agreement with the learned Additional Advocate-General on this point I cannot think right to construe a statute as authorising the detention of a person without even apprising him of the authority under which be is being taken into custody. Such, however, is not the case before us as pointed out by the learned Additional Advocate-- General. Paragraph one of the petition states that he is detained pursuant to an order passed under the Ordinance. It further states that he was taken into custody on the 15th but was given no copy of the order of detention.
Although it is difficult to regard this as a very clear admission of the fact that the detenu was apprised that he was being detained under this Ordinance it does at least imply as much. Before us learned counsel for the petitioner candidly admitted that his argument was based upon the non-service of the order and that he was not alleging that the detenu was not at all told under what authority he was being detained.
6. In any case even if we were to agree with the contention of learned counsel for the petitioner this could make little difference to the fate of this Petition. He is now in custody by reason of the order later passed by the Government and in matters of this kind the Court is concerned with the question: whether the detenu is at present illegally confined or not; the question that at some earlier time he was illegally confined is not relevant unless that illegality could be shown to affect the legality of the order under which he is presently being detained. Despite an express question from us learned counsel stated that it was not his case that any illegality in that order affecting the legality of the present confinement; this he agreed would have to-- depend on other attacks he had to make against the validity of the order of the Government.
7. Learned counsel's first real attack is upon the grounds which I have reproduced above. He argues that these grounds do not mention any facts and it is his contention that it is not enough merely to state these grounds but also the facts upon which they are based. Closely connected with this argument and indeed really only another way of stating it is the contention that they are too vague and not, therefore, such grounds as are con--templated by the statute. Since the order of the Government is based upon the same grounds it was argued that the present detention is therefore bad. In support of his contention Mr. Jatol placed reliance upon the case reported as "Sardaru v.
The Crown" (PLD 1953 Sind 4where Mr. Justice Vellani held that it is necessary that the grounds should contain some particulars ; in my view the case has no real application at all. The law which the learned Judges were construing in that case was Sind Maintenance of Public Safety Act, 1952 with particular reference to section 4 thereof which is reproduced at page 5 of that judgment and is in the following language : "4. Where an order is made in respect of any person under clause (a) of subsection (1) of section 2 as soon as may be after the order is made, the authority making the order shall com--municate to the person affected thereby, so far as such com--munication can be made without disclosing facts which the said authority considers it would be against the public interest to disclose, the grounds on which the order is made against him and such other particulars as are in the opinion of such authori--ty sufficient to enable him to make, if he so wishes, a represen--tation against the order and such person may at any time there--after make a representation in writing to such authority against the order, and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest practical opportunity of doing so."
Now the provision of the present enactment which requires grounds to be furnished is contained in subsection (6) of section 3 of the Ordinance and is in the following terms :- "(6) Where a detention order has been made under this section the authority making the order shall, as soon as may be 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."
8. It is significant that in the judgment cited immediately after quoting section 4 of the Sind Act then in force the learned Judge continued "the specific point taken is that the com--munication received by the applicant does not contain any particulars". Whatever, therefore, one may eventually hold as to the necessity or otherwise of disclosing facts it is clear at any rate that the case cited is not authority, whatever, for the proposition advanced by learned counsel, based as it was, upon a great deal of emphasis put, quite rightly if I may say so with respect, upon the need to furnish particulars.
9. I am nevertheless not convinced that the grounds need not state any facts. The proviso to subsection (6) which I have quoted above, expressly authorises a refusal to disclose such facts as the authority in question considers it to be against the public interest to disclose. I do not know why it should be necessary to give such exemption if there is initially no duty to disclose facts at all. Mr. Jamaluddin H. Ahmad, the learned Additional Advocate-General, argued that this exemption is after all in a proviso and the sole purpose of a proviso is to cut down the meaning of the main provision or to exempt something from its operation. It can never be, he argued, used for the purposes of enlarging the meaning of the provision itself. No doubt the learned Additional Advocate-General is strictly right in enunciat--ing this principle of interpretation, but the principles of inter--pretation are after all methods of discerning the true meaning of the words used by the Legislature and for this purpose it is per--missible and even obligatory to look at the entire scheme of the Ordinance. The Ordinance requires that the detenu is to be in--formed that he is at liberty to make a representation against the order to Government and to afford him the earliest opportunity of doing so. Now this requirement is contained in the very sub--section which imposes the duty of communicating the grounds and is certainly not a part of the proviso. I find it extremely difficult to hold, therefore, that the Ordinance does not require the disclosure of any facts to the detenu ; what the extent of the facts to be disclosed is and what constitutes facts is of course a different question.
10. Coming back to the grounds it is to be seen that although details or particulars arm not mentioned certain facts are mentioned. The word `grounds', I think, means the basis upon which the detaining authority claims to be satisfied of the necessity of taking action under section 3. That it is necessary to prevent the detenu from acting in a manner prejudicial to the public safety is obviously a ground which discloses no fact. Blot there certainly can be grounds which in themselves are statement of facts and I do think that when the statement of grounds refers to the detenu "having taken part in the recent language agita--petition, by inciting people to agitate, commit arson and promote hatred between Old and New Sindhis and that he is still doing the above activities", these are facts and not merely grounds. It is true that the particulars of these acts, namely, the date and place where they are alleged to have been committed, are not mentioned. But this I think comes under the description of particulars required under the Sind Act to which I have referred. I feel unable to accept the contention of learned counsel, therefore, that the statement of grounds mentioned no facts at all.
11. Mr. Jatoi then argued that there is variance between the statement of grounds which I have mentioned and the case of the Government now. He referred to paragraph 5 of the counter--- affidavit which stated that the action was taken on no considera--petition except to prevent him "from taking part in language agita--tions to incite people to agitate, commit arson and promote hatred and act in a manner prejudicial to the public safety, main--tenance of public order and public interest." Mr. Jatoi's conten--petition is that while the grounds talked of something which the detenu is alleged to have already done the counter-affidavit was based upon what it was feared that he would do unless detained and that therefore, there was a contradiction between the two. I am unable to accept this contention. In the first place the read--ing of the grounds as being confined entirely to acts committed by the petitioner in the past is literally Incorrect. After having recited what the detenu is alleged to have done the grounds do use the words "and you are still doing the above activities which are prejudicial to the public safety, maintenance of public order and public interest". I am entirely unable to see how can it be said that the grounds are confined to a recital of acts already done and that the counter-affidavit mentioned only what it is feared will be done. In advancing this argument Mr. Jatoi is nor being at all fair, I think, to the deponent of the counter-affidavit The paragraph upon which by has placed reliance is an answer to paragraph 8 of the petition which alleged that the present Government was displeased with the detenu for having stood surety for the petitioner and for supporting him in every way, implying, what is more expressly stated elsewhere in the petition, that that is the motive of the order of detention. Elsewhere in the counter affidavit are more fully stated the various matters and material upon which the respondents claim that they were properly satisfied as to the need of making the order in question ; with this, how-- ever, I propose to deal later at a more convenient place. Suffice it just now to say that I am entirely unable to accept the argument that the order is bad by reason of a variance between the language used in the grounds and in the counter-affidavit. Since, however, the point has been put in the way mentioned I might add that I am fully in agreement with the argument that a law of preventive detention could not be used for the purpose of punish--ing a person for his past actions, however blame-worthy 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 male fides with which I will deal separately), an under current, suggesting that the detenu is really being punished for what he has done and that his detention is not a preventive mea--sure 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 con--duct 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 wrong-doing 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 possible be reasonably drawn by reason of the suspect's own Professed beliefs but since I am 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. I cannot, therefore, accept Mr. Jatoi's argument that the grounds furnished read with the counter-affidavit are by themselves an indication that he is being punished for past activities and not merely prevented from acting in a particular manner for the future.
12. Apart from the question of male fides, these were the only contentions put forward by Mr. Jatoi.
That fact, however, does not, I think, relieve us of our duty to examine the case for the purpose of determining whether or not the detenu is being lawfully kept in custody. The state of law, I think, is to be gethered from three recent decisions of the Supreme Court on the question. The first of these is the case of Ghulam Jeelani v. Government of West Pakistan (PLD1967SC373). This was a case on rule 32 of the Defence of Pakistan Rules, 1965 which stood in the follow--ing words : "32. (1) The Central Government, if satisfied with respect to any particular person, that with a view to preventing him from acting in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other power, the main--tenance of peaceful conditions in any part of Pakistan, the maintenance of essential supplies and services or the efficient conduct of military operations or prosecution of war, it is necessary so to do, may make an order ; (b) directing that he be detained ;"
13. It will be noticed that the word "satisfied" is not modi--fied in the rule by the word "reasonably" or any other equivalent expression. Nevertheless the idea of reasonableness, the Court held, had to be imported into rule 32 because section 3(2)(x) of the Defence of Pakistan Ordinance which authorised the making of rules included the following words : "Suspects, on grounds appearing to such authority to be reasonable, of having acted, acting, being about to act."
14. Rejecting the argument based largely on the well known cases of Sibnath Banerji (LR72IA241) and Liversidge v. Anderson (1942 A C 206) cases indeed otherwise of very high authority, the Supreme Court held that the satisfaction of the detaining authority must tie shown to be the result of "reasonable" grounds. The then Chief Justice observed at page 393 "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 that is the power of a Police Officer acting under rule 204. With reference to rule 129 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 had reasonable grounds for his suspicion. Suspicion would include belief or knowledge, he--their inferential or actual. On the same reasoning, it must follow that actions by other and perhaps higher authorities, under rule 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 eamera.
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 construc--petition of the relevant provisions in the Constitution, the Defence of Pakistan Ordinance and the relevant rules that view appears not to be sustainable. It will therefore be necessary in this judgment to consider that evidence and reach a conclusion whether justification existed for the satisfaction expressed by the Deputy Commissioner in his orders of detention."
Mr. Justice S. A. Rahman expressed his doubt whether the satisfaction" of the detaining authority ought to be placed upon the same level as "suspicion on reasonable ground" of an arrest--ing authority. Consequently concurring with the proposed judgment he observed at page 401 "On this view, I venture to think that in the case of detaining authorities, Courts need not insist on the revelation of grounds such as would be regarded as reasonable after adjudication. The 'satisfaction' in such cases should be of the authorities themselves and unless there is a colourable exercise of power for ulterior motives not contemplated by the law, so that the case is one tainted with mala fides, the scope for interference by Courts would be confined to examination of the question whether compliance with the formalities of the statute on the face of the record, is complete or not."
The other learned Judges agreed with the learned Chief Justice.
15. The question was again considered by the Supreme Court in the case of Abdul Baqi Baloch v.
The Government of Pakistan (PLD1968SC313). Disagreeing with the view taken by the High Court the present Chief Justice of Pakistan in delivering the judgment of the Full Court stated at page 324 : "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 v, purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of magistrate 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 informa--petition supplied to them by their subordinates. In the circum--stances it cannot be said that it would be unreasonable for the Court, in the proper exercise of its constitutional duty, to in--sist 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'."
The last of the cases of the Supreme Court to which I consider it necessary to refer is the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD1969SC14), where again the present Chief Justice delivered the judgment of the Full Court. His Lordship stated in a passage commencing at page 32 : "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 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.
There can be no doubt and this is conceded that the Court can satisfy itself that the action taken is not a mere colourable exercise of power or a fraud upon the statute. The question, however, that still remains to be considered is as to whether the reasonableness of the action can be examined when the statute itself does not require the authority to act upon reasonable grounds but leaves him to act upon his own subjective satisfaction. In view of the provisions of Article 98 of the Constitution I am of the view that that degree of reasonableness that at least to be established which has been indicated in the case of Abdul Baqi Baluch. Otherwise if an authority could protect himself by merely saying that he believed himself acting in pursuance of a statute then what would be the material upon which the Court could say that it was satisfied that the detention or impugned action had not been. Taken in an unlawful manner. If the argument be correct that unless the statute itself says that the authority must act reasonably or honestly there is no scope for judicial review then even question of bona fides or good faith would be beyond the scope of judicial review but it has, throughout without any exception whatsoever, been always consistently held that a mala fide action is not action in accordance with law. Decisions are also not wanting to show that very often the requirement of reasonableness has also been added to the requirement of good faith. Indeed it has even been said that, the question of reasonableness would be pertinent in an enquiry as to mala fides. Thus to determine as to whether the officer concerned really believed that facts existed which would. Bring the case within the statute and honestly intended to put the lave into force, the question of reasonableness may well become material but reasonableness in the limited sensor indicated in the case of Abdul Baqi Baluch would always be material. In other words when it is said that no reasonable person could have upon such and such material, formed the opinion that the person detained had brought himself within the mischief of the statute, in effect the contention is that the officer concerned has in these circumstances acted mala fide in law. II make a distinction between mala fide in fact or malice in fact and mala fide or malice in law). Thus, in the case of Cann v. Clipperton Denman. C. J. Said `I am unwilling to say that if a party acts bona fide as in the execution of a statute he is justified at all events, merely because he thinks he is doing what the statute authorises, if he has not some grounds in reason to connect his own act with the statutory provision. In Hermann v. Seneschal it was conceded that reasonable ground or belief was an important ingredient in ascertaining the existence of bona fide.
The real question, to my mind, in every case of mala fides is: Did the authority or officer concerned reasonably believe that his duty as such officer required him to act as he did? A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the "statute justifies him in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner."
16. As a result of the judgment to which I have referred with which I am in respectful agreement and which I am in any case bound to follow, I think the Court ix entitled to be satisfied first that the detaining authority was in fact satisfied that it was necessary to act as it did and not merely that it pretended to be so satisfied. Secondly the Court must be satisfied that the material upon which the authority was satisfied was such as could reasonably lead to such satisfaction. If the Court is not satisfied on either of these points I consider it to be the duty of the Court to declare the detention illegal and to order the detenu to be set at liberty. Further than this, however, I do not think the Court ought to go. 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 aril say that, had we been in the place of the executive authority we would not have ordered the detention of the detenu.
17. The learned Additional Advocate-General placed before us various reports made by the Police from time to time and a number of matters which it is stated were before the relevant authorities at the time when the orders in question were passed. The last of the matters referred in these papers is the report of the S. H. O. Damra to the Superintendent of Police, Larkana to the effect that the detenu has been, in the immediate past, inciting people to acts of violence including arson and attempting to promote feelings of hatred between what are called Old Sindhis and New Sindhis.
Following this report by the S. H. O. The Superintendent of Police than appears to have ordered the investigation by the S. H. O. Who took statements from various witnesses who supported this allegation. In the face of these papers the conclusion that I reach and, I think the only conclusion I can reach, is that the authorities had before themselves material upon which they could reasonably draw the inference which they have done, namely, that unless detained the detenu would indulge in similar activities which are clearly prejudicial to the maintenance of public safety and public order.
18. The only other argument of Mr. Jatoi that remains for examination is the allegation that the order was mala fide. Clearly I am now using the word 'malafide' as meaning malice in fact and not merely mala fide in law, a distinction which his Lordship the Chief Justice of Pakistan has brought out in the case of Shorish Kashmiri to which I have made reference. So far as Mr. Jatoi's oral address is concerned he confined himself to one fact which is admitted, namely, that he was surety for the petitioner. Abdul Hamid Khan Jatoi, when was arrested of criminal charges and directed to be released on bail by the leered Sessions Judge, Larkana. The argument was that the Government had reason on that account to be very displeased with the detenu and also with the petitioner who himself was, after the said order of release on bail, detained under the same Ordinance with which we are dealing in the present case. It is also true that a petition challenging Abdul Hamid Khan Jatoi's detention was allowed by this Court by a judgment announced on 19 June 1972. The learned Judges who announced this judgment, however, did so by a short order leaving their reasons to be recorded thereafter. Since they have not yet recorded these reasons this Bench has not had the advantage of perusing that judgment in full and counsel has also refrained from using any argument based upon that case excepting of course the obvious one that that petition was allowed.
19. Although this is the only fact upon which Mr. Jatoi really addressed us since there were other allegations made, we expressly asked him, after Mr. Jamaluddin Ahmad had finished his arguments, whether he relied on other allegations made in the petition also or not. He then informed us that they too were a part of his case but did not elaborate the matter any further. Now what is alleged in the Petition is that the detenu is a distant relative and close friend and political associate of the petitioner. It is also alleged that the detenu's younger brother is an Advocate and was involved in criminal. Cases at Larkana and that the Chairman of the Pakistan People's Party (that is, Mr. Z. A. Bhutto, the present President of Pakistan) was very annoyed with that brother since he had contested the last election to the Provincial Assembly against the Pakistan People's Party candidate. It is further alleged that in an earlier election of the National Assembly before the Pakistan People's Party was formed the petitioner himself, that is, Mr. Abdul Hamid Khan Jatoi, was a candidate against Sardar Pir Bux Khan Bhutto who is a cousin of the President. It is finally alleged that the younger brother of the detenu, to whom I have referred, appeared as an Advocate for the petitioner, Abdul Hamid Khan Jatoi, in this Court in the Petition challenging the validity of the petitioner's own detention. As a result of all these facts it is claimed that there is a feud between the Pakistan People's Party which is at present in power and the whole tribe of Jatois of Larkana who are led by the detenu and his Advocate brother. From this it is inferred that the party in power wishes to harass and humiliate the most prominent Jatoi family of the District of Larkana and that the present detention is a part of a political campaign of vengeance.
20. I have already indicated to what extent these facts arc admitted and probably judicial notice could be taken of the names of the candidates in previous elections though not of the relationship of Sardar Pir Bux Bhutto to the President; be it noted that the election in which Sardar Pir Bux Bhutto contested took place admittedly before formation of the Pakistan. People's Party. Now it is well settled that the onus of proving mala fides is upon the party who alleges it. It is difficult to reach the conclusion, even if one accepts all the allegations of the petitioner as true, that the orders in question were motivated by a desire to wreck vengeance. The final conclusion of the petitioner that there is a feud between the Jatois and the Pakistan People's Party is altogether fantastic. Feuds exist in this Province between tribes and not between a tribe and a political party. The very fact that Mr. Abdul Hamid Khan Jatoi stood as a candidate of the People's Party recently, as is admitted atth the bar is itself sufficient to discount the existence of any such old standing feud or at least its continuance. It may be, as contended by the counsel for the petitioner that Mr. Abdul Hamid Khan Jatoi personally is not on good terms with one or more leading members of the Pakistan People's Party but that fact even if held proved, and we have no real evidence before us would hardly lead to this conclusion.
21. We must start with a presumption in favour of the bona fides of action of the Government until the contrary isproved. As Cornelius, J. (as he then was) said in the case of Sai Muhammad v. West Pakistan Province (PLD 1958 SC (Pak.) 181) at page 183 : "The correct attitude in estimating the actions of Govern--ment is indeed that they must be regarded as having been taken bona fide until and unless the contrary is established. It is, of course, only in a rare case that a question of good faith underlying a governmental action can be raised with relevancy before the Courts, which are most frequently concerned with the extent to which such actions are covered by the terms of statutory 'instruments. But where the question arises, it is entirely proper and greatly in the public interest that the presumption of good faith should be raised in favour of the action."
22. I do not think it suffices to show that facts exists constituting a motive for the authorities to take malicious action; it must further be established, I think, that the action has in fact been taken on account of such motive. In saying this I must not be understood to mean that I have held that circumstances have in fact been shown whereby even the motive for doing so as opposed to having actually influenced the action have been proved. Learned counsel would have us judge on mala fides in this case in the same fashion as a motive falsely to implicate is regarded in criminal cases as being sufficient to cast doubt upon the credibility of a prosecution witness in a criminal trial. These two situations are not at all comparable. In a criminal case a set of facts is required to be established against the accused person and this can only be done by the evidence of witnesses. Where, therefore, the Court finds that the witness is biased, it may well by reason of the fact that the onus of proof lies on the prosecution, refuse to place confidence in the evidence of such a witness. In a case like the one which we have before us now, on the contrary, the presumption is that the official act has been performed bona fide and it is for the petitioner, I think, to show us that in fact it was done for considerations other than those contemplated by the statute which gives power. In the result I cannot hold that the petitioner has shown any mala fides.
23. It remains now only to consider an argument advanced by the learned Additional Advocate- General that the Ordinance itself having provided an alternative remedy we ought not to exercise our jurisdiction under Article 201 of the Interim Constitu--petition. Perhaps I should have referred to this earlier but since the argument involved the provisions of a subsection which, it was convenient to deal within another context, I have not been able to refer to it until now. His reference is to subsections (6) and (6-a) of section 3 of the Ordinance. Subsection (6) I have already reproduced above and subsection (6-a) is in the following language : "(6-a) Where a representation is made to Government under subsection (6), Government may, on consideration of the representation and giving the person detained an opportunity of being heard, modify, confirm and rescind the order."
It is true that the provision authorises the detenu to make a representation to Government and also require the Government to afford him the earliest opportunity of doing so. I can read in subsection (6-a), however, no duty on the Government to consider the representation and to give the person detained an opportunity of being heard before deciding to modify, confirm or rescind the order.
The subsection certainly authorises the, Government to do so but does not require it to do so. Now Article 201 of the Constitution confers power on the High Court to pass certain orders if it is satisfied that no other adequate remedy is provided by law. I think if we are to accept the argument of the learned Additional Advocate-General we would have failed to give full effect to the word "adequate". No doubt the provision quoted provides a remedy but certainly in the absence of any requirement that the Government shall consider the representation I cannot consider this to be an 'adequate' remedy in matters which concern the liberty of a subject. I am quite sure that the Government would ordinarily consider the representa--petition and it is not upon any suspicion that it would not that I am basing my conclusion. My finding on this point is based only upon the language of the statute which imposes no duty upon the Government.
24. In the result, therefore, I would dismiss this petition.
FAKHRUDDIN G. EBRAHIM, J.-I agree with the conclusions announced by my Lord the Chief Justice and in substance with the reasoning upon which those conclusions are reached.
I must, however, add that I was initially impressed by the contention raised on behalf of the petitioner that the grounds on which the detention order was made, and communicated to the detenu were vague and indefinite and therefore not in substantial compliance of law, as the detenu was, in effect deprived of an opportunity of making representation against detention order in terms provided for under subsection (6) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960.
On further consideration of the matter, I have come to the conclusion that no hard and fast rule can be laid down regarding adequacy or otherwise of the grounds of detention to be communi-- cated to the detenu. Whether the grounds communicated to the detenu are sufficient or not must be judged in the circumstances of each case and the situation giving rise to the order of detention.
My conclusion that the grounds have to be judged in the circumstances of each case, finds support from the following observations of Mr. Justice S. A. Rahman in the case of Syed Sibte- Hassan v. The Crown (PLD 1954 Lah. 142) :- "What information should be conveyed to the detenu which would be sufficient to enable him to make a proper represen--tation, would depend in each case upon the circumstances of the case and upon the ground that has satisfied the detaining authority of the necessity for such detention.
It is difficult to lay down any hard and fast rule about it.
The test therefore is whether in any particular case, the grounds supplied to the person affected by We detention order were in fact such which would enable him to make an effective representation against his detention to Government or not."
The aforesaid observations are quoted with approval of the Division Bench of this Court in the case of Shabir Hasan v. The Crown (PLD 1956 Kar. 301.).
K. B. A.