(1) PLP 178 (PLD)

YAQUB ALI, J.‑Asghar son of Muhammad Hayat and Asghar son of Sardar Khan, have been convicted of an offence under section 354 read with section 34 P. P. C. and sentenced to six months rigorous imprisonment each for outraging the modesty of Mst. Jamilan (P. W. 1). An appeal taken to the Sessions Judge, Gujranwala, having remained unsuccessful, both the accused have separately come up before this Court in exercise of its reversionary jurisdiction. According to the provisions of the Code of Criminal Procedure, an offence under section 354 P. P. C. is triable in accordance with the procedure laid down for warrant cases in Chapter XXI of the Code. In accordance with the notification issued by the Punjab Government under section 30 of the Punjab Public Safety Act, 1949, the trial of the petitioners was, however, held in accordance with the procedure laid down in Chapter XX of the Code for summons- cases. The learned counsel for the petitioners did not contest before me the findings of the two Courts below on facts but objected to the legality of the trial on the ground that the authority conferred on the Punjab Government to declare certain offences triable as summons‑cases amounted to an abdication of its legislative functions by the Provincial Legislature and as such section 30 Punjab Public Safety Act was invalid and ultra vices. In support of this objection the, learned counsel relied upon an authority of the Federal Court Grow" learned counsel relied The Pakistan Public Sobho Gyanchandani v. Crown (PLD 1952 FC 29). 1949, was to remain in force for a period Safety Ordinance, of Year from the date of its promulgation, i.e., 8th of one year gut by means of inserting a proviso to success October, of section 1 in the Ordinance, the Central Government subsection (3) the power to direct from time to time by notification was given gazette that it shall remain in force for such in the official g further period as may be specified in the notification. Sobho Gyanchandani was ordered to be detained under the Pakistan Public Safety Ordinance, 1949, after its life had been extended by the Central Government and on a similar objection raised in that case, their Lordships of the Federal Court held the proviso to subsection (3) of section 1 to be invalid and ultra vires in so far as it conferred legislative powers on an external authority, namely, the Central Government. After referring to a number of authorities on this point, the learned Chief Justice Sir Abdul Rashid, at page 45 of the report, summed up his conclusions on this point as follows :‑ "To sum up, I am of the view that a legislature cannot delegate its powers of making, modifying, or repealing any law to an external authority. If it does so, it would be creating a parallel legislature. The power of extending the duration of an enactment which would have terminated, but for the interference of the external authority, is the exercise of legislative powers by an external authority and is invalid. Extension of the life of an Act is tanta mount to re‑enactment. It is open to the legislature to delegate powers relating to the enforcement of the act, or its application to particular areas if certain conditions prevail therein, as that merely amounts to conditional legislation". Similarly Cornelius J., after referring to three judgments of the Judicial Committee, Queen v. Burah (LR 5IA 178); Russel v. Queen ((1882) 7 A C 829) and King Emperor v. Benoari Lal Sharma (72 I A 57), at p. 60 of the report observed :‑ "It is undeniable that of the functions which are conferred by a written constitution, the legislative function is by far the most important. I cannot conceive that the constitution making authority when providing for the establishment of a Legislature and conferring powers on that legislature should have intended otherwise than that the powers so conferred should be exercised exclusively by that Legislature. The difficulty which, under the increasing complexity of modern conditions, is felt by all legislatures in making provision for every case which may arise within the contemplation of a statute, renders it necessary for some measure of ancillary power to be delegated to executive authorities to make statutory rules and regulations for carrying into effect the provisions of the statute in matters of detail. Delegation to this extent has been universal practice for a great many years, and such provision will be found in a great number of statutes similarly on the basis of established practice, limited discretion and particular powers may be given to executive authorities to determine the application or operation of statutes in point of time or in relation to places, persons and things". It will be advantageous at this stage to turn to the provisions of section 30 of the Punjab Public Safety Act, to determine, in the light of the dictum of their Lordships of the Federal Court reproduced above, whether the act of the legislature in conferring the authority on the Punjab Govern ment to declare it by a notification that, notwithstanding the provisions of the Code, certain offences shall be triable in accordance with the procedure prescribed for the trial of summons cases, amounts to delegation of legislative functions, thus rendering it invalid and ultra vires. Section 30 is in the following terms :‑ "Procedure for trial of offences.‑(1) In any area the Government may by notification direct that all the offences under this Act, and any other offence under any other law for the time being in force or any class or description of offences, shall notwithstanding anything in the Code be tried in accordance with the procedure prescribed for the trial of summons cases by Chapter XX of the Code, subject in the case of summary trials to the provisions of sections 263 to 265 of the Code". Mr. Khurshid Ahmad, the learned counsel for the petitioners, maintained that according to the true interpretation of the provisions of section 30 reproduced above, the Punjab Legislative Assembly did not itself modify the provisions of the Code relating to the procedure for trial of certain offences but delegated its authority to the Provincial Government. This, however, is not the correct interpretation, because in enacting section 30 the Legislature rendered every offence triable as a warrant‑case under the Code, liable to be tried as) a summons‑case, subject to the issue of a notification] by the Government. It is thus obvious that the authority conferred on the Government comes within the purview of ancillary powers which the legislature was competent to delegate that is to determine the time of the enforcement of an Act or its application to particular areas, after determining certain conditions, if necessary. This, in the words of Cornelius, J. in Sobho Gyanchandani's case, amounted to conferring limited discretion and particular powers given to the executive to determine the application or operation of statute in point of time or in relation to places, persons and things. I, therefore, find no force in the objection raised by the learned counsel regarding the legality of the procedure in accordance with which the petitioners were tried by the learned Magistrate and dismiss petitions Nos. 103 and 198 of 1955, maintaining their respective convictions and sentences. A. H. Petitions dismissed.