P L D 1950 F C 15 (PLP)

ABDUL RASHID, C. J.‑

This is an appeal, by special leave, under the Privy Council (Abolition of Jurisdiction) Act, 1950, from an order of a Full Bench of the Lahore High Court, dated the 20th March, 1950. The Governor of the Punjab instituted a case against Khan Iftekhar Hussain Khan of Mamdot, ex‑Premier of the Punjab, under the Public and Representative Offices (Disqualification) Act 1949, which will hereinafter be referred to as the Act. This case was heard by, a Special Bench of the Lahore High Court consisting of the learned Chief Justice and Mr. Justice Cornelius. Both the learned judges held that some of the charges had not been established. In respect of some articles of charge there was a difference of opinion between the two judges'. As no provision existed in the Act as to how the difference of opinion should be resolved, the question was referred to a Full' Bench of the Lahore High Court for consideration. The Full Bench held that the record of the case and the conflicting opinions of the judges should be laid before another judge of tile High Court to be nominated by the Chief Justice. Against this decision, Khan Iftekhar Hussain Khan of Mamdot has preferred the present appeal. The main point that was urged on behalf of the appellant was that the Act was ultra vices the Constituent Assembly of Pakistan. It was contended that under subsection (1) of section 8 of the Independence Act. 1947, the Constituent Assembly of Pakistan was constituted solely for the purposes of framing a constitution for the Dominion, and that it cold not pass any other legislation as a Constituent Assembly. All other legislation could only be enact ed by the Federal Legislature in accordance with the provisions of the Government of India Act, 1935. It was maintained that the Act should have been passed, not by the Constituent Assembly, but by the Federal Legislature of Pakistan, and that it should have received the assent of the Governor‑General of Pakistan in accordance with the provisions of the Government of India Act. The Act, having been passed by the Constituent Assembly and not having received the assent of the Governor General, in accordance with the provisions of the Government of India Act, was void and ultra vires and no case could, therefore, be lodged by the Governor of the Punjab against Khan Iftekhar Hussain Khan of Mamdot. All the proceedings in the High Court of Judicature at Lahore were, therefore, illegal and void. The stand taken up on behalf of the Province of the Punjab was that the Constituent Assembly of Pakistan was a sovereign Legislature and could enact any legislation, irrespective of tile fact that it related to the Constitution of the Dominion or dealt with any other matter whatsoever. The Advocate. General further contended that the activities of the Constituent Assembly could not be confined to the framing of the Constitution of the Dominion. The words of subsection (1) of section 8 of the Independence Act, 1947, are that the Constituent Assembly shall enact legislation "for the purpose of making provision as to the constitution of the Dominion''. The words "for the purpose of making provision as to the constitution of the Dominion" were sufficiently wide to comprise all enactment which could be regarded as constitutional laws. The Act was a "constitutional law" and, therefore, it fell within the purview of the words "for the purpose of making provision as to the constitution of the Dominion" as they occur in subsection (1) of section 8 of the Independence Act, 1947. If the Act falls within the purview of subsection (1) of section 8 of the Independence Act, it is unnecessary to determine, in the present appeal, whether the Constituent Assembly of Pakistan is a completely sovereign body and can frame municipal jaws of alt descriptions, ever: if they do not make provision as to the constitution of the Dominion. It is convenient at this stage to reproduce the provisions of subsection (1) of section 3 of the Act which runs in the following terms :‑ "3 (1).‑Notwithstanding anything ill any other Act for the time being in force any person. who is found guilty by the, Federal Court or a high Court moved in this behalf by an order of the Governor‑Genera' o: a Governor or a Tribunal set up in this behalf by the Governor‑General or a Governor of misconduct in or in any matter relating to his office or capacity as a Minister, Deputy Minister or Parliamentary Secretary of the Federal Government or a Provincial Government or as a member of the ,Constituent Assembly, the Legislature of the Dominion, the Federal Legislature or a Provincial Legislature shall upon the public Notification of an order of tile Governor General in this behalf and for such period not exceeding ten years as the Governor‑General may appoint .in the order, be disqualified for being and for being chosen as a Minister, Deputy Minister or Parliamentary Secretary, whether for the Federal Government or a, Provincial Government, a member of the Constituent Assembly, the Legislature of We Dominion, the Federal Legislature or a Provincial Legislature, any local body or local authority and shall also be ineligible for holding any office of profit under the Crown. It is clear from the above‑mentioned provision of the Act that if a person is found guilty of misconduct in the discharge of his official duties as a minister, etc., he not only ceases to .be a minister but also ceases to be a. member of the Legislature of the Dominion, The Act, therefore, completely deprives the minister of his status as such, if he is found guilty of misconduct under section

3. It is stated in Chalmers Constitutional Law (Sixth Edition, p; 8) "that Constitutional Law deals in general with the distribu tion and exercise of the functions of Government and the relations of the Government authorities to each other and to the individual in his character of a citizen or subject. ‑More specifically. Constitutional Law embraces that part of a country's laws which relates to the following topics, amongst others : the mode of electing the head of the State, whether he be emperor, king, or pre sident his powers and prerogatives ; the constitution of the legis lative body ; its powers and the privileges of its members ; if there be two chambers, their relations mater se: the status of Ministers and the position of the civil service which acts under them :.. " Judged by this criterion, section 3 of the /pct must be regarded as a "Constitutional Law". In any case, an act which deprives a minister of his status as such and even prevents him from remaining a member of the Constituent Assembly or the Legisla ture of the Dominion must be held to be a law made "for the purpose of making provision as the constitution of the Domi nion". If so, the Constituent Assembly and the Constituent Assembly alone could enact such a law. Section 3 of the Act has a saving clause to the effect ; "Notwithstanding anything in any other Aft for the time being in force". The Government of India Act is a law in force in Pakistan. The saving clause, therefore, makes the Act applicable to a minister or. a member of the Constituent Assembly notwithstanding anything to the contrary contained in the Government of of India Act. The provisions of section 3 of the Act have, therefore, modified the provisions of the Government of India Act relating to ministers and members of the Constituent Assembly or the Dominion Legislature. In this view of the matter also the Act must be regarded as one which makes "provision as to the constitution of the Dominion". It is unnecessary to stress the point any further, as, in our opinion, there is no room for any other interpretation of subsection (1) of section 3 of the Indepen dence Act. In view of the above finding, it is unnecessary to deal with the question, whether the Constituent Assembly of Pakistan is a completely sovereign body. For the reasons given, we dismiss this appeal. In view of all the circumstances, we do not pass any, order as to costs. A.H. Appeal dismissed.