P L D 1954 Lahore 717 (PLP)

RAHMAN J.‑This order will dispose of Criminal Revisions Nos. 492 and 493 of 1953. In both the cases the learned Sessions Judge, Mianwali, has made a reference to this Court recommending that the proceedings following the complaints filed by Tasadduq Hussain Shah in the first case and by Muhammad Hayat Khan in the second case, be quashed. In both cases the complaints were ostensibly lodged under section 3 of the Punjab Land Trespass (Emergency Provisions) Act, 1947 (Act XVI of 1947), and the learned Sessions Judge has held that this Act is no longer in force and could not have been invoked by the complainants. In each case the complainants' grievance was that the other party had committed criminal trespass on the lands in their possession, accompanied by force or criminal show of force. Section 3 of the Punjab Act XVI of 1947 makes the act of cultivating or attempting to cultivate land belong ing to another, punishable with imprisonment of either description for a term which may extend to two years or with fine or with both. I am inclined to agree with the learned Sessions judge that the Punjab Act XVI of 1947 has spent its force and that it has ceased to be a part of the law of the land. That was an act promulgated by the Governor of the Punjab under section 93 of the Government of India Act, 1935, by virtue of a proclamation made under that section, on the 5th of March 1947 and it received the assent of the Governor -General on the 3rd of July 1947. Section 93 of the Government of India Act, 1935, was omitted from the Constitution Act, by the Pakistan (Provisional Constitution) Order 1947 which came into force on the 15th of August 1947. There is, however, a saving clause contained in section 6 of this order which reads as follows :‑ "Where any law made by the Governor of a Province by virtue of section 93 of the Government of India Act, 1935. (26 Geo. 5, Ch. 2) is in force immediately before the appointed day, the said law, notwithstanding that the said section is directed to be omitted in the schedule to this order or that by reason of such omission a proclamation under the said section ceases to have effect, shall remain in force for the period for which it would have remained in force if the said section had been at all material times in operation". The effect of this provision is that for the purpose of determining the period for which an act promulgated under section 93 of the Government of India Act, 1935, would continue in force, section 93 must be deemed to have been still a part of our law. Subsection (3) of that section declares that a proclamation made under section 93 would cease to operate at the expiration of six months unless a resolution approving the continuance in force of such a proclamation is passed by both Houses of Parliament. It is conceded that no such resolution was ever passed in the present case. If such a resolution had been there, the period of six months would have been extended to twelve months further The maximum time during which such a proclamation could remain in force is prescribed as three years but that is obviously not appli cable. Subsection (4) of the section is in the following terms:‑ "If the Governor, by a Proclamation under this section assumes to himself any power of, the Provincial Legislature to make laws, any law Made by him in the exercise of that power shah, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the proclamation ceases to have effect, unless sooner repealed or re‑enacted by Act of the appropriate Legislature, and any reference in this Act to Provincial Acts Provincial Laws or Acts or Laws of a Provincial Legislature shall be construed as including a reference to such a lam,". It is common ground between the parties that the Act has not been re‑enacted by the Legislature. At the utmost, therefore, counting from the date of the proclamation, the Act could have remained in operation, in the circumstances, for a total period of two years and six months and would have lapsed on or about the 5th of September 1949. The two complaints we are considering were instituted in 1952 and consequently, it must be held that the law invoked for the purpose was no longer available for the complaints. Mr. Muhammad Iqbal on behalf of the Crown drew my attention in this connection to section 18 of the Indian Independence Act which in subsection (3) lays down that save as otherwise expressly provided in the Act, the law of British India and of the several parts thereof, existing immediately before the appointed day, shall so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof, until other provision is made by laws of the Legislature of the Dominions in question or by any other Legislature or other authority having power in that behalf. Mr. Muhammad Iqbal tried to argue that this provision had the effect of continuing even the Acts promulgated under section 93 of the Government of India Act for an indefinite period till the Legislature stepped in to put an end to them. I do not think this would be the right construction of this provision. The words "so far as applicable and with the necessary adaptations" occurring therein are significant. The question of applicability can be considered from the territorial as well as from the temporal aspect and I think there was probably no intention of con tinuing in force legislative enactments which at their inception were intended to be temporary under the existing law. The expression "with the necessary adaptations" also points to a similar conclusion. But for the saving provision of section 6 of the Pakistan (Provisional Constitution) Order 1947, the omission of section 93 from the Constitution Act would have curtailed the period of currency of this Act to less than two and a hall years, as the proclamation issued under section 93 would be deemed to have been revoked on the 15th of August 1947. By section 6 of the Pakistan (Provisional Constitution) Order, 1947, the position was restored to that prevailing under section 93 of the Government of India Act, 1935. That was, therefore, an "adaptation" covered by the Pakistan (Provisional Constitution) Order, 1947, and the Act is not continued indefinitely by virtue of subsection (3) of section 18 of the Indian Independence Act. On behalf of the complainants in these cases, it has been argued that ever if Act XVI of 1947 is no longer available to them, the facts mentioned in the two complaints might constitute an offence under section 447 of the P. P. C., and the wrong mention of a provision of law in the heading of the complaints should not prejudice their cases. There appears to be force in this contention. I do not agree with the learned Sessions judge, therefore, that all the proceedings against the accused persons require to be quashed. Only in the case of Tasadduq Husain Shah v. Haider and Khaira, a charge had been framed by the trial Court under section 3 of Act XVI of 1947. In view of the above discussion that has necessarily to be set aside and I order accordingly. In the other case of Muhammad Hayat Khan v. Dost Muhammad etc., even the prosecution evidence has not yet been led. I direct that the trial Court should now complete the evidence in that case and then consider whether a prima facie case under section 447, P. P. C., is made out or not. Similarly in the other case of Tasadduq Husain Shah, the learned Magistrate should decide whether a charge could be framed against the accused under section 447, P. P. C. The two cases will then be disposed of in accordance with law. The records will de returned to the lower Court with this order. A. H. Order accordingly.