P L D 1965 (W (PLP)

MUSHTAQ HUSSAIN, J.‑The petitioners were employed in the West Pakistan Rangers and are now confined in the District Jail, Lahore. Petitioner No. 1 was found guilty of an offence under section 14 (m) of the West Pakistan Rangers Ordinance (XIV of 1959) while petitioners Nos. 2 and 3 were found guilty under section 14 (m) and section 14 (n) (iv) of the same Ordinance and were sentenced to six months and five months' rigorous imprison ment in a civil jail, respectively. This was a result of a summary trial held by Major Abaidur Rehman (respondent No. 1) Second‑in Command and Magistrate 1st Class Sutlej Rangers, under section 20 of the Ordinance. Aggrieved by their conviction, the convicts have moved this petition under Article 98 of the Constitution of the Islamic Republic of Pakistan praying that :‑ (a) the proceedings be declared as ‑having been conducted without lawful authority and are, therefore, of no legal effect ; (b) the West Pakistan Rangers Ordinance may be declared as an unconstitutional legislation ; and (c) for setting aside of the judgment and sentence as being ab initio illegal and without lawful authority and that their conviction and sentence be quashed.

2. The grounds of attack are given at length in the petition but the one pressed before us related‑ "to the competency of the Governor of West Pakistan to promulgate the West Pakistan Rangers Ordinance, 1959 inasmuch as the pith and substance of the said Ordinance is ultra vires the Fifth Schedule to the late Constitution of 1956, as well as the Third Schedule to the Constitution of the Islamic Republic of Pakistan, 1962, because the said West Pakistan Rangers Ordinance purports to legislate on matters with respect to which the Central Legislature has exclusive powers to make laws."

3. The attention of learned counsel for the petitioners was drawn by us to Article 133 (2) of the Constitution which runs as follows: "The validity of a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law." And since we considered that the question was one of the interpretation of the Constitution and could have far reaching effects notice was issued to the Advocate‑General. The Advocate. General assisted by the Additional Advocate‑General and Mr. Aamer Raza Khan, an Advocate of this Court, appeared before us in response to the notice.

4. The learned Advocate‑General contended that Article 133(2) of the Constitution was an effective bar to this Court examining the validity of the impugned statute on the ground that the legislature by which it was made had no power to make it. He adverted our attention to Article 242 of the Constitution and the definition of "legislature" given in 'it which runs as follows:‑ "legislature" means the Central Legislature, each Provincial Legislature and any other authority or person empowered by or under this Constitution to make laws or to issue instrument having the force of law;" This definition of legislature, according to him, is applicable to Article 133 (1) and, therefore, a law made by a legislature which existed prior to the Constitution Day could not be examined by the legislature constituted under this Constitution. He further submitted that this definition is not applicable to Article 133 (2) and, therefore, Courts were debarred from going into the question of the validity of laws due to the incompetency of the legislature making them even if a given law had been enacted by a legislature which existed only before the Constitution Day.

5. In this connection our attention was adverted to the definition of "existing law" given in section 311 of the Government of India Act, 1935,‑ "existing law" means any law, ordinance, order, bye‑law, rule or regulation passed or made before the establishment of the Federation by any legislature, authority or person in any territories which were for the time being comprised in British India, being a legislature, authority or person having power to make such a law, ordinance, order, bye‑law, rule or regulation ;' According to this definition a law can be an "existing law" only if the legislature making it had power to do so; in other words, if the legislature was not competent to make the law, it would not be an "existing law" and, therefore, the Courts would be entitled to go into the question of the validity of such a law. Article 225 (7) of the Constitution is, however, differently worded,‑ "In this Article, 'existing laws' mean all laws' (including Ordinances, 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." This change in the phraseology of the definition was interpreted as being a deliberate departure from the previous position and aimed at securing validity for all laws which could be covered by this definition irrespective of whether the legislature making them was competent or not at the time when the law was made. There is no doubt that the words‑ "being a Legislature . . . . . having power to make such a law," are missing from Article

225. It is equally clear that, Article 225 saves only‑ ' "laws in force in Pakistan or any part of Pakistan immediately before the commencing day." An instrument depending for its validity upon Article 225 has to be (i) a law and (b) be in force immediately before the Constitution Day. The expression law has not been defined in the Constitution and a reference to Salmond on Jurisprudence (tenth, 1947, edition, page 41) where the following passage occurs could be made with advantage‑ " . .But all law, however made, is recognised and administered by the Courts, and no rules are recognised and administered by the Courts which are not rules of law. It is, therefore, to the Courts and not to the Legislature that we must go in order to ascertain the true nature of the law. The law may be defined (to expand the definition already given) as the body of principles recognised and applied by the state in the administration of justice. In other words, the law consists of the rules recognised and acted on by Courts of justice." Judged in the light of this definition a law made by an incompetent Legislature before the Constitution Day would, far from being recognised by, have been struck down by the Courts of law as ultra vires and would, therefore, have had no force on the day that the Constitution came into force.

6. The difference between a law which has been enacted by an incompetent Legislature and a law enacted by a Legislature which had the power to make it but which has on account of the coming into force of the Constitution become contrary to fundamental rights, was brought out sharply by Muhammad Munir, C. J. in The Province of East Pakistan and another v. Md. Mehdi Ali Khan and others (P L D 1959 S C (Pak.) 387 at p. 413) :‑ "The clause contemplates cases where inadvertently, not deliberately because no Legislature would intentionally disobey a constitutional prohibition, the Legislature enacts a law which collides with a fundamental right but the result here is precisely the same as in the case of an existing law under clause (1) of the Article the law is void only 'to the extent of such contravention' and not void ab initio like legislation which suffers from the incident of an inherent lack of power." In the same case Cornelius, J. (as he then was) observed as follows at page 432‑ "I would construe the word 'force' in this context as denoting that degree of power which is derived by the, formal expression of the will of a competent Legislature duly enacted into law, irrespective of the further and consequential aspect of its actual operation."

7. A piece of legislation enacted by an incompetent Legislature would neither be a law, nor in force on the seventh of June 1962, and would not be called an existing law within the meaning given to the expression by Article

225. The mere fact that a law was not struck down by a Court before that day because its validity was not challenged before it, would not convert it into a law in force. It has to be remembered that at no time before the present Constitution were the Courts helpless to declare legal instruments promulgated by incompetent Legislature as being ultra vires. The impugned Ordinance would not be an "existing law" if it does not conform to the principles discussed above and would, therefore, not continue "until altered, repealed or amended by the appropriate Legislature".

8. The learned Advocate‑General stressed the distinction between the meaning of the word "Legislature" in clauses (1) and (2) of Article

133. He thought that in Article 133 (1) it meant a Legislature created under this Constitution and that for the limited purpose of that sub‑Article the word "Legislature" had been used in a technical sense, and the definition given in Article 242 would, therefore, be applicable. On the other hand, the word "Legislature" in. sub‑Article (2) has been used in its generic sense in which it is understood in common parlance and would cover all Legislatures whether created by this Constitution or in existence before it came into force. He argued that in one D Article the word "Legislature" had been used prospectively while in the other it was in a retroactive sense. We do not find any reason to accept this submission. Article 242 begins as follows:‑ "In this Constitution, unless the context otherwise requires‑" and in spite of our best efforts we have not been able to find any difference in the context in which the word has been used in the various sub‑Articles of Article 133.

9. An observation appearing in the judgment of B. Z. Kaikaus, J. in the case, Sai3yid Abul A'la Maudoodi etc. v. The Government of West Pakistan and another (P L 13 1964 S C 673 at p. 745) would be of interest in this regard,‑ "The argument that a law does not become a Provincial Law just because there has to be a notification by the Provincial Government before it comes into force is sufficient to dispose of the contention of Mr. Brohi but the correct position is that the Criminal Law Amendment Act is neither a Provincial Law nor a Central Law for the terms 'Provincial Legislature' and 'Central Legislature' refer to Legislature created by and functioning under the present Constitution. It is only an `existing law' which comes into force by virtue of Article 225 of the Constitution." This observation fortifies us in the conclusion which we have already reached above.

10. The necessary result of the argument of the learned Advocate‑General would be that all legal instruments enacted before the Constitution Day irrespective of whether they were intra vires of the authority making them or not would be sanctified as existing laws by the Constitution and since the word "Legislature" appearing in Article 133 (1) refers, according to him, only to a Legislature brought into being by this Constitution, there will be nobody having the responsibility of deciding whether the law was made by a Legislature having the power to do so. Such legal instruments, therefore, would become valid by the force of Article 225 although they were shorn of all validity and legal force before the Constitution Day. Such al result could not have been contemplated by the framers of the Constitution.

11. Discussing the effect of Article 133 on the powers of the superior Courts in this country to question the competency of the President to promulgate President's Order No. 34 of 1962 Cornelius, C. J. observed as follows (in Mr. Fazlul Quadar Chowdhry and others v. Mr. Muhammad Abdul Haque (P L D 1963 S C 486 at p. 504)):‑ "If the intention of Article 133 had been that over, the entire range of law and the enforcement of law in Pakistan, the only guarantee to the citizens, of the laws under which they live being made within the powers of the Legislatures which purported to make those laws, were the fact that such law was made by such Legislatures, then there would be no need for such a clear provision as that contained in Article 58 of the Constitution . . . . . . . . . . . Should the vires be challenged by some person, it would be open to him, by means such as may be available to him to have the matter raised before the Legislature, after the passing of the law, so that the Legislature should pronounce upon the validity of the law, in the light of its own powers, subject-wise. However doubtful this remedy might seem, yet it might convey to the citizen an assurance that a duty falling upon the Legislature, if it was not performed at the initial stage, would be still a duty which the Legislature could be required to perform. If this view be correct, and if it be assumed that the President acting under Article 224(3) is a 'Legislature' within the meaning of that term, as used in Article 133 then it falls to be observed that the President's powers in that behalf were terminated, by lapse of time, on or about the 7th day of September 1962. From that date onward, there was consequently no 'legislature' to discharge the responsibility of satisfying itself, upon the question being raised, that it had acted within its powers. If then there had been excess of power, must it be assumed that the Constitution provides no means of correction? The true aspect of the matter would be that the rule of exclusive 'responsibility' and the bar of jurisdiction by which it is supported, would both fall out of the way, so that the jurisdiction of the superior Courts would at once be attracted." There must, therefore, of necessity be some forum which could pronounce upon the validity of laws ; in respect of laws not' enacted by a Legislature as defined in Article 242 of this Constitution the superior Courts are the only arbiters, and as and when the validity of a pre‑Constitution legal instrument is challenged on the basis of the incompetency of its maker it will be the function of such Courts to examine and pronounce upon their validity.

12. Having come to the conclusion that this Court has jurisdiction in the matter we proceed to examine the vires of the Legislature which enacted the West Pakistan Rangers Ordinance (XIV of 1959). The Ordinance was made on the 20th of March 1959 by the Governor of West Pakistan‑ "In pursuance of the Presidential Proclamation of the seventh day of October 1958, and in exercise of all powers enabling him in that behalf, . . . . ." By section 3 this Ordinance empowered the West Pakistan Government to create and maintain a Force to be called the West Pakistan Rangers. Its functions have been detailed in section 6 as follows :‑ "The Force shall perform the following functions :‑ (a) protection of persons and property in the Border areas ; (b) apprehension of persons unlawfully entering into or going out of Pakistan territory ; (c) organisation of village defence in the Border areas ; (d) prevention of smuggling ; and (e) collection of intelligence in the Border areas." For the purpose of the present case even if we are able to find that the Governor of West Pakistan had the power to promulgate a law for even one of the purposes mentioned in section 6 and it is severable from the other purposes it will be enough for the disposal of the present petition and it will not be necessary to go into the other clauses because the Force would then have been validly raised.

13. With the proclamation of the seventh of October 1958 the Constitution of the Islamic Republic of Pakistan, which was enacted in the year 1956, stood abrogated, the Central and Provincial Governments were dismissed, the National Parliament and Provincial Assemblies were dissolved, all political parties were abolished and Pakistan was brought under Martial Law until alternative arrangements were made. This was followed by the President's Order (Post‑Proclamntion) No. 1 of 1958, Laws (Continuance in Force) Order, 1958, on the 10th of October 1958. Article 2 (1) of this Order ran as follows :‑ "Notwithstanding the abrogation of the Constitution of 23rd March 1956 hereinafter referred to as the late Constitu tion, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution;" and its Article 5 (1) laid down that‑ "The powers of a Governor shall be those which he would have had the President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinance as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force." Article 106 of the late Constitution provided‑‑ "(1) Notwithstanding anything in the two next succeeding clauses, Parliament shall have exclusive power to make laws with respect to any of the matters enumerated in the Federal List. (2) Notwithstanding anything in clause (3), Parliament, and subject to clause (I) a Provincial Legislature also, shall have power to make laws with respect _to any of the matters enumerated in the Concurrent List. (3) Subject to clauses (1) 'and (2), a Provincial Legislature shall have exclusive power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial List. (4) Parliament shall have power to make laws with respect to matters enumerated in ‑ the Provincial List, except for a Province or any part thereof." And Article 102 (1)‑ "If at any time, except when the Provincial Assembly is in session, the Governor is satisfied that circumstances exist which render immediate action necessary, he may make and promul gate such Ordinances as the circumstances appear to him to require, and any Ordinance so made shall have the like force of law as an Act of the Provincial Legislature; but the power of making Ordinances under this clause shall be subject to the like restrictions as the power of the Provincial Legislature to make laws, and any Ordinance made under this clause may be controlled or superseded by any such Act: Provided that the Governor shall not, without previous instructions from the President, promulgate any such Ordinance if an Act of the Provincial Legislature containing the same provision would, under the Constitution, have been invalid unless it had received the assent of the President." By virtue of the Laws (Continuance in Force) Order, 1958, the Governor of West Pakistan could, therefore, promulgate an Ordinance on any subject on which the Provincial Legislature, had it been in existence, could have made laws.

14. A Provincial Legislature had exclusive power to make laws with respect to any of the matters enumerated in the Provincial List.‑ The very first item of the Provincial List which occurs in the Fifth Schedule is‑ "Public order (but not including the use of naval, military or air forces, or any other armed forces of the Federation in aid of the civil power)." The expression `public order' came up for interpretation before the Federal Court in Muhammad Ali v. Crown (P L D 1950 F C 1). Abdur Rahman, J. who delivered the judgment of the Court observed at page 6 as follows‑ "Moreover `public safety', in our way of reading, was merely a result which was meant to be achieved and it would depend on the circumstances existing at the time whether it was being disturbed or was in danger of being disturbed by any act of external aggression or by internal commotion. If it was being endangered by an act of external aggression, the matter would fall within the ambit of entry I of List I of the Seventh Schedule to the Government of India Act, but if it was endangered by any internal commotion or on account of violation of public order, it would fall within the category of the subjects referred in entry No. 1 of List II. It may. possibly be that at any given time both such causes may exists simultaneously. In such a case, it would fall both within List I and List II and while the Federal Legislature would be competent to legislate with regard to preventive detention for reasons of State connected with defence or external affairs, it would be open to a Provincial Legislature to pass a similar legislation but for reasons connected with the maintenance of public order. The words `but not including the use of His Majesty's Naval, Military or Air Force in aid of civil power' after the words `Public Order' in entry No. I of List II are significant for laws in regard to them, whether raised or maintained by 'the Federation or merely attached to or operating with any of the armed forces of the Federation, could only be made by the Federal Legislature as falling within the compass of entry No. I of List I of the Seventh Schedule. It is true that the words `with a view to preventing him from acting in any manner prejudicial to public safety' precede the words `the maintenance of public order' in section 3 (1) of the Act but that was either with the object of emphasising the important result which was intended to be achieved or used in that sequence on account of the name given to the Act. We do not, however, attach any importance to the order in which the two expressions have been used in the section, for it seems to be quite clear that the prevention of a person from acting in a manner prejudicial to the public safety was one of the main objects of the maintenance of `public order' and could not in the context be taken to refer to public safety endangered by other causes." To the same effect is the following observation by Muhammad Munir, C. J. (as he then was) in Rafique Ahmad Sheikh v. Crown (P L D 1951 Lah. 17 at 21), in the matter of detention of Mr. Abdul Latif. ' "The words `public order' in Item I of List 2 of the Constitution Act have been used in a generic sense and are not necessarily entithetical to disorder. They are wide enough to include considerations of public safety within their significa tion. Even if the result of a man being allowed to act in a certain manner may be an invasion or a widespread internal commotion because of some foreign power being interested in the disturbances of public order, he may rightly be detained under the Provincial Act on the ground that the act, if it had been permitted to be done, would have prejudicially affected public safety, and in such a case it need not necessarily be held that the reasons for preventing him to do the apprehended act were exclusively reasons of State connected with defence or external affairs. If the dominant aspect of the apprehended act be the prejudice to public safety, the arrest and detention would be within the provincial sphere even if the act be done with the assistance or at the instigation of a foreign power." The principles governing the interpretation of legislative lists have been adverted to in United Provinces v. Mst. Atiqa Begum and others (A I R 1941 F C 16) and at page 25 it contains the following observation by Gwyer, C. J.‑ "I think however that none of the items in the lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be com prehended in it." Similarly we find the Federal Court of India observing in Reference No. 1 of 1938 (AR 1939 F C) that‑ "(1) The provisions of an Act like the Government of India Act, 1935, should not be cut down by a narrow and technical construction, but considering the magnitude of the subjects with which it purports to deal in very few words, should be given a large and liberal interpretation, so that the Central Government, to a great extent but within certain fixed limits, maybe mistress in her own house, as the Provinces, to a great extent but again within certain fixed limits, are mistresses in theirs ; . . . . . ." "(4) Even where there has been an endeavour to give pre eminence to the Central Legislature in cases of a conflict of powers, it is obvious that, in some cases where this apparent conflict exists, the Legislature could not have intended that powers exclusively assigned to the Provincial Legislature should be absorbed in those given to the Central‑Legislature." It can, therefore, be hardly doubted that "public order covers "the protection of persons and property". This is a complete answer also to the point raised by Mr. Shahzad Jahangir, learned counsel for the petitioner, that the Force was, in fact, meant for the protection of persons and property in the Border Area from frequent raids by Indian army patrols into the Pakistan territory and since defence of Pakistan or any part of Pakistan as well as external affairs were items in the Federal List the Provincial Legislature and, therefore, the Governor of West Pakistan were not competent to legislate on this subject. As Gwyer, C. J. observed in A. L. S. P. P. L. Subrahmanyan V. Muttuswami Goundan (AIR 1941 FC 47 at p.51):‑ "It must inevitably happen from time to um that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been involved by the Judicial Committee whereby the impugned statute is examined to ascertain its `pith and substance', or its `true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or in that." As has already been demonstrated above and, at least, m the context of clause (1)‑of section 6 the pith and substance of this Ordinance is the maintenance of "public order" which is a function of the Provincial Government and on which the Provincial Legislature is entitled to legislate. The impugned Ordinance was, therefore, validly made by a competent Legislature.

15. Since this was the only point stressed before us we cannot hold that the detention of the petitioners is illegal because of lack of lawful authority.

16. Our conclusions are that‑ (a) the validity of a law made before the 8th of June 1962 can be called in question before Courts on the ground that the Legislature by which it was made had no power to make the law and Article 133 (2) is not a bar to it. (b) a legal instrument made before‑the Constitution Day would be an "existing law" and have the protection of Article 225 of the Constitution only if it was made by a Legislature competent to make it and‑ any such instrument M made by a Legislature which did not have the power under the Constitution to do so shall not be an existing law ; and (c) the West Pakistan Rangers Ordinance, 1959, so far as it authorised the creation by the Provincial Government of a Force for the purposes mentioned in section 6 (a) was intra vires its maker.

17. We have not gone into the question whether the Governor had the power to legislate on the subjects covered by sections 6 (b) to 6 (e) as those contained in section (6) (a) are severable from the others and we were anyhow not called upon in the peculiar, circumstances of this case to go any further.

18. This petition is, therefore, dismissed but the parties are left to bear their own costs. A. H. Petition dismissed.