P L D 2003 Karachi 71 (PLP)

We have gone through the judgment relied upon by the Advocate for the appellants and find that the relevant provisions of Anti‑Terrorism Act, as amended, were considered and then it was observed that after the amendment, the Anti‑Terrorism Courts had no jurisdiction to try the cases of vehicle‑snatching. In the said judgment section 6‑A of General Clauses Act and Article 264 of the Constitution, 1973 have not been considered which the learned A.A.‑G. wants that the impact of the said provisions of law may be considered in this judgment. Section 6‑A of General Clauses Act, reads as under:‑‑ "6‑A. Reveal of Act making textual amendment in Act or Regulation.‑‑Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the expression omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such, amendment made by the enactment so, repealed and in operation at the time of such repeal. " A plain reading of the section 6‑A shows that when an amending Act, whereby the text of a Central Act or Regulation was amended is repealed, then, unless a different intention appears, the repeal is not to affect the continuance of any such amendment made by the amending enactment so repealed. In the present case, in the repealing enactment viz. Ordinance XXXIX of 2001, a different intention clearly, appears under section 39‑B(e) by which all pending cases stand transferred to the competent Courts of District. As such as per above provision of law, from 14‑8‑2001 the cases of vehicle‑snatching stand transferred to the competent Courts of the District. As regards Article 264 of the Constitution, 1973 is concerned, the said Article reads as under:‑‑

264. Effect of real of laws.‑‑Where a law is repealed, or is deemed to have been repealed, by, under or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution‑‑‑ (a) review anything not ' in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the law or anything duly done or suffered under the law: (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; (f) and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. A perusal of this Article clearly shows that where a law is repealed or is deemed to have been repealed, by, under (c) by virtue of Constitution itself then only this Article will be attracted otherwise not. But where a law is repealed by sub‑Constitutional law then this Article will not be applicable. This view is supported by the below mentioned case‑law. Similar provision as that of Article 264 of the constitution, 1973 was available in Article 250 of the Constitution of the Republic of Pakistan, 1962 (hereinafter called as the Constitution, 1962). A perusal of Articles 250 and 264 of Constitutions of 1962 and 1973 reveal that they are same. It appears that Article 250 of the Constitution, 1962, has been borrowed from it and inserted in the Constitution of 1973 in the shape of Article

264. The Article 250 of the Constitution, 1962, was interpreted by the Full Bench of Lahore High Court in a matter of Syed Akhlaque Hussain, Advocate reported in PLD 1965 (W.P.) Lah.

147. In that case Retired Judges (Legal Practitioners Order, 1962 was repealed by Legal Practitioner (Disqualification) Ordinance, 1964). In the proceedings a question arose as to whether Article 250 of the Constitution, 1962, would be applicable or not. After examining the provision of law it was held that the Article 250 would not be applicable in a case of repeal of law by a subordinate legislation as the said Article is applicable in a case where a law is repealed, by, under or by virtue of Constitution itself. At page 171 it has been observed as under:‑‑ "The importance of the question whether Article 250 of the Constitution or section 6 of the General Clauses Act, 1897, is applicable lies in the fact that under the latter enactment rights acquired are only protected if no intention to the contrary appears in the repealing law. I have already briefly stated that in my opinion Article 250 of the Constitution is not applicable. My reason for so holding is that the said Article only comes into operation where a law is repealed by, under or by virtue of the Constitution itself, and in the present case the Ordinance comes within the category of subordinate legislation." The above decision was also relied upon by another Full Bench of the Lahore High Court in a case of Mian Arif Iftikhar v. Lahore Improvement Trust (PLD 1969 Lahore 1087). In that case the words by, under and by virtue of the Constitution appearing in Article 250 of the Constitution, 1962, were interpreted. The said words are also appearing it Article 264 of the Constitution, 1973. After considering the various Article of Constitution, 1962 where these words were appearing and other repealing Articles, appearing in the various Articles of Constitution, 1962, classified and categories the said repealing Articles falling either under the words by under or by virtue of Constitution and observed that under such and such repealing Articles a repeal would be either by, under or by virtue of this Constitution. A detailed discussion has been undertaken on the above subject by the Full Bench. The contention or the learned counsel for the appellant in the above case that whenever sub‑Constitutional law made by virtue of the power given by the Constitution repeals another law, the repeal was under/by virtue of the Constitution and therefore, Article 250 of the Constitution would apply to that repeal. But the argument was repealed by the Full Bench and finally it was observed at page 1115 as under:‑‑ "Therefore, we are of the view that Article 250 of the Constitution deals with the repeal provided in the Constitution and not to the repeal by sub‑Constitutional enactments passed in pursuance of the powers of legislation granted by the Constitution. To this type of repeal, the provisions contained in the General Clauses Act will apply. This view is also supported by the observations in the case of Syed Akhlaque Hussain. Though that case came under appeal in the Supreme Court, but the observations at page 171 of the report have not been disapproved." From the above position it is clear that Article 264 of the Constitution, 1973, would be applicable when the repeal is by, under or virtue of the Constitution itself and it is not applicable when the repeal is by a sub‑Constitutional legislation. In the present case the repeal was under sub -Constitutional legislation, therefore, Article 264 of the Constitution, 1973 is not applicable but section 6‑A of General Clauses Act will be applicable. In the light of what has been stated above, after 14‑8‑2001 Anti- Terrorism Court had no jurisdiction to try the cases under vehicle‑snatching. As regards the offence of section 13‑D of the Pakistan Arms Act, 1965, is concerned, this offence was triable alongwith the offence of vehicle snatching as provided under S.No.5 of the Schedule appended to the A.T.A. But the said Schedule has also been amended by the Ordinance XXXIX of 2001 as such the said offence is also not triable by the A.T. Court. In view of the above position the impugned judgments in both these appeals are set aside being without jurisdiction. The cases are remanded to the trial Courts for compliance of section 39‑B(e) of A.T.A., 1997, with a direction that the cases be sent to the Courts having jurisdiction and the said Courts should start the proceedings from the stage where the cases were on 14‑8‑2001. The appeals are allowed and disposed of on the above terms. N. H. Q./G‑121/K Cases remanded.