PLD 1949 Lahore 550 (PLP)

Cornelius, J.

‑This reference to a Full Bench arises out of a case referred to the High Court by the Sessions Judge of Sialkot. The facts of that case were as follows. Five persons were tried before Mr. Ahmad Shafi, section 30 Magistrate, Sialkot, on a charge under sections 395/ 109, Indian Penal Code, in respect of an offence alleged to have been committed on the 4th February 1948. The case was instituted in Mr. Ahmad Shafi's Court on the 12th March 1948, and ended in convic tion of one of the accused persons named Haveli, who was awarded two years' rigorous imprisonment on the 19th April 1948. Haveli preferred an appeal to the Sessions Judge, and in the Sessions Court the Public Prosecutor as well as the counsel for the appellant agreed that Mr. Ahmad Shafi had no jurisdiction to try the case. Under the ordinary law, the jurisdiction of Mr. Ahmad Shafi as a section 30 Magistrate to try an offence under section 395, Indian Penal Code, which is punishable with transportation for life or rigorous imprisonment for ten years and fine could not be doubted, but the learned counsel who advanced this opinion relied upon certain statutes passed in the year 1947 by the Governor of the Punjab, acting under section 93, Govern ment of India Act, 1935. These Acts are the Punjab Disturbed Areas Act I of 1947, and the Punjab Public Safety Act II of 1947. The former Act purports by its preamble "to make better provision for the suppression of disorder and for the restoration and maintenance of public order in the disturbed areas of the Punjab." The operative clauses give power in section 3 to the Provincial Government by notifica tion in the Official Gazette to "declare that the whole or any such part of the Province as may be specified in the notification is a disturbed area" and provide in section 4 in relation to certain offences specified in a number of sections of the Indian Penal Code, enumerated in a schedule annexed to the Act, that a person who "commits in a disturbed area" an offence punishable under any of these sections, "may in lieu of any punishment to which he is liable under the (Indian Penal) Code be punished with death." It is clear that the Sialkot District was not declared a disturbed area under this Act until 31st May, 1947, and that this notification was rescinded by the Provincial Government by a further notification, dated the 12th February 1948, with effect from the latter date. The Public Safety Act made certain changes also in relation to the procedure. Since neither the Disturbed Areas Act nor the Public Safety Act purported to confer jurisdiction for the trial of offences punishable with death upon any Court other than the Sessions Court, there can be no question that the proper Court to try the offence with which Haveli was charged, at the time when it was committed, was a Court of Session. Also, at that time, owing to the existence of section 37 of the Public Safety Act the duty of any Magistrate taking cognizance of a case such as that against Haveli, would have been, without conducting any enquiry or making any former commitment, to "make over the case to the Sessions Court having jurisdiction." The effect of section 37, Public Safety Act is to eliminate entirely the provisions contained in sections 208 to 220 inclusive, of the Criminal Procedure Code, and to provide that, on perusal of a police report showing that "the offence is one triable exclusively by a Court of Session or one which in the opinion of the Magistrate ought to be tried by such Court," the Magistrate is obliged to make over the case to the Sessions Court as stated above and to take no proceedings except to forward the accused if he is in custody, and to send all police reports, to the Sessions Court. The two learned counsel who appeared before the learned Sessions Judge of Sialkot were of the opinion that when the case was instituted before Mr. Ahmad Shafi, i.e. on the 12th March 1948 he had no option but to make it over to the Sessions Court. They conceded accordingly: that the trial and conviction were without jurisdiction and from this it followed that the appeal to the Sessions Court was also bad in law. The learned Sessions Judge accordingly referred the case to this Court for orders. In due course, it came up before a learned Single judge who has referred it to a larger Bench, by means of a short order in which he referred to a recent decision in the High Court in London published as Buckman v. Button [(1943) 2 All. E R 82], and to section 4 of the Punjab General Clauses Act. The purport of this reported decision and the effect of the provision in section 4, Punjab General Clauses Act, 1898, will be considered presently. The precise question to which an answer is sought from this Full Bench has not been formulated but on the facts that it appears plainly to be whether having regard to the provisions of the Punjab Disturbed Areas Act and the Punjab Public Safety Act and to the period for which the former Act remained in force in the Sialkot District, the offence of the appellant Haveli was, on the date of institution of the case against him viz, the 12th March 1948, exclusively triabla by a Sessions Court. On the 4th February when that offence is alleged to have been com mitted the Sialkot District was undoubtedly a "disturbed area" under the Disturbed Areas Act, and the alleged offence was therefore committed in a disturbed area. When the case was instituted, in a Sialkot Court, the Disturbed Areas Act was no longer in fore in that District. Whether or not the trial by Mr. Ahmad Shafi was competent depends upon whether or not the alleged offence still remained punishable with death, despite the termination of the application of the Disturbed Areas Act to the Sialkot District. For the determination of this question, which is one of pure construction, in the light of the known principles of statutory interpretation, it is necessary first of all to consider the nature of the Disturbed Areas Act, the manner of its application and the manner in which it was withdrawn. I think there can be no doubt whatsoever that the Disturbed Areas Act was essentially a temporary statute. As I have stated it was a Governor's Act made during the continuance of a period of a Governor's rule under section 93 of the Constitution Act, and as will appear from subsection (4) of section 93, such a law is limited in its operation in point of time ; the words of this section are that such a law "shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect unless sooner repealed or re‑enacted by Act of the appropri ate Legislature". The proclamation referred to is that by which, as provided in subsection (1), the Governor suspends the constitution and assumes necessary powers for the Government of the Province to himself, and as will appear from subsections (2) and (3), such a Proclamation may be revoked at any time, and if not so revoked shall cease to operate after six months, there being provision for extension by to a maximum period of three years by a resolution of the Houses of Parliament in London (section 93 of the Government of India Act was deleted from the constitution with effect from the 15th August 1947). A temporary statute is one whose operation is limited in point of time, and clearly an Act of a Governor made under section 93 satisfies this condition. But it could be said further, in favour of the argument that the Disturbed Areas Act was a temporary statute, that the very preamble to the Act proves that its effect was to be limited to the period for which portions of the Punjab continued to be in a disturbed state. It is an impossible assumption to make that in a country enjoying a settled government any areas will continue to remain in a disturbed state in perpetuity. I think also that an intention in the mind of the Legislature that the application of the Punjab Disturbed Area Act should be strictly limited in point of time may be deduced from the provisions of section 3, which is reproduced in full below :‑ The Provincial Government may, by notification in the Official Gazette, declare that the whole or any such part of the Province as may be specified in the notification is a disturbed area, and may in the like manner add to, amend, vary or rescind any such notification. The Legislature here plainly leaves it to the judgment of the Provincial Executive to decide when the conditions in a particular area which they know to be in a disturbed state justify the introduction of the deterrent measures provided in sections 4 & 5 of the Act, and again, the Provincial Executive is also charged with the function of deciding when conditions in such an area have improved sufficiently to render the extraordinary measures unnecessary and consequently by notification to withdraw them and restore the ordinary law. Such a device is frequently adopted by Legislatures, when making provision for circumstances which are likely to arise suddenly and to give rise to difficulties which need extraordinary measures if they are to be overcome ; the legislature delegates to a statutory authority the function of judging when the emergency has arisen, which calls for the application of the extraordinary powers and when the emergency has passed so that the additional powers can be withdrawn. Ex‑hypothesis the duration of these extraordinary measures is limited in point of time, and such is always the intention of the Legislature in making provisions of this kind. Consequently there need be no hesitation in holding that the Punjab Disturbed Areas Act, in relation to its application to the Sialkot District, between the dates 31st May, 1947, and the 12th February 1948 was a temporary statute. It is necessary also to note that this statute did not come into force in the Sialkot District by an Act of the Legislature, but by an act of a subordinate statutory authority viz. the Provincial Government. Similar ly, when it ceased to operate the termination was not effected by a Legislative Act which might have constituted a repeal in the true sense but again by act of the same statutory authority. This is of importance in determining the effects which followed upon the termination of the application of this Act to the Sialkot District. The law which governs the effect of the repeal of statutes is now stated in the various General Clauses Acts. With regard to Central statutes, section 6 of the General Clauses Act 1897 and with regard to Provincial statutes, section 4 of the Punjab General Clauses Act 1898 which are, in essential respects, identical, may be referred to. Since by section 4 of the Punjab Disturbed Areas Act the provisions of certain sections of the Indian Penal Code a Central statute were varied pro‑tempore. It is necessary also to refer to the Central statutory provision regarding the effect of repeal. These provisions in the two General Clauses Acts constitute a departure from the ordinary rule applicable to repeals, and the effect of the change may be best stated in the words of Maxwell in his well known Treatise on the Interpretation of Statutes which are as follows :‑ (1) Where an Act expired or was ‑ repealed, it was formerly regarded, in the absence of provision to the contrary as having never existed except as to matters and transactions past and closed". (2) Now, under the provisions of section 38 subsection (2) Inter pretation Act, 1889, a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment, or anything duly done or suffered under it, and any investigation, legal proceeding, or remedy may be instituted, continued or enfoced, in respect of rights, liabilities and penalties'' under a repealed Act, as if the Repealing Act had not been passed". The provisions of subsection (2) of section 38 of the Interpretation Act 1889 are precisely in the same terms as those employed in section 4 Punjab General Clauses Act and section 6 of the General Clauses Act and I ought to say here that this subsection which is produced in the local Acts makes it clear that a repeal does not affect any "punishment incurred in respect of any offence committed against any enactment so repealed". From this it is clear that if certain conditions were satisfied the' offence of the appellant Haveli which was committed at a time when the Punjab Disturbed Areas Act was in force in Sialkot District would continue to be punishable with death, despite the termination of the application of that statute. The necessary conditions are firstly that the statute should be of a permanent nature and secondly that it should have been repealed by an Act of the Provincial or Central Legislature. Neither of these conditions is satisfied in the present case. The withdrawal of the application of the Act from the Sialkot District was effected by a simple notification of the Pro vincial Government, in which the Provincial Legislature had no hand or part; such a withdrawal cannot be regarded as being in any sense a repeal. Since the case is one involving penal liabilities, it is necessary that any provisions which purported to extend these liabilities beyond the date on which they expired under the ordinary law, should be applied with strictness. Moreover the considerations which apply to permanent statutes, in relation to their continuation after their expiry or repeal, are not the same as govern the effect of temporary statutes. 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. (This used to be the position in respect of permanent statutes as well, as will appear from the extract reproduced above from Maxwell's Treatise.) In the words of Sulaiman, C. J. in the cases, Bansgopal v. Emperor (A I R 1933 All. 669 F B.) :‑ According to the English Law, as a general rule, unless there is some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect. It would follow that an offence committed against a temporary Act must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate. The position is not otherwise in relation to statutes which affect only the punishment provided for specified offences. No direct authority of the Courts of the Indo‑Pakistan Sub‑Continent has been cited touching the point before us, but the law of statutory interpreta tion as developed in England may with confidence be applied to the interpretation of Pakistan Statutes since they follow in essential respect the English models. An early case directly in point is R. v. M'Kenzie (168 E R 881) which was decided in 1820; this was followed by three judges of the King's Bench Division in R. v. Ellis (125 Law Times 397). The purport of these two authorities appears very clearly ire a passage from the latter judgment which I reproduce below in extenso. The case was one relating to the jurisdiction of a munitions tribunal set up by the. Industrial Courts Act 1919, by which the provisions of an earlier Act namely the Wages (Temporary Regulation) Act 1918 was extended so as to remain in operation until the 30th~September 1920. The offence in question was created by the Industrial Courts Act, but the procedure in respect thereof was regulated in relevant respects by the earlier Act, which, were it not for the Industrial Courts Act 1919, would have ceased to operate with effect from the 21st November 1919. The pro secution was commenced before the 30th September 1920 but the order in the prosecution was made after that date, and it had been held by the munitions tribunal that on account of the Act of 1918 having expired they had no authority to issue a distress warrant for satisfaction of an award made by the tribunal. Thereupon, the party affected took out a rule nisi for a mandamus to the Chairman, commanding him to issue such a distress warrant. The rule was discharged and in the leading judgment Darling, J. observed as follows:‑ No doubt there is some ground for saying that in cases of this kind, where one is dealing with a temporary Act (and I think this is an temporary legislation, though I do not know that there is much in the term), one must look at the particular statute which is said to be temporary statute and see what is the meaning of it. It may be drawn in such a way that some parts of it will survive and be operative and that other parts of it are dead and gone, and this can only be ascertained by looking at the words of the particular statute which is before the Court. It might be perfectly reasonable to adopt the suggestion of Lord Abinger in the case of Steavenson v. Oliver (8 M and W 234), when he says this 'Take the case of a penalty imposed by an Act of Parliament, would not a person who had been guilty of the offence upon which the Legislature had imposed the penalty while the Act was in force be liable to pay it after its expiration' ? It may be that that would be just, and that it would be the manifest intention of the words of the statute under which he had been convicted. That suggestion was not altogether adopted by the Court, but I see nothing against it in what Parke, B., says, except that he is more careful and makes it more plain that the question must after all depend on the words of the statute which is being considered. But a case which is binding upon us shows that, in the absence of some such words as I think Parke, B. certainly would have looked for, we could riot lay down such a rule as Lord Abinger suggested: we could not lay it down as a general rule, because there is the case of Rex v. Elizabeth M'Kenzie and another (Russ, and R. 429), which was decided' in the year 1820 under the statute 10 and 11 Will, 3, c. 23, by which a person stealing money of a greater value than 5s. was liable to conviction without benefit of clergy. That meant that the person was to be hanged for having stolen something worth only 5s. A statute was passed in the first year of George 1V, c. 117, which repealed the statute of William III ; but Elizabeth M'Kenzie and another had had the misfortune, whilst the statute of William III, was still unrepealed, to steal twenty‑three yards of lace valued 1 3s., and she and the other person were both tried before the Common Serjeant at the Old Bailey September Sessions in the year 1820. Between the com mission of the offence and the trial and verdict, which was a verdict of guilty, this statute of George IV, had been passed, so that Elizabeth M'Kenzie was really in danger of being hanged for an offence which was not an offence subject to the penalty of death at the time when her trial took place. The Common Serjeant respited judgment in order to take the opinion of the judges whether a sentence of death could be passed on the prisoners by virtue of the statute 10 and 11 Will 3, which was in force at the date of the commission of the felony, or whether the prisoners should receive judgment as in cases of grand larceny by virtue of the statute of 1 Geo. 4, which was passed before their conviction, and which would have rendered them liable, not to death, but to transportation. (In Michaelmas Term 1820), says the report, 'this case was taken into consideration by the judges. They all agreed that judgment could not be passed on the 1 Geo. 4, which was prospective only. (That was simply because the statute had not come into force at the time when the offence was committed). 'But Wood, B. and Park, J. at first doubted whether the 10 and 11 Will. 3, must not he considered as in force for the trial and punishment of offences actually committed before its repeal that is the very point taken by Lord Abinger in the case of Steavenson v. Oliver (Sup.) but, on further consideration and on referring to 1 Hale, P. C. 290. 291, they agreed with the other judges that the prisoners must receive judgment as for a common larceny, without reference to either statute. Therefore they were not to be punished under the statute of William 111, which would have meant that they were to be hanged, they were not to be punished under the statute which repealed that one and substituted transportation for hanging, because that statute had not come into force ; and they were simply punished for ordinary larceny under the common law. That case appears to me to be absolutely in point here. It may be that owing to legislation an offence may have to be punished in a manner different from that which the Legislature might have provided, if it had seen the exact point which might arise, but we cannot do what the Legislature might, it seems to me, very justly and very properly have done; we cannot say that the Interpretation Act 1889 shall apply so that legal proceedings can be completed, although they would be heard and determined at a time when no offence under the statute could be committed. We cannot do that when the Legislature has not itself done it; and the Legislature might very easily have done it here, because the same statute, the Industrial Courts Act, 1919, constitutes the offence by the schedule to the Act, and in the same schedule it enacts that legal proceedings come within the same limit as that prescribed for the offence‑that is, that they are all to be completed by the 30th September 1920." I am of the opinion that the principle of the decision in the case R. v. M'Kenzie is applicable to the case of Haveli. As the opinion expressed by the learned Sessions judge shows, he is placed in danger of being hanged for an offence which was not subject to the penalty of death at the time when his trial took place. The effect of the with drawal by the Provincial Government of the provisions of the Disturbed Areas Act from the Sialkot District is in my opinion, to leave the law as it previously was so that the punishment for the offence was that laid down in the Indian Penal Code. This was the punishment applicable at the time of the trial, of Haveli, and following R. v. M'Kenzie I would hold that immediately upon the withdrawal of the Disturbed Areas Act viz., on the 12th February 1948, the punishment of death could no longer be imposed on him. It is quite clear that the temporary statute in question viz., the Disturbed Areas Act contains no words which can have the effect of saving its operation in respect of any transaction not commenced and closed prior to the date of its with drawal. The absence of such a provision serves also, to my mind, to indicate an intention on the part of the law‑making authority that its provisions were to expire immediately upon its ceasing to have effect. It is plain that the statute was enacted at the time when the Province was faced with a serious situation on account of the widespread disturbances, which preceded the Partition of the Indo‑Pakistan Sub‑Continent in August 1947. There can be no question but that the provision of the death penalty in relation to offences some of which were punishable under the ordinary law with as little as two years' imprisonment, was intended to produce a deterrent effect upon those,. who being tempted by the prevailing in security, might commit offences of attempt to murder, kidnapping and abduction, rape, robbery, dacoity and mischief by fire or explosive substances. The need for deterrent punishment would however vanish with the disappearance of the conditions which rendered it necessary. Thus, for example a person alleged to have committed one of the scheduled offences in a disturbed area might be arrested after the notification under section 3 of the Disturbed Areas Act had been withdrawn, and might be brought to trial at the same time as another person charged with committing a similar offence either before the area was declared to be disturbed, or after the declaration had been rescinded; it would be wholly unreasonable to suppose that the intention of the law making authority was that in such a case the first‑mentioned person, merely by reason of his act having been com mitted between two particular dates should be punishable with death, whereas the other should be liable only to imprisonment as provided by the Indian Penal Code. The circumstances prevailing at the time when the punishments fall to be awarded being ex-hypothesis such as not to justify a deterrent sentence, the impression is gained that the law making authority could not have intended that the higher punishment should be awardable after the notification under section 3 of the Disturbed Areas Act had been withdrawn, even if the offence were committed during the period that such notification was in force. Mention may here be made of three recent decisions of the King's Bench Division London, which were cited at the Bar. These are Director of Public Prosecutions v. Lamb (L R 1.941, 2 K B 89), Buckman v. Button (59 T L R 261) and R. v. Oliver (1943 (2) A E R 800). In each of these cases there was a prosecution for an offence created by a law enacted in relation to the emergency' created by the war then in progress, and before the prosecution had closed, the penalties for the offence had been enhanced. It was held in each case that the accused person upon conviction was liable to the enhanced penalty and the cases were cited before us in support of the proposition that the con verse would also be the case viz., that if in the course of the prosecution the law is amended so as to reduce the penalties in relation to the offences charged, the accused person would be liable only to such reduced penalties notwithstanding that at the time when he is alleged to have committed the offence a higher penalty was in force. On careful examination of these authorities it appears that they do not lay down any such proposition. Each turns upon the construction of the words in the relevant statute defining the person to whom the increased penalties were to apply. In the first and the third of these cases the relevant words were as follows:‑ Any person. guilty of an offence against this Regulation . . . . . . . . . . . . . . Shall be liable . . . . , . . . . . on conviction on indictment to " certain specified penalties being higher penalties than those originally fixed. In each case, it was held by the learned Judges that the expression, "any person guilty" meant "any person found guilty" and on this cons truction the convicting Court clearly had a power to impose the higher penalty which was in force at the time when the person was found guilty. In the second case, the position was even more plain ; there the relevant statute imposing the penalties commenced with the following words:‑ "Where any person is convicted of an offence against any of these Regulations . . . . . . . . . . . . . . the maximum fine which may be imposed upon him shall be such fine as is authorised by Regulation 92 of the Defence (General) Regulations, 1939 . . . . . " These words clearly operate to fix the penalties in relation to the date of the conviction, so that it became irrelevant that at the time when the alleged offence was committed the penalties awardable were lower. These considerations are, to my mind, sufficient for reaching the con clusion that in a case like the present of a trial in respect of one of tae scheduled offences, alleged to have been committed at a time when in respect of the area where it was committed a notification declaring it to be a disturbed area under section 3 of the Punjab Disturbed Areas Act was in force, the higher penalty imposed by section 4 of the Act ceases to be awardable immediately when such a notification is rescinded, and from that time onwards the only penalty which can be awarded is that laid down in the Indian Penal Code. Consequently after a notification as aforesaid has been rescinded, the question of the Court having jurisdiction to try such offence must be decided in relation to the lower penalty pro vided by the Indian Penal Code. On this view it is plain that the case against Haveli was properly tried by Mr. Ahmad Shafi and the reference may accordingly be returned to the learned Sessions Judge of Sialkot with that answer. My attention was drawn in the course of the argument to certain orders made by me on the 5th October of this year, in a number of criminal revisions from the Sargodha District in cases reported by the Sessions judge of that District. These cases were in the relevant respects similar to the present case, i.e. the offences were alleged to have been committed at the time when a notification under section 3 of the Dis turbed Areas Act was in force in the Sargodha District but the cases came up for trial on a date after that notification had been rescinded. The cases in question were all pending in the Court of the Sessions judge who forwarded them to this Court with the recommendation that they be returned for trial to the Additional District Magistrate Sargodha who had made them over to the Sessions Court for trial, but was himself com petent to try them. The Crown was represented before me by an Assistant Advocate‑General but there was no counsel appearing in any of those cases on behalf of the accused persons. I accepted the recommen dation and transferred the cases to the file of the District Magistrate, Sargodha, and that order is in consonance with the view which I have reached above in the present case, which has been fully argued, although the reasons which I gave for coming to that conclusion were different and as I am now satisfied, not strictly correct. Khurshid Zaman, J.‑I agree. Muhammad Munir, A. C. J.‑-- I agree. It is conceded by the learned counsel for the Crown that the present case is not covered by section 4 of the Punjab General Clauses Act or secion 6 of the Indian, General Clauses Act as it is not a case of one Punjab Act or Central At repeal ing another Act. That being so, the liability incurred, namely the liability to be hanged for an offence included in the Schedule to the Punjab Disturbed Areas Act, I of 1947‑in this case an offence under section 395, Indian Penal Code‑by reason of section 4 of that Act, does not survive under the General Clauses Acts, and there is nothing in the Punjab Disturbed Areas Act itself to show that such liability survives the revocation of a notification under section 3 of that Act. A notification under section 3 of the Punjab Disturbed Areas Act is essentially in the nature of a temporary statute. It is true that the Act is still in force and only the notification has been withdrawn but the enforcibility of the Act itself depends upon the existence of the notification, and on such notifica tion being revoked, the relevant provision of the statute also expires. Though therefore the Act is still technically in force, for the purposes of the area in which the offence was committed and qua this offence, it has expired. The case is thus governed by the principle that pending pro secutions for offences created by a temporary statute abate with the expiry of the statute unless as a matter of construction of such statute the liability sought to be enforced subsists. I have dealt with this matter at length in Criminal Revision No. 2848 of 1945 and for the reasons given there I agree that Mr. Ahmad Shafi had jurisdiction to try this case. A. H. Reference answered.