P L D 1970 Supreme Court 253 (PLP)

M. R. KHAN, J.

Syed Ghulam Ali Shah, the appellant of Civil Appeal No. K-19 of 1969 (hereinafter called `the appellant') and Muhammad Ismail, the petitioner of Civil Petition for Special Leave to Appeal No. K-132 of 1969 (hereinafter called 'the petitioner') were separately proceeded against under the West Pakistan Control of Goondas Ordinance, 1959 (W. P. Ordinance No. XXXV of 1959) fDr being declared 'goondas' thereunder. The proceedings taken against them are still pending. The appellant filed Writ Petition No. 324 of 1968 in the Karachi Bench of the West Pakistan High Court calling in question the validity of the proceeding taken against him. The writ petition was pressed on two points. It was firstly contended that the West Pakistan Control of Goondas Ordinance. 1959 (hereinafter called `the Ordinance' or `the impugned Ordinance') was void as the same did not receive the assent of the President under Article 110(2) of the 1956-Constitution, read with Article 5 of the Laws (Continuance in Force) Order, 1958. The second contention was that similar proceeding on the same allegations which had been earlier taken against the appellant under the Ordinance was quashed by the High Court and, as such, he could not be proceeded against for the second time on those allegations. The learned Judges of the High Court found no sub3tance in either of these contentions and accordingly dismissed the appellant's writ petition. In dismissing the writ petition, the learned Judges took the view that the validity of the Ordinance, in view of paragraph 3 of the President's Order No. 17 of 1959, was not open to challenge and that the fresh proceeding against the appellant was based on a number of fresh grounds. Leave, however, was granted in this case to examine only the vires of the Ordinance. The petitioner Muhammad Ismail filed Writ Petition No. 629 of 1969 challenging the validity of the proceeding taken against him under the Ordinance. The only ground urged in his writ petition was that the Ordinance itself was void for want of assent of the President. Following a decision of the same High Court in the case of Ghalam Muhammad v. State (1), that the Ordinance is not ultra vires, the learned Judges dismissed the petitioner's writ petition. The petition for special leave is directed against the judgment of the High Court. The Civil Appeal and the Civil Petition under consideration thus involve a common question of law whether the West Pakistan Control of Goondas Ordinance, 1959 is a valid piece of legislation. This Ordinance was made and promulgated by the Governor of West Pakistan on the 4th day of June 1959. The question of validity of the Ordinance depends upon what legislative powers vested in the Governor on the said date. The Constitution of 1956 which conferred law-making powers on the Provincial Legislature and the Governor was abrogated by the Proclamation of the 7th day of October 1958. With the abrogation of the said Constitution, all the Legislatures in the country stood dissolved. The power of making laws within certain sphere was, however, conferred afresh on the Governor by the Laws (Continuance in Force) Order, 1958 (President's Order No. 1 of 1958) which was given retrospective effect from the time of the making of the Proclamation of the 7th day of October 1958. Clause (1) of Article 5 of the President's Order No. 1 of 1958 which precisely conferred fresh law-making power on the Governor was as follows :- "5.

( P L D 1969 Lah. 767) The powers of a Governor shall be those which he would have had the President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinances as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force." An examination of the said clause (1) of Article 5 in the light of the provisions of Article 106 and clauses (t) and (3) of Article 102 of the 1956-Constitution shows that the Governor was invested with unrestricted power of making Ordinances with respect to matters in the Provincial List and also with power of making Ordinances with respect to matters in the Concurrent List subject to the limitation that such Ordinances containing any provisions repugnant to an existing law or an Act of Parliament in respect of a matter in the Concurrent List required the previous instructions of the President or his assent. (The Provincial List and the Concurrent List referred to above are the two out of three Legislative Lists in the 1956-Constitution). In an earlier case, namely, the case of Muhammad Afzal v. The Commissioner, Lahore Division (P L D 1963 S C 401), this Court, having regard to the provision of clause (1) of Article 5 of the President's Order No. 1 of 1958, took the same view as follows :- "After the proclamation of Martial Law, however, clause (t) of Article 5 of the Laws (Continuance in Force) Order gave to the Governor the power of making Ordinances in the same manner and within such limitations as were prescribed in clauses (1) and (3) of Article 102 and Article 106 of the late Constitution. Under clause (t) of Article 102 the Governor had the power of making Ordinances subject to the same restrictions as applied to the Provincial Legislature itself in making laws ; provided that the Governor could not, without the previous instructions of the President, promulgate any ordinance if an Act of the Provincial Legislature containing similar provisions would have been invalid unless it had received the assent of the President. Under Article 105 of the late Constitution in respect of a matter in the Concurrent List both Parliament and the Provincial legislature had power to make laws, but under Article 110 it was provided that .in the event of repugnancy between a Provincial law and an existing law or an Act of Parliament in respect of a matter on the Concurrent List, the Act of the Provincial Legislature was to prevail, if the bill of th-. Provincial Legislature had been received for the consideration of the President and had received his assent. Thus it would appear that under Article 5 of the Laws (Continuance in Force) Order a Governor could promulgate an Ordinance containing provisions repugnant to an existing law or an Act of Parliament in respect of a matter on the Concurrent List if the Ordinance had been made under the previous instructions of the President or had received the subsequent assent of the President." The law-making power of the Governor as aforesaid was, however, subject to the provisions of clauses (2) and (3) of Article 5 of the President's Order No. 1 of 1958. But, in the instant case, the provisions of the said clauses were not attracted in making the impugned Ordinance. It is true that the Ordinance under examination was not made with the previous instructions of the President, nor did it receive the President's assent. But the Ordinance cannot be held to be invalid on this score unless it is found that its subject-matter is relatable to an entry in the Concurrent List and that its provisions are repugnant to any provisions of an `existing law' or an earlier Act of Parliament with respect to the same subject-matter. Mr. Kazi Akhtar Ahmad appearing for the State submitted that the subject-matter of the impugned Ordinance, falls within the Provincial List exclusively and .is relatable to entries 1, 5 and 91 of that - List. Mr. Riaz Hashmi, learned counsel for the petitioner, on the other hand, contended that entry 1 in the Concurrent List, in so far as it relates to criminal law including criminal procedure, attracts the subject-matter of the Ordinance. In order to resolve this controversy, it is necessary to examine the impugned Ordinance for the purpose of ascertaining its real scope, object and purpose. Before undertaking an examination of the Ordinance, it would be useful to state here the well-recognized rule of interpretation of a Constitution Act. The rule is that where a Constitution Act distributes legislative powers between different law-making bodies, a statute enacted by any such body should be examined to ascertain its `pith and substance', or its `true nature and character' for the purpose of determining the real field of legislation within which the subject-matter of the statute lies. Placing, reliance on a number of decisions of the Privy Council; Sir Maurice Gwyer, C. J. stated the rule in Subrahmanyan v. Jhluttustvami Goundan (1940 F C R 188), as follows :- "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject to another list, and the different provisions of the enactment may- be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its `pith and substance', or its `true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or in that." This `pith and substance' rule was re-affirmed by the Federal Court of India in the case of United Provinces v. Aliga Begum (1940 F C R I 10

A I R 1941 F C 16). In Muhamrnad Yusuf v. The Crown (1956 F C R 46=P L D 1956 F C 395), the Federal Court of Pakistan adhered to this rule. In Prafulla Kumar Mukherjee v. Bank of, Commerce Ltd., Khulna (AIR 1947 P C 60=P L D 1947 P C I), the Privy Council endorsed the rule stated by Sir Maurice Gwyer, C. J. and made the following further observation in support thereof :- "Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enacament of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficient legislation would be stified at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with." The impugned Ordinance should be examined keeping in view the aforesaid rule of interpretation. The object and purpose c of the Ordinance, as stated in its preamble, is `to consolidate and, amend the law relating to the control of disorderly person's commonly known as goondas in the Province of West Pakistan'. Sections 2 to 5 deal with the constitution of Tribunals for carrying into effect the purposes of the Ordinance and the jurisdiction of such tribunals. Sections 6 to 12 deal with ancillary and subsidiary powers of the Tribunals and the procedure to be followed in a proceeding initiated against a person for declaring him a goonda. Section 13 empowers the Tribunal to declare a person complained against to be a goonda. The grounds justifying such an action are detailed in clauses (a) to (z) of that section. All these grounds obviously relate to anti-social activities. Section 14 authorises the Tribunal to release a declared goonda after due admonition and obtaining bond for good behaviour. Under this section, the Tribunal may prohibit the declared goonda to visit certain places and may also direct him to report himself at such times and places as may be specified in the order. Moreover, his movements to any specified place or area may be restricted or he may be directed not to reside within specified areas. The Tribunal's order declaring a person goonda is required to be published under section

15. Section 16 makes provision as regards the form of the bond and its enforcement. Section 17 authorises the Tribunal to discharge, the person proceeded against if no action against him under section 13, in its opinion, is called for. The person proceeded against has aright to appeal to the Divisional Commissioner under section

18. The Tribunal's order under section 13 or section 16 is liable to revision by the High Court. For purposes of record, the photograph of every declared goonda and his finger-impression or specimens of his handwriting can be taken under section

20. Section 21 makes provision for penalties for breaches of orders passed under the Act. Offences under the Ordinance have been made cognizable and non-bailable under section 22 thereof. Section 27 provides for transfer of a case from one Tribunal to another, and section 27-A permits withdrawal of any proceeding pending against any- person. Lastly, section 28 empowers the Government to make rules for carrying out the purposes of the Ordinance. These provisions of the Ordinance, in `pith and substance' are intended to control disorderly persons and thereby to prevent anti-social activities such as are calculated to cause breaches of the peace or disturbance of public tranquillity, public safety and social security. Accordingly, the subject-matter of the Ordinance may be rightly said to be relatable mainly to "Public order' under entry 1 of the Provincial List;. Now it is another well recognized canon of interpretation that a provision of al Constitution Act should not be construed in a narrow or restricted sense, but widest possible construction should be given to it according to the ordinary meaning of the words used and each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in the same. In this regard, reference mayl be made to Meghraj v. Allah Rakhia (AIR 1947PC72=PLD 1947PC25), United Provinces v. Atiqa Begum and Muhammad Nur Hussain v. Province of East Pakistan (P L D 1959 S C (Pak.) 470). Having regard to this rule of interpretation, the entry "Public order" should be taken in its most comprehensive sense so as to include public peace, public tranquillity, public safety and social security the maintenance of which is the real object and purpose of the impugned Ordinance. As the Ordinance provides for imposing restrictions on movements of a person declared as a goonda and further provides for restricting his residence within specified areas, an element of `preventive detention' is there in the Ordinance. In this sense, a part of the subject-matter of the Ordinance is attracted also by entry 5 "Preventive detention for reasons connected with the maintenance of public order". The Ordinance has created offences for contravention of orders made thereunder and has prescribed penalties for such offences. This provision as regards offences and penalties clearly falls within entry 91 of the Provincial List. Thus, the impugned Ordinance is a piece of legislation which fell within the Provincial List exclusively and was, therefore, within the legislative competence of the Governor. Mr. Riaz Hashmi contended that section 13 of the Ordinance having specifically referred to criminal intimidation as defined in section 503 of the Pakistan Penal Code, there has been an encroachment on that Code which is an existing law with respect to "criminal law" under entry I of the Concurrent List. There is no substance in this contention for the reason that section 13 em powers the Tribunal only to declare a person to be a goonda but no offence has been created thereunder. The mere reference to the definition of `criminal intimidation' in section 503 of the Pakistan Penal Code is not an enactment relating an offence. It was next contended that the provisions of the Ordinance as respects bond for maintaining good behaviour are repugnant to the provisions of the Code of Criminal Procedure, an existing law on a concurrent subject. This contention is equally without any force. The taking of a bond from a person declared to be a goonda or from his surety is a purpose only ancillary to the main purpose of the Ordinance and is, therefore, inconsequential for the purpose of determining the true nature and character of the Ordinance. It is true that Chapter VIII of the Code of Criminal Procedure as well provides for taking bond for keeping the peace or maintaining good behaviour. But such bond is taken under somewhat different circumstances. The consequences of action under the Ordinance are not identical with those envisaged in the relevant sections of the Code of Criminal Procedure, although their provisions seem to overlap in part. Besides, the grounds on which a person can be declared a goonda under the Ordinance, are not in' all cases coincident with the grounds which would justify action under the Code for maintenance of the peace, including demand for furnishing bond to that end. The Ordinance and the Code of Criminal Procedure are not, therefore, parallel legislations to achieve exactly the same purpose. They, no doubt, overlap to some extent. But as already stated, the Ordinance, in pith and substance is intended to maintain the public peace, public tranquillity, public safety and social security by controlling anti-social activities of disorderly persons. The Ordinance is, therefore, an enactment in an entirely different field of legislation, namely, "public order" in the Provincial List. Accordingly, it cannot be said that there is a real conflict between the Ordinance and the Code, though their provisions as regards bond for keeping the peace or maintaining good behaviour may seem to overlap in part. The next contention of the learned counsel was that section 22 of the Ordinance which makes offences thereunder cognizable and non-bailable is contrary to the provisions of the Code of Criminal Procedure with regard thereto and is, therefore, bad in law. The provisions of sections 1(2) and 5(2) of the said Code completely negative this contention. Suffice it to refer to this Court's decision in the case of Chief Secretary to the Government of East Pakistan v. Moslemuddin Sikdar (P L D 1957 S C (Pak.) 1). The learned counsel lastly contended that section 21-A of the Ordinance provides enhanced penalties for offences of criminal intimidation, insult and annoyance under sections 504, 506, 507, 509 and 510 of the Pakistan Penal Code and is, therefore, hit by that Code. It is true that for offences under the said sections of the Pakistan Penal Code, among others, higher penalties have been prescribed by section 21-A of the Ordinance. But the said section 21-A was incorporated in the Ordinance on the 30th October 1968 by the West Pakistan Ordinance No. XI of 1968 which was made pursuant to the power conferred by the 1962-Constitution. Under this Constitution, `criminal law' became a Provincial subject with the result that the Governor was competent, to make law and provide for enhanced penalties for offences under the Penal Code. By the Legislative Powers Order, 1959 made on the 20th March 1959 (President's Order No. 2 of 1959), the President assumed power to make laws with respect to certain matters stated in its Schedule. This order was amended on the 23rd September 1959 by the Legislative Powers (Amendment) Order, 1959 (President's Order No. 17 of 1959). By this amending Order, all matters enumerated in the Provincial List of the 1956-Constitution and all residuary subjects not falling in any Legislative List were transferred to the Concurrent List, and it was provided that these matters shall be deemed always to have `formed part of the President's Order No. 2 of 1959. Thus, all matters in the Provincial List and all residuary matters were retrospectively transferred to the Concurrent List with effect from the 20th March 1959 which was earlier than the date of promulgation of the impugned Ordinance. This transfer of legislative subjects from the Provincial List to the Concurrent List with retrospective effect is of no legal consequence in this case inasmuch as the impugned Ordinance has, at any rate, been found to be relatable to the entries "Public order" and "Preventive detention for reasons connected with the maintenance of public order", even if these entries were to be deemed to be included in the Concurrent List'. There is no `existing law' or Act of Parliament (as defined in the 1956-Constitution) on a subject-matter like the subject-matter of the impugned Ordinance. An Act of the Provincial Legislative or an Ordinance made by' the Governor in the Concurrent field, as has been held by this Court in Chief Secretary to the Government of East Pakistan v. Moslemuddin Sikdar, is hit to the extent that the subject in question is already covered by legislation in that field. There being no `existing law' or `Act of Parliament' on the subject matter of the impugned Ordinance, the transfer of subjects from the Provincial List to the Concurrent List does not affect the; validity of the Ordinance under examination, if it is otherwise valid. For the reasons already stated, the Governor was competent to make and promulgate the impugned Ordinance without taking previous instructions from President or obtaining the President's assent. The Ordinance is, therefore, intra vires and a valid piece of legislation. Being a valid piece of legislation, it was protected under Article 3(1) of the President's Order No. 17 of 1959 by which the Provincial ejects were transferred to the Concurrent List. The appellant who appeared in person merely adopted the argument of Mr. Riaz Hashmi with regard to the constitutionality of the impugned Ordinance. He, however, argued that the proceeding taken against him under the Ordinance is bad in law for the reason that an earlier proceeding against him on the same allegations was quashed. This contention was also raised in the High. Court, but it was ejected by the learned Judges on the ground that there were materials to show that the present proceeding against the appellant was based also on some fresh grounds. Apart from this, leave was not granted to the appellant to consider the appeal on merits. In the result, both the appeal and the petition for special leave to appeal are dismissed. There will be no order a5 to costs. Appeal and Petition for Special Leave to Appeal both dismissed.