P L D 1966 Supreme Court 971 (PLP)

CORNELIUS, C. J.‑This judgment will dispose of two Criminal Appeals, namely, No. 54 of 1964 by Amir‑ud‑Din and nine others, and No. 55 of 1964 by Jalil and two others, both by special leave. The appellants are thirteen of 25 persons who were put up for trial on charges of offences of rioting, hurt and murder committed as members of an unlawful assembly, who had all been acquitted at trial by an Additional Sessions Judge at Karachi. The High Court purported to act on an appeal filed against the acquittal by the State under section 417, Cr. P. C., and found the case proved against the present thirteen appellants on various charges. Leave was granted on two grounds. Firstly, it was contended that the appeal against the acquittal was not competently presented by the Public Prosecutor on the 24th August 1962 under the directions of the Commissioner of Karachi given on the 18th July 1962. The judgment of acquittal was announced of the 28th February 1962 and it was on the 30th April 1962 that a person on behalf of the complainants approached the Commissioner of Karachi for the filing of an appeal. The argument against the competency of the Commissioner to direct filing of the appeal was that on the 18th July 1962 the Commissioner of Karachi possessed no powers as a Provincial Government, since on a much earlier date, namely, the 1st July 1961, Karachi, which had been one time the Capital of the Federation and later was designated as Federal Territory with effect from the 15th July 1960 under the President's Order No. 2 of 1960, had become merged in the West Pakistan Province so that all powers appertaining to the Provincial Government thereafter became vested in the Provincial Government of West Pakistan. The second consideration on which leave was granted was that in accepting the prosecution evidence as they have done, the learned Judges had not taken into account a number of reasons which had moved the Sessions Judge to reject the evidence of the prosecution witnesses. We do not propose in this judgment to enter into the merits of the case for the reason that it appears to us to be quite clear that on the relevant date, namely, the 18th July 1962, the Commissioner of Karachi was completely divested of powers of a Provincial Government that had been until the 1st July 1961 exercised by him and his predecessors since the making of the Capital of Federation Order of 1948. We would like to endorse, however, what has been said by the learned Judges of the High Court in the last paragraph of their judgment that the trial Judge "who dealt with this case, had written a very perfunctory and slipshod judgment". The trial Judge's judgment gives the clear impression that the complexities of the case were more than he could cope with. That is not to say, however, that we B agree with the view formed with reference to the evidence and circumstances by the learned Judges in the High Court. We could only do that if we ourselves had examined the evidence, and that we have not found it necessary to do. Section 417, Cr: P. C., reserves to the Provincial Government the right to direct the Public Prosecutor to present an appeal to the. High Court from an original order of acquittal as in this case. In this case, the' Commissioner's action was evidently based on the belief that, like his predecessors since the 'year 1948, who were at different times described as Administrator and Chief Commissioner, he possessed in himself, and could exercise, all the Din powers of a Provincial Government. On a careful examination of the relevant instruments, we are satisfied that this belief was unfounded. The question was raised before the learned Judges of the High Court and from the judgment it would appear that the whole series of instruments from the year 1948 onwards was placed before the Court. The first relevant instrument that needs to be mentioned is the Establishment of the Federal Capital Order, 1948 which provided that the executive authority in respect of Karachi was to be exercised by the Governor‑General, either directly or through an Administrator and that on the 23rd July 1948, Karachi should cease to form part of the Province of Sind. The boundaries of the Federal Capital were defined with particularity in Parts 1 and 2 of the Schedule to this Order. By a notification of the same date, the Administrator of Karachi as he was then called was invested with all the powers of the Government of Sind to be exercised in respect of the new Administrative unit of Karachi. The next significant change in relation to Karachi took place when the new Province of West Pakistan was constituted to 1955. The territories of the Province were defined in section 2 of the West Pakistan (Establishment) Act, where the previous administrative units that were being combined into a single Province were enumerated, and in sub section (2) there was a specific exclusion of the territory of the Capital of Federation which had been defined in the Order of 1948. It was laid down that the Capital of the Federation shall be administered in accordance with section 290‑A of the Government of India Act, 1935. Section 290‑A provided for power to the Governor‑General to demarcate an area out of the Province to be the Capital of the Federation and to make provision for its Government and Administration, such as he may teem necessary and proper. This Act was passed on the 3rd October 1955, but previously on the 27th March 1955, the Governor‑Generals Order No. 4 of 1955 had been passed, by which it was laid down that the West Pakistan Province was to include Karachi, but not such area "as may be specified by order of the Governor‑General as the Federal area". By the specific exclusion of the Capital of the Federation from the operation of the Establishment of West Pakistan Act, 1955, this particular provision must be deemed to have been. superseded. It should be mentioned that in 1952, the Capital of the Federation had been designated as a Chief Commissioner's Division. Following after the passing of the Establishment of West Pakistan Act, the Governor‑General made an Order No. 22 of 1955, on the 7th December 1955 called the Capital of the Federation Order, which was to be deemed to have come into force on the 14th October 1955, the date on which the Establishment of West Pakistan Act, 1955 was enforced. By section 2 of this Order, it was laid down that the executive authority of the Capital of the Federation shall be exercised by the Governor‑General to such an extent as he thinks fit through the Chief Commissioner to be appointed by him. The delay in the making of this Order appears to have been due to the fact that through oversight section 290‑A of the Government of India Act, 1935, had been deleted, from the Government of India Act, 1935, by the Establishment of West Pakistan Act, 1955 and it was not until this section was restored in the Government of India Act, 1935 that the Order of the 7th December 1955 was made. Under this Order as well, the Chief Commissioner was invested with all the powers of Provincial Government in respect of the Order of Federal Capital, as the delegate of the Central Government. Thus, from the year 1948 onwards until the making of the Order last‑mentioned, the Federal Capital area was administered by the agent of the Central Government which possessed in respect of this area all the powers of a Provincial Government as well as the powers of the Central Government. The delegation of powers by the Central Government to the agent variously described as Administrator or Chief Commissioner or Commissioner was made under power derived from the Constitution, and it has been seen that the powers so delegated were those of the Provincial Government under the Constitution and all existing laws. It is important to note that the agent did not possess any powers in himself. All powers of a Provincial Government that he exercised were powers delegated to him by the Central Government, which was also the Provincial Government in respect of the Capital area. A number of orders were made subsequently in 1958, 1959 and 1960 in respect of the Federal Capital area all of which however proceeded on the basis that the Central Government was vested with all powers in respect of this area including the powers of Provincial Government. In 1960, the seat of the Central Government was moved to Rawalpindi and the Seat of the Government Order, 1960 was passed, which altered the designation of Karachi from "Capital of the Federation" to "Federal Territory" and laid down that this Federal Territory "shall continue to be administered by the President, from such day forward as he may appoint, acting to such extent as be may think fit through an agent to be appointed by him." At that time, the President exercised extra‑Constitutional powers in pursuance of a Proclamation of the 7th October 1958 and it was under these powers that the Seat of the Government Order, 1960 was passed, as well as the subsequent Order, namely, the Karachi (Federal Territory) Order, 1960, by which certain specified areas were carved out of the West Pakistan Province and added to the Federal Territory, and thus the Administration of the Province of West Pakistan ceased to be the Provincial Government for this additional area as well. The next significant instrument for consideration is the President's Order No. 9 of 1961, also made under extra Constitutional powers. By the effect of Articles 2 and 3 of this Order, on the 1st July 1961, (i) the Federal Territory of Karachi became a part of West Pakistan; and (ii) the Federal Territory of Karachi ceased to be administered as Federal Territory and became known as the Karachi Division of West Pakistan and was to be administered accordingly. The main purpose of this Order was made plain by the opening words of the preamble, reading as follows:‑‑ "Whereas the Federal Territory of Karachi is to be merged into the Province of West Pakistan;" and the operation was effectively carried out by the Article quoted above. Article 8 of this Order provided that all persons serving immediately before the 1st July 1961 under the Central Government "in connection with such affairs of the Specified Territory as would have been the affairs of the Province had the Specified Territory been a Governor's Province", were to be deemed from that day "to be persons serving under the Government of West Pakistan". Such a person was the Commissioner of the Karachi Division, that being the new designation of the Administrator of the one time Federal Territory and we may note here also that the function in question in the present case being one relateable to law and order, under the Criminal Procedure Code, it was a function which belonged to the executive authority of the Province. The effect of Article 8 is clearly to make the Commissioner a person serving under the Government of West Pakistan, in respect of this function. Article 10 of the 'Merger Order, 1961, made provision for powers to be exercised by officials of the one time Federal Territory. In the first clause, it was provided that notwith standing anything to the contrary in any law, rule or order, the Administrator, being now known as the Commissioner, was to "exercise the same powers and functions as hitherto subject to the general supervision and direction of the Government of West Pakistan," until the laws and rules in force in the Federal Territory should be altered; repealed or amended. Provision was also made in this clause for the powers of the Collector of the Karachi District, who was re designated as the Deputy Commissioner of Karachi. In a separate clause there was made provision for officers of lower status, to continue to exercise their powers and discharge their functions as before until the laws and rules aforesaid should be altered, repealed or amended. In their case, care was taken to mention that they would perform their duties subject not only to the control of the Provincial Government, but also to that of the appropriate Head of Department and other subordinate authorities. The argument in favour of the view that even after the passing of the Merger Order of 1961, the Commissioner of Karachi Division continued to exercise powers of a Provincial Government such as were possessed by his predecessor, namely, the Administrator, is based solely on the wording of Article 10, which has been paraphrased above in relation to the Commissioner, namely, that he was to have the same powers as the Administrator subject only to the general supervision and direction of the Government pf West Pakistan. This was the view placed before the Court by the learned Advocate‑General of West Pakistan. The argument to the contrary effect is founded on the basis that the Order of 1961 was intended to bring about the merger of the Karachi Federal Territory into the Province Of West Pakistan and that this was carried into effect specifically and in positive terms by Articles 2 and 3 of the Order. Care was taken in these two Articles to declare not only that the Karachi Federal Territory should be a part of West Pakistan; but that it should also be known as the Karachi Division of West Pakistan and finally that it should be administered accordingly, that is to say, like any other Division of West Pakistan. In no other Division of West Pakistan, was it conceivable that the Commissioner should have powers of the Provincial Government except by delegation from the Provincial Government itself. Any argument for possession of these extraordinary powers by the new Commissioner of Karachi Division must depend upon the Commissioner having his powers from a source other than the Provincial Government, that is to say from the Central Government and since the Central Government had ceased to exercise powers of Administration as a Provincial Government in respect of the Karachi Federal Territory from the 1st July 1961, the possibility of the earlier delegation of the Provincial Government's powers by the Central Government to the said Commissioner remaining in force was excluded, equally with the possibility of any fresh delegation of such powers. Clearly, the question was one of very great importance and of no little intricacy. We may be permitted to record our regret that the learned Judges in the High Court, being under duty to analysis and expound the relevant constitutional instruments, in their application to the facts of cases before them, appear not to have availed themselves of the opportunity provided by the present case to clarify this matter for the future benefit of officials and others, operating and living under the laws. The manner in which the learned Judges dealt with this question may be fairly described as follows. They have made out a catalogue of Orders and Notifications commencing from 1948 until the 1st November 1960, briefly enumerating the effect produced by each, and then have gone on to reach a conclusion, in the following terms: "The merger of Karachi took place on 1st July 1961 under Notification No. S. R. O. 27(R), dated 29th June 1951. Under Article 7 (this should really he Article S) of the President's Order No. 9 of 1961, West Pakistan Administration (Merger of the Federal Territory of Karachi) Order 1961, under which Karachi was merged all laws that were in force before the merger of Karachi were ordered to remain in force. In view of all the, enactments and notifications referred above, it is quite clear that the Commissioner of Karachi exercises the powers of the former Government of Sind under all enactments." On this simple argument, the learned Judges held that because the Government of Sind as Provincial Government had the power referred to in section 417, Cr. P. C., therefore, on the 18th July 1962, the Commissioner of the Karachi Division possessed the necessary power to direct the filing of the appeal before them. The conclusion was reached without any effort to resolve the apparent conflict between the provision relating to the Commissioner of Karachi in Article 10 and the total merger of Karachi as a Division in the Province of West Pakistan carried out by Articles 2 and

3. It is obviously difficult to accept an interpretation which has the effect of creating two co‑equal Provincial Governments within a part of the same Province. If Article 10, in its reference to the Commissioner of the Karachi Division, be construed in the manner suggested for the State by the learned Advocate‑General, then indeed such s result is unavoidable. But it is clear that Article 10 is really of special and residuary nature. It is designed to secure that all officials employed in the one time Federal Territory on duties relating to Provincial functions, from the Commissioner downwards, should cease to be subordinate as such officials to the Central Government and should come completely within the general supervision and control of the West Pakistan Provincial Government. There was special provision made for the Commissioner and the Deputy Commis sioner, these being the officials in whose hands the largest powers were concentrated under a wide variety of statutes, some Central and others Provincial, many of them belonging to the pre Partition period, and to different phases in the Constitutional development of the sub‑continent, and all these powers had to be preserved. Powers under the Central Statutes were exercised by these persons in the period when they were Central Government servants by direct authorisation under such statutes. Powers of a Provincial Government were exercisable by the Commissioner by delegation to him by the Central Government under the authority of the Constitution. Whereas in section 417, Cr. P. C; the power is directly exercisable by a Provincial Government the effect of the earlier authorisation of the Commissioner or his) predecessors was not to invest him with the power, in his own P right, but only as a delegates of the Central Government, which in fact was the Provincial Government for the Federal Territory. When the merger took place, the power to delegate, as well as the delegated powers, became non‑existent. That position seems plain enough, but there were probably cases where the line of power was equally or even more complicated and the result of the merger was not so clear, and to‑ meet such cases it was necessary that there should be a general provision made for the preservation of such powers, so that there should be no vacuum of power in the administrative field. Article 10 seems clearly to be designed to meet the last‑mentioned purpose. It has a residual and precautionary character. But the effect of such a precautionary provision cannot possibly be extended to nullification of the main purpose of the Order of 1961, namely, the replacement of the Central Government by the West Pakistan Provincial Government, in all spheres properly pertaining under the Constitution and the law to the Provincial Government. As has been said already, unless the delegated power possessed by the Commissioner in a Provincial field can be imagined to have survived withdrawal from the scene, i.e., the sphere of Provincial executive power, of the delegator itself, viz., the Central Government, the argument presented for the Provincial Government in the present case by the learned Assistant. Advocate‑General cannot possibly) succeed. The learned Attorney‑General, who attended at the request of the Court to assist in resolving this difficult question, was of the view that the total withdrawal of the Central Government from the field of Provincial executive action in respect of the Karachi Federal Territory did not take effect until the Constitution of 1962 came into force from the 8th June 1962. It should be mentioned that the new Constitution takes no account of Karachi as a separate administrative unit; in other words, it treats of Karachi as simply a part of the West Pakistan Province and nothing more. Reliance was placed for the purpose of this argument by the learned Attorney‑General on some observations contained in the judgment of the Court delivered in the case of Muhammad Azhar v. The Commissioner of Karachi (P L D 1906 S C 253). That was a case where after an enquiry against a Development Officer of the West Pakistan Basic Democracies Department, which enquiry ended on the 6th January 1962, a notice was served on the officer by the Commissioner of Karachi on the 28th December 1962 to show cause why he should not be dismissed. On the 5th April 1962, the Basic Democracies Rules had been altered so that the power of removal of a Development Officer was reserved to the Provincial Government. The judgment of this Court notes that counsel appearing on behalf of the Commissioner was unable to contend that the Commissioner had jurisdiction on the 28th December 1962 to pass an order of removal of the Development Officer in question: The questions which arose for decision in the case were (1) whether the Commissioner had the power on the 28th December 1962 to issue the show‑cause notice, (2) whether he could thereafter order removal of the Development Officer, and (3) whether if the case be regarded as one of termination of service by notice, even that could be done by the Commissioner. The answer to each question that has been given in the judgment is against the existence of the power in the Commissioner to do these acts and it is evident that this was based on the fact that on the 5th April 1962, the rules in question had been amended so that authority to pass an order of removal became vested in the Provincial Government. The show‑cause notice was served on the 28th December 1962. That was a date subsequent to the amendment of the rules and, as is provided by Article 10 of the Merger Order of 1961, after such an amendment the Commissioner could not act under the powers he previously possessed. But that is not equivalent to saying that, on a true construction of the Merger Order of 1961, the Commissioner continued to have all powers of Provincial Government until there should be amendment in the relevant law. In this case, that law is contained in section 417 of the Criminal Procedure Code. The effect upon the continuance of the Commissioner's power under that section is to be derived in the present case from a proper construction of Articles 2 and 3 against Article 10 of the Merger Order of 1961. The following observation made in the judgment in the case of Muhammad Azhar has some slight bearing on this question:‑ "When Karachi was merged in West Pakistan by President's Order No. 9 of 1961, a similar provision (i.e., continuing any laws in force in Karachi) was made not only with respect to the applicability of laws, but also with respect to persons exercising powers of discharging functions in Karachi before the 1st July 1961, who were to continue to discharge those functions till the repeal or amendment of the laws under which they exercised their functions, but who were henceforth to be under the control of the Government of West Pakistan instead of the President." It is evident that this passage contains no more than a paraphrase of the relevant portion of Article 10 of the Merger Order of 1961. It does not purport to interpret or apply that provision to the facts of Muhammad Azhar's case. That the Attention was focused on the rules appears from the words used, in continuation of the passage quoted above, viz.:‑ "The rules applicable to the Government servants remained applicable to them in spite of the merger of Karachi in West Pakistan till the 26th April 1964, when by a notification of the West Pakistan Government the rules made applicable to those who were previously employees of the. Central Government, but were now serving under the West Pakistan Government in Karachi." In this case, as has already been seen, it is not repeal or amendment of section 417, Cr. P. C., that is to be looked for. What has to be sought is the point at which the power of the Administrator who later became the Commissioner of Karachi Division, exercisable as a Provincial Government, under section 417, Cr. P. C., came to an end. The Merger Order of 1961 contains sufficiently positive indications in Articles 2 and 3 that with effect from the 1st July 1961, the Central Government withdrew from the sphere of the Provincial executive section in respect of the Karachi Federal Territory and simultaneously the West Pakistan Provincial Government assumed the full powers of the Provincial Government in respect of that territory in the sphere of Provincial executive action, including power to act under section 417, Cr. P. C. Even although the order was made during the period of Martial Law, nevertheless the demarcation between the executive powers of the Centre and those of the Province, as laid down in the Constitution of 1956, was clearly maintained during that period, vide, Article 5 of the Laws (Continuance in Force) Order 1958, which should be read with Article 2(1) thereof. The earlier delegation by the previous Provincial Government, i.e., the Central Government, became ineffective and in the Absence of a fresh delegation by the West Pakistan Provincial Government, the Commissioner of the Karachi Division became divested forthwith of all power to act under that section. This conclusion disposes of a further argument which the learned Attorney‑General sought to advance, namely, that the Commissioner of Karachi Division became seized of the matter whether or not to direct filing of an appeal against the acquittal on the 30th April 1962, which was a date prior to the enforcement of the present Constitution. Even on that date, viz., the 30th April 1962, on the view taken above, the Commissioner of Karachi Division did not possess in himself power of the Provincial Government exercisable under section 417, Cr. P. C: In the course of the arguments our attention was drawn to three notifications issued by the Provincial Government, on the 27th January 1962, the 7th February 1962 and the 3rd May 1965, purporting to withdraw from the Commissioner, Karachi Division, powers of the Provincial Government previously exercised by him. This action, it was argued, supported the existence of a belief in the mind of the Provincial Government that the said Commissioner continued, in relation to the matters with which the notifications were concerned, to possess, in himself, the powers of a Provincial Government. It is not necessary to examine these notifications in detail, for the purposes of this judgment. With reference to the power given to a Provincial Government by section 417, Cr. P. C., no doubt can be entertained, for the reasons we have already given, that the delegation of those powers to the Commissioner, Karachi Division came to an end on the day on which (1) the delegator, viz., the Central Government, ceased to be the Provincial Government for the Federal Territory, (2) that Territory assumed the' status of a Division of the West Pakistan Province and began to be administered as such Division, and (3) the Commissioner, Karachi Division, became a "person serving under the Government of West Pakistan," who could not exercise any power belonging to that Government, under law, except under delegation or authorisation. For these reasons, we are clearly of the view that the appeal in this case was not competently presented by the Public Prosecutor, and therefore all proceedings in the appeal before the High Court were null and void. We accordingly allow this appeal and setting aside the order of the High Court restore that, of the Sessions Judge acquitting the present appellants. A.H Appeal allowed.