P L D 1955 Lahore 396 (PLP)

KAIKAUS, J.--‑This is an application in revision against the order of Mr. C. M. Mansoor, Additional District Magistrate, Gujranwala, refusing to give effect to the plea that the Punjab Paddy and Rice (Movement Control) Order, 1952 having ceased to be operative, any prosecution pending under that order must come to an end. Habib Ullah petitioner is being prosecuted under section 7 of the Punjab Paddy and Rice (Movement Control) Order, 1952, (I may point out here that the learned Additional District Magistrate has regarded the case as one of violation of the Punjab Paddy and Rice (Movement Control) Order, 1953, but this is not correct for the offence was committed on 'the 26th of June 1953 and the Order of 1953 came into force on the 7th of September 1953. On the 26th of June 1953 when .the offence was committed it was the Puniab Paddy and Rice (Movement. Control) Order, 1952, gazetted on the 25th of September 1952, that was in force). Under section 3 of the Essential Supplies (Temporary Powers) Act, 1946, the Central Government is empowered to promulgate orders regulating or prohibiting the production, supply and distribution of a number of articles including foodstuffs. Under section 4 of the same Act, the Central Government can direct that the power granted to it by section 3 be exercised by the Provincial Government. The Central Government has in fact authorised the Punjab Government to exercise powers under section 3 of the Essential Supplies (Temporary Powers) Act, 1946. In exercise of these powers the Punjab Government by notification No. 13506‑DFS 52/3179 dated 24th of September 1952 promulgated the Punjab Paddy and Rice (Movement Control) Order, 1952, by which the transport of paddy by mechanical transport or river craft within the controlled area and by means of trans port from a place within the controlled area to a place outside it is forbidden without a permit from the Director of Food Purchases, Punjab, and any violation of this rule is an offence under section 7 of the same Order. The case against the petitioner is that he had transported paddy without a permit in violation of this Order. By notification No. FP‑1‑53/3282 dated the 7th of September 1952, the Punjab Government promulgated the Punjab Paddy and Rice (Movement Control) Order, 1953. This order is in terms similar to that of 1952 and by it the Order of 1952 was cancelled. By Notification No. 5743‑FP‑1‑54/5279 dated the 13th of August 1954, the Punjab Government cancelled the Punjab Paddy and Rice (Movement Control) Order, 1953. As a result, after that date, there is no order in force. The question for consideration is whether the cancellation of the Punjab Paddy and Rice (Movement Control) Order, 1952, and in any case the cancellation coupled with the fact that on account of the notification of the 13th of August 1954, no Movement Control Order is now in force at all, the pro ceedings against the petitioner with respect to the commis sion of an offence under the Punjab Paddy and Rice (Move ment Control) Order, 1952, are not competent. The argument on behalf of the petitioner is that the Movement Control Order was in the nature of a temporary statute and a temporary statute when it expires is deemed never to have existed except for transactions past and closed and no prosecution under a temporary statute can continue after the expiry of such statute. Reliance is place in this behalf on The Crown v. Haveli (P L D 1949 Lah, 550 (F B)). The facts in that case were that the District of Sialkot had, by a notification of the Punjab Government under the Disturbed Areas Act, been declared a disturbed area on the 31st of May 1947. The effect of this notification was that an offence under section 395 P. P. C. became punishable with death. This notification was withdrawn on the 12th of February 1948. A case under section 395 P. P. C. was instituted against the accused in that case on the 12th of March 1948, but the incident to which it related had occurred on the 4th of February 1948, i.e., at a time when the notification was still in force. So, the offence had been committed at a time when it was punishable with death, but when the challan was put in Court, the offence ceased to be so punishable. The accused were in that case tried and convicted by a Magistrate exercising enhanced powers under section 30, Cr. P. C who could not have heard the case if the offence was punishable with death. The question arose whether the Magistrate had jurisdiction to try the case. The Full Bench held that the notification under the Disturbed Areas Act was in the nature of a temporary statute and that on its withdrawal the accused were no longer liable to be punished with death. The propositions which were accepted in that Full Bench are (1) According to the Common Law of England, every statute when it expired was deemed never to have existed except for transactions past and closed. The effect of statutes that were repealed was saved in England only by section 38 of the Interpretation Act, 1889, which section, however applied only to repeals and not to expiry so that the principle remained applicable to temporary statutes. (2) In Pakistan the principle of English Common Law stated above is applicable ; every statute when it expires is deemed not to exist except for transactions past and closed ; and this principle will be applied in every case in the absence of any legislation affecting it. So far as permanent statutes are concerned, their effect after repeal is saved by section 6 of the General Clauses Act, and by corresponding sections in the Provincial General Clauses Act but these sections do not save the effect of temporary statutes, which are not repealed but expires. (3) In order to determine whether a temporary statute shall have effect after its expiry, we have to look to the statute itself and to find out whether the intention was to extend its effects after its expiry. I have no doubt, after a consideration of the Essential Supplies (Temporary Powers) Act, 1946, and the notification on which the prosecution is based, that the provision under which the petitioner is being prosecuted is in the nature of a temporary statute. In order to determine whether a statute is a temporary statute, one should see, in the first instance, whether it was to remain in force for a limited period and to cease to operate without a repeal. If that be so, there is an end of the matter. However, as would appear from the Full Bench judgment mentioned above, even if the statute be not such as will, but for its own words or on account of some law affecting the period of its operation, remain in force only for a particular period it may still be a temporary statute if it is in the nature of an emergency measure. The Essential Supplies (Temporary Powers) Act, 1946, itself was an emergent measure. The Central Legislature was em powered to enact it by legislation which was itself emergent, i. e., India (Central Government and Legislature) Act, 1946, 9th and 10th George Chapter

39. In section 1 of the Essential Supplies Temporary Powers) Act, 1946, it was provided that it would cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946. That period was originally to expire one year after the Proclamation of Emergency ceased to be operative, but a provision was made for the extension of this period by a resolution of the Federal Legislature subject to a maximum of eight years and it is only by such resolutions and also by means of an amend ment which extends the maximum period from eight to ten years that the Essential Supplies (Temporary Powers) Act, 1946; is still in force. Apart however from the fact that the Essential Supplies (Temporary Powers) Act, 1946, was itself a temporary measure, there is another way of looking at the matter. The Movement: Control Orders which were being promulgated under the Act are themselves in the nature of temporary statutes. I have stated above that the first relevant Order was promulgated in 1952 and was called The Punjab Paddy and Rice (Movement Control) Order, 1952. In the year 1953 a new Order was notified, though it was in the same terms.‑ It was called The Punjab Paddy and Rice (Movement Control) Order, 1953, and it cancelled the previous Order of 1952. It is obvious that these Orders were being promulgated from year to year to suit particular circumstances and were not intended to be permanent. They were not promulgated for the whole of the Punjab, but for particular controlled areas which were being altered from time to time. In this view of the matter, it should be obvious that the provision under which the petitioner is prosecuted is in the nature of a temporary statute and that the prosecution is no A longer competent. But it is not necessary even to decide whether it is a case of a temporay statute. I have stated above the principle of the Common Law of England which has been followed in India and Pakistan. To repeat, that principle lays. down that a statute, perm;inent or temporary, ceases after its termination to have any effect except for transactions past and closed. This principle ill fail to apply only if the effect of the statute after expiry be extended by (1) another statute or by (2) something in the statute itself (if it be temporary statute, for a permanent statute obviously cannot contain provisions governing its effect after its termi nation). The only legislative provisions in Pakistan which extend the effect of a statute are section 6 of the General Clauses Act and corresponding provisions in the Provincia. General Clauses Act which are in identical terms. Section 6 of the General Clauses Act applies only to a case of repeal. In this case an order promulgated under section 3 of the Essential Supplies (Temporary Powers) Act, 1946, has been cancelled by means of a subsequent notification. ' Whatsoever may be said about the analogy between a cancellation and a repeal, a cancellation is certainly not a repeal arrd the effect is not saved by section

6. Unless therefore there be some‑ B thing in the provision itself which extends its effect beyond its expiry, it is obvious that. the proceedings should be quashed. Learned counsel for the Crown relies on section 1 (3) of the Essential Supplies (Temporary Powers) Act, 1946, which I quote below :‑ 1 (3). "It shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946, except as respects things done or omitted to be done before the expiration thereof, and section 6 of the General Clauses Act, 1897, shall apply upon the expiry of this Act as if it had then been repealed by a Central Act." Learned counsel contends that section 1 (3) points to an intention to extend the effect of an order passed under the Act in accordance with section 6 of the General Clauses Act. The difficulty, however, is that in the present case the Essential Supplies (Temporary Powers) Act, 1946, has not expired and section 1 (3) applies only if the Act itself expires. Of course, the result is that if instead of the Punjab Paddy and Rice (Movement Control) Order being cancelled by a subsequent notification, the Essential Supplies (Temporary Powers) Act, 1946, itself came to an end during the time that the Control Order was intended to be in force, a prosecution could continue. But section 1 (3) obviously does not govern the present case. The effect of this section at the utmost is to make the Essential Supplies (Temporary Powers) Act a permanent Act in this respect and to give its expiry the same effect as the repeal of a permanent Act. Even if the Essential Supplies (Temporary Powers) Act, 1946, was a permanent Act and under such an Act orders which had the force of law were promulgated from time to time which orders were intended to remain in force for a particular period to serve a particular purpose, then such orders would be in the nature of temporary statutes and on the cancellation of an order they prosecution under that order would be incompetent. Learned counsel for the Crown has another contention to put forward. He says the act of the petitioner in transporting paddy was not only an offence under the Punjab Paddy and Rice (Movement Control) Order, 1952, but also under section 7 of the Essential Supplies (Temporary Powers) Act, 1946. That section provides that any person who contravenes an order under section '3 shall be punishable with imprisonment for a term which may extend to three years. Truly, it was not necessary to make a provision in the Punjab Paddy and Rice (Movement Control) Order that the violation of the order would he an offence, though there is such a provision in section 7 of the Order. Learned counsel contends that as the Essential Supplies (Temporary Powers) Act, 1946, cannot, on account of section 1 (3), be regarded as a temporary statute, a prosecution under section 7 of the Act can continue even after the cancellation of the order. I have no hesitation in rejecting this argument. It is the combined operation of section 7 of the Act and the notification by the Government that makes an act an offence. The withdrawal or cancellation of the notification amounts to the expiry of a law which created an offence. I hold, therefore, that, under the circumstances, this prosecution under the Punjab Paddy and Rice (Movement Control), Order, 1952, cannot continue. I may point out here that there is a parallel order, i.e., the Punjab Paddy (Restriction of Sale and Movement) Order, 1953, which too prohibits the transport of paddy. I do not know whether that Order has been cancelled and whether a prosecution can be continued under it, for the matter has not been argued before me. This revision petition is accepted and the proceedings in so far as they are under the Punjab Paddy and Rice (Move ment) Control Order, 1952, are quashed. A. H. Petition accepted.