MALIK MUHAMMAD QAYYUM, J.--The following question arising in this Constitutional petition as also Writ Petitions Nos.8298 of 1991, 9653/91, 9583/91, 9633/91 and 9632/91 has been referred to us by a learned Single Judge of this Court for answer:-- "Whether a representation under section 6(a) of the West Pakistan Maintenance of Public Order Ordinance XXXI of 1960 can be considered to be an 'adequate remedy' within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, so as to debar a person from filing a Constitutional petition straightaway without availing of the said remedy."
2. The facts necessary for determination of the present controversy are that in all these petitions which had been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the detentions of various persons by the District Magistrates of the respective Districts tinder section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 have been challenged. All these petitions were admitted to regular hearing by the learned Single Judge. When the matter came up before him, an objection was raised on behalf of the respondents that as the detenus have failed to file any representation in terms of section 3(5) of the Ordinance these petitions were not maintainable. It was noted that on account of the difference of opinion between the High Court and in view of the importance of the question involved, it was desirable that the matter be heard by a larger Bench. The Hon'ble Chief Justice on a reference made by a learned Single Judge has constituted this special Division Bench to hear these matters.
3. Before us the argument on the stated question were addressed by Mr. Muhammad Sabir Kaifi, Advocate while the other learned counsel appearing for the petitioners adopted his arguments. It was contended by the learned counsel that remedy of representing against the order of detention is not an equally and efficacious remedy inasmuch as although the detenu has a right to represent against , his detention, the Government is under no obligation to decide the same. It is also - argued that the Constitutional jurisdiction of this Court can be invoked notwithstanding the failure to file the representation. Reliance in this connection was placed by the learned counsel on Abdul Hamid Khan v. The District Magistrate, Larkana (PLD 1973 Kar. 344) and Muhammad Khan v. State through Deputy Commissioner, Nasirabad at Dera Murad Jamali and 2 others PLD 1985 Quetta 217.
4. The learned counsel for the petitioner raised another point, which we permitted him to do namely that notwithstanding section 26 of the Punjab Maintenance of Public Order Ordinance, 1960 and the delegation of powers under subsection (1) of section 3, the District Magistrate by himself cannot pass any order of detention except after reference to the Government under subsection (2) which alone was competent to determine as to whether the condition exists justifying the detention. It was argued that the power of Itsatisfaction" cannot be delegated to the District Magistrate. Reference in this connection was made by the learned counsel to Liaqat Ali v.
Government of Sindh through Secretary, Home Department and another (PLD 1973 Kar. 78), Bahar Khan v. Inspector-General Frontier Corps at Quetta and 3 others (PLD 1987 Quetta 13) and Gulzar Ahmad v. District Magistrate and another (1988 PCr.LJ 1790).
5. In reply, the learned Advocate-General has contended that the remedy provided by section 3(6) of the Punjab Maintenance of Public Order Ordiarince, 1960 was equally efficacious and adequate and no Constitutional petition can be maintained without availing of that remedy.
6. Before embarking upon the discussion on the subject, it will be useful to reproduce the relevant provisions of section 3 of Punjab Maintenance of Public Order Ordinance, 1960 which reads as under:-- "3---(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under subsection (7), of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid. Reasons it is necessary so to do, may, (* * * * * * * * * *) extend from time to time the period of such detention, (for a period not-exceeding six months at a time).
(Explanation I)--For the purposes of this section-- (i)dealing in the 'black-market' or 'hoarding' as defined in the Hoarding and Black-Market Act, 1948; or (ii)an act of smuggling punishable under the Sea Customs Act, 1878, or the Land Customs Act, 1924, or under any other law for the time being in force; shall be deemed to be an act prejudicial to the maintenance of public order.
(Explanation 11) --- Whoever is or was a member of an association or its Executive Committee, which association is or has been declared to be unlawful under any law for the time being in force in the province, at any time during the period of seven days immediately before it was so declared to be un ' lawful, or remains or becomes a member of such an association or is on the Executive Committee thereof after it has been so declared to be unlawful shall be deemed to be acting in a manner prejudicial to public order for the purpose of this section.
(2)if a District Magistrate or any other servant of Government authorised in this behalf by a general or special order of Government has reason to believe that any person within his territorial jurisdiction has acted, is acting or is about to act in a manner prejudicial to public safety or the maintenance of public order, he shall forthwith refer the matter to Government for orders.
(6)Where a detention order has been made under this section the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made, inform him that he is at liberty to make a representation to Government against the order and afford him the earliest opportunity of doing so: Provided that the authority making any such orders may refuse to disclose facts which such authority considers it to be against public interest to disclose.
(6-a)Where a representation is made to Government under subsection (6), Government may, on consideration of the representation and after giving the person detained an opportunity of being heard, modify, confirm or rescind the order."
10. It is also necessary to take notice of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 which guarantees the fundamental right of freedom from arrest and detention except as provided therein, the relevant provisions of this Article read as under:-- "10. Safeauards as to arrest and detention.--(l) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2)Every person "who is arrested and detained in custody, shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest, to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
3)Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
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 public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for months) unless the appropriate Review him an opportunity of being heard in reported, before the expiration of the opinion, sufficient cause for such continued after the said period of (three months), 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. a period exceeding (three Board has, after affording person, reviewed his case and said period, that there is, in its detention, and, if the detention i Explantion I.--In this Article "the appropriate Review Board' means-- (i)in the case of a person detained under a Federal Law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and (ii)in the case of a person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two ot ' her persons, each of whom is or has been a Judge of a High Court.
Explanation ,.__The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.
(5)When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall (within fifteen days) from such detention, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
11. At the very outset it may be noted under the West Pakistan Maintenance of Public Order Ordinance as originally enacted subsection (6) of section 3 only provided that the authority making the order of detention shall communicate the grounds to tho detenu and also inform him that he is at liberty to make a representation to the Government against the order and afford him the earliest opportunity of doing so. However, by subsequent amendment made by West Pakistan Maintenance of Public Order Ordinance, 1964 after subsection (6) the new subsection (6-a) was inserted so as to provide that the Government may'on consideration of the representation and after giving the person detained an opportunity of being heard, modify, confirm and rescind the order.
12. From a reading of sub-Article (5) of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 it becomes obvious that the Constitution insists not only that the grounds for detention be communicated to the detenu but also that he shall be afforded the earliest opportunity of making a representation against the order. The right to make representation is thus not A only statutory in nature but also finds recognition in the Constitution itself, and therefore, stands on much higher padestal. The importance of this right cannot be whittled down and it must be given effect to. Subsection (6) of section 3 has been enacted to give effect to sub-Article (5) of Article 10 of the Constitution and it must be viewed in that context. It is also to be noticed that subsection (6-a) requires the Government to hear the person concerned before dedicing the representation.
13. We are not impressed with the arguments of the learned counsel that though the detenu may have a right to file a representation but the Government is under no obligation to decide it. This contention was strongly controverted by the learned Advocate-General who very fairly maintained that the right to file representation carries with it by necessary implications the right to have it decided in accordance with law. We find force in this contention of the learned Advocate-General.
A reading of sub-Article (5) of Article 10 with subsections (6) and (6-a) of section 3 leaves no doubt in our mind that it is implicit in the right to file a representation that it must be decided by the Government without any delay and within a reasonable period of time. The obligation of the Government to decide the application flows out of the aforesaid provisions and it is necessarily implicit in the language of provisions referred to above that the representation must be decided as expeditiously as possible. To accept the other view would amount to rendering the right conferred by the Constitution and law to be illusory and futile. Indeed the failure of the Government to decide a representation has itself been held to be a ground for striking down the order of detention.
14. The view which we have taken is not without authority. The question was considered in context of Article 22 of the, Indian Constitution which is couched in similar language as sub-Article (5) of Article 10 of our Constitution in Sk. Abdul Karim and others v State of West Bengal (1969)1 Supreme Court Cases 433) and it was held that:-- "Article 22 (5) does not expressly say to whom the representation is to be made and how the detaining authority is 'to deal with the representation. But it is necessarily implicit in the language of Article 22(5) that the State Government to whom the representation is made should property consider the representation as expeditiously as possible. The constitution of an Advisory Board under section 8 of the Preventive Detention Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as I it is received by it. It is obvious that apart from the procedure soon as of reference to the Advisory Board, the State Government has ample power under section 13 of the Act to revoke any order of detention any time. If the right of representation in such a case is a legal obligation imposed upon the State Government to consider representation and to take appropriate action thereon."
The same view was taken in Pankaj Kumar Chakrabarty and others v. The State of West of Bengal (1969)3 Supreme Court Cases 400) and Sk. Sekawat v. The State of West Bengal AIR 1975 SC 64.
15. Reverting now to the judgments relied upon by the learned counsel for the petitioner it may be seen that the judgment in Muhammad Khan v. State through Deputy Commissioner Nasirabad at Dera Murad Jamali and 2 others PLD 1985 Quetta 217 does not give any reason in support of the view taken but it merely relies upon the judgment of the Karachi High Court in Abdul Hamid Khan v.
District Magistrate, Larkana PLD 1973 Kar. 344 and is therefore, of no much help. As regards the judgment of Karachi High Court with great deference to the learned Judges who have decided the case, we are unable to share the view taken by them that although it is the right of a detenu to make representation, the Government is under no obligation to decide the same. This decision merely proceeds on the use of the word "may' in subsection (6) of section 3 of the Act.
Unfortunately, however, while coming to this conclusion the provisions of Article 10 of the Constitution were not brought to the notice of the learned Judges of the Division Bench, which contains a Constitutional command that a right to make representation must be made available to the detenu. Similarly although the word "may" is generally used in permissive sense but it is well- settled that word "may' is interchangeable with "shall" and if the context so requires it can also be interpreted as being mandatory. This aspect of the case was not dealt with by the learned Judges o the Division Bench.
14. It is not disputed that as a general rule the jurisdiction under Article 199 cannot be exercised where there is equally efficacious and alternative remedy available. Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 starts with the words "subject to the Constitution a High Court may if it is satisfied that no other adequate remedy is provided by law As already held that Article 10(5) of the Constitution and section 3(6) and (6-a) of the Punjab Maintenance of Public Order Ordinance, grant a right to detenu to make a representation which must be decided by the Government. That being so we are of the view that the remedy provided by Article 10(5) and subsections (6) and (6-a) of section 3 of the Ordinance is adequate within the meaning of Article 199 of the Constitution. By so observing we do not find to lay down an inflexible rule and we should not be taken to have held that in no case a Constitutional petition can be filed without filing a representation. There may be cases where it scan be demonstrated that it is not possible to file a representation for example, where no grounds of detention are communicated to the detenu or where the filing of the representation would be a mere exercise in futility. Similarly, there may be other cases like complete lack of jurisdiction in the authority passing the order of detention where the filing of representation may not be necessary. In the ultimate analysis the question as to whether it would be necessary to file a representation in a given case would depend upon the facts of that case.
16. In the end we may also refer with great respect to an instructive authority of the Supreme Court of Pakistan where while considering the similar arguments in reference to section 115 of the C.P.C.
The Supreme Court of Pakistan was pleased to observe in Karamat Hussain and others v.
Muhammad Zaman and others (PLD 1987 SC 139) that:-- "True, the exercise of this jurisdiction by the High Court is discretionary but that does not mean that a revision is not a right but only a privilege. A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy; while a right is some benefit conferred on a person by virtue of a given law. Here, the provisions of section 115 of the C.P.C. Confer on every person who has litigated before a Court subordinate to the High Court the right to assert before the latter that the decision rendered by the subordinate Court against him is liable to correction under its revisional jurisdiction. Indeed where the conditions for the exercise of revisional jurisdiction are satisfied the High Court should itself interfere. Of course, it may in certain circumstances, in exercise of its judicial discretion, refuse to exercise its discretion in favour of the petitioner such as where the petitioner has approached the Court, without reasonable cause, with undue delay or his conduct has been contumacious or because of the existence of some other special circumstances which disentitle him from relief. But the mere fact that the exercise of revisional jurisdiction is discretionary does not mean that it is a privilege. Even the Writ Jurisdiction conferred upon the High Courts by the Constitution is discretionary. But the right to apply for a writ is certainly not a privilege. On the contrary, it is one of the most valuable rights that can be conferred upon a citizen."
17. The case of Ch. Muhammad Anwar v. Government of West Pakistan PLD 1963 (W.P.) Lahore 109 it is of no avail in the present case for what was decided therein was that notwithstanding the ouster of jurisdiction by the West Pakistan Maintenance of Public Order Ordinance, 1960 the High Court retains the jurisdiction to declare the order to be without lawful authority under Article 98 of the 1962 Constitution. The question as to whether that jurisdiction can be invoked without riling a representation was neither considered nor decided.
18! As regards the other argument of the learned counsel for the petitioner that even in a case where power under section 3(1) has been delegated to the District Magistrate in terms of section 26 of the Punjab Maintenance of Public Order Ordinance, he has to make a reference to the Government, we must express our inability to accept this contention. Section 26 of the Punjab Maintenance of Public Order Ordinance, 1960 empowers thc~ Government to direct that power under subsection (1) of section 3 shall be exerciseable by any of the District Magistrates within his jurisdiction. When the power has been so delegated to the District Magistrate, he can direct the detention. It would be anomalous to hold that though under section 3(1) the District Magistrate has the power to order the detention but the satisfactionj that the person is likely to act in a manner prejudicial to public safety or Maintenance of Public Order must be that of the Government to whom a reference must be made by the District Magistrate under subsection (2) of section 3. It is apparent to us that subsection (2) is applicable only to a case where the power has not been delegated by the Government to the DistriCil Magistrate. This aspect of the case need not be dilated upon as we find that while considering a similar provision in the Defence of Pakistan Rules, the Supreme Court of Pakistan in Malik Ghulam Jilani v. The Government of West Pakistan through the Home Secretary, Lahore and another (PLD 1967 SC 373) has taken the view as* above. Reference may also be made to the judgment of Full Bench of the Lahore High Court in Mst. Nasim Fatima v. Government of West Pakistan and another (PLD 1967 Lah. 103) which was approved by the Supreme Court in Malik Ghulam Jilani's case supra.
Unfortunately the attention of the learned Judges who decided the case of Liaqat Ali v. Government of Sindh through Secretary, Home Department and another (PLD 1973 Kar. 78) was not drawn to the authority of the Supreme Court or the judgment of the Full Bench of this Court. The judgment of the Karachi High Court was criticised, if we may say so with respect for that very valid reason by this Court in Noor Muhammad v. District Magistrate, Multan (PLD 1976 Lah. 233) which was followed in subsequent judgment in Mst. Shazia Perveen v. District Magistrate, Okara (PLD 1988 Lah. 611).
For the reasons aforesaid we are of the view that this contention of the learned counsel for the petitioner has no force. As the question referred to the Division Bench has been answered in the above terms this petition be placed before a learned Single Judge for disposal after obtaining orders from the Hon'ble Chief Justice.
MUNIR A. SHEIKH, J.-- agrec M.B.A./M-181/1