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Petition No. 615 of 1966, decided on 8th June 1967.

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.

, 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.

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.

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.

Creation of liability not same as its adjudication.

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:

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.

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.

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.

, r. 52(2)-Government can forfeit either the press or the printed material or both as it chooses.

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

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 10^th 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 or omission; or

(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed."

The argument of Mr. Brohi that adjudication part of clause (iii) of subsection (3) of section 3 of the Ordinance being a substantive piece of legislation and. this not being there initially in rule. 52 the addition of it on 17-11-1966 after the offence is committed by his client in April, May and June 1966 must be held to be in violation of Right No. 4 of the Constitution and as such must be struck down. It is rather difficult for me to concede to the argument of Mr. Brohi. in the view that I take of the provision of adjudication in clause (iii) of subsection (3)-of section 3 of the Ordinance. The offence was created on the 6th of September 1965, when sub-rule (2) of rule 52 was promulgated, i.e, forfeiture of a property in respect of which contravention has been made in violation of the order made under sub-rule (1) of rule 52 was provided for. In the provision of adjudication made in sub-rule (4 of rule 52 by amendment of 16th November 1966 no penalty has been provided for. Only the lacuna that was there in rule 52 (2), that is, want of provision of the adjudication has been tilled up. Rather, it can be said that the forum has been provided for adjudicating the declaration of forfeiture. This, therefore, must be held to be, a procedural provision and not a. substantive one. As I have already observed, rule 52 having been validly legislated where in the punishment for contravention of order made under rule 52(1) has been provided for it cannot be said that the provision made under sub-rule (4) on 16-11-1966 has either created punishment for the violation or a stew punishment for it and as such is viola tive of Right No. 4 of the Fundamental Rights. 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 :or procedure for trial of that offence of 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 r or invalid. Penal provision creates liability for punishment, which is incurred as soon as the act or omission occurs after the enforce ment of that penal provision. The forum created for adjudication of such liability subsequently will not detract front 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. In the instant case the liability to punishment was incurred as soon its the violation of the prohibitory orders took place under the valid provisions of sub rules (1) and (2) of Rule 52. But no punishment then could be awarded as no forum for it was created by rule 52(2). It is one thing to create a liability and it is wholly another thing to adjudicate upon it. Decision of our Supreme Court in the case of Abdul Moula Bepari v. Tire State (1 2 D L R 1960 S C 100 (sic), is an authority on the point.

The offence was created on the 6th of September 1965 by sub-rule (2) of rule 52 and in the present case it was alleged to have been committed in April, May or June 1966 and therefore, there can be no difficulty in holding that there was a )oar existing from before the alleged omission of the offence. Whether punishment could be awarded under it after the commission there of in June 1966 is a matter entirely different. The Special Bench held that the declaration for forfeiture could not be allowed to take effect as no provision for adjudication was made in the said rule as contemplated by section 3(3)(iii) of the Ordinance. It never held that there was no offence created by rule 52(2) (as it t then stood) and as such the alleged violation of orders of the Governor did not constitute an offence. The moment the lacuna I filled up, that is, provision is made for adjudication of declaration of forfeiture in rule 51, that defect in the law, is cured arid action can be takers tinder the said rule.

In answer to Mr. Brohi s contention of ex post facto legislation the Learned Attorney-General submitted that the amendment in Rule 52 of the Rules, is of a remedial nature involving also a jurisdictional aspect. Since it is not penal, it does not come within the Constitutional inhibition regarding 'ex Post facto legislation as embodied in fundamental Right d of the Constitution, especially when the amendment operates to the advantage of the petitioner by providing a remedial forum for adjudication. In support of his contention, the learned Attorney- General relied on a decision of the United States Supreme Court reported in 196 U S 319. Further the learned Attorney- General submitted that treating the amendment in rule 52 of the Rules, as supplying an omission, the, new provision will relate back to the time of the original rule. Such a construction is not hit by the rule against ex post facto legislation, which restrain legisla tive action and not judicial construction and in support relied on the decisions reported is A I R 1951 Pat. 333 and to PLD 1962 S C 42 at page 53.

For the reason-, stated, I find no substance in Mr. Bruhi's contention that Rule 52 as amended on 16-11-1966 is violative of the provisions of right 4 of the Fundamental Rights embodied in the Constitution and as such V reject the same.

Mr. Brohi next contended that a property which relates to a contravention of any order Under the Rules cannot be forfeited without the aid of the Court. This submission of Mr. Brohi is on the wordings of clause (iii) of subsection (3) of section 3 of the Ordinance. His contention has been that since you cannot punish a man for any contravention of an Order under sub-rule (i) of Rule 52 by sending him to jail without the aid of the Court, you cannot also penailise him by forfeiture of his property related to the contravention without the aid of a Court of law. Further in this connection Mr. Brohi submitted that any other authority mentioned in clause (iii) of subsection (3) of section 3 must mean an authority in existence and that must be a judicial authority. That authority cannot be created for the purpose of a particular case as has been done in the present. one. In the present case, one Mr. Abul Khair, Chairman of the Dacca Improvement Trust has been appointed the Tribunal for adjudicating the forfeiture of the petitioner's press. Invoking the powers of clause (iii) of subsection (3) of section 3 the respondent No. 1 has framed sub-rule (4) of rule 52. wherein it has been provided that the Tribunal may be constituted by a person who is, or has been a Sessions Judge or an Additional Sessions Judge, or an Assistant Sessions Judge, or a District Magistrate, or an Additional District Magistrate, and has not retired from the Government service. It is not controverted that Mr. Abul Khair, respondent No. 4 has been a District Magistrate and is still in Government ser% toe. Unless it can be said that sub-rule (4) has been framed in violation of clause (iii) of subsection (3) of section 3 of the Ordinance, 1 find no scope for challenging the constitution of the Tribunal for adjudication with Mr. Abul Khair, respondent No. 4. Reading the law, as it stands, that is, clause (iii) of subsection (3) of section 3 of the Ordinance, I cannot persuade myself to interpret at in the light Mr. Brohi wanted me to do, i.e. the adjudication or the forfeiture must be done by a Court of law, and that too an existing one and not by any other authority, nor can I agree with Mr. Brohi that Government is not empowered under clause (iii) of subsection (3) of section 3 to constitute an authority as contemplated by the last phrase of the said clause (iii) of sub section (3) of section 3 for adjudicating the forfeiture.

The learned Attorney-General's reply to this point was that the word "authority" as used in section 3 of the Ordinance and rule 52 of the Rules, which can be entrusted with adjudication, includes any functionary authorised in that behalf and the Court is precluded from investigating or questioning the need or expediency for a rule under the Defence of Pakistan. Ordinance. There is substance in the first part of the learned Attorney-General's submission. Whether the Court can investigate or question the need or expediency for the rule or not under the Defence of Pakistan Ordinance is a question which need not be answered because on a plain reading of section 3(3)(iii) of the Ordinance I have taken the view that the Government is authorised under the law to entrust the adjudication to any functionary answering the qualifications mentioned in sub-rule (4) of rule 52. Therefore the criticism of Mr. Brohi that in the present case it is an appeal from Caesar to Caesar is not tenable in law. Thus, I find no substance in this contention of Mr. Brohi either.

The next argument of Mr. Brohi was that the adjudication must be before the order of forfeiture is passed. Such an in terpretation becomes difficult on a plain and simple reading of sub rule (2) of rule 52 or for that matter clause (iii) of subsection (3 of section 3 of the Ordinance. The provisions made in sub-rules (5 and (6) of rule 52 of the Rules are, to my opinion, sufficient safe guard against the idea of prior adjudication. My reading of the provisions of section 3 and rule 52 is that the adjudication is subsequent to declaration of cancellation. Such reading is rather consistent with the provisions of law.

The next point raised by Mr. Brohi was that the jurisdiction to forfeit given to the executive authority by the Rules must relate to the property in respect of which the offence is committed. In the present case, according to Mr. Brohi if his client has at all committed an offence he has committed the same by publishing certain prohibited materials in the 'Ittefaq' and copies of the issues of the Ittefaq' in which those materials were published could and should have been forfeited and not the Press on which the said paper or the said issues of the 'Ittefaq' were published. Answer to this argument of Mr. Brohi is to be found in sub-rule (2) of rule 52 itself. It is clearly written there that the Government may declare any press used in the making of a document, in violation of the prohibitory order, to be forfeited to it. It is clear that it needs no interpretation. The Government can in a case of this nature choose either to forfeit the paper or the paper and the press in which the same is printed or the press and not the paper. There is no limitation to the power of the Government in doing any of these things. In the present case, the Government has chosen to forfeit the press in which the offending articles were printed. There is no doubt that a very severe punishment has been inflicted upon the petitioner but I, sitting here, cannot pass any opinion on this action of the Government, unless, I find that this forfeiture is outside the scope of the law. I would, therefore, reject this contention of Mr. Brohi. In this connection, Mr. Brohi also argued that the embargo was on publication of certain materials but not on the press. But in view of the language used in sub-rule (2) of rule 52 to which I have just referred and on which I have given my observation, I do not think that I need further dilate on the point.

Mr. Brohi then took up the point of principles of natural justice. According to him, his client should have been given an opportunity, to explain his conduct or to show cause as to whether he has violated the prohibitory orders or not prior to the order of declaration of forfeiture was made by the Government. The Government having not done so, the impugned order is also hit by the principles of natural justice and as such should be struck down. Sitting in the Special Bench I have already decided this point against the petitioner and I find no reason in the present Rule to change my view. There have been cases where opportunity to show cause were given after passing of the punitive orders. I n such cases Courts have not struck down the orders because prior opportunities were not given to show cause. What is required by the rule of natural justice is that the offender should be given adequate opportunity to represent his case. If any authority is needed on the point I may cite the case of Abul Ala Moududi (PLD1964SC673). In any case ex post facto hearing constitutes sufficient compliance with the rule of natural justice and the same has received recognition in Rule 52 as amended. Thus both on law and in facts of the case I find no substance in this contention of Mr. Brohi.

The last point raised by Mr. Brohi was that of mala fide. It was argued that the Supreme Court passed an order on 15-11-1966 recalling the order of stay granted by it earlier and directing the Government to restore the forfeited press to the petitioner. On the 16th November 1966 the Government of Pakistan amended rule 52 and a day thereafter the Government of East Pakistan passed the present order of forfeiture, in spite of the remarks made by their Lordships of the Supreme Court in their order dated 15-11-1966 parts of which have been quoted in para. 9 of the petition. This shows according to Mr. Brohi that the Government at least in passing the order of forfeiture dated 17-11-1966 did not act bona fide.

The Government after the order of the Supreme Court made on 0-I1-1966 cancelled the order of forfeiture and directed restoration of the press to the petitioner, withdrew its appeal from the Supreme Court and almost in the same breath within a few hours passed a fresh order of forfeiture on the 17th morning at about 9 O'clock and served it on the petitioner in the hospital. Undoubtedly all these actions of the Government look ugly. But will all these make the order of the Government m2la fide It is difficult to prove mala fide of the Government. Positive evidence must be brought on record to show that the Government had, in fact, acted mala fide. There are many actions which can loosely be termed as mala fide, but looked from legal point of view is not so. The mere fact of the Government withdrawing the appeal from the Supreme Court after losing the stay petition, and passing the present impugned order of forfeiture within such a short time will not in itself in my opinion make the action of the Government mala fade.

Mr. Brohi did not refer me to any decision in course of hit argument. His main point, as I have already observed, was the validity of rule 52 of the Rules and he was frank enough to say that if he did not succeed in persuading me to accept his contention that rule 52 of the Rules was void ab initio then the other points raised by him would not be of much consequence. I have already held against Mr. Brohi on this point as well as on all other points raised by him.

I am therefore of the view that the petitioner has not been able to make out a case for a writ of mandamus from this Court.

In the result, therefore, this application fails and the rule nisi according to majority judgment of the Court is discharged. But in view of the facts and circumstances of the case I leave the parties to bear their own costs.

Dr. Kamal Hossain prays for a certificate under Artice 58 of the Constitution. Since there is a question of interpretation of Right No. 4 of the Fundamental Rights guaranteed by the Constitution, I think, he is entitled to a certificate and I grant the same.

Rule discharged.

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