P L D 1960 (W (PLP)

The Public Prosecutor has come in appeal against this order. The first ground alleged was that although the Division Bench had held Ordinance (XXI of 1956) invalid, the things done under this Ordinance had been saved by the provisions of section 15 (1) of Act III of 1957. The ruling referred to by the learned Magistrate has been overruled by a Full Bench decision of this Court in Criminal Reference No. 242/58 Tirathmal v. State (2). In the above reference, the question referred to the Full Bench was :‑ "Whether an Ordinance promulgated under Article 102 of the Constitution of 1956 could be revived or continued in force, by another Ordinance promulgated under that Article." The Full Bench gave the following opinion:‑ "there is no bar to the re‑enactment of the provision of the Ordinance though there is technical bar to an Ordinance making provision for continuing the life of an expiring Ordinance." One of their Lordships, who decided Ikhlas Ahmad's case, was a Member of this Full Bench and agreed with the opinion expressed above. Since this Full Bench has over‑ruled Ikhlas Ahmad's case, we are, of opinion that fresh Ordinance could be issued. The President did not in this case necessarily extend the life of the previous one. The new Ordinance should be treated as a fresh piece of legislation although, it may have embodied word for word many of the provisions of the old Ordinance. When this point had been disposed of, the learned counsel for the accused urged that he bad two more contentions to submit. Firstly, he had a legal objection in this case. He said that the appeal had been fled without authority. It was pointed out that, although the Public Prosecutor was the right person to submit the appeal, yet the Chief Commissioner, who directed him to do so, did not possess the necessary powers to give him the required direction. A perusal of Ordinance XXI of 1956 shows that in section 2, the Definition clause says :‑ "

2. Definition.‑In this Ordinance, unless there is anything repugnant in the subject or context,‑ (a) "sssential commodity" means any of the classes of com modities mentioned in the Schedule to this Ordinance, and such other classes of commodities as may be declared by the Central Government by notification in the official Gazette to be essential commodities for the purposes of this Ordinance ; (b) "notified order" means an order notified in the official Gazette ; (c) "Provincial Government" in relation to the Federal Capital means the Chief Commissioner of Karachi." It is, therefore, clear that the C` Commissioner had authority to direct the Public Prosecutor to an appeal. The last argument advanced by the learned counsel for the accused was, that in this case, the accused was selling bran at a higher rate and bran is not Foodstuff within the meaning of section 3 r/w Schedule of Ordinance XXI of 1956. According to him, bran is not the foodstuff consumed by human beings. 1t was something meant for the animals. We do not subscribe to this view as, we think, bran is prepared OLA of wheat and is used in brown bread and is included in the Schedule attached to Ordinance XXI of 1956. Items 1 and 15 cover bran. We, therefore, hold that the prosecution was rightly launched in this case. As regards the question whether the case should be retried, the learned counsel for the accused pointed out that the accused was arrested on 29‑1‑1957, and bailed out. His trial commenced later in the year 1957 but he was acquitted on 12‑8‑58, although he has been on bail throughout, yet the prolongation of the case has caused him great hardship. We do not think that it is a valid ground for not ordering a retrial. We accordingly set aside the order of acquittal and order that the case be retried by the learned Magistrate in accordance with law. K. B. A. Retrial ordered.