P (PLP)

"All orders made, proceedings taken, sentences passed and acts done in the district of Mianwali by the Provincial Government, or by any authority subordinate, to the Provincial Government, or by any person, which were made, taken, passed or done or which purported to be made, taken, passed or done in exercise of the powers derived or believed to be derived from the provisions of the Frontier Crimes Regulation 1901, either by virtue of Punjab Government Notifications Nos. 1156, dated 15th November 1887 and 1672‑J‑44, 31395, dated 18th April 1944 or otherwise, or in execution of or in compliance with any orders made or sentences passed by the Provincial Government or by any authority: subordinate to the Provincial Government in the exercise or purported exer cise of powers as aforesaid are hereby confirmed and shall be deemed ‑to be and always to have been validly made, taken, passed or done and for the purposes of the said Regulation and of any other law for the time being in force, all, such orders, proceedings, sentences and acts shall be as good and valid as if the said Regulation was applicable to the said district of Mianwali and the said notification had issued under the provisions of section 1 thereof". Before the Ordinance was replaced by the Act, its validity was again, questioned, but this time' without success, for on the a Division Bench held in Ahmad Khan I. R. 1948 Lah. 120) that the Ordinance was within the powers of the Governor, that it could operate re trospectively and that since a validating Act was by its very nature intended to validate past transactions, the sentences to which the Ordinance referred had become valid. Dr. Qutab‑ud‑Din argued that we were not bound by this decision but that even if it were upheld, there had happened in the meanwhile something which had conferred upon his clients a vested right. He was referring to the orders of this Court by which his clients had been released before the enactments aforesaid came into operation and as by those orders his clients had been released on the ground that the Frontier Crimes Regulation did not apply to Mianwali district and their release was on bail because the Crown contemplated their trial tinder the ordinary law, they had by those orders acquired a right of trial by the ordinary law. Dr. Qutb-ud‑Din did not deny that the Legislature or the Governor acting on behalf of the Legislature had power to pass an Act which could hit even what he styled as vested rights, for most of the decisions, English and Indian. upon which he relied impliedly conceded that power, but lie contended that section 2 of the Act if interpreted strictly, as it ought to be, did not apply to persons who had been released on bail by this Court in order that they should be tried under the ordinary law. The first case on which he relied was Day v. Kelland ( (1900) 2 Chancery Revision 745). In that case a mortgagee, who happened to be a solicitor, took action for the forcelosure of the mortgage and in April 1893, an order was made direct ing an account of what was due to the plaintiff for principal, interest and taxed costs of the action. In February, 1898, or further consideration of the matter, an order was made referring it to the taxing master to tax the plaintiff's costs of the action. In the meantime, in 1895, an Act called " The Mortgagees Legal Costs Act " had been passed, providing in section 3 that if a solicitor should be the mortgagee, lie shall be entitled to his professional charges and remuneration in addition to ordinary costs. By subsection (2), these provisions made applicable to mortgages made and business transacted and acts done either before or after the commencement of this Act". The solicitor‑mortgagee thereupon claimed before the taxing master that he was entitled to his professional costs also. It was held that the rights of the parties had been determined by the order of April 1893 and that the plaintiff could not have the benefit of the change in the law which was made by the Act of 1895, for to allow that would be to alter rights which were ascertained before the passing of the Act. In John Lemm v. Thomas Alexander Mitchell (1912 A. C. 400) the facts were as follows. The case was from the Colony of Hong‑Kong where the introduction of the English Divorce Act, 1857 by Ordinance 5 of 18.18 had abolished the common law action for " criminal conversation". On the repeal of Ordinance; No. ‑5 of 1858 by Ordinance No. 5 of 1860 the action for criminal conversation was revived but by the retroactive effect of certain subsequent enactments, more particularly Ordinance No. 3 of 1895, the right to bring such action in the Colony was again abolished. Ordinance No. 3 of 1895 was in its turn repealed by Ordinance No. 8 of 1897. In 1906, Thomas Alexander Mitchell who was a master mariner living with his wife at Hong‑Kong, obtained at Edinburgh a disso lution of his marriage with his wife on the ground of miscon duct with John Lemm, who also resided in the same place. In 1907, Mitchell commenced an action for criminal conver sation in the High Court of Hong‑Kong against John Lemm to recover damages for the misconduct aforesaid. The High Court held that the effect of the various Ordinances was to abolish the right to bring that action in the Colony and con sequently dismissed it with costs. The state of the law having come to the notice of the Government, a new Ordinance, No 20 of 1908, was passed. It was entitled " An Ordinance to amend the interpretation Ordinance, 1897 (Ordinance No. 8 of 1897), and to remove an ambiguity in the construction of the same. Section 2 was as follows :‑ " Notwithstanding the repeal of Ordinance No. 3 of 1895 by Ordinance No. 8 of 1897, section 4 of Ordinance No 3 of 1895 is hereby further repealed, and its effect on existing legislation is hereby declared to have been and to be inoper ative and of non‑effect, and the Ordinances' thereby affected are hereby declared not to have been affected, but to have remained and to remain of the same force and effect as if the said section 4 of the last‑named Ordinance had not been enacted". Mitchell thereupon brought a fresh action for criminal conversation and although it was contended on behalf of John Lemm that the previous judgment operated as res judicata, the High Court decreed the claim. On an appeal having been taken to the Privy Council, the plea of res judicata was up held, their Lordships making the following observations :‑ " The effect of this Ordinance (No. 20 of 1908) was un doubtedly to revive the right of action for criminal conver sation in Hong‑Kong, if it had ever been in fact suspended. It is also clear that the Ordinance had a retroactive effect to the extent of enabling actions to be brought in respect of criminal conversation during the period when the right of action bad ceased to exist in the Colony, but the question now to be determined is whether it went further, and operated to annul a valid and subsisting judgment as between parties whose rights had been duly determined under and according to the law which existed before the new Ordinance was passed". It was further observed :‑ " The contention that the judgment of May 5, 1908 only decided a preliminary point as to the jurisdiction of the Court is far from being an exact account of the proceedings. The substance of the question then tried was whether or not the law of the Colony gave the plaintiff a remedy of the facts alleged. It was decided that I did not, and the defendant thereupon became entitled, on those allegations, to a judgment dismissing the whole claim. This result was not due to any defect in the jurisdiction of the Supreme Court, which was ample, but to a shortcoming in the general law. In the absence of appeal the judgment was a final determination of the parties, and "the ordinary principle that a man is not to be vexed twice for the same alleged cause of action applies, unless it be excluded by the Legislature in explicit and un mistakable term. That is not the case here". Finally their Lordships said " It would require language much more explicit than that which is to be found in the Ordinance of 1908 to justify a Court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting ". Gloucester Union v. Wollwich Union (1917) 2 King's Bench Division, 374, is not a very relevant case except for genera observations. The question here was whether a certain pauper lunatic belonged to the parish of Gloucester or of Upton. He was born in 1880 in the parish ' of Sheepscombe and resided there with his parents until 1893 and thereafter he resided in the parish of Gloucester for a period of less than three years and then in the parish of Upton, again for a period of less than three years. At the end of 1897 he enlisted in the Army and was not resident in either of these two parishes. In 1900 a law was passed trans ferring that part of the parish of Upton in which the pauper had resided until 1897 for less than 3 years to the parish of Gloucester. This law also provided that " for all purposes of settlement and removal residence prior to the commencement of this Order in any area added by this Order to the parish of Gloucester shall be deemed to have been residence in the, parish of Gloucester ". It has argued for the pauper that since between 1893 and '897 he had resided partly in one, parish and partly in the other, in each case for a period of, less than three years, the effect of the new law was that residence in Upton would be deemed to be residence in Gloucester and that consequently the total' period of residence it Gloucester would exceed a period of three years. This contention, however, was not accepted anal it was held that the provision applied only to those persons who at the commencement of the Order were in the course of acquiring a settlement so as to preserve their inchoate rights, and that it did not have the retrospective effect of creating or conferring a settlement where none existed at the commencement of the Order. It was observed that a statute is prima facie prospective and does not interfere with existing rights unless, it contains clear words to that effect or unless, having regard to its object it necessarily does so, and that a statute is not to be construed to have a greater retrospective operation than its language renders necessary. In Delhi Cloth and General Mills Company Limited v. Income‑Tax Commissioner, Delhi (A. I. R. 1927 P. C. 242) the question was whether an appeal lay to the Privy Council from an order made by the High Court in some Income‑Tax references. Prior to the 1st April 1926 there was no statutory right but on that date the Indian Income‑Tax (Amendment) act. 1926, came into force and provided appeal in certain cases. The orders before the Privy Council, however, had been passed a few months before this Act came into operation. Their Lordship, holding that no appeal lay made the following observations :‑ " The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in The Colonial Sugar Refining Co. v. Irving (1905 A. C. 369) where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly unless that construction be textually inadmissible, have retros pective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment of necessary intendment. Their Lordships can have no doubt that provision which, if applied retrospectively, would deprive of their existing finality orders, which when the statute came into force were final, axe provisions which touch existing right. Accordingly; if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect ". It is unnecessary to reproduce any more decisions which were cited at the Bar and which related to this Court because the same principles are reiterated in all of them. In the Income‑Tax case, it will have been noticed, stress was laid on the fact that the orders of the High Court had become final before the amending Act became operative and it was pointed out that if the intention of the amending Act was to apply it even to such orders, that intention must be clearly expressed. In the Gloucester case it was observed that a new law is not retrospective and does not interfere with existing rights unless it contains clear word to that effect, "or unless, having regard to its object, it necessarily does so". In the Hong‑Kong case it was observed that the rights of the parties had been determined under a valid lave and that consequently the new Ordinance which merely repealed those law's but said nothing as to the decisions made under .those laws, could not affect those decisions. In Day v. Kelland the costs to which the solicitor mortgagee was entitled, had been ascertained by an order made before the new Act came into force, which was consequently' held not to be applicable. But is there any right in the present case which has been ascertained or any order or judgment which' has become final? Dr. Qutb‑ud‑Din argued that the right that hail been ascertained was the right to be tried under the ordinary law. That; however, was an order made under the law as it then existed and it could not take into consideration any validating Act that would necessarily have the effect of rendering legal the previous convic tions of the petitioners, so that it should become unnecessary to hold any trial under the ordinary law. It was expressly pointed out in the Gloucester case that if the intention is to make a law retrospective, there should either be clear words to that effect or the object of the enactment,, should necessarily be to apply it to past transactions. That is the clear object of the validating Act; and if it cannot apply, to the case of the present petitioners, it cannot apply to any case. Dr. Qutab‑ud‑Din tries to distinguish the case of the present petitioners from those cases in which the convicts have not obtained an order of release from this Court. This distinction is not real, for the order of release by this Court was merely a consequential order based on the authority of the Full Bench case which made all the sentences under the Frontier Crimes Regulation illegal. It would have been unnecessary for the High Court, when releasing these petitioners, to release them on furnishing bail bonds if it had not been represented on behalf of the Crown that their release should not be unconditional because it was intended to prosecute them under the ordinary law. In the absence of such a representation the petitioners would have been released without executing bail bonds for appearance when re quired to do so, in which case it could not have been contended that they had acquired a right to be tried by the ordinary law. It would thus be preposterous to argue that persons who had been released unconditionally were in a worse position than those like the present petitioners who were released conditionally. But even if any right to be tried under the ordinary law was acquired by the petitioners, this right was by necessary implication taken away by section 2 of the Act which has confirmed " all orders made, proceedings taken, sentences passed and acts done in the district of Mianwali " in exercise or purported exercise of the powers derived from the Frontier Crimes Regulation. The petitions are, therefore, dismissed. K.M.A. Appeal dismissed.