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Criminal Miscellaneous Application No. 566 of 1962, decided on 4th February 1963.

Transport of rice from locality in West Pakistan to Karachi after merger of Karachi into West Pakistan‑Provisions of S. 2 applicable‑West Pakistan Administration (Merger of the Federal Territory of Karachi) Order (9 of 1961), Arts. 4 & 5.

Azizullah K. Shaikh for Applicant.

M. Haleem and S. Ali Raza for Respondent.

Date of hearing : 4th February 1963.

This is an application under section 561‑A read with section 439, Criminal Procedure Code, praying for the quashing of proceedings against the petitioner in respect of an alleged contravention of Rice (Movement Restriction) (Amendment) Order, 1961.

2. The material facts are these: The petitioner Muhammad son of Ahmad Jhangra despatched by rail 200 bags of rice from Sukkur to Karachi. On 8th November 1961 the rice was seized at Karachi by the Civil Supplies Authorities and Enforcement Police as it was alleged that the transport of the rice amounted to a contravention of the Order referred to above. The challan was first put up in the Court of Mr. A. R. Kazmi, A. C. M. Karachi who discharged the accused upon the ground that he had no jurisdiction to try the case. Undaunted the Enforcement Police put up another challan before another Magistrate.

3. The present petition for the quashing of the proceedings has been argued by Mr. Azizullah Shaikh, the learned counsel for the petitioner, and he has urged that in so far as the alleged offence was committed on 20th October 1961 after the merger of Karachi into West Pakistan by the President's Order No. 9 of 1961, this was a transport within the Province of West Pakistan and there had been no contravention of the Rice Movement Order referred to above. Section 2 of that Order reads as follows :‑

"2. (1) No person shall transport or accept for transport from any place in West Pakistan to any place outside that Province or to the Federal Territory of Karachi rice of any variety except on Government account or on a permit issued by the Ministry of Food and Agriculture (Food Division), Government of Pakistan.

(2) Clause (1) of this Article shall not apply to transport of five seers of rice or less carried as part of luggage by a bona fide traveller from any place in West Pakistan to the Federal Territory of Karachi."

This Order was enacted by the Central Government in exercise of their powers conferred by sections 3 and 6 of the Essential Supplies Act, 1957. Mr. Sheikh argued that Essential Supplies Act of 1957 did not apply to a trade within the Province which was a provincial subject. It was pointed out that this difficulty was realised by the Government so that another amendment to the Essential Supplies Act was introduced by Ordinance IV of 1962. By section 2 of this Ordinance the first art of it took effect retrospectively from the 7th day of October 1958 and the second part as from the 1^st day of July 1961 which was the date on which the merger of Karachi with West Pakistan took effect. In the second part of this Ordinance necessary amendments were made to the Act to bring it in line with the constitutional position of Karachi resulting from the merger. Section 9 of this Ordinance lays down that nothing in it shall have the effect of creating any offence retrospectively. Upon the basis of these provisions it was argued that when this new Ordinance came into effect the offence had already been committed. Section 9 of this Ordinance does not permit of creating an offence retros pectively by virtue of this Ordinance and as far as the Rice Movement Order of 1961 (dated 11^th March 1961) was concerned, it did not apply in so far as Karachi had become a part of West Pakistan. This argument would have been effective if the provisions of the President's Order No. 9 of 1961 were not there. The material of these are Articles 4 and 5. Article 5 saves and gives continuity to all laws etc. in force in the specified territory with necessary adaptation unless altered, repealed or amended. The Rice Movement Order of 1961 would thus be saved by Article 5. Article 4 provides that as from the appointed day any reference to the specified territory in any Act or Ordinance etc., shall be constructed as a reference to the Province of Wes A Pakistan, or as the context may indicate, to the Karachi Division. If we now read section 2 of the Order which has teen reproduced above it can be reasonably construed to apply in a case of transport from any place in West Pakistan to the Karachi Division. The fact that this Order was enacted under the Essential Supplies Act would not render it invalid, because when it was enacted the Federal Territory of Karachi was not a part of West Pakistan. After the merger of Karachi with West Pakistan this Order would have ceased to have effect if it had not been saved by Article 5 of the President's Order No. 9 of 1961. I, therefore, do not find it possible to accept this contention.

4. Mr. Azizullah Shaikh then attempted to argue that the first order of discharge by Mr. A. R. Kazmi stood as a bar to further prosecution. This is a point which it will be open to him to urge before the Court which may be trying the second case. I do not want to entertain this ground for the purposes of the present petition. With these observations I dismiss the petition for the quashing of the proceedings.

K. B. A./A. H.

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