SARDAR MUHAMMAD IQBAL C. J.-The petitioner is the wife of retired an who was the Chief of the Staff of Pakistan Army General Abdul Hamid Khmber 1971. She has moved this petition till the debacle of East Pakistan in Decree husband is detained without lawful for habeas corpus, Complaining that he The Government of Pakistan authority and that he should be set at liberty. Passed an order on the 18th of September 1973 in the following terms;----- "Whereas the Federal Government is of the opinion with respect to General (Retd.) Abdul Hamid Khan that with a view to preventing him from acting in manner prejudicial to the security and defence of Pakistan and maintenance of peaceful conditions therein, it is necessary that his movements and conduct should be restricted so that he is not likely to act in the aforesaid manner ; Now, therefore, in exercise of the powers conferred by clauses (d), (f and (h) of sub-rule (1) of rule 32 of the Defence of Pakistan Rules, the Federal Government is pleased to direct that the movements and conduct of the said General (retd.) Abdul Hamid Khan shall be subjected to the following restrictions for a period of three months with immediate effect :----
(1) The movements of the retired General have been restricted to house No. 244, Shahrah-e-Tufail, Lahore Cantonment, and be shall not move out of the said house without the prior permission in writing of the Additional Secretary, Interior Division, Islamabad ;
(2) he shall not make any statement or utterance which may be seditious or prejudicial to the security and defence of Pakistan and maintenance of peaceful conditions therein ;
(3) he shall not indulge in politics directly or indirectly and shall not permit any politician or press representative to see him."
The case of the petitioner is that this order is without lawful authority inasmuch as it is in continuation of the earlier orders of detention, the last in point of time being dated the 14th of August 1973 which . . . . Was rescinded by the Government on a report by the Review Board that it was violative of clause (7) of the said Article 10 ; and that to perpetuate the detention the impugned order has been passed.
2. In order to appreciate the contentions of the petitioner, it is necessary to state certain facts. The General was detained in house No. 244, Shahrah-e-Tufail (the same house in which his movements have been restricted by the impugned order) by an order dated the 26th of January 1972 passed by Martial Law Administrator Zone 'C' under Martial- Law Regulation No. 78. He was further restrained from making any speech prejudicial to the security of Pakistan and meeting any person without the permission of the District Magistrate, Lahore except the inmates of the house. A fresh order of detention was passed by the Government of the Punjab on the 20th of April 1972 under rule 32 of the Defence of Pakistan Rules for a period of six months to expire on the 20th of October 1972. This order was rescinded and the Central Government passed a fresh order on the 7th of July 1972 regarding the detention of the General under clause (b) of sub-rule (1) of rule 32 of the Defence of Pakistan Rules in the same house for a period of three months. The detention was continued by orders passed on 2nd of October 1972 and then on 1st of January 1973. The orders were based on the ground that he had collaborated and actively assisted General (Retd.) Agha Muhammad Yahya Khan in the following manner :-
(a) In order to retain power one National leader was played against the other thereby endangering the solidarity of Pakistan ; (b), motivated by lust for power embarked on dangerous ventures and pursued perilous policies which were highly detrimental to the safety, solidarity and integrity of Pakistan ; and
(c) in subverting the armed forces of Pakistan and greatly weakening their combat effectiveness.
On the 28th of February 1973 the Deputy Secretary, Interior, Division Islamabad served on him memorandum of additional grounds of detention stating that "for the reasons already communicated to you the Federal Government is firmly of view that if you are not kept in detention, it will create commotion and agitation in the public all over Pakistan seriously endangering the public safety and maintenance of peaceful conditions in Pakistan". Another order of detention was passed on the 15th of April 1973 for a period of three months. The detention was continued by yet another order dated the 13 of July 1973 and the last order of detention under clause (b), sub-rule
(1) of rule 32 was passed on the 14th of August 1973. The petitioner challenged this order through Writ Petition No. 1645 of 1973. It was adjourned on a statement made, on behalf of the Central Government that the case of detention was being placed before the Review Board. On the 19th of September 1973 learned Deputy Attorney-General made a statement in the Court that the Central Government had rescinded order on 18t ' h of September 1973. In clause (4) of Article 10 of the, Constitution it is provided; "No law providing for preventive detention shall be made except to deal With persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding one month unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said Period, that there is in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of one month, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention". It is furtherth provided in clause (7) of Article 10 : "Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case." Since the detention of the General had exceeded the period of 12 months, the Review Board reported that it was illegal. It was on the report of the Board that the order of detention dated the 14th of August 1973 was rescinded on the 18th of September 1973 and on the same day the impugned order was passed.
3. Learned Deputy Attorney-General contends that the order was passed under clauses (d), (f) and
(h) of sub-rule (1) of rule 32 of the Defence of Pakistan Rules, 1971, and was not in any way violative of the Fundamental Rights. It is not the case of the petitioner that clauses (d), (f 1A and (h) of sub- rule (1) of rule 32 aforementioned are ultra vires the provisional of Article 15 of the Constitution and, therefore, it is not necessary for us to examine this question. The Fundamental Rights, moreover, could notinvoked at that stage in view of the fact that there is a Proclamation Emergency and the Government has suspended the right to enforce the Fundamental Rights in the Courts of law. - In Abdul Baqi Baluch v. Government of Pakistan (PLD 1968 SC 313wherein at page 329 it was observed : The third and last challenge posed to the validity of the Defence of Pakistan Ordinance is on the basis of the language of clause (2) of Article 6 of the Constitution. This too is untenable, for, as long as the Fundamental Rights remain suspended, this question cannot be agitated in the Courts. For, to declare the Ordinance invalid would be tantamount to enforcing a Fundamental Right, which cannot be done as long as the President Orders No. F. 24(1)/65-Pub, dated the 6th September 1965, and the 16th September 1965 are in force. Therefore, what cannot be done directly cannot be allowed to be done indirectly."
4. Learned Deputy Attorney-General next contended that the order is one restricting the movements of the General and not of detention and, therefore, a habeas corpus petition does not lie. The precise contention is that only may move an application for habeas corpus under sub- clause (b) of clause (1) of Article 199 of the Constitution, but since the impugned order is not an order of detention, the petitioner, who is not an aggrieved person, cannot file the petition. General, according to him was not in custody of any person and no physical control whatsoever was exercised upon his person. Whether or not the respondent continues to exercise the physical control over him or his activities is a question which we will presently consider, if a person is detained without lawful authority that any person. Whether or not the respondent continues to exercise the physical control over him or his activities is a question which we will presentlyconsider.
Even if it be assumed that the General was not in custody or detention and that only his movements had been restricted in his house and that in such circumstance only a petition could be filed by an aggrieved person under sub-clause (a) of clause (1) of Article 199, we have no doubt that the petitioner being his wife will be an aggrieved person. There are mutual legal B rights and obligations between the husband and the wife. It is the duty of; the husband to maintain his wife and also to perform marital obligations, which include a reasonable company by the husband to the wife and the wife to the husband. If the wife falls ill and is to be removed to the hospital, it is not only moral and social obligation but a legal obligation of a husband to make the necessary arrangements for her treatment, If her state of health calls for an immediate, removal to hospital, failure on his part may amount to a cruelty. If the movements of the husband are restricted in a house it is, of course, not possible for him to perform this obligation. This, no doubt, will affect the right and interest of the wife and to be an aggrieved person within the meaning of sub-clause (a) of clause (1) of Article 199, it is not necessary that she must establish right in strict juristic sense. In Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223) it was held : "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise." The impugned order has resulted in the loss of personal benefit and advantage to the petitioner and she, therefore, is an aggrieved person and the petition by her is competent.
5. Learned counsel for the petitioner contended that the previous order of detention dated the 14th of August was rescinded on the 18th of September 1973, and, therefore, the police guard should have left the house of the General and the General should have been accessable to social visitors, but neither the police left, nor were the visitors allowed to enter the house. A letter from Retired Brigadier Muhammad Ashraf Khan, resident of 245--Shahrah-e-Tufail, Lahore complaining that he was not permitted by the police to enter the house was placed on the record.
Learned counsel wanted us to summon the General to be present in the Court so that he may depose about these facts. We could do so and in fact that is one way to ascertain the facts because the detenu gets an opportunity to depose about facts and the respondent to challenge his veracity through cross-examination. Since the object in such a case is to ascertain the true facts the course of summoning the detenu for this purpose may be avoided if the Court can resort to something more convenient and less cumbersome. The General was stationed at Lahore and the allegations and counter-- allegations could- immediately be verified on the spot. We, therefore, detailed the Registrar of the Court to ascertain the following facts;
(a) Whether any police is posted outside the house of the General (Rtd.) and, if so, what is the distance between the house and the police guard where it is so posted ? And
(b) Whether any person going, to the house of the General (Rtd.) is intercepted by the police and, if so, what is the precise purpose for which the alleged interception is done ?
The Registrar visited the spot in the company of Mr. Zia Hussain, Deputy Secretary, and in his report stated :----- "I accompanied by Mr. Zia Hussain, Deputy Secretary (Interior), Pakistan Government and Mr. Sikandar Hamid, son of Major-General (Retd.) Abdul Hamid, left the High Court at about 11-30 a.m.
(2) Mr. Sikandar Hamid alighted from the cat at a short distance from the bungalow, while Mr. Zia Hussain and I drove on. We came out of the carat about 11-50 a.m. I found Muhammad Akram Foot constable No. 144 standing at a distance of about five yards from the main entrance of the premises and was in uniform. As we entered the bungalow, he inquired as to where we were going.
On my inquiry, he said that there was restriction to the entry imposed by the incharge of the guard.
I found Muhammad Khan Head Constable No. I I in uniform asleep on a cot under a tree at a distance of 10 yards from the south-western boundary wall of the bungalow. As we approached him he woke up. I saw three tents in a row close to each other at a distance of 15/16 paces from the south-western boundary wall of the bungalow. Muhammad Buta Foot Constable No. 156 was found present in the middle tent and was in uniform. Muhammad Saeed Foot Constable No. 90 was in uniform and was holding a rifle, and standing outside the third tent. Muhammad Rafiq Foot Constable No. 155 was in plain clothes and was sitting outside the third tent. Sheikh Abdul Waheed Sub-Inspector incharge guard was not present. According to Head Constable Muhammad Khan, he had left for Qurban Lines, Lahore, a short while ago. I then entered the guest room of the bungalow where nobody was present There was a cot with a rolled bedding thereon. A newspaper was lying over a table. A mat (ja-e-Namaz) was also lying in the room.
The Registrar had reported these facts orally and on our direction submitted written report. The Deputy of these facts. The position which emerged by the spot inspection of tile Registrar was in same as was prevailing before the 18th ofAugust 1973, The General in actual fact was still it, custody.
6. We may now examine the order itself to know its nature and exact scope. The operative part of the order reads :- ---(i) The movements of General (Retd.) Abdul Hamid Khan shall be restricted to house No. 244, Shahrah-e-Tufail, Lahore Cantonment, and he shall not move out of the said house without the prior permission in writing of the Additional Secretary, Interior Division, Islamabad."
The impugned order is under rule 32(l)(d) under which a person may required "to reside or remain in such place or within such area in Pakistan as may be specified in the order". The intention of the rule is to restrict the movements and not to stop them altogether. Restriction on the movement implies that one is otherwise free to lead a normal life. The nature of the impugned order, however' is such that he is incapable of doing anything and his social and economic life is completely impaired. The movements of the General are restricted to the house itself in which he was living and where he had been detain--ed earlier. The boundaries of a house are so close that they are even less than the ordinary jail. He cannot follow any vocation of life. He can--not struggle to earn his livelihood. If he is ill he can not go to the hospital or attend the funeral ceremony of any person connected or related to him. There is indeed provision that he could obtain the prior permission in writing of the Additional Secretary, Interior Division, Islamabad. The house is in Lahore and the permission is to be sought from Islamabad. The procedure for procuring prior permission is such as manes it difficult, if not impossible, for the General to move out of the house. If he is required to go outside the house immediately, he cannot do so because the Additional Secretary is in Islamabad and before an application is made to him and orders obtained the purpose for which the permission is sought may be frustrated. It is not, therefore, only an order of restriction on his movements but is one which renders him incapable of doing anything except remaining confined in the house.
7. Learned Deputy Attorney-General contended that the police guard has been removed. Will it make any difference or by the fact that the police guard is not there, is the scope of movement of the General, in any way, enlarged ? What the Deputy Attorney-General perhaps meant was that since there was no guard outside the house, the General was not in custody. We are unable to accept this position. Even if the police guard is not there, there is a power vesting in the Government to enforce the order and if at any time the General were to make attempt to move he could by force be put back and also that he could be visited with punishment. In sub---rule (3) of rule 32 it is provided : "If any person remains in any area or place or fails to leave any area or place in contravention of an order made under this rule, he may be removed from the area or place by any police officer or other person acting on behalf of the Government". Order which can be passed under clause (d) of sub-rule (l) is that "he may reside or remain in a place" or "to proceed to a place or area". It is contended by the Deputy Attorney-General that sub-rule (3) applies only to latter part of clause (d) i.e. Where a person fails to proceed to place or area which is specified the police can in that event remove him from that area where lie remains in contravention of the order.
We are unable to accept this position because if this had been the intention the words "if any person remains in any area or place" would be redundant and the rule would have started with the words : "If any person fails to live in any area or place". Words "if any person remains in area" have application to a situation where a person is asked to "reside or remain" at a place under clause (d) of Sub---rule (1) but if he leaves that place and remains in any other area or place he can be removed from that place because it is in contravention of the order. Even if sub-rule (3) of rule 32 is not applicable, rule 2.12 which is a residuary one, gives ample power to the Authorities to enforce their order. It reads :----- "Any authority, officer or person who is empowered by or in pursuance of the Ordinance or any of these rules to make any order or to, exercise any other power may, in addition to any other action prescribed by or under these rules, take, or cause to be taken, such steps and use, or cause to be used, such force as may, in the opinion of such authority, officer or person, be reasonably necessary for securing compliance with, or for preventing or rectifying am contravention of, such order, or for the effective exercise of such power."
Central Government thus could enforce its order by applying force in exercise of power under the said rule and person could be arrested for being put back in the house. The precise question came up for consideration before Full Bench in Muhammad Anwar v. Government of West Pakistan (PLD 1963 Lab. 109) and it was held: "It seems to me that the essence of custody is that there should be a lack of freedom to move about where and when one pleases, coupled with a physical power immediately available to prevent an attempt at breaking the restrictions imposed as distinguished from the power subsequently to punish for a breach of these restrictions", and that "if he is told that he must not go beyond those boundaries and he sees, or is told that if he did, physical force would be available to prevent him doing so, there would, in my opinion, then be no difference of kind between his confinement or custody and that of a person confined in a jail, though there would, of course, be a difference of degree". The rule of practice laid down by every High Court and now very well settled is that a Single Judge is bound by a Division Bench ruling and the Division Bench is bound by a ruling of the Full Bench and till such time this is overruled the High Court concerned and the Courts subordinate to the High Court are bound by the ruling of the Full Bench. The same view was taken in Muhammad Aslam v. Province of West Pakistan (PLD 1968 Lab. 1324.Thus, if restrictions are imposed on the movements of a person by the Government and it has the power to physically enforce them in case the order is violated or contravened it will amount to detention. The pre-requisites exist in this case and the order is one of detention.
8. The object of the framers of the Constitution in giving a constitutional status to preventive detention was to prevent anti-social and subversive elements from imperilling the welfare of the State. There are safeguards provided to mitigate its harshness and one of them is that in case of detention for a period of more than three months the sufficiency for cause of detention has to be reviewed by the Review Board and also that law cannot authorise detention beyond the maximum period. If in any case the Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government is under constitutional obligation to revoke the detention and cause the person to be released forthwith. In Government of East Pakistan v.
Rowshan Bijava Shaukat All Khan (PLD 1966 SC 226it was held : "Preventive detention makes an inroad on the personal liberty of a citizen without the safeguards in a formal trial before a judicial tribunal and it must lie jealously kept within the bounds fixed for it by the Constitution and the relevant law. There is a substantial distinction between a fresh order of detention and one extending a previous illegal order of detention" and that where an order purports "merely to extend the previous detention which had been found to be illegal, the subsequent order of detention must be held to be vitiated. The) detaining authority must be held bound by its own expressly avowed purpose in passing the order". The Review Board has held the order of detention) dated the 14th of August 1973 invalid being violative of Clause (7) of Article 10 and since the impugned order is in continuation of the same it is without lawful authority.
9. Doubtless, successive orders of detention have resulted in detention of the retired General for a period beyond that contemplated by Article 10(7) of the Constitution of the Islamic Republic of Pakistan. The Courts must guard against any such action, particularly when the earlier order of detention has been held as invalid by the appropriate Review Board and a fresh order of detention on the same grounds, with a view to get round and nullify the decision of the Review Board, would be a mala fide exercise of powers. An order of detention is mala fide if it is made for a "collateral" or "ulterior" purpose, i.e. a purpose other than what the Legislature had in view in passing the law of preventive detention. In Shearer v. Shields (1914 A C 808it was held that the person who inflicts a wrong or an injury upon a person in contravention of the law is not allowed to say that he did so with an innocent mind. It is "malice in law", although so far as his mind is concerned, he may have acted honestly or innocently. The malice in law is to be inferred when an order is made contrary to the objects and purposes of the Act, or the Rules made thereunder. It is not enough that the order is passed under a colour of the power conferred. It must be done in actual exercise of it and no power is conferred to make such an order in abuse of the Act.
10. There is another aspect of the case. Defence of Pakistan Rules, 1971 are made in exercise of powers under section 3 of the Defence of Pakistan Ordinance, 1971. Under clause (xi) of subsection
(2) of section 3 the rules may provide for "the apprehension and detention of any person" and clause (xiii) or subsection (2) of section 3 for "the prohibition of any such person as is mentioned in clause (xi) or clause (xiv) from entering or residing or remaining in any area and the compelling of such person to reside and remain in any area or to do or abstain from doing anything". Rule 32 is related to these powers. Under rule 32(1)(b) Central Government may make an order in respect of any person "directing that he be detained" and under clause (d) of sub-rule (1) of rule 32 "requiring him to reside or remain in such place or within such area in Pakistan as may be specified in the order or to proceed to a place or areas within such time as may be specified in the order". The word "place" mentioned in clause (d) is not covered by clause (xiii) of subsection. (2) of section 3 of the Ordinance. It only says that rules may provide for "compelling of a person to reside an remain in an area". If the word "place" has been used in the same sense as in "area" the rules will be valid. If, however, by "place" it is meant something different from "an area" then the rule will be ultra vires the main Ordinance. The dictionary meaning of the word "area" is "a particular extent of (esp. The earth's) surface ; a region, tract ; a level piece of ground not built over or occupied". "Area" thus connotes something much bigger and larger than a "house" or "a place of residence". The impugued order restricts the movements of the detenu to his house. If the word "such place" used in clause (d) is interpreted to mean a house or place of residence the same, since it will not be an area, is ultra vires the provisions and the impugned order restricting the movements of the detenu in his residence will, therefore, be without lawful authority.
11. Learned counsel for the petitioner did not challenge the validity of the order so far as it provided that the Retired General shall not (a) make any statement or utterance which may be seditious or prejudicial to the security and defence of Pakistan and maintenance of peaceful conditions therein and (b) indulge in politics directly or indirectly and shall not permit any politician or press representative to see him. The part of the order, moreover, being not one of detention or in the nature of detention does not fall under sub-clause (b) of clause (1) of Article 199 of the Constitution and therefore, could be challenged under sub-clause (a) of clause (1) of Article 199. The petitioner is not an aggrieved person vis-a-vis this part of the order and therefore the petition otherwise would have been incompetent.
12. The writ petition is accepted and the impugned order dated the 18th of September 1973 to the extent it provided that the movements of the retired General Abdul Hamid Khan shall be "restricted to House No. 244, Shahra-e-Tufail, Lahore Cantonment, and he shall not move out of the said house without the prior permission in writing of the Additional Secretary, Interior Division, Islamabad" is declared as without lawful authority and of no legal effect. There shall be no order as to costs.