TUFAIL ALI A. RAHMAN, C. J.-In these two cases we have before us applications for amendment of the main petitions which question the legality of the detention of the detenus, These applications arise in the following circumstances.
2. In each of these two cases the detenu was arrested and detained under an order of the Government of Sind purported to be made under the Defence of Pakistan Rules. In each case considerable arguments had taken place and the only witness sought to be examined, namely, the then Home Secretary, had been examined, cross-examined and re-examined. Virtually all that remained to be done in these cases was a reply by the Advocate-General except of course for the fact that thereafter we would have given judgment. In the meantime upon the 17th of October 1972, both the detenus were released because by an order of that date the Government of Sind cancelled their previous order. However, by an order dated one day earlier the Central Government had issued a fresh order in each case directing the detention of the detenus for three months more. In these circumstances Mr. Fazeel, learned counsel who appears for both the detenus has prayed that the petition be amended so as, among other things, to implead the Central Government and to add the facts which I have mentioned and certain grounds.
3. The question before us is whether in these circumstances it is necessary for the detenus to make a fresh petition if they seek to challenge the legality of their detention or it is permissible to them to insist that the same petitions ought to continue, with of course appropriate amendments. Mr. Fazeel candidly told us that he is unable to find any case in which the question, whether amendment ought to be allowed or not, has been considered. He did, however, say and from our own knowledge we readily agreed that he is right in so saying, that there have been cases in which amendments have been permitted. The question, however, is whether as a matter of law and propriety such a petition ought to be allowed to be amended in the circumstances which arise in the present cases. Learned counsel relied for the purposes of his argument mainly upon the case reported as Basanta Chandra Ghose v. Emperor (A I R1945 FC 18). It would be a sufficient description of that case for the present purpose to say that in that case an order had been passed by the Government of Bihar upon the 19th of March 1942, and later cancelled and replaced by a fresh order dated the 3 July 1942, by the same Government. The case in question considers not the propriety or otherwise of amendment but other constitutional matters which have no bearing upon the question before us and it is indeed only upon the last para-graph of the judgment that learned counsel has relied : "it was finally contended that as the previous order of this Court directed an enquiry into the validity of the detention under the order of 19th March 1942, the decision of the High Court must be limited to that question and that it was not open to the High Court to base its decision on the subsequent order of 3rd July 1944. This contention proceeds on a misapprehension of the nature of habeas corpus proceedings. The analogy of civil proceedings in which the rights of patties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked here. If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of petitioner. The appeal fails and is dismissed."
The proposition that in cases of this kind the Court is concerned Only with the legality of the detention of the detenu at the time of the judgment and not the validity or otherwise of any previous orders is laid down in this case, with which we are of course in respectful agreement, but by now this principle is so well established as hardly to need citation of authority. It is quite clear that if a detention can be shown to be legal at the time of the judgment then the fact of any previous illegality will not affect the judgment unless of course that previous illegality itself affects the legality of the present detention in which later event it could hardly be held that the present detention is legal. We would have no hesitation in a case, for example, where a detenu is released by the order of the Government to say no more than this that the petition requires no further orders; it being no part of our duty to pass a declaratory decree as to the validity or otherwise of past detentions. To that extent, therefore, there would seem to be no doubt that the duty of this Court would end if there have been nothing more than an order of release.
4. The question is complicated, however, by the fact that there is not, in these cases a simple order of release but a subsequent order of further detention by the Government of Pakistan. Now an affidavit has been filed in each of these cases which alleges that there was in effect no real release in these cases and that the detenus have continued to be in detention, for example, in the case of Usman Kennedy, it is stated that a although he was allowed to leave the main gate of the prison, he was not in effect allowed even to go as far as to the gate of the compound and he was arrested before he could really be said to have enjoyed liberty even for s moment. The Government of Sind has not chosen to file a counter-affidavit and we must, therefore, for the purposes of the present application, at any rate, assume these facts to be correct. It might be said that outside the prison gate, though inside the prison compound, a person is not necessarily in confinement, for example a visitor going to see a detenu can hardly be said to be in confinement because he has entered the prison compound. To our mind, however, to decide upon so severe a technicality would be to indulge in a mere quibble. It is the essence of the matter and not the mere fact that the detenu wasrd once outside the prison gate and inside the compound wall that must be considered. The substantial question which is relevant to the present cases is however entirely different and, that is, that the authority under whose order the detenus are at present confined is not the Government of Sind but the Government of Pakistan who admittedly was never a party to these proceedings uptill now. The Federal Court case to which reference has earlier been made even if regarded as an authority for the proposition that an amendment ought to be allowed in such cases would have no application because in that case all the orders in question were admittedly those of the Government of Bihar. Mr. Fazeel, therefore, relies upon the case of Mr. Altaf Gauhar which is presently in this Court and argues that in more similar circumstances an amendment application has been allowed and the case is even now being heard. We think, the circumstances are slightly different. In the case of Altaf Gauhar the challenge that was made to the detention of Altaf Gauhar was first by Constitutional Petition No. 40 of 1972 in which the Government of Sind alone was the respondent. The Government of Pakistan or any of his officers were never respondents. That petition has not yet been finally disposed of though an application for bail was dismissed by a Bench of this Court. Technically, therefore, that petition was still alive when leave was granted by the Supreme Court to consider the legality of the order of bail. The nature of the grounds, however, upon which the order of dismissal of the bail application was based was such that bad nothing intervened, it seems quite plain that the petition also would have stood dismissed inasmuch as the Bench decided that they had no jurisdiction to entertain the petition. Several things, however, did intervene, the main being that when that case went to the Supreme Court it was heard along with the case of Asma Jilani which is now reported and the Supreme Court overruled the case of Dosso, which till then held the field and this made a very fundamental difference to the law as it then stood in our country. There was a subsequent order, by the Government of Sind, effecting re-arrest of Mr. Altaf Gohar, which was challenged by means of Constitutional Petition No. 270/72. While that petition was still pending, somewhat the same things, as has taken place in the present case, took place also, namely, that the Central Government passed its orders and it is on these facts that learned counsel places his principal reliance as showing that this Court in virtually undistinguishable circumstances allowed the amendment of the petition. The order upon which reliance is paced is one dated 21-7-1972 and read, thus : "subject to all just exceptions the application is allowed. Since the amended petition has been filed, notice to issue to the respondents for a date in office."
Now, it is to be noticed, to start with, that this was only subject to all just exceptions. No objection has been taken thereafter to the continuance of that petition and it would be improper for us to make any further comments in this case inasmuch as those petitions are still pending and we would wish to say nothing in this case which would prejudice the hearing of that case.
5. On principle we have no doubt, whatever, that the Court is bound to examine the legality of the detention of the detenus under Article 201 of the Interim Constitution provided that our jurisdiction under that Article is properly invoked. The question really, therefore, before us, is not, whether or not we are bound to examine the legality of that detention--we undoubtedly are. The real problem is whether our jurisdiction has been properly invoked. The learned Advocate-General took the stand, quite properly, we think, that although he was willing to render such assistance as the Court might ask for, he was completely indifferent to the fate of this application. Even if the amendments were allowed he would take the stand, and we think it quite right that he should, that the Government of Sind was no longer interested in the matter. If the Court uphad the detention it was not a matter of concern to them and if it failed to do so they were not interested since it was not their present desire to keep the detenus confined any further. He, however, did say purely by way of assisting the Court, that in that event there was no reason why the Sind Government should any longer continue to be a party and that, therefore, the proper course for us would be to refuse amendment.
6. The learned Attorney-General to whose assistance we are greatly indebted was kind enough, at very short notice, to agree to argue the matter before us. The order by which we gave him notice makes it very clear and we make it clear now also, that the notice was not to the Central Government but a mere request to the Attorney-General to assist us. He has argued that to use expression like `infructuous' in the present case is wholly Inappropriate. A petition is said to be infructuous when the relief claimed can no longer be of any use. It would be doing violence to the English language, if not to the feelings of the detenus, to say that the relief now claimed by them would be of no use to them. It would be obviously of real benefit to them since they are in physical custody. The learned Attorney-General's point, however, was that since this petition was only concerned with the validity of the present detention the petition had in fact abated and therefore, there was no need for judgment whatever and he particularly called our attention to the case of Malik Ghulam Jilani v. Government of West Pakistan (PLD 1967SC373), in which at page 400 His Lordship the then Chief Justice observed as follows :- "It remains to mention that during the course of the hearing of these appeals all the three detenus were released by the Provincial Government. In the ordinary course, such release would have had the effect of causing the appeals to abate, but in these cases learned counsel urged that since in each case the detention had exceeded a period of nine months, the detenu had thereby incurred disqualification in respect of their right to stand for elections to representative offices, by the effect of section 53 of the Electoral College Act and section 106 of the National and Provincial Assemblies (Elec--tions) Act. Each of them was a politician of stand and was gravely prejudiced by this result in respect of his future political career and each of them was therefore interested to establish that his detention was illegal. The Court was therefore asked to record a decision as to the legality of the detention order of the 16th February 1966."
With the principle of law there enunciated, we are, speaking with profound respect, in entire agreement. Why their Lordships were induced in the circumstances of that particular case to deliver the judgment is not part of the law which their Lordships have laid down. As to the enunciation of law, the position. We think, is clear, namely, that in such a case the matter abates and no judgment, whatever, is necessary. We think, in these circumstances it will be quite wrong for a Court to adjudicate upon the validity of a detention which no longer subsists. There may be exceptional cases which required it, as their Lordships in this particular case held, that it was required but as a general principle we think the position is quit clear.
7. We now approach the somewhat more practical questions which have been raised before us. Mr. Fazeel has argued that in these cases the Home Secretary has been fully examined and that to insist upon a fresh petition would be a waste of time and effort. First of all we are not of course insisting upon a fresh petition. If we disallow the amendment petitions and reject the main petitions it is for the petitioners to decide whether or not they wish to move us again. The purpose, however, for which the Home Secretary was examined was to establish two matters, namely, the satisfaction of the detaining authority, that is, the Provincial Government and questions of mala fides. These questions are no longer available now. What will be relevant now will be the satisfaction of the Central Government and any mala fides, if alleged, will be attributed to that Government. The evidence of the Home Secretary and what happened before may have a bearing upon these questions. We must not be misunderstood to bold that they will have a bearing; that is a question that can be decided only when argued. But in the event that it does so we can see nothing in the law to prevent counsel from urging that all that deposition be brought on record, subject, of course, to the right of cross-examination of all parties concerned. The converse of the matter is that if these petitions are allowed to continue, the deposition of the biome Secretary, for whatever it is worth, is incomplete unless Mr. Fazeel is given a fresh oppor--tunity to cross-examine him upon matters which he then did not consider it necessary and indeed which may have arisen only after the examination of the Home Secretary concluded. On the other hand whoever appears for the Central Government obviously must have a right to cross-examination of the witness before that evidence can be properly used against the Central Government whose order. It must be remembered, will now be in question. Even from a practical point of view, therefore, it does not seem to us to be conducive either to justice or to saving of time that these applications for amendment be allowed.
8. The result is that in our opinion these amendment applications cannot be allowed and are accordingly dismissed. It follows of course that the main petition must be dismissed.
9. At Mr. Fazeel's request, the amended petitions which he had filed in anticipation of an order in these cases, are directed to be returned to him for such use as he may wish to make of them.
K. B. A.