P L D 1959 (W (PLP)

Section 6.‑"If any person is admitted to any place of entertainment and the provisions of section 4 or 5, as the case may be, are not complied with, or the payment of the entertain ments duty is otherwise evaded, the Collector shall, in addition to the recovery of the entertainments duty evaded or under‑paid impose on the proprietor of the entertainment to which such person is admitted, a penalty not exceeding a sum of Rs. 500, or a sum not greater than five times the entertainments duty the payment of which was evaded, whichever is greater: "Provided that no such penalty shall be imposed unless the person on whom it is to be imposed or his duly authorised agent is given an opportunity of being heard by the Collector or by an officer authorised by him in his behalf". Section II (3).‑"If any person acts in contravention of, or fails to comply with any of the provisions of such rules or any direction given under section 10, he shall be liable in respect of each contravention, or failure, to such penalty not exceeding five hundred rupees as the Collector may determine." It would thus appear that under the new Act there was no provision for the prosecution of the offender before a Magistrate. Instead the powers of imposing the penalty were given to the Collector upto the same amount i.e., Rs. 500. The only obligation, which the Collector had under the new Act, was to hear the party or his agent before imposing the penalty. The contention raised by the accused was that inasmuch as the new Act had no provision for prosecution before a Magistrate and the old Act had been repealed, the prosecution must come to an end because the Magistrate had no more the jurisdiction to try the case pending before him. The learned Joint Sub‑Judge and First Class Magistrate rejected the application and held that he had jurisdiction. This hedid in an elaborate and well written order. An application was then made under sections 435 and 438 Cr. P. C. to the Sessions Judge, Nawabshah, praying that a recommendation be made to the High Court for quashing the proceedings which were pending before the Magistrate. The learned Sessions Judge accepted the contention put forward on behalf of the applicant and held that inasmuch as there was no provision in the new Act for prosecution of an offender under the Entertainment Duty Act in the Court of a Magistrate, it must be deemed that the legislature had intended by the new Act that the old liability should be destroyed. He has therefore recommended to this Court for quashing of the proceedings. Before me Mr. Mangaram Chandnani repeated the same arguments, which had been urged in the lower Courts except the argument based on Article 5 of the late Constitution. It however seems to me that the position is so clear that it admits of no doubt. In this case, the Sind Entertainment Duty Act, 1923 had been repealed by the West Pakistan Entertainment Duty Act, 1957 which came into force on 6‑7‑57. It is true that the new Act did not have any Saving Clause, but section 4 of the West Pakistan General Clauses Act clearly applied to this case. This position was conceded by the learned Sessions Judge. The provision of section 4 of the West Pakistan General Clauses Act, 1956, in so far as it is material for the present case, is as under:‑ "4 (I) Whether this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not. * * * * * * * (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or * * * * * * * (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investiga tion, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed." Having regard to the provision quoted above, the only question which falls to be considered is whether the pending proceedings are affected as a result of a different intention in the repealing Act. I pointed out to the learned counsel for the applicant Abrar Hussain that there was nothing in the new Act expressly stated, which showed a "different intention" so as to affect the pending proceedings, which as provided by section 4 (1) (e) of the General Clauses Act had to be continued and the punishment imposed as if the repealing Act had not been passed To this question, he replied by saying that the "different intention" in this case is not express but implied. According to him, it was implied by the mere fact that the new Act did not contain a provision for prosecution before a Magistrate for any contravention of the provision of the new Act, but it had instead authorised the Collector to impose a penalty not extending a sum of Rs. 500. 1 asked the learned counsel if he had any authority in support of such a proposition. He took time and when he appeared on the next date, all that he was able to do was to repeat the arguments of the previous days and he ended up by citing a Full Bench's decision Muhammad Bashir v. The Province of West Pakistan reported in (P L D 1958 Lah. 853). This case is clearly not applicable. It was held in that case that section 6 of the General Clauses Act did not apply to that case, because that was not a case of repeal. The learned Chief Justice pointed out that when an enactment becomes void, it was not on the same footing as though it had been repealed. That case was one under the Frontier Crimes Regulation (III of 1901), sections 11 and 12 of which had been rendered void having come in conflict with the Articles 4 and 5 of the late Constitution which had come into force on 23rd March, 1956. The sentence in that case had been passed, but before it could be confirmed the Constitution had come into force with .the effect as shown above. It was therefore held that the confirmation by the Commissioner after the coming into force of the Constitution was bad, because it took place under a law which had been rendered void. The learned Chief Justice further held in that case a follows:‑ "When the legislature repeals an enactment, it does se consciously, but when it says in a particular statute that any exist ing law which is inconsistent with that statute shall be void to the extent of inconsistency, it is contemplating a possible conflict, and is not necessarily contemplating a repeal, and therefore the contemplation of any saving clause is out of the‑ question. The framers of a Constitution must, of all persons, know what the effects of repeal are, and if they intend to save anything in a situation of a different kind, they must make their minds clear." A case which is very much in point is a Division Bench decision of this Court: Muhammad Irtiza v. The State reported in (P L D 1959 Kar. 94). This case related to the effect of the amendment of the Sea Customs Act's section 167 (8) by the Sea Customs Amending Ordinance of 1957, which was later on replaced by the Sea Customs Amendment Act (XXXIV of 1957). Before this amendment section 167 (8) of the Sea Customs Act contained two different punishments and two different modes for imposing the same. One was by confiscation of smuggled goods and imposition of fine not exceeding five times the value of the goods by the Customs authorities, and he other was punishment by a Court of law by imprisonment for a term not exceeding seven years or fine or both. As this provision was likely to come in conflict with Article 5 of the Constitution on the ground of discrimination, the provision of section 167 (8) of the Sea Customs Act was amended by making all contraventions of that provision punishable by Customs authorities only, by confiscation of smuggled goods and imposition of fine. The applicants in that case had applied to the High Court for the quashing of the proceeding which had been instituted under the Sea Customs Act on 9‑5‑54 in the Court of a Magistrate in respect of an offence alleged to have been committed on the 5th of April, 1954 and were later on committed to the Court of Sessions. A contention was raised in that revision application that in view of the amendment of the Sea Customs Act as noted above the case ceased to be triable by a Court of Sessions and went out of its jurisdiction and the offence became punishable by Customs authorities only. Their Lordships repelled that contention. They looked in the new Amendment Ordinance and the Act for a "different intention" with reference to section 6 of the General Clauses Act and they found that there was a different intention which had been expressed in section 3 of the Amendment Ordinance and the succeeding Act of 1957. The new section 3 read as follows:‑ "3. Anything done in pursuance of item 8 or item 81 of the Schedule to section 167 of the said Act (i.e., the Sea Customs Act) on or after the 23rd day of March 1956, and before the promulgation of this Ordinance shall be deemed to have been done in pursuance of those items as amended by this Ordinance." Their Lordships held that the different intention, as expressed in section 3 of the new Ordinance and the Act took effect both in respect of penalty and procedure retrospectively from 23rd of March 1956. In their Lordships' view, the effect of the different intention as expressed by the new Act ended at that point and their Lordships held that the offences committed before the 23rd of March 1956 and proceedings instituted before that date would continue to be conducted in accordance with the provisions of the Sea Customs Act as they stood before the 23rd of March 1956. With this view, I am in respectful agreement. I hold that a "different intention" such as contemplated in section 4 of the West Pakistan General Clauses Act cannot be inferred in this case merely because under the new Act, there is no provision for prosecution as under the Sind Entertainment Duty Act, 1923. Such an inference would be against all principles of interpretation. The proceedings before the Magistrate in this case are therefore clearly saved by the, operation of section 4 (e) of the West Pakistan General Clauses Act. In view of what I have said above, I regret I cannot accept the recommendation of the learned Sessions Judge as contained in the reference, I hold that the Magistrate had jurisdiction to proceed with this case as the alleges offences were committed before the new Act came into force, The reference is accordingly rejected. K. B. A. Reference rejected.