| Citation(s) |
|---|
| 1959 SLG 4419 = 1959 SLD 4419 = 1959 PLD 594 |
WEST PAKISTAN, KARACHI
Criminal Reference No. 242 of 1958, decided on 27th January 1959.
Presented By: B. Z. Kaikaus, Rahimbux P. Munshi and Qadeeruddin Ahmad, JJ
Qaseemud-Din v. The Province of West Pakistan P L D 1959 Lah. 76 ; Crown v. Haveli P L D 1949 Lah. 550 ; Maulvi Tamiz ud-Din Ahmad v. The Province of East Bengal P L D 1949 Dacca I and In re Anukul Chandra A I R 1933 Cal. 278 ref. Ikhlas Ahmad v. Noorun Nabi Ahmad P L D 1958 Kar. 283 dissented from. (Cases referred to in orders of reference) : In re Anukul Chandra A I R 1933 Cal. 278 ; United Provinces v. Mst. Atiqa Begum A I R 1941 F C 16 ; J. P. Das Gupta and another v. The Province of West Bengal A I R 1949 Cal. l ; Punjab Province v. Malik Khizar Hayat Khan Tiwana P L D 1956 F C 200 and Benoari Lai's case A I R 1945 P C 48. (Before D. B.) Attorney-General and Nasiruddin for the State. Shakoor A. Munshi for Petitioners. (Before F. B.) Abdul Shakoor Munshi for Petitioners. Abdul Qadir Sh., A. A.-G. for
Respondent.
Criminal Reference No. 242 of 1958, decided on 27th January 1959.
Presented By: B. Z. Kaikaus, Rahimbux P. Munshi and Qadeeruddin Ahmad, JJ
Qaseemud-Din v. The Province of West Pakistan P L D 1959 Lah. 76 ; Crown v. Haveli P L D 1949 Lah. 550 ; Maulvi Tamiz ud-Din Ahmad v. The Province of East Bengal P L D 1949 Dacca I and In re Anukul Chandra A I R 1933 Cal. 278 ref. Ikhlas Ahmad v. Noorun Nabi Ahmad P L D 1958 Kar. 283 dissented from. (Cases referred to in orders of reference) : In re Anukul Chandra A I R 1933 Cal. 278 ; United Provinces v. Mst. Atiqa Begum A I R 1941 F C 16 ; J. P. Das Gupta and another v. The Province of West Bengal A I R 1949 Cal. l ; Punjab Province v. Malik Khizar Hayat Khan Tiwana P L D 1956 F C 200 and Benoari Lai's case A I R 1945 P C 48. (Before D. B.) Attorney-General and Nasiruddin for the State. Shakoor A. Munshi for Petitioners. (Before F. B.) Abdul Shakoor Munshi for Petitioners. Abdul Qadir Sh., A. A.-G. for
Respondent.
TIRATHMAL and others-Petitioners
VERSUS
THE STATE-Respondent
Law: Constitution of Pakistan (1956)
Section: 102(2)
(Referred to F. B. by D. B. consisting of Abdul Hamid and Qadeeruddin Ahmad, JJ.) Constitution of Pakistan (1956)----- -----Art. 102-Ordinance expiring under cl. (2) of Art. 102-No bar to re-enactment of provisions of Ordinance though there is technical bar against continuing its life --West Pakistan Foodstuffs (Control) Ordinance (I of 1957) (Promulgated by President) re-enacted. by West Pakistan Foodstuffs (Control) Ordinance (XI of 1957) (Promulgated by Governor) West Pakistan Paddy and Rice Control Order, 1957-Validity. Held, (by the Full Bench): (Per Kaikaus, J.) that there M no bar to the re-enactment of the provisions of an Ordinance though there is a technical bar to an Ordinance making provisions for continuing the life of an expiring Ordinance. The life of an Ordinance cannot be extended because, when the law says an Ordinance shall cease to operate, the Governor cannot, by another Ordinance, say "it shall continue". But this has no application to a case of re-enactment of the provisions of an expiring Ordinance by another Ordinance, whether with or without an interval between the two Ordinances. A provision as to the expiry of an Ordinance does not necessarily imply the absence of power (in the authority promulgating the Ordinance) to promulgate another Ordinance with the same or similar context. If it was present to the minds of those who framed the Con stitution that the Governor would not be entitled to re-enact an Ordinance there was no reason why they should not expressly have said so. Under Article 71 (7) of the Constitution, the Governor was bound to act, while promulgating an Ordinance, on the advice of the Cabinet. Although apparently the power of promulgating an Ordinance vests in the Governor, the effect of Article 71 (7) is that it vests in the Cabinet. If the Cabinet wants the Governor to promulgate a particular Ordinance he is bound to promulgate it, and as explained in Qaseemud-Din v. The Province of West Pakistan P L D 1959 Lah. 76 he cannot promulgate an Ordinance at all unless requested by the Cabinet, for the obligation to act on advice implies, in the circumstances, an…