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Civil Petition for Special Leave to Appeal No. 371 of 1968, decided on 25th February 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 24th May 1968, in Writ Petition No. 923 of 1967).
Contention that Ordinance pertained to subject placed on concurrent list of Constitution of Pakistan (1956) and being repug nant to certain existing laws, could not be competently promul gated by Governor without previous instructions or subsequent consent of President as required under Art. 110 of Constitution of Pakistan (1956)‑Special leave to appeal granted by Supreme Court to consider questions.
Ghulam Muhammad v. The State Writ Petition No. 116 of 1967 and Muhammad Afzal v. Commissioner, Lahore Division P L D 1963 S C 401 ref.
S. M. Zubair, Advocate Supreme Court instructed by M. Sirjeea Nagi AttorneygforjPetitioner.
Nemo for Respondents.
Date of hearing: 25th February1969.
Proceedings ;were started against the petitioner under the West Pakistan Control of Goondas Ordinance (XXXV of 1959), which was promulgated by the Governor of West Pakistan on the 4th of June 1959 under clause (5) of the Laws (Continuance in Force) Order, 1958, which had protected the "Ordinance making powers of the Governor subject to the same limitation as contained in Articles 102, 106 (clauses 1 and 2) and 110 (clauses 1 and 2) of the late Constitution.
The petitioner resisted this action against her by a petition in the High Court of West Pakistan, Lahore under Article 98 of the Constitution, challenging the vires of the aforesaid Ordinance. The petition has been dismissed by the High Court, by reference to its judgment in another Writ Petition entitled (Ghulam Muhammad v. The State) No. 116 of 1967.
The point, which has been forcefully, argued before us and which merits consideration, is that since the impugned Ordinance which pertained to a subject placed on the con current list of the late Constitution, was repugnant to certain existing laws, like the Pakistan Penal Code, the Criminal Procedure Code and the Customs Act, and repealed a Provincial Law on the subject, which was already in the field, it could A not be competently promulgated by the Governor without the previous instructions or the subsequent consent of the President, which were not obtained as required by Article 11 of the late Constitution: The learned counsel relies for his submission on a decision of this Court in Muhammad Afzal v. Commissioner, Lahore Division (PLD 1963SC401).
Leave to appeal is granted, security in the sum of Rs. 1,000. Further proceedings against the petitioner are stayed till further orders.
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