P L D 1964 (W (PLP)

MUHAMMAD DAUD KHAN, J.‑--A Division Bench of this Court in Miscellaneous Application No. 113 of 1962 of this Court made the following reference:‑ "Whether after the operation of the new Constitution from the 8th of June 1962, on the correct interpretation of Article 58, read with Article 250, application for leave to appeal in cases decided by the High Court before the operation of the Constitution would lie to the Supreme Court, only, or would be governed by Article 158 of the old Constitution, read with sections 109 and 110, C. P. C.?"

2. The necessity of this reference arose because a Division Bench of this seat of the High Court in Misc. Application No. 191 of 1962, in an order passed in limine on the 4th of October 1962, found that since the petition for leave to appeal was filed after the promulgation of the present Constitution, Article 250 was not applicable.

3. Before I proceed to answer the reference, it will be pertinent to give the brief facts of this case. In August 1953, respondents 1 to 7 of this Misc. Application, filed two applica tions for petition of the property inherited by them from their father, Sher Bahadur Khan, who had died in 1938. Jamshed Ahmad Khan petitioner of the present Misc. Petition is one of the sons of the late Sher Bahadur Khan. He resisted the applica tion for petition, alleging that there had been a private partition of the property. He, however, requested that the question of title be first decided. This plea did not find favour with the Assistant Collector, nor with the Collector, who heard the appeal. In revision, the Additional Commissioner (Revenue) ordered on the 19th of February 1957, that for the determination of the question of title, namely, private partition as alleged by the petitioner, Jamshed Ahmad Khan, the Revenue E. A. C. shall take proceeding under section, 117 of the Land Revenue Act. He further directed that the petitioner should file a written plaint in the Court of the Revenue E. A. C. within two months of the order. The matter went up to the Board‑ of Revenue in second revision, wherein the direction of the Additional Commissioner (Revenue) for filing the plaint within the period of two months was assailed. The second revision was dismissed on the 11th of January 1958. The petitioner filed the plaint on the 5th of April 1958, in the Court of the Assistant Collector, who rejected it, as being barred by time, on the 1st of May 1958, on the ground that it was filed long after two months, as directed by the Additional Commissioner (Revenue); and even from the order of the Board of Revenue which was passed on the 11th of January 1958, Jamshed Ahmad Khan instituted. Civil Appeal No. 53/57 of 1958, in this Court against the rejection of his plaint by the Revenue E. A: C. sitting as a civil Court under section 117 of the Land Revenue Act. This appeal was heard by a Division Bench of this seat of the High Court, 'and was dismissed on the 1st of May 1962. Dissatisfied with this judgment, Jamshed Ahmad Khan instituted Misc. Application No. 113 of 1962 on the 16th of June 1962. Under Article 158 of the Constitution of 1956, read with sections 109 and 110 of the Civil Procedure Code, for the grant of a certificate for leave to appeal to the Supreme Court. At the time of the full hearing of the applica tion by the Division Bench, Mr. Shah Zaman Khan, counsel for the respondents, objected to the grant of the certificate on the ground that the application was not competent in the High Court, as the leave to appeal to the Supreme Court under Article 58 of the present Constitution could only be granted, by the Supreme Court itself. He placed reliance on the order passed in limine by another Division Bench of this seat of the High Court, referred to above. The Division Bench, who had heard the Miscellaneous Application had, therefore, recommended that the case be referred to a larger Bench, on the point, given in the beginning of this order.

4. Two questions arise in such cases, namely, (1) whether Article 58 of the Constitution had the effect of the repeal of sections 109 and 110 and Order XLV, rules 2 and 3, C. P. C., along with Article 158 of the Constitution of 1956, the latter being in force by virtue of the Laws Continuance Order, 1958, and (2) if the answer to the first question is in the affirmative, then the cases decided by the High Court in its appellate or original jurisdiction before the enforcement of the present Constitution in viz. the 8th of June 1962. But applications for grant of certificate for leave to appeal instituted after that date, would be governed by the old law, or under Article 58 of the present Constitution only. In other words, whether after the 8th of June 1962, the commencing date of the present Constitu tion on the interpretation of Article 58 read with Article 250 applications for leave to appeal in cases decided by the High Court before the operation of the Constitution should lie to the Supreme Court only, or would be governed by Article 158 of the old Constitution, read with sections 109 and 110 of the Civil Procedure Code.

5. Since the first question posed above has not been referred to this Full Bench, therefore, it is needless for me to enter into this question in detail, but a passing reference may be made to a case Harjina & Co. (Pak.) Ltd., Karachi v. The Commissioner of Income‑tax (Central), Karachi (P L D 1963 Kar. 996). It was held by a Full Bench of the Karachi seat of the High Court in that case that the provision for applications to High Court for grant of certificates of fitness, for leave to appeal to the Supreme Court, has not been repealed or taken away under the present Constitu tion and those provisions, namely, sections 109 and 110, C. P. C., read with Order XLV, rules 2 and 3, still stand unrepealed and are still in force by virture of Article 60 of the present Constitution.

6. Khan Abdul Latif Khan, counsel for the petitioner, referred to a number of precedents to point out that a right to appeal is a substantive right, and it cannot be taken away by any enactment, unless it was made applicable retrospectively.

7. During the hearing of a case by Full Bench, consisting of five Judges, recently, at Lahore (to which I and S. A. Mahmood, J. were also party), our attention was drawn to an order delivered by the Supreme Court on 22nd of October 1962, to dispose of a common question, which arose in Civil Petition for Special Leave to Appeal No. 74 of 1961, and Nos. 12, 13, 38, 91, 92, 93 and 99 of 1962. In this order, the leave to appeal. was granted in the matters referred to above by the Supreme Court, after hearing counsel for the petitioners, Attorney‑General of Pakistan, and the Additional Advocate‑General of West Pakistan. In this order, the effect of Article, 250 was fully considered and it was clearly found that the leave to appeal to Supreme Court against the orders etc. of the High Court passed before the commencing date would be governed by the late Constitution. This latest pronouncement of the Supreme Court had rendered the answer to the present reference quite easy. B. Z. Kaikaus, J., who delivered the main judgment, was pleased to observe, that:‑ "Learned counsel for the petitioners have pointed out that all these petitions had been filed before the 8th June 1962, the date on which the new Constitution came into force. It is urged on behalf of the petitioners that in accordance with Article 250 of the present Constitution of Pakistan which Article is in words similar to section 6 of the General Clauses Act, `any right, privilege, obligation or liability acquired, accrued or incurred' under a law which is repealed by the Constitution remains unaffected and any proceedings may be taken in respect of any such right, privilege etc., as could be taken if the law had not been repealed. The late Constitution of Pakistan had been abrogated when the Martial Law came into force, but Article 160 had been continued by the Continuance of Laws Order, 1958. . The Continuance of Laws Order is one of the laws repealed by the present Constitution. Article 250, therefore,, in terms applies to the situation created by the repeal of the Continuance of Laws Order. It is contended on behalf of the petitioners that the right to file a petition for special leave is a right within the meaning of clause (c) of Article 250 ,and it would remain unaffected by the subsequent repeal of the provision which created the right. The right it is urged had accrued when the various orders which are being challenged in these petitions for special leave were passed. In order to meet a possible objection that a right to apply for special leave is different from a right of appeal as the Court has discretion to grant or not to grant leave, an alternative argument is offered that there was in fact a right of appeal subject only to a grant of leave. It is not conceded, however, that a right to file a petition for leave is not itself a right which is saved by Article 250. "Reliance has been placed on behalf of the petitioners on the Colonial Sugar Refining Company Limited v. Irving 1905 A C

369. In that case at the time when a suit was filed in the Supreme Court of Queensland, there was a right of appeal against the judgment of the Supreme Court to His Majesty‑in‑Council. At the time when judgment was delivered this right of appeal had been abolished and an appeal lay henceforth only to the High Court of Australia. The Supreme Court granted leave to appeal to the Privy Council. When the appeal came up for hearing before the Privy Council an objection was raised that the certificate granted as well as the appeal were incompetent. Their Lordships of the Privy Council were of the opinion that the right of appeal vesting in a litigant could not be taken away except by retrospective legislation as the right of appeal was not a mere matter of procedure but a substantive right and the objection was repelled. It will be observed that in that case too the right of appeal was subject to a grant of leave and there is between that case and the present one a close analogy. It is not necessary for us, however, to go to the extent of saying that a right of appeal which exists at the time when a suit is filed will continue in all stages of the suit in spite of the repeal of the provision which created the right. In the present case a right of appeal had come into existence when the orders under appeal were passed for they were all t passed when the Continuance of Laws Order was yet in force. It was not a mere inchoate right, as it might have been styled if only a suit was pending and no order against which an appeal lay had yet been passed, but had become a full‑fledged right on account of the passing of the order . . . The petitioners, therefore, had a right to the determination of their petitions for special leave on their merits and this right would continue unless it was taken away by legislation purporting to do so. A mere repeal of the provision which created the right to file petition for leave not being retrospective in its operation would not take it away."

8. This pronouncement of the Supreme Court has not been reported (perhaps because it was passed subject to the objection of the respondents of the causes), but during the course of the hearing of the case by the Full Bench of the High Court referred to above, a certified copy of the order was made available by a counsel (and cyclostyled copies from that copy were prepared in the High Court, and one copy each was supplied to the Judges sitting in the Full Bench). This is the pronouncement of their Lordships on a question of law, and, therefore, is a law declared, and unless it is altered or overruled by the Supreme Court itself, the High Court has no option but to follow it, as has been provided under Article 63 of the Constitution. Although the principle of law laid down in this decision of the Supreme Court directly related to the interpretation of Article 160 of the late Constitution, which was applicable by virtue of the Continuance of Laws Order, read with Article 250 of the present Constitution, but it mutatis mutandis applies to Article 158 of the Constitution of 1956 as well, which was also applicable by virtue of the same Continuance of Laws Order, when read with. Article

250. Article 58 of the present Constitution, even if read to mean that the High Courts were left with no powers to grant certificate for leave to appeal to the Supreme Court under sections 109 and

110. C. P. C., even then the repeal of Article 158 of the late Constitution, being not retrospective, the provisions of Article 250 (c) of the present Constitution would have the effect of saving it operation. In the instant case, the order of the Division Bench of the High Court was passed on the 1st, of May 1962, obviously before the commencing day .of the present Constitution, and h was from that date that the petitioners had become entitled to apply in the High Court, for the grant of a certificate for leave to appeal to the Supreme Court. This was held to be a sub stantive right, and Article 58 of the present Constitution, having no retrospective effect, this right remains unaffected by its operation. It is immaterial if the application for the grant of a certificate for leave to appeal was actually instituted,, after the commencing day of the present Constitution, e.g., on the 16th of June 1962. By virtue of the latest pronouncement of the Supreme Court, and on the previous precedents; which need nor be discussed in detail in this judgment. I am of the view that Article 58 of the present Constitution has got no retrospective effect, and Article 158 of the Constitution of 1956, as being force by virtue of the Continuance of Laws Order, 1958, read with sections 109 and 110, C. P. C., the present application for leave to appeal would not be barred by Article 58 of the present, Constitution, as it was also clearly saved by the provisions of Article

250. The reference is answered accordingly. The matter be placed before a Division Bench for deciding it on merits. ABDUL AZIZ KHAN, C, J.‑--I agree. S. A. MAHMOOD, J.‑--A plaint instituted by Jamshed Ahmad Khan on the 5th of April 1958 having been dismissed as time- barred by the Assistant Collector, Mardan, while acting as civil Court under section 117 of the Punjab Land Revenue Act, he filed a Civil Appeal (N0, 53/7 of 1958) before the Peshawar Bench of this Court on the 1st of May 1958, but it was also dismissed on the 1st of May 1962. The present Constitution of Pakistan took effect on the 8th of June 1962. On the 16th of June 1962, Jamshed Ahmad Khan filed a Miscellaneous Applica tion (No. 113 of 1962) under Article 158 of the abrogated Constitution of 1956, red with sections 109 and 110 of the Civil Procedure Code, for the grant of a certificate for leave to appeal to the Supreme Court. At the time of the hearing of the petition by a Division Bench, learned counsel for the respondents raised a preliminary objection that as the application was filed after the promulgation of the present Constitution, the petitioner had to move the Supreme Court direct for leave to appeal under Article 58 of the Constitution, and that a certificate under Article 158 of the abrogated Constitution, read with sections 109 and 110 of the Civil Procedure Code, could not be granted to him by the Court. In support of the objection, he relied on a decision of a Division Bench of the Peshawar Bench, dated 4th of October 1962, in Civil Miscellaneous No. 191 of 1962, holding, in similar circumstances, that as the case did not fall under Article 58 (2) of the Constitution, the petitioner could apply direct to the Supreme Court for leave to appeal under clause (3) of Article 58, and Article 250 (b) of the Constitution had no application to the case, nor could sections 109 and 110 of the Civil Procedure Code be mailed of. The learned Judges of the Division Bench one of whole was a member of the other Division Bench, came to the conclusion that the matter required re consideration, and, therefore referred the following question for decision to a Full Bench:-- "Whether after the operation of the new Constitution (from the 8th of June 1962) on the correct interpretation of Article 58, read with Article 250, applications for leave to appeal in cases decided by the High Court before the opera tion of the Constitution would lie to the Supreme Court only, or would be governed by Article 158 of the Old Constitution, read with sections 109 and 110, C. P. C.?"

2. There is material difference between Article 158 of the abrogated Constitution of 1956 and Article 58 of the Constitution of the Republic of Pakistan, 1962. Article 158 provided‑ "(1) An appeal shall lie to the Supreme Court from any judgment, decree or fill order of a High Court in civil proceedings‑‑ (a) if the amount or value of the subject‑matter of the dispute in the Court of the first instance was, and also in dispute on appeal is, not less than fifteen thousand rupees or such other sum as may be specified in that behalf by Act of Parliament; or (b) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) if the High Court certifies that the case is a fit one for appeal to the Supreme Court. "(2) Notwithstanding anything in this Article, no appeal shall, unless an Act of Parliament otherwise provides, lie to the Supreme Court from the judgment, decree or final order of a Judge of a High Court sitting alone." Though under sub‑clause (a) and (b) of Article 158 (1), an appeal lay by right to the Supreme Court from a judgment, decree or final order of a High Court in civil proceedings, an application had to be made to the High Court under Order XII, rule 1 of the Pakistan Supreme Court Rules, 1956. In cases not covered by sub‑clauses (a) and (b), an application lay to the High Court for a certificate under clause (c). Besides, Article 160 of the abrogated Constitution provided‑ "Notwithstanding anything in this Part, the Supreme Court may grant special leave to appeal from any judgment, decree, order or sentence of any Court or Tribunal in Pakistan, other than a Court or Tribunal constituted by or under any law relating to the Armed Forces." Such applications lay direct to the Supreme Court.

3. Article 58 of the present Constitution provides‑ "(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court. (2) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right where‑ (a) the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution; (b) the High Court has sentenced a person to death or to transportation for life; or (c) the High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Article 123. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal. It will be noticed that there is no provision now similar to sub -clauses (a) and (b) of Article 158 (1) of the abrogated Constitu tion. An appeal now lies to the Supreme Court as of right only in cases falling under sub‑clauses (a), (b) and (c) of clause (2) of Article 58 of the present Constitution, an application to the High Court being necessary, under sub‑clause (a), for a certificate that the case involves a substantial question of law as to the interpretation of the Constitution. In cases not covered by sub -clauses (a), (b) and (c) of clause (2) of Article 58, an appeal lies to the Supreme Court from the judgment, decree, order or sentence of a High Court only if the Supreme Court grants leave to appeal. Article 60 of the present Constitution also provides for exercise of such other jurisdiction by the Supreme Court as may be conferred on it by law. In the present case, unless the application be covered by Article 158 (1) of the abrogated Constitution, the High Court cannot grant a certificate, and an appeal shall lie only if the Supreme Court grants leave to appeal.

4. At the time of the institution of the plaint, the dismissal of the suit and of the appeal by the High Court, Article 158 (1) of the abrogated Constitution of 1956 applied to a petition for leave to appeal to the Supreme Court. Though the Constitu tion was abrogated on the 7th of October 1958, Article 158 governed such applications by reason of the Laws (Continuance in Force) Order, 1958. If a petition for leave to appeal had been filed in the High Court prior to the promulgation of the Constitution, there would not be the least doubt that it would be governed by Article 158 (1) of the abrogated Constitu tion, but the application in this case was instituted after the present Constitution took effect, and the question which falls for determination is whether it is governed by the same Article or by Article 58 of the present Constitution.

5. The answer to the above question must depend on whether an appeal is a matter of procedure or is a vested right, secondly what is the stage at which the right of appeal arises, and, thirdly, as to whether the right of appeal is altered or affected by article 58 of the present Constitution. On these questions may first be cited the case of the Colonial Sugar Refining Company, Ltd. v. Irving (1905 A C 369). In this case, acting under the Commonwealth Act called the Excise Tariff, 1902, the Collector of Customs for Queensland required the appellant, the Colonial Sugar Refining Company, Limited, to pay 20,000 excise duty in respect of 6,700 tons of sugar. The appellants disputed the claim. They deposited the money with the Collector in accordance with the provisions of the Excise Act, 1901, arid then brought an action against the Collector to recover the sum deposited. The writ in the action was issued on October 25, 1902. Under the rules of the Supreme Court a special case was stated by the parties for the opinion of the full Court. On 4th of September 1903, the Court decided that the Government was entitled to retain the duty, and gave judgment for the Collector with costs. In the meantime, the Judiciary Act, 1903, had been passed, receiving the Royal Assent on 25th of August 1983. The appellants, being dissatisfied with the judgment of the Supreme Court, applied to the Court for leave to appeal to His Majesty‑in‑Council, and leave to appeal was granted. The Commonwealth Collector of Customs, Queensland, objected to the grant of this certificate and the competency of the appeal on the ground that the right of appeal to His Majesty‑in‑Council had been abolished and that an appeal lay only to the High Court of Australia. Their Lordships of the Privy Council observed as follows:‑ "As regards the general principle applicable to the case there was no controversy. On the one hand it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And, therefore, the only question is: Was the appeal to His Majesty‑in- Council a right vested in the appellants at the date of the passing of the Act or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior Tribunal which belonged to him as of right, is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal. In either case, there is an interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." From the above observations, the principles that emerge are that statutes are not to be held to act retrospectively, unless a clear intention to that effect is manifest; that a right of appeal is a vested right, and to deprive a suitor in a pending action on an appeal to a superior Tribunal, which belonged to him as a right, required a clear and a manifested intention. A right of appeal accrues as a vested right when an adverse order is passed. It may also be observed that in the above case also the right of appeal was subject to grant of leave, and there is between this case, and the present case a close analogy.

6. The next case to be cited is the Delhi Cloth & General Mills Co. Ltd. v. Income‑tax Commissioner, Delhi and another (A I R 1927 P C 242). In this case, two assessment orders were made, one on the 12th of June 1923, and the other on the 23rd of March 1924. In each case the sum in dispute exceeded Rs. 10,

000. At the request of the assessee, two cases were stated by the Commissioner of Income‑tax to the High Court under section 66 of the Income‑tax Act. The High Court confirmed the decisions of the Commis sioner of Income‑tax in January 1926. The petitioner applied for leave to appeal to the Privy Council. On the 1st of April 1926, the Indian Income‑tax Act (Amendment) Act, 1926 was promul gated, which added section 66‑A to the Indian Income‑tax Act, which gave a right of appeal from the judgment of the High Court to His Majesty‑in‑Council. The learned Judges of the High Court were of the view that the petitioners had a right of appeal to His Majesty‑in‑Council provided they could, in effect, bring their cases within the requirements of section 109 (c) of the Code of Civil Procedure, but not otherwise. The High Court dealt with the applications for certificates on that footing, but dismissed them and refused to certify that the cases were fit one for appeal to His Majesty‑in‑Council. The Company appealed to the Privy Council for special leave to appeal from the order of the High Court passed in January 1926, when section 66‑A was not in the Act at all. As the Privy Council in Tata Iron and Steel Company, Ltd. v. Chief Revenue Authority (1) had held that there was no right of appeal from a judgment delivered by the High Court under section 66 of the Income‑tax Act, the orders of the High Court were final when they were made in 1926. This position continued until the Ist of April 1926, when section 66‑A was added to the Act. The question was whether this section destroyed the finality that had attached to the orders of the High Court when they were made and gave a right of appeal from the orders of the High Court before the Act of 1926 came into force. Their Lordships answered the question as follows:‑ "The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irving (1905 A C 369), where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute, are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders, which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. On the contrary, they think there is a clear suggestion that a judgment of the High Court, referred to in subsection (2) is one which under subsection (A I R 1923 P C 148) has been pronounced, by `not less than two Judges of the High Court, a condition which was not itself operative until the entire section came into force. In their Lordships' judgment, therefore, the petitioners in these cases have no statutory right of appeal to His Majesty- in‑Council. Only by an exercise of the prerogative is either appeal admissible."

7. The next case which may be mentioned is Garikanati Yeerayya v. N. Subbiah Choudhry and others (P L D 1957 S C (Ind.) 448). In this case, the entire case law was considered, and reviewed. The order was made in an application for special leave to appeal from a judgment passed on 10th of February 1955 by the High Court of Andhra. The suit out of which the application arose was an instituted on the 22nd of April 1949 in the jurisdiction of Madras High Court. The judgment of the trial Court was announced on the 14th of November 1950, whereby the suit was dismissed. The plaintiff appealed. On the 1st of October 1953, Andhra State was formed and the new High Court was established under section 38 of the Andhra State Act, 1953 (Act. XXX of 1953), and apparently the appeal stood transferred to the High Court of Andhra under section 28 of the Act On the 4th of March 1955, the High Court of Andhra accepted the appeal, reversed the decree of the trial Court and decreed the suit. The application for leave to appeal was dismissed on the ground that the value of the property was only Rs. 11,400 and did not come up to Rs. 20,

000. In the application the petitioner contended that the judgment being one of reversal and the value being above Rs. 10,000, he was entitled, as the matter of right, to come up to the Supreme Court in appeal, and that as that right had been denied to him by the High Court, the Supreme Court, in exercise of its discretion, should grant him special leave under Article 136 of the Constitution. On a consideration of all the cases, the following principles were laid down by their Lordships of the Supreme Court:‑ "(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure, but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise "

8. As the suit was instituted on the 22nd of April 1949, it was held, following the above principles, that the right of appeal vested in the parties thereto at that date and was to be governed by the law as it prevailed on that day, that is to say, on that day the parties acquired the right, on being unsuccessful, to go up in appeal from the Sub‑Court and to the High Court and from the High Court to the Federal Court, under the Federal Court (Enlargement of Jurisdiction) Act, 1947. read with clause 39 of the Letters Patent and sections 109 and 110 of the Code of Civil Procedure, provided the conditions thereof were satisfied. The only question left for consideration was whether the right had been taken away expressly or by necessary intend ment by any subsequent enactment. In dealing with this question it was observed that in construing the Articles of the Constitution, certain cardinal rules of construction must be borne in mind. In Hough v. Windus ((1884) 12 Q B D 224 at p. 237) it was laid down that statutes should be interpreted, if possible, so as to respect vested rights. The golden rule of construction was that, in the absence of anything in the enactment to show that it was to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. Leeds and County Bank, Ltd. v. Walker ((1883) 11 Q B D 84 at p. 91) and Moon v. Durden ((1848) 2 Exh. 22) were referred to. It was finally held that such a vested right of appeal which had accrued was a matter which did not fall within Article 133, and jurisdiction and power with respect to such right of appeal was exercisable by the Federal Court immediately before the com mencement of the Constitution, and, consequently, the applicant had a right of appeal under Article 135, and the High Court was in error in refusing leave to appeal to the petitioner. As the petitioner was entitled under Article 135 to appeal direct to the High Court, but the right had been wrongly denied to him by the High Court, the special leave was granted to him under Article 136 of the Constitution.

9. Two cases decided by our Supreme Court may be now mentioned. In Muhammad Ishaq v. The State (P L D 1956 S C (Pak.) 256), a petition for special leave to appeal was filed as an appeal under clause (b) of Article 159 of the Constitution .of 1956. This arose out of a sentence of death imposed by the. High Court of West Pakistan on the 21st of February 1956 on an appeal against acquittal filed by the Government, against the order of the Additional Sessions Judge, Layallpur, on a charge of murder. Subsequent, to the Order of conviction by the High Court, the Constitution of Pakistan carne into force on the 23rd of March 1956. Article 159 of the Constitution provided for an appeal where the High Court had on appeal reversed the order of acquittal of an accused person, and had sentenced him to death or transporta tion for life. The learned Judges of the Supreme Court came to the conclusion that the appeal did not lie under Article 159 of the Constitution, because clause (a) of this Article contemplated a case where the order had been reversed by the High Court after, the Constitution came into force, which was evident from the wording of clause (c) of that Article, which provided for an appeal where the High Court certified that the case was fit one for appeal to the Supreme Court, because it could not possibly be contemplated that the High Court should have certified a case to be fit one for appeal before the Constitu tion came into force, no such powers having been given to it by its Letters Patent or the Code of Criminal Procedure. It was also observed that even if clause (a) be considered not to be expressly prospective, the principle is that where a statute affects a substantive right, in the absence of express words or necessary intendment, it has to be construed prospectively and not retrospectively. The right of appeal in this country being the creation of statute is a substantive right, and it can only be conferred or taken away retrospectively by express words or E necessary implication. The rule stated in the Delhi Cloth & General Mills Co. Ltd. v. Income‑tax Commissioner, Delhi and another was relied upon. There being no right of appeal, the petition was treated as a petition for special leave to appeal under Article 160 of the Constitution.

10. In Petitions for Special Leave Nos. 74 of 1961 and 12, 13, 38, 91, 93 and 99 of 1962, which were filed under Article 161 of the abrogated Constitution of Pakistan, read with the Laws (Continuance in Force) Order, 1958, before the Constitution of Pakistan of 1962 came into effect, against the orders of the Chairman, Industrial Court, and Member Board of Revenue a question arose as to whether they were competent and in accord with Article 58 of the present Constitution, whereby an appeal lies to the Supreme Court only from a judgment, decree, order or sentence of a High Court, and the provision in Article 161 of the abrogated Constitution providing for appeals to the Supreme Court against orders of any Tribunal, had been omitted. After hearing the Attorney‑General of Pakistan and the Advocate -General of West Pakistan, their Lordships of the Supreme Court came to the conclusion, subject to being persuaded otherwise by the respondents at the regular hearing of the petitions, that a petition for leave to appeal filed against orders passed before the promulgation of the Constitution was governed by Article 161 of the abrogated Constitution, as they were passed when the Laws (Continuance in Force) Order, 1958 was yet in force, that though it was not necessary for their Lordships to go to the extent of saying that a right of appeal which exists at the time when a suit is filed will continue in all stages of the suit in spite of the repeal of the provision which created the right, as in the present case, a right of appeal had come into existence when the orders under appeal were passed for they were all passed when the Continuance of Laws Order was yet in force; that it was not a mere inchoate right, as it might have been styled if only a suit was pending and no order against which an appeal lay had yet been passed, but had become a full fledged right on account of the passing of the order. Not only that, even the petitions for special leave had been filed before the Continuance of Laws Order was repealed. The petitioners, therefore, had right to the determination of their petitions for special leave on their merits and this right would continue unless it was taken away by legislation purporting to do so. A mere repeal of the provision which created the right to file petition for leave not being retros pective in its operation would not take it away. The learned Judges held that they had jurisdiction to hear the petitions for special leave and issued notices to the respondents.

11. The judgment of the Supreme Court in the petitions for special leave to appeal referred to above was recorded by B. Z. Kaikaus, J., the other learned Judges agreeing with him. His Lordship has in Criminal Appeal No. 49 of 1963 Saeed Ahmad v. The State, decided on the 13th of February 1963, reiterated the principle enunciated above in the following words:‑ "As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects which are to be determined, the law is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law comes into force either during the pendency of the pro ceedings in a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess, expressly or by necessary implication. If a person died before 1948 and he was governed in matter of inheritance by custom, an act passed in the year 1948, according to which all his property is to descend to his heirs in accordance with Muhammadan law, has obviously no effect whatsoever on the rights of parties even though the litigation began after the new Act came into force. When rights once vest in parties, they are not affected by any legislation that has merely prospective effect. This is the position so far as substantive rights are concerned. So far as procedural provisions are concerned, the ordinary rule is that Courts continue to have the jurisdiction which they had at the time when a proceeding was instituted even though that jurisdiction is subsequently taken away, but an interpretation of the new Act may lead to a different result. Not long ago, we held (the reference probably is to the petitions for special leave to appeal, referred to above) that all appeals which were competent under the Old Constitution could be filed if the judgment under appeal had been delivered when the previous Constitution was still in force. Even if the appeal was, in such a case, filed after the coming into force of the new Constitution, that would make no difference to the competence of the appeal. It is true that sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass no order of that kind even in a pending proceeding, but, as I have said, this will depend upon the interpretation of the new statute." The words underlined* above clearly answer the question under our consideration. As the appeal of Jamshed Ahmad Khan was decided while the abrogated Constitution was in force and as a vested and substantive right accrued to him and he could file an appeal under the abrogated Constitution, the institution of the application after coming into force of the new Constitution would make no difference to the competency of the appeal.

12. The question that remains to be considered is the effect of appeal of the Laws (Continuance in Force) Order, 1958, which has been provided for in Article 250 of the present Constitution. Article 225 (2) of the present Constitution, repealed the Laws (Continuance in Force) Order, 1958, by force of which Article 158 was applicable. The effect of the repeal is expressly provided in Article 250 of the Constitution, which provides: "where a law is repealed or is deemed to have been repealed, by, under, or by virtue of this Constitution, the repeal shill not‑ (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." If an application for leave to appeal had been filed in the High Court before the promulgation of the present Constitution, the repeal would not have affected the right accrued to the petitioner in respect of his appeal, and such legal proceeding could be continued and enforced as if the law had not been repealed. As a right of appeal had come into existence when the order under appeal was passed; as held by the learned Judges of the Supreme Court in the petitions for special leave referred to above, the remedy in respect of such right in spite of the repeal could, under clause (d) of Article 250 be enforced by an application to the High Court. The making of the application after the Constitution Day makes no diffe rence, because the right of appeal having accrued, a remedy in res pect of such right under clause (e) of Article 250 could be enforced as if the law had not been repealed. This is a special provision in the Constitution which goes to show that it was not intended that Article 58 should alter or affect vested rights of the parties in respect of appeals, which had already accrued.

13. Apart from the question of the effect of Article 250 of the Constitution, Article 58 of the present Constitution does not really have retrospective effect. Ample authority for the view has already been mentioned. In Gardner v. Lucas ((1878) 3 A C 582), it was held that unless there was some declared intention of the Legisla ture clear and unequivocal or unless there were some circum stances rendering it inevitable that we should take the other view, we have to presume that an Act is prospective and not retros pective. A Full Bench of seven Judges of this Court in Writ Petition No. 427 of 1963, Ghulam Muhammad v. Pakistan etc. decided on the 25th of November 1963, came to the conclusion that as to the provisions of the Constitution, the principle of retrospectivity is not to be lightly attributed.

14. Enough has been said, supported by ample authority,) that as a right of appeal had accrued to Jamshed Ahmad Khan under the Old Constitution at a time when Article 158 of the Constitution, by reason of the Laws (Continuance in Force) Order 1958, was applicable, a petition for leave to appeal was governed by its provisions. The facts of this case have much in common with the facts of the case Colonial Sugar Refining Company, Ltd. v. Irving. A vested right of appeal accrued when the adverse order was passed in appeal. B. Z. Kaikaus, J., in Criminal Appeal No. 49 of 1963, Saeed Ahmed v. The State has clearly held that a vested right of appeal having accrued, it would make no difference if the appeal had been filed even after the coming into force of the new Constitution. Article 58 does not intend to be retrospective in operation and did not affect the existing vested rights.

15. In the circumstances, my answer to the question referred to the Full Bench is that Article 158 (1) of the abrogated Constitution, read with sections 109 and 110 of the Code of Civil Procedure, provided the conditions thereof are satisfied, govern applications for grant of leave to appeal from the appellate judgments of the High Court announced before the operation of the present Constitution, namely, the 8th of June 1962. S. Q. Reference answered accordingly.