P L D 1966 (W (PLP)

Date of hearing: 21st October 1965. SHAKIRULLAH JAN, J.‑‑This case was referred by a learned Single Judge of 1he Court to a D. B. to consider whether the rule laid down in Maulvi Muhammad Jamil and others v. Nur Khan (1) and Pir Bakhsh and another v. The State (P L D 1965 Lah. 308) regarding the applicability of section 17 of the amended Code of Criminal Procedure, was correct. In the former case, it was held that section 17 of the amended Criminal P. C. Act of 1964 could not be retrospectively applied so as to deprive an accused person of recalling witnesses under section 256 of the unamended Procedure Code. In the latter case, it was held that the right of demanding de novo trial provided in section 350 of the old Criminal P. C. could not have a retrospective effect as it was a vested right, which in the opinion of the learned Judge, is a clear departure from the general rule that the amendment in the law of procedure should be given retrospective effect until otherwise it had been expressly provided in the Act itself.

2. Fazal Mabud, aged 20, student of 10th class and Kha nimullah, aged 21 an F: A. student sons of Tasbiullah, residents of village Rajar, Tehsil Charsadda, were tried under section 307, P. P. C: The record shows that the case was transferred to the Court of the City Magistrate, Peshawar from the Court of E. A. C. Charsadda, and the petitioners demanded de novo trial under section 350, Cr. P. C. The trial Magistrate by his order, dated 27‑7‑64, observed that in view of the Act promul gated on 1‑4‑64, amending Cr. P. C. the accused were no longer entitled to ask for a de novo trial as subsection (1) in the proviso, clause (a) of section 350, Cr. P. C. had been omitted, and there was no separate clause in the Act relating to cases instituted before the promulgation of the Act. This plea also did not find favour with the learned Sessions Judge on appeal who affirmed the order of the Magistrate and dismissed the appeal.

3. In revision before a learned Single Judge, it was urged that on the transfer of the case to the Court of the City Magistrate, Peshawar, the petitioners demanded de novo trial, which was wrongly refused on the ground of the amendment of Cr. P. C., and the amendment did not deprive them of their right of de novo trial. It was contended that they were also disallowed their right to 'have the prosecution witnesses recalled for further cross‑examination under sections 256 and 257, Cr. P. C. on the ground of the amendment in Cr. P. C. The amendment could not divest them of their substantial right in this behalf. In support of this contention, reliance was placed on P L D 1965 Lah. 54, where it was held: "The rights of cross‑examining a witness is not a mere matter of procedure but is a fundamental and a substantive right and it may very well be described as being the very essence of the judicial process which aims at ascertaining the truth. It is through cross‑examination alone that the veracity of a witness can be tested before the Court. Sections 256 and 257 of the Code of Criminal Procedure, as they stood before the recent amendments thus granted a fundamental and a substantive right to the accused person and could not be regarded as mere pro cedural provisions. Any amendments in these sections must, therefore, have prospective effect and cannot apply to pending proceedings, if the accused person demands the rights of further cross‑examination under subsection (1) of section 256 or the right to resummon a witness under subsection (1) of section 257, Criminal Procedure Code, 1898." In P L D 1965 Lah. 308, relied upon by the petitioners at page 311 it was observed: "It is well settled that there is no vested right in procedure and mere changes in the law of procedure carrying no corres ponding liabilities can also affect pending cases, but this is subject to one important limitation which is that where some valuable rights have accrued under the old procedure, the new procedure in its application should not be allowed to prejudice those rights, nor should the new procedure be applied where it involves a breach of faith between the parties . .. . . . In the present case, the option to recall the witnesses under the unamended law was allowed to be exercised by the petitioners. Two of the prosecution witnesses had been re‑examined in implementation of the Court's order for recall of the witnesses. The sudden interruption in the flow of the case according to the old procedure by denying the petitioners the right to re‑examine the remaining witnesses because of the change in that procedure has clearly worked to their prejudice . . . . . As the petitioners have been deprived of their right to the recall of some of the P. Ws., and the learned Magistrate has acted on the statement of these witnesses, which were not recorded by him and which the petitioners wanted to be re‑examined, the conclusion is inescapable that the trial is not free from a quasi‑legal defect."

4. The question that arises for decision is as to whether the provisions of the amended Act have become applicable with retrospective effect, and being a procedure law no person has a vested right in any course of procedure, Mr. Sher Bahadur Khan learned A. A.‑G. referred to Maxwell on the Interpretation of Statutes, 11th Edn. at page 216 under the caption, "retrospective operation as regards procedure" which is in the following words:‑ "No person has a vested right in any course of procedure. He has only the right of prosecution or the defence in the manner prescribed for the time being, by or for the Court in which he sues, and if an Act of Parliament alters the mode of procedure, he has no other right than to proceed according to the altered mode." At page 217, it is laid down:‑

"The general principle, however, seems to be that alterations in procedure are retrospective unless there be some good reason against it." In Waheed Hasan Khan v. State of Hyderabad A I R 1954 Hyd. 204 a Full Bench held: "The right of further cross‑examination is a mere qualified procedural right which cannot be preserved to a party after the law which conferred the right is amended or another procedural law substantially altering the mode by which the credibility of witnesses should be tested, is substituted in place of the repealed statute. The analogy of appeal cannot be extended to cases falling under section 267‑A (2) (b) of the Hyderabad Criminal P. C. and the rights, conferred by it, cannot be saved to an accused from after the repeal of the Hyderabad Criminal P. C. The opportunity of further cross‑examination given to an accused under subsection (2) of section 267‑A of the repealed Hyderabad Criminal P. C. is not a substantive right which could be exercised by the accused, in a trial commencing under the Indian Criminal P. C. after its application to the State on 1‑4‑51 and the trial should be conducted only in accordance with the Indian Criminal P. C. without the accused being given an opportunity of further cross‑examination." Misra, C. J. concurring with Qamar Hasan, J. observed:‑

"The procedure conferring the right of cross‑examination merely provides a mode for testing veracity of a witness. A law which gives to an accused person several opportunities to put him through the test is purely a procedural right which can be substituted by a law either curtailing the number of opportunities or providing another method for testing his cre dibility. The change does not affect the substantive right which a party seeks to enforce against the other." The learned A. A.‑G. contended that P L D 1965 Lah. 308, relied upon by the learned counsel for the petitioners was overruled by the Supreme Court in State. v. Maulvi Muhammad Jamil and other (PLD 1965SC681). In support of his contention, he produced the monthly Bulletin of important cases for the month of May 1965, in which their Lordships observed:‑ "It may be acknowledged that the right of an accused person to defend himself includes the fundamental right of cross-examination of the prosecution witnesses. In a warrant case such as the present one, when a witness is examined before the charge, he has the right to cross‑examine him under section 138 of the Evidence Act. This right was in fact, 'exercised in the present case by the accused respondent when the complainant and his two witnesses were examined before the charge. It is, however, contended on their behalf that the procedural law then in force, gave the right to the accused to split up his cross‑examination, so as to reserve part of the questions to be asked from the witness, to a stage after the charge, if need be under section 256 of the Code of Criminal Procedure. The (sic) whether an opportunity having been furnished to the accused to cross‑examine fully, the witnesses, even before the charge, the new procedure which does away with the facility of recalling a witness for further cross‑examination, really encroaches on the fundamental right of cross‑examination given by the law to an accused person? If he so chose, the accused could have exhaustively cross‑examined the witnesses in question at the time they were examined before the charge. The rule of natural justice would only ensure an opportunity for cross‑examination to be given and this opportunity had in fact been given in the present case at an earlier stage. There is thus nothing in equitable in the amending law doing away with the second opportunity for cross‑examination, as a matter of right. Indeed, the new law seems to contemplate a mere expeditious disposal of cases by cutting down unnecessary procedural delays. Of course it could be argued that under the old procedure, it was necessary to give a second chance of cross‑examination at the option of the accused, as under section 162 of the Code, copies of statements made by witnesses the investigating Officer, were only made available at the time when they were actually called into the witness box. The new procedure provides for supply of copies of earlier statements made by witnesses to the police several days before the trial commences. The question is thus not free from difficulty. But having regard to obvious objective of the new procedure of cutting down judicial delays and preventing abuse of process, I am inclined to the view that the new procedure was meant to apply even to pending cases and there still remains scope for obviating the prejudice to an accused person, in hard cases, by having recourse to other provisions of the code." Alterations in the form of procedure are always retrospective. In view of Criminal Appeal No. 26 of 1965, and the authorities cited above, it is obvious that no one has any vested right in any procedural rule and that, therefore, any change in the procedural rule has a retrospective effect in the sense of being applicable to judicial proceedings initiated before the change, and the petitioners were, therefore, not entitled to claim de novo trial and to further cross‑examine the witnesses. As a result of foregoing discussion, we respectfully disagree with the views expressed in the two decisions of the learned fudges sitting in chambers referred to above and would answer the question referred to the Division Bench in the negative. K. B. A. Reference answered.