P L D 1957 (W (PLP)

(c) owing to his having been convicted of a non‑bailable offence and to his vicious habits or bad character; or (d) owing to his having entered upon a course of wasteful extravagance likely to dissipate his property; incapable of managing or unfitted to manage his affairs, it could issue an order directing that the property of such land holder be placed under the superintendence of the Court of Wards. It is clear from this provision of law that it was only the Local Government that could issue an order, directing the property of certain land‑holder under the giving conditions, which may not be repeated here, to be placed under the superintendence of a Court of Wards. After the Local Government passed an order under section 5 of the Punjab Act, the Courts of Wards assumed the superintendence of the property, and then the order of assumption was to be notified in the official Gazette of the Province, under section

9. By the Government of India (Adaptation of Indian Laws) Order, 1937, the Frontier Regulation was adapted with some very minor modifications. The exact wording of the Adaptation Order may be reproduced here. "Section 2‑Omit" the territories for the time being administered by the Chief Com missioner of"; "and to the Local Government"; "and to the said Chief Commissioner respectively" and proviso (c)." "At the end of the section insert:‑ "The reference in this section to the Punjab Court of Wards Act, 1903, shall, after the commencement of Part III of the Government of India Act, 1935, be construed as a reference to that Act as adapted and modified under the said Act of 1935." Further modification which was made to the Frontier Regulation by this Adaptation of Indian Laws Order, 1937, was that where the words "Local Government" occurred they were to be read as "Provincial Government. Though absolutely, unnecessary, it may not be altogether without interest to note that North‑West Frontier Province after 1937 became a Governor's Province. In August 1947, the partition of the sub‑continent of India took place and as a result of the Referendum which was held under the Indian Independence Act, 1947, 10 & 11 Geo. 6, Ch. 30, North‑West Frontier Province became one of the Governor's Provinces of Pakistan in its western wing. In October 1955, an upheaval of colossal nature took place as a result whereof all the Provinces as well as the States and the Tribal Areas in the Western Wing of Pakistan were incorporated into one single Province to be known as West Pakistan by the Establishment of West Pakistan Act of 1955. Under section 10 of this Act all laws in force in West Pakistan immediately before the 14th of October 1955, were to continue to apply to the areas and the persons to whom they applied before the passing of this Act except as otherwise provided in the Act and subject to any order passed by the Governor‑General under section 5 of the Act and to the powers of any competent legislature. So, under the provisions of this Act the Frontier Regulation and as a necessary corollary the Punjab Act as adapted and modified by the Government of India Act, 1955, applied to the six districts of the scratched North‑West Frontier Province. As a result of the establishment of the Province of West Pakistan it became necessary to again adapt the law, and for this purpose, the Governor of the newly‑formed Province of West Pakistan made and promulgated the West Pakistan Adaptation of Laws Order, 1955, published in the Gazette of West Pakistan, dated the 14th October 1955, as Notification No. 854/Law. This order adapted certain Central Acts as well as certain Provincial Acts with references to the provinces to which they applied before the West Pakistan Province came into existence. This is clear from the Order itself. The Punjab Act was adapted for the former Punjab with this modification, that the Financial Commissioner, who was the Court of Wards was substituted by a Commissioner, who thereafter became the Court of Wards. The Court of Wards, that is to say, the Commissioner, instead of the Provincial Government, was invested with the powers under section 5 of the Punjab Act to make an order under given conditions directing that the property of any land‑holder be placed under the superintendence of the Court of Wards. So far as the Frontier Regulation was concerned, it was not at all touched. On the 16th of March 1956, the Governor of West Pakistan promulgated an Ordinance III of 1956 known as West Pakistan (Adaptation of Laws) Ordinance, 1956. It was the exact replica of the West Pakistan (Adaptation of Laws) Order, 1935. It also did not touch the Frontier Regulation in any way. This Ordinance was purported to have been promulgated under section 88 of the Government of India Act. The modifications of the Punjab Act introduced by the aforementioned Order and Ordinance are bound to create insurmountable difficulties in the area of the former Punjab, inasmuch as that formerly there was only one Court of Wards for the whole area, and only one authority which could order the placing of the property of a land‑holder under the superintendence of the Court of Wards and now there are five Courts of Wards and five such authorities. A land‑holder may find his property in one Division placed under the superinten dence of the Court of Wards, and in the other Division free from it, or he may find his property situated in different Divisions being managed by different officers under different Courts of Wards. The learned Additional Advocate‑General and Sayed Qaim Shah, counsel for Mst. Taj Bibi, have argued most emphatically that Punjab Court of Wards Act, as modified and adapted by the West Pakistan (Adaptation of Laws) Order, 1955, and the West Pakistan (Adaptation of Law) Ordinance III of 1956, applied to the area previously, known as North‑West Frontier Province. They, however, seem to completely forget that the Punjab Act did not apply to the aforementioned area by its own force. This Act only applied to the area previously known as Punjab. The force which made it applicable to the six districts of the North‑West Frontier Province was the Frontier Regulation. Take away this Regulation and the Court of Wards Act shall have no application whatsoever to the said area. The amendments, therefore, of the Punjab Act would not automatically apply to the six districts of the previous North‑West Frontier Province unless a corresponding amendment is made in the Frontier Regulation as well. This was exactly what was done when it became necessary to adapt the Indian Laws in 1937 after passing the Government of India Act, 1935. Then the Frontier Regulation was amended in order to make the amended Punjab Act applicable to the North‑West Frontier Province. The relevant provision of the Government of India (Adaptation of Indian Laws) Ordinance, 1937, has been reproduced in the earlier part of this judgment. It is, therefore, perfectly clear to my mind that under the existing law in force in the six districts of the previous North‑West Frontier Province on the 16th of May 1956, it was the Provincial Government of the West Pakistan which was competent under the specified conditions to make an order directing that the property of the heirs of Sarfaraz Khan be placed under the superintendence of the Court of Wards, and not the Commissioner. On the 23rd of March 1956, yet another event of most vital importance took place in this country. Pakistan became an independent Islamic Republic and its Constitution took a certain definite shape. Purporting to act under Article 102 of this Constitution the Governor of West Pakistan on the 18th of October 1956, made and promulgated the West Pakistan (Adaptation and Repeal of Laws) Ordinance XXIV of 1956. This Ordinance repealed Ordinance III of 1956. So far as the adaptation of the Punjab Act was concerned, it was again the exact replica of the West Pakistan (Adapta tion of Laws) Order, 1955 and the repealed Ordinance. So far as the six Districts of the previous North‑West Frontier Province were concerned, a small change was brought about, and it was that the Revenue Commissioner, or the Revenue and Divisional Commissioner wherever these words occurred, in any existing law, were to be substituted by the word "Commissioner." This change did not in any way divest the Provincial Government of the powers conferred upon it under section 5 of the Punjab Ac t read with the Frontier Regulation or invest the Commissioner with them. It is conceded that in this case, the Provincial Government has passed no order directing that the property of the heirs of Sarfaraz Khan be placed under the superintendence of the Court of Wards. This order was passed by the Commissioner who had no jurisdiction whatsoever to do so. The order, therefore, is bad in law and must be treated as non‑existent. 1n order to overcome this difficulty, Mr. Qaim Shah has invited our attention to proviso attached to section 2 of the Frontier Regulation. It is to the following effect:‑ "Provided also that, for the purpose of facilitating the application of the said Act, a Court may, subject to the other provisions of this Regulation construe it with such further alteration, not affecting the substance, as may be necessary or proper to adapt it to the matter before the Court." It is extremely difficult to alter the words "Provincial Govern ment" in section 5 of the Punjab Act to "Commissioner" without affecting the substance of the Act, because it is in my opinion the very substance of the Act, as to who should exercise the principal powers under it. To hold otherwise, if I may venture to say, will brink on the side of absurdity. Again, the Act can be construed with an alteration as may be necessary or proper to adapt it to a matter before the Court for the purpose of facilitating the application of the Act. I cannot understand how will it facilitate the application of the Punjab Act if the Commissioner is given the power to pass an order directing a certain property to be placed under the superintendence of the Court of Wards instead of the Provincial Government. In my opinion, the Provincial Government is better suited in this respect to pass such an order than the Commissioner. The learned Additional Advocate‑General, on the other hand, in order to achieve the same object wishes this Court to use the Removal of Difficulties (Adaptation) Order XV, 1956, made by the President of Islamic Republic of Pakistan on the 12th of November 1956. This order which is very brief may in verbatim be reproduced as follows:‑ "Whereas clause (1) of Article 224 of the Constitution provides that all laws, other than the enactments repealed by Article 221, in force immediately before the Consti tution Day, shall, so far as applicable and with necessary adaptations, continue in force until altered, repealed or amended by the appropriate legislature or other competent authority; And whereas clause (2) of Article 224 of the Constitution' empowers the President to make, by Order, within a period of two years from the Constitution Day, such adaptations and modifications in any law continue in force under clause (1) of the said Article whether by way of amendment or repeal, as he may deem necessary or expedient, for the purpose of bringing the provisions of such law into accord with the provisions of the Constitution; And whereas doubts have arisen as to whether such laws should, pending the Order of the President making actual adaptations therein be construed with necessary adaptations; And whereas it is not practicable to adapt simultaneously all the laws continued in force under clause (1) of Article 224, and difficulties have arisen by reason of the doubts aforesaid; And whereas clause (1) of Article 234 of the Constitution provides that for the removal of difficulties the President may, by order, direct that the provisions of the Constitution shall, during such period as may be specified in the Order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem necessary or expedient; Now, therefore, in exercise of the powers aforesaid, the President is pleased to make the following Order, namely:‑ 1. (1) This Order may be called the Removal of Diffi culties (Adaptation) Order, 1956. (2) It shall come into force at once, and shall be deemed to have taken effect on the twenty‑third day of March 1956.

2. During a period of two years from the commencement of the Constitution, Article 224 of the Constitution shall have effect subject to the following amendment, namely:‑ After clause (4) of Article 224, the following clause shall be added, namely:‑ "(5) Any Court, tribunal or authority required or empowered to enforce a law continued in force under clause (1) shall, notwithstanding that no actual adaptations have been made in such law by an Order of the President under clauses (2) for the purpose of rendering it consistent with the provisions of the Constitution, construe the law with all such adaptations as are necessary for the said purpose: Provided that if any question arises regarding the adaptations with which such law should be construed for the said purpose, the question shall be referred to the Federal Government if the law relates to a matter enume rated in the Federal List or the Concurrent List in the Fifth Schedule and to the Provincial Government in any other case, and the decision of that Government on any such reference shall be final." This order is certainly a unique one in the history of laws and of most remarkable nature. It gives a powers to Court. Tribunals, or Authorities to legislate rather than interpret or enforce a law continued in force by clause I of Article 224 of the Islamic Republic of Pakistan. The only limitation which is placed upon such power of Courts, Tribunals or Authorities is that they are to construe it with all such adaptations as are necessary for the purpose of render ing a law consistent with the provisions of the Constitution. Under clause 2 of Article 224 of the Constitution, the President for the purpose of bringing the provisions of law in force in Pakistan or any part thereof in accord with the provisions of the Constitution, may within a period of two years from the Constitution Day by order make such adaptations and alterations in such law, whether by way of amendment or repeal as he may deem necessary or expedient. Clause (1) of Article 234 which is quoted in this order only authorises the president for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, and the Indian Independence Act, 1947, together with Acts amending or supplementing those Acts, to the provisions of the Constitution, by Order, to direct that the provisions of the Constitution shall, during such period as may be specified in the order, have effect, subject, to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient. Under both these Articles, the President alone is authorized to pass the orders contemplated in them and only for the purpose of bringing the provision of any law in force in Pakistan or in any part therefore into accord with the provisions of the Constitution and for no other purpose, otherwise the existing law under clause (1) of Article 224 of the Constitution shall so far as applicable and with the necessary adaptation continue in force until altered, repealed, or amended by the appropriate legislation, or by other competent authority. He cannot delegate these powers as he has done in the Order in question to Courts, Tribunals, or Authorities required or empowered to enforce any law in any area. There seems to be no constitutional provision authorising the President to invest the Courts, Tribunals, or Authorities with the power to construe the law in a certain given way. The proviso added to Clause (5) of Article 224 reproduced above has certainly no statutory foundation. But, assuming that it is not so, it is very difficult for me to hold that it can be used to bring about the required amendment in the Frontier Regulation that is to say to make the Punjab Act ‑is modified by the West Pakistan (Adaptation of Law) Ordinance 1956, or the two subsequent Ordinances applicable to the six districts of the previous North‑West Frontier Province. IL is beyond me to under stand as to why should it be necessary, to invest the Commis sioner and divest the Provincial Government of the powers of passing an order directing the property of a certain land holder to be placed under the superintendence of the Court of Wards m order to make the Frontier Regulation "consistent with the provisions of the Constitution." It really does not affect the Constitution one way or the other, whether the Commissioner passes an order under section 5 of the Punjab Act, or the Provincial Government, does. I am, consequently, of the view that the Provincial Government alone with regard to the six districts of the previous North‑West Frontier Province continues to be the authority competent to pass the order under section 5 of the Punjab Act read with the Frontier Regulation. The order of the Commissioner is thus completely ultra vires. Supposing it be assumed for the sake of argument that the Commissioner has got such powers, still I have no hesitation in holding that so far as the petitioner and his two brothers are concerned, he had no power to pass an order directing their property to be placed under the superintendence of the Court of Wards. They are neither females; nor is it alleged that they are incapable of managing or unfitted to manage their affairs owing to any physical or mental defect or infirmity or owing to their having teen convicted of a non‑bailable offence or to their vicious habits or bad character, or owing to their having entered upon a course of wasteful extravagance likely to dissipate their property. Apart from that it appears to me that the order in question has been passed not because the conditions precedent contained in section 5 of the Punjab Act are satisfied, but because it has been given out to the Commissioner that Fateh Muhammad Khan had deprived all other male and female heirs of Sarfaraz Khan deceased of their due rights and had himself taken possession of the whole property. In doing so, the Commissioner has ignored and by‑passed the law and has preferred to use his executive rod to settle the private disputes existing between the different heirs of Sarfaraz Khan and to dispossess Fateh Muhammad Khan of the property for the benefit of the other heirs. If the Commissioner was anxious to help the heirs other than the petitioner then the object could not legally be the achieved by taking an action under section 5 of the Punjab Act. This would be an excessive abuse of authority on his part. The parties should have been left to have their recourse to ordinary Courts of Law. Both on the legal and from the factual point of view, I must hold that the impugned order is completely devoid of statutory sanction. It is hereby set aside and the required writ with costs is issued to the Commissioner and the Deputy Commissioner of Peshawar, directing them to restrain from interfering with the property of the petitioner and respondent Nos. 3 to

9. If the possession of the property has also been taken by the Deputy Commissioner, or by any other authority under the impugned order, it should be restored to the persons from whom it was taken. HABIBULLAH KHAN, J.‑--I fully agree. A. H. Order set aside.