1988 P Cr (PLP)

This Petition is directed against order dated 23-6-1988, passed by learned Additional Commissioner, Sibi Division.

2. Relevant facts leading to this petition are, that on the night between 18-11-1987 and 19-11-1987 accused Muhammad Umer, came to Sadar Police Station Sibi and lodged F.I.R. No.118/1987 stating that he saw his wife Mst. Bakhtawar with her paramour Muhammad Yaqoob, lying together, therefore, killed both of them as 'Siahkar'. Concerned police conducted the investigation and prepared interim challan No.1/1988 on 1-1-1988 under section 302 P.P.C. against accused Muhammad Umer only; whereas final challan was submitted before Deputy Commissioner Sibi on 20-3-1988. It may be seen that on 15-12-1987 (about 28 days after the incident) Moosa Khan son of Essa filed a complaint before Deputy Commissioner Sibi alleging that petitioners alongwith accused Muhammad Umer had conspired to kill Muhammad Yakoob. However later unjustifiably, the: also killed Mst. Bakhtawar for giving the incident colour of Siahkari. He thus implicated all the petitioners alongwith accused Muhammad Umer for the commission of said offence. Learned Deputy Commissioner initially forwarded the complaint to Naib-Tehsildar for inquiry, and on receiving his report directed issuance of bailable warrants of petitioners vide order dated 3-3-1988 whereby question of their guilt or innocence in the matter was also referred to the Tribunal already constituted in respect of accused Muhammad Umer. Respondent Moosa feeling aggrieved from issuance of mere bailable warrants of petitioners, preferred an appeal before Additional Commissioner, Sibi Division seeking their remand to custody. It may be seen that said appeal was ultimately accepted by learned Additional Commissioner Sibi vide order dated 23-6-1988 whereby petitioners were remanded to custody. Present petition was filed on 20-7-1988 challenging the same.

3. Mr. Nazir Ahmad learned counsel for petitioners mainly raised jurisdictional objection regarding validity of impugned judgment contending that Baluchistan Criminal Law (Special Provisions) Amendment Ordinance III of 1988 (hereinafter referred as "amending Ordinance") was promulgated on 23-6-1988, therefore, Additional Commissioner was not competent to proceed in the matter, as same would be deemed to have been enforced from zero hours of the day. Besides, it was contended that "Amending Ordinance" being procedural law will apply retrospectively even on pending cases. Whereas Miss Shabnam Allah Din learned counsel for private respondent vehemently canvassed that petitioners had approached Member Board of Revenue subsequent to 23-6-1988 and had also obtained interim bail in respect of petitioners Nos.6 and 7, therefore institution of present petition in this Court is not maintainable. Learned counsel alternately argued that even if learned Additional Commissioner Sibi had no jurisdiction on 23-6-1988, this Court can examine merits and rectify defect, of impugned judgment in the exercise of revisional jurisdiction.

4. Mir Muhammad Nawaz Marri, learned A.A.-G. however candidly conceded that learned Additional Commissioner had no jurisdiction to pass the impugned order on 23-6-1988, on account of Amending Ordinance. It may be seen that principle regarding time for commencement of enactments on the analogy of section 5(3), General Clauses Act has been elaborately discussed in following judgments:- (i) Prahalad Jena and others v. State (A I R 1950 Orissa 157). "Therefore, if a Central Act came into force, say at 11 a.m. on 26th January then by virtue of section 5(3) read with section 3(12), General Clauses Act that Act should be deemed to have come into force from the mid-night of the 25th/26th January. The order of the President under Article 373 should, therefore, be deemed to have come into force from the mid-night of 25th/26th January, even though it might have been actually signed by the President only after 10-50 a.m. on 26th. The Constitution also came into force from the mid-night of 25th-26th January because the provisions of the General Clauses Act, S.5(3) were made applicable to the interpretation of the Constitution by Article 367(1). The result, therefore, is that both the Constitution and the order came into force for legal purposes from the mid-night of 25th-26th January and in considering the validity or otherwise of the relevant provisions of the Orissa Act. The short interval of time between the mid-night of 25th-26th January and the exact time of the signing of the order by the President becomes immaterial." (ii) Khalid M. Ishaque Ex-Advocate-General, Lahore v. The Hon'ble Chief Justice and the Judges of the High Court of West Pakistan, Lahore (P L D 1966 SC 628). "A proper answer to the difficulty brought out in the questions from the Bench probably lay, not in any reference to the facts as to the moment of signing of the different orders or the moment of notification, but on a legal foundation, developed by analogy to section 5(3) of the General Clauses Act, 1897, which provides that unless the contrary be expressed, a Central Act shall be construed as 'coming into operation immediately on the expiration of the day preceding its commencement'. Thus, if the commencement be declared to take effect on a particular day, say the 6th January, 1964 the Act would be deemed to come into force immediately after the stroke of mid-night of the 5th January, 1964. Equally if the Act were expressed to come into effect on the granting of assent thereto, then if that assent was given on the 6th January, 1964, the operation of the order would still commence from mid-night on the 5th January, 1964. The analogy lies in this namely, that an order made under section 1(2) of the Criminal Law Amendment Act, 1908, applying that law, to a place where it previously had not applied, is substantially an act of legislation, which would takes effect from the earliest moment of the day on which the order is made, in the same way as an .Act of a legislative authority takes effect from the earlier moment of the day which is the day of its commencement." Respectfully following, observations in above-quoted judgments have no hesitation to conclude that Criminal Law (Special Provisions) (Amendment) Ordinance 1988 shall be deemed to have been enforced on the expiration of day preceding its commencement which would mean from zero hours of 23rd June, 1988. Thus, impugned order is obviously without jurisdiction. Next question which arises for consideration would be whether on promulgation of "Amending Ordinance" III of 1988 cases pending before Commissioner as Appellate Authority and Member Board of Revenue as Revisional authority shall stand transferred to the Court of concerned Sessions Judge and this Court respectively. Evidently amending Ordinance has come into force at once and aims at substituting executive authority to judicial forum as regards Appellate and Revisional jurisdiction in criminal matters, where provisions of Ordinance II of 1968 apply. It is well settled that procedural law had retrospective effect accordingly, amending Ordinance shall also apply to pending Appeals and Revisions, which thus by operation of law would automatically stand transferred to corresponding forum prescribed by law. If any authority in this behalf is needed reference can be made to the observations in following decided cases:- (i) Adnan v. Sher Afzal P L D 1969 SC 187 (ii) Yasmin Nighat v. National Bank of Pakistan P L D 1988 SC 391 The situation in the present case is similar and as there is no contrary indication in Ordinance II of 1983 we are of the opinion, therefore, that in the present case too the amending Ordinance (II of 1983) would affect the pending proceedings and all the suits would have to be tried by the Special Court. It may be added that an examination of the provisions of Ordinance XIX of 1979 in juxtaposition with those of Ordinance II of 1983 shows that the legislature by enacting section 6(4) of Ordinance XIX of 1979 intended to oust the jurisdiction of all other Courts in the matter of banking loans and to confer exclusive jurisdiction on Special Courts in respect of the matters which were made triable by the said Courts under the terms of the said Ordinance and all such proceedings pending in any Court immediately before the commencing day of Ordinance XIX of 1979 stood transferred to the Special Court concerned. Under the provisions of the said Ordinance XIX of 1979 [under section 6(2)(a)] the jurisdiction of the Special Court was expressly excluded in relation to cases involving a sum of Rs. one lac or less. But by Ordinance II of 1983, the definition of the Special Court having been amended and subsection (2)(a) of section 6 of Ordinance XIX of 1979 having been omitted, the Special Court established under section 5(1) of the Ordinance became vested with the jurisdiction to try those cases which were specially excluded from its jurisdiction under section 6(2)(a) of Ordinance XIX of 1979. As a result of this extension, the Special Court was conferred the sole jurisdiction in such matters (the jurisdiction of all other Courts having been ousted in respect of such cases). The intendment of the law-maker which appears from the changes made by him, is that he intended that even such cases which under section 6(4) of the Ordinance were to be tried by the Civil Courts earlier were also to become triable by the Special Courts. Thus intention is also dicipherable from the circumstance that with the omission of clause (a) of subsection (a) of section 6 of Ordinance XIX of 1979 the forum of the Civil Courts for the trial of such cases ceased altogether. Hence it will not be reasonable to infer that the suits pending in the civil Courts can continue to be tried by them, when their jurisdiction in respect of these cases has been completely taken away."

5. Learned counsel for private respondent however endeavoured to argue that defects relating to merits if any, may be considered by this Court. Bare perusal of impugned judgment clearly indicates, the petitioners were not provided opportunity of hearing as required by law. In the circumstances impugned judgment is evidently repugnant to principles of natural justice. This factual position is not controverted by learned counsel for respondent or learned A . A .-G. Obviously glaring defects discussed above cannot normally be rectified in the exercise of revisional jurisdiction under law.

6. Resultantly petition is accepted, order dated 23-6-1988 is set aside, appeal filed by respondent Moosa shall be deemed to be pending before learned Sessions Judge Sibi who should dispose of the same expeditiously, as far as possible within two weeks on its own merits according to law. Since impugned judgment is found to be without jurisdiction, therefore, parties are to be relegated to previous position. Thus petitioners be released, pending disposal of appeal subject to their furnishing fresh sureties in the sum of Rs.20,000 (Rupees twenty thousand) each to the satisfaction of learned Sessions Judge, Sibi. It is clarified that observations in this order shall neither affect merits of the case nor prejudice any party. The petition is disposed of in the above terms. H. B. T./312/Q Petition accepted/Order accordingly