P L D 1969 Dacca 589 (PLP)

In the first place, it may be alleged that the power under which the legislation purports to have been made was not at the time operative (because, for example, it was expressed to be exercisable in circumstances not then obtaining, or during a period which had by then expired), or that it was not available to the particular person by whom the legislation was made. Secondly, the exercise of the power may have been formally defective, the question then arises whether the provision which was not observed was mandatory in character, or merely directory for only in the former case would the validity of the legislation be effected. In the third place, the legislation may be defective in substance, its provisions being the ultra vires (that is to say, :outside the scope of) the enabling power or, in the case of sub‑delegated legislation, either ultra vires that power or not 'authorised thereby because the provision by which the power is conferred is, that respect, ultra vires the enabling power on which .it in, turn depends. The question whether or not a particular provision is ultra vices depends in every case on then true construction of the enabling power concerned. 1t may, however, be said that an enabling power will not readily be construed as authorising the repeal or modification of enactments (or the granting of powers of repeal or modification), so that, for example, subordinate legislation is prima facie ultra vices if it is inconsistent with the substantive provisions of the statute by which the enabling power is conferred, or of any other statute, and equally, of course, if it purports to affect existing statutes expressly. Subordinate legislation having retrospective effect may be held valid notwithstanding that such is not authorised in terms by the enabling provision. It has been contended that the Special Bench having held that it was mandatory on the Central Government to provide for adjudication of forfeiture and the Government having failed to do so the validity ‑ of rule 52(2) is affected. It is only the absolute incompetence of a Legislature that cuts at the root of legislation so as to make it void ab initio. As I have already' said, rule 52(2) is not such a piece of legislation. In the present case, the mandate, if any, attached to the provision of a procedure, viz. "Adjudication of such a forfeiture" already made. The failure on the part of the Central Government to carry out its obligation will not render its power to provide for forfeiture incompetent unless the two, namely, "forfeiture" and "adjudication of such forfeiture" is considered as an indivisible whole which it is not. From what I have said already, I do not think there is any substance in Mr. Brohi's contention that rule 52(2) is, ex post facto legislation and it is therefore, in conflict with Fundamental Right No. 4 of the Constitution. The essence of ex post facto legislation is that the particular act must be innocent at the time it was committed. Rule 52 as amended does not attach criminality to an act that was innocent at the time it was committed. I am supported in my view by the following passage occurring in (1925) 269 U S S C R (70 Lawyer' Edition), at page 170 :‑ "It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defence available according to law at the time when the act was committed, is prohibited as ex post facto. The constitutional prohibition and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offence, are harsh and' oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offence or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused."‑ I agree with the contention of the learned Attorney‑General that the amendments are procedural and remedial in nature and they do not make an act an offence which was not so before the amendments or that they have introduced a new penalty which was not there prior to the amendments. The amendments s obviously have been made to supply an omission, namely, absence of a provision of adjudication of forfeiture, and they being remedial and procedural in character are not hit either by Fundamental Right No. 4 or the rule against retrospectivity. The following passage occurring in Craies on Statute Law, 6th Edition, page 388 also supports my view that the amendments are not ex post facto laws: ‑ "But I do not consider any law ex post facto within the prohibition, that modifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction . . . . . There is a great and apparent difference between making an unlawful act lawful and the making of an innocent action criminal and punishing it as a crime." The following passage occurring in Crawford's Statutory Construction at page 574 is also in the same line: ‑ "In one of the early decisions of the United States Supreme Court, Calder v. Bull, 3 Dal], 368 (1 Lawyer's Edn.) 648, the definition of the term ex post facto, as used there, and this, has been followed since by practically all the Courts and law writers, is in this language. 1st.‑Every law that makes an action done before the passing of the law, and which was innocent when done, criminal ; and punishes such action. 2nd ‑Every law that aggravates a crime or makes it greater, than it was, when committed. 3rd.‑Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed. 4th.‑Every law that alters the legal rules of evidence; and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Crawford observed as follows so far as Remedial Statutes are concerned : ' "Yet, since remedial statutes are usually looked upon with favour by the Courts, they should be liberally construed.. But there appears to be considerable confusion in the cases with reference to giving remedial acts retrospective effect through construction. If the rule of liberal construction is to be applied, as it obviously should, then any doubt should be resolved in favour of retrospective operation, if such operation does not destroy or disturb vested rights, impair the obligation of contracts, create new liabilities, violate due process of law or contravene some other constitutional provision, and if such operation will carry out the intent of` the Legislature as ascertained through the application of the principles of liberal construction. In other words, a statute relating to remedial law may properly, in several instances, be given retrospective application." It has been contended on behalf of the petitioner that rule 52 (2) contemplates that the contravention should first be proved in a proceeding before the forfeiture prescribed therein can be made. It has been argued that contraventions under the Rules being offences, they must first be established in a judicial proceeding before penalties therefor can be 'inflicted. I am unable to accept this contention. I have carefully examined the Rules and I do not find that they support the contention. As an illustration, reference may be made to Rule 6 of the Rules which runs as follows: "

6. Prohibited places. ‑ (1) No person shall, without the permission of the Central Government enter, or be on or in, or pass over or loiter in the vicinity of; any prohibited place. (2) . . . . . . . . . . (3) . . . . . . . . . . (4) If any person is in a prohibited place in contravention of this rule, then without prejudice to any other proceedings which may be taken against him, he may be removed therefrom by any Police Officer or by any other person authorized in this behalf by the Central Government. (5) If any person is in a prohibited place in contravention of any of the provisions of this rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both." To hold that in the case of a contravention under Rule 6 the contravention must first be proved in a Court of law before a person can be removed from a prohibited place under sub‑rule (4), is not only contrary to the obvious meaning of the rule but amounts to making the rule itself nugatory. Rule 52 (2) does not spell out any indication or direction that the contravention must first be proved in a judicial proceeding before the forfeiture can be made. Mr. Brohi has, next contended that the Ordinance empowers the Central Government to prescribe forfeiture of the subject- matter of contravention but rule 52 (2) has exceeded that power by prescribing forfeiture of the Press which is not the subject‑matter of contravention inasmuch as no prohibitory order was ever passed against the New Nation Printing Press. Section 3 (3) (iii) of the Ordinance empowers the Central Government to make rule for "the seizure, detention and forfeiture of any property in respect of which such contravention, attempt or abetment as is referred to in the preceding clause has been committed . . . . . ". In my opinion, clause (iii) is wide enough to authorise forfeiture of the Press, for, without the aid and agency of the Press, the contravention could not take place: Evidently, the Press has been used in printing the :offensive, publication. An analogy of this may be found in the provisions of section 517; Code of Criminal Procedure, whereunder the Court is authorised inter alia to confiscate any property regarding which any offence appears to have been committed or which has been used for the commission of the offence. Mr. Brohi's contention that "such contravention" in section 3 (3) (iii) of the Ordinance having been made referable to the preceding clause (ii), the contravention itself must firs be established in course of the trial envisaged in the latter clause (ii) before the forfeiture in clause (iii) can be ordered. This contention fails to take into consideration that, if that was the intention, there was no necessity for providing "for the adjudication of such forfeiture" in clause (iii). "Such contra vention" has been used by way of description only. The contention that the Ordinance directs a prior adjudication of forfeiture appears to be untenable on the language of section 3 (3) (iii) itself the sequence in which adjudication of forfeiture has been mentioned also indicates that "adjudication" is to follow "forfeiture" and not precede it, otherwise, "adjudication of such forfeiture" is meaningless. Adjudication has been provided for testing the validity of the order of forfeiture and there is no enormity involved in providing 'for adjudication to follow an order of forfeiture. I also do not find any substance in the contention that adjudication must be by a Court or a similar authority, as has been contended by Mr. Brohi. Section 3 (3) (iii) of the Ordinance provides for adjudication of forfeiture whether by a Court or any other authority." "Any other authority" evidently means an authority other than a Court. Sub‑rule (4) of Rule 52 prescribes the qualifications of a Tribunal and empowers the Central Government to constitute a Tribunal of the requisite qualification by notification in the official Gazette for the purpose of referring the declaration of forfeiture under sub rule 52(2) to such Tribunal for adjudication of the forfeiture. The rule of ejusdem generis does not apply to the expression "any other authority" because only "Court" is mentioned. The mention of a single species does not constitute a genus. I am supported in my view by the following passage occurring in ,Craies, Sixth Edition, at page 181: "To invoke the application of the ejusdem generis rule, there must be a distinct genus of category. The specific words must apply not to different objects of a widely differing character but to something, which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus. "Unless you can find a category", said Farwell L. J., "there is no room for the application of the ejusdem generis doctrine, and where the words are clearly wide in their meaning they ought not to be qualified on the ground .of their association with other words. For instance, where a local Act required that "theatres and other places of public entertainment" should be licensed, the question arose whether a "fun‑fair" for which no fee was charged for admission was within the Act: It was held to be so, and that the ejusdem generis rule did not apply to confine the words" other places" to places of the same kind as theatres." Mr. Brohi's contention that the Authority to which the forfeiture can be referred to for adjudication must be an institutional body having adjudicatory functions and not a mere ad hoc nominee as in the present case does not appeal to me. The Ordinance has empowered the Central Government to provide for the adjudication of forfeiture "by Court or by any other authority" and in accordance with this power the Central Government has made sub‑rules (4), (5) and (6) providing for the qualifications and constitution of the Tribunal and the manner in which the Tribunal is required to adjudicate as well as the effect of a decision of the Tribunal upon the declaration of forfeiture made under sub‑rule (2) of Rule

52. The Rules appear to be perfectly consistent with the provisions of the Ordinance and no exception can be taken to the former The Tribunal is an authority, which has been empowered to adjudicate. I also do not find any substance in the contention of Mr. Brohi that there is bias in law affecting the authority of respondent No. 4 to act as a Tribunal for the adjudication of forfeiture. The cases of Franklin and others v. Minister of Town and Country Planning ((1947) 2 All E R 289), Mubarik Ali Bhatti v. Mr. Fiayaz Ali Khan (P L D 1963 Lah. 8) and Mian Muhammad Abdullah v. The Road Transport Corporation, Lahore and others (P L D 1964 Lah. 743), cited in support of this view, have no application to the present case. The mere fact that the Government has selected and appointed respondent No. 4 as the Tribunal did not taint it with bias. I also do not think that the petitioner has succeeded in making out a case that the impugned order of forfeiture is a mala fide one. In the absence of any provision in Rule 52 (2) providing for adjudication of forfeiture no legal order of forfeiture could be made. The Legislature, namely, the Central Government, has now supplied the omission by providing for adjudication of forfeiture and thus the impediment to the passing of a legal order of forfeiture has been removed. In such circumstances, it is difficult to hold that the impugned order of forfeiture is mala fide and passed for a collateral purpose. The fact that the amendment was made during the pendency of the appeal before the Supreme Court will not ipso facto make the impugned order of forfeiture mala fide. If the impediment to the passing of a legal order of forfeiture has been removed, there is no mala fide in passing of afresh order of forfeiture under the law for the cause. Having regard to the fact that rule 52 now provides for adjudication of forfeiture, there is no substance in the petitioner's grievance that there has been a contravention of the rule o x natural justice inasmuch as the petitioner has not been give an opportunity to show cause against the order of forfeiture. It does not appear to me that the order of forfeiture prior to adjudication is unreasonable in the facts and circumstances of the case. Reading Rule 52 (2) in the light of sub‑rules (3), (4), (5) and (6), it is obvious that the order of forfeiture made under rule 52 (2) is only provisional and becomes final after the requisite adjudication has been made. In this view, "forfeiture" is not worse than mere "seizure" except perhaps as to the date of investment or divestment of title to the forfeited property. Besides, if the law is competent to provide for forfeiture prior to the adjudication, such forfeiture is legal. A comparison of the provisions of clause (ii) and (iii) of subsection (3) of section 3 of the Ordinance shows that, although punishment by way of imprisonment or fine or both has been prescribed in clause ‑ (ii), no mention of forfeiture has been made therein, while in clause (iii) "seizure, detention and forfeiture" have been provided for. This is significant and gives a clear indication that, while trial before a Court of law may be in contemplation in clause (ii), merely adjudication of such forfeiture is prescribed in clause (iii). If it was the intention of the Central Government that the forfeiture in clause (iii) should be ordered as a result of trial contemplated in clause (ii), there was no necessity for providing for adjudication of such forfeiture in clause (iii). This distinction is also a pointer to the fact that forfeiture has not been put on the same leval as a punishment by way of imprisonment or fine. Rule 52 appears to have followed exact the same pattern as section 3 (3) (ii) and (iii) of the Ordinance. For the reasons stated above, I do not think that there is any substance in this Rule and it is accordingly discharged without any order as to costs. Before, however, I part with this case, I would like to make certain observations. It is indeed unfortunate that there was an unseemly hurry on the part of the State to pass the second order of forfeiture without first having fully complied with the order of the Supreme Court in letter and in spirit. It was desirable for the State to act in such a manner as to avoid giving any impression whatsoever that it might have acted on a consideration other than purely in the interest of the State and its people. A. M. SAYEM, J.‑I regret my inability to concur in the order proposed by my learned brother. Facts of the case have been adequately set out in the judgment of my learned brother, as also its history. I can refer to these only at the risk of repetition. I cannot, however, help saying that I have been greatly distressed at the manner of implementation, a mere feigning as it is, of the interim order passed by their Lordships of the Supreme Court directing restoration of the press to the petitioner, and the stage at which the impugned order was passed, though the learned Attorney- General insisted that these did not at all concern us and were matters solely between the Supreme Court and some of the respondents. Upon giving an anxious consideration to the elaborate arguments advanced at the Bar, I have not been able to pursuade myself to accept the proposition that the amendment effected in rule 52 of the Defence of Pakistan Rules, 1965, by S. R. O. 171 (R)/66, dated the 16th November 1966, relates to procedure simpliciter. I shall revert to the arguments on this point at a later stage. For the present, I intend considering the respective stands taken by the parties on the question of validity of the provision as to forfeiture of a press contained in rule 52 in the forms as it stood before the amendment, viz., in the absence of a further provision as to adjudication. Mr. Brohi contended that the provision as to forfeiture was void ab initio being ultra vires the rule‑making Authority, and so declared by the Special Bench in the earlier case (since reported in 18 D L R 736). On the other hand, the learned Attorney‑General contended that the: said provision was not void ab initio, though the Special Bench declared it to be void by reason of a defect noticed in the framing of rule

52. The learned Attorney‑General maintained that the Special Bench decided the case on `technical basis' and not on merits, and that the defect pointed out by the Special Bench having since disappeared by virtue of the amendment, the provision as to forfeiture must be held to be valid and operative ever since the publication of Defence of Pakistan Rules, 1965, closely following at the heels of the Proclamation of Emergency and the Defence of Pakistan Ordinance, 1965 (hereinafter called the Ordinance). The learned Attorney‑General argued that the instant case was of the same nature as the case Province of East Pakistan v. Md. Mehdi Ali Khan (P L D 1959 S C (Pak.) 387) which dealt with the effect of disappearance of repugnancy between fundamental rights and laws enacted by Legislatures. In this case their Lordships of the Supreme Court were construing the word `void' used in Article 4 of the 1956‑Constitution, which found place in Part II thereof. This Part of that Constitution enumerated the Fundamental Rights ; Article 4 provided that any existing law "in so far as it is inconsistent with the provision of this Part shall, to the extent of such inconsistency, be void;" and that if the State made any law which took away or abridged a fundamental right such law "shall, to the extent of such contravention, be void". Their Lordships noticed another instance of a law being void as mentioned in almost indentical, terms in Article 110 of the said Constitution, which provided that if on a matter enumerated in the Concurrent List the Parliament and the Provincial Legislature had both legislated resulting in a conflict between the two laws, "the Act of the Provincial; Legislature shall, to the extent of the repugnancy, be void". A fundamental difference was noticed between a law made by an incompetent Legislature and a law duly made by a competent Legislature but which is in conflict with a fundamental right embodied in the Constitution or with a law made by a superior Legislature. It. was said that the former would be void on general principles and the latter only to the extent of the repugnancy, in the sense that it cannot be applied to a particular case. It was further explained that the former would remain void unless re‑enacted by a competent Legislature, and that the latter required no re‑enactment and would become fully operative when the inconsistency or repugnancy is removed by an amendment of the Constitution or the Central Law i.e., a law competently made by the superior Legislature. I feel no difficulty in agreeing with the learned Attorney -General that the provision as to forfeiture embodied in rule 52, as this rule stood prior to the amendment, was not void ab initio and was not in the strict sense ultra vires the rule making Authority, and that the Special Bench also did not declare it to be so. Both of us were members of the Special Bench. Indeed the question of vires, strictly speaking, was not involved in that case. My learned brother Salahuddin Ahmed, J. was of the view that the rule containing the said provision was not ultra vires, and so was fully operative. M. R. Khan, J. with whom I agreed, scrupulously avoided the expressions "ultra vires" and "void ab initio". The way he dealt with the question will appear from the following extract from his judgment: ‑ "In the ultimate analysis, I am of the opinion that the provision of clause (iii) of section 3 (3) of the Defence of Pakistan Ordinance relating to adjudication of forfeiture of property is mandatory with the result that whenever a rule for forfeiture of property is made in exercise of the rule making power, such rule, in order to be operative, must be accompanied by another rule providing for adjudication of such forfeiture either by Court or some other authority." (The underlining *is mine.) It will be evident from the above extract from the judgment of M. R. Khan, J. that what was held in that judgment was not that the provision as to forfeiture of a press was ultra vires or void ab initio, but that it was not operative because of non -compliance of a clear mandate of the Ordinance (from which the rule‑making Authority derived its power) to make a further provision as to adjudication. The expression "ultra vires", no doubt, appears in one place in the judgment of Siddiky, J. who has also used the expression "outside the scope" in another, but reading the judgment as a whole it appears to me that Siddiky, J. also did not hold that the said rule was affected by any inherent lack of power. This will be clear from an extract of that judgment, relied upon also by Mr. Brohi, and quoted below :‑ "Rule 52 (2) is referable to clause (iii) of subsection (3) of' section

3. It does not provide for adjudication as mentioned in clause (iii) of subsection (3). To that extent the rule making authority has violated the direction of the Legislature, and the absence of the provisions of adjudication in rule 52(2). is in contravention of the provisions of the Ordinance and to that extent, in my opinion, rule 52(2) is outside the scope of clause (iii) of subsection (3) of section 3 of the Ordinance and therefore the order of forfeiture made on the 16th June 1966 in respect of the New Nation Printing Press of the petitioner is bad in law." (The underlinings* are mine.) Abdulla, J. who also used the expression "ultra vires" ultimately said: "It has been argued that subsection (3) of section 3 of the Ordinance provides that the rule may provide showing that there was an option with the rule‑making power either to make the rule or not to make the rule. But in my opinion when the rule has been made for forfeiture it must provide for adjudication of the same. The option was with regard to making the rule for forfeiture. Once the rule for forfeiture has been made the rule for adjudication should also have been made." I am clear in my mind that there was no inherent lack of power in the rule making Authority to provide for forfeiture of a press used in circumstances mentioned in sub‑rule (2) of rule

52. The Special Bench simply could not give effect to the provision because of the defect in framing the rule, which made it inoperative. The defect having now been rectified by providing for adjudication, it is to be considered how and when the provision as to forfeiture came into operation. Did it come into operation, as the learned Attorney‑General maintained, since the rule in the original form was published on the 6th September 1965 ? Or did it become operative on the date on which the defect was removed by the amendment, namely, the 16th November 1966? Proceeding on the premise that the provision as to forfeiture contained in rule 52 was not void ab initio but simply inoperative because of the defect in framing the rule, let us examine how far the authority relied upon by the learned Attorney‑General, viz., Mehdi Ali Khan's case can be of assistance to him. This case came up for hearing before their Lordships of the Supreme Court after the abrogation of 1956‑Constitution. The issue involved ‑was as to what would be the effect of the disappearance of the fundamental rights guaranteed by that Constitution on a certain provision of an Act, which provision had earlier been declared void by the Supreme Court because of repugnancy noticed between it and a fundamental right. It was held that the earlier decision, which was made in conformity with Article 4 of the said Constitution, meant no more than that the said provision was inoperative in view of repugnancy with the dominant law of the Constitution, and that the repugnancy having disappeared the said provision of the Act regained its full operation. This is the gist of that decision, as I read it. What was said in that decision as to the effect of abrogation of the Constitution, as distinguished from `repeal', evidently not being material on the question at issue before us. I shall remain content with quoting below an extract from paragraph 22 of the report which sums up the law generally as to the effect of the disappearance of Fundamental Rights :‑ "The moment the fundamental right was taken away by an amendment of the Constitution the law again became operative without its being re‑enacted. That this was the sense in which the word `void' was used by the framers of the Constitution becomes perfectly clear from Article 192 of the Constitution which envisages a position whereby an order of the President the right to move the Court for the enforcement of a fundamental right is temporarily suspended. On such suspension being ordered, the law becomes immediately operative without its being re‑enacted. If the law was void ab initio, that is to say, if it did not exist on the statute book, it would require re‑enactment on the making of an order suspending the operation of fundamental rights." (The underlinings* are mine.) As Mr. Brohi put it, in the above decision their Lordships were considering a case of competition for recognition by two laws duly enacted by competent Legislatures. The instant case, however, involves a claim for recogni tion by a subordinate piece of legislation, namely, rule 52 of the Defence of Pakistan Rules, 1965, in all its aspects, on the basis of powers derived from a superior law, namely, the Ordinance, whose mandate as to the manner in which a provision as to forfeiture was to be made was held by the Special Bench to have been violated by the rule‑making Authority by failing to provide for adjudication. Be that as it may, Mehdi Ali Khan's case can be no authority for the proposition that the mandate of the Ordinance having now been complied with by the amendment, by providing for adjudication, rule 52 containing the provision as to forfeiture is to be held operative from the date of its publica tion, namely, the 6th September 1965, in view of the above quoted exposition of law which, in my opinion, rather supports the petitioner's contention to the contrary. The provision as to forfeiture contained in rule 52, as it stood before the amendment, appears to me to be on the level of a law whose operation is kept in abeyance till a future date awaiting a further act by the Legislature, or under its authority, manifesting an intention to bring it into operation. In the present case that act has been the amendment of the rule by S. R. O. 171(R)J66, dated the 16th November 1966. In the absence of anything in the amendment to the contrary it cannot but be held that the intention was to give effect to the amendment from the date of its publication,) i.e. the 16th November 1966. The learned Attorney‑General next contended that there being no lack of legislative competence in the rule‑making Authority to make provision for forfeiture and adjudication, in view of settled principles, the `time lag' between the two provisions could be of no significant consequence. In other words, he contended that the amendment, which came on the 16th November 1966, made the provision for forfeiture operative from the date of publication of the unamended rule on the 6th September 1965. In support of this contention he relied on the Supreme Court decisions reported in Tofazzal Hossain v. The Province of East Pakistan (P L D 1963 S C 251). That was a case in which the validity of an Ordinance promulgated by the Governor of East Pakistan was under challenge. The Ordinance, which is Ordinance No. XII of 1960, provided that clauses (a) and (b) of section 20(2) of the East Pakistan State Acquisition and Tenancy Act, 1950, were to be deemed to be amended so as never to have included hat and baser. In an earlier case the Supreme Court had held to the contrary. The Supreme Court pointed out that the Legislature is not affected by the pendency of a proceeding before a Court or the existence of judgment by a, Court: The 6th Section of this Ordinance purports to amend section 20 of the Act, providing that in subsection (2), for the explanation that was there, the following new subsection shall be added, namely: ‑ "(2a) Notwithstanding anything contained in any other law for the time being in force or in any instrument or in any judgment or decree or order of any Court, lands of the classes referred to in the clauses (a) and (b) of subsection (2) do not include and shall be deemed never to have included‑ (i) any land or building in a hat or bazar, or (ii) . . . . . (iii) . . . . . (iv) . . . . . and (v) after subsection (5), the following new subsection shall be added, namely (6) The provisions of sub‑clause (c) of clause (i) of sub section (5), and clause (ii) of that subsection shall not apply and be deemed never to have applied to any land on which hats or bazars are held . . . . . " Evidently, Ordinance XII of 1960 was of a declaratory nature, and the declaration having been made by a competent law‑making Authority was given effect to by the Supreme Court. We are not concerned here with a declaratory law in the present case, since the amendment which came by S. R. O. 171(R)/65 makes no such declara tion. Tofazzal Hossain's case, in my view, is not, therefore, an authority for the proposition that because of the amendment which provides for adjudication in compliance with the mandate of the Ordinance the provision for forfeiture contained in rule 52 was to take effect from the very beginning. Thirdly, the learned Attorney‑General contended that the rule‑making Authority having supplied the omission in rule 52 pointed out by the Special Bench, by making a provision for adjudication, the new provision must relate back to the time of publication of the original rule. In support of this contention he relied upon a rule of construction stated at page 204 of `Construction of Deeds and Statute' by Sir Charles E. Odgars. It is true that the learned author has said so, but he said so in relation to explanatory and declaratory Acts, as will appear from the extract quoted below: ‑ "Explanatory and declaratory Acts are free from the general presumption against retrospective effect. When a statute is passed either to supply an omission in a previous Act or to explain a previous Act, the later statute is taken to relate back to the time when the earlier was passed." The wide proposition that in every case where an omission in a previous Act is supplied by an amending Act, the amendment would relate back to the date of the previous enactment cannot, therefore, be accepted. The rule of construction stated at page 204 of the book is exactly the ratio of the decision in Tofazzal Hossain's case, and I have already shown that it has no bearing on S. R. O. 171 (R)/66 which has brought about the amendment. In this connection the ‑learned Attorney General referred us also to a Patna decision in the case of Balmakund v. Firm Pirthiraj Ganesh Das (A I R 1951 Pat, 333). It was a plaintiff's appeal. It was heard by Imam and Narayan, JJ. of that Court, Narayan, J. while rejecting the plaintiff's contention that the newly added sub‑rule (3) of rule 22, Order XXI of the Code of Civil Procedure was not retrospective observed: ‑ "Where a statute is passed for the purpose of supplying an omission in a former statute or explaining an omission in a former statute, the subsequent statute relates back to the time when the prior statute is passed." Narayan, J., was not, however, oblivious of the general principle that even alterations in procedure may not always be retrospective. He thought that the new sub‑rule manifested a legislative intent of giving it retrospective effect. Imam, J., agreed with the order proposed to be made by Narayan, J., in the appeal, but refrained from expressing any definite opinion on the new sub‑rule. This has robbed the observation of Narayan, J., of the sanctity attached to a Division Bench decision.. Be that as it may, I find that the new sub‑rule has not in the true sense, supplied any omission in Order XXI, rule 22 of the Code of Civil Procedure. It is obviously an addition to the rule seeking to curb the effect of sub‑rules (1) and (2). It is worth noticing also that Narayan, J., held that even if the new sub‑rule of rule 21 were held not to be retrospective, otherwise there was no merit in the appeal which he dismissed. The observation quoted above was made in connection with a Court procedure. As already noticed, an attempt was made to ascertain the legislative intent, and yet the views reflected in the observation was not the sole basis of the decision. It is worth noticing further that the new sub‑rule, which was held by Narayan, J. to be retrospective, did not purport to give operation to a law which was not operative before it was added. The case before us is indeed a case of supply of an omission. That omission has been supplied with a view to making operative a law which was not operative because of the omission. The Patna case also can, therefore, have no bearing on the facts of the case before us. The learned Attorney‑General next contended that there could be no objection to upholding the impugned order, since it was a fresh passed after rectification of the defect in law pointed out by the Special Bench, though it has been passed upon facts on the basis of which the earlier order had been passed. He argued that Courts were always upholding fresh orders made after rectification of defects in laws pointed out by them: In this connection he referred us to a number of decisions. These decisions upheld fresh executive orders made after rectification of laws by amendment, or orders made afresh in conformity with the requirements of law upon the same set and facts on which earlier orders were passed and declared void. These decisions, however, were made in petitions challenging the validity of orders of preventive detention. It is needless to say that by their very nature preventive measures have to be taken on past facts as to commissions and omissions. These measures are taken with a view not to punish anyone, but to prevent their recurrence. These decisions can be no authority for the wide proposition that fresh orders passed after rectification of defective laws must necessarily be upheld. The learned Attorney‑General relied also on certain observations in the case of Muhammad Afzal Khan v. State (P L D 1962 S C 397) in this connection. ' Muhammad Afzal Khan who was charged under sections 182, 182/109, 419, 420 and 419/109, Pakistan Penal Code was acquitted by the trial Court of the charges under section 182 of the Pakistan Penal Code on the ground that there was no complaint by the officer concerned. He was, however, convicted under sections 419, 420, 419/511 and 420/511 of the Pakistan Penal Code. His appeal was dismissed by the High Court. On appeal to the Supreme Court, their Lordships found that the ingredients of offences for which he was convicted were wanting in the case. While considering the ques tion if a retrial could be ordered on a charge under section 182, of the Penal Code their Lordships observed that the acquittal of the appellant by the trial Court of the charges under section 182, Pakistan Penal Code was not one as would bar a fresh trial on the said charge, since in the circumstances the order of acquittal was passed it amounted to a refusal by the trial Court to take cognizance of the offence because of the absence of a complaint by the concerned officer. I confess having failed to find any relevance of this case to facts of the case before us. The impugned order of forfeiture has no doubt been passed after rectification of the defect in rule 52 of the Defence of Pakistan Rules, 1965, but it relates to past acts alleged to have been made prior to the amendment in contravention of certain prohibitive orders under that rule. Had the impugned order been of a preventive nature there could not be objection as to its validity. Conscious of this position, the learned Attorney‑General claimed that forfeiture was not a punitive but a preventive measure. It is impossible to give effect to this claim, since it was not disputed by the learned Attorney‑General that forfeiture results in complete depri vation of one's right to a property. Let me now revert to the learned Attorney‑General's proposi tion that the amendment in question relates to procedure simp liciter. If I could accept this proposition I would have unhesi tatingly upheld the impugned order. Indeed, Courts have repeatedly held that in construing a piece of legislation they are not concerned with the policy involved or the result, injurious or otherwise, that may follow in giving effect to its language. But Courts have always insisted on being 'satisfied that executive acts affecting citizens' rights to person and property are covered by the authority of law. The amendment has rectified the defect which, according to the majority view of the Special Bench, made the provision as to forfeiture, in the form it existed in rule 52, inoperative. The amendment has blown life and vigour into the provision as to forfeiture, making it operative. Question is : from which date ? The anxiety behind the learned Attorney‑General's insistence that the amendment relates to procedure is quite understandable. If the amendment relates to procedure alone the petitioner cannot object to the amendment being given retrospective effect, since no one has a vested right in procedure. The amendment, however, has not effected an alteration in procedure. It has supplied a procedure where there was none. The procedure supplied by the amendment is again not one through which conclusions are to be reached as to the correctness of allegations on proof of which an order for forfeiture is to be made. The forfeiture, as insisted by the learned Attorney‑General himself, is to take effect from the date of its making, and the adjudication provided by the amendment, is to follow after the event, i.e., after the forfeiture, though made in the form of a declaration It was pointed out that the words `declare' and `declaration' contained in the rule 52 find no place in the Ordinance. The declaration as to forfeiture results at once in a complete deprivation of the affected person's right and title in his press. It is, therefore, a punishment. To the extent that the amendment, by supplying the omission as to adjudication, has made the provision as to forefeiture operative, `' it has affected a substantive law, since it has resulted in the punishment for forfeiture being imposable for the contravention of a prohibitory order passed under sub‑rule (1) of rule

52. The amendment, as such, is not what Mr. Brohi, appearing for the petitioner, complained of. He made no grievance against the amendment in so far as it supplies a procedure for the benefit of alleged contravenors of prohibitory orders issued under sub rule (1) of rule 52 after the amendment. The provision as to forefeiture was not available against the petitioner prior to the amendment for acts alleged to have been committed before the amendment, which has supplied the procedure for adjudication. Before the amendment, for contravention of the prohibitory orders the petitioner could have been sentenced to imprisonment for five years or with fine or with both. If the learned Attorney -General's claim that the amendment is entitled to be given a retrospective effect is accepted, then that will result in giving retrospective effect to a provision as to punishment. Faced with this situation, the learned Attorney‑General contended, as he did also in another context, that forfeiture was not punishment. The expression `forfeiture' is defined in Stroud's Judicial Dictionary, Edn. 3, at page 1140, as follows: ‑ "Forfeiture.‑(1) The proper signification of `forfeiture', as appears from Cowell's Interpreter and Duncange, is a `a mulct or fine‑a punishment for an offence'; and it is quite clear that it is used in that sense in a charter where the justices are empowered to punish delinquents by "fine, ransoms, amercia ments and forfeiture'. (Per Parke, B. R. v. Dover 4 L J Ex. 94)." On the question whether forfeiture was a punishment, in his judgment in the Special Bench case, which was between the same parties. M. R. Khan, J. pointed out that forfeiture .of property was one of the several kinds of punishment prescribed in section 53 of the Pakistan Penal Code, and said as follows: ‑ "Forfeiture of property for contravention of a Rule or any order made thereunder is as much a penalty as imprisonment or fine, for, it amounts to complete deprivation of property by way of punishment." The other judgments delivered in the Special Bench case also proceeded on the basis that forfeiture was a punishment. The contention that forefeiture is not a punishment is therefore, belated and untenable. The next contention of the learned Attorney‑General was that even procedural law affecting vested right as well as liabilities, including penal provisions, could be given retrospective effect. In this connection he cited two decisions. The first of these is Attorney‑General v. Vernazza ((1960) 3 A E R 97). In exercise of powers conferred on it by sub‑rule (1) of section 51 of the Supreme Court of Judicature (Consolidation) Act, 1925, the High Court, in this case, prohibited the respondent (Vernazza) instituting any legal proceedings in any Court without the leave of the High Court or a judge thereof, on a finding that the respondent had habitually and persistenly and without any reasonable ground instituted vexatious proceedings. At the time the order was made there were other pending proceedings already instituted by the respon dent. After the High Court's order, and during the pendency of an appeal by Vernazza in the Court of Appeal, the Supreme Court of Judicature (Amendment) Act, 1959, came into operation, amending subsection (1) of section 51 of the Act of 1925. The amendment conferred a further power on the High Court to prohibit vexatious litigants continue legal proceedings without its leave. Having obtained leave to that end, the Attorney -General served on the respondent (Vernazza) a notice of conten tion whereby he gave notice that he would move to vary the order of the High Court under the amended section 51(1) to include pending proceedings already instituted by Vernazza. Both the appeal and the notice having been dismissed by the Court of Appeal, the Attorney‑General took a further Appeal to the House of Lords against the order of the Court of Appeal, refusing his prayer to vary the High Court's order the House of Lords allowed the appeal of the Attorney‑General and varied the High Court's order in the manner asked for by him, being of the view that it would not be proper to send back the case to the High Court since the House of Lords had the same power as that of the High Court in a pending case. It was doubted in the Judgments disposing of the appeal if the case at all involved a question of retrospective effect being given to the amending Act. The appeal was allowed in favour of the Attorney‑General on the ground that no one had a vested or substantive right in continu ing a vexatious proceeding. The next case cited by the learned Attorney‑General‑ was Re : A Solicitor's Clerk ((1957) 3 A E R 617), it was an appeal by an un admitted Solicitor's clerk against an order made by the disciplinary committee of the Law Society on the 20th September 1957, directing that from that date no Solicitor should take the appellant into his employment without the written permission of law Society. The appellant had been convicted in 1953 on charges of larceny. The charges did not relate to "money or property belonging to or held or controlled by the solicitor by whom he . . . . . was employed for any client of such solicitor", which was necessary before such order could be made under the Solicitor's Act of 1941. The Act of 1941 was, however, amended by an Act of 1956 to include convictions of larceny irrespective of ownership. It was held that the Act of 1956 enabled an order to be made disqualifying a person from acting as a Solicitor's clerk in the future, and that what happened in the past was the cause or reason for making the order. It was explained that the amending Act simply enabled a disqualifica tion to be imposed in the future which in no way affected anything done by the appellant in the past. In this view of the matter, it was held that the order of disciplinary Committee involved no question of retrospectivity. Obviously, these decisions can be of no assistance to the learned Attorney‑General. I would only add that there is scope for doubt as to whether the ratio of the decision in Re : A Solicitor's Clerk, can be given effect to in this country, in view of the terms of Right No. 4 of the Fundamental Rights guaranteed by the Constitution. Let me now come back to the amendment of rule 52 by S. R. O. 171(N)/66. The amendment does not by express words make the provision as to forfeiture retrospective, though sub section (7) of section 3 of the Ordinance has empowered the rule‑making authority to make any rule so as to make it retros pective not earlier than the amendment of the Ordinance. Nor do I find any compelling reason to think that the amendment was intended to be given retrospective effect by implication. The rule Authority could not also have provided in the amendment for giving retrospective effect to the rule as to forfeiture by reason of Fundamental Right No. 4 of our Constitution which has not been suspended. This right has been stated in the Constitu tion in the following terms: ‑ "

4. Protection against retrospective punishment.‑No law shall authorize the punishment of a person‑‑ (a) . . . . . . (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed." Before the amendment the contravention of a prohibitory order issued under rule 52(I) could be punished by a sentence of imprison ment for five years or with fine or with both. Such contraventions can now be punished by the same sentence or by forfeiture, or by both. The punishment provided under rule 52, as it now stands, c is thus both different from and greater than the punishment which could visit a contravention of prohibitory orders issued under rule 52(1). It was never dispated, as it could not be, that the contravention of a Prohibitory order issued under rule 52(1) was not an offence. Such being the position, I have no hesitation in accepting Mr. Brohi's contention that the order is not covered by the authority of any law. I would, therefore, make this Rule absolute, but without any order as to costs. Certain other points raised in support of this rule have not impressed me at all. I agree with my learned brother that they have no substance. SIDDIKY, J.‑This case has come before me under clause 36 of the Letters Patent on a difference of opinion between two learned Judges of this Court who heard the application under Article 98 of the Constitution of the Islamic Republic of Pakistan. One of the learned Judges, Salahuddin Ahmed, J., discharged the Rule whereas the other learned Judge Sayem, J., made the Rule absolute. Briefly stated the facts of the case are as follows: The petitioner Tofazzal Hossain is the Editor, Publisher, Printer and Proprietor of the newspaper Ittefaq and also the Proprietor and keeper of the New Nation Printing Press where the said newspaper used to be printed. The petitioner was served with three prohibitory orders dated 7th April 1966, 2nd June 1966 and 7th June 1966 by the respondent No. 1, the Province of East Pakistan under Rule 52(l)(b) of the Defence of Pakistan Rules, 1965 (hereinafter referred to as the Rules) prohibiting him from publishing certain news items, views and comments in the said daily Ittefaq. These prohibitory orders have been annexed to the petition and marked as Annexures C, C(l) and C(2) respectively. On the 16th June 1966 the respondent No. 1 passed an order of forfeiture of the New Nation Printing of the petitioner under rule 52(2) of the Rules for alleged violation of the said three prohibitory orders. The petitioner at about the same time was also taken into custody under rule 32 of the Rules. The petitioner's son Moinul Hossain, who is also the constituted attorney of the petitioner, made an application to this Court under Article 98 of the Constitution and obtained a Rule nisi. The matter thereafter was placed before a special Bench of five Judges for disposal. The said Special Bench after hearing the parties made the Rule absolute and allowed the petition of the petitioner on the ground that there being no provision for adjudication of the forfeiture in rule 52(2) of the Rules as contemplated by clause (iii) of subsection (3) of section 3 of the Defence of Pakistan Ordi nance the order of forfeiture was bad in law. The Province of East Pakistan prayed for stay of the operation of the said order of the Special Bench to enable it to file an appeal to the Supreme Court and two weeks' time was granted by the Special Bench. The Province of East Pakistan filed an appeal within time and obtained an order of stay from the Vacation Bench of the Supreme Court for a further period. Thereafter the Full Bench of the Supreme Court on 15‑11‑66 took up the stay matter and discharged the Rule staying operation of the order of the Special Bench of this Court and directed restoration of the Press to the petitioner. On the 16th of November 1966 the Government of Pakistan made certain amendments to rule 52 of the Rules. On the same date, i.e., 16th November 1966 the Governor of the East Pakistan by an order withdrew the order of forfeiture and by the same order purported to restore possession of the Press to the petitioner. On the 17th of November 1965 the appeal filed by the Province of East Pakistan in the Supreme Court was withdrawn and on the same date a fresh order of forfeiture was promulgated by the Governor of East Pakistan in respect of the New Nation Printing Press of the petitioner upon the self‑same charge on which the order of forfeiture dated 16th June 1966 was passed. This fresh order of forfeiture was served on the petitioner in the hospital where he was taken for treatment, in the morning of 17th November 1966 at about 9 a.m. On the following day, the 18th November 1966 the Government of East Pakistan by a notification in the official Gazette constituted respon dent No. 4, a Tribunal, in accordance with the provisions of the newly added sub‑rule (4) of rule 52 of the Rules for adjudication of the forfeiture made on the 17th November 1966. On 21st November 1966 the petitioner through his son and constituted attorney Moinul Hossain moved this Court under Article 98 of the Constitution challenging the validity of the order of forfeiture dated 17th November 1966 and obtained the present Rule nisi thereon. The Rule came up for hearing before a Division Bench of this Court com posed of Salahuddin Ahmed and Sayem, JJ. The two learned Judges passed differing orders in respect of the Rule, as already observed, resulting in the matter being placed before me under clause 36 of the Letters Patent as contemplated by rule 12 of the Rules of .the High Court of judicature for East Pakistan in respect of hearing of writ petitions. Mr. Brohi appeared for the petitioner whereas the learned Attorney‑General of Pakistan appeared for the respondents. On the second day of the hearing when the learned Attorney‑General was addressing the Court, he raised a point about my jurisdiction to hear this case under clause 36 of the Letters Patent on the ground that a proper reference has not been made for hearing of the matter by a third Judge. The point raised by the Attorney‑General was that the two learned Judges of the Division Bench had not for mulated the point or points of difference between them to be decided by a third Judge. Mr. Brohi agreed with the learned Attorney‑General and since both the learned counsels had to leave Dacca on that very day or on the following day I adjourned this matter for further hearing on the point raised. When the matter was taken up for further hearing, both the learned Attorney‑General and, Mr. Brohi gave up the point of my jurisdiction and concluded their argument on merits of the case. I therefore, need not go into the details of the question of my jurisdiction to hear the matter under clause 36 of the Letters Patent for note‑formulation of the points by the learned Judges of the Division Bench. A11 that I need to say here is that there is no substance in the contention of the learned Attorney‑General on this point. Before proceeding further I propose to quote below both , the unamended and amended provisions of rule 52 of the Rules for proper understanding of the arguments of the learned Advocates for parties. Rule 52 of the Rules prior to the amendment of the 16th November 1966 were as follows: "

52. Power to impose censorship.‑(1) Central Govern ment may, for the purpose of ensuring the security, the public safety or the defence of Pakistan, or for secur ing the maintenance of public order or the efficient conduct of military operations or prosecution of war, by order addressed to a printer, publisher or editor, or to printers, publishers, and editors generally,‑ (a) require that all matter, or any matter relating to a particular subject or class of subjects, shall before being published in any document or class of documents, be sub mitted for scrutiny to an authority specified in the order; (b) prohibit or regulate the making or publishing of any document or class of documents or of any matter relating to a particular subject or class of subjects, or the use of any press, as defined in the Press and Publications Ordinance, 1960 (XV of 1960). (2) If any person contravenes any order made under sub‑rule (1) then, without prejudice to any other proceedings which may be taken against such person, the Central Government may declare to be forfeited to it every copy of any document published or made in contravention of such order and any press, as defined in the Press and Publications Ordinance, 1960 (XV of 1960), used in the making of such document. (3) If any person contravenes any order made under this rule, he shall be published with imprisonment for a term which may extend to five years, or with fine, or with both." After the amendment of 16th November 1966 the said Rules stand as follows :‑ "

52. Power to impose censorship.‑(1) The Central Govern ment may, for the purpose of ensuring the security, the pub lic safety or the defence of Pakistan, or securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, by order addres sed to a printer, publisher or editor, or to printers, publishers and editors generally,‑ (a) require that all matter, or any matter relating to a particular subject or class of subjects, shall, before being published in any document or class of documents, be sub mitted for scrutiny to an authority specified in the order ; (b) prohibit or regulate the making or publishing of any document or class of documents, or of any matter relating to a particular subject or .class of subjects, or the use of any press, as defined in the Press and Publications Ordi nance, 1960 (XV of 1960). (2) If any person contravenes any order made under sub‑rule (1), then, without prejudice to any other procee dings which may be taken against such person, the Central Government may declare to be forfeited to it every copy of any document published or made in contravention of such order and any press, as defined in the Press and Publications Ordinance, 1960 (XV of 1960), used in the making of such document ; and, if the document as forfeited is a newspaper, the Central Government may also cancel the declaration made and subscribed in respect of such newspaper under section 7 of that Ordinance. (3) Where any document or press has been declared to be forfeited to the Central Government under sub‑rule (2), any police officer or any other officer authorised by the Central Government in this behalf may seize any copy of such document wherever found or such press and may, for the purpose of such seizure, enter upon and search any premises whereon or wherein such document or copy thereof is or is reasonably suspected to be, or such press is situate. (4) Where a declaration of forfeiture under sub‑rule (2) has been made, the Central Government shall, by notifica tion in the official Gazette, constitute a Tribunal consisting of a person who is, or has been a Sessions Judge, or an Additional Sessions Judge, or an Assistant Sessions Judge, or a District Magistrate, or an Additional District Magis trate, and has not retired from Government service, and refer the declaration to such Tribunal for the adjudication of forfeiture. (5) Upon a reference made to it under sub‑rule (4), the Tribunal shall, after considering the materials placed before it by and calling for such information as it may require from, the authority making the declaration and the person affected thereby and giving the parties an opportunity of being heard, decide whether there has been any contraven tion of an order made under sub‑rule (1) to justify the declaration. (6) The declaration under sub‑rule (2) shall stand can celled if the Tribunal decides that there has been no contravention of an order under sub‑rule . (1) to justify the declaration. (7) If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to five years or with fine or with both." It may be noted that the amendment of 16th November 1966 did not affect the provision of sub‑rule (1) of rule

52. It will be seen that in sub‑rule (2) of rule 52 of the Rules certain additions were made which relate to the cancellation of declaration of a newspaper or journal which is guilty of contravention of any prohibitory order made under sub‑rule (1) of this rule. Sub‑rule (3) as it stood prior to the amendment was deleted and a new sub‑rule (3) was substituted in its place. Four more sub rules numbering (4), (5), (6) and (7) were added to rule

52. The newly added sub‑rule (4) has provided for constitution of a Tribunal to adjudicate upon the order of forfeiture made under sub‑rule (2) the newly added sub‑rule (5) provides for consideration of materials by the Tribunal placed before it by the parties and for obtaining information from the authority making the declaration of forfeiture and the person affected thereby and also provided for opportunity to the parties of being heard for his decision as to whether there has been a contraven tion of an order made under sub‑rule (1) to justify the decla ration of forfeiture. Sub‑rule (6) thereof provides that if the Tribunal decides that there has been no contravention of any prohibitory order by the party against whom an order under sub‑rule (1) has been made then the declaration of forfeiture made under sub‑rule (2) shall stand cancelled. The last added sub‑rule, namely, sub‑rule (7) provides for punishment of a person who contravenes any order made under this rule. The power' to frame rule 52 for the subjects men tioned therein is to be found in subsection (3) of section 3 of the Defence of Pakistan Ordinance, 1965 the parent law under which the rules were framed and promulgated. The Special Bench by its judgment dated 9‑8‑1966 held that the Legislature had the power to legislate on the subject and that rule 3(3) of the Ordinance was a valid piece of legislation. Further the Special Bench did not hold that rule 52(2) was void or ultra vires the Ordinance. Mr. Brohi canvassed a number of points before me in support of the petitioner's case. But of these Mr. Brohi laid emphasis on the point of validity of rule 52(2). In prefacing his argument on the point of validity of rule 52(2) Mr. Brohi contended that the Special Bench did not strike down the order of forfeiture dated 16th June 1966 on its own defects but it did so on the foundation of it. According to Mr. Brohi, rule 52 qua forfeiture was incompetently enacted. His submissions were that initially rule 52 was incompetently enacted. According to Mr. Brohi the essences of the power of forfeiture as provided for in sub rule (2) of rule 52 is based on the very important proviso contained in clause (iii) of subsection (3) of section 3 of the Ordinance that is that, the sub‑rule must also contain the provision for adjudication or, in other words, if the Rule‑Making Authority has not provided for adjudication in sub‑rule (2) of rule 52 where the power of forfeiture has been provided for as contemplated by clause (iii) of subsection (3) of section 3 of the Ordinance then the sub‑rule has not been legally enacted and as such it cannot have any effect at any point of time. The rule‑maker having not carried out the mandate of the Legislature in its fullness in framing rule 52(2) it must be held to be a void piece of legislation, or, in other words Mr. Brohi made it clear that because there was no provision for adjudication in the original rule 52(2) it should be considered to be honest in the eye of law or void ab initio and as such wholly inoperative even after amendment as there could not be an amendment to a non existent law. I regret, I cannot agree with Mr. Brohi on this submission. Only in a case where the law is made by a wholly incompetent authority because it suffers from an inhe rent lack of power to make the law, the proposition that the law is void ab initio can be justified. In such a case the law will be deemed not to have ever existed on the statute book but where the Legislature has competence to 6 make the law, the law cannot be said to be void ab initio. In the present case the Legislature had the competence to make the rule. All that can be said is that the Legislature has not, in the sub‑rule (2) provided for adjudication of the forfeiture wherefore the rule cannot be applied to a case of forfeiture until the provision for adjudication is incorporated in it. And that is the decision of the majority Judges of the Special Bench. Before a law is struck down the Court must be satisfied that there is inherent want of competence in the Legislature, otherwise the law cannot be said to be void ab initio. That is the view expressed by My Lord the present Chief Justice of the Supreme Court, Cornelius C. J., as he then was, in 11 D L R (S C) 318: It may be that under certain circumstances a valid law or a law validly made by a competent authority may not be operative for certain defects in the law itself other than lack of competency of the Legislature. In such a case, the law may not be applicable to the facts of a particular case, but that will not make the law void ab initio. This has been the view of our Supreme Court as is found in the case reported in 12 D L R 100 (S C). If the law is void ab initio then it requires re‑enactment. Such is not the position in the present case. A very illuminating discussion on this topic is to be found in the judgment of Munir, C. J., in the case of Province of East Pakistan and another v. Mehdi Ali Khan (P L D 1959 S C (Pak) 387) and I most respectfully agree with the same which is also binding on me. I may also in this connection refer to another decision of the Supreme Court, 15 D L R 295 (S C). According to Mr. Brohi, clause (iii) of subsection (3) of section 3 must be read as a whole and must be construed to be a single piece of legislation wherein both forfeiture and adjudication are so linked together that one cannot be separated from the other. The whole thing, according to Mr. Brohi, is a single substantive piece of legislation and he would not concede that the adjudication part of it is a procedural one. I cannot agree with Mr. Brohi that both the forfeiture and the adjudication part of section 3(3) (iii) are a single piece of substantive law. Forfeiture part of i is undoubtedly a piece of substantive law. But adjudication of forfeiture, in my opinion is undoubtedly procedural. If a person contravenes any order passed under rule 52(I) then he may face several penalties. Under sub‑rule (2) the paper in which the offending article is published in contravention of the order may be forfeited and or the press which issued for making the document may be forfeited and the declaration of the paper may also be cancelled. Under sub‑rule (7) the person contravening the order may be sentenced to imprison ment which may extend to 5 years or with fine or with both. If a person contravening the order under sub‑rule (I) is prosecuted then he must be prosecuted before a Court of law and the procedural law as is applicable at the time must be followed for trying him. Similarly if the punishment imposed for violation of any order made under sub‑rule (1) is forfeiture of a property in respect of which a contraven tion has been made then a procedure for that is contem plated by clause (iii) of subsection (3) of section 3 of the Ordinance which is adjudication by a Court or by any other authority. This provision for adjudication, therefore, is un doubtedly a procedural one. In the context of his argument that both forfeiture and adjudication are parts of a single piece of substantive law, Mr. Brohi contended that the amendment of 17th November 1966 by which the provision of adjudication was added to rule 52 by the insertion of sub‑rule (4) is an ex post facto legislation. He submitted that the alleged offence or offences for violation of three prohibitory orders having been com mitted by his client prior to the coming into being of sub rule (4) of rule 52, the whole of sub‑rule (2) and sub‑rule (4) of the said rule, or for that matter, the entire rule 52 is hit by the provisions of Fundamental Right No. 4 of our Constitution. Fundamental Right No. 4 of the Constitu tion provides: ‑ "No law shall authorise the punishment of a person (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed." The argument of Mr. Brohi that adjudication part of clause (iii) of subsection (3) of section 3 of the Ordinance being a substantive piece of legislation and this not being there initially in rule 52 the addition of it on 17‑I1‑1966 after the' offence is committed by his client in April, May and June 1966 must be held to be in violation of Right No. 4 of the Constitution and as such must be struck down. It is rather difficult for Z me to concede to the argument of Mr. Brohi in the view that I take of the provision of adjudication in clause (iii) of subsection (3) of section 3 of the Ordinance. The offence was created on the 6th of September 1965, when sub‑rule (2) of rule 52 was promulgated, i.e., forfeiture of a property in respect of which contravention has been made in violation of the order made under sub‑rule (1) of rule 52 was provided for. In the provision of adjudication made in sub‑rule (4) of rule 52 by amendment of 17th November 1966 no penalty has been provided for. Only the lacuna that was there in rule 52 (‑'), that is, want of provision of the adjudication has been filled up. Rather, it can be said that the forum has been provided for adjudicating the declaration of forfeiture. This, therefore, must be held to be a procedural provision and not a substantive one. As I have already observed, rule 52 having been validly legislated wherein the punishment for contravention of order made under rule 52 (1) has been provided for it cannot be said that the provision made under sub‑rule (4) on 17‑11‑1966 has either created punishment for the violation or a new punishment for it and as such is violative of Right No. 4 of the Fundamental Rights. Section 3 (3) of the Ordinance confers power on the Central Government to legislate on certain subjects. So long the legislation (making of the Rules) is within the competence of the Government the accident that the Government legislate piecemeal on various subjects does not render invalid legislation made within its competence, just because legislation on another ‑subject even though alike was made later. When a Legislature is empowered to create offences and to make certain omissions punishable and is also empowered to create forum or provide for procedure for trial of that offence or omission the mere fact that the penal provisions creating offences were made earlier and the procedural provisions including creation of forum was made later will not render the penal provision void or invalid. Penal provision creates liability for punishment which is incurred as soon as the act or omission occurs after the enforcement of that penal provision. The forum created for adjudication of such liability subsequently will not detract from validity of the penal provision itself. On the contrary, a subsequently created forum will be competent to adjudicate upon liabilites incurred before the law creating the forum. In the instant case the liability to punishment was incurred as soon as the violation of the prohibitory orders took place under the valid provisions of sub‑rules (1) and (2) of Rule

52. But no punishment then could be awarded as forum for it was created by rule 52 (2). It is one thing to create a liability and it is wholly another thing to adjudicate upon it. Decision of our Supreme Court in the case of Abdul Moula Bepari v. The State (12 D L R 100 (SC)) is an authority on the point. The offence was created on the 6th of September 1965, by sub‑rule (2) of rule 52 and in the present case it was alleged to have been committed in April, May or June 1966 and therefore, there can be no difficulty in holding that there was a law existing from before the alleged commission of the offence. Whether punishment could be awarded under it after the commission thereof in June 1966, is a matter entirely different. The Special Bench held that the declaration for forfeiture could not be allowed to take effect as no provision for adjudication was made in the said rule as contemplated by section 3 (3) (iii) of the Ordinance. It never held that there was no offence created by rule 52 (2) (as it then stood) and as such the alleged violation of orders of the Governor did not constitute an offence. The moment the lacuna is filled up, that is, provision is made for adjudication of declaration of forfeiture in rule 52 that defect in the law is cured and action can be taken under the said rule. In answer to Mr. Brohi's contention of ex post facto legislation the learned Attorney‑General submitted that the amendment in Rule 52 of the Rules, is of a remedial nature involving also a jurisdictional aspect. Since it is not penal, it does not come within the Constitutional inhibition regarding ex post facto legislation as embodied in Fundamental Right 4 of the Constitution, especially when the amendment operates to the advantage of the petitioner by providing a remedial forum for adjudication. In support of his contention, the learned Attorney‑General relied on a decision of the United States Supreme Court reported in 196 U S

319. Further the learned Attorney‑General submitted that treating the amendment in rule 52 of the Rules, as supplying an omission, the new provision will relate back to the time of the original rule. Such a construction is not hit by the rule against ex post facto legislation, which restrains legislative action and not judicial construction and in support relied on the decisions reported in A I R 1951 Pat. 333 and in P L D 1962 S C

42. For the reasons stated, I find no substance in Mr. Brohi's contention that Rule 52 as amended on 16‑11‑1966 is violative of the provisions of Right 4 of the Fundamental Rights embodied in the Constitution and as such I reject the same. Mr. Brohi next contended that a property which relates to a contravention of any order under the Rules cannot be forfeited without the aid of the Court. This submission of Mr. Brohi is on the wordings of clause (iii) of subsection (3) of section 3 of the Ordinance. His contention has been that since you cannot punish a man for any contravention of an Order under sub‑rule (i) of Rule 52 by sending him to jail without the aid of the Court, you cannot also penalise him by forfeiture of his property related to the contravention without the aid of a Court of law. Further in this connection Mr. Brohi submitted that any other authority mentioned in clause (iii) of subsection (3) of section 3 must mean an authority in existence and that must be a judicial authority. That authority cannot be created for the purpose of a particular case as has been done in the present one. In the present case, one Mr. Abut Khair, Chairman of the Dacca Improvement Trust has been appointed the Tribunal for adjudicating the forfeiture of the petitioner's press. Invoking the powers of clause (iii) of subsection (3) of section 3 the respondent No. 1 has framed sub‑rule (4) of rule 52 wherein it has been provided that the Tribunal may be constituted by a person who is, or has been, a Sessions Judge or an Additional Sessions Judge, or an Assistant Sessions Judge, or a District Magistrate, or an Additional District Magistrate, and has not retired from the Government service. It is not controverted that Mr. Abut Khair, respondent No. 4 has been a District Magistrate and is till in Government service. Unless it can be said that sub‑rule (4) has been framed in violation of clause (iii) of subsection (3) of section 3 of the Ordinance, I find no scope for challenging the constitution of the Tribunal for adjudication with Mr. Abut Khair, respondent No.

4. Reading the law, as it stands, that is, clause (iii) of subsection (3) of section 3 of the Ordinance, I cannot persuade myself to interpret it in the light Mr. Brohi wanted me to do, i.e., the adjudication or the forfeiture must be done by a Court of law, and that too an existing one and not by any other authority, nor can I agree with Mr. Brohi that Government is " not empowered under clause (iii) of subsection (3) of section 3 to constitute an authority as contemplated by the last phrase of the said clause (iii) of subsection (3) of section 3 for adjudicating the forfeiture. The learned Attorney‑General's reply to this point was that the word "authority" as used in section 3 of the Ordinance and rule 52 of the Rules, which can be entrusted with adjudication, includes any functionary authorised in that behalf and that the Court is precluded from investigating or questioning the need or expediency for a rule under the Defence of Pakistan Ordinance. There is substance in the first part of the learned Attorney‑General's submission. Whether the Court can investigate or question the need or expediency for the rule or not under the Defence of Pakistan Ordinance is a question which need not be answered because on a plain reading of section 3 (3) (iii) of the Ordinance I have taken the view that the Government is authorised under the law to entrust the adjudication to any functionary answering the qualifications mentioned in sub‑rule (4) of rule

52. Therefore the criticism of Mr. Brohi that in the present case it is an appeal from Caesar to Caesar is not tenable in law. Thus, I find no substance in this contention of Mr. Brohi either. The next argument of Mr. Brohi was that the adjudication must be before the order of forfeiture is passed. Such an interpretation becomes difficult on a plain and simple reading of sub‑rule (2) of rule 52 or for that matter clause (iii) of subsection (3) of section 3 of the Ordinance. The provisions 1 made in sub‑rules (5) and (6) of rule 52 of the Rules are, in my opinion, sufficient safeguard against the idea of prior adjudication. My reading of the provision of section 3 and rule 52 is that the adjudication is subsequent to declaration of cancellation. Such a reading is rather consistent with the provisions of law. The next point raised by Mr. Brohi was that the jurisdiction to forfeit given to the executive authority by the Rules must relate to the property in respect of which the offence is committed. In the present case, according .to Mr. Brohi if his client has at all committed an offence he has committed the same by publishing certain prohibited materials in the Ittefaq and copies of the issues of the Ittefaq in which those materials were published could and should have been forfeited and not the Press on which the said paper or the said issues of the Ittefaq were published. Answer to this argument of Mr. Brohi is to be found in sub‑rule (2) of rule 52 itself. It is clearly written there that the Government may declare any press used in the making of a document, in violation of the prohibitory order, to be forfeited to it. It is so clear that it needs no interpretation. The Government can in a case of this nature choose either to forfeit the paper or the paper and the press in which the same is printed or the press and not the paper. There is no limitation to the power of the Government in doing any of these things. In the present case, the Government has chosen to forfeit the press in which the offending articles were printed. There is no doubt that a very severe punishment has been inflicted upon the petitioner but I, sitting here, cannot pass any opinion on this action of the Government, unless, I find that this forfeiture is outside the scope of the law. I would, therefore, reject this contention of Mr. Brohi. In this connection, Mr. Brohi also argued that the embargo was on publication of certain materials but not on the press. But in view of the language used in sub‑rule (2). of rule 52 to which I have just referred and on which I have given my observation, I do not think that I need further dilate on the point. Mr. Brohi then took up the point of principles of natural justice. According to him, his client should have been given an opportunity, to explain his conduct or to show cause as to whether he has violated the prohibitory orders or not prior to the order of declaration of forfeiture was made by the Government. The Government having not done so, the impugned order is also hit by the principles of natural justice and as such should be struck down. Sitting in the Special Bench I have already decided this point against the petitioner and I find no reason in the present Rule to change my view. There have been cases where opportunity to show cause were given after passing of the punitive orders. In such cases Courts have not struck down the orders because prior opportunity were not given to show cause. What is required by the rule of natural justice is that the offender should be given adequate opportunity to represent his case. If any authority is needed on the point I may cite the case of Abul A'la Moududi v. Government of West Pakistan (P L D 1964 S C 673). In any case ex post facto hearing constitute sufficient compliance with the rule of natural justice and the same has received recognition in Rule 52 as amended. Thus both on law and in facts of the case I find no substance in this contention of Mr. Brohi. The last point raised by Mr. Brohi was 'that of mala fide. It was argued that the Supreme Court passed an order on 15‑11‑1966 recalling the order of stay granted by it earlier and directing the Government to restore the forfeited press to the petitioner. On the 16th November 1966, the Government of Pakistan amended rule 52 and a day thereafter the Government of East Pakistan passed the present order of forfeiture, in spite of the remarks made by their Lordships of the Supreme Court in their order dated 15‑11‑1966 parts of which have been quoted in para. 19 of the petition. This shows according to Mr. Brohi that the Government at least in passing the order of forfeiture dated 17‑11‑1966 did not act bona fide. The Government after the order of the Supreme Court made on 15‑11‑1966 cancelled the order of forfeiture and directed restoration of the press to the petitioner, withdrew its appeal from the Supreme Court and almost in the same breath within a few hours passed a fresh order of forfeiture on the 17th morning at about 9 o'clock and served it on the petitioner in the hospital. Undoubtedly all these actions of the Government look ugly. But will all these make the order of the Government mala fide? It is difficult to prove mala fide of the Government. Positive evidence must be brought on record to show that the Government had, in fact, acted mala fide. There are many actions which can losely be termed as mala fide, but looked from legal point of view is not so. The mere fact of the Government withdrawing the appeal from the Supreme Court after losing the stay petition, and passing the present impugned order of forfeiture within such a short time will not in itself in my opinion make the action of the Government mala fide. Mr. Brohi did not refer me to any decision in course of his argument. His main point, as I have already observed, was the validity of rule 52 of the Rules and he was frank enough to say that if he did not succeed in persuading me to accept his contention that rule 52 of the Rules was void ab initio then the other points raised by him would not be of much consequence. I have already held against Mr. Brohi on this point as well as on all other points raised by him. I am therefore of the view that the petitioner has not been able to make out a case for a writ of mandamus from this Court. In the result, therefore, this application fails and the rule nisi according to majority judgment of the Court is discharged. But in view of the facts and circumstances of the case I leave the parties to bear their own costs. Dr. Kamal Hossain prays for a certificate under Article 58 of the 'Constitution. Since there is a question of interpretation of Right No. 4 of the Fundamental Rights guaranteed by the Constitution, I think, he is entitled to a certificate and I grant the same. S. A. H. Rule discharged.