MALIK MUHAMMAD QAYYUM, J.- Mr. Muhammad Akbar Cheema, an advocate of this Court, has filed this application under Section 491 of the Cr.P.C, seeking a direction in the nature of habeas corpus to the Superintendent Jail Kot Lakhpat to produce Zaheer Ahmad son of Samel Khan (hereinafter referred to as the detune) before this Court and to set him at liberty.
2. The necessary facts for the disposal of this petition briefly stated are that the detune was tried by Mr. Wasccm Ahmad, Magistrate It Class, Chunian, in two cases registered against him under Section 4 of the Pakistan Control of Entry Act, 1952 (Act LV of 1952) and under Sections 420, 468 and 471 of the PPC respectively. In the first case, he was sentenced to rigorous imprisonment of one year and to pay a i.e of Rs. 1000/-and in default of payment of i.e two months further R.I. And in the other case 1-1/2 year R.I. On 26.7.1993. The Court, however, ordered that both the sentences shall run concurrently and benefit of Section 382-B of the Cr.P.C, was also granted.
3. It is common ground between the parlies that the sentences awarded to the detune have since run out. He war., however, not released as the District Magistrate Kasur, vide his order dated 27.9.1993, directed his detention for a period of two months under Section 3(2), clauses(b),(c), of the Foreigners Act, 1946. The period of his detention was further extended by three months by the Govt, of the Punjab, Home Department, vide its order dated 17.10.1993. On 6.2.1994, after the expiry of the extended period of detention, another order was passed by the Government of the Punjab, directing that the detune shall remain confined as civil internee in Central Jail, Lahore, till the next meeting of the Federal Review Board or his departure from Pakistan.
4. Mr. Muhammad Akbar Cheema, Advocate/petitioner, who was argued the case in person, referred to Article 10 of the Constitution of Islamic Republic of Pakistan, 1973, to contend that the continuous detention of the detune for a period beyond three months is wholly without lawful authority and is violative of the fundamental rights guaranteed by the Constitution.
5. Mian Abdus Sattar Najam, Advocate General Punjab and Rana Muhammad Arshad Additional Advocate-General Punjab have also placed on record an order passed by the Federal Review Board on 13.1.1994 wherein the deportation of the detune has been extended till the next meeting of the Federal Review Board at Lahore.
6. The question, which falls for consideration, is as to whether the continuous detention of the detune since 10.8.1993 when the sentence awarded to him by Court of competent jurisdiction has run out is lawful authority.
7. Article 10 of the Constitution of Islamic Republic of Pakistan, 1973, which provides safeguards against arrest and detention, reads as follows: "Safeguards as to arrest and detention:-
(1) 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 without 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 a 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 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 three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviews 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 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.
Explanation 1.-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 Provincial Law, a Board appointed by the Chief Justice of the High Court concerned and consistent of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.
Explanation II.-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 ground 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.
(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.
(7) 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 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; Provided that this clause shall not apply any person who is employed by, or works for, or acts on instructions received from the enemy or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to antinational activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity.
(8) The appropriate Review Board shall determine the place of detention of the person detained and fix responsible subsistence allowance for his family.
(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien."
8. By the very wording of Article 10, the safeguards mentioned therein are guaranteed not only to a citizen of Pakistan but to every person. According to Sub-Article (4) of Article 10, no law providing for preventive detention can authorise detention of a person for a period exceeding three months 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 the opinion of the Board, sufficient cause for such detention. If the detention is to continue beyond a period of three months, the Federal Review Board is required by the Constitution before the expiration of each period of three months to review the case and report its opinion about sufficiency of cause for the continuous detention. The right guaranteed by Article 10 is one of the most cherished fundamental rights which a person can claim.
9. From this constitutional provision, it is evident that no person can be detained for a period beyond three months except when the Federal Review Board has expressed his opinion after hearing the person and reviewing his case that there was sufficient cause for his detention beyond three months. According to the mandate of the Constitution, this exercise has to be undertaken by the Federal Review Board before the expiration of each period of three months. In the absence of any such opinion of the Federal Review Board, the detention beyond a period of three months would be clearly illegal and unlawful. Consequently, there was no justification for the respondents to have directed the detention of the detune till the next meeting of the Federal Review Board, which admittedly has not taken place despite the expiry of a period of more than three months since the date of the order i.e. 6.2,1994.
10. The learned Advocate-General, however, in order to sustain the detention of the detune, relied upon a letter of the Federal Review Board addressed to the Home Secretary, Government of the Punjab, wherein it has been stated that: "The Federal Review Board has extended the deportation period of the following persons till the next meeting of the Board at Lahore:-
1. Zaheer Khan son of Saimal Khan
2. Riaz Gul S/O Sher Gul".
11. On the face of it, the aforesaid direction is clearly against the mandate of Sub-Article (4) of Article 10 of the Constitution, which requires the Federal Review Board to review the case of every detune before the expiry of every three months in order to find out as to whether or not there were any sufficient reasons for continuous detention. In these circumstances, no order in the nature mentioned above could be passed by the Federal Review Board.
12. The learned Advocate-General and the learned Additional Advocate- General Punjab have also pointed out that under Article 10(4) of the Constitution of Islamic Republic of Pakistan, 1973, the detention can be ordered or extended as the case may be by the Government and not by the Federal Review Board, whose jurisdiction is confined to examine whether or not there were any sufficient causes for ordering the detention. In the present case, it appears that it was only on the basis of the letter addressed by the Federal Review Board that the impugned order of further detention was passed without any application of mind by the detaining authority.
13. Similar question fell for determination before the Supreme Court of India with reference to Article 22 of the Indian Constitution, which is also in pari materia with Article 10 of the Constitution of Pakistan. It was held in Deb Sadhan Roy V. The State of West Bengal (AIR 1972 S.C.1924) that "failure to confirm and extend the period within three months will result in the detention becoming illegal the moment the three months period has elapsed without such confirmation. Any subsequent action by the appropriate Government after the three months cannot have the effect of extending the period of detention".
14. As already noticed, the detention in the present case, has been ordered under Section 3(2) of the Foreigners Act, 1946, the proviso to which ordains that no person can be detained for a period longer than two months without authority of the Board consisting of a Judge of the Supreme Court and another senior officer in the service of Pakistan. It is true that the proviso docs not provide the maximum period of detention or periodical review of the case but then the proviso is to be read as sub-ordinate to the constitutional mandate in Article 10 (4) of the Constitution as otherwise the proviso is liable to be struck down. Further fact to be noticed is that though the Federal Review Board contemplated by the proviso is to comprise of a Judge of the Supreme Court and another senior officer in the service of Pakistan but the explanation to sub- Article(4) of Article 10 provides that the appropriate Board in cases of persons detained under the Federal Law shall be a Board appointed by the Chief Justice of Pakistan 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. The Foreigners Act was the law, which existed at the time of enforcement of the Constitution of Islamic Republic of Pakistan, 1973, and, therefore, by the mandate of Article 268 of the Constitution it should have been brought in confirmity with the Constitution, which unfortunately has not been done. Be that as it may, as according to Article 268(1), the existing laws continued to remain in force subject to the Constitution, the provisions of Foreigners Act, 1946 are to be read in a manner which would not be violative of Article 10 of the Constitution. Consequently, even in cases of detention under the Foreigners Act, 1946, the safeguards provided by Sub-Article (4) of Article 10 of the Constitution must be read into the Statute as other law itself would be void. This view finds support by the judgment of the Indian Supreme Court in Vimal Chand Jawantraj Jain V. Pradhan and others (AIR 1979 S.C. 1501), wherein it was held that: "It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the constitutional safeguards provided in clauses (4) and (5) of Art.22 and if any order of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these constitutional safeguards are incorporated in the law authorising preventive detention, because even if they are not, they would be deemed to be part of the law as a superimposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention"
15. From the above discussion, it follows that an order of continuous detention of a detune cannot be passed beyond a period of three months unless the Federal Review Board has met, heard the detune and opined that there are sufficient causes for continuous detention. No order detaining the person for an indefinite period of time which may extend beyond a period of three months can either be passed. Admittedly, the detention of the detune in the present case is clearly without lawful authority.
In view of what ha been stated above, this petition is allowed with no order as to costs and it is directed that the detune shall be forthwith released from detention if not required in any other case.