P L D 1959 (W (PLP)

KAIKAUS, J.

‑This judgment will dispose of the Writ Petitions Nos. 509 of 1958 and 1140 of 1957, the main point involved in which is common.

2. The facts in Writ Petition No. 509 of 1958 are that the petitioners Syed Muhammad Waris Shah, who is a landowner, declared his stocks, in accordance with a direction given by the Licensing Authority under section 7 of the West Pakistan Food grains (Licensing Control) Order, 1957, on the 11th of June 1957, as 8,500 maunds of wheat. There was, at the same time, a direction to him to sell the stock as soon as possible to an approved dealer. According to the petitioner's case he sold 3,100 maunds of wheat to the Khokhar Commission Shop, which was an approved arhti in July or August 1957. He, at the same time, entered into an agreement for sale of his stocks to the same commission shop on the 4th of September, 1957. In accordance with this agreement 4000 maunds were to be sold and the weighing was to take place from 11th September to the 18th September 1957. On the 13th September 1957, there was a raid and 3970 maunds were taken away under the orders of, the District Magistrate or the Commissioner. The stocks were forfeited and the petitioner was paid only Rs. 5 per maund.

3. The case of the respondent, i.e., the Province of West Pakistan, is that in June 1957 the petitioner had been directed by the Licensing Authority by virtue of its powers under section 7 of the West Pakistan Foodgrains (Licensing and Control) Order, 1957, to sell his stocks as soon as possible to a pacca arhti, that in spite of repeated directions he failed to do so, that a few days before the raid, which took place on the 13th of September 1957, he had been approached by an officer of the Food Depart ment to hand over stocks but he had avoided doing so and that the stocks were seized on the 13th of September 1957 because he had failed to act in obedience to the directions given to him. The alleged agreement of 4th of September 1957 with the Khokhar Commission Shop is denied.

4. The petitioner attacked the seizure of his stocks on the ground that there had been no violation of any order of the Licensing Authority and that he was doing his best to carry out the directions given. He, at the same time, attacked the order on the ground that Ordinance I of 1957 under which the West Pakistan Foodgrains (Licensing and Control) Order was promulgated was either from its very inception void or was no longer in force on the date on which the seizure was trade, i.e., the 13th of September 1957. We propose to consider only the legal objection to the validity of the Order for in the view that we take it is not necessary to go into the question whether the orders were in fact disobeyed.

5. In Writ Petition No. 1140 of 1957 there are five peti tioners, one of them being an association. They allege that they were licensees under the West Pakistan Foodgrains (Licensing Control) Order, 1956, but their licenses expired on the 13th of May 1956 and they want to continue the business of sale and purchase of commodities but they are being prevented from doing so by the following Orders which were made under Ordinance I of 1957, which Ordinance was promulgated by the President of Pakistan in exercise of the powers which became vested in him by a Proclamation under Article 193 of the Constitution. (i) West Pakistan Wheat (Movement Control) Order, 1957, dated 15‑4‑1957, (ii) West Pakistan Mandi (Control and Procurement) Order, 1957, dated 15‑4‑1957, (iii) West Pakistan Foodgrains (Licensing Control) Order, 1957, dated 15‑4‑1957, (iv) West Pakistan Wheat (Price Control) Order, 1957, dated 15‑4‑1957. It is contended that for reasons, to which a reference will presently be made, all these Orders are void and the petitioners are entitled to carry on their business unhampered by the provisions of these Orders.

6. We proceed now to consider the grounds of attack on the validity of Ordinance I of 1957 under which the Orders referred to in both these writ petitions had been promulgated. On the 21st of March 1957, the President issued a Pro clamation under Article 193 of the late Constitution by which he assumed to himself powers of the Government as well as of the Governor of West Pakistan. It will be con venient to reproduce here Article 193 as well as the Proclamation, because a reference will have to be made in detail to the contents of both. "193‑(1). If the President, on receipt of a report from the Governor of a Province, is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitu tion, the President may by Proclamation‑ (a) assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the Powers vested in, or exercisable by, any body or authority in the Province, other than the Provincial Legislature ; (b) declare that the powers of the Provincial Legislature shall be exercisable by, or under the authority of, Parliament ; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authority in the Province: Provided that nothing in this Article shall authorise the President to assume to himself, or direct the Governor of the Province to assume on his behalf, any of the powers vested in or exercisable by, a High Court or to suspend either in whole or in part the operation of any provisions of the Constitution, relating to High Courts. "(2). A proclamation under this Article (not being a Proclama tion revoking a previous Proclamation) shall be laid before the National Assembly, and shall cease to operate at the exp;ration of two months, unless before the expiration of that period it has been approved by a resolution of the National Assembly, arid may by a like resolution be extended for a further period not exceeding four months ; but no such Proclamation shall in any case remain in force for more than six months ; Provided that if any such Proclamation (not being a Pro clamation revoking a previous Proclamation) is issued at a time when the National Assembly stands dissolved, or if the dissolution of the National Assembly takes place during the period of two months referred to in this clause, the Pro clamation shall cease to operate at the expiry of thirty days from the date on which the National Assembly first meets after its re‑constitution, unless before the expiration of the said period of thirty days, a resolution approving the Procla mation has been passed by that Assembly. "(3). Where by a Proclamation issued under this Article it has been declared that the powers of the Provincial Legislature shall be exercisable by or under the authority of Parliament, I shall be competent‑ (a) to Parliament to confer on the President the power of the Provincial Legislature to make laws; (b) to Parliament, or the President, when he is empowered under sub‑clause (a) to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Federation, or officers and authorities thereof ; (c) to the President when the National Assembly is not in session, to authorise expenditure from the Provincial Con solidated Fund, whether the expenditure is charged by the Constitution upon that Fund or not, pending the sanction of such expenditure by Parliament ; (d) to the National Assembly resolution to sanction expen diture authorised by the President under sub‑clause (c). (4). Any law made in exercise of the power of the Provincial Legislature by Parliament or the President, which Parliament or the President would not, but for the issue of a Proclamation under this Article have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation under this Article has ceased to operate, except as to things done or omitted to be done before the expiration of the said period". Proclamation : "Whereas the President, having received a report from the Governor of the Province of West Pakistan, is satisfied that a situation has arisen in which the Government of that Province cannot be carried on in accordance with the provisions of the Constitution of Pakistan ; Now, therefore, in exercise of the powers conferred by Article 193 of the Constitution and of all other powers enabling him in that behalf the President is pleased‑ (a) to assume to himself as President of Pakistan all functions of the Government of the said Province and all powers vested in or exercisable by the Governor of that Province ; (b) to declare that the powers of the Legislature of the, said Province shall be exercisable by or under the authority of Parliament ; and (c) to make the following incidental and consequential provisions which appear to him to be necessary or desirable for giving effect to the objects of this Proclamation, namely,-- (i) in the exercise of the functions and powers assumed to himself by virtue of clause (a) of this Proclamation, it shall be lawful extent as he thinks fit through the Governor of the said Province (ii) the operation of the following provision of the Con stitution in relation to that Province is hereby suspended, namely,

Articles 71, 75, 76, Clauses (1) and (2) of Article 77, Clauses (2) and (3) of Article 78, Articles 80, 81, 82, 83 except so far as it relates to the power to dissolve, 84, 85, 86, 88, 90, 91, 92, 93, 95, so much of Article 124 and of Clause (1) of Article 190 as relates to the Provincial Assembly, Clause (3) of Article 226, Clause (1) of Article 230 so far as it may be construed as requiring any statement to be laid before the Provincial Assembly or forbidding the raising of any taxes without the Act of a Provincial Legislature authorising them, and paragraphs 9 and the table thereunder except so far as relates to the Speaker and Deputy Speaker, 10, 11, 12 and so far as relates to any right or power of the Provincial Assembly or the Provincial Legislature, 13 of the Fourth Schedule ; (iii) while this Proclamation is in force, it shall, notwith standing anything in any rule or law relating to elections, be unnecessary for an election to be held for the purpose of filling any casual vacancy in the Legislative Assembly of the Province; (iv) any reference in the Constitution to the Governor shall in relation to the said Province be construed as a reference to the President, and any reference therein to the Legislature or Legislative Assembly of the Province shall, in so far as it relates to the functions and powers thereof, be construed as a reference to Parliament, and in particular, the reference in Article 102 to the Governor and to the Legislature or Legislative Assembly of the Province shall be construed as reference to the President and to Parliament respectively ; Provided that nothing herein shall affect the provisions of Article 70 and paragraph 1 of the fourth Schedule and the Table thereunder so far as relates to the Governor or prevent the President from acting under sub‑clause (1) of this clause to such extent as he thinks fit through the Governor of the said Province ; (i) any reference in the Constitution to Acts or laws of, or made by, the Legislature of the Province shall be construed as including a reference to Acts or laws made, in exercise of the powers of the Legislature of the Province, by Parliament by virtue of this Proclamation or by the President in virtue of a power conferred by Parliament under sub‑clause (a) of clause (3) of Article 193 of the Constitution ; and any Act of the like kind as the General Clauses Act, 1897 (X of 1897), which is in force in the Province, and so much of the General Clauses Act, 1897 (X of 1897), as applies to Provincial laws, shall have effect in relation to any such Acts or laws as if they were Acts of the Legislature of the Province." On the 29th of March 1957, there was an amendment to this Proclamation which reads "Whereas the President is satisfied that for the greater convenience of administration certain changes are necessary in the Proclamation made by him on the 21st March 1957 in exercise of the powers conferred by Article 193 of the Constitution ; Now therefore in exercise of the powers conferred by that Article and of all other powers enabling him in that behalf the President is pleased to direct that the following modifica tions shall be made in the Proclamation aforesaid:

1. For clause (a) of the Proclamation substitute the following :‑ "(a) to direct the Governor of the Province of West Pakistan to assume on behalf of the President all the functions of the Government of the said Province; (2) Sub‑clause (i) of clause (c) of the Proclamation be omitted.

3. The following be substituted as sub‑clause (i) for the existing sub‑clause (ii), namely :‑ "(i) The operation of the following provisions of the Constitution in relation to the said Province is hereby suspended, namely:‑ Articles 71, 75, 76, clauses (1) and (2) of Article 77, clause (3) of Article 78, Articles 80, 81, 83 except so far as it relates to the power to dissolve Articles 84, 85, 86, 88,'91, 92, 93, 96, 98, 99 only in respect of the reference to the grants made by the Provincial Assembly, Article 101, so much of Article 124 and of clause (1) of Article 190 as relates to the Provincial Assembly, clause (2) of Article 225, clause (3) of Article 226, clause (1) of Article 230 so far as it may be construed as requiring any statement or demand to be laid before or passed by the Provincial Assembly, paragraph 9 and the Table there under except so far as it relates to the Speaker and the Deputy Speaker and paragraphs 10, 11, 12 and, so far as relates to any right or power of the Provincial Assembly or the Provincial Legislature, 13 of the Fourth Schedule."

4. Sub‑clause (iii) of clause (c) of the Proclamation be renumbered as sub‑clause (ii).

5. The following be substituted as sub‑clause (iii) for the existing sub‑clause (iv), namely,‑ (iii) Any reference in the Constitution except in clause (4) of Article 230, to the Legislature or the Legislative Assembly or the Provincial Assembly of the said Province shall, in so far as it relates to the functions and powers thereof, be construed as a reference to Parliament and, notwithstanding anything hereinbefore contained, the references in Article 102 to the Governor of the said Province shall be construed as references to the President.

6. Sub‑clause (v) of clause (c) of the Proclamation be renumbered as sub‑clause (iv)." It will be observed that in accordance with the amended Pro clamation the word "Governor" in Article 102 had been substi tuted by the word "President", with the result that the ordinance making power of the Governor vested in the President. On the 6th of April 1954, the President promulgated the West Pakistan Foodstuffs (Control) Ordinance I of 1957. On the 15th of April 1957, the Governor of West Pakistan, acting by virtue of the powers granted to him by section 3 of this Ordinance promulgated all the orders mentioned above (which include the West Pakistan Foodgrains (Licensing and Control) Order, 1957, under which Syed Muhammad Waris Shah, the petitioner in Writ Petition No. 409 of 1958, was proceeded against). The validity of the Ordinance and the orders issued thereunder is challenged on the following grounds:‑ (1) Under Article 193 it was not open to a President to assume to himself the ordinance‑making power of the Governor at all. (2) Even if he had validly assumed this power on the 21st of March 1957, he had restored this power to the Governor on the 29th of March 1957 when the amended Proclamation was issued and, in any case, this power could not be acquired by a notification under Article 193 (c), i.e., by a conse quential or incidental order, and, after 29th March 1957, the only notification which could support this order was one under Article 193 (c) ; (3) Under Article 102 an Ordinance promulgated by the Governor has to be placed before the Provincial Assembly and ceases to operate on the expiry of six weeks from the meeting of the Provincial Assembly. As by the Proclamation the Parliament had been substituted for the Provincial Assembly, the Ordinance promulgated by the President had to be placed before the Parliament and would cease to operate on the expiry of six weeks from the meeting of the Parliament. The Parliament had met at least on the 30th April 1957 when it passed an Act which delegated its power of making laws in the Province of West Pakistan to the President and the Parliament not having framed any Act in terms of the Ordinance, the Ordinance expired on the 12th of June 1957. The result was that the orders promulgated under the Ordinance also came to an end on the 12th of June 1957 and on the 13th of September 1957, when the wheat of Syed Muhammad Waris Shah petitioner in Writ Petition No. 509 of 1958 was seized, there was no law in existence authorising its seizure. The relief prayed for in the other writ petition relates to the future. It is contended that as now none of the Orders mentioned above is in force, the petitioners have the right to carry on their business unobstructed by those Ordinances.

7. We proceed to consider these grounds one by one. As regards the first ground, the argument put forward is that action is taken by the President on the report of the Governor himself and, therefore, it would not be reasonable to assume that the intention was to deprive the Governor of his own powers also. Another argument is that according to the wording of the first part of Article 193 powers are to be assumed either by the President himself or by the Governor and the reference must be to the same powers. When the Governor assumes powers, he is not to assume the powers of the Governor because he already has them, and, therefore, the President when he assumes powers does not assume the powers which are vested in the Governor.

8. There are a number of reasons why this contention has to be rejected. In the first place, the words used are very wide. The President is entitled to assume to himself the powers of any body or authority. In the second place, the authorities whose powers the President was not empowered to assume are expressly mentioned. It is stated in the Article that he cannot assume to himself the powers of the Provincial Legislature or that of the High Court. There is no reason why, if the intention of the makers of the Constitution was that the President should not assume powers of the Governor, this should not have been expressly stated. An important point for con sideration in this connection is that the intention by a Proclama tion of emergency would be to vest the whole power in one authority and not to create a kind of duel control. A Proclama tion of emergency is resorted to when the democratic machinery has broken down. The provision as to division of powers in such cases would be something very unusual and if the intention c of the makers of the Constitution was to create a dual control, at least there should have been some clear indication to that effect.

9. We asked learned counsel for the petitioners to state as to what particular power of the Governor was intended to be saved. He could only refer to the ordinance‑making power. He was under the impression that it was a special power vesting in the Governor which the Governor was exercising on his own apart from being the authority in whose name the Government of the Province was being carried on. Here learned counsel was under a mistaken impression. The Governor has only as much power of making Ordinances as he has of carrying on the Government. It is to be kept in mind that it is the Governor in whose name the Government is carried on and it is he who has to pass orders although he, in doing so, has to act on advice. Even while acting under Article 102, he has to act on advice so that although apparently this appears to be a power of the Governor, it is, truly speaking, only a power of the Cabinet. It is the Cabinet that advises the Governor to pro mulgate a particular Ordinance and unless the Cabinet does advise him, he can promulgate no Ordinance. It is not, there fore, correct to say that the President by assuming to himself the powers of making Ordinances is depriving the Governor of any power which specially vests in him. By the Proclamation, the powers of the Government are to be assumed by the President. The powers of the Government are also powers of the Governor, though he is to act on advice. In the case of the ordinance‑making power too, he is to act on advice.

10. A relevant consideration in this connection is this. By the Proclamation the power of the Provincial Assembly is vested in the Parliament. The Ordinances promulgated by the Governor have, under Article 102, to be placed before the Provincial Assembly, but if the Ordinances have not henceforth to be placed before the Provincial Assembly but before the Parliament, it appears more appropriate that the Ordinances should be promul gated by the President himself.

11. We find no force in the argument that the powers to be assumed by the President and by the Governor by virtue of Proclamations under Article 193 should be the same and therefore the powers of the Governor are not included. It is really not correct to say that in one case it is the Governor who assumes powers and in the other it is the President. The' Governor assumes powers only on behalf of the President and there would be nothing wrong in saying that even the power of making Ordinances can be assumed by the Governor on behalf of the President even though, in accordance with Article 102, it was he who was to promulgate Ordinances. When there is a Proclamation the whole power of Government vests in the President and it is he who acts either directly or through the Governor.

12. We hold, therefore, that the President is entitled to assume even the powers which are vested in the Governor.

13. The next point to consider is whether in this particular case the President had assumed the ordinance‑making power of the Governor on the 6th of April 1957 when he promulgated the Ordinance. It will be observed that in the first Proclama tion, i.e., of the 21st of March 1957, he had assumed all powers of the Government as well as of the Governor. At the time of the amended Proclamation it appears that the President changed his mind and directed the Governor to assume the powers of the Government. In part (a) of the second Procla mation he directed the Governor to assume all powers of Government on his behalf. At the same time the assumption of the powers of the Governor which existed in part (a) of the original Proclamation was omitted in the amended Proclamation. Learned counsel for the petitioner has put forward two arguments. The first is based on the fact that in part (a) the reference to powers of the Governor was omitted. The second is based on the technical objection that in the second Proclamation the amendment of Article 102 by which President was substituted for Governor appeared only as a consequential provision, whereas it was not in fact a consequential provision, Accord ing to learned counsel when the first Proclamation was made, clause (iv) of (c) had been properly introduced as incorporating an amendment which was consequential on what was contained in (a) because the powers of making Ordinances had been assumed by the President, but when the Proclamation was amended on the 29th of March 1957, in clause (c) (iii) the amendment relating to Article 102 continued only by an oversight.

14. On a reference to clause (c) (iv) of the first Procla mation and clause (c) (iii) of the second, little doubt is left in one's mind that amendments which appeared in the second Proclamation were all deliberate. Clause (c) (iii) of the amended Proclamation is not a reproduction of clause (c) (iv) of the original provision. 1n the first part of this clause the reference to the "Governor" which exists in the earlier notification has been omitted and yet in the last part of the amended clause (c) (iii) the reference again emerges and it is stated that notwithstanding anything hereinfore contained, the President shall be read in place of the Governor. The manner in which the original clause (c) (iv) has been amended points clearly to the conclusion that the President was deliberately retaining the powers of making Ordinances to himself. One of the considerations may have been that henceforth the Ordinance was to be placed before the Parliament and not before the Provincial Legislature.

15. If the intention of the President was to assume the ordinance‑making power, will clause (c) (iii) be ineffective because it is described in the Proclamation as a consequential and an incidental provision ? It may be observed here that the scheme of the Proclamation strictly follows the scheme of Article

193. Whatever notification was to be made under Article 193 (a) is contained in part (a) of the Proclamation, whatever was to be notified under Article 193 (b) is contained in part (b) of the Proclamation and whatever was to be notified by virtue of Article 193 (c) is contained in part (c) of the Proclamation. It is true that the assumption of powers was being effected by a notification in part (a) of the Proclamation and it is true also that in part (a) of the amended Proclamation there is no assumption by the President of the power of making Ordinances. Still, can we, on this technical ground reject the Proclamation as invalid in so far as it relates to the ordinance making power ? We see no reason to do so. The clear intention of the President, to assume the ordinance‑making power is there, and the authority to assume such a power exists under Article

193. The only legal requirement for assumption of this power is that he should notify the assumption of power i and he has notified it. The mere fact that the description of this assumption of power as a consequential or incidental provision is incorrect, does not deprive the notification of its force and validity.

16. We come now to the third of the grounds on which the Ordinance is challenged. Under Article 102, the Ordinance was to be placed before the Parliament in the next meeting and it was to expire six weeks after the meeting: The Parliament was admittedly in session on the 30th April 1957 though the session may have begun earlier. The Ordinance, therefore, would expire in the middle of June 1957. The Ordinance was a temporary statute and when a temporary statute expires no law which has been promulgated by virtue of the temporary statute can continue to be in force. This proposition does not appear to need support of any argument. Had it been otherwise an authority that has power only to enact a temporary statute could make a permanent law by first providing in the temporary statute for the making of an order or regulation and then making the order or regulation. It is clear in this view of the matter that on the 13th of September 1957 when the wheat of Syed Muhammad Waris Shah was seized, there was no law in existence justifying the seizure, and the seizure was entirely illegal.

17. Faced with this argument learned counsel for the respondent has relied upon the provisions of Ordinance XI of 1957 which, according to him, validated the orders promulgated under Ordinance I of 1957. This Ordinance had been promulgated by the Governor on 23rd October 1957 (some time in June 1957 the Proclamation under Article 193 had come to an end). It will be convenient to reproduce here the relevant provision of Ordinance XI of 1957 :‑ "

1. Short title, extent and commencement :‑‑(1) This Ordinance may be called the West Pakistan Foodstuffs (Control) Ordinance, 1957. (2) It extends to the whole of West Pakistan, except the Special Areas and the Federal Capital. (3) It shall come into force on and from the date of expiry of the West Pakistan Foodstuffs (Control) Ordinance, 1957. "

15. Continuance of certain orders: ‑--Nothwithstanding the repeal of the West Pakistan Foodstuffs (Control) Ordinance, 1956, (hereinafter in this section referred to as the said Ordinance) any order made or deemed to have been made under the Essential Supplies (Temporary Powers) Act, 1946, the Essential Supplies (Continuance of Temporary Powers) Ordinance, 1955, the West Pakistan Essential Supplies Ordi nance, 1956, or the said Ordinance and in force immediately before the date of repeal of the said Ordinance shall, if not inconsistent with, the provisions of this Ordinance and not previously cancelled, continue in force and, so far as may be, be deemed to be an order made under this Ordinance and all appointments made, licences or permits granted and direc tions issued under any such order and in force immedi ately before the said date shall continue in force and be deemed to be made, granted or issued in pursuance of this Ordinance. "

16. Savings.‑Notwithstanding the expiry of the West Pakistan Foodstuffs (Continuance of Control) Ordinance, 1956, and the West Pakistan Foodstuffs (Control) Ordinance, 1957, everything done, action taken, obligation, liability, penalty or punishment incurred, jurisdiction or power conferred and order made under the provisions of the said Ordinances, shall, if not inconsistent with the provisions of this Ordinance be continued and so far as may be, be deemed to have been respectively done, taken, incurred conferred or made under this Ordinance." The contention of learned counsel for the respondent is that as this Ordinance, in accordance with section 3, came into force as soon as Ordinance I of 1957 expired and as by virtue of section 16 of this Ordinance every "order" made under the said Ordinance was to continue, therefore, all the orders pro mulgated on the 15th of April 1957 also continued. Learned counsel for the petitioner relies, on the other hand, on the difference in wording of sections 15 and 16 and contends that the word `order' in section 16 does not refer to an `order' in the sense of a law but only in the sense of a direction or a mandate. On the difference in wording of sections 15 and 16 no doubt an argument that there was no intention to validate the orders promulgated under Ordinance I of 1957 could be based. It will be observed that section 15 is headed "Continuance of certain orders". The object of this section was to continue in force the orders promulgated under the Ordinances which are men tioned in this section. But Ordinance I of 1957 is not one of the Ordinances mentioned in this section. Ordinance I of 1957 is mentioned only in section 16, the wording of which is different from the wording of section

16. Section 16 is an ordinary validating provision the object of which is to validate what has already been done in the exercise of powers granted by the expiring Ordinances. It can be urged that if the intention of section 16 was to continue in force the orders promulgated under Ordinance I of 1957, then either Ordinance I of 1957, would have been included in the Ordinances mentioned in section 16 or language similar to that in section 15 should also have been used with respect to Ordinance I of 1957 in section

16. We accept that ordinarily this argument would have force, but in the circumstances of this case we are unable to hold that the word "order" which is used in section 16 does not include an order in the sense of a law. The reason for our conclusion is this. There could not possibly be an intention that orders promulgated under Ordinance I of 1957 should not continue because they were not substituted by any new orders and it could not have been the intention that no orders with respect to the sale, purchase and movement of foodstuffs should exist. The Government has all along been acting on the assumption that these orders are continuing. The Licensing Authority is constituted under these orders and there are other provisions of these orders which are continuously being given effect to. Ordinance XI of 1957 (like Ordinance I of 1957) only provides a framework which is to be filled by orders promulgated under it and without the Orders the Ordinance has little effect as a law. As no new orders were promulgated under Ordinance XI of 1957, the intention must be to continue the orders already existing. Once we reach the conclusion that there must have been an intention to continue these orders in force, we do not see why we should not interpret section 16 so as to include in the word "Order" used in that section even an order in the sense of a law. If the intention be clear and the words be capable of giving effect to that intention we should interpret the words so as to give effect to that intention.

18. We would hold, therefore, that by means of Ordinance XI of 1957 orders promulgated under Ordinance I of 1957 were continued in force. However, this does not solve the difficulty of the respondent so far as the case of Syed Muhammad Wari5 Shah, i.e., Writ Petition No. 509 of 1958, is concerned. Action in that case was taken by the Licensing Authority in the middle of September 1957. On that date in accordance with our finding as to the expiry of Ordinance 1 of 1957 there was no law in force under which the wheat of the petitioner could have been seized on account of disobedience of directions. It is only on account of the retrospective effect given by the Ordinance XI of 1957 that we can assume the existence on that day of the H West Pakistan Foodgrains (Licensing and Control) Order under section 7 of which the seizure was made, but on account of Article 6 of the late Constitution it would not be within the competence of the Governor to promulgate an Ordinance which punishes a person for an act which was not punishable at the time when it was done. Article 6 reads :‑ "

6. No person shall be punished for an act which was not punishable by law when the act was done, nor shall any person be subjected to a punishment greater than that prescribed by law for an offence when the offence was committed." On the date when the disobedience is alleged to have taken place or to have attracted the penalty of seizure, there was in existence no law under which the wheat could have been seized. Article 6, it will be observed, does not say that an act shall not be made an offence. Had that been the case there was a possible argument that we were not dealing with that part of the above mentioned order which created an offence. But Article 6 says "no person shall be punished" and we have no doubt that in this case the seizure and the subsequent order by' which wheat was disposed of amount to punishment. Section 7 of the West Pakistan Foodgrains (Licensing and Control) Order, 1957, reads :‑ "7. (i) The Licensing Authority may require any person or class of persons, who according to the information of the Licensing Authority; holds stocks of foodgrains in excess of the normal quantity, to declare and sell the stocks held by him in excess of the normal quantity at such prices and to such persons or class of persons or agency and in such manner as may be specified by the Licensing Authority. The Licensing Authority may have such excess stocks seized, if the holder does not dispose them of in accordance with the directions issued by the Licensing Authority and may then dispose them of as he deems fit. (ii) any person, called upon to declare his stocks under sub‑clause (i) shall be bound to give a true and correct declaration." In accordance with this section if any direction given by a Licensing Authority is disobeyed, the Licensing Authority can seize the stock and can dispose it of in any manner it thinks fit. "Dispose of" in this section does not mean that it can simply be sold and the price delivered to the owner. It is within the discretion of the Licensing Authority whether to pay the owner any part of the price of the stock that is seized or not. In the present case, for instance, Syed Muhammad Waris petitioner was paid Rs. 5 per maund although, admittedly, the price of the wheat was Rs. 11 per maund. That was the price at which the petitioner had been required to sell wheat to the approved pacca arhti. The effect of this section is that the stocks can be wholly or partially forfeited and forfeiture is surely a punishment. In view of Article 6, therefore Ordinance X1 of 1957, in so far as it makes the act of the petitioner punishable, although the act was not punishable at the time when it was done, is ultra vires.

19. Article 6 affects, however, Writ Petition No. 509 of 1958 only and does not improve the case of the petitioners in Writ Petition No. 1140 of 1957. The petitioners in that case are asking for relief with respect to the future. They want to have it declared that the orders promulgated under Ordinance I of 1957 are not now in force and cannot prevent them from carrying on their business. By virtue of Ordinance XI of 1957 these orders were continuing in force although retros pective effect could not be given to them in so far as they are inconsistent with Article

6. Ordinance XI of 1957 itself expired in due course and at present those orders are not in force simply on account of Ordinance XI of 1957. Ordinance XI of 1957 was repealed by the West Pakistan Foodstufis (Control) Act, 1958, (section 14) and by virtue of section 23 of the West Pakistan General Clauses Act; 1956, the orders which were conti nued in force by this Ordinance remained in force. In accordance with `section 23 of the General Clauses Act whenever an enactment is repealed and re‑enacted, any order promulgated under it is deemed to have been promulgated under the Act by which it is repealed and re‑enacted. By virtue of section 28 provisions relating to `Acts' apply also to `Ordinances' and `Regulations' so that although section 23 applies in terms only to Acts, it is applicable to Ordinances also. We reproduce below section 23 in order that the next argument of learned counsel for the petitioner on this point may be appreciated. "

23. Continuation of appointment, notification, orders, etc., issued under enactments repealed and re‑enacted.--‑Where any West Pakistan Act is repealed and re‑enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, 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 unless or until it is superseded by any appointment, notification, order, scheme, rule, form or bye‑law made or issued under the provisions so re‑enacted." Learned counsel contends that section 23 will apply only to an, Order which is promulgated under the very Act or Ordinance which is being repealed and not to that order which is deemed to have been made under it. It is to be observed that the West Pakistan Foodstuffs (Control) Order was promulgated under Ordinance I of 1957 and not under Ordinance XI of 1957. Only by virtue of section 16 of Ordinance XI of 1957 it was deemed to have been made under that Ordinance. It was Ordinance XI of 1957 which was repealed by the West Pakistan Foodstuffs (Control) Act and, it is urged, it is only an Order made under that Ordinance that would, according to the wording of section 23, be continued and not an order "deemed to have been made" A under that Ordinance. We are unable to accept this argument. If it is enacted that an order shall be deemed to have been made under a particular law it means that for practical purposes and for the application of other provisions it should be regarded as having been so made, i.e., we should regard an order made under Ordinance I of 1957 as having been made under Ordinance XI of 1957. That should be the ordinary effect, though it may be that in a particular case the intention of the law is to apply a provision only to what is actually done under a particular statute and not to that which is deemed to have been done under that statute. Such an intention would have to be established by reference to the wording of the law and other relevant circumstances.

20. The effect of what has been said above is that Writ Petition No. 509 of 1958 should succeed because the action taken in that case was ultra vires and Writ Petition No. 1140 of 1957 of Muhammad Abdullah etc. should fail because `orders' which are impeached are now in force and if the petitioners want to carry on their business they can only carry it on in accordance with those orders. A question arises as to what is the particular order that we should pass in Writ Petition No. 509 of 1958 because it is alleged now on behalf of the Provincial Government] that the wheat has already been sold. The order which would? ordinarily have been passed in that writ petition was that the wheat which had been seized by the Licensing Authority L illegally and which, in fact, belonged to the petitioner, should be restored to him, but as the wheat has been sold and we are debarred from making an order of its restoration, we content ourselves with passing an order declaring that the seizure was illegal.

21. Writ Petition No. 509 of 1958 is accepted and order is made as stated above. Writ Petition No. 1140 of 1957 is dismissed. There is no order as to costs in either of the A. H. Order accordingly.