P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑On the 21st of June 1961, Group Captain Masroor Hussain of the Pakistan Air Force, Officer Commanding Pakistan Air Force Station, Sargodha Cantonment, issued an order against Mst. Sattan, her three daughters Mst. Fatima, Mst. Jawai and Mst. Rosho and Mst. Rani, wife of Sardar Khan, under section 237 of the Cantonments Act, 1924 (Act 11 of 1924) and directed them to leave the area of Sargodha Cantonment within two days and not to enter the Cantonment Area without the permission in writing of the Officer Commanding of the Station of Sargodha Cantonment. The order purported to have been passed for safeguarding the health and welfare of the troops and other residents of the Cantonment area. In the first week of October, 1961 the five women mentioned above presented this writ petition with a view to having the above mentioned order under section 237 of the Cantonments Act declared void and inoperative and impleaded the officer who had passed the order as the sole respondent. It was pleaded in the petition that the order whereby the petitioners had been directed to leave the Sargodha Cantonment area amounted to a finding that they were prostitutes, and as the order was entirely un justified it merited being vacated. Group Captain Masroor Hussain put in his written statement in which it was pleaded that a writ could not or at least should not issue because a suit instituted by the petitioners to obtain the relief which they claim by this writ petition was pending. On merits, it was pleaded that it was after making an inquiry that the respondent had come to the conclusion that the five petitioners were prostitutes and it was for that reason necessary that they should not live within the area of the Cantonment, because their residence near a place where troops were posted was likely to have very injurious affects on the troops.

2. Before taking up other matters, I would dispose of the objection that the writ petition should not be entertained because the petitioners had instituted a suit to get the same relief as was claimed in the writ petition and it was not the practice of this Court to exercise its extraordinary jurisdiction of issuing a writ about a matter which was the subject of a suit. It is necessary to mention here what happened in the suit. The suit which was for a declaration that the order issued by the respondent under section 237 of the Cantonments Act was bad‑in‑law, and for an injunction against the enforcement of that order, was instituted in the Court of the Senior Civil Judge, Sargodha, on the 28th of June 1961. An interim injunction was issued to the respondent not to enforce his order passed under section 237 of the Cantonments Act, and he was given an opportunity to show cause why the interim injunction should not continue till the termination of the suit. The interim injunction was withdrawn on the 8th of September 1961 after the case set up against the injunction had been considered by the learned Civil Judge. The petitioners filed an appeal against the order of the Senior Civil Judge refusing to issue an injunction during the pendency of the suit, but the appeal was dismissed on the 18th of October 1961. It Is obvious that if no injunction is issued, the petitioners would perhaps suffer irreparable loss In reputation and possibly in property as well and it was, relying on this probability of loss in reputation and property, that Mr. S. M. Anwar, Advocate, who appeared for the petitioners, contended that the writ jurisdiction of this Court should be exercised notwithstanding the fact that a suit to obtain substantially the same relief as was claimed in the writ petition had been instituted by the petitioners before presenting their writ petition and was still pending. Mr. M. Anwar, the learned Advocate‑General for West Pakistan, who appeared for the respondent, contended that as the petitioners had chosen earlier to seek the ordinary remedy of filing a suit to have the order of the respondent vacated, this Court could not, or at least should not, act in the exercise of it extraordinary jurisdiction to issue a writ.

3. It cannot be denied that ordinarily a writ will not issue where another remedy is open to the petitioner, and it is obvious that if the person who applies for issue of a writ has already moved in the ordinary forum for getting the relief in the normal manner, a writ would not ordinarily issue. I am, however, clear in my mind that the rule enunciated above is not inviolable. The power to issue a writ vesting in this Court is not circumscribed by any conditions and consequently it is for this Court to determine whether or not that power should be exercised in any particular case before ft. If one considers the circumstances of the present case, it becomes manifest that if the order of the respondent if it be against law Is not vacated at the earliest possible opportunity, the petitioners would suffer in reputation and possibly in property. In these circumstances, I am of the view that notwithstanding that the petitioners have already instituted a suit to get substantially the same relief as they are claiming by means of this writ petition, the institution of the suit by them should not stand in the way of the issue of a writ if, after considering the matter, this Court come to the conclusion that one should issue. There is also another aspect of the matter, which cannot be lost sight of. During the trial of the suit, the learned trial Judge will have to decide whether or not the order passed by the respondent could be supported by the relevant law, and I can see no harm In this Court giving an authoritative finding on that question especially as the learned counsel for the petitioners prays that it should be given, because if the decision on the question of law raised goes against them, the petitioners would naturally withdraw the suit which they have instituted.

4. Having held that if the conclusion arrived at in this writ petition be that the petitioners were entitled to relief, a writ could issue notwithstanding the fact that a suit instituted by the petitioners was pending at the time when the writ petition was presented, I proceed to consider whether or not the impugned order of the respondent could be supported in law. As already mentioned, the order was passed under section 237 of the Cantonments Act (II of 1924) in exercise of the powers vesting in the respondent as Officer Commanding the Station of Sargodha Cantonment. The section is in the following terms: ‑ "If the Officer Commanding the station is, after such inquiry as he thinks necessary, satisfied that any person residing in or frequenting the Cantonment Is a prostitute or has been convicted of an offence under section 236, or of the abetment of such an offence, he may cause to be served on such person an order in writing requiring such person to remove from the Cantonment within such time as may be specified in the order, and prohibiting such person from re‑entering it without the permission in writing of the Officer Commanding the station." Learned counsel for the petitioners urged that the respondent had not given the petitioners an opportunity to show cause why the impugned order should not be passed though, according to the learned counsel, this was imperative as the section contemplated an inquiry and thereby enjoined that the petitioners had to be given an opportunity to show cause against the action proposed to be taken against them. In this connection, he invoked the principles of natural justice and wanted to support his contention in this regard by reliance on a decision of the Supreme Court of Pakistan in Faridsons Ltd. v. Government of Pakistan (P L D 1961 S C 537), in which it was held that though a statute or a rule may not say in so many words that a person against whom an order can be passed under that statute or rule has to be heard before the order is passed, an opportunity to show cause against the order intended to be passed against him must be given to him, because if that were not done, the principle of natural justice to the effect that no one should be condemned unheard, would be violated. Reliance was also placed by Mr. S. M. Anwar, learned counsel for the petitioners, on the following decisions: ‑ (1) M. Abdul Majid v. The West Pakistan Province and two others P L D 1956 Lah. 615. (2) Abbott Y. Sullivan and others (1952)1 K B 189. (3) Aelbo v. Bull (1952) 2 T L R 388. (4) The King v. G. Gaskin (1799) 8 T L R 209 =101 E R 1349. (5) Cooper v. The Board of Works for the Wandsworth District (1862‑63) 135 The Revised Reports 643.

5. In view of the decision given by their Lordships of the Supreme Court that it is a principle of natural justice that before a person is condemned, he should be heard, I will proceed on the assumption that It is no longer open to any Court in Pakistan to say that this is not so, though it could perhaps be urged that when clause (3) of Art. 2 of the Laws (Continuance in Force) Order, 1958, and its predecessors names Article 163 by the Late Constitution talked about the "Law declared by the Supreme Court", reference was to mundane Law and not to the principles of natural justice. The question arises, however, whether the principles of natural justice are to be enforced even where the law made by a human law‑maker who has the authority to make that law, makes it clear that the giving of an opportunity to show cause against the issue of the order to the person who was likely to be affected by it, was not necessary. It is clear that difference between the principles of natural justice and the law of the land will exist in the following circumstances: ‑ (1) Where the law of the land says nothing, one way or the other, with regard to the person against whom an order can be passed being given an opportunity to show cause against the order. (2) Where the law of the land gives an authority competent to pass an order against any person the power to pass that order without giving the person likely to be affected by it, an opportunity to show cause against it.

6. It appears to me that there is a fundamental difference between the above‑mentioned two cases. In the first case, the law of the land does not come in conflict with the principles of g natural justice, whereas in the second case it would appear clearly to come in conflict with those principles. It is a well -established principle of law that a valid law made by a human law‑maker is to be enforced by Courts notwithstanding the fact that the Courts do not agree either with its purpose or its policy, and if this were not the rule, laws made by human law‑makers would not be able to avoid chaos, doing which should be their first and primary object. If Courts could pass orders which they felt would be just in the circumstances of the case, the law would be very uncertain, because it is undeniable that different persons would have different views about what in any given circumstances would be a just order. A sage has rightly said that human beings are slaves of law in order that they may be free, and this is so because the laws made by human law‑makers aim at determining the rights and liabilities of persons who are governed by those laws and do not leave the determination of rights and liabilities to the choice and whim of persons who have authority to adjudicate upon those rights and liabilities. Judges who are appointed by a State cannot by the very nature of their office abandon the law they have been appointed to administer in favour of any other law, however just that other law may appear to them to be.

7. As far as my knowledge goes, the principle of natural justice on which reliance is placed on behalf of the petitioners was invoked in Pakistan for the first time in 1952 by the Federal Court of Pakistan which was at that time the Court of ultimate jurisdiction for this country. I am alluding to the judgment of the Federal Court of Pakistan in the case of Ali and another v. The Crown (P L D 1952 F C 71). I am further inclined to think that this principle of natural justice was not examined or acted upon by any Court in British India which country was divided into Pakistan and India in the middle of August 1947. But it cannot be inferred from this long non‑reliance on this principle of natural justice that it was for the first time in 1952 that the principle was sought to be enforced by Courts because the principle was acted upon much earlier in Courts in England as some of the cases on which learned counsel for the petitioners placed reliance would show. However, I am of the view that it can be in those cases only in which the law of the land under which an order is passed does not say either in so many words or by implication that a person who would be affected by an order need not be heard before that order is passed, that the principle of natural justice which is said to be that no one should be condemned unheard can be invoked. It is a well‑settled principle of the interpretation of judicial decisions that a decision is meant primarily for being applied to' the facts on the consideration of which it was given. In Faridsons Ltd. v. Government of Pakistan, the rules which their Lordships had to consider did not say in so many words that it was not necessary to give a person likely to be affected by the order an opportunity to show cause against it, nor could it be inferred from the language used in those rules that they implied that an opportunity to show cause need not be given. It follows, therefore, that the decision of their Lordships of the Supreme Court in Faridsons' case would be binding on all other Courts in Pakistan only in those cases in which the law of the land did not come in conflict with the principle that a person should not be condemned without being heard which principle is believed to be of celestial origin.

8. I have said in paragraph 4 that learned counsel for the petitioners relied on some decisions of British Courts which have been detailed in that paragraph. The only decision in which it appears to have been held that in spite of the fact that a legislative measure gave a local authority power to demolish a building if it had been constructed without the permission required by the statute, no building could be demolished without giving the person who set it up an opportunity to show cause that he had not contravened any law or rule is Cooper v. The Board of Works for the Wandsworth District ((1862‑63) 135 Revised Reports 643). I have not the advantage of having before me section 76 of the Metropolis Local Manage ment Act, 18 & 19 Viet. Chapter 120 which was interpreted in Cooper v. The Board of Works for the Wandsworth District, but it would appear that the section contained no provision that the person a building set up by whom was to be demolished was to be given an opportunity to show cause against the action. If that section was in those terms, it is clear that in spite of the letter of the law of the land being contrary to the principle of natural justice, which is said to be that no one should be condemned unheard, the latter was enforced in preference to the former. It is undeniable that the decisions of Courts in England have no more but persuasive value for Courts in any other part of the world, and the rule was precisely the same even when the sovereign of England used to be a sovereign of what used to be British India which territory was, in the middle of August 1947, divided into Pakistan and India. It appears to me that the learned Judges of the Court in England who gave the decision under consideration had the power to read into a statute words that did not exist in it but I am clear in my mind that the Courts in Pakistan have no such power. The law that is enforced in England is not only statute law but also an un written law which is known as "The Common Law". I am inclined to think that the 76th section of the statute that was considered In Cooper v. The Board of Works for the Wandsworth District, came in conflict with the Common Law of England, and as two laws in force in England which could be said to be dealing with the same subject did not agree with each other, the Courts could follow one in preference to the other. That the Common Law of England had been drawn upon the judgment of the Court in Coopers' case is clear from the following words which occur in the judgment of Byles J. at page 651 of (1862‑63) 135 The Revised Reports: ‑ "I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punish ment as well as the remedy. That being so, a long course of decisions, beginning with Dr. Bentley's case, and ending with some very recent cases, establish, that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the commission of the legislature." In Pakistan, however, this situation cannot arise because it has no law resembling the Common Law of England, and except where custom is the rule of decision, the law that has application is codified. If a law is valid, that Is to say, if it was passed by an authority competent to pass it, and relates to a subject regarding which that authority was competent to make laws, that law is binding on those to whom it has been made applicable by the law‑maker as well as on Courts which have to enforce it. I have no doubt in my mind that the powers which the Common Law of England gives to the Courts of that country cannot be claimed by Courts in Pakistan even though the statute that has to be interpreted may have been made at a time when the Common Law of England would have been applicable to the British, who were the law‑makers, if they happened to be in their own country. If the Supreme Court of Pakistan had laid down in Faridsons Ltd. v. Government of Pakistan, that the Common Law of England was applicable to Pakistan, the decisions of English Courts on which reliance was placed on behalf of the petitioners would have had to be treated as decisions of Courts in Pakistan, but neither in Faridsons' case nor, as I am aware, in any other case have their Lordships of the Supreme Court or the Federal Court of Pakistan held that the Common Law of England is applicable in Pakistan as it is in England. As regards the decision of this Court in M. Abdul Majid v. The West Pakistan Province and two others (P L D 1956 Lah. 615), I am of the view that as it is founded mostly on the Common Law of England, which law I have shown is not applicable to this country, the decision is not of universal application though it could, perhaps, be supported on the wording used in the statute It dealt with. A reference may have been made to a decision of the Judicial Committee of the Privy Council of England in Patterson v. District Commissioner of Accra (1948 A C 341), wherein It was held that if a power could be exercised by an authority after inquiry, if necessary, the authority was competent to pass an order against a person without affording him an opportunity to show cause against the order. It is for the reasons detailed above that I have arrived at the conclusion that the principle that no human being should be condemned unheard which is stated to be a principle of natural justice can be invoked only if the law of the land has not either directly or impliedly said that the principle was not applicable.

9. I will now take up the consideration of section 237 of the Cantonments Act (II of 1924) under which the impugned order was passed, to determine whether it gave an Officer Commanding a station authority to declare a woman to be a prostitute without giving her an opportunity to show that she was not one. It will be noticed that the inquiry which section 237 mentions is an inquiry which the officer competent to pass the order considers necessary. The language employed in the section would show that the inquiry mentioned therein need only be such as is considered sufficient by the person who can pass the order. If the section had mentioned that the order should be passed after an inquiry and had not in any manner defined the scope of the inquiry, the principles of natural justice on which learned counsel for the petitioners relied, could, perhaps, have been invoked by him, but as section 237 of the Cantonments Act which is a part of the Law of the land makes it clear that affording opportunity to the woman, who was to be turned out of the limits of a Cantonment on the ground that she was a prostitute, to show cause against the action was not necessary for passing the order, and it had been left to the discretion of the Officer authorized to pass the order to afford that opportunity or not, I fail to see on what ground a Court in Pakistan can validly hold that the order of the respondent is invalid, for the reason that the women who were directed to get out of the boundaries of the Cantonment on the ground that they were prostitutes, had not been given an opportunity to show cause against the order which was intended to be.

10. It is difficult to urge that while enacting section 237, the legislature had by an oversight omitted the mention of an opportunity to the person against whom an order was to be passed to show cause against the order and I have arrived at this conclusion for two reasons. The first is that unless the contrary is shown clearly the Courts should proceed on the assumption that the legislature had fully expressed its intention. The second reason flows from the fact that at least three of the six sections of Chapter XIV of the Cantonments Act (II of 1924) in which chapter section 237 occurs, make it incumbent that an inquiry be held before an order authorised by those sections is passed, I am alluding here to sections 235, 238 and

239. Section 238 concerns itself with the proceedings of a Magistrate not acting as a Court, while the other two sections concern themselves with orders that can be passed by an Officer Commanding a Station. It follows, therefore, that the legis lature did not intend that an Officer Commanding a station was bound to give the women concerned an opportunity to show cause against her being turned out of the precincts of a Canton ment on the ground that she was a prostitute. It is possible that the legislature was of the view that an Officer Commanding a station should have untramelled powers to pass orders against women suspected of prostitution as expeditiously as possible, because it was believed that a woman of easy virtue could do incalculable damage so far as the troops were concerned, but even if that was not the reason for the making an opportunity to show cause against the order unnecessary, there is no escape from the finding that, as worded, section 237 of the Cantonments Act does not contemplate that the inquiry mentioned therein must necessarily consist of an opportunity to the person against whom the order was to be passed to show cause against the order proposed to be made.

11. In view of what I have said above, I have arrived at the conclusion that the impugned order cannot be set aside on the ground that it offends against principles of natural justice. The result is that I would dismiss the petition but would, in the circumstances of the case, pass no order as to costs. ANAWARUL HAQ, J.‑I agree that the petition be dismissed. K. E. A. Petition dismissed.