P L D 1965 (W (PLP)

(a) Constitution of Pakistan (1962), Arts. 225 & 250-Term "existing laws" in Art. 225-Includes, Martial Law Regulations and Presidential Orders-Repeal of Martial Law Regulations Governed by Art. 250-Mere repeal of Regulation does not end all proceedings pending thereunder-Offence committed during Martial Law period against Martial Law Regulation-Whether and to what extent and in what classes of cases liability incurred can be enforced after repeal of Regulation-Procedure to be followed by Courts in trial of cases under Martial Law Regulations discussed -Martial Law Regulation [C. M. L. A.'s], No. 61, Paras. I & 2-Martial Law (Pending Proceedings and Protection) Order [President's Order No. 26 of 1962]. Muhammad Afzal v. The Commissioner, Lahore Division and others P L D 1963 S C 401 and Lt.-Col. G. L. Bhattacharya v. The State P.L D 1963 Dacca 422 ref. (b) Constitution of Pakistan (1962), Art. 250-Provisions, general in nature-Subject to any provision contained in repealed law itself. Sh. Ataullah Sajjad, A. A.-G., A. H. Minto and A. G. Chaudhry for the State. JUDGMENT ORTCHESON, J.

The facts leading up to this reference are as under : Sub-paragraph (1) of paragraph I-A of Martial Law Regulation No. 61, as amended by various subsequent Regula tions, provided that with effect from the 27th of May 1961, cases relating" to offences under arty Martial Law Regulation should, if the Zonal Martial-Law Administrator, or an officer authorised by him in that behalf, so decided in any case, also be triable by the ordinary criminal Courts competent under the Code of Criminal Procedure, 1898, to impose the maximum penalty provided in the Martial Law Regulation to which the offence related. Sub-paragraph (2) of the same paragraph further laid down that where a case was tried by an ordinary criminal Court under sub-paragraph (1) the provisions of the Code of Criminal Procedure were to apply. It appears that under sub-paragraph (I) of the said paragraph an order was passed directing that a case registered against one Nazar Hussain under Martial Law Regulation No. 20 be entrusted to the Court of a Magistrate o1 the First Class with section 30 powers at Lahore. Against that order an application for transfer (Cr. Miscellaneous 1-164 of 1962; was filed in this Court and was heard by Masud Ahmad, J. The application was based on the ground that as a section 30 Magistrate could not impose a sentence of imprisonment exceeding seven years, and as the maximum penalty provided by Martial Law Regulation No.20 was ten years' rigorous imprisonment; the Magistrate could not, in view of the provisions of sub paragraph (1) of paragraph 1-A of Martial Law Regulation No. 61 try the case. The learned Single Judge, by his order dated the 5t1 of June 1962, accepted the above contention and directed that the case be tried by a Sessions Judge. It was further ordered, on the basis of Martial Law Order No. 3, issued by the Chief Martial Law Administrator, that the case should be tried according to the summons procedure.

2. On the 2nd of February 1963 an I application (Cr. Misc. 312 of 1963) under section 561-A of the Code of Criminal Procedure was filed in this Court by one Mubarak Ali for quashing proceedings under Martial Law Regulations Nos. 20-A, 30 and

32. The case in question was first instituted in a Special Military Court, but on the 18th of May 1962, Major Ishaq Muhammad Khan, acting on behalf of the Sub-Administrator Martial Law, Zone B', directed that it be tried by a criminal Court. It was originally sent to a section 30 Magistrate; but in accordance with the view expressed by Masud Ahmad, J. in the case referred to above, the District Authorities sent all cases under the Martial Law Regulations to the Court of the Sessions Judge, Lahore, who in turn entrusted them to Additional Sessions Judges. (1) That as under sub-Article (3) of Article 225 of the present Constitution all Martial Law Regulations, with certain exceptions irrelevant to the proceedings in question, had been repealed with effect from the commencing date, the 8th of June 1962, the alleged offences had ceased to be offences and could not be tried. (2) That as by President's Order No. 29 of 1962, all Martial Law Orders stood repealed immediately before the commencing day of the Constitution, Martial Law Order No. 3, relied Upon by Masud Ahmad, J. in holding that such gases should be tried by the procedure laid down for a summons case, ceased to exist with effect from the 7th June 1962. (3) That in consequence of what is stated in point No. (2) above, the Court of Session could .not try the case unless it had been duly committed as provided by the Code of Criminal Procedure. (4) That Article 3 of President's Order No. 26 of 1962, provides an additional argument for holding that cases transferred to a criminal Court shall be tried in accordance with the procedure applicable to the trial of such a case under the ordinary law. (5) That even if the trial of the cases in dispute could take place in spite of the repeal of the Martial Law Regulations, the applicant, who had been challaned along with an Assistant Sub-Inspector and a Head Constable of Police, could not be tried by any Court other than that of a Special Judge, one of the offence being under section 161, P. P. C. (6) That the order of Major Ishaq Muhammad Khan, dated the 18th of May 1962, transferring the case to an ordinary criminal Court was without jurisdiction, the power to make such orders being conferred by Martial Law Regulation No. 86, which, according to the applicant, only came into force on the 27th of May 1962.

4. The learned Single Judge before whom Cr. Misc. 312 of 1963, came up for hearing directed that in view of the importance of the questions involved the case should be heard by a Division Bench. That order was complied with, but the Bench m question, consisting of the learned Chief Justice and S. A. Mahmood, J. in turn referred the case to a Full Bench. As the same questions arose in Applications Nos. 3066 of 1962, Nos. 313,1149,1210, 2494 and 3275 of 1963 and Nos. 547, 963 and 999 of 1964, those applications were also ordered to, be heard along with Cr. Misc. No. 312 of 1963.

5. It may here be stated that as the contention relating to the authority of Major Ishaq Muhammad Khan to direct that the case out of which Cr. Misc. No. 312 of 1963, arose should be tried by the ordinary Courts was based on an obvious misapprehension, Martial Law Regulation No. 61 having come into force in 1961 and not in 1962, it was not persued.

6. As the facts of the applications before us are widely different, and as the cases out of which they arise are at different stages, some not yet having come up for trial, this order will only deal with the general questions involved.

7. The first of those questions is whether Martial 'Law Regulations are "existing laws" as defined in Article 225 (7) of the Constitution. The definition runs: "In this Article, 'existing laws' means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations, and Letters Patent constituting a High Court. and any notifications and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra-territorial validity, immediately before the com mencing day."

8. The answer to the above question is clearly in the affirmative, the matter being now well-settled. Reference may first be made to Muhammad Afzal v. The Commissioner, Lahore Division and others (P L D 1963 S C 401). While discussing the nature of Martial Law Regulations and Orders, their Lordships observed: "The words `Regulation' and `Order' (in which reference to an `Order of the President' are not to be included) used in this supra-constitutional document appear to have been used in different and distinct senses. Although both of them were intended to describe instruments of a legislative kind as opposed to executive or judicial orders, nevertheless, `Regulations were, in our view, meant to describe laws of a general nature made by the Martial Law Authorities, whilst `Orders' were to be equivalent to subordinate legislative measures, such as rules and bye-laws made to implement the provisions of a general law- . . . . . Thus under the scheme of the Martial Law itself there was to be not only an administrative hierarchy but also a legislative hierarchy."

9. The question also arose in Lt.-Col. G. L. Bhattacharya v. The State (P L D 1963 Dacca 422). The relevant portion of the judgment runs: "He (learned counsel) has argued that since the Government of India Act and the Constitution of 1956 did not contemplate orders and regulations, such as President's Orders and Martial Law Regulations which were promulgated between the 7th of October 1958, and 7th of June 1962, Article 225(7), which is couched in the same language as Article 2240) of the 1956 Constitution should not be interpreted to include within the term `existing law', such `Orders'- and such `Martial Law Regulations' as were promulgated after October 7, 1958. The gist of the argument is that the terms `Orders' and `Regulations' should be interpreted in the same sense as the meaning of those words in, Article 224 (1) of the 1956 Constitution. The answer to this contention is that the expressions `Orders' and `Regulations' as in Article 225 of the present Constitution need not be necessarily confined to the sense in which they have been used in various other Constitutions, but must be read with reference to the context of Article 225(7). . In this connection the entire Article 225 including all its sub-Articles must be read together in order to ascertain what the terms 'Orders' and `Regulations' mean and include. If sub-Article (7) of Article 225 is read with reference to its context, there can be no manner of doubt that the expres sions `Order' and `Regulations' in Article 225 (7) as also in sub Articles (2) and (3) of Article 225 include the Presidential Orders, and Martial Law Regulations promulgated after the 7th of October 1958. Furthermore, the fact that Article 225(2) consciously repeals all Martial, Law Regulations except those that have been specifically saved, postulates that the Constitution has treated them as `laws'. Mr. Hamidul Haq Choudhury's argument that this has been done as a matter of extra caution will not stand if the entire. Article 225 is read as a whole." With respect, I entirely agree with the above observations, and it is unnecessary to cite any further authorities.

10. The question now arises of the effect of the repeal of the Regulations. As they are existing laws within the meaning of Article 225 of the Constitution, their repeal is governed by Article 250, which runs: (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation liability, penalty, forfeiture or punishment. and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed." An important point to be noted is that at Article 250 of the Constitution is of a general nature, its provisions are subject to any special provision contained in the repealed law itself. It is, however, clear that the contention of the applicants that the repeal of the Martial Law Regulations automatically ended all proceedings pending thereunder is entirely devoid of substance.

11. Clause (c) of Article 250, which lays down that the repeal of a law by the Constitution shall not affect any liability incurred thereunder, is directly applicable to the cases before us. The moment an offence was committed during the Martial Law period against 4 Martial Law Regulation, the liability to punishment for that offence was incurred. To determine how far that liability can be enforced, however, it is necessary to examine the provisions of Regulation No. 61 and the Martial Law (Pending Proceedings and Protection) Order (President's Order No. 26 of 1962).

12. A study of the evolution of Martial Law Regulation No. 61 reveals that the jurisdiction of the ordinary criminal Courts has been progressively enlarged. As published vide Government of Pakistan Notification No. 113/59, dated the 4th of February 1959, in a Gazette Extraordinary of the same date and as reproduced at page 27 of the volume entitled "Martial Law" published by P. L. D., it completely excluded the jurisdiction of such Courts. Later, vide Martial Law Regulation No. 86, it was amended by the insertion of a new paragraph 1-A, which permitted offences under certain specified Martial Law Regulations to be triable by the ordinary criminal Courts if the Zonal Martial Law Administrator so decided in any case. Paragraph 1 was also consequentially amended. By Regulation No. 87 the power vested in the Zonal Martial Law Administrator was also conferred on an officer authorised 6y him in that behalf. Finally, by Regulation No. 96 the jurisdiction of the ordinary criminal Courts was subject to the above proviso, extended to offence under all Martial Law Regulations instead of being confined to a specified few. 1t remained, however, an essential condition precedent to the exercise of jurisdiction by the ordinary criminal Courts that there should have been an order entrusting any case to them emanating either from the Zonal Martial Law Administrator or his delegate. This is of great importance for the decision of the present case.

13. On the commencing day of the Constitution proceedings arising out of offences under the various Martial Law Regulations fell into three main categories, namely, (1) those pending in criminal Courts, (2) those pending before Special and summary Military Courts, and (3) those in which no challan had yet been put up court. This last category may be further sub-divided into two classes, namely, those in which the investigation was complete and those in which the investigation was pending. Finally, there may have been cases in which, though offences against Martial Law Regulations had been committed, no investigation had begun. Such cases cannot, however, fall under the heading of "proceedings".

14. So far as the cases pending before the ordinary criminal Courts are concerned, clause (e) of Article 250 of the Constitution makes it clear that they were not brought to an end by the repeal of the Martial Law Regulations (the question of the procedure to be followed in the trial of these and other cases will be separately dealt with later).

15. The position' in relation to trials pending before the Special Military and Summary Courts immediately before the commencing day is set out in Article 3 of President's Order No. 26 of 1962 above referred to which runs: "

3. Transfer of pending cases.-(1) Every case pending immediately before the commencing day before a Special Military Court or a Summary Military Court shall on the commencing day stand transferred to the criminal Court which would have jurisdiction to try the offence constituted by the facts of that case, under the ordinary law. (2) A case transferred to a criminal Court under clause (1) shall be tried by it in accordance with the procedure applicable to the trial of such a case under the ordinary law." The reason why no special provision is made in the above Order for cases pending before the commencing day in ordinary criminal Courts appears to be that such cases were considered to be covered by the incidents of repeal set out in Article 250 of the Constitution. As, however, the Special Military and Summary Courts created during the Martial Law period were to disappear, provision had to be made for the cases pending before them.

16. From clause (1) of Article 3 of the above Order, however, it follows by inescapable implication that if the facts of any particular case constituted only an offence under a Regulation and not one under the ordinary law no criminal Court would have jurisdiction to try it. Proceedings in respect of such offences must, therefore, be deemed to have automatically lapsed on the 7th of June 1962.

17. If, on the other hand, the facts of a particular case constituted an offence under the ordinary law, Article 3 of President's Order No. 26 of 1962, makes it clear that the criminal Court to which that case was to be transferred from the Special or Summary Military Court was the criminal Court which would have jurisdiction to try the offence constituted by the facts of the case under the ordinary law. In other words, if the offence under the relevant Martial Law Regulation was punishable with a term of imprisonment not exceeding two years, the case stood transferred to the Court of a First Class Magistrate. If the offence was punishable with death, the case would be transferred to the Court of a Sessions Judge, while offences punishable with more than two years' imprisonment but not with death would be triable by the Court of a section 30 Magistrate (subject, of course, to any provision in a special law prescribing the forum for trial of offences under that law; for example, if the offence in question was one which, under the ordinary law, would fall within the orbit of section 161, P. P. C., the only Court having jurisdiction would be that of a Special Judge).

18. Coming next to those cases, the trial of which had not begun before the commencing day, a clear distinction must be drawn between those in respect of which the Zonal Martial Law Administrator or an officer authorised by him in that behalf had passed an order under paragraph 1-A of Regulation No. 61 that the case be tried by an ordinary criminal Court, and those with regard to which no such order existed. So far as the first class of cases is concerned, a valid order of the Administrator or his representative clearly amounts to something duly done under the relevant law within the meaning of clause (b) of Article 250 of the Constitution. The operation of the order was not, therefore, affected by the repeal, and the cases in question must continue as if the Regulations had not been repealed. In such a case the question whether a challan had actually been put up in Court before the commencing day of the Constitution would, in my opinion, be immaterial.

19. It further follows that, since the order is to be carried out as if Martial Law Regulation No. 61 had not been repealed, the criminal Court having jurisdiction to try the offence is vide paragraph 1-A, the Court competent under the Code of Criminal Procedure to impose the maximum penalty provided in the Martial Law Regulation to which the offence relates. As a Magistrate exercising powers under section 30 of the said Code is incompetent to pass a sentence of imprisonment exceeding seven years, an offence carrying a penalty of more than seven years rigorous imprisonment can, despite the repeal of Martial Law Regulation No. 61, only be tried by the Court of a Sessions Judge or an Additional Sessions Judge.

20. The position with regard to those cases in which no such order had been passed is wholly different. Since an order b; the Administrator or his delegate is a sine qua non for the hearing of a case under a Martial Law Regulation by an ordinary criminal Court, it follows that in the absence of an order the proceeding became infructuous and it would be useless to proceed further with them. The same reasoning applies a fortiori to those case in which no investigation had begun.

21. I may deal at this stage with the argument raised befog us that all proceedings pending before Sessions Judges Additional Sessions Judges in respect of offences under the Regulations are now invalid, a Sessions Judge having r jurisdiction to take cognizance of a case which has not been committed to his Court. This contention is, in my opinion, without substance, an order of the Zonal Martial Law Administrator or his representative under paragraph 1-A of Regulation No.61 that the case be tried by the ordinary criminal Court compete under the Code of Criminal Procedure to impose the maximum penalty provided for the offence being equivalent to an order of commitment. "

2. Bar of appeal, etc.-(1) No appeal shall lie from any sentence imposed in a case tried in pursuance of paragraph 1, nor shall any revision lie from any sentences imposed in a case tried by a Special Military Court or a Summary Military Court in pursuance of that paragraph. (2) No appeal or revision shall lie from any sentence imposed in any of the cases tried and disposed of by criminal Courts under Martial Law Regulations or Orders before the twenty -fourth day of December 1958, and confirmed subsequently by the Zonal Martial Law Administrator concerned." Cases heard by criminal Courts in pursuance of an order under paragraph 1-A do not fall within the scope of paragraph 2, which is confined to cases tried in pursuance of paragraph

1. Further, sub paragraph (2) of paragraph I-A clearly lays down that where a case is tried by an ordinary criminal Court under sub-paragraph (1) the provisions of the Code of Criminal Procedure, 1898, shall apply. Those provisions include the right of appeal and revision to the appropriate Courts, and if it had been intended that the orders passed by the trial Court should be final, there would, in my opinion, have been a specific provision to that effect in the Regulation.

23. I shall next deal with the procedure to be followed by the Courts concerned in the trial of cases under the Regulations. Reference may first be made to President's Order No. 29 of 1962.

24. The contention of the applicant in Cr. Misc. 312 of 1963, that in consequence of the passing of the above Order, Martial Law Order No. 3 has become of no effect is much too widely stated. The position is that as, under the above Order, all Martial Law Orders made or issued by any Martial Law Authority were to stand repealed immediately before the com mencing day of the Constitution, such orders would not be "existing laws" within the meaning of Article 225 of the Constitution, and the provisions of Article 250 would not be: attracted. It was, therefore, considered expedient to set out the incidents of repeal in the Order itself, which was done by Article

3. Paragraph (b) of clause (1) of that Article lays down that the repeal of any Martial Law Order by Article 2 should not affect its previous operation. If, therefore, the trial of any case pending in a criminal Court had actually begun, it was to continue under the procedure prescribed by Martial Law Order No. 3.

25. The next class of cases falling to be considered are those pending at the material time before a Special or Summary Military Court. The question of the procedure to be followed in such cases presents no difficulty, clause (2) of Article 3 of President's Order No. 26 of 1962, laying down in unambiguous terms that a case transferred to a criminal Court under clause (1) of the said Article is to be tried in accordance with the procedure applicable to the trial of such a case under the ordinary law.

26. There remain those cases in respect of which the Zonal Martial Law Administrator or an officer authorised by him in that behalf had passed an order that they be tried by the ordinary criminal Courts competent under the Code of Criminal Procedure to impose the maximum penalty provided in the Martial Law Regulation to which the offence relates. The effect of the repeal of Martial Law Order No. 3 is that such cases are no longer to be tried under the summons procedure. As already pointed out, sub-paragraph (2) of paragraph 1-A of Regulation No. 61 provides that where a case is tried by an ordinary criminal Court under sub-paragraph (1), the provisions of the Code of Criminal Procedure shall apply. So long as Martial Law Order No,,,3 remained in existence, the general provision contained in the above sub-paragraph had to yield to the special provision of Order No. 3, but with the disappearance of the latter, the sub paragraph under consideration must now be construed as meaning that such cases, the trial of which had not begun on the material date, are to be tried in accordance with the procedure made applicable to them by the Criminal Procedure Code.

27. It may hereby mentioned that in two of the applications before us the point was raised that a Special Judge cannot take cognizance of any case falling within the scope of the Criminal Law Amendment Act, 1958, without the sanction of the appropriate Government for the prosecution of the Government servant concerned. The question whether an order of the Zonal Martial Law Administrator or his delegate does away with the necessity for sanction is,- however, one lying outside the scope of the present reference.

28. It may also be added that even before the repeal of Martial Law Regulation No. 61, sub-paragraph (2) of para graph 1-A thereof clearly implied that the provisions of the Code of Criminal Procedure relating to mis-jomder of trials were applicable. If, therefore, two or more offences could not be jointly tried under the said Code the usual consequences of mis-jomder would follow. Further, a Sessions Judge is incompetent to try a case falling within the exclusive jurisdiction of a Special Judge appointed under the Criminal Law Amendment Act of 1958.

29. My answers to the questions raised in this reference would be as given above. S. A. MAHMOOD, J.

I agree. MUHAMMAD JAMIL ASGHAR, J.

I agree. K. B. A,