1. MUHAMMAD YAQUB ALI, J.-This petition is moved by the Federation .Of Pakistan for reviewing of the judgment of the Court delivered on 17-12-1974, in Criminal Petition No. 61-P of 1973, entitled Ch. Manzoor Elahi v. The Federation of Pakistan and others (PLD1975SC66). It is stated that amongst others, the judgment merits age-consideration on the following ,points:- "(i) The findings of this Hon'ble Court that clause (2) of Article 233 of the Constitution is subject to clause (1) of the said Article and the enforcement of Fundamental Rights other than those enumerated in Article 233 (1) of the Constitution are not affected in any manner by the Proclamation of Emergency issued by the President under Article 232 of the Constitution.
(ii) The findings of this august Court that by virtue of the proviso to paragraph (c) of clause (2) of Article 232, of the Constitution the jurisdiction of the High Court under Article 199 and the jurisdiction of the Supreme Court under Article 184 (3) can be exercised for the enforcement of the Fundamental Rights especially No. 10, in spite of this having been suspended by an Order of the President of Pakistan in exercise of his powers under clause (2) of Article 233 of the Constitution.
(iii) The findings of this Hon'ble Court that the jurisdiction of the Supreme Court under Article 187 read with Article 190 of the Constitution can be exercised for the enforcement of the Fundamental Rights even when these stand suspended under the Order of the President of Pakistan passed in exercise of his powers under clause (2) of Article 233 of the Constitution.
(iv) The findings of this Hon'ble Court that clause (7) of Article 247 of the Constitution does not bar the jurisdiction of the Supreme Court or a High Court under the Constitution in relation to Tribal Areas in question
(v) The observations of this august Court that "The contention raised on behalf of the State that the initial illegality in the arrest of the prisoner is no longer material as he is now being detained at Kohlu for trial on charges under sections 120, 121, 121-A and 122, P. P. C. Is thus without any force.
(vi) That this Hon'ble Court has almost decided the entire case and in fact there is now nothing left to be decided by the High Court."
2. The petition concludes with the prayer:- "That as the decision on the above-mentioned points is bound to have a far reaching effect on the whole of the administrative machinery of the Government particularly on the function of the executive in A the performance of its duties and obligations under the Constitution in times of crisis, war and peace, it is, therefore, respectfully prayed that this application , seeking review may graciously be allowed."
3. The application is inaptly drafted and singularly misconceived as no ground for review is set out in it.
4. At the hearing of the petition, the leaned Deputy Attorney-General drew our attention to the following two paragraphs in the judgment of the Court, one at page 4 and the other at page 101 of the Report In PLD 1975:- "Under Article 9 he shall not be deprived of life or liberty save in accordance with law. Under Article 10 (1) and (2), when a person is arrested be shall not be detained in custody without being informed as soon as possible of the grounds of his arrest and will not be denied the right to be defended by a legal practitioner of his own choice. And "every person who is arrested and detained in custody ..Hall to produced before a Magistrate within a period of twenty --for hours of such arrest". Any law or action which is violative of these rights will be void under Article 8 of the Constitution. Since Articles 9 and 10 are not included in Article 232 (1), referred to above, the State shall not frame any law even while the Proclama--tion of Emergency is in force in contravention of these rights. If such a law is enacted, any act done or proceeding undertaken under it, shall be struck down by a High Court under Article 199 as without lawful authority and of no legal effect. This result will follow even if the President has by an order declared that the right to move any Court for the enjoyment of these Fundamental Rights shall remain suspended while the Proclamation of Emergency is in force, for as said earlier, Article 233 does not permit the State to make laws which are inconsistent with the Fundamental Rights other than the Rights specified in Articles 15,16, 17, 18,19 and 24. This power is independent of the power of the High Court to enforce Fundamental Rights conferred by Chapter I of Part II of the Constitution. Consequently if a person is taken into custody under a law which is violative of Articles 9 and 10, a High Court will under Article 199 (1) (b) issue a writ of habeas corpus and direct his release forthwith". . .-[Muhammad Yaqub Ali, J.] ---I may state here at once, firstly, that the President's Order dated the 15th of August 1973, issued under Article 233 of the Constitution makes no mention of Article 9 and, secondly, that the operation of Fundamental Rights as contained in Article 10 itself is not suspended although the right to move any Court including the Supreme Court for the enforcement of the Right is suspended for the period during which the Proclamation of Emergency issued under Article 232 of the Constitution remains in force. It may also be mentioned that the latter part of the President's Order which says that "all proceedings pending in any Court which are for the enforcement, or involve the determination of any question as to the enforcement of any of the said Rights, shall remain suspended for the period during which the said Proclamation is in force", does not apply to the present case as it was not pending on the date of the Order" . . . .-[Salahuddin Ahmed, J.] It was contended that since the Right contained in Articles 10 (1) and 10 (2) had been suspended by the President during the proclamation of Emergency, the High Court had no jurisdiction to enforce it under Article 199 of the Constitution. This plea was pressed at a consider--able length at the hearing of the Criminal petition but did not appeal to me.
5. Article 9 enjoins that no person shall be deprived of life or liberty save in accordance with law.
6. Article 10 (2) lays down that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-for 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 Magistrate. Section 167 of the Code of Criminal Procedure is also to similar effect. It provides:- "167.-(1) Whenever any person is arrested, and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-for hours fixed by section 61, and there are grounds for believing that the accusation or information is well---founded, the officer in charge of the police station or the police officer making the investigation if he is not below the rank of Sub---Inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such, Magistrate."
7. It is thus the requirement of law as well as of the Constitution that if a person is detained or taken into custody, he will be produced before a. Magistrate within 24 hours of his arrest and his future detention will depend on the order passed by him authorising the Police Officer to hold the person in custody for a period not exceeding 15 days. The suspension of Fundamental Rights contained in Article 10(2) is, therefore, of no consequence as arrest or detention without complying with the requirement of law is, illegal and the High Court, in exercise of its jurisdiction under Article 199, may direct that the person in custody within its jurisdiction be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. I have clarified this legal position in the succeeding paragraph of the judgment. It is observed therein:- "Our Constitution thus ensures that no person shall be deprived of his life and liberty save in accordance with law and that the right conferred on every citizen by the Constitution to enjoy the protection of law is not affected in any manner by the Proclamation of Emergency issued by the President under Article 23. I am making mention of the Proclamation of Emergency because it was in force on November 12, 1973 when the prisoner was arrested from his house in Gulberg Lahore. An order was also made by the President on August 15, 1973, that the right to move any Court for the enforce--ment of Fundamental Rights specified in Articles 10, 15, 16, 17, 18, 19, 23, 24, 25 and 27 of the Constitution shall remain suspended for the period during which the Proclamation is in force. As Article 91 is not specified in the Order issued by the President the right to move a High Court under Article 199 and to move this Court under Article 184 (3) for its enforcement is not affected by the Presidential Order."
8. The view expressed by me was influenced by the incongruous results, which follow if the interpretation placed by the learned Deputy Attorney General on Article 10 (2) and Article 233 (2) is accepted. Under Article 4, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. In particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. This right is reiterated. In more specific terms in Article 9 which lays down that no person shall be deprived of life or liberty save in accordance with law.
9. Article 233 (1) provides that 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 take. Clause (2) of Article 233 empowers the President while the proclamation of Emergency is in force to declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter I, Part II, as may be specified in the Br Order shall remain suspended. If clause (2) is interpreted to mean that the President may, by Order, suspend the remedy to enforce all the Fundamental Rights contained in Chapter I, Part II, it will lead to the result that actions which are not covered by the authority of law may be taken by the executive which will be immune from challenge in a High Court. Article 4 which is not included in Chapter 1, Part 11, as seen, lays down in unambiguous terms that to be treated in accordance with law is the inalienable right of the citizens. Article 9 which is not included in the President's Order under clause (2) of Article 233 provides that no person shall be deprived of life and liberty gave in accordance with law. How can it then be maintained that an action which is not covered by the authority of law and is in violation of Articles 4 and 9 can be taken by the executive. This anomaly can be avoided by reading the provisions of clauses (1) and (2) off Article 233 as complementary to each other. As seen, the Legislature may make laws which are repugnant to Fundamental Rights contained in Articles 15, 16,17, 18, 19 and 24. An action in violation of these Right may, therefore, be taken provided it is covered by the authority of law. At the same time as these Fundamental Rights remain in force not with--standing the making of such laws, the President is given the power to suspend the remedy to move a High Court for their enforcement. They combined effect of the aforementioned provisions of the Constitution that even during the Proclamation of Emergency, the executive is precluded from taking any action which is not covered by the authority of law. This satisfies the mandate of Articles 4 and 9. If a contrary view is taken, clause (1) of Article 233 will become wholly redundant for there will be no necessity to make laws which are violative of Fundamental Rights 15, 16, 17, 18, 19 and 24 as, amongst others, they can be included in the Order of the President issued under clause (2).
10. The view expressed above is not conclusive of the matter as my Lord Anwarul Haq, J. Has come to the contrary conclusion and my Loral the Chief Justice has agreed with his Lordship. This controversy will, there--fore, be resolved in some future case.
11. Nothing substantial was said in regard to the observation of my Lord Salahuddin Ahmed, 1.
12. Appearing at page 101 of the report in PLD 1975. It is clearly mentioned that the clause "all proceedings pending in any Court which are for the enforcement, or involve the determination of an question as to the enforcement of any of the said Rights, shall remain sus--pended for the period during which the said Proclamation is in force", did not apply to the instant case as it was not pending on the date the order was promulgated by the President under clause (2) of Article
233. It did not, however, mean that the bar did not apply to future legal proceedings for enforcement of Rights conferred by Chapter I, Part II, of the Constitution.
13. No ground to review the judgment of the Court is thus made out. The petition is dismissed.
14. SALAHUDDIN AHMIED, J.-I agree subject to the observation that I reiterate that unless a particular right mentioned in Chapter I, Part II of the Consti--tution can be suspended under the Constitution and it has been so suspender in clear terms there is an obligation to comply with the Right.