P L D 1959 (W (PLP)

(b) (c) that for the purposes of this Ordinance, an order made or deemed to be made under the Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946), and not rescinded prior to the commencement of this Ordinance shall be deemed to be an' order in force, immediately before such commencement, notwithstanding that such order, or parts of it, may not then be in operation either at all or in particular areas." In view of the aforesaid provisions, the Essential Commodities Distribution Order, 1953, dated the 14th of December 1953, referred to above, and consequently the Controller‑General's Order dated the 18th of July 1953, fixing the maximum price of the "Telegraph Brand Cigarettes" would be in force on the 19th of September 1956.

5. The learned Magistrate acquitted the respondent adopting the reasons given by him in State v. Nizam Din which he had decided on the 30th of December 1955. It would be advantageous to reproduce the relevant passage from his judgment in "State v. Nizam Din" :‑ "On 7‑11‑1955 the learned counsel for the defence raised a legal objection to the effect that the Essential Supplies (Continuance of Temporary Powers) Ordinance, 1955 (7‑10‑55), was no longer a valid law and as such the accused could not be prosecuted thereunder. He argued that the said Ordinance was promulgated by His Excellency the Governor‑General under the powers vested in him by section 42 (1) of the Government of India Act, 1935, as adapted by the Pakistan (Provisional Constitution) Order, 1947. Section 42 (3) of the said Act lays down that any such Ordinance which is pro mulgated under the said section after the Thirty First December, Nineteen Hundred and Forty Nine, shall be laid before the Federal Legislature and shall cease to operate at the expiration of six weeks from the re‑assembly of the Legislature or if before the expiration of that period a resolution disapproving it, is passed by the Legislative, upon the passing of that resolution. On 1st October 1955, the Constituent Assembly of Pakistan passed the Validation of Laws Act, 1953 (P L D Vol. VII of 1955, page 289). This Act is a piece of legislation which means that it was passed by the Constituent Assembly not in its capacity as Constituent Assembly but in its capacity as Federal Legislature. As such the Essential Supplies (Con tinuance of Temporary Powers) Ordinance, 1955, which came into force on the 31st March 1955, should have been placed before the Federal Legislature at its assembly during which the Validation of Laws Act was passed. That it is still an Ordinance and not an Act shows that it was not placed before the Federal Legislature at the said assembly. As such the said Ordinance ceased to be in f6rce six weeks after the said assembly in accordance with the provisions of section 42 (3) of the Government of India Act, 1935, as adapted by the Pakistan (Provisional Constitution) Order, 1947. And it is simple law that the provisions of a statute must prevail over , those of an Ordinance." The learned Magistrate did not specifically refer to the Acts which the Legislature had re‑validated in its capacity as Federal Legislature. The learned counsel for the respondent, however, relied before us on the Validation of Laws Act, 1955, and the Constituent Assembly (Officer) Act, 1955, which, according to him were passed by the Legislature in its capacity as Federal Legislature. A careful examination of the Schedule to the Validation of Laws Act, 1955, would show that all the Acts re‑validated related to constitutional matters. It could not have been otherwise. The necessity for passing the "Validation of Laws Act" arose after the decision of the Federal Court in Tamiz‑ud‑Din Khan's case (P L D 1955 F C 240) which held that the Acts passed by the Constituent Assembly needed the assent of the Governor-General. Prig to this decision, the Acts of the Constituent Assembly had never been submitted to the Governor‑General for his assent.

6. The Constituent Assembly (Officers) Act, 1955, is also a constitutional enactment as it provided for the selection of the Speaker and Deputy Speaker and for their functions. Further, section 4 of this Act amended section 22 of the Government of India Act. There can be no doubt that this Act was passed by the Legislature in its constituent Assembly and not as Federal Legislature.

7. The learned counsel for the respondent next urged that the present Act i.e., India (Central Government and Legislature) Act, 1946, merely authorised the Central Legislature to make laws relating to Provincial subjects. The Governor‑Genera could not promulgate Ordinance relating to Provincial subjects under section 42 of the Government of India Act, and, therefore. the Essential Supplies (Temporary Powers) Ordinance (X of 1955), which contained provisions relating to Provincial matters was ultra vires of the Governor‑General. The argument lacks force as section 42 provides :‑ "42. (1) The Governor‑General may, in cases of emergency, make and promulgate Ordinance for the peace and good government of Pakistan or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the Federal Legislature, but the power of making ordinance under this section is subject to the like restrictions as the power of the Federal Legislature to make laws, and any ordinance made under this section, may be controlled or superseded by any such Act. (2) The pre‑amble to Ordinance X of 1955 reads :‑‑ "Whereas an emergency has arisen which renders it necessary to provide for the continuance of powers to control the pro duction, treatment, keeping, storage, movement, transport, supply, distribution, disposal, acquisition, use or consumption of, and trade and commerce in, certain commodities. And whereas a Proclamation of Emergency has been issued for the purposes of section 102 of the Government of India Act, 1935, as amended by the India (Proclamation of Emergency) Act, 1946, and it appears to the Governor‑General that the provisions hereinafter made are proper provisions in view of the nature of the emergency." Section 102 of the Government of India Act reads :‑ "Notwithstanding anything in the preceding sections of this Chapter, the Federal Legislature shall if the Governor‑General has declared by Proclamation that a grave emergency exists whereby the security or economic life of Pakistan or any part thereof is threatened by war or internal disturbance or circum stances arising out of any mass movement of population from or into Pakistan, have power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List, or to make laws, whether or not for a Province or any part thereof, with respect to any matter not, enumerated in any of the Lists in the Seventh Schedule to this Act or to make laws, notwithstanding anything in any other provision of this Act, relating to the custody, management and disposal of the property of any person con cerned in any mass movement as aforesaid." The fact that a state of emergency did exist was not challenged before us. The Governor‑General had, therefore, the power to promulgate the Ordinance in question under section 42 of the Government of India Act; 1935, as adapted. The powers of the Governor-General under section 42 are co‑extensive with the powers B of, the Legislature under section .102. This conclusion is supported by In re. Karumuthu Thiagarayan Chettiar (A I R 1947 Mad, 325), where a Division Bench of the Madras High Court held :‑ "The power of the Governor‑General to make Ordinances under section 72 of Schedule 9, Government of India Act, in respect of matters included in the Provincial Legislative List is co‑extensive with the powers of the Indian Legislature and not greater." Section 42 of the Government of India Act, as adapted, corresponds to section 72 of Schedule IX of the Government of India Act, 1935, and, therefore, the ratio decidendi of the case cited above holds good in the present case.

8. It was further argued that the Federal Legislature met for the Budget Session on the 15th of March 1956, and therefore, the Ordinance (X of 1955) automatically lapsed on the 26th of April 1956, i.e., six weeks from the commencement of the session, by reason of section 42 of the Government of India Act. This argument overlooks the specific provisions of Article 224 of the Constitution of the Islamic Republic of Pakistan which reads :‑ "224. (1) Notwithstanding the repeal of the enactments mentioned in Article 221, and save as is otherwise expressly provided in the Constitution, all laws (other than those enactments), including Ordinances, Orders‑in‑Council, orders, rules, bye‑laws, regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Constitution Day, shall, so far as applicable and with the necessary adaptations, continue until altered, repealed or amended by the appropriate legislature or other competent authority. (2) (3) Jibendra Kishore Achharyya Chowhdury v. The Province of East Pakistan etc. (P L D 1957 S C (Pak.) 9) supports this view. Ordinance X of 1955 was, therefore, kept alive by the Constitution until repealed.

9. Ordinance IV of 1956 which was promulgated on the 25th of April 1956, and purported to repeal Ordinance X of 1955, was itself an invalid piece of legislation inasmuch as it contravened the provisions of Article 69 of the Constitution as the Parliament was in session. Realising the error, a new Ordinance (V of 1956) was promulgated on the 10th of May 1956, which repealed not only Ordinance IV of 1956, but also Ordinance X of 1955. Ordinance IV of 1956, being an invalid piece of legislation Ordinance X of 1 955 continued to be in force. The repealing Ordinance (V of 1956) was itself to expire in terms of Article 69 of the Constitution on the 19th of November 1956. Two days before its expiry, Ordinance XXI of 1956 was promulgated which is unconstitutional as it defeats the provisions of Article 69 of the Constitution by extending the life of Ordinance V of 1956. Tamiz‑ud‑Din v. Province of East Bengal (1) supports this view. There the Governor had pro mulgated an Ordinance under section 88 of the Government of India Act. That section like Article 69 provided that an Ordinance shall be laid before the Legislature and shall cease to operate et the expiration of six weeks from the next meeting of the Legislature or if a resolution disapproving it is passed by the Assembly upon the passing of that resolution. It was held that a further Ordinance extending the life of the previous Ordinance beyond that period was barred by section

88. Ordinance V lapsed on 19th November 1957. In form Ordinance XXI is a fresh Ordinance, but in substance Ordinance XXI 'by repeating the contents of Ordinance V extended the life of Ordinance V, a process prohibited by Article

69. Ordinance XXI was therefore, void. Protanto therefore Ordinance X of 1955 stands unrepealed.

10. Act III of 1957 was promulgated on the 8th of March 1957. This Act contains no express repealing or saving clause but even if it be assumed that Act III of 1957 repealed Ordinance X of 1955 by implication section 24 of the General Clauses Act provides that when a Central Act (which includes Ordinances) is repealed and re‑enacted with or without modifica tion then unless it is otherwise expressly provided, every appoint ment, notification, order, scheme or rule form or bye‑law made or issued under the repealed Act shall so far as it is not inconsistent with the provisions re‑enacted continue in force and be deemed to have been made or issued under the provisions so re‑enacted. Similarly S. 6 of the same Act provides that liabilities etc. contracted under the repealed Act are unaffected by the repeal unless a different intention appears.

11. For the reasons stated above, we hold that the Ordinance in question was in force on the relevant date and the Magistrate was wrong in acquitting the respondent. I

12. The learned Magistrate has not considered the merits of the case. We, therefore, remand the case for consideration on the merits. As a result of our finding, the appeal is accepted and the order of acquittal set aside. K. B. A. / A. H. Case remanded. (1) P D 1949 Dacca 1