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Criminal Revision Application No. 163 of 1967, decided on 31st August 1967.

Ss. 12 (2) (ix), (x), (xii) & 16‑Disorderly person‑Externment‑Interim state order ‑ Can be passed by High Court pending final decision of appeal or revision‑Externee convicted for dealing in Charas and Opium in previous six cases but acquitted on appeal in all‑Externment of such person in subsequent case suspended till decision of revision petition.

Shahmir Transport Co. Ltd. v. Member (Colonies and Trans port), Board of Revenue P L D 1964 Lah. 710 rel.

Nasiruddin for Petitioner.

Mr. Haleem, Assistant Advocate‑General with Al‑e‑Raza for the State.

Arsala Khan petitioner was declared a dangerous disorderly person under section 12 (2) (ix), (x) and (xii) of Karachi Control of Disorderly Persons Act (XXIX of 1952) and was directed that he should furnish his finger prints and photographs to the police and be externed from Karachi District by the Tribunal and District Magistrate, Karachi. Against that order the petitioner has preferred this revision under section 16 of Karachi Control of Disorderly Persons Act. Along with the revision petition an application (Criminal Miscellaneous Application No. 316 of 1967) was also filed for the suspension of the execution of the aforementioned order.

2. On the 19th of July 1967, the revision petition was admitted and a notice was issued. A notice was also issued in the accom panying Criminal Miscellaneous Application. At present I am only concerned with that application. It was contended by the learned Assistant Advocate‑General that under section 16 of the Karachi Control of Disorderly Persons Act, the powers of the High Court was restricted and no interim relief could be granted till the final decision of the revision. Section 16 of the Act reads as follows :‑

"No appeal shall lie from any order made by the Tribunal, but in relation to any such order under section 4, or section 12, or section 15, the High Court may call for the record of the case, and if the Tribunal appear‑

(a) to have exercised a jurisdiction not vested in it by law,

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally,

the High Court may make such direction as it may deem sufficient for the rectification of the error or omission and the Tribunal shall conduct itself accordingly."

The learned counsel for the petitioner, on the other hand, argued that when the High Court has powers to pass final orders it has also got powers to pass incidental, necessary or ancillary order. In this connection he referred me to page 350 of the 11th Edition of Maxwell on Interpretation of Statutes, which reads as follows :‑

"Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoque concessa esse vidertur, sine qutbus jurisdictlo expllcari non potuit."

He also relied on a Division Bench Authority of this Court in case Shahmir Transport Co. Ltd. v. Member (Colonies and Trans port), Board of Revenue (P L D 1964 Lah. 710) wherein it was observed:‑

"Section 64 of the Act (Motors Vehicles Act) does not define the scope of the powers vested in the appellate Authority. It merely confers a right of appeal on an aggrieved person and it does not control the powers of the appellate Authority within which it can exercise its jurisdiction. It is well known that in appeal is a continuation of the original cause and it is implicit in the exercise of appellate jurisdiction that the appellate Authority can pass the those orders which the Authority trying the original cause should or ought to have made. The power of remand is merely ancillary and incidental to the powers to be exercised by the appellate Authority. It is something inherent in the appellate tribunal."

It was contended that under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, any party aggrieved by an order passed on appeal by the appellate Authority can prefer an appeal in writing to the High Court. It is well‑known theft. when such an appeal is admitted the High Court frequently passes interim orders such as suspending the implementation of the impugned orders till the decision of the appeal. Lastly I find that the wording of section 115, C. P. C., is almost similar to the wording of section 16 of Karachi Control of Disorderly Persons Act. Section 115, C. P. C. reads as follows :‑

"The High Court may call for the record of any case which ' has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such: Subordinate Court appears‑

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit."

Under the above section when revisions are admitted the High Court under its inherent powers does frequently pass interim orders for staying the execution proceedings till the decision of the revisions. In view of the above I find no force in the arguments of the learned Assistant Advocate‑General.

3. Now the point for consideration is as to whether the present case is a fit case in which the order of externment of the petitioner can be suspended till the final decision of the revision. From the perusal of the order of the Tribunal I find that the only evidence which was produced before me was that the petitioner was dealing with Charas and Opium, and that he had been convicted in previous six cases. The learned counsel in his grounds for revision has definitely stated that all the previous cases ended in an acquittal on appeal. The learned Assistant. Advocate‑General was not able to deny this fact. In view of the above without giving a definite finding as to whether the allegation; are correct. 1 direct that the order externing the petitioner from Karachi District be suspended till the final decision of the revision.

Order suspended.

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