' RAJA MUHAMMAD KHURSHID KHAN, J.-This appeal by leave assails the judgment passed by a Division Bench of the High Court, in a Writ Petition No, 9 of 1977, on 30th January, 1979, whereby accepting the petition partly the Government order passed on 5-11-1977 in cancelling a previous Government order dated 25-1-1976, in favour of appellants for working out forests standing on their land having been found bad in law was set aside and the respondents, particularly the Government, were directed to have the appellant's point of view before passing any order. The petition for issuance of writ of mandamus for implementation of the Government order dated 25-1- 1976 was however, refused.
2. The dispute emerges out of the circumstances detailed below: ' The appellants, to this appeal, hail from three villages of Muzaffarabad District namely Batknala, Kai Manja and Haryala. On 30-3-1974, they through their `mukluar' Syed Bashir Ahmad Andrabi, submitted an application (Annexure 'P' with the writ petition), to the Deputy Commissioner/ Collector Muzaffarabad for joint inspection and report about the forests they owned in the area of above-mentioned villages.
3. The Deputy Commissioner in turn on 8-4-1974, formed a Joint Inspection Team consisting of Revenue Assistant and D. F.
0., Jhelum valley Muzaffarabad for the purpose. The Inspection Team submitted its report to the Collector in the month of January, 1975, to the effect that land detailed in para. No, 2 of the writ petition, and forests standing thereon, belong to the appellants and they also retain its exclusive possession.
4. The Deputy Commissioner/Collector, on the basis of this report, certified (vide Annexure 'B' with the writ petition) that the appellants were owners of the land under forest and the possession also falls with them. After having this certificate, the appellants approached the Government for an order for extraction of timber from these forests. After a chequered history, which need not be stated here, the impugned Government order dated 25-1-1976 addressed to Chief Conservator of Forests, was issued by respondent No, 2 (copy at Annexure 73' with the writ petition). This order asked the Chief Conservator of Forests to effect immediate marking and then issue work order. . It also entered that the land and the forest thereon, was the property of the appellants.
5. Chief Conservator of Forests, however, declined to mark the trees and issue the work order. He raising certain objections, submitted the file to Chief Secretary respondent, on 7-4-1976 for reconsideration, who, in turn submitted the file to Minister for Forests. The Forest Minister, on 12-5- 1976, sent the file back to the Forests Secretary and Chief Secretary for implementing the Government order. The file for a considerable time remained rolling in different Departments but the appellants failed to reap the fruit of the Government order as its implementation had all along been refused by the Chief Conservator of Forests.
6. The appellants feeling aggrieved by the conduct of Chief Conservator of Forests, invoked the extraordinary writ jurisdiction of the High Court under section 44 of the Interim Constitution Act by way of writ petition and asked for an order of mandamas to the respondents for implementation of Government order dated 25-1-1976 in directing respondents Nos. 1 and 2 to mark the trees and issue the work order. The petition was admitted for regular hearing on 17-7-1977. During the pendency of the writ petition, another order dated 5-11-1977 issued on behalf of the Chief Executive Azad Kashmir Government, who by that time, under law, assumed the power of the Government, cancelled the Government order earlier passed on 25-1-1976. By way of an amendment in the writ petition, this later Government order was also challenged on the ground that the Government could not recall the earlier order which had attained finality. The respondents resisted the petition on the ground that the Government, for various reasons, had the power to rescind the order. The High Court, as earlier stated, disallowed the writ of mandamus but discharged the subsequent cancellation order as it was passed behind the back of the appellants.
7. The appellants, in this appeal, assail the judgment of the High Court and submit that the judgment may be varied to the extent of issuing a writ of mandamus to the respondents, particularly respondents Nos. 1 and 2, for the implementation of Government order dated 25-1-1976 and for setting aside the subsequent Government order passed on 5-11-1977 by virtue of which the earlier order dated 25-1-1976 was cancelled. Certain other orders were also sought to be implemented, but in our view, as all such orders merge in the Government order dated 25-1-1976, they lose their importance and need no determination.
8. The only point which requires determination is whether the Government was competent to recall the Government order dated 25-1-1976 on 5-11-1977.
9. In this context, it had been contended by the learned counsel for the appellants that after passing the Government order dated 25-1-1976, the Government had became Functus officio' and lost `locus poenitentiae' to cancel the said order because by virtue of this order the appellants were clothed with valuable rights which could not be snatched away subsequently by the Government.
His case, concisely, is that after passing the order dated 25-1-1976, nothing was required to be done by the Government and the order was complete an final in all respects not capable of rescinding and it had to be acted upon and implemented by the Chief Conservator of Forests. To substantiate his contention, it had been stated that respondent No, 1 (Chief Conservator of Forests) even had passed the necessary order for implementation of this Government order and in fact, had sent the case to the concerned Conservator for marking the trees as is evident from the written statement filed by the Government.
10. The question which falls for determination is whether on the facts of the case, the Government was competent to recall its order passed on 25-1-1976.
11. Before embarking upon to decide this point, it would be advantageous and beneficial to know the law relating to sale and development of private forests in Azad Kashmir. The rules on the subject were framed by the Government in the year 1958, under a Government Order No, 405/58 which reads:- "In pursuance of the provisions of section 2 of the Azad Kashmir Land Revenue Amendment Act of 1955, the Azad J & K Government is pleased to make the following rules regarding sale and development of Private Forests:-
(I) These rules may be called the Azad Kashmir Rules for Sales and Development of Private Forests.
(II) These Rules shall apply to whole of Azad Kashmir territory and shall come into force at once.
(2) These Rules shall not in any way effect the provisions of illaqadars undemarcated rules sanctioned under Council Order No, 1192-C of the year 1941.
(3) Definitions.-In these rules unless there is anything repugnant to the subject or context:- (a)"Owner" means land lord or Zamindar in whose name the ownership of land in question is entered in the Revenue records.
(b)"Private Forests" means area bearing trees, that is assessed to land Revenue and over which the Owner has undisputed right of Ownership.
(4) Sale and Management of Private Forests.-The owner of a private forest who wants to utilize his forest for commercial purposes will apply to the Chief Conservator of Forests Azad Kashmir Government, who is authorised to sanction the sale of trees subject to and in accordance with these rules.
(5) The Chief Conservator of Forests shall refer the application of the owner to the Revenue Department for verification of his title to the forest.
(6) The Chief Conservator of Forests will- sanction working (sale and Development) of the forest only if - (a)the forest is capable of yielding (i) at least 50 trees of 24* diameter and above, at breast height under selection-cum-improvement system of (ii) 400 trees of smaller dimensions under thinning- cum-improvement system; (b)It is certified by the Deputy Commissioner of the District that the applicant is undisputed owner of the land and the Forest in question; and
(c) the owner undertakes, in writing, to abide by and carry out the operations, to be specified, that may be prescribed by the Forest Department for the protection and development of the Forests.
(7) The Nishandehi of private forest to be marked for sale and Development will be given by a Revenue Officer of the rank of the Revenue Assistant or above, to a representative of the Forest Department who will be of the rank not lower than that of the Divisional Forest Officer.
(8) After the sanction is issued by the Chief Conservator of Forests the owner will hand over the forest to the Forest Department for purpose of sale and management for a period to be fixed by the Chief Conservator of Forests in consultation of the owner.
(9) On receipt of the Chief Conservator of Forests trees will be measured, marked and numbered by the Divisional Forest Officer of the Division.
(10) Copies of the marking lists will be sent to the Chief Conservator of Forests who will draw up the tender Notice and arrange sale of the Forest in the manner applicable for the sale of Government forests. In exceptional cases the Chief Conservator of Forests, may, however, allow the forest to be worked out by the owner himself, under the supervision of the forest authorities provided that he has adequate finances at his disposal and has the capacity to complete the job within reasonable period of time.
(11) Twenty-five per cent. Of the gross-sale-proceeds will be charged by the Government as supervision and Development charges and the balance paid to the owner, provided that ten per cent. Shall be treated as Government revenue and fifteen per cent. For the development of the forests. The fund for development will be utilized in consultation with the owner and the manner in which the amount will be spent will be determined by an agreement to be executed by the owner with the Forest Deptt. Under rule 6(c) of these rules. In case the forest is worked by the owner himself the value of the trees marked and meant for sale will be assessed at the average rates offered by the Forest Lessees, in the forest Range in which the private forest is situated.
(12) (a) If the owner contravenes the provisions of these rules or fails to abide by the terms of the agreement entered into by him with the Forest Department under rule 6(c) the Chief Conservator of Forests may direct the sale of the trees marked and confiscate an amount not exceeding one- half of the value of trees marked for sale.
' If after the completion of the work the owner contravenes any provision of these rules or any terms and conditions of the agreement relating to the Development or the Private forest the Chief Conservator of Forests may, if he deems necessary, retain possession of the private forest for the purposes of development for a period not exceeding ten years.
(13) Sale of wood from private forests in a year shall not exceed 1,00,000, cft. Of conifers and 20,000 cft. Of broad leaved trees throughout Azad Kashmir Territory."
12. The Azad Government of the State of Jammu & Kashmir then in exercise of the power conferred by section 2 of the Azad Jammu & Kashmir Land Revenue (Amendment) Act, 1955, effected certain amendments in rules 4, 6, 8, 10 and 13 of the said Government Order and also added a new clause as clause 14, vide Notification No, Forests/4392-95/76 dated 1/3-11-1976. The Notification reads:- "In exercise of the powers conferred by section 2 of the Azad Kashmir Land Revenue (Amendment)
Act, 1955, the Azad Government of the State of Jammu & Kashmir is pleased to direct that in the Azad Kashmir Rules for sales and development of private Forests, the following amendments shall be made namely:-
(1) For rule 4, the following rule shall be substituted, namely:- `4. The undisputed owner of a private forest who wants to sell his forest for commercial purposes will apply in writing to the Chief Conservator of Forests requesting for the sanction of the same in accordance with these rules.'
(2) For rule 6, the following rule shall be substituted, namely:- "6. The Chief Conservator of Forests will submit the case to the Government through the Secretary Forests provided that:-
(a) the forest is capable of yielding (i) 50 trees of 2e D B H and above under selection-cum- improvement system, or (ii) 400 trees of smaller dimensions under thinning-cum-improvement system.
(b) It is certified by Deputy Commissioner of the District that the applicant is undisputed owner of the land and the forest in question.
(c) The field map of the forest applied for is available.
(3) For rule 8, the following rule shall be substituted, namely:- `8. After the sanction is issued by the Government as to the sale and development of forests in favour of the owner, the owner will hand over the forests to the Forest Department for the purpose, for a period to be fixed by the Chief Conservator of Forests.'
(4) For rule 10, the following rule shall be substituted, namely:- `10. Copies of the marking lists will be sent to the Chief Conservator of Forests who will arrange extraction and sale of the forests in the manner applicable for the sale of Government Forests.-The extraction and sale of forests will be done directly by the Forests Department A. K. L. A.S. C. In accordance with the procedure to be laid down by the Chief Conservator of Forests.'
(5) For rule 13, the following rule shall be substituted, namely:- `13. Sale of wood from private forests in a year shall not exceed 2,00,000, eft. Of conifers and 20,000 eft. Of the broad leaved trees throughout Azad Kashmir territory.'
(6) After rule 13, as amended, the following new rule shall be added, namely:- `14. The royalty rates for 'assessing the gross sale proceed will' be determined and reviewed by the Forest Department keeping in view the market trend. The Chief Conservator of Forests shall be the final authority to fix the royalty rates in case of any dispute arising between the owner and the Department." (underlining* is ours).
13. It is thus manifest that under rule 2 of the notification, the Chie Conservator of Forests is only competent to submit the case of private forest to the Government and besides other requirements, the existence of field map of the forest applied for under sub-clause (c) of the rules is a must and without this no case legally can be sent to the Government. In this case, it is a common ground between the parties that the field map of the land in dispute A. Was not available. Then how, in violation of the notification relating to the sale of trees, the Government order dated 25-1-1976 was passed, we fail to understand. The Government order passed on 25-1-1976 in favour of the appellants, for this solitary reason, shall be deemed to be defective, bad in law and the Chief Conservator of Forests, in our view, was well advised not to act upon such an order.
14. Under rule 8 of the notification, after the sanction of the Government in favour of an owner, the owner is required to hand over the forest to the Forests Department for a period to be fixed by the Chief Conservator of Forests. Under rule 9, the Chief Conservator of Forests, in turn, will get the trees measured, marked and numbered by the Divisional Forests Officer Were in italics] of the Division.
After that the rule 10 provides that the copies of the marking list will be sent to the Chief Conservator of Forests who will arranage extraction and sale of the forest in the manner applicable for the sale of the Government forests. Under this rule, the sale is necessarily if not permitted to be done otherwise to be done by the Forests Department/AKLASC in accordance with the procedure to be laid down by the Chief Conservator of Forests.
15. In the instant case, it would appear that none of the legal requirements as stipulated under law, were fulfilled; the forests were not handed over to the Forests Department, no marking was ordered by the Chief Conservator of Forests as stipulated under rule 9 and naturally no question of extraction and sale of forests could arise as that stage had not as yet reached. It thus admits of no doubt that the Government order had not been acted upon and no decisive steps were taken by the Department for the implementation of the Government order. Until the decisive steps, in compliance of the order as embodied in the notification and rules, have not been taken, it cannot be said that any right whatsoever has been created in the appellants. The Government order and notification pertaining to the sale of timber have the force of law and any order of the Government in violation of any of the provisions of this law shall have to be construed as an order bad in law and the cancellation of such an order in the year 1977, in our view was justified.
16. It has been, as earlier said, vehemently argued by the learned counsel for the appellants that the Government had done everything that was necessary for it to do and for that reason the Government was functus officio' and had no 'locus poenitentiae' to cancel the order. We are afraid we cannot agree with it. The 'locus poenitentiae' lies with the Government for cancellation of the order if the order, as said elsewhere, had not been carried into effect; and more so when it is an illegal order. The crux of the matter being whether the order has been acted upon in taking necessary physical steps to make the same effective and if such a step has been taken, and the order is acted upon, then only and not otherwise it confers rights upon the appellants. In the instant case steps under Government Order No, 405/58 and subsequent Notification dated 1/3-11-1976 have not yet been taken and as such the appellants had no cause of action when the cancellation order was passed in the year 1977.
17. In our view, the authority that has the power to make an order has also the power to undo it to retrace the step. Of course, this is subject to the exception that where the order has taken legal effect and in pursuance thereof, certain rights have been created in favour of an individual, such an order cannot be withdrawn or recalled to the detriment of those rights. In such cases, the doctrine of 'locus poenitentiae , i. e. Power of receding till the decisive step is taken, is always available to the Government of the relevant authorities apart from the provisions of section 21 of the General Clauses Act.
18. The contents of the Government order dated 25-1-1976 show that it was only a communication about principal course of action in the matter to be taken by the Department. It only directed the Chief Conservator of Forests to mark the trees and then issue the work order, which was not done.
This order was detained in the Office of the Chief Conservator of Forests who, seems to have cautioned the Government that the order is not proper. The Government reconsidered the matter and concluded that it was a wrong step and for that reason redressed the same before it had been acted upon or had taken any legal effect by the Chief Conservator of Forests. It clearly indicates that the final decisive step was not taken for implementation of the order when it was recalled in the year 1977. It admits of no doubt that the Government order, per se, does not create any right in the appellants as it was never acted upon in marking the trees and issuing the work order. It cannot therefore, be said that any vested right had been created in favour of the appellants prior to the withdrawal of the order. If marking of the trees would have been made, of course, the question of vested right would have gained some importance. The phrase `taking a decisive step' or the alternative phrase 'carrying an order into effect' as used in respect of an order capable of a physical implementation cannot mean 'mere documentation', but must connote the taking of an active physical step by which alone the order could be effectively implemented.'
19. Vested rights would have gained some importance if the trees would have been marked because in that case it may be said that decisive step was taken for implementation of the Government order. It, therefore, follows that so long the order of the Government is not acted upon, it just remains a formal order and amounts to mere 'documentation' and 'inchoate' order.
20. Two decisive steps, to create a right in this case, were required to make the order effective; first being to mark the trees and then issue the work order. But as it is nobody's case that any such steps were taken prior to the cancellation order made by the Government in the year 1977, no vested right can be claimed by the appellants on the basis of such an order which was still in the process of documentation. It thus admits of no doubt that mere issuance of a Government order, per se, does not create any interest whatsoever until the order is not physically implemented.
Vested right, may also be said to mean an immediate fixed right for enjoying a thing. It is a right which can be enjoyed immediately by a person. But here in this case, marking of trees was not effected, no work order was issued. How can then it be said that any right whatsoever had come to reside in the appellants.
21. In these circumstances, the arguments that the Government order dated 25-1-1976 had taken a legal effect or created a vested right in favour of the appellants is not available to the appellants.
22. The Government order only directed the Chief Conservator of Forests, to mark the trees and issue the work order. But admittedly trees have not been marked and no work order was issued in implementation of the Government order. It is thus evident that the first Government order when it was recalled on 5-11-1977 was not still implemented.
23. Let us now deal with the case-law. The learned counsel for the appellants, besides some other authorities which have no bearing to the facts of the present case, has relied on the following cases:-
(1) PLD 1956 FC 46 (2) PLD 1956 Sind 101
(3) PLD 1969 SC 407 (4) PLD 1953 Dacca 422
(5) PLD 1963 Lah. 32 (6) 1970 SCMR 673
(7) PLD 1970 SC 437
24. We have gone through all the authorities. The authorities mainly dela with the question as to how vested rights come to reside in a person under Government order or notification, what is a decisive step, when an order or notification becomes final and when the authority issuing the same seizes to have any power to rescind it. However, the cases referred to above shall be critically examined but before discussing the authorities, it would be necessary to know whether the law laid down in a case in its peculiar circumstances, can be said to have applicable to all the cases. The judicial decision primarily applies to facts on which it is given. Such observation, generally is made on consideration of the peculiar facts of a particular case. If they are applied indiscriminately to other cases, it is likely that it may result in miscarriage of justice. A case in fact, is an authority applicable to the facts of a particular case and not for any general purpose, that may seem to follow logical from it. Obviously it would not be safe to rely on general proposition of law decided in any individual case to form foundation for general principle because the observation in a judgment separated from the context would not support the isolated data in another case. It would consequently be misleading to apply the inference drawn from certain facts and circumstances to other cases based on different facts and circumstances. In view of this state of law, the law laid down in a case, generally only applies to the facts of that case and it cannot be said that such a law attains authenticity for every case of the nature.
25. In case of Shehbaz v. The Crown (1), the facts were:- `The appellant was convicted of murder and sentenced to death on 5th February, 1953, by the Sessions Judge of Sialkot. On Appeal the High Court of Lahore upheld the conviction but reduced the sentence to transportation for life on 6th May, 1953. Towards the end of 1953, the brother of the appellant moved the Government of the Punjab for the remission of the appellant's sentence and early in August, 1954, the Punjab Government passed orders remitting the sentence of the appellant unconditionally with the direction that he should be released on the Independence Day i. e. 14th August 1954. But this order was cancelled on the 13th August with the result that the appellant was not released on the Independence Day. Thereupon an application was filed on his behalf for the issue of a writ in the nature of habeas corpus which was dismissed by the High Court of Lahore and maintained by the Federal Court.'
' It was argued in this case that the order of remission of the sentence was unconditional and could not be cancelled, while on behalf of the Crown reliance was placed on section 21 of the General Clauses Act, on which it was argued, that it empowered the Government to rescind its earlier order.
It was held in this case that the Government was competent to recall the order and the principle of 'locus poenitentiae' i. e. The power of recalling till a decisive step is taken is left with the Government. If the order has not been carried into effect till then there is no reason to restrict power to modify or cancel such an order. The order in this case was to take effect on the 14th August 1954, which was cancelled on 13th. Order in the present case too had not been given effect to by the time, the cancellation order was passed in 1977.
26. The law laid down in this case is on all fours to our view that until the order is not carried into effect, there are no fetters in modifying or cancelling such order.
(1) PLD 1956 FC 46
27. In case of Pir Illahi Bakhsh v. Muhammad .4yoob Khuhro (1), the facts were that on the report of a tribunal, the Governor-General, in exercise of his powers, was pleased by order gazetted on 26th January, 1953, to disqualify Mr. Muhammad Ayoob Khuhro to be chosen as a Minister etc. On 20th of October, 1954, upon a petition by Mr. Khuhro the Governor-General by a gazetted order amended his order of the 26th January, 1953, so that the period of disqualification of the opponent should only run up to the 20th October, 1954. On or about 8th November, 1954, the Governor of Sind appointed the opponent as the Chief Minister of Sind which was challenged before the High Court and on behalf of Illahi Bukhsh it was contended that the Governor-General had no power to amend his previous order and that hence the Governor of Sind had no power to appoint the opponent, being still disqualified from appointment, as Chief Minister and prayed, for a writ in the nature of quo warranto. It was in these circumstances, held that once the Governor-General orders disqualifying a person holding a public Office is notified, the person is disqualified for the period mentioned in order, there being no expressed words authorising a second order by way either of amendment or rescission. It was further held that the order which empowered the Governor- General to make such order bears a close resemblance to the sentence which a Judge pronounces upon a finding of guilty and such an order, a solemn act, is made with all due regard to the facts and circumstances of the case, and like a sentence is presumably unalterable by the authority which has made it. Section 21 of the General Clauses Act (X of 1897) being inapplicable to the facts of Constituent Assembly. This case obviously also lacks similarity with the facts of the case before us and has no application.
28. In Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (2), it was observed by Sajjad Ahmed, J. (as he then was):- "There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus poenitemiae, i. e. The power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." (Underlining* is ours).
' In this case, the order fixing the basic salary of Rs, 1,000 per mensem for one Himayatullah Farukhi was made by the President on the 1st of October, 1959, when the Constitution of 1956, had been abrogated and the country was governed by the Laws (Continuance in force) Order, 1958. Under clause (II) of Article 6 of that Order, which was introduced by the Laws (Continuance in Force) (Sixth Amendment) Order, 1960, it was provided that nothing in that article or in any rule or enactment relating to conditions of service, shall be construed to limit or abridge the power of the President or a Governor to deal with the case of any person in the service of Pakistan in such manner as may appear to him to be just and equitable. Acting under
(1) PLD 1956 Sind 101 (2) PLD 1969 SC 407 *Mao in italics] ' this provision the President in the exercise of his super a constitutional powers fixed the salary of the respondent at Rs, 1,000 per mensem, nothwithstanding the fact that his earlier representation for the same purpose had been. Rejected by the Prime Minister of Pakistan. The order of the President was duly communicated to the Ministry of Communications and the respondent, and its implementation thus ensured became a part of the terms and conditions of the service of the latter (Himayatullah Farukhi) relating to his remuneration. By the time the President made the second order reducing his pay on the 26th of August, 1962, revoking the earlier one, the Constitution of the Islamic Republic of Pakistan, 1962, had been enforced which contained a protective provision in Article 178 that the terms and conditions of service of a person in the service of Pakistan as regards his remunerations and age, shall not be varied to his disadvantage.
29. In view of the above the President's subsequent order was, therefore, held void. This case obviously has no application to the facts of the present case. In this case the order of fixation of pay had been implemented and the appellant was getting the pay in pursuance of the order.
Apart from it, the pay was protected by the Constitution of 1962.
' In case Lt.-Col. G. L. Bhattacharxa v. The State (1), at page 444, on the facts of the case, it was observed:- "In the present case, there is no question of any misdescription. The description is meticulously accurate inasmuch as the petitioner in fact, was given a sentence of eight years' imprisonment by the Special Military Court. If we are to give effect to the context as specified in the order and with reference to which the Provincial Government made the order, we cannot come to the conclusion that a simple remission of four years was intended. An intention to grant a remission of four years simpliciter is negatived by the express language of the order and such kind of remission could only be spelt out by extrinsic evidence to that effect. No such evidence has been given by the petitioner.
The simple question before us is, whether the remission granted by the Provincial Government is four years out of the sentence of eight years' rigorous imprisonment, or is it simple four years, irrespective of the original sentence? The argument that the dominant intention is to grant a simple remission of four years presupposes that there is ambiguity in the language as used by the Provincial Government in the order that has been passed. If there is such an ambiguity, then extrinsic evidence to give a proper meaning to the words used would be relevant and admissible.
On behalf of the Provincial Government two affidavits have been filed which fully set out the circumstances under which the aforesaid order was passed indicating that the specific words in which the order has been couched should be given their plain and ordinary meaning. We have no reason to disbelieve the averments made in the said two affidavits filed on behalf of the Provincial Government and, in any event, such averments have not been challenged or controverted by the petitioner. It is stated in the said affidavit that the Provincial Government received a communication with regard to the order passed by the President, the terms of which have been fully set out above. It has also been stated that the said Government did not intend to pass a separate order or remission. The Provincial Government was directed to communicate the President's Order to the prisoner. It was
(1) PLD 1963 Dacca 422 ' thought that in order to give effect and legal validity to the President's Order, the Provincial Government was called upon to exercise its power given under section 401 of the Code. The fact is that instead of communicating the President's Order, the said resolution was passed by the Provincial Government and communicated to the relevant authorities. There can be no manner of doubt that the Provincial Government wanted to give a legal clothing to the President's Order and not to grant an independent remission. Having passed the order which was communicated to the prisoner and upon realisation of the correct position in law,, another communication was sent out to the effect that the order of, remission was passed by the President and not by the Provincial Government. Upon this there was cancellation of the said order` which was passed in the form of a resolution dated the 26th of June, 1962. It is, therefore clear that all along the line the Provincial Government only intended to give effect to the President's order. The specific language in which the order was passed and communicated to the petitioner gives no more than a remission of four years out of eight years which is exactly that has been done by the President. Therefore, the averments contained in the affidavits on behalf of the respondents unmistakably prove that what was intended was faithfully expressed in the order that was passed. These circumstances ' clearly show that what was intended was actually said. The respondents have sought to use the affidavits filed on their behalf not to modify the order passed by the Provincial Government but to explain the words - used in the order. The petitioner is, therefore, in this dilemma that whether the affidavits are taken into consideration or whether they are ignored, the same result would emerge ultimately. The actual words in which the order has been expressed leave no room for any doubt that a remission of four years was given out of the original sentence of eight years' rigorous imprisonment inflicted upon the petitioner. There is nothing before us on which we can hold that the dominant intention of the Provincial Government was to grant a remission of four years simpliciter. It is thus clear that, even if effect is given to both the orders, the result will be the same. The argument on behalf of the petitioner is based on a simple arithmetic by which the four years allowed by the President have been added to four years, which according to the petitioner have been granted by the Provincial Government. On what basis can this summing up be made? The resolution of the Provincial Government, which we have quoted above, makes no reference to the President's Order. The plain lavage of the order made by the Provincial Government makes it clear that the extent 'of the remission that was granted was only four out of eight years.'
' It is evident that the facts of this case, as stated above, show that they do not apply to the facts of the present case, which has got its own peculiar characteristics.
30. In case of Dr. Mahboob Rabbani v. Government of West Pakistan (1), the-facts were 'Petitioner was a Professor of Pharmacology in the King Edward Medical College, Lahore. He was to superannuate on the 13th of September, 1957, forenoon. On his query the Accountant-General by a letter(I) PLD 1963 Lab. 53 dated the 1st of August, 1957, informed him that he had 43 days' leave to his credit. Petitioner applied to the Government, through proper channel, on the 8th of August for this leave to be granted to him with effect from the 16th of August, 1957. The acting Principal of the King Edward Medical College by his letter, dated the 10th of August, 1957, addressed to the Director, Health Services, West Pakistan, Lahore, remarked that the petitioner should not be granted leave as regular revision lectures, practical and territorial classes were being carried on and no person could take his classes as the Assistant Professor was on vacation. The Director of Health Services, by his letter dated the 7th of September, 1957, categorically stated that the petitioner could not be allowed to go on leave and he could be allowed to do so only with effect from the date the Assistant Professor reported back for duty. He directed the recalling of the Assistant Professor from vacation immediately. The Assistant Professor did not come back and the petitioner retired on the 13th of September, 1957. On the 12th of September, 1957, a day earlier than his retirement, he applied to the Director of Health Services that he should be granted his earned leave to be enjoyed by him after his retirement as provided' under rule 8.22, C. S. R., Volume 1, Part I. His case was recommended by the Principal by endorsement dated the 12th of September, 1957. The Government of West Pakistan sanctioned under rule 8:22 of the aforesaid Rules earned leave for 28 days with effect from the 13th of September, 1957 (forenoon) in favour of the petitioner. This order was duly notified in the West Pakistan Government Gazette dated the 27th of September, 1957. The order, therefore, became operative from the 13th of September, 1957, and the petitioner became entitled to enjoy his leave as from that date.
' The Government again by its Letter No, S.
0. 1-12/21-57, dated the 7th of August, 1958, cancelled the leave granted to the petitioner vide Notification dated the 27th of September, 1957, referred to above. The petitioner then challenged this order through a writ petition and prayed that a writ of mandamus, or any other writ, be issued against the respondent directing it to honour its Notification dated the 27th of September, 1957."
' On the basis of the facts of the case, it was held by the learned Judge and in our view very rightly, that when an order becomes operative and it is carried into effect, it cannot be withdrawn or cancelled by subsequent notification. The facts of that case have nothing in common with the facts of the present case.
32. In case of Government of Pakistan through Secretary Ministry of Defence, Rawalpindi v. Haq Nawaz (1), the facts were:- ' Nawaz respondent was appointed as Lower Division Clerk on the 21st May, 1949, in the Ministry of Defence, Rawalpindi, on Civil side at Rs, 75 per month in the scale of Rs, 75-5-100-EB--5-180 through an executive order. Later on, it was realised that under the Central (Non-Gazetted) Civil Service (Revision of Pay) Rules, 1949, enforced on the 1st of April, 1949, the Lower Division Clerks were entitled to the scale of Rs, 60 4 100-EB-5--120 and the previous scale could not be allowed to the respondent as he was appointed after the enforcement of the said statutory rules. This mistake was rectified on the 11th August, 1949. The respondent and others who were adversely affected made representations to the Department. The (1) 1970 SCMR 673 Government of Pakistan, in the Ministry of Defence, regularised the appointment of five such appointees with effect from the date of their appointment in the original scale of Rs, 75-100. The respondent's claim was also accepted on the 7th of July, 1965t when a formal order containing the sanction of President to the fixation of pay at Rs, 75 in the revised scale of pay Rs, 75-180 was conveyed to him. This order was not implemented by the Department. The respondent, therefore, moved the High Court of West Pakistan, Lahore, in Writ Petition No, 1956 of 1966. The learned Judges of the High Court, by order dated the 19th February, 1970, came to the conclusion that as the order granting beneficial scale of pay to the respondent has not been contermanded, the petitioner must implement it.'
' In view of the facts of the case it was held that the order of the President revising scale of pay of the Lower Division Clerks which had not been called, the Department was obliged to implement it.
The case obviously is distinguishable and has no bearing on the facts of the present case. In the instant case, the order had since been cancelled. No doubt, if the. Government order dated 25-1- 1976 would have been intact and legal, the Chief Conservator of Forests may be said to be obliged to carry it out and not otherwise.
33. In Collector of Central Excise and Land Customs and 3 of others v. Azizuddin Industries Ltd., Chittagong (1), the question involved was, whether exemption from excise duty granted by the Central Board of Revenue by its notification dated 30-6-1961 could be withdrawn or curtailed by its notification dated 28-2-1964. In the circumstances of the case it was observed that it is a settled rule that an executive authority cannot in exercise of its rule-making power or the power to amend, vary or rescind an earlier order to take away the rights vested in the citizen by law. If a person had acquired vested right of exemption from the levy of excise duty on all the goods, produce or manufacture by it for a period of four years under the notification of the Central Government that vested right could not, therefore, be taken away by an executive action. In these circumstances it was held that the notification passed on 28th February, 1964, being completely destructive and the right already vested is without lawful authority and of no legal effect.
' This case has no similarity with the facts of the case before us, as no vested right in the instant case accrued to the appellants.. Therefore, it has no bearing on the facts of the present case.
34. The authorities cited by the learned counsel for the appellants therefore, as discussed above, also fortify our view. However, each case has its own facts to decide as to whether decisive step for the implementation of order had been taken or not. But the general proposition of law that until decisive steps for the implementation of order have not been taken, the authority passing the order is competent to cancel or modify it, remains unaltered.
In view of the above, the contention that the order became effective] right from the date of its issue i. e. 25-1-1976, being misconceived, stands repelled. The order shows that the decisive steps, to make it effective, were only to be taken by the Chief Conservator of Forests for marking ih (1) PLD 1970 SC 439 trees and issue the work order. No such steps were taken by the Chief' Conservator of Forests. ' the view we have taken in the matter, we see no reason to interfere with the judgment passed by the Division Bench of the High Court. The appeal, therefore, stands dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.