Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD YOUNUS VS Respondent: PROVINCE OF SIND THROUGH THE SECRETARY TO THE JUDGMENT
Court Name: Sindh High Court Judge(s): Mir Khuda Bakhsh Marri, Noorul Arfin Title:MUHAMMAD YOUNUS vs PROVINCE OF SIND THROUGH THE SECRETARY TO THE
JUDGMENT
Reported As: PLD 1973 Karachi 694 Result: Petitions accepted Judgment JUDGMENT NOORUL ARFIN, J.-This judgment will state the reasons for the orders made on 27th February 1973 in Constitutional Petitions No. 7.8 of 1973 and No. 79 of 1973, by which Muhammad Yousuf and Muhammad Naqi Nawab, detained under the West Pakistan Maintenance of Public Order Ordi-- nance, 1960 (XXXI of 1960) were ordered to be released from detention. Tine Petitioner in both those petitions is Muhammad Younus, the son of one of the detenus, namely, Muhammad Nagi Nawab and nephew of the other detenu Mohammad Yousuf. The two detenus are businessmen of Karachi. Muhammad Naqi Nawab is Managing Director of Sanaullah Corporation Limited;" Muhammad Yousuf Is the Managing Direc--tor of Sanaullah Woollen Mills Limited. On 31st January 1973, the Provincial Government of Sind: passed orders under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, for detention of the two detenus for thirty days from the date of service of the orders. The detention `order with regard to Muhammad Yousuf reads as follows :- "No. 1/5-H-(S.1, II)/73: Whereas the Governor of Sind is satisfied that with a view to preventing M. Yusuf Nawab son of M. Taqi, resident of Prop. Sanaullah, Zalbunnisa Street, Karachi, from acting in a manner prejudicial to maintenance of public order, it 1s necessary that the said M. Yusuf Nawab, be detained; Now, therefore, In exercise of the powers vested in him under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Governor of Sind is pleased to direct that M. Yusuf Nawab son of M. Taqi residence of Prop. Sanaullah shall be arrested and detained for a period of 30
---
## Page 2
days from the date of service of this order, and will be committed to the custody of the Superintendent, Central Prison, Karachi. He will be treated as Class 'B' detenu." The detention order in-the case of Muhammad Naqi Nawab reads as under:- "No. 1/5-H(S.1. II)/73.-Whereas the Governor of Sind is satisfied that with a view to preventing M. Naqi Nawab son of M. Taqi residence of Prop. Shop Sannaullab, Zaibunnisa Street, Karachi, from acting in a manner prejudicial to maintenance of public order, it is necessary that the said M. Naqi Nawab, be detained: Now, therefore in exercise of the powers vested in him under section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, the Governor of Sind is pleased to direct that M. Naqi Nawab son of "M. Taqi residence of Prop. Sanaullah shall he arrested and detained for a period of 30 days from the date of service of this order, and will be committed to the custody of the Superintendent Central Prison, Karachi. He will be treated as Class 'B' detenu. " Both orders are authenticated by Mr. G. Rabbani, Deputy Secretary to the Government of Sind, Home Department. The grounds of detention were drawn up on 15th February 1973, and served on the detenus. These grounds are identical in both the cases, and it will, therefore, suffice to reproduce the grounds from Constitutional Petition No. 78 of 1973: (1) On 24-3-1972, Crime Branch raided your business concern i.e. Messrs Sannaullah situated at Zaibunnisa Street, Saddar, Karachi, and seized the smuggled goods for which you were sent up to stand trial in Military Court for an offence of smuggling and during the pendency of trial the Martial Law was lifted on 21-4-1972, and the case was transferred to a Criminal Court. The case against you under section 156 (89) Customs Act, 1969 is pending in the Court of City and A. D. M. Karachi." (2) On 27-3-1967 the Customs authorities had seized 8 trunks of foreign cloth from your firm Messrs Sannaullah of Zaibun Nisa Street Saddar, Karachi, (3) You still enjoy the reputation of being a dealer in the smuggled goods, like foreign cloth, presentation goods, watches and cosmetics, etc. (4) In view of your past activities and criminal action and the bad reputation of smuggling that you enjoy, there is a danger that you are likely, if set at liberty, to act in a manner prejudicial to the maintenance of public order by indulging in smuggling. (5) You are her--by informed of these grounds of detention as required by Article 9(5) of Interim Constitution to enable you, if you so wish to make a representation against the order of your detention. A copy of the detention order has been already served on you." 2. The two petitions were presented to this Court on 5th February 1973, and, in pursuance of a rule Issued by this Court, the detenus were produced in Court on 27th February 1973 Mr. A. K. Brohi, their learned counsel, attacked the orders of detention on several contentions, that is to say: (i) the order of detention having been made for alleged smuggling activities of the detenus, are bad as the provision contained in explanation (II) to subsection (1) of section 3 of the Ordinance, making the act of smuggling to be an act prejudicial to the maintenance of public order was ultra vires of the Provincial Legislature, as acts of smuggling were within the exclusive competence of the Federal Legislature as evidenced by Items 19, 43, 45 and 66 of the Federal Legislative list in the Fourth Schedule or the Interim Constitution: (ii) the orders of detentions are invalid, in that the grounds of detention were not relatable to the objects of the West Pakistan Maintenance of Public Order Ordinance, 1960: (iii) the grounds of detention were bad, irrelevant and vague and showed that no reasonable person could be satisfied as to the necessity of making the orders of detention on the material from which the grounds of detention were drawn up: (iv) there is breach of subsection (6) of section 3 of the Ordinance, in that there was undue delay In the drawing up as well as in the service of the grounds of detention on the detenus, and
---
## Page 3
(v) the orders of detention are further invalid, in that they provide detention of the detenus for thirty days from the date of the service-of orders of detention on the detenus. 3. In these cases, it is not necessary to discuss Mr. Brohi's first contention with regard to the vires of Part (II) of the explanation to subsection (1) of section 3 of the Ordinance, that is, that the provision therein with regard to acts of smuggling being acts prejudicial to maintenance of public order is not within the competence of the Provincial Legislature, are, in my opinion, it would be sufficient to rest the decision of these two petitions on the other contentions of Mr. Brohi. For his 2nd, 3rd and 4th contentions, Mr. Brohi based his arguments on my judgment in Liaquat A.I v. The Government of Sind (PLD 1973 Kar. 78 However, Mr. Jamaluddin Ahmed, the learned Additional Advocate-General, suggested that I should reconsider the pro--positions of law which I said in that judgment were applicable to a case of preventive detention which comes before the Superior Court. It was further urged by Mr. Jamaluddin Ahmed that I should make a distinction between the "reasons" for detention and the 'grounds' of detention, the former connoting the purpose and object of detention, the latter expression being employed only with regard to grounds proper, which the detaining authority is required to serve on the dotenu under the detention law. Mr. Jamaluddin Ahmed referred me to the judgment of the learned Chief Justice of Sind and Baluchistan in Altaf Gauhar v. The Province of Sind and others (Constitutional Petitions Nos. 40 and 270 of 1972). In this case, my Lord the Chief Justice made a distinction between a case where grounds of detention include matters which are either not within the legislative competence of the Legislature, or are not relatable to the object of the statute relating to preventive detention, and a case in which the grounds of detention fall within the ambit of the statute, but suffer tram some defect or the other. In the former case, according to the learned Chief Justice, the whole order of detention was rendered invalid, and therefore such grounds should properly be given the nomenclature of "reasons". In the latter case, defective grounds were severable from good grounds of detention and the detention could be upheld on the basis of good grounds alone, treating the defective grounds as non- existent altogether. I do appreciate that if distinction is made between these two classes of cases, then the grounds which are not within the competence of the Legislature or do not fall within the ambit of the statute relating to preven--tive detention, may be termed as 'reasons', and the other matters, that is, conclusions of facts on the material available to the detaining authority, as grounds proper. But, with the greatest respect, and for reasons, which I would discuss hereinafter, I find it difficult to make a distinction between these two classes of cases, so that if the case comes within one class, the whole detention may be rendered invalid, and if the case comes in the other class, the order of detention may be upheld upon grounds which are good and severable from the defective grounds of detention. I will give my reasons for this difficulty. But, before doing so, I think I should turn again to my judgment in Liaqat A.I v. The Government of Sind. In this judgment I had referred to four decisions of the Supreme Court, namely, Ghulam Jilani v. The Government of West Pakistan (P L R 1967 SC 373) Abdul Baqi Baluch v. The Government of West Pakistan (PLD 1968 SC 313) The Government of Pakistan v. Begum Shorish Kashmiri (PLD 1969 SC 14) and the Government of West Pakistan v. Haider Bux Jatoi (PLD 1969 SC 210) and then stated as follows: -- "6. An order of preventive detention has to satisfy the requirements laid down by their Lordships of the Supreme Court in the aforesaid four judgments, that is to say, (1) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; (ii) that satisfaction should be established with regard to each of the grounds of detention and, if one of toe grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid: (iii) that initial burden lies on the detaining authority to show the legality of the preventive detention, and (iv) that the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding Its claim of privilege with respect to
---
## Page 4
any document, the validity of which claim shall be within the competence of the Court to decide. In addition to these requirements, the Court has further to be satisfied, in cases of preventive deten-- petition, that the order of detention was made by the authority prescribed in the law relating to preventive detention I that each of the requirements of the law relating to preventive detention should be strictly complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the detenu: that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be" ; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the authority prescribed by law ; that the grounds of detention are within the scope of the law relating to preventive detention, that is, they are not irrelevant to the aim and object of this law and that the detention should not be for extraneous con--siderations or for purposes which may be attacked on the ground of malice." 4. In view of Mr. Jamaluddin Ahmad's contentions, I think I should take this opportunity to review again these four decisions of the decisions of the Supreme Court rather in some detail. In the first of these cases, Ghulam Jilani v. The Government of West Pakistan (PLD 1967 SC 373), the provisions of law under consideration were sections 3(1) & (2) of the Defence of Pakistan Ordinance, 1965 and rule3 32 and 204 made thereunder. For the purpose of this case, it is rule 32, which is relevant and which reads as under:- "32. (1) The Central Government, if satisfied with respect to any particular person, that with a view to preventing him from acting in a manner prejudicial to the security, the public safety or interest or the defence of Pakistan, the maintenance of public order, Pakistan's relations with any other power, the maintenance of peaceful conditions in any part of Pakistan, the maintenance of essential supplies and services or the efficient conduct of military operations or prosecution of war, it is necessary so to do, may make an order- (b) directing that he be detained: " The leading judgment in this case is that of Cornelius, C. J. Who observed that ascertainment of reasonable grounds ix essentially a judicial or at least at quasi-judicial function arid power is expressly given by Article 98 (of the Constitution, of 1962) to the superior Court to probe into the exercise of public power by executive authorities howhighsoever, to deter--mine whether they have acted with lawful authority. The learned Chief Justice bad to construe the word 'satisfaction' in rule 32 of the Defence of Pakistan Rules and in doing it he stated that "satisfaction" of the detaining authority acting under rule 32 must be a state of mind, which has been induced by the existence of reasonable grounds for such satisfaction. With regard to Liversidge v. Anderson (L R 1942 A C 206) and Sibnath Banerji's case (L R 72 I A 241), the learnt Chief Justice observed:- "It is too late in the day to rely, as the High Court, has done, on the dictum in the English case of Liversidge for the purpose of Investing the detaining authority with complete powers to be the judge of its own satisfaction. Public power is now exercised in Pakistan under the Constitu--petition of 1962 of which Article 2 requires that every citizen shall be dealt with strictly in accordance with law." At another place in his judgment, the learned Chief Justice said:- "In the conditions existing under the Government of India Act, 1935, a conclusion such as that reached by the Judicial Committee in Sibnath Banerji's case was tenable. It was a period in which the control by the Courts of the exercise of public power by the authorities was at a minimum. The Central Government of India was in respect of matters of the highest Importance, not an independent Government, Through the machinery provided by the Government of India Act, 1935, Its actions and operations were in those highly important respects, placed under the control of the British Government at Whitehall. It was not conceivable that in relation to a law of such critical importance as the Defence of India Act attracting In many respects the powers of the Governor-
---
## Page 5
General In his discretion, such powers being directly controllable by the Secretary of State for India, there could be any scope for the intervention of the Courts In India to control the exercise of such power. Therefore, the view taken in Sibnath Banerji's case by the judicial Committee can be placed on a parallel with the view of the House of Lords fn the case of Liversidge quoted above, where the majority view was largely based on the consideration that the order of detention having been made by a high officer of the State, namely, the Home Secretary, it should be presumed that he acted under the relevant provision in the Defence Regulations, i.e., that he had acted on reasonable satisfaction. Under the Constitution of Pakistan (of 1962) a wholly different state of affairs prevails. Power is expressly given by Article 98 to the Superior Court to probe into theexercise of public power by executive authorities, howhighsoever, to determine whether they have acted with lawful authority. The judicial power is reduced to a nullity it laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to wake themselves the final judges of their own "satisfaction" for imposing restraints on the enjoyment of the fundamental rights of citizens. Article 2 of the Constitution could be deprived of all its content through this process and the Courts would cease to be guardians of the nation's liberties. It is therefore impossible to construe the relevant provisions fn the Defence of Pakistan Ordinance in the manner adopted by the judicial Committee in the case of Sibnath Banerji for interpreting the somewhat similar provisions In the Defence of India Act and Rules . . . . . ." 5. In Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313) the provisions of law under consideration of their Lordships Of the Supreme Court were again section 3 of the Defence of Pakistan Ordinance, 1965, and rule 32 made thereunder. Giving the judgment for the whole Court, Hamoodur Rahman, J. (as he then was) said that "what the Court is concerned with is to see that the executive or administrative authority had before It sufficient materials upon which a reason-- able person could have come to the conclusion that the requirements of law were 'satisfied." I would further invite attention to the following passage from his Lordship's judgment:- "In the case of Nakhuda A.I (L R 1961 A C 66) too the Defence Control of Textile Regulations, 1945 of Ceylon were under consideration. But even so the Privy Council did not extend to the Controller, Acting under the said Regulations, the same immunity as was extended to the Home Secretary. In the case of Liversidge and insisted that the words of the Regulation before the Board, which were to the effect that the Controller could act, in a particular manner. If he "had reasonable grounds to believe" should be treated as meaning that there must, in fact, exist such reasonable ground known to the Controller before he can validly exercise the power . . . .In the case of Faridsons Limited v. The Government of Pakistan PLD 1961 SC 537 both Cornelius, C. J. And S. A. Rahman, J (as be then was), noticed Nakhuda A.I's case but thought that even there the Privy Council had not gone far enough. S. A. Rahman, J. Was definitely of the opinion that the Privy Council should have gone further and held that wherever an executive authority is empowered to determine upon questions affecting the rights of the subjects, there must be added a duty to act "judicially", and that administrative decisions affecting individual's rights and liberties should be quashed If the party concerned had not been given a fair opportunity to make objections . . . . . . . The wording of clause (b) (i) of Article 98 (2) (Constitution of 1962) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review. If this function is to tie discharged. In a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of a nature for which privilege can be claimed, than that too would be a matter for the Court to decide as to whether the document concerned Is really so privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned.
---
## Page 6
It Is clear, therefore, that after the decision in Ghulam Jilani's case the High Court should have examined the grounds of detention to test their reasonableness . . . . ." "Before parting with this question, I would also like to add that though it is true that there is a difference between "being satisfied" and "suspecting upon reasonable grounds" the difference, In my humble opinion, is this that the former connotes a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken it out of the stage of suspicion." 6. Hamoodur Rahman, J., (as he then was) again came to the subject of preventive detention in the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmirl. In this case, his Lordship had again occasion to discuss at length the scope of judicial review under Article 98 of the Constitution of 1962, which stood as under "98. (1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of Province may, if it is satisfied that no other adequate remedy is provided by law - (a) on the application of any aggrieved party make an order- (1) directing a person performing In the province functions in connection with the affairs of the Centro, the Province or a Local authority to refrain, from doing that which he Is not permitted by law to do, or to do that which he is required by law to do ; or (ii) declaring that any act done or proceeding taken in the province by a person performing functions in connection with the affairs of the Centro, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect a or: (b) on the application of any person, make an order: (i) directing that a person In custody in the province be brought before the High Court so that the Court may satisfy Itself that he is not being held in custody without lawful authority or in an unlawful manner ; or (iii) requiring a person in the Province holding or pur--porting to hold a public office to show under what authority of law he claims to hold office : or (c) on the application of any aggrieved person, make an order giving such direction to any person or authority, including any Government, exercising any power or per, forming function In, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter 1, of Part II of this Constitution." After noting these provisions, his Lordship stated the rule as to the scope of judicial review as follows: "In my opinion the learned Advocate-General of East Pakistan is perhaps nearer the mark than the others. In my view the words "in an unlawful manner" in sub-clause (b) of Article 98 (2) have been used deliberately to give meaning and content to the solemn declaration under Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in accordance with law and only in accordance with law. To my mind, therefore in determining as to how and in what circumstances a detention would be detention in an unlawful manner one would Inevitably have first to see whether the action is in accordance with law, if not, then It is action in an unlawful manner. Law is here not confined to statute law alone but is used In its generic sense as connoting all that is treated, as law in this country including even the judicial principles laid down from time by time by the Superior Courts. It means according, to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in anew garb. It is in this since that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action In accordance with law. Action taken upon no ground at
---
## Page 7
all or without proper application of the mind of the detaining authority would also not qualify as action in accordance with law and would therefore have to be struck down as being action taken in an unlawful manner . . . . . . . . It would seem, therefore, that by these words, at any rate, so far as the deprivation of the liberty of a citizen was concerned, the Constitution-makers intended that this most cherished right should not be taken away in an arbitrary manner and hence by sub-clause (b) of Clauses (2) of Article 98 they advisedly left it to the High Courts to review the actions of the detaining authority, untrammelled by the formalities or technicalities of either section 491 of the Criminal Procedure Code or the old prerogative writ of habeas corpus not only with regard to the vires of the law or the officer concerned but also enjoined upon them to satisfy themselves that the detention is not in any manner contrary to law. The scope of the enquiry is, therefore, not in any way fettered by the procedure of writ of habeas corpus or the rules laid down under the various Habeas Corpus Acts." With regard to the Superior…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.