P L D 1960 Lahore 236 (PLP)

B. Z. KAIKAUS, J.‑

This is an appeal by the State against the acquittal of Muhammad Sharif respondent in respect of an offence under section 6 of the Control of Essential Commodities Ordinance V of 1956 read with section 4 of the Essential Commodities (Control of Distribution) Order, 1953. The allegation against him was that he had sold a torch cell at a price higher than that which was fixed by the Controller General under the Order mentioned above. The facts are that Atiq‑ur‑Rahman, Inspector Price Control, having received information that torch cells were being sold above the controlled price at Chowk Lakshmi Building, Lahore organized a raiding party, the members of which, including himself, were Muhammad Iqbal, Assistant Inspector, Prices and Supplies, Sher Muhammad, Assistant Sub‑Inspector of Police and Muhammad Shafi, a peon in the Prices Control Department, who was to act as a bogus purchaser. The person of Muhammad Shafi was searched and two currency notes of Re. 1 each were handed over to him. Muhammad Shafi went to the shop of A. M. Khokhar, of which the respondent Muhammad Sharif is admittedly the salesman. Muhammad Shafi purchased two torch cells from the shop and paid Rs. 1‑8‑0 for each (sic). On signal from Muhammad Shafi, the raiding party arrived at the spot. It recovered annas 8 from the person of Muhammad Shafi as well as two torch cells. The respondent, in accordance with the allegations of the prosecution, produced the two notes Exhs. P.‑1 and P. 2 which had been handed over by Muhammad Shafi in payment of the price of the torch cells. The price of the torch cells had been fixed by the Controller General at annas 5, each, so that the respondent was said to have recovered annas 14 more than the controlled price.

2. The respondent accepted that he was the salesman and that Muhammad Shafi had purchased the two torch cells from his shop on payment of Rs. 1‑8‑0, but he did not accept that it was he who sold the torch cells. He stated that it was a small boy present in the shop who was responsible for the sale.

3. The learned Magistrate, who tried the respondent, did not accept respondent's defence on the merits and held that it was he who bad sold the torch cells. It was contended before the learned Magistrate, however, that Ordinance V of 1956, under section 6 of which the respondent was being prosecuted, had expired six weeks after the meeting of the National Assembly in September 1956, i.e., on the 18th of November 1956, and as the Ordinance was only a temporary statute, there could not, in accordance with, Crown v. Haveli (P L D 1949 Lah. 550) and Habib Ullah v. The Crown (P L D 1955 Lah. 396), be any prosecution under an expired Ordinance. This contention was accepted by the learned Magistrate and the respondent was acquitted.

4. Before proceeding to consider the correctness of the ground on which the learned Magistrate acquitted the respondent, it will be proper to state in brief the history of the legislation which relates to the Essential Commodities (Control of Distribu tion) Order, 1953. Orders of this nature had originally been promulgated under the Essential Supplies (Temporary Powers) Act of 1946. The life of this Act which was to remain in force for a particular period was subsequently extended by a number of statutes, to which it is not necessary to refer. Suffice it to say F that by Ordinance X of 1955 the Essential Supplies (Temporary Powers) Act was repealed. In fact, it was to expire on the 31st of March 1955 and the repeal was only a formal one. The Essential Commodities (Control of Distribution) Order had been promulgated under the Essential Supplies (Temporary Powers) Act, and by section 17 of Ordinance X of 1955, orders made under the Essential Supplies (Temporary Powers) Act acquired the force of. orders made under the Ordinance X of 1955. Ordinance X of 1955 was repealed by Essential Supplies Ordinance IV of 1956, a short time before it was presumed to expire. Ordinance IV of 1956 enacted the same provisions as existed in Ordinance X of 1955. Ordinance IV of 1956 was repealed and substituted by Ordinance V of 1956. Ordinance IV had been promulgated at a time when the Assembly was in session. This mistake was realised and Ordinance V was enacted in its place when the Assembly was not in session. It was Ordinance V of 1956 which was in force at the time of the occurrence, which is the subject‑matter of the charge in the present case. This Ordinance was in its turn repeal ed and substituted by Ordinance XXI of 1956 on the 17th of November 1956, i.e., one day before it was to expire. Subsequently, on the 6th of March 1956 there came the Essential Supplies Act which contained substantially the same provisions as the Ordinance.

5. Ordinance X of 1955 had been promulgated under section 42 of the Government of India Act in pursuance of a proclamation of emergency issued under sections 1 and 2 of the Government of India Act, Ordinances IV and V of 1956 had been promulgated under Article 69 of the late Constitution. Under Article 69, every Ordinance promulgated by the President was to expire six weeks after the meeting of the National Assembly. As already stated, those six weeks terminated in the case of Ordinance V of 1956 on the 18th of November 1956. Orders were in this case pronounced by the learned Magistrate on the 22nd of January 1957. The argument accepted by him was that as the prosecution was under Ordinance V of 1956, which was a temporary statute, no prosecution in respect of an offence created by this temporary statute could be continued after it had expired.

6. It was held by a Full Bench of the Lahore High Court in Crown v. Haveli that when a temporary statute expires, a prosecution under it comes to an end, for a temporary statute when it expires, is deemed never to have existed except for trans actions past and closed. In that case the accused had been tried under the Punjab Disturbed Areas Act by virtue of which dacoity had been made punishable with death and that statute having expired it was held that the accused could no longer be punished in accordance with its provisions. The proposition accepted in that case was that every statute, temporary or otherwise, when it comes to an end, is deemed never to have existed, but that on account of section 38 (2) of the Interpretation Act, 1889, which is reproduced in section 6 of our General Clauses Act, the repeal of an enactment saved rights and liabilities which have accrued and proceedings which were pending, but this, it was said, was due to express enactment and the ordinary rule would apply in the case of expiry.

7. In view of this Full Bench Judgment, it is clear that a prosecution under Essential Commodities Ordinance V of 1956 could not be continued after the date of expiry, i.e. the 18th of November 1956. On behalf of the State it was urged that this case is to be distinguished from Crown v. Haveli because in this, case Ordinance V of 1956 had been repealed by Ordinance XXI of 1956 on the 17th of November 1956, i.e. one day before its expiry and, therefore, section 6 of the General Clauses Act will be applicable, with the result that the prosecution under the Ordinance will be saved. It is obvious that if section 6 was applicable, there will be no bar to the continuance of the prosecu tion, for pending proceedings are expressly saved by that section, but the question is whether the provisions about repeal would have application to a temporary statute, so as to carry the effect of a temporary statute beyond its original life. It appears to us that the answer to this question can only be in the negative. If the Ordinance was to expire on the 18th of November 1956 and the effect of its expiry was to make it non‑existent, except for trans actions past and closed, the mere repeal of it a day before its expiry could not have given it greater effect than it could originally have. There does not seem to be any objection to the proposition that by a repeal a statute will not have effect for a longer term than it would otherwise have had. All that section 6 of the General Clauses Act means is that in spite of the repeal a statute is deemed to be in force in respect of the particular matters enumerated in that section, i.e., its original life would continue in spite of the repeal, but section 6 certainly does not mean that by the repeal it would be in force even after the period for which it was legally to be in force as enacted. We are not inclined, therefore, to accept the argument that on account of the repeal, this prosecution could have continued.

8. An argument was offered in this connection on behalf of the respondent that the extension of the life of an Ordinance by means of anther Ordinance, or the re‑enactment of its provisions by another Ordinance was itself unconstitutional, because Articles 69 and 102 of the late Constitution, which empowered the President and the Governor to promulgate the Ordinances provided for the expiry of the Ordinances six weeks after the meeting of the National or the Provincial Assembly and it would be a violation of the provisions of Articles 69 and 102 if the Ordinances are allowed to be re‑enacted and their lives extended. This point has been exhaustively considered by a Full Bench of this Court in Tirathmal v. The State (P L D 1955 Lah. 396), where it has been laid down that there is no objection to re‑enactment of the provisions of an Ordinance, though there is a technical bar to a simple provision for continuing the life of an expired Ordinance. In this case there was only a re‑enactment of the provisions of the expiring Ordinances, and none of these Ordinances is liable to any objection on this score.

9. In spite of the fact that Ordinance V of 1956, had expired at the time when orders were pronounced in the present case, we are of opinion that the present prosecution should have continued. The reason is this : Ordinance X of 1955 which followed the Essential Supplies (Temporary Powers) Act was not a temporary statute, as this Ordinance existed at the time when the late Constitution came into force and by virtue of Article 224, as held by their Lordships of the Supreme Court in Jibendra Kishore etc. v. The Province of East Pakistan (P L D 1957 S C (Pak.) 9), it became a permanent statute. It bad been repealed in the first instance by Ordinance IV of 1956, which was invalid in itself having been promulgated during the continuance of the Assembly session and then by Ordinance V of 1956. This Ordinance V of 1956, was itself a temporary statute which expired on the 18th of November, 1956. When a temporary statute repeals a permanent statute, the repeal remains effective only till the life of the temporary statute E and when the temporary statute expires, the permanent statute again emerges. On the 18th of November, 1956, therefore Ordinance X of 1955, again became operative law. The Essential Commo dities (Control of Distribution) Order, 1953, had acquired the force of an order promulgated under Ordinance X of 1955, and therefore this Order too remained a law even after the expiry of Ordinance V of 1956. The prosecution of the respondent, therefore, was competent under section 4 of the Essential Commodities (Control of Distribution) Order, read with section 6 of Ordinance X of 1955. An objection has been raised on behalf of the respondent that in this case the charge was for an offence under section 6 of Ordinance V of 1956, and not section 6 of Ordinance X of 1956. We do not think it should make any difference. The Ordinances are in identical terms and the respondent is not in any way being prejudiced by the fact that it is Ordinance V of 1956, and not X of 1955, which is mentioned in the charge‑sheet.

10. One contention raised on behalf of the respondent was that torch cells were not contained in the Schedule to the Essential Commodities (Control of Distribution) Order at all, although there was a notification with respect to the maximum price by the Controller General, and in the absence of an entry in the schedule, of a particular article, there could be no fixation of its price by the Controller General. The legal position put forward is sound, i.e., unless an article is entered not only in the schedule to the Ordinance X of 1955, but also in the Schedule to the Essential Commodities (Control of Distribution) Order, its maximum price cannot be fixed by the Controller General, but we find that the Schedule to the Essential Commodities (Control of Distribution) Order was amended by the Ministry of Industries' Notification No. P. C. 6 (9) 1/56 at page 1545 of the Gazette of Pakistan dated the 31st of August, 1955, and torch cells were added to the Schedule.

11. Learned counsel for the respondent has put forward two contentions on the merits. The first is that in this case a proper opportunity had not been afforded to the respondent to produce his defence. It is pointed out that before the framing of charge the respondent had put in an application to the Magistrate praying that he be discharged on the ground that the Ordinance under which he was being prosecuted had expired. On this application no orders were passed by the learned Magistrate rejecting or accepting it, and the learned Magistrate proceeded to frame a charge. After the charge, the respondent did make a statement that he did not want to produce any defence. The grievance is only this‑ that the learned Magistrate did not decide the application and had he done so the respondent would have produced some defence evidence. We do not see how the learned Magistrate was forced to decide the application one way or the other. If he was of the opinion that the prosecution did not abate, he could not give a finding on this point before he passed the ultimate order of conviction or acquittal. In any case, it is not contended that the learned Magistrate had given any indication of his mind that he was going to acquit and, therefore, the respondent was prevented from leading the defence evidence. In fact, learned counsel for the respondent expressly conceded that the learned Magistrate did not give any such indication. Under the circumstances, we do not think the respondent should now be entitled to a further opportunity to produce defence.

12. The second contention is that in this case the evidence does not make out a case against the respondent. That the bogus purchaser had purchased the torch cells for a sum of Rs, 1‑8‑0 is not denied. The plea put forward is the same as was taken in the lower Court, that it was a boy who was present in the shop who had sold the cells and not the respondent. We have gone through the whole of the record. We find that all the prosecution witnesses have stated that the respondent had produced the two notes which had been delivered by Muhammad Shaft in payment of the price of the torch cells. Only to one of these witnesses a question was put as to where from the notes had been taken and he said that they were taken from the ghalla which means the cash box. The boy, who is said to have sold the cells has not been produced and no defence evidence has been led to prove that it was in fact he who sold these cells. The respondent is admittedly the salesman of the shop and in the ordinary course it would be he who will be selling the torch cells. We do not entertain any doubt as to the guilt of the respondent.

13. We accordingly convict the respondent of an offence under section 6 of the Essential Supplies (Continuance of Temporary Powers) Ordinance X of 1955, read with section 4 of the Essential Commodities (Control of Distribution) Order 1953. We do not think, however, that we should award a sentence of imprisonment in the present case. The respondent being only the servant of the person who actually takes the benefit. We think it will be sufficient to award a sentence of a fine of Rs.

500. The respondent is allowed the period of two weeks to pay the amount of fine. In default of payment of fine, he should undergo simple imprisonment for a period of two months. [On the office pointing out that the appeal was against Abdul Majid also, the following paragraph was appended to the judgment] In Criminal Appeal No. 609 of 1957, which was an appeal by the State against the acquittal of Muhammad Sharif and Abdul Majid, the case on behalf of the State was argued as if the only respondent in the case was Muhammad Sharif and no reference was made to Abdul Majid during arguments. As a consequence, we dealt with the case of Muhammad Sharif only and convicted him. It has now been pointed out by the office that the appeal related to Abdul Majid also. The State had not claimed that he should be convicted and, in any case, there was no material on the file to connect Abdul Majid with the offence and we dismiss the appeal of the State as against him. K.B.A. Order accordingly.