P L D 1989 Azad J & K 37 (PLP)

S.Z. CHOUDRI, J.‑‑Accused‑respondent Karam Hussain is an under‑trial prisoner, accused in a murder case pending before the District Criminal Court Mirpur. In view of subsection (2) of Section 24 of the Islamic Penal Laws (Enforcement) Act he was forwarded on 8‑10‑1983 to stand his trial in the Court of Sessions Judge Mirpur. On 20‑4‑1987, when the statements of most of prosecution's witnesses had already been recorded, objection to the continuance of the trial was taken on behalf of the defence on the ground that in view of the amendment in Section 24 of the Act, brought about on 8‑4‑1987, the case was triable by the District Criminal Court Mirpur. After hearing the parties the learned Sessions Judge transferred the case for trial and disposal to the District Court of criminal jurisdiction vide the impugned order. 2. It is this order of transfer passed on 16‑6‑1987 by the learned Sessions Judge Mirpur validity of which has now been challenged by way of revision petition by the complainant. Arguing on behalf of the complainant Mr. B.A. Sheikh, learned Counsel submitted that since required number of witnesses were lacking in the case, the challan as provided under subsection (2) of section 24 of the Act, was presented in the Court of Sessions Judge. Now when the evidence of most of the prosecution's witnesses have been recorded, subsection (2) of section 24 has been deleted by the amending Ordinance published on 8‑4‑1987. Since the amendment or repeal is not only procedural in nature but also affects substantive provisions of law, it has no operational effect on the proceedings already concluded or initiated prior to and which were pending at the time of repeal or amendment. The impugned order having been passed contrary to law was not therefore maintainable. It was further contended that repeal of subsection (2) or the amendment in section 24 of the Islamic Penal Laws (Enforcement) Act could not be interpreted to mean that the Court hearing the case was no longer competent to continue the proceedings or that the case was now to be judged under the penal provisions contained in Islamic Penal Laws (Enforcement) Act because such an interpretation would not only be violative to the rules of interpretation but would also offend against the fundamental right No.4(b) of section 4(4) of the Interim Constitution Act. The learned Sessions Judge by his failure to appreciate the correct import and significance of the amendment brought about in section 24 of the Islamic Pearl Laws (Enforcement) Act, has committed a grave legal error, the impugned order could not therefore be maintained, argued the learned Counsel. To substantiate his arguments, the learned Counsel placed reliance on PLD 1981 AJ&K 88, PLD 1969 SC 599 and PLD 1964 SC 266. 3. Controverting the arguments, Mr. A. K. Ansari, learned Counsel for the accused‑respondent argued that since subsection (2) of Section 24 of the Islamic Penal Laws (Enforcement) Act stands deleted through an amending Ordinance of 1987 published on 8‑4‑1987, the Sessions Court was no more a forum for the trial of this case. After the deletion, the only Court which has the jurisdictional competence to hear and decide the case was the District Court of criminal jurisdiction set up under the Islamic Penal Laws (Enforcement) Act. The amendment, according to the learned Counsel, was merely procedural in nature and it had therefore retrospective operational effect. The impugned order having been passed perfectly in accordance with law was therefore open to no exception and the revision petition having no substance did not merit consideration, submitted the learned Counsel. In support of his arguments, the learned Counsel referred to 1983 PCr.LJ 276 and PLD 1981 AJ&K 123. 4. We have heard the learned Counsel for the parties and have examined the record made available with utmost care. In order to have a correct perception of the point involved and for its proper determination, a reference to subsection (2) of section 24 of the Act which through an amending Ordinance of 1987 stands deleted is necessary. The provision reads:‑ Due to non‑availability of the witnesses as required under section 26(1) of the Act, accused in view of subsection (2) of Section 24 of the Act was forwarded to stand his trial for the offence under section 302, P.C. before the Court set up under the Code of Criminal Procedure. Most of the prosecution's evidence had already been recorded before the new amendment. Comparative study of the provisions contained in the Islamic Penal Laws (Enforcement) Act would reveal that the Act not only provides a forum and procedure but also contains substantive provisions of Penal Laws. It is thus clear that the amendment in the Act is not only procedural but also affects substantive provisions of law. By transferring this case from the Court of Sessions Judge to the District Criminal Court it would not only be a change of forum and procedure but would surely be a change in substantive provisions of law regulating the procedure of new forum as regards the guilt and punishment. In this view of the matter, the amendment could not reasonably be taken to mean as having retrospective operational effect. 5. On the other hand, we have no doubt in our mind that it is only perspective in nature and would not affect any pending proceedings initiated prior to and pending at the time when the amendment was brought about. Besides, by holding that the amendment has retrospective effect would not only be violative to the rules of interpretation but would offend against the fundamental rights guaranteed by the provisions contained in the Interim Constitution Act. Every citizen has a Constitutional protection that he shall not be subjected to any punishment 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. The case, in this view of the matter, in our view could not legally be transferred by the learned Sessions Judge to the District Criminal Court. The trial initiated in this case in the Court of Sessions Judge shall continue. 6. In State v. Sahib Dad' P L D 1981 AJ&K 88, the proposition came to be considered in the following circumstances. The accused in that case was facing trial in a murder case under the provisions contained in the Islamic Penal Laws (Enforcement) Act. During the trial through an amendment a new subsection (2) of section 24 of the Act was substituted which reads:‑ The controversy arose as to whether the case that was pending before the District Criminal Court was to be transferred to the Court of Sessions Judge or the District Criminal Court was to continue with the trial. While considering the proposition, it was observed that amendment was not only procedural but it also affected substantive provisions of law and as such could not be held as having retrospective operational effect. The District Criminal Court was therefore directed to continue with the trial despite the amendment in section 24(2) of the Act which required that if number of witnesses visualised under section 26(1) of the Act were found to be not available during the investigation then the challan was to be submitted before the Court set up under the Code of Criminal Procedure and the offence as listed in the Penal Code. 7. In Nabi Ahmad v. Home Secretary, Government of West Pakistan', P L D 1969 SC 599, the principle enunciated was that according to the rules of interpretation relating to statute, these are presumed to be prospective in effect and applicable to cases and the facts coming into existence after the enactment unless, of course, it has expressly been provided that it shall have retrospective effect. Same principle was followed in P L D 1964 SC 266. 8. We have also gone through the reports of the cases referred to by the learned Counsel for the accused‑respondent. In 'Muhammad Sadiq v. State 1983 P Cr. L J 276, the accused‑appellant in that case was forwarded to stand his trial for the offences under sections 302 and 376, A.P.C. in the Court of Sessions Judge Poonch as the number of witnesses as required under section 26(1) of the Act were found not available during the investigation. After the evidence of most of the prosecution's witnesses had already been recorded by the Sessions Judge, the case on direction of the High Court made in June, 1977 was tried afresh and disposed by the District Court of Criminal Jurisdiction Poonch. The accused was found guilty for the offences charged with. To challenge his conviction, the appellant went in appeal before the High Court while the State went in revision for enhancement of the sentence. The High Court dismissed the appeal of the accused‑appellant and accepting the revision petition, enhanced the sentence to life imprisonment On appeal before the Supreme Court, the proposition that came to be considered was whether the order of transfer passed by the High Court and the trial conducted by the District Criminal Court was in accordance with law. To determine the legality of the transfer order, it will be convenient to refer to subsection (2) of section 24 of the Islamic Penal Laws (Enforcement) Act in its original form. Before the new amendment brought about in 1981 which provided that if during the investigation, required number of witnesses were not available the accused were to be challaned for an offence under the Penal Code and to be tried in the Court of Sessions Judge, the original subsection read as:‑ This subsection, in the view of the High Court, did not prescribe a forum for trial different from the District Criminal Court but only that the Criminal Court shall award the punishment as prescribed under the aforesaid sections applicable in the case (Penal Code). So, it transferred the case for trial to the District Criminal Court. While considering the proposition, the Supreme Court held that the transfer had been made contrary to law and all the proceedings taken thereafter in the case before the District Criminal Court stood vitiated. The case was, therefore, remanded back to the Sessions Judge to be tried afresh. Neither the facts nor the proposition enunciated in that case are found supportive to the respondent in the present case. 9. In "State. v. Gul Bahar", P L D 1981 AJ&K 123, the proposition came to be considered in the following circumstnaces7 In that case, appeals were being heard by a Division Bench but during the pendency of these appeals, a change was brought about through an amending Ordinance in sections 23, 25 and 31 of the Islamic Penal Laws (enforcement) Act, by virtue of which forum of appeal and revision was changed. Under the amendment, right of appeal and revision against the judgment and order of the District Criminal Court was provided to an aggrieved person to the Court of the Azad Jammu and Kashmir Shariat Court whereas before this amendment appeals and revisions against the judgment and orders of the District Criminal Court lay to the High Court. While considering the proposition, it was held that a change of forum of appeal, besides being procedural, was capable of giving relief to the aggrieved parties in the same degree and with more or equal convenience as available before the first forum. On careful consideration, the principle evolved in that case has no application in the case now under consideration for the reasons: (a) Appeals in that case, in view of the amendment were to be heard and decided instead of High Court, by the Shariat Court; On careful consideration, it would become clear that in that case there was only a change of forum. The trial in the cases had been conducted and the cases decided in the light of the offences and by a forum provided under the Islamic Penal Laws (Enforcement) Act. In the case now under consideration, the position, however, is totally different. Accused in the present case has been charged with an offence as contained in the Penal Code and tried by a Court established under the Code of Criminal Procedure. In case of transfer of this case from the Court of Sessions Judge to the District Court of Criminal Jurisdiction, not only the forum for trial and nature and for of punishment for the offence the accused was charged with would be different but the powers available to the Court to award the sentence for the offence and the rules relating, for evidence etc. would also be different. It is, therefore, evident that the authority relied upon by the learned Counsel has no application to the case now under consideration; and (b) The proposition whether the amendment where under not only the forum has been changed but the kind of offences and the punishments and penalties prescribed are also different, could be regarded as an amendment merely procedural in nature having retrospective effect, was .not considered in proper perspective in the light of protection provided in the Interim Constitution and also keeping in view the requirements contained in Section 6 of the General Clauses Act. The cases referred to and relied upon by the learned Counsel for the respondent are, therefore, held to be of no assistance to the respondent in the present case. 10. For the afore-stated reasons, we are of the view that the amendment in question will have no effect as regards the forum of trial in the present‑ case. The learned Sessions Judge shall continue with the trial of the case. The order of transfer thus passed by him on 16‑6‑1987 is, therefore, set aside. The cash stands transferred from the file of the District Criminal Court to the Court of Sessions Judge, Mirpur, with the direction that the learned Sessions Judge shall again resume the trial in4 the case from the stage the illegality has been committed. The revision petition stands accepted. N.H.Q./364/H.C.A. Petition allowed.