P L D 1969 Karachi 463 (PLP)

Versus THE STATE‑Respondent Criminal Transfer Application No. 38 and Criminal Bail Application No. 321 of 1968, decided on 27th March 1969. (a) Criminal Law (Special Provisions) Ordinance (II of 1968), Ss. 32 & 34 and Constitution of Pakistan (1962), Art. 250 read with Quetta and Kalat (Civil and Criminal Law) Ordinance (III of 1965)‑Proceedings initiated under Ordinance and pending in Nastrabad Sub‑Division at tune Ordinance III of 1965 was repealed and Ordinance II of 1968 was approved in amended form, by Provincial Assembly ‑ Held, expressly saved by S. 32 of Ordinance II of 1968. Applicants were charged of certain offences under the Penal Code and the Deputy Commissioner took cognizance of the matter under section 4 of the Criminal Law (Special Provi sions) Ordinance (II of 1968). One of the applicants moved an application for bail which was rejected by the Sessions Judge. The other applicants moved an application for transfer of the case from the Court of trying Magistrate. It was contended before the High Court that after the Provincial Assembly disapproved the extension of the Ordinance to Nastr abad Sub‑Division it must be deemed to have never operated in that area and consequently the applicants could not be tried under its provisions notwithstanding the fact that cognizance had been taken against them under the Ordinance and proceedings were pending in that area: Held, section 33 of the Criminal Law (Special Provisions) Ordinance, 1968 expressly saved all pending pro ceedings of which cognizance had been taken under it and which were pending before any Magistrate, Court or other authority in Nasirabad Sub‑Division. Furthermore, the contention proceeded in disregard of the provisions of Article 79(2) of the Constitution according to which when the Governor's Ordinance is approved, with amendment, by the Provincial Assembly to that extent it shall be deemed to have been repealed and in the result Article 250 of the Constitution would be attracted to the ensuing consequences even if no express provision had been made, for saving pending proceed ings. In this view, even if the Ordinance of the Governor was assumed to be in the nature of a temporary legislation the contention would be misconceived. When the Ordinance was approved by the Provincial Assembly, in the amended form, it shall be deemed to have been in its erstwhile application to Nasirabad Sub‑Division, and consequently Article 250 of the Constitution would have automatically applied to the incidence of that repeal but for the fact that the Legislature, being cognisant of the existence of that Article, nevertheless expressly saved all pending proceedings by section 32 of the Ordinance in the light of the said express intention of the Provincial Legislature section 32 of the Ordi nance would apply to the facts of this case in preference to Article 250 of the Constitution which is designed to apply in all cases in which the repeal of a law is brought about by under or by virtue of the Constitution. The fact that by section 32 of the Ordinance "continuance of any proceedings by or before any Magistrate, Court or other authority in respect of any offence taken cognizance of before the commencement of this Ordinance" has been expressly provided for it must be held that the prosecution of the appli cants would have to continue under the Ordinance by virtue of the provisions of this section the language of which, unlike Article 250 of the Constitution, is wide enough not to admit any limitations: The Crown v. Haveli P L D 1949 Lah. 550; Mir Laik Ali v. Standard Vacuum Oil Company (ESSO) and another P L D 1964 S C 220; Khushiram Atmaram Jaisinghani and others V. Custodian of Evacuee Property, West Pakistan, Karachi and others P L D 1965 S C 453; The State v. Maulvi Muhammad Jamil and others P L D 1965 S C 681 and Haji Adam Hossen and others v. The Federation of Pakistan P L D 1962 Kar. 21 distinguished. Mir Ahmad Nawaz Khan Bugti v. The Superintendent, District Jail, Lyallpur and others P L D 1964 Lah. 202; Muhammad Bachal v. Deputy Rehabilitation Commissioner, Hyderabad and others P L D 1962 Kar. 889; Ch. Sir Muhammad Zafrullah Khan and 7 others v. The Custodian of Evacuee Property, West Pakistan, Karachi and others P L D 1964 S C 865; Saeed Ahmad v. The State P L D 1964 S C 266; Mubarak All v. The State P L D 1965 Lah. 102; Habibullah Khan and others v. Pakistan and others P L D 1967 Kar. 300 and Ghazi and others v. The State and another P L D 1962 Lah. 662 not relevant. (b) Criminal Procedure Code (V of 1898), Ss. 498 & 526 read with Criminal Law (Special Provisions) Ordinance (II of 1968), Ss. 3 (2) & 28‑Bail‑Transfer of case‑Proceedings under Ordinance‑Jurisdiction of High Court barred and application of Cr. P. C. expressly excluded‑‑Relief under S. 498 or S. 526 cannot be granted. Criminal Transfer Application No. 38 of 1963 A. H. Memon for Applicants. Kazi Akhtar Ahmed, A. A. G. with A. K. Lakhan for the State. Criminal Bail Application No. 321 of 1968 Azizullah Sheikh for Applicants. Kazi Akhtar Ahmed, A. A. G. with A. K. Lakhan for the State. These two applications, one under section 498, Criminal Procedure Code seeking bail for accused Talal Bughti in a case under section 302/307/396/398/149, P. P. C., and another under section 526, Criminal Procedure Code seeking the transfer of a case pending in the Court of Sub‑Divisional Magistrate, Nasirabad Khairpore Division for offences under section 497/498/380, D. P. C., to any other Court in Hyderabad Division were filed under the following circumstances. Applicant Talal Bughti son of Nawab Muhammad Akbar Khan Bughti, a young boy about 16 years old, was arrested on 15th July 1968 at Quetta on an accusation that he along with a party of Bughtis had raided the village of a rival tribe namely Khosos and as a result of the exchange of gunfire killed 7 persons. On 20th July 1968, Talal Bughti was produced before the District Magistrate, Jacobabad who remanded him to jail custody. On 23rd July 1968, a bail application was moved on his behalf before the District Magistrate who fixed its hearing for 27th July 1968. On this date the application could not be heard as the District Magistrate was out of station and consequently it was adjourned to 8th August 1968. However, without waiting for this date Mother application was filed by the applicant before the Sessions Judge, Jacobabad on 27th July 1968, which was dismissed as premature. He then moved the High Court for bail on 29th July 1968, and by an order dated 31st July 1968, the District Magistrate, Jacobabad was directed to bear his pending bail application, which was already fixed or 8th August 1968, without further adjournment. In obedience to the directions of the High Court the District Magistrate heard the said application on that date and rejected it vide his order of 9th August 1968, exercising power as Deputy Commissioner under the Criminal Law (Special Provisions) Ordinance II of 1968. 'Thereafter an attempt was made to secure bail for the applicant from the learned Sessions Judge, Jacobabad which he dismissed on 16th August 1968 on the ground that under the Criminal Law (Special Provisions) Ordinance II of 1968 (hereinafter called the Ordinance) he bad no jurisdiction.

2. Mst. Rani and her father Jamro, the applicants in the Transfer Application, were proceeded against for offences under section 497/498/380, P. P. C., by the Sub‑Divisional Magistrate, Nasirabad, exercising delegated power of the Deputy Commis sioner Jacobabad after a complaint was filed before him by respondent No. 1 Chandu who described himself as the husband of Mst. Rani. In his complaint Chandu alleged that about 6 months ago Jamro, the father of Mst. Rani, had enticed her away from his house with the help of three co‑accused namely Somar, Shol and Chetu and that Mst. Rani had also removed from his house cash, clothes and ornaments worth Rs. 500.00.

3. The learned counsel for the parties in both these applications addressed the Court first upon the question of jurisdiction in view of the provisions of section 29 of the Ordinance according to which no proceeding under the Ordinance and no decision given, sentence passed or order made in any such proceedings shall be called in question in any Court or before any authority except as provided by the Ordinance.

4. The Ordinance was initially promulgated by the Governor of West Pakistan exercising power under Article 79 (1) of the Constitution of 1962 at a time when the Provincial Assembly was not in session. In due course it was placed before the Provincial Assembly West Pakistan, as required by Article 79 (2) of the Constitution who approved it on 23rd May 1968, with the only amendment that it was withdrawn from Nasirabad Sub‑Division. The Ordinance was then placed before the Governor of West Pakistan who, on 11th June 1968, assented to it, and consequently in terms of Articles 79 (3) of the Constitution it is deemed to have become an Act of the Provincial Legislature. Before the Ordinance was introduced in Nasirabad Sub. Division, certain offences under the Penal Code committed, in that area, were to be tried under the Quetta and Kalat (Civil and Criminal Law) Ordinance, 1965 (hereinafter called the Quetta and Kalat Ordinance). This Ordinance was repealed by the former Ordinance but proceedings pending under it were saved by section 32, which provided that "nothing in this Ordinance shall affect the continuance of any proceedings by or before any Magistrate, Court or other authority in respect of any offence taken cognizance of before the commencement of this Ordinance". The learned counsel for the applicants contended that after the Provincial Legislature disapproved the extension of the Governor's Ordinance to Nasirabad Sub‑Division it must be deemed never to have operated in that area, and consequently the applicants could not be tried under its provisions notwith standing the fact that cognizance had been taken' against them under the Ordinance and proceedings were pending before the Courts in that area. In effect, the argument was that the Ordin ance of the Governor was in the nature of a temporary legislation inasmuch as it had a predetermined life of 180 days as provided by Article 79 (6) (b) of the Constitution and no sooner the Provincial Legislature disapproved its extension to Nasirabad Sub‑Division it must be deemed to have ceased to have any effect whatever including in regard to pending cases of which cognizance had been taken by the Courts prior to its amendment. In support of this contention the learned counsel relied upon a Full Bench judgment of the Lahore High Court reported in The Crown v. Haveli (P L D 1949 Lah. 550). The facts in that case were that by a notification of the Government, the provisions of a temporary Act were extended to the District of Sialkot. The notification in question, was. withdrawn from that area on 12th February 1948, but the case against the accused was instituted in the Court of a Magistrate on 12th March 1948. Therefore, when the accused was convicted under the provisions of the said temporary Act the question arose whether after the withdrawal of notification, by which the provisions of the temporary Act were extended to the District of Sialkot, the accused could have been tried and convicted under the said Act. Their Lordships answered the question in the negative holding that in the first place the Act itself was of a temporary nature and secondly it was extended to the District of Sialkot by a notification of the Government which was an act of a subordinate authority as against the Legislature. In this view, their Lordships observed that "the general law in relation to, temporary statutes is that once such a statute has expired it ceases altogether to have effect as if it had never been, except as to transactions past and closed. This result follows unless there be provision made in the statute‑itself for continuing, the effect thereof in any respect". Apart from the question whether the Ordinance of the Governor was in the nature of a temporary statute, these observations of their Lordships clearly went against the contention of the learned counsel for the applicants as section 32 of the Ordinance expressly saved all pending proceed ings of which cognizance had been taken under it and which were pending before any Magistrate, Court or other authority in Nasirabad Sub‑Division. Furthermore, the contention proceeded in disregard of the provisions of Article 79 (2) of the Constitution according to which when the Governor's Ordinance is approved, with amendment, by the Provincial Assembly to that extent it shall be deemed to have been repealed and in the result Article 250 of the Constitution would be attracted to the ensuing consequences even if no express provision had been made, fort saving pending proceedings. In this view, even if the Ordinance of the Governor was assumed to be in the nature of a temporary legislation the contention would be misconceived and the Full Bench judgment wholly distinguishable. The learned counsel for the applicants next relied on the following judgments: Mir Laik Ali v. Standard Vaucurn Oil Company (ESSO) and Abdul Razzaq P L D 1964 S C

220. Khushirain Atrnarain Jaisinghani and others v. Custodian o'/' Evacuee Property, West Pakistan, Karachi and others P L I) 1965 S C

453. The State v. Maulvi Muhammad Jamil and others P L D 1965 S C

681. Haji Adam Hossen and others v. The Federation of Pakistan P L D 1962 Kar.

21. The fads in the first mentioned case were that during `the pendency of a suit in the High Court the provisions of Order XXI. Yule 58, Civil Procedure Code were amended by Ordinance XLIV of 1962 and the Court was required to investigate the question of title to the attached property. Although the judgment of the Court was subject to appeal, it could not be challenged by a separate suit. The arguments in this case were concluded before the learned Single Judge on 30th January 1962, and the order pronounced on 2nd July 1962, when the amendment had already come in force. The learned Single Judge, however, took no notice of the amendment and decided the case in the light of the unamended provisions of Civil Procedure Code. By Act III of 1963 the amendment in question was repealed but a provision was made in the enactment that any order passed by any Court, when the amendment was in force, would not bar the filing of a suit for the determination of the question of title to the disputed property. In appeal before the Supreme Court of Pakistan it was noticed that while pronouncing his order the learned Single Judge in the High Court had failed to take notice of the amended provision of Order XXI, rule 58, Civil Procedure Code anti consequently the case was likely to be remanded to the High Court for reconsideration. However, their Lordships declined to adopt this course as the amendment in question had already been repealed and once again the enquiry was required to be made according to the original provisions of Order XXI, rule 58, Civil Procedure Code which, in fact, was what the learned Single Judge in the High Court had done, although inadvertently. The authority is clearly distinguishable.

5. The facts in the second case were that by Ordin ance LXIII of 1962, section 43(6) of the Pakistan Administration of Evacuee Property Act, 1957 was amended whereby the suo motu review powers of the Custodian of Evacuee Property were taken away although applications which were pending for that purpose, were saved. After the coming into force of the a amending Ordinance, the Custodian exercised suo motu, powers of review and his order was challenged before the Supreme Court of Pakistan. Their Lordships came to the conclusion that the order c of the Custodian was without jurisdiction as by the express language used in the amending Ordinance and Legislature had taken away his suo motu powers of review. Their Lordships further held that in view of the express language used in the amending Ordinance section 6 of the General Clauses Act could not be invoked in aid of saving the suo motu powers of the Custodian. This judgment is clearly of no avail as in the case before us section 32 has expressly saved all pending proceedings which were instituted under the Ordinance before it was withdrawn from the area of Nasirabad Sub‑Division. In the judgment reported in The State v. Maulvi Muhammad Jamil and others their Lordships restated the well‑known principle of interpretation of statutes that procedural laws are deemed to be retrospective unless such a construction is textually not permissible. According to their Lordships the same would be the case even in regard to pending cases unless such a construction impinged upon vested rights. It is not understood as to how this judgment is helpful to the applicants as according to section 32 of the Ordinance pending proceedings before any Magistrate, Court or authority in Nasirabad Sub‑Division have been expressly saved after its withdrawal from that area.

7. The last judgment in the series is Haji Adam Hossen and others v. The Federation of Pakistan. In this case the plaintiffs bad filed a suit in the High Court against the Federation of Pakistan for the recovery of certain amount which related to its revenue, When the suit was instituted the High Court had no jurisdiction to entertain it in view of the bar of jurisdiction contained in section 226 of the Government of India Act, 1935, although such a suit could have been properly filed in the District Court. However, when the suit came up for final hearing in the High Court the said section already stood repealed by virtue of the coming into force of the Constitution of 1956, and the question arose whether in the altered circumstances it could be decided by the High Court. His Lordship, who decided that case, had no hesitation to answer the question in affirmative on the ground that at no time was the jurisdiction of Civil Courts totally barred and further that the Government could not claim any vested rights of a substantive nature under the old procedure. The judgment is clearly distinguishable as unlike the present case in which pending proceedings have been expressly saved by section 32 of the Ordin ance no such provision was made in that case after section 226 of the Government of India Act was repealed. The learned counsel also relied upon few other judgments but they need not be considered as the principles laid therein were the same as enunciated in the aforesaid judgments.

8. As against this Mr. Khalid M. Ishaq, the learned counsel far respondent No. 1 in Criminal Transfer Application relied upon a Full Bench judgment of this Court reported in Mir Ahmad Nawaz Khan Bugti v. The Superintendent, District Jail, Layallpur and others (P L D 1964 Lah. 202) in support of the proposition that the Ordinance of the Governor, when approved by the Provincial Legislature with certain amendments, is deemed to have been repealed in so far as it was withdrawn from the area of Nasirabad Sub‑Division and consequently to the incidence of that repeal Article 250 of the Constitution would be attracted. In that case their Lordships were more or less seized of the same question as in the present proceedings and they answered it thus: "It is obvious that before an Ordinance can cease to have effect, it must previously have had effect, and all that is laid down by Article 29, taken as a whole, is that if it is not laid before the National Assembly any possibility of the continuance of its life is removed and it will be deemed to have been repealed on the expiration of the prescribed period. In my opinion, therefore, the Ordinance in dispute is subject to the usual incidents of repeal set out in Article 250 of the Constitution." The further contention raised in that ease was that upon the expiry of an Ordinance, all proceedings pending under it would automatically come to an end as if the Ordinance had never existed but the contention was repelled on the ground that instead of merely expiring, when by the command of the Constitution an Ordinance is declared to have been repealed the provisions of Article 220 would be attracted so as to save all pending pro ceedings in which rights of a substantive nature had already become vested. It will have been noted that although the discussion in that case related to the construction of Article 29 of the Constitution, which deals with the Ordinance making power of the President, yet the principles laid down by their Lordships would be fully applicable to the facts of this case which concerns the Ordinance making power of the Governor under Article 79 of the Constitu tion. In this view, when the Ordinance was approved by the Provincial Assembly, in the amended form, it shall be deemed t have been repealed in its erstwhile application to Nasirabad Sub Division, and consequently Article 250 of the Constitution would have automatically applied to the incidence of that repeal but for the fact that the Legislature, being cognisant of the existence of that article, nevertheless expressly saved all pending proceedings by section 32 of the Ordinance. I am, therefore, of the view that in the light of the said express intention of the Provincial Legislature section 32 of the Ordinance would apply to the facts of this case in preference to Article 250 of the Constitution which is designed to apply in all cases in which the repeal of a law is brought about by under or by virtue of the Constitution. This discussion is not merely academic as notwithstanding the fact that Article 2:0 of the Constitution is also designed to save pending proceedings after a law has been repealed by under or by virtue of the Constitution, yet the judicial construction placed upon this article would save only those pending proceedings in which rights of a substantive nature had become vested prior to the repeal of a law. Therefore, if the Provincial Legislature had not saved pending proceedings by virtue of section 32 of the Ordinance, a question could arise whether after its withdrawal from Nasirabad Sub‑Division the State could still insist prosecuting the applicants under its provisions on the ground that prior to its repeal it had acquired vested rights of a substantive nature. The fact that by section 32 of the Ordinance "continuance of any proceedings by or before any Magistrate, Court or other authority in respect of any offence taken cognizance of before the commencement of this Ordinance" his been expressly provided for it must be held that the prosecution of the applicants would have to continue under the Ordinance by virtue of the provisions of this section the language of which, unlike Article 250 of the Constitution, is wide enough not to admit any, limitations.

9. Mr. Khalid M. Ishaq, the learned counsel for the respondent next relied upon the following authorities: Muhammad Bachal v. Deputy Rehabilitation Commissioner, Hyderabad and others P L D 1962 Kar.

889. Ch. Sir Muhammad Zafrullah Khan and 7 others v. The Custodian of Evacuee Property, West Pakistan, Karachi and others P L D 1964 S C

865. Saeed Ahmad v. The State P L D 1964 S C

266. Mubarak Ali v. The State P L D 1965 Lah.

102. Habibullah Khan and others v. Pakistan and others P L D 1967 Kar.

300. Ghazi and others v. The State and others P L D 1962 Lah.

662. The principles of law laid down in these judgments are that in the absence of a contrary intention expressed in the statute itself all procedural laws are deemed to be retrospective unless they impinge upon vested rights of a substantive nature. The further principle laid down in these judgments is that when the repeal of a law is brought about by virtue of the Constitution then to the incidence of such repeal the provisions of Article 250 of the Constitution are attracted. These judgments do not require to be treated in any great detail as the correctness of the principles enunciated in them, and I say so with respect, cannot be questioned. Moreover upon the peculiar facts of the present case they do not appear to be wholly relevant as we are dealing with a situation in which after its repeal in its application to Nasirabad Sub‑Division all pending cases were expressly saved by section 32 of the Ordinance.

10. Adverting now to the facts of the two applications it may be mentioned that according to the First Information Report lodged against Talal Bughti and others he was charged for the commission of offences at a time when the Ordinance was in force in Nasirabad Sub‑Division, but in the case of Mst. Rani and her father Jamro the accusation was that they had committed the offences long before the Ordinance had been initially introduced in that area. It is true that according to the provisions of Quetta and Kalat Ordinance, which was then in force in the Sub-Division of Nasirabad, Mst. Rani and Jamro could be proceeded against under the provisions of that Ordinance but admittedly no action was taken against them until the said Ordinance was repealed by virtue of the Ordinance of the Governor. Further more the offence of adultery, of which Mst. Rani was accused, was allegedly committed at a time when Quetta and Kalat Ordinance was in force in the area of Nasirabad Sub‑Division, but under that law it was not an offence. In fact it was made an offence for the first time after the Ordinance was introduced in that area and consequently the question arises if she could be retrospectively punished for that offence in view of the prohibi tion contained in Fundamental Right No. 4 as guaranteed by the Constitution of 1962. If this question is answered in the negative the next question which would arise is whether any relief could be given to her in the present proceedings which are instituted under section 526, Criminal Procedure Code. In order to answer this question satisfactorily reference may be made to the various provisions of the Ordinance. According to section 3 "notwithstanding anything contained in any other law for the time being in force, no scheduled offence shall be tried except in the manner provided by this Ordinance". Sub section (2) of section 3 excludes the application of the Evidence Act and the Criminal Procedure Code in their application to any proceedings under the Ordinance, while according to section 4 exclusive jurisdiction is conferred on the Deputy Commissioner of the District to take cognizable of all scheduled offences. After he has taken the cognizance of a scheduled offence, the Deputy Commissioner is required to refer the question of the guilt or innocence of an accused to a tribunal constituted under section 6 of the Ordinance who alone is competent to consider that question. The tribunal after it has reached a decision is required to make a reference to the Deputy Commissioner under section 11 who might convict the accused and punish him under section 12 of the Ordinance provided the verdict of the tribunal is unanimous or is by a majority of not less than four‑fifth of its members. Then comes section 14 of the Ordinance according to which the offence of adultery on the part of married woman, with her consent, with any person other than her husband is for the first time made punishable, while according to section 23 an appeal is provided to the Commissioner of the Division against any decision or sentence passed by the Deputy Commissioner. Lastly comes section 29 according to which no proceedings under the Ordinance and no decision given, sentence passed or order made in any such proceedings, shall be called in question in any Court or before any authority as otherwise provided in the Ordinance.

11. In this view of the provisions of the Ordinance and particularly of the bar of jurisdiction of this Court contained in section 28 thereof no relief could be granted to Mst. Rani and her father in these proceedings which were instituted under section 526, Criminal Procedure Code. The same would be the case even if this Court was of the view that upon the complaint filed against them they could not be said to have committed the alleged offences or that in view of Fundamental Right No. 4, as guaranteed by the Constitution, Mst. Rani could not have been proceeded against for the offence of adultery which admittedly was not an offence at the time she is alleged to have committed it either under the provisions of Pakistan Penal Code or under the Quetta and Kalat Ordinance which was then in force in the area of Nasirabad. However, if so advised Mst. Rani and her father might challenge their prosecution by invoking the constitutional jurisdiction of this Court under Article 98 of the Constitution but that is a matter which they must decide for themselves.

12. In the case of Talal Bughti, however, he is alleged to have committed the offence at a time when the Ordinance was in force in the area of Nasirabad Sub‑Division. It is also an admitted position that the Deputy Commissioner, Jacobabad had taken the cognisance of these offences under section 4 of the Ordinance and consequently the applicant could not be granted bail by this Court as by virtue of section 16 of the Ordinance jurisdiction in that regard is exclusively conferred upon the Deputy Commissioner. The upshot of the whole discussion is that these two applica tions which were filed under sections 498 and 526, Criminal Procedure Code are wholly incompetent in view of the provisions of section s, subsection (2) of the Ordinance which has expressly excluded the application of the Code in relation to any proceedings which were instituted under it in the area of Nasirabad Sub‑1 Division. Furthermore, under section 28, the jurisdiction of this Court is expressly barred in relation to all proceedings instituted under it while section 32 of the Ordinance has expressly saved the continuance of such proceedings of which cognizance had been taken prior to its repeal from the area of Nasirabad and which are pending before any Magistrate, Court or other authority. This being the clear policy of law no relief could be granted to these applicants notwithstanding the fact that their trial under the provisions of the Ordinance may otherwise appear to be harsh and unjust. In view of these conclusions there is no force in these applications and the same are hereby dismissed. A. E./S. A. H. Application dismissed.