P (PLP)

" The following Acts of the. Constituent Assembly, passed on the 6th day of January, 1949, are hereby published under the authority 9f the President of the Constituent Assembly for general information." 'The Act in question is described as " an Act to provide for the debarring from public life for a suitable period of persons judicially found guilty of misconduct in any public office or representative capacity or in any matter relating thereto," and this formula is repeated in the preamble. The relevant portion of section 3 of the Act reads as follows:‑ "

3. Disqualification for misconduct in a public office.‑‑(1) Notwithstanding anything in any other Act for the time being in force any person who is found guilty by the Federal Court or a High Court moved in this behalf by an order of the Governor‑General or a Governor or a Tribunal set up in this behalf by the Governor‑General or a Governor of misconduct in or in any matter relating to his office or capa city as a minister, deputy minister or parliamentary secretary of the Federal Government or a Provincial Government or as a member of the Constituent Assembly, the Legislature of the Dominion, the Federal Legislature or a Provincial Legislature shall, upon the public notification of an order of the Governor‑General in this behalf and for such period not exceeding ten years as the Governor‑General may appoint in the order, be disqualified for being and for being chosen as a minister, deputy minister or parliamentary secretary, whether for the Federal Government or a Provincial Government a member of the Constituent Assembly, the Legislature of the Dominion, the Federal Legislature or a Provincial Legislature, any local body or local authority and shall also be ineligible for holding any office of profit under the Crown ; "Provided that the power of the Governor of a Province to move a high Court shall extend only to moving the High Court of the Province, and that he may only move that High Court or set up a Tribunal or make any other order which he is empowered to make under this subsection in respect of a minister, deputy minister, parliamentary secretary or member of the Provincial Legislature for the Province, and shall in no case have power to move the Federal Court. " It will be of advantage also to reproduce here section 4 of the Act which relates to certain consequences of disqualification as ordered under section 3:‑ "

4. Consequences of disqualification

Notwithstanding anything in any other law for the time being in force or in any rule or standing order where any person becomes disquali fied as provided in section 3 his office, seat or place as such minister, deputy minister, parliamentary secretary or member as is mentioned in that section shall become forthwith vacant. The first contention raised on behalf of the defendant is that in respect of so much of section 3 as relates to ministers, deputy ministers or parliamentary secretaries of a Provincial Government or to members of a Provincial Legislature, and provides for enquiries into allegations of misconduct by persons holding such offices, in relation to their capacity as such office‑holders, the Act is ultra vires as an Act of the Central Legislature of Pakistan, in as much as it deals with matters which are by the Constitution reserved for the Legislature of the Province. The reply is made by learned counsel for the Governor of West Punjab that this particular Act has not been pas3ed by the Central Legislature or by the Dominion Legislature but by the Constituent Assembly in the exercise of plenary powers conferred upon it by section 6 (1) and section 8 (1) of the Indian Independence Act, 1947. These provi sions of the Indian Independence Act are as follows:‑ "

6. Legislature for the news Dominions.‑(1) The Legisla ture of each of the new dominions shall have full power to make laws for that dominion, including laws having extrater ritorial operation." "

8. Temporary provision as to Government each of the new Dominions.‑--(1) In the case of each of the new dominions, the powers of the Legislature of the Dominion shall, for the purpose of making provision as to the cons titution of the Dominion, be exercisable in the first instance by the Constituent' Assembly of that Dominion, and references in this Act to the Legislature of the Dominion shall be construed accordingly. Provided that‑ (e) the powers of the Federal Legislature or Indian Legisla ture under that Act, as in force in relation to each Domi nion, shall, in the first instance, be exercisable by the Constituent Assembly of the Dominion, in addition to the powers exercisable by that Assembly under subsection (1) of this section." By the expression " that Act " occurring in clause (e) of the proviso to section 8, is meant the Government of India Act, 1935. It is sufficiently clear that by these provisions contained in the Indian Independence Act, the Constituent Assembly of Pakistan is empowered to act as the Federal Legislature, for the purposes of the Government of India Act, 1935, and is also invested with the higher overriding function of acting as a supreme and unfettered Legislature, invested with the powers exercised prior to the grant of Independence by " the King's most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the Parliament assembled." In the former capacity, it would be permissible to suggest that the powers of the Constituent Assembly as Central Legislature were circumscribed by the written provisions of the Government of India Act; but in is capacity as the Supreme Legislature of an independent Dominion, it is clear froth the provisions, in' the 'Indian Independence Act itself that there is no limit imposed upon the Legislative powers which may be exercised. If it is shown that the Act in question was passed by the Constituent Assembly, acting as the Supreme Legislature of the independent Dominion of 'Pakistan, under sec tion 6 (1) and section 8 (1) of the Indian Independence Act, the contention raised for the defendant will prove to be without substance. It is stated by learned counsel for the Governor that the Art was passed by the Constituent Assembly acting as such and not acting as the Central Legislature of Pakistan, and he invites attention to the fact that no assent of the Governor‑General was obtained in respect of this Act, which would have been necessary if it had been passed by the Constituent Assembly as Central Legislature; acting under the Government of India Act, 1935. We find also that in the same part of the Gazette of Pakistan, dated the 14th January 1949, two other Acts of the Constituent Assembly are printed, which were passed on the same day, namely the 6th January 1949. The first is described as the Government of India (Amendment) Act, .1949, and the second is the Constituent Assembly for Pakistan (Increase and Redistribution of Seats) Act, 1949. Each of these directly relates to the Constitution of the Dominion: and as such could not have, been passed under any powers conferred by the Government of India Act, 1935, but only under the plenary powers derived from the Indian Independence Act, 1947. None of these three Acts is described as having been assented to by the Governor‑General' which omission is also to be explained by the same reason: On .the other hand; when the Constituent Assembly of Pakistan functions as the Legislature of Pakistan under the Government of India Act, the Acts it passes are printed under the heading " Acts of Dominion Legislature assented to by the Governor‑General," and the next sub‑heading is " Constituent Assembly (Legislature) " and the Acts are printed under a heading such as the following: "The following Act of the Constituent Assembly (Legislature) received the assent. of the Governor‑General on the 7th March, 1949, and is, Hereby published for general informa tion. These examples are taken from the, Gazette of Pakistan dated Friday, the. 11th March, 1549, in Part, IV of which is printed. "The Bombay Prevention of Prostitution (Karachi, Amendment) Act, 1949," passed by the " Constituent Assembly (Legislature) " and attended to by, the Governor General on the 7th March, 1949. The differences make it sufficiently clear that the present Act under which this enquiry is being held was passed by the Constituent Assembly of Pakistan under its plenary powers, which admit of no limitation of subject such as is suggested on behalf of the defendant. It could also be urged that questions relating to the qualifications and disqualifications of persons to be members of Legislatures, and to occupy, parliamentary such as the posts of ministers, deputy, minister and parliamentary secretaries by reason, of misconduct in the discharge of such offices, is a question relating essentially to the Constitution of the Legislature, whether Central or Provincial, o which the person charged was a member, and that such questions have not been entrusted by anything contained in the Government of India Act to the Provincial Legislature. However that may be, it is sufficiently clear that no question of vires affecting the law making body by which the present Act was passed can be raised in relation to this Act. Learned counsel for the defendant next argued that by reason of the wording of the proviso to section 3 of this Act, the power of a Governor to move a High Court to direct an enquiry cannot be exercised in respect of any person who at the time when the Governor makes his order is not a minister, deputy minister or a parliamentary secretary or a member of the Provincial Legislature. Learned counsel admits that the substantive part of this section is so worded as to enable the Governor‑General or a Governor to move the Federal Court or a High Court or to set up a Tribunal, for the purpose of enquiring into allegations of misconduct against any person in or in any matter relating to his office or capacity as a minister, deputy minister, etc.", but he urges that the proviso limits the powers of the Governor in several respects, firstly so as to‑debar the Governor from moving the Federal Court, secondly so as to limit the exercise of his power to Provincial ministers deputy minister etc., and thirdly so as to restrict the application of that power to persons who are, at the time when it is exercised, actually ministers, deputy ministers, parliamentary secretaries or members of the Provincial Legislature. The question thus raised is one of pure interpretation of the proviso, in relation to the substantive part of the section, and it is necessary, therefore, to state the principles by which such interpretation is to be governed. In Maxwell on interpretation of statutes (9th Edition), page 165, the following principles are stated:‑ There is no rule that the first or enacting part is to be construed without reference to the proviso. The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest." (Jennings v. Kelly, (1940) A. C. 206 at 229). "The true principle undoubtedly is, that the sound interpreta tion and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together, is to prevail." (Kent's coin. on American Law, ed. 12, Vol. 1, page 463). In Wilberforce's Statute Law (1881), pages 302 and 303, the following statements of the law of interpretation of provisos will be found:‑ " A proviso is of great importance when the Court has to consider what cases come within the enacting part of section, and it is always to be construed with reference to the preceding parts of the clause to which it is appended. Thus, where the 28th section of the 7 and 8 Vict. c. 96, ended with a proviso that no debtor should be imprisoned on any process for more than twelve calendar months for any debt incurred before the filing of his petition, in case a final order for protection from process was refused, it was held that this did not refer to all cases where the final order was refused, but only to such cases of refusal as were suggested in the preceding part of the section," (Ex‑parte Partington, 6 Q. B. 649). " Where an enacting clause which is general in its language and objects, is followed by a proviso that proviso must be construed strictly." Bearing these principles in mind, it is necessary to consider what is the scope and object and what is the precise effect of the proviso on which learned counsel for the defendant relies. It is clear that the main and substantive part of the section is worded in elliptical but at the same time comprehensive fashion. It prescribes powers exercisable by the Governor‑General as well as by the Governor, to move either the Federal Court or a High Court or in the alternative to appoint a Tribunal; the enactment requires, without stating in so many words, that the Federal Court or the High Court or the Tribunal shall hold enquiry into an allegation of misconduct, upon being moved for that purpose by the Governor‑General or the Governor, and again without clear expression requires the Court or the Tribunal to record a finding whether a person whose misconduct is being enquired into is guilty or not guilty ; the enactment further requires that the allegation should be of misconduct by a person " in or in any matter relating to his office or capacity as a minis ter, deputy minister or parliamentary secretary of a Provincial Government or as a member of the Constituent Assembly, the Legislature of the Dominion, the Federal Legislature or a Pro vincial Legislature "; finally, it lays down that if the finding be one of guilty, upon the public notification of an order of the Governor General, the person in question shall be liable to certain disqualifications for such period not exceeding ten years as the Governor General may appoint in the order. Evidently, the substantive section relates to Courts, Legislatures and persons some of whom or which are not within .the purview of the functions of a Provincial Governor, and in order, therefore, to limit the powers of a Provincial Governor to persons, courts and offices lying within the province, a proviso was necessary. The proviso which has been added commences with the direction that a Provincial Governor may only move the High Court of his Province. These words were by themselves sufficient to exclude power to move the High Court of another Province or the Federal Court, but care was taken by the draftsman in the proviso to add words at the end which expressly exclude power in a Provincial Gover nor to move the Federal Court. So far the restricting effect of the proviso is perfectly clear. It is also clear that it lays down that a Provincial Governor may only move the High Court or set up a Tribunal " or make any other order " (whatever that may mean), in relation to Provincial parliamentary office‑holders, and the question is whether by using the expression:‑ "in respect of a minister, deputy minister, parliamentary secretary or member of the Provincial Legislature for the Province," the exception has the effect contended for by learned counsel for the defendant, ft is noticeable .that the proviso does not make any mention of " misconduct " and therefore if it were interpreted independently of the substantive section, it would be difficult to see with what object a Provincial Governor could move the High Court or set up a Tribunal. From this it is sufficiently clear that in order to comprehend the full import of the words " in respect of a minister, etc," reference must be made to the substantive part of this section, and that is also in accordance with established rule of interpretation of provisos. On referring to the substantive portion of this section, it is found that the power of moving a Court or setting up a Tribunal is exercisable for the purpose of an enquiry into allegations of misconduct by " any person in or in any matter relating to his office or capacity as a minister, etc.", and when these words are read along with the proviso, it becomes clear that the restriction upon the power of the Governor imposed by the proviso is that he may only move the Provincial High Court or a Tribunal to hold an enquiry into the allegation of misconduct by a person. " In or in any matter relating to his office as a minister, deputy minister, etc., of the Provincial Government, or as member of the Provincial Legislature." All this is implied in the relative phrase employed in the proviso " in respect of "; without such implications the proviso does not make sense, for, as has been seen it does not even make mention of misconduct. It seems to us that the highly restrictive interpretation sought to be placed upon the proviso by learned counsel for the defendant is also to be excluded for another reason, namely that if the intention of the Constituent Assembly was to restrict the powers of a Provincial Governor in the very important sense contended for on the defendant's behalf, that intention would have been carried out in express words, in the same way as the absence of power in the Governor to move the Federal Court has been made clear by express words. In support of his argument, learned counsel for the defendant referred to sec tion 4 which has been reproduced above and which lays down that upon the imposition of a disqualification by notification under sec tion 3, the person disqualified should immediately vacate his office, seat or place as a minister, deputy minister, etc., It was argued that this section implies that at the time when the enquiry is made, and up to the issue of the notification announcing the disqualification the person in question occupies such office or seat. However, the argument is not conclusive, for it was conceded by learned counsel, and, is apparent from the substantive part of section 3, that as respects the power of .the Governor‑General, there can be no doubt that it extends to moving a Court or setting up a Tribunal to enquire into misconduct by any person, in the capacity of a minis ter, deputy minister, etc., whether or not such person is holding such office at the time when the power is exercised. We are fully satisfied that there is no force in this contention raised on behalf of the defendant, and that the fact of his not being a minister or even a member of the Provincial Legislature on the date when the Provincial Governor moved this High Court to hold the present enquiry is no bar to the exercise of that power. We may now proceed to consider what shall be the proper mode of enquiry in the absence of any rules made in that behalf by the Central Government under section 7 of the Act (assuming that the power to make, such rules would include power to lay down procedure for the Federal Court or a High Court for this purpose), it is necessary first to ascertain what is the nature of the present enquiry i.e., whether it appertains to the civil or criminal jurisdic tion. On this point, there is unanimity between learned counsel on the two sides who are agreed that the matter is of a criminal nature. It is stated by learned counsel for the defendant that the investigation of the entire case has been conducted by the police who have been exercising powers under Part V of the Criminal Procedure Code, of which sections 161 and 164 were particularly mentioned. An indication that the enquiry intended by the Consti tuent Assembly is of a criminal nature is contained in the use of the expression " person who is found guilty of misconduct " in section 3 of the governing enactment. The mis conduct in question is misconduct in the exercise of public functions and power is given by the Legislature to the Chief Executive of the Dominion or a Province to move a Court or a Tribunal to investigate such misconduct. The penalties applicable are such as entail loss of civil status and certain other disqualifications, in regard to the holding of public offices One of the distinctions drawn between a crime and a civil wrong is that a crime is pursued by the State while a civil wrong is pursued by the person who has suffered it. In a case falling under the present act, there is no question of redress of private wrongs. The Chief Executives of the State are empowered to pursue certain persons on allegations of misconduct in the discharge of public offices Again, the enact ment does not provide for any form of compensation to any person aggrieved ; it only provides for the person found guilty to lose his public offices and his right as a citizen to be a candidate for public offices. Such penalties are unknown to the civil jurisdiction, but on the other hand, they are an ordinary concomitant of convictions for certain serious offences under the criminal law of various count ries. Thus, in England, under the Forfeiture Act 1870, any person being convicted of treason or felony and sentenced to death or penal servitude or certain minimum terms of imprisonment, immediate ly becomes liable to vacate any military or naval under the Crown, or any other public employment and even to lose ecclesiastical benefices and any office or emolument in a university, college or other corporation, and further such a person becomes incapable of being elected or sitting or voting as a member in either House of Parliament or of exercising any right of suffrage or other parliamentary or municipal franchise Thus, the penalties which the present enactment provides are of a criminal nature, and there need there fore be no hesitation in holding that the case relates to the criminal jurisdiction of this Court. As regards the mode of procedure, none being provided by the statute in question, and no prescribed procedure under any other statute being applicable, it is necessary for us to lay down what shall be the procedure to be followed for the better guidance of the parties and the more expeditious conduct of this enquiry. In laying down the procedure in the absence of statute, we are required to ensure that the substantial elements of natural justice shall be ensured. In order that there should be due enquiry, the accused person must have notice of what he is accused. He must have an opportunity of being beard, and the decision must be honestly arrived at after he has had a full opportunity of being heard. As to the substance of the charges, these have been reduced to writing under eleven different heads and by order of the Governor of West Punjab, a copy of these charges has been delivered to the defendant with a preamble which reads as follows:‑ " By order of the Governor of West Punjab, you * * * are hereby charged that, while holding the office of the Premier of West Punjab, between the 15th of August 1947, and the 24th of January 1949, you were guilty of the following acts of commission and omission, each of which amounts to misconduct in, or in matters relating to, your capacity as a Minister of the Province of West Punjab, within the meaning of section 3 of the Public and Representative offices (Disqualification) Act, 1949." The condition that the person accused should know of what he is charged has thus been fulfilled. In addition we are informed that a full list of witnesses who are to be examined and documents which are to be led in evidence has been supplied to the defendant, as well as transcripts of the statements made in the course of the preliminary enquiry by such of the witnesses as were examined at length. It is now necessary to provide a mode of procedure for the defendant to reply to the charges against him, and for the recording of evidence in support of the charges and in support of the defendant's pleas, and for the hearing of arguments at the close of the proceedings. Learned counsel for the defendant urged that we should follow the procedure prescribed by the Criminal Pro cedure Code, for the trial of warrant cases, and it appears that the preference for this form of procedure, which at present is wholly in abeyance in this province by virtue of certain provisions in the Punjab Public Safety Act, 1947, is based on the double opportunity for cross‑examination of witnesses which it affords. Under the warrant procedure, however, the second opportunity for cross examination is to follow upon the framing of a charge by the Court, and in the present case, the charges having already been framed and delivered to the defendant, there will be no occasion for framing any fresh or formal charge in the course of the enquiry and consequently it will not be possible to define the stage after which the further in of the prosecution witnesses is to be permitted. In our opinion, the most convenient procedure in the present case, and one which will give ample opportunity to the defendant to meet every part of the allegations made against him is that prescribed by the Criminal Procedure Code for the trial of summons cases. We are led to this conclusion, inter alia, by the consideration that the defendant has been furnished in advance with full lists of witnesses and documents with transcript of the statements made it the preliminary enquiry by a large number of witnesses, and consequently, a single opportunity of cross‑examining each witness led should be amply sufficient for his purposes. This is not to say that we shall refuse to postpone the cross‑examination of any witness for the prosecution, where a prayer for that purpose is made by the defendant on good grounds the Court has ample power to grant adjournment for such purposes. As to the opportunities to be given to the defendant to reply on the whole case, we propose again to adopt the method of summons cases, viz, at the outset the defendant will be questioned in regard to each charge individually and asked to show cause why he should not be found guilty, and his answer being duly recorded, in any case where the allegation is not admitted in toto, the plea will be recorded " not prosecution evidence, the defendant will be asked to open his case and to make a statement orally or in writing, after which he will be called upon to produce such evidence as he wishes in his defence. In one respect propose to depart from the strict rule applicable to accused persons in criminal trials under the Criminal Procedure Code, viz, we propose' to allow to the defendant the right at his option to make a statement on oath as his own witness. This entails that lie will be liable to be cross‑examined by the opposite party. After evidence for both sides has been completed, arguments will be heard. Crown counsel having the right of reply if the defendant leads evidence. A. H.