P L D 1963 (W (PLP)

" The point is simple. When the trials were commenced in this Court, the accused were servants, of the Central Government. Pending trials, they have been made servants of the Provincial Government. This Court has been appointed by the Central Government. The question is if it can continue to try all these Central Government servants, who, pending trial, have become Provincial Government servants. My answer is in the negative." Against this order the State filed 9 separate revision applications which first came before Feroze Nana, J. who, after hearing the parties on 19‑12‑62, considered that this was a fit matter to be heard by a Division Bench and made a reference accordingly. As a result of this reference these cases came up before us.

3. In order to understand the reasoning of the learned Special Judge it would be necessary to refer to certain provisions of the relevant statutes. The Karachi Development Authority was established by the K. D. A. Order (Order V of 1957). This Order made provisions for the development and improvement of certain areas in the' Federal Capital and for providing public amenities etc. By subsection (2) of section 4 of this Order the Governing Body of the K. D. A. was to be guided on questions of policy by such directions as the Central Government might from time to time give. By section 6 the Central Government was given power to appoint one of the members of the Governing Body to be its Chairman. The Central Government also reserved the power of sanctioning or refusing to sanction any scheme prepared by the K. D. A. These and similar other powers were vested in the Central Government by this Order. By section 120 of this Order the Karachi Joint Water Board Ordinance of 1949 was to stand repealed upon the coming into force of this Order (Order V of 1957). By another section, viz., section 149 of this Order the Karachi Improvement Trust Act of 1950 was repealed and the functions of these two bodies devolved upon the Karachi Development Authority. By President's Order No. 9 of 1961 dated 29th June 1961 the Federal Territory of Karachi was merged into West Pakistan. The merger actually took effect on 1st July 1961 as a result of a notification. Subsecton (1) of section 8 of this Order provides that all persons serving immedi ately before the appointed date under the Central Government in connection with such affairs of the Federal Territory as would have been the affairs of the Province had this territory been a Governor's Province shall from the appointed date be deemed to be persons serving under the Government of West Pakistan. The next relevant enactment is the President's Order No. 6 of 1962, viz., the Karachi Development Authority (Amendment) Order, 1962. By this legislation certain consequential amend ments were made in the K. D. A. Order No. V of 1957 in view of the merger of Karachi with West Pakistan and the words " Provincial Government " were substituted for the words " Central Government " except in the articles mentioned in section 2 (ii) . It was because of this amendment in the K. D. A. Order that the learned Special Judge took the view that the accused persons who were formerly Central Government servants had become servants of the Provincial Government during the pendency of these cases and therefore he could not continue to try them.

4. We may now refer to the relevant provisions of the Criminal Law (Amendment) Act. Section 3 of this Act provides for appointment of Special Judge by the " appropriate Government " and subsection (5) of section 6 provides for the previous sanction of the Appropriate Government as a condition for the prose cution of a public servant for an offence under this Act. " Appropriate Government " has been defined by , section 2 (a) which reads as follows :‑ " Appropriate Government " means in relation to a person serving in connection with the affairs of the Federation, a Railway employee and any other person employed by the Central Government or by an organisation or body corporate notified by the Central Government, in pursuance of the next succeeding clause, the Central Government, and in other cases, the Provincial Government concerned."

5. The position eventually adopted by Mr. Khalid Ishaq, the learned Additional Advocate‑General, at the hearing was that in so far as the Karachi Development Authority is a " body corporate " the " Appropriate Government " for the purposes of the Criminal Law Amendment Act in the case of their employees would be the Central Government regardless of the changes brought about the merger of Karachi into West Pakistan. He relied upon two notifications issued in pursuance of clause (b) of section 2 of the Pakistan Criminal Law (Amendment) Act, 1948 (XIX of 1948). The first of these notifications is dated 28th October 1954 bearing No. 1/23/54‑Police (II). It says that the Central Government is pleased to notify the Karachi Joint Water Board, a body corporate constituted under the Karachi Joint Water Board Ordinance, 1949 to be a body corporate, the em ployees whereof shall be public servants for the purposes of the said Act. A similar notification dated 27th January 1955, bearing No. 1/23/54‑Police (11), was made in respect of the employees of the Karachi Improvement Trust. Mr. Khalid Ishaq argued that by virtue of these two notifications issued by the Central Government the " Appropriate Government " for the purposes of the appointment of the Special Judge as well as for granting sanction would be the Central Government as provided in the definition of the expression " Appropriate Government." But that definition requires a notification in respect of the persons employed by a body corporate. Khalid Ishaq contended that the two notifications referred to above in relation to the employees of the Karachi Joint Water Board and of the Karachi Improvement Trust would apply to the employees of the Karachi Development Authority inasmuch as it is the successor of the aforesaid two corporate bodies. However, we pointed out to him that these two notifications were expressly in respect of the employees of the Karachi Joint Water Board and of the Karachi Improvement Trust and in view of repeal of these two Acts and the merger of these two bodies into the Karachi Development Authority, which became a new and an independent corporate body, a separate notification, in respect of their employees, by the Central Government for the purpose mentioned above would be required. Mr. Khalid Ishaq took time to ascertain .if there was such a notification, but he was not able to find any and informed us accordingly. In the absence of such a notification it is plain that the concluding part of the definition of " Appropriate Government " i.e., " and in other cases the Provincial Govern ment concerned " would apply. Mr. Khalid Ishaq then contended that as regards the Federal Territory the Central Government was the Provincial Government, but when we pointed out that the Federal Territory lost its character as from 1st July 1961 in consequence of the President's Order No. 9 of 1961 and under Article 3 thereof became a Division of West Pakistan, he relied upon Article 5 of that Order which reads as follows:‑ "

5. Except as otherwise provided in this Order, all laws, including Acts, Ordinances, Orders, bye‑laws, rules regulations and notifications, in force in the Specified Territory or any part thereof immediately before the appointed day, shall, so far as applicable, and with the necessary adaptations, continue in force, until altered, repealed or amended, by competent authority." The argument was that this article gave continuity to all laws in force in the Specified Territory immediately before the appointed day and, therefore, by legal fiction the Central Government would still be the Provincial Government for the purposes of the definition of " appropriate Government " in the Criminal Law Amendment Act. This argument cannot too formally be rejected. The legal fiction to which the learned A. A. G. referred perished by the coming into force of the President's Order No. 9 of 1961 whereby the Federal Territory of Karachi merged into West Pakistan. Article 5 of that Order merely gives continuity to the laws in force with necessary adaptations but from it, it cannot be argued that as from the appointed day, the Central Government would still be a Pro vincial Government for the purposes of section 3 of the Criminal Law Amendment Act.

6. Mr. Ghulam Hyder Pir was appointed as Special Judge (Central), Karachi by a notification dated 29th July 1961 after the merger of Karachi into West Pakistan, and we are unable to see how he could exercise jurisdiction in respect of the employees of the Karachi Development Authority. There was thus initial lack of jurisdiction in Mr. Pir as far as these cases are concerned and that being so, it is not necessary for us to consider the other argument of Mr. Khalid Ishaq which was advanced at the earlier stage of the hearing that once Mr. Pir had assumed jurisdiction properly he could not be divested of that jurisdiction by any subsequent event.

7. For the reasons given above we dismiss all these nine revision applications. These cases will go back to the Court of the Senior Special Judge who has also jurisdiction as a Special Judge (Provincial). K. B. A. Petition dismissed.