1992 PLP 155 (MLD)

"Provided further that the Court shall 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 shall be released on bail-- (a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or (b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded:" The question for consideration, therefore, is whether the offence with which the applicant is charged is punishable with death or not. This question is again not free from difficulty. Section 365-A, P.P.C. was added by the Criminal Law (Amendment) Ordinance, 1988 (XVIII of 1988), providing death penalty for this offence. This Ordinance came into force on 13th October, 1988. This section was re-enacted by the Criminal Law (Amendment) Ordinance, 1989 (IX of 1989), promulgated on 3-9-1989, in the following words: -- "365-A. Kidnapping or abducting for extorting property, valuable security, etc. Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, otherwise, be punished with imprisonment for life and shall also be liable to forfeiture of property." 4.The Criminal Law (Amendment) Act, 1989 (III of 1990), which was published in Gazette of Pakistan Extraordinary, Part I, on 8-1-1990, replaced the above Ordinance, which maintained the same punishment, viz., imprisonment for life for the offence under section 365-A, P.P.C. By the Criminal Law (Fourth Amendment) Ordinance, 1990 (XIV of 1990), which came into force on 10-12-1990, the following amendment was made in section 365-A, P.P.C.:-- "In the Pakistan Penal Code (Act XLV of 1860), in section 365-A after the words punished with' the words `death or' shall be inserted."

5. The above Ordinance which prescribed death penalty for an offence under section 365-A, P.P.C. was converted into an Act by Criminal Law (Amendment) Act, 1991 (II of 1991), which was enforced on 28-3-1991. It will, therefore, be seen that the punishment provided for an offence under section 365-A, P.P.C. is now death or imprisonment for life. The offence under section 365-A, P.P.C. was, however, committed on 23-6-1990 when the Criminal Law (Amendment) Act, 1989 (III of 1990) occupied the field which provided punishment of imprisonment for life for this offence. Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, provides protection against retrospective punishment in the following words:-- (1) No law shall authorize the punishment of a person-- (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

6. I am indebted to Mr. Shoukat H. Zubedi, learned AA.-G. for placing before me three cases from which some guidance, I think, may be obtained. The first case is the one reported as Ghazi and others v. The State and another P L D 1962 Lah. 662, wherein it was held that a vested right on the date of commencement of its or proceeding is governed by law prevailing on such date and not by law prevailing on the date of decision of such lis or proceeding. In the second case of Adrian Afzal v. Capt. Sher Afzal reported in P L D 1969 SC 187, it was observed that the matter is retrospective if it is merely procedural but such matter could not operate retrospectively if it touches a right in existence at the time of passing of legislation. In the third case of State Bank of Paki,,tan through the Banking Officer v. Messrs Raza Enterprises (Regd.) and 2 others reported in 1990 PCr. LJ 317, which is .m y own judgment following observations were made:-- "Every legislature has the power of enacting laws both prospective as well as retrospective, but whenever a retrospective law is enacted, the law states so. But where its powers are subject to constitutional restrictions, it must act within those restrictions. Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, contains. such restriction, viz., the legislator cannot punish an act that was not an offence when it was committed. Therefore, the `explanation' added by the Banking Companies (Amendment) Ordinance, 1988, which made the act of accused punishable, which was not punishable `when committed, being in violation of constitutional provisions referred to above, cannot be given retrospective effect."

7. Thus; from whatever point of view the matter may be looked at, it is clear that the applicant or any other accused with him cannot be awarded death penalty, even if they are found guilty for the offence under section 365-A, P.P.C. There is, however, a distinction between `prescription of punishment' and `infliction of punishment' and my own order in the case of State Bank of Pakistan v. Muhammad Farooq and 3 others reported in 1990 M L D 293, is clear on this subject. At page 300 it was observed: -- The provisions regarding bail are essentially part of procedure and as such it must be regulated by the law under which a particular trial is held. The offence under section 27-A, read with section 83(1-D) of the Banking Companies Ordinance, 1962, which was initially punishable with six months' imprisonment, has been made punishable with imprisonment upto ten years by the Banking Companies (Amendment) Ordinance, 1988. In view of the embargo contained in Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, -the enhanced punishment cannot be awarded in respect of offence committed before the amendment, but there is certainly a distinction between `prescription of punishment' and `infliction of punishment'. Thus, for the purposes of bail the offence under section 83(1-D) of the Banking Companies Ordinance, 1962, shall be deemed to be non -bailable from the very beginning." Having regard to the above legal position, I am satisfied that the case applicant falls under clause (b) of third proviso to subsection (1) of 497, Cr.P.C. and since he has not completed a period of two years in continuous detention, the application for bail made by him on the ground of statutory delay is premature and the same is accordingly dismissed. N.H.O./A-1126/K Bail refused. '