P L D 1966 (W (PLP)

(b) what is the import of the words "Government dues outstanding against him" in para. 1 (a) Martial Law Order No. 104 of Martial Law Administrator, Zone `B', which reads as: "Whoever fails to pay Government dues outstanding against him on account of leases of land and contracts of Forest produce obtained from Forest Department, purchase of seed, implements and fertilizers from the Agriculture Department or hire charges of agriculture machinery hired from the Agriculture Department, within one month of the issue of a Notice of demand by a Divisional Forest Officer/Deputy Director of Agriculture Superintending Engineer, Agriculture, shall be liable to punish ment under C. M. L. A. Reg. No. 16." (c) Whether Martial Law Order No. 104 of Martial Law Administrator, Zone B', is ultra vires and offends against the constitutional provisions?

2. The first question can be conveniently disposed of with reference to the provisions of Martial Law Order No. 104, and Chief Martial Law Administrator Regulation No.

16. Under the Martial Law Order, debtors were to be served with a notice and if they failed to pay within one month of the issue of notice of demand by the Divisional Forest Officer or Deputy Director of Agriculture of Superintending Engineer, Agriculture, such defaulters were liable to punishment under C. M. L. A. Regula tion No. 16 which Regulation reads as under: --‑ "No person shall:‑ (a) Disobey or neglect to obey any Martial Law Order duly made in accordance with these Regulations; or (b) Obstruct, impede or interfere in any manner with any person who is acting in the execution of his duty under Martial Law; or (c) Make any false statement which he knows or believes to be false in order to obtain a pass or permit issued under Martial Law. Maximum punishment 24 years' R. L" Therefore, the action taken against the petitioner is not because of the commission of the original offence, for which he had been proceeded against under section 408, P. P. C. but for his disobedience of the Martial Law Order if duly made in accordance with the Regulations of the Chief Martial Law Administrator, and the mere fact that the petitioner had been acquitted previously on a charge under section 408, P. P. C., does not render him immune from prosecution for disobedience or neglect to obey a valid Martial Law Order. Provisions of section 403 of the A Code of Criminal Procedure or section 26 of the General Clauses Act cannot be successfully invoked on behalf of the petitioner in this respect. Section 403 of the Criminal Procedure Code reads as under:‑ "(1) A person who has been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while, such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection (1). (3) A person convicted of any offence constituted by any act causing consequences which together with such act, con stituted a different offence from that of which he was convicted, may be afterwards tried for such last‑mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not compe tent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or of section 188 of this Code. "Explanation.‑The dismissal of a complaint, the stopping of proceedings under section , 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section." The provisions of section 26 of the General Clauses Act, 1897, may also be reproduced with advantage:‑ "Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." A reading of both these provisions shows that as the petitioner is not being tried again for the same offence, he cannot be heard to say that because he had been acquitted previously and that acquittal is still in force, he is not liable to be tried again for the same offence, or on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section

237. Here the second offence contemplated is clearly a distinct offence arising out of a separate b bundle of facts and circumstances and his trial cannot be struck down on this ground alone. Our answer to question No. 1, therefore, is that the provisions of section 403 of the Code of Criminal Procedure or of section 26 of the General Clauses Act are not applicable to the facts of this case and the trial of the petitioner under C. M. L. A. Regulation No. 16 read with para. 1 (a) of Martial Law Order No. 104 Zone `B' cannot be questioned on this score.

3. The second question centres round the words "Govern ment dues outstanding". The dictionary meaning of the word outstanding as per Webster's New International Dictionary, Second Edition, is: "Undischarged; uncollected or unpaid; unsettled; undetermined", and, therefore, even if a decree has been obtained against the petitioner and has not been executed within the time prescribed by Articles 182 and 183 of the Limitation Act, the amount is still unpaid and, therefore, outstanding. The other words requiring consideration are "Government dues". The word "due" has been the subject‑1 matter of interpretation even previously and as laid down in Municipal Committee, Sheikhupura v. Punjab Province (P L D 1951 Lah. 195) a debt is not extinguished merely by the period of limitation having run out and though the remedy may be barred, the debt exists and, therefore, the decretal amount in the instant case remains a Government due although the remedy to recover it is no longer available. In a recent Full Bench decision, reported as Ashfaq‑ur‑Rehman Khan v. Muhammad Afzal (P L D 1965 Lah. 59), with regard to the question of interpretation of the word "due" with refer ence to section 13 (6) of the West Pakistan Urban Rent Restric tion Ordinance (VI of 1959), it has been observed that Limitation Act extinguishes a remedy and prescription extinguishes the right and, therefore, rent due is the rent due although barred by time. We are in respectful agreement with the observations made in the aforesaid two Full Bench authorities and hold that although the remedy by way of execution of the decree obtained by the Government Department as against the petitioner‑ is barred by virtue of Article 182 of the Limitation Act, the decretal amount is still a Government due 'outstanding against the petitioner on account of purchase of seeds from the Agricul ture Department and may, therefore, be liable to recovery under para. 1 (a) of Martial Law Order No. 104 Zone `B', if the said order is held to be a valid piece of legislation. Our answer to the second question, therefore, is that despite the fact that the decree as against the petitioner is no longer executable because of the limitation period for that purpose having run out, the decretal amount is a Government due outstanding against the' petitioner, and quashing of the proceedings on this ground alone cannot be claimed by him.

4. With regard to the third question, learned counsel for the petitioner has referred to the following observations of their Lordships‑of the Supreme Court in Muhammad Afzal v. Commis sioner, Lahore Division (PLD 1963 S C 401) appearing at page 411 of the report. "Looking at the provisions of the Laws (Continuance in Force) Order, 1958, therefore, from this view point we find that clause (1) of Article 4 of the Order makes it clear that all laws prevailing in the country immediately before the Proclamation were to be continued in force until altered, repealed or amended by a competent authority, subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law. Similarly clause (1) of Article 2 validates all those provisions of the 'late Con stitution which were not repugnant to any Order of the President or Regulation made by the Chief Administrator of Martial Law. If it was intended, therefore, to make any change in that existing Law, then recourse should have been had to an Order made by the President or to a Regulation made by the Chief Administrator of Martial Law and not to a Martial Law Order made by a Zonal Administrator of Martial Law. In so far, therefore, as the Martial Law Orders Nos. 111 and 118 made provisions which were in conflict with the provisions of the Punjab Town Improvement Act the Land Acquisition Act, 1894, and the Municipal Administration Ordinance, 1960, they contravened the provisions of the said Article

4. Of the last two the first was a Cen tral Act and the second was an Ordinance which had been made by the President himself in pursuance of the Proclamation of the 7th of October 1958. Again in so far as they also purported to take away the jurisdiction of the High Court, and this Court, although such jurisdiction had been conferred upon the said Courts by the late Constitution and the same had been preserved by the will of the Martial Law as expressed in the Laws (Continuance in Force) Order, 1958, subject only to any Order of the President or Regulation of the Chief Administrator of Martial Law, could they, be said to have effect in spite of those constitutional provisions? We think not. If the Laws (Continuance in Force) Order was designed both to prevent chaos and to establish an orderly government with a legal sanction behind it, then it would be only logical to assume that to achieve this object it vested the power of alteration of existing laws in the supreme authority, namely the President, and co‑equally in the Chief Administrator of Martial Law and in no one else. It seems to us, therefore, that in promulgating these two Orders the Martial Law Administrator, Zone B', clearly acted beyond this competence to the extent of repugnancy to existing laws." The learned counsel argues that the amount outstanding against the petitioner has merged into the decree of the civil Court, which could be executed only in accordance with the provisions of the Code of Civil Procedure read with the provisions of the Limitation Act, and in no other manner. He maintains that the decretal amount became irrecoverable under the provisions of Articles 182 and 183‑of the Limitation Act read with section 48 of the Code of Civil Procedure, but by promulgation of the Zonal Martial Law Order under reference, such irrecoverable sums have been made recoverable. In other words, he argues, the Zonal Martial Law Administrator has tried to legislate in the field already occupied by Articles 182 and 183 of the Limitation Act, which, he maintains, the Zonal Martial Law Administrator was not competent to do, in view of the observation of their Lordships of the Supreme Court reproduced above. He further argues that even otherwise, the relationship of‑ the petitioner vis‑a‑vis the Government with regard to sale of seeds, etc. was that of an agent and principal regulated by the provisions of sections 211 to 225 of the Contract Act. The remedy available to a principal against its agent is that of rendition of accounts and reimburse ment to the extent of the loss, if any, occasioned by negligence of agent. The Contract Act is a Central legislation and as the provisions of the Zonal Martial Law Order No. 104 provide for a different mode of enforcement of the contractual relationship between the principal and agent from the one prescribed by the Contract Act, this again will be traversing the field of the Central legislation which was the exclusive jurisdiction of the President or the Chief Martial Law Administrator at the relevant time and, therefore, the provisions of the Zonal Martial Law. Order No. 104 are in excess of jurisdiction of the Zonal Martial Law Administrator. There is force in these contentions. We follow with respect the dictum of their Lordships of the Supreme Court and hold that Martial Law Order No. 104 of the Martial Law Administrator Zone B, is ultra vires as it offends against the various aforesaid provisions of the Civil Procedure Code, the Limitation Act and the Contract Act and that is our answer to question No. 3.

5. The reference is answered accordingly. A. H. Reference answered.