By a challan report, dated 3rd February 1968, the Superintendent of Police requested the Special Judge (Central), Quetta, for trial of the respondents for offences under section 420/468/471, P. P. C.
And section 5 (2) of the Prevention of Corruption Act, 1947 Sarfraz Masih respondent is stated to bean employee of the Central Government in the Department of Settlement and Rehabilitation. The evidence had been summoned when on the 20th May 1968, the accused objec--ted to the jurisdiction of the learned Special Judge. The precise objection was that all offences under the Pakistan Penal Code were scheduled offences under the Criminal Law (Special Provisions)
Ordinance (No.II of 1968) (hereinafter referred to as the Ordinance) therefore, only the Tribunal created there --under had the jurisdiction The case of the State on the other hand was that the offences being exclusively triable by a Special Judge under the Pakistan Criminal Law Amendment Act (XL of 1958) (hereinafter referred to as the Act), only the Special Judge had the jurisdiction. The learned Special Judge after hearing learned counsel for the parties and also some other learned Advocates of Quetta, as according to him the question involved was important, decided that he had no jurisdiction in the matter. He, therefore, sent the case to the Deputy Commissioner for proceedings under the Ordinance, by his order dated 25th June 1968, which has been challenged by the State in this revision.
2. The respondents were un-represented during the hearing. Therefore, on my asking some learned Advocates of Quetta, whose names appear hereinafter, and Mr. Khalid Ishaque, a learned Advocate from Karachi who happened to be at Quetta on one of the hearings, also addressed arguments. In order to appreciate the arguments, it is necessary to refer to the main relevant provisions of the two laws which require to be inter--preted.
Subsections (1) and (2) of section 5 of the Act read as follows:- "5.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge.
(2) The appropriate Government may, from time to time, by notification in the official Gazette, include in the Schedule such other offences as it deems necessary or expedient."
The Schedule, amongst other offences, includes the offences of which the respondents have been charged. Subsection (2) of section 1 makes the Act applicable to whole of Pakistan and to all the citizens of Pakistan and public servants, wherever they may be--- Section 3 of the Ordinance reads as follows: --- "3. Trial of Scheduled offences.--(I) Notwithstanding any--thing contained in any other law for the time being in force, no Scheduled offence shall be tried except in the manner provided by this Ordinance.
(2) Except as otherwise provided in this Ordinance, the provisions of the Evidence Act, 1872 (1 of 1872), and the Code of Criminal Procedure, 1898 (V of 1898), shall not apply to any proceedings under this Ordinance."
"Scheduled offence" has been defined in clause (e) of section 2 of the Ordinance as an offence made punishable by the Pakistan Penal Code (XLV of 1860), other than an offence specified in section A of Part I of the Schedule to the Conciliation Courts Ordinance, 1961 (XLIV of 1961).
3. Mr. Abdul Hafiz Memon, the learned Assistant Advocate --General contended that the Act being a Central Law and the Ordinance being a Provincial law, the former will apply by virtue of Article 134 of the Constitution of 1962. In the alternative, he contended that even if the Provincial Legislature had the power to alter or amend the Act, the promulgation of the Ordinance has not in fact altered, amended or repeated the Act. The contention further proceeded that the Courts have always leaned against implied repeal; and there being no real inconsistency between the two statutes, there is no question of repeal and thus the Act will continue to apply. He also argued that the Ordinance being a general law while the Act being a special law, the former cannot override the latter. And lastly that the procedure for trial of offences and matters connected therewith provided in the Act being more beneficial to the citizens, the same should be preferred over the mode and forum of trial provided in the Ordinance. Mr. Karam Elahi and Mr. Aziz Ullah Memon, two learned Advocates from Quetta, supported the contentions of the learned Assistant Advocate-General. Mr. Karam Elahi further contended that while promulgating the Ordinance, it was never intended that it would override the provisions of the Act. In fact, he went to the extent to arguing that the Legislature was not conscious of the fact that an overlapping statute i.e., the Act, was already in existence.
Mr. Khalid Ishaque, Mr. Muqeem Ansari, Mr. Zaka Ullah Lodhi and Mr. Farhat A.I Advocates have supported the view held by the learned Special Judge, in that the Ordinance over--rides the Act in so far as the offences scheduled in the former law are concerned. I have already mentioned that the two accused-respondents were unrepresentative in these proceedings and they themselves, have not addressed any arguments.
4. It appears that the learned Special Judge did not notice that the challan against the respondents was submitted for trial of an offence under section 5 (2) of the Prevention of Corruption Act, in addition to the offences (420/468/471) under the Pakistani Penal Code. The offence under the Prevention of Corruption Act is not a scheduled offence under the Ordinance On the contrary, it is a Scheduled offence under the Act. Therefore, this offence is exclusively triable by the Special Judge. Thus the reference of the entire case by the learned Special Judge to the Deputy Commissioner without making the exclusion as to the offence under section 5 (2) of the Prevention of Corruption Act is contrary to law. The authorities and the Tribunal under the Ordinance have no jurisdiction to deal with an offender or an offence under that provision.
5. It is true that the Act was passed by the Central Legis--lature in 1958 under the 1956-Constitution.
But the division of subjects between the Centre and the Provinces under the 1956--Constitution was entirely different from that under the 1962--Constitution. Under the earlier Constitution, the subject of Civil and criminal law including the law of evidence was in concurrent list while administration of justice was in the Provincial list. Under Article 106 thereof, both the Provincial as well as the Central Legislatures had the power to legislate in the concurrent list. The Provincial Legislature had exclusive power to legislate in the Provincial list but it was subject to the power of both the Legislatures in respect of the concurrent list. In the 1962-Con--stitution, there is only one list of subjects wherein only the Central Legislature can legislate under Article 131 (1). Under Article 132, a Provincial Legislature has the power to make laws for the Province with respect to any matter other than those reserved for the Centre in the Third Schedule. However, the Central Legislature, under certain circumstances specified in Article 131(2) can also legislate in the subjects not specified in that Schedule. The subjects of criminal law, the law of evidence and administra-- petition of justice are not included in this Schedule. Therefore, under normal circumstances, i.e. Except when legislation is made under Article 131 (2), these subjects are within the Provincial field. 1t may be noticed that though all the subjects mentioned in the Third Schedule are within the exclusive field of the Central Legislature, yet Article 132 does not make the remaining subjects as within the exclusive field of the Province. This is because the Centre can also legislate in the Provincial field, but only under the limitations of Article 131 (2). Keeping in view the above comparison of the two Constitutions in respect of the Central and Provincial fields of legislation, it becomes clear that the subject dealt in the two statutes under discussion is within the com-- petence of the Provincial Legislature under the 1962-Constitution. In other words, the Provincial Legislature is "the appropriate Legislature" for that subject.
Article 225 (1) of the 1962-Constitution reads as follows:- "Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature."
"Existing laws" have been defined in clause (7) of Article 225 as `all laws . . . . In force in Pakistan . . . .
Immediately before the commencing day'. The Act of 1958 under this definition, is an existing law.
Article 225 (1) provides that as an existing law, it shall continue in force; but the Provincial Legislature being the appropriate Legislature can alter, amend or repeal the same.
"Central Law" is defined in Article 242 as a law made by or under the authority of the Central Legislature, and includes a law made by the President. The "Central Legislature" has; e also been defined in the same Article as the Central Legislature of Pakistan. The Act was not passed by the Central Legislature of Pakistan constituted under the 1962-Constitution. Therefore, it is not a Central Law. It is, as shown above, an existing law. Article 134 provides that "when a Provincial Law is inconsistent with a Central Law, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid". Obviously, this Article resolves the question of inconsistency between a "Provincial Law" and a "Central Law" as defined in the Constitution itself. In the) present case, however, one of the statutes (the Ordinance) is a "Provincial Law" but the other, i.e. The Act, is an existing law" and not a Central Law. Therefore, Article 134 is not applicable. Instead Article 225 (1) is directly attracted. The existing law, i.e., the Act, is liable to be altered/amended/repealed by the "appropriate Legislature". The Provincial Legislature being the appropriate Legislature qua the subject-matter is, subject to the Constitution, competent to alter/amend/repeal the Act. In this view of the matter, the Ordinance is not hit by Article 134 and, therefore, in this context is a valid legislation. I have particularized the context because no other arguments relating to the vires of the Ordinance were addressed.
Same conclusion is reached by another reasoning. If all the existing laws which were enacted by the Central Legislature under the past constitutional arrangements are treated as Central Laws, the fresh division of subjects in 1962-Constitution would, in some cases, become ineffective. A Provincial Legislature would then be incompetent to legislate in its own field, simply because the Central Legislature enacted in that field in the past. This is not the intention contained in the Constitution. On the contrary the intention is, as expressed in Article 225, that the appropriate Legislature would be able to legislate in its own field as provided in the Constitution, notwithstanding any earlier Constitution where under the subject may have been legislated upon by another Legislature.
The above view finds support from the judgment of Kaikaus, J. In the case of Saiyyid Abul A'la Maudoodi (PLD 1964 SC 673). A similar question came up for consideration before a Division Bench of this Court in the case of Manzoor Ahmad v. Commis--sioner, Lahore Division and others (PLD 1964 Lah. 194), with respect to the vires of the West Pakistan Criminal Law (Amendment) Act, 1963, vis-a-vis the Criminal Procedure Code. It was held that the Criminal Procedure Code was not a Central Law within the purview of Article 131 and that the Provincial Legislature was competent to amend, modify or repeal the same by virtue of Article 225 of the Constitution.
6. For the purpose of applying the general principles of interpretation of statutes to the controversy involved in this case, it is necessary to find out whether there is inconsistency between the Ordinance and the Act. The Ordinance is applicable to only the areas specified in the Schedule thereto. Item I of the Schedule also mentions Quetta and Kalat Divisions. The Act, on the other hand, extends to the whole of Pakistan. The) members of the Tribunal under the Ordinance need not be judicial officers while a special Judge under the Act is to be necessarily a judicial officer. The Act does not prohibit the application of Evidence Act while the Ordinance specifically excludes the application of that law except sections 1-1 to 126 thereof. Similarly, the beneficial provisions of the Criminal Procedure Code have been made applicable to the trials under the Act while the same have been excluded for trials under the Ordinance. Under the Ordinance, the trial is held by the Tribunal while the order is passed by the Deputy Commissioner. On the other hand, the Special Judge is the trial Court under the Act and he himself decides the case on the basis of evidence produced before and opinions formed by him. In the matter of sentence, section 12 of the Ordinance makes fairly extensive modifications in so far as the punishment provided in the Penal Code is concerned while under the Act, except for the mandatory imposition of fine in certain matters, no change is made in the matter of punishment. Any aggrieved party can file an appeal to the Commissioner against an order (even that of acquittal) passed by the Deputy Commissioner under the Ordinance and the Commissioner has wide powers to confirm, modify, alter or set aside the same. The orders of the Commissioner as well as of the Deputy Commissioner are revisable by the Government. On the other hand, the appeals and revisions against the decisions of a Special Judge under the Act lie to the highest Court having appellate/revisional jurisdic--petition in the territorial limits, i.e. The High Court. The Deputy Commissioner who is the pivotal controlling authority under the Ordinance can delegate all his powers under that law to an officer of the rank of an Extra Assistant Commissioner while the Special Judge under the Act cannot delegate his power. The most important difference is that previous sanction of the appropriate Government is required for the prosecution of a public servant for an offence, under the Act; while no such sanction is necessary under the Ordinance. There are many other distinguishing features between the two statutes. But for the purpose of the present case, the consideration of those mentioned above will suffice.
An important inference drawn from the above comparison is that for an accused person the mode of trial under the Act is far more beneficial than that under the Ordinance. Another D irresistible conclusion reached is that both the statutes are inconsistent with each other; and both are in negative form and each excludes the application of the other in absolutely clear words.
7. Keeping in view the special features of the two statutes, as analysed above, it is now easy to examine the question of the application of each statute to the present case wish particular reference to the locality of Quetta which is one of the areas where the Ordinance applies.
Some of the accepted general principles for the avoidance of collision between different statutes are: ---
(i) If the provisions of a later Act are so inconsistent with those of an earlier Act that both cannot stand together, the earlier stands impliedly repealed by the later. This principle is based on the maxim leges posteriores priors contrarias abrogant. In other words, it means that the latest expression of the will of the Legislature must prevail. This, of course, is subject to the condition contained in the next principle. That is if the prior enactment is special and the subsequent enactment is general, the earlier special Legislation will not be, indirectly, repealed, altered or derogated from merely by force of the general words of the later statute, without any indication of a particular strong intention to do so.
(ii) A general later law does not abrogate, by mere implication, an earlier particular or special law which deals with a special object or a special class of objects. This principle is based on the maxim generalia specialibus non derogani. But when a general Act is incorporated into a special one the provisions of the latter would prevail over any of the former with which they are inconsistent. If one stature enacts something in general terms, and afterwards another statute .Is passed on the same subject, which, although expressed in affirmative language, introduces special conditions and F restrictions, the subsequent statute will usually be considered as repealing by implication the former, for "affirmative statutes introductive of a new law do imply a negative". However, if a subsequent statute merely creates an exception from the operation of a previous statute, the previous statute is not necessarily repealed.
(iii) When the later of two general enactments is couched in negative terms or is such affirmative terms which unequivoc--ally involve negative which proves fatal to the earlier enactment the earlier one is impliedly repealed.
(iv) When the two statutes are expressed in negative terms, they may be affirmative inter se and may not be contradictory to each other; though the effect of both may be that they are negative as regards a third statute at which both of them may have made some inroads'. When seen in this light, an apparent conflict of two statutes is found as without any reality. Because they objects may be different and both may be parallel; and each may be restricted to its own particular subject or locality.
(v) If the co-existence of the two inconsistent statutes would be destructive of the object for which the later was passed, the earlier would be deemed to have been repealed.
(vi) In so far as the Penal Acts are concerned, if a later statute again describes an offence created by a former one, and provides a different punishment, creates a new jurisdiction and remedy and varies the procedure-modifying the manner of changing the forum of trial or appeal, the earlier statute is impliedly repealed by the later unless, of course, both of them can exist in parallel application to different localities, subjects or objects.
(vii) When the words are clear and capable of proper operation, the revocation or alteration of a statute by construction is not permissible. The Legislature is normally not presumed to have intended to keep two contradictory enactments on the statute-book with the intention of repealing the one with the other, without expressing an intention to do so. Such an intention cannot be imputed to the Legislature without some strong reasons and unless it is inevitable. Before adopting the last-mentioned course, it is necessary for the Courts to exhaust all possible and reasonable constructions which offer an escape from repeal by implication.
(viii) All other consideration being equal, if the inconsistency, in spite of applying all general principles of interpretation of statutes, cannot be resolved, a statute more beneficial in remedy or method of taking action will override the statute which is not so beneficial.
The list of the principles on the subject is, by no means, exhaustive. Departures from the above principles have been made in individual cases on the basis of the language used in, and the intention found in respect of, particular statute. The approach in Pakistan on various questions of interpretation of statutes, as compared to India, has usually been pragmatic rather than technical.
It was observed in the case of Badrul Haque (PLD 1963 SC 704), "the fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent of them that made it". Therefore, it has to be laid down as a governing rule that whenever there are two possible interpretations, the one destroying the intention of the Legislature in passing the Act should not be adopted: But once the intention having been discovered and words having been given correct meaning and interpretation, the Courts will not refuse to give effect to the Legislation merely because it appears to be harsh, unreasonable or even vindictive; because these attributes of a statute fall within the field of policy of the Legislature and go beyond the ambit of the jurisdiction of the Courts. This, of course, is subject to the question of mala fides of the Legislature in enacting a law and the further question whether or not on that basis the Courts can go into validity of a particular law. That subject is not relevant to the discussion of the present case.
Therefore, no comments are made thereon. The above General principles and the rules of interpretation of statutes in the subject of the inconsistency of statutes have been taken from the study of the rulings of the Federal Court/Supreme Court of Pakistan listed hereinafter; Craies on Statute Law Maxwell on Interpretation of Statutes; Odger's Construction of Deeds and Statutes and some decided cases from foreign (Indian) jurisdiction. The Federal Court and Supreme Court rulings are: Muhammad Haroon v. The Crown PLD 1951 FC 118, The Punjab Province v. L. Sita Ram, etc. PLD 1956 FC 157, The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200, Khan Bahadur Amir-ud-Din and others v. West Punjab Province PLD 1955 FC 220, Noorul Hassan and others v. The Federation of Pakistan PLD 1956 SC (Pak.) 331, Messrs S. A. Haroon v. The Collector of Customs PLD 1959 SC (Pak.) 177, Rashid Taxtile Mills Ltd. v. Labour Union PLD 1963 SC 293, Badrul Haque Khan v.
The Election Tribunal and others PLD 1963 SC 704, Salyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another PLD 1964 SC 673 and Muhammad Ismail v. State PLD 1969 SC 241.
8. In the light of the above principles, it is necessary to further analyse the two statutes, the interpretation of which is involved in this case. It is, undoubtedly, true that the Act is more beneficial in its application to the citizen than the Ordinance. But the rule of beneficial construction, as observed by the Federal Court in the case of Muhammad Haroon, will apply only if the language of the statute is so ambiguous that two constructions are almost equally possible. Where, however, the language and intention is plain and unambiguous, the rule of beneficial construction has no applicability. As will be presently seen, the intention of the Legislature and the language used in enacting the Ordinance is very clear. Therefore, I do not find any justification for applying the rule of beneficial con--struction to this case and thus repel the argument of the learned Assistant Advocate-General based on that rule.
The all important question involved in the contentions raised by the learned Assistant Advocate- General is whether any and which of the two Statutes is Special qua the other and whether the rule of preferential application of special against the general law will apply to the present case. I do not agree with the premises on which the argument has been built. The Act of 1958, as its name suggests (Criminal Law Amendment Act) was a departure from the law contained in a general statute applicable to the trial of criminal cases which is contained in the Criminal Procedure Code (V of 1898) and the Evidence Act (I of 1872). It also took into its ambit the trial of offences under the Prevention of Corruption Act which itself, admittedly, is a special law. A further aspect to be noticed is that out of the whole of Pakistan Penal Code (XLV of 1860), only some offences were taken out to be made the subject of this Act. a Therefore, the Act is a special law qua the Code of Criminal Procedure the Evidence Act and the Pakistan Penal Code. On the other hand, contrary to the assumption of the learned Assistant Advocate-General, the Ordinance also, as its name (Criminal Law (Special Provisions) Ordinance) suggests, is all, special law. In its Preamble, it is clearly stated that to make special provision for trial of certain offences in certain area of West Pakistan and to meet the Special requirements of those areas, this law was enacted. The first part of the definition of "Scheduled Offence" given in section 2(1)(e) of the Ordinance gives an impression as if all the offences in the Pakistan Penal Code are scheduled offences. But in the later part of the definition, all the offences which are scheduled under the Con--ciliation Courts Ordinance, 1961, have been excluded. If we look at the Schedule in the Conciliation Courts Ordinance, 1961, the number of offences thus excluded is fairly large. Hence it cannot be said that whole of Pakistan Penal Code is included within the operation of the Ordinance. With regard to the Criminal Procedure Code and the Evidence Act, it would suffice to say that the Ordinances makes a complete departure from the ordinary procedure and forum of trial provided in those laws. Therefore, it can be safely held that the Ordinance is also a special law qua the Pakistan Penal Code, the Code, of Criminal Procedure and the Evidence Act. The learned Assistant Advocate Generd was probably misled by the first part of the definition of the scheduled offence which referred to all the offences punishable under the Pakistan Penal Code and from this he concluded that the Ordinance was a general law. It appears, the Preamble and the extent of the ,operation of the Ordinance, as provided in subsection (2) of section 1 thereof, laying down that the Ordinance is applicable to particularized territories in the Province of West Pakistan, have not been taken note of in the argument advanced on behalf of the State. Speciality with regard to the locality to which a law is made applicable, has been recognised in so many decided cases. The proposition is so obvious that I need not refer to those cases.
However, I may, with advantage, cite some observations in this behalf made in a pre-Partition Madras case, namely, Gunepally Thammayya and others v. Sri Rajah Tyadapusapati Khandendu Dora and another (AIR 1938 Mad. 963). On the question involved, after noticing some English cases, a Privy Council ruling in the case of Unnoda Persaud v. Kristo Coomar (19 W R 5 (P C)), and a Full Bench decision from Bombay High Court in the case of Poulson v. Madhusudan P.I Choudhury (2 W R 21), it was observed as follows:----- "Thus it looks as if speciality in respect of locality is given greater importance rather than speciality in respect of the subject-matter, otherwise it would be impossible to compare the degree of speciality."
This observation may have to be modified in a given case where, by the use of particular language and by expressing certain intention, speciality with regard to the subject-matter is shown to be more important than of locality. But, generally speaking it (the observation quoted above) lays down a correct rule. After considering all the aspects of the matter as to speciality of the two statutes, I have come to the conclusion that the Ordinance makes special provisions to meet the requirements of certain special areas (and this indeed is the Preamble of the Ordinance), it is more special as compared to the Act of 1958 which is applicable throughout Pakistan and makes special provisions with regard only to the subject-matter and not with regard to a special area. Thus the Principle of generalia specialibus non derogant enumerated as No. (ii) in paragraph No. 7 of this judgment is not applicable to the present case. Therefore, I repel the argument that the Ordinance is a general law and that it will give way to an earlier special law, i.e. The Act. There is no real foundation for such an argument because both the statutes, as explained above, are special laws.
9. In order to resolve the controversy, it is necessary to revert to the language used and the intention expressed in the Ordinance. Section 3 which has already been reproduced in paragraph No. 2 above is in two parts. Subsection (2) excludes the operation of the Evidence Act and the Code of Criminal Procedure, with regard to the proceedings under the Ordinance, except where otherwise provided. The extent and scope of application of the above-mentioned two laws to the proceedings under the Act and the Ordinance have already been compared in paragraph No. 6 above and have been found to be entirely different. That is why the Ordinance, in its section 3(2), excludes the application of any law which, even by reference, makes the Criminal Procedure Code or the Evidence Act applicable to criminal trials in a manner contrary to that provided in the Ordinance itself. So the Ordinance excludes the application of the Act qua the procedure for trial of cases under it. In sub--section (1) of section 3, there is a general exclusion by means of a "notwithstanding clause" which means that even if any other law, for the time being in force, makes comparable or parallel provisions for trial of the scheduled offences under the Ordinance, the law provided in the Ordinance shall apply to the exclusion of the other law. The language used is very strong and a built-in double safeguard, against the application of any other law, is provided. For clarification, it is necessary to produce that provision once again--- "Notwithstanding anything contained in any other law for the time being in force, no scheduled offence shall be tried except in the manner provided by this Ordinance."
(Underlining is mine).
Not only this, the definition of "scheduled offence" itself, in section 2(1)(e) of the Ordinance, also helps in clarifying the matter. All offences punishable by Pakistan Penal Code have been scheduled, except those specified in the Conciliation Courts Ordinance. Had the Legislature intended to exclude any offences of the Pakistan Penal Code which are the subject-matter of any other law, the same could have been excluded as done in the case of Conciliation Courts Ordinance. In this connection, it may be remarked that the suggestion of Mr. Karam Elahi, Advocate, to the effect that the Provincial Legislature was not conscious of the existence of overlapping provisions of the Act of 1958, is not well founded: firstly, because of the general presumption that the Legislature must be presumed to have always known the laws of the country, and I would add, more thoroughly as compared to the knowledge of an ordinary citizen.1 In this case the Legislature cannot be considered to be the Governor alone who promulgated the original Ordinance in January 196 , because that Ordinance was approved by the Provincial Assembly, after some amendments, in June 1968 ; and secondly, because the history of the Legislation with regard to the subject-matter of the Ordinance, with reference to the Frontier Crimes Regulation (III of 1901) and the West Pakistan Criminal Law (Amendment) Act, 1963; which are, of course, two separate measures in respect of the same subject-matter but with particularized application, makes it clear that the Ordinance did not exclude certain offences relating to corruption which are the subject- matter of the Act of 1958. Section 11 of the Regulation provided for the reference of the question of guilt or innocence of any person accused of any offence, to a Council-of-Elders. "Any offence" would, of course, include the offences under sections 409, 420 and 471, P. P. C. Which are also the subject-matter of this case. Therefore, when enacting the Ordinance which, for all practical purposes, was to take place of the Regulation for a particular locality, it cannot be said that the Legislature was not conscious of the fact that some offences qua corruption would also be within the ambit of the Ordinance. It may be noticed here that after the Full Bench case of Malik Muhammad Usman v. The State and another (PLD 1965 Lah. 229), decided in December 1964, which struck down the Regulation, the Governor of West Pakistan by notification No. Judl-1- I(72)/64(i), dated 17th December 1964, had excluded the operation of that law from the territories specified therein including that of Quetta. It was after this that the need for separate Legislation qua that locality and other local areas arose and after experimenting with the West Pakistan Ordinance No. III of 1965, the present Ordinance, No. 11 of 1968 was promulgated. Similarly, the West Pakistan Criminal Law (Amendment) Act, 1963, cannot be ignored while interpreting the Ordinance.
Both these laws provide for somewhat similar procedure and similar forum (Tribunal), and hierarchy of authori--ties for dealing with crime, its prevention and punishment. I cannot visualize that when originally enacting the Ordinance, the Government and, at the time of its approval, the Provincial Legislative Assembly were oblivious of the fact that a parallel statute, Le. West Pakistan Criminal Law (Amendment) Act, 1963, was already in force in the areas of West Pakistan notified there under. A similar law was being provided for another set of areas specified in the Ordinance.
Therefore, it is legitimate to construe the Ordinance with reference to the West Pakistan Criminal Law (Amendment) Act, 1963. If the subject of corruption was covered by a parallel statute (the Act of 1963) the inclusion of this subject in the Ordinance itself does not, in any way, appear to be unusual. To my mind, it was deliberate and with consciousness that the same is provided (with some difference) in an earlier statute of parallel incidence and application in the same Province.
10. There is another aspect of the same matter. Sub--section (1) of section 4 of the Ordinance provides that the Deputy Commissioner shall have exclusive jurisdiction to take cognizance of a scheduled offence committed within his district. This is the fourth provision in the Ordinance (the others being subsections (1) and (2) of section 3 and section 2 (1) (e) ) which expressly excludes the application of other laws dealing with the jurisdiction to try offences. All these provisions, when read together, to my mind provide several safeguards against the application of or intrusion by any other law in respect of the subject-matter and the locality dealt in Ordinance. It may be said that the exclusion clause in section 4 of the Ordinance is, in no way, different to a similarly worded exclusion clause in subsection (1) of section 5 of the Act; and on this basis an argument may be advanced that both the Acts are in negative and jealously guard against intrusion by the other and, therefore, both being equal in this behalf, preference should be given to the one which is more beneficial, and the Act being more beneficial will override the Ordinance. As a first impression, the argument has some plausibility; but when looked at from the angle of the accepted principles of interpretation of statutes enumerated above, the argument loses all its force. I have already held that the rule as to the preference for a beneficial statute will apply only if the controversy cannot be resolved by any other accepted and well-- known principle. In fact, the rule of preference on the basis of beneficial nature of a statute is a residuary rule. If none of the primary rules is of any help, other considerations being equal, the rule of beneficial application will apply. But here the application of another primary and important rule has to be considered. That rule is mentioned as No. (i) in paragraph No. 7 above and is based on the maxim leges posteriores priors contrarias abrogant. This rule has been stated as a basic rule by almost all the authors on the subject of interpretation of statutes and has been recognised by all Courts of Pakistan and of foreign jurisdic- -petition. The latest expression of the will of the Legislature has never been and indeed cannot be ignored. There is mass of case-law on this question. However, I make mention of two rulings, one of the Supreme Court and the other recently given by a Full Bench of this Court. They are Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another and Malik Mir Hassan and another v. The State (PLD 1969 Lah. 786). In this connection, it will be of advantage to reproduce the observation of Hamoodur Rahman, J. (as he then was) in the case of Abul A'la Maudoodi, at page 779 of the report: --- "No doubt the Courts should not be too astute in discovering such inconsistency, for, such inconsistency is not to be readily inferred; but where the co-existence of the two sets of provisions would palpably be destructive of the object for which the later statute was passed, the earlier must be deemed to have been impliedly repealed to the extent of the inconsis--tency. Repeal by implication is merely the consequence of contradictory or inconsistent legislation to which the Courts must give effect if the inconsistency cannot reasonably be reconciled."
This rule of interpretation is more pronounced in its application to statutes dealing with crime and its punishment. I have mentioned this aspect of the matter in the form of separate principle of interpretation (No. (vi) in paragraph 7 above), namely, that "if a latter penal statute again describes an offence created by a former one and provides a different punishment, creates a new jurisdiction and remedy and varies the procedure modifying the manner or changing the forum of trial or appeal, the earlier statute is impliedly repealed by the later unless, of course, both of them can exist in parallel application to different locality, subjects or objects". This principle is fully applicable to the present case and respectfully following the above cited two rulings, I hold that the Ordinance, to the extent of its inconsistency with the Act, excludes' the application of the latter, to the locality specified in the former.
11. The two laws are inconsistent qua a part of the subject---matter and also qua the locality specified in the Ordinance. An inconsistency qua subject-matter is that all offences which are punishable under the Pakistan Penal Code, excepting, of course, those specified in the Conciliation Courts Ordinance are exclu--sively triable under the Ordinance; while some of them are also triable under the Act. The-mode and forum of trial in respect of all the offences is different in the two laws. The other aspect of the inconsistency is that the Ordinance applies to only the areas specified therein while the Act applies to whole of Pakistan. All the in consistencies, if considered together, lead to the conclusion that the offences which are punishable under Pakistan Penal Code, with the exception of those specified in the Conciliation Courts Ordinance are exclusively triable under the Ordinance but only within the areas specified therein which include Quetta and, to that extent, the Act has no application. On the other hand, the offences under the Prevention of Corruption Act which are included in the subject-matter of the Act but are not included in the subject-matter of the Ordinance will continue to be exclusively triable under the Act, to the exclusion of the Ordinance even in the localities specified therein including Quetta. The result is that the Ordinance will apply in the areas specified therein including Quetta, only to the extent of inconsistency mentioned above, to the exclusion of the Act. In other respects, i.e. Where they are not inconsistent, the Act will continue to apply in that local area. That is, in that area the offences punishable under the Prevention of Corruption Act will continue to be dealt with and tried under the Act while the offences punishable under the Pakistan Penal Code (including those under section 409/420/471 thereof), of course subject to the above-mentioned exception as to Conciliation Courts Ordinance, 1 1961, will have to be dealt with and tried under the Ordinance.
I am conscious of a possible criticism as to an anomaly which the adoption of such a course may be imagined to be created. It may be argued that the act and omission constituting an offence under the Prevention of Corruption Act may also constitute an offence under the Pakistan Penal Code; and further that if one offence arising out of same set of circumstances is triable or tried in one Court and another offence arising out of the same circumstance is tried in another Court or Tribunal, the result may be the infringement of various principles of natural justice and rules of criminal jurisprudence. For example, autrefois acquit/convict or the rule against double jeopardv A similar question came up for consideration and resolution before their Lordships of the Supreme Court while dealing with the interpreta--petition of section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, in the case of Commissioner, Sargodha Division and anther v. Knizar Hayat and 5 others (PLD 1966 SC 793) and again in The Commissioner, Rawalpindi Division and another v. Pervez Iqbal (PLD 1968 SC 259) In the earlier ruling after deciding that the two offences arising out of such circumstances could be dealt with separately and under separate set of laws, it was held that the above--noted principles as contained in section 403, Cr. P. C. Would lave their own course. The following observation by A. R. Cornelius, C. h., at page 801 of the report of Khizar Hayat's case is the answer to the above-mentioned possible criticism :- "Where the law is clear, the Judges of the superior Courts are under oath to vindicate and enforce it. So much, however, may be said with certainty that the rules against double of jeopardy is so well-established that there need not be any substantial apprehension that if the Commissioner's order in this case were held to be valid in relation to the offence in section 363, P. P. C., that rule would prove ineffective to prevent conflict of decision. The High Court is equipped with ample power to supervise and correct every step taken in the ordinary Courts, should the case be pursued there on the same set of facts, in relation to the more serious offences which appear there from."
The West Pakistan Criminal Law (Amendment) Act, 1963, was subsequently amended by Ordinance No. XV of 1966 on 27th April 1966, whereby subsection (1-A) was added to section 3 which provided that when a person is accused of a scheduled offence as well as one or more non-scheduled offences, only the question relating to the scheduled offence shall be referable to the Tribunal and the non-scheduled offence shall be dealt with in accordance with the ordinary law. After this amendment, the question of interpretation of section 3 again came up for consideration before their Lordships of the Supreme Court in the second case of Pervez Iqbal mentioned above. After noticing the ruling in the case of Khizar Hayat and the amendment mentioned above, it was held :- "The question has, therefore, now been fully set at rest that such a reference of one of the offences which is a scheduled offence is competent."
"Where a person is accused of more offences than one and any such offence is not scheduled offence, the Deputy Commis--sioner shall proceed in accordance with the provisions of this Ordinance only in respect of the scheduled offence or offences."
Subsection (4) of the same section provides :- "Where it appears to any Magistrate, Court or other authority enquiring into or trying any offence that such offence is a scheduled offence, such Magistrate, Court or authority shall stay further proceedings in respect of such offence and refer it to the Deputy Commissioner for proceeding in accordance with the provisions of this Ordinance."
These provisions accord statutory recognition to the principle laid down by the Supreme Court in the case of Khizar Hayat. That very principle has further been elucidated in the case of Pervez 1qbal with reference to the provisions contained in sections 235 and 71, Cr. P. C. And it has been held that "where several acts of which one or more than one would, by itself or themselves constitute an offence, although when combined they may constitute a different offence, there can be a trial for each of such offences. Thus if A commits house-breaking with intent to commit adultery and also commits adultery in that house he may be separately charged with and convicted of both the offences under sections 454 and 497, P. P. C. But the accused if found guilty, cannot be given a more severe punishment than that which the Court trying him could award for any one of such offences". I may respectfully mention that while dealing with a corruption case Muhammad Sadiq Javeed v. The State (PLD 1969 Pesh. 12) in respect of somewhat similar arguments, I reached the same conclusions, though with a slightly different approach, which included a reference also to section 26 of the General Clauses Act, 1897. Therefore, if the law laid down by the Supreme Court in the cases of Khizar Hayat and Pervez Iqbal is followed, there is no question of there being any difficulty in the trial of offences which are scheduled and those which are not scheduled, under the Ordinance. I may further add that as pointed out by me in the case of Muhammad Sadiq Javeed, it would be possible for the relevant authorities in these circumstances, as also envisaged by various provisions referred in that case, to prosecute/ try an offender for any of the offences. It is further to be mentioned that in reaching these conclusions, I have kept in view principle No. (iv) mentioned in paragraph No. 7 of this judgment, in that "when the two statutes are expressed in negative terms, they may be affirmative inter se and may not be contradictory to each other; though the effect of both may be that they are negative as regards a third statute at which both of them may have made some inroads". It is in this light that an apparent conflict of two statutes is without any reality as their objects are different and both are parallel and each one of them is restricted o its own subject and locality. This, of course, is also in pursuance of another important principle to the effect that it is necessary for the Courts to exhaust all possible and reasonable constructions which offer an escape from repeal by implication. The result, therefore, is that the Ordinance has not repealed the whole or any part of the Act. Both will continue to remain in force in their own respective fields of operation, with the clarification that to the extent of inconsistency mentioned in paragraphs Nos.
6 and 11 above, the Ordinance will apply to the exclusion of, the Act, in the area specified therein While applying all the above principles, I have consistently kept in view the following observations of Hamoodur Rahman, C. J., in the case of Saiyyid Abdul A'la Maudoodi :- "If the inconsistency covers the whole field of legislation, the test suggested may well be sufficient, for, the mere existence of two sets of contrary provisions would naturally exclude one. But where the inconsistency does not cover the whole filed as in the present case, it may be necessary to examine and contrast the provisions of the two statutes in more detail in order to discover, as was pointed out by Issacs, J. In the case of Clyde Engineering Company Limited v. Cowburn 37 C L R 466 `if one enactment makes or acts upon as lawful that which the other makers unlawful, or if one enactment makes unlawful that which the other makes or acts upon as lawful'. If so the two must be held to that extent to be inconsistent even though it may be quite possible to obey both simply by not doing what is declared by either to be unlawful'. "
12. As to whether after splitting two sets of offences both the Tribunals can proceed with the trial of offences which are cognate and are based on the same facts, their Lordships of the Supreme Court were pleased to hold in the case of Khizar Hayat that "after withdrawal of the offence under section 363, P. P. C. From the jurisdiction of the Magistrate, further proceedings in respect of other offences arising out of the same set of facts should he stayed, until the decision in the case withdrawn and referred to the Tribunal is reported to the Magistrate, and the prosecuting agency makes known its intention with retard to such other offences". It is, with respect, pointed out that the clash of jurisdic--petition in the case of Khizar Hayat was between two forums, one constituted under the special law (West Pakistan Criminal Law Amendment Act, 1963) and the other (ordinary Courts) constituted under the general Law, i.e. The Code of Criminal Procedure. The position in the present case is different. As explained above, both the laws involved in the controversy, i.e. The Act and the Ordinance are parallel to each other and special in their own fields and their "effect is that they are negative as regards the statute at which both of them have made inroads". In this context, the third statute is the Code of Criminal Procedure. In the case of Khizar Hayat, the Courts of ordinary jurisdiction under the general law were required to stay the proceedings till the Tribunal under the special law was able to conclude the proceedings in respect of that part of the case which may have been referred to it. In the present case, both the Special Judge as well as the Tribunal have special jurisdiction in respect of the different parts of the case triable by them. There is nothing in the law or any principle which should give preference, qua stay of proceedings, to one of the forums. However, if the principle underlying section 25 of the W. P. General Clauses Act, 1956 is followed and the fact that the State/Prosecution chose to submit this challan in the Court of the Special Judge with the request that he should try the matter and it being open to the State to prosecute an offender, for all or any of the offences, it is more in consonance with the common sense that in these particular circumstances the Special Judge should proceed with the trial; while, as and when the matter comes before the Deputy Commissioner qua his part of jurisdiction, he should stay the proceedings. There is another reason also for following the above course. The learned Special Judge had, after, going through various stages of the proceedings before him, already summoned the evidence when the question of his jurisdiction arose which means that he had already taken cognizance of the -case. Therefore, it is appropriate and also in the interest of justice that he should proceed with that part of the case which is in his jurisdiction and the Deputy Commissioner should not proceed in the matter till the conclusion of the proceedings before the Special Judge. I may have examined the question of application of the rule of beneficial construction qua the matter of stay, had it not been possible for me to decide the question on the above mentioned two considerations and this course is consistent with the view expressed by me above that the rule of beneficial construction will apply only when there is no way out of the various possible constructions or courses to be adopted. Here that stage has not reached and the controversy is capable of resolution without the application of this rule as indicated above.
13. In the light of the above discussion, I hold that the-- reference by the Special Judge of the entire case to the Deputy Commissioner (to be dealt with under the Ordinance) is not warranted by law.
The challan having been submitted in his Court in respect of two sets of offences, one triable by him under c the Act and the other triable by another forum under the Ordinance, he was obliged to start and continue the proceeding in respect of the offence under section 5(2) of the Prevention o Corruption Act. I, therefore, set aside the impugned order and remand the case to the learned Special Judge with the direction that he should make the reference to the Deputy Commissioner, as required by subsection (4) of section 4 of the Ordinance, only in respect of scheduled offences under that law. I further direct that the learned Special Judge will proceed with the trial of the offence under section 5(2) of the Prevention of Corruption Act,-- 1947, charged in the police challan report submitted under section 4(l) of the Act read with section 173, Cr. P. C. As to what course the Deputy Commissioner will follow after the. Splitting up of the two parts of the case and the reference by the Special Judge to him of one part to be dealt with under the Ordinance, sufficient guidance is available in the judgment of" their Lordships of the Supreme Court in the case of Khizar Hayat as discussed and explained by me in the concluding portion of the last paragraph of this judgment.
14. Before closing this judgment, I feel it as my duty to take --note of a very serious matter. In the case of Khizar Hayat, their Lordships of the Supreme Court were pleased to deal with various questions connected with the splitting up of offences, arising out of same set of facts, to be tried by different forums. The controversies as to interpretation were resolved. At the same time it cannot be said that the Supreme Court did not indicate various difficulties which could arise in implementing the law as interpreted by their Lordships. The case of Khizar Hayat was heard by the Supreme Court on 12th April 1966, and the judgment was delivered on 14th July 1966. It appears that the State may have realized certain difficulties in applying section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, as it stood on 12th April 1966. Therefore, an amendment in section 3 was made on 27th April 1966, by West Pakistan Ordinance No. XV of 1966, whereby the splitting of the different offences arising out of same set of facts was provided for. Their Lordships of the Supreme Court took note of this amendment in., their decision given, iii the case of Pervez Iqbal, on 7th April. 1968. S. A. Rahman, C. J., was pleased to make his own, observations with regard to the splitting up of the offences arising out of the same set of facts, for the purpose of their trial in different forums which of course, by then, bad become law by virtue of the Supreme Court judgment in the two cases of &0zar Hayat and Pervez Iqbal, and also by the amendment of section 3 in -1966. Those observations are as follows: ---- "The policy of the law undoubtedly, as prevalent in the ordinary Courts, is that where a series of acts constitute more than one offence, the accused should be tried for the more-serious offence.
However, the law now contemplates the diversion of the less serious offence to a parallel jurisdiction with results that cannot be described as entirely satisfactory.--- After mentioning certain possibilities of "extra-legal and extra-- judicial considerations" and there being the "potentiality of mischief" and an "element of discrimination" in the procedures and jurisdictions so created, it was further observed--- "This is a matter which may engage the serious attention o the legislative authority. In my humble opinion, either the whole group of cognate offences should be referable for trial to a Tribunal or in cases where a more serious offence can be spelt out of the facts which is beyond the jurisdiction of the Tribunal, it should be laid down as a matter of policy that such cases would invariably be allowed to remain within the jurisdiction of the ordinary Courts. A copy of this judgment may be forwarded to the Chief Secretary of the Provincial Government for such action as may be deemed fit."
I asked Mr. Aslam Riaz Hussain, the learned Additional Advocate --General, to inform this Court about the action taken by the Chief Secretary or any other authority in the Province in this behalf.
After making the enquiries from the relevant quarters, he has submitted the following reply: - "On a perusal of the reply sent by the Home Department I find that instructions attached to the same do not pertain to the observations of Mr. Justice S. A. Rehman in the case of Pervez Iqbal PLD 1968 SC 259.
The reply by the Additional Advocate-General which is in writing, along with annexure was submitted to this Court on 14th October 1969, and it has been placed on the record of this case.
I am constrained to remark that the observations of thet Chief Justice of Pakistan, referred to above, have not received[ proper consideration from the relevant quarters. It has been ascertained that the copy of the judgment of the Supreme Court' in the case of Pervez 1qbal was sent to the Chief Secretary, vide letter No. Cr. A. 42/67-S. C. J. Dated 29th April 1968. It was acknowledged by the Home Department, vide memo. No. Judl. 1-7 (61)/64, dated 9th August 1968. More than a year has passed. The reply received from the Law and Home Departments of the Government of West Pakistan is self-explanatory. Such neglect in respect of comments and observations made by the highest Court in the realm cannot be allowed to pass unnoticed, particularly when the observations are of the Chief R Justice and relate to a burning question about a particular law and its application. The various anomalies and flaws pointed out by the learned Chief Justice, it is a common knowledge, have also been experienced by others who administer the laws under discus- -sion. The present case can be cited as an example. It is a revision by the State seeking a ruling by the Court on the question of the application of Ordinance No. II of 1968 which contains provisions parallel to those of West Pakistan Criminal Law (Amend--ment) Act, 1963. Ignoring the observation of the highest Court in the realm and not considering it at all in this context amounts to disrespect to the Court. This tendency has developed in recent passed and if it is not checked well in time, the Courts may be constrained to take further notice of it in a manner provided by law and the Constitution. It is unnecessary for the time being to dilate on this subject any more. The above comment is sufficient for the time being. As the comments by the learned Chief Justice, referred to above, were conveyed to the Chief Secretary and it has been noticed that they have not yet been properly considered; therefore, it has become necessary that the remarks made by me above and the judgment of the Supreme Court in the case of Pervez Iqbal should be brought to the notice of the Governor of Province of West Pakistan.
K. B. A.