P L D 1954 Lahore 236 (PLP)

In both the appeals the appellant is the Provincial Govern ment which has questioned the acquittal of Wali Dad respondent under section 33 (1) (e) of the Forest Act (XVI of 1927). In the case which is the subject of Criminal Appeal No. 113 of 1952, the accused was Wali Dad against whom the allegation was that he had cultivated a part of a forest which was protected forest for the purposes of the Forest Act of 1927 and had thereby been guilty of an offence under section 33 (1) (c) of that Act. Wali Dad was sentenced under section 33 of the Forest Act, 1927 to pay a fine of Rs. 20 or in default to undergo rigorous imprisonment for fifteen days. He appealed to the Additional District Magis trate, Rawalpindi, who, by his order dated the 31st of October 1951, acquitted him. It is this order of acquittal, which is ques tioned by the Provincial Government in Criminal Appeal No 113 of 1952. In the case which is the subject of Criminal Appeal No. 114 of 1952, the accused persons were Wali Dad and his two sons, Ali Shah and Qurban, and the charges were under section 33 (1) (c) of the Forest Act of 1927, and section 447 of the Pakistan Penal Code. This case was heard by the same Magistrate who heard the case against Wali Dad. The final order of the trial Magistrate in this case was that Ali Shah and Qurban were acquitted but Wall Dad was sentenced to pay a fine of Rs. 20 in default of payment of which he was to undergo rigorous imprisonment for fifteen days under section 33 (1) (c) ‑of the Forest Act of 19

27. The appeal of Wali Dad against his conviction in this case also was heard by the Additional District Magistrate, Rawalpindi, who dealt with it by the same judgment as the other appeal, and accepted it. The acquittal of Wali Dad in this case is questioned by the Provincial Government in Criminal Appeal No. 114 of 1952. The learned Additional District Magistrate did not go into the merits of the cases because he was of the view that the con viction of Wali Dad could not have been recorded as it was not established that by cultivating the land alleged to have been cul tivated by him he had contravened any prohibition under sec tion 30 of the Forest tact of 1927. The learned counsel for the Crown contended that the forest, a part of which the respondent was alleged by the prosecution to have cultivated was a protected forest for the purposes of Chapter IV of the Forest Act of 1927, and, therefore, the cultiva tion of a part of it made the respondent liable to punishment under section 33 (1) (c) of that Act. Section 29 of the Forest Act of 1927 authorises the/Provincial Government to issue a notifica tion declaring that Chapter IV of the Act was to apply to any forest‑land or waste‑land which is not included in a reserved forest as defined in Chapter II of the Act. When such a notification is issued, the land mentioned therein is to be deemed to be a protected forest for the purposes of the Forest Act of 1927. By section 30 of the Forest Act of 1927, the Provincial Government is authorised to issue a notification which may, hater alia. prohibit the breaking up or clearing for cultivation * * * * of any land in such forest. ' Clause (c) of subsection (1) of section 33 of the Forest Act of 1927 enacts that if any person, contrary to any prohibition under section 30 of the Act, breaks up or clears for cultivation or any other purpose any land in any protected forest, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. The notifications contemplated by sections 29.and 30 of the Forest Act of 1927 had not been issued by the Provincial Government but two noti fications dealing with the matter were‑issued as long ago as the 17th of February 1887, which are notifications Nos. 63 and 64 dated the 17th February 1887, published in part I of the Punjab Gazette dated the 17th of February 1887, at pages 52 to

54. These notifications were issued under section 28 and clauses (a) and (c) of section 29, respectively, of the Indian Forest Act (VII of 1878) which Act was repealed by section 86 of the Forest Act (XVI of 1927). The argument which prevailed with the learned Additional District Magistrate was that as the Indian Forest Act of 1878, under which Notifications Nos. 63 and 64 dated the 17th of February 1887, were issued, had been repealed, the notifications became dead‑letters and ought to be deemed as non‑existing. It appears that the learned Additional District Magistrate did not advert to section 24 of the General Clauses Act which reads as under:‑‑ "Where any Central Act or Regulation is, after the com mencement of this Act, repealed and re‑enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye‑law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re‑enacted, continue in force, and be deemed to have been made or issued under the provisions so re‑enacted, unless and until it is super seded by any appointment, notification, order, scheme, rule, from or bye‑law made or issued under the provisions so re‑enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5‑A of the Scheduled Districts Act, 1874, or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and re‑extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re‑enacted in such area or part within the meaning of this section. The question to consider, therefore, is if the Notifications Nos. 63 and 64 of 1$87 were inconsistent with the provisions of sections 29 and 30 of the Forest Act (XVI of 1927). I have compared sections 28 and 29 of the Indian Forest Act (VII of 1878) with sections 29 and 30, respectively, of the Forest Act (XVI of 1927) and find that they correspond to each other in all material respects. As there is no material difference between sections 28 and 29 of the Indian Forest Act (VII of 1878), under which Notifications Nos. 63 and 64 of 1887 were issued, and sections 29 and 30 of, the Forest Act (XVI of 1927), the notifications will continue in force till they are replaced by notifications issued under the Forest Act of 1927, which has not been done so far. The effect of Noti fications Nos, 63 and 64 of 1887, therefore, is that the forests mentioned in Notification No. 63 of 1887 are protected forests for the purposes of Chapter IV of the Forest Act (XVI of 1927) and the prohibition contained 1'n Notification No. 64 of 1887 against the breaking up or clearing of any land for cultivation or building etc. also continues in force. In arriving at his conclusion, that the notifications issued under the Forest Act of 1878 did not hold good under the Forest Act of 1927, the learned Additional District Magistrate relied on a decision of the Allahabad High Court in Benares Bank Ltd. v. Shri Sri Prakasha Bhagwan Das and others (A I R (33) 1946 All. 269.) wherein it was held that section 6 of the General Clauses Act had no application where an Act had been repealed and bad been followed by fresh legislation. It appears to have escaped the notice of the learned Additional District Magistrate that in the Allahabad decision the section considered was section, 6 of the General Clauses Act which did not deal with the precise point which arose in the cases before him, namely, whether or not a notifica tion issued under an Act which was replaced by another continues in force for the purposes of the new Act. The question for consider ation in the present cases was not any of the ones mentioned in sec tion 6 of the General Clauses Act, 1897, and therefore, the decision of the Allahabad High Court, relied upon by the learned Additional District Magistrate, could be of no assistance. In the first information report made against the accused persons it was said that they had trespassed on land of forest No. 16 Dhar Jaws. In Notification No. 63 of 1887, Forest Dhar was mentioned at No. 8 of the Murree Tehsil of the Rawalpindi District and as it was not clear to which forest the report related, additional evidence was called in this Court, Ghulam Jilani Abbasi Range Officer, Murree Hills Forest, was examined as a witness and by reference to the working plans approved by the Punjab Government in 1915 and 1927, has proved that Compartment No. 16 and Dhar Jawa Forest were the same things as Dhar Protected Forest of Notification No. 63 of 1887. It is clear that the learned Additional District Magistrate set aside the convictions of the respondent on entirely erroneous grounds. As mentioned already, the learned Additional District Magistrate did not consider the two appeals before him on merits and I would, therefore, accepting both the Government appeals remand the case to the learned Additional District Magistrate, Rawalpindi, for the decision of the appeals of Wali Dad on merits in the light of the remarks made above. S. A. RAHMAN, J.‑I concur. A. H. Case remanded.