JAMALUDDIN H. AHMAD, J.-Upon a complaint filed by an Inspector of Police, Karachi, under section 13 of the West Pakistan Control of Goondas Ordinance (XXX v of 1959), on 20-8-74, the District Magistrate and Tribunal Karachi, ordered issuance of non-bailable warrants against the petitioner, who was subsequently produced before the Tribunal on 31-10-1974 when an order under section 8(2) of the Ordinance authorizing his detention was passed. As the Tribunal could not keep him in detention for more than two months, a further order was passed by the Secretary to Government of Sind, Home Department which was dated 16-12-74 and by which the Government agreed to the petitioner's detention till the conclusion of the enquiry against him.
2. It is the case of the petitioner that he challenged the institution of proceedings and his detention under the West Pakistan Control of Goondas Ordinance as illegal on the ground that admittedly he had already been declared a Goonda on 9-10-68, by an order passed by the then District Magistrate and Tribunal, under the Karachi Control of Disorderly Persons Act. According to the petitioner, he could not, in law, be declared a Goonda for the second time and his detention in these proceedings was therefore illegal. As the Tribunal did not pass any orders to dispose of this objection, the petitioner had to file this petition.
As the petitioner had previously been detained under the Defence of Pakistan Rules and was now facing some other proceedings including proceedings under section 110, Cr. P. Code, he had in this petition also taken the ground that his detention under the Control of Goondas Ordinance was mala fide, but Mr. Sami Ahmad, the learned counsel for the petitioner, did not press this ground at the hearing, and confined his argument only to the legal ground stated above, and we shall proceed to examine the same.
3. Now although the order whereby the petitioner was declared a 'dangerous disorderly person' under the Karachi Control of Disorderly Persons Act has not been produced. But the list of convictions produced with the complaint, discloses that he was declared as such under sec--tion 12(2)(ix), (x), (xi) and (xii) of the Karachi Control of Disorderly Persons Act and was bound down to report at the Kalakot Police Station twice a week. These provisions read as under:- "Section 12(2):
(ix) keeps a drinking or gambling den, or place where opium or other intoxicating drugs are smoked or otherwise consumed, or makes a livelihood out of such den or place by acting as a tout or otherwise howsoever, or engages in the illicit manufacture or sale of liquor or opium or other intoxicating drugs; or
(x) behaves riotously in public by entering into -affrays, or otherwise howsoever; or
(xi) causes fear of alarm to the public or any section or member thereof, by issuing threats verbally or in writing, or by making, publishing or circulating false statements, rumours or reports; or
(xii) is a bully, who assaults or threatens persons with the object of causing fear or alarm, or to compel them to act or not to act in a manner in which they are not bound to act, or as the case may be, are entitled to act;" and Mr. Sami Ahmad contends that in spite of the repeal of the whole of the Karachi Control of Disorderly Persons Act, 1952 by section 29 of the West Pakistan Ordinance, the petitioner still continues to be a dangerous disorderly person which according to him is the same thing as a Goonda. To support his contention he referred to Mst. Kaniz Fatima alias Thanedarni v. The Commis--sioner, Lahore Division (PLD 1970 Lah. 368). In that case Mst. Kaniz Fatima had been declared a Goonda by the District Tribunal Lahore under section 13 of the Ordinance and some restrictions had also been imposed on her under section 14 of the same law. In appeal only the restrictions were removed, but the declaration remained, and that order was even affirmed by the High Court, in revision. After a lapse of about 3J years proceedings were again commenced against her under sections 13 and l4 of the Ordinance and the same being challenged by a writ petition, it was held:- "There is only one section in the Ordinance which deals with declaration of Goondas, and that is section 13. The power of the Tribunal is to declare a person as Goonda and to direct that his name be publicly notified in the prescribed manner, and be placed on the prescribed list of Goondas if the Tribunal is satisfied, as a result of an enquiry held under this Ordinance, that the person complained against indulges is one of the acts mentioned in the section itself. The net result of the satisfaction of the Tribunal is that a person is "declared a Goonda." Once such a declaration is made, so long as it remains in force, there could be no justification for the presentation of another application for his being declared a Goonda all over again. We have already seen that by virtue of section 25 of the Ordinance he remains to be a Goonda unless his name is ordered to be removed from the list of such persons on an application made to the Tribunal itself."
Mr. Sami Ahmad then merely wanted to adopt these observations as his arguments in the present case, but as his client had been declared a dangerous disorderly person under the Karachi Control of Disorderly Persons Act and not a Goonda under the West Pakistan Ordinance, he attempted to show that the two statutes being similar in effect, the repealing section 29 of the Ordinance read with section 4 of the West Pakistan General Clauses Act fully covered his case.
4. Now section 29 of the West Pakistan Control of Goondas Ordinance shows that the Karachi Control of Disorderly Persons Act was repealed as a whole, without expressly making any provision for the action or proceedings already taken under the repealed Act; and Mr. Sami Ahmad referred to Akhtar v. State (PLD 1961 Lah. 1049) a case in which it was held that proceedings started under the Punjab. Control of Goondas Act (XIV of 1951) had to continue and be concluded under the Act, in spite of its repeal. This was so although the District Tribunal under the repealed Act was constituted by the District Magistrate and the Superintendent of Police which was no more in existence, as under the repealing law, the Tribunal was only of one member and that was the District Magistrate in the District. It was observed :- "In Ordinance XXXV of 1959, there is no indication whatsoever that the pending proceedings are to be dropped or that they are to be governed by the new law. Thus, there being nothing to the contrary, the provisions of section 4(1)(e) of the West Pakistan General Clauses Act would apply, with the result that the proceedings which were pending before the District Tribunal, consisting of the District Magistrate and the Superintendent of Police, would be continued under the provisions of the Punjab Control of Goondas Act, 1951, under which they were initiated, notwithstanding its repeal. These proceedings carried their own law with them and had to be decided under the Act of 1951 and not under the Ordinance of 1959."
Mr. Sami Ahmad also referred to Sona v. State (PLD 1970 SC 265) in which, interpreting section 4(1)
(e) of the West Pakistan General Clauses Act their Lordships had observed that any legal proceedings in respect of any liability shall be con--tinued and punishment shall be imposed as if the Repealing Act has not been passed.
But the question involved in the present case is not exactly the same as the learned counsel had argued, because there was no proceeding pending against the petitioner under the Karachi Control of Disorderly Persons Act, at the time it was repealed, and the learned Additional Advocate- General referred to the proposition laid down in Saeed Ali Shah v. The State (PLD 1963 Kar. 10) in which case the Sind Control of Goondas Act, 1952 had been repealed during the pendency of proceedings against Saeed Ali Shah and others and the Tribunal instead of continuing the proceedings under the same Act, had proceeded to declare him a Goonda under the West Pakistan Goonda Ordinance and further directed him to furnish a bond under section 14 of the same. While setting aside the order, Mr. Justice Raymond who decided that case, observed:-- "The Criminal Law and all penal enactments have to be very strictly construed and in the present case the conviction clearly has been under the Ordinance of 1959. That the Tribunal could have imposed the same penalty under the Act of 1952, is no excuse for this illegality in commencing the trial under one Act and concluding it under another. Nor can it be said that this is a mere irregularity and not an illegality. The language of section 4 is mandatory and it says that the ' repeal shall not affect a pending legal proceeding which may be continued as if the Repealing Act had not been passed. In the face of these expressive words it cannot be held that the mistake committed in this matter is a mere irregularity and not an illegality."
Mr. Hafeez Lakho, the learned Additional Advocate-General fully relied upon these observations to show that a declaration by a Tribunal under one statute is not the same as declaration made under the other and that the Court had expressly held so in spite of the possibility of the two declarations being similar.
5. Obviously, the question in the present case was not one of continu--ing a pending proceeding under a subsequent repealing law or the repeating of similar proceedings under the same law, but the question was whether a declaration of this nature made under one statute would operate as a bar to making another similar declaration under a different statute or even com--mencing proceedings for that object, and as the observations in the cited case supported the submission of the learned Additional Advocate-General to an extent we asked Mr. Sami Ahmad to address us on this proposition. He however candidly expressed his inability to advance any arguments which might help to build his case upon the principle embodied in the ancient maxim nemo debet bis vexari pro eadem causa (no one shall be vexed twice over the same cause), but his submission was that the provisions defining a Goonda under the West Pakistan Ordinance being in terms very similar to those of the Karachi Control of Disorderly Persons Act, the declaration made under the repealed Act would continue to be operating till it is set aside or the petitioner's name is removed from the list of disorderly persons under Karachi Control of Disorderly Persons Act. Mr. Hafeez Lakho however pointed out that with the repeal of the Karachi Control of Dis--orderly Persons Act, all the lists mentioned under its provisions became in--effective. The procedure of removing the names of a disorderly person under section 25 of the Act, required recommendation from the probation officers who were appointed by the Provincial Government under section 24 of the Act and who were Police Officers not lower in rank than a Deputy Dir Superintendent. After the repeal of the Act their posts also ceased to exist. Under section 22-A of the West Pakistan Ordinance, Probation Officers are appointed, but they are under the Probation of Offenders Ordinance, 1960, sand such other Gazetted Officers as Government may by notification in the official Gazette appoint but they are for purposes of the said Ordinance for the local limits assigned to each.
In these circumstances, if the submission of Mr. Sami Ahmad be accepted, a disorderly person so declared under the Karachi Act would never be able to have his name removed, however, much he may improve in his conduct; and such can never be the intention of the law. The learned Additional Advocate-General then proceeded to compare the provisions of the two statutes to show that the term Disorderly Person could not necessarily be equated with a Goonda under the West Pakistan Ordinance, and that a declaration under the West Pakistan Ordinance could in certain cases be different from a declaration under the Karachi Act.
Now although the preamble of the West Pakistan Ordinance read: And Ordinance to consolidate and amend the law relating to the control of dis--orderly persons, commonly known as goondas, a comparison of the two defining provisions i.e. Section 12 of the Karachi Control of Disorderly Persons Act and section 13 of the West Pakistan Control of Goondas Ordinance, would show that the two terms are not exactly the same in their meaning and import. This would of necessity be so as the West Pakistan Ordinance was aimed at consolidating the law on the subject and therefore also attempted generally to include the definitions from all laws that it repealed, and which were applicable to the various parts of the then Province of West Pakistan The Karachi Control of Disorderly Persons Act categorized such undersirable persons in two classes, Disorderly Persons and Dangerous Disorderly Persons and in fact the two lists were required to be separately maintained. Under section 12(iv) any person addicted to smoking opium, and under section 12(vi) any person who made fraudulent collections in the name of charity, could be declared as disorderly person, and if in spite of being so declared a person repeated indulging in the same acts, he could under section 12(2)(:') be declared as a dangerous disorderly person; but under the West Pakistan Ordinance such persons could not be declared as Goondas, as there was no such provision.
Similarly any person who merely abetted the commission of any of the acts mentioned in any of the clauses of section 13 of the West Pakistan Ordinance, or harboured a Goonda, could himself be declared a Goonda bull not so under the Karachi Act. Clauses (a) and (b) of section 13 of the West Pakistan Ordinance could be equated with clause (Ix) of section 12 of the Karachi Act, which had been applied to the petitioner in this case, but the scope of the provision under the Ordinance is even wider, and includes a person who `manages' a den for consumption of intoxicants or gambling. So also clause (xii) of section 12, which describes the petitioner as a 'bully' is not included in section 13 of the West Pakistan Ordinance. Instead clause (o) of section 13, may apply to a person who indulges in criminal intimidation as defined in section 503 of the Pakistan Penal Code, and which would be wider in its scope. Besides this, the Karachi Act extended in its application to the limits of Karachi Division only, and the whole scheme of that Act shows that it was concerned with the activities of such disorderly persons, who operated within that area. It was, therefore, that a person externed under section 13(2) of the Karachi Act could safely lead his life in any other part of the Province with immunity. These and other instances of glaring dissimilarities in the definitions, general scheme and operation of the two statutes, according to the learned Additional Advocate- General sufficiently pointed out that a pre-existing declaration under the repealed Act could be different, and would not legally operate as a bar to the initiation of proceed--ings for a declaration under the West Pakistan Ordinance.
The West Pakistan Control of Goondas Ordinance was first promulgated in 1959, when Karachi area was expressly excluded from its operation. The Karachi Act XXXIX of 1952 which was & Central Act was to be in force for 5 years and extended to "the capital of the Federation." The Tribunal under this Act was to be appointed by the Administrator, for Karachi. This Act was, thereafter extended by the Central Act XXX of 1957, up to and including the 13th day of April 1962 and by that Act the Chief Commissioner became the appointing authority of a Tribunal. It is for the first time in the year 1962 that this Act came to be a Provincial Legislation and the date of its operation was extended to 13-4- 1963 by the Governor's Ordinance XV of 1962 and thereafter the Government of West Pakistan extended its date from year to year by issuing Ordinances, till by Ordinance VI of 1967 this time limit was removed. During all this time the West Pakistan Ordinance, 1959 operated in the Province of West Pakistan. And this distinction between the disorderly person of Karachi Division and the Goonda of the Province was maintained. By promulgating Ordinance XI of 1968, the Provincial Government extended the operation of the West Pakistan Ordinance, 1959, to Karachi Division and simultaneously by amending section 29 of the Ordinance repealed the Karachi Act, 1952. After this Ordinance XI of 1968 the law on this subject as in force in the various parts of the then Province of West Pakistan was consolidated and amended; and the proceedings against the petitioner have now been instituted under that law. And since the petitioner is challenging these proceedings on the basis of construction of certain terms of the repealed Act, it would be useful to quote the following passage from Craies on Statute Law Sixth Edition page 362:- "But it must not be forgotten that it is almost inevitable that in the process of consolidation, the re- arrangement of the former Acts and the, modernisation of the language should to some extent altar the law And often a consolidation Act is not a statute merely collecting into one chapter an original or principal Act with subsequent collecting amendments and modifications, but involves the co-ordination and simplification of former enactmentsin the process of consolidation there may be made such corrections and minor improvement as may be judged expedient being amendments of which the effect is confined to resolving ambiguities, removing doubts, bringing obsolete provisions into conformity with modern practice or removing unnecessary provisions of anomalies which are not of substantial importance and amendments designed to facilitate improvement in the form or manner in which the law is stated and including such transitional provisions as may be necessary in consequence of such amendment."
In Administrator-General of Bengal v. Prem Lal Mullick (221 A 107) it was observed: "The respondent maintained this singular proposition, that in dealing with a consolidating statute each enactment must be traced to its original source, and when that is discovered must be construed according to the state of circumstances which existed when it first became law. The proposition has neither reason nor authority to recommend it. The very object of consolidation is to collect the statutory law bearing upon a particular subject and to bring it down to date in order that it may form a useful code applicable to the circumstances existing at the time when the consolidating Act was passed."
6. The result in view of the above is that the term 'Goonda' under the consolidated and amended law, i.e. West Pakistan Ordinance, 1959, must be given its own meaning, and in absence of a statutory bar to the contrary, the proceedings to declare a person a Goonda under that Ordinance, cannot be held to be illegal merely because he is a declared disorderly person under the repealed Karachi Control of Disorderly Persons Act.