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Petitioner: MOSLEMUDDIN SIKDAR VS Respondent: THE CHIEF SECRETARY, GOVERNMENT OF EAST PAKISTAN
P L D 1957 Dacca 101
P L D 1957 Dacca 101
Before Ispahani and Murshed, JJ
MOSLEMUDDIN SIKDAR----Petitioner
versus
THE CHIEF SECRETARY, GOVERNMENT OF EAST
PAKISTAN and others-----Respondents
Writ Petition No. 134 of 1956, decided on 15th August 1956.
(a) Military Courts----Set up with a view to speedy trial of offences under food laws-Expected to function judicially and not arbitrarily-East Pakistan Food (Control of Movement, and Distribution) Ordinance (XII of 1956).
Under the East Pakistan (Food Control of Movement and Distribution) Ordinance, 1956, Special Courts manned by Military personnel were constituted to try certain kinds of offences with a view to speedy trial: Held, that such Courts were expected to function judicially and not arbitrarily and to convict an accused only on strict and legal proof of guilt.
(b) Constitution of Pakistan, Art. 170----Habeas corpus, writ of-Conviction under special law found to be without juris diction-Special law not providing remedy by appeal or revision--- Fit case for issue of writ-East Pakistan Food (Control of Movement and Distribution) Ordinance (XII of 1956), Ss. 4 & 6.
A notification under section 4, East Pakistan Food (Control of Movement and Distribution) Ordinance (XII of 1956), embodied a direction that no family shall have in its possession or control foodstuffs in excess of the quantity calculated at the rate of four maunds of rice or six maunds of paddy for every member of the family. Possession in excess of that quantity was an offence under section 6 of the Ordinance.
Held, that mere possession of 220 maunds of paddy with out proof of excess on basis of quantities allowed by the notification was no contravention of the notification and was not an offence under the Ordinance.
That the petitioner's conviction under section 6 was therefore without jurisdiction, and as the Ordinance provided no remedy against conviction under section 6, it was a fit case for the issue by the High Court of a writ of habeas corpus.
In England (1) A person may be discharged by a writ of habeas corpus if he establishes that his conviction was without jurisdiction, even though an appeal was taken against his conviction and dismissed; (2) When there is no other remedy available to the prisoner to question the validity of the conviction, the Court will go into the question of the legality of the conviction, but not if there is a remedy available to the petitioner by a revision or appeal; (3) In going into the legality of the conviction the Court will not function as a Court of appeal on facts.
The jurisdiction conferred upon the High Court by the Constitution of Pakistan is even wider than the jurisdiction of the Courts in England.
In re: Authors 1889, 22 Q B, 345 In re: Bailey and in re: Baker E & B 607:2 H & N 219; Re: Bailey, re: Coiller 1864, 3 E & B 607: 16 Digest, 254, 557; In re: Baker (1857) 2 H & N 219; 16 Digest, 254, 588 and King Governor of Lawes Prison, Ex parte Doyle 1917, 2 K B 254 ref.
(c) Constitution of Pakistan, Art. 7 (I.)-Court's duty to conduct trial so as to afford proper opportunity to accused to consult counsel even though he does not ask to be represented by one-Trial in contravention of Art. 7 (1)-Void-Writ of habeas corpus-Constitution of Pakistan, Art. 170.
When the trial was conducted in a manner and under circumstances which amounted to a denial of the right given to the citizen under the Constitution, the trial must be held to be void and the conviction and sentences were void and illegal even though he had not in terms asked to be represented by counsel. The prisoner was entitled to a writ of habeas corpus.
Beavers v. Haubert (1905), 168 U S 77 (87); Powell v. Alabama (1932) 287 U S 45; De Meerleer v. Michigan (1947) 329 U S 663; Palmer v. Ashe (1951) 342 U S 134; Betis v. Brady (1942) 316 U S 455; Bute v. Illinois (1948) 233 U S 640; Foster v. Illinois (1947), (1947) 332 U S 134; Grygar v. Burke (1948) 334 U S 728; Gibbs v. Burke (1949) 337 U S 773; Glaseer v. U. S. (1941) 315 U S 60; Coplan v. U. S. (1951) 191 F 2d. 249; Avery v. Alabama (1940) 308 U S 444; Hawk v. Olson (1945) 326 U S 271; House v. Mayo (1945) 324 U S 42 and Carter Illinois (1946) 329 U S 173 ref.
(d) East Pakistan Food (Control of Movement and Distri bution) Ordinance (XII of 1956), Ss. 4, 6, 11, 12 (2), 13, 14 & 18-Inconsistent with provisions of Criminal Procedure Code (V of 1898)-Provisions relating to laws pertaining to Entries 1, 7, 19, Concurrent List-Constitution of Pakistan, Fifth Schedule Assent of President not obtained Provisions ultra vires Constitution of Pakistan, Art. 110 (2)-Doctrine of incidental or ancillary encroachment of Lists-When applicable.
Held, that the East Pakistan Ordinance, XII of 1956 is, by section 3 (2) also a legislation in the field of `price control', that is in the field of the Concurrent List, namely, Entry No. 7. Therefore the penal provision in section 6, and the procedural (criminal) provisions of sections 11, 12 (2), 13, 14 and 18 can be made only under Entries 1 and 19 of the Concurrent List. Entries 91 and 92 of the Provincial List will be of no avail as they relate to matters exclusively in the Provincial List. Therefore, the East Pakistan Ordinance XII of 1956 is a legislation in the field of Concurrent List at least so far as the provisions relate to criminal law and procedure. That being so, in the absence of the assent of the President taken under Article 110 (2) of the Constitution, the provisions of Article 110 (1) will apply in respect of those provisions which relate to penal law and procedure. In these circumstances, the provisions of the impugned Ordinance, which are inconsistent with the Code of Criminal Procedure, 1908, must give way to it.
Therefore, sections 11, 12 (3), 13, 14 and 18 are void and inoperative and the provisions of the Code of Criminal Procedure will operate in their stead. The Ordinance, however, can function without those sections which are ultra vires the Code of Criminal Procedure, 1898.
Further, that if the Provincial Legislature enters the Concurrent field, it must comply with the provisions of Article 110 of the Constitution, no matter however, slight the entry may be. The entry is always permissible, but for an effective entry, Article 110 (2) is the `passport', namely, the prior assent of the President. It would be no answer to say that the entry into the field of the Concurrent List is incidental to or necessary for the effectiveness of the main subject-matter of the legislation.
The doctrine of incidental or ancillary encroachment is invoked only to resolve a difficulty posted by the conflicting claims of the mutually-exclusively Provincial and Federal Lists. Such doctrine is of no avail in respect of any legislative provision, which travels to the field of Concurrent List.
Even if "control of movement and distribution of foodstuffs" is a subject within the Provincial List, one of the important items in the provisions of the Ordinance is in respect of "price control" and this item is inextricably woven into the texture of legislation; "price control" is Entry No. 7 in the Concurrent List; therefore, the penal provision of section 6 of the Ordinance and the other pro visions with regard to penal law and procedure cannot come under Entries 91 and 92 of the Provincial List inasmuch as these entries relate to matters which are exclusively within the Provincial List; the aforesaid provisions of the Ordinance must, of necessity, come under Entries 1 and 19 of the Concurrent List.
Moreover, even if "control of movement and distribution of foodstuffs" is a matter which comes under the residuary powers of legislation given to the Provincial Legislature under Article 109, Entries 91 and 92 of the Provincial List will not be available; and one has again to fall back on Entries 1 and 19 of the Concurrent List.
Moti Ram v. Smt. Hasina Begum A I R 1953 All. 346; Zaverbhai Amidas v. State of Bombay (1954) S C A 1295; The State v. Zaverbhai Amaidas and others A I R 1953 Bom. 371; The Attorney-General of Ontario v. The Attorney-General for the Dominion of Canada (1894) A C 898; Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. P L D 1947 P C 1 and Lakhi Narayan Dass and others v, The Govevnor-General o, f India 1950 S C 102 ref:
(e) Interpretation of Statutes----Courts not to question wisdom or ethics of legislation but to investigate into its vires where impeached. .
Courts have not to question the wisdom or ethics or a legislation. Their function is to investigate into its validity when its vires is impeached and not to enquire into its propriety or ethical justification. If they are found to be valid Courts' duty is to administer it according to law.
Eshugbayi v. Officer Administering the Government of Nigeria (1931) A C 662, 670 ref.
H. S. Suhrawardy, with Naziruddin Ahmad Ataur Rahman Khan and Shahabuddin Ahmad for Petitioner.
A. K. M. Baquer, Advocate-General with Abdul Hye Chowdhury for Respondent No. 1.
Dinesh Chandra Roy with Syed Modaris Ali for Respon dents Nos. 2 and 3.
M. A. Hamid with Muhammad Fazlul Karim for Respondent No. 4.
Dates of hearing: 8th, 9th and 10th August 1956.
JUDGMENT
ISPAHANI, J.-----I have had the advantage of reading the exhaustive judgment prepared by my learned brother and I agree with him. I wish, however, to add a few words. Under the East Pakistan (Food Control of Movement and Distribution) Ordinance, 1956, being East Pakistan Ordinance XII of 1956, Special Courts manned Military Personnel were constituted to try certain kinds of offences with a view to speedy trial. Such Courts were expected to function judicially and not arbitrarily and to convict an accused only on strict and legal proof of his guilt. Of such evidence there is none in this case and it has not been proved that the prisoner committed any offence under the impugned Ordinance. His conviction and sentence, therefore, cannot be upheld.
MURSHED, J.-----This is a petition for the issue of a writ of habeas corpus or an appropriate writ or order or direction of like nature under Article 170 of the Constitution of the Islamic Republic of Pakistan.
For a proper appreciation of this case, it is necessary to set out the genesis and background of this case which are as follows: On the 9th July 1956, the Governor of East Pakistan in the execution of the powers conferred on him Article 102 of our Constitution was pleased to make and promulgate an Ordinance, which is East Pakistan Ordinance XII of 1956. This is the impugned Ordinance and is styled as the East Pakistan Food (Control of Movement and Distri bution Ordinance), 1956.
In the preamble it sets out that this Ordinance was enacted with a view to provide for powers to control the movement and distribution of foodstuffs in East Pakistan and for setting up of Courts for speedy trial of offences in relation thereto. The Ordinance casts a duty on the Provincial Government to appoint a Chief Food Administrator who will be responsible for overall control and distribution of foodstuffs in the Province and it further provides that the Provincial Government may on the recommendation of the Chief Food Administrator appoint Additional District Magistrates (Food) and Additional Sub-Divisional Magistrates (Food) and that such Magistrates shall have the powers of a Magistrate of the First Class under the Code of Criminal Pro cedure, 1898. Such Magistrates, called Special Magistrates, were to try and punish offences under the Ordinance and offences specified in the Schedule in relation to foodstuffs committed within their territorial jurisdiction. By section 4 of the Ordinance, the Provincial Government was empowered in consultation with the Chief Food Administrator to notify orders for controlling the prices of and for regulating the storage, movement, inspection and distribution of foodstuffs. The Ordinance confers upon the Special Magistrate juris diction to try offences which came within the mischief of the said Ordinance and ousts the jurisdiction of all other Courts to try such offences. It also confers on the Special Magistrate the power to punish offences in respect of the Ordinances with imprisonment for a term which may extend to 2 years or with fine or with whipping not exceeding 10 stripes or with any two of them or with all of them as to the Special Magistrate, trying cases for contravention of the Ordinance, may seem fit and proper. This Ordinance makes a substantial and widespread encroachment into the pro visions of the Code of Criminal Procedure, 1898. It lays down that the offences under the Ordinance will be tried summarily within the frame-work of the Code of Criminal Procedure although the said Code provides for such trials warrant procedure as specified in the Code. The Ordinance also ousts the jurisdiction of all Courts to hear appeals and revisional applications in respect of such trials, notwith standing the provisions of the Code of Criminal Procedure. It also provides that such provisions of the Code of Criminal Procedure as are inconsistent with the Ordinance will not apply to trials conducted thereunder. It makes offences punishable under the Ordinance cognizable and non-bailable. It also provides that no order made in exercise of any power conferred by or under the Ordinance shall be called in question in any Court. Such is the drastic nature of the Ordinance. Immediately after its promulgation the General Officer Commanding, Eastern Division, was appointed the Chief Food Administrator under the Ordinance and various Army Officers were appointed Additional District Magistrates (Food) and Sub-Divisional Magistrates (Food) and such Magistrates were also appointed as Special Magistrates. It is thus evident that by virtue of the provisions of this Ordinance, the Provincial Government embarked on a risky experiment from the point of view of the administration of justice, however expedient the other provisions of the said Ordinance might have been, in view of the food situation in the country.
The present petition is by one 'Joslemuddin Sikdar, who is a full brother of the prisoner Abdul Barik Sikdar who was held in detention in Gopalganj sub-jail, Faridpur district on and from the 17th July 1956, under an order dated the 17th July 1956, purported to be made under section 6 of the East Pakistan Food (Control of Movement and Distribution) Ordinance, 1956, East Pakistan Ordinance, XII of 1956).
In the petition various statements, allegations and submissions have been made. They may be briefly stated as follows:-
(1) That the prisoner was detained as noticed above and is still in detention;
(2) That the prisoner is a citizen of Pakistan and also President of Baram Union Board, Gopalganj, Faridpur.
(3) That Abdul Barik Sikdar, the brother of the petitioner, was arrested along with 3 others on the 17th July 1956, at about 4 a.m. at his village home at Bashunia P. O. Gopalganj, Faridpur, by some Army Officers assisted by local Ansars. He was then taken to Gopalganj Police Station at 7 a.m. the same day. From there he was taken to Mission Hostel of the Quaid-e-Azam College, Gopalganj, where the Court of the Special Magistrate under the aforesaid Ordinance was held at 2 p.m.
(4) That thereafter the said Abdul Barik Sikdar along with others were produced at about 3 p.m. before the Additional Sub-Divisional Magistrate (Food) who was appointed Special Magistrate under the said Ordinance. That it was alleged before the said Special Magistrate that the prisoner Abdul Barik Sikdar was in possession of a certain quantity of paddy.
(5) That when the prisoner was produced before the Special Magistrate, he made a prayer that he be given an opportunity to consult and be defended by a lawyer of his choice, namely, Moulvi Khondkar Shamsul Haq. That the said prayer was refused and the prisoner was unde fended. No lawyer was allowed to be present during the trial and the petitioner and those interested in the prisoner were excluded at the time of the trial.
(6) No memorandum of evidence was recorded nor was the procedure in respect of summary trials as provided for in the Code of Criminal Procedure observed.
(7) That no evidence was led to prove that the prisoner, the said Abdul Barik Sikdar, was guilty of hoarding, That the prisoner was convicted although he had committed no offence within the mischief of the Ordinance or of any law prevalent in the country. That the prisoner was sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of Rs. 400.
(8) That after the conviction of the prisoner and the sentence passed on him, the prisoner prayed for a certified copy of the order of conviction and sentence passed on him on the 17th July 1956. The said Special Magistrate refused such prayer.
It was submitted that the purported trial was illegal, void and ultra vires and that the conviction of the prisoner and the sentence passed on him were wholly without jurisdiction, illegal and void. The purported trial was conducted in violation of Article 17 (1) of the Constitution of the Islamic Republic of Pakistan and in breach of the fundamental rights of the citizens guaranteed by the Constitution.
It was also submitted that the aforesaid Ordinance was ultra vires of the said Constitution:
In these circumstances it was prayed that this Court should issue a writ of habeas corpus or an order or a direction of the like nature for the discharge of the prisoner and for setting him at liberty.
On this petition a Rule nisi was issued by this Court calling upon the respondents to show cause why a writ of habeas corpus should not issue or such order or direction be given as prayed for in the petition.
Thereupon affidavits were filed by the respondents and the records of the impeached proceeding were produced and also affidavits in reply were filed by and on behalf of the prisoner. To enable the prisoner to instruct his lawyers and to enable him to file an affidavit, this Court directed that the prisoner be transferred to the Dacca Central Jail and he is now detained there.
The prisoner, Abdul Barik Sikdar, has sworn and affidavit in which he has made certain statements and allegations, portions of which may be quoted as follows:-
Para. 2. "The Special Magistrate did not tell me what the charge against me was nor did he ever mention a word regarding 220 maunds of paddy.
Para. 3. "I had asked my cousin Abdus Sattar when I was arrested in my village at Basunia to go at once to Mvi. Khandkar Shamsul Huq, who has appeared for me in several cases before and whom I engage in all my cases and request him to defend me in Court. Later when I was in Court, an Ansar approached me and told that my brother bad asked me to ask the Magistrate to allow a lawyer to defend me. I am not quite certain whether I took the name of Mvi. Khandkar Shamsul Huq but I certainly asked for a lawyer to defend me. The Magistrate refused my prayer loudly with a strong attitude. No body was allowed to enter the room. There was no outsider, no lawyer and all those who came from my village had to stand outside behind the fencing of the Court room including my brother."
Para. 4. "That the Magistrate thereafter asked some body something of which I did not understand a word. I saw no one taking the oath. He did not take down anything in writing nor did he ask me to cross-examine the person whom he had questioned nor did he ask me about my defence nor did he ask me for my statement. All of a sudden I found that I had been convicted of something, which I did not know. I thereafter asked him for certified copies of papers but this was refused and I was taken to jail When my relatives came to see me in jail I asked them to apply for certified copy of the papers and get me released."
Para. 6. "I deny that I have hoarded any foodgrains. I am the head of my family which consists of 45 members living in the same mess. I am also the owner of 105 acres of land where both aus and aman paddy is sown."
Para. 7. "It is wholly incorrect to say that I was aware of the order printed in the Gazette of the 17th July 1956." Para. 9. "I have seen what purport to be the certified copy of the proceedings alleged to have taken place during my trial. I deny that these are the copies of the proceedings as nothing was taken down by the Special Magistrate during my presence at the time of my trial and nothing was placed on record."
One Abdus Sattar, a cousin of the prisoner has also sworn an affidavit, portions of which are quoted as follows:
Para. 1. "That I am a cousin of Abdul Barik Sikdar who was arrested from his village house Basunia at about 4 a.m on 17th July 1956.",
Para. 2. "That at the time of his arrest he asked me to engage Mvi. Khandkar Shamsul Huq, a well known and senior Muktear of Gopalganj Bar whom he always, engages in his litigations."
Para. 3. "That I approached Mvi. Khandkar Shamsul Huq at about 1 p.m. on the 17th July 1956 and informed him of the arrest of Abdul Barik Sikdar and requested him to defend him before the Court of the Army S. D. O."
Para. 4. "That Mvi. Khandkar Shamsul Huq explained to me that lawyers were not permitted by the Army S. D. O. to appear before him and told me that he would be ready to appear if the Army S. D. O. gave permission."
Para. 5. "That thereafter, I came to the Court and wanted to go inside the Court room along with others interested in Abdul Barik Sikdar but no one was allowed to enter the Court room and we had to remain outside. Then I requested an Ansar who was standing at the door to go to Abdul Bank Sikdar and to tell him that Mvi. Khandkar Shamsul Huq was ready to appear if lie got the permission and that Abdul Barik Sikdar should ask for that permission, I then came and stood on the other side of the fencing, a few cubits behind Abdul Barik Sikdar and saw the Ansar speaking to Abdul Sikdar after which Abdul Barik Sikdar asked the Army S. D. O. to allow him to be defended by a lawyer. The Army S. D. O. refused in loud and threatening voice. Then after some talks in Court I heard that Abdul Barik Sikdar had been convicted to imprisonment of 2 years and a fine of Rs. 400. Thereafter I ran to Mvi. Khandkar Shamsul Huq and told him all that had taken place and thereafter I ran to my shop at Gopalganj where I carry business of cloth, collected Rs. 400 and paid the fine on the same day. After that I saw Abdul Barik Sikdar is being taken to jail."
Para. 6. "That when I saw Abdul Barik Sikdar next day in jail he asked me to consult Mvi. Khandkar Shamsul Huq and take all the necessary steps to get him liberated. I and the members of the family were very afraid to take any step because we had all been terrorized by the Army personnel and the Army S. D. O. and we were afraid that if we took any step we will also be hauled up and punished on some pretext or other. On the pleadings, however, of Abdul Barik Sikdar, we plucked up courage and requested Mvi. Khandkar Shamsul Huq to apply for papers with urgent fees. As no copies of the proceeding were given to us 1 again approached him to file another application."
Mvi. Khandkar Shamsul Huq, a lawyer of Gopalganj, has also sworn an affidavit and has corroborated the said Abdus Sattar, cousin of the prisoner in all material particulars. Portions of his affidavit reads as follows:-
Para. 2, "That on the 17th July 1956, at about 1 p.m. Abdus Sattar, a maternal cousin of Abdul Barik Sikdar, came to me. I was then in the Muktear Library, which is situated about 100 cubits from the Court of the Special Magistrate. He informed that Abdul Barik Sikdar, whom I knew from before, as he is a regular client of mine, had been arrested at about 4 a.m. by the Army personnel and he was going to be produced before the Additional Sub-Divisional Magistrate (Food) and Special Magistrate. He told me that Abdul Barik Sikdar had asked him immediately after his arrest to inform me and that he wanted me to defend him before the said Magistrate."
Para. 3. "That as it was to my knowledge that no lawyer had been allowed to appear, in any case tried previously, and that the Army Special Magistrate had declared that he would not allow any lawyer to enter his Court room. I explained the position to him and told him that I was ready to appear and defend Abdul Barik Sikdar provided the prior permission of the Special Magistrate to that effect was obtained."
Para. 4. "That thereafter Abdus Sattar left for the Court of the Special Magistrate and came back to me at about 3-30 p.m. and told me that he could go up to the verandah of the Court room, but could not go inside, being prevented by the sentry at the door; that he had caused Abdul Barik Sikdar to be informed that he should get the permission of the Magistrate to be defended by me; that Abdul Barik Sikdar bad done so but the Magistrate had refused him permission; that thereafter, Abdul Barik Sikdar was sentenced to two years' rigorous imprisonment and a fine of Rs.…
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