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Petitioner: MUHAMMAD SARWAR VS Respondent: THE CHIEF COMMISSIONER OF KARACHI
P L D 1955 Sind 331
P L D 1955 Sind 331
Before Vellani, Muhammad Bakhsh and Z. H. Lari, JJ
MUHAMMAD SARWAR‑Petitioner
versus
THE CHIEF COMMISSIONER OF KARACHI
--‑Respondent
(and another petition)
Writ Petition No. 51 of 1954, decided on 22nd February 1955.
Security of Pakistan Act (XXXV of 1952), S. 8 (4) Proviso‑First review by Central Government‑Should take place within six months of order made by Government on receipt of Advisory Board's report (Vellani and Muhammad Bakhsh, JJ.), (Lari, J.) : within six months of original order.
Per Vellani and Muhammad Bakhsh, JJ.‑The first review under the proviso to subsection (4) of section 8 of the Security of Pakistan Act is required to take place within six months of the order made by the Central Government on receipt of the report of the Advisory Board.
The words "such order" appearing in subsection (4) is an order which the Central Government is required to pass on receipt of the report of the Advisory Board. The words "all such orders" appearing in the proviso, in plain and natural meaning, have reference to the words "such order" mentioned previously in subsection (4). The words "the order" appearing later in the proviso and calling for interpre tation here, likewise in plain and natural meaning have reference to the words "such order" in subsection (4), namely, the order which the Central Government is required to pass on receipt of the report of the Advisory Board.
The cause or need of the review truly arises only when a period of six months has elapsed from the making of the order by the Central Government upon receipt of the report of the Advisory Board.
Kirpaldas Khushaldas v. Crown P L D 1954 Sind 25, dissented from.
Per Lari, J. (differing from above) :‑The first review under the proviso in question must take place within six months of the original order passed by the Central Govern ment.
The six monthly review would not open the question of justification of the order at its inception and would confine itself to a question whether justification still persisted after the expiry of the six months. The proviso adds to the obligation of the Central Government. What preceded before only called upon the Government to refer the question of justification of the original order to the Advisory Board but the proviso imposes an additional duty on the Central Government to‑review an order every six months. The proviso, therefore, does not qualify in the sense of restricting what goes before but adds to it by forgoing an additional safeguard in favour of a detenu or persons affected by the order in question. The proviso to my mind is not a proviso in its true sense but is in substance an additional enactment.
If both the sections are read together the words "all such orders" shall necessarily refer to orders mentioned in section 7.
Kirpaldas Khushaldas v. Crown P L D 1954 Sind 25, approved.
Syed Sibte Hasan v. The Crown P L D 1954 Lah. 142 dissented from.
[Case‑law referred to on the nature and function of a proviso.]
A. A. Zari, for Petitioners.
H. T. Raymond, and Nasir‑ud‑Din, for Respondent.
JUDGMENT
VELLANI, J.--‑The order of reference sets out the following question for determination:‑
"The question for determination is, whether according to the pro‑, iso occurring in section 8, Security of Pakistan Act, 1952, the first review must take place within six months from the date of the original order passed under section 3, or whether a review must take place within six months of an order passed under section 8 (4) on receipt of the report of the Advisory Board."
The need for the reference arose from the decision in Kirpaldas Khushaldas v. Crown (P L D 1954 Sind 25), supporting the first view, and the decision in Sibte Hasan v. Crown (P L D 1954 Lah. 142, 149), supporting the second view.
In the context, the "original order passed under section 3" of Security of Pakistan Act is one of detention which the Central Government may make if satisfied that it is necessary to do so, with a view to preventing any particular person from acting in any manner prejudical to the defence, or the external affairs or the security of Pakistan, or any part thereof, or to the maintenance of supplies and services essential to the community, or the maintenance of public order.
Section 5 of the Act requires the Central Government to constitute for the purposes of the Act one or more Advisory Boards consisting of two persons who are, or are qualified to be, judges of the High Court, while section 6 of the Act requires the authority making the order of detention to furnish to the detenu within one month, the grounds on which the order has been made to enable the detenu to make a represen tation in writing against the order. Section 7 of the Act requires the authority making the order of detention (among others) to place before the Advisory Board, the grounds on which the order has been made and the representation if any, made by the detenu.
Section 8 of the Act is as follows :‑
"(1) The Advisory Board shall, after considering the materials placed before it and, if necessary, after calling for such further information from the Government or from any person concerned or affected, as it may deem necessary, submit its report to the Central Government.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the passing of the order, and except for that part of the report in which such opinion of the Advisory Board is specified the report shall be confidential.
"(3) A person against whom an order under clause (b) of subsection (1) of section 3 or under sections 10, 11 or 12 has been made or who is affected by such an order, shall not be required or permitted to attend in person or to appear by any legal representative before the. Advisory Board, or to produce any witness before the Advisory Board.
(4) On receipt of the report of the Advisory Board, the Central Government shall consider the same and shall pass such order thereon as appears to the Central Government just and proper:
Provided that the Central Government shall review all such orders every six months from the date of the order, unless revoked earlier, and shall, in the case of an order under clause (b) of subsection (1) of section 3, inform the persons affected by the order of the result of the review."
The question is one of interpretation of the words "the order" appearing in the proviso.
A bare reading of this section makes it apparent that "the order" appearing in subsection (2) is the order of detention (among others), namely the original order, and that the words "such order" appearing in subsection (4) is an order which the Central Government is required to pass on receipt of the report of the Advisory Board. The words "all such orders" appearing in the proviso, in plain and ntaural meaning, have reference to the words "such order" mentioned previously in subsection (4) The words "the order" appearing later in the proviso and calling for interpretation here, likewise in plain and natural meaning have reference to the words "such order" in subsection (4), namely, the order which the Central Government is required to pass on receipt of the report of the Advisory Board.
It has been said that the use of the plural in the words "such orders", disconnects the words "the order" appearing in the proviso from the words "such order" appearing in sub section (4), but the plural includes the singular, and the use of the word "such" in conjunction with the words "order" and "orders" has an identifying effect. The plural connotes a number, and it is obvious that an order would have to be made in a number of cases ; the use of the plural is thus explainable.
It has been said that what appears in the form of a proviso is not truly a proviso, but a substantative and separate section or enactment. Besides the objection that the provision which the Legislature has chosen to begin with the words "Provided that" ought not to be interpreted as not being a proviso, except where meaning as a proviso cannot be given to it, there is the obvious consideration that the provision qualifies the finality of the order which the Central Government is required to pass on receipt of the report of the Advisory Board, for without that provision, the Central Government need not review such an order. The provision is therefore, truly a proviso.
Even if it were necessary to consider the cause or need of the requirement of a periodical review, there is the consider ation that the authority making the order of detention is required to place before the Advisory Board the grounds on which the order has been made and the representation if any of the detenu, within three months of the issue of the order, and that, in order to form an opinion and make a report to the Central Government, whether or not there is sufficient cause for the passing of the order of detention, the Advisory Board must consider the materials placed before it and such further information from the Government or from any person con cerned or affected, as it may deem necessary. The case of detention is, therefore, comprehensively considered by an Advisory Board independently of the Central Government, as to the sufficiency of the cause for the passing of the order of detention.
Again, when the opinion of the Advisory Board is reported to the Central Government, it is required to consi der it and pass such order thereon as appears to it just and proper. In the consideration of the order and the process of arriving at a determination as to what in the circumstances of the case is the just and proper order to make, the Central Government must obviously review the order of detention. In these circumstances, the cause or need of the review truly arises only when a period of six months has elapsed from the making of the order by the Central Government upon receipt of the report of the Advisory Board.
It is common ground that Kirpaldas Khushaldas v. Crown (1), dealt with provisions of the Sind Public Order and Detention Act 1952, which are almost the same as those of the Security of Pakistan Act which fall for consideration here. In differing from the conclusion arrived at in that case, it is sufficient to say that the words which fall for interpretation have not been read in their plain and natural meaning in the context in which they appear, and that even otherwise, the cause or need of the provision as to review has not been correctly regarded.
We would, therefore, answer the question for deter mination as follows:‑
The first review under the proviso to subsection (4) of section 8 of the Security of Pakistan Act is required to take place within six months of the order made by the Central Government on receipt of the report of the Advisory Board.
DISSENTING JUDGMENT
LARI, J.--‑The question referred to the full Bench for determination is :‑
"Whether according to the proviso occurring in section 8 of the Security of Pakistan Act, 1952 the first review must take place within six months from the date of the original order passed under section 3 or whether a review may take place within six months of an order passed under section 8 sub‑clause 4 on receipt of the report of the Advisory Board."
Section 3 of the Act provides that if the Central Govern ment be satisfied with respect to any particular person that with a view to prevent him from acting in a manner pre judicial to the defence, or the external affairs or the security of Pakistan, or any part thereof or to the maintenance of the public supplies and services essential to the community, or for the maintenance of public order, it is necessary so to do, it may make any of the orders specified in sub‑clauses (a), (b), (c), (d), (f), (g) and (h). The order contemplated by section 3 (1) (b) is that of detaining the person concerned. The subsequent relevant sections are quoted below :‑
Section 5.‑Constitution of Advisory Boards. (P L D 1954 Sind 25,) The Central Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act. (2) Every such Board shall consist of two persons, who are or have been or are qualified to be judges of High Court and such persons shall be appointed by the Central Government.
Section 6.‑--Communication of grounds of detention to person affected by the order. In every case where a detention order has been made under clause (b) of sub section (1) of section 3, and where before the commence ment of this Act an order has been made in respect of any person under clause (b) of subsection (1) of section (3) of the Pakistan Public Safety Ordinance, 1952, the authority making the order shall, within one month of the date of detention, communicate to the person affected thereby the grounds on which the order has been made to enable him to make if he wishes a representation in writing against the order, and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest opportunity of doing so:
Provided that nothing in this section shall require the authority to disclose facts which it considers to be against the public interest to disclose.
Section 7.‑--Reference to Advisory Boards. In every case where a detention order has been made under clause (b) of subsection (1) of section 3, or where an order has been passed under sections 10, 11 or 12 the authority making the order shall, within three months of the issue of the order, place before the Advisory Board constituted by the Central Government under section 5 of the grounds on which the order has been made and the representation if any, made by the person or persons affected by the order.
Section 8.‑Procedure of Advisory Boards.‑The Advisory Board shall, after considering the materials placed before it and, if necessary, after calling for such further information from the Government or from any person concerned or affected, as it may deem necessary, submit its report to the Central Government.
(2) The report of the Advisory B6ard shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the passing of the order, and except for that part of the report in which such opinion of the Advisory Board is specified the report shall be confidential.
(3) A person against whom an order clause (b) of sub section (1) of section 3 or under sections 10,11, or 12 has been made or who is affected by such an order, shall not be required or permitted to attend in person or to appear by any legal representative before the Advisory Board or to produce any witness before the Advisory Board.
(4) On receipt of the report of the Advisory Board, the Central Government shall consider the same and shall pass such order thereon as appears to the Central Government just and proper:
Provided that the Central Government shall review all such orders every six months from the date of the order, unless revoked earlier, and shall, in the case of and order under clause (b) of subsection (1) of section 3, inform the persons affected by the order of the result of the review.
Section 9.‑Special provisions for detention in certain cases.‑Any person detained with a view to preventing him from acting in any manner prejudicial to the defence or external affairs or the security of Pakistan, or any part thereof may be detained without obtaining the opinion of an Advisory Board for a period not exceeding one year from the date of his detention.
Section 10 contemplates orders in respect of subversive associations while sections 11 and 12 deal with orders intended to control Editors, Printers etc.
It will be seen that section 7 provides for reference of orders under sections 3 (b), 10, 11 and 12 of the Act while section 8 provides for procedure of Advisory Boards and towards the end comes the clause in the shape of a proviso. Such a clause is prima facie a proviso unless the wordings thereof either by themselves or in conjunction with preceding clauses show that it is really in the nature of fresh enactment. But it is not correct to say that such a clause is always a proviso and nothing but a proviso. I may quote Halsbury's Laws of England Vol. 31 para. 605
"The substance, and not the form, must, however, be looked at, and that which is in form a proviso may in sub stance be a fresh enactment, adding to and not merely qualifying that which goes before."
The same view has been taken in various English and American cases. In the case The King v. The Inhabitants of Newark‑Union‑Trent (1), it was observed.
"In the construction of a statute, the question whether a proviso in the whole or in part relates to, and qualifies, restrains, or operates upon the immediately preceding provisions only of the statute, or whether it must be taken to extend in the whole or in part to all the preceding matters contained in the statute, must depend. I think, upon its words and import, and not upon the divisions into sections that may be made, for convenience of reference in the printed copies of the statute."
In the case Rhonadda Urban District Council v. Taff Vale Railway Company (2), Lord Loreburn L. C. observed as follows :‑
It is true that section 51 is framed as a proviso upon preceding sections. But it is also true that the 'latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before. So that question really turns upon section 51 itself. It must be read in the light of what goes before and with a close regard to the purpose of the group of sections to which it belongs."
In the case Muhammad Bhuadoor Khan and others v. The Collector of Bareilly and others (Full Bench case) (3), Their Lordships of the Calcutta High Court observed:
"It is true that this limitation is introduced by way of
(1) 107 English Reports p. 656 at, p. 661.
(2) Law Reports 1909 House of Lords.
(3) Weekly Reporter Vol. 21 p. 318.
proviso. But their Lordships think that, looking at the various parts of the Act and gathering the purpose and intention of the Legislature from the whole, this was a substantive enactment; and that, although it appears under the form of a proviso, it was a limitation intended by the Legislature to apply to all suits brought by any persons in respect of forfeited property."
In the case D. M. McDonald v. United States of America (73 Law Ed. U. S. S. C. R.) the Supreme Court held
"A proviso in a statute is not always limited in its effect to the part of the enactment with which it is immediately associated. But it may apply generally to all cases within the meaning of the language used . . . . Little if any significance to be given to the use of the word "provided". In acts of Congress, that word is employed for many purposes . . . . . For the proper construction of a proviso in a statute, con sideration need not be limited to the sub‑division in which it is found, but the general purpose of the statute may be taken into account."
The observations in the case The King v. The Inhabitants of Newark‑Upon‑Trent (107 Eng. R, p. 656). were approved in the case Dormer and others v. Newcastle‑Upon‑Tyne Corporation (L J R (1940) Vol. 109 p. 708). The learned judges proceeded to observe :‑
'.'There is ample authority for the view that one is entitled to have regard not only to the subject‑matter preceding the proviso, but also to the indicia afforded by the arrangement of the sections".
In another case The Georgia Railroad and Banking Company v. James M. Smith (128 U. S. Reports p. 174). The Supreme Court of U. S. A. observed
"The difficulty attending the construction of the clause following this one arises from the doubt attached to the meaning of the term "provided" . . . . . It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments with the term "provided", so as to declare that, notwithstanding existing provisions, the one thus expressed is to prevail thus having no greater signification than would be attached to the conjunction "but" or "and" in the same place, and simply serving to separate or distinguish the different para graphs or sentences."
The following three principles emerge from the above discussion:
(1) A proviso may in substance be a fresh enactment adding to and not merely restricting what went before.
(2) A proviso may be attached not to what precedes immediately but to all interconnected clauses preceding before.
(3) The nature of a proviso depends on its substances as well as the scheme of the Act.
Before going into the substance of the proviso and the effect of the preceding sections it is necessary to determine what is the true office of a proviso. In the case Interstate Commerce Commission v. Danial G. Baird (48 Law Ed. p. 860.), Justice Day who delivered the opinion of the Supreme Court observed
"The office of a proviso strictly considered is to make exception from the enacting clause to restrain generality, and to prevent mis‑interpretation."
To the same effect is the decision of the Supreme Court in the case Joseph Lid. Cox v. Fthel Hart (67 Law Ed. p. 332.). Mr. Justice Sutherland delivering the opinion of the Supreme Court observed
"The office of a proviso is well understood. It is to except something from the operative effect, or to qualify or restrain the generality, of the substantive enactment to which it is attached although it is sometimes misuesed to introduce independent pieces of legislation."
In a division bench case Broach Co‑operative Bank, Ltd., Broach v. Commissioner of Income‑Tax Bombay Mofussil (1950 Bom. p. 45.), Chagla, C. J. observed:
"The function of a proviso is to take out of a section a part of the category to which that section applies".
In the case Duncan v. Dixon (62 Law Times p. 319,), Justice Kekewich laid down:
"The proviso of which according to the ordinary rules of construction the effect must be to except out of the earlier part of the section something "which, but for the proviso, would be within it".
Lastly I may quote Halsbury's Laws of England Vol. 31 para. 605 which says:
"A proviso excepts out of a previous section, or out of the earlier part of the section which contains it, something which but for it would have been within the enacting part."
Does the proviso in question take out something which but for it would be within the purview of section 8 sub clause 4. This is obviously not so because the subject‑matter of the two clauses is quite different. The Advisory Board is only seized of the question whether there was justification for passing the order at the outset, while the review contemplated by the proviso proceeds on the assumption that the order as originally passed was justified but has to determine whether there is justification for its continuance beyond six months. Sub‑clause 2 of section 8 says that the report of the Advisory Board shall specify whether or not there was sufficient cause for the passing of the order as contra distinguished from its continuance beyond a certain period and it is on this report that an order has to be passed by the Central Government within the meaning of sub‑clause 4 of section 8. Necessarily the question of continuance of justification beyond every six months is not within the ambit of sub‑clause 4 of section 8. My learned brother Vellani, J. thought that the proviso qualified the sub‑clause 4 of section 8 as it affected the finality of the order passed under that clause. It does nothing of the kind. The order passed under section 8 sub clause 4 remains final because after the passing of the order it is assumed that in case of continuance of the order, the order was perfectly justified. The six monthly review would not open the question of justification of the order at its inception and would confine itself to a question whether justification still persisted after the expiry of the six months. The proviso adds to the obligation of the Central Government. What preceded before only called upon the Government to refer the question of justification of the original order to the Advisory Board but the proviso imposes an additional duty on the Central Government to review an order every six months. The proviso, therefore, does not qualify in the sense of restricting what‑ goes before but adds to it by forging an additional safeguard in favour of a detenu or person affected by the order in question. The proviso to my mind is not a proviso in its true sense but is in substance an additional enactment.
It is a mistake to read section 8 apart from section 7. The subject‑matter of both the sections is the same. Section 8 apart from its proviso is only ancillary to section 7. Section 7 provides for reference of orders under section 3 (1) (b) and sections 10, 11 and 12 of,…
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