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Criminal Original No. 20 of 1955 decided on 6th Decem ber 1955 under section 7 of the Essential Supplies (Temporary Powers) Act, 1946.

‑By unauthorised officer‑Does not affect validity of trial‑Essential Supplies (Temporary Powers) Act (XXII of 1946)‑‑Offence under, committed in Bahawalpur State before merger in West Pakistan Province‑Investigated by Bahawalpur Police‑Case cannot terminate on that account.

At the stage of trial a Court of law is concerned with the determination of the question whether or not an accused person is guilty of the offence for which he is standing trial and the fact that the investigation was conducted by an officer who had no authority to conduct it is entirely immaterial.

It was contended on behalf of the accused persons who were being proceeded against under section 7, Essential Supplies (Temporary Powers) Act (XXIV of 1946) that the executive authority under the Act, had not been ordered to be exercised by authorities in the Bahawalpur State and, therefore, the investigation by the Bahawalpur Police being without jurisdiction, the trials could not proceed.

, that even if the argument was accepted that the investigation was conducted by unauthorised persons, the cases against the accused could not terminate.

‑Not validly extended to State of Bahawalpur‑Second Supplementary Instrument of Accession of Bahawalpur State, Cl. 3.

Clause 3 of the Second Supplementary Instrument of Accession of the Bahawalpur State shows that the inten tion of His Highness the Amir of Bahawalpur was that His Excellency the Governor‑General could extend only those existing federal laws which dealt with matters falling within any of the entries in part (i) and part (ii) of the Schedule to the Instrument and no other. As the subject dealt with by the Essential Supplies (Temporary Powers) Act, 1946, fell within entry 29 of part (iii) of the Schedule to the Instrument of Accession the Act had not been validly extended to the areas, which before the 14th of October 1955 formed the State of Bahawalpur.

S. A. Rahman for the Crown.

Farzand Ali and Fakhr‑ud‑Din for Accused.

.‑This order will govern Criminal Original Cases Nos. 20 ,to 30 of 1955, in all of which similar questions fall for determination. The cases arise out of prosecutions under section 7 of the Essential Supplies (Temporary Powers) Act, 1946, and while some of them were transferred to the Bahawalpur High Court by the then Chief Justice of that Court acting suo mote, the others came before that Court on petitions made by the accused persons.

The acts for which the accused persons were being tried under section 7 of the Essential Supplies (Temporary Powers) Act, 1946 were committed long before the merger of the Baha walpur State‑ in the West Pakistan Province. The case for the prosecution was that the Essential Supplies (Temporary Powers) Act, 1946, having been extended to the then Bahawalpur State by the Bahawalpur Extension of Federal Laws Order, XI of 1953, which was amended by Order XXIII of 1953, the accused persons could be tried for the offences under the Act and the offences could be investigated by the Bahawalpur Police.

The learned counsel for the accused contended before me that the executive authority under the Essential Supplies (Temporary Powers) Act, 1946, had not been ordered to be exercised by authorities in the Bahawalpur State and, there fore, the investigation by the Bahawalpur Police being without jurisdiction, the trials could not proceed. It appears to me, however, that the exercise of the executive authority men tioned in the relevant Orders of the Governor‑General will not include investigations by the police, but even if it did, I do not see how the ‑fact that the cases against them. were investigated by Police Officers who were not com petent to investigate them will help the accused persons. At the stage of trial a Court of law is concerned with the determination of the question whether or not an accused person is guilty of the offence for which he is standing trial and the fact that the investigation was conducted by an officer who had no authority to conduct it is, in nay opinion, entirely immaterial. If, however, the law provides that a Court of law can try the offence only if it has been investi gated into by a particular agency, then the fact that some other agency conducted the investigation will no doubt take away the jurisdiction of the Court, but that not being the case here, the result would be that even if I accept the argument of the learned counsel for the accused that the investigation was conducted by unauthorised persons, the cases against the accused cannot terminate.

The second contention of the learned counsel for the accused was that the Essential Supplies (Temporary Powers) Act, 1946, had not been properly extended to the territories which comprised the Bahawalpur State with the result that the accused could not be tried for having contravened any provision of it. The provisions of the Essential Supplies (Tem porary Powers) Act, 1946, were extended by His Excellency the Governor‑General of Pakistan to what was the Bahawalpur State in virtue of the powers given by the Second Supple mentary Instrument of Accession of the Bahawalpur State which was executed by His Highness the Amir of Bahawalpur on the 29th of April 1950 and was accepted by His Excellency the Governor‑General of Pakistan on the 30th of April 1950. The relevant part of the third clause of this Instrument reads as follows: ‑

"I hereby further declare that for the better discharge of the functions assumed by His Excellency the Governor- General in relation to this State in respect of matter enumerated in the said Schedule‑

(a) His Excellency the Governor‑General shall have power by order to extend to the State any existing federal law relating to a matter included in part (i) and part (ii) of the said Schedule with such modifications as may be necessary for the purposes of adapting its provisions to the conditions obtaining in this State‑; and

(b) ............. ............. ............. .......................... ............ ............. ..........................

Provided that an order under this clause shall be made after prior consultation of the Ruler.

Provided further . . . . . . ............. ............. ............. ............. ............. .............

The Schedule referred to in this clause is, as is clear from the first clause of the Instrument of Accession, the Schedule appended to the Instrument. The Schedule has some notice able feature; one is that the entries therein appear to have been copied out of the Government of India Act 1935 without the necessary changes being made, and another is that though list I of the 7th Schedule to the Government of India Act 1935 and the first part of the Schedule attached to the Instrument are alike, what is list II in the 7th Schedule to the Government of India Act 1935 was made the third part of the Schedule attached to the Instrument and what is list III in the 7th Schedule to the Act was made the second part of the Schedule attached to the Instrument.

In order to determine whether the prosecutions could proceed against the accused persons, one has to see if the subject dealt with by‑ the Essential Supplies (Temporary Powers) Act, 1946, was included in part (i) or part (ii) of the Schedule appended to the Instrument of Accession because if it were not, the Instrument of Accession did not authorise His Excellency the Governor General to extend the Act to the then Bahawalpur State. I have, with the assistance of the learned counsel for the parties, gone through part (i) and part (ii) of the Schedule appended to the relevant Instrument of Accession but have not been able to find any entry in either of them which might have application to the,, subject dealt with by the Essential Supplies (Temporary Powers) Act, 1946. On the other hand, I find that entry No. 29 of part (iii) of the Schedule to the relevant Instrument of Accession is applicable inter alia to "production, supply and distribution of goods" and appears to me to be applicable to the matter dealt with by the Act.

One other entry in the Schedule to the Instrument of Accession, which needs consideration is entry 1 (a) of part 00 which demonstrates what I have said above with regard to entries in the Seventh Schedule to the Government of India Act 1935 having been copied out in the Instrument of Accession without attention to details. The entry reads as under: ‑

1. (a) Criminal law including all matter included in the Indian Penal Code at the date of the passing of this Act, but excluding offences against laws with respect to any of the matters specified in list I and list II and excluding the use of His Majesty's naval, military and air force in aid of the civil power.

The above quoted entry is the same as entry 1 of list III of the Seventh Schedule of the Government of India Act 1935 and it is obvious that the retention therein of the words "at the date of the passing of this Act" makes it slightly confusing because the document it appears in is not an act but an Instrument of Accession. If one were to put on this entry an interpretation which would stretch it to breaking point, it is possible that the offences under the Essential Supplies (Temporary Powers) Act, 1946 may be brought therein, but as such an interpretation would be against all canons of inter pretation and might lead to difficulties in the interpretation of the other entries of the Schedule .to the Instrument of Accession, I would not resort to .it. I might also mention with fairness to him that the learned counsel for the Crown did not rely on this entry and in fact frankly conceded that the subject dealt with in the Essential Supplies (Temporary Powers) Act. 1946 fell within entry 29 of part (iii) of the schedule appended to the Instrument of Accession.

An Instrument of Accession executed by the Fouler of a State under section 6 of the Government of India Act 1935 (which section has recently been omitted by the Establish ment of West Pakistan Act, 1955) is, in my opinion, to be construed as if it were an agreement entered into between the Ruler of the State and the Government of Pakistan. Viewing the Instrument and the Schedule appended to it in that manner, I have arrived at the conclusion that the inten tion of His Highness the Amir of Bahawalpur clearly was that His Excellency the Governor‑General could extend only those existing federal laws which dealt with matters falling within any of the entries in part (i) and part (ii) of the Schedule to the Instrument and no other. I have already pointed out that the subject dealt with by the Essential Supplies (Temporary Powers) Act, 1946, falls within entry 29 of part (iii) of the Schedule to the Instrument of Accession and would, therefore, hold that the Essential Supplies (Temporary Powers) Act, 1946, had not been validly; extended to the areas which before the 14th of October 1955, formed the State of Bahawalpur. It follows, therefore, that the accused persons cannot be tried under the Essential Supplies (Temporary Powers) Act, 1946, and I would, there fore, quash the proceedings against them.

A. H.

Proceedings quashed.

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