1980 PLP 368 (CLC)

Zia Mahmood Mirza for Respondents. Date of hearing : 17th September, 1979. This judgment will also disclose of Writ Petition No. 5517 of 1978 and Writ Petition No, 5518 of 1978 as similar questions of law and facts are involved in all the cases.

2. In the first writ petition Khushal Khan Kiani, the petitioner who is serving as Inspector in Chenab Rangers at Sialkot has been directed to be tried by respondent No. 1, Commandant Chenab Rangers, Sialkot enjoying the powers of Magistrate 1st Class under section 14 (M) of West Pakistan Rangers Ordinance XIV of 1959. The trial against him was started on 8th of June, 1978 when he objected to the jurisdiction of respondent No. 1 to try him on the ground that he had not been invested with the Magisterial powers by the Central Government as contemplated by President's Order 19 of 1972. This objection was however, overruled by the respondent on 9th of July, 1978 who decided to proceed against him on 5th of July, 1978. The petitioner has challenged the validity of the aforesaid order thr6ugh the present petition mainly on the ground that after the promulgation of President's Order 19 of 1972 unless Magisterial Powers as contemplated by section 20 of West Pakistan Rangers Ordinance, 1959 are conferred upon respondent No. l by the Central Government he has no jurisdiction to proceed with the matter.

3. Similar position obtains in the other two writ petitions. Both of them have been filed by Zar Badshah Masood serving as Sub-Inspector in Sutlaj Rangers, Lahore. In Writ Petition No. 9517 of 1978 he has been ordered to be tried by respondent No. 1 under section 14 (E) of West Pakistan Rangers Ordinance, 1959 while in Writ Petition No. 5518 of 1978 he has been ordered to be tried under section 14 (M) of the same Ordinance.

4. President's Order 19 of 1972 was promulgated on 21st of April, 1972. It was called West Pakistan Rangers (Administration & Control) Order, 1972. Para. 2 of the Order lays down that notwithstanding any thing contained in West Pakistan Rangers (Re-Constitution) Order, 1971 or in West Pakistan Rangers Ordinance, 1959 or any other Law for the time being in force, the superintendence, control and administration of the West Pakistan Rangers constituted under the said Ordinance shall vest in the Central Government and all powers of the Provincial Government in relation to the West Pakistan Rangers shall be exercisable by the Central Government. Para. 2 (b) of the Order provides that references in 1959 Ordinance to the "Provincial Government howsoever worded "Governor of Punjab" or the "Governor of Sind" shall be construed as references to the Central Government. 5. 1t is contended that since the superintendence, control and administration of West Pakistan Rangers now completely vests in the Central Government under the President's Order, 1972 and the powers of the Provincial Government are to be exercised by the Central Government, therefore. unless respondent No. I is conferred Magisterial powers by the Central Government under section 20 of` Ordinance, 1959, he has no juris diction to proceed against the petitioners. Section 20 of the 1959 Ordinance provides that Government may invest the Commandant or any other Officer with the powers of a Magistrate Ist Class for the purposes of inquiring into or trying any offence committed by a member of the Force not punishable with death. The word `Government' has been defined as Government of West Pakistan in section 2 (f) of the Ordinance.

5. The main question to be considered in all the cases is as to what is the effect of the language as used in para, 2 (b) of the President's Order 19 of 1972 and whether the notification dated 6th of December. 1969 issued by the Provincial Government conferring powers of Magistrate 1st Class under section 20 of the Ordinance, 1959, upon the Commandant Chenab Rangers, Sialkot is still in force and remains intact. It has been argued by the learned counsel for the respondents that the language used in para. 2 (b) of the President's Order 19 of 1972 amounts to amendment in the 1959 Ordinance with retrospective effect and as such instead of the Provincial Government, the Central Government should be deemed to have invested respondent No. I with the powers of a Ist Class Magistrate w. e. f. 6th of December, 1969 when the aforesaid notification was issued by the Provincial Government. He has also relied upon sections 8, 23 and 24 of the General Clauses Act in order to show that after the repeal or modification, as the case may be, in any enactment the notification already issued under the previous enactment would remain in-tact He has also relied upon The Crown v: Wali Dad (P L D 1954 Lah. 236), Umar Hayat v. Mst. Hayat Bibi and others (P L D 1958 Lah. 82) and Muhammad Amir v. Federation of Pakistan, etc. (P L D 1977 Lah. 1086).

7. I am afraid the first contention has no force. The language as used in para. 2 (b) of the President's Order 19 of 1972 does not show that the Provincial Government or the Governor of the Punjab, as the case may be, both have been replaced by the Central Government with retrospective effect. There is no doubt that any enactment to that effect car, be made by tire Legislature but with a clear intention to that effect, It has been directed that references to the Provincial Government and the Governor o: the Punjab shall be construed as references to the Central Government It means that in future instead of the Provincial Government and the Governor of the Punjab it will be the Central Government which has been invested With the requisite powers as granted by 1959 Ordinance. In the circumstances the notification issued by the Provincial Government in 1969 cannot be deemed to have been issued by the Central Government.

8. Sections 8 and 23 of the General Clauses Act are not applicable to the facts of the present case. Section 24 of the General Clauses Act provides that where any Central Act or Regulation is, after the commence ment of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notifica tion, order, etc. under the repealed Act or Regulation. shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, etc., issued under the provisions so re-enacted. In the present case section 20 of the West Pakistan Rangers Ordinance, 1959 confers powers upon the Government to invest the Commandant or any other officer with the powers of a Magistrate of first class for the purposes of inquiring into or trying any offence committed by a member of the force not punishable with death. As mentioned above Government means, according to section 2 of the Ordinance, Government of West Pakistan and now at present so far as Province of Punjab is concerned Government of Punjab. President's Order 20 o' 1972. issued on 21st of April, 1972 has changed the whole complexion so far .as control and superintendence of the Rangers is concerned. It now vests in the Central Government on the basis of the aforesaid order and all powers of the Provincial Government in relation to Rangers can now be. exercised by the Central Government. So much so that with effect from the date of enforcement of Order 19 of 1972 references to the Provincial Government and the Governor of the Punjab as the case may be, shall be construed as references to the Central Government meaning thereby that the Provincial Government has ceased to be in the picture in the case. of Rangers with effect from 21st of` April, 1972. The whole complexion with regard to control and superintendence of the Rangers having undergone great charge, the provisions as contained in section 20 of the West Pakistan Rangers Ordinance 1959 authorising the Government to confer Magisterial powers upon the Commandant of the Rangers has become inconsistent with section 2 (a) & (b) of President's Order, 19 of 1972, whereby entire control and superintendent vests in the Central Government. As mentioned above section 20 of the Ordinance, 1959 authorised the Provincial Government to invest the Commandant with Magisterial powers while section 2 (a) & (b) of the Presidents Order 19 of 1972 provided contrary to that. The provisions in both the legislative enactments with regard to the subject matter in issue having 'become inconsistent with each other the previous notification issued by the Government of West Pakistan on 6th of December, 1969 could not remain in force after 21st of April, 19'

72. There is no doubt that fresh notification has not been issued by the Central Government under section 20 of 1959 Ordinance but that does not mean that the Commandant enjoys the Ist Class Magisterial powers, to hold inquiry or try any offence committed by a member of the force. it was held in the Crown v Wali Dad (1) while discussing the implications of section 24 of the Genes al Causes Act that since there was no material difference between sections 28 and 29 of the Indian Forest Act of 1878 under which Notifications Nos. 63 and 64 of 1887 as regards protected character of forest in question and the prohibition of cultivation were issued, and sections 29 and 30 of the Forest Act of 1927, the notifications already issued will continue in force till they are replaced by notifications issued under the Forest Act of 1927. In that case the respondent was alleged to have cultivated a part of the forest which was protected under Chapter IV of the Forest Act 1927 and as such had become liable to be punished under section 33 (1) (c) of the Act. Section 29 of the Forest Act, 1927 authorised the Provincial Government to issue a notification declaring that Chapter I V of the Act was to apply to any forest land or waste-land which was not included in a reserved forest as defined in Chapter 11 of the Act. By section 311 of the Act the Provincial Government was authorised to issue a notification prohibiting the breaking up or clearing for cultivation of any land in such forest. Section 33 of the Act provided punishment for violation of section 30 of the Act with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both. The notifications contemplated by sections 29 and 30 of the Forest Act, 1927 were not issued by the Provincial Government but two notifica tions dealing with the matter were issued as long ago as 17th of February, 1887 which were notifications Nos. 63 and

64. It was held by the Additional District Magistrate concerned that since the Indian Forest Act of 1878 under which Notifications Nos. 63 and 64 of 17th of February, 1887 had been repealed, therefore, the Notifications became dead letters and ought to be deemed as non-existing. It was held by the High Court after due comparison of sections 28 and 29 of the Indian Forest Act of 1878 with sections 29 and 30 of Forest Act of 1927 that since the aforesaid provisions corresponded to each other in all material respects, and there was no material difference between them, therefore, the notifications issued in 1887 under the Repealed Act would continue in force till they are replaced by notifications issued under the Forest Act of 1927. Similar view was taker. in Umar Hayar v, tVst. Hayat Bibi and others. As discussed above, the same position however, does not obtain in the present case. There being material difference in the relevant provisions with regard to conferment of powers upon the Commandant and the whole complexion in this behalf having undergone great change after the enforce ment of President's Order 19 of 1972, the Notification issued by the Provincial Government investing the Commandant with powers of Magis trate of First Class under section 20 of West Pakistan Rangers Ordinance, 1959 cannot be deemed to be still in force. It was necessary for the Central Government to invest the Commandant with necessary powers of first class Magistrate under the aforesaid provisions of law after the enforcement of Presidents Order 19 of 1972. Since no notification in this behalf was ever issued by the Central Government, therefore, proceedings taken by the Commandant against the petitioners in all the cases cannot be sustained in law being without jurisdiction and of no legal effect.

10. As a result of the above discussion all the three writ petitions are accepted without any order as to costs and the proceedings or orders, if any, held or passed by respondent No.

1. The Commandant are hereby set aside. It however, does not mean that the petitioners cannot be punished for the offence alleged to have been committed by them. After respondent No. I has been invested with necessary powers of Magistrate first class by the Central Government under section 20 of the 1959 Ordinance read with President's Order 19 of 1972 such proceedings may be taken against the petitioners. M. Y. M. Petition accepted.