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Petitioner: TOFAZZAL HUSSAIN VS Respondent: PROVINCE OF EAST PAKISTAN
P L D 1969 Dacca 589
P L D 1969 Dacca 589
Before B. A. Siddiky, Salahuldin Ahmed and A. M. Sayem, JJ
TOFAZZAL HUSSAIN ‑Petitioner
Versus
PROVINCE OF EAST PAKISTAN AND OTHERS Respondents
Petition No. 615 of 1966, decided on 8th June 1967.
Per Siddiky, J.
(a) Letters Patent (Dacca), Cl. 36‑Division Bench failing to formulate points of difference‑Reference to third Judge, neverthe less, proper.
(b) Defence of Pakistan Ordinance (XXIII of 1965), S.3(3,(iii), read with Defence of Pakistan Rules, 1965, r.52 (as amended on 16th November 1966) ‑ Forfeiture ‑ Provi sion for adjudication of forfeiture formerly not contained in r. 52 but subsequently introduced by rule‑making authority-- Contention that r. 52 as previously framed having not carried out mandate of Legislature as envisaged in S. 3 (3) (iii), Defence of Pakistan Ordinance, 1965 was void and as such wholly inoperative even after amendment ‑ Held, not tenable ‑ Proposition of law being void ab initio justified only where law is made by wholly incompetent authority.
Per Salahuddin Ahmed, J.
Rule 52 (2) is not void ab initio in the sense that the rule as to forfeiture did not exist at the time the alleged contraventions of the three prohibitory orders took place. Both in point of fact and of law the provision of forfeiture has been validly in existence since the very inception of the rules themselves. It is quite a different matter if in the absence of a contemporaneous provision for adjudication of forfeiture the liability to forfeiture was inoperative. The important point to bear in mind is the competence of the Central Government to make rule 52 (2) of the Rules. It is necessary to remember here that the well‑settled rule of construction of a statute is that one should lean in favour of its vires.
A correct reading of section 3 (3) (iii) of the Ordinance is that the Central Government is fully competent to provide for "forfeiture" as well as for "adjudication of such forfeiture." The failure to provide for the latter does not rob the Government of its competence to provide for the former. The two do not constitute an inseparable whole.
It is only in the case of a law made by a wholly incompetent authority which suffers from an inherent lack of power to enact the Law that the proposition that the law is void ab initio in the sense that it is deemed never to have existed is true.
It is only the absolute incompetence of a Legislature that cuts at the root of legislation so as to make it void ab initio.
In the present case, the mandate, if any, attached to the provision of a procedure, viz. "adjudication of such a forfeiture" already made. The failure on the part of the Central Government to carry out its obligation will not render its power to provide for forfeiture incompetent unless the two, namely, "forfeiture" and "adjudication of such forfeiture" is considered as an indivi sible whole‑which it is not.
Abul A'la Maudoodi v. Government of West Pakistan P L D 1964 S C 673 rel.
Province of East Pakistan v. Md. Mehdi Ali Khan P L D 1959 S C (Pak.) 387 ref.
(c) Defence of Pakistan Ordinance (XXIII of 1965), S. 3(3)(iii)‑ Forfeiture part of S. 3‑A piece of substantive law‑Provision for adjudication of forfeiture‑Procedure‑Interpretation of statutes.
If forfeiture is regarded as a penalty, adjudication or trial of such forfeiture is undoubtedly a matter of procedure and an omission to prescribe the procedure will not make rule 52 (2) prescribing forfeiture an entirely incompetent piece of legislation The liability to forfeiture in rule 52 (2) is a valid law although for lack of a procedure to make the said forfeiture the liability remains ineffective. "Adjudication of such forfeiture" is merely procedural in character, the absence of which will only have the effect of making the existence of the provision of forfeiture in rule 52 (2) inoperative and ineffective but cannot affect the com petence of the provision. A law may be validly made and in force although not "in actual operation".
Rule 52 (2) has made contravention of a prohibitory order made under rule 52 (1) (b) liable to forfeiture of the Press used in the making of the offensive document. The amendments merely provided how the forfeiture is to be made and, therefore, they are procedural in nature. The mere fact that the Ordinance, has directed the Central Government to provide for adjudication of forfeiture and consequently the petitioner is entitled to ask the Government to submit the order of forfeiture to adjudication will not make the provision of adjudication a substantive law.
Province of East Pakistan v. Md. Mehdi Ali Khan P L D 1959 S C (Pak.) 387 and Muhammad Afzal v. The Commissioner, Lahore Division P L D 1963 S C 401 rel.
Per Siddiky, J.
(d) Defence of Pakistan Rules, 1965, r. 52 (before and after amendment of 16‑11‑1966, read with Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 4‑Retrospective punishment --Subsequent addition of sub‑r. (4) to r. 52 (providing for forum of adjudication) does not provide for any penalty‑Sub‑r. (4) merely fills up ct lacuna‑Provision of sub‑r. (4) procedural and not substantive neither creates punishment for any violation nor a new punishment and as such not violative of Fundamental Right No. 4 Framing of penal provisions earlier and procedural provisions later does not render penal provision void or invalid‑Creation of liability different from its adjudication‑Subsequent amendment of r. 52 not being penal does not come within constitutional inhibition regarding ex post facto legislation as embodied in Fundamental Right No. 4.
Muhammad Afzal v. The Commissioner, Lahore Division P L D 1963 S C 401 ref.
Per Salahuddin Ahmed, J.
The essence of ex post facto legislation is that the particular act must be innocent at the time it was committed. Rule 52 as amended does not attach criminality to an act that was innocent at the time it was committed.
The amendments are procedural and remedial in nature and they do not make an act an offence which was not so before the amendments or that they have introduced a new penalty which was not there prior to the amendments. The amendments obviously have been made to supply an omission, namely, absence of a provision of adjudication of forfeiture, and they being reme dial and procedural in character are not bit either by Funda mental Right No. 4 or the rule against retrospectivity.
(1925) 269 U S S C R (70 Lawyers' Edn.) 170; Craies on Statute Law, 6th Edn., p. 388 and Calder v. Bull 3 Dall. 368 (1 Lawyer's Edn.) 648 ref.
Per A. M. Sayem, J. (contra)
The declaration as to forfeiture results at once in a complete deprivation of the affected person's right and title in his press. It is, therefore, a punishment. To the extent that the amend ment, by supplying the omission as to adjudication, has made the provision as to forfeiture operative, it has affected a substantive law, since it has resulted in the punishment for forfeiture being impossible for the contravention of a prohibitory order passed under sub‑rule (1) of rule 52.
The amendment does not by express words make the provi sion as to forfeiture retrospective, though subsection (7) of section 3 of the Ordinance has empowered the rule‑making authority to make any rule so as to make it retrospective not earlier than the amendment of the Ordinance. There is no com pelling reason to think that the amendment was intended to be given retrospective effect by implication. The rule‑making autho rity could not also have provided in the amendment for giving retrospective effect to the rule as to forfeiture by reason of Fundamental Right No. 4 of Constitution which has not been suspended.
Before the amendment the contravention of a prohibitory order issued, under rule 52 (1) could be punished by a sentence of imprisonment for five years or with fine or with both. Such contraventions can now be punished by the same sentence or by forfeiture, or by both. The punishment provided under rule 52, as it now stands, is thus both different from and greater than the punishment which could visit a contravention of prohibitory orders issued under rule 52 (1). It was never disputed, as it could not be, that the contravention of a prohibitory order issued under rule 52 (1) was not an offence. Such being the position, the order is not covered by the authority of any law.
Per Siddiky, J.
(e) Defence of Pakistan Ordinance (XXIII of 1965), S. 3(3)(iii) read with Defence of Pakistan Rules, 1965, r. S2 (2) & (4)‑Adju dication of forfeiture need not be done by a Court of law‑Govern ment authorised to entrust adjudication to any functionary falling within category of officers answering qualifications mentioned in sub‑r. (4).
Per Salahuddin Ahmed, J.
To hold that in the case of a contravention under rule 6 the contravention must first be proved in a Court of law before a person can be removed from a prohibited place under sub‑rule (4), is not only contrary to the obvious meaning of the rule but amounts to making the rule itself nugatory. Rule 52 (2) does not spell out any indication or direction that the contravention must first be proved in a judicial proceeding before the forfeiture can be made.
Clause (iii) is wide enough to authorise forfeiture of the Press, for, without the aid and agency of the Press, the contravention could not take place. Evidently, the Press has been used in print ing the offensive publication. An analogy of this may be found in the provisions of section 517, Code of Criminal Procedure whereunder the Court is authorised inter alia to confiscate any property regarding which any offence appears to have been com mitted or which has been used for the commission of the offence. The contention that "such contravention" in section 3(3) (iii), of the Ordinance having been made referable to the preceding clause (ii), the contravention itself must first be established in course of the trial envisaged in the latter clause (ii) before the forfeiture in clause (iii) can be ordered. This contention fails to take into consideration that, if that was the intention, there was no necessity for providing "for the adjudication of such forfeiture" in clause (iii). "Such ‑contravention" have been used by way of description only.
The contention that the Ordinance directs a prior adjudica tion of forfeiture appears to be untenable on the language of section 3 (3) (iii) itself. The sequence in which adjudication of forfeiture has been mentioned also indicates that "adjudication" is to follow "forfeiture" and not precede it, otherwise, "adjudi cation of such forfeiture" is meaningless. Adjudication has been provided for testing the validity of the order of forfeiture and there is no enormity involved in providing for adjudication to follow an order of forfeiture. There is no substance in the con tention that adjudication must be by a Court or a similar authority. Section 3 (3) (iii) of the Ordinance provides for adjudication of forfeiture whether by a Court or "any other ‑authority". "Any other authority" evidently means an authority other than a Court. Sub‑rule (4) of Rule 52 prescribes the qualifications of a Tribunal and empowers the Central Government to constitute a Tribunal of the requisite qualification by notification in the official Gazette for the purpose of referring the declaration of forfeiture under sub‑rule 52 (2) to such Tribunal for adjudication of the forfeiture. The rule of ejusdem generis does not apply to the expression "any other authority" because only "Court" is men tioned. The mention of a single species does not constitute a genus.
A comparison of the provisions of clauses (ii) and (iii) of subsection (3) of section 3 of the Ordinance shows that, although punishment by way of imprisonment or fine or both has been prescribed in clause (if), no mention of forfeiture has been made therein, while in clause (iii) "seizure, detention and forfeiture" have been provided for. This is significant and gives a clear indication that, while trial before a Court of ‑law may be in contem plation in clause (ii), merely adjudication of such forfeiture is prescribed in clause (Iii). If it was the intention of the Central Government that the forfeiture in clause (Iii) should be ordered as a result of trial contemplated in clause (ii), there was no necessity for providing for adjudication of such forfeiture in clause (iii). This distinction is also a pointer to the fact that forfeiture has not been put on the same level as a punishment by way of imprisonment or fine. Rule 52 appears to have follow ed exactly the same pattern as section 3 (3) (ii) and (iii) of the Ordinance.
Per Siddiky, J.
(f ) Defence of Pakistan Rules, 1965, r. 52 (2), (3), (4), (5) & (6) read with Defence of Pakistan Ordinance (XXIII of 1965), S. 3 (3) (iii)‑Adjudication need not precede order of forfeiture Provisions of sub‑rr. 5 & 6 sufficient safeguard against idea of prior adjudication‑Section 3 read with r. 52 provides for adjudication subsequent to declaration of cancellation.
Per Salahuddin Ahmad, J.
The order of forfeiture prior to adjudication is not unreason able in the facts and circumstances of the case. Reading Rule 52 (2) in the light of sub‑rules (3), (4), (5) and (6), it is obvious that the order of forfeiture made under Rule 52 (2) is only provisional and becomes final after the requisite adjudication has been made. In this view, "forfeiture" is not worse than mere "seizure" except perhaps as to the date of investment or divestment of title to the forfeited property. Besides, if the law is competent to provide for forfeiture prior to the adjudication, such forfeiture is legal.
Per Siddiky, J.
(g) Natural justice‑Opportunity to show cause ‑ Failure to give such opportunity not always to strike down order ‑ Person aggrieved should be given adequate opportunity to represent his case‑Ex post facto hearing constitutes sufficient compliance with rule of natural justice requiring affording of opportunity to show cause.
(1925) 269 U S S C R (70 Lawyer's Edn.) 170 ref.
Per Salahuddin Ahmed, J.
Having regard to the fact that rule 52 now provides for adjudication of forfeiture, there is no substance in the petitioner's grievance that there has been a contravention of the rule of natural justice inasmuch as the petitioner has not been given an oppor tunity to show cause against the order of forfeiture.
Per Siddiky, J.
(h) Defence of Pakistan Rules, 1965, r. 52 (before and after amendment dated 16‑I1‑1966)‑Legislation‑Mala fides‑Government after losing case in Supreme Court withdrawing its appeal and almost in same breath passing fresh order of like description (forfeiture of press) and serving same on aggrieved person in hospital‑Such action of Government, though ugly, nevertheless not by itself indicative of mala fides of Government from legal point of view.
Per Salahuddin Ahmed, J.
In the absence of any provision in Rule 52 (2) providing for adjudication of forfeiture no legal order of forfeiture could be made. The Legislature, namely, the Central Government, has now supplied the omission by providing for adjudication of for feiture and thus the impediment to the passing of a legal order of forfeiture has been removed. In such circumstances, it is difficult to hold that the impugned order of forfeiture is mala fide and passed for a collateral purpose. The fact that the amendment was made during the pendency of the appeal before the Supreme Court will not ipso facto make the impugned order of forfeiture mala fide. If the impediment to the passing of a legal order of forfeiture has been removed, there is no mala fide in passing a fresh order of forfeiture under the law for the cause.
Tofazzal Hussain v. Province of East Pakistan 18 D L R 736; Abul A'la Maudoodi v. Government of West Pakistan P L D 1963 S C 673 and Province of East Pakistan v. Md. Mehdi Ali Khan P L D 1959 S C (Pak.) 387 rel.
A. K. Brohi, Shahabuddin Ahmad, Kamal Hossain, Aminul Islam, Fariduddin Ahmad and K. S. Nabi for Petitioner.
Sh. Ghias Muhammad, Attorney‑General T. H. Khan, Assistant Government Pleader and A. W. Malik for Respondents Nos. 1‑3.
Dates of hearing: 19th December 1966, 3rd, 4th, 5th, 11th January, 3rd, 27th April and 10th May 1967.
JUDGMENT
SALAHUDDIN AHMED, J.‑On an application under Article 98 of the Constitution the petitioner obtained a Rule nisi on the 21st of November, 1966 upon the respondents to show cause inter alia why the order of forfeiture dated the 17th of November 1966 declaring the New Nation Printing Press to be forfeited to the Government and referring the declaration for, adjudication to respondent No. 4 constituted as a Tribunal under Rule 52 (4) of the Defence of Pakistan Rules, 1965, should not be declared as having been made without lawful authority and of no legal effect.
The petitioner is the Editor, Publisher, Printer and Proprietor of the Newspaper "Daily Ittefaq" and also the Proprietor and Keeper of the New Nation Printing Press. Respondent No. 1 is the Province of East Pakistan which has issued the impugned order dated the 17th of November 1966 and respondent No. 2 is the Section Officer, Home (Political) Department Government of East Pakistan who signed the impugned order and respondent No. 3 is the officer‑in‑charge Sutrapur Police Station, Dacca who led the Police party and seized the entire building being premises No. 1, Ramkrishna Mission Road, Dacca, together with its contents including various presses installed therein. Respondent No. 4 has been constituted a Tribunal to adjudicate the forfeiture made by the impugned order.
The facts leading up to the issue of the present Rule nisi may conveniently be put under two chapters and summed up as follows : Three prohibitory orders dated the 7th of April the 2nd of June and the 7th of June 1966 had been issued, one after another, by the Governor of East Pakistan under Rule 52(1)(b) of the Defence of Pakistan Rules, 1965 prohibiting the petitioner from publishing certain materials contained in the schedule attached to each of the prohibitory orders. Each one of the prohibitory orders was alleged to have been contravened by the petitioner with the result that the Governor, by his order dated the 16th of June 1966 declared the New Nation Printing Press, alleged to have been used in the making of the offensive publi cations, forfeited to the Government. The petitioner thereupon approached this Court under Article 98 of the Constitution and obtained a Rule nisi challenging the legality of the said order ‑of forfeiture. The Rule was heard and made absolute by a Special Bench of five Judges of this Court of which both of us were members. The Special Bench by its order dated the 9th August 1966 declared the order of forfeiture dated the 16th of June 1966 as without lawful authority and of no legal effect. On the prayer of the learned Advocate for the State, the operation of the order of the Court was stayed by the Special Bench for a period of two weeks to enable the State to prefer an appeal to the Supreme Court for which a certificate under Article 58 of the Constitution was granted at the same time.
On the application of the State, the Vacation Bench of the Supreme Court granted ad interim stay of the operation of the High Court's order but on account of its importance directed that the matter should be laid before the Full Court. This matter was finally heard and decided by a Full Bench of the Supreme Court on the 15th of November, 1966. The Court revoked the stay order granted by its Vacation Bench earlier and directed that the New Nation Printing Press should be restored to the petitioner. The Governor of East Pakistan, by his order dated the 16th of November 1966 withdrew the order of forfeiture dated the 16th of June 1966 and by the same order purported to restore possession of the Press to the petitioner. On the 17th November 1966 the appeal filed before the Supreme Court earlier from the order of the Special Bench of the High Court dated the 9th of August 1966 was withdrawn ex parte and thus ended the first chapter of the case.
In the meantime, the Central Government promulgated an Ordinance on the 16th of November 1966 whereby certain amendments were made in rule 52 of the Defence of Pakistan Rules, and thus commenced the second chapter. On the very next day, i. e. the 17th of November 1966, a fresh order under rule 52 (2) was passed forfeiting once again the New Nation Printing Press. It appears that on this very day, namely, the 17th of November 1966, the said order withdrawing the first order of forfeiture dated the 18th of June 1966 was served upon the petitioner and the said appeal pending before the Supreme Court was withdrawn. On the 18th of November 1966, by a notification issued therefor, respondent No. 1 constituted res pondent No. 4 a Tribunal in accordance with the newly added sub‑rule (4) of rule 52 for adjudication of the forfeiture made on the 17th of November 1966.
The relevant provisions of the defence of Pakistan Ordinance (hereinafter called the Ordinance) and the reference of Pakistan Rules, 1965 framed there under (hereinafter called the Rules) that call for consideration in this case are quoted below
Section 3(3), clauses (i), (ii) and (iii) of the Defence of Pakistan Ordinance
" 3. Power to make Rules.‑(1) , . . . .
2 . . . . .
(3) The Rules made under section (1) may further‑
(i) provide for the arrest and trial of persons contravening any of
the rules or any order made thereunder ;
(ii) provide that any contravention of, or any attempt to contravene, and any abetment of, or attempt to abet, the contravention of any of the provisons of the rules, or any order made under any such provision, shall be punishable with imprisonment for a term which may extend to seven years or with fine, or with both;
(iii) provide for the seizure, detention and forfeiture of any property in respect of which such contravention, attempt or abetment as is referred to in the preceding clause has been committed, and for the adjudication of such forfeiture whether by a Court or by any other authority; ".
Rule 52 of the Rules as it stood prior to the amendment: ‑
"52. Power to impose censorship.‑(1) The Central Govern ment may, for the purpose of ensuring the security, the public safety or the defence of Pakistan, or for securing the mainte nance of public order or the efficient conduct of military ope rations or prosecution of war, by order addressed to a printer, publisher, or editor, or to printers, publishers and editors generally,‑
(a) require that all matter, or any matter relating to a particular subject or class of subjects, shall, before being published in any document or class of documents, be submitted for scrutiny to an authority specified in the order ;
(b) prohibit or regulate the making or publishing of any document or class of documents, or of any matter relating to a particular subject or class of subjects, or the use of any press, as defined in the Press and Publications Ordinance, 1960 (XV of 1960).
(2) If any person contravenes any order made under sub rule (1) then, without prejudice to any other proceedings which may be taken against such person, the Central Government may declare to be forfeited to contravention of such order and any press, as defined in the Press and Publications Ordinance, 1960 (XV of 1960), used in the making of such document.
(3) If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both."
Rule 52 of the rule as it now stands since the amendment: ‑
"52. Power to impose censorship.‑(1) The Central Govern ment may, for the purpose of ensuring the security, the public safety or the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, by order addressed to a printer, publisher or editor, or to printers, publishers and editors generally,‑
(a) require that all matter, or any matter relating to a particular subject or class of subjects, shall, before being published in any document or class of documents, be submitted for scrutiny to an authority specified in the order ;
(b) prohibit or regulate the making or publishing of any document or class of documents, or of any matter relating to a particular subject or class of subjects, or the use of any press as defined in the Press and Publications Ordinance, 1960 (XV of 1960).
(2) If any person contravenes any order made under sub rule (1) then, without prejudice to any other proceedings which may be taken against such person, the Central Government may declare to be forfeited to it every copy of any document published or made in contravention of such order and any press, as defined in the Press and Publications Ordinance, 1960 (XV of 1960) used in the making of such document.
(3) Where any document or…
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