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Petitioner: TOFAZZAL HOSSAIN VS Respondent: THIS PROVINCE OF EAST PAKISTANHonorable Justice B. A. SiddikyA. K. Brohi,A. W. Mallik
1968 P Cr
1968 P Cr. L J 734
[Dacca]
Before B. A. Siddiky, .1
TOFAZZAL HOSSAIN-Petitioner
Versus
THIS PROVINCE OF EAST PAKISTAN AND OTHERS-Respondents
Petition No. 615 of 1966, decided on 8th June 1967.
(a) Letters Patent (Dacca), cl. 36-Reference to third Judge Non-formulation of points of difference between dissenting Judges Does not affect jurisdiction of third Judge to hear case.
(b) Defence of Pakistan Ordinance (XXlll of 1965), S. 3(3)(iii)-Provision relating to forfeiture and adjudication contained in S. 3(3)(iii)---Not a single piece of substantive law Forfeiture part of cl. (iii)-A piece of substantive law--Part of cl. (iii) relating to adjudication of forfeiture -A procedural law.
(c) Defence of Pakistan Rules, 1965, r. 52 as amended in 1966 read with Constitution of Pakistan(1962), Art. 6, Fundamental Right No. 4- Rule 52 making provision for forfeiture of property for contravention of order under sub-rule (1) but making no provision, for adjudication-Lacuna subsequently filled up providing forum for adjudication-Such added provision, procedural, not substantive Not a penalty provision-Sub-rule (4), thus newly added, neither creates punishment for violation of order nor a new punishment-Forfeiture of property for committing offence when new rule was not introduced-Not violative of provisions of Fundamental Right No. 4. . (d) Interpretation of statutes- Law void ab initio only, when made by authority sufering from lack of power to make law--Law inoperative for defects other than incompetence of Legislature May be inapplicable to frets of particular case but nevertheless not void ab initio.
12 D L R 1959 S C (Pak.' 100 (sic); Province of East Pakistan v. Mehdi Ali Khan P l., D 1959 S C (Pak.) 387 and Muhammad Afzal v. Commissioner, Lahore Division P L D 1963 S' C 401 ref.
(e) Interpretation of statutes-Creation of liability not same as its adjudication.
(f) Interpretation of statutes-Accident of piecemeal legisla tion (making of rules) as long as within competence of Government-Does not render legislation invalid-Legislature empowered to create offence also empowered to create forum or procedure for trial-Creation of penal provision earlier than procedure for adjudication-Does not render penal provision void or invalid Defence of Pakistan Ordinance (XXIII of 1965), S. 3 (3) (iii) and Defence of Pakistan Rules, 1965, r. 5 (1) (4).
Section 3(3) of the Ordinance confers power on the Central Government to legislate on certain subjects. So long the legislation (making of the Rules) is within the competence of the Government the accident that the Government legislate piecemeal on various subjects does not render invalid legislation made within its competence, just because legislation on another subject even though alike was made later. When a Legislature is empowered to create offences and to make certain omissions punishable and is also empowered to create forum or provide for procedure for trial of that offence or omission the mere fact that the penal provisions creating offences were made earlier and the procedural provisions including creation of forum was made later will not render the penal provision void or invalid. Penal provision creates liability for punishment, which is incurred as soon as the act or omission occurs after the enforcement of that penal provision. The forum created for adjudication of such liability subsequently will not detract from validity of the penal provision itself. On the contrary, a subsequently created forum will be competent to adjudicate upon liabilities incurred before the law creating the forum:
(g) Defence of Pakistan Rules, (1965) r. 52(2) & (4)-Order of forfeiture, held by Court to be ineffective for non-existence of provision for adjudication as contemplated by Parent Ordinance,-- .Vo decision that no offence was committed-Lacuna filed up by subsequently making provision for adjudication-Action under rule permissible.
(h) Defence of Pakistan Rules, 1965, r. 52(4) read with Defence of Pakistan Ordinance, 1965, S.3(3)(iii)-Adjudication of forfeiture need not be done by an existing Court of law-Government can constitute any person as authority for adjudication.
(i) Defence of Pakistan Rules, 1965, r. 52(2), (4), (5) & (6) read with Defence of Pakistan Ordinance (XXIII of 1965), S-3 (3)(iii) and Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 4-Expose facto legislation--Natural justice--Adjudica tion contemplated by sub-rule (4) of Defence of Pakistan Rules, 1965, and section 3(3)(iii) of Defence of Pakistan Ordinance, 1965 Subsequent to declaration of cancellation-Provisions of sub rules (5) and (6) of rule 52, sufficient safeguards against idea of prior adjudication--Serb-rules (5) and (6) provide adequate opportu nity to represent case -Expost facto hearing constitutes sufficient compliance with-rule of natural justice.
196 U S 319; A 1 R 1951 Pat. 333; Abdur Rashid v. Pakistan P L D 1962 S C 42 and Abdul Ala Moududi v. Government of West Pakistan P L D 1964 S C 673 ref.
(j) Defence of Pakistan Rules, 1965, r. 52(2)-Government can forfeit either the press or the printed material or both as it chooses.
(k) Evidence Act (I of 1812), S. 114-Presumption---Mala fides-Actions loosely termed mala fide--Not necessarily so from legal point of view.
A. K. Brohi, Dr. Kamal Hossain, Md. Humayun Kabir Chowdhury, Mozammel Haque Khan and K. S. Nabi for Petitioner.
S. H. Ghias Ahmad, Attorney-gencral, Md. T. H. Khan and
A. W. Mallik for Respondents Nos. 1 to 3.
Dates of bearing : 3rd. 27th April and 10th May 1967
JUDGMENT
This case has come before me under clause 36 of the Letters Patent on a difference of opinion between two learned Judges of this Court who heard the application under Article 98 of the Con stitution of the Islamic Republic of Pakistan. One of the learned Judges, Salahuddin Ahmed, J. discharged the Rule whereas the other learned Judge Sayem, J. made the Rule absolute.
Briefly stated the facts of the case are as follows; The petitioner Tofazzal Hossain is the Editor, Publisher, Printer and Proprietor of the newspaper 'Ittefaq' and also the Proprietor and keeper of tha New Nation Printing Press where the said newspaper used to be printed. The petitioner was served with three prohibitory orders dated 7th April 1966, tad June 1966 and 7th June 1966 by the respondent No. 1, the Province of East Pakistan under Rule 52 (1) (b) of the Defence of Pakistan Rules, 1965 (hereinafter referred to as the Rules) prohibiting him from publishing certain news items, views and comments in the said daily 'lttefaq'. These prohibitory orders have been annexed to the petition and marked as Annexure C, C (1) and C (2) respectively. On the 16th June 1966 the respon dent No. 1 passed an order of forfeiture of the New Nation Printing Press of the petitioner under rule 52(2) of the Rules for alleged violation of the said three prohibitory orders. The petitioner at about the same time was also taken into custody under rule 32 of the Rules. The petitioner's son Moinul Hossain, who is also the constituted attorney of the petitioner, made an application to this Court under Article 98 of the Constitution and obtained a Rule nisi. The matter thereafter was placed before a Special .Bench f five Judges for disposal. The said Special Bench after hearing the parties made the Rule absolute and allowed the petition of the petitioner on the ground that there being no provision for adjudication of the forfeiture in rule 52 (2) of the Rules as contemplated by clause (iii) of subsection (3) of section 3 of the Defence of Pakistan Ordinance the order of forfeiture was bad in law. The Province of East Pakistan prayed for stay of the operation of the said order of the Special Bench to enable it to file an appeal to the Supreme Court and two weeks' time was granted by the Special Bench. The Province of East Pakistan tiled an appeal within time and obtained an order of stay from the Vacation Bench of the Supreme Court for a further period. Thereafter the Full Bench of the Supreme Court on 15-11-66 took up the stay matter and discharged the Rule staying operation of the order of the Special Bench of this Court and directed restoration of the Press to the petitioner. On the 16th of November . 1966 the Government of Pakistan made certain amendments to rule 52 of the Rules. On the same date, i.e. 16th November 1866 the Governor of East Pakistan by an order withdrew the order of forfeiture and by the same order purported to restore possession of the Press to the petitioner. On the 17th of November 1966 the appeal filed by the Province of East Pakistan in the Supreme Court was with drawn and on the same date a fresh order of forfeiture was promulgated by the Governor of East Pakistan in respect of the New Nation Printing Press of the petitioner upon the self-same charge on which the order of forfeiture dated 16th June 1966 was passed. This fresh order of forfeiture was served on the petitioner in the hospital where he was taken for treatment, in the morning of 17th November, 1966 at about 9 a.m. On the following day, the 18th November 1966 the Government of East Pakistan by a notification in the official Gazette constituted Respondent No. 4, a Tribunal, in accordance with the provisions of the newly-added sub-rule (4) of rule 52 of the Rules for adjudication of the forfeiture made on the 17th November 1966.
On 21st November 1966 the petitioner through his son and constituted attorney Moinul Hossain moved this Court under Article 98 of the Constitution challenging the validity of the order of forfeiture dated 17th November 1966 and obtained the present Rule nisi thereon. The Rule came up for hearing before a Division Bench of this Court composed of Salahuddin Ahmed and Sayem, JJ. The two learned Judges passed differing orders in respect of the Rule, as already observed, resulting in the matter being placed before me under clause 36 of the Letters Patent as con templated by rule 12 of the Rules of the High Court of Judicature for East Pakistan in respect of hearing of writ petitions.
Mr. Brohi appeared for the petitioner whereas the learn attorney-General of Pakistan appeared for the respondents.
On the second day of the hearing when the learned Attorney general was addressing the Court, he raised a point about my jurisdiction to hear this case under clause 36 of the Letters Patent on the ground that a proper reference has not been made for hearing of the matter by a third Judge.. The point raised b the learned Attorney-General was that the two learned Judges of the Division Bench had not formulated the point or points of difference between them to be decided by a third Judge. Mr.1 Brohi agreed with the learned Attorney-General and since both the learned counsels had to leave Dacca on that very day or on the following day 1 adjourned this matter for further hearing on the point raised. When the matter was taken up for farther hearing, both the learned Attorney-General and Mr. Brohi gave up the point of my jurisdiction and concluded their argument on merits of the case. 1, therefore, need not go into the details of the question of my jurisdiction to hear the matter under clause 36 of the Letters Patent for non-formulation of the points by the learned Judges of the Division Bench. All that 1 need to say here is that there is no substance in the contention of the learned Attorney-General on this point.
Before proceeding further t propose to quote below both the unamended and amended provisions of rule 52 of the Rules for proper understanding of the arguments of the learned Advocates for the parties.
Rule 52 of the Rules prior to the amendment of the 16th November 1966 were as follows:--
"52. Power to impose censorship________(1) The Central Govern ment tray, for the purpose of ensuring the security, the public safety or the defense 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 publish ed 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 ref 1960).
(Z) 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 (XX 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." After the amendment of 16th November 1966 the said Rule stand as follows :
" 52. Power to impose censorship.-Al) The Central l government 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 sear, try order addressed to a printer, publisher or editor, or to printer, publishers and editors generally-- _
(a) require that all matter, or any matter relating it) a parti 4alar 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 arty 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 tae Press and Publications Ordinance, 1960 (Xv of 1x60)
(2). If any person contravenes any order made under 'sub.' rule (1), then, without prejudice to any other proceedings which way be taken against such person, the Central Government may declare to be forfeited to it every copy of any document publish ed or made in contravention of such order and any press, as defined in the Press and Publications Ordinance, 1960 (XV of19601), used in the making of such document; and, if the docu ments so forfeited is a newspaper, the Central Government may also cancel the declaration made and subscribed in respect of 3iacl newspaper under section 7 of that Ordinance.
(3) Where airy document or press has been declared to be for feinted to the Central government under sub-rule (2), any Police Officer or any other officer authorised by the Central Government to this behalf may seize any copy of such document wherever found or such press arid may, for the -purpose of such seizure, enter upon and search any premises whereon or wherein such document or copy thereof is or is reasonably suspected to be, or such press is situate.
(4) Where a declaration of forfeiture under sub-rule s,2) hits been made, the Central Government shall, by notification in the Official Gazette, constitute a Tribunal consisting of a person who is, or has been a Sessions Judge or an Additional Sessions Judge, or Assistant Sessions Judge or a District Magistrate, of an Additional District Magistrate, and has not retired from Government service, and refer the declaration to such Tribunal for the adjudication of the forfeiture
(5) Upon, a reference made to it under sub-rule: (4), the Tribunal shall, after considering the materials placed before it by and calling for such information as it may require from the authority making the declaration and the person affected thereby and giving the parties and opportunity of being heard, decide whether there has been any contravention of an order made under sub-rule (1) to justify the declaration.
(6) The declaration under sub-rule (2) shall stand cancelled if the Tribunal decides that there has been no contravention of an order under sub-rule (1) to justify the declaration.
(7) 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
It tray be noted that the amendment of 10th November 1966 did not affect the provision of sub-rule (1) of rule 52.
It will be seen that in sub-rule (2) of rule 52 of the Rules certain additions were made which relate to the cancellation of declaration of a newspaper or journal which is guilty of contravention of any prohibitory order made tinder sub-rule (1) of third rule. Sub-rule (3) as it stood prior to the amendment was deleted and a new sub-rule (3) was substituted in its place. Pour more sub rules numbering (4), (5), (6) and (7) were added to rule 52. The newly-added sub-rule (4) has provided for constitution of a Tribunal to adjudicate upon the order of forfeiture made under sub-rule (2), The newly-added sub-rule (5) provides for consideration of materials by the Tribunal placed before it by the parties and for obtaining information from the authority making the declaration of forfeiture and the person affected thereby and also provided for opportunity to the parties of being heard for his decision as to whether there has been a contravention of an order made under sub-rule (1) to justify the declaration of forfeiture. Sub-rule (6) thereof provides that if the Tribunal decides that there has been no contravention of any prohibitory order by the party against whom an order under sub-rule (1) has been made then the declaration of forfeiture made under sub-rule (2) shall stand cancelled. The last added sub-rule, namely, sub-rule (7) provides for punishment of a person who contravenes any order made under this rule.
The power to frame rule 52 for the subjects mentioned there in is to be found in subsection (3) of section 3 of the Defence of Pakistan Ordinance, 1965 the parent law under which the rules were framed and promulgated the Special Bench by its judgment dated 9-3-1966 held that the Legislature had the power to legislate am the subject and- that rule 3 (3) of the Ordinance was a valid piece of legislation Further the Special Bench did not hold that rule 52(2) was void or ultra tires the Ordinance.
Mr. Brohi canvassed a number of points before me in support of the petitioner s case. But of these Mr. 13rohi laid emphasis on the point of validity of rule 52 (2),
In prefacing his argument on the point of validity of rule 52(2) Mr. Brohi contended that the Special Bench did not strike down the order of forfeiture dated 16th June 1966 on its own defects but it did so on the foundation of it. According to Mr. Brohi, rule 52 qua forfeiture was incompetently enacted. His submissions were that initially rule 52 was incompetently enacted. According to Mr. Brohi the essence of the power of forfeiture as provided for in sub-rule (2) of rule 52 is based on the very important proviso contained in clause (iii) of subsection (3) of section 3 of the Ordinance that is, that, the sub-rule must also contain the provision for adjudication or, in other words, if the Rule-making Authority has not provided for adjudication in sub rule (2) of rule 52 wherein the power for forfeiture has been provided for as contemplated by clause (iii). of subsection (3) of section 3 of the Ordinance then the sub-rule has not been latterly enacted and as such it cannot have any effect at any point of time. The rule-maker having not carried out the mandate of the Legislature in its fullness in framing rule 52(2) it must be held to a void piece of legislation, or, in other words, Mr. Brohi made it clear that because there was no provision for adjudication in the original rule 52(2) it should be considered to be honest in the eye of law or void ab initio and as such wholly inoperative even after amendment as there could not be an amendment to a non-existent law. I regret, I cannot agree with Mr. Brohi ou this submission. Once in a case where the law is made by a wholly incompetent authority because it suffers from an inherent lack of power to make the law, the proposition that the law is void ab initio can be justified. In such a case the law will be deemed not to have ever existed on the statute book, but where the Legislature has competence to make the law, the law cannot be said to be void ab initio. In the present case the Legislature had the competence to make the rule, All that) can be said is that the Legislature has not, in the sub-rule (2) provided for adjudication of the forfeiture where for the rule cannot be applied to a case of forfeiture until the provision for adjudication is incorporated in it. And that is the decision of the majority Judges of the Special Bench. Before a law is struck down the Court must be satisfied that there is inherent want of~ competence in the Legislature, otherwise the law cannot be said to be void ab initio. That is the view expressed by my Lord the present Chief Justice of the Supreme Court, Cornelius, C. J., as he then was. in Province of East Pakistan v. Mehdi Ali Khan (P L D 109 S C (Pak.) 3 87). It may be that under certain circumstances a valid law or a law validly made by a competent authority may not be operative for certain defects in the law itself other than lack of competency of the legis lature. In such a case, the law may not be applicable to the facts of a particular case, but that will not make the law void ab initio. This has been the view of our Supreme Court as is found in the case reported in 12 D L R 1959 S C 100 (sic). If the law is void ab initio then it requires re-enactment. Such is not the position in the present case. A very illuminating discussion on this topic is to be found in the judgment of Munir, C. J., in the case of Province of East Pakistan v. Mehdi Ali Khan and i most respectfully agree with the same which is also binding on me. I may also in this connection refer to another decision of the Supreme Court, reported in Muhammad Afzal v. Com missioner of Lahore Division (P L D.1963 S C.40).
According to Mr. Brohi, clause (iii) of subsection (3) of section 3 must be read as a whole and must be construed to be a single piece of legislation wherein both forfeiture and adjudication are so linked together that one cannot be separated from the other. The whole thing, according to Mr. Brohi, is a single substantive piece of legislation and he would not concede that the adjudication part of it is a procedural one. I cannot agree with Mr. Brohi that both the forfeiture and the adjudication part of section 3(3) (iii) are. a single piece of substantive law. Forfeiture part of it is undoubtedly a piece of substantive law. But adjudication of forfeiture, in my opinion, is undoubtedly procedural. If a person contravenes any order passed under rule 52(1)1 then ht; may face several penalties. Under sub-rule (2) the paper in which the offending article is published in contravention of the order 'may be forfeited and or the press which issued for making the document may be forfeited and the declaration of the paper may also be cancelled- Cinder sub-rule (7) the person contravening the order may be sentenced to imprisonment which may extend to 5 years or with fine or, with both. If a person contravening the order under sub-rule (1) is prosecuted then he must be prosecuted before a Court of haw and the procedural law as is applicable at the tune must be followed for trying hint. Similarly if the punishment imposed for violation of any order made under sub-rule (1) is forfeiture of 'a property in respect of which a contravention has been made then a procedure for that is contemplated by clause (iii) of subsection (3) of section 3 of the Ordinance which is adjudication by a Court or by any other authority. This provision for adjudication, therefore, is undoubtedly a procedural one.
In the context of his argument that both forfeiture and adjudication are parts of a single piece of substantive law, Mr. Brohi contended that the amendment of 16th November, 1966 by which the provision of adjudication was added to rule 52 by the insertion of sub-rule (4) is alt ex post facto legislation. He submitted that the alleged offence or offences for violation of three prohibitory orders having been committed by his client prior to the coming into being of sub-rule (4) of rule 52, the whole of sub-rule (2) and sub-rule (4) of the said rule, or for that matter, the entire rule 52 is hit by the provisions of Fundamental Right No. 4 of our Constitution. Fundamental Right No. 4 of the Constitution provides:-
"No law shall authorize the punishment of a person
(a) for an act or omission that was not punishable by law at the time of the act…
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