P L D 1956 (W (PLP)

" Quashing the convictions recorded against them by the High Court of Bahawalpur on the 31st of August 1955, or, in the alternative, for special leave to appeal to the Judicial Committee of His Highness the Amir of Bahawalpur ". The petitioners were tried for offences under sections 218 and 220 read with sections 109 and 114 of the P. P. C., but were acquitted by the trial Court. An appeal against the order of acquittal was lodged on 9th January 1954 in the Bahawalpur High Court which being accepted on the 31st of August 1955, the petitioners were convicted of the offences they were originally charged with, and each of them was sentenced to a fine of Rs.

500. The present petition was instituted in the Bahawalpur High Court on the 5th of October 1955, but as it could not be heard by that Court, it has come up for hearing before me as a judge of the High Court of West Pakistan. The ground on which the conviction of the petitioners by 'the Bahawalpur High Court is attacked is that the acquittal appeal which was accepted by the Bahawalpur High Court was presented by the Government Advocate of the Bahawalpur State who not being a Public Prosecutor within the meaning of section 417 of the Code of Criminal Procedure was not competent to file the appeal. If the contention about the status of the Advocate who presented the appeal to the High Court is correct, there can be no manner of doubt that in view of the recent decision of the Federal Court of Pakistan on this point, reported in Kadir Bux v. The Crown (P L D 1955 F C 79), the conviction will be wrong. When I told Ch. Farzand Ali, who argued the case for the petitioners with linguistic ability and thoroughness, that the Judicial Committee of His Highness the Amir of Bahawal pur has ceased to function because the territory comprising the Bahawalpur State has now been merged in the Province of West Pakistan, he raised the contention that the Establish ment of West Pakistan Act, 1955, was not valid law and at any rate could not apply to Bahawalpur State. The first attack on the Establishment of West Pakistan Act, 1955, passed, by the Constituent Assembly of Pakistan on the 3rd of October 1955 and amended by the Establishment of West Pakistan (Amendment) Act, 1955, was that the Governor‑General's Order XII of 1955, dated the 28th of May 1955, which set up the Constituent Assembly, was issued by an officer who was not competent to issue it and, therefore, the actions of the Constituent Assembly had no binding force. It was argued that as at the time when the above Order was issued by him, Mr. Ghulam Muhammad, the then Governor‑General of Pakistan, was not in Pakistan, he was not competent to issue the order. It was pointed out that Mr. Ghulam Muhammad left Pakistan for Europe on the 20th of May 1955 and returned to Pakistan on the 16th of July 1955 and at the relevant time was at a place beyond the boundaries of Pakistan. The contention was that when Mr. Ghulam Muhammad left for Europe on the 20th of May 1955 he ceased to have the powers of the Governor‑General as soon as he crossed the borders of Pakistan and it became incumbent on Her Majesty the Queen to appoint an Acting Governor‑General. In this connection reliance was placed on section 5 of the Indian Independence Act, 1947, and section 304 of the Government of India Act, 1935, as adapted for Pakistan. The sections relied upon read as follows: ‑ 5. " The Governor‑General of the new Dominions.‑For each of the new Dominions, there shall be a Governor- General who shall be appointed by His Majesty and shall represent His Majesty for the purposes of the Government of the Dominion. Provided that, unless and until provision to the contrary is made by a law of the Legislature of either of the new Dominions, the same person may be Governor‑General of both the new Dominions ". 304. " Any. person appointed by His Majesty to act as Governor‑General or as the Governor of a Province during the absence of the Governor‑General or the Governor from Pakistan, or during any period during which the Governor‑General or the Governor is for any reason unable to perform the duties of his office, shall during, and in respect of, the period while he is so acting have all the powers and immunities, and be subject to all the duties of, the Governor‑General or Governor, as the case may. be, and, if he holds any other office, shall not act therein or be entitled to the salary and allowances apper taining thereto while he is acting as Governor‑General or Governor ". The learned counsel for the petitioners urged that these two sections meant that if the Governor‑General of Pakistan appointed by the British Sovereign under section 3 of the Government of India Act left the boundaries of Pakistan, it was incumbent that an acting Governor‑General be appointed. No doubt section 5 of the Indian Independence Act, 1947, enacts that the Governor‑General of Pakistan appointed by the British Sovereign is to represent that Sovereign for the purposes of the Government of the Dominion of Pakistan, but nowhere in that section is it said that as soon as the Governor‑General crosses the borders of Pakistan he ceases to be the Governor‑General or becomes divested of his powers. As regards section 304 of the Government of India Act, 1935, I am of the opinion that its object is to make it clear that a person appointed to act as the Governor‑General of Pakistan or Governor of a Province was, during the period that he held the acting appointment. to have all powers, enjoy all immunities, receive the salary and the other privileges and be subject to all the duties of the Governor‑General of the Governor as the case may be. It is true that the section mentions that when an acting appointment is made due to the office of the Governor‑General or a Governor of a Province on account of the absence of the Governor‑General or a Governor from Pakistan or on account of those officers being for any reason unable to perform the duties of their offices, but it cannot be inferred from this that the Government of India Act, 1935, as in force in Pakistan makes it incumbent that when the Governor‑General or a Governor is absent from Pakistan someone must be appointed to act in his place. The Government of India Act, 1935, as enacted by the British Parliament, contained no provision regarding the circumstances under which an Acting Governor‑General is to be appointed nor have the adaptations made in that Act under section 9 of the Indian Independence Act, 1947, or amend ments made in it by Acts passed by the Constituent Assembly of Pakistan mentioned these circumstances. However, the Government of India Act replaced by the Act of 1935 contains elaborate and precise provisions on ‑ the subject. Section 86 of the Government of India Act, 1919, provided for grant of leave to the Governor‑General and some other high officials and section 87 of that Act made provisions about the appointment of an Acting Governor‑General if the Governor‑General took leave. By its 317th section the Government of India Act, 1935, continued in force some provisions of the Act repealed by it as its own Ninth Schedule and sections 86 and 87 of the Act of 1919 were contained in that Schedule. This Schedule was omitted from the Govern ment of India Act, 1935, by the Pakistan (Provisional Constitution) Order, 1947, issued on the 14th of August 1947 under section 9 of the Independence Act, 1947, with the result that as from the 14th day of August 1947 no provision exists in any enactment with regard to the circumstances under which the Governor‑General is to be granted leave. It may', however, be presumed that a person is to be appointed to act as Governor‑General only if the Governor‑General is on leave be the reason for his taking leave the fact that he has gone out of Pakistan or that for some cause he cannot perform the duties of his office. The question whether or not the Governor‑General should take leave when he goes out of Pakistan or is for some reason unable to perform his duties is for him or the authority appointing him to decide. If the Governor‑General is not on leave no one can be appointed to act in his place and the Governor‑General cannot be held to have been divested of his powers, even if it were proved that he should have taken or been granted leave on the grounds mentioned in section 304 of the Government of India Act, 1935. It is not denied that Mr. Ghulam Muhammad was ‑not on leave when he went to Europe on the 20th of May 1955 and I have no hesitation in holding that as he continued to be the Governor‑General and could exercise all the powers of the Governor‑General he was fully competent to issue G. G. O. XII of 1955. It was next urged by the learned counsel for the petitioners that because of section 8 of the Government of Bahawalpur (Interim Constitution) Act, 1952, passed by His Highness the Amir of Bahawalpur and published as Notifica tion No. 12‑L.D., dated 2nd of March 1952 the Establishment of West Pakistan Act, 1955, could have no application to the Bahawalpur State. The section relied upon reads as under: ‑ Section 8.‑(1) "The State shall be a federated State of Pakistan in accordance with the provisions of section 6 of the Constitution Act". (2) "The Constitution of Pakistan which may be framed by the Constituent Assembly of Pakistan shall be the Constitution for the State as for the other part of Pakistan and shall be enforced by the Ruler for the time being, in accordance with the tenor of its provisions, and the pro visions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which may be in force in the State at that time". On the 1st of March 1952, His Highness the Amir of Bahawalpur executed a document called the Supplementary Instrument of Bahawalpur State which was accepted by His Excellency the Governor‑General of Pakistan on the 11th of April 1952. The first two of the three sub‑clauses of the first clause of this Instrument are in the following terms: ‑ 1. " Novi therefore, I, Sadiq Muhammad Abbasi, Ameer of the State or Bahawalpur, declare that: ‑ (i) I shall exercise my power and authority over my State in accordance with the provisions of the Interim Constitution; (ii) the Constitution of Pakistan as framed by the Constituent Assembly of Pakistan, which includes the duly appointed representative of this State, shall be the Constitu tion for the State of Bahawalpur as for the other parts of Pakistan and shall be enforced as such by me, my heirs and successors in accordance with the tenor of its pro visions ; and that the provisions of the said Constitution shall, as from the date of its commencement in my State, supersede and abrogate all other constitutional provisions inconsistent therewith which may be in force in this State immediately before that commencement ". The argument of Ch. Farzand Ali was that under sub section (2) of section 8 of the Government of Bahawalpur (Interim Constitution) Act, 1952, and sub‑clause (ii) of clause 1 of the Supplementary Instruments of Bahawalpur State only that enactment passed by the Constituent Assembly of Pakistan which framed the Constitution for the whole of Pakistan could be enforced in the Bahawalpur State and as the Establishment of West Pakistan Act, 1955, did not make the Constitution for the whole of Pakistan it could not result in the merger of the Bahawalpur State in the West Pakistan Province. I cannot bring myself to accept this contention. If the words relied upon had occurred in a statute applicable to Pakistan or a document executed in Pakistan no one could have doubted that they were applicable even if a constitutional measure were enacted about a part of Pakistan. If, for example, the N.W.F.P., the Punjab and Sind had been merged in one Province, it could not have been doubted that the enactment under which the merger took place dealt with Constitution of Pakistan, and I can think of no reason why the Establish ment of West Pakistan Act, 1955, should lose its status as a measure dealing with, the Constitution of Pakistan by reason of the fact that it provides for the merger of they Bahawalpur State in addition to that of the three Province named above. It is not without significance that the objection to the merger is not taken by His Highness the Amir of Bahawalpur who, as one who bestowed the Interim Con stitution on his subjects and executed the Supplementary Instrument of Bahawalpur State, knows what he meant by the expression " Constitution of Pakistan " occurring in those documents' but by his erstwhile subjects. After giving the matter my best consideration, I have arrived at the conclusion that the Establishment of West Pakistan Act, 1955, was applicable to territories which before the 14th of October 1955 formed the Bahawalpur State and the State having merged into the West Pakistan Province since the 14th of October 1955 no appeal against an order of the Bahawalpur High Court lies to the judicial Committee of His Highness the Amir of Bahawalpur after that date. I will now address myself to the determination of the question whether or not the sentence passed by the Bahawalpur High Court could be set aside by the West Pakistan High Court. It is obvious that this High Court possesses no power to hear appeals against an order passed by the Bahawalpur High Court and, therefore, this Court could not exercise any appellate jurisdiction against that order. By virtue of subsection (5) of section 7 of the Establishment .of West Pakistan Act, 1955, any order made by any of the High Courts replaced by the High Court of West Pakistan‑and the High Court of Bahawalpur was one of those replaced High Courts‑is to be deemed to be an order passed by the High Court of West Pakistan, and it is clear, therefore, that the order of the Bahawalpur High Court, dated the 31st of August 1955, could be amended or varied by this High Court only if an order of that type passed by this High Court could be. The learned counsel for the petitioners urged that as the order of the Bahawalpur High Court was manifestly wrong in law as was clear from the decision of the Federal Court of Pakistan in Kadir Bux v. The Crown. (P L D 1955 F C 79) the interests of justice required that that order should be set aside and, therefore, section 561‑A of the Code of Criminal Procedure had appli cation. In my view this argument has no force. Section 369 of the Code of Criminal Procedure enacts that, save as otherwise provided by that Code or Letters Patent of a High Court, a judgment of a Court in a criminal matter could not be altered or reviewed by that Court except to correct a clerical error. A judgment of one or more than one judge of a High Court is a judgment of that Court and once delivered can be altered by that High Court only if an appeal competent under section 411‑A of the Code of Criminal Procedure is presented. The order which the petitioners seek reversal o not having been passed in the exercise of the original criminal jurisdiction of the Bahawalpur High Court, no appeal could lie against that order under section 411‑A of the Code of Criminal Procedure and review of that order is not allowed in appeal or otherwise by any clause of the Letters Patent governing this High Court. The provisions contained in section 369 of the Code of Criminal Procedure being that a judgment once passed cannot be reviewed, the petitioners cannot have resort to section 561‑A of the Code of Criminal Procedure. Sec tion 561‑A deals with inherent powers of this Court, and I have no hesitation in holding that this Court has no" power to pass an order in the purported exercise of its inherent powers if some provision of law bars it from passing such an order. None of the contentions raised by the learned counsel for the petitioners having succeed, the petition is hereby dismissed. The learned counsel for the petitioners prayed at the conclusion of his address that in the event of his arguments not being accepted, I should grant him a certificate under section 205 of the Government of India Act, 1935, for appeal to the Federal Court I have considered the matter, but as no substantial question of the interpretation of any of the Acts or Orders detailed in that section arises, I refuse to grant the certificate, but, if so advised, the petitioners may apply to the Federal Court of Pakistan for special leave to appeal. A. H. Petitions dismissed.