NASIM HASAN SHAH, J.--This is a second writ petition filed by the wife of Major-General (Rtd.) Mian Ghulam Jillani to question the detention of her husband. The first writ petition (W. P. No. 380/73) was found to have become infructuous by this Court, on 23-6-1973, because the detaining authority had by its order dated 21-6-73 revoked the order of detention dated 9-6-1973, whereby the detenu was continuing to be kept in detention.
2. The facts, which form the background to the present writ petition, an usefully be gathered by reference to the interim order made in writ petition No. 380/73 by this Court on 23-4-1973: "The facts, about which there is no controversy are that the detenu was taken into custody on 15-2- 1973 in village Jamrud. He was brought to Rawalpindi and thereafter brought in the early hours of the 16th February to the Lahore Fort and lodged in the jail portion thereof. This detention was in pursuance of the orders of the Central Government passed on 15-2-1973 under rule 32(l)(b) of the Defence of Pakistan Rules for a period of one month. He was duly supplied the grounds of detention as required by Article 9(5) of the Interim Constitution so as to enable him to make a written representation against the order of his detention and his case was actually referred to the relevant Advisory Board, on 21st February 1973. The grounds on which the detention was ordered are as follows :------- "(1) Following the discovery of large stock of arms and ammunition at the Iraqi Embassy in Islamabad on Saturday the 10th February 1973, and consequent investigations which have been undertaken throughout the country, you tried to flee the country on Wednesday the 14th February 1973, through the Tribal area and surrendered only when the place was surrounded by the civil armed forces.
(2) You had been in contact with the Indian Embassy officials in a neighbouring country and had even gone to the extent of suggesting to them that if the Indian Army attacked West Pakistan during November/December 1971, a dissident group within Pakistan would avail of the opportunity to rise in armed revolt against the Govern--ment.
(3) Government have reliable information that illicit arms for use in N.-W. F. P. Had already arrived and stored at tactical points and youn-gmen were being given training in the use of guerrilla weapons. Since you are head of a militant organisation, Government is convinced that you, in league with the guerrillas trained in a foreign country, were preparing for an armed revolt.
(4) In view of past actions and high position that you hold as head of the "Zalme Pakhtoon" a militant organisation, there is a real danger that you are likely, if at liberty to act in a manner prejudicial to the security, public safety and interest of Pakistan and the maintenance of peaceful conditions therein.
The detenu vehemently contested the correctness of the allegations made in the above grounds.
He was eventually produced before the Advisory Board on 12-3-1973 but no order was passed by it about the question whether any sufficient cause for his detention existed or not.
Meanwhile, on 26-2-1973 the wife of the detenu moved a petition under Art. 201 of the Interim Constitution before this Court challenging the validity of the detention praying that the detenu be ordered to be brought before this Court and his arrest and detention be declared as without lawful authority. The matter, thereafter came up before the Court from time to time and several interlocutory orders were passed, the details of which are not relevant here. Suffice it to say that under our orders, the petitioner and her ,counsel were allowed to interview the detenu whereafter the petitioner submitted an affidavit disclosing some further facts and thereafter also submitted an amended petition. On behalf of the respondents affidavits were submitted by Mr. A.I Asghar, Secretary, Ministry of Interior States and Frontier Regions. M. Aslam Hayat, Deputy Inspector- General of Police, Special Branch, Lahore, and Mr. Saeed Ahmad Khan, Chief Security Officer to President of Pakistan to refute certain allegations contained in the affidavit of the petitioner and also a written statement signed by Mr. Zia Hussain, Deputy Secretary in response to the amended writ petition.
By our order dated 21-3-1973, respondent No. 1 was directed to produce the detenu in Court on 27- 3-1973 on which date Messrs A.I Asghar, Aslam Hayat and Saeed Ahmad Khan were also ordered to be in attendance. When the detenu was produced on 27-3-1973 the counsel for the petitioner requested that the statement of the detenu may be recorded first, even before examining the above three officers. We accordingly proceeded to record his statement and his examination-in- chief continued uptill 29-3-1973. On its conclusion the learned Advocate-General, Punjab, instead of commencing the cross-examination, prayed for time to obtain complete instructions to cross- examine the detenu as his statement had covered a wide range of subjects. The case was accordingly adjourned to 10-4-1973. Meanwhile on 9-4-1973, the present petition for the release of the detenu pendente lite was moved."
3. Two pleas were advanced in support of the prayer for bail:------ "(1) That in so far as the detention of the detenu had exceeded one month without the appropriate Advisory Board advising that in its opinion sufficient cause for his detention existed, his continued detention was without lawful authority; and
(2) That the grounds on which the detention was founded were entirely baseless and absurd.
Hence the detenu was being held in custody in an unlawful manner."
4. It was found that in so far as the Advisory Board had not given an affirmative finding within the period of one month that the continuation of the detenu's detention was justified, the order dated 12-3-73, whereby detention period was extended, after the expiry of the first one month, for a further period of three months, the detenu's detention had indeed become prima facie unlawful.
With respect to the second plea, it was observed that on the facts so far disclosed, there was not enough material to satisfy a reasonable person that the detention was justified. The detenu was, there--fore, ordered to be released on bail.
5. The above interim order was challenged by the respondents before the Supreme Court. The said learned Court was, in the first instance, pleased to suspend the operation of the said order and finally by its order dated 9-5-1973 was pleased to observe as follows:------- "This order of bail is in the nature of an interim order on a writ petition filed to challenge the validity of the order of detention. The writ petition itself has not yet been completely disposed of and is fixed for hearing in the High Court on the 16th of this month when it is to be heard on merits.
The learned Attorney-General has conceded that the High Court can notwithstanding the notification under clause (2) of Article 139 of the Interim Constitution suspending the right to move any Court for the enforcement of a fundamental right conferred by Chapter I of Part II of the said Constitution still entertain the writ petition and hear it on merits, namely, to ascertain as to whether the detention is being made on relevant and sufficient grounds under the Defence of Pakistan Rules.
6. The matter, therefore, was taken on 16th May 1973, by this Court again. The evidence of the remaining witnesses was recorded. During the pendency of the proceedings before this Court, the period of the detention of the detenu was again extended for a further period of three months vide order dated 9-6-1973. On 22-6-1973, when arguments in the case had practically concluded, the detenu informed us that early that morning, he was served with an order dated 21-6-73 that the Federal Government had revoked with immediate effect the order dated 9-6-73 in respect of his detention and that simultaneously he was served with another order, bearing the same date, to the effect that the Federal Government had directed that he be again detained for a period of three months from 22-6-73. In view of the fact that the orders of detention stood revoked and a fresh order of detention had been passed, we found, vide our order dated 23-6-73, "that the detention as also the orders in justification of it, which were being challenged, stand revoked and a fresh order had been passed and it is necessary to challenge the said order by a proper application if it is desired to get rid of its effects." The over-all conclusion was that the writ petition had become infructuous and was disposed of accordingly.
7. The petitioner did not challenge the above decision by way of appeal before the Supreme Court but filed the present writ petition to challenge the detention of her husband in pursuance of the order dated 21-6-73 on the ground that he is being held in custody without lawful authority and in an unlawful manner. Meanwhile the respondents are stated to have withdrawn their appeal preferred before the Supreme Court, against the interim order passed by us on 23-4-1973.
8. It may be relevant to mention that after the detention order dated 21-6-73 was passed and the supply of fresh grounds of detention which were furnished to the detenu on 25-6-1973, the Advisory Board examined his case; firstly, on July 14, 1973, and found that his continued detention was amply justified. As a result thereof, the order of detention was extended for a further period of three months i.e. Up to 21st September 1973. Before the expiry of the said period, the Review Board, constituted under Article 10 of the present Constitution, again examined the case of the detenu (either on 8th or 10th September 1973), and came to the conclusion that "there were sufficient reasons for the detention of General Jillani". Thereafter, another order of detention was passed (on 17th September 1973), extending the period of detention by another period of three months, namely from 21st September 1973 to 21st December 1973.
9. The grounds on which the detenu now stands detained and which were served on him on the 25th June 1973, are to the following effect; "You, Maj-General (Rtd.) Mian Ghulam Jilani, have been ordered to be detained for a period of three months by the Federal Government under clause (b) of sub-rule (1) of rule 32 of the Defence of Pakistan Rules vide Interior Division Order No. 10/8/73-Poll.I(1), dated the 21st June 1973, with a view to preventing you from acting in a manner prejudicial to the security of Pakistan, public safety and maintenance of peaceful conditions therein on and for the following grounds:-----
(1) You tried to flee from Pakistan on the 14th February 1973, through the Tribunal Area as you had been in contact with the Indian Embassy officials in a neighbouring country and had even gone to the extent of suggesting to them that if the Indian Army attacked West Pakistan during November- December 1971, a dissident group within Pakistan would avail of the opportunity to rise in armed revolt against the Government. You surrendered only when the area was surrounded by the civil forces.
(2) Government have reliable information that illicit arms for use in N.-W. F. P. Had already arrived and stored at tactical points and young-men were being trained in the use of guerilla weapons.
Since you are commander of a miliant organisation, Government is convinced that you, in league with the guerilla's trained in a foreign country, were preparing for an armed revolt.
(3) In view of past actions and high position that you hold as Commander of the "Zalme Pakhtoon", a militant organisation, there is a real danger that you are likely, if at liberty, to act in a manner prejudicial to the security of Pakistan, public safety and maintenance of peaceful conditions therein."
The above grounds for your detention are being communicated to you as required by Article 9(5) of the Interim Constitution to enable you to make a written representation against the order of your detention which should be addressed to the Secretary, Interior Division, Islamabad, if you so desire.
10. The grounds, that have been served upon the petitioner with the latest order of detention, are in identical terms with the above grounds. Consequently, the detenu is being detained in custody on account of----
(a) his abortive attempt so flee Pakistan on the night of 14-2-73 to a `neighbouring' country, where he had contacts with the officials of the Indian Embassy;---
(b) his alleged supervisory role in guerilla training and storage of arms at tactical points; and
(c) his `high position' in Zalme Pakhtoon a militant organisation.
11. Mr. Mahmud A.I, in support of this petition firstly, submitted that the grounds upon which the detention purports to have been ordered and the material placed on the record in support of them are not sufficient to satisfy any reasonable person that on their basis detention for the purposes of rule 32 of the Defence of Pakistan Rules could be ordered. In this con--nection, each one of the three grounds was separately discussed by him and it was argued that none of the said grounds was believable. With regard to ground No. 1, it was submitted that the alleged conduct of the detenu in trying to flee from the country was directly connected, in the earlier set of detention orders, with the discovery of arms in the Iraqi Embassy. With the admission that the detenu had no connection with. The arms that were recovered, the ground, as presently laid became ridiculous. It was argued that as the detenu had nothing to do with the recovery of arms from the Iraqi Embassy, he had no cause to flee from the country. The attempt made in the present ground to connect the act of fleeing on the evening of 14th February 1973, with the alleged contacts of the detenu with the officials of the Indian Embassy in Afghanistan lacked logic. Moreover, there was no material to show that the detenu was anxious to meet the officials of the Indian Embassy, on a particular date, namely, the 14th February 1973, or around that date and for that reason he was impalled to rush to the Tribal Area. In this behalf, reliance was placed on the statement made by the detenu, in the course of the proceedings of the earlier writ petition (which was allowed to be read as evidence in this case), in which he had made mention of his meritorious services for the cause of Pakistan, his offer to fight the Indians during the December War of 1971 and wherein the purpose of his visit to the Tribal Area on the evening of the 14th February 1973 was explained at some length. Herein, furthermore, the manner in which he had come along, of his own free will, with the Political Agent to Jamrud Port, from where he was later arrested was also mentioned. All these circumstances were relied upon to falsify the allegations made in the first ground.
12. The veracity of ground No. 2 was assailed on the reasoning that there was no material in support of it. In this connection, it was pointed out that no illicit arms had been unearthed in the N.-W. F. P., that the allegation that the detenu was a Commander of a militant organisation was totally false and that the further allegation that he was preparing for an armed rebellion was equally false and, in fact, insulting.
13. Similarly, it was asserted, that the third ground was fallacious. In this connection, it was submitted that it was based on the assumption that the detenu was a Commander of the "Zalme Pakhtoon", which allegation was not true. The assumption, furthermore, that the "Zalme Pakhtoon" was a militant organisation was equally devoid of truth because the said organisa--petition was of the same character as the "Peoples Guard" (maintained by the Pakistan Peoples Party) or the "National Guards" (maintained by the Muslim League Organisation) and the functions of this body were to assist in the orderly organisation of public meetings and to perform duties of Social Welfare. In any case, the detenu had absolutely no connection with the said organisation. On these premises, it was argued that the detention of the detenu was wholly unjustified and no reasonable person could hold in custody a citizen, albeit an elected representative of a Provincial Assembly, on the basis of such grounds.
14. Mr. M. B. Zaman, Advocate-General, Punjab, -placed on record six documents which, according to him, along with other material, had been considered by the detaining authority before passing the order of detention. The document marked "H" dated 15th February 1973, contains the reports sent by one of the Intelligence Services from Peshawar and Quetta about what was happening in these two provincial capitals on the 14th and 15th February 1973. Some of the messages sent on the 14th February 1973, are relevant and these may be reproduced hereunder with advantage:----- "Major-General Jilani (Rtd.), M.P.A., reportedly crossed into tribal territory through Jamrud Check Post 21-25 hours comma possibly in tribal Malik Aliman Shah's vehicle (,) appeared to be in panic (.) IGFC & DDI Peshawar alerted (.) at 21-40 hours S-G Defence asked G.H.Q. To have the retired General intercepted by CAF (Civil Armed Forces).
(a) - ------------------------------- Ajmal Khattak likely to go into hiding(.)"
Before the above reports about General Jilani's crossing into Tribal territory were received, counsel submitted that Government had been receiving reports that he had been meeting Indian Diplomats in Kabul and enjoying their hospitality. A report sent by the Indian Military Attache at Kabul to his Government, according to which the detenu had suggested that in addition to any military move in East Pakistan, .The Indian Army may attack West Pakistan during November/December 1971, and that he expected that in the event of the destruction of the Punjabi Army Machine by the Indian Army Forces, the Pakhtoons would not miss the opportunity to stage an armed revolt had also been intercepted. (Document `C'). In this background, when the suspicions of the Government had already been aroused about the activities of the detenu his conduct in fleeing, in a state of panic, towards Afghanistan on the 14th February 1972, served to confirm the suspicions already entertained about him. In any case, it was submitted, cogent material did exist in support of ground No. 1.
15. As regards ground No. 2, reliance was placed on the information supplied by a friendly power about the arrival of arms, training of youngmen in their use and the designs of these elements to wage a battle against the Central Government of Pakistan. (Documents B, B/1 and B/2). He also relied upon ; secret report to the effect that the detenu had been appointed as a Commander of the "Zalme Pakhtoon" for West Pakistan in accordance with a decision taken at a party conference in Karachi (Document `E'). It was accordingly submitted that there was sufficient material to support the allegations contained in ground No. 2.
16. As regards the allegations contained in ground No. 3, reliance was placed on document `E', already referred to above. As for the allegation that "Zalme Pakhtoon" was a militant organisation, reliance was placed on the statement made in the course of the earlier writ petition by Mr. Saeed Ahmad Khan, Chief Security Officer to the President and Mr. A.I Asghar, Interior Secretary to the Government of Pakistan.
17. Before examining the relative merits of the, arguments of learned counsel for the parties, with respect to the first contention of Mr. Mahmud A.I, it would be convenient to refer to the other contentions raised by him and the stand of the respondents in regard to them.
18. It was contended- by the counsel for the petitioner that the action against the detenu was taken only on the basis of suspicion. In this con--nection, the following portion of the affidavit of Mr. A.I Asghar, submitted on 17-4-73, in the earlier writ petition, was strongly relied upon; "That the allegation in regard to, apprehend indulgence in activity prejudicial to the security, public safety and interest of Pakistan and maintenance of peaceful conditions therein is amplified by stating that Maj.-Gen. (Rtd.) Mian Ghulam Jilani was suspected to be fleeing from the country on the night between 14th and 15th February 1973; /was believed to be in contact with the Indian Embassy in a neighbour--ing country; and as a Commander of a militant organisation called "Zalme Pakhtoon" was suspected to have connections with guerillas being trained in a foreign country. It was, therefore, necessary to detain him under the Defence of Pakistan Rules."
Keeping in view the words underlined above, it was suggested that the action was based simply on suspicion. Hence, the situation was governed by rule 208 of the Defence of Pakistan Rules and not rule 32 whereunderaction was taken. Under rule 208, the maximum duration for which the authority, other than the Central Government can detain a person on reasonable suspicion is 15 days while the Central Government itself can detain a person on this basis for two months at the maximum. It was submitted that apart from the fact that the present case was not even a case of reasonable suspicion but of mere suspicion, even if there was a reasonable suspicion, the maximum period for which the detention could be ordered was two months. As the maximum period prescribed for detention on the basis of suspicion was already over, the detenu could not be kept in detention by the Central Government any longer. Mr. M. B. Zaman's reply to this contention was that in so far as the present order of detention was concerned the affidavit of Mr. A.I Asghar was not in point, because the order presently in force was not passed by him, but was passed by the President of Pakistan. In the instant case, the affidavit filed by Mr. S. S. Zafar, Section Officer, Ministry of Interior, was relevant and according to him:---- "That the President of Pakistan was satisfied that with a view to prevent--ing Mian Ghulam Jilani from acting in a manner prejudicial to the security of Pakistan, Public Safety and maintenance of peaceful con--ditions therein it was necessary to arrest and detain him and the President of Pakistan passed the order for his detention under rule 32(1)(b) of the Defence of Pakistan Rules . . . . ."
He further deposed:------ "That the grounds served on the detenu are correct and the order of detention was passed by the President of Pakistan on the basis of material and information which was available with him and which he believed to be correct and genuine."
Accordingly, even if the order of Mr. Asghar A.I may have been passed on the ground of suspicion, President Bhutto, when he passed the order of detention, was satisfied of the correctness of the grounds upon which the order of detention was founded. Hence rule 208 of the Defence of Pakistan Rules had no application.
19. Mr. Mahmud A.I further argued that there was a deliberate refusal by the detaining authority to examine a version which was placed before this Court and of which it was also made aware. In this connection, learned counsel drew attention to the affidavit of the petitioner filed on 5-3-1973 in which the version of the detenu was set out, namely, that he had gone to the tribal areas with a view to visiting some friends, that the persons on duty at Jamrud barrier had been informed beforehand about the intending visit (a fact which was later confirmed by the report of the Political Agent), that he intended to return the next day which was evident from the circumstance that he was not carrying any money with him nor had taken any clothes, which was the least he would have done if he intended to flee from the country. As for the allegation that he appeared before the Political Agent on the evening of 15th February 1973, only after the situation had become too hot for the tribal Maliks who were hiding him, on account of the action of the civil armed forces, it was averred that as he had spent the night in village Kadam and not in Jamrud and he was not aware that any body was looking out for him and that as soon as he learnt that the Political Agent was looking for him, he drove to the Hujra of Malik Aliman Shah in Jamrud. The argument was that although this version was before the detaining authority, no effort was made to verify it. The following portion of the statement of Mr. A.I Asghar, made in the earlier writ petition, was especially relied upon:------ "Q.-I read to you the affidavit of Mrs. Jilani dated the 5th of March 1973 and the account she has given therein of the activities of the detenu on the 14th/15th February 1973 relating to the circumstances in which he went to the Tribal Area and the circumstances in which he was arrested by the authorities is stated. What action did you take to verify the facts stated in the said affidavit before filing your counter-affidavit?
Ans.-I did not make any enquiries into the allegations contained in the affidavit of Mrs. Jilani (Volunteers). As the departure of the detenu was at night, which raised suspicion, I thought that it was an attempt to cross the border.
Q.-I take it then that you have some pre-conceived notions and did not give any dispassionate consideration to the version of the detenu?
Ans.-I would say that I did not make any enquiry into that version."
It was further submitted that the affidavit of the petitioner being in the knowledge of Mr. A.I Asghar and Mr. Saeed Ahmad Khan, their action in not denying the version given by the petitioner, in their affidavits, gave rise to the inference that the allegations stated in the affidavit which were not contradicted, were correct. On the above basis, it was further urged that the action taken was mala fide and not in good faith because it has not been taken after exercising due care and attention.
20. The reply of the respondents to the above submissions was that the action was based on sufficient and relevant material and was such as could persuade a reasonable man to take the action that was taken. Moreover, this particular aspect of the case which was being sought to be raised before this Court could not be gone into, in the exercise of this Court's writ jurisdiction. Be that as it may, it was added, that the fact that the action taken was based on enough material to satisfy a reasonable man of its propriety, was established by the circumstances that on three different occasions, Boards on which a serving Judge of the Supreme Court was sitting had found that on the basis of the material with the detaining authority the detention was amply justified. Mr. Mahmud A.I strongly objected to the opinion of the Advisory Board and the Review Board being taken into consideration. It was submitted that the opinions expressed by the said Boards had no authority or sanctity. The orders passed were of the administrative agency and were not judicial orders, there was no right to lead evidence, no right to cross-examine, no right to make submission through a lawyer and explain the illegalities of the Government or the errors of Review Board. He, therefore, submitted that the findings of the Review Board should be ignored. In the alternative, it was suggested that if the findings of the Review Board were to be taken notice of by the Court, then it should also take notice of the fact that the Review Board had travelled beyond the grounds of detention and had relied upon certain alleged public utterances of the detenu, to his prejudice, because these speeches were not relied upon in the grounds of detention and other extraneous factors were taken into account in passing the said orders. The unsatisfactory manner in which the Review Board had conducted itself, it was submitted, was evident from the circumstance that it had even failed to take note of the clause (8) of Article 10 of the Constitution, which directed that the appropriate Review Board shall determine the place of the detention of the person detained and fix a reasonable subsistence allowance for his family. No allowance for the family had been fixed by the Review Board. It was also submitted that the Review Board had failed to perform its duty of seeing whether any extension of detention at the time it was being made was justified. In the latest order of the Review Board, there was no reference to the question of the propriety or justification of extension of detention beyond three months from 22-6-73, which was now claimed to be the date of initial order.
21. Mr. Mahmud A.I also attempted to criticise the order passed by this Court dated 23-6-1973, whereby the earlier writ petition was dismissed as infructuous on the reasoning that the doctrine propounded by this Court that the illegality of an earlier order is of no consequence if a valid order of detention exists at the time when the Court is passing order was not a correct or true doctrine.
Suffice it to say that as this order was not challenged by way of appeal before the Supreme Court, there is no reason to think that this Court's order passed on 23-6-1973 was not legally sound.
22. The learned Advocate-General submitted that in view of the notification of 15th August 1973, issued under Article 233(2) on the subject of suspension of fundamental rights, the right to move the High Court and the Supreme Court, inter alia for the enforcement of Article 10 had been suspended and the petitioner could not be granted any relief on the ground that any of the provisions of Article 10 had been infringed or not fully complied with. To this argument, the answer of Mr. Mahmud A.I was that Article 10 had to be read into the detention laws and that the law itself stood amended and the provision of Article 10 was incorporated in it. He further submitted that when a person asks for enforcement of the provisions of a law, which stands amended by reason of the Constitution, he is not enforcing fundamental rights. He is demanding compliance with the provisions of the law itself which is in force under the Constitution.
23. The Court's duty in a case of this kind, as was pointed out by the Supreme Court in its order dated 9-5-73 while dealing with the appeal from this Court's interlocutory order dated 23-4-73, is "to ascertain as to whether the detention is being made on relevant and sufficient grounds under the Defence of Pakistan Rules." Earlier in the case of Abdul Baqi Baluch v. Government of Pakistan (PLD196&SC313it was observed:------- "Under a constitutional system which provides for a judicial review of executive action, it is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency. What the Court is concerned with is to see that the executive or administrative authority had before it sufficient materials upon which a reasonable person could have come to the conclusion that the requirements of law were satisfied."
The above dictum was elaborated in the case of Agha Abdul Karim Shorish Kashmiri (PLD1969SC14), as follows:----- "This power as has been pointed out in the case of Abdul Baqi Baluch is not co-equal to the power of a Court of appeal or a Court of error or a review committee, for the Court cannot claim in the exercise of this power to usurp the functions of the authority on which the power has been vested nor to substitute their own decision for the decision of that authority. Nor can the Court insist being satisfied that there were materials upon which it would have taken the same action. It is in this sense that it has been said that the Court is not concerned with either the adequacy or the sufficiency of the grounds upon which action is taken. But if this argument is to be pushed to the extent of saying that the Court can never even ask the authority concerned to disclose the grounds upon which it has acted then we are unable to agree, for the Court in order to be satisfied as required by the Constitution, must know that there were in fact grounds relatable to the purposes of the statute upon which the action of the authority concerned could at all have been founded after an honest application of the mind of the authority concerned to all the relevant considerations.
A person acting in pursuance of a statute cannot be said to be acting bona fide if he has no reasonable ground for believing that the statue justifies him in what he does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful mariner."
The action against the detenu has been taken under clause (b) of sub--rule (1) of rule 32 of the Defence of Pakistan Rules, which provides:-- "Where with respect to any person, the Central Government is of opinion that, for the 'purposes of preventing him from acting in a manner prejudicial to Pakistan's relations with foreign powers or to the security, the public safety or interest, the defence of Pakistan or of any part thereof, the maintenance of supplies and services essential to the life of the community, the maintenance of peaceful conditions in any 'part of Pakistan, or the efficient conduct of military operations or prosecution of war, it is necessary so to do, it may make an order---- (a)----------
(b) directing that he be detained . . . ."
24. In the impugned order of detention passed against the detenu dated 21-6-73, it is alleged that it was being made with a view "to preventing him from acting in a manner prejudicial to the security of Pakistan, public safety and maintenance of peaceful conditions therein." The question is whether there were sufficient and relevant materials in possession of the detaining authority to justify the making of the impugned order. To satisfy the Court that it was indeed in possession of such materials, an important part of it was placed on the record. It shows that some Government Agency had intercepted a communication, allegedly sent by the Military Attache of the Indian Embassy at Kabul to his Government wherein he had stated that the detenu had suggested that the-months of November/December 1971 would be suitable for attack on West Pakistan. There were reports that the detenu had friendly relations with Indian Diplomats in Kabul. There were reports of arms and ammunition reaching at points close to the Pakistan Border in Afghanistan and of youngmen being given training by a foreign power. There was a report that the detenu was appointed a Commander of the "Pakhtoon Zalme". It was submitted that in view of his army background and the reports of his recent prejudicial activities, coupled with reports of training being imparted to youngmen committed to the goal of Pashtunistan, his appointment as a Commander of the "Pakhtoon Zalme" was viewed with serious concern. He was, therefore, kept under observation and surveillance. After the recovery of arms and ammunition from the Iraqi Embassy on 10-2-1973 in which connection the National Awami Party, inter alia, was at that time thought to be involved and it was generally believed that some action may be taken against the Leaders of that party, the detenu on the eve of the impending action proceeded, at nightfall, towards Afghanistan. This action served to confirm the reports already received about him and it was decided to detain him. The fact that h could not be recovered without the Civil Armed Forces laying a siege around village Jamrud further strengthened the suspicion about his designs, which on account of the last two mentioned circumstances was converted into belief. The order of detention in view of the materials already with the Government coupled with the foregoing circumstances was, therefore, fully in accord with statutory provisions.
25. On behalf of the detenu, it is said that no reasonable person would take action on the basis of the materials in possession with the Government, if all the relevant circumstances were taken into consideration. In this connection, it was submitted, that the detenu had no connection with the arms that were recovered from the Iraqi Embassy and consequently he had no reason to flee from the country, nor was there any impelling reason for his doing so on the evening of 14th February 1973; that the reports about his having ever suggested an attack on Pakistan was insulting lie and was liable to be rejected outright. His entire career was an open book which revealed that on a number of occasions he had rendered the most meritorious services in the Defence of Pakistan and thus the requirements of the Rules had not been satisfied.
26. The Court, while exercising its jurisdiction under Article 199 of the Constitution cannot claim in exercise of this power to usurp functions of the authority on which the power has been vested nor to substitute its own decision for the decision of that authority nor will it hold a decision to be without lawful authority on the ground that materials on which the action was taken did not satisfy it and it would not have itself taken the same action on 'the said materials. The law is that if materials relatable to the grounds on which the action has been taken existed and the relevant authority is satisfied that on its basis action was called for, this Court cannot substitute its own decision for the decision of the competent authority and hold the action taken to be bad. It is in this state of the law that it is to be seen whether the action taken was bad in law. We observe that, in the present case, the action in question was ordered by the highest Executive Authority in the State.
It was based on materials that are adequate and relevant. It is true that in the light of all the circumstances that have bee disclosed before us, during the lengthy proceeding held by this Court, it is possible to take another view. But the view actually taken is also a possible one. It cannot, therefore, be said that the impugned order has not been passed after an honest application of the mind. We cannot hold the action taken to be unlawful, only because another view is possible. This Court not being the appellate Authority in such matters, it cannot substitute its own discretion, for the discretion of the competent authority.
27. So far as the plea that the action was taken only on the basis of suspicion is concerned, the distinction between "being satisfied" and only "suspecting" is one of degree. In the case of Abdul Baqi Baluch, this aspect of the matter was dealt with as follows:----- "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."
The plea, that the action was taken on the basis of suspicion, was largely based upon the affidavit of Mr. A.I Asghar filed in the earlier writ petition. The order impugned in the said petition was made by him and his affidavit, no doubt, was relevant therein. In the present case, however, the impugned order dated 21-6-73 was made by the then President of Pakistan and the affidavit filed in the present proceedings is by Mr. S. S. Zafar. It shows that the President of Pakistan was satisfied that the action was called for.
28. We may now take up the contention of Mr. M. B. Zaman that on account of the Notification issued under Article 233(2) of the new Constitu--petition, the right to move the Courts for enforcement of Fundamental Rights has been suspended and, therefore, no relief can be granted on the ground of any violation or non-compliance with the provisions of Article 10 thereof.
29. The Notification relied upon by the learned Advocate-General was issued by the President of Pakistan on 15th August 1973, and is couched in the following terms:---- "Whereas Article 280 of the Constitution of the Islamic Republic of Pakistan provides that the Proclamation of Emergency issued on the 23rd November 1971, shall be deemed to be a Proclamation of Emergency issued under Article 232,/thereof; And whereas clause (2) of Article 233 of the said Constitution provides that while a Proclamation of Emergency is in force, the President may by order, declare that the right to move any Court for the rights conferred by Chapter I of Part II of the Constitution as maybe specified in the order and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of the rights so specified, shall remain suspended for the period during which the Proclamation is in force; and Whereas the aforesaid Proclamation of Emergency is in force; Now therefore, in exercise of the powers conferred by the said clause (2) of Article 233, the President is pleased to declare that the right to move any Court, including the right to move the Supreme Court vide clause (3) of Article 194, for the enforcement of the fundamental rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24, 25 and 27 of the Constitution, and all proceedings pending in any Court which are for the enforcement, or involve the determination of any question as to enforcement of any of the said rights, shall remain suspended for the period during which the said Proclamation is in force."
To appreciate the situation fully, it would be appropriate if the provisions of sub-Article (1) and sub- Article (2) of Article 233 of the Constitution are examined along with the terms of the above Notification:----- "233.-(1) Nothing contained in Articles 15, 16, 17, 18, 19 and 24 shall, while a Proclamation of Emergency is in force, restrict the power of the State as defined - in Article 7 to make any law or to take any executive action which it would, but for the provisions in the said Articles, be competent to make or to take, but any law so made shall to the extent of the incompetency, cease to have effect and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force.
(2) While a Proclamation of Emergency is in force, the President, may, by order, declare that the right to move any Court for the enforce--ment of such of the Fundamental Rights conferred by Chapter I of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the Rights so specified shall remain suspended for the period during which the Proclamation is in force, and any such order, may be made in respect of the whole or any part of Pakistan."
The Notification, as already seen, has been issued under sub-Article (2) of Article 233. Under Article 280 of the new Constitution, the Proclamation of Emergency issued on 23-11-1971 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. E Accordingly, sub-Article (1) of Article 233 must be deemed to have come into operation. A close reading of sub-Article (1) of Article 233 shows that under it the restriction against law making or taking, any executive action which it would not be competent to make or to take, in view of the provisions of Articles 15, 16, 17, 18, 19 and 24, is removed. Thus, during the pendency of the Proclamation of 'Emergency the fetters created on the Legislative and Executive powers by virtue of the above Articles of the Constitution are removed and these Articles of the Constitution may be considered to be non-existent so long as the Proclamation of Emergency is in force. However,' the position with regard to the Articles of the Constitution, for the enforcement of which the right to move any Court has been suspended by an Order of the President .Is different. In such cases, the Fundamental Rights, referred to in the order, are not suspended, only the right to move the Court for enforcement of these rights is suspended. In consequence Fundamental Right No. 10 continues to be an existing right and the restriction on the power of the State to make any law or to take any executive action in contravention of the said right continues. However, during the subsistence of the Proclamation of Emergency, no proceedings can be initiated for the enforcement of the said right or involving the determination of any question as to the infringement of any such right. The question, however, that arises in this case is whether proceedings wherein it is complained that the provisions of Article 10 has not been observed, amounts to praying for the enforcement of Fundamental Rights. In other words whether the provision of Article 10 can be deemed to be at all in the nature of the Fundamental Rights. We think that the provisions relating to the question of arrest and detention of a person as well as the provisions relevant to the continuance of his detention are provisions in the nature of law belonging to the category of Statute Law, though enacted in the Constitution. The above provisions, doubtless, are contained in Article 10, which Article falls within the Chapter relating to Fundamental Rights but, an essence, the provisions in question are an ordinary law, not in the nature of pure constitutional laws, but laws of a sub-constitutional character. This view is supported by the dictum of the Supreme Court of Pakistan in Abdul Aziz v. Province of West Pakistan (PLD 1958 SC (Pak.) 499and Government of East Pakistan v. Mrs. Rowshan Bajaya Shaukat A.I Khan (PLD 1966 SC 286). In the first mentioned, case, it was observed, while discussing the nature of Article 7 of the 1956 (Constitution, which in terms is similar to Article 10 of the present Constitution, that:--------- "When Article 7 proceeds to make detailed provisions 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 largely concerned 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 nature dealing with a special subject in the course of making a Constitution. In Article 7 there are included 11 general statements of conditions affecting the questions of arrest and detention of persons, under all sub-constitutional 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."
"But on the view I have taken of the effect of sub-paragraph (5) of paragraph 2 of the Fundamental Rights that constitutional provision must be deemed to be a part of the law contained in section 41 and if they are read together it would be difficult to maintain that unreasonable restrictions on the right of free movement of a citizen has been placed by this measure within the meaning of paragraph 5 of the Fundamental Rights."
Earlier, Mr. Justice S. A. Rahman dealing with this issue relying upon Abdul Aziz's case, held that sub-para. (5) of para. 2 of the Fundamental Rights was positive law enacted by the Constitution.
His observations were .Couched as follows----- "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 be followed, or qualifications to be fulfilled, by a statute before its validity could be established. On the 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."
No doubt, Mr. Justice Hamoodur Rahman (now Chief Justice) took a different view and did not subscribe to the opinion that the provisions of the Constitution should be read into the East Pakistan's Ordinance so as to save the provisions of section 41 from being declared as void on the ground of inconsistency with provisions of sub-para. (5) of para. 2 of the Fundamental Rights but the majority view, as already pointed out, was to the effect that the statements contained in the Article relating to preventive laws was to be deemed to have been incorporated in the law relating to preventive detention and should be given effect to as positive law.
30. We may also point out in this connection that there is no time limit prescribed in the Defence of Pakistan Ordinance or the Defence of Pakistan Rules for which a person can be kept in preventive custody. It is only by provisions of Article 10 that the periods for which preventive detention including the total period thereof, are laid down. If the argument of the learned Advocate-General was accepted, the result would be that the detention could be ordered for an unlimited period of time, the reference to the Review Board would become unnecessary and all safeguards for arrest and detention (which too are laid down in Article 10) would disappear. These results were not contemplated because, in view of law declared by, the Supreme Court, it was known that the provisions of Article 10 stood incorporated in the detention law itself and the suspension of the right to ; move for enforcement of Article 10 would not have the effect of suspending these provisions.
This inference is supported by the conduct of the respondent. The detenu has been served with the grounds, as required by the provisions of Article 10, his case was duly referred to the Review Board and the period of detention extended only after securing an affirmative opinion of the Board to the effect that the detention was justified. We are of the view, therefore, that if it could be shown that the provisions of Article 10 have not been complied with, this Court could grant relief to the applicant, on the ground that the said provisions of the law are in the nature of Statute law and form part of the said Statute. Thus, when it is prayed that a detention should be declared to be illegal for non-compliance with the provisions of Article 10 the petitioner is not seeking the enforcement' of a Fundamental Right, but the High Court is simply being asked to, perform its constitutional duty under Article 199(1)(b)(i) to satisfy itself whether the detenu is being held in custody in accordance with law. This becomes further clear when it is seen that the prayer that the detention should" be declared without lawful authority is not being made by invoking the' provisions of Article 199(1)(c) of the Constitution, which empowers the High Court to issue directions for enforcement of any of the Fundamental Rights, but, on the contrary, this prayer is being made by invoking the': provisions of Article 199(1)(b)(i) the provisions of which are admittedly in force, which enjoin upon the High Court to satisfy itself that a person in within its territorial jurisdiction is not being held in custody without lawful authority or in an unlawful manner.
31. In a case from the Indian jurisdiction, namely, Yousaf Abdul Aziz v. State (AIR 1951 Bom. 470), a somewhat analogous point came for consideration. In that case, the petitioner was being prosecuted under section 497 of the Indian Penal Code and his contention was that section 497 offended against the provisions of Articles 14 and 15 of the Indian Constitution; therefore section 497 was bad and he could not be prosecuted under that section. The first question that arose was whether the petitioner, who was not the citizen, could approach the High Court for assistance invoking his right under Article 15(1) of the Indian Constitution. In regard to this aspect of the matter, the Court observed---- "We do not think it right to say that Mr. Peerbhoy's client has come to this Court for enforcement of the Fundamental Right under Article 15(1). Mr. Peerbhoy's contention is that inasmuch as the law discriminates against citizen and citizen on grounds only of sex the law is void under Article 13 and as he is being prosecuted under a void law, his prosecution is bad and he cannot be convicted of an offence under a void law. To that extent even a non-citizen may rely on any of the fundamental rights, not indeed for the purpose of enforcing those rights but merely in order to point out to the Court that a particular law being in violation of any of these fundamental rights is bad, inoperative and no penal consequence can follow, from the breach of such a law. If Mr. Peerbhoy could satisfy us that this particular piece of legislation does discriminate contrary to what is provided under Article 15(l) then undoubtedly it would be our duty to say that section 497 is bad, and as Mr. Peerbhoy's client is being prosecuted under a void law, the prosecution must be quashed.
Therefore, we have to consider on merits what the position of section 497 is in relation to Article 15(l)."
32. Our conclusion, therefore, is that, in case, the provisions of Article 10 are violated, the person aggrieved thereby can approach this Court under Article 199(l)(b)(i) for declaration that he is being held custody in an unlawful manner.
33. As for the violations of Article 10, Mr. Mahmud A.I, pointed out in the first place, that in the order of the Review Board passed on the 8th or 10th September 1963, the conclusion of the Board was that there were sufficient reasons for the detention of the detenu. According to him, Article 19(4) lays down that "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." According to him, since the detention of the detenu was extended beyond period of one month, as directed in the original order of detention dated 21-6-73, the Review Board should have addressed itself to the question of extension of the period of detention and not to the question whether the detention was originally justified. There is no force in this contention. The factual position is that after the order of detention dated 21-6-73 was passed, the Advisory Board consisting of Mr. Justice Muhammad Gul and Mr. Waqar Ahmad reviewed the case of the detenu within the period of one month and found the detention justified, by its order dated 14-7-73.
Thereafter, on the coming into force of the Constitution on the 14th August 1973, the Review Board again reviewed his case, within a period of one month of the coming into force of the Constitution, and upon this review, the Review Board again held the detention to be justified.
34. The other non-compliance with the provisions of Article 10 to which our attention was drawn was that the Review Board had not! Determined the subsistence allowance for the family of the detenu, as required by sub-Article (8) of Article 10. This objection seems to be correct but the non- compliance with this provision does not render the order itself to, be illegal. The detenu can apply to the Review Board for the subsistence allowance for his family and if it reuses to do so, the detenu could have a cause of action before us.
35. Mr. Mahmud A.I also drew our attention to sub-Article (7) of Article 10, which provides that:--- "Within a period of 24 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 12 months in any other case."
Mr. Mahmud A.I argued that the detention of the detenu was based on the apprehension that if he was not kept in custody there may be civil com--motions, as was stated by Mr. A.I Asghar, Interior Secretary, in the course of his statement in the earlier writ petition. Learned counsel argued that this implied that the detenu was being detained to prevent him for acting in a manner prejudicial to public order. He further submitted that in such cases the total period for which detention could continue is 8 months. Accordingly, in so far as the detenu had been continuously in detention with effect from 15-2-73 because even after the revocation of the order of his earlier detention he had not been released but that he was served with another order simultaneously, the period of his detention would expire after 8 months of detention and that he would be entitled to be set at liberty with effect from 15th October 1973.
36. On the day when the above submission was made by Mr. Mahmud A.I, the respondents were being represented by Sh. Ejaz A.I, Advocate. The said learned counsel repudiated Mr. Mahmud A.I's suggestion to the effect that the detention of the detenu was ordered only to prevent him from acting in a manner prejudicial to the public order but submitted that his detention was also for the purpose of preventing him from acting in a manner prejudicial to the security of Pakistan and public safety and that the ground of maintenance of peaceful conditions was only one of the reasons for his detention. He, therefore, submitted that the detenu could be detained for a period of 12 months. He, however, frankly conceded that the period of detention from 15-2-73 to 21-6-73 could be counted for calculating the period of 12 months, as the detenu had remained con-- tinuously in detention without any interruption, under a law providing for preventive detention. On this basis, he could be detained up to 15-2-1974.
37. We agree with Mr. Ejaz A.I, the learned counsel of the respondent that the latest detention order cannot be said to relate only to preventing the detenu from acting in a manner prejudicial to public order but it was passed also with a view to preventing him from acting in manner prejudicial to the security of Pakistan. Consequently, the detenu can be detained not only up to 15th October 1973, but up to 15-2-1974.
38. ' The over-all . Conclusion is that the contention raised by Mr. Mahmud A.I that the detenu is being held in custody without lawful authority and in an unlawful manner fails. Likewise, the contention of the learned Advocate-General that this Court, cannot grant relief even where the provisions of Article 10 of the Constitution are disregarded is also found to be infirm. The upshot is that this writ petition shall stand dismissed, subject to the clarification mace in the preceding paragraph. The parties, however, will be left. To bear their own costs.