The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Validate delegation of power to Provincial Government in regard to apprehension and detention of suspected persons under S. 3(4), Defence of Pakistan Ordinance (XXIII of 1965). [p. 394] I

For the present, I proceed with the state of the decision on other points of law by the High Court. It having been urged before them that power had been delegated by the Central Government to the Provincial Government to act in field, which were outside the Legislative and executive functions reserved to the Provinces, the learned Judges pointed out, quite rightly that subsections (1) and (2) of Article of the Constitution gave validity to the delegation. Article 143 of the Constitution provides for delegation of Central powers to the Provinces. Subsection (1) enables the President to entrust functions of the Central Government either conditionally or unconditionally to a Provincial Government, but with the consent of that Government. The present case is related exclusively to the maintenance of public order, which is a Provincial subject under the Constitution and subsection (1) of section 143 does not govern the delegation of such power. Moreover, the Defence of Pakistan Ordinance is to be construed as a Central Act and by subsection (2) of Article 143, a Central Act may authorise conferment of powers and imposition of duties upon a Provincial Government in respect of matters outside the Legislative power of the Provincial Legislature. (p. 394) I

(b) Constitution of Pakistan (1962), Art. 61
Constitution of Pakistan (1973), Art. 187

Point of jurisdiction not raised in High Court—Allowed to be raised in appeal before Supreme Court. [p. 400] U

A special argument advanced in respect of the detetion order issued against the appellant, Nawabzada Nasrullah Khan requires to be noticed. It appears not to have been raised in the High Court. The delegated powers of the Deputy Commissioners under section 3 of the Ordinance are expressed to be exercisable only within their respective jurisdictions. It follows that the detention orders were executable only in the Lahore district. The detention order for Nawabzada Nasrullah Khan was, however, taken by a police officer from the Lahore district to another district, namely, the Muzaffargarh district and there without the intervention of the local police, it was carried into effect by the same officer by the arrest of Nawabzada Nasrullah Khan. The learned Advocate-General was unable to meet the argument that the arrest was illegally effected. That whole detention was vitiated thereby. The further order of the Home Secretary altering the place of detention of Kohat was ineffective to remedy the defect appearing at the first stage of the implementation of the Deputy Commissioner’s detention order. It follows therefore that the detention of Nawabzada Nasrullah Khan under the Deputy Commissioner’s order of the 16th February 1966, was illegal. (p. 400) U