P L D 1976 Supreme Court 390 (PLP)

MUHAMMAD HALEEM, J.‑This appeal by special leave is from the order dated the 8th July 1972, of the Lahore High Court, passed by a learned, Single Judge in Criminal Misc. No. 1433/B of 1972 by which it was held that subsection (1) of section 497 of the Code of Criminal Procedure stood amended by the addition of item No. 163, under the sub‑heading, Code of Criminal Procedure in the Schedule appended to the Law Reforms Ordinance, 1972, as from the date of the promulgation of the Ordinance, that is, 14th April 1972. Criminal Miscellaneous No. 1433/11 and other Miscellaneous applications were filed in the Lahore High Court in separate murder cases and bail was sought on the ground of delay. The delay in the disposal of the case was of different duration, the longest being in Criminal Miscellaneous No. 1433/11 of five years whole the shortest in one such application being a period of one year and seven months. It was urged before the learned Single Judge that item No. 163, under the sub‑heading, "Code of Criminal Procedure" in the Schedule appended to the Law Reforms Ordinance, 1972, was added as second proviso to sub section (1) of section 497, Cr. P. C. as from the date of the promulgation of that Ordinance Le. 14‑4‑1972, and therefore, the proceedings in the respective cases not having concluded within the period specified therein, they ought to be treated as falling out of the prohibition contained in subsection (1) of section 497, Cr. P. C. and the question of bail should be decided on that basis. The learned Assistant Advocate‑General vehemently opposed the proposition of law and relied on the wording of subsection (2) of section 1 of the Law Reforms Ordinance, 1972, (hereinafter referred to as 'the Ordinance') which reads:‑ "It shall come into force at once, except the provisions of the Schedule relating to amendments in the Code of Criminal Procedure, 1898, (Act V of 1898), which shall come into force in any province with effect from such date not later than the first day of January 1973, as the Provincial Government thereof may, by notification in the official Gazette, specify in this behalf." The learned Single Judge after reviewing the authorities of the Supreme Court was of the opinion that delay even before the amendment of section 497, was considered a good ground for bail in murder cases. There fore, what the Legislature did by enacting the Ordinance was not to bring about any change in the existing law as declared by the Supreme Court of Pakistan but to adopt the law on bail in the form of a Statute. Hence the addition, according to the learned Judge, fell "within the category of declaratory provisions in the field of Statute" and took effect as from the .date of the promulgation of the Ordinance and needed no further enforce ment. Having held so, the learned Single Judge did not decide the applications on merits but left it open to the accused to apply to the Sessions Judges for bail in the light of the above observations. Leave was granted to consider as to whether a Court is entitled to say that an enactment has come into force from the date of its promulgation Although the enactment itself expressly provides that it will come into force at a later date or on the happening of a particular event. So much of item No. 163, as is relevant is reproduced as under:‑ "(ii) in the proviso, for the full‑stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely‑ "Provided further that the Court may, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person may be released on bail‑ (a) who being accused of any offence not punishable with death, has been detained for such offence for a period exceeding six months, and whose trial for such offence has not concluded; (b) who being accused of an offence punishable with death, has been detained for such offence for a period exceeding one year, and whose _trial for such offence has not concluded." By section 2 of the Law Reforms (Amendment) Act, 1973, enforced or; 7‑2‑1973, the words, comma and figure "not later than the first day of ,January 1973" were omitted and after the word 'behalf' at the end, the words "and different dates may be so specified for different areas 9n a Province so that the amendments in the Code are brought in force throughout the Province progressively" were added. The result being that no period was prescribed for enforcing the amendments and it was left to the Provincial Governments to notify the enforcement of the amendments in the manner laid down in the amended subsection (2) of section 1 of the Ordinance. Again by section 5 of the Code of Criminal Procedure (Amendment) Act 1973, enforced on 1‑8‑1973, clauses (a) and (b) of the proposed second proviso as reflected by item No. 163, of the Schedule appended to the Ordinance were amended. In clause (a) for the words 'six months' the words 'one year' were substituted and in clause (b) for the words 'one year' the words 'two years' were substituted. Finally by section 2 of the Criminal Procedure Code (Amendment) Act, 1974, which was enforced on the 30th April 1974, item No. 163, in the Schedule appended to the Ordinance was omitted. .on the statute book. The High Court judgment was delivered on the 8th July 1972, when the Law Reforms Ordinance held the field. Though its object was to amend certain laws for the purpose of giving effect to certain recommendations of the Law Reforms Commission, 1967‑70 and one such enactment being the Code of Criminal Procedure, it was open to the Legislature to express the date of the commencement of the Act or to postpone the operation of a part of the Act to a later date. In such an event it is the duty .of the Court to give effect to the language of the Act otherwise it would be a negation of the intention of the Legislature which is root permissible as it is against the norms of interpretation. The intention to further postpone the .operation of the schedule is clearly manifest from the subsequent legislation which was not then in the field. Nevertheless it speaks of the intention of the Legislature. The learned Single Judge in holding that the Schedule took effect as from the date of promulgation of the Ordinance, as the amendments were declaratory in nature clearly did violence to the language of subsection (2 f section I of the Ordinance. The word 'declared' as is commonly used in the declaratory Act has not been used in the Ordinance and the Preamble merely recites that the proposed amendments were to give effect to certain recommendations. Therefore, it was not proper to hold that the recommendations were declaratory in nature for the purpose of a declaratory Act is to set aside what deems to have been a judicial error. Such not being the case we fail to see how the Act .could he regarded as daclaratory when, according to the learned Judge, the purpose of the amendment was to give effect to the judgments of the Supreme Court in recognizing delay as a ground for bail. We also fail to see as to on what general principle the learned Judge held that the amend‑1 meats needed no further enforcement when it was clearly expressed otherwise in subsection (2) of section 1 of the Ordinance. Section 5 of the General Clauses Act, 1897, lays down the rule for the commencement of the Central Act when a date is not expressed in the Act itself as to its commencement. Subsection (3) of section 5 provides an exception by the use of the expression 'unless the contrary is expressed' which shows that in the event of a date having been expressed it will be from that date that the Act will commence to operate. The learned Single Judge, we regret to say, had omitted to consider this statutory rule. This judgment should not be‑construed to mean that bail cannot be allowed on the ground of delay and it will be open to the competent Court to consider the case on its own merits, having regard to the judgments of this Court on the subject. In the result for the foregoing reasons we are of the view that this appeal must succeed and setting aside the order, we allow it, but with no order as to costs. S. A. H. Appeal allowed.