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Petitioner: ABDUL SAMAD Alias DADDA VS Respondent: Khan IQBAL AHMAD KHAN LODHI, P.C.S., JUDGMENT
Court Name: Lahore High Court Judge(s): Sheikh Anwarul Haq, Muhammad Akram Title:ABDUL SAMAD Alias DADDA vs Khan IQBAL AHMAD KHAN LODHI, P.C.S.,
JUDGMENT
Reported As: PLD 1972 Lahore 41 Result: Reference answered Judgment JUDGMENT ANWARUL HAQ, C. J.--Arising out of arguments presented in a large number of revision petitions filed under section 19 of the West Pakistan Control of Goondas Ordinance, 1959, a learned Singly .Fudge of this Court has referred to a larger Bench the following twelve questions : - (1) Whether the enactment of West Pakistan Maintenance of Public Order Ordinance, 1960 impliedly repeals the Ordinance? (2) If the answer is in the negative, whether in view of section 2 and the Scheme of the Ordinance, it is permissible to constitute more than one Tribunal in a district? (3) If the answer to question No. 2 be in the affirmative, whether a District Magistrate or an Additional District Magistrate is competent to transfer a case pending before one Tribunal to another Tribunal? (4) Whether a Tribunal can consist of a Magistrate, appointed as Additional Deputy Commissioner (General)? (5) Whether an Additional Commissioner can act as Commissioner under the Ordinance? (6) What is the exact nature of the hearing to be afforded to a Goonda under subsection (2) of section 14 of the Ordinance? Does this hearing postulate a formal show-cause notice? (7) Whether the High Court in exercise of its jurisdiction conferred by section 19 of the Ordinance, can examine the question of adequacy of evidence? (8) Whether in the presence of fresh material against a person, it is open to a Tribunal to refer to the material examined in earlier proceedings against the same person which was found
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insufficient; and whether any order of acquittal by a criminal Court can be used as an evidence for making an order under section 13 of the Ordinance? (9) Whether a Tribunal can make a joint order under sub-clauses (ii) and (iv) of section 14(1) (d) of the Ordinance? (10) Whether a Tribunal can pass an order more severe than prayed for' by an officer laying information before it? (11) Whether a person brought before a Tribunal is an accused person? If the answer is in the negative, whether a Tribunal can order the detention of the person complained against during the pendency of the proceedings against him before the final order is made against him under section 13 of the Ordinance? (12) Whether an order restricting the movements of a person to a particular area or directing a person not to reside within a particular area, without providing him the source of livelihood, is reasonable and promotes the object of the Ordinance? 2. On the first question it is contended that the order restricting the movements of a Goonda within the limits of a specified area amounts to an order of preventive detention, as held by a Full Bench of this Court in Ch. Muhammad Anwar v. Government of West Pakistan (PLD 1963 Lab. 109). It is submitted that the subject of preventive detention has been specifically dealt with in the subsequent Ordinance of 1960 which accordingly repeals the relevant portions of section 14(1)(d) of the West Pakistan Control of Goondas Ordinance, 1959, by implication. It is contended that the order restricting the movements of the petitioner could be passed only under the 1960-Ordinance. 3. There is no merit in this submission. The two Ordinances are designed to deal with entirely different situations and different categories of persons. The Goondas Ordinance (XXXV of 1959) is intended for consolidating and amending the law relating to the control of disorderly persons, commonly known as Goondas, in the Province of West Pakistan. It is not necessary to reproduce here the various sections of this Ordinance, and it would suffice to observe that the entire scheme of the Ordinance is to deal with persons who indulge in causing annoyance and injury to individual members of the society, and whose acts tend to corrupt public morals and disturb public peace and tranquillity. The power to restrict movements of disorderly parsons or Goondas, after the necessary declaration has been made under section 13 of the Ordinance, is an ancillary power to control their activities as a corrective measure. 4. The object of the West Pakistan Maintenance of Public Order Ordinance, 1960, on the other hand, is "to amend and consolidate the law providing for preventive detention and control of persons and publications for reasons concerned with public safety, public interest and the maintenance of public order in the Province of West Pakistan". A reference to the various pr3visions of this Ordinance shows that it is intended for the purpose of dealing with activities prejudicial to public order and safety of the realm. The object of this Ordinance is not to deal with disorderly and anti- social individuals who get drunk or indulge in criminal activities by intimidating or annoying their fellow citizens. The preventive detention prescribed in the 1960-- Ordinance is obviously of a political nature and not intended to curtail or restrict the ordinary anti-social and criminal activities of Goondas. The two statutes being thus entirely different in their scope and purpose, the question of implied rep; al of the Goondas Ordinance hardly arised. 5. The doctrine of implied repeal as expounded by Craies C at. Page 365 of his Book on Statute Law (Sixth Edition) clearly lays down that- "where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier. The Court leans against implying a repeal, `unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. Special Acts are not repealed by general Acts unless there is some express reference to the previous legislation or unless there is necessary inconsistency in the two Acts standing together' . . .
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. . . . . Before coming to the conclusion that there is a repeal by implication the Court mu3t be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the later; imply the repeal of an express prior enactment i.e., the repeal must, if not express, flow from necessary implication." 6. It will be seen that the argument addressed by the learned counsel is clearly untenable in the light of the. Principles just stated. The same conclusion emerges from the observations made by their ' Lordships of the Supreme Court in Sayyad Abul A'la Maudoodi and others v. The Government of West Pakistan and another (PLD 1964 SC 673). At page 781 of the Report it is state that- In such circumstances I would have no hesitation in holding that where a special statute dealing with a special subject created special liabilities as also provided a special remedy or procedurefor the enforcement of that liability then in order to bring about the consequencescontemplated by that statute for thebreaches of its provisions recourse should be had to that statute and to no other statute." It will be seen that an essential requirement is that both the statutes must deal with the samesubject or situation, a requirement which is altogether absent in the present case. 7. For the foregoing reasons our answer to the first question is that the West Pakistan Maintenance of Public Order Ordinance, 1960, does not impliedly repeal the Goondas Ordinance (XXXV of 1959). 8. We now take up the second question, namely, whether in view of the Scheme of the Ordinance and particularly the provisions contained in section 2 thereof, it is permissible to constitute more than one Tribunal in a district? The provisions of the Ordinance directly relevant in this behalf are contained in section 2, which is in the following terms:-- "2.-(1) In every district there shall be a Tribunal to deal with cases under this Ordinance arising within the district. (2) The Tribunal shall consist of the officer holding for the time being the office of the District Magistrate or any Magistrate of the First Class especially empowered by Government in this behalf." 9. It is submitted on behalf of the petitioners that reading the two subsections together, it becomes abundantly clear that the intention of the law-giver is that in a district there shall only be one Tribunal to deal with cases arising under the Ordinance, and that the Tribunal shall consist either of the District Magistrate himself or any Magistrate of the First Class especially empowered by Government in this behalf. It is contended that this interpretation finds support and strength from the Scheme of the Ordinance and the various other provisions having a bearing on the functioning of the Tribunal. 10. On behalf of the State the position taken up by the learned Additional Advocate-General is that in accordance with section 12 of the West Pakistan General Clauses Act, 1956, the singular should be deemed to include the plural, with the result that the phrase "a Tribunal" appearing in subsection (1) of section 2 of the Ordinance should be construed as including "Tribunals", as and when necessary. It is submitted that the object of the Ordinance being to control disorderly persons commonly known as Goondas, thesetting up of more Tribunals than one in a district is obviously in the public interest as otherwise handling of a large number of cases by one Tribunal, would become impossible. In support of this assertion, the learned Additional Advocate-General drew our attention to a letter written by the Additional District Magistrate of Lahore on the 16th of July 1968 to the District Magistrate, pointing out the impossibility of one Tribunal handling the large number of cases that had already been instituted under the Ordinance in the Lahore district. 11. There can be no quarrel with the proposition that according to clause (2) of section 12 of the West Pakistan General Clauses Act, 1956, in all West Pakistan Acts words in the singular shall include the plural and vice versa, but this interpretation is subject to the overriding condition that there is nothing repugnant thereto in the subject or context. This principle has been clearly brought
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out in Madan Mohan v. Bankadal and others (AIR 1954 Raj. 115), Lakshmi Narain Sharma v. District Board, Gazipur (AIR 1956 All. 433) and Nathu v. State (AIR 1958 All. 450). It was observed in Khan Bahadur Amir-ud-Din and others v. West Punjab Province (PLD 1956 FC 220) that "when more than one interpretation is possible, that construction should be preferred which carries into effect the object of the statute". Acting on this principle their Lordships interpreted the singular as including the plural in respect of valuation lists prepared for taxation purposes. 12. When the relevant provisions of the Ordinance are examined in the light of these principles, it becomes manifestly clear that there is a definite repugnancy in the subject or context which militates against interpreting the singular phrase employed in subsection (1) of section 2 of the Ordinance as including the plural. The first positive indication to this effect is to be found in subsection (2) of section 2 of the Ordinance which contemplates that the Tribunal shall consist either of the District Magistrate or any Magistrate of the first class especially empowered by Government in this behalf. The word "or" used in subsection (2) has to be interpreted disjunctively as otherwise it would mean that the Tribunal shall consist of the District Magistrate and any Magist--rate of the first class especially empowered, which however is clearly not the intention of the law. It is common ground between the parties that the Ordinance does not contemplate that the Tribunal shall consist of more officers than one. This position is different from the one which obtained under the Punjab Act of 1950 which prescribed that the District Tribunal shall consist of the District Magistrate and the Superintendent of Police. It will be seen therefore that subsection (2) makes it clear that the Tribunal is to consist of one officer, namely, either the District Magistrate or any Magistrate of the first class. There being only one District Magistrate in every district, the intention becomes clear that there would accordingly be only one Tribunal in each district. Subsection (2), however, permits the Government to appoint any Magistrate of the first class to function as the Tribunal if for any reason the District Magistrate is not in a position to do so. 13. Suction 3 of the Ordinance contemplates that for the purpose of conducting enquiries under this Ordinance the Tribunal shall have all the powers of a District Magistrate under the Code of Criminal Procedure, 1898, for issuing summons and warrants etc. The provisions contained in this section give clear indication that primarily the Tribunal is intended to consist of the District Magistrate alone, and for that purpose it has been given all the powers enjoyed by that officer under the Code of Criminal Procedure in respect of the matters specified in the section. The sane powers would be enjoyed by the Tribunal even if it consists of a Magistrate especially empower--ed by Government in that behalf, for the simply reason that such-- a Magistrate is to act in lieu of the District Magistrate, and not in the exercise of his ordinary magisterial powers of the first class. 14. In most of the subsequent sections, the phrase used is "the Tribunal", but the use of this phrase would not necessarily point to the fact that more than one Tribunal cannot be constitut--ed. However, when we come to section 18 of the Ordinance we get a further positive indication that the Tribunal is intended to function at the level of the District Magistrate alone, as an appeal from an order made by the Tribunal is provided to the Commis--sioner of the Division in which the Tribunal exercises its jurisdic--tion. Then comes section 27 which confers power of transferring cases from one Tribunal to another. Subsection (1) of this section lays down that- "Government may by an order in writing transfer a case from one Tribunal to another in the Province." Subsection (2) lays down that- "the Commissioner may by order in writing transfer a case from one Tribunal to another within a division." It seems to us that if indeed the intention of the statute was that there should be more than one Tribunal in the same district, then the power of transferring cases from one Tribunal to another would not have been couched in the language in which it appears in subsection (2) of this section.
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The power in that case would: normally have been conferred upon the District Magistrate who is admittedly the head of the district for the purpose of administer--ing all criminal laws, maintaining law and order and preventing-- the breach of the peace and controlling disorderly persons. The fact that power has been given to the Commissioner to transfer cases from one district to another within the division clearly points to the intention of the Legislature that there shall be only one Tribunal in each district, thus necessitating the transfer of cases---from one district to another. The argument that a division also includes a district is not tenable because on the same reasoning the Province would include a division and therefore subsection (2) of section 27 would be redundant. It is clear that what is contemplated by section 27 is the transfer of cases from one District Tribunal to another District Tribunal. 15. The provisions contained in subsection (1) of section 2 of the Ordinance are pari material with those contained in sections 9 and 10 of the Criminal Procedure Code. Subsection (1) of the first mentioned section lays down that- "the Provincial Government shall establish a Court of Session for every sessions division, and appoint a Judge of such Court" Subsection (l) of the latter section enjoins that- "in every district the Provincial Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate." It has been held in Legal Afairs, Bengal v. Ijjatualla paikar (AIR 1931 Cal. 190), Prabhulal Kamlal Katra v. Emperor (AIR 1944 Nag. 84) that these provisions con--template only one District Magistrate or one Sessions Judge. In other words, the word "a" has been interpreted to signify the singular, and not to include the plural as well. We are of the view that the same considerations and interpretation apply to the words used in subsection (1) of section 2 of the Ordinance read with subsection (2) thereof. If indeed the intention had been to sanction the establishment of more than one Tribunal in a district, control and supervision over these Tribunals would have been entrusted to the District Magistrate as is the case with the Magist--rates and the Additional District Magistrate appointed under section l0 of the Criminal Procedure Code. Our answer therefore to the second question is that the Ordinance does not permit the setting up of more than one Tribunal in a district. However, where the District Magistrate is not functioning as the Tribunal, the first Tribunal established by the Government by specially empowering in this behalf any Magistrate of the first class would have to be regarded as the Tribunal for the purposes of the Ordinance, but subsequent Tribunals established in the same district would be without legal sanction. 16. The third question, namely, whether the District Magistrate or an Additional District Magistrate is competent to transfer a case pending before one Tribunal to another Tribunal, does not arise in view of the answer returned by us to the second question. However, even if it were permissible to establish several Tribunals in a district, the District Magistrate would still have no power of transferring cases from one Tribunal to another, or of allocating areas and categories of cases to these Tribunals, for the reason that the Ordinance specifically confers power of transferring cases within the division to the Commissioner, and does not confer any power at all on the District Magistrate in respect of supervision, control and transfer of cases handled by the Tribunals. We accord--ingly endorse the view taken in this behalf by a learned Single Judge in Suleman Khan v. State (1969 P Cr. L J 727). 17. It was submitted by the learned Additional Advocate. General that if the several Tribunals were assumed to be validly constituted then the allocation of areas and cases between them by the District Magistrate would amount to a mere irregularity as held in Mirza Mahmood Beg v. The Commissioner, Multan Division, Multan etc. (PLD 1966 SC 701) and Mumtaz Begum v. Sh. Inayat Ullah (PLD 1969 Lab. 16). It is submitted that in any case the allocation of cases and areas made by the District Magistrate, Lahore, stood ratified by the Divisional Commissioner. The two cases relied
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upon by the learned Additional Advocate-General are not directly relevant in the present context, as the basic assumption on which they proceed is not present in the instant case. The law does not permit the establishment of more Tribunals than one in a district, nor does it confer any power on the District Magistrate to transfer cases from one Tribunal to another. Orders of transfer of allocation of cases made by the District Magistrate must therefore be held to be without jurisdiction. In our view this is not a mere irregularity, which could be remedied under section 537 of the Criminal Procedure Code even if this Provision were held to apply to proceedings taken under the Ordinance. It would be a case of want of jurisdiction both in the District Magistrate and the Tribunals concerned. 18. With regard to question No. 4, namely, whether the Tribunal can consist of a Magistrate appointed as Additional Deputy Commissioner (General), our answer is in the affirmative. It is common ground between the parties that every Additional Deputy Commissioner (General) is also a Magistrate of the first class. That being so, there could be no legal bar in the way o his being especially empowered to act as the Tribunal in terms of subsection (2) of section 2 of the Ordinance. 19. The answer to question No. 5, namely, whether an Additional Commissioner can act as Commissioner under the Ordinance, is again in the affirmative. Clause (17) of section 2 of the West Pakistan General Clauses Act, as amended in 1964, lays down that- "Commissioner shall mean the chief officer of the revenue and general administration of a division and shall include an Additional Commissioner of such division." Nothing has been said by either side to show that this definition is not applicable in the present context. 20. Now we take up question No. 6, namely, what is the exact nature of the hearing to be afforded to a Goonda under subsection (2) of section 14 of the Ordinance, and whether this hearing postulates a formal show-cause notice. 21. Subsection (1) of section 14 contemplates that while making a declaration under section 13 of the Ordinance the Tribunal may act in one or more of the ways enumerated in clauses (a) to (e) as it deems fit. Subsection (2) then lays down that- "no order under clause (d) or clause (e) of subsection (1) shall be made operative for a period exceeding three years and without hearing the goonda in respect thereof." It will be seen that the statute requires that a hearing should be given to the declared Goonda before any order is made against him under clause (d) or (e) of subsection (1). The question of the nature of this hearing was considered by a Division Bench of this Court in Ch. Ghulam Muhammad v. The State and others (PLD 1969 Lah. 767) and it was observed that - "the hearing contemplated in subsection (2) of section 14 means a real substantial hearing. The action of the Tribunal cannot be justified by the fact that the person has been heard prior to the passing of an order declaring him a goonda. The hearing provided in this subsection is in fact in the nature of giving notice to the goonda to show cause why the proposed action under clause (d) or clause (e) be not taken." The same view was reiterated by a learned Single Judge in Haji Muhammad Hussain v. The State (PLD 1970 Pesh. 58). 22. In The University of Dacca v. Zakir Ahmad (PLD 1965 SC 90), while dealing with the grant of an opportunity of being heard in accor--dance with the principles of natural justice, their Lordships observ--ed that- "the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth. Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the `elementary and essential principles of fairness' as a matter of necessary implication,
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the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and `to correct or controvert any relevant statement brought forward to his prejudice'." These observations appear to us to bring out the essence of the hearing contemplated by subsection (2) of section 14 of the Ordinance. The principles of natural justice, as well as the legal provision embodied in the Ordinance itself, clearly require that the person who has been already declared a Goonda, and against whom the Tribunal proposes to make an order under clause (d) or clause (e) of subsection (1) of section 14, must be made aware of the nature of the proposed order so that he is in a position to show cause against it. This requirement would certainly be met if a formal show-cause notice in writing is issued after the necessary declaration has been made under section 13 of the Ordinance, and the Goonda is given an opportunity to submit g his reply or explanation thereto. The requirement would also be met if the Tribunal, instead of issuing a notice in writing, puts to the person concerned the substance of the order proposed to be made against him and allows him an opportunity to make an oral submission in regard thereto, both the question and the submission being made a part of the record of the proceedings. It seems to us that either of these procedures would ensure compliance with the requirements as contained in subsection (2) of section 14 of the Ordinance. 23. The seventh question referred to us concerns the scope of the revisional powers conferred on the High Court by section 19 of the Ordinance. This section is in the following terms "In relation to any such order under section 4, or section 13, or section 16 the High Court may call for the record of the case, and if the Tribunal Or the Commissioner appears- (a) to have exercised a jurisdiction not vested in it by law,…
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