1. MUHAMMAD YAQUB ALI, J.--The question raised in this appeal by special leave of the Court is whether the Commissioner of a Division acting as an appellate authority under the West Pakistan Control of Goondas Ordinance, 1959, hereinafter referred to as the Ordinance, can suspend the operation of the impugned order without an express provision to that effect in the Ordinance.
2. In pursuance to a complaint lodged by the Police under sections 13 and 14 of the Ordinance, the District Tribunal, Sukkur, by order dated the 8th May 1967, restricted the movements of Pir Abdur Rahim for a period of one year to the Municipal limits of Sukkur against which he filed an appeal under section 18 to the Commissioner Khairpur Division. Simultaneously he applied for interim stay of the order of the Tribunal, but the Commissioner expressed his inability to grant the relief in the view that under section 18 of the Ordinance he was not possessed of the power to stay the execution of an order brought in appeal before him.
3. Ali Sher Sarki, respondent, a friend of Pir Abdur Rahim, thereupon filed a Writ Petition in the High Court calling in question the order of the Commissioner as without lawful authority on the contention that the power to grant interim relief was implied in the power to set aside the order of the Tribunal at the final hearing of the appeal.
4. The writ petition was allowed by the High Court on the 28th September 1967, on the finding that the power to direct interim suspension of an order under appeal was ancillary to the power conferred on the Commissioner by section 18 of the Ordinance to inter alia discharge a person from the declaration by the Tribunal that he was a goonda and to remove the restriction placed on his movements to specified limits. It was observed by the learned Judges that under section 19 of the Ordinance a revision lies to the High Court from the order passed by the Tribunal or a Commissioner in a case under sections 4, 13 and 16 on the ground that the Tribunal or the Commissioner appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally. No doubt could, therefore, be felt that upon such a revision being filed the High Court had the power to suspend the operation of the impugned order pending the disposal of the revision petition though no such power is conferred on the High Court by the Ordinance. In the opinion of the learned Judges the same power must be implied in the provisions of section 18 which authorised the Commissioner to discharge the person complained against or dismiss the appeal preferred by him or to modify the order appealed against in such manner as he may think fit. Support for this view was found from the decision of this Court in Syed Sardar Shah Bokhari v. The Chief Justice and Judges of the High Court of West Pakistan in which it was held that the power to direct ad interim suspension of the licence of an Advocate against whom an inquiry was pending is ancillary to the power of punishment after final adjudication and, therefore, the High Court should be deemed to have the inherent power to pass such an order in an appropriate case.
5. Leave to appeal was granted to the State to consider whether the power to suspend or modify an order pending the hearing of an appeal cannot be implied, but must be specifically conferred by statute. The learned Advocate-General was unable to cite any rule of construction to support the plea raised in the appeal. He, however, drew our attention to the provisions of section 426 of the Code of Criminal Procedure which provides that pending any appeal by a convicted person the appellate Court may for reasons to be recorded by it, in writing, order that the execution of the sentence or order appealed against be suspended and if he is in confinement, that he be released on bail or on his own bond. From this the learned Advocate-General concluded that the power to suspend the operation of an order passed by the Tribunal under sections 4, 13, 16 and 18 of the Ordinance could be conferred by similar provisions and not otherwise implied. He also referred in this behalf to the provisions of the West Pakistan Criminal Law (Amendment) Act, 1963 (Act VII of 1963) under which the Commissioner may in exercise of his appellate jurisdiction exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure which includes the provisions of section 426.
6. As proceedings against the respondent were we did not have the advantage of hearing arguments in support of the opposite view. Our own analysis, however, inclines us to the v. view adopted by the learned Judges in the High Court. Under All Sher the monograph : 'Implied Powers and Obligations" p. 350, Maxwell 1962 Edn., the following statement appears : "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdiction data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potuit."
7. Inter alia the following instances are cited under the rule :
(i) The Act which empowers justices to require reasons to take an oath as special constables, and give them jurisdiction to inquire into an offences, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise, the jurisdiction could not be effectually exercised Cf. R. v. Tayford (1836) 5 A & E 430.
(ii) Where an inferier Court is empowered to grant an injunc-tion, the power to punish disobedience to it by commitment is impliedly conveyed by the enactment, for the power will be useless if it could not be enforced. Exh. P. Martin (1879) 4 Q B D 212 ; an act which authorises the making of by-laws impliedly authorises the annexation of a reasonable pecuniary penalty for their infringement, recoverable in the absence of other provisions by action or distress Hall v. Nixon (1875) L R 10 Q B 152; and (iv) where a statute empowers a justice to bind a person over or to cause1 him to do something, and the person in his presence, refuses, the justice has implied authority to commit him to Jail till he complies.
8. Before subsection (2) was added to section 476, Cr. P. C., an order directing that a complaint be made to a Magistrate for holding an inquiry into an offence referred to in section 195 was not open to appeal. However, a revision petition lay to the High Court under section 439, Cr. P. C. In Nga San Tin v. Emperor a question arose whether the High Court could while setting aside the order further direct that the proceedings before the Magistrate shall cease. Following the rule of justice and propriety Mr. Justice Hartnell, Judge of the Lower Burma Chief Court, observed as follows : "The Magistrate to whom the case was sent has proceeded under section 476(2) and so the further question arises as to whether, if the order passed under section 476(1) is set aside, this Court can stop the proceedings of the Magistrate acting under section 476(2). Section 439 of the Code gives this Court power, when acting in revision, to exercise the powers conferred on a Court of appeal by section 423, and clause (1)(d) of that section gives the power to make any consequential order that may be just or proper. It seems to be only just and proper that, if an order under section 476(1) is set aside, the proceedings under section 476(2) shall also cease. To allow them to proceed would render of no avail an order cancelling an order under section 476(1) and would permit a trial to be brought to a conclusion for proceeding with which it has been ruled that no grounds exist."
9. The same rule will apply to the construction of section 18 of the Ordinance. Under section 13 the Tribunal may if satisfied as a result of the inquiry held by it that the person complained against is frequently drunk and disorderly in public, or is in the habit of using obscene or abusive language in public, declare that such a person is a goonda and direct that his name be publicly notified and be placed on the list of goondas. While making a declaration under section 13 the Tribunal may under the next succeeding section further direct the person complained against to furnish a bond for such period not exceeding two years restricting movement to any place or area specified in the order or may direct him to report himself at such times and places and in such mode as may be specified in the order or may direct that be shall not reside within areas specified in the order, etc. It has been seen in the instant case that the movements of Pir Abdur Rahim were restricted to Municipal area. Sukkur, for a period of one year. The Ordinance gave him the right of an appeal to the Commissioner under section 18. On merits the Commissioner might have felt satisfied that the order passed against him was prima facie not justified. He would have in that view discharged him, but what if the appeal comes up for hearing after one year. This would bring out clearly that the power to suspend the operation of an order passed by a Tribunal under section 13, 14 or 18 is ancillary to the power conferred upon the Commissioner by section 18 to discharge the person complained against on final adjudication.
10. In the above view the Commissioner, Khairpur, failed to exercise the jurisdiction vested in him by law to dispose of the application made by Pir Abdul Rahim for suspension of the order of the Tribunal dated 8th May 1967, pending the hearing of the appeal. The High Court was, therefore, right in setting aside the order of the Commissioner dated the 4th July 1967, and directing him to dispose of the application for interim stay on merits.
11. In the result, the appeal is dismissed but as the respondent has not put in appearance there shall be no order as to costs.
12. PLD 1965 SC 479 13 Cr. L T R 4922 1 2