P L D 1963 Supreme Court 401 (PLP)

(a) it was repugnant to the provisions of Article 225 of the Constitution, (b) it was not an existing law within the meaning of the said Article, and (c) if it was not an existing law, then it had not been enacted in accordance with the provisions of the Constitution. It is unnecessary to mention here the other different grounds of challenge raised in the High Court, for, they have not been pressed before us. In this Court all the appellants have challenged even the vires of the Martial Law Orders Nos. 111 and 118 and of Ordinance (XXI of 1962), but before we take this up for consideration it needs to be mentioned that the High Court held that Martial Law Orders Nos. 111 and 118 had been kept alive by Ordinance (XXI of 1962) and that the latter came into force immediately before the Commencing Day and was, therefore, an existing law on that day. It was not necessary, therefore, for the Governor to comply with the provisions of Article 79 of the Constitution in promulgating the said Ordinance. The validity of the said Ordinance could not also in the opinion of the High Court, be challenged on the ground of repugnancy with Article 225 of the Constitution or the provisions thereof relating to the principles of law making by reason of Article 6 of the Constitu tion. The question as to whether Ordinance (XXI of 1962) bad been promulgated in accordance with the provisions of the Laws (Continuance in Force) Order, No. 1 of 1958) was neither argued before the High Court nor examined by it. The High Court also repelled the other conten tions raised as to the validity of the orders issued by the Commis sioner, Lahore Division, and dismissed the writ petitions. Now the main argument that has been advanced before us on behalf of all the appellants in these cases is that in so far as the Martial Law Orders Nos. 111 and 118 promulgated by the Martial Law Administrator, Zone B', purported to make pro visions inconsistent with the provisions of the late Constitution and other existing laws, they were of no legal effect and could not take away the rights which citizens had acquired under the latter provisions. Thus no legal liability could have been incurred under such ineffective and incompetent Orders, which could now be deemed to be still enforceable, notwithstanding the repeal of all Martial Law Regulations and Orders, other than those expressly saved, by Article 225 of the Constitution of 1962. This argument is built up upon the language of Articles 2 and 4 of the Laws (Continuance in Force) Order, 1958. Under clause (1) of Article 2 of the said Order it has been provided that the Republic to be known as Pakistan shall be governed as nearly as may be in accordance with the late Constitution, notwithstand ing its abrogation, subject only to any Order of the President or Regulation made by the Chief Administrator of Martial Law. Similarly in clause (1) of Article 4 it is said that all laws other than the late Constitution which were in force in Pakistan or in any part thereof immediately before the Proclamation of the 7th of October 1958, shall, so far as applicable, continue in force until altered, repealed or amended by competent authority, but subject again "to any Order of the President or Regulation made by the Chief Administrator of Martial Law." It is, therefore, argued that under these provisions the only means available for making a change either in the late Constitution or in any law, which continued in force was either by an Order of the President or a Regulation made by the Chief Administrator of the Martial Law. A Zonal Martial Law Administrator was, in no way, competent to change a law prevailing in Pakistan immediately before the Proclamation of the 7th October 1958. In order to appreciate the extent to which these Martial Law Orders Nos. 111 and 118 (Zone `B') had impinged upon the provisions of the late Constitution and some existing laws it may be relevant, at this stage, to set them out in extenso. Martial Law Order No. 111, which was promulgated by the Martial Law Administrator, Zone `B', on the 8th of February 1962, is in these terms: ‑ "Whereas property shown in T. P. Plan No. 167/M for Timber Market on the Ravi Road in Lahore, measuring approximately 216 kanals, 5 marlas, 199 sft. and comprising the khasra numbers as given in the Schedules attached, situated in the Revenue Estate Chak Jia Musa and Jia Musa, Tehsil and District Lahore (hereinafter referred to as the said property) is required by the Lahore Improvement Trust in the public interest for the purpose of constructing a Timber Market (hereinafter referred to as the said Market), in Lahore, now, therefore, I, Lt.‑General Bakhtiar Rana ; S. Q. A., M.C., Martial Law Administrator, Zone `B', order the West Pakistan Government (hereinafter referred to as Government) to forthwith take possession of the said property summarily ejecting, if necessary, any person or persons in occupation of any part thereof. (2) Government shall transfer the said property to the Lahore Improvement Trust subject to the provisions of section 41 of the Land Acquisition Act, 1894, so far as applicable as if the Lahore Improvement Trust were a Company and shall put the Lahore Improvement Trust in possession thereof and the said property shall be deemed to have been duly acquired by the Lahore Improvement Trust. (3) The compensation for the land and standing crops thereon will be assessed by the Deputy Commissioner and Collector, Lahore, under the Land Acquisition Act, 1894, as modified by section 69 of the Punjab Town Improvement Act, and shall be subject to confirmation by the Commissioner, Lahore Division, Lahore, whose order shall be final. (4) The compensation awarded shall be paid by the Lahore Improvement Trust. (5) The Lahore Improvement Trust shall forthwith lay out the area of the said Market, allot sites to the timber merchants and do all other things necessary for the establishment of the said Market in this area. (6) The Chairman of Lahore Improvement Trust shall deter mine the prices of the sites allotted to Timber Merchants and shall also determine the terms and conditions of the payment thereof to the Lahore Improvement Trust and the method of recovery in case of default. (7) All Timber and bamboo shops shall be moved from Ravi Road, Rattan Chand Road and other places within the City of Lahore Corporation to the said Market as and when ordered by the Commissioner, Lahore Division, Lahore. (8) No provision of this Order shall be called to question in any Court including the High Court and the Supreme Court. No suit, prosecution or other legal proceeding shall lie against the Government, the Lahore Improvement Trust, or any member, officer or servant of the Government or any person in respect of anything done or intended to be done in good faith under this Order." Martial Law Order No. 118 was again promulgated by the Martial Law Administrator, Zone `B', on the 13th of April 1962, and was published in the Gazette Extraordinary of West Pakistan on the 17th of April 1962. It reads as follows: ‑ "Whereas it is expedient in the public interest to provide for measures to remove obstruction in traffic and to improve sanitation within the limits of the Lahore Municipal Corpora tion. Therefore, I, Lt.‑General Bakhtiar Rana, S. Q. A., M.C., A.D.C., Martial Law Administrator, Zone `B', hereby order as under: ‑ (a) The Commissioner, Lahore Division, may by an order, published in such manner as directed by him, notify such localities or areas within the limits of Lahore Municipal Corporation, as he may deem fit, as localities or areas within which it shall not be lawful to keep or possess without permit any cow or buffalo of any age. (b) No person shall keep or possess any cow or buffalo of any age in any locality or area notified under the preceding section, except on a permit issued by the Chief Officer, Lahore Municipal Corporation and on payment of such fees as specified by the Commissioner and under conditions specified in the permit. (c) Any animal kept or possessed in contravention of this Order shall be liable to be seized by any Police Officer not below the rank of an Assistant Sub‑Inspector or any Municipal Officer not below the rank of an Inspector, and to be forfeited to the State on orders of a Court or a Magistrate. (d) The Commissioner may acquire any land for the purpose of giving alternative accommodation for the dispossessed cattle. He may also determine the compensation and the manner of its payment. (e) Any person, who contrevene or attempts to contravene or abets the contravention of any order issued in pursuance of this Order shall be liable to be punished under C.M.L.A Regulation No. 16(a). (f) No provision of this Order or ‑any order issued under this shall be called in question in any Court including High Court and the Supreme Court. No suit or legal proceedings shall lie against any person or authority for anything, which is in good faith done or intended to be done in pursuance of this Order. (g) The Order shall come into force at once." It will be noticed from the above that Martial Law Order No. 111 made provision for the acquisition of properties of private persons, for ejectment of persons on such properties, for the establishment of a market, for the prohibition of the carrying on of certain trades within the limits of the Lahore Corporation, for the compulsory shifting of such trades to a market to be set up for the purpose and [even for taking away the jurisdiction of all Courts including this Court to question either the validity of the said Order or anything done thereunder. Similarly the other order also empowered the Commissioner to regulate the keeping of cows and buffaloes within the City of Lahore, to set up Zones where such cattle may be kept under a permit, to seize cattle kept in contravention of such regulations, to punish persons not obeying any directions given in that behalf and to acquire lands for providing alternative accommodation for `dispossessed' cattle. Finally this Order also sought to curtail the jurisdiction of all Courts including, this Court, An examination of the text of the Articles of the Laws (Continuance in Force) Order, 1958, referred to above, however, clearly lends support to the contention of the learned counsel appearing on behalf of the appellants. The words "Regulation" and "Order" (in which references to an `Order of the President' are not to be included) used in this supra‑constitutional document appear to have been used in different and distinct senses. Although both of them were intended to describe instruments of a lagislative kind as opposed to executive or judicial orders, nevertheless, "Regulations" were, in our view, meant to describe laws of a general nature made by the Martial Law Authorities, whilst "Orders" were to be equivalent to suborbinate legislative measures, such as rules and bye‑laws made to implement the provisions of a general law. This differentiation also appears to have been observed in the Martial Law Regulations made on 7‑10‑58 which were the first legislative measures of the Martial Law Authorities, for Regulation No. 1 set up Marital Law Zones, appointed Zonal Administrators and gave them the power to make "Orders" under those "Regulations." Thus under the scheme of the Martial Law itself there was to be not only an administrative hierarchy but also a legislative hierarchy. The Martial Law proclaimed chose a system of government which was not to be a negation of law but an orderly system following a pattern of its own selection not dissimilar to the pattern of civil administration prevailing in the country. The terminology adopted, therefore, to describe its legislative measures was not without significance. The interpretation we have given to the words "Regulations" and "Orders" is also in conformity with the view expressed by this Court in the case of Muhammad Ayub Khuhro v. Pakistan and others (1960) 9 PSCR 29= PLD 1960 SC(Pak.)

237. There too it was held that "the main legislative authority was kept by the Chief Martial Law Administrator with himself while the Administrators and other officers were to exercise a kind of delegated legislative authority. This Authority could, of course, extend to the making of Orders determining the manner in which the principle and policy of a Regulation was to be carried out and the penalties described therein enforced." It was upon this interpretation that it was further held that, notwith standing clause (ii) of Article 3 of the Laws (Continuance in Force) Order, 1958, where a Martial Law legislative measure is "issued as an Order and not as a Regulation, the intention could only be that it was not to affect the jurisdictions of the Courts which had been, subject to any Regulation by the Chief Martial Law Administrator, preserved by Article 2 of the Laws (Continuance in Force) Order." In that case this Court did not decide as to what would be the result if a Martial Law Order in fact purported to oust the jurisdiction of the Courts, because, it was not necessary to do so but it would seem to follow as a logical consequence of the view quoted above that in such an event the ouster would not be effective and would give no protection to the acts done under such an Order, even though the Order itself cannot be called in question. If, as observed in the majority judgment of this Court in the case of the State v. Dosso and another (1958) 2 P S C R 180=P L D 1958 S C (Pak.) 533, a successful revolution is an internationally recognised legal method of changing a Constitution and that the revolution itself constitutes a new law creating organ whose will thenceforward becomes the law, then did not the Laws (Continuance in Force) Order, 1958, which was the expressed will of the Revolution of October 1958, become thence forward the fundamental law of the country and an instrument of a constitutional nature for both the law‑giver as well as those who were to be governed in accordance with its terms ". This aspect of the question too did not come up for consideration in the case of the State v. Dosso and another, but the principles that have been enunciated in the majority judgment did amount to declaring that the late Constitution was being abrogated by another constitutional document which had by reference, more or less, re‑enacted most of its provisions and had, in effect, become for the time being a "new Constitution" for the country. If this be the true legal import of the Laws (Continuance in Force) Order, 1958, then are we not entitled to go one logical step forward and to hold that the Laws (Continuance in Force) Order was intended to be and was a Constitution given to the country by the victorious revolution and that it was a Constitution for all including the law‑giver, for, indeed had not the law‑giver itself proclaimed that it would govern the country in accordance with its provisions and that the Martial Law that would prevail there after would be no negation of law but an orderly Martial Law, which would govern in accordance with the prime law given by it? That the government contemplated under the Laws (Continuance in Force) Order did not extend only to the performance of executive functions but also comprised within it legislative and judicial functions has already been held by this Court in the case of Iftikhar‑ud‑Din and another v. Muhammad Sarfraz and another (1962) 1 P S C R 197=P L D 1961 S C (Pak.) 585 and we see no reason to depart from that view. Looking at the provisions of the Laws (Continuance in Force) Order, 1958, therefore, from this view point we find that clause (1) of Article 4 of the Order makes it clear that all laws prevailing in the country immediately before the Proclamation were to be continued in force until altered, repealed or amended by a com petent authority, subject to any Order of the President or Regula tion made by the Chief Administrator of Martial Law. Similarly clause (1) of Article 2 validates all those provisions of the late Constitution, which were not repugnant to any Order of the President or Regulation made by the Chief Administrator of Martial Law. If it was intended, therefore, to make any change in that existing law, then recourse should have been had to an Order made by the President or to a Regulation made by the Chief Administrator of Martial Law and not to a Martial Law Order made by a Zonal Administrator of Martial Law. In so far, therefore, as the Martial Law Orders Nos. 111 and 118 made provisions, which were in conflict with the provisions of the Punjab Town Improvement Act, the Land Acquisition Act, 1894, and the Municipal Administration Ordinance, 1960, they contravened the provisions of the said Article 4 of the last two the first was a Central Act and the second was an Ordinance which had been made by the President himself in pursuance of the Proclaimation of the 7th of October 1958. Again, in so far as they also purported to take away the jurisdiction of the High Court, and this Court, although such jurisdiction had been conferred upon the said Courts by the late Constitution and the same had been preserved by the will of the Martial Law as expressed in the Laws (Continuance in Force) Order, 1958, subject only to any Order of the President or Regulation of the Chief Administrator of Martial Law, could they be said to have effect in spite of those constitutional provisions? We think not. If the Laws (Continuance in Force) Order was designed both to prevent chaos and to establish an orderly govern ment with a legal sanction behind it, then it would be only logical to assume that to achieve this object it vested the power of alteration of existing laws in the supreme authority, namely, the President, and co‑equally in the Chief Administrator of Martial Law and in no one else. It' seems to us, therefore, that in promulgating these two Orders the Martial Law Administrator, Zone B', clearly acted beyond his competence to the extent of repugnancy to existing laws. The question, however, that next arises is as to whether this Court can question the validity of the said Martial Law Orders in the face of the provisions of Article 3 of the Laws (Continuance in Force) Order, 1958. At this stage when all Martial Law Regulations and Orders, except for a very few, have been repealed by the Constitution of 1962, the question is not of much importance, for, the Orders having ceased to exist there is no need to call them into question but what we are now concerned with is merely pronouncing upon the validity or propriety of actions initiated and now sought to be enforced in pursuance of those Martial Law Orders. So far as these are concerned, they were never protected by the Laws (Continuance in Force) Order and, therefore, their validity could, in appropriate cases, always be questioned, if that did not amount to questioning the Martial Law Order itself. The argument that Article 250 of the Constitu tion and Clause 3 of the Martial Law Orders (Repeal) Order, 1962 (President's Order No. 29 of 1962) have, notwithstanding the repeal of all Martial Law Orders, saved the previous operation of any Order or anything duly done or suffered thereunder and does not affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder, is also not of much assistance in the present case, for, it will be noticed that by Clause 3(1) (b) of this Order the only acts or liabilities that are saved are acts or liabilities which were "duly done or suffered thereunder." Therefore, if they were not duly done or suffered, the protection is not available. Furthermore, no liability or obligation was acquired, accrued or incurred in most of the present cases under the impugned Martial Law Orders, for, the directives now sought to be challenged were actually served upon the bamboo merchants after the Commencing Day and in the cases of the timber merchants the directives have not yet been put into effect, for, these appellants are still in their old premises and are carrying on business there. Reference was also made in this connection to the Martial) Law (Pending Proceedings and Protection) Order (President's Order No. 26 of 1962) which makes provisions for the disposal of pending cases, the execution and continuance of sentences imposed by a Martial law authority during the Martial Law period and to give protection to such authorities for anything done during that period. This Order has, in our view, no applica tion in the present case, for, all that is asked for here is that certain actions of an executive nature proposed to be taken should not be proceeded with as no liability or obligation had as yet accrued or been incurred which could be considered to have remained effective under Article 250 of the Constitution. In the case of the cattle‑owners the orders were served on 17‑4‑62 and, it is contended, were given effect to before the Commencing Day. The case against them thus stands on a somewhat different footing and will be dealt with later. The further argument advanced on behalf of the respondents in these appeals is that whatever might have been the legal effect of the above‑mentioned Martial Law Orders, since they have now been continued in force by the Governor's Ordinance XXI of 1962, the validity of the action now sought to be taken cannot be challenged. The West Pakistan Martial Law Orders (Continuance in Force) Ordinance, 1962, (Ordinance XXI of 1962) was published in the West Pakistan Gazette on the 25th of May, 1962. The provisions of this Ordinance relevant for the purposes of these appeals are in these terms: ‑ "No. Leg. 2(21)/62.‑The following Ordinance by the Governor of West Pakistan is hereby published for general information: Preamble.‑Whereas it is expedient to continue certain Martial Law Orders issued by the Martial Law Administrator, Zone B ; Now, therefore, in pursuance of the Presidential Proclama tion of the seventh day of October 1958, and in exercise of all powers enabling him in that behalf, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance :‑

1. Short title and commencement.‑(1) This Ordinance may be called the West Pakistan Martial Law Orders (Continuance in Force) Ordinance, 1962. (2) It shall come into force on the expiry of Martial Law Orders Nos. 111, 112, 118, 119 and 121 issued by the Martial Law Administrator, Zone B (hereinafter referred to as the said Martial Law Orders).

2. Continuance of certain Martial Law Orders.‑The said Martial Law Orders shall, subject to the provisions of this Ordinance, be continued and be deemed to have been enacted in this Ordinance.

3. Amendment of certain Martial Law orders.‑Following amendments shall be deemed to have beers made in the said Martial Law Orders, namely ;‑ (i) In Martial Law Order No. 111, following new clause shall be added:‑-- 7‑A. Any person who contravenes or attempts to contravene or abets the contravention of this Order or any direction issued by the Commissioner, Lahore Division, under clause 7 shall be punishable with imprisonment which may extend to three years or with fine which map extend to five thousand rupees or with both.' (ii) . . . . . . . . . . . . (iii) In Martial Law Order No. 118 for clause (e) the following new clause shall be substituted: ‑ (e) Any person who contravenes or attempts to contravene or abets the contravention of any order issued in pursuance of this Order shall be punishable with imprisonment which may extend to three years or with fine which may extend to five thousand rupees or with both.' (iv) .... ....... (v) " In the High Court an endeavour was made to show that this Ordinance was not an existing law since it came into operation on the expiry of the Martial Law Orders therein referred to and the said Martial Law Orders stood repealed by the President's Order No. 29 of 1962 "immediately before the Commencing Day as defined in Article 242 of the Constitution of the Republic of Pakistan". Thus it is argued that there was no period of time left between the Commencing Day and the repeal of the said Martial Law Orders during which the Ordinance could have come into operation. Furthermore, that if the Ordinance was not an existing law, it could neither make any provision which was repugnant to the provisions of the Constitution itself, namely, it could not keep alive the Martial Law Orders, which had been repealed by Article 225 (3) of the Constitution, nor could it have been made otherwise than in accordance with Article 79 of the Constitution. Its validity was also challenged in the High Court on the ground that it had been made mala fide and offended against the fifth and sixth principles of law‑making embodied in the Constitution. The High Court took the view that the Ordinance came into force simultaneously with the repeal of the Martial Law Orders. Therefore, it came into force immediately before the Commencing Day and was, as such, an existing law. The arguments as to its repugnancy with the Constitution or non‑conformity with the provisions of Article 79 were held to be of no effect, since Article 225 itself saved all existing laws, and so far as the violation of the provisions of law‑making were concerned, that was a matter which, under Article 6 of the Constitution, could not be called into question, for the determination of the question as to whether a law did or did not disregard or violate any of the said principles was the responsibility of the Legislature itself. We too are not impressed by the argument that the Ordinance was not an existing law. An existing law has been defined under Article 225, Sub‑A ale (7) as a law in force in Pakistan immedi ately before the Commencing Day. Now for a law to be in force it does not necessarily mean that it must also be in actual operation. The operation of the law is something different from the legal existence of the law itself. A law being the expression of the will of the Legislature comes into existence as soon as it is enacted by a competent Legislature after complying with the formalities prescribed for such enactment, even though it may be that its own terms postpone its operation until some future date or give it retrospective operation. Instances are not wanting in which a law competently made has provided that it shall come into operation on the happening of a future event or upon the determination of some other statutory officer, but in such a case can it be said that the law did not come into force until that event happened or that statutory officer notified the date? To hold so might lead to absurd results, for, then an Ordinance made by the Governor today without complying with the provisions of Article 79 could, it might be urged, be a valid Ordinance, if it was made to come into operation with retrospective effect on some date anterior to the Commencing Date of the Constitution, on the basis that it became existing law under the Constitution. This E could not, of course, be done, for, the competency of a law would have to be determined with reference to the constitutional pro visions prevailing on the day it is made or brought into being. In our view, therefore, for this limited purpose the law comes into) force on the date that it is validly enacted and the expression "law in force" has been used in this sense in defining an exist in law as distinct from its operation. That such a distinction exists between the coming into force of a law and its actual operation was also pointed out by this Court in the case of the Province of East Pakistan v. Md. Mehdi Ali Khan and others (1958) 2 P S 'C RA ‑‑P L D 1959 S C (Pak.)

387. Munir C. J. observed in this case "that) a law may be in force though it is not operative." Similarly, Cornelius, J. (as he then was) said "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." From this point of view the West Pakistan Ordinance XXI of 1962 was an existing law in so far as it had been promulgated on the 25th of May 1962, long before the Commencing Day, although it was to come into operation immediately on the repeal of the Martial Law Orders. It is, therefore, also unnecessary to go into the question as to the constitutionality of this Ordinance in the light of the provisions of the Constitution of the Republic of Pakistan, for, if it was an existing law, its constitutionality could not be tested in that manner. A further and a more substantial, attack upon the vires of the Ordinance has, however, been made in this Court for the first time, It is this that even assuming that the Ordinance was an existing law, it was not a law which had been competently brought into being under the constitutional provisions prevailing on the 25th May 1962, and, therefore, no law at all. It is pointed out to us that the Ordinance making powers of the Governor were such as were given to him by Article 5 of the Laws (Continuance in Force) Order. Clause (1) of this Article provides as follows: ‑ "5.‑(1) The Powers of a Governor shall be those which he would have had 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 Ordinances 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." Under Article 193 of the late Constitution the powers of the Provincial Legislature were to be exercisable by, and under the authority of, the Parliament itself but it was competent for Parliament to confer this legislative power on the President. After the proclamation of Martial Law, however, clause (1) of Article 5 of the Laws (Continuance in Force) Order gave to the Governor the power of making Ordinances in the same manner and within such limitations as were prescribed in clauses (1) and (3) of Article 102 and Article 106 of the late Constitution Under clause (1) of Article 102 the Governor had the power of making Ordinances subject to the same restrictions as applied to the Provincial Legislature itself in making laws; provided that the Governor could not, without the previous instructions of the President, promulgate any Ordinance if an Act of the Provincial Legislature containing similar provisions would have been invalid unless it had received the assent of the President. Under Article 106 of the late Constitution in respect of a matter in the Concurrent List both Parliament and the Provincial Legislature had power to make laws, but under Article 110 it was provided that in the event of repugnancy between a Provincial law and an existing law or an Act of Parliament in respect of a matter on the Concurrent List, the Act of the Provincial Legislature was to prevail, if the bill of the Provincial Legislature had been reserved for the consideration of the President and had received his assent. Thus it would appear that under Article 5 of the Laws (Continuance in Force) Order a Governor could promulgate an Ordinance containing provisions repugnant to an existing law or an Act of Parliament in respect of a matter on the Concurrent List if the Ordinance had been made under the previous instruc tions of the President or had received the subsequent assent of the President. Now the Legislative Powers Order, 1959 being President's Order No. 2 of 1959, as amended by the President's Order No. 17 of 1959, completely abolished the Provincial List in the Fifth Schedule of the late Constitution and transferred all the subjects mentioned therein to the Concurrent List. After this amendment the Governor's Ordinance making power became restricted as indicated above, i.e., he could validly make Ordi nances repugnant to an existing law or a Central enactment either under the previous instructions of the President or if the Ordi nance had actually received the subsequent assent of the President, after being reserved for his consideration. In the present case West Pakistan Ordinance XXI of 1962 neither appears on its face to have been made under the previous instructions of the President nor to have received his subsequent assent after being Lah reserved for his consideration nor have the learned counsel appearing on behalf of the respondents in these matters placed before us anything to show that either such instruction or such Ha assent was ever received in respect of this Ordinance. It is difficult, therefore, to appreciate how this Ordinance which, as indicated earlier, is not only repugnant to the provisions of several existing laws but also of an Ordinance made by the President himself, can be said to have been competently or validly made even under the Laws (Continuance in Force) Order. The method adopted of bodily incorporating into this Ordinance even the preambles of the Martial Law Orders has rendered its language so inartistic and inapt that the learned Advocate‑General found it difficult to satisfactorily explain the inclusion of such irrelevant matters in the Ordinance. Be that as it may, we could perhaps have excised all the redundant and irrelevant recitals therefrom if we had found the Ordinance to have been properly made in the valid exercise of the Governor's power. But as we have come to a different conclusion with regard to its validity we do not wish to say anything further on this aspect. It may, however, be pertinent at this stage to also point out that there is nothing in the Constitution of 1962 which prevents this Court from examining the question as to whether a law is bad on the around of repugnancy with a Central Law. Neither Article 6 nor Article 7 of the Constitution takes away the powers of the Court in this behalf. Clause (2) of Article 6 only debars the Court from examining the validity of a law on the ground that the law disregards or violates or is otherwise not in accordance with the principles of law‑making. Similarly Article 7 prevents the validity of a law from being called in question on the ground that it is not in accordance with the principles of policy laid down in the Constitution. There is no other bar in the Constitution, which could operate to prevent this Court from pronouncing upon the validity of a law on this ground. Indeed Article 134 itself provides that when a Provincial Law is inconsis tent with a Central Law the former shall to the extent of the repugnancy be invalid. It needs also to be pointed out that the Ordinance XXI of 1962, if it intended, as held by the High Court, to re‑enact by reference the provisions of the Martial Law Orders Nos. 111 and 118, then it too entrenched upon occupied fields of legislation in the Concurrent List and sought to make provisions which were repugnant to several existing laws, such as the Land Acquisition Act, the Town Improvement Act and finally the Municipal Administration Ordinance of 1960 which was promulgated by the President himself. We have been taken through the provisions of the Municipal Administration Ordinance, 1960, which empowers a Municipal Committee under section 122 thereof to make bye‑laws for the purpose of regulating offensive and dangerous trades. For this purpose Rules, called the West Pakistan Municipal Committees Dangerous and Offensive Trade Rules, 1960, have also been framed and under these Rules the business of storing or selling timber has been declared to be a dangerous and offensive trade. The Municipal Committee has also powers to provide that certain trades shall not be carried on except in terms of a licence issued in that behalf. So far as milk supply is concerned, it appears that the Government may by Rules made under the said Ordinance of 1960 provide for the establishment and regulation of milkmen's colonies and the Municipal Committee may regulate the grant and withdrawal of licences for premises for the sale or exposure for sale of milk, the manufacture of butter, ghee or other milk pro ducts and for the keeping of milch cattle or a dairy by bye‑laws made in that behalf. Thus the regulation of trade, the establish ment of milkmen's colonies and the prevention of nuisances on streets and highways can all be done by the Municipal Committees concerned under the existing laws. Similar provisions were also contained in the Lahore Corporation Act, which was repealed by the Ordinance of 1960. In the result, therefore, since we have come to the view that existing laws could not be changed or altered save in the manner indicated by the Laws (Continuance in Force) Order, we hold that in so far as the Martial Law Orders Nos. 111 and 118 purported to make provisions which were repugnant to the existing laws, they were of no effect, for, the existing laws prevailed, notwith standing those Martial Law Orders. The said Martial Law Orders could also, for the same reason, give no valid authority to either the Commissioner or the Improvement Trust or the Lahore Corporation to pass orders inconsistent with the provisions of those existing laws or in a manner, which was not provided for therein. Similarly with regard to Ordinance XXI of 1962 we have come to the conclusion that the same not having been promulgated in the manner indicated in Article 5 of the Laws (Continuance in Force) Order, was riot competently promulgated r and could not, as such, encroach upon a field of legislation which was already occupied by the existing laws in respect of subjects which were certainly from the time of the President's Order No. 17 of 1959 in the Concurrent List. Reverting now to the case of the cattle‑owners, it will be recalled that the order directing them to remove their cattle outside the limits of the Lahore Corporation was served upon them on the 17th of April, 1962, and, it was contended, was given effect to before the Commencing Day. This, however, does not appear to be correct, for, even in this Court they obtained an interim order suspending the operation of the impugned orders. But even if it were so given effect to, it is not immune from attack either under Article 3 of the Laws (Continuance in Force) Order to under President's Order No. 29 of 1962. The former gave immunity only to legislative `Orders' and the latter protected only things duly done or suffered. If, as we have already held, Martial Law Order No. 118 was not of any legal effect and gave no valid authority to the Commissioner to issue the directions complained of, then the action taken in pursuance of such an invalid direction was not action duly taken within the meaning of President's Order No. 29 of 1962 and no immunity can be claimed in respect M thereof. Apart from this, it has been contended before us that even if Martial Law Order No. 118 had been competently made and lawfully continued in force, it did not give the Commissioner any power to issue the directions sought to be challenged before us. This argument appears to us to be of substance, for, the said Order, in our view, did no more than seek to set up by clauses (a) and (b) thereof Zones within the limits of the Lahore Municipal Corporation in which it would not be lawful to keep or possess without permits issued on payment of fees cattle of the kinds described in the Order. Clause (c) provided for the "seizure" and "forfeiture" of cattle kept or possessed in contravention of the above provisions and it was for the purpose of giving alterna tive accommodation" only to such "dispossessed cattle" that the Commissioner could acquire lands under clause (d). It was thus more in the nature of a provision for regulating the keeping of I cattle under a permit within prescribed Zones. These provisions did not, in our view, entitle the Commissioner to prohibit altoge ther the keeping of cattle by any person who sold milk as a means of livelihood. The interpretation sought to be given by the Commissioner to the Order No. 118 appears thus to us to be wholly misconceived both upon its language and upon its plainly expressed intent. It neither contemplated the whole‑sale displace ment of cattle nor the total prohibition of keeping of cows or buffaloes nor did it empower the Commissioner to discriminate against any particular class or section of cattle‑owners. It had like other soning regulations of this nature to be applied in a reasonable and an equitable manner so as not to cause any undue hardship to anyone. In so far, therefore, as the Commissioner directed the removal of all milch cattle outside the Corporation limits and ordained that permits will not be issued to persons keeping such cattle for commercial purposes, he clearly acted in excess of the power given to him by the said Order No.

118. Upon this ground too his order cannot be upheld and must be set aside. No other point has been pressed before us. The result, therefore, is that for the reasons we have given above these ap peals must be allowed and directions in the nature of mandamus must issue to the Commissioner, Lahore Division, to withdraw and/or cancel the orders impugned in the present cases and to refrain from giving effect to them or taking any action in pursu ance thereof. In the special circumstances of this case, however, we make no order as to costs. KAIKAUS, J.‑‑I am in agreement with my learned brother Hamoodur Rahman except in regard to one particular, i.e., the meaning of the word "force" when used in relation to an enact ment. According to Article 225 of the Constitution an existing law is one that is "in force" before the "Commencing Day". My learned brother has held that the Governor's Ordinance, which was to come into force on the expiry of the Martial Law Orders was an existing law because a law should be regarded as having come into force not on the day on which it comes into operation but on the day on which it is enacted. I am of the opinion that a law comes into force only when it takes effect or comes into operation. I proceed to state my reasons. The settled rule of interpretation with respect to the meaning of words and phrases is that they are to be interpreted in their ordinary sense. When a person wants to express an idea he finds out how that idea is already being expressed. That is the only proper method of conveying to others what you have in your mind. Conversely if we have to determine what a person means when he uses particular words we find out the sense in which those words are already being used. It is not necessary to support the rule as to ordinary meaning of words with elaborate arguments. The rule is too well recognized. Failure to adopt this rule would lead to chaos. Let us then try to discover the ordinary meaning of "force" or "in force" in relation to enactments. The process is not at all difficult. Take up any enactment. It will almost invariably give you the date on which it came into force. Obviously here this coming into force means coming into operation. The very Ordinance in dipute uses these words. Incidentally, I may point out while the Ordinance itself says it shall come into force on the expiry of the Martial Law Orders according to the view adopted by my learned brother it was in force from the day of its enactment. When a statute has been enacted but is to be in operation from a future date if some person says it is not yet in force can he be accused of having used an incorrect or inappropriate expression? In the General Clauses Act the expression "in force" is used in sections 12, 22, 24 and 25 and in each one of them it is used in the sense of being in operation or effect. Law dictionaries too will support this interpretation. In Aiyar's Law Lexicon for instance, it is stated that "in force" means "in effect." Having found the sense in which "force" is being used let us now ask ourselves another question. Have the words "in force" ever been used before in the sense of "having been enacted." No example was cited during argument and I believe none can be cited of the use of the word "force" or the words "in force" as referring to mere enactment. Of course some person may assert with respect to some other provision relating to existing laws that in that provision the intention was to use it in the sense of enact ment, but that will be just an argument which can always be put forward and not an instance of the clear use of the word in that sense. No dictionary whether a law lexicon or a general dictionary will support the contention that the word "force" was ever used with respect to mere enactment. But let us have a look at the very Constitution with which we are dealing. We are now interpreting Article 225 of the Constitution according to which an existing law means a law in force in Pakistan, immediately before the Commencing Day. The Article that precedes Article 225 is

224. I reproduce below relevant portions of these two Articles: ‑ 224 (1.) Subject to clause (2) of this Article, this Constitution shall come into force on the day on which the first meeting of the National Assembly is held. (2) This Constitution shall, to the extent necessary ‑ (a) to enable the first general elections of members of the National Assembly and of each Provincial Assembly to be conducted and for the first meeting of the National Assembly to be held ; and (b) to enable any other thing to be done which, for the purposes of this Constitution, it is necessary to do before the Commencing Day, come into force upon the enactment of this Constitution ; 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. (7) In this Article, "existing laws" means 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. According to Article 224 the Constitution was to come into force on the day on which the first meeting of the National Assembly was held except with respect to matters specified in clause (2). With respect to matters specified in clause (2) the Constitution was to come into force on the day on which it was enacted. The Constitution was enacted on the first day of March 1962, as will appear from the preamble. Here is a clear example of what is meant by "in force". It surely does not by itself mean enactment though it can be provided that it will come into force on the very day on which it was enacted just as any other date can be fixed for its commencement. Now the question to be asked is this: did the draftsmen of the Constitution knowing well that the ordinary meaning of the words "in force" is as has been stated above, that there is no instance of its use in any other sense, that Article 224 the Article that precedes Article 225 uses these words in their ordinary sense, except us in spite of all this to understand that this phrase was being used in Article 225 in a wholly new, peculiar and unprecedented sense? I do nit think this question admits of more than one answer. The Legislature is by presumption an ideal person and knows very well the sense in which words are used by others and by itself. It was conscious in this case that in the very preceding Article it had used the word "force" as referring to operation or effect. If the intention of the Legislature was that every statute, which had been "enacted" was to be an existing law why could it not say so? Why should it use language, which it knew conveyed a different meaning? Our function is to find out what the Legislature has said. We cannot import into laws our own conception of what is an `existing' law. It is not correct for us to say that in our opinion when a law has been enacted it exists. The Legislature has said that existing law means that which was "in force". The Legislature means what it says. If it does not say something it does not mean that thing. Being an ideal person it knows well what to say and what not to say. My learned brother has said that if we accept the words "in force" as meaning "in operation" the result would be an absurdity. This absurdity is said to arise in case retrospective effect is given to an enactment, because, (it is argued), if an enactment comes into force on the day of its operation, when it is given retrospective effect it will have to be said that it came into operation on a day much prior to the day on which it was enacted. Let me explain that I am using the words "in force" in the sense in which they are used in any enactment and so interpreted they will not give rise to any difficulty. An enact -ment comes into force not on the day from which it takes retrospective effect but on the date on which it begins producing retrospective effect. If a statute is enacted on the 1st of January 1960, and it is provided that it comes into force on the 10th of January 1960, but that retrospective effect will be given to it from the 10th of January 1959, surely the enactment does not come into force on the 10th of January 1959. When we say that a statute has retrospective effect from a particular date we only mean that it affects rights, liabilities, etc., from that date. It does not mean that it comes into force on that date. In the example cited above the enactment was not in force even on the 9th 'January, 1960. It came into force only on the 10th of January 1960, although it affected rights as from the 10th of January,1959. The words "in force" are to be understood in the same sense in which they are used in the enactment itself, which says it shall come into force on the 10th of January 1960. According to Article 225 existing law was one, which was in force immediately before the Commencing Day. The Ordinance in dispute was not at any time in force before the Commencing Day because the Martial Law Orders expired simultaneously with coming into force of the Constitution. , If the, Constitution came into force 'on the ' 7th of June 1962, then in order that a law may be in force before the Commencing Day it had to be in force in some part of the 6th of June. That should be clear. It is admitted that the Ordinance was not in operation in any part of the 6th of June. I would hold, therefore, that the Ordinance was not an existing law within the meaning of Article

225. A.H. Appeal accepted.