P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑--Said Ahmad, who was a clerk in the office of a Sub‑Divisional Officer in the Canal Department of the now defunct Bahawalpur State, was reported against to the police on the 18th of August 1954, the allegations being that he had committed breach of trust with regard to some Government money. The police of the Bahawalpur State took up investigation and on the 10th of July 1955 put in Court three challans against Said Ahmad accused for offences under section 409 of the Penal Code. These cases were entrusted to the City Magistrate, Bahawalpur, but no proceedings in Court appear to have been taken therein till the 31st of January 1957. When the cases came up for recording of the statements of some witnesses for the prose cution before Mr. Mustafa Nawaz Khan, City Magistrate, Bahawalpur, on the 31st of January 1957, the Public Prose cutor, Bahawalpur, raised an objection to the jurisdiction of Mr. Mustafa Nawaz Khan on the ground that the three cases could be heard by a Special Judge only and not by any Magistrate. Mr. Mustafa Nawaz Khan was of the view that the contention of the Public Prosecutor, Bahawalpur, was cor rect whereat he made a reference to this Court with a view to hawing the question of jurisdiction determined authoritatively evidently because a large number of cases of offences under section 409 of the P. P. C. awaited trial in Courts of the areas which had comprised the Bahawalpur State. The references made by Mr. Mustafa Nawaz Khan, one in each of the three cases, were registered as Criminal Miscellaneous Nos. 13, 14 and 15 of 1957 (Bahawalpur) all three of which will be disposed of by this order. Mr. M. Anwar, Assistant Advocate‑General, West Pakistan, who appeared to support the view of Mr. Mustafa Nawaz Khan, contended that as the Bahawalpur State became apart of Pakistan on the 14th of October 1955, the special procedure prescribed by law, which at the time of their enactment were expressed to be applicable to the whole of Pakistan, with regard to trial of offences under section 409 of the P. P. C, was applicable to the trial of the three cases against the accused and the cases could be heard by a Special Judge only In this connection he drew my attention to Criminal Law Amendment Act (XIX of 1948), Criminal Law Amendment Act (XXXVII of 1953), and Criminal Law Amendment Act (IV of 1954), the combined effect of which enactments, which where passed by Constituent Assembly of Pakistan, is that an offence under section 409 of the P. P. C. was triable exclusively by a Special Judge and that if any case, regarding an offence under section 409 of the P. P. C., was pending in any Court on the date when the Criminal Law Amendment Act (XXXVII of 1953) came into force, it was because of section 4 of that Act to stand trans ferred to the Special Judge having jurisdiction over such case by virtue of Act XXXVII of 1953. The argument of the learned Assistant Advocate‑General was that as trial of cases was a matter of procedure a matter to which no one could lay any claim‑--and enactments dealing with procedure had retrospective operation unless the contrary were indicated, the law applicable to the cases under section 409 of the P. P. C., which were pending at the time of the merger of the Bahawalpur State into the Province of the West Pakistan, was that contained in the Criminal Law Amendment Act (XIX of 1948), Criminal Law Amendment Act (XXXVII of 1953) and Criminal Law Amendment Act (IV of 1954), and that the cases against the accused shall be deemed to have been transferred to the Court of the Special Judge contemplated by the above‑mentioned enactments from the date when the Establishment of West Pakistan Act, 1955, which made the Bahawalpur State a part of the Province of West Pakistan and consequently of Pakistan, came into force on the 14th October 1955. He explained this contention of his by saying that when any territory becomes part of a country, the laws of that country, which when they came into force were to apply to the whole of that country, become automatically applicable to the newly‑added territory and, therefore, the Criminal Law Amendment Act (XIX of 1948), Criminal Law Amendment Act (XXXVII of 1953) and Criminal Law Amendment Act (IV of 1954) which were expressed to be applicable to the whole of Pakistan, became applicable, on the 14th of October 1955, to the areas which before that date formed the Bahawalpur State but had from that date become parts of Pakistan. I agree with the learned Assistant Advocate‑General's contentions in the abstract, but do not agree with him that the three Criminal Law Amendment Acts relied upon by him were applicable to the present cases against the accused, On the 10th of July 1955, when the three cases under section 409 of the Penal Code were sent to Court for trial, the Bahawalpur State was in existence and though an Act called the Bahawalpur Prevention of Corruption Act, 1950 (V of 1950) which deals with special procedure in cases of offences under sections 161 and 165 of the Penal Code, was in force in the Bahawalpur State there was no special law of procedure applicable to offences under section 409 of the Penal Code, with the result that on the 10th of July 1955, an offence under section 409 of the Penal Code was triable in the Bahawalpur State by ordinary Courts because of the provisions contained in the Code of Criminal Procedure in force in that State. Before the trial of the cases against the accused could begin the Bahawalpur State ceased to exist and became merged in the newly‑created Province of West Pakistan on account of the enactment of the Establishment of West Pakistan Act, 1955, which came into force on the 14th of October 1955. The procedure for the trial of the present cases against the accused would possibly have become the same as in that of similar cases in those parts of the West Pakistan Province which were even before the 14th of October 1955 parts of Pakistan had it not been for subsection (1) of section 10 of the Establishment of West Pakistan Act, 1955 which reads as follows:‑ "Except as otherwise provided in this Act, and subject to any order of the Governor‑General under section 5 of this Act and to the powers of any competent legislature, all laws in force in West Pakistan immediately before the appointed day shall continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed." The effect of the above‑reproduced provision was that on the 14th of October 1955, the day that the Province of West Pakistan came into being, offences under section 409 of the P. P. C., pending in Courts of the Bahawalpur State or committed in the areas which comprised the Bahawalpur State were not triable by a Special Judge but, as formerly, by ordinary Courts which became the Courts of the Province of West Pakistan and ceased to be Courts of Bahawalpur State. The learned Assistant Advocate‑General contended that because Article 221 of our new Constitution, which came into force on the 23rd of March 1956, repealed the Establish ment of West Pakistan Act, subsection (1) of section 10 of the later Act ceased to have operation and the jurisdiction of ordinary Courts to try offences under section 409 of the P. P. C. ceased to exist, if not earlier at least, on the 23rd of March 1956. Article 221, on which reliance is placed by the learned Assistant Advocate‑General, is in the following terms:‑ "The Government of India Act, 1935, and the Indian Independence Act, 1947, together with all enactments amending or supplementing those Acts, are hereby repealed Provided that the repeal of the provisions of the Government of India Act, 1935, applicable for the purposes of Article 230 shall not take effect until the first day of April 1957." For the purpose of these cases, I will assume that the Establishment of West Pakistan Act, 1955 was repealed on the 23rd of March 1956, but that repeal does not, in my view, take away the jurisdiction of the ordinary Courts in the areas which formed the Bahawalpur State to try offences under section 409 of the Penal Code. This view of mine is based upon the provisions contained in clause (1) of Article 224 of our new Constitution which is in the follow ing terms:‑ "Notwithstanding the repeal of the enactments mention ed in Article 221, and save as is otherwise expressly pro vided in the Constitution, all laws (other than those enact ments), including Ordinances, Orders‑in‑Council, Orders rules, bye‑laws, regulations, notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extraterritorial validity, immediately before the Constitution Day, shall, so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate Legislature or other competent authority." It is clear from the part of Article 224 reproduced above that the enforcement of our new Constitution has not made any laws other than those dealing with constitutional matters inapplicable to any area or to the whole of Pakistan, as the case may be, where such laws were applicable immedi ately before the coming into force of the Constitution. Now, as I have shown above, immediately before the 23rd of March 1956, the law in force in the districts of Rahimyar Khan, Bahawalpur and Bahawalnagar, which before the 14th of October 1955, comprised the Bahawalpur State, was that offences under section 409 of the Penal Code were triable by ordinary Courts of Criminal Jurisdiction, and I have no hesitation in holding that because of Article 224 or our new Constitution that law will continue in force unless it is altered by some lawful means. The learned Assistant Advocate‑General contended that clause (1) of Article 224 of our new Constitution would not save the laws which were in force immediately before the coming into force of our new Constitution in areas which now form the Bahawalpur State, if they happen to be repugnant to any enactment passed before 14th of October 1955 and expressed to be applicable to the whole of Pakistan if it dealt with a subject dealt with by the Bahawalpur laws and in support of this contention sought support from Article 110 of our new Constitution. He urged that that Article embodi ed a principle which when applied to the laws in force in Bahawalpur State immediately before the coming into force of the new Constitution will make them yield to laws which though passed before the merger of Bahawalpur State in the Province of West Pakistan were expressed to apply to the whole of Pakistan and were in force on the day the new Constitution came into force. This argument has no force for at least two reasons. One of these reasons is that the provisions of Article 110 of our new Constitution are a piece of legislation and can be applied only as such and not as a principle of law with the result that if they do not in terms apply to certain circumstances they cannot be o invoked by saying that though they have in terms no appli cation they would be applicable if their language were modified to some extent. The second of these reasons is that provisions in a constitutional enactment are, like those in all enactments, prospective in operation unless they have been given retrospective operation, Clause 1 of Article 110 of our new Constitution is to the effect that if any provision of an Act of a Provincial Legislature is repugnant to any provision of an Act of Parliament which Parliament is competent to enact or any provision of any existing law with respect to any of the matters enumerated in the concurrent legislative list it has to give way to the act of Parliament or the existing law, as the case may be, unless it satisfies certain specified conditions. The laws in force immediately before the coming into force of our new Constitution in areas which comprised the Bahawalpur State cannot be deemed to be Acts of a Provincial Legislature because they do not fall within the definition of "Acts of a Provincial Legislature" given in E Article 218 of the new Constitution and the mere fact that they had local application in a part of a Province does not make them Acts of a Provincial Legislature. Moreover. Clause (1) of Article 110 will have application only if a Provincial Legislature were, after the 23rd March 1956, to pass an Act which falls within the clause. If any Act of a Provincial Legislature was in force at the time our new Constitution came into force on the 23rd day of March 1956, it would not be an Act of a Provincial Legislature but an "existing law" as defined in Article 218 of the new Constitu tion. It is, therefore, clear that clause (1) of Article 110 of our new Constitution does not apply to the present cases. In view of what I have said above, I hold that the cases under section 409 of the Penal Code which were pending against the accused in the Court of the City Magistrate, Bahawalpur, on the 14th October 1955, continue to be triable by ordinary Criminal Courts in spite of the enactment of the Establishment of West Pakistan Act, 1955, and of the Constitution of the Islamic Republic of Pakistan. This disposes of Criminal Miscellaneous Nos. 13, 14 and 15 of 1957 (Bahawalpur). The records are returned to the City Magistrate, Bahawalpur, who will dispose of these cases against the accused, which are very old, as expeditiously as possible. A. H. Reference answered.