' MUHAMMAD FARRUKH MAHMUD, J.--- The brief facts of the case are that Abdul Rehman-petitioner filed application under section 22-A, Cr.P.C. Before the learned Additional Sessions Judge, Rahim Yar Khan, seeking registration of case for offence under section 489-F, P.P.C. Against Bashir Ahmad-respondent No, 2, who issued a cheque of an amount of Rs,2,30,000 in favor of the petitioner, which bounced. Vide order, dated 28-4-2004 the learned Additional Sessions Judge dismissed the application of the petitioner on the ground that the Ordinance, which introduced offence- under section 489-F, P.P.C., had died its natural death, as the same was not put before the Parliament within four months. Hence this Constitutional petition.
2. The learned Counsel for the petitioner has argued that the offence under section 489-F, P.P.C., which was introduced through Criminal Law (Amendment) Ordinance No, LXXXV of 2002 (hereinafter to be referred as Ordinance) on 25-10-2002 was very much alive, as the same was protected under the provisions of Article 270-AA of the Constitution of the Islamic Republic of Pakistan, 1973, as amended by Seventeenth Amendment through Act No, III of 2003 promulgated on 31st December, 2003. The learned counsel while referring to Article 270-AA of the Constitution has submitted that all laws made between 12th October, 1999 to 31st December, 2003, were protected by the Constitutional amendment, thus, were alive.
3. Conversely, the learned counsel for Bashir Ahmad-respondent No, 2 has argued that the Ordinance through which section 489-F, P.P.C. Was inserted in P.P.C. Was promulgated by the President on 25-10-2002. According to provisions of Article 89 of the Constitution the Ordinance was to be laid before the Parliament within a period of four months, which was not done, thus, the Ordinance stood repealed after the expiry of four months i,e, on 24-2-2003. The learned counsel added that Seventeenth Amendment came into force on 31st December, 2003, by that date the Ordinance stood repealed and was not in force, thus, it cannot be said that the Ordinance was protected and saved under the provisions of Article 270-AA of the Constitution. He has relied upon the judgment dated 18-6-2003 passed by the learned Judge in Chamber in Writ Petition No, 1719 of 2003 titled Mian Hussnain Ahmad Haider v. S.H.O. Etc. The learned counsel lastly argued that the impugned order passed by the learned Additional Sessions Judge suffered from no infirmity.
4. While adopting the line of arguments of the learned counsel for the petitioner, the learned A.A.-G.
Has added that while promulgating the Ordinance the President had exercised his powers under the Provisional Constitution Order No, 1 of 1999 read with Provisional Constitution (Amendment)
Order No, 9 of 1999 and thus, it cannot be said that the Ordinance was promulgated by the President while exercising his powers under Article 89 of the Constitution. In support of his contention, the learned A.A.-G. Has submitted that the Provisional Constitution Order No, 1 of 1999 was promulgated on 14th October, 1999, and most of the provisions including Article 89 of the Constitution were held in abeyance. According to learned A.A.-G., the provisions of Article 89 of the Constitution were revived by the President through Notification on 16-11-2002. He has placed on record photocopy of the Gazette Notification dated 15-11-2002 on that regard. On the strength of the above mentioned facts/circumstances the learned A.A.-G. Has submitted that it was wrongly held that section 489-F, P.P.C. Was introduced by exercising powers under Article 89 of the Constitution. He has further argued that the legislation during 12-10-1999 to 21-8-2002 was firstly protected under Article 270-AA as amended by the Legal Framework Order, 2002 and finally through the amendment in Article 270-AA of the Constitution introduced through Seventeenth Amendment Act No, III of 2003 promulgated on 31st December, 2003. The learned A.A.-G. Has relied upon the case of Shahtaj Sugar Mills Limited v. Province of Punjab through Secretary, Food, Civil Secretariat, Lahore and 3 others 1998 CLC 1912 and referred to para. 10 of the judgment, which is being reproduced hereunder:- "By Presidential Notification, dated 10-3-1985, the Constitution of Islamic Republic of Pakistan, 1973, was revived except certain provisions thereof. However, by other notifications, dated 29-12-1985 and 30-12-1985, the suspended provisions of the Constitution were also restored as the Martial Law was withdrawn by the Chief Martial Law Administrator. The Parliament added Article 270-A of the Constitution effective from the day of lifting of Martial Law. The Presidential Orders Ordinances, Martial Law Regulations/Orders and all other laws made during Martial Law were validated and, if in force, were continued but subject to their repeal or amendment by the competent Authority.
Therefore, there was no need of placing the impugned Ordinances before the Provincial Assembly for their approval and continuance in view of the non obstante clauses of Article 270-A of the Constitution. In taking this view, I am fortified by the cases of Abu Farida Khan v. The Province of East Pakistan and 2 others PLD 1964 Dacca 473, Sheikh Atta Muhammad v. Mian Muhammad Abdullah and 10 others PLD 1971 Lah. 210, S.A. Rafi and another v. Government of West , Pakistan through the Secretary to the Government of West Pakistan, Lahore and 4 others PLD 1973 Lah. 539, Usman Ltd. v. The Collector of Customs (Appraisement), Customs House, Quetta and another PLD 1990 Quetta 1 and Sally Textile Mills Limited and Sapphire Textile Mills Ltd. (supra). The validation clause equally covered the laws, etc., made by the President and other authorities including Martial Law Regulations/Orders.
5. I have heard the learned counsel for the parties at great length and scanned the entire law/legislation. In order to appreciate the argument of the learned counsel for the parties, I feel it necessary to trace back the history of the relevant legislation. Ordinance No, LXXXV of 2002 through which section 489-F, P.P.C. Was inserted in P.P.C. Was promulgated on 25-10-2002 by the President in exercise of his powers under Provisional Constitution Order No, 1 of 1999, read with Provisional Constitution (Amendment) Order No, 9 of 1999. The Ordinance is being reproduced for ready reference:-- ' Criminal Law (Amendment) Ordinance, 2002 Ordinance No, LXXXV of 2002 Gaz. Pak. Ext. Pt.I, 25-10- 2002 ' An Ordinance further to amend the Pakistan Penal Code, 1860 and the Code of Criminal Procedure, 1898; ' Whereas it is expedient further to amend the Pakistan Penal Code (Act XLV of 1860) and the Code of Criminal Procedure, 1898 (Act V of 1898) for the purposes hereinafter appearing; ' And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action; ' Now, therefore, in pursuance of Proclamation of Emergency of the fourteenth day of October, 1999, and the Provisional Constitution Order No, 1 of 1999, read with the Provisional Constitution (Amendment) Order No, 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:--
1. Short title and commencement.---(1) This Ordinance may be called the Criminal Law (Amendment) Ordinance, 2002.
(2) It shall come into force at once.
2. Insertion of new section 489F, Act XLV of 1860.---In the Pakistan Penal Code (XLV of 1860), after section 489E, the following new section shall be inserted, namely:-- "489F. Dishonestly issuing a cheque.--- Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque. ".
3. Amendment of section 32, Act V of 1898.---In the Code of Criminal Procedure, 1898 (V of 1898), hereinafter referred to as the Criminal Code, in section 32, in subsection (1),--
(i) in clause (a), for the words "fifteen thousand" the words "forty five thousand" shall be substituted; (ii)in clause (b), for the words "five thousand" the words "fifteen thousand" shall be substituted; and
(iii) in clause (c), for the words "one thousand" the words "three thousand" shall be substituted.
4. Amendment of section 260, Act V of 1898.---In the Criminal Code, in section 260, in subsection (1),--
(i) in clause (c), for the- figure "323" the words brackets, figures and letters "clause (i) of section 337A" shall be substituted; and
(ii) in clauses (d), (e), (f) and (g) each, for the words "two thousand and five hundred rupees" the words "ten thousand rupees" shall be substituted.
5. Amendment of section 261, Act V of 1898.---In the Criminal Code, in section 261, in clause (a), for the figures and commas "323, 334, 336" the figures, letters brackets and commas "337A (i), 337L(2), 337H(2)," shall be substituted.
6. Amendment of section 345, Act V of 1898:---In the Criminal Code, in section 345, in subsection (1), in the table, after the entries relating to offence of "House-Trespass", the following entries shall be inserted, namely:-- "Dishonestly issuing a cheque 489-F the person in whose fpr repayment of loan or favor cheque issued. Fulfillment of an obligation.
7. Amendment of Schedule II, Act V of 1898.--- In the Criminal Code, in Schedule II, after the entries relating to section 489E, the following new entries shall be inserted, namely:-- {{TABLE DATA MISS ARRANGE}} #TBS I 2 #TBE #TBS Code, in Schedule II, after the entries relating to section 489E, the following new entries shall be inserted, namely:- {{TABLE}} #TBE 3 #TBS Ditto #TBE #TBS Ditto #TBE "489-F Dishonestly issuing a cheque for repayment of loan etc. 5 6 7 8 Ditto Compoundable Imprisonment of either description for 3 years or with fine, or with both Magistrate of the first class {{TABLE DATA MISS ARRANGE}}
6. Provisional Constitution Order No, 1 of 1999 was promulgated on 14-10-1999, whereby most of the provisions including that of Article 89 of the Constitution were held in abeyance is reproduced as follows:-- Provisional Constitution Order, 1999 Order No, 1 of 1999 ' No, 2-10/99 Min. I, dated 14th October, 1999.--- In pursuance of Proclamation of the 14th day of October, 1999, and in exercise of all powers enabling him in that behalf, the Chairman Joint Chiefs of Staff Committee and Chief of Army Staff and Chief Executive of the Islamic Republic of Pakistan under the Proclamation of Emergency of 14th day of October, 1999 (hereinafter referred to as the Chief Executive) is pleased to make and promulgate the following Order:--
1. (1) this order may be called Provisional Constitution Order No, 1 of 1999.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. (1) Notwithstanding the abeyance of the provisions of the Constitution of Islamic Republic of Pakistan, hereinafter referred to as the Constitution of Pakistan shall, subject to this Order and any other Orders made by the Chief Executive, be governed, as nearly as may be, in accordance with the Constitution.
(2) Subject as aforesaid, all Courts in existence immediately before the commencement of the, Order shall continue to function and to exercise their respective powers and jurisdiction: ' Provided that the Supreme Court or High Courts and any other Court shall not have the powers to make any order against the Chief Executive or any person exercising powers or jurisdiction under his authority.
(3) The Fundamental Rights conferred by Chapter I of Part II of the Constitution, not in conflict with the proclamation of Emergency or any Order made thereunder from time to time shall continue to be in force.
3. (1)The President shall act on, and in accordance with the advice of the Chief Executive.
(2) the Governor of a Province shall act on, and in accordance with the instructions of the Chief Executive.
4. (1) No Court, Tribunal or other authority shall call or permit to be called in question the Proclamation of Emergency of 14th day of October, 1999 or any order made in pursuance thereof.
(2) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or Tribunal against the Chief Executive or any authority designated by the Chief Executive.
5. Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the Chief Executive all laws other than the Constitution shall continue in force until altered, amended or repealed by the Chief Executi re or any authority designated by him.
6. The Proclamation of Emergency issued on 28th day of May, 1998, shall continue but subject to the provisions of Proclamation of Emergency dated 14th day of October, 1999 and this Provisional Constitution Order and any other Order made thereunder.
7. All persons who, immediately before the commencement of this Order, were in the service of Pakistan as defined in Article 260 of the Constitution and those persons who immediately before such commencement were in office as Judge of the Supreme Court, the Federal Shariat Court or a High Court or Auditor General or Ombudsman and Chief Ehtesab Commissioner, shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any.
7. Through Provisional Constitution (Amendment) Order No, 9 of 1999, Article 5-A was inserted after Article 5 in the Provisional Constitution Order No, 1 of 1999. The Provisions of the afore-noted Article (Article 5-A) are very much relevant, thus, Order 9 of 1999 is being reproduced hereunder:-- The Provisional Constitution (Amendment) Order, 1999 Order No, 9 of 1999 ' No, 2-10/99-Min.I.--- In pursuance of the Proclamation of the Fourteenth day of October, 1999, and the Provisional Constitution Order No, 1 of 1999 as amended and in exercise of all other powers enabling him in that behalf, the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the following Order:---
1. (1) This Order may be called the Provisional Constitution (Amendment) Order No, 9 of 1999.
(2) It shall come into force at once and shall be deemed to have taken effect on and from the Fourteenth day of October, 1999.
2. In Article 5 of the Provisional Constitution Order No, 1 of 1999 after the words "the Constitution" and before the words "shall continue", in line 3, the words "all Ordinances," Orders Rules, Bye-Laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan whether made by the President or the Governor of a Province", shall be inserted and shall be deemed to have always been so inserted.
3. After Article 5 in the Provisional Constitution Order No, 1 of 1999 of the Chief Executive the following shall be inserted and shall be deemed to have always been inserted: "5A(1). An Ordinance promulgated by the President or by the Governor of the Province shall not be subject to the limitation as to its duration prescribed in the Constitution.
(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President or by the Governor which was in force immediately before the commencement of the Proclamation Order of Chief Executive of the Fourteenth day of October, 1999."
4. Subject to the Proclamation Order of the Chief Executive of the Fourteenth day of October, 1999 and the provisions of the Provisional Constitution Order No, 1 of 1999 as amended, the President of the Islamic Republic of Pakistan on the advice of the Chief Executive, and the Governor of the Province on instructions of the Chief Executive, may issue and promulgate Ordinances which shall not be subject to the limitation as to their duration prescribed in the Constitution.
8. A perusal of the above noted provisions of law make it manifest that the President had not promulgated the Ordinance in exercise of his powers under Article 89 of the Constitution rather it was in exercise of his powers under the Provisional Constitution Order No, 1 of 1999 read with Provisional Constitution Order No, 9 of 1999. Similarly a perusal of Article 5-A(1) of the Order No, 9 of 1999 clearly lays down that the Ordinance promulgated by the President was not subject to limitation as to its duration prescribed in Constitution. Thus, it cannot be argued that since the Ordinance was never placed before the National Assembly within the period of four months of its promulgation, it had lapsed on account of time framework provided under Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973. The Legal Framework Order, 2002, was promulgated on 21-8-2002. It amended 29/30 provisions of the Constitution but revival of the Constitution was regulated by Article 4 of the Legal Framework Order, 2002. The provisions of the Constitution relating to Article 89 were revived on 16-11-2002 through Notification published in the official Gazette on the same date. However, the legislation made between 12-10-1999 to 21-8-2002 was saved through Article 270-AA(2) of the Legal Framework Order, 2002, which reads as under:--
(2) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President's Orders Ordinances, Chief Executive's Orders enactments, notifications, rules, orders bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever.
9. On 31-12-2003 Act No, III of 2002 Constitution (Seventeenth Amendment) Act was promulgated and by Act of Parliament all laws made between 12-10-1999 to 31-12-2003 were validated. Article 270-AA of Act No, III is being reproduced:-- "270-AA. Validation and affirmation of laws etc.---(1) The Proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders Ordinances, Chief Executive's Orders including the Provisional Constitution Order No, 1 of 1999, the Oath of Office (Judges) Order, 2000 (No,1 of 2000), Chief Executive's Order No, 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No, 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No, 29 of 2002), the Legal Farmework (Second Amendment) Order, 2002 (Chief Executive's Order No, 32 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), having been duly made are accordingly affirmed, adopted and declared to have been validly made by the competent Authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever.
(2) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twelfth day of October, one thousand nine hundred and ninety-nine, and the date on which this Article comes into force (both days inclusive), in exercise of the powers derived from any Proclamation, President's Orders Ordinances, Chief Executive's Orders enactments, including amendments in the Constitution, notifications, rules, orders bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever.
(3) All Proclamations, President's Orders Ordinances, Chief Executive's Orders laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority.
' Explanation.---In this clause, "competent authority" means,--
(a) in respect of President's Orders Ordinances, Chief Executive's Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(4) No suit, prosecution or other legal proceedings including writ petitions, shall lie in any Court or forum against any authority or any person, for or on account of or in respect of any order made, proceedings taken or act done whether in the exercise or purported exercise of the powers referred to in clause (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(5) For the purposes of clauses (1), (2) and (4), all orders made, proceedings taken, appointments made, including secondments and deputations, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby."
10. The upshot of the whole discussion is that the provisions of section 489-F, P.P.C. Introduced through Ordinance. No, LXXXV are alive and in force. I am fortified in my view by placing reliance on the judgment passed by the learned Division Bench of this Court dated 12-5-2003 in the case titled Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah.
593.
11. The view expressed by the learned Judge in Chamber in the judgment passed in Writ Petition No, 1719 of 2003 is different from the one taken by the learned Division Bench of this Court in the case of Ch. Zulfiqar Ali (supra) followed by me) but I may observe with profound respect that the learned Judge in Chamber might have not been properly assisted in the matter as most of the considerations mentioned by me above were never presented before the Honourable Judge in that case for consideration. The learned Judge in Chamber was not either assisted by the learned A.A.- G. Or by the learned counsel for the complainant as the judgment was passed at motion stage and the above referred judgment of the learned Division Bench was not placed before his Lordship.
12. To conclude, I hold that the law declared by the learned Division Bench of this Court in Ch. Zulfiqar Ali's case (supra) is applicable in this case. Resultantly, this writ petition is allowed.
Impugned order, dated 28-4-2004 passed by the learned Additional Sessions Judge, Rahim Yar Khan, is set aside and is declared to be without lawful authority and of no legal effect. The application of the F petitioner under section 22-A, Cr.P.C. Would be deemed to be pending before the learned Additional Sessions Judge, who would decided the same, after hearing the parties, in accordance with the observations made by this Court and according to law and merits of the case.