P L D 1956 Federal Court 395 (PLP)

MUHAMMAD MUNIR, C. J.‑

This is a constitutional criminal appeal by Muhammad Yusuf who on being tried for offences under section 161 of the Pakistan Penal Code ;and section 5 (2) of the Prevention of Corruption Act, 1947, was convicted by Mr. M. A. Rauf, Special Judge, Dacca Division, and sentenced to three years' rigorous imprisonment and a fine of Rs. 700 under the former and to four years' rigorous im prisonment under the latter section. An appeal to the High Court of Dacca having failed he has appealed to this Court on the strength of a certificate given by the High Court under section 205 of the Government of India Act, 1935. The constitutional point raised by the appellant before the High Court was that since administration of justice and organisation of all Courts is a matter on which the Provincial Legislature alone is competent to legislate and the Special Judge who convicted him had been appointed under, the Pakistan Criminal Law (Amendment) Act, XIX of 1948, which was passed by the Federal Legislature, the trial, convic tion and sentence are void, the Federal Legislature having; no authority under the Government Of India Act, 1915, to create a Court for the administration of Criminal justice. The appel lant has also asked for leave to question the correctness of his conviction on facts, but the petition for that purpose does not raise any such question as attracts the special jurisdiction of this Court in criminal matters. The sole question for determination in this appeal, therefore, 0 whether the objec tion to the jurisdiction of the Special Judge is sustainable. The argument. advanced by Mr. Nazir‑ud‑Din Ahmad on behalf of the appellant is that by reason of subsection (3) of section 100 of the Government of India Act, 1935, the respects matters Provincial Legislature alone can make laws as Legislative List) which are mentioned in List II (Provincial constitution and and that since administration of justice and court appears as organisation of all Courts except the Federal Court the item 1 in that list, the Federal Legislature in pas. I be Pakistan Criminal Law (Amendment) Act, 1948, must be, deemed to have usurped the Provincial Legislature's function. with the result that the Act is ultra vires the Federal. Legislature. It is conceded that so far as the jurisdiction and powers of Courts except the Federal Court, with respect to any of the matters Mentioned in List I Federal Legislative List) and List III (Concurrent Legislative' List) is concerned, the Federal Legislature has the authority to legislate, but it is urged that constitution of Courts is mattes, entirely different from jurisdiction and powers of Courts and that since the Court of a Special Judge' was created by the Pakistan Criminal Law (Amendment) Act, 1948, the Act falls within entry I of the Provincial Legislative List, and not entry 15 of the Concurrent Legislative List which confers on the Federal Legislature concurrent jurisdiction to legislate on matters enumerated in that list, including criminal law and criminal procedure which appear under entries 1 (a) and

2. In order to decide this issue, it is necessary briefly to refer to the scheme of distribution of legislative powers between the Federal Legislature and the Provincial Legislature. The Seventh Schedule to , the Government of India Act, 1935 contains three Lists of subjects. Of these, List I is the Federal Legislative List. List II the Provincial Legislative List and List III the Concurrent Legislative List. The section defining the respective powers of the Federal and Provincial Legis latures to legislate on the matters mentioned in these Lists is section 100 which provides by subsection (1) that the Federal Legislature and not a Provincial Legislature has power to make laws with respect to any of the matters enumerated in the Federal Legislative List. Subsection (2) of that section declares that the Federal Legislature as well as the Provincial Legislature has power to make laws with respect to any of the matters enumerated in the Concurrent Legis lative List, subject of course to the qualification stated in section 107 that if any provision of a Provincial law is repugnant to any provision of a Federal Law which the Federal Legislature is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent Legislative List, then the Federal law, whether passed before or after the Provincial law, or as the case may be, the existing law shall prevail and the Provincial law shall, to the extent of the repugnancy, be void. The third subsection of section 100, which is the converse of sub‑section (1), enacts that the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province with respect to any of the matters enumerated in the Provincial Legislative List. Each of these three subsections has either a precedence clause or a subjecting clause which is designed to make the Federal Legislation prevail over the Provincial Legislation should overlapping be discovered between the Federal and the Provincial sphere as defined in the Lists to the Seventh Schedule. Thus subsection (1) which defines the competency of the Federal Legislature and the incompetency of a Provincial Legislature to legislate begins with the words "Notwithstanding anything in the two next succeeding subsections" subsection (2) which deals with the concurrent jurisdiction of the Federal Legislature and the Provincial Legislature to legislate on certain matters com mences with the words "Notwithstanding anything in the next succeeding subsection", and subordinates the Provincial Legislature's power by the words "subject to the preceding subsection"; and subsection (3) which gives to the Provincial Legislature exclusive power to legislate on certain subjects begins with the words "subject to the two preceding sub. sections". The careful manner in which the non‑obstante clauses in subsections (1) and (2) and the subjecting clauses subsections (2) and (3) have been used indicates that the legislature, despite its best efforts to define the respective spheres of the Federal and the Provincial Legislatures, was conscious of the possibility that a particular piece of legis lation may well fall under more than one entry In the Legislative Lists, and that the intention in such a case was to give precedence to the Federal Legislation over the Provincial Legislation. The inter‑relation of these Lists and the principles governing the interpretation of entries in them with respect to a particular legislative measure have been the subject of several decisions by the Federal Court of India and the Privy Council before the Partition. There is no difficulty where on construing the relevant legislative measure and examining the several possible entries under which it may fall the Court comes to a finding that the objected measure falls in List I or List III and not in List II or that it falls in List II and not in either of the other two lists. In the former case, the legislation will be ultra vires if it be by a Provincial Legislature and intra vires if it be by the Federal Legislature. In the latter case the legislation will be ultra vires if it be by the Federal Legislature and intra wires should it be by the Pro vincial Legislature. But if it cannot be determined under which of the two competing entries the impugned measure exclusively falls and the attempt to reconcile the entries fails, the conflict can only be solved by having recourse to the non obstante clause in subsection (1) or (2) or to the subject ing clause in subsection (2) or (3) of section 100 and declaring the Provincial Legislation ultra wires, if it encroaches upon the Federal sphere or is in conflict with a Federal or an existing law. In Governor‑General‑in‑Council v. Province of Madras (72 I A 91), which was a case under the Government of India Act, 1935, Lord Simonds who delivered the judgment of the Board pointed out that the effect of the opening words of subsection (1) of section 100 of the Government of India Act, 1935, "Notwithstanding anything in the two next succeeding subsections" and of the opening words in subsection (3) of section 1G0 of that Act. "Subject to the two preceding sub sections is that if the legislative powers of the Federal and Provincial Legislatures enumerated in List I and List II of the Seventh Schedule cannot tie fairly .reconciled, the latter must give way to the former. Of course, in cases of apparent conflict the first duty of the Court is to determine whether the legislative measure in question falls under one entry and not under the other. In performing this duty the rule to be followed, as stated by the Privy Council in a case under the British North America Act, Attorney‑General for Ontario v. Attorney‑General for Canada (1912 A C 571 (583)) is :‑ "if the text is explicit, the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act." Similar observations are to be found in the earlier case of Citizen Insurance Co. of Canada v. Parsons ((1881) 7 App. Cas. 96), where it was remarked by the Board :‑ "In these cases it is the duty of the Courts, however difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters falling within these classes of subjects exists in each Legislature, and to define in the particular case before them the limits of their res pective powers. It could not have been the intention that a conflict should exist; and in order to prevent such a result, the two sections must be read together and the language of one interpreted, and, where necessary, modified by that of the other. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain, and to give effect to all of them. In performing this difficult duty it will be wise course for those on whom it is 'thrown, to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for a decision of the particular question in, hand.". And in Governor‑General‑in‑Council v. Province of Madras a case already cited, the Privy. Council declared it to be the duty of the Court first to consider whether a fair reconciliation cannot be effected by giving to the language of the Federal Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can be properly given to it, and equally giving to the language of the Provincial Legislative List a meaning which , it can properly bear. In Subrahmanyan Chettiar v. Muttuswami Goundan (1940 F C R 188), Gwyer, C. J. who was mostly responsible for drafting the Government of India Act, 1935, said, "It must inevitably happen from time to time 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 interwined 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 z forbidden sphere. Hence the rule which has been evolved by the Judicial Committee where by 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 : Citizens Insurance Company of Canada v. Parsons ((1881) 7 App. Cas. 96) ; Russell v. The Queen (1882 7 App. Cas. 829); Union Colliery Co., of British Columbia v. Bryden, (1899 A C 580) ; Attorney‑General for Canada v. Attorney‑General for British Columbia (1930 A C 111) ; Board of Trustees of Lethbridge Irrigation District v. Independent Order of Foresters (1940AC513). In my opinion, this rule of interpretation is equally applicable to the Indian Constitution Act". We consider that the rule enunciated by the Privy Council in the aforesaid cases and acted upon by the Federal Court of India is a safe guide to be followed in the solution of difficulties of the present nature where what has to be determined is whether a particular Act falls wholly and solely within one entry and not another. Let us now apply the foregoing principles to the present situation'. The High Court has held that the Pakistan Criminal Law (Amendment) Act, 1948, by which Courts of Special Judges were created is a matter covered by the entry "Criminal procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act", at No. 2 of the Concurrent Legislative List and that therefore the Federal Legislature was competent to pass that Act. The correctness of this finding is attacked on the ground that administration of justice and creation and organi sation of all Courts which finds place in entry , 1 of the Provincial Legislative List is a more specific provision, and it is argued that if a particular legislative measure relates to the creation of a Court for the purpose of administering justice, as the Act of 1948 does, such measure can only be enacted by the Provincial Legislature and not by the Federal Legislature inasmuch as none of the , entries in the Federal Legislative List or the Concurrent Legislative List specifically gives to the Federal Legislature the power to create a Court. We think. this question really does not arise in the case, and we are not called upon to decide it because entry 1 (b) "Measures to combat certain offences committed in connection with matters concerning the Central and Provincial Governments and the establishment of a police force for that purpose" which was inserted by the Government of India Act (Seventh Schedule) (Amendment) Order, 1948, is in our opinion, the relevant entry under which the question of intra vires or ultra vires of the Act of 1948 has to be determined. It is, of course, obvious, and the proposition, as mentioned above, is supported by high authority, that in considering whether a particular legislative measure does or does not fall within a particular entry it is necessary to examine the entire scheme and principle of that measure, the object and policy underlying it and the manner in which by various provisions in it the Legislature has attempted to carry out that object. If, after examining the impugned legislation in this manner, the Court can, with reasonable certitude, find that the dominant aspect of that measure brings it within the purview of a particular entry, the legislation must be held to relate to that entry, eve though one or more of its provisions may incidentally affect matters which may also fall within other competing entries. Now if we apply this test to the Pakistan Criminal Law (Amendment) Act, 1948, there is no difficulty in finding that the Act was a measure to combat certain offences committed connection with matters concerning the Central and Provincial Governments. The Act recites in its preamble that it was expedient to provide for the more speedy trial and more effective punishment of certain offences punishable under the. Penal Code and certain other laws ; these offences which are specified in the Schedule mostly relate to offences committed by public servants : "public servant" for the purposes of the Act is defined ; sanction of the Government is necessary for the prosecution of public servants ; certain provisions of the Criminal Procedure Code are relaxed or substituted by other provisions in respect of the trial of such offences by a Special Judge ; and the offences arc to be investigated by special police and a Special Judge can take cognizance of those offences only on report by the special police. The Act was subsequently amended by tact XXXVII of 1953 and Act IV of 1953, but these amendments do not affect the essential scope and policy of the Act, namely, the trial and punishment in an expeditious manner of certain offences committed by public servants employed in connection with the affairs of the Federation or of a Province. It is true that some of the offences as, for instance, theft, cheating, forgery, etc., are triable under the Act whether they are committed by public servants or not, but in the present case the offence committed was that of bribery and criminal misconduct and certainly concerned the Provincial Government, because the appellant accepted the illegal gratification charged in his capacity of a Magistrate appointed to administer criminal justice. For the purposes of the present trial therefore the Act was intra vires the Federal Legislature. Mr. Nazir‑ud‑Din Ahmad contends that even if it be assumed that the Act falls within the scope of entry 1 (b), the provision relating to the constitution of the Court of Special Judge is ultra vires the Federal Legislature because the power to create Courts does not at all vest in the Federal Legislature, and in support of this contention he relies on a case in the Supreme Court of India State of Bombay v. Narothamdas Jethabaf, and another (1951 S C R 51). In that case, the question was whether the creation of a Civil Court to try suits of a civil nature of a particular value from Greater Bombay, even if the suit related to a promissory note, was ultra vires the Provincial Legislature in view of the fact that promissory notes figured as one of the items in the Federal Legislative List, and not as in this case the question whether a particular measure falls under one of the entries in the Concurrent Legislative List. The case is, therefore, not only clearly distinguishable but in one respect it goes against the contention raised on behalf of the appellant that constitution of Courts and jurisdiction and powers of Courts are two wholly disassociated matters because it was held in that case that in creating Courts the Provincial Legislature had not only the authority to confer, but it could not exercise the functions entrusted to it without conferring, jurisdiction and powers on the Courts created by it. Therefore if the Act of 1948 can be held to be a measure to combat certain offences committed in connection with matters concerning the Government, then on the ratio decidendi of the Supreme Court decision on which reliance is placed for the , appellant, item 15 in List III "Jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List" gives to the Federal Legislature 'the power to constitute special Courts because the constitution of such Courts is itself a measure of the kind mentioned in entry 1 (b). Therefore even if it be assumed that the Act also comes within the purview of entry (1) of the Provincial Legislative List, the Federal Legislature, by reason of the non obstante clause in subsection (2) of section 100 of the Government of India Act, 1935, had the power to enact it. For these reasons, we hold that the Federal Legislature had the authority to empower the Central and the Provincial Governments to appoint Special Judges for the expeditious disposal of the offence of corrup tion committed by the public servants and that the Special Judge in the present case had the jurisdiction to try the appellant for the offence of corruption. The appeal is, therefore, dismissed. A.H. Appeal dismissed.