1. GHULAM SAFDAR SHAH, C. J.-In these four petitions, in which the detenus have been detained for an indefinite period by orders of Deputy Commissioner, Kohat all dated 1st June 1973 passed by him under rule 32(l)(b) of the Defence of Pakistan Rules, 1971 (hereinafter called the Rules), the grievance is that the provisions of the said Rules could not be pressed in service against the detenus, that if the detenus were guilty of any offence they should have been tried under the ordinary law, that the impugned orders were passed by the detaining authority due to mala fides, that these orders were violative of Article 3 of the Interim Constitution (now Article 4 of the Constitution of 1973) and that the detenus were not even informed of the allegations on the basis of which they were directed to be detained and lodged in prison.
2. The learned A.-G. Has conceded before us that the detenus have been detained for an indefinite period as also that their cases have not been referred to Review Board, constituted under clause
(4) of Article 10 of the Constitu--petition which reads as under:- "(4) 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."
3. It would thus be seen that the impugned orders are ex parte violative of this provision of the Constitution and would therefore appear to be entirely without jurisdiction but the learned A.-G.
4. Argued that Article 10 of the Constitution, which is in the nature of Fundamental Right, has been suspended by an Order of President of Pakistan dated 14August 1973, passed under Clause (2) of Article 233 of the Constitution and therefore no advantage can be taken by the detenu of the said provision. There is no quarrel with the contention of the learned A.-G., in so far as it has pointed out the factual position. The Order of President, to which reference has been made by him, has been notified under Clause (2) of Article 233 of the Constitution. And under Article 280 thereof the proclamation of Emergency issued on 23-11-71 is to be deemed to be a proclamation of Emergency issued under Article 232 and for the purposes of Clause (7) and Clause (8) thereof to have been issued on the commencing day. Now a bare reading of Article 233 would show that under it the embargo placed upon the law-making-power of Legislature or executive action by Articles 15, 16, 17 18, 19 and 24 of the Constitution has been put aside with the result that so long as the proclamation of Emergency is in force the act of Legislature or executive would be immune from challenge, albeit it is found to be violative of the said Articles. The position in regard to these Articles, for the enforcement of which the right to move any Court, has been suspended by the above Order of President, is however different. A careful reading g of the 'Order of President issued under Clause
(2) of Article 233 of the Constitution would show that the rights, which have been styled therein as Fundamental Rights, are not suspended; only the right to move any Court for the enforcement of these rights has been suspended. It would thus be clear that Fundamental Right No. 10 continues to be in force and consequently the State would have no right to make any law or to take any executive action in contravention of what has been provided therein. It is true that so long .As the proclamation of Emergency is in force, this Court would have no jurisdiction to entertain any proceedings in which the enforcement of such right is prayed for, or which involves the determination of any question as to the enforcement of any such right. But the question would be whether .Any proceedings, wherein the grievance made is that the provisions of Article 10 (ibid) have been transgressed, would tantamount to praying for the enforcement of rights guaranteed therein? The answer to this question has already been given by Supreme Court of Pakistan in the negative in two cases: Abdul Aziz v. Province of West Pakistan (PLD 1958 SC (Pak.) 499) and Government of East Pakistan v. Mrs. Rowshan Bijwa Shaukat A.I Khan (PLD 1966 SC 286), in which their Lordships had considered the analogous provisions of Fundamental Right No. 7 of the Constitution of 1956 and sub-paragraph (5) of paragraph 2 of Fundamental Right of the Constitution of 1962. To illustrate our point it would be proper to reproduce therefrom one passage each which, are to the following effect:- "When Article 7 proceeds to make detailed provision regarding particular aspects of arrest and detention it is clearly laying down law in a field which is included in the larger subject of the liberty of persons under the law. While Constitutions are larger subject of the liberty of persons under the law. While Constitutions are largely connected with laying down principles, which shall be followed in the making of laws, there is nothing to prevent a Constitution-making body from making law of a special subject in the course of making a Constitution. In Article 7 there are included general statements of conditions affecting the questions of arrest and detention of persons, under all sub- Constitu--tional laws relating to that subject. In so doing, the Article makes fresh law, of a detailed character, belonging to the category of statute law, albeit enacted in the Constitution.
5. With respect, it seems to me that the learned Judges were in error in thinking that this constitutional provision was an organic law which laid down principles of legislation to bar followed, or qualifications to be fulfilled, by a statute before its validity could be established. On theth contrary, the sub-para in question clearly, itself enacts positive law, effecting preventive detention, which must be read as supple--menting the provisions of any statute of a sub-constitutional kind, existing in the same field. That a Constitution may contain such laws, was pointed out by this Court in Abdul Aziz v. The Province of West Pakistan."
6. Now by reading the provisions of Fundamental Right No. 10 of the Constitution in the Rules, which in view of the above dictum of Supreme Court we are respectfully obliged to read, it would be clear that notwithstanding the embargo placed upon the right of a citizen to institute proceedings in Court for the enforcement of the rights guaranteed therein, the State would still be bound not to make any law or take executive action in contravention thereof. This appears to be the only interpretation of which the provisions of Fundamental Right No. 10 are susceptible, for in the contrary case a citizen would, without the necessity of making a reference-- of his case to Review Board, be liable to be detained for an indefinite period and thus the safeguard against his arrest and detention guaranteed to him under the said Fundamental Right would become entirely illusory. The learned A.-G., at this stage, brought to our notice a Division Bench judgment of Lahore High Court in the case of Habiba Jilani v. Federation of Pakistan (PLD 1974 Lah. 153), in which their Lordships had the occasion to consider this question and reached precisely the same conclusion.
7. We respectfully agree with the view taken in that case. And thus would be unable to subscribe to the contention of the learned A.-G.
8. Upon the admitted facts of these cases, the impugned orders of Deputy Commissioner, Kohat by which the detenus have been detained not only for an indefinite period but their cases too have not been referred to Review Board in line with the requirement of Fundamental Right No. 10 of the Constitution, would appear to be entirely without jurisdiction and this cannot be sustained.
9. The not result of this discussion is that each one of these petitions is-- allowed, the impugned orders are held to be unlawful' and of no legal effect and we direct that the petitioners who are already on bail would stand released from the bondage of impugned orders. In view of the peculiar-- circumstances of these cases, however, there would be no order as to costs.
10. K. B. A.