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Criminal Reference No. 449 of 1961, decided on 21st January 1963.

: Continues to be in force in Pakistan‑Indian Independence Act, 1947, S. 18 (3)‑Constitution of Pakistan (1956), Art. 224 (1) Laws (Continuance in Force) Order (I of 1958), Art. 4 (1).

Murtaza Husain for A. A.‑G. for Petitioner.

Nemo for Respondents.

Date of hearing : 21s‑January 1963.

This reference has been made by Mr. F. A. Ansari, Additional Sessions Judge, Karachi, recommending that the order of Mr. Walayat Ahmad Khan, City and Additional District Magistrate, Karachi, dated the 9th of January 1961, whereby he had confirmed the provisional order of the Court of Summary Jurisdiction sitting at Stratford in the County of Essex, London, passed against Eitel Fritz Anton Forstner on the 29th of May 1959, under section 3 of the United Kingdom Maintenance Orders (Facilities for Enforcement) Act, 1920, should be set aside, mainly on the ground that he (Mr. Walayat Ahmad Khan, City and Additional District Magistrate, Karachi) had no jurisdiction to do so.

2. It appears that Betty Lorna Forstner had ‑filed a com plaint against Eitel Fritz Anton Forstner under the provisions of the Summary Jurisdiction (Separation and Maintenance) Acts, 1895‑1949 and the Maintenance Orders (Facilities for Enforce ment) Act, 1920, in the Court of Summary Jurisdiction sitting at Stratford in the County of Essex London, alleging to the effect that he had deserted her and wilfully neglected to provide reasonable maintenance for her and their children and praying that he should be ordered to pay reasonable maintenance allowance to them. Accordingly, the said Court passed a provisional order in the prescribed form in respect of the main tenance allowance she had applied for, directing that it should be sent to the competent Court at Karachi (Pakistan) for con firmation.

3. In pursuance to this direction the said provisional order was sent by the Commonwealth Relations Office to the Ministry of Foreign Affairs and Commonwealth Relations, Pakistan to the District Magistrate, Karachi, for disposal. In course of time it was taken up and disposed of by Mr. Walayat Ahmad Khan, City and Additional District Magistrate, Karachi, on the 9th of January 1961. While disposing it of the learned City and Additional District Magistrate, Karachi, passed the following order :‑

"An ex parte order is, therefore, passed against the respon dent, Mr. Eitel Fritz Anton Forstner, and the provisional maintenance order passed by Justices of the Peace for the County of Essex on 17th June 1959, against Mr. Forstner is hereby confirmed. The total maintenance charges as per the above said provisional order should be realised from the respondent from the date of the said order within a period of one week."

4. It was against this order that Mr. Eitel Fritz Anton Forstner went in revision to the Sessions Judge, Karachi, and prayed that it should be set aside. This revision application was dealt with by Mr. Fazle Elahi Ansari, Additional Sessions Judge, who has made this reference as already indicated. The learned Additional Sessions Judge, while making this reference, has referred to the argument of the applicant before him in the following words :‑

"It is argued that the Act, i.e., the Maintenance Orders Enforcement Act, 1921, would have operation in this country, had this land been a dominion,"

and after examining this point and coming to the conclusion that the said Act was not in force in Pakistan ever since the Constitution of 1956 had come into force, has recommended that the said order of the City and Additional District Magistrate be set aside.

5. The Maintenance Orders Enforcement Act, 1921, (Act No. XVIII of 1921) came into force in India on the 5th of October 1921 in order to facilitate the Enforcement of Maintenance Orders made in other Dominions, Protectorates and States. This Act continued to remain in force up to and was in force at the time of the Partition.

6. In order to find whether the Maintenance Orders Enforcement Act, 1921, continued to be in force in Pakistan after the 14th of August 1947, it is obviously necessary to refer to the provisions of section 18 of the Indian Independence Act, 1947. Subsection (3) of section 18 of the Act provides as follows :‑

"Save as otherwise expressly provided in this Act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf."

These provisions of subsection (3) of section 18 clearly go to show that the laws, which were in force in India before the Partition, continued to remain in force in both the Dominions set up under the Indian Independence Act, 1947. Therefore, it is apparent that the Maintenance Orders Enforcement Act, 1921, continued to remain in force in Pakistan, as it was in India before the Partition.

7. Although as provided in Article 1 of the late Constitution (Constitution of 1956) Pakistan became a Federal Republic known as Islamic Republic of Pakistan instead of being a Dominion as set up under the Indian Independence Act, 1947, the laws in force in the country continued to remain in force as before the date of the enforcement of the late Constitution. This is evident from the provisions of Article 224 (1) of the late Constitution which runs as follows

"Notwithstanding the repeal of the enactments mentioned in Article 221, and save as is otherwise expressly provided in the Constitution all laws (other than those enactments), including Ordinances, Orders‑in‑Council, Orders, Rules, Bye‑laws, Regula tions, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Constitution Day, shall, so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate Legislature or other competent authority."

It would be noticed that according to the provisions referred to above all laws other than those specified in Article 221 of the Constitution continued to remain in force in Pakistan even after the date of the enforcement of the late Constitution. This means that like so many other laws the Maintenance Orders Enforcement Act, 1921, was also in force in Pakistan till the 7th of October 1958, when the President's Order (Post‑Proclamation) No. 1 of 1958, came into force. Art. 4 of this Order runs as follows :‑

"4 (1) Notwithstanding the abrogation of the late Constitu tion, and subject to any order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution and all Ordinances, Orders‑in -Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, Bye‑laws, Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Pro clamation shall so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority."

These provisions make it quite clear that notwithstanding the abrogation of the late Constitution all laws subject to any order of the President or Regulation made by the Chief Administrator of Martial Law continued to remain in force. Therefore, it is obvious that the Maintenance Orders Enforcement Act, 1921, like many other laws, remained in force in Pakistan even after the 7th of October 1958.

8. According to the view taken by the learned Additional Sessions Judge, Karachi, ever since the late Constitution had come into force the Maintenance Orders Enforcement Act, 1921, which as its preamble showed, was enacted "to facilitate the enforce ment of Maintenance Orders made in other parts of His Majesty's Dominions and Protectorates," ceased to be operative in Pakistan as it had become a Republic instead of remaining as a Dominion created by the Indian Independence Act, 1947. This view is not, correct, as the Maintenance Orders Enforcement Act, 1921, as already explained, is still in force in Pakistan, although it has been amended from time to time ever since Pakistan had become Dominion under the Indian Independence Act, 1947. In course of his reference, the learned Additional Sessions Judge has referred to the definition of the word "dependant" in section 2 of the Maintenance Orders Enforcement Act, 1921, and has observed as follows :‑

"It is emphasised that they are dependants (the persons in whose favour the order in question had been passed by the British Court), but not within the meaning of the Act. For the purposes of the Act only those dependants would be recognised as dependants whom the applicant was liable to maintain under the law in force in any part of His Majesty's Dominions. It is asserted that since Pakistan is not a Dominion, the applicant is not supposed to maintain his wife and children under the provisions of this Act."

9. According to section 2 of the Maintenance Orders Act, 1921, as it originally stood, "dependants" meant such persons as a person against whom a maintenance order was made, was liable to maintain according to the law in force in the part of His Majesty's Dominions in which the maintenance order was made." In this definition the words "the part of His Majesty's Dominion" have subsequently been replaced by an Amending Act by the word "country". Therefore, the view of the learned Additional Sessions Judge referred to above could not be accepted on the ground that the definition of the word "dependants" in the said Act referred to His Majesty's Dominions, and Pakistan was no longer a Dominion. As has already been pointed out, the said Act remained in force in Pakistan even after it had become a Republic and as such, it continued to remain in force although it had been amended from time to time ever since Pakistan had been created as a Dominion under the Indian Independence Act, 1947.

10. Taking this view of the matter, I reject this reference.

R. B. A.

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