' ALI MUHAMMAD V. AKHUND, J.-On October 10 1979, the District Magistrate, Sukkur, by an order issued under section 144 of the Code of Criminal Procedure, prohibited, for a period of 60 days, manufacture of Gul from Sugarcane within Sukkur District, except for a valid permit issued in that respect. This order was challenged as illegal and ultra vires in Constitutional Petition No, D-1745 of 1979 filed on October 25, 1979. This petition was dismissed in limine by order of this Court dated November 29, 1979.
2. On December 10, 1979 the District Magistrate Sukkur issued another order under section 144 of the Code of Criminal Procedure to the same effect as the order dated October 10, 1979, to prohibit manufacture of Gur from sugarcane within Sukkut District excepting the areas shown in Annex ure 'A' thereof. In this writ petition, this order dated December 10, 1979, is as challenged without lawful authority and without jurisdiction.
3. It appears that immediately after the period of the order dat October 10, 1979 under section 144 of the Code of Criminal Procedure, w over, another similar order was passed by the District Magistrate o December 10, 1979. This latter attempt seems to give the order unde section 144 a permanent or semi-permanent effect which is not envisaged b section 144 which can remain in force for not more than two months fro the making thereof. In fact fresh order dated December 10, 1979 woul be in continuation of the first order dated October 10, 1979, as provided by subsection (6) of section 144, Cr. P. C. : "No order under this section shall remain in force for more than two months from the making thereof; unless in case of danger to human life, health or safety or a likelihood of a riot or an affray, the Provincial Government, by notification in the Official Gazette, otherwise directs."
' The District Magistrate having issued the order dated October 10, 1979,i which was in force for 60 days, ceased to have further power or authority to issue fresh order on the expiry of the first order. If the condition II specified in subsection (6), existed, it was the power of the Provincia " Government to make an order, by Notification in the Official Gazette, to extend the application of section 144, Cr.
P. C. The District Magistrate Sukkur, had no jurisdiction to pass fresh order under section 144 of the Code of Criminal Procedure in continuation of the previous one. The impugned order passed by the District Magistrate, is, therefore, without lawful authority.
4. Following passage from Akhtar Mahmood v. District Magistrate, Lahore (I) at pages 94 and 95 may be read with advantage :- "Orders under section 144 were thus clearly intended to be only temporary in their operation and there is no lack of authority on the point that any attempt to give such an order permanent or semipermanent effect is illegal. For example, in Queen-Empress v. Sheodin I L R 10 All. 115, a very eminent Judge Mahmood, J., observed.
' Under the Old Code, Act X of 1872, section 518 gave to Magistrates the power to issue orders in cases of obstruction, danger to human life, or riots, and the explanation to the section clearly shows that the Legislature in conferring this power intended it only to be applied to emergent matters. That section, however, did not prescribe any limitation or duration as to the duration of the order remaining in force; but a Full Bench of the Calcutta High Court in Gopi Mohan Mallack. v.
Taramoni Chowdhrani I L R 5 Cal. 7 concurred in holding upon general principles of the interpretation of such statutes that the Magistrate was not empowered to pass an order under section 518 of Act X of 1872 which would have more than a temporary operation, and that the grant of what is in effect an order for a perpetual injunction was beyond such Magisterial jurisdiction. I follow the principles of that ruling, and I cannot help thinking that section 144 of the present Code, in modifying the law contained in the corresponding section 518 of the old Code takes into account what Garth, C. J., said in the Full Bench case to which I have referred, and I say this because I find that while section 518 of the old Code
(1) PLD 1964 Lah. 83 was silent as to the duration of a Magistrate's order passed for the purposes mentioned, the present Code in the last paragraph of section 144 contains express provisions, saying that `no order under this section shall remain in force for more than two months from the-making thereof, unless in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the local Government by notification in the Official Gazette, otherwise directs'.
' This then, is the present law, and I think also was virtually the older law, though, of course, no duration was named in the older Code."
' In the case of Sri Ram Das Gaur v. The City Magistrate Varanasi (1), a few days after the expiry of the period of first order under section 144 of the Code of Criminal Procedure Code, a fresh order under section 144 was issued by the City Magistrate, and the Court observed at pages 398 and 399 ' But if conditions do not become peaceful and apprehension is expected even after the expiry of the prescribed period of two months from the date of issue of the original order under section 144, Cr. P. C. Any fresh order to be promulgated under this section would be in continuation of the first and in the eye of law, the Magistrate shall be deemed to be promulgating an order for a period exceeding two months-an order which would be beyond his jurisdiction. It is a settled law that one cannot do an act indirectly which be could not do directly, or that one cannot flout the express provisions of enactment.
' A colourable act on the part of a public officer shall not be accepted on its face value and one shall have to look into the facts to find out whether such an act was done in good faith, or indirect method was adopted to get over the provisions of the law. The present is one of those cases where the Magistrate cannot be held to have acted in good faith; when he issued the second order under section 144, Cr. P. C. He was indirectly extending the period for which an order under section 144 could not remain in force."
5. In the case of Ram Narain Shah and another v. Parmashar Parshad Shah and others (2), it was held that the Magistrate has no jurisdiction to make an order for the renewal of the original order under section 144. It is not open to him to evade subsection (6) of section 144 by repeating order under section 144.
6. The Advocate-General has frankly conceded -that the impugned order passed by the District Magistrate, Sukkur, is without jurisdiction.
7. In the result, petition is allowed, the impugned order having been made without lawful authority is quashed.
(1) AIR 1960 All. 397 (2) AIR 1942 Pat. 414