P L D 1969 Peshawar 252 (PLP)

(c) .. (d) .. It will be noticed that under clause (a) of subsection (3) no Act of the Federal Legislature or of the Provincial Legislature shall apply to a special area or any part thereof unless the Governor with the previous approval of the Governor‑General so directs. Under‑clause (b) the Governor is authorised with the approach of the Governor‑General to make regulations in regard to a special area or any part thereof and any regulation so made "may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature or any other law in force in the Area". It was admitted at the Bar on behalf of the respondents that no regulation as contemplated by clause (b) of subsection (3) of section 2 :of the Act of 1955 had so far been made by the Governor with the result that no Act of the Federal Legislature or of the Provincial Legislature had been applied to the `Special: areas' which expression includes the `tribal territories'.

22. Section 10 of the Act of 1955 is the next important provision relating to the existing laws and may be profitably: reproduced. The section reads as follows :‑ "

10. Continuation of laws:‑ (1) Except as otherwise provided in this Act, and subject to any order of the Governor‑General under section 5 of this Act, and to the powers of any competent Legislature all laws in force in West Pakistan immediately, before the appointed day shall continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed. (2) .. (3) .. his plain from the language of section 10(I) that all laws which, were is force in West Pakistan immediately before the 14th of' October 1955 (which is the appointed day) shall continue to apply; to the areas and the persons to whom they would have applied 'if this Act had not been passed. Section 10 merely continues to apply to the areas and to the persons all the laws which were applicable immediately before the 14th of October 1955. Section 10 never pretended to revive the laws in the tribal territories which had automatically lapsed on 18th July 1947, at the passing of the Independence Act and which as already stated had not even been revived by Order No.

20. In other words, the Land Customs‑ Act and section 5 of the Tarrif Act which had lapsed at the passing of the Independence Act were not even revived by the Act of 1955.

23. The legal position in regard to the tribal territories remained the same on the enforcement of the Constitution of Islamic Republic of Pakistan, 1956 (hereinafter to be referred to as the Constitution of 1956). Article 218 defines "Special Areas" as follows :‑ "Special Areas means the areas of the Province of West Pakistan which immediately before the commencement of the Establishment of West Pakistan Act, 1955, were‑ (a) the tribal areas of Baluchistan, the Punjab and the North West Frontier, and (b) the States of Amb, Chitral, Dir and Swat". The same Article defines the "Existing law" thus‑ " existing law means any Act, Ordinance, order, bye law, rule, regulation or notification which immediately before the Constitution Day has the force of law in the whole or any part of Pakistan."

24. Article 104 of that Constitution states that notwithstand ing the fact the executive authority of the Province of West Pakistan shall extend to the Special Areas, but notwithstanding anything in the Constitution, "No Act of Parliament or of the Pro vincial Legislation shall apply to a Special Area to any part thereof unless the Governor, with the previous approval of the President, so directs, and in giving such a direction with respect to any Act, the Governor may direct that the Act shall, in its application to ~ a Special Area, or to any specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction". By clause (2) of the Article the Governor may, with the previous approval of the President, make regulations for the peace and good Government of a Special area, .and any regulation so made may repeal or amend any Act of Parliament, or of the Provincial Legislature, or any other law in force in the area". ‑By clause (4) of the said Article, the President is empowered by order to "direct that the whole or any part of a Special Area shall cease to be a Special area, and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper : Provided that before making any Order under this clause, the President shall ascertain, in such manner as he considers appropriate, then views of the people of the area concerned": It was also conceded by the learned counsel for the respondent that the Governor had not made any regulation as contemplated by Article 104 referred to above. It is important to observe here that under clause (2) of the said Article the power of the Governor with the previous approval of the President to make the regulations is restricted to repeal or amend any Act of Parliament or of the Provincial Legislature or other law in force in the area. In other words, the power of the Governor under clause (2) is restricted to repeal or amend any of the laws which are already in force in that area, i.e. "Special Areas" which term is synonymous with "Tribal Area" or any specified part of the Special Areas, but the power of the Governor does not include the power to extend any of the laws which are not already applicable unless he acts under clause (1) of Article 104.

25. Article 224 of the Constitution of 1956 relates to "Continuance in force of existing laws and their adaptation". The said Article is in the following terms "224 (I) Notwithstanding the repeal of the enactments men tioned in Article 221, and save as is otherwise expressly provided in the Constitution, all laws (other than these enact ments), including Ordinances, Orders‑in‑Council, orders, rules, bye‑laws, regulations, notification, and other legal instruments in force in Pakistan or in any part thereof, or having extra territorial validity, immediately before the Constitution Day shall, so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate Legislature or other competent authority. Explanation. L‑The expression `laws' in this Article shall include Letters Patent constituting a High Court. Explanation 2.‑In this Article `in force', in relation to any law, means having effect as law whether or not the law has been brought into operation. (2) For the purpose of bringing the provisions of any law in force in Pakistan or any part thereof into accord with the pro visions of the Constitution, the President may, within a period of two years from the Constitution Day, by Order, make such adaptations and modifications in such law, whether by way of amendment or repeal, as he may deem necessary or expedient, and any Order so made shall have effect from such date, whether before or after the date of the making of the Order, but not being prior to the Constitution Day, as may be specified in the Order. (3) (4) A reading of clause (1) of this Article clearly shows that this Article continued in force the "exiting laws" until the same were amended by the appropriate Legislature, and under clause (2) for a period of two years from the Constitution Day the President was empowered to make such adaptations and modifications in such law as he may deem necessary or expedient. Even under this clause, the President was not at all empowered to "apply" any law which was not in force in the tribal territory.

26. It follows from the above discussion that even under the provisions of the Constitution of 1956 the President was not at all empowered to apply or extend any existing laws which were not already applicable in the tribal territory, i.e. in actual operation.

27. To complete the history of the constitutional changes relating to the tribal territories reference has to be made to the Constitution of the Islamic Republic of Pakistan, 1962 (hereinafter to be referred to as the Constitution of 1962). Article 242 defines" Tribal Areas as follows:‑ " `Tribal Area' means the areas in the Province of West Pakistan which, on the thirteenth day of October One thousand nine hundred and fifty‑five, were . . . . (a) the tribal areas of Baluchistan, the Punjab and the North West Frontier; and (b) the States of Amb, Chitral, Dir, and Swat." By Article 223(1) "No central Law shall apply to a Tribal Area or to any part of a Tribal Area unless the President so directs and no Provincial Law shall apply to a Tribal Area or to any part of a Tribal Area unless the Governor of the Province in which the Tribal Area is situated, with the approval of President so directs and in giving such a direction with respect to any law, the President or the Governor, as the case may be, may direct that the law shall, in its application to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction". Under Clause (2) of the said Article, it is stated that the President may notwithstanding anything in the Constitution with regard "to any matter within the legislative competence of the Central Legislature, make regulations for a Tribal Area or any part of a Tribal Area, and the Governor of a Province, with the approval of the President, may, with respect to any matter within the Legislative competence of the Provincial Legislature, make regula tions for a Tribal Area or any part of a Tribal Area situated in the Province." Under clause (3), the President is empowered by order to "direct that the whole or any part of a Tribal Area shall cease to be a Tribal Area, and any such order may contain such incidental and consequential provisions as may appear to the President to be necessary and proper, but before making any order under this clause, the President shall ascertain, in such manner as he may consider appropriate, the views of the people of the Area concerned."

28. The last material Article in the Constitution of 1962 is Article

225. The relevant parts of the Article are 225 (1), (4), (5) (6) and (7), which read as follows :‑ "225 (1) Except as Provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. (2) (3) (4) For the purpose of. bringing the provisions of any existing law into accord with the provision of this Constitution (other than Part 11 of this Constitution), the President may, within a period of two years after the commencing day, make, by order, such adaptation, whether by way of modification, addition or omission, as he may deem, to. be .necessary or expedient, and any order so made shall have effect (or be deemed to have had effect) from such date, .not being a date earlier than the commencing day, as may be specified in the Order. (5) The President may authorize the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (4) of this Article in respect of laws, relating to matters with respect to which the Legislature of, the Province has power to make laws. (6) The powers exercisable under clauses.(4) and (5) of this. Article shall be subject to the provisions of any Act of the appropriate Legislature. (7) In this Article, `existing Laws' means all laws (including Ordinance, Orders‑in‑Council, Orders, rules, bye‑laws, regula tions and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra‑territorial validity, immediately before the commencing day:

29. This brings us to the next controversial constitutional point, namely, whether the Governor‑General bad the powers to pass Orders Nos. 5 and 6 of 1949, which undoubtedly had the effect of making substantial amendment in the Act of 1935, which admittedly was a constitutional document. To put it differently, whether under the Independence Act, the Governor‑General had, any power to make constitutional amendment in the Act of 1935, or the Independence Act in particular the powers of adding, clause (bb) and the introduction of section 95‑A. Mr. Zahurul Haq, learned counsel for the petitioner, contended, that the Governor- General had no powers to make such amendment.

30. After giving this vexed question our anxious thoughts and after close scrutiny of the material provisions of the Act of 1935 and that of Independence Act, we are firmly of the view that the Governor‑General had no powers of making any addition in the Act of 1935 and the only powers which he had were under section 9 of the Act 1947 for bringing the law into conformity with the changed constitutional status. To put it differently, the Governor‑.General had the power of making changes of form and not of substance in the existing "British law," and at any rate, the powers under section 9 which will be referred to presently did not at all evisage the powers of amending the Act of 1935, or the Independence Act, in that the Governor‑General had no powers to change those documents which were constitutional documents.

31. In order to appreciate the contention, it is necessary to refer to the relevant provisions of the Independence Act. This: Act, as already stated, was passed by the British Parliament on 18th July 1947, with a view to setting up the two Dominions with suzerainty powers. Section 2 of the Act mentions the territories which would comprise of the two Dominions, viz. India and Pakistan. Subsection (4) of section 2 of the Independence Act, which is in .the following terms, makes a provision for enabling the Indian states to accede to any of the two Dominions :‑ "Without prejudice to the generality of the provisions of subsection (3) of this section, nothing in this section shall be construed as preventing the accession of Indian states to either of the new Dominions." It is important to note even at the cast of repetition that no mention of accession is made is regard to the tribal territories. Section 7 of the Act which has already been referred to earlier deals with the consequences of setting up of the two Dominions. In substance it provides that the paramountcy ever the Indian States anal the tribal territories would lapse and alongwith it the suzerainty of His Majesty together with all obligation of His Majesty towards the Indian States and the tribal territories shall cease. The proviso which has already been referred to earlier. However provided that treaties and agreements relating to customs, transit and communications, posts and telegraphs shall continue until such agreements are denounced by the Ruler of the "Indian States" or by the person having authority in the tribal areas on the one hand, or by the Dominion or Province or other part thereof concerned on the other hand, or are superseded by subsequent agreements.

32. The next important provisions is section 8 which reads as follows :‑ 8 (1) In the case of each of the new Dominions, the powers of the Legislature of the Dominions shall, for the purpose of making provision as to the constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion, and reference in this Act to the Legislature of the Dominion shall be constured accordingly. (2) Except in so far as other provision is made by or, in accordance with a law made by the Constituent Assembly of the Dominion under subsection (1) of this section, each of the ,new Dominion and all provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935. and the Provisions of that Act. and of the Orders‑in‑Council, rules and other Instruments made thereunder, shall so far as applicable, and subject to any express provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor‑General under the next succeeding section, have effect accordingly : . It will be manifest on a reading of the language of sub sections (1) and (2) reproduced above that the Constituent Assembly was competent to make Legislature "for the purposes of making provision as to the constitution of the Dominion," and what was done under subsection (2) was that "each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935, and the provisions of that Act, and of the Orders‑in‑Council, rules and other Instruments made thereunder, "were," so far as applicable, and subject to any express provisions of this Act, and with such omission, additions, adaptations and modifications as may be specified in orders of the Governor -General under the next succeeding section had "effect accordingly."

33. The Governor‑General purporting to act under sub section (1) of section 9 of the independence Act made the impugned Orders Nos. 5 and t. That Provisions inter alia provides : "9. (1) The Governor‑General shall by order make such, provisions as appears to him to be necessary or expedient (a) for bringing the provisions of this Act into effective operation. (b) (c) for making omission from, additions to, and adaptations and modifications of, the Government of India Act, 1935, and the Orders‑in‑Council, rules and other Instruments made thereunder, in their application to the separate new Dominions; (d) (e) (f) for enabling agreements to be entered into, and other acts done, on behalf of either of the new Dominions before the appointed day, . . . . . . . . . . . Subsections (3), (4) and (5) of section 9 are relevant to the discussion in hand and may be reproduced below : (3) This section shall be deemed to have had effect as from the third day of June, nineteen hundred and forty‑seven, and any order of the Governor‑General or any Governor made on or after that date as to any matter shall have effect accordingly and any order made under this section may be made so as to, be retrospective to any date not earlier than the said third day of June Provided that no person shall be deemed to be guilty of an offence by reason of so much of ‑any such order as makes any provisions thereof retrospective to any date before the making. thereof. (4) Any orders made under this section, whether before or after the appointed day shall have effect . . . . . (a) Up to the appointed day, in British India; (b) On and after the appointed day, in the new Dominion or Dominions concerned, and (c) Outside British India, or, as the case may be, outside the new Dominion or Dominions concerned, to such extent, whether before, on or after the appointed day, as a law of the Legislature of the Dominion or Dominions concerned would have on or after the appointed day, but shall, in the case of each of the Dominion, be subject to the same powers of repeal and amendment as laws of the Legislature of that Dominion. (5) No order shall be made under this section, by the Governor of any Province, after the appointed day or by the Governor‑General, after the thirty‑first day of March nineteen hundred and forty‑eight, or such earlier date as may be deter mined, in the case of either Dominion, by any law of the Legislature of that Dominion."

34. A reading of the material provisions of the independence Act clearly reveals that the primary object of the British Parliament in enacting this Statute was to set up two sovereign Dominions. It was, therefore, provided that during the interim period before the two Dominions could be set up and Constituent Assembly could frame the Constitution for the govern ance of the two Dominions, the Act of 1935, as adapted or modified by the Governor‑General under section 9 of the Independence Act, would be the basis of the Constitution of each Dominion, since in the transition from the existing machinery of the Constitution, as it was in force prior to 15th August 1947 to the emergence of the independent new Dominions, to be set up under the Act. Various changes would have to be effected in the existing Constitution and in the laws in force in British‑India prior to 14th August 1947, necessary adaptation would have to be made so as to bring them into accord with the new constitutional position. The fact that the interval between the date when Independence Act was passed on 18th July 1947 and the date of the two new Dominions, viz. 15th August was a very short one the Governor‑General was commissioned to make provisions for the purposes of adaptations, additions and modification to bring them into effective operation and also to remove difficulties arising in connection with the transition to the provisions of that Act. He was also authorised under clause (f) of section 9 (1) of the Independence Act to enter into agreements on behalf of the new Dominions before the appointed day, i.e. 15th August 1947. In other words, the powers of the Governor‑General under clause (f) lasted up to 15th August 1947. The powers of the Governor‑General in regard to, outside India, or outside the new Dominion, i.e. Pakistan, which did not include tribal territories were further restricted by the Law of the Legislature of the Dominion concerned. The term, "Legislature of the Dominion" is different entity from the term "Constituent Assembly." To make our meaning clear, it may be stated that the powers of the Governor -General acting under section 9, subsection (4) did not embrace the powers of changing the Constitution. Under subsection (5), the powers of the Governor‑General of making any order relating to matters in clauses (a), (b) and (c) of subsection (4) of section could be exercised only up to 31st March 1949 unless these were earlier terminated by the Legislature. The question then arise as to what is the meaning of the expression "making omission from, additions to, adaptations and modification in the Act of 1935 etc." and whether this expression includes the powers to make amendments in the Act of 1935.

35. We need not labour this point, suffice it to say that after hearing very fullable and industrial arguments of. Mr. Zahoorul‑Haq, learned counsel for the petitioner, and equally industrial arguments of S. Ghazanfar Ali Shah and Malik Mohammad Sharif, learned counsel for the respondents, we have been able to lay our hands on the Full Bench decision in Sir Gulab Singh v. District Magistrate, Dhera Dun (1) which furnishes a complete answer to the question and in favour of the petitioner. In this case among other points the scope of the powers of the Governor‑General under section 9 of the Independence Act was thoroughly and critically analyzed. 3n that case, the Governor‑General on 20th May 1948 passed an order addressed to the Superintendent of Police, Dhera Dun under the provisions of the Bengal State Prisoners Regulations, 1818, as adapted by the Bengal State Prisoners Regulation (Adaptation) Order, 1947, promulgated on 26th August 1947, and directed that Sir Gulab Singh applicant be placed under personal restraint at No. 10, Dolialwala,. Dhera Dun, and be dealt with in accordance with the orders of the Government and the provisions of the Bengal State Prisoners, Regulations, 1818. Sir Gulab Singh moved an application under section 491, Criminal P. C. praying that he might be set at liberty, for the reason that his detention was contrary to the law. The principal contention raised on behalf of the applicant was that the Adaptation Order, 1947 passed on 26th August 1947 was a nullity, inasmuch as the Governor‑General had no powers to introduce the relevant provisions into the Regulation on 26th August 1947. The impugned order purported to have been made "In exercise of the powers conferred on the Govenor‑General by section 9, Indian Independence Act, 1947 and of all other powers enabling him in that behalf." In substance, for the words the discharge of the functions of the Crown in its relations with Indian States' wherever they occur, the words `relations with acceding States' or words `reason of State connected with relations with acceding State.' have been substituted. Lastly, Article 3, Adaptation Order, declares that this Adaptation Order. i.e. the Adaptation Order dated 26th August 1947, shall have effect notwithstanding anything to the contrary contained in the India (Adaptation of Existing Indian Laws) Order, 1947, dated 14th August 1947. Wali Ullah, Actg. C. J., while dealing with the argument, whether the impugned Adaptation Order of 1947 was ultra vires of the powers of the Government, observed in paragraph 11 of the Judgment that the meaning of the word "Adaptation" as it occurs in the expression "the necessary adaptations" in subsection (3) of section 18, Independence Act has not been defined in section 19 of the Act. Proceeding further, his Lordship observed :‑ "It must, therefore, be understood in the sense in which it .is explained in the authoritative dictionaries of the English (1)‑ A I R 1950 All. 2 language. According to Webster's Dictionary, Vol. I the word "adaptation" carries with it the idea of modification for new uses or a change in form or structure. According to Murrays `Dictionary', Vol. I, the meaning to be assigned to "adaptation" is this `Process of modifying a thing so as to suit new conditions.' According to the Shorter Oxford English Dictionary, one of the meanings assigned to the word `Adaptation' is the process of modifying so as to suit new conditions. It may be mentioned here in passing that the provisions of Article 10, India (Adaptation of Existing Indian Laws) Order, 1947, dated 14th August 1947, would indicate that the notion conveyed by the word `adaptation' is that of rendering the existing law consistent with the provisions of the Indian Independence Act, 1947, and of the Government of India Act, 1935, as applicable to the Dominion of India. Reference may also be made to section 293 of the (unamended) Government of India Act, 1935, where the expression `adaptations and modifications' occurs and it conveys the same idea of rendering a 'particular law consistent with the provisions of the principal Act. In that light of the above, the expression `necessary adaptations' in section 18(3), Independence Act must mean alterations of the phraseology of an enactment in order to bring the enactment into accord with the changed constitutional position. Judged by this standard the provisions introduced into the old Regulation of 1818 by the impugned Adaptation Order of 26th August 1947, do not, in my judgment, travel beyond the scope of `Adaptations'." Sapru, J. (as his Lordship then was) before elevation to the Bench was an international jurist. His Lordship, after reproducing the definition of the word "adaptation" in the Webster's Dictionary, at page 24, observed‑ "from a perusal of both section 293, Government of India Act, 1935 (which incidentally also used the word `modification' along with `adaptation' and section 10 of the India (Adaptation of Existing Indian Laws) Order, 1947, it would not be incorrect to say that the purpose of an adaptation order in the context in which it is used is ‑to bring into accord the provisions of an immediately existing British Indian Law with the provisions of the Indian Independence Act. What those provisions are and whether they can be read with the Government of India Act, 1935, is a separate matter which I shall consider a little later." Proceeding further his Lordship observed‑ "It is certain that an adaptation order in the sense in which it is used, cannot, for example, take into consideration the political or economic situation existing at any particular time and bring an existing law into harmony with the needs of that situation. It can be used only and this is a point which I wish to emphasise for bringing the law into conformity with a changed constitutional status and nothing more. In other words, only changes of form and not of substance in existing British Indian Laws could be brought about by and adaptation 9rder. Section 18(3) merely laid down what the position in regard to the existing British Indian Laws was to be. In order to find out the authority who could make the adaptation order, we have to seek the assistance of section 9(l). Section 18(3) has, therefore, to be read in conjunction with section 9(1)." At page 26, his Lordship summed up the discussion as follows: "To sum up, I am firmly of the opinion that the effect of sections 8, 9(l) and the opening part of section 10 read together is that there was no total repeal of the Government of India Act, that it was indeed, on the other hand, contemplated that the Act would, subject to modifications and adjustments, which had become essential on account of the establishment of the two Dominions continue in force as adapted or modified by the Governor‑General under section 9(d) as the law of the constitution of the two Dominions; and that the Indian Legislature could pass any law it chose repealing, modifying or amending the Government of India Act. For this reason, it strikes me that the correct view to take is that the Government of India Act became by, what may be called, legislation by reference, in the widest sense of the term, part of Indian Independence Act, subject to the qualifications which I have enumerated above." The learned Judge at page 29 reached the conclusion that "I, do not look upon this change as in the nature of a fresh enactment in regard to any existing British Indian Law immediately before the appointed day. Had it been a case of fresh legislation, i.e. had some new reasons which could not be regarded as an adaptation of the old reasons been inserted, I should have been inclined to hold that the Governor‑General had acted beyond the powers conceded to him by the Indian Independence Act and that the warrant of arrest was for that reason invalid." The third Judge, Bind Basui Prasad, in his separate but concurring judgment at page 39, paragraph 93, summed up the discussion thus

"the argument is that by the impugned Adaptation order a new matter was inserted and that it was really not an adapta tion but a legislation of substantive nature which could be undertaken only by the Legislature of a Dominion under section 6, Indian Independence Act. It has already been pointed out above that prior to 15th August 1947, the regulation did contain certain provisions relating to the `preservation or tranquility in the territories of Native Princes' entitled to the protection of the British Government With the lapse of the suzrainty of His Majesty over the Indian States these words became inconsistent in the Regulation. Hence for the relationship of suzerainty there was substituted a relationship by accession. It became necessary, therefore, to provide in the Regulation for the protection of the relations between the Indian Dominion and the Acceding States. It was with this end in view and in consonance with provisions regarding the accession of Indian States as contained in the Indian Independence Act and the modified Government of India Act. 1935, that the impugned adaptation was made in the Regulation. It was not anew matter unconnected with the change in the constitutional position. It was a matter directly flowing from the altered constitutional situation. The subject‑matter dealt with by the impugned Regulation is the relation between Acceding States and the Indian Dominion. Before 15th August 1941, also it dealt with the subject of relations between the British Government and the Indian States. I see no force in the third point also."

36. Judged in the light of the rule enunciated by the Full Bench referred to above, the Governor‑General acting under section 9 of the Independence Act had only the power of adaptation or modification and he could not purporting to act under that power usurp the power of Legislature under section 6 or that of the Constituent Assembly under section 8 of the Indepen dence Act. Under section 6(1), the Legislature of Pakistan Domi nion had the full powers "to make laws for that Dominion includ ing laws having extra‑territorial operation". Under section 8(1) the new Dominion "shall, for the purpose of making provision as to the constitution of the Dominion, be exercisable in the first instance by the Constituent Assembly of that Dominion". Order No. 5 has the effect of making the legislation giving' jurisdiction to the Governor‑General in relation to any areas outside the territories of Pakistan, and therefore the Order is ultra vires the powers of the Governor‑General in that this power could be exercised only by the Legislature of the Pakistan Dominion, as contemplated by section

6. Order No. 6 is also ultra vires the powers of the Governor‑General in that that Order brought about two substantial amendments in the Act of 1935 as the first amendment inserted clause (bb) in section 5 of the Act and the second amendment introduced section 95‑A which power could be exercised, exclusively by the Constituent Assembly of Pakistan under section 8, or by the Legislature of the Pakistan Dominion under section 6.

37. This brings us to the argument as to the validity of the two notifications dated 6th July 1950 referred to earlier. Assuming that Orders Nos. 5 and 6 made by the Governor‑General on 31st March 1949 were intra vires the powers of the Governor‑General, Mr. Zahurul‑Haq, learned counsel for the petitioner, vehemently contended that under subsection (5) of section 9 of the Independence Act the Governor‑General's power to make orders could be validly exercised up to the mid‑night of 31st March 1949. Thereafter the Governor‑General was rendered functus officio of making any orders under section 9, and that, at any rate, the Governor‑General had no power of legislation by way of notification in particular when the very power of making orders had already lapsed. The argument, in our view, is unexception able. Subsection (5) in most unambiguous language restricts the power of the Governor‑General of making orders only till 31st March 1949 "or such earlier date as may be determined, in the case of either Dominion, by any law of the Legislature of that Domi nion". This being the position, the Governor‑General purporting to act under section 9 could make orders only up to 31st March 1949 in regard to matters enumerated in subsection (1) (a) to (i) and to after the midnight of 31st March 1949 the Governor‑General was rendered functus officio to make any orders much less making an notification in a particular when the notification purported to revive and apply all the laws and notifications with retrospective effect to the tribal territory.

38. The learned counsel for the respondents tried to argue that since the Governor‑General had made Orders Nos. 5 and 6 on the last date, i.e. 31st March 1949, therefore the notifica tions issued later on would be considered to have been passed by him on that date. The argument, in our view is clearly misconceived in that at best the notifications could be elevated to the status of Orders and on 6th July 1950 the Governor‑General did not have any powers of making the orders, therefore he could not make any notification which powers were not given to him under section 9(5) and even if he bad such power he could exercise it till 31st March 1949.

39. It follows from the above discussion that the two notifications referred to above are without jurisdiction and are of no legal consequence and without lawful authority, and therefore no notification, rule or other instrument made before the 15th day of August 1947 in respect of the tribal territory under subsections (1) and (2) of section 313 of the Act of 19351 could be deemed to have continued in force after the 14th day of August 1947 and to have been duly made in exercise of the juris diction conferred by the said Order, as stated in paragraph 4 of the second notification. It also follows from the above discussion that neither the Land Customs Act nor section 5 of the Tariff Act which were previously applied to the Khyber Agency by the notifications referred to earlier did survive after 18th July 1947 when the Independence Act was passed by the Parliament.

40. Reference may be made at this stage to the Central Laws (Statute Reform) Ordinance, 1960 (hereinafter to be referred to as Ordinance XXI). Ordinance XXI is prefaced by the follow ing language: "Whereas the incorporation of certain former Provinces, Acceding States and Tribal Areas into the Province of West Pakistan by the Establishment of West Pakistan Act, 1955, has rendered it expedient that certain changes should be made in the laws and that certain laws should be extended to parts of the new Province to which they had not extended before; And whereas such extension has been agreed upon in consultation with the Provincial Government of West Pakistan and the other authorities concerned; And whereas it is expedient to remove from the Statute book certain Acts and Ordinances which have become obsolete or have discharged their function: Now, therefore, in pursuance of the Proclamation of the seventh day of October 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance." Section 3 of Ordinance XXI has important bearing on the question in hand and the material parts of that section are subsections (1) and (2) (b) which read as follows:‑ "3(1) Save as otherwise expressly provided in any Central Act or Ordinance, the Central Acts and Ordinances specified in the Second Schedule shall extend to the whole of Pakistan, and shall be amended in the manner indicated in the fourth column thereof, and shall be deemed to have so extended and amendment on the fourteenth day of October 1955. (2) Nothing in subsection (1) shall be deemed to extend, or over to have had the effect of extending the operation of any Central Act or Ordinance so extended or amended, to‑ (a) ............. (b) any of the Special Areas to which, immediately before the fourteenth day of October 1955, such Act or Ordinance did not extend, or is not otherwise extended or applied thereafter;" It will be manifest from reading subsection (I) that unless otherwise specifically provided in any Central Act or Ordinance the Central Acts and Ordinances specified in the Second Schedule are extended to the whole of Pakistan in' the manner indicated in the Schedule. In other words, all the Acts and Ordinances specified in the Second Schedule, with the modification referred to in the fourth column are only extended, which term is not interchangeable with the word "apply", and therefore in abundant caution in subsection (2) it was in very clear terms provided that nothing in subsection (1) shall be deemed to extend, or ever to have the effect of extending the operation of, any Central Act or Ordinance so extended or amended, and in clause (b) of subsection (2) it was further stated that the Act or the Ordin ance so extended should not be extended or applied to any of the Special Areas to which immediately before the fourteenth day of October 1955 such Act or Ordinance did not extend or is not otherwise extended or applied thereafter. In paraphrase subsection (2) states that no Central Act, or Ordinance listed in the Second Schedule shall extend to the Special Areas to which immediately before the fourteenth day of October 1955 such Act or Ordinance did not extend, or is not extended or applied there after. In the Second Schedule, item No. 105 is the Sea Customs Act. A perusal of the Schedule would indicate that only the Sea Customs Act and the Tariff Act have been extended to the whole of Pakistan but by virtue of subsection 2(b) since the operation of neither of the two Acts has been applied to them Khyber Agency after the passing of the Ordinance, even these Acts are not in force in the tribal territory.

41. The last enactment bearing on the point is the Tribal Areas (Application of Act) Regulation, 1955, published in the Gazette of Pakistan, Extraordinary, 10th September 1965. Paragraph 2 of the said Regulation is in the following terms:‑ "The Acts specified in the Schedule shall, subject to the modifications, if any, specified therein together with any rules, notifications and orders made or issued under these Acts, apply an to the Tribal areas or to the parts of those areas to which they do not already apply." The Sea Customs Act, 1878, is the second enactment which has been made applicable to the Tribal Areas.

42. There is another aspect of the case and it is that under clause (2) of Article 223, "the President may, with respect to any matter within the legislative competence of the Central Legislature, make regulations for a Tribal Area or any part of a Tribal Area, and the Governor of a province, with the approval of the Pre sident, may, with respect to any matter within the legislative competence of the Provincial Legislature, make regulations for a Tribal Area or any part of a Tribal Area situated in the provinces", and the President had made the Regulation referred to earlier under which the Acts specified in the Schedule alone had been applied. Therefore, in regard to the Khyber Agency no Act other than the Sea Customs Act is in force which term is N interchangeable with the term "apply". In other words, the Land Customs Act, 1924 and section 5 of the Tariff Act are not at all applicable to the Khyber Agency.

43. We now address ourselves to the question whether the seizure of the goods was justified assuming without holding that the Land Customs Act and section '5 of the Tariff Act are applicable (it has already been held that these laws are not applicable to the Khyber Agency).

44. The first point to be considered is whether section 5(1) of the Land Customs Act empowers the Land Customs Authorities to seize the goods. The relevant portion of this section is reproduced below for convenience of reference "5(1) Every person desiring to pass any goods, whether dutiable goods or not, by land out of or into any foreign territory shall apply in writing, in such form as tho Chief Customs Authority may be notification in the official Gazette prescribe, for a permit for the passage thereof, to the Land Customs Officer in charge of a land customs station established in a land customs area adjoining the foreign frontier across which the goods are to pass. (2) ....................... (3) Any Land Customs Officer, duly empowered by the Chief Customs Authority in this behalf, may require any person in charge of any goods which such Officer has reason to believe to have been imported, or to be about to be exported, by land from, or to, any foreign territory to produce the permit granted for such goods‑; and any such goods which are dutiable and which are unaccompanied by a permit or do not correspond with the specification contained in the permit produced, shall be detained and shall be liable to confiscation Provided that nothing in this subsection shall apply to any imported goods passing from a foreign frontier to a land customs station by a route prescribed in that behalf."

45. Subsection (1) of this section makes it obligatory on every person who wants to carry goods across the frontier to apply to the Land Customs Officer for a permit. In accordance with subsection (3) the Land Customs Officer can require any person importing goods to produce the permit for such goods and if it is not produced then, in case the goods are dutiable, he can detain the goods. So under this section it is only dutiable goods that can be detained. If they do not fall within this category section 5 will not be of any avail to the customs authorities in respect of the seizure. "Dutiable goods" are o defined in section 2(d) of the Land Customs Act and they mean any goods on which a duty of land customs is "leviable" by virtue of a notification issued under section 5 of the Indian Tariff Act. The learned counsel for the respondent admitted that the Tariff Act as such was not applied to the tribal territory but section 5 of the Tariff Act having been applied therefore the goods carried in the truck being dutiable can be seized in the Khyber Agency. By Notification No. 5‑F, dated 10th January 1939 (occurring at page 40 of the Gazette of India, Part 1 from January to June 1939), the Governor‑General‑in‑Council was pleased "to apply section 5 of the Indian Tariff Act, 1934 (XXXII of 1934) to the Khyber Agency". The question then arises whether the Notification alone is sufficient without specify ing the goods on which duty was leviable and the rates of the duty and without declaring the Khyber Agency to be a `foreign territory" can make the goods dutiable within the meaning of section 2(d) of the Land Customs Act. The question admits of a short answer and in emphatic no.

46. The learned counsel for the respondent tried to rely on another Notification No. 24‑T. (1)/37, dated the 10th January 1939 (at page 44 of the Gazette of India, Part 1 from January to June 1939), under which the Central Government declared Afghanistan to be "foreign territory" for the purposes of section 5 of the Tariff Act "as in force in British India" in respect of the following articles mentioned therein, "when imported into a port in British India shall be leviable on any such article when imported by land from the said territory". Item 5 reads:‑ "Fabrics containing silk, artificial silk, cotton . . . . . . ." The Notification, in our view, instead of assisting the respondent clinches the matter against them in that Afghanistan and not the Khyber Agency has been declared as foreign territory and the goods listed in the notification are leviable to custom duty at the rates prescribed by the Tariff Act "when imported into a port in British India". The words "British India" as already stated do not include the tribal territory, and therefore the seizure of any goods which are leviable to custom duty if imported into Pakistan cannot be seized in the Khyber Agency unless and until P the Khyber Agency is declared a foreign territory and the Notification under section 5 of the Tariff Act declaring the duty of custom at the rate prescribed by the Tariff Act is also notified including the goods that are leviable to duty. We are fortified in this view by the Notification No. 24‑T(2)/30 dated 3rd June 1939, in regard to Kurram Agency in which the Kurram Agency had been declared as foreign territory for the purposes of the Tariff Act. The said Notification is in the following terms:‑ "In exercise of the powers conferred by section 5 of the Indian Tariff Act, 1934 (XXXII of 1934), the Central Govern ment is pleased to declare the Kurram Agency to be foreign territory for the purposes of the said section, and to direct that a duty of customs at the rate prescribed by or under the said Act in respect of any of the following articles when imported into a port in British India, shall be leviable on any such article when imported by land from the said territory."

47. It follows from the above discussion that the notification applying section 5 of the Tariff Act only to the Khyber Agency alone is of no avail to the respondent unless and until the Tariff Act has been applied and the Khyber Agency has also been declared as a foreign territory for the purposes of the said Act Q and the goods are mentioned in the Notification to be leviable to duty at the rates specified therein.

48. The next point to be considered is the applicability of sections 167 (8) (36) and (81) of the Sea Customs Act. These provisions are applicable by virtue of section 9 of the Land Customs Act to goods imported by land even where so far as the Sea Customs Act is concerned they only apply to the goods imported by sea. To take up first section 167 (8), it applies only to goods "the importation or exportation of which is for the time, being prohibited or restricted by or under this Act". In order to determine whether the importation of the goods in dispute is prohibited or restricted by or under the Sea Customs Act, we turn to sections 18 and 19 of this Act. Section 18 applies to goods which cannot be imported at all into Pakistan. This section is not applicable because there were no goods in the truck of the description mentioned in this section, we turn next to section

19. Under this section the Central Government may from time to time by notification prohibit or restrict the bringing or taking by sea or by land of goods of any specified description. This section requires a notification for prohibition or restriction. There is no notification under section 19 by the Central Govern ment which prohibits or restricts the bringing of the goods in R dispute into the Khyber Agency. There is a notification under section 3 of Imports and Exports (Control) Act, 1950 on which reliance is placed by the Government and the answer to the question whether section 167 (8) is applicable really depends upon the legal effect of this notification. Section 3 of the Imports and Exports (Control) Act empowers the Government to prohibit or restrict imports and exports. The relevant portion of subsection (3) of this section which is really the sole basis of the' contention on behalf of the Government runs thus: "All goods to which any order under subsection (1) applies shall be deemed to be goods of which the imports or exports has been prohibited or restricted under section 19 of the Sea Customs Act, 1878." The argument on behalf of the Government is that as goods in respect of which there is an order under subsection (1) are to be "deemed" goods of which the import has been prohibited or restricted under section 19 of the Sea Cu4oms Act and as there is an order under subsection (t) of section 3 in respect of the goods in dispute, therefore, in law, there does exist a notifica tion under section 19 of the Sea Customs Act. But it is only if subsection (3) of section 3 of the Imports and Exports (Control) Act is law for the Tribal Areas that goods subject to restriction or prohibition under subsection (1) of section 3 are to be "deemed" goods of which import or export has been prohibited or restricted under section 19 of the Sea Customs Act and subsection (3) of section 3 is not law for the Tribal Areas. While determining the legal effects of acts and circumstances we should act on principle that a law which is not applied tots the tribal areas does not exist. It is only if the ‑Tribal areas were governed by section 3 of the Imports and Exports (Control) Act that the legal effect mentioned in subsection (3) could be produced. It is a very important legal effect. Although the import of goods is prohibited only under section 3 of the Imports and Exports (Control) Act such goods are "deemed" to be goods to which some other legal incidents are attached. These legal incidents cannot be attached without the applicability of subsec tion (3). If the Government wants that without a notification under section 19 of the Sea Customs Act they should give to a notifica tion under section 3 (1) a similar effect they should have applied subsection (3) to the Tribal Areas. As held by the Privy Council in 1930 P C 54 "when a person is deemed to be something the only possible meaning is that whereas he is not in reality that something the Act requires him to be treated as if he were "(this judgment hag been followed in a number of cases‑1946 Pat. 1 at page 11, 1944 Nag. 40). So, subsection (3) of section 3 means this that although the goods mentioned in the notification under section 3(1) are not goods with respect to which there is a prohibition or restriction under section 19 of the Sea Customs Act they shall, by the force of subsection (3), be regarded as such goods. But subsection (3) possess no legal force for the tribal territories.

49. The position with respect to items 36 and 81 of section 167 of the Sea Customs Act is not different. Item 36 is applicable only if the goods are "removed with the intention of defrauding revenue" and if there be no revenue payable, item 36 is not attracted. The main point is that no duty is r payable in the Tribal Areas, even if both the Land Customs Act and the Sea Customs Act are applicable as long as the Tariff Act is not applied. Item 81 similarly applies only to two cases where either the goods are chargeable with duty which has not been paid or there is a prohibition or restriction under or by virtue of the Sea Customs Act.

50. One other short point in regard to jurisdiction of this Court needs discussion. It was faintly argued (1) that the writ jurisdiction in regard to the tribal territories was barred under Article 223 (5) and (2) that the petitioner was not an aggrieved person in that Truck No. PR‑8876 at the time of seizure was shown in the ownership of Shah Alarn Khans.

51. With regard to the exercise of jurisdiction in regard to the Tribal Areas, the point stands concluded by the decision in Sar Khan v. The State (P L D 1967 S C 149) in that the Customs Authorities having illegally seized the truck containing the goods in the Tribal Area have brought the truck and the goods to the Peshawa U Cantonment Railway Station Custom Warehouse (apparently with a view to proceeding to take action for the alleged infringe ment of the Customs Laws), where admittedly the writ jurisdiction runs.

52. With regard to the question of ownership of the truck, the point stands concluded by the duly sworn affidavit of Abdur Rahman Khan who had stated that after purchasing the truck from Shah Alam Khan he had sold the same to the petitioner. The Customs Authorities cannot be expected to know about the ownership of the truck in particular when no other person has come forward to claim the ownership of the truck.

53. For all the foregoing reasons, consequent to the illegal seizure of the truck and the goods in the Khyber Agency, the bringing of the goods to Peshawar Cantonment Railway Station Custom Warehouse apparently for the purpose of proceeding for the infringement of the Customs Laws is also without jurisdiction or lawful authority. We accordingly accept the writ petition and issue an order of prohibition against the Customs Authorities not to take any action in regard to the truck and the goods and return the same to the petitioner. No order as to costs. A. E./R. B. A. Petition accepted.