P L D 1950 Sind 49 (PLP)

(1) No circumstances existed to give power to the Governor under section 88 to promulgate the Ordinance. (2) That the Governor cannot act except with "the aid and advice" of his ministers, and in this case he did so without their aid and advice. The Ordinance was therefore, not, properly promulgated. (3) That section 88, clause (3) of the Government of India Act, says:

"If and so far as an Ordinance in this section make any provision which would not be valid if enacted in an Act of Provincial Legislature assented to by the Governor, it shall be void." In the present cage the Ordinance makes provision which would not be valid if enacted in an Act of Provincial Legislature, as it does riot relate to any of the items in Lists II and III of the Seventh Schedule of the Government of India Act. So far the first objection is concerned, it can easily be disposed of. The word ings of the section are :‑‑ "If at any time when the Legislature of a Province is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate fiction, he may promulgate such ordinance as the circumstances appear to him to require. From this it is clear that it is the Governor himself, who is to be satisfied about the existence of the circumstance which make it necessary for him to take immediate action. The Ordinance No. III of 1948 promulgated by him reads :‑ "Whereas the Legislature of the Province is not in session, and whereas the Governor of Sind is satisfied that circumstances exist which render it necessary for him to take immediate action to set up a special Court for investigation and inquiry in certain matters." This clearly shows that the Governor was satisfied about the existence of the circumstances which rendered it necessary for him to promulgate the Ordinance. Coming to the second objection regarding the Governor not having acted with the aid and advice of .his Council of ministers, Mr. Siraj has relied on section 50 of the Government of India Act, 1935 (as adapted by the Pakistan (Provisional Constitution) Order 1947) which says that there shall be a council of ministers to aid and advise the Governor in the exercise of his functions, and on section 8 clause (c) of the Independence Act, 1947; which says: "So much of the said provisions as requires the Governor. General or any Governor to act in his discretion or exercise his individual judgment as respects any matter, shall cease to have effect as from the appointed day." and has argued that, under the Government of India Act as it stands at present, the Governor has no power to act in his discretion or in exercise of his individual judgment, and he is bound to act in all matters with the aid and advice of the council of his ministers. Anything, therefore, done by the Governor except on the advice of the council of his ministers is illegal. In the plaint, there is an averment that, .in promulgating this Ordi nance, the Governor had not acted with the aid and on the advice of the council of his ministers. In the written statement filed by defendant No. 1, it was admitted that in promulgating this Ordinance, the Governor did not take; the aid and advice of his council of ministers. Relying on this fact, Mr. Siraj has argued that it having been admitted that the Governor in this matter had not acted with the aid and advice of the council of his ministers, the Ordinance was illegal. The reply of the other side is that there is no provision in the Government of India Act to the effect that the Governor is bound to act only with the aid and advice of his council of ministers, and that there is only a consti tution at convention by which the Governor is expected to act only with the aid and advice of the ministers; and not a statutory obligation upon the Governor to be guided by the advice of his council of ministers. Mr. Manzoor Qadir has, in support of this contention, relied on section 51, clause (4) of the Government of India Act, which says: "The question whether, and if so what, advice was tendered by the ministers to the Governor, shall not be enquired into in‑any Court. From this he has argued that no action of the Governor can he challenged in a Court of Law on the ground that the Governor had not acted on the advice of his ministers. He has further quoted from the Report of Joint Committee on Indian Consti tutional Reform (Sessions 1933‑34) Vol. I, Part I. paragraph

74. The relevant passage reads :‑ "On the other hand, we agree .that it would be undesirable to seep to define tile Governor's relations with his ministers by imposing a statutory obligation upon him, to be guided by their advice since to do so would be to convert a constitutional convention into 4 rule of law and thus, perhaps, to bring it within the cognizance of the Courts." He has also referred to a case reported in AI R 1948 Mad. 758, where it has been held "There is no provision in the Act which requires the Governor to consult his ministers before performing executive acts. The instrument of instructions implies that he should consult his Ministers for without consulting them, he would not be able to be guided by their advice; but he is not legally required to do so. The remedy for an unconstitutional act on the part of the Governor is not legal action but constitutional action the resignation of the ministry if they consider that the unconstitutional act of the Governor is of sufficient importance to warrant their resignation,, and a request that the Governor be recalled. It is true that the whole scheme of the Act is that the Gover nor should be a constitutional Governor who is expected to act with the aid and advice of his ministers. There is, however; no de finite provision in the Act which creates an obligation on him to be guided by the advice of his ministers. The words "aid and advice" ire section 50 seem to have been deliberately u9ed to keep the matter outside the cognizance of the Courts of law and to leave it to the Governor to act according to constitutional convention prevailing in all the other Dominions. " At one stage of the proceedings: I was inclined to be of the view that, as the defendant No. 1 had admitted in his written statement that the Governor bad not acted on the advice of his ministers, 1 could go into the question and decide whether on account of this the Sind Ordinance II of 1948 was properly promulgate or not. But on a further consideration of the matter, however, I am of tire opinion that clause 4 of section 51 takes away completely the jurisdiction of the Courts to decide this question. In my opinion, the question whether the Governor did or did not act on the advice of his ministers, cannot directly or indirectly be considered by the Court. Even if I had held that this question can be gone into by the Court, the objection must fill on the ground mentioned above, namely, that a Governor's act would only be against constitutional convention and not against any statutory obligation; it cannot therefore, affect the legality of the Ordinance. Coming to the third objection of Mr. Siraj viz., that the Sind Ordinance II of 1948 did not fall within the purview of any of the matters in List II or List III of the Seventh Schedule to the Government of India Act, it has to be seen what does the Ordinance itself say about matters in which the inquiry Say to be held. Section. 3 of the Ordinance says: "The Governor may, for the investigation and inquiry into matters specified in the Schedule, constitute a Court." The Schedule referred to reads:

"Mal administration; gross misconduct in the discharge of duties and responsibilities and corruption by Mr. M. A. Khuhro, ex‑Premier, Sind Government.'' Froth this it will be seen that the Special Court of Inquiry consti tuted udder this Ordinance was to hold an inquiry in the matter of mal administration, gross misconduct in the discharge of duties and responsibilities and corruption' by Mr. Khuhro, ex‑Premier, Sind Government. Mr. Manzoor Qadir; who appears for the Federation of Pakistan, has argued that the Ordinance falls within the purview of items 1, 2 and 38 of List II as well as within items 1, 15 and 24 of List III. According to him, it comes within the words, "the administration of justice; constitution and organization of all Courts except the Federal Court" in item No. (1), "jurisdiction and powers of all Courts" in item No. (2), and "inquiries" in item No.

38. That the ministers were "Officers subordinate to the Governor and were bound by the Rules of Business framed by the Governor under section 59" becomes clear from the case of King Emperor` v. Sibnath Banerji, reported in A I R 1945 P C 157, in which the following observations were made by their Lordships: "Nor is it necessary for their. Lordships to consider whether individual judgment' excludes the operation of section 49, sub section (I). So far as it is relevant in the present case, their Lordships are unable to accept the suggestion by counsel for the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of section 49, subsection (1), and so far as the decision in Emperor v. Hemendra Parsad Gosh I L R (1939) 2 Cal. 411 decides that a minister is not such an officer, their Lordships are unable to agree with it. While a minister may have duties to the Legislature, the provi sions of section 51 as to the appointment, payment and dismissal of ministers, and section 59, subsections (3) and (4), of the Act of 1935, and the Business Rules made by virtue of section 59, placed beyond doubt that the Home Minister is an officer subordinate to the Governor. "Their Lordships are therefore in agreement with the learned Chief Justice of the Federal Court that such matters as those which fell to be dealt with by the Governor under rule 26 could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chapter II of Part III of the Act of 1935, and, in particular, under the provision of section, 49, and the Rules of Business made under section 59." There seems, therefore, to be no reason wiry the Provincial Legislature should not be competent to enact legislation for the constitution of a Court to enquire into the conduct of a minister who is an officer subordinate to the Governor: Two decisions of the Federal Court: (1) United Provinces v. Mst. Atiqa Begum, 1940 F C R 110 and (2) Bhola Prasad v. The King Emperor 1942 F .C R 17 lay down the mode of approach which should be followed in construing the entries in the various lists in the, Seventh Schedule, In the first case, the learned Chief justice Sir Maurice Gwyer, made the following observations:‑-- "The subjects dealt within the three Legislative lists are not always set out with scientific definition. It would be practically impossible for example to define each item in the Provincial List in such a way as to make it exclusive of every other item in that list, and Parliament seems to have been content to take a number of comprehensive categories and to describe each of them by a word of broad and general import. In the case of some of these categories, such as `Local Government', `Education', 'Water', `Agriculture', and `Land', the general word is amplified and explained by a number of examples or illustrations some of which would probably on any construction have 'been held to fall under the more general word, while the inclusion of others might not be se obvious. Thus 'Courts of Wards' and 'treasure‑trove' might nor ordinarily have been regarded as included under `Land' if they had not been specifically mentioned in item No. 21. "I think, however that none of the items in the lists is to be read in a narrow or restricted sense, and that each general Word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be com any, attempt to enumerate in ended in it I deprecate advance all the matters whirl: are to be included under am of the more general descriptions; it will be sufficient and much wiser to determine each cast as and when it comes before this Court." In the second case, the learned Chief justice says:‑-- "We must again refer; to the fundamental proposition, enunciated in The Queen v. Burah 1878, 3 App. Cas. 859, that Indian Legislatures within their own sphere leave plenary powers of legislation as large and of the same nature as those of Parliment itself. If that was true in 1878, it cannot be less true in 1942. Every intendment ought, therefore, to be made in favour of a Legislature which is exercising the powers conferred on it. Its enactments ought not to be subjected to the minute scrutiny which may be appropriate to an exa mination of the by‑laws of as body exercising only delegated powers, nor is the generality of its power to legislate on a particular subject to, be cut down by the arbitrary introduc tion of far‑fetched and impertinent limitations. It was even contended on behalf of the appellant that the specifying of a particular subject matter of legislation necessarily indicated the intention "of Parliament that the subject matter should be preserved, since, unless it were preserved, there would be no subject matter about which to legislate. This argument is sufficiently refused by the presence in List II of such Legis lative subjects as 'unemployment' in entry No. 32 or 'gambling' in entry No.

36. The argument of Mr. Siraj, for the plaintiff, is that the Special Court of Inquiry constituted under tire Sind Ordinance' II of. 1948 had merely to "submit its report and it could not, under the Ordinance, give any decision‑ on the matter; nor was its decision capable of being enforced, and therefore, the inquiry held by this Court cannot be covered by words: "the administration of justice" as used' in item (1) .of List II. In support of his contention, he has relied on the case of P. V. Rao and others v. Khushaldas S. Advani reported in A I R 1949 Bom.

277. The head‑note reads: "A true judicial decision presupposes an existing dispute between two or more parties and that involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to dispute; (2) if the dispute between them is a question of fact; the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts se found, including, where required, a ruling upon any disputed question of law. A Quasi‑judicial decision involves requisites (1) and (2), does not necessarily involve (3), and never involves (4)" As pointed out by the Federal Court, each item in the list constitutes a category and the meaning of the words in each category is not to be cut down by excluding, matters which are ancillary or connected with the subject‑matter of the item in question. Under section 432 of the Criminal Procedure Code, the High Court exercises its advisory jurisdiction and decides questions of law referred to it these findings on questions of lave or fact are communicated to the subordinate Courts, and yet in none of these cases it can be said that the decision of the High Court is capable of being enforced by the physical force of the State. It cannot however, be doubted that, in giving‑those decisions, the High Court was exercising the functions of administration of justice. Similarly, under section 213 of the Government of India Act, the Governor‑General has the power to consult the Federal Court op certain questions of law. This advisory jurisdiction has been exercised' by the Federal Court to a number of cases. The Federal Court only submits its report to the Governor‑General, but gives no decision which could be executed by the physical force of the state. In exercising this advisory jurisdiction, the Federal Court undoubt edly exercises the functions of administration of justice. There therefore, no doubt in my mind that the words: "the adminis tration of justice" are sufficiently wide to cover legislation relating to an inquiry into the conduct of a Provincial Minister. The word "inquiries" in item No. 38 of List II is also compre hensive enough to cover judicial inquiries. The subject matter of the inquiry, therefore, comes within the purview of the words "the administration of justice" and the constitution of the Court of Inquiry comes within the words constitution and organisation of all Courts" in item (1), and the words "jurisdiction and powers of all Courts...with respect to any of the matters in this List" in item (2) of List II. I am, therefore, of the opinion that Sind Ordinance II of 1948 was properly promulgated and is not ultra tires the Governor of Sind. Issue No. 2.‑I will now take up issue No. 2, which relates to legality or otherwise of the Public and Representative Offices (Disqualification) Act of 1949. The argument of Mr. Siraj is that this Act is bad on three grounds:

1. That the assent of the Governor‑General was necessary, and as it has not been given in this case, this legislation has not become an Act yet.

2. That this Act does not relate to any of the matters mentioned in Lists I and III of the Seventh Schedule.

3. That the Act cannot be given retrospective effect, and has not been so given. Coming to the question of the assent, the argument of Mr. Siraj is that, under section 32 of the Government of India Act, 1935 (as adapted by the Pakistan (Provisional Constitution) Order 1947), when a Bill has been passed by the Federal Legislature, it shall be presented to the Governor‑General for his assent, and it does not become an Act unless the Governor‑General has given his assent to it. He has also referred to page 152 of The, New Constitution of India by Joshi, where it is said: "The Indian' Legislature has powers to make laws for whole of India. No Bill becomes law unless it is passed by both Houses and receives the assent of the Governor‑General" Mr. Siraj has further relied on section 6, clause (3) of the Indian Independence Act, 1947, which reads: "The Governor‑General of each of the new Dominions shall have full power to assent in His Majesty's name to any law of the Legislature of that Dominion and so much of any Act as relates to the disallowance of laws by His Majesty or the reservation of laws' for the signification of His Majesty's pleasure thereon or the suspension of the operation of laws until the signification of His Majesty's pleasure thereon shall not apply to laws of the Legislature of either of the new Dominions". From this Mr. Siraj has argued that all laws passed by the Legislature of the Dominion require‑the assent' of the Governor General. Mr. Manzoor Qadir, who appears for the Federation of Pakistan, has on the other' hand relied op section 6, clauses (1) and (2) and section 8 clause (1) and proviso clause (e) in support of his contention that the Act did not require the assent of the Governor General, as it was passed by the Constituent Assembly sitting as a constitution making body and not as, the Federal Legislature. Section 6 clause (1) reads : The Legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extra‑territorial operation". Clause (2) of this section reads "No law and no provision of any law made by the Legislature of either of the new Dominions shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act of Parliament, etc., etc". Section 8, clause (1‑) reads:

"In the case of each of the new Dominions, "the powers of the Legislature of the Dominion shall, for I the purpose of making provision as to the constitution of the Dominion: be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the Legislature of the Dominion shall be construed accordingly". Clause (e) of the proviso reads:

"The powers of the Federal Legislature or Indian Legislature under that Act, as in force in relation to each Dominion shall in the first instance, be exercisable by the constituent Assembly of the Dominion in addition to the Dowers exercisable by that Assembly under subjection (1) of this‑section". From this it is clear that the Constituent Assembly has the powers of the Dominion Legislature as well as of the Federal Legislature. As the Federal Legislature it can only exercise powers given to the Federal Legislature under the Government of India Anti 1935, but as Dominion Legislature the powers of the Constituent Assembly to make laws for the Dominion are unlimited. It is admitted that this Act was passed by the Constituent Assembly as the Dominion Legislature and not as the Federal Legislature. There is nothing in subsection (3) of section 6 of the Indian Independence Act to show that the laws passed by the Dominion Legislature required the assent of the Governor‑General. All that this clause says is that in cases where the assent of His Majesty may be necessary, it shall be given by the Governor‑General in His Majesty's name. Clause (2) of section 6 very definitely says that no law and no provision of any law made by the Dominion Legislature shall be. void or inoperative on‑the ground that it is repugnant to any law, including the Indian Independence Act itself. The argument of Mr. Manzoor Qadir, is that this provision in section 6 would make the Act valid even if. there existed any provision in any law which required the assent of the Governor‑General. I have' no doubt in my mind that there is no limit imposed upon the Legislative' power of the Constituent Assembly sitting as a constitution making body. No assent of the Governor‑General was, therefore, necessary Mr. Siraj leas further referred to section 102 of the Government of India Act, 1935, which says that in case of an emergency, the Federal ‑Legislature cu make all laws irrespective of the‑ fact whether' the subject is included in any of the Lists of the Seyentt. Schedule, to the Government of India Act, and argued that on 30th August 1949. an emergency was declared under section 102 of the Government of India Act, and therefore, the Federal Legislature could pass the present Act also as an. Act of the Federal Legislature which will require the assent of ` the Governor‑General. Apparently, what Mt. Siiaj wants me to hold is that, because at that time the Federal Legislature had the power to legislate the present Act, it must, therefore, be taken to have been passed by the Federal Legislature: This, however, is against the admitted facts that the Act was passed by the Constituent Assembly as the Dominion Legisla ture and not as the Federal Legislature. Coming to the second objection of this subject not being included in the Lists, here again, the other side has relied on the provisions of section 6 of the Indian independence Acts which ‑have been reproduced above, and argued that no objection could be taken to‑the powers of the Dominion Legislature on the ground that the subject is not included in any of the Lists. The section clearly says that the powers of the Dominion Legislature are a unlimited to make any laws. This objection also therefore fails: Coming to the third objection, a perusal of the Act‑ itself shows very clearly that it was given retrospective effect. The language used in the Act itself is "It shall come into force at once and shall be deemed to have taken effect on the 15th day of August 1947." The words used leave no room for doubt, and it is clear that the Act was intended to be made ‑retrospective and it has been so made The question, whether this Act was ultra sires, was also raised in the matter of Khan Ifitkhar Hussain Khan of Mamdot, reported in 1950. The All‑Pakistan Legal Decisions at page 12, where the learned judges have held that the assent of the Governor General was not necessary and the Act was not ultra vires the powers of the Constituent Assembly. My finding on issue No 2 is therefore in the negative. Issue No. 7.‑Section 6 of the Act says: "Any order of the Governor‑General under section 3 shall be final and shall not be called in question in any Court". It is conceded by Mr. Manzoor Qadir that this suit is not barred, as the Court has got the power to go into the question whether the order passed by the Governor‑General is in exercise of the powers given to him under section 3 of the Act or has been passed beyond jurisdiction, that is to say, that the order passed could not be so passed under the provisions of section 3 of, the Act. My finding therefore is that the suit is not barred. Issues Nos. 3. 4, and 5.‑These are connected issues and relate to the question whether tire Special Court of Inquiry set up by the Governor of Sind under the Sind Ordinance 11 of 1948 can be deemed to be a Tribunal set up for the purposes of the Public anal representative Offices (Disqualification) Act, 1948, so that the report made by it can be made the basis of the disqualifica tion order. Mr. Siraj has referred to the words judicially found guilty occurring in the Preamble of, the Act, and argued that the proceedings held by the Special Court of inquiry set .up under the Sind Ordinance No. II of 1948 cannot be called "judicial proceedings". I have already while discussing Issue No. 1, said that the proceeding; in this case were judicial, irrespective of the fact that the Court had no poorer to inflict any penalty or to enforce its orders. The argument then is that the ‑word "misconduct" has been defined in the Public and Representative Offices (Disqualification, Act, while in the Sind Ordinance II of 1948, the words "mal administration and `gross misconduct' appearing in the Schedule have not been defined, and therefore, the finding of the Special Court of Inquiry constituted under Sind Ordinance 11 of 1944 can not be a finding with respect to misconduct as defined in the Public and Representative Offices (Disqualification) Act, 1949. It is true that the Ordinance does not define these words and it does not say that "misconduct" will include "Wilful mal administration". The words used in the Schedule, however, are "maladministfation" and "gross misconduct". The charge of gross' misconduct is undoubtedly a more serious charge than a mere misconduct. There is a further fact to be considered that in the plaint, the, plaintiff‑ has not said that he had not been found guilty of misconduct as defined: in. the Public and Representative Offices (Disqualification) Act, 19'

19. The only objection taken there is that the Tribunal was not set up in this behalf. The actual words in the plaint are :

"The plaintiff was not found guilty by Federal Court or a High Court, but he was found guilty by a Special Court of Inquiry and which was not a Tribunal set up in this behalf, that is to say, for the purpose of "the Public and Representative Offices (Disqualification) Act, 1949. Mr. Siraj has then argued that the Special court of Inquiry set up under the Sind Ordinance No. II of 1948 was not a Tribunal set up in this behalf within the meaning of section 3 of the Act, and that the words is found guilty mean, that he should be found guilty after this Act was passed The relevant words in the section are :‑‑ "Any person who is found guilty by ...a Tribunal set up in this behalf by ...a Governor of misconduct in, or in a matter relating to his office or capacity as a minister...shall, upon the public notification of an order of the Governor‑General in this behalf and for such period not exceeding 10 years, as the Governor. General may appoint in the order, be disqualified for being and for being chosen as a Minister..." The heading of this section is "DISQUALIFICATION FOR MISCONDUCT IN A PUBLIC OFFICE". According to Mr. Siraj the words "is found guilty" mean "shall be found guilty" and not "shall have been found" and, therefore, if a person has been found guilty before the passing of the Act, his case cannot come within the purview of section

3. To me, however, it appears that whatever the interpretation of tile words "is found guilty", on this point, the case of the plaintiff will come within the provi sion's of section 3, as said above, the Act has been made retrospective, and there are clear words in the Act itself which say that it shall be deemed to have taken effect on the 15th of August 1947. The finding of the Special Court of Inquiry was given after, and not, before, .the 15th August 1947, and therefore, there is no force in the contention that the case of the plaintiff is not covered by the provisions of section 3 of the Act on this point. The main argument of Mr. Siraj is that the words "in this behalf" occurring in section 3 of the Act mean not only that the Tribunal should have been set for the purpose of finding out whether the person has been guilty of misconduct, but that at the time of the setting up of the Tribunal, there must be the further fact present in the mind of tire Governor that on the finding of the Tribunal, the question of disqualification of that person would have to be decided. The argument of the other side is that the words "in this behalf" have reference only to the question of the finding about misconduct, and it is immaterial if at the time of the setting up of the Tribunal by the Governor, the question of disqualification of the plaintiff was not under considera tion. Mr. Manzoor Qadir further argued that, at the time of the appointment of the Tribunal, the question of disqualification of the plaintiff' was under consideration, or in other words, the Governor had in view this question. There is however, nothing in the Ordinance itself, or otherwise to show that at that time there was any question of disqualification of the plaintiff in case he was P found guilty of misconduct The contention of Mr. Siraj, is that the object of setting up the Special Court of Inquiry under the Ordnance was to give an opportunity to the plaintiff to .clear up is conduct and show that he was not guilty of the charges on which he had been dismissed from the office of the Premier of Sind at the time of promulgation of the Sind Ordinance 11 of there was no law by which the plaintiff on being found guilty of misconduct, besides being dismissed from office could be further punished by being disqualified from holding the office of a minister, etc. I am therefore, of opinion that at the time of the promulgation of the Ordinance and the setting up of the Tribunal, the Governor had into few the question of dis qualification of the plaintiff. The whole,, question, therefore, is whether the words "set up in this behalf mean that the question of disqualification should also have been in view at that time. Mr. Siraj has argued that this Act besides being, a penal law, has also been made retrospective, and should, therefore, be very strictly construed. In this connection, he has referred to Maxwell on Interpretation of Statute at page 227, where it is said: "But the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. Where enactment may entail penal consequences, n(' 0olence must be done to its language to bring people within it, but rather card must be taken that no one is brought within it who is not within its express language. To determine that a case is within the mischief of a statute, its language must authorise the Court to say so, but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provisions so far as to punish a crime not specified in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated, If the Lagislature has not used words sufficiently comprehensive to include within its prohibition all the cases which fall within the mischief intended to be prevented, it is not competent to a Court to extend them. It is immaterial, for this purpose, whether the proceeding prescribed for the enforcement of the penal law be criminal or civil." Craies on Statute Law, at page 111, says :

"In cases of doubt Courts will lean to a construction that an enactment is not intended to impose serious new obligation, but only to provide new or better means of enforcing an existing obligation. In Re Curio, Bowen L. J. Said : "In the construction of statutes you must not constitute the words so as to take away rights which already existed before the statute was passed, unless you have plain words which indicate that such was the intention of the Legislature." Therefore rights, whether public or private, are not to be taken away or even hampered, by mere implication from the language used in a statute, unless, as. Fry, J., said in Mayor, etc., of Yarmouth v. Simmons, "The Legislature clearly and distinctly authorise the doing of something which is physically inconsistent with the continuance of an existing right." "In order to take away a right, it is not sufficient' to show that the thing sanctioned by the Act, if done, will of sheer physical necessity put an end to the right it must also be shown that the Legislature have authorised the thing to be done at all events and irrespective of its possible interference with existing rights. Again; at page 332, the learned author has said.‑ The particular rule of construction which has been referred to, but which is valuable only when the words of an Act of Parliament, are not plain, is embodied in the well‑known trite maxim, Ornirts nova eonstitutio futuris forman imponere debet non proeteritis‑that is, that, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights It seems to me that even in construing an Act which is to a certain extent retrospective, and in construing . a section which is to a certain extent retrospective, we ought nevertheless, to bear in mind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition, that you ought net to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legis lature meant." Now these words "set up in this behalf" occur in section 3 of the Act, and as said above, the heading of this section is "Disqualification for Misconduct in a Public Office " In the section the same words are used again with reference to the order of the Governor‑General the sentence reads, "upon the public notification of at order of the Governor General in this behalf and for such period not exceeding ten years as the Governor‑General may appoint in the order." Here, the words "in this behalf" undoubtedly mean "about dis qualification ", because the order of the Governor‑General has to be about the disqualification of 'the person found guilty of mis conduct. Looking to the fact that the Act is penal inasmuch as it takes away the rights and privileges vested in a person, and further, taking into consideration the fact that it has been given retrospective effect the words in the section are to be so construed as to interfere as little as possible with vested rights. In my opinion, it cannot be said that the words "in this behalf" only refer to the finding of the Tribunal regarding misconduct. If this was the meaning given by the Legislature to these words, it would not have used the same words in the section again in connection with the order of the Governor‑General in the passage reproduced above in a different sense. There is no reason to suppose that the Legislature intended to give different meanings to the same words, when appearing in a section at two different places. Taking therefore, into consideration the fact that this is a penal Act and has been made as retrospective, the proper construction to be put on the words "in this behalf" is that the Tribunal should have been set up with a view to consider the disqualification of the person whose conduct was being enquired into. At the time of the arguments, it was suggested by Mr. Manzoor Qadir that the Legislature intended this Act to cover the case of the plaintiff, who himself was fully aware of it, and therefore, he had given notice of moving a number of amendments. The reply of the other side was that the fact that the plaintiff did not move any amendment, on the contrary, went to show that this Act was not intended to cover the case of the plaintiff. This, however, is beside the point, because the statute has to be interpreted in the light of the words used in it, and in case two different interpretations are possible, the one that does not take away the existing rights is to be preferred. There is further fact to be considered, and it is that if the Legislature intended that, at the time of the setting up of the Tribunal, the Governor may not‑ have had in view the question of the disqualification of the person, the words "in this behalf" appearing in section 3 of the Act after the words "Tribunal set up" would be superfluous, because that object could be achieved by merely saying "Any person who is found guilty by--a tribunal set up by a Governor of misconduct." One of the rules of interpretation of the statute is that every word used in the statute is intended to have some effect and be of some use and no word is to be considered as superfluous or redund ant. (Craies on Statute Law page 99, fourth edition). The words "in this behalf" occurring after the words "Tribunal set up" were, therefore, in my opinion, deliberately put in to show that at the time of the setting up of the Tribunal, the Governor must have in his mind the question of the disqualification also. As shown above, at the time of the promulgation of the Sind Ordinance II of 1948 and the setting up of the Special Court of Inquiry or Tribunal the Governor of Sind had not in view the question of further disqualification of the plaintiff Undoubtedly, the object of setting up this Special Court of Inquiry was to give a chance to the plaintiff to vindicate his character by showing that tie was not guilty of charges relating to misconduct on which he had been dismissed from the office of the Premier of Sind. The Special Court of Inquiry, therefore, cannot be deemed to be a Tribunal set up in this behalf for the purposes of the Public and Representative Offices (Disqualification) Act, 1949 and its report cannot be made the basis of an order under section 3 of the Public and Representa tive Offices (Disqualification) Act, 1949. The order of the disquali fication of the plaintiff, therefore, is inoperative, illegal and ultra vices. Coming to the question of relief to which the plaintiff is entitled, I have already said above that he' is not entitled to any relief against defendant No.

2. As regards defendant No. 1, I gold, as shown above, the plaintiff is not entitled to the relief of injunction. He is, however, entitled to the relief of declaration that the order of disqualification passed against him by the Governor General under section 3 of the Public and Representative Offices (Disqualification) Act, 1949 is inoperative and he continues to be a member of the Sind Legislative Assembly and the Constituent Assembly of the Dominion of Pakistan. I, therefore, decree the plaintiff's suit with respect to the above declaration sought for against defendant No. 1 only. His suit for injunction against defendant No. 1 and the entire suit against defendant No. 2 is dismissed. I direct the defendant No. 1 to bear the costs of the, plaintiff, and the plaintiff to bear the costs of the defendant No: 2 of this suit. K. M. A. Declaration granted.