As already noticed, the detention in the present case, has been ordered under section 3(2) of the Foreigners Act, 1946, the proviso to which ordains that no person can be detained fora period longer than two months without authority of the Board consisting of a Judge of theSupreme Court and another senior officer in the service of Pakistan. It is true that the proviso does not provide the maximum period of detention or periodical review of the case but then the proviso is to be read as subordinate to the Constitutional mandate in Article10(4) of the Constitution as otherwise the proviso is liable to be struck down. Further fact to be noticed is that though the Federal Review Board contemplated by the proviso is to comprise of a Judge of the Supreme Court and another senior officer in the service ofPakistan but the explanation to sub-Article (4) of Article 10 provides that the appropriateBoard in cases of persons detained under the Federal Law shall be a Board appointed by theChief Justice of Pakistan consisting of a Chairman and two other persons each of whom is or has been a Judge of the Supreme Court or a High Court. The Foreigners Act was the law, which existed at the time of enforcement of the Constitution of Islamic Republic ofPakistan, 1973, and, therefore, by the mandate of Article 268 of the Constitution it should have been brought in conformity with the Constitution, which unfortunately has not been done. Be that as it may, as according to Article 268(1), the existing laws continued to remain in force subject to the Constitution, the provisions of Foreigners Act, 1946 are to be read ina manner, which would not be violative of Article 10 of the Constitution. Consequently, even in cases of detention under the Foreigners Act, 1946, the safeguards provided by sub-Article (4) of Article 10 of the Constitution must be read into the Statute as otherwise law itself would be void. This view finds support by the judgment of the Indian SupremeCourt in Vimal Chand Jawantraj Jain v. Pradhan and others A I R 1979 SC 1501, wherein it was held that:--
"It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the Constitutional safeguards provided in clauses (4) and (5) of Article 22 and if any order of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these Constitutional safeguards are incorporated in the law authorising preventive detention, because even if they are not, they would be deemed to be part of the law as a superimposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention."