P L D 1957 Dacca 101 (PLP)

ISPAHANI, J.

I have had the advantage of reading the exhaustive judgment prepared by my learned brother and I agree with him. I wish, however, to add a few words. Under the East Pakistan (Food Control of Movement and Distribution) Ordinance, 1956, being East Pakistan Ordinance XII of 1956, Special Courts manned Military Personnel were constituted to try certain kinds of offences with a view to speedy trial. Such Courts were expected to function judicially and not arbitrarily and to convict an accused only on strict and legal proof of his guilt. Of such evidence there is none in this case and it has not been proved that the prisoner committed any offence under the impugned Ordinance. His conviction and sentence, therefore, cannot be upheld. MURSHED, J.

This is a petition for the issue of a writ of habeas corpus or an appropriate writ or order or direction of like nature under Article 170 of the Constitution of the Islamic Republic of Pakistan. For a proper appreciation of this case, it is necessary to set out the genesis and background of this case which are as follows: On the 9th July 1956, the Governor of East Pakistan in the execution of the powers conferred on him Article 102 of our Constitution was pleased to make and promulgate an Ordinance, which is East Pakistan Ordinance XII of 1956. This is the impugned Ordinance and is styled as the East Pakistan Food (Control of Movement and Distri bution Ordinance), 1956. In the preamble it sets out that this Ordinance was enacted with a view to provide for powers to control the movement and distribution of foodstuffs in East Pakistan and for setting up of Courts for speedy trial of offences in relation thereto. The Ordinance casts a duty on the Provincial Government to appoint a Chief Food Administrator who will be responsible for overall control and distribution of foodstuffs in the Province and it further provides that the Provincial Government may on the recommendation of the Chief Food Administrator appoint Additional District Magistrates (Food) and Additional Sub-Divisional Magistrates (Food) and that such Magistrates shall have the powers of a Magistrate of the First Class under the Code of Criminal Pro cedure, 1898. Such Magistrates, called Special Magistrates, were to try and punish offences under the Ordinance and offences specified in the Schedule in relation to foodstuffs committed within their territorial jurisdiction. By section 4 of the Ordinance, the Provincial Government was empowered in consultation with the Chief Food Administrator to notify orders for controlling the prices of and for regulating the storage, movement, inspection and distribution of foodstuffs. The Ordinance confers upon the Special Magistrate juris diction to try offences which came within the mischief of the said Ordinance and ousts the jurisdiction of all other Courts to try such offences. It also confers on the Special Magistrate the power to punish offences in respect of the Ordinances with imprisonment for a term which may extend to 2 years or with fine or with whipping not exceeding 10 stripes or with any two of them or with all of them as to the Special Magistrate, trying cases for contravention of the Ordinance, may seem fit and proper. This Ordinance makes a substantial and widespread encroachment into the pro visions of the Code of Criminal Procedure, 1898. It lays down that the offences under the Ordinance will be tried summarily within the frame-work of the Code of Criminal Procedure although the said Code provides for such trials warrant procedure as specified in the Code. The Ordinance also ousts the jurisdiction of all Courts to hear appeals and revisional applications in respect of such trials, notwith standing the provisions of the Code of Criminal Procedure. It also provides that such provisions of the Code of Criminal Procedure as are inconsistent with the Ordinance will not apply to trials conducted thereunder. It makes offences punishable under the Ordinance cognizable and non-bailable. It also provides that no order made in exercise of any power conferred by or under the Ordinance shall be called in question in any Court. Such is the drastic nature of the Ordinance. Immediately after its promulgation the General Officer Commanding, Eastern Division, was appointed the Chief Food Administrator under the Ordinance and various Army Officers were appointed Additional District Magistrates (Food) and Sub-Divisional Magistrates (Food) and such Magistrates were also appointed as Special Magistrates. It is thus evident that by virtue of the provisions of this Ordinance, the Provincial Government embarked on a risky experiment from the point of view of the administration of justice, however expedient the other provisions of the said Ordinance might have been, in view of the food situation in the country. The present petition is by one 'Joslemuddin Sikdar, who is a full brother of the prisoner Abdul Barik Sikdar who was held in detention in Gopalganj sub-jail, Faridpur district on and from the 17th July 1956, under an order dated the 17th July 1956, purported to be made under section 6 of the East Pakistan Food (Control of Movement and Distribution) Ordinance, 1956, East Pakistan Ordinance, XII of 1956). In the petition various statements, allegations and submissions have been made. They may be briefly stated as follows:- (1) That the prisoner was detained as noticed above and is still in detention; (2) That the prisoner is a citizen of Pakistan and also President of Baram Union Board, Gopalganj, Faridpur. (3) That Abdul Barik Sikdar, the brother of the petitioner, was arrested along with 3 others on the 17th July 1956, at about 4 a.m. at his village home at Bashunia P. O. Gopalganj, Faridpur, by some Army Officers assisted by local Ansars. He was then taken to Gopalganj Police Station at 7 a.m. the same day. From there he was taken to Mission Hostel of the Quaid-e-Azam College, Gopalganj, where the Court of the Special Magistrate under the aforesaid Ordinance was held at 2 p.m. (4) That thereafter the said Abdul Barik Sikdar along with others were produced at about 3 p.m. before the Additional Sub-Divisional Magistrate (Food) who was appointed Special Magistrate under the said Ordinance. That it was alleged before the said Special Magistrate that the prisoner Abdul Barik Sikdar was in possession of a certain quantity of paddy. (5) That when the prisoner was produced before the Special Magistrate, he made a prayer that he be given an opportunity to consult and be defended by a lawyer of his choice, namely, Moulvi Khondkar Shamsul Haq. That the said prayer was refused and the prisoner was unde fended. No lawyer was allowed to be present during the trial and the petitioner and those interested in the prisoner were excluded at the time of the trial. (6) No memorandum of evidence was recorded nor was the procedure in respect of summary trials as provided for in the Code of Criminal Procedure observed. (7) That no evidence was led to prove that the prisoner, the said Abdul Barik Sikdar, was guilty of hoarding, That the prisoner was convicted although he had committed no offence within the mischief of the Ordinance or of any law prevalent in the country. That the prisoner was sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of Rs. 400. (8) That after the conviction of the prisoner and the sentence passed on him, the prisoner prayed for a certified copy of the order of conviction and sentence passed on him on the 17th July 1956. The said Special Magistrate refused such prayer. It was submitted that the purported trial was illegal, void and ultra vires and that the conviction of the prisoner and the sentence passed on him were wholly without jurisdiction, illegal and void. The purported trial was conducted in violation of Article 17 (1) of the Constitution of the Islamic Republic of Pakistan and in breach of the fundamental rights of the citizens guaranteed by the Constitution. It was also submitted that the aforesaid Ordinance was ultra vires of the said Constitution: In these circumstances it was prayed that this Court should issue a writ of habeas corpus or an order or a direction of the like nature for the discharge of the prisoner and for setting him at liberty. On this petition a Rule nisi was issued by this Court calling upon the respondents to show cause why a writ of habeas corpus should not issue or such order or direction be given as prayed for in the petition. Thereupon affidavits were filed by the respondents and the records of the impeached proceeding were produced and also affidavits in reply were filed by and on behalf of the prisoner. To enable the prisoner to instruct his lawyers and to enable him to file an affidavit, this Court directed that the prisoner be transferred to the Dacca Central Jail and he is now detained there. The prisoner, Abdul Barik Sikdar, has sworn and affidavit in which he has made certain statements and allegations, portions of which may be quoted as follows:- Para. 2. "The Special Magistrate did not tell me what the charge against me was nor did he ever mention a word regarding 220 maunds of paddy. Para. 3. "I had asked my cousin Abdus Sattar when I was arrested in my village at Basunia to go at once to Mvi. Khandkar Shamsul Huq, who has appeared for me in several cases before and whom I engage in all my cases and request him to defend me in Court. Later when I was in Court, an Ansar approached me and told that my brother bad asked me to ask the Magistrate to allow a lawyer to defend me. I am not quite certain whether I took the name of Mvi. Khandkar Shamsul Huq but I certainly asked for a lawyer to defend me. The Magistrate refused my prayer loudly with a strong attitude. No body was allowed to enter the room. There was no outsider, no lawyer and all those who came from my village had to stand outside behind the fencing of the Court room including my brother." Para. 4. "That the Magistrate thereafter asked some body something of which I did not understand a word. I saw no one taking the oath. He did not take down anything in writing nor did he ask me to cross-examine the person whom he had questioned nor did he ask me about my defence nor did he ask me for my statement. All of a sudden I found that I had been convicted of something, which I did not know. I thereafter asked him for certified copies of papers but this was refused and I was taken to jail When my relatives came to see me in jail I asked them to apply for certified copy of the papers and get me released." Para. 6. "I deny that I have hoarded any foodgrains. I am the head of my family which consists of 45 members living in the same mess. I am also the owner of 105 acres of land where both aus and aman paddy is sown." Para. 7. "It is wholly incorrect to say that I was aware of the order printed in the Gazette of the 17th July 1956." Para. 9. "I have seen what purport to be the certified copy of the proceedings alleged to have taken place during my trial. I deny that these are the copies of the proceedings as nothing was taken down by the Special Magistrate during my presence at the time of my trial and nothing was placed on record." One Abdus Sattar, a cousin of the prisoner has also sworn an affidavit, portions of which are quoted as follows: Para. 1. "That I am a cousin of Abdul Barik Sikdar who was arrested from his village house Basunia at about 4 a.m on 17th July 1956.", Para. 2. "That at the time of his arrest he asked me to engage Mvi. Khandkar Shamsul Huq, a well known and senior Muktear of Gopalganj Bar whom he always, engages in his litigations." Para. 3. "That I approached Mvi. Khandkar Shamsul Huq at about 1 p.m. on the 17th July 1956 and informed him of the arrest of Abdul Barik Sikdar and requested him to defend him before the Court of the Army S. D. O." Para. 4. "That Mvi. Khandkar Shamsul Huq explained to me that lawyers were not permitted by the Army S. D. O. to appear before him and told me that he would be ready to appear if the Army S. D. O. gave permission." Para. 5. "That thereafter, I came to the Court and wanted to go inside the Court room along with others interested in Abdul Barik Sikdar but no one was allowed to enter the Court room and we had to remain outside. Then I requested an Ansar who was standing at the door to go to Abdul Bank Sikdar and to tell him that Mvi. Khandkar Shamsul Huq was ready to appear if lie got the permission and that Abdul Barik Sikdar should ask for that permission, I then came and stood on the other side of the fencing, a few cubits behind Abdul Barik Sikdar and saw the Ansar speaking to Abdul Sikdar after which Abdul Barik Sikdar asked the Army S. D. O. to allow him to be defended by a lawyer. The Army S. D. O. refused in loud and threatening voice. Then after some talks in Court I heard that Abdul Barik Sikdar had been convicted to imprisonment of 2 years and a fine of Rs.

400. Thereafter I ran to Mvi. Khandkar Shamsul Huq and told him all that had taken place and thereafter I ran to my shop at Gopalganj where I carry business of cloth, collected Rs. 400 and paid the fine on the same day. After that I saw Abdul Barik Sikdar is being taken to jail." Para. 6. "That when I saw Abdul Barik Sikdar next day in jail he asked me to consult Mvi. Khandkar Shamsul Huq and take all the necessary steps to get him liberated. I and the members of the family were very afraid to take any step because we had all been terrorized by the Army personnel and the Army S. D. O. and we were afraid that if we took any step we will also be hauled up and punished on some pretext or other. On the pleadings, however, of Abdul Barik Sikdar, we plucked up courage and requested Mvi. Khandkar Shamsul Huq to apply for papers with urgent fees. As no copies of the proceeding were given to us 1 again approached him to file another application." Mvi. Khandkar Shamsul Huq, a lawyer of Gopalganj, has also sworn an affidavit and has corroborated the said Abdus Sattar, cousin of the prisoner in all material particulars. Portions of his affidavit reads as follows:- Para. 2, "That on the 17th July 1956, at about 1 p.m. Abdus Sattar, a maternal cousin of Abdul Barik Sikdar, came to me. I was then in the Muktear Library, which is situated about 100 cubits from the Court of the Special Magistrate. He informed that Abdul Barik Sikdar, whom I knew from before, as he is a regular client of mine, had been arrested at about 4 a.m. by the Army personnel and he was going to be produced before the Additional Sub-Divisional Magistrate (Food) and Special Magistrate. He told me that Abdul Barik Sikdar had asked him immediately after his arrest to inform me and that he wanted me to defend him before the said Magistrate." Para. 3. "That as it was to my knowledge that no lawyer had been allowed to appear, in any case tried previously, and that the Army Special Magistrate had declared that he would not allow any lawyer to enter his Court room. I explained the position to him and told him that I was ready to appear and defend Abdul Barik Sikdar provided the prior permission of the Special Magistrate to that effect was obtained." Para. 4. "That thereafter Abdus Sattar left for the Court of the Special Magistrate and came back to me at about 3-30 p.m. and told me that he could go up to the verandah of the Court room, but could not go inside, being prevented by the sentry at the door; that he had caused Abdul Barik Sikdar to be informed that he should get the permission of the Magistrate to be defended by me; that Abdul Barik Sikdar bad done so but the Magistrate had refused him permission; that thereafter, Abdul Barik Sikdar was sentenced to two years' rigorous imprisonment and a fine of Rs. 400." Para. 6. "That I asked my junior, Abdus Salam; a Muktear, to file the necessary application with urgent fee before the S. O. N. (Civil), but, in spite of the fact that under the rules, it is incumbent to ask for the folios imme diately and the copies are to be supplied within 24 hours, neither the folios were asked for nor were the copies supplied." Para. 7. "That thereafter I instructed my junior to file a fresh application with urgent fee for a certified copy of the application previously filed, but neither the folios were asked for nor has the copy of the first application been supplied up to date." Para. 8. "That I have seen the certified copy of the pro ceedings supplied by the Court, and on the face of it, it is clear that the certified copies were held back even though the applications for copies were made with urgent fees. If the aforesaid two applications filed by my junior are sent for, the position will become quite clear." On behalf of the respondents affidavits were filed by Lieut. Muhammad Afzal, Additional Sub-Divisional Magis trate (Food) and Special Magistrate, Gopalganj, District Faridpur, and also by a Deputy Secretary' Home Department Government of East Pakistan. The affidavit of the Deputy Secretary need not be quoted here. The affidavit of the Lieut. Muhammad Afzal, the Special Magistrate, is a traverse of the allegations and submissions in the petition made on behalf of the prisoner. Same portions of his affidavit may be quoted as follows: Para. 9. "That with reference to paragraph 10 of the petition I state that the allegation in the said paragraph is false. P. W. 1 Muhammad Ayub, a Habildar was examined and the memorandum of his evidence shows that the said Abdul Barik Sikdar had hoarded about 220 maunds of paddy." Para. 11. "That with reference to paragraph 12 of the petition I state that evidence has been adduced regarding hoarding and it has been proved that the said prisoner hoarded about 220 maunds of paddy in contravention of the Notification given under section 4 of Ordinance II of 1956." Para. 12. "That with reference to paragraph 14 of the petition: I state that under section 4 (1) of the Ordinance XII of 1956 the Chief Food Administrator can by notified order provide for regulating, by permits or license or otherwise, the storage, movement, inspection and distribution of foodstuff. That by Notification No, 6507 F. 1). dated the 16th July 1956, read with Notification No. 129 F. D. dated the 15th February 1956, published in the Dacca Gazette (Extraordinary), dated 17th February 1956 amended Notification No. 6545 F. D. dated 17th July 1956, which has reduced the quantity of rice from 6 maunds to 4 maunds and paddy from 9 maunds to 6 maunds . . . . " Para. 14. "That I state that it is further provided in the said notification published in the Dacca Gazette Extraordinary dated 17th July 1956, i.e., 8 days after the promulgation of Ordinance X11 of 1956, what is the quantity of foodstuff which can be kept by a family or a bona fide agriculturist and I submit that the statement in paragraph 14 of the petition to the effects that the offence of hoarding if any, is not punishable under the aforesaid Ordinance is not correct and is based upon ignorance of the notification dated 17th July 1956, stated herein." The affidavit then proceeds to make various submissions with regard to the provisions of the Code of Criminal Procedure and the Constitution of Pakistan. It also contains some denials of facts of which he cannot have any personal knowledge. It is clear-that the conviction of the prisoner was based on an infringement of a notification dated 17th July 1956. The relevant Notification No. 6545 F D. 17th July 1956, reads as follows:- "In exercise of the power conferred by sub-clause (1) of clause 7 of the East Bengal Foodstuffs Price Control and Anti-Hoarding Order, 1943, as amended from time to time, read with section 4 of the East Pakistan Food (Control of Movement and Distribution) Ordinance, 1956, the Governor, in consultation with the Chief Food Administrator, is pleased to direct, in supersession of Notification No. 1291 F. D., dated the 15th February 1956, that no family shall have in its possession or control food stuffs in excess of the quantity calculated at the rate of four maunds of rice or six maunds of paddy for every member of the family: Provided that a bona fide agriculturist may keep in addition one maund of Aman paddy per acre of Aman land and one maund of Aus paddy per acre of Aus land under his cultivator for use as seed. This will remain to force till the 30th November 1956." This notification does not use the "hoarding" specifically but prohibits the possession. of any quantity of rice or paddy in excess of the quantity allowed by law, which will be calculated on the basis of 4 maunds of rice or 6 maunds of paddy for every member of the family. Thus mere possession of a quantity of rice or paddy (whatever the quantity may be) is no contravention of this, notification and is not an offence under the said Ordinance. Possession of rice or paddy in excess of the quantity allowed by this notification will be an infringement of this notification and will be punishable under the Ordinance. What the excess amount is can only be determined on the basis of the numerical strength of the family constituting the house hold. The records of the impugned trial which purported to be a summary trial are very scanty. There was only one witness whose evidence was recorded as follows: No. 3237171 Hav. Muhammad Ayub, 7 Baluch Regt. Det. at Gopalganj. "I was detailed to have a surprise check of Mr. Abdul Bari Sikdar's house by my Comd. I reached at about 0100 hrs. in the premises of his house. I called the occupant of the house and did not receive any reply. On knocking the door, Mr. A. Bari Sikdar opened the door. I told him that I wanted to search his house. I went round the house and found that he had about 170 mds. of paddy lying in his house. Then we searched another house and found that he had fifty maunds of paddy in the house belonging to the accused. Then we asked him to accompany us and report ed back in times." It is thus clear that on the 17th July 1956, a notification came into existence and in the eye of law the notification took effect on the midnight following the 16th July. An hour after the notification (which by a fiction of law became effective at midnight) took effect, the house of the prisoner was searched and 220 maunds of paddy were found in two houses of the homestead of the prisoner. No attempt was made to find out the numerical strength of the household of the prisoner. The prisoner was marched off under arrest for having committed an offence in violation of the said notification of which he could not have any knowledge unless by a psychic process. The prisoner was arrested at his house shortly after midnight, detained in custody and convicted on his production before the Special Magistrate in the afternoon. We have set out the evidence and it will be seen that on such trumpery the prisoner was convicted and sentenced to suffer rigorous imprisonment for two years (the maximum period which the Magistrate could inflict) and to pay a fine of Rs. 400 and in default to undergo a further period of imprisonment for 6 months. No attempt was made to prove that the prisoner was in possession of paddy in excess of a quantity which was allowed by law. At the hearing of the petition Mr. H. S. Suharwardy, counsel, appeared for the petitioner, the learned Advocate- General for the Chief Secretary, Mr. D. C. Roy for the Special Magistrate (Food), Lieut. Muhammad Afzal, and for the District Magistrate and Mr. M. A. Hamid, counsel, for the Sub-Jailor. Mr. Suhrawardy characterized the conviction of the prisoner and the sentence passed on him as wholly without jurisdiction and completely void and illegal. He characterized the sentence as shockingly excessive and in assailing the detention of the prisoner, he pressed the following points: (2) That in the present case the facts conclusively establish that there was no contravention of any provision made under or deemed to be made under Ordinance XII of 1956. In these circumstances he submitted that the Special Magistrate was not competent to assume jurisdiction under the Ordinance and to convict and sentence the prisoner under it. The conviction of the prisoner and the sentence passed on him was, therefore, wholly without jurisdiction and was void and illegal. He, therefore, urged that this was a fit case where a writ of habeas corpus should issue from this Court and that the prisoner should be discharged and set at liberty. (3) He further submitted that the purported trial was a mistrial and no trial under the eye of law, inasmuch as it proceeded on a violation of the guaranteed fundamental right of the prisoner as a citizen of Pakistan, as provided for in Article 7 (1) of the Constitution of the Islamic Republic of Pakistan. The said Article of our Constitution provides that no person shall be denied the right to consult and be defended by a legal practitioner of his choice. He submitted that on this ground alone the prisoner was entitled to the issue of a writ as prayed for. (4) He next contended that the Ordinance XII of 1956 was itself ultra vires of the Constitution, inasmuch as it comes within the mischief of the provisions of Article

110. The above are the main points urged by him. He also addressed further arguments which will be noticed hereafter. We shall now proceed to discuss the first point urged by Mr. Suhrawardy. The evidence in this case, as will appear from the records produced before us, has been set out above in extenso. We have also set out the notification of the 17th July 1956, which prohibited the possession of a quantity of rice or paddy in excess of a quantity calculated on the basis of 4 maund s of rice and 6 maunds of paddy per head in a household. The evidence merely establishes that the prisoner was in possession of 220 maunds of paddy. There is no evidence of the numerical strength of the household of the prisoner. The prisoner in his affidavit has stated that his household consists of 45 members and there is no reason why this statement should be disbelieved. It is clear that merely on the evidence as noticed above, the Special Magistrate convicted the prisoner under section 6 of the said Ordinance. This conviction was clearly without jurisdiction as the Special Magistrate had no jurisdiction to convict a person for mere possession of a certain quantity of paddy. In the column provided in the record, there is an entry (f) "The offence complained". Under this head there is also an endorsement to the effect that the prisoner was trying to smuggle out paddy to various places when a surprise check was carried out Special Magistrate it is difficult to imagine. The learned Advocate-General asked us to ignore the same and stated that no evidence was led to that effect. Mr. D. C. Roy appearing on behalf of the Special Magistrate and the District Magistrate frankly admitted that the conviction of the prisoner and the sentence passed on him was without juris diction, void and illegal inasmuch as it was not proved that the prisoner had committed any offence under the impugned Ordinance. He further submitted that on that ground alone we may issue a writ of habeas corpus and that if we were to enter into the question of tires of the Ordinance, he should be allowed to make his submissions that the Ordinance was not ultra vires. The learned Advocate-General appearing for the Chief Secretarto the Government of East Pakistan also admitted that there was, in fact, no evidence to support the conviction of the prisoner but he urged that in the circumstances of the present case we were not entitled to issue a writ of habeas corpus. He argued that if on a return to a Rule nisi issued by us, it was shown that the prisoner was detained in prison on a conviction by a Magistrate, that order of detention could not be challenged in a proceeding by way of an application for the issue of a writ of habeas corpus. In support of his argument he cited the case of The King v. The Commanding Officer of Morn Hill Camp. Winchester (1917 K B D 176). In this case proceedings were started against the detenu under the Military Service Act, 1916. Under this Act certain persons were liable for military service, He was brought before the Magistrate at the Thames Police Court, who decided on facts placed before him that the said detenu was liable for service under the Act. By virtue of the provisions of the said Act, the Magistrate then handed him over to the military authorities and he was detained by them in Morn Hill Camp Winchester. On a petition for the issue of a writ of habeas corpus, Lord Reading, C. J., observed in his judgment as follows: "In this case the Magistrate has held that the prosecutor was for the time being ordinary resident in Great Britain' within the meaning of section 1 of the Military Service Act, 1916, (section 2). The prosecutor has sought to question that decision by means of a writ of habeas corpus. If the jurisdiction exercised by the Magistrate is a juris diction which has been conferred upon him by the statute, then, notwithstanding that he may have come to a wrong decision on the facts or upon the' law' it is clear that his decision cannot be questioned by this procedure. In the present case there is no doubt as to the jurisdiction of the Magistrate. It is not suggested that he was not the proper tribunal, to deal with the case. It is suggested that he came to a wrong conclusion. But if an erroneous decision of a Magistrate entitled to a party detained by the Magistrate's order to come to his Court for a writ of habeas corpus, that writ would furnish a ready means of appealing to this Court from every decision of a Magistrate ordering the detention of an offender. If there were no means of questioning a Magistrate's order there might be some ground for invoking the assistance of this Court in the way chosen in this case, but there is a well known procedure byway of special case whereby the decisions of Magistrates can be enquired into . . . . ." In the concluding portion of his judgment he observes as follows: "I would only add that if it had been possible for us to go into the case on the affidavits I should have been clearly of opinion that there was material upon which the Magistrate could infer that the prosecutor was for the time being ordinarily resident in Great Britain. The rule must be discharged." It was clear that Lord Reading, C. J., refused the issue of the writ on the ground that there was a remedy available by way of a revision of the order of the Magistrate. He held that if no other remedy was available to the detenu to challenge the order of the Magistrate, he might have been entitled to the assistance of the Court by way of an application for the issue of a writ of habeas corpus. It is significant to note that Lord Reading also held that on the materials in the case he would have upheld the finding of fact by the Magistrate, namely, "that the prosecutor was for the time being ordinarily resident in Great Britain". Darling, J. made the following observations: "The writ of habeas corpus does not lie wherever a Court decides wrongly. It lies where a person is detained without justification. In the present case the justification is the decision of a Magistrate. If a Magistrate comes to a wrong decision in fact or in law he may be asked to state a case; if he refuses he may be ordered to do so. The prosecutor therefore had a remedy. He desired a more expeditious remedy, but that is no reason why this Court should be permitted to enlarge its jurisdiction. The Court is not to be called upon to entertain appeals from all Magistrates who decide wrongly as soon as the decision is given." It is clear that Darling, J., was of the opinion that inasmuch as the prosecutor had a remedy available to him he should not be permitted to proceed in the way he has chosen to proceed. Atkin, J., observed as follows: "No doubt of an application for the writ of habeas corpus the Court ordinarily may inquire into the presence or absence of jurisdiction in the Court which orders the detention of the prosecutor. But the question here is whether the prosecutor makes out any case of want of jurisdiction." He concluded his judgment by the following observations: "The man has to give satisfactory evidence to the contrary, otherwise he is to be deemed to have been enlisted. Therefore the Magistrate has complete jurisdiction in the matter, whether in fact the man is resident in Ireland or in Great Britain, although he could not find a man to be an absentee who gave satisfactory evidence that he was not ordinarily resident in Great Britain within the meaning of these Acts. The only question is, whether the man gives such evidence and that is a question, which the Magistrate has the fullest jurisdiction to investigate. If we had to say whether there was any evidence of residence in Great Britain I should hold that there was sample evidence." It will be seen that Atkin, J. (Lord Atkin as he then was) had no doubt whatsoever that "on an application for a writ of habeas corpus the Court ordinarily may enquire into the presence or absence of jurisdiction in the Court which orders the detention of the prosecutor". It is also clear that their Lordships found that there was nothing in the merits of the case. They also found that in an application for a writ of habeas corpus, the Court may inquire into the presence or absence of jurisdiction in the Court which orders the detention. They also held that in the case before them there was another remedy available to the person concerned in order to question the impugned order of the Magistrate. It was held, on the peculiar facts and circumstances of that case, that it was not proper to issue a writ of habeas corpus. It was also held that in entertaining an application for a writ of habeas corpus the Court does not sit as a Court of appeal. Lord Reading held that if there had been no remedy available to question the order of the Magistrate, he might have entertained the application to go into the validity of the order by way of a writ of habeas corpus. This case, therefore, not only does not support the contention of the learned Advocate-General, but on the contrary it supports the proposition that a writ of habeas corpus is a proper remedy when these is no other remedy available to the petitioner. In the case before us section 13 of the impugned Ordinance bars all remedy by way of an appeal or revision from any order of sentence passed by the Special Magistrate. In this connection it will be interesting to note a decision of the Queen's Bench Division. The case is, In Re: Authors ((1889) 22 Q B 345). In this case a Manager of a Club was duly convicted under section 17 of a particular Act for selling beer by retail without having an Exercise Retail License. Subsequently he was convicted under section 3 of the Licensing Act, 1872; of selling intoxicating liquor, to wit, beer, without a licence, Upon the hearing of the latter charge, the Magistrate treated it as a second offence and imposed the full penalty of 100 authorised in the case of `the second offence' by section 3, subsection 2, of the Licensing Act, 1872. On a proceeding by way of an application for the issue of a writ of; habeas corpus, it was held that there could only be a conviction under section 3 of the Licensing Act, 1872, for a second offence where the conviction of the first offence had been under the same Statute, and that the second conviction was, therefore, bad. The fine was not paid and in default, therefore, the defendant was imprisoned. An appeal was taken against his conviction by the Magistrate to Quarter Sessions and the appeal was dismissed. Thereafter, the prisoner moved the Queen's Bench Division by way of an application for the issue of a writ of habeas corpus. A Bench presided over by Lord Coleridge, C. J. and Hawkins, J., went into the merits of the case and found that the prisoner was illegally detained in spite of the fact that the petitioner had appealed against his conviction to the Court of Quarter Sessions and his appeal was dismissed. Lord Coleridge agreed with the judgment delivered by Hawkins, J. Hawkins, J. in the concluding portion of his judgment observed as follows: "I have had many doubts whether it was competent for us to go behind a conviction which had not been quashed upon certiorari or by any other process of law; but I have satisfied myself that we can go behind this conviction upon affidavits. There are two authorities, in the Queen's Bench and Exchequer respectively, which seem to be conclusive. They were two cases of prosecutions of workmen for neglecting their duty to their employees, and in each of them there was a summary conviction; upon the argument of a rule for a writ of habeas corpus it was allowed to be proved by affidavits that the men were, as fact, not in that particular employment, and, therefore, not subject to the jurisdiction of the justices, the ground of admission of the affidavits being that there was no evidence before the justices to justify a conviction. So, in the present case, the Court is at liberty to go behind the conviction and to receive affidavits, it not being a case of conflicting testimony, but one in which the Magistrate has found a previous conviction when, in point of fact, there was none. For these reasons, I think that the prisoner is entitled to be discharged." The cases referred to are the cases of, In re. Burley, and In re: Baker (E & B 607, 2 H & N 219). We will proceed to notice the case of re: Bailey, re: Collier (1864, 3 E & B 607: 16 Digest, 254, 557). In this case the return to a habeas corpus adcubjiciendum to bring up Bailey, assigned, as the cause of Bailey's detention, a warrant of justice. The warrant did not set forth the evidence nor stated that it was taken in the presence of the prisoner or on oath. Affidavits were used showing the evidence before the justice. It was held that it was open to the prisoner to show, by notice, that there was no evidence from which the Justice might reasonably draw an inference that the relation ship of master and servant existed between the prisoner and his employer, as that would show that the Justice had no jurisdiction In re: Baker ((1857) 2 H & N 219: 16 Digest, 254, 588) it was held that the Court of Exchequer may, by an application, for a habeas corpus, enquire, by notice, into facts necessary to give the Magistrate jurisdic tion. It would thus appear from the case reported in 1881, 22 Q B 345 that when the facts disclose that the Magistrate had acted wholly without jurisdiction, the petitioner would be allowed to move successfully by way of a writ of habeas corpus even though he had taken an appeal against the decision of the Magistrate to the Court of Quarter Sessions and his appeal was dismissed. On a conviction without jurisdiction writs of habeas corpus were issued in England even though an appeal was taken against the order of the Magistrate and such appeal was dismissed. We will notice another case of the King's Bench Division. This is the case of King Governor of Lowes Prison Ex parte Doyle (1). In this case the prisoner, a British subject was charged with having taken part in an armed rebellion and in the waging of war against His Majesty the King, such act being of such a nature as to be calculated to be prejudicial to the defence of the realm, and being done with the intention and for the purpose of assisting the enemy. Section 1, subsection ((1917) 2 K B 254) of the Defence of the Realm (Amendment) Act, 1915, provided as follows:- "But even though we had come to the conclusion that the warrant of commitment was bad on the face of it, as this is a case of commitment after conviction we are again not only entitled but bound to look at the conviction in order to see whether there is more than a mere technical defect in the commitment. On behalf of the applicant it has been strenuously contended that we are dealing with the liberty of the subject, but we are also administering law and justice, and we have to see whether or not there is any ground for alleging that the applicant has not been properly convicted and committed. Rex v. Hawkins (Forescue 272) and Rex v. Taylor (7 Dow. & Ry. 622) are authorities, which abundantly support the proposition that in considering the validity of the committal the conviction must be looked at. It is clear that the Court in Rex v. Taylor thought that they ought to look at the conviction, and if they came to the conclusion that there was a defect in the commitment but none in the conviction they would grant a writ of habeas corpus. When the conviction was brought before them a number of grounds were taken in objection. Upon two grounds the Court held the conviction was bad and consequently the prisoner was illegally detained, and therefore the Court ordered that he should be discharged. Those two authorities clearly support the principle that we are entitled, and I think bound to look at the conviction in the present case, and it is stated on the face of it that Doyle is a person subject to military law. That being so, it establishes that he could be tried by a field General Court Martial, and that therefore there is no ground for saying that the conviction is wrong. It would cure any defect (if there were any) in the warrant of commitment, and I come to the conclusion both as regards the warrant of commitment and also as to the form of conviction that the contentions fail." At the end of the judgment, his Lordships observes as follows:- "I desire to add that I feel the greater satisfaction in arriving at this conclusion after the elaborate and exhaustive examination into the law that has taken place, because having regard to the material placed before us, the complaints made are merely technical; they are complaints as to the form of documents, except that with regard to the trial in camera otherwise there is no substance in them. The rule must be discharged." It is clear that in a proceeding by way of a writ of habeas corpus even in England, it has been held that the Court is entitled to look into the legality of the conviction. We may note here some passages from Halsbury's Law of England, Volume

9. At page 702, Article 1201 reads as follows:- "The writ is applicable as a remedy in all cases of wrong ful deprivation of personal liberty. Where the detention of an individual is under process for criminal or supposed criminal cause the jurisdiction of the Court and the regu larity of the commitment may be inquired into . . . . . , The illegal detention of a subject, that is a detention or imprisonment which is incapable of legal justification, is the basis of jurisdiction in habeas corpus." At page 713, Article 1214 reads as follows:- "The remedy by habeas corpus is equally available in criminal and civil cases, provided that there is a deprivation of personal liberty without legal justification . . . . . In modern practice the purpose to which the writ is most frequently applied are (1) the testing of the regularity of commitments and particularly in cases of the commitments for extradition and of fugitive offenders; and the investi gation of the right to the custody of infants." At page 714 Article 1215 reads as follows:- "A person who is in custody under a warrant or orders of commitment may test the validity of the warrant or order under which he is detained by means of the writ of habeas corpus, as, for instance, where he is imprisoned under the sentence of a naval, military, or celestial Court, or interned under the authority of some emergency statute. Upon the return to a writ of habeas corpus in a case of alleged irregularity in the commitment the Court exercises its jurisdiction as follows: If it appears clearly that the act for which the party is committed, is no crime, or that it is a crime, but he is committed for it by a person who has no jurisdiction the Court discharges him. If it is doubtful whether the act is a crime or whether the party be commit ted by a competent jurisdiction or if it appears to be a crime, but a bailable one, the Court boils him. If tile offence is not bailable one and the prisoner is committed by a compe tent jurisdiction, the Court remands or commits him." It is, therefore, clear that in England. (1) A person may be discharged by a writ of habeas corpus if he establishes that his conviction was without jurisdiction, even though an appeal was taken against his conviction and dismissed; (2) When there is no other remedy available to the prisoner to question the validity of the conviction, the Court will go into the question of the legality of the conviction, but not if there is a remedy available to the petitioner by a revision or appeal. (3) In going into the legality of the conviction the Court will not function as a Court of appeal on facts. Therefore, however, other authorities of Courts in the Commonwealth and in the United States of America which will go to show that the jurisdiction to issue a writ of habeas corpus is even wider than what has been noticed above. It is unnecessary for us to go into them. In this case the Ordinance itself bars all remedy against an order of conviction and sentence pronounced by a Special Magistrate under the Ordinance. The petitioner here had no other remedy avail able to him. Here we have ample power to investigate, and indeed, it is our duty to do so, into the legality of the conviction of the petitioner and the sentence passed on him. We may incidentally note that the jurisdiction conferred upon us by the Constitution of the Islamic Republic of Pakistan is even wider than the jurisdiction of the Courts in England. It is not necessary at the present moment to notice how wide it is. In this case it has been conclusively established that the conviction of the prisoner and the sentence passed on him are wholly without jurisdiction and are, therefore, void and illegal. The prisoner is, therefore, entitled to the issue a writ of habeas corpus by this Court on this ground alone. We now turn to the next point urged by Mr. Suhrawardy, namely, that the prisoner in his purported trial was denied the right to consult and be defended by a legal practitioner of his choice. It was submitted that this was a clear breach a funda mental right guaranteed by the, Constitution under Article 7 (1). He contended that a trial held in violation of Article 7 (1) was a mistrial and no trial in the eye of law. It was contended that the conviction of the prisoner and the sentence passed on were wholly void on this ground alone. Article 7 (1) of our Constitution reads as follows:- "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner." If Mr. Suhrawardy succeeds in establishing that the prisoner was denied the right to consult and be defended by a legal practitioner of his choice, then his contention must be upheld. A pretended trial is breach of 4 fundamental right guaranteed to the citizens of Pakistan under our Constitution is no trial in the eye of law. Such trial is wholly void and illegal. The fundamental right of the citizens as embodied in our Constitution must be enforced and it is our duty to do so. If a trial is held in breach thereof, we must declare it to be void and of no effect. Let us compare Article 7 (1) of our Constitution with the similar provisions in the Constitution of the United States of America. The sixth Amendment of the Constitution of the United States of America reads as follows:- "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, and to be informed of the nature and cause of the accusation to be confronted with the witness against him; to have compulsory process for obtain ing witnesses in his favour, and to have assistance of counsel for his defence." The result of the decisions of the Supreme Court of United States of America on the question of the right to assistance of a Counsel, had been admirably summarized in Basu's "Commentary on the Constitution of India" in Volume I, (Third Edition) at page

283. It is summarized thus: "Assistance of counsel for defence means that the accused must be afforded an opportunity of securing a counsel of his own choice and to give him instructions; and if he is unable to employ counsel in a capital case, it is the duty of the Court to employ a counsel and give him like opportunity to take instructions. In other than capital cases, a conviction will be vitiated for want of a counsel, only if it can be held that absence of a counsel has resulted in absence of a funda mental fairness; but there is no inexorable rule that in every case, however petty the offence may be, the Court has a duty to provide counsel for defence. The question of unfairness has thus to be determined according to circumstances: Where the gravity of the crime and other factors-such as the age and education of the defendant, the conduct of the Court or the prosecuting officials, and the complicated nature of the offence charged and the possible defences thereto-render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair . . . . .the accused must have legal assistance under the Amend ment whether he pleads guilty or elects to stand trial, whether he requests for counsel or not. Only a waiver of counsel, understandingly made, justifies trial without counsel. Of course, in every case the Court must offer the prisoner reasonable time and opportunity to secure a counsel. "The Constitutional guarantee has been held to include not only the right to secure a counsel but also the right to consult him privately and any violation of this right vitiates the trial without proof of actual prejudice resulting from denial of the right. Thus, the presence of an agent of the prosecution at the pre-trial conference of the agent with his counsel was held sufficient for quashing trial. The right which is guaranteed by the Constitution is the right to have `effective counsel', and the question whether the right has been denied is one of substance. Assistance of counsel is effective only where the accused is afforded a reasonable opportunity to consult counsel-and counsel is afforded such opportunity to consult with the accused and to prepare his defence. The right is not complied with where the counsel offered by the Court is not devoted to the interests of the accused, e.g., where he is a government representative or also represents a co-accused whose defence is in conflict with that of the accused. The right to assistance of counsel exists at every stage of the trial, from the arraignment upto the sentence, and the right subsists whether the accused requests for counsel or not. But the right to counsel may be expressly waived by the accused, provided he does it voluntarily, competently with full comprehension of all the facts and circumstances which are essential to a proper understanding of his right and its waiver, e. g., the nature of the charges, the range of punish ment prescribed for the offence and the like, and with the approval of the Court which has the duty to satisfy itself that all the foregoing conditions have been satisfied. Waiver is not dependent upon a plea of guilty or not guilty." In this conclusion reference may be made to the cases of, Beavers v. Haubert ((1905) 168 U S 77 (87)); Powell v. Alabama ((1932) 287 U S 45); De Meerleer v. Michigan ((1947) 329 U S 663); Palmer v. Ashe ((1951) 342 U S 134); Betis v. Brady ((1942) 316 U S 455); Bute v. Illinois ((1948) 233 U S 640); Foster v. Illinois ((1947), (1947) 332 U S 134); Grygar v. Burke ((1948) 334 U S 728); Gibbs v. Burke ((1949) 337 U S 773); Glasser v. U. S. ((1941) 315 U S 60); Coplon v. U. S. ((1951) 191 F. 2d. 249); Avery v. Alabama ((1940) 308 U S 444 4); Hawk v. Olson ((1945) 326 U S 271); House v. Mayo ((1945) 324 U S 242) and Carter v. Illinois ((1946) 329 U S 173). It will be seen from the above to what extent the Courts of United States of America have gone in enforcing the rights of its citizens to consult and be defended by a lawyer. We are also conscious of the fact that the relevant provision in our Constitution is couched in a somewhat different language. In the present case it is alleged both by the petitioner and the prisoner that the prisoner had asked to be defended by a lawyer and that the Special Magistrate refused to comply with the request. The Special Magistrate in his affidavit has stated that the prisoner never asked to be represented by a lawyer. There is nothing in the records which will show what trans pired with regard to this question of the representation of the prisoner by a lawyer. Of necessity, we have to fall back on the affidavits. The petitioner had asked to be defended by a lawyer and that the Special Magistrate refused to do so; the prisoner has also sworn an affidavit to the effect that he had asked to be represented by a lawyer and this prayer was refused by the Special Magistrate; one Abdus Sattar, a cousin of the prisoner, has sworn an affidavit to the effect that he tried to obtain permission for the engagement of a lawyer to defend the prisoner and that he was denied access to the Court room; the lawyer, Moulvi Khandkar Shamsul Huq, has stated in his affidavit that it was the practice of the Court of the Special Magistrate not to allow defence of accused by lawyers and that, therefore, he asked Abdus Sattar to obtain permission of the Magistrate to allow him to defend the prisoner; he had further stated that Abdus Sattar failed to obtain such permission and that it was reported to him that Abdus Sattar was denied access to the Court room. The Special Magistrate simply states that no such permission was asked for by the prisoner. We have given our careful consideration to the affidavits sworn before us and we find it impossible to disbelieve the petitioner, the prisoner, Abdus Sattar and the lawyer Moulvi Khandkar Shamsul. Huq. We can only reconcile the statement made by the Magistrate on this point by considering the possibility of the Special Magistrate not understanding the request made by the prisoner. The prisoner is a Pakistan Bengalee and we do not know in what language he made the request. He has stated in his affidavit that he did not understand some part of the proceedings against him. It was quite likely that the Special Magistrate may have misunderstood him and we are not prepared to hold that the prisoner had not, in fact, asked to be represented by a lawyer. It is highly improbable that in the predicament in which the prisoner was placed namely, when he was faced with a trial which might end in a conviction and in a sentence of imprisonment for a substantial period along with sentences of fine and whipping, he would not ask to be represented by a lawyer. It is also impossible to believe that the prisoner was not aware that he was liable to sentenced to whipping in addition to a sentence of imprison ment when, as a deterrent measure, widest possible publicity was given to not inflict sentences of whipping in such cases. In these circumstances, it is natural that the prisoner would wish be defended by a lawyer. It would be surprising if he did not wish to do, specially when the affidavits disclose that the prisoner is a man of substantial means. The Magistrate merely stated that the prisoner had not asked for representation by a lawyer. The question to be considered is whether in the light of the facts and circum stances of this case, the prisoner was denied his right to consult a lawyer and be defended by him. Abdus Sattar has stated that he was denied access to the Court room by a sentry at the barrier which was raised near the Court room. The Special Magistrate has stated that he did not deny access to anybody to the Court room. He might not himself have done so; but if the sentry at the barrier refused access to the cousin of the prisoner, it amounts to denial of access to the Court room to a close relation of the prisoner. From the affidavits it appears that the Court room was "out of bonds" to the relations of the accused. The prisoner was arrested in the small hours of the morning and was marched off from his village home to the Sub-Divisional town of Gopalganj and detained there. His relations could not contact him nor could he contact them. He was produced before the Special Magistrate in the afternoon and after the speediest possible trial he was convicted and thereupon clapped into jail to serve out the sentence passed on him. The lawyer whom the cousin of the prisoner tried to contact did not dare represent him without prior permission of the Magistrate. He had hardly the chance to consult a lawyer far less to be defended by one. Even, if the prisoner had not asked to be represented by a lawyer, the facts and circumstances of this case tantamount to a denial of his right to consult a lawyer and to be defended by him. We do not hold that it was the duty of the Magistrate to ask the prisoner whether he wished to be represented by a lawyer; but it, was certainly his duty to conduct, the trial in such a manner and within such time as would offer the prisoner an opportunity to consult a lawyer and be defended by him. Can it be said in the circumstances of this case that the prisoner had such opportunity? He was arrested in the morning in his house in a village and was taken away from it to a distant place, namely, the Sub-Divisional Head Quarter of Gopalganj. His relations made frantic attempts to get in touch with him, but failed to do so and he on his turn could not contact them. If the trial had taken place in an ordinary Court, which are well known to the members of the public and which are haunts of lawyers and where all the members of the public have, in fact, free access, the case might have been different. Here there was a trial not by an ordinary Court but by a Special Magistrate; the trial did not take place in well known Court premises; the Court was held in an unusual place and also in an unusual atmosphere. A relation of the prisoner tried to contact him with a view to arranging his defence, but failed to do so. The time factor is also important. From the moment of the arrest and actual trial and conviction the prisoner did not have the slightest chance to contact his friends and relations. It was not until the prisoner was actually lodged in jail after his conviction that his relations could contact him. In these circumstances, we hold that the prisoner was denied his right to consult a lawyer and be represented by him at the trial. When the trial was conducted m a manner and under circumstances which amounted to a denial to the right given to the citizen under our Constitution, the trial f must be held, to be void. We hold that the trial was held in violation of the right given to the prisoner under Article 7 (i) of our Constitution. The trial was illegal and therefore the conviction of the prisoner and the sentences passed on him were void and illegal. It is clear that on this ground also the prisoner is entitled to a writ of habeas corpus and to be set at liberty. We now proceed to discuss the contention of Mr. Suhrawardy that some of the provisions of the East Pakistan Food (Control of Movement and Distribution) Ordinance, 1956 (East Pakistan Ordinance X11 of 1956) were ultra vires in so far as they were inconsistent with the Code of Criminal Procedure, 1898. He contended that this Ordinance could only have been made under the provisions of the Concurrent List specified in the Fifth Schedule of our Constitution and therefore, they will have to give way, if they are in conflict with any existing Act or law with respect to that matter. He drew our attention to the provisions of Article 110 of the Constitution. Article 110 of the Constitu tion reads as follows: "110.-(1) If any provision of an Act of a Provincial Legislature is repugnant to any provision of an Act of Parliament, which Parliament is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the Act of Parliament, whether passed before or after the Act of the Provincial Legislature, or as the case may be, the existing law shall prevail and the Act of the Provincial Legislature shall, to the extent of the repugnancy, be void. (2) When an Act of a Provincial Legislature with respect to any of the matters in the Concurrent List contains any provision repugnant to the provisions of an earlier Act of Parliament or an existing law with respect to that matter, then, if the Act of the Provincial Legislature, having been reserved for the consideration of the President, has received his assent, the Act of the Provincial Legisla ture shall prevail in the Province concerned, but neverthe less Parliament may at any time enact any law with respect to the same matter, amending or repealing the law so made by the Provincial Legislature." Let us examine the Schedule of our Constitution with regard to legislative powers, Article 102 empowers ' the Governor of a Province to promulgate Ordinance when the Provincial Assembly is not in Sessions and the powers of the Governor in this respect are co-extensive with the powers of the Provincial Assembly. Article 106 of the Constitution reads as follows:- "106.-(1) Notwithstanding anything in the two next succeeding clauses, Parliament shall have exclusive power to make laws with respect to any of the matters enumerated in the Federal List. (2) Notwithstanding anything in clause (3), Parliament and subject to clause (1) a Provincial Legislature also, shall have power to make laws with respect to any of the matters enumerated in the Concurrent List. (3) Subject to clauses (1) and (2) a Provincial Legislature shall have exclusive power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial List. (4) Parliament shall have power to make laws with respect to matters enumerated in the Provincial List, except for a Province or any part thereof." It is clear that Parliament has exclusive power to make laws in respect of the Federal List. Similarly, the Provincial Legislature has exclusive power to make laws in respect of matters enumerated in the Provincial List. Both Parliament and the Provincial Legislature have powers to make laws in respect of the Concurrent List. Article 109 of the Constitution provides for residuary power of legislation. It reads as follows: "

109. Subject to the provisions of Articles 107 and 108, the Provincial Legislature shall have exclusive power to make laws with respect to any matter not enumerated in any list in the Fifth Schedule, including any law imposing a tax not mentioned in any such list; and the executive authority of the Province shall extend to the administration of any law so made." We have already quoted above the provisions of Article

110. These provisions relate to enactments made in respect of the matters enumerated in the Concurrent List. The Concurrent List enumerates matters in respect of which both the Parliament and the Provincial Legislature are competent to legislate. This may give rise to conflicting legislation, and to resolve the conflict Article 110 was embodied in our Constitution. Lawyers are well aware that laws should be uniform and consistent. Inasmuch as the Concurrent List was a permissible territory into which both Parliament and the Provincial Legislature could enter, Article 110 was incorporated to resolve the difficulties which might be created by conflicting and inconsistent legislation by the Province and the Centre. It provides that if the Provincial Legislature legislates in the field of the Concurrent List and if such legislation conflicts with an existing law with respect to that matter or with an Act of Parliament, then, such existing law or the Act of Parliament will prevail over the Provincial Legislation. Sub-clause (2) is a saving clause. It provides that if the assent of the President is taken prior to the making of Provincial legislation in the field of Concurrent List, then, the Provincial legislation will prevail. Mr. Suhrawardy has contended that the impugned Ordinance, namely, the East Pakistan Ordinance XII of 1956, is a piece of legislation in the field of the Concurrent List of the Fifth Schedule of our Constitution. He has submitted that as the prior assent of the President has not been taken for the promulgation of the said Ordinance, its provisions will give way to those of the Code of Criminal Procedure, 1898, which is an existing law in respect of matters within the Concurrent List. The learned Advocate-General and Mr. D. C. Roy have both admitted that the assent of the President was not taken prior to the promulgation of the Ordinance. They contend that the provisions of the impugned Ordinance related to matters exclusively within the Provincial List and therefore, no assent was necessary to save it from the operation of Article 110 (1) of the Constitution. We had asked the learned Advocate-General to point out the relevant entry or entries in the Provincial List in respect of which this Ordinance was promulgated. He pointed out Entries Nos. 43, 2, 91 and 92 of the Provincial List. Entry No. 43 reads thus: "Production, manufacture, supply and distribution of goods". Entry No. 2 reads as follows:" Administration of justice; constitution and organization of all Courts, except the Supreme Court ; procedure in Rent and Revenue Courts; fees taken in all Courts, except the Supreme Court." Entry No. 91 is as follows. "Offences against laws with respect to any of the matters in this List." And Entry No. '92 reads as follows: "Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List". It is difficult to understand how this Ordinance comes within Entry No. 43, namely, "production, manufacture, supply and distribution of goods". Far less one can understand how it comes within Entry No. 51, namely, "Adulteration of food stuffs and other goods". It is difficult to conceive of food stuffs, far less, rice and paddy to come within the definition of `goods'. That every material substance is not `goods' within the meaning of Entry No. 43 is also evident from the language of Entry No. 46 which reads as follows: "Manufacture, supply and distribution of salt". It is clear that salt is not `goods' within the meaning of Entry No. 43, otherwise, there was no occasion to provide for Entry No. 46, which, we have seen, reads as "Manufacture, supply and distribution of salt". If the Ordinance could not come under Entry No. 43 of the Provincial List, the learned Advocate-General frankly conceded that it could not come within any other Entry of the said List. Entries Nos. 91 and 92 will not be attracted unless there is some Entry in the Provincial List which is the basis of the Legislation. Mr. Suhrawardy has pointed out that the Ordinance was a legislation in the Concurrent Field, that is, it related to the Concurrent List. He pointed out Entries Nos. 7, 9, 10 and 19 of the List (Concurrent List) Entry No. 7 is "price control" ; Entry No. 9 is "Economic and social planning"; Entry No. I reads as follows: "civil and criminal law, inclu ding the law of evidence and procedure . . . . . ." and entry No. 19 reads as "jurisdiction and powers of Courts, except Supreme Court, with respect to any of the matters in this List; offence against laws with respect to any of the matters in this List". We have also been taken through the Federal List and we feel no manner of doubt that the Ordinance cannot come within any of the matters enumerated in that List. Mr. Suhrawardy has emphasized that for years both the Central Legislature and the Provincial Assembly have been legislating in respect of the subject-matter of this Ordinance. We have been taken through the Central, Provincial and the Concurrent Lists in the Schedule to the Government of India Act, 1935. We have also been taken through the Lists in the Schedule to the Constitution of India. In so far as they are relevant for our purposes, they are substantially the same. He has emphasized that it is impossible to conceive of "control of movement, and distribution of food-stuffs" coming within "production, manufacture and supply and distribution of goods". Whether control of movement and distribution of food-stuffs," comes within Entry 43 of the Provincial List or not, one of the most important legislative provisions in the impugned Ordinance does not come within any of the entries in the Provincial List, but comes definitely within the Concurrent List, namely, `Price control', which is Entry No. 7 in the Concurrent List. Section 4 of the impugned Ordinance reads thus:- "4 (1) The Provincial Government in consultation with the Chief Food Administrator, so far as it appears to be necessary or expedient for maintaining or increasing supplies of food-stuffs or for securing its equitable distribution and availability at fair prices, may by notified order, provide for regulating, by permit or licences or otherwise, the storage, movement, inspection and distribution thereof. (2) Without prejudice to the generality of the powers conferred by subsection (1) any order made thereunder may provide:- (a) for controlling the prices at which any food-stuffs may be bought or sold. . . . . . . . . . . It will be seen that section 4 is the main operative section of the said Ordinance under which orders may be notified the infringements of which are made punishable by section 6 of the said Ordinance (East Pakistan Ordinance XII of 1956). Section 6 of the said Ordinance reads thus: "6. (1) If any person commits an offence punishable under this Ordinance or contravenes any order made under section 4 or any order made or deemed to have been made in respect of food-stuffs under the provisions of the East Pakistan Control of Essential Commodities Ordinance, 1956, (East Pakistan Ordinance X of 1956) he shall be punishable with an imprisonment for a term which may extend to two years or with fine or with whipping not exceeding 10 stripes or with any two of them or with all of them, and the Court of Special Magistrate trying such contravention, may direct that any food-stuffs in respect of which the said Court is satisfied that the order has been contravened, shall be forfeited to the Provincial Government. (2) The Special Magistrate may, by order in writing, direct that such portion of the forfeited food-stuffs as may be specified in the order may be made over to the person Who has given information about such contravention. (3) Any contravention of an order made or deemed to have been made in respect of foodstuffs under the East Pakistan Control of Essential Commodities Ordinance, 1956, shall be deemed to be an offence under this Ordinance". It is clear from the above that section 6 provides for a contravention of "any order made under section 4". There fore any order made regarding `price control' under section 4 (2) (a) of the said Ordinance is punishable under section

6. It will also be seen that by virtue of subsection (3) of section 6 of the impugned Ordinance contravention of any order made or deemed to be made in respect of foodstuffs under the East Pakistan Essential Commodities Ordinance (East Pakistan Ordinance X of 1956), is also made punishable under section 6 of the impugned Ordinance. Section 2 of the above-mentioned East Pakistan Ordi nance X of 1956 reads thus:- "Definitions.

In this Ordinance unless there is anything repugnant in the subject or context,- (a) `essential commodity' means any of the following classes of commodities:- (i) foodstuffs; . . . . . ." Section 3 (2) of the said East Pakistan Ordinance X of 1956, inter alia provides: "(2) without prejudice to the generality of the powers conferred by subsection (1), an order made thereunder may provide-- (b) for controlling the prices at which any essential commodity may be bought or sold. It is now patent that the impugned Ordinance, namely, East Pakistan Ordinance XII of 1956 is also a legislation in the field of price control that is in the field of the Con current List, namely, Entry No. 7 Therefore the penal provision in section 6, and the procedural (criminal) pro visions of sections 11, 12 (2), 13, 14 and 18 can be made only, under Entries 1 and 19 of the Concurrent List. Entries 91 and 92 of the Provincial List will be of no avail as then relate to matters exclusively in the Provincial List. We, therefore, hold that the East Pakistan Ordinance XII of 1956 is a F legislation in the field of Concurrent List at least so far as the provisions relate to criminal law and procedure. Thad being so, in the absence of the assent of the President taken) under Article 110 (1) of our Constitution, the provisions of Art. 110 (1) will apply in respect of those provisions which relate to penal law and procedure. Iii these circumstances, the provisions of the impugned Ordinance, which are inconsistent with the Code of Criminal Procedure, 1908, must give way to it. That this is so, is evident from the decisions of the Courts in India in respect of section 107 of the Government of India Act, 1935. Section 107 of the Government of India Act, 1935, reads as, follows:- "107. (1) If any provision of a Provincial law is repugnant to any provision of a Federal Law which the Federal Legislation is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent Legislation List, then, subject to the provisions of this section, the Federal Law, whether passed before or after the Provincial law, or, as the case may be, the existing law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void. (2) Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor -General or for the signification of His Majesty's pleasure, has received the assent of the Governor-General of His Majesty the Provincial law shall in that Province prevail but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter It will be seen that the respective provision of Govern ment of India Act, 1935, is almost adverbatim same as Article 110 of our Constitution. Article 254 of the Indian Constitution is to the same effect and reads as follows:- "254-(1). If any provision of a law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by Parliament, whether passed, before or after the law matte by the Legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repug nancy, be void. (2) Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by the parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State, shall if it has been reserved for the consideration of the Parliament and ha; received his assent, prevail in that State: Provided . . . . ." The above provisions are on similar lines to those of our Constitution. The following are some of the cases of the Courts in India, which will throw light on the subject. In the case of Moti Ram v. Smt. Hasina Begam (A I R 1953 All. 346), the assent of the Governor-General was taken under section 107 (2) of the Government of India Act, 1935, (which is exactly the same as Article 110 (2) of our Constitution) prior to the enactment of the U. P. (Temporary) Control of Rent and Eviction Act (III of 1947). Some of the provisions of this Act were incon sistent with those of the Provincial Small Cause Courts Act which was an existing law in respect of those provisions. It was held that inasmuch as the prior assent of the Governor General was taken under section 107 (2) of the Government of India Act, 1935, to the passing of the U. P. Act, the said Act would prevail over the existing Act, namely, the Provincial Small Cause Courts Act, 1887. In the case of Zaverbhai Amaidas v. State of Bombay ((1954) S C A 1295), the Supreme Court has discussed the provisions of section 107 (2) of the Government of India Act, 1935, and Article 254 (2) of the Constitution of India which are similar to Article 110 (2) of our Constitution. The proviso to Article 254 of the Indian Constitution on which the decision was based is immaterial for the purpose of our case, but the discussions in the case also throw light on the other provisions of Article 254 which is similar to Article 110 of our Constitution. The decision of the Bombay High Court reported is in the case of The State v. Zaverbhai Amaidas and others (AI R 1953 Born. 371). The decision really rests on the proviso of Article 254 (2) of the Constitution of India; but there are certain material observations on the provisions of section 107 (2) of the Government of India Act, 1935, which is similar to as Article 110 (2) of our Constitution. It is interesting to note that the decision rests on the provisions of the Bombay Essential Supplies (Temporary Powers) and the Essential Commodities and Cattle (Control) Enhancement of Penalties) Act (XXXVI of 19471. The provisions are somewhat similar to those of the Ordinances under our consideration. In considering the inconsistency between the Provincial Act and the Central Act in respect of matters in the Concurrent List, Chagla, C. J. observed at page 381 of the report at paragraph (30) as follows:

"I will now proceed to consider what the result of this inconsistency is. When Act XXXVI of 1947 was passed by the Bombay Legislature, the Government of India Act was in force, and I do not think that there can be much doubt that the Legislature was legislating upon a subject which is included in the Concurrent Legislative List. The subject may fall under Entry 1, Entry 2 or Entry

15. I am not prepared to accept Mr. Dalal's contention that the legis lation was under the exclusive Provincial List. Mr. Dalal suggests that the subject-matter of legislation is covered by administration of justice falling under Entry 1 of List II. In my opinion, this Act has nothing whatever to do with the administration of justice. It deals with criminal procedure and at most it deals with jurisdiction and powers of Courts. If, therefore, the legislation was on a subject which fell in the Concurrent Legislative List, we must try and find out what effect legislation in respect of a subject in the Con current List has upon an Act passed by the Central Legislature. This subject is dealt with in section 107 Government of India Act. Subsection (1) provides that where there is a repugnancy between a Provincial law and a Federal law, the Federal law shall prevail and the Provincial law to the extent of repugnancy shall be void. Subsection (2) provides that if the Provincial law, having been reserved for the consideration of the Governor General or for the signification of His Majesty's pleasure has received the assent of the Governor-General or of His Majesty, the Provincial law shall in that Province prevail, if the Provincial law is in respect to one of the matter enumerated in the Concurrent Legislative List and there is a repugnancy between that law and an earlier Federal law or an existing Indian law. Therefore, subsection (2) gives the power to the Provincial Legislature to amend a Federal or Indian law, provided two conditions are satisfied viz., that tile Provincial Legislature is dealing with a subject mentioned in the Concurrent Legislative List and the law has been reserved for the consideration of the Governor General or His Majesty. Act XXXVI of 1947, satisfied the conditions laid down in section 107 (2) and therefore, it effectively amended Act XXIV of 1946." In the present case which we are considering admittedly the assent of the President was not taken and as we hold that the East Pakistan Ordinance XII of 1956 is a legislation in the Concurrent List, at least, in so far as it relates to `price control' and the punishment and penal procedure thereof, its provisions must give way to the Code of Criminal Procedure. 1898. Let us examine the provisions of the impugned Ordinance which are inconsistent with the Code of Criminal Procedure, 1898. Section 12 (2) of the said Ordinance provides as follows:- "A Special Magistrate trying an offence under this Ordinance shall have power to try such offences summarily and in trying such offences, such Magistrate shall follow the procedure laid dog, n in: t t.l~ Code of Criminal Procedure, 1898, for trial of summons cases." Under the provisions of the Code of Criminal Procedure offences not punishable with death, transportation or imprisonment for a period exceeding six months, cannot be tried in a summary way, section II (1) (It) defines a warrant case as follows: "Warrant case means a case relating to an offence punishable with death, transportation, or imprisonment for a term exceeding six months." The Code of Criminal Procedure, therefore, lays down that the warrant case procedure must be followed in the trial of offences punishable with a period of imprisonment beyond six months. Thus section 12 (2) of the impugned Ordinance is repugnant to the provisions of the Code of Criminal Procedure and must give way to them. Section 13 of the Ordinance reads as follows:- "Notwithstanding the provision of the Code of Criminal Procedure, 1898, there shall be no appeal from any order or sentence passed by a Special Magistrate appointed under this Ordinance and no Court shall have any authority to revise such order or sentence, or to transfer any case from the Court of a Special Magistrate." This section is repugnant to the provisions of sections 408, 409, 435, 436, 437, 438 and 439 of the Code of Criminal Procedure. It is also repugnant to the provision of sections 526, 526-A, 527 and 528 of the said Code. Section 13 of the Ordinance, therefore, must give way to the provisions of the Code of Criminal Procedure. Section 14 of the Ordinance reads as follows:- "The provisions of the Code of Criminal Procedure, 1898, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Ordinance, shall apply to all matters connected with, arising from or consequent upon a trial by Special Magistrates appointed under this Ordinance." This section, except in so far as it makes the provision of the Code of Criminal Procedure, applicable to trials under this Ordinance, must give way to the Code of Criminal Procedure. Section 18 of the Ordinance reads as "Any off ence punishable under this Ordinance shall be cognizable and non-bailable." Under Chapter XXIII of the Second Schedule to the Code of Criminal Procedure, offences against "other laws" (that is, other than the Penal Code) punishable with impri sonment for one year and upward, but less than three years, are made "not congnizable and bailable". "Section 18 of the Ordinance must also give way to the Code of Criminal Procedure." We have arrived at the conclusion stated above on the footing that the East Pakistan Ordinance XII of 1956 in so far as it relates to `price control' and in so far as it creates offences and lays down the procedure in respect of them, is a legislation in the field of the Concurrent List. It is clear that, in effect and in substance, this Ordinance is a piece of legisla tion in the field of Criminal Law and Procedure. Mr. Suhrawardy has described that the words "to provide for powers to control the movement and distribution of food stuffs in East Pakistan" are camouflage for setting up Courts and lying down procedure for the speedy trial of certain offences. He has stated `pith and substance' of this legis lation, namely, the East Pakistan Ordinance XII of 1956, is in reality a legislation in the domain of Criminal Law and Procedure. Supposing "control of the movement and distribution of food-stuffs" does not come within any of the List; set out in the Fifth Schedule to our Constitution, then, the Provincial Legislature could exclusively legislate on the subject under its residuary power of legislation, as provide for in Article 109 of the Constitution. We have discussed above that if a matter does not come within any List in the Fifth Schedule, the Provincial Legislature shall have exclusive power to make laws with respect to it. Even, if it can be said that the Provincial Legislature has power to legislate in respect of "the movement and distribution of food-stuffs" under Article 109 of the Constitution, the provisions of Entries Nos. 91 and 92 of the Provincial List cannot be prayed in aid by the Provincial Legislature. On a perusal of Entries Nos. 91 and 92 it will be clear that these Entries will be applicable only in cases where the Provincial Legislature is legislating within the exclusive field of the Provincial List and not within its residuary powers as given by the said Article 109 of the Constitution. Therefore, the Provincial Legislature has got to travel to the Concurrent List to derive the powers to legislate with regard to Penal Law and Procedure, as embodied in the said Ordinance. If this be the position, then also the sections of the Ordinance noted above will have to give way to the Code of Criminal Procedure. There fore, the result will be the same, namely, sections 11, 12(2), 13, 14 and 18 will be repugnant to the Code of Criminal Procedure. Even if the contention of the learned Advocate-General that "the control of the movement and distribution of food-stuffs" comes within Entry No. 43 of the Provincial List is accepted the Penal and procedural provisions of the Ordinance will not be covered by Entries Nos. 91 and 92 of the Provincial List inasmuch as Entries 91 and 92 relate to matters exclusively within the Provincial List whereas the provisions of the impugned Ordinance also relate to price control of food-stuffs a matter wholly within the Concurrent List. Therefore offences in respect of infringement of orders notified under the said Ordinance and the procedure for the trial of such offences must come under Entries 1 and 19 of the Concurrent List. If the prior assent of the President had been taken under Article 110 (2) this Ordinance would have prevailed over any existing enactment, but, in the absence of such assent, the provisions of Article 110 (1) of our Constitution must prevail. We hold that the impugned Ordinance is a legislation within the Concurrent List to the extent we have indicated above. The result would be that sections 11, 12(3), 13, 141 and 18 are void an inoperative and that the provisions of the Code of Criminal Procedure will in-operate in their stead. We further hold that the impugned Ordinance can function without those sections which or ultra vires the Code of Criminal Procedure, 1898. It is evident therefore, that only the provisions of the Criminal Procedure Code, 1898, will apply to trials under the impugned Ordinance in so far as they are applicable thereto. Therefore the pretended trial of the prisoner is vitiated with illegality inasmuch as warrant procedure was not followed and the said trial proceeded in breach of various other mandatory provisions of the Code of Criminal Procedure. The trial of the prisoner must be held to be void and illegal on this account also. On the footing that "the control of movement and distribution of food-stuffs" is a matter within Entry 43 of the Provincial List, the learned Advocate-General tried to justify the incursions into the Concurrent List by importing the doctrine of `Pith and Substance as discussed by the Privy Council in some Indian and Canadian cases before Board. One of the earlier cases was the case of The Attorney General of Ontario v. The Attorney-General for the Dominion of Canada ((1894) A C 898). In the above case it was held, that the provisions of section 9 of Ontario "Act respecting assignments and preferences by insolvent persons" (Revised Statutes of Ontario, clause 124), which relate to assignments purely voluntary, and postpone thereto judgments and executions not completely executed by payment, are merely ancillary to bankruptcy law, and as such are within the competence of the Provincial legislature so long as they do not conflict with any existing bankruptcy legislation of the Dominion Parliament. In the Canadian Constitution, namely. The North British American Act, which is the Constitution Act, sections 91 and 92 provide for two mutually-exclusive lists, namely, the Provincial List and the Dominion List. There is no Con current List which is found in our Constitution as well as in the Indian Constitution. Only on a minor specified matter both the Provincial Legislature and the Dominion Legislature can legislate. It was realised that in legislating within the mutually-exclusive field the Province or the Dominion might incidentally encroach into the field of legislation exclusively reserved for the other. To solve a deadlock a doctrine was evolved which laid down several tests to decide the validity of the legislation. The first test is, what is the pith and substance of the legislation, that is, what is its real nature and scope? Now, supposing a piece of legislation is a Provincial legislation. If the real `pith and substance of the legislation is in respect of a matter within the Provincial List, it will then be a valid legislation. A difficulty may arise when such legislation makes certain provisions which encroach into a field of legislation which is exclusively within the Dominion List. How would such intrusions be dealt with? The test laid down is, find out whether the encroachment is necessary, that is, is the trespass ancillary to the effectiveness of the particular legislation. If the intrusion is necessary, that is, if it is ancillary or incidental to the carrying out of the scheme of the legislation, such intrusion or trespass will be justified. If the invasion into the legislative field of the other is not ancillary to the purpose of the main legislation, then the encroachment will not be justified. The Privy Council has also laid down that one can look into the extent of the invasion only in order to find out the real nature, that is, `the pith and substance of the legislation or in other words whether it is legislation within the Pro vincial List or within the Dominion List. This doctrine has also been applied to cases in respect of the Government of India Act, 1935, or arising out of the India Constitution. In this context, a useful reference may be made to the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. (74 I A 23=P L D 1947 P C 1)). It is a case in respect of the Bengal Money-Lenders Act, 1940. Money-lending came exclusively within the Provincial field. The question was, whether some of the provisions of that Act came within `promissory note' or `banking' which are subject-matters in the Federal list or within `contract' which is a subject-matter in the Concurrent List. Assent of the Governor-General, however, was taken under Article 107 (2) of the Government of India Act which corresponds to Article 110 (2) of our Constitution. It was held that:- "In distinguishing between the powers of the divided jurisdictions under Lists 1, II and III of the Seventh Schedule to the Government of India Act, 1935, it is not possible to make a clean-cut distinction between the powers of the various legislatures. They are bound to overlap from time to time, and the rule which has been evolved by the Judicial Committee whereby an impugned statute is examined to ascertain its pith and substance or its true nature and character for the purpose of determining in which particular List the legislation falls, applies to Indian as well as to Dominion legislation. The extent of the invasion by the Provincial legislature into subjects en umerated in the Federal List is material for the purpose of determining what is the pith and substance of the impugned Act. The Bengal Money-Lenders Act, 1940, which, in section 30, in substance provided that notwithstanding any thing contained in any law' for the time being in force, (1) no borrower `shall be liable to pay after the commence ment of this Act' more than a limited sum in respect of principal and interest or more than a certain percentage of the sum advanced by way of interest, was in whole intra vires the Provincial Legislature as in pith and substance dealing with `money lending and money lenders', a subject matter within the legislative competence 'of the Provincial Legislature under Entry 27 of List II, and whether it trenched incidentally on `promissory notes' and banking,' subject-matters reserved for the Federal Legislature under Entries 28 and 38 respectively of List I, neither of those matters was its substance." At page 37 of the report, Lord Wright observed as follows:- "In the present cases the Judges of the High Court found in favour of the appellants on the ground that though the Federal List prevails over the Provincial List where the two Lists come in conflict, yet the Act, being a money lenders Act, deals with what is in one aspect at least a Provincial matter and is not rendered void in whole or in part by reason of its effect on promissory notes. In their view the jurisdiction of the Provincial legislature is .not ousted by the inclusion of provisions dealing with pro missory notes, though that subject-matter is to be found in item 28 of the Federal List. The reference to bills of exchange and promissory notes in that item, they held, only applies to those matters in their respect of negotiability and not in their contractual aspect. In their contractual aspect the appropriate item, as they considered was entry (10) of List III `contracts'. `Interest on promissory notes', they say, 'is a matter with respect to contracts, a subject to `be found in the Concurrent Legislative List'. The Bengal Act has received the assent of the Governor General, and in `view of the provisions of section 107, sub section 2, of the Constitution Act, section 29, subsection 2 and section 30 of the Bengal Money-Lenders Act, 1940, must prevail.' "Section 107 of Constitution Act is in the following terms: `107: (1) If any provision of a Provincial law is repugnant to any provision of Federal law which the Federal legislature is competent to enact or to any provision of an existing Indian Law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugancy, be void. (2) "Where a Provincial law with respect to one of the matters enumerated in - the concurrent legislative list contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His Majesty's pleasure, has received the assent of the Governor-General or His Majesty, the Provincial law shall in that Province prevail, but never theless the Federal legislature may at any time enact further legislation with respect to the same matter: "Provided that no Bill or amendment for making any provision repugnant to any Provincial law, which, having been so reserved has received the assent of the Governor-General or of His Majesty, shall be introduced or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor-General in his discretion. (3) If any provision of a law of a Federated State is repugnant to a Federal law which extends to that State, the Federal law, whether passed before or after the law of the State, shall prevail and the law of the State shall, to the extent of the repugnancy, be void," "The High Court's conclusion would, no doubt, be true if they are right in saying that interest on promissory notes is a matter with respect to contracts and therefore an item contained in the Concurrent List." It is therefore, patent that if there is any provisions of item in a Provincial enactment which is within a subject matter in the Concurrent List then, no matter however small the intrusion and however necessary it may be, the provisions of Article 110 of our Constitution must apply. No amount of sophistry or casuistry on our part can take away the effect of Article 110 of the Constitution. We cannot render nugatory the provisions of the said Article. Mr. D. C. Roy argued that the Concurrent List is not forbidden territory to the Provincial Legislature. No, it is not forbidden territory to either the Provincial Legislature or the Federal Legislature. If the Provincial Legislature enters the Concurrent field, it must comply with the provisions of Article 110 of the Constitution, no matter however slight the entry may be. The entry is always permissible, but for an effective entry, Article 110 (2) is the `passport', namely, the prior assent of the President. It would be no answer to say that the entry into the field of the Concurrent List is incidental to or necessary for the effectiveness of the main subject-matter of the legislation. In the impugned Ordinance "control of prices of food stuffs" is one of the matters on which orders may be notified under section 4 of the Ordinance and so also orders notified under the East Pakistan Ordinance X of 1956 in respect of the "controlling of prices with regard to foodstuffs" are deemed to be orders made under East Pakistan Ordinance XII of 1956 (which is the impugned Ordinance). We have already noticed that section 6 of the impugned Ordinance provides for the punishment of infringements of all orders made under the said Ordinance or deemed to be made under it. Thus `price control' is inextricably woven into the texture of the impugned Ordinance. Section 6 of the said Ordinance and all the provisions in respect of the procedure applicable to offences under the said section 6 cannot, in the premises aforesaid, come under Entries 91 and 92 of the Provincial List. They must come within Entries 1 and 19 of the Concurrent List. The provisions of Article 110 are, therefore, inescapable. We asked the learned Advocate-General and Mr. D. C. Roy to point out a single case in which a Provincial legisla tion which had traveled to the Concurrent List (a permissible domain) and where in spite of such entry into the Concurrent List (however slight the entry might have been) the pro visions of section 107 of the Government of India Act, 1935, (the same as Article 110 of our Constitution) were held to be inapplicable because such incursion into the Concurrent field was held to be ancillary or incidental to the main subject-matter of legislation. They could not cite a single case. The doctrine of incidental or ancillary encroachment has been invoked only to resolve a difficulty posed by the con flicting claims of the mutually-exclusive Provincial and Federal Lists. Such doctrine is of no avail in respect of 1 any legislative provision which travels to the field of Concurrent List. There can be no doubt that when a Provincial Legislature, even while legislating within a Provincial field, has effected an entry into the Concurrent domain, such entry must conform to the provisions of Article 110 of the Con stitution. Mr. Roy has drawn our attention to the case of Lakhi Narayan Das and others v. The Governor-General of India (1950 S C 102). This is a case in respect of the Bihar Maintenance of Public Order, Ordinance of 1949. The subject-matter of the legisla tion was preventive detention which was exclusively a matter within the Provincial List (List II) of the Government of India Act, 1935. It was held that the constitution of courts to try offences in respect of contraventions of the Ordinance and the jurisdiction and powers of the Courts as constituted by it would come within items (1) and (2) of the Provincial List. It was also held that in matters of procedure there was no inconsistency with the Code of Criminal Procedure. Mukherjee, J., at page 117 observed thus: "Even assuming for argument's sake that the provisions relating to arrest without any warrant, by a police officer, of persons suspected of committing offences under the Ordinance as contained in section 21, or that relating to trial of such persons by Magistrates empowered to try cases summarily, are matters of Criminal Procedure and come within the purview of item (2) of the Concurrent List, we do not think, that it will help the appellants in any way. The Concurrent List is not a forbidden field to the Provincial Legislature and the mere fact that the Provincial Legislature has legislated on any matter in the Concurrent List is not enough to attract the mischief of section 107 of the Government of India Act. There must be repugnancy between such legislation and existing law, and then only would the existing law prevail unless the procedure laid down in subsection (2) of section 107 was followed. In our opinion, there is no repugnancy between the provisions of the impugned Ordinance and those of the Criminal P. C. Section 54 of the Criminal P. C. does not purport to be exhaustive or unqualified and various provisions for arrest without warrant are to be found in other Acts, e.g., Police Act, Arms Act, Explosives Act, Indian Railways Act, etc. and section 1 (2) of the Criminal P. C. expressly lays down that the provisions of the Code would not affect any special form of procedure prescribed by any law for the time being in force. The provision of section 21 of the Ordinance cannot be said, therefore, to be repugnant to section 54 of the Criminal P. C. Similarly, the investing of certain Magistrates with powers to try offences under the Ordinance does not affect or touch in the least any provision of the Criminal P. C. As there is no repugnancy section 107 of the Government of India Act cannot have any ' application to the present case." In the impugned Ordinance sections 11, 12 (2), 13, 14, and 18 are inconsistent with similar provisions in the Criminal Procedure. They cannot co-exist with the said Code and must give way to its provisions. In the case before us there is no doubt that there has been an incursion into the Con current List. The propositions discussed above may be summarized as follows:-Under the provisions of Article 110 (1) of our Constitution, in the absence of the assent of the President under Article 110 (2), the provisions of the Code of Criminal Procedure, 1898, must prevail over those provisions of the impugned Ordinance which are repugnant to them. (a) because, even of "control of movement and dis tribution of foodstuffs" is a subject-matter within the Provincial List, it is evident that one of the important items in the provisions of the impugned Ordinance is in respect of "price control" and that this item is inextricably woven into the texture of this legislation; "price control", as we have seen, is Entry No. 7 in the Concurrent List; therefore, the penal provision of section 6 of the Ordinance and the other provisions with regard to penal law ands procedure cannot come under Entries 91 and 92 of the Provincial List inasmuch as these entries relate to matters which are exclusively within the Provincial List ; the aforesaid provisions of the Ordinance must, of necessity, come under Entries I and 19 of the Concurrent List ; and (b) because even if "control of movement and distribution. of foodstuffs" is a matter which comes under the residuary powers of legislation given to the Provincial Legislature under Article 109, Entries 91 and 92 of the Provincial List will not be available; we have again to fall back on Entries 1 and 19 of the Concurrent List ; (c) because if the subject-matter of the Ordinance falls within the Concurrent List then the question in issue becomes very simple ; the provisions of the Ordinance relating to penal law and procedure must come under Entries 1 and 19 of the Concurrent List. In any event, the provisions of section 12(2) of the Ordinance are matters of Criminal Procedure, pure and simple. This is a matter within Entry No. 1 of the Con current List, and not within Entries 91 and 92 of the Provincial List. Section 12(2) must necessarily give way to the provisions of the Code of Criminal Procedure. Mr. Suhrawardy has further assailed section 13 of the Ordinance, as he submits that it ousts the jurisdiction of the Supreme Court of Pakistan as conferred on it by Article

161. Section 13 of the Ordinance cannot operate to take away the jurisdiction of the Supreme Court, and to us it appears that that was not the intention with which section 13 of the Ordinance was enacted, section 13 merely seeks to oust the revisional and appellate powers of courts, as provided for in the Code of Criminal Procedure. Similarly, section 20 (1) cannot operate to oust the jurisdiction of the High Court in respect of its power to issue writs under Article

170. We hold that a case has been made out of the issue of a writ of Habeas Corpus and that it has been established that the conviction of the prisoner and the sentences passed on him by the Special Magistrate are wholly without jurisdic tion and, therefore, void and illegal. We, therefore, make the Rule absolute and direct that the prisoner Abdul Barik Sikdar be discharged and set at liberty forthwith. Before parting with this case we would like to make the following comments on some of the observations made from the Bar in course of arguments addressed to us. Mr. Suhrawardy has described the impugned Ordinance as a "barbaric piece of legislation" and assailed its moral justification. It is not for us to question the wisdom or ethics of a legislation. Our function is to investigate into its validity when its vires is impeached before us and not to enquire into its propriety or ethical justification. If they are found to be valid it is our duty to administer it according to law. Another learned Counsel asserted that in the face of a crisis arbitrary powers have to be given to those who are called upon to execute measures which are necessary in times of stress and difficulty. In such critical moments, powers may have to be given which may have the effect of keeping certain matters out of the purview of judicial scrutiny. But, when in the stress of such measures an act of injustice is properly brought to our notice, it becomes our duty to see that the liberty of any individual is not interfered with except in strict conformity with law. A great English Judge had once said in the midst of a mortal conflict between England and Germany, that "justice speaks the same language in peace and war". Whether in the midst of the clash of arms, or in the stress and storm of an emergency or in the calm and unruffled moments of peaceful prosperity, the administration of justice must be kept unimpaired. We may quote the observation of Lord Atkin in the case of Eshugbayi v. Officer Administering the Government of Nigeria ((1931) A C 662, 670). "In accordance with British jurisprudence no member of the Executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a Court of justice and it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the Executive." We shall endeavour, according to our lights, to maintain this great tradition established by great Judges throughout the world. We may add that it becomes incumbent on us to be all the more vigilant when persons unfamiliar with law ,and legal procedure are invested with wide judicial powers. We would like to emphasise that whereas it is our duty "to preserve, protect and defend the Constitution", it is also the duty of every citizen to respect it for, otherwise, no matter however vigilant we are, its provisions might, with the efflux of time, become dead and lifeless like tender rosepetals pressed in the forlorn or forgotten pages of history. The Court: Abdul Barik Sikdar, the order of the Court is as follows: We have found in your favour and make the Rule absolute and set you at liberty forthwith. The fine imposed on the prisoner if paid will be refunded. The paddy seized from the prisoner or, if disposed of, its equivalent value, as the case may be, will be returned to him. Mr. D. C. Roy, appearing on behalf of the District Magistrate, Special Magistrate (Food) as well as on behalf of the learned Advocate-General, prays for leave to appeal to the Supreme Court of Pakistan under Article 157 (1) of our Constitution. We certify that the case involves a sub stantial question of law as to the interpretation of the Con stitution, and the leave prayed for is granted. A. H. Petition accepted.