P L D 1973 Supreme Court 544 (PLP)

I am also of the opinion that since clause (5) of Article 223 of 1962 Constitution merely declared the state of the law as it existed primarily for purposes of clarification and to remove any doubts thereof, it is not necessary to determine its prospective or retrospective character. As the High Court's writ jurisdiction was not available in respect of the tribal areas of Dir, the appellants' writ petition was rightly dismissed by the High Court. I would, therefore, dismiss this appeal without making any order as to costs. HAMOODUR RAHMAN, C. J.‑I have now had the advantage of reading the judgment proposed to be delivered by my learned 1 brother Sajjad Ahmad Jan, J. and the dissenting notes written by my learned brothers, Muhammad Yaqoob Ali and Waheeduddin Ahmad, JJ. While I am unable to agree with Sajjad Ahmad Jan, J. that President's Order No. 11 of 1961, which came into force on the 12th of December 1961, under Notification No. SRO‑1223(K)/61, did not have the effect of restoring the writ jurisdiction of the High Court of West Pakistan, I regret I cannot also subscribe to the conclusions reached in the dissenting notes that the said order, being a Central Law under Article 242 of the Constitution of 1962, was also continued in operation as an existing law by reason of the provisions of clause (1) of Article 225 of the raid Constitution. The latter clause reads as follows:‑ "Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature." I regret to say that my learned brothers, Muhammad Yaqoob Ali and Waheeduddin Ahmad, JJ., have not attached any importance to the words "subject to this Constitution" occurring in clause (1) of Article

225. In my view, by reason of these words, the provisions of clause (1) of Article 223 of the same Constitution became attracted, and no Central law, as President's Order No. 11 of 1961 was, could, after the 8th of June 1962, continue to apply to any part of a tribal area, unless the President had so directed after the coming Into force of the Constitution of 1962. This direction was never given. The result of this, in my opinion was that President's Order No. 11 of 1961, which did restore the jurisdictions of the Supreme Court and the High Court of West Pakistan in the special areas (formerly tribal areas), did not continue to remain applicable. The position, therefore, on the 24th of September 1963, when the writ petition was filed in the Peshawar Seat of the former High Court of West Pakistan, was that the jurisdiction conferred on the High Court by President's Order No. 11 of 1961 was not exercisable and, therefore, the writ petition was bound to fail on that ground. Clause (5) was added to Article 223 of the 1962 Constitution on the 10th of January 1964, by the Constitution First Amend ment Act, 1963 (Act I of 1964), when fundamental rights were restored. This was evidently done to clarify that the High Court and the Supreme Court should have no jurisdiction to grant any remedy in the case of a violation of a fundamental right in the tribal/special areas. On the other hand, if President's Order No. 11 of 1961 had been applicable, as has been held by my learned brothers, C J Muhammad Yaqoob Ali and Waheeduddin Ahmad, JJ., on the date the writ petition was filed, I would have had no hesitation in agreeing with them that that jurisdiction could not be taken away by the subsequent incorporation of clause (5) in Article 223of the said Constitution without giving it any retrospective effect. For these reasons, I am in agreement with the conclusion reached by my learned brother, Sajjad Ahmad Jan, J., that the appeal should be dismissed without any order as to costs, as the High Court's writ jurisdiction was not available in respect of the tribal areas of Dir on the date the writ petition was filed in the High Court MUHAMMAD YAQUAB ALI, J.‑I agree with my learned brother Waheeduddin, J.‑That the appeal be allowed and the case remanded to the High Court for decision on merits. The observation in Jamil Ahmad and another v. The State ((1) P L D 1969 S C 344), to the effect that in the absence of a direction by the President under Article 223(1) of the 1962 Constitution the President's Order No. 11 of 1961 did not apply to Tribal Areas is Inaccurate. The corresponding provision in the 1956 Constitution was contained In Article 104 viz: " Notwithstanding anything in the Constitution Act o f Parliament or of the Provincial Legislature shall apply to a Special Area to any part thereof unless the Governor with the previous approval of the President directs . The jurisdiction of the Supreme Court and High Courts was excluded in respect of Special Areas by Article 178 of the 1956 Constitution. The Constitution was abrogated by Mr. Iskander Mirza on the 7th October 1958, but the Laws (Continuance in Force) Order 1 of 1958 continued its operation with certain modifications. On the 4th of July 1961, the President in pursuance to the Proclamation of the 7th October 1958, and In exercise of all powers enabling him in that behalf promulgated the Special Areas (Restoration of Jurisdiction) Order, 1961.Article 2 of the Order provided as under: "2. (1) The Supreme Court shall exercise in relation to the territories comprised In the Special Areas or any part there of the same jurisdiction as would have been exercisable in relation to those territories or that part by the Federal Court of Pakistan on the 14th day of October 1955, and by the Supreme Court on the 23rd day of March 1956, if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955,and Article 178 of the Constitution of the 23rd day of March 1956, had not been enacted. (2) The High Court of West Pakistan shall exercise in relation to the territories comprised in the Special Areas or any part thereof the same jurisdiction as would have been exercisable by the High Court of West Pakistan on the 14th day of October 1955, if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955, and Article 178 of the Constitution of the 23rd day of March ' 1956, had not been enacted." Article 5 of the Order extended the period of limitation, which began to run before the 14th day of October 1955, in respect of any matter concerning which jurisdiction was created or restored by the Order. Thus not only jurisdiction of the Supreme Court and High Courts was created and restored in respect of Special Areas it was given retrospective effect. It is obvious that no further direction by the Governor or President under Article 104 of the 1956 Constitution read with the Laws (Continuance in Force) Order 1 of 1958 was necessary to apply the provisions of Order No. 11 to the Special Areas. The law was made for the Special Areas. No further conscious direction was necessary to enforce it in those Areas. The provisions of Article 104 as well as Article 223(1) of the 1962 Constitution deal with laws which are enacted for areas other than the Special or Tribal Areas. These laws though made by the Parliament or the Provincial Legislature do not apply to the Tribal Areas unless the President or the Governor by conscious application of mind so directs. A law which is made by the President for the Tribal Areas, however, stands on a different footing. When the law is made the President ha already applied his mind and given a direction that it shall apply to Tribal Areas. This satisfied fully the requirement of Article 104 of the 1956 Constitution and Article 223(1) of the 1962 Constitution. Article 225 of the 1962 Constitution continued in force all existing laws". Under clause 7 of the Article all President's Orders were included in "existing laws". President's Order No. 11 of 1961 was thereby continued in force in the Tribal Areas. The jurisdiction conferred by the Special Areas (Restoration of Jurisdiction) Order, 1961, on the Supreme Court and High Courts was thus continuing when the writ petition was filed by the appellants here in fn the High Court. I am clearly of the view that the words: "subject to this Constitution" in Article 225 did not make it obligatory on the President to give a direction under Article 223(1) for extension of Laws which were made exclusively for the Tribal Areas or the Laws which had already been extended to the Tribal Areas. I had a research made by the Reference and Research Officer who reports that no notification was issued at any time after the commencement of the 1962 Constitution extending the application of Laws to Tribal Areas which had already been extended there or which were like the Frontier Crimes Regulation made for the Tribal Areas alone. This is a correct position of the law. Otherwise, we shall reach the unfortunate conclusion that actions taken in the Tribal Areas from 8th June 1962, onwards under scores of statutes, such as, Excise Act, Land and Sea Customs Act, Frontier Crimes Regulation, etc. are illegal and without jurisdiction. This by itself is a material consideration to be kept in view in interpreting Article 223(1). The jurisdiction conferred on the Supreme Court and High Courts was taken away by clause 5 of Article 223, which was added by the Constitution (First Amendment) Act I of 1964. The National Assembly did not give it retrospective effect. The words used are: "the Supreme Court not a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area". It has been the consistent view of this Court that any change in the jurisdiction of a Court does not affect the competence of a pending lis unless the Legislature expressly so provides As there is no such provision in clause 5 of Article 223, the High Court erred in holding that it had no jurisdiction to entertain the writ petition filed by the appellants. The appeal must, therefore, be allowed and the case remanded to the High Court for decision on merits. Parties shall bear their own costs. WAHEEDUDDIN AHMAD, J.‑I have had the advantage of reading the judgment proposed to be given by Sajjad Ahmad Jan. J. I regret to say that I do not find myself in agreement with the conclusion reached by my learned brother. In my opinion, the High Court had the writ jurisdiction and the matter should be referred to the High Court for decision of the dispute between the parties on merits. The grounds on which I have reached this conclusion are as under:‑ The only question for consideration in this appeal is whether the former High Court of West Pakistan, Peshawar Bench, had jurisdiction in the present case to issue writ on the allegation made in the petition to the Political Agent of Dir State. Before coming to the merits of the case, it is necessary to mention certain dates. Writ petition in this case was filed on the 24th September 1963. The report was called from the respondent on the 16th October 1963. Parties were present on the 10th of March 1904 and fresh order was passed for submitting the report by the respondents on the 14th October 1964. Letter was issued in this connection to the respondents on the 28th May 1964. Report was submitted on the 6th June 1964 and the, petition was dismissed in limeline on the 18th November 1965. During the pendency of the writ petition, clause (5) was added to Article 223 of the Constitution by the Constitution (First. Amendment) Act, 1963 (1 of 1964), section 10 of which came into effect on the 10th January 1964. This amendment is In the following language:‑ "223(5). Notwithstanding anything in this Constitution neither the Supreme Court nor a High Court shall unless the Central Legislature by law otherwise provides exercise any jurisdiction under this Constitution in relation to a Tribal Area." It will be noticed that it was on the language of the above mentioned clause (S) in Article 223 of the Constitution that the High Court held that it had no jurisdiction to issue writ in the Dir State. The learned counsel for the appellants has traced out the history of the jurisdiction of the High Court in Dir State and has contended that when the writ petition was filed in the former High Court of West Pakistan, It had jurisdiction to entertain writ petition in respect of disputes arising in the Dir State. In order to appreciate his point, it is necessary to refer to the various legislative measures, which have been enforced in respect of the tribal areas. Under the Establishment of West Pakistan Act, which came into force on the 14th October 1955, amongst other territories, the tribal areas of Baluchistan. The Punjab and North‑West Frontier and the States of Amb, Chitral, Dir and Swat, described In the Act as "Specified Territories" were incorporated in the Province of West Pakistan. Under the same Act by section

7. The former High Court of West Pakistan was established by (

3. G. O. No. 19 of 1955 and the Judges of the former High Court of West Pakistan were given territorial jurisdiction In relation to the whole of the newly‑integrated Province of West Pakistan, including "Special Areas". By a subsequent amendment of section 7 of the Act introduced by section 2 of the Establishment of West Pakistan (Amendment) Act of 1955. "Special Areas" were excluded from the jurisdiction of the High Court with effect from the 14th October 1955. On the promulgation of the 1956 Constitution, the same poaitlo1 was maintained and the "Special Areas" were kept outside the jurisdiction of the High Court of West Pakistan. On the 4th day of July 1961, President's Order No. 11 of 1961 was Issued with a view to bringing "Special Areas" within the jurisdiction of the superior Courts. This Order was issued on the 12th December 1961 in the Gazette Notification. Subsection (2) of section 2 of the Order which is applicable, is as under:‑‑ "2(2). The High Court of West Pakistan shall exercise in relation to the territories comprised in the Special Areas or any part thereof the same jurisdiction as would have been exercis able by the High Court of West Pakistan on the 14th day of October 1955, if sub‑clause (i) of clause (a) of section 2 of the Establishment of West Pakistan (Amendment) Act, 1955 and Article 178 of the Constitution of the 23rd day of March 1956 had not been enacted." On the language of the above provision of law, it is quite clear that the High Court of West Pakistan's jurisdiction in the tribal) areas were restored and the High Court could entertain writ petitions in respect of the tribal areas. This position continued till the enforcement of the 1962 constitution, which was enacted op the Ist of March 1962 and enforced from the 8th of June 1962. Article 223(1) of the Constitution reads as under:‑ "223(1). No Central Law shall apply to a Tribal Area or to any part of a Tribal Area unless the President so directs, and no Provincial Law shall apply to a Tribal Area or to any part of a Tribal Areas unless the Governor of the Province in which the Tribal Area is situated, with the approval of the President, so directs, and in giving such a direction with respect to any law, the President or the Governor, as the case may be, may direct that the law shall, in its application to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction." Thus a Central Law was to operate in the tribal territory if so directed by the President under the Constitution. The learned counsel for the appellants has contended that President's Order No. 11 of 1961 is one of such laws and that Order having been made by the President and not revoked, is a Central Law within the definition of that term in Article 242 of the Constitution and must be enforced. The contention of the learned counsel is not without force. This question was considered by this Court in the case of Jamil Ahmad and another v. The State ((1) P L D 1969 S C 344). While making a passing remark, it was observed that President's Order No. 11 of 1961 was not applicable, as it was not extended to the tribal areas after the enforcement of 1961 Constitution. In my opinion, it was not at all necessary to extend this Order afresh. The fact is that President's Order No. 11 of 1961 which was enforced on the 12th December 1961, became an existing law arid was kept alive by Article 225(1) of the 1962 Constitution. This being so it remained in force on the promulgation of 1962 Constitution and the former High Court of West Pakistan continued to have jurisdicti3n to entertain writ petitions in respect of tribal areas. It is, therefore, quire clear that the former High Court of West Pakistan had jurisdiction to entertain writ petitions till clause (5) was incorporated in Article 223 of the 1962 Constitution. The next question for consideration is whether incorporation of clause (5) in Article 223 of the 1962 Constitution has made any effect on the pending cases. It is needless to mention that the Constitution unless it otherwise provides has no retrospective effect. The language of clause (5) referred to above leaves no doubt that it has no retrospective effect and does not affect the g pending cases. The amendment in the Constitution is not of a procedural nature and, therefore, it cannot have retrospective effect. Mr. Khalil‑ur-Rehman, learned counsel for respondent No. 1 contended that Article 223(1) being declaratory will apply retrospectively. He further contended that when a jurisdiction is taken away by the Constitution, the pending casts abate, None of the contentions raised by the learned counsel has any‑force. Recently, this Court considered the general principle with regard to the interpretation of statutes in the case of Adnan Afzal Capt. Sher Afzal ((1) P L D 1969 S C 187). In this connection my Lord the Chief: Justice made the following observation:‑ "The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Ltd. v. Irving (1905 A C 369) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right inexistence at the passing of the Act," then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary Intendment" given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Limited (1875) 1 Ch. D 48 where it was observed that as a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enact ments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to, that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, 9t must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice. Then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other band, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any con sequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively." Keeping these principles in view, clause (5) of section 223 of the 1962 Constitution cannot be said to have any retrospective effect and will not take away any existing right of the parties. After careful consideration of the facts of the present case, It appears to me that under President's Order No. 11 of 1961, the jurisdiction of the High Court in respect of disputes arising in the tribal areas had been restored and continued to remain in. existence till the amendment of 1962 Constitution when clause (5) of Article 223 was incorporated, which took away the jurisdiction of the High Courts and the Supreme Court. It is, therefore; quite clear that when the writ petition was filed by the appellants: the High Court had jurisdiction to entertain it and to consider it on merits and the appellants have a right to get the actions brought by them decided on merits. In these circumstances, the High Court has wrongly declined jurisdiction to entertain the writ petition. It should have investigated the grievance of the appellants and should have given redress to them if they were entitled to it. In that view of the matter, the order of the High Court is set aside and the petition is sent back to the High Court for deciding it on merits. I would, therefore, allow the appeal and leave the parties to bear their own costs . SALAHUDDIN AHMED, J. ‑I have had the advantage of reading. The judgments proposed to be delivered by My Lord the Chief Justice and my learned brothers Muhammad Yaqoob Ali, Sajjad Ahmad Jan and Waheeduddin Ahmad, JJ. The question for consideration is whether on the 24th September 1963, when the writ was filed, the High Court was, empowered to exercise its Writ Jurisdiction in the Tribal Areas concerned. In the case of Jamil Ahmad v. The State (PLD1969SC344), it has been held that President's Order No. 11 of 1961 was a 'Central Law' and its continuance was preserved under Article 225 of the late 1962 Constitution subject to the Constitution. That being so, assuming that President's Order No. 11, which came into force with effect from the 12th December 1961, authorised the High Court to exercise its Writ Jurisdiction in Tribal Areas, on the 8th June, 1962, when Article 223(1) of the said Constitution came into force the President's Order required the requisite direction from the President for its application in Tribal Areas. Article 223(1) is in these terms:‑ "223(1). No Central Law shall apply to a Tribal Area or to any part of a Tribal area unless the President so directs, and no Provincial Law shall apply to a Tribal Area or to any part. of a Tribal Area unless the Governor of the Province In which, the Tribal Area is situated, with the approval of the President,, so directs, and in giving such a direction with respect to any law, the President or the Governor, as the case may be, may direct that the law shall, in its application to a Tribal Area or to a specified part of a Tribal Area, have effect subject to such exceptions and modifications as may be specified in the direction." Admittedly there is no such direction by the President ash contemplated in Article 223(1) of the Constitution. The contention, that the President having himself made President's Order No. 11 for the Tribal Areas no further direction was required from him to make the Order applicable to Tribal Areas, appears to me to be misconceived, for the person who passed President's Order No. 11 is not legally the same person as the President contemplated under Article 223(1) of the Constitution. The President who made President's Order NO. I was a self‑constitute authority, while the President under Article 223(1) of the 1962 Constitution was the President constituted under the said Constitution. It is true that President's Order No. 11 of 1961was preserved under Article 225 of the Constitution' altered repealed etc, but this preservation was made subject to the Con stitution, and the Constitution clearly provided that any Central Law in order to be as, applicable In a Tribal Area must have the direction of the President as mentioned in the Article. The view I have expressed is fully in consonance with the decision of this Court in the case of Jamil Ahmad v. The State. Having regard to the view expressed above, the question whether President's Order No. 11 of 1961 authorised the then High Court of West Pakistan to exercise its Writ Jurisdiction in "a Tribal Area is of academic interest only and need not be decided here. I accordingly agree with the order proposed to be passed by my Lord the Chief Justice and my learned brother Sajjad Ahmad Jan, J. In accordance with the opinion of the majority, this appeal is dismissed without making any order as to costs. S. A. H. Appeal dismissed.