1. GHULAM RASOOL K. SHAIKH, J.-This is constitutional petition to challenge the order passed by the Commissioner of Karachi under section 3 (2) (c) and (d) of the Foreigners Act.
2. The petitioner is cousin of Lal Khan against whom the impugned action was taken by the learned Commissioner of Karachi. It was claimed in the petition that Lal Khan was living in Karachi since before Partition and carried on business. It was further claimed that on 27th August 1968, the Commissioner without giving any opportunity to Lal Khan passed an order to the effect that he was undesirable person and should leave Pakistan. Consequently an order was simultaneously passed for the arrest of Lal Khan and his deportation out of Pakistan. Lal Khan was arrested and handed over to Special Branch of Police, Peshawar for deportation to Afghanistan. He was taken to the Pak.- Afghan border and left at the border to proceed to Afghanistan. It was further stated in the petition that Lal Khan was ordered by the Afghanistan Police to leave Afghanistan immediately otherwise he would be arrested and prosecuted for entering into Afghanistan. Consequently Lal Khan had no alternative but to return to Karachi. He returned on 18th October 1968, but he was again arrested for violation of the order of externment and produced before the City and A. D. M., Karachi for trial under section 14 of the Foreigners Act, 1946. During the proceedings in the Court it was disclosed on behalf of the State that Lal Khan was arrested under section 14 of the Foreigners Act as well as in pursuance of the warrant issued under clause (g) of section 3 (2) of the Foreigners Act. Thereafter the present petition was filed.
3. The learned counsel for the petitioner challenged the order of the Commissioner whereby the petitioner was ordered to leave Pakistan and was subsequently deported on the ground that the Commissioner had no jurisdiction to pass the order after the merger of Karachi with West Pakistan and the power vested either in the Central Government or the Provincial Government and none of these Governments had passed any order.
4. On the other hand the learned Advocate-General suitably answered the aforesaid contention by referring to the various constitutional changes made in respect of the status of Karachi and the laws, rules, and the bye-laws applicable, and thereby he succeeded in establishing that the Commissioner of Karachi had the power under section 14 (2) (c) of the Foreigners Act to order externment of Lai Khan, out of Pakistan.
5. The constitutional changes which had been brought about fn respect of Karachi had been fully described by the Supreme Court in the case of Capt. Muhammad Azhar v. Commissioner of Karachi and another (PLD 1966 SC 25). Taking advantage of that we would like to reproduce it as under: "A brief reference to the history of laws applicable to Karachi will not here be out of place. Under section 290-A of the Government of India Act, 1935, the Governor-General had the authority to demarcate for the purpose of the Capital of the Federation an area forming part of a province to be the Capital of the Federation and on such demarcation the area was to cease to be part of province and the Governor---General was to have authority to make such provision as he deemed necessary or proper as to the laws which were to be in force in that area. The Constituent Assembly of Pakistan having passed a resolution to that effect the Governor-General by his Order No. 15 of 1948 promulgated in exercise of his powers under the Independence Act provided that the Capital of Pakistan would be located at Karachi and that the administra--tion of Karachi was to vest in the Governor-General who could act either directly or to such an extent as he thought fit through an Administrator. By Governor-General's Order No. 4 of 1952 Karachi was made Chief Commissioner's Province and Order 15 of 1948, was amended so that "Chief Com--missioner" was substituted for "
6. Administrator ". By a notification of 23rd July 1948, all powers of the Government of Sind has been conferred on the Administrator of Karachi being Notification No. 1/24/48-KAR and by notification No. 3/4/52-KAR 11 of 21st October 1952, the powers of the Governor of Sind were conferred henceforth on the Chief Commissioner. In 1955, came into force the Establishment of West Pakistan Act, but whereas the whole of West Pakistan the Chief Commissioner's Province was by this Act integrated as one province a provision was made in section 2 (2) of the Act that the Capital of the Federation would continue to be administered in accordance with section 290-A of the Government of India Act, 1935. Bar Governor-General's Order No. 22 of 1955 it was provided that the executive authority of the Capital of the Federation would vest in the Governor-General to be exercised to such an extent as he thought fit through a Commissioner or a Chief Commissioner to be appointed by him.
7. The Constitution of 1956 continued the authority of the Governor-General in respect of the Capital of the Federation. By President's Order No. 11 of 11-7-1959 it was provided that the Governor- General's authority could be exercised through a Commissioner or Chief Commissioner or an Administrator. By President's Order No. 20 of 1960, dated the 1st August 1950, called the Seat of Government Order, 1960, Karachi ceased to be the Federal Capital. It was henceforth to be known as the Federal Territory of Karachi and was to be administered by the President acting to such extent as he may deem fit through an "agent". On the 1st July 1961, by President's Order No. 9 of 1961, Karachi was merged in the Province of West Pakistan.
8. With respect to the applicability of laws it may be stated that by Article 6 of the G.-G's Order No. 15 of 1948, all laws in force were to continue in force in Karachi till other provision was made. When Karachi was merged in West Pakistan by President's Order No. 9 of 1961, a similar provision was not only with respect to the applicability of laws, but also with respect to persons exercising powers or discharging functions in Karachi before the 1st July 1961, who were to continue to discharge those functions till the repeal or amendment of the laws under which they exercised their functions, but who were henceforth to be under the control of the Government of West Pakistan instead of the President."
9. Thus it is clear that all laws including Acts, Ordinances. Orders, Bye-laws, Rules, Regulations and Notifications in force in Karachi before the merger continued to apply to Karachi after merger and the powers or functions conferred upon the Administrator were to be exercised by the Commissioner of Karachi till altered, repealed or amended.
10. Now turning to the Foreigners Act the power to make orders was vested in the Central Government for prohibiting, regulating or restricting the entry of foreigners into Pakistan or their departure from there or their presence or continued presence therein. The Central Government had also the power to order that the foreigner shall not remain in Pakistan as per clause (c). Further power was given under clause (g) for the arrest of the foreigner as well as in the interest of the security of Pakistan for detention or confinement.
11. In pursuance of Article 2 of the Capital of the Federation Order, 1955 (Governor-General's Order No. 22 of 1955) and in supersession of all previous notifications on the subject the Presi--dent was pleased to confer all the powers of the Central Government under section 3 (2) (c) and (g) of the Foreigners Act, 1946, apart from some other powers under the same Act upon: the Chief Commissioner of Karachi, subject, however, to certain limitations and one of the limitations is that the Chief Commis--sioner shall not make an order for arrest or detention of a person under clause
(g) of subsection (2) of section 3 of the aforesaid Act without the previous consent of the Central Government unless the arrest or detention is immediately necessary for preventing the foreigner from acting in a manner prejudicial to the defence, external affairs or the security of Pakistan. This notification is No. 10/6/54-Pool (1), dated 11-3-58 and published in the Gazette on 14-3-58 (vide PLD 1958 Central Statutes, 297). Similarly another notification was issued (PLD 1958 Central Statutes 298) whereby the President in pursuance of Article 127 (1) of the Constitution of 1956 conferred similar powers on the Provincial Governments.
12. It, therefore follows, that the powers under the Foreigners Act which were originally conferred on the Chief Commissioner were to be exercised by the Commissioner on account of the change of the designation as agent of the Central Government within the federal area of Karachi. As, already stated, the federal territory of Karachi was merged into the Province of West Pakistan by President's Order No. 9 of 1961 and, therefore, that territory became a division of the Province of West Pakistan under its administrative control. However, by Article 4 of the same order it was laid down:- "as from the appointed day any reference to the Specified Territory in any Act or Ordinance, or in any rule, regulation, order, bye-law or notification, shall be construed as a reference to the Province of West Pakistan, or as the context may indicate, to the Karachi Division."
13. It is, therefore plain that in the aforesaid notification conferring powers of the Central Government upon the Chief Commissioner of Karachi to be exercised within the federal territory of Karachi, we have to read "Karachi Division" instead of the "Federal Territory of Karachi". That being so, the Commissioner upon whom the powers had been conferred under the Foreigners Act by the aforesaid notification was required to continue to exercise the same powers and functions till notification was rescinded or some contrary notification was issued. It is an admitted position that neither the notification has been rescinded nor any contrary notification has been issued diverting the Commissioner of the powers conferred by the aforesaid noti--fication. Of course the powers were also conferred upon the Provincial Governments and were exercisable by the Provincial Government of West Pakistan of which Karachi was a division, but these were powers of the Central Government and the exercise of the same powers simultaneously by the Province of West Pakistan did not affect the exercise of powers by the Commissioner of Karachi which was exercised by him prior to the merger. Consequently the Commissioner was competent to pass the original order ordering the deportation of the petitioner out of Pakistan, and therefore, the action of the Commissioner in ordering the arrest of the petitioner on his re-entry into Pakistan and his prosecution are not open to exception.
14. In this view we are fortified by the same authority of the Supreme Court reported in PLD 1966 SC
253. In that case the appellant was serving as Development Officer, Basic Democracies within the Federal Territory of Karachi and charge-sheet was served upon him by the then Commissioner of Karachi on 20-1-61. Subsequently an amended charge-sheet was served upon him by the Commissioner on 4-12-61 and Mr. S. A. Raza, C. S. P. Was appointed as Inquiry Officer and he completed his inquiry on 6-11-62. On 28-12-62 a notice was served upon the appellant by the Commissioner calling upon him to show cause why he should not be removed from service. He made a reply to the notice challenging the legality of the inquiry on the ground that the inquiry was conducted under the rules applicable to the employees of the Central Government although the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 were applicable to him.
15. However, he was removed from service. It was held by the Supreme Court that the inquiry was validly conducted as it was completed on 6-1-62 but the show-cause notice which was served upon the appellant on 28-12-62 was invalid as the new rules had come into force and the Commissioner had no jurisdiction to serve show-cause notice, and this power vested in the Provincial Government itself.
16. Reverting to the present case, as already stated, that the notification conferring power on the Chief Commissioner of Karachi has not been rescinded and no contrary notification has been issued, that notification still holds the field and the Commissioner of Karachi continues to enjoy the same powers and as had been conferred by the notification.
17. The learned counsel for the petitioner, however, sought in aid another authority reported in PLD 1966 SC 971 but that case is clearly distinguishable. It was a case under section 417 of the Code of Criminal Procedure which empowered the Provincial Government to file appeal against an acquittal. But in that case the appeal was filed by the Commissioner of Karachi. It was laid down that since the acquittal appeal could only be filed by the Provincial Government and there could not be two Provincial Governments within the same area to exercise the powers, the appeal filed by the Commissioner was not competently presented. It was further observed that the effect of the earlier authorisation of the Commissioner or his predecessors was not to invest him with the power in his own tight but only as a delegatee of the Central Government. This observation, on the contrary, supports our view as the Commissioner in the present case had exercised the powers of the Central Government and not of the Provincial Government.
18. Since no other point has been raised before us this petition must fail. We, therefore, dismiss the petition.
19. K.B. A.