P L D 1953 Baghdad﷓ul﷓Jadid 59 (PLP)

Mr. Nisar Ahmad's argument in this connection is that since the provision of this section is mandatory therefore a new High Court should have been established in the State and that the existing High Court must be held to have ceased to function. Amplifying his arguments further he said that the section should be read as requiring that on the coming into force of the Act of 1952 a new High Court of Judicature shall be established for the State. We see no warrant for reading the additional words suggested by Mr. Nisar Ahmad into the section. It is true that the provision of this section is mandatory but it does not require that if a High Court existed at the time when the Act came into force it was to B be abolished or automatically ceased to function and a new one established in its place. We are of the view that the existing High Court amply satisfies the mandatory provision of section 50 With a view further to strengthen his arguments Mr. Nisar Ahmad referred to a number of sections of the Act in which the word "there shall be" are used. For instance section 11 (1) of the Act which provides that there shall be a Council of Ministers to aid and advise the Ruler, .The counsel contended that a new Council of Ministers was appointed after the coming into force of the Act. This argument appears to be based on the erroneous assumption that a Council of Ministers existed before the coming into force of the Act of 1952 and that the function of such Council of Ministers was to aid and advise the Ruler. No Council of Ministers for aiding and advising Alahazrat the Ruler in the exercise of his functions existed before the coming into force of 1952 Act. Similarly Mr. Nisar Ahmad's reference to sections 16 and 17 of the Act is not of any avail to him because the State Legislature of the kind envisaged in the former section and the Legislative Assembly of the description referred to in the latter section did not exist before the coming into force of the 1952 Act. The learned counsel also referred to section 200 of the Government of India Act, 1935 as adopted for Pakistan to which it is provided that there shall be a Federal Court in Pakistan. He contends that after the coming into being of Pakistan the Federal Court was established for it. This is so, but no Federal Court existed in Pakistan after partition and therefore a new Court answering the description given in sec tion 200 had to be established. Mr. Nisar Ahmad laid a great stress on the absence of a definition of the expression High Court in the 1952 Act. He strenuously contended that in the absence of such a definition it is difficult to hold that the High Court of Judicature at Baghdad‑ul -Jadid is the High Court as contemplated by section 50 of the 195 Act. We are not prepared to accept this argument of his either. In the first place the definition of High Court is given in the General Clauses Act for purpose of civil cases and in the Code of Criminal Procedure for criminal cases. According to these Acts which are in force in the State "High Court" means the highest. Court of civil and criminal appeals or revisions in any local area It is a well recognised principle of Interpretation of Statutes that Legislature must be presumed to be aware of the meaning of an expression defined or used in a former Statute and should be held to have used it in the same sense in a latter Statute. The Legislature which extended the application of General Clauses Act and the Code of Criminal Procedure to the State being the same as passed the Constitution of the High Court Act in 1937 and the Bahawalpur Interim Constitution Act of 1952, it must be presumed that the expression "High Court" in the latter two enactments is used in the same sense and meaning as in the former two. This interpretation is in accord with the principle of beneficial construction which requires the J edges to make such construction as suppresses the mischief and advances the remedy. Mr. Nisar Ahmad's arguments in this behalf must therefore also fail. The counsel also referred to Article 214 (1) of the Constitution of India. This article also opens with the words there shall be, Mr. Nisar Ahmad contends that part 2 of the article gives the definition of the expression `'High Court" for purposes of the Constitution. This is however not the case. The object of enacting part 2 is made clear by its concluding words. The expression "Province" having been replaced in the Constitution by the expression "State" it was considered necessary to provide that High Courts functioning in areas formerly described as Provinces will be deemed to be High Courts for corresponding areas now described as States. In view of what has been said above our answer to first part of the question under reference is in the affirmative, i.e., we hold that the High Court of Baghdad‑ul‑Jadid at Bahawalpur is High Court as contemplated by sections 50 of the Bahawalpur Interim Constitution Act, 1952. The second part of the question does not therefore arise. In order however that there may be no doubt left about the validity of constitution of High Court of Baghdad‑ul‑Jadid we wish also to point out that even if we had held that it was not High Court within the meaning of section 50 of the Act validity of its Constitution would not have been open to challenge. As we have already stated the said High Court was established in 1937 by an enactment of Alahazrat the Ameer Ruler in the exercise of his powers as the Sovereign Legislative Authority of the State. This enactment had all the force of law at the time when the Bahawalpur Interim Constitution Act of 1952 came into force. It must be deemed to be still in force by virtue of provisions contained in section 75 of the said Interim Constitution Act which runs as follows:‑‑ "Notwithstanding the repeal of the Government of Bahawal per Act, 1949, all the laws, rules or regulations having the force i; of law in force in the State immediately before the commence ment of this Act shall continue in force in the State until altered or repealed or amended by tire Mate Legislature or other competent authority." In our opinion this section furnishes a complete answer to the objection raised by Mr. Nisar Ahmad. We do however thank him for having raised it because his doing so has afforded us the opportunity of examining in detail various provisions of law touching upon the subject. We also think the Government Advocate for his having helped us by pointing out flaws in Mr. Nisar Ahmad's arguments. Mr. Farzand Ali counsel for the petitioner found himself in a very awkward position. No doubt he characterised Mr. Nisar Ahmad's reasoning as fallacious but could not or did not wish to say anything convincing in support of the validity of the Constitution of the High Court at Baghdad-ul‑Jadid at Bahawalpur. We could not follow the significance of his argument to the effect that for the purposes of his petition only the High Court was properly and validly constituted. He referred to the definition of the expression `High Court' as given in section 4 of the Cr. P. C., and said that since his petition was under section 435 of the Code therefore the definition of High Court contained in the Code was applicable and the High Court was validly constituted for the purpose of his revision petition. He however contended that the High Court as constituted was not High Court as contemplated by section 50 of the Bahawalpur Interim Constitution Act. He also referred to section 266, Cr. P.C. and said that he took his stand on it. While saying this Mr. Farzand Ali overlooked the fact that meaning of High Court contained in this section is restricted to trials before High Courts and Courts of Session. Apart from that the expression "High Court" in this section is declared to mean High Court within the meaning of the Government of India Act of 1935. This lends support to the view which we have expressed above that section 219 (1) does not define the expression "High Court" but merely names the Courts which are to be deemed as High Courts whether they are described as such or not. The only other point which requires consideration before we finally dispose of this reference relates to the personnel of the present Judges of the High Court and not to its Constitution pro perly so‑called. This point was not formally raised by either party but informally suggested to us by both. Two of the Judges of this Court were appointed before the coming into force of the Interim Constitution Act of 1952. Therefore they took the oath of office as provided for in Constitution of the High Court Act of 1937. This oath was different from the oath of office pre scribed in Schedule I of the Interim Constitution Act of 1552. The question which requires being looked into is the effect of the failure of the two Judges concerned to have taken the newly pre scribed oath. The law as it stands requires that the Judges shall take the prescribed oath after their appointment and previous to their entering upon their duties. Both the Judges were appointed and entered upon their duties before the coming into force of 1952 Act, and duly took the oath then prescribed. The question whether it was or was not necessary for them to take the newly prescribed oath, important as it is, does not in my opinion have the effect of invalidating the Constitution of the High Court. The utmost that) can be said is that the High Court of Judicature at Baghdad‑ul -Jadid is the High Court constituted under the High Court Consti tution Act of 1937. We have already held above that this Act had the force of law when the Interim Constitution Act, 1952 came into force and therefore remains in force till it is altered, repealed or amended by a competent authority. However to put the matter beyond the pale of controversy we humbly suggest that Alahazrat the Amir Ruler may be pleased to order that arrangements may be made to enable the two Judges concerned to take the newly pre scribed oath under section 51 (3) of the Bahawalpur Interim Constitution Act of 1952. FINAL ORDER IN THE REVISION PETITION. FAIZ MUHAMMAD, C. J.‑On a preliminary objection being raised by counsel for the respondent as to the validity of the Cons titution of this High Court and hence to it 7, competence to hear the petition I referred the point to the Full Bench of this Court for decision. For my reasons to refer the matter to the Full Bench and the specific question so referred my order dated the 30th of September 1953, may be perused. The Full Bench consisting of all the three Judges of this Court has held that High Court of Judicature at Baghdad‑ul‑Jadid as at present functioning in the State is a validly and properly constituted High Court under section 50 of the Bahawalpur Interim Constitution Act of 1952, and also otherwise. For detailed reasons on which the Full Bench has based its decision reference may be made to its order dated 14th October 1953. At the resumed hearing of the revision petition before me Mr. Farzand Ali and Sh. Abdur Rehman Advocate appeared for Mr. Karim Hayat petitioner and S. Ahmad Nawaz Shah respondent respectively. Before Mr. Farzand Ali could begin his arguments Sh. Abdur Rahman raised another preliminary objection to the effect that the High Court should not have entertained this revision petition until after the petitioner had first moved the Sessions Judge or the District Magistrate or the Additional District Magistrate concerned, and failed to obtain redress for his grievance if any. It is true that according to the general practice of almost all the High Courts in this sub‑continent the petitioners are required to move the one or the other of the lower Courts of revision in the first instance. But powers of revision vesting in the High Court and such other Courts under section 435, Cr. P. C are concurrent and, therefore, in the special circumstances of a particular case the High Court is not precluded from entertaining a petition directly. In the present case reasons for which I entertained this revision petition directly are firstly that the Sessions Judge at Rahimyar Khan was away on recess and the petitioner had made some allegations against the District Magistrate and secondly the petition involved the consideration of the provisions of a Federal Enactment i.e., the Evacuee Property Ordinance of 1949. I felt that I would be in a better position to appreciate the arguments of the parties on the point. Therefore ruling out Sh. Abdul Rahman's objection I called upon Mr. Farzand Ali to argue his petition. In order fully to comprehend the implication of this petition it is necessary briefly to refer to the facts which have given rise to it. These are as follows :‑ On 16th of September last S. Ahmad Nawaz Shah respondent made an application to the Magistrate, 1st Class, Sadiqabad in which among other things he alleged that he and Mr. Karim Hayat petitioner along with some others were allottees of the evacuee property (a ginning factory) known as the Dhanpat Mal Diwan Cband Factory at Sadiqabad. According to S. Ahmad Nawaz Shah the factory in question had been allotted to him and others including the petitioner for three years commencing with 1952. He further averred that the allottees peacefully worked the factory during the last cotton season but with the beginning of the present season Mr. Karim Hayat showed signs of trying to take exclusive possession of it and to remove the stock‑in -trade, tools and parts etc. lying on the premises. This according to S. Ahmad Nawaz Shah meant undue interference with his right as the managing allottee. He further alleged that on the day on which he made the application to the Court i.e. 16th September 1953, Mr. Karim Hayat petitioner had threatened him with violence and even murder if he dared to enter the factory. On the basis of these allegations Mr. Ahmad Nawaz Shah said that he apprehended a breach of peace and therefore prayed the Court for action under section 145, Cr. P. C. On receiving Mr. Ahmad Nawaz Shah's application the Magistrate, Sadiqabad recorded his statement and forwarded a copy of the application to the Inspector of Police, Sadiqabad with the order that the Inspector should immediately proceed to the spot find after making necessary enquiry report within three hours as to how matters stood. Accordingly the Inspector proceeded to the spot and after recording the statement of S. Ahmad Nawaz Shah and three other witnesses reported that there was an imminent danger of breach of peace. On receiving the Inspector's report along with the statements of witnesses he had recorded the Magistrate issued a notice to the parties to appear before him on 24th of September 1953, and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Simultaneously with this order the Magistrate also proceeded under proviso 2 of subsection (4) of section 145, Cr. P. C. and ordered the attachment of factory in dispute along with all the stock‑in‑trade etc. lying on the premises. In pursuance of this order the Inspector attached the factory and sealed it. On receiving notice referred to above Mr. Karim Hayat filed the present revision petition in this Court against the Magistrate's order. In the course of his arguments Mr. Farzand Ali counsel for the petitioner urged the following points against the order of the Magistrate ;‑ (1) That there was no apprehension of breach of peace and therefore the order of the Magistrate was without jurisdiction. (2) That control or possession of the parties over the factory was joint and therefore section 145, Cr. P. C. did not apply. (3) That Mr. Karim Hayat and not S. Ahmad Nawaz Shah was the Managing Allottee of the factory and therefore he was entitled to its possession for the purposes of management. (4) That the property in dispute is not properly described in the notice issued to the petitioner. (5) That copy of the notice was not published as required by subsection (3) of section 145, Cr. P. C. and (6) That the factory in dispute being evacuee property could not be attached. I will deal with points raised by Mr. Farzand Ali one by one in the above order.

1. It is true that the existence of apprehension of breach of peace alone gives the Magistrate in-jurisdiction to proceed under section

145. The question which requires consideration however is as to who is to judge whether such an apprehension exists or not. Section 145, Cr. P. C. provides for the satisfaction of the Magistrate in this behalf. It is therefore doubtful if the High Court while dealing with a case on the revision side can go into the matter. Subsection (5) provides that the order of the Magistrate under subsection (1) shall be final unless it is set aside by himself. I have carefully gone through the record of the Magistrate's Court and have come to the conclusion that as it stands it does show that a breach of peace was imminent. This may be due to the fact that instead of appearing before the Magis trate and putting in written statement of his claim as respects the fact of actual possession and also about other matters Mr. Karim Hayat rushed to this Court. It is possible that if he had before coming to this Court appeared before the Magistrate and apprised him of the true situation he the Magistrate may have cancelled his order under subsection (5) of section 145, Cr. P. C. In these circumstances I am constrained to hold that the Magistrate did not act without jurisdiction as far as this point is concerned. There is however something in the Magistrate's order which makes me feel that he did not take as detached a view of the matter as he should have taken. While I hold that cases of apprehended breach of peace should be dealt with promptly I cannot help remarking that promptness does not necessarily mean a hasty action. After receiving the application and recording the applicant's statement the Magistrate ordered the Inspector of Police to make enquiry on the spot and report within three hours. This is something more than promptness. In my opinion it borders on undue haste. Probably it is this which made Mr. Karim Hayat doubt the impartiality of the Magistrate and compelled him to rush to the High Court. Coming to the second point raised by Mr. Farzand Ali I may point out that it is common ground between the parties that they along with others are joint allottees of the property in dispute. Their possession of it must therefore be presumed to be joint. Unfortunately however Mr. Karim Hayat on one hand and Syed Ahmad Nawaz Shah on the other claims that he is the managing allottee and as such entitled to exclusive possession of the property for purposes of its management. So although ordinarily section 145, Cr. P. C. does not apply to cases of joint possession, in the present case however it would have applied but for reasons given below in connection with Mr. Farzand Ali's sixth objection. The real object of section 145 is to prevent a dispute about immovable property, for such disputes generally lead to breach of peace. A dispute is as likely to exist about a jointly possessed immovable property as about an exclusively possessed one. As regards Mr. Farzand Ali's third point i.e. that Mr. Karim Hayat and not S. Ahmad Nawaz Shah was the managing allottee of the factory and therefore the former was entitled to its possession, all I can say is that this is a question of fact and it is neither proper nor possible for me to go into it at this stage. Mr. Farzand Ali's fourth and fifth points relate to notice to Mr. Karim Hayat and the publication of the same under subsection (3) of section

145. I have no hesitation in holding that the property in dispute is not properly described in the notice issued to Mr. Karim Hayat. The question however which requires consideration is whether or not the omission occasioned any miscarriage of Justice. In other words can it be said that Mr. Karim Hayat was in any manner misled into believing that the notice related to some factory other than the one in dispute I am sure that Mr. Karim Hayat was not at all misled about the identity of the property in dispute. The defect in notice can not therefore be viewed otherwise than an irregularity. As regards the publication of notice I may remark that the provision relating to it as contained in subsection (3) of section 145, Cr. P. C. is mandatory. It has been held in a number of rulings of various High Courts that non‑compliance with it has the effect of invalidating the proceedings. Looking upon the notice itself and taking into consideration the fact that it was not pro perly published I am further convinced that the Magistrate acted with undue haste. The sixth point raised by Mr. Farzand Ali is in my opinion very important and requires more serious consideration. He contended before me that an Evacuee Property is not liable to attachment by the order of any Court, officer or authority. In support of his contention he referred to sections 4 and 12 of The Pakistan Administration of Evacuee Property Ordinance of 1949. The two sections run as follows :‑ Section 4.‑The provisions of this Ordinance, and any rule or order made thereunder, shall have effect notwithstanding anything inconsistent herewith contained in any other law for the time being in force, or in any instrument having effect by virtue of such law. Section 12.‑Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court. Section 4 above overrides all other laws by providing that the provisions of this Ordinance shall have effect notwithstanding anything inconsistent with it in any other law for the time being in force. Section 12 exempts evacuee property from legal process including attachment thereof by any officer of Court or arty other authority. The words "or any other authority" were inserted by the Pakistan (Administration of Evacuee Property) (Amendment) Act of 1951. It will be noted that section 12 as it stands is very wide in its application. The words officer of a Court or any other authority include a Criminal Court or any other authority con cerned with prevention and punishment of crime. On behalf of the respondent S. Ahmad Nawaz Shah, Sh. Abdur Rahman, Advocate contended that the words "officer of a Court" and "or any other authority" occurring in section 12 refer to the officer of a Civil or Revenue Court and a Civil or Revenue Authority and not to an officer of a Criminal Court or an authority concerned with prevention and punishment of crime. In support of his contention he has urged before me that the object of attachment under civil process is different from the object of attachment under section 145 which provides for prevention of breach of peace. I agree with him that there is a difference between the two kinds of attachment. But this by itself is no ground for holding that the word attachment as used in section 12 of the Ordinance referred to above applies only to an attachment ordered by a Civil or Revenue Court or Authority. Sh. Abdur Rahman next invited my attention to section 34 of the Ordinance in which the words used are "Civil or Revenue Courts." I have read and re‑read this section and come to the conclusion that it does not help Sh. Abdur Rahman. Section 34 as it stands bars the jurisdiction of Civil and Revenue Courts in matters which are specified in it. The use of the words Civil or Revenue Court in this section far from helping Sh. Abdur Rahman actually lends support to the contention of Mr. Farzand Ali. If the Legislature had intended that an evacuee property would not be liable to attachment by officer of a Civil or Revenue Court only it would have said so in section

12. The language of subsection (1) of section 12 as it stands is unambiguous and all‑embracing. Sh. Abdur Rahman was unable to produce before me any authority in support of his contention touching upon the interpretation of subsection (1) of section

12. In the absence of any authority on the point it is not possible for me to ignore the plain meanings of the section and read into it words which the Legislature did not consider proper to employ. Some if not all the forms of process mentioned in section 12 (1) can be issued by Criminal, Civil and Revenue Courts or Authorities Attach ment is one such process. In the absence of a clear indication to the contrary I have no alternative but to hold that exemption of evacuee property from legal process applies to the process of all the Courts and authorities alike. As a last resort Sh. Abdur Rahman challenged the validity of the Evacuee Property Ordinance itself as far as its application to the State is concerned. He urged that Central Legislature or the Governor‑General has no power to legislate about evacuee property in the State. This contention of Sh. Abdur Rahman is not tenable either. In the first place subsection (3) of section I of the Ordinance extends its application to acceding States, Apart from this the application of the Ordinance was also extend ed to the Stata by the State Government Notification No. 104 L. D. dated the 8th of November 1949. In view of all that has been said above I hold that on the facts on record a danger of breach of peace did exist but in the circumstances of the case section 145 was not the proper section for the Magistrate to proceed under. The proper section under which he could proceed and can even now proceed if the danger of breach of peace still exists, is section 107 of the Cr. P. C. Therefore setting aside the order of attachment 1 direct the Magistrate to proceed under section 107, Cr. P. C. if he is satisfied that there is still an apprehension of breach of peace. The question whether or not such an apprehension exists is a matter entirely for the Magistrate to decide on the basis of evidence led or to be led before him. A. H. Attachment set aside.