The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Shafi, J.

(a) Government of India Act, 1935 Sections 49 & 59

Constitution of Pakistan (1973), Articles 129 & 139

On the 9th of March 1953, Mr. M. Ahmad, Chief Secretary of Government N.-W.F.P. Province, issued a detention order in respect of Hamesh Gul, son of Inzar Gul, of village Tehkal Bala, Tahsil and District Peshawar. It was addressed to the Inspector-General of Police N.-W.F.P. Province, directing him to arrest the said Hamesh Gul and commit him to the custody of Police for detention for a period of threemonths from the date of the arrest, because His Excellency the Governor, North-West Frontier Province was satisfied that with a view to preventing Hamesh Gul from acting in a manner prejudicial to public safety, it was necessary to arrest and detain him under subsection (1) of section 3 of the N.-W.F.P. Public Safety Act of 1948 (hereinafter called “The Act”).

Hamesh Gul was, as a consequence of the above order, arrested on the 14th of March 1953.  Subsequently on the 30th of March 1953, a revised order of detention signed by the same Officer was sent to the Inspector-General of Police N.-W.F.P., FOR THE DETENTION OF THE SAID Hamesh Gul in Police custody for a period of three months fromt he date of arrest.  This order seems to have been made in view of some amendment having been made in the mean while of section 3 of the Act.

On the 11th of June 1953, Mr. M.Ahmad Chief Secretary to the Government N.-W.F.P. Province, sent an extension order to the Inspector-General of Police N.-W.F.P., for Hamesh Gul’s continued detention for a further period of one year with effect from the 14th of June 1953.  This time he was to be detained in the custody of the Superintendent Central Prison, Peshawar, and not in that of the Police as was done in the two earlier orders.  There was, however, a note made on this order to the following effect:—

“The Government of the N.-W.F.P. is further pleased to authorize the A.I.G. (C.I.D.) to take this man out of jail whenever he is required for interrogation.”

On the 28th of April 1953, while the detenu was still in the Police custody and no extension order had yet been passed, Ajab Gul, son of Inzar Gul, of Tahkal Bala, elder brother of Hamesh Gul, made an application to this Court under section 491 Cr.P.C. questioning the legality of the detention of Hamesh Gul, and requesting that he be set at liberty at once.  It was mentioned in the application “That section 3 of the Public Safety Act contemplates detention for the purposes of preventing a person from acting in any manner prejudicial for the safety of the State.  Section 3 does nto contemplate interrogation and use of third degree methods which are outside the scope of this Act”.  It was furhter mentioned therein that the detention of Hamesh Gul was mala fide, and was an act of illegal and unjustified oppression. [p. 22, 23] A & B

The term Provincial Government is not defined in the Government of India Act, as adapted by the Pakistan (Provincial Constitution) Order, 1947 (hereinafter referred to as the Government of India Act), but the term Local Government has been defined therein as follows:—

“Local Government means any such Governor in Council, Governor acting with Ministers, Lieut-Governor in Council, Lieut-Governor or Chief Commissioner as was at the relevant time a Local Government for the purposes of the Government of India Act, of any Act repealed by that Act, but does not, save where the context otherwise requires, include any Local Government in Burma or in Aden”.

Taking a clue from these definitions and from the sense in which this term has been used in the Government of India Act, and in the Act, it can be said without fear of contradiction that the Provincial Government means the authority, which exercises for the time being the Executive Powers in the relevant Province.  Under section 49 of the Government of India Act, the executive authority of each Province extends tot he matters with respect to which the legislature of the Province has powers to make laws and it has to be exercised by the Governor either directly or through officers subordinate to him. In the exercise of these powers the Governor has got to be aided and advised by a Council of Ministers, which the Governor has a right to choose and summon.  Originally the Governor was to exercise some of his functions in his discretion, and arrive at his individual judgment in certain cases specified in the Government of India Act.  The Inidan Independence Act, however, took away both the discretion and the individual judgment of the Governor with the result that all his functions now have to be performed as aided and advised by his Council of Ministers, and that is the Provincial Government of a Province.

Under the Rules of Business, the business of the Government is classified and distributed among several Departments, which are specified in the schedule attached with the Rules.  The Departments are then organized by the Secretaries concerned into a number of working units known as branches.  Each Department consists of a Secretary to Government, and of such other  officials subordinate to him as the Government may determine.  The Rules contemplate Joint Secretaries, Deputy Secretaries, Under Secretaries and Assistant Secretaries, to be appointed to the Departments, if the Secretary finds it necessary so to do.  Preventive Detention and Administration of Press Laws, which are grouped together are placed in Branch C (Public Order) of the Political Department of the N.-W.F.P. Government.  The Chief Secretary is in charge of this Department.  Under rule 7 of the Rules of Business, the following officers are authorized to authenticate by signature all orders and other instruments made and executed in the name of the Governor:—

Secretary.

Joint Secretary.

Deputy Secretary.

Under Secretary, or

Assistant Secretary, in the Department concerned.

Ordinarily, therefore, if an order of detention or an extension order is produced before a Court of law, and is authenticated by one of the Secretaries mentioned in Rule 7 of the Rules of Business  the Court shall not call in question such order, on the ground that it was not an order or instrument made or executed by the Governor.  But all that it means is that the Courts shall raise a presumption that the order so expressed, made, executed and authenticated is made by the Governor, which presumption can be rebutted by bringing to the notice of the Court the facts to the contrary.  To hold otherwise would be a deliberate travesty of justice and bring the law into extreme ridicule, because a Secretary, may, even an Assistant Secretary can make an order affecting the liberty of a certain person, and express it as having been taken in the name of the Governor, and thus tie down the hands of a Court of law so tightly, that it should not be able to take any action in the matter at all.

It is true that the British Parliament, which enacted the Government of India Act, containing section 59, in the Parliament of a country where democracy and respect for law has reached its climax.  The people there cannot even imagine that an officer of the Government can usurp the powers of the Ministers and exercise them with such boldness and impunity.  But in spite of that we cannot conceive that the British Parliament was not conscious of the fact while making the above law, that in a small province situated in a remote corner of India, where democracy had not even yet come into existence and where respect for law was scanty, there might come into being a Secretary, who would in actual practice usurp the functions fo the Provincial Government, and make the orders taking away the liberty of a citizen.  It cannot therefore, be said to have laid down a hard and fast rule that even if an unauthorized and illegal order is passed, it must be given effect to provided it is expressed to be taken in the name of the Governor, and is authenticated by a Secratary.  A State comes into existence for the benefit of the people therein.  All policies, political, social and economic, are directed to wards the betterment of those people.  The laws are made for the preservation of the individual and collective liberty and security of the people of the State.  It is inconceivable that a law can be framed by no less a Body than the British Parliament itself, which can authorize a person not chosen by the people not responsible to them to take away the liberty of one of its individuals.  The liberty of a person as well as of a Nation is something sacred, which it is the duty of every person living in the State to respect and jealously guard.  The State of Pakistan has by the grace of God just come into existence, and has emerged out of a foreign rule.  There unfortunately still are some officers in this State, who have a wrong idea that they are from amongst the ruling class and the rest of the people living in the State are the ruled.  Having this misconception they commit acts which are arbitrary and oppressive.  It is the duty of the Courts of law to see that the exercise of the executive powers of all officers and in particular of the officers mentioned above is kept within reasonable bounds and in strict supervision.  No one in an honourable and free society is entitled to turn the liberty of a subject into a mockery.

It is now well established principle of law that the preventive detention legislations as they make serious encroachments on the liberties of the subjects must be interpreted in favour of the person detained. N.-W.F.P. Public Safety Act 1948, is by no means a novel legislation, nor the provisions of section 59 of the Government of India Act are foreign to the jurists in India was legalized as long back as 1818, when the Bengal State Prisoners Regulation III of 1818 was passed on the 7th of April 1818.  Under this Regulation the Governor-General-in-Council if he so required for the reasons of the State embracing the due maintenance of the alliance formed by the British Government with foreign powers, the preservation of tranquility in the territories of Native Princes entitled to its protection and the security of the British dominions from foreign hostility and from internal commotion, that an individual should be placed under personal restraint, then without any immediate view to ulterior proceedings of a judicial nature, a warrant of commitment under the authority of Governor-General-in-Council, and under the hand of the Chief Secretary, ior one of the Secretaries to the Government, could be issued to the officerin whose custody such person was to be placed.  In 1898, when the Code of Criminal Procedure was enacted and section 491, which contained directions of the nature of habeas corpus, was included in it, it was specifically mentioned in its subsection (3), that it would not apply to the persons detained under the above Regulation.  This Regulation, however, was very sparingly used, and only topranking leaders were detained under it, who did not consider it consistent with their creed to question their detention in Courts of law, which according to their view were constituted and manned by the very power which they were trying to overthrow.  There is, therefore, very little case law on point whether a person detained under the above Regulation could question the legality of his detention for some reason or another in a High Court or not. [p.26, 29, 30, 31] A & B

Again it was held in the same judgment that “section 59(2) prohibits a duly authenticated order being called in question on one and one ground only, namely, that it is not an order of instrument made or executed by the Governor.  It is quire a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of a condition necessary to the such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled.  The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case hat the recital is not accurate. If, however, in any case a detenu can produce admissible evidence to that effect, the mere existence of the recital in the order cannot prevent the Court considering such evidence, and, if it thinks fit, coming to the conclusion that the recital is inaccurate.”  This last paragraph was quoted with approval by their Lordships of the Privy Council, when they herd the appeal from the above judgment of the Federal Court (A I R 1945 Privy Council page 156).

The same question came up again in the famous case Basanta Chandra Ghose v. Emperor before their Lordships of the Federal Court, and they decided, as reported in (1) that “it is no doubt open to the detenu to show that the order (of detention) was not in fact made by the Governor of the Province or that it was a fraudulent exercise of the power but the burden of substatiating these pleas lies on the detenu.”

After India was divided, Safety Legislations were even more extensively used by both India, and Pakistan, and the question now before us, came up before different High Courts in both the countries on more than one occasion.  It is, in our opinion, now well settled that in cases in which even though the orders of detention, on their face, are regulate and conform with the form of law, the validity of such orders can be cahllenged if the detention constitutes a clear fraud on an enactment, or amounts to an abuse of power given to the Executive, or the detaining authority has not complied with any mandatory provision of the Act, or the detention order was passed by the authority other than the statutory authority, or the statutory authority passed such order not properly and formally, deliberately and in the manner laid down in the Act.  The onus, of course, lies very heavily on the detenu to establish the above facts, but once they are established the Court must step in and set the detenu free.  The Executive cannot claim to wield absolute and arbitrary powers.  The right to liberty of an  (1) A I R 1945 FC p. 18.  Individual is a most fundamental right and highly prized in all civilized countries.  It yields place to none but to the safety of the Sate, and strictly according to the law of the country.  This right cannot be taken away byt he whims of one single individual, however highly placed he may be.  Not even the Head of the State is entitled to invade the liberty of a subject otherwise than by the authority of and in strict compliance with law.

In the case before us the detenu has succeeded in discharging the difficult onus placed upon him, that his detention was illegal, without authority, a fraud on the enactment and an abuse of power by Mr. M. Ahmad, the Chief Secretary.  In law all that Mr. M. Ahmad was entitled to do was to authenticate the order of detention i.e., set his signature to such an order, but certainly not to make one, which power was vested in some other authority.  Hamesh Gul has further succeeded in proving that it was not the Provincial Government which was really satisfied that his detention was necessary for the reasons stated in the order. Why could Mr. Ahmad, the Chief Secretary, not take the order of Hon’ble the Chief Minister prior to issuing the detention order dated 30th March 1953, and the extension of detention order dated 10th June 1953, is absolutely immaterial for the purposes of this case.  The reason, however, advanced by him, that he could nto obtain such orders because Hon’ble the Chief Minister was absent from Nathiagali seems to be extremely flimsy and on the face of it absurd.   He did not get the orders of His Excellency the Governor and the other Ministers of the Provincial Government, because according to him.  Hon’ble the Chief Minister alone being in charge of law and order dealt with such matters.  The fact whether Hon’ble the Chief Minister in his individual judgment without sharing his responsibility with his Cabinet Colleagues and the Head of the Unit can take away the liberty of a subject involves a vital and interesting question of Constitutional Law, which shall be decided when it is relevant so to do.  In this case it does not arise, because the order of detention has not even been made by Hon’ble the Chief Minister.

The above discussion, thus, leads us to the irresistible conclusion that the detention order of Hamesh Gul does not satisfy the first ingredient of section 3 of the Act, namely, whether it was made by the Provincial Government or not. [p. 32, 33] G

The second ingredient in order to validate this order, as has already been mentioned by us in the earlier part of this judgment, was that such an order should only be made when the Provincial Government is satisfied that with a view to preventing any person from acting in any manner prejudicial to the public safety, or the maintenance of public order, or to the maintenance of supplies and services essential to the community it was necessary to do so.  Here too the statement of Mr. M. Ahmad, the Chief Secretary, is decisive on the matter.  He stated that the Inspector-General of Police wanted the Provincial Governemnt to arrest Hamesh Gul and detain him under the Safety Act for the Investigation of the case, because he was suspected to be anti-Government agent working for a foreign Governemnt.  This, as the Chief Secretary stated, was the reason why the first order of detention of Hamesh Gul was made.

So far as the second order of detention is concerned the positition is wrose still, because when talking about it the Chief Secretary said that he could not say why this order was made without his asking the clerk, who was dealing with this case.  This clerk has nto been produced by the Government in the witness-box to disclose the conditions under which this order was issued.  The fact remains that as the record stands there is noting to show that this order was issued for the reasons mentioned in section 3 of the Act. [p. 33, 34] H

This takes us to the last order of the 19th June 1953, under which Hamesh Gul stands detained at the time when this application is heard.

In connection with this order the following statement of the Chief Secretary has hgot an important bearing and is worth reproduction verbatim (“It would not be correct to say that either of the two Hon’ble Chief Ministers has ever stated to me that he was satisfied that the present detenu Hamesh Gul has committed prejudicial act or was about to commit any such act, although during my discussions with them I got the impression that they were so satisfied.”  Under the Act no order of detention cab be passed unless there is a definite satisfaction on the part of the Provincial Government that with a view to preventing any person from acting in the manner stated in section 3 of the Act it is necessary to detain him in the custody mentioned in the section itself.  The Executive much less a Chief Secretary, who is only authorized to authenticate an order, cannot take away the valuable right of liberty of a certain individual, which is safe-guarded by the Constitution itself with utmost and anxious care on account of mere impressions that the Chief Secretary gets in his casual talk with Hon’ble the Chief Ministers.  Be that as it may, the real purpose, for which Hamesh Gul has been detained, is sufficiently clear from the note which is appended to the detention order of the 10th of June 1953.  The note reads as under:—

“The Government of N.-W.F.P. is further pleased to authorize the A. I. G. (C. I. D.) to take this man out of jail whenever he is required for interrogation.”

This note read with the reason for which Hamesh Gul was originally arrested and detained, makes it abundantly clear that Hamesh Gul is continued to be detained not for the reasons mentioned in section 3 of the Act, but for the purpose of interrogation in connection with a certain criminal case.  This in itself, in our view, is a fraud on the Statute, and is an abuse of the power conferred under the Act.  Section 3 of the Act nowhere mentioneds that a person can be detained for the purpose of interrogation in connection with a certain criminal case.  It, thus, follows that the order of detention of Hamesh Gul does not satisfy any of the ingredients of section 3 of the Act, and it consequently is illegal.

The result is that we accept the habeas corpus petition.  Hamesh Gul is already on bail.  He is set at liberty and is freed of his obligations under the bonds. [p. 34] I & J