The petitioner has filed this Writ Petition No, 3465/05 for quashment of FIR No, 555/04 dated 3.9.2004, under Sections 489-F and 506 PPC at P.S. Manga Mandi, District Lahore. The petitioner has called in question registration of FIR No, 555/04 mainly on the ground that Section 489-F PPC is not a valid piece of legislation. Another Writ Petition No, 7261/05 is also filed for quashment of FIR No, 60/05 dated 18.1.2005 under Section 489-F PPC registered at P.S. North Cantt., Lahore on the same ground. Both these writ petitions are being decided through this single order as both relate to the same question of law.
2. According to the learned counsel for the petitioners Section 489-F PPC was inserted in the Pakistan Penal ,Code by Criminal Law Ordinance LXXXV of 2002. The said Ordinance was not placed before the National Assembly, therefore,. after expiry of four months period, as provided under Article 89 of the Constitution, it ceased to be a law. Therefore, according to them, registration of FIRs under Section 489-F PPC is void ab initio. They have placed reliance on KLR 2005 Cr.C. 39, Mian Hussain Ahmad Hyder us. SHO and others.
3. According to the said judgment, the legislative instruments like Ordinances, Orders, etc., were saved under Article 270-AA introduced in the Constitution by the Legal Framework Order of 21.8.2002, but Criminal Law Amendment Ordinance (LXXXV of 2002) -was not in existence prior to 21.8.2002. According to his lordship, Criminal Law (Amendment) Ordinance, 2002 was enforced from 25.10.2002 after enforcement of the Legal Framework Order or Article 270-AA, therefore, Criminal Law (Amendment) Ordinance (LXXXV of 2002) or Section 489-F PPC was not saved by the Legal Framework Order. Likewise, the Ordinance by which Section 489-F PPC was inserted needed to be placed before the National Assembly to make the same an act of the parliament or a living law. After General Elections of October, 2002, the National and Provincial Assemblies had come into existence and the Constitution was revived. The said Ordinance was not made an act, therefore, after expiry of four months it ceased to be a valid law. for the purpose of clarity and convenience, the relevant para is reproduced as under: "After expiry of period of four months, the Criminal Law Amendment Ordinance (LXXXV of 2002) has died its natural death. No further Ordinance in continuation of the said Ordinance has been promulgated enforced by the President. After General Election, October, 2002 of the National and Provincial Assemblies and taking of Oath by the members of Legislature, the Constitution of the country has been revived. All proclamations, President's Orders, Ordinances, Chief Executive's Orders, laws, regulations, enactments, Notifications rules, orders or policies enforced immediately before the date on which Article 270-AA of the Constitution comes into force, shall continue in force until altered, repealed or amended by the competent authority: The above said Criminal Law Amendment was not enforced before the date on which Article 270-AA was introduced through the Legal Framework Order, thus, it has no Constitutional and legal protection. Learned counsel for the petitioner when confronted with the above legal position of the case, could not respond neither has been able to advance or produce any other Ordinance in continuance of the Criminal Law Amendment Ordinance (LXXXV of 2002)."
4. The learned Additional Advocate General Punjab submitted that though National Assembly came into existence in November, 2002 and it is also true that the Ordinance No, LXXXV, 2002 was not placed before the National Assembly, however, it was protected under Article 270-AA of the Legal Framework Order.
5. I have heard the learned counsel anxiously. The learned counsel for the petitioners as well as the learned Additional Advocate General Punjab have missed something to refer to arrive at a right conclusion. It is also respectfully stated that my learned brother, Muhammad Akhtar Shabbir, J. was also not properly assisted.
6. Sub-section 5(a) of Provisional Constitution Amendment Order, 1999, also known as Order-9 of 1999 gazetted on the 15th of November, 1999 reads, "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." Therefore, till the enforcement of the Legal Framework Order in August, 2002, all Ordinances issued and promulgated by the President and the Governors were protected by the said Order-9 of 1999. In August, 2002 Legal Framework Order came into existence and Article 270- AA gave validation and affirmation to all the Ordinances issued and promulgated either by the President/Chief Executive of Pakistan or the respective Governors of the four provinces. After the Election 2002, National Assembly, Senate and Provincial Assemblies were elected. The Legal Framework Order was enforced on 21.8.2002 whereby many amendments were made in the Constitution of 1973. But the Constitution itself was not immediately restored.' There is a general impression that with the enforcement of the Legal Framework Order, 2002, the Constitution was also revived from the same date. This elusion has misled to th,e learned counsel for the petitioners, that is why, they believe that Ordinance LXXXV, 2002 is subject to the provisions of Article 89 or in other words that the Ordinances should have been placed before the Parliament to make it an act.
Had Article -89 or its provisions been operative on the 25th of October, 2002, the day Ordinance LXXXV was introduced, the arguments of the learned counsel for the petitioners would have correct.
The judgment, relied upon by the learned counsel for the petitioners, is also based on interpretation of provisions of Article 89 of the Constitution. As the learned Court also assumed revival of Article 89 from 21.8.2002, the day, Legal Framework Order came into force. His Lordship held as under: "This Ordinance was enforced by the President of Pakistan in exercise of the powers conferred on him under Article 89 of the Constitution of Pakistan, which envisaged that the President may, except when the National Assembly is in session, if satisfied that the circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may required. Sub-clause (a) of sub-article (2) of Article 89 further provides that (i) before the National Assembly if it (contain provisions dealing with all or any of matters specified in clause (2) of Article 73), and shall stand repealed at the expiration of our months from the promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution (ii) ...The Ordinance will become Act if it has been laid before the National Assembly through a Bill and if passed by the National Assembly and signed by the President."
7. Whereas Article 89 became operative and functional on 16.11.2002 as provided by the Legal Framework Order itself. Article 4 of Legal Framework Order 2002 dated 21.8.2002 reads as under: "The provisions of the Constitution, as amended by the Order and by such other Orders as may be promulgated hereinafter, shall stand revived on such day as the Chief executive may, by Notification in the official Gazette, appoint; and different days may be so appointed in respect of different provisions."
In pursuance of the provisions of Article 4 of the Legal Framework Order, 2002, another instrument known as Legal Framework Order 2002 (date of coming into force of provisions of Constitution)
Gazette of Pakistan . Extraordinaiy, Part-II 16.11.2002, SRO 799(1)/2002 dated 15.11.2002 was issued. It reads as under: "In exercise of the power conferred upon him by Ordinance of 2002, (Chief Executive's Order 24, 2002) and all other powers enabling him in that behalf, the Chief Executive of the Islamic Republic of Pakistan is pleased to appoint the 16th day of November, 2002 ;to be the day on which the following provisions of the Constitution as amended by the said Order shall come into force; Preamble: Articles 1 to 58 (both inclusive), Article 64 to 100 (both inclusive), Articles 139 to 231 (both inclusive), Articles 240 to 280 (both inclusive) annexes and schedules to the Constitution."
8. The above reading will clarify that Article 64 to 100 cover Article "89" which was revived on 16.11.2002, therefore, on 25th October, 2002 when Ordinance LXXXV of 2002 whereby Section 489-F PPC was inserted, Article 89 and its operation was still suspended and time limitation of four months for the validity of any Ordinance issued by the President/Chief Executive was not applicable and relevant. Furthermore, Ordinance LXXV of 2002 was issued by the President/Chief Executive under P.C.O. No, 1 of 1999 read with P.C.O. (Amendment) Order 9 of 1999 and not under Article 89 of the Constitution. Please read preamble of Ordinance (LXXXV of 2002).
9. Section 489-F PPC or Ordinance LXXXV, 2002 would remain protected by Article 5(1) of Order (9 of 1999) dated 15.11.1999 and by Constitution (17th Amendment) Act, 2003 which was gazetted on 31.12.2003. Under the said Act, Constitution was further amended. Likewise, Article 270-AA was also 'further amended. According to Article 270-AA of the 17th Amendment Act, the proclamation of emergency of. the 14th of October, 1999 and all President Orders including all other laws made between the 12th day of October; 1999 and the date on which this Article comes into force (31.12.2003) are accordingly affirmed, adopted and declared to have been validly made by the competent authority notwithstanding anything contained in the Constitution.
10.Even otherwise, the consistent view of the Superior Courts of the country is that law should be saved rather than destroyed and Courts must lean in favour of upholding the Constitutionality of the legislation, 2000 SCM R 1956, Dr. Tariq Nawaz vs. Government of Pakistan.
11.In view of the above discussion and Constitutional position, both Writ Petition No, 3465/05 (Major Retd. Ijaz Ahmad Bhatti vs. State) and Writ Petition No, 7261/2005 (Qureshi Abdur Rauf vs. DPO, etc.) are dismissed, the Section 489-F PPC is declared as valid and a living law.