NOORUL ARFIN, J.-This judgment will state the reasons for the orders made on 27th February 1973 in Constitutional Petitions No. 7.8 of 1973 and No. 79 of 1973, by which Muhammad Yousuf and Muhammad Naqi Nawab, detained under the West Pakistan Maintenance of Public Order Ordi-- nance, 1960 (XXXI of 1960) were ordered to be released from detention. Tine Petitioner in both those petitions is Muhammad Younus, the son of one of the detenus, namely, Muhammad Nagi Nawab and nephew of the other detenu Mohammad Yousuf. The two detenus are businessmen of Karachi.
Muhammad Naqi Nawab is Managing Director of Sanaullah Corporation Limited;" Muhammad Yousuf Is the Managing Direc--tor of Sanaullah Woollen Mills Limited. On 31st January 1973, the Provincial Government of Sind: passed orders under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, for detention of the two detenus for thirty days from the date of service of the orders. The detention `order with regard to Muhammad Yousuf reads as follows :- "No. 1/5-H-(S.1, II)/73: Whereas the Governor of Sind is satisfied that with a view to preventing M.
Yusuf Nawab son of M. Taqi, resident of Prop. Sanaullah, Zalbunnisa Street, Karachi, from acting in a manner prejudicial to maintenance of public order, it 1s necessary that the said M. Yusuf Nawab, be detained; Now, therefore, In exercise of the powers vested in him under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Governor of Sind is pleased to direct that M. Yusuf Nawab son of M. Taqi residence of Prop. Sanaullah shall be arrested and detained for a period of 30 days from the date of service of this order, and will be committed to the custody of the Superintendent, Central Prison, Karachi. He will be treated as Class 'B' detenu."
The detention order in-the case of Muhammad Naqi Nawab reads as under:- "No. 1/5-H(S.1. II)/73.-Whereas the Governor of Sind is satisfied that with a view to preventing M. Naqi Nawab son of M. Taqi residence of Prop. Shop Sannaullab, Zaibunnisa Street, Karachi, from acting in a manner prejudicial to maintenance of public order, it is necessary that the said M. Naqi Nawab, be detained: Now, therefore in exercise of the powers vested in him under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Governor of Sind is pleased to direct that M. Naqi Nawab son of "M. Taqi residence of Prop. Sanaullah shall he arrested and detained for a period of 30 days from the date of service of this order, and will be committed to the custody of the Superintendent Central Prison, Karachi. He will be treated as Class 'B' detenu. "
Both orders are authenticated by Mr. G. Rabbani, Deputy Secretary to the Government of Sind, Home Department. The grounds of detention were drawn up on 15th February 1973, and served on the detenus. These grounds are identical in both the cases, and it will, therefore, suffice to reproduce the grounds from Constitutional Petition No. 78 of 1973:
(1) On 24-3-1972, Crime Branch raided your business concern i.e. Messrs Sannaullah situated at Zaibunnisa Street, Saddar, Karachi, and seized the smuggled goods for which you were sent up to stand trial in Military Court for an offence of smuggling and during the pendency of trial the Martial Law was lifted on 21-4-1972, and the case was transferred to a Criminal Court. The case against you under section 156 (89) Customs Act, 1969 is pending in the Court of City and A. D. M. Karachi."
(2) On 27-3-1967 the Customs authorities had seized 8 trunks of foreign cloth from your firm Messrs Sannaullah of Zaibun Nisa Street Saddar, Karachi,
(3) You still enjoy the reputation of being a dealer in the smuggled goods, like foreign cloth, presentation goods, watches and cosmetics, etc.
(4) In view of your past activities and criminal action and the bad reputation of smuggling that you enjoy, there is a danger that you are likely, if set at liberty, to act in a manner prejudicial to the maintenance of public order by indulging in smuggling.
(5) You are her--by informed of these grounds of detention as required by Article 9(5) of Interim Constitution to enable you, if you so wish to make a representation against the order of your detention. A copy of the detention order has been already served on you."
2. The two petitions were presented to this Court on 5th February 1973, and, in pursuance of a rule Issued by this Court, the detenus were produced in Court on 27th February 1973 Mr. A. K. Brohi, their learned counsel, attacked the orders of detention on several contentions, that is to say:
(i) the order of detention having been made for alleged smuggling activities of the detenus, are bad as the provision contained in explanation (II) to subsection (1) of section 3 of the Ordinance, making the act of smuggling to be an act prejudicial to the maintenance of public order was ultra vires of the Provincial Legislature, as acts of smuggling were within the exclusive competence of the Federal Legislature as evidenced by Items 19, 43, 45 and 66 of the Federal Legislative list in the Fourth Schedule or the Interim Constitution:
(ii) the orders of detentions are invalid, in that the grounds of detention were not relatable to the objects of the West Pakistan Maintenance of Public Order Ordinance, 1960:
(iii) the grounds of detention were bad, irrelevant and vague and showed that no reasonable person could be satisfied as to the necessity of making the orders of detention on the material from which the grounds of detention were drawn up:
(iv) there is breach of subsection (6) of section 3 of the Ordinance, in that there was undue delay In the drawing up as well as in the service of the grounds of detention on the detenus, and
(v) the orders of detention are further invalid, in that they provide detention of the detenus for thirty days from the date of the service-of orders of detention on the detenus.
3. In these cases, it is not necessary to discuss Mr. Brohi's first contention with regard to the vires of Part (II) of the explanation to subsection (1) of section 3 of the Ordinance, that is, that the provision therein with regard to acts of smuggling being acts prejudicial to maintenance of public order is not within the competence of the Provincial Legislature, are, in my opinion, it would be sufficient to rest the decision of these two petitions on the other contentions of Mr. Brohi. For his 2nd, 3rd and 4th contentions, Mr. Brohi based his arguments on my judgment in Liaquat A.I v. The Government of Sind (PLD 1973 Kar. 78 However, Mr. Jamaluddin Ahmed, the learned Additional Advocate-General, suggested that I should reconsider the pro--positions of law which I said in that judgment were applicable to a case of preventive detention which comes before the Superior Court. It was further urged by Mr. Jamaluddin Ahmed that I should make a distinction between the "reasons" for detention and the 'grounds' of detention, the former connoting the purpose and object of detention, the latter expression being employed only with regard to grounds proper, which the detaining authority is required to serve on the dotenu under the detention law. Mr. Jamaluddin Ahmed referred me to the judgment of the learned Chief Justice of Sind and Baluchistan in Altaf Gauhar v. The Province of Sind and others (Constitutional Petitions Nos. 40 and 270 of 1972). In this case, my Lord the Chief Justice made a distinction between a case where grounds of detention include matters which are either not within the legislative competence of the Legislature, or are not relatable to the object of the statute relating to preventive detention, and a case in which the grounds of detention fall within the ambit of the statute, but suffer tram some defect or the other. In the former case, according to the learned Chief Justice, the whole order of detention was rendered invalid, and therefore such grounds should properly be given the nomenclature of "reasons". In the latter case, defective grounds were severable from good grounds of detention and the detention could be upheld on the basis of good grounds alone, treating the defective grounds as non- existent altogether. I do appreciate that if distinction is made between these two classes of cases, then the grounds which are not within the competence of the Legislature or do not fall within the ambit of the statute relating to preven--tive detention, may be termed as 'reasons', and the other matters, that is, conclusions of facts on the material available to the detaining authority, as grounds proper. But, with the greatest respect, and for reasons, which I would discuss hereinafter, I find it difficult to make a distinction between these two classes of cases, so that if the case comes within one class, the whole detention may be rendered invalid, and if the case comes in the other class, the order of detention may be upheld upon grounds which are good and severable from the defective grounds of detention. I will give my reasons for this difficulty. But, before doing so, I think I should turn again to my judgment in Liaqat A.I v. The Government of Sind. In this judgment I had referred to four decisions of the Supreme Court, namely, Ghulam Jilani v. The Government of West Pakistan (P L R 1967 SC 373) Abdul Baqi Baluch v. The Government of West Pakistan (PLD 1968 SC 313) The Government of Pakistan v. Begum Shorish Kashmiri (PLD 1969 SC 14) and the Government of West Pakistan v. Haider Bux Jatoi (PLD 1969 SC 210) and then stated as follows: -- "6. An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (1) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention and, if one of toe grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid:
(iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding Its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive deten-- petition, that the order of detention was made by the authority prescribed in the law relating to preventive detention I that each of the requirements of the law relating to preventive detention should be strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu: that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be" ; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law ; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous con--siderations or for purposes which may be attacked on the ground of malice."
4. In view of Mr. Jamaluddin Ahmad's contentions, I think I should take this opportunity to review again these four decisions of the decisions of the Supreme Court rather in some detail. In the first of these cases, Ghulam Jilani v. The Government of West Pakistan (PLD 1967 SC 373), the provisions of law under consideration were sections 3(1) & (2) of the Defence of Pakistan Ordinance, 1965 and rule3 32 and 204 made thereunder. For the purpose of this case, it is rule 32, which is relevant and which reads as under:- "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 maintenance 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: "
The leading judgment in this case is that of Cornelius, C. J. Who observed that ascertainment of reasonable grounds ix essentially a judicial or at least at quasi-judicial function arid power is expressly given by Article 98 (of the Constitution, of 1962) to the superior Court to probe into the exercise of public power by executive authorities howhighsoever, to deter--mine whether they have acted with lawful authority. The learned Chief Justice bad to construe the word 'satisfaction' in rule 32 of the Defence of Pakistan Rules and in doing it he stated 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. With regard to Liversidge v. Anderson (L R 1942 A C 206) and Sibnath Banerji's case (L R 72 I A 241), the learnt Chief Justice observed:- "It is too late in the day to rely, as the High Court, has done, on the dictum in the English case of Liversidge for the purpose of Investing the detaining authority with complete powers to be the judge of its own satisfaction. Public power is now exercised in Pakistan under the Constitu--petition of 1962 of which Article 2 requires that every citizen shall be dealt with strictly in accordance with law."
At another place in his judgment, the learned Chief Justice said:- "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 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 actions 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 fn the case of Liversidge quoted above, 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 (of 1962) a wholly different state of affairs prevails. Power is expressly given by Article 98 to the Superior Court to probe into theexercise of public power by executive authorities, howhighsoever, to determine whether they have acted with lawful authority.
The judicial power is reduced to a nullity it laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to wake 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 fn 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 . . . . . ."
5. In Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313) the provisions of law under consideration of their Lordships Of the Supreme Court were again section 3 of the Defence of Pakistan Ordinance, 1965, and rule 32 made thereunder. Giving the judgment for the whole Court, Hamoodur Rahman, J. (as he then was) said that "what the Court is concerned with is to see that the executive or administrative authority had before It sufficient materials upon which a reason-- able person could have come to the conclusion that the requirements of law were 'satisfied." I would further invite attention to the following passage from his Lordship's judgment:- "In the case of Nakhuda A.I (L R 1961 A C 66) too the Defence Control of Textile Regulations, 1945 of Ceylon were under consideration. But even so the Privy Council did not extend to the Controller, Acting under the said Regulations, the same immunity as was extended to the Home Secretary. In the case of Liversidge and insisted that the words of the Regulation before the Board, which were to the effect that the Controller could act, in a particular manner. If he "had reasonable grounds to believe" should be treated as meaning that there must, in fact, exist such reasonable ground known to the Controller before he can validly exercise the power . . . .In the case of Faridsons Limited v. The Government of Pakistan PLD 1961 SC 537 both Cornelius, C. J. And S. A. Rahman, J (as be then was), noticed Nakhuda A.I's case but thought that even there the Privy Council had not gone far enough. S. A. Rahman, J. Was definitely of the opinion that the Privy Council should have gone further and held that wherever an executive authority is empowered to determine upon questions affecting the rights of the subjects, there must be added a duty to act "judicially", and that administrative decisions affecting individual's rights and liberties should be quashed If the party concerned had not been given a fair opportunity to make objections . . . . . . . The wording of clause
(b) (i) of Article 98 (2) (Constitution of 1962) 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 tie discharged. In a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of a nature for which privilege can be claimed, than 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.
It Is clear, therefore, that after the decision in Ghulam Jilani's case the High Court should have examined the grounds of detention to test their reasonableness . . . . ."
"Before parting with this question, I would also like to add that though it is true that there is a difference between "being satisfied" and "suspecting upon reasonable grounds" the difference, In my humble opinion, is this that the former connotes a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken it out of the stage of suspicion."
6. Hamoodur Rahman, J., (as he then was) again came to the subject of preventive detention in the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmirl. In this case, his Lordship had again occasion to discuss at length the scope of judicial review under Article 98 of the Constitution of 1962, which stood as under "98. (1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law.
(2) Subject to this Constitution, a High Court of Province may, if it is satisfied that no other adequate remedy is provided by law -
(a) on the application of any aggrieved party make an order-
(1) directing a person performing In the province functions in connection with the affairs of the Centro, the Province or a Local authority to refrain, from doing that which he Is not permitted by law to do, or to do that which he is required by law to do ; or
(ii) declaring that any act done or proceeding taken in the province by a person performing functions in connection with the affairs of the Centro, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect a or:
(b) on the application of any person, make an order:
(i) directing that a person In custody in the province be brought before the High Court so that the Court may satisfy Itself that he is not being held in custody without lawful authority or in an unlawful manner ; or
(iii) requiring a person in the Province holding or pur--porting to hold a public office to show under what authority of law he claims to hold office : or
(c) on the application of any aggrieved person, make an order giving such direction to any person or authority, including any Government, exercising any power or per, forming function In, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter 1, of Part II of this Constitution."
After noting these provisions, his Lordship stated the rule as to the scope of judicial review as follows: "In my opinion the learned Advocate-General of East Pakistan is perhaps nearer the mark than the others. In my view the words "in an unlawful manner" in sub-clause (b) of Article 98 (2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would Inevitably have first to see whether the action is in accordance with law, if not, then It is action in an unlawful manner. Law is here not confined to statute law alone but is used In its generic sense as connoting all that is treated, as law in this country including even the judicial principles laid down from time by time by the Superior Courts. It means according, to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in anew garb. It is in this since that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action In accordance with law. Action taken upon no ground at all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would therefore have to be struck down as being action taken in an unlawful manner . . . . . . . . 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 Clauses (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."
With regard to the Superior Court's competence to examine the reasonableness of executive action, his Lordship observed as under :- " . . . 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 questions of bona fides or good faith would be beyond the scope opt 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 law into force, the question of reasonableness may well become material but reasonableness in the limited sense 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."
Proceeding further his Lordship stated: " . . . We are Inclined to agree with the learned counsel appearing on behalf of the respondent in this appeal that the amendment of clause (x) of the Defence of Pakistan Ordinance has been an exercise an futility. The splitting up of the provisions has in no way affected the reasons given by this Court in Ghulam Jilani's case. If it is an Incident of the power of judicial review granted to this Court by Article 98 of the Constitution then the question as to whether there are grounds upon which a reasonable person would have formed the same opinion Is certainly within the ambit of the power of judicial review no matter what the language used in the sub-Constitutional Legislation."
Dealing with the question of the scope of the executive or administrative action under the Defence of Pakistan Ordinance, 1965, and the rules made thereunder, his Lordship said: "In this connection I would also like to point out than it is a misconception to think that either under the Defence of Pakistan Ordinance or the rules framed thereunder any arbitrary, unguided, uncontrolled or naked power has been given to any authority. My approach to these Provisions is that they have only conferred a power which is coupled with a duty. The power can only be exercised after the duty has been discharged in accordance with the guidelines provided in the statute and the rules. Thus both under clause (x) of subsection (2) of section 3 of the Ordinance and rule 32 of the rules, the duty cast upon the authority empowered to detain is to apply its mind to the particular matters mentioned therein, namely, as to whether the action of the person sought to be detained was in any manner prejudicial to Pakistan's relations with foreign powers, or to the security the public safety or interest the defence of Pakistan or any part thereof, the maintenance of supplies and services essential to the life and to the community, the maintenance of peaceful conditions in any part of Pakistan or the efficient conduct of military operations for the prosecution of war and then to form an opinion as to the necessity of the detention. Until such an opinion is formed by the honest application of the mind of the detaining authority the jurisdiction to make the order of detention cannot arise."
7. The last of the four decisions of the Supreme Court which formed the basis of my judgment in Liaquat A.I v. The Government of Sind is that of Government of West Pakistan v. Haider Bux Jatoi. In this case, the late Mr. Haider Bux Jatoi was detained under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960. Several grounds of detention were communicated to Mr. Jatoi, and, after he had made a representation against his detention, the Government referred the case to the Review Board for their opinion whether there was sufficient cause for Mr. Jatoi's detention for a period exceeding three months. The Board recommended Mr. Jatoi's detention for a period exceeding three months on several grounds, one of which was that Mr. Jatoi was an author of a poem captioned "Salam-e-Sind Re Sind", some verses of which were stated to convey an impression that he was a protagonist of Akhand Bharat, wishing for the revival of Hind, which meant the undoing of Pakistan. The High Court found that the Board had based its opinion on a ground on which the original order of detention was not raised and which ground was not communicated to the detenu, this ground being that "the detenu was a protagonist of Akhand Bharat, wishing for the revival of old Hind, which meant undoing of Pakistan". It being found by the High Court that there was no basis or justification for forming such opinion, and since It would not be said how far the Board was influenced by this ground, the opinion of the Board that there was sufficient cause for detection of the respondent was outside the scope of subsection (5-d) of section 3 of the Ordinance. The High Court based its judgment on the Full Bench decision, Rehmat Elahi v. The Government of West Pakistan (PLD 1965 Lah. 112) in which it was held that if there are more than one grounds on which the order of detention is based, then each ground has contributed to the satisfaction of the detaining authority and no ground can be excluded from consideration in judging too legality of the order of detention and that wrongful inclusion of ground renders orders of arrest and detention illegal. The judgment of the Supreme Court was delivered by Muhammad Yaqub A.I, J. Who noted two contentions put forth by the Government of West Pakistan in support of its appeal to their Lordships. The first contention was that the High Court had substituted its own interpretation of the poem Jie Sind for the interpretation of the Board. This contention was repelled by their Lordships. The second contention was, that other grounds of detention had received no consideration in the High Court, and it was omitted from notice that while forming its recommendations the Board could have called for other material to satisfy themselves that the detention was proper, but this contention also found no force. His Lordship repelled this contention by quoting the following passage from Gawer C. J.'s judgment in Keshaw Talpage v. Emperor (AIR 1943 FC 1); "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 reasons had been before them."
By quoting this passage, I understand his Lordship to have approved the conclusion of the High Court that as the Board had formed its opinion on the ground that the detenu was a protagonist of Akhand Bharat, for which there was no basis or Justification, It could not be said how far the Board was influenced by this ground, and therefore the opinion of the detenu was outside the scope of subsection (5-d) of section 3 of the Ordinance. I further understand his Lordship to have approved the reliance of the High Court on the Full Bench decision in Rehmat Elahi v. The Government of West Pakistan the judgment in which case being that of his Lordship himself as Judge of the High Court of West Pakistan and in which his Lordship laid down the rule that wrongful inclusion of a ground renders the orders of arrest and detention illegal, as if there are more than one grounds on which the order of detention is based, then each ground contributes to the satisfac--petition of the detaining authority and no ground can be excluded from consideration in judging the legality of the order of detention. Would it, be possible to salt that his Lordship, when giving the judgment for the whole Court in the Government of West Pakistan v. Haider Bux Jatoi intended to depart from what he had said in the Full Bench judgment of the High Court of West Pakistan merely because he took note of a contrary view expressed by Munir, J., (as he then was) in Rafique Ahmed Sheikh v.
The Crown (PLD 1951 Lah. 77). I would venture to say that his Lordship in no way differed from his earlier view. Reference by his Lordship to Keshaw Talpade v. Emperor would have no meaning if his Lordship had not intended to adhere to the rule he laid down in Rehmat Elahi v. The Government of West Pakistan. His Lordship took note of the view expressed by Munir, J., in Rafique Ahmad Sheikh v.
The Crown only to show that even Munir, J.'s judgment did not advance the case of the Government of West Pakistan before the Supreme Court.
8. I would now, with respect, summaries some of the principles to be applied to cases of preventive detention which, according to my understanding, their Lordships of the Supreme Court have laid down in the four cages which I have discussed above. But, before doing so, I may note here that Article 201 of the Interim Constitution is in identical terns to Article 98 of the Constitution of 1962 and, likewise, in essential respects, section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 is similar to rule 32 of the Defence of Pakistan Rules which were under consideration before their Lordships in three of the four cases referred to above Further, Article 3 of the Interim Constitution is the same as Article 2 of the Constitution of 1962 and Article 3 should be read with Article 8 of the Interim Constitution which provides that no person shall be deprived of life or liberty save in accordance with law. Now, as to the principles deductible from these four cases, these are:
(i) It is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law, that is according to the accepted norms of legal process and in strict compliance with all the functions and duties laid down by law.
(ii) The Superior Court is expressly empowered to probe into exercise of public power by executive authorities to determine whether they have acted with lawful authority and in lawful manner.
(iii) The burden lies on the detaining authority to show the legality of the preventive detention, for which purpose the authority must place the whole material, upon which the order of detention is based, before the Court, the validity of the claim of privilege with respect to any document being within the competence of the Court alone to decide.
(iv) The exercise of power by the detaining authority is subject to the ascertainment of reasonable grounds, which is a judicial or quasi judicial function.
(v) Action taken without proper application of the mind of the detaining authority would not qualify as action in accordance with law and the power to order detention of a particular person is coupled with the duty to apply the mind as to the necessity of such person's detention on the material available to the authority.
(vi) The superior Court is empowered to examine the reasonableness of the action of the detaining authority, that is to say, to see whether a reasonable person would have formed, on the material available to the detaining authority, the same opinion as formed by the authority with regard to the detention of the detenu, anti In doing so it would be competent to also consider whether the grounds are within the law making power of the Legislature and within the ambit of the statute relating to preventive detention and are not non existent and are otherwise not bad.
(vii) "Satisfaction" of the detaining authority means a state of mind which has been induced by the existence of reasonable grounds for such satisfaction. The word "satisfaction" connotes a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken-it out of the stage of suspicion.
(viii) The superior Court is empowered to make an enquiry into the bona fides or good faith of the action taken by the detaining authority.
(ix) If there are several grounds of detention, then each ground contributes to the satisfaction of the detaining authority and no ground can be excluded from consideration in judging the legality of the order of detention and wrongful inclusion of any ground would render the orders of arrest and detention illegal.
9. What I said in my judgment in Liaquat A.I v. The Government of Sinn; should be considered in the light of these principles, which to my understanding, are contained in the four decisions of the Supreme Court discussed by me. I do not think that it can be disputed that an order of preventive detention should be based on material on which a reasonable person could be satisfied that preventive detention is necessary. Nor do I think it can be disputed that the rule is that satisfaction of the detaining authority should be established with regard to each of the grounds of detention. If the detaining authority lacks satisfaction on any of the grounds, but still makes such ground as one of the reasons to order are preventive detention, then can it be said that the detaining authority is in fact "satisfied", that is, convinced that it is necessary to order preventive detention of a citizen.
Would such an order be in compliance with statutory requirement or would such an order satisfy the test that the detain--ing authority had in fact applied its mind to the necessity to order preventive detention of a person? My answer would be in the negative, and I hold this opinion because I am required to do so by the four decisions, referred to above, of their Lordships of the Supreme Court. In Liaquat A.I v. The Government of Sind, I further said that, If one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid.
If a ground of detention is, in fact, absent, could it still be maintained that that degree of satisfaction, which the law requires for making an order of preventive detention, is present and again, would not the absence of a ground of detention show that there was no proper application of mind by the detaining authority as to the reces4ity to order preventive detention? If a ground is, In fact, absent, it would be difficult to say as to whether this ground, or other grounds, weighed more with the detaining authority to order preventive detention As regards bad or irrelevant grounds, these terms may include such matter or matters for which It is not within the competence of the Legislature to make laws fore preventive detention, or these grounds may not be relatable to: the object of the law providing for preventive detention, or may not fall within the ambit of such law, or they maybe grounds on which no reasable person could reach the conclusion that preventive detention is necessary. If any of the grounds of detention comes within this class, then in my humble opinion, the whole order of detention would be vitiated, because, to hold otherwise would permit- the detaining authority to order detention of a citizen in contravention of the law permitting a citizen to be preventively detained. Again, I do not find it possible to subscribe to the view that such grounds may be severable from good grounds, and, if so, then the order of detention should be upheld, because in my opinion, it can never be said with certainty as to which of the grounds operated with more weight upon the mind of the detaining authority the bad grounds or the good grounds and whether preventive detention would still have been ordered if the detaining authority was conscious that some of the grounds are bad. Further, if an order of detention is based on a ground which is bad, then this is a failure to meet with the requirement of law under which preventive detention is permissible and it would be legitimate to take the view that such order is not reasonable exercise of the power to order detention. In Liaquat A.I v. The Government of Sind, I also said that "the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law." Notwithstanding the persuasive arguments of Mr. Jamaluddin Ahmad. I would still adhere to this view. Vagueness in the grounds may be evidence of the vagueness in the mind of the detaining authority and the failure on the part of the detaining authority to apply its mind properly and conscientiously to the available material to find out whether there is imminent and real necessity to order preventive detention of a citizen.
Further, in cases where the grounds of detention are vague and indefinite, the case has to be considered from two points of view. Firstly, there is statutory (or constitutional) failure on the part of the detaining authority to supply the detenu with grounds of detention. I would here refer to subsection (6) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, which reads as under: "(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: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against public Interest to disclose."
This provision may be compared to Article 9(5) of the Interim Constitution, which reads as under; "(5) when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, but not later than one week from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order; Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose."
The detaining authority may withhold from the detenu only such facts which it would be against public Interest to disclose. But short of this, all necessary facts should be communicates to the detenu so as to enable him to make representation against his detention. In other words, the grounds of detention to be communicated to the detenu must contain particulars or facts which would enable him to make a representation. If the grounds are not precise and lack particulars, then this would constitute an omission to comply with the requirements of law, and, since, the liberty of the citizen is involved, the Courts would insist or strict compliance with every requirement of law which permits a citizen to be preventively detained. When I say that the grounds should not be vague. I am strictly Interpreting subsection (6) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, which places an obligation on the detaining authority to communicate to the detenus all the facts which constitute the basis of the order of detention except those facts which it is not In the public Interest to disclose. Secondly, vague and indefinite grounds would, in effect, deprive the detenu of the statutory (or constitutional) right to make a representation against his detention. This is infringement of the detenu's statutory (or constitutional) saferguard. The West Pakistan Maintenance of Public Order Ordinance, 1960, does not place any obligation on the detenu to apply for more particulars from the detaining authority to remove vagueness from the grounds of detention, so that he may be able to make a representation against his detention. If any obligation is placed by this law, It is upon the detaining authority which should supply to the detenu grounds of detention with such particularity and preciseness as would enable him to make an effective representation to the prescribed authority against his detention. It was contended that the grounds which are vague may be ignored as non- existent grounds, and then the detention would still be valid on the remaining grounds which contain sufficient particulars to inform the detenu of the reasons of his detention. Reference was made to a Full Bench decision of the Bombay High Court, In re: Rajdhar Kalu Patil AIR 1941 Bom. 334 In support of this contention. But I regret that I cannot accept what the chief Justice of Bombay had to say on this subject as correct proposition of law. According to the learned Chief Justice of Bombay, the detenu should ignore vague grounds and treat them as nonexistent. Should the detenu then be required to confine his representation only to the grounds which he considers to be sufficiently precise and comprehensive? Should he say to the authority prescribed to consider his representation that, in his opinion, the other grounds on which the representation is silent are vague and Indefinite, or should his representation not refer to these vague and indefinite grounds at all? Suppose the detenu adopts the latter course, then what would the prescribed authority have to say with regard to the grounds on which the representation is silent and would not the very silence of the detenu on these grounds persuade the authority to approve or recommend the detenu's takes up the issue of vagueness in some of the grounds with the authority to whom he is required to make representation. It may be that this authority does not agree with the detenu that some of the grounds are, in fact, vague. Who is then resolve the conflict between the detenu and the authority which Is to consider his representation against detention. The answers to these problems are not found in the Bombay judgment. In my humble opinion, the proper forum to challenge the validity of detention on the, contention that some of the grounds are vague is the Court, and the Court alone, and, If some of the grounds are, in fact, found to be vague by the Court, then the order of detention itself would be vitiated on the ground that there was failure to meet with the statutory (or constitutional) requirements relating, to preventive detention. I have above referred to Munir, J. 's decision in Rafique Ahmed Skaikh v. The Crown, in which it was held that the proposition that the order of detention is vitiated if some of the grounds are outside the ambit of the law relating to preventive detention, had been stated broadly. A full Bench decision of Lahore Mst. Nasim Fatima v. The Government of West Pakistan (PLD 1967 Lah. 103), has followed this view.
With the greatest respect and humility, I would say that this view was contrary to what had been laid down by the Federal Court of undivided India in Keshaw Talpade v. Emperor, a judgment which was binding and which, I venture to say, is still binding on the High Courts. The question now is whether this rule should be appiled only to cases where some of the grounds of detention are either not within the competence of the Legislature to make law, or do not fall within the ambit of the statute relating to preventive detention, or is this rule applicable also to cases where grounds of detention suffer from such infirmity as vagueness and lack of particularity. I have above given reasons for the opinion that vagueness In the grounds of detention infringes the statutory (or constitutional) requirements under which the detaining authority Is under obligation to supply grounds to the detenu with such particulars as are necessary to enable him to make an effective representation against his detention, except such particulars which it may not be in the public interest to disclose I am further of the view that this rule should be applicable to all cases where some of the grounds are such that no reasonable person could reach the conclusion that there is imminent and real necessity to order preventive detention of a person. This conclusion would follow from the opinion of their Lordships of the Supreme Court given in the four decisions which I have discussed above at length, that reasonableness of the grounds of detention is open to judicial review. I find it difficult to accept the contention that the order of detention may still be upheld by the Court if some of the grounds on which the order is based are found unreasonable.
That the rule on this subject is what I understand it to be is further made very clear, in my humble opinion from the judgment of the Supreme Court in the Government of West Pakistan v. Haider Bux Jatoi. One of the grounds of detention In this case was as follows:- "(3) That you have written/recited and circulated or caused to be circulated, amongst other, the following hand-bills and posters:
(i) Hand-bill captioned Salem-e-Sind (In Sindhi).
(ii) Hand-bill captioned Baluchistan Zindabad (in Sindhi).
The contents of these posters and hand-bills criticised the Sindhis for accepting the "One Unit" and described the "Waderas" as yes-men of Government. They also instigated the people of Sind to wake up and do something as done by Viet Namese."
The activities mentioned in this ground may possibly be Interpreted to mean that the detenu was inciting the public to violent struggle such as being waged then in Vietnam. Another ground referred to by the Review Board was Jie Sind'. The Review Board interpreted this poem to mean that the detenu in that case was a protagonist of Akhand Bharat, that is, United India and was, therefore, interested in the undoing of Pakistan, Now it is possible to take the view that activities which show a person to be a protagonist of Akhand Bharat and interested in the undoing of Pakistan do come within the purview of the West Pakistan Maintenance of Public Order Ordinance, 1960 and are also within the law-making power of the Legislature. Yet the High Court excluded this ground, because it took the view that this inference could not be drawn from the poem 'Jie Sind`, This was not a ground of the nature noticed in Keshaw Talpade v. Emperor, and Rehmat Elahi v. The Government of West Pakistan. Nor can it be said that this ground is in the nature of a ground not relatable to the objects of the Ordinance. But the conclusion was that upon the material placed before the Court, that is the full poem 'Jie Sind', adverse inference could it be drawn against the detenu and the interpretation placed upon the poem by the Review Board was incorrect.
Accordingly, the ground relating to this poem was held to have been wrongfully included amongst the grounds on which the Review Board approved the detention of Mr. Haider Bux Jatoi. Their Lordships of the Supreme Court also took the view that this ground was rightfully excluded from consideration by the High Court. Now this was exclusion of a ground which, if true, would have property fallen within the law-making power of the Legislature and within the ambit of the West Pakistan Maintenance of Public Order Ordinance, 1960. Nevertheless, since the interpretation placed upon the poem "Salem-e-Sind' by the Review Board was found to be incorrect and since the allegation that the detenu was a protagonist of Akhand Bharat, which was relied upon by the Review Board, had not been included in the grounds of detention served upon the detenu, the whole order of detention was declared invalid, even though a possible view could be taken that there were other grounds on which the validity of the order of detention could be upheld, such as alleged incitement of the public to violent struggle of the nature then waged in Vietnam. In this very case, that is, The Government of West Pakistan v. Haider Bux Jatoi the grounds, that the detenu was an irreconcilable opponent of One Unit, and that the criticised the Government as autocratic and dictatorial, were not held to be sufficient grounds on which satisfaction could be reached that Mr. Haider Bux Jatoi should be preventively detained.
Now, if in a case some of the grounds are of this nature, that is, they are of a nature on the basis which no reasonable person could come to the conclusion that there was real and imminent necessity to order preventive detention of a person, then would the order of detention be maintained if some other grounds are sustained by the Court. I would reiterate my view that the whole order of detention would be rendered invalid, because it can never be said with certainty as to which of the grounds, that) is, bad or good grounds, operated upon the mind of the detaining authority, so as to give satisfaction to It to order preventive detention. If the Court were to exclude the grounds which are not good and uphold the order of detention on grounds which are sustained by the Court, then this would amount to performing the role of the Court of appeal, because the Court would be substituting its own opinion for that of the detaining authority, a role which their Lordships have been at pains to discourage In the judgment to which I have referred above.
10. Coming now to the grounds of detention supplied to the two detenus, we find that the first ground relates to the seizure of goods from their shop at Zaibunnisa Street in March 1970. The ground itself states that this seizure of goods, on the allegation that these were smuggled goods, was subject of the detenus' trial before the Military Court on the offence of smuggling, and that, on the listing of the Martial Law, the case had been transferred to a Criminal Court where it is still pending. In Liaquat A.I v. Government of Sind I had taken the view, which I reiterate, that where definite charges are brought against the detenu foil substantive offences and the detenu is undergoing prosecution therefore, 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 or preventive detention under the West Pakistan Maintenance or Public Order Ordinance, 1960. Mr. Jamaladdin Ahmed was unable to show any cogent reason that the present detenu should not only undergo prosecution for a substantive offence, but should also be preventively detained for the same offence. In my view, to base the order of detention on a charge for which the detenus are facing regular trial in a Criminal Court is unreasonable exercise of the power to order preventive detention. The second ground of detention relates to the seizure of some goods, alleged to be smuggled goods, from the detenus' shop some time in March 1967 by the Customs Authorities.
Now, this seizure of goods was subject-matter of a constitutional petition brought in the High Court.
The High Court held the seizure to be illegal and the finding of the High Court was upheld by the Supreme Court whose judgment is reported in PLD 1969 SC 153. It is not disputed by Mr. Jamaluddin Ahmed that after the Supreme Court judgment, no further action was initiated or has so far been initiated by the authorities with regard to the goods seized in 1967. In fact, under the judgment of the High Court, upheld by the Supreme Court, the goods have been restored to the detenus. In these circumstances, it is not possible to draw the inference, which the detaining authority seems to have done, that the goods seized in 1967, were smuggled goods. In the third ground, the allegation is that the detenus still enjoy the reputation of being dealers in smuggled goods. This is too vague a ground to be the basis of an order of detention. Can it be possibly said that the detenus can effectively make a representation against this ground? Likewise, the fourth and last ground of detention cannot be made the basis of preventive detention under the West Pakistan Maintenance of Public Order Ordinance, 1960. This ground repeats the allegation of bad reputation contained in the third ground and then refers to the detenus' "past activities and criminal action." The only particulars of past activities and criminal action given in the grounds are found in Grounds Nos. 1 and 2, both of which, as I have held, fail to provide sufficient legal basis for the order of detention impugned in the proceedings before us. No other instance of the detenus' past activities or criminal action has been given. In my opinion, the order of detention cannot be justified on any of these grounds and should, therefore, be held to be bad.
11. The order of detention of the two detenus have also been rendered invalid on account of infringement of the require--ment contained in subsection (6) of section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, that the grounds of detention should be communicated to the detenus as soon as may be after a detention order has been made. In Liaquat A.I v. The Government of Sind; where the grounds of detention had been served nearly fifteen days after the order of detention, I had held that there was inordinate delay in communicating the grounds of detention to the detenu, and therefore there was infringement of the statutory requirement which rendered the detention invalid. Mr. Brohi brought to my notice a Peshawar decision In Moulvi Ghulam Ullah Khan v. The District Magistrate, Campbellpur (PLD 1967 Pesh. 195In that cafe, the Impugned order was made under section 5(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, which contains provisions under which the Government may control the entry, residence etc. Of a suspected person in any area. Subsection
(3) of section 5 requires that the grounds for making an order under subsection (1) shall be communicated to the person affected by such order "as soon as may be". Sub--section (5) of section 5 and subsection (6) of section 3 of the Ordinance are in identical terms. Faizallah Khan, J., giving the judgment of the Division Bench, held that grounds under subsection (5) of section 5 should ordinarily be served along with the order made under subsection (1) and in exceptional cases with in twenty-four hours of the order, this dead line being fixed by the learned Judge in view of the fact that section 5 of the Ordinance was an encroachment on the fundamental rights of the citizens, and that the right of making representation to the Government would be rendered illusory if the grounds were served later than twenty-four- hours. In the two cases before us, the detaining authority has taken as many as fifteen days to serve the grounds of detention on the detenus. This undue delay in the communication of grounds of detention is infringement of the statutory requirement contained in subsection (6) of section 3 of the Ordinance and thus renders the very detention invalid.
12. Lastly, we would hold the orders of detention to be invalid on the ground that under these orders the deten--petition was to commence from the service of orders on the detenus. We respectfully adopt the view of another Division Bench of this Court taken in Mohammad v. The Deputy Commissioner and another (Constitutional Petition No. 495 of 1972, that the law does not authorize that the period of detention should be computed from the date of the service of order of detention on the detenu, as the object of the law of preventive detention is not that the detenu should suffer a quantity of time in detention, but the object is that the, detention should be in effect for a period of time commencing at the beginning of a particular time and ending on a particular date.
For the foregoing reasons, the orders of detention impugned in the proceedings before us are quashed. The detenue were already set at liberty by the orders made by this Bench on 27th February 1973, and this judgment gives the reasons for those orders.
KHUDA BAKHSH MARRI, J.-I agree.