P L D 1965 681 (PLP)

S. A. RAHMAN, J.‑This is an appeal by the State by special leave from an order of the High Court of West Pakistan and raises the question whether during the pendency of a criminal case, if a change in the procedural law is effected by the competent Legislature, the trial is to be regulated by the old procedure or by the new one. The first three respondents to this appeal were being tries for an offence under section 420, P. P. C. by a Magistrate of the First Class at Dera Ghazi Khan, on a complaint lodged by the 4th respondent, Noor Khan. Some witnesses were examine in support of the complaint and on 16‑3‑64 and 26‑3‑64, the accused's statements were recorded under section 342 of the Criminal Procedure Code (hereinafter referred to as the Code The case was then apparently adjourned for hearing argument as to whether the framing of the charge would be justified or not. On the 1st of April 1964, the Code of Criminal Procedure (West Pakistan) (Amendment) Act, 1964, was brought . in force. This did away with the right given by section 256 the Code, to the accused to call for further cross‑ examination of the witnesses after the charge‑sheet, who had been examined earlier. The charge in the present case was actually framed on the 18th of June 1964. The accused 's plea was then recorded and a date fixed for examination of the remaining prosecution witnesses. On that date, namely, the 7th of July 1964, the complainant stated that he did not propose to offer any further witness for examination. A revision petition was filed on behalf of the first three respondents in the High Court of West Pakistan, Lahore Bench, praying that the proceedings against them be quashed. A point was also raised in the revision petition that the accused respondents had been illegally deprived of their right to recall the witnesses, examined before the charge, for further cross- examination, under section 256 of the Code. The High Court declined to quash the proceedings against the accused respondents but held that the right given by section 256 of the Code was a vested right which could not be taken away by the amending law. The soundness of this proposition is contested on behalf of the State in the present appeal. Section 256 of the Code as it stood before the amendment was in the following terms:‑ "256.‑(l) If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross‑examine any, and, if so, which, of the witnesses for the prosecution, whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross -examination and re‑examination (if any), they shall be dis charged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross‑examination and re‑examination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence. (2) If the accused puts in any written statement, the Magistrate shall file it with the record." ‑ After the enforcement of the amending Act, subsection (1) of section 256 reads as below:‑ "If the accused refuses to plead, or does not plead, or claims to be tried, the evidence of any remaining witnesses for the prosecution shall be taken, and the accused shall then be called upon to enter upon his defence and produce his evidence." Section 257 of the Code, as it originally stood, also provided that if the accused, after he had entered upon his defence, applied to the Magistrate to issue any process for compelling the attendance of any witness, for the purpose of examination or cross‑examination or the production of any of current or other thing, the Magistrate shall issue such process, unless he considers that such application should be refused on the ground that it is of vexation or delay or for defeating the trade for the purpose ends of justice. Such grounds were required to ho recorded by the Magistrate in writing. According to a. proviso to this J, section, the attendance of any such witness was not; to be compelled if the accused had cross‑examined or had the opportunity of cross‑examining, him after the charge was framed, unless the Magistrate was satisfied that it was necessary so to order for the purposes of justice. This section too suffered a change by the amending Act and subsection (1) of section 257 is now couched in these terms:‑ "If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness, other than a witness whom the accused has cross‑examined, for the purposes of examination or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be rejected on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing." It would thus appear that tinder the amended section 257, an accused person is debarred from recalling a prosecution witness who has already been cross‑examined. The result is that now under the amended section 256, no witness who has been cross‑examined before the charge, can be recalled for further cross‑examination arc section 257 is also now not available for recalling such a witness, whether examined before or after the charge, for the purpose of further cross‑examination. Of course, if the witness was not actually cross‑examined at all, though examined before the charge, he could be recalled for cross-examination under section 257 of the Code. It would follow that the witnesses for the prosecution, under the . amended procedure, can be subjected to cross‑examination only at one stage of the case; whether before or after the charge. The High Court took the view that the right to cross- examine and further cross‑examine is not a mere matter of procedure in a trial but that it is in the nature of a vested and substantive right which cannot be taken away by the retrospective operation of an amended statute relating to procedure. It was emphasized that, it is through cross‑examination alone that the veracity of a witness can be tested before the Court and that it is the fundamental right of the accused to subject prosecution witnesses to cross‑examination as a part of his right of defence. The main contention raised in support of the appeal by the learned Advocate‑General of the Province is that no one has a vested right in procedure and that alterations in procedure are, generally speaking, regarded as applying even to pending cases, unless there be some good reason against taking that view. Our attention has been invited in this connection to Maxwell on the Interpretation of Statutes, 1962 Edition, at page 216 et seq. The general principle is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights, (vide Maxwell, p. 212). Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, says Maxwell at p. 217 of his Book, the general principle seems to be that alterations in procedure are retrospective unless there be, some good reason against such a view. The same principle is affirmed by Crawford in his Book on Statutory Construction, at page 568 of the 1940 Edition. It is added, however, that in numerous instances the right and the procedure connected with it, may be so closely related, that the alteration or abrogation of the latter would operate .to impair or destroy the former. The learned author further expresses the opinion that laws of a retroactive nature, affecting the rights of individuals, would be upheld, if the change is according to equitable principles and highly promotive of the general good. The learned Advocate‑General also drew our attention to the remarks at p. 646 of this Book where the learned author says that if the right created by the repealed law, at the date the repeal becomes effective, has not vested, then it may be impaired or totally abrogated by the new enactment. In the present case it is argued that the right to recall for further cross -examination, a witness examined before the charge, could only arise when the charge had been framed and therefore no such, right had been impaired in the present case when the amending law came into force as the charge was framed thereafter. He pointed out that a person may be discharged from a case before a charge had been framed and no occasion would arise then for subjecting a prosecution witness to further cross‑examination. The right, he contends, becomes an "existing vested right" only after the charge is framed and that contingency did not arise before the amendment of the law. There appears to be force in this contention. The rule is thus stated in Halsbury's Laws of England, Vol. 36, 3rd Edn. at p. 423. "The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters ‑ of procedure or of evidence, are prima facie, prospec tive, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the Legislature". Again at page 426 it is recited "The presumption against retrospection does not apply to legislation, concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament. Thus, for example, provisions relating to the time for the bringing of proceedings are regarded, in the absence of any indication to the contrary, as having been intended to apply to all proceedings instituted after their commencement, notwithstanding that the cause of action arose before that tithe". Further, down the page, the learned author says "It is presumed, moreover, that procedural statutes are intended to be fully retrospective in 'their operation, that is to say, are intended to apply not merely to future actions in respect of existing causes, but equally to proceedings instituted before their commencement. Thus provisions regulating, or empowering the Court to regulate, the course of proceedings, affect proceedings pending at their commencement, unless an intention to the contrary is clearly shown. To the extent, however, that the effect of applying a procedural enactment retrospectively, would be to deprive a person of a vested right, retrospective effect will not be given to it without plain words, so that, for example, the right of a plaintiff to continue an action already begun, was not affected by a subsequent statute 'imposing a period of limitation, whilst the applicability to pendinb proceedings, of a provision altering the structure of appeals, may depend on whether it increases or reduces rights of appeal." Craies on Statute Law, Fifth Edition, has the following observations at pages 370 and 371: "But there is no vested right in procedure or costs. Enact ments dealing with these subjects apply to pending actions, unless a contrary opinion is expressed or clearly implied." Then the learned author gives a quotation from a decided case as follows:‑ "It is perfectly settled that if the Legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be." This is followed by another quotation from another case to the effect that a statute cannot be said to have a retrospective,, operation because it applies a new mode of procedure to suits commenced before its passing. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future. It is only if it be‑ more than a mere matter of procedure, that is, if it touches a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act. Cropus Juris, Vol. 59, at p. 1174, enunciates the principle in similar terms. It may be acknowledged that the right of an accused person, to defend himself includes the fundamental right of cross‑examination of the prosecution witnesses. In a warrant case,, such as the present one, when a witness is examined before the charge, he has the right to cross‑examine him, under section 138 of the Evidence Act. This right was, in fact, exercised in the present case by the accused respondents when the complainant and his two witnesses were examined before the charge. It is, however, contended on their behalf that the procedural law then in force gave. the right to the accused to split up his cross‑examination, so as to reserve part of the questions to be asked from the witness, to a stage after the charge, if need be, under section 256 of the Code of Criminal Procedure. The question, however, arises whether, an opportunity having been furnished to the accused to cross‑examine fully, the witnesses, even before the charge, the new procedure which does away with the facility of recalling a . witness for further cross‑examination, really encroahes on the fundamental right of cross‑examination given by the law to an accused person? If he so chose, the accused could have exhaustively cross‑examined the witnesses in question at the time they were examined before the charge. The rule of natural justice would only ensure an opportunity for cross‑examination to be given and this opportunity had in fact been given in the present case at an earlier stage. There is thus nothing inequitable in the amending law doing away With a second opportunity for cross‑examination, as a matter of right. Indeed, the new law seems to contemplate a more expeditious disposal of cases by cutting down unnecessary procedural delays. Of course, it could be argued that under the old procedure, it was necessary to give a second chance of cross‑examination at the option of the accused, as under section 162 of the Code, copies of statements made by the witnesses to the Investigating Officer, were only made available at the time when they were actually called into the witness box. The new procedure provides for supply of copies of earlier statements made by witnesses to the Police, several days before the trial commences. The question is thus not free from difficulty. But having regard to the obvious objective of the new procedure, of cutting down judicial delays and preventing abuse of process, I am inclined to the view that the new procedure was meant to apply even to pending cases and there still remains scope for obviating prejudice to an accused person, in hard cases, by having recourse to other provisions of the Code. . As has been observed above, the right to recall witnesses already examined before the charge, really matures into a vested right only when a charge is framed and that contingency arose after the amendment in the instant case. The view consequently that the fundamental right of cross‑examination has not been interfered with by, the new law and only a procedural change has been effected :which cuts down a further facility for cross -examination not affecting the substance of the right has much to commend itself. The new law should therefore be enforced even in a pending case like the instant case and the respondents should not be held entitled, as of right, to recall witnesses already examined before the charge. The right of the accused is really one of being tried, according to the procedural law current for the time being. It seems to follow from this that if the charge had been also framed earlier than the enforcement of the new law, it might have been possible to contend with success that there was a vested right of further cross‑examination of witnesses, which could not, in the absence of express words to that effect or necessary intendment of the new law, be interfered with. At the same time, it is clear that even if a case had been taken cognizance of, prior to State the enforcement of the new rule, but no witnesses had yet been examined, the procedure would be regulated by the new law and not by the old Code. Of course, in such a case no prejudice at all was likely to result to the accused person who would now know that he has to exhaust his cross‑examination of the witness concerned, at a single stage of the case. The consideration, however, would be pertinent whether the respondents in the present case are likely to suffer some prejudice because they might have, in view of the old law, reserved some important questions in the cross‑examination of the witnesses for a stage after the charge, if need be. Such a possibility cannot be entirely excluded, though this may not involve invasion of the fundamental and substantial right of cross‑examination. To meet such a possible contingency of prejudice, the provisions of section 540 of the Code of Criminal Procedure could very properly be invoked in a suitable case. This section empowers a Court at any stage of inquiry, trial or any other proceeding under the Code, to summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re‑examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re‑examine any such person, if his evidence appears to it essential for the just decision of the case. As the possibility is strongly indicated by learned counsel for the respondents that a number of questions remained to be asked from the witnesses who had been examined before the charge in this case, it would be meet and proper if on application by the respondents, the trial Court now permits those witnesses to be recalled for further cross‑examination who had already been examined before the charge. Cases of the type that we are now considering, I apprehend, would not be many and therefore there need be no real danger that by recourse to section 540 of the Code, cases would tend to be inordinately prolonged. The respondents would of course have to satisfy the trial Magistrate that they had still some material questions to put to the witnesses who had already been examined prior to the charge. On being thus satisfied, the trial Court ought to recall those witnesses for subjecting them to further cross‑examination. The learned Advocate‑General also referred to a case from the Indian Jurisdiction, reported as Waheed Hasan v. State of Hyderabad (A I R 1954 Hyd. 204). That case, however, appears to be distinguishable on the facts from the instant case. There was an express provision in the Indian Criminal Procedure Code (Amendment) Act (I of 1951) which fell for consideration in that case, to the effect that the provisions of the said Code shall apply to all proceedings instituted after the coming into force of the said Code, in any Part B State and so far as may be, to all cases pending in any Criminal Court in that State, when the Code comes into force therein. The presence of this provision in the amending law provided a clear indication of the intention of the Legislature to make the new procedure applicable to pending cases. The upshot of the whole discussion is that in my view the amending law only changes the procedure of trials and does not interfere with the right of cross‑examination of witnesses, in substance. It should, therefore, apply to all pending cases subject to the observations made above. In any real case of prejudice, the provisions of section 540, Criminal Procedure Code, could be pressed in aid in order to ensure a fair trial. I have, therefore, reached the conclusion that the view that .prevailed‑in the High Court was not correct and that the respondents cannot claim to be tried in accordance with the old procedure in respect of the cross‑examination of the witnesses examined before the charge. I would allow the appeal and set aside the order of the High Court. FAZLE‑AKBAR, J.‑I agree. B. Z. KAIKAUS, J.‑I agree S. Q. Appeal allowed.