P L D 1957 (W P) Lahore 935 (PLP)

ORTCHESON, J.‑

This order will dispose of six connected Criminal Revisions Nos. 981 to 986 of 1956, filed by the State from the orders of the Additional District Magistrate, Lahore, dated the 30th of January 1956, upholding, those of Mr. M. Jaleel, Magistrate 1st Class, Lahore, dated the 19th of November 1955, discharging the respondents, who had been prosecuted under section 7 of the Essential ,Supplies (Conti nuance of Temporary Powers) Ordinance, 1955, on the ground that the Ordinance was invalid. The learned trial Magistrate gave no finding on the merits except in case No. 443/1, 36/3, out of which Revision No. 984 arises. In that case he expressed the opinion that the bogus purchaser had not supported the prosecution and that the case must fail on that ground also. The orders of the learned trial Court are founded on the contention that as Ordinance X of 1955, on which the prosecution of the respondents was based, was not laid before the Dominion Legislature, it automatically expired six weeks from the opening date of the session in question. The State, on the other hand, contends that although, under section 8 (1) of the Indian Independence Act, 1947, the powers of the legislature of the Dominion were to be exercisable in the first instance by the Constituent Assembly of that Dominion, references in the Act to the legislature of the Dominion being construed accordingly, the effect of the said section is that till the passing of the new Constitution the Constituent Assembly continued to perform a double function, and that before it can be said that the Assembly was sitting as the legislature of the Dominion, there must be some proof of its having acted in that capacity as opposed to exercising its normal functions as a constitutional body. The position adopted by the State as outlined above is sound, and before Ordinance X of 1955 can be held to be invalid on the ground that it was not placed before the Dominion Legislature, the respondents must establish that the Constituent Assembly, when it met in Murree on the 7th of July 1955, performed both the functions conferred on it by section 8 of the Indian Independence Act. The learned trial Magistrate apparently appreciated the point, but dis posed of it in a manner, the brevity of which is equalled only by its vagueness. The relevant passage runs: "The Constituent Assembly of Pakistan which also functions as Dominion Legislature (the Constituent Assembly and the Dominion Legislature being the same body) had its first sitting oil the 7th of July 1955. During this and the subsequent sessions, it is well known this House had passed certain Acts, revalidated a few others and also made amendments in some of the existing Acts. In view of this it is futile to say that the Constituent Assembly did not sit as Dominion Legislature during the last sessions". The same point was again raised before the learned Additional District Magistrate, who dealt with it as follows :‑ "No doubt the learned Magistrate did not specifically mention the Acts which the Federal Legislature passed or revalidated in its legislative capacity, but the counsel for the respondent has cited at least two such enactments which cannot, by any stretch of imagination be termed as having any relation to the constitution of the country. These two enactments are Validation of Laws Act, 1955, and Government of India (Amendment) Act, 1955. My attention. is also invited to section 18 of the Government of India Act, 1935, where it is laid down that any reference in the Act to the Federal Legislature shall be construed as reference to the Constituent Assembly". The opinion of the learned Additional District Magistrate that the passing of the two enactments to which he has referred "cannot be termed as having any relation to the constitution of the country" is a somewhat astonishing one. Taking first the Government of India (Amendment) Act, 1955, it is obvious that an Act amending the Government of India Act, which up to 1956 formed the basis of the con situation of the country, must itself be a constitutional enactment. Had the learned Additional District Magistrate examined the Validation of Laws Act somewhat more closely, he would have found that in addition to prescribing the date on which the Government of India (Amendment) Act, 1954, a con stitutional enactment, was to come into force (section 3), the schedule of laws to be validated consisted very largely of con stitutional Acts, e.g., the Indian Independence (Amendment) Act, 1948 and a series of amendments of the Government of India Act. Only the Constituent Assembly could deal with constitutional Acts, the Federal Legislature being incompetent to do so. In addition to the above Acts cited before the learned Additional District Magistrate, Mr. Fazl‑e‑Ghani called atten tion to another, the Speaker and Deputy Speaker (Salaries and Allowances) Act, 1955, which, according to his con tention, was passed by 'the Constituent Assembly in its capacity of legislature of the Dominion. A reference to the Act, however, show, that the salaries fixed by it were those of the Speaker and Deputy Speaker of the Constituent Assembly of Pakistan and it is clear that only the Constituent Assembly v acting as such could lay down the emoluments of its Speaker and Deputy Speaker. This Act, therefore, does not help the respondents. Section 18 of the Government of India Act carries the matter no further. It provides only that the Constituent Assembly, in addition to its own functions, is to carry out those of the Federal Legislature, and in no way refutes the argument that before the Constituent Assembly can be held to have been acting as the Federal Legislature, it must be proved by specific instances that it did so. I accordingly hold that as the respondents have failed to show that the Constituent Assembly, during its sittings in Murree from the 7th of July 1955, performed any functions in its capacity of Federal Legislature, the omission to place Ordinance X of 1955 before it does not mean that the Ordinance in question expired six weeks after the opening date of the Constituent Assembly session. The matter does not, however, rest there, some fresh argu ments having been raised before me by learned counsel for the respondents. It is pointed out that one important difference between section 42 of the Government of India Act and Article 69 of the Constitution of the Islamic Republic of Pakistan is that whereas, under the former, an Ordinance could validly be promulgated even during a session of the Assembly, Article 69 of the new Constitution limits the making or promulgation of Ordinances to those periods when the National Assembly is not sitting. It is further pointed out that Ordinance IV of 1956, was promulgated on the 25th of April of that year, at a time when the National Assembly was in session. The Assembly was summoned on the 25th of March 1956, and was prorogued on the 3rd of May. It must, therefore, be conceded that Ordinance IV of 1956 was invalid, which, in all probability, explains why it was followed on the 10th of May 1956, a week after the Assembly had been prorogued, by Ordinance, V of 1956. and why that Ordinance repealed not only Ordinance IV of 1956 but also Ordinance X of 1955. The effect of the invalidity of Ordinance IV of 1956 must now be considered. The answer is simple An invalid Ordinance is obviously incompetent to repeal or otherwise affect any preceding enactment, and Ordinance IV of 1956 may, therefore, be treated as non‑existent. It was next urged that the National Assembly again met on the 25th of March 1956, and that as Ordinance X of 1955, was not placed before it the said Ordinance lapsed six weeks from the 25th of March i.e., on the 6th of May 1956. Under other circumstances, this contention must have prevailed, but unfortunately for the respondents, Article 224 (1) of the new Constitution lays down :‑ "Notwithstanding the repeal of the enactments mentioned in Article 221. and save as is otherwise expressly provided in the Constitution, all laws (other than those enactments) including Ordinances, Orders‑in‑Council, Orders, rules, bye‑laws, regulations, notifications and other legal instruments in force in Pakistan or in any part thereof or having extra‑territorial validity, immediately before the Constitu tion Day, shall, so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate legislature or other competent authority." Ordinance X of 1955 was admittedly in force immediately before the Constitution Day and was, therefore, saved by the constitutional provision quoted above until repealed by[ Ordinance V of 1956. It was next argued that as a result of the repeal of Ordinance X of 1955, all prosecutions launched under it were automatically rendered inoperative, but there is no force in this contention. Both section 6 of the General Clauses Act (X of 1897) and section 4 of the West Pakistan General Clauses Act (VI of 1956) provide that, unless specifically laid down, the repeal of an enactment shall not affect any liability incurred under such enactment or any investigation or legal proceeding in respect of such liability. It is further laid down that any penalty, forfeiture or punishment incurred in respect of any offence committed against the repealed enact ment shall be likewise unaffected. Finally, Mr. Fazl‑e‑Ghani contended that as, under the new Constitution, legislation on matters connected with trade and commerce within a Province is a Provincial prerogative (item No. 42 of the Provincial List), Ordinance V of 1956, which, according to the preamble, provided for "price control and trade and commerce between the Provinces, and between a Province and the Federal Capital" became invalid with effect from the 23rd of March 1956. This argument has no force. In the first place, Ordinance V of 1956 did not deal with trade and commerce within any one Province but with trade and commerce between the Provinces and, therefore, did not fall under item No. 42 of the Provincial List. Further, there was no repugnancy between Ordinance V of 1956 and any provi sion of a Provincial Act. So far as the price control aspect of Ordinance V of 1956 is concerned, with the passing of the new Constitution price control became a concurrent subject (item No. 7 of Part II of the Concurrent List) and the Central Legislature continued to have power to pass laws with respect to it, subject, of course, to the provisions of Articles 106 (2) and 110 (2) of the Constitution, neither of which has been in any way infringed in the present case. For the above reasons, I hold that Ordinance X of 1955 was perfectly valid, and that the decisions of the trial Magis trate and the learned Additional District Magistrate to the contrary are incorrect. Had the learned trial Magistrate confined himself to the constitutional aspect of the matter, I would have accepted all the revisions, but with respect to two, namely, Nos. 982 of 1956 and 984 of 1956, he has proceeded on two further grounds. In the case with which Revision No. 982 is con cerned, he pointed out that the Order forming the basis of the prosecution, namely, the Federal Capital (Essential Supplies) Order, 1956, published in a Gazette Extraordinary dated the 25th of April 19‑56, applied to Karachi only, whereas the transaction in respect of which the respondents are being prosecuted was entered into at Lahore, the Order being consequently inapplicable. This contention has considerable force, and I do not consider it necessary to remand case No. 593/1, 58/3 of 1955. With respect to Criminal Revision No. 984 of 1956, the learned Magistrate remarked that the bogus purchaser did not support the prosecution, and I agree that as a result of his having resiled the case against the respondent must fail. For the above reasons, I maintain the order of discharge passed in the cases out of which Criminal Revisions Nos. 982 and 984 of 1956, arise. The other Revisions, namely, Nos. 981, 983, 985 and 986 of 1956, are accepted, the orders of discharge in these cases are set aside, and the records are returned for further proceedings according to law. A. H. Order accordingly.