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P L D 1967 LAHORE 103

NASIM FATIMA
V/S
GOVERNMENT OF WEST PAKISTAN & ANOTHER

Frame (1)

(a) Constitution of Pakistan (1962), Art. 143(1), (2)
Constitution of Pakistan (1973), Art. 146

Defence of Pakistan Rules, r. 32(1)(b)—Detention—Reasons for making order of detention involving functions of Central Government—President may entrust such functions to provincial Government—Action under r. 32(1)(b) by Provincial Government not invalid—Constitution of Pakistan (1962), Art. 143(1), (2) read with Arts. 131, 135(b) & 136(2)—Provincial Government’s consent in terms of Art. 143(1) may be presumed where such Government is discharging duties under Powers entrusted to it.

The argument was that as the power under rule 32(1)(b) of the Defence of Pakistan Rules, to detain for reasons connected with the Defence of Pakistan, Pakistan’s relations with other powers and the efficient prosecution of war involved the executive function of the Ventral Government, it could not be entrusted to or be performed by the Provincial Government and in this connection Articles 131, 135(b) and 136(2) of the Constitution were referred to:

Held, that the argument was fully met by Article 143(1) of the Constitution, which provided that notwithstanding anything in the Constitution the President may with the consent of a unconditionally to that Government, or to any officer or authority of that Government, functions in relation to any matter to which the executive authority of the Republic extends. There was also clause (2) of Article 143. Thus, it was clear that the performance of functions and duties under the Defence of Pakistan Rules could be conferred on the Provincial Government by the president, or the Central Legislalture. [p. 125] E

As for the question of consent of the Provincial Government, as no evidence of consent had been led, lack of such evidence could not be used to hold that Provincial Government’s consent had not been obtained. [p. 125] F

As the powers and duties under the Defence of Pakistan Rules were being discharged by the Provincial Government, its consent was implied and could be presumed. [p. 125] G

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