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Writ Petition No. 295 of 1962, decided on 2nd July 1963.

Arts. 79 & 225‑Ordinance promulgated before coming into force of Constitution and kept in force by Art. 225‑Approval by Provincial Legislature under Art. 79, not necessary‑East Pakistan Public Safety Ordinance (LXXVIII of 1958).

S. 31‑Riotin.e on large scale by large number of people‑Collective fine imposed by notification‑Reference, in notification, to actual acts resulting in damage to property‑Not necessary.

S. 31‑Provisions attracted only where prejudicial acts, defined in Ordinance, continue to be committed in particular locality‑Single incident of an abrupt or sporadic nature‑Does not justify imposition of collective fine.

Moazzem Hossain for Petitioner.

Maksumul Hakim, Advocate‑General and Siddique Ahmad Chowdhury for Respondents 1 and 2.

Dates of hearing: 30th May and 10th June 1963.

‑The petitioner, Abu Farid Khan, who is a resident of Mahalla Satpai within Netrokona Police Station in the District of Mymensingh obtained a rule nisi on the Province of East Pakistan, the Deputy Commissioner, Mymensingh and Mr. M. A. Karim, a Magistrate of the 1st Class, to show cause why it should not be declared that the imposition of collective fine by Notification No. 213 Poll. (II), dated the 12th of October 1962, published in the Dacca Gazette Extraordinary, dated the 13th of October 1962, was without any legal effect.

The petitioner's case shortly stated, is that on the 7th October 1962 the student community of Netrokona Sub‑Division held a protest meeting at Netrokona in respect of its grievances against the Government. Amongst the students who came by train to attend this meeting, three were detected to travel without ticket and were arrested at Shyamgunj railway station. The Magistrate of the Mobile Court who was on the train refused to release the arrested students when others offered to pay the railway fare and fine at Netrokona. The train departed for Mohanganj and on its return journey four more students were arrested on the same charge. When the train reached Netrokona from Mohanganj, the protest meeting was over and the students requested the Magis trate to release all the arrested persons on accepting all charges and fine. He refused and wanted to take the students to Mymen singh. On the insistence of the students to release the arrested persons, the Police made a lathi‑charge injuring some of them. This was followed by retaliatory actions such as stone throwing which caused some damage to railway properties. The petitioner's further case is that the incident was confined to students and the inhabitants of the locality in question had no hand in the matter. The Government, on the 8th October 1962, issued a Press Note declaring that it had decided to impose collective fine and take other punitive measures in connection with the incident and ultimately by the above notification issued under the East Pakistan Public Safety Ordinance imposed a collective fine of Rs. 5,000 on the inhabitants of Mahallas Satpai, Ukilpara, Chalkpara and Teribazar within the Netrokona Town.

On behalf of the respondents, an affidavit‑in‑opposition has been filed by Mr. K. M. S. Rahman, the Deputy Commissioner, Mymensingh. In this affidavit, the assertions of the petitioner, have been controverted. The deponent has stated that the real fact in this case is that the meeting at Netrokona on the 7th of October 1962 was organised by political parties as a protest against the alleged attempt to murder Mr. H. S. Suhrawardy in West Pakistan. Students might have also joined the same since there was unrest amongst them at that time but the meeting was not exclusively organised by students. It has further been stated that the Magistrate holding the Mobile Court in the train at Mohan ganj from Mymensingh got in all six students and another member of the public travelling without tickets and as these persons could not pay the fine imposed on them, and as they refused to dis close their names and addresses and demanded unconditional release, the Police kept them in custody. It has also been stated in this affidavit that when the train reached Netrokona Court Station about 500 people assembled and demanded unconditional release of the arrested persons. As the train left the Court railway station the crowd followed it to Netrokona railway station where it swelled to 2000 and there also a demand was made to release the arrested persons unconditionally. A large number of them squatted on the track in front of the engine so that the train could not move. They also started pelting stones and brickbats at the train and a section of the mob rushed into the compartment and forcibly took away the arrested persons from custody.

Mr. Moazzem Hossain, the learned Advocate for the peti tioner, has raised a number of points in support of the Rule. We propose to take up the constitutional question first though it was raised last of all and at the further hearing of the case.

The learned Advocate contends that the East Pakistan Public Safety Ordinance (Ordinance LXXVIII of 1958) has lapsed inas much as it was not placed before the Provincial Assembly for approval in accordance with the provisions of Article 79 of the Constitution. He has argued that though on the date of promul gation of the Ordinance, namely, the 25th of November 1958, the Constitution was not in force, it was necessary to have the approval of the Provincial Assembly within the prescribed period mentioned in Sub‑Article (6) of the said Article in order to con tinue the Ordinance as a valid law after the Constitution came into force on the 8th June 1962. We are afraid this argument has not taken note of the provisions contained in Sub‑Article (2) of the said Article and Article 225 of the Constitution. Sub -Article (2) of Article 79 lays down that an Ordinance made and promulgated under that Article shall, as soon as practicable, be laid before the Assembly of the Province. Sub‑Article (3) pro vides that if before the expiration of the prescribed period, the Assembly of the Province by resolution, approves of the Ordi nance, the Ordinance shall be deemed to have become an act of the Provincial Legislature, but it, before the expiration of that period, the Assembly of the Provinces, by resolution, disapproves of the Ordinance, it shall cease to have effect, and shall be deemed to have been repealed, upon the passing of the resolution. Sub -Article (4) provides that if the Assembly of the Province has not approved or disapproved of the Ordinance, and it has not been repealed by the Governor, before the expiration of the prescribed period, it shall cease to have effect, and shall be deemed to have been repealed, upon the expiration of that period. The prescrib ed period has been defined under Sub‑Article (6) of the Article. It is, therefore, evident that an Ordinance promulgated under Article 79 has to be placed before the Assembly of the Province in order that it may be continued as an enforceable law after the prescribed period. The present Ordinance was promulgated, as we have already pointed out, long before the Constitution came into force on the 8th of June, 1962. It was, therefore, not neces sary to place this Ordinance for approval by the Provincial Legis lature. This Ordinance has been continued as a valid law by Article 225 of the Constitution which provides that, except as provided in that Article, all existing laws shall, subject to the Constitution, continue in force so far as applicable and with necessary adaptations until altered, repealed or amended by the appropriate Legislature. "Existing Laws" has been defined in Sub‑Article (7) to mean all laws, Ordinances, Orders‑in Council, Orders, rules, bye‑laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law in force in Pakistan or any part of Pakistan, or having extra‑territorial validity immediately before the commencing day. There is no doubt that the Ordi nance was a valid law before the Constitution came into force and since this Ordinance has not been excluded in Article 225 it continues to remain in force and its continuance was not dependent upon compliance with the provisions of Article 79 of the Constitution.

It has then been contended that on the admission of the respondents the local residents of the villages mentioned above did not take any part in incidents that took place on the date men tioned above and, therefore, the imposition of collective fine on the residents was without any lawful authority. In the affidavit‑in- opposition it has been clearly stated that not only the students but the residents of the locality took part in the incidents. The peti tioner in his application has stated that neither he nor any of the inhabitants of the locality was in any way concerned in or abetted the commission of any offence prejudicially affecting the public safety, the maintenance of public order, nor were they concerned in any of the offences narrated in the notification. In reply to this, the respondents have asserted that the local residents also took part in the incidents that happened at the railway station. We have read the affidavit‑in‑opposition carefully, we must say that it does not make any precise statement in this regard but it cannot be said that there is any admission of the petitioner's allegation.

The next point that has been urged is that the order, in the face of it, show that the Provincial Government was not sure as to the actual acts of commission or omission for which the inhabitants of the localities mentioned in the notification were responsible. The notification in question runs as follows:

"No. 213 Poll. (II)‑12th October 1962.‑Whereas it appears to the Provincial Government that the inhabitants of the area described in the Schedule hereto annexed within the jurisdiction of Netrokona police‑station in the district of Mymensingh are concerned in or abetting the omission of offences prejudicially affecting the public safety, the maintenance of public order, the maintenance of services essential to the life of the community, or harbouring persons concerned in the commission of such offences, or are failing to render all the assistance in their power to discover or apprehend the offenders, or are suppressing material evidence of the commission of such offences;

Now, therefore, in exercise of the powers conferred by sub section (1) of section 31 of the East Pakistan Public Safety Ordi nance, 1958 (East Pakistan Ordinance No. LXXVIII of 1958), the Governor is pleased to impose a collective fine of Rs. 5,000 (Rs. five thousand only) on the inhabitants of the area describ ed in the said Schedule subject to any order which may be passed exempting any person or class or section of such inhabitants from liability to pay any portion of the fine;

So much of the area under police‑station Netrokona lying in Mauza Satpai (Jurisdiction List No. 318) including Mahallas (1) Satpai, (11) Ukilpara and (111) Chalkpara, under Ward No. 1 and Mahalla Teribazar under Ward No. 2 of the Netrokona Town Committee.

No. 214 Poll. (H)‑12th October 1962.‑In exercise of the powers conferred by subsection (2) of section 31 of the East Pakistan Public Safety Ordinance, 1958 (Ordinance No. LXXVIII of 1958), the Governor is pleased to empower the Deputy Com missioner of Mymensingh to exercise the powers under sub sections (2), (3), (4) and (5) of the said section."

The learned Advocate for the petitioner contends that the notification shows that the provisions of section 31 of the East Bengal Public Safety Ordinance have been quoted without reference to the actual acts for which the inhabitants were found respon sible. We do not find any substance in this contention also the occurrence took place on a large scale in which a large number of people were involved. It cannot, therefore, be said that each of the acts alleged in the notification was not committed. It may be that some of them were responsible for some acts while the others were not but there is nothing before us to hold that all the acts mentioned in the notification were not committed in the occurrence.

The next point urged by the learned Advocate is that the apportionment of the compensation was made without any enquiry as contemplated by subsection (3) of section 31. In the affidavit‑in‑opposition it has been stated that in apportioning the fine the Deputy Commissioner took into account the assessment list of the Netrokona Town Committee. In this view of the matter, we do not find that the assessment has been made in violation of the provisions of subsection (3) of section 31.

Mr. Moazzem Hossain has then argued that the notice demanding payment of collective fine was signed by an un-autho rised person. We do not find on what basis it has been asserted that the person had no authority to sign the demand notice. There is no question of any delegation by the Deputy Commis sioner in this respect as it is not the case of the petitioner that in connection with apportionment of the fine the Deputy Commis sioner asked someone else to do it. There is no legal bar to the signing of the demand notice by a subordinate of the Deputy Commissioner.

The last contention of the learned Advocate is that in order to attract the provisions of section 31 of the East Bengal Public Safety Ordinance, there must be a series or president repetition of occurrence constituting one or more of the offences specified therein and that one single instance of an abrupt occurrence happening on a particular occasion as in the instant case even though that may produce one or other of the baneful effects con templated by that section cannot warrant its application so as to justify imposition of collective fine. The relevant portion of the section reads:

"31 (1) If it appears to the Provincial Government that the inhabitants of any area are concerned in or abetting the com mission of offences prejudicially affecting communal harmony, public safety, the maintenance of public order, the maintenance of supplies or services essential to the life of the community, or harbouring persons concerned in the commission of such offence, or are failing to render all the assistance in their power to discover or apprehend the offender or offenders, or are suppressing material evidence of the commission of such offences, it may, by notification, impose a collective fine on the inhabi tants of that are:

The offences envisaged in this section are offences prejudicially affecting communal harmony, public safety, the maintenance of public order, the maintenance of supplies or services essential to the life of the community or harbouring persons concerned in the commission of such offences or failing to render all the assistance in their power to discover or apprehend the offender or offenders, or suppressing material evidence of the commission of such offences. Can it be said, if on a particular occasion something happened which resulted in the disturbance of communal harmony or prejudicially affected public safety or the maintenance of public order etc., that the provisions of this section are attracted or can such a solitary incident be regarded as sufficient to show that the inhabitants of the area around the scene of that incident were concerned in or abetted the commission of the offence ensuing there from or rendered themselves liable for any of the other offending acts of omission and commission contemplated by the section. The more we read the section the more we are convinced that such a situation was not in the mind when the pro visions contained in the section were made. This section makes liable some persons for acts for which they may not themselves be directly or indirectly responsible. Justification for this is perhaps to be found on the assumption based on a repetition of certain offences of a public nature in a particular area, that the inhabitants of that area, i.e., the majority or the bulk of its inhabi tants are actually committing those offences or lending encourage ment and support thereto actively, or passively. A single incident of an abrupt or sporadic nature cannot, we are afraid, afford a valid foundation for such an assumption.

The Preamble of the Ordinance says that, in order to provide for "special measures" for ensuring the public safety and the maintenance of public order, the suppression of prejudicial acts endangering communal harmony or the safety or stability of the Province, and for maintaining supplies and services essential to the life of the community, it was thought expedient to make the provisions in the Ordinance. Does not the Preamble clearly indicate that the intention is to take recourse to the "special measures" contemplated by the Ordinance more by way of preven tion of prejudicial acts as defined in the Ordinance than of punish ing the culprits for ordinary crimes If that were not the intention, what then is the justification for imposing punitive fine on persons who may or may not concerned with any prejudicial act In our view, the justification for such punishment is failure to render such assistance which the Government require in main taining law and order in an extraordinary situation for their failure to do it through the ordinary machinery. It is no doubt the duty of the State to maintain order in society but the members thereof are also bound to co‑operate and more so on an occasion of emergency. Does failure to do this on one particular occasion like the unforeseen one under consideration became punishable

Before we conclude we also note that the present one cannot be said to be a local affair exclusively or for that matter even mainly inasmuch as there cannot be any dispute as to the presence and participation of outsiders as well in sufficient strength. In fact even the possibility of their preponderance cannot be ruled out.

Indeed, we have not been able to lay our hands on any autho rity on this point. Nevertheless, we have felt, on a reading of the entire Ordinance in question, that imposition of collective fine could not have been contemplated in a situation as the present. L Only when some prejudicial acts, as defined in the Ordinance, continue to be committed in a particular locality, it is then and then alone that the Provincial Government may impose collective fine on the inhabitants thereof.

The result, therefore, is that this rule is made absolute. The order of the Provincial Government imposing collective fine on the petitioners is directed to be cancelled.

Having regard to the facts of this case, we make no order as to costs.

K. B. A.

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