1. ' By these writ petitions filed by all the four brothers who had once been holders of Representative Offices and who face now proceedings taken against them by the Special Courts and Disqualification Tribunals respectively on the complaints/references made by the Government through their authorised employees, the extraordinary jurisdiction of this Court is invoked under section 44 of the Interim Constitution of 1974 to declare that proceedings being taken against them by the Special Courts and Disqualification Tribunal are without lawful authority and of no legal effect. Ch. Noor Hussain petitioner seeks this relief on the following grounds and so also his brothers on the same grounds in addition to some other grounds to be stated thereafter. Thus these petitions shall be disposed of together by a single judgment
(1) It is alleged by the petitioners that the creation of Disqualification Tribunals and that of the Special Courts by means of Ordinances had been only for a limited period of 4 months and that after the expiry of the prescribed period, no continuance could legally and constitutionally be given to them as well as to the proceedings taken thereof against them under the Ordinances so expired, by means of fresh Ordinances subsequently made by the President.
(2) That the promulgation of the Ordinance is without the sanction of the Constitution and as such is ultra vires of the President.
(3) That the Ordinances under which the proceedings are being taken against the petitioners were not made by a competent authority as the same was not brought into being in accordance with the pro. Visions of the Constitution, that is to say that 'its creation is ultra vires of the Constitution and so the exercise of the powers of the President is done by an incompetent authority for its being unlawful and unconstitutional.
(4) That the Ordinances relating to the. Special Courts and Disqualification Tribunals in question are closely interlinked and that the proceedings before which consisting of identical charges are abuse of the process of law and thus are hit by the principle of double jeopardy. And that Ordinances made under section 41 of the Interim Constitution Act, 1974 cannot touch the liability of an Advisor of the Council (now he is an Ex-Advisor. How so ? Not disclosed).
2. ' Additionally, it is submitted by Ch. Abdullah and Ch. Khadim Hussain petitioners that almost for all the offences for which they are being tried by respondent No, I, a case under sections 406/409, 419/420, 467/468 and 109, P.C. Has already been pending against them in the Court of Anti- Corruption Judge, Mirpur. They are being jointly tried there alongwith some other co-accused. As proceedings against them for the commission of the alleged offences were originally commenced in the Court of Anti-Corruption Judge Mirpur, who as such presides over a Court specially constituted, all subsequent proceedings must cease to continue before Special Courts and Disqualification Tribunals located at Muzaffarabad. Ch. Abdullah petitioner is also being tried for offences under the provisions of Election Ordinance which according to him cannot be looked into by the Special Court after the lapse of a period of 7 years.
3. ' The learned Counsel for the petitioners was heard and due consideration was given to the matter brought forth before the Court. The main argument of the learned counsel for the petitioners is that after the expiration of the Ordinances under which the Special Courts and Disqualification Tribunals were constituted as such, they lose their existence that is to say, they cease to exist and so also the proceedings taken thereof stand terminated. According to horn, by promulgation of fresh Ordinances, no continuance could legally be allowed to the existence of the Courts and Disqualification Tribunals and the proceedings taken by them thereof under the said Ordinances.
4. To support his contention, he has cited PLD 1950 Lah. 481, PLD 1955 Lah. 564, PLD 1979 Lah. 79 and PLD 1958 SC 35. A reference to Binclra's book 4th Edition at page 635 was also made. By citation of these authorities, he has stressed to convince the Court that as the Ordinances were of a temporary nature; they died their natural death on expiration of the prescribed period and so no protection can be given to preserve the establishment of the Courts and Disqualification Tribunals, and proceedings taken thereof under the Ordinances expired by re-enactment of fresh Ordinances unless there is a saving clause such as to preserve the establishment of the Courts, etc. And the proceedings taken thereof. As this was not done by the law-making authority, the proceedings before the Disqualification Tribunals and. Special Courts against the petitioners are without lawful authority, and by the expiration or the time limit prescribed for the force and effect of the Ordinances, they have become non-existent and so there stands nothing to be extended by fresh Ordinances.
5. ' All the concerned people know it very well that at present there is no Assembly in existence on account of dissolution of the same on an intervention of Martial Law Authority ruling in Pakistan : Chief Executive of Pakistan is the Chief Martial Law Administrator of Pakistan who also holds the office of the Chairman of the Azad Jammu .& Kashmir Council. This is called an Act of Azad Jammu & Kashmir, a doing of joint sitting of the Assembly and the Council both. Chief Executive of Pakistan whoever he may be, is included in the words Prime Minister of Pakistan so as to assume the role of the Chairman of the Council. Azad Kashmir Assembly is no longer in existence as indicated above.
6. Chairman of the Council who as is evident from his act, is the appointing authority of the President, is supposed to move in the direction of elections to be held for creation of Assembly and all that is necessary to invoke the provisions of the Constitution as soon as the circumstances allow him to do so.
7. ' In such a situation till a democratic Government of the people is friend as required by the Constitution and a new President is elected accordingly, the existing President appointed by the Chairman of the Council has no alternative but to promulgate Ordinances and to give the same life by process of re-enactment till the purpose of law being framed as such is served. This is in accordance with law or not, we are to determine it accordingly. The appointment of the President is collaterally challenged by these writs so as to hold that for his being an incompetent person to hold-office of President, no Ordinance could legally and constitutionally be promulgated by him.
8. This point is of a very vital importance involving constitutional interpretation for which I am not in a position to refer the same to a larger Bench because none of my colleagues is able to sit with me on the Bench to hear these petitions for the reasons given by the learned Chief Justice while making over these writ petitions to me for the hearing and disposal according to law. His Lordship in his order of making over these writs to me for disposal says thus :- "These are four writ petitions challenging the proceedings taken against petitioner No, 1 in a Disqualification Tribunal as well as in a Special Court simultaneously and proceedings taken against the other two petitioners in a Special Court. The petitioners are real brothers and belong to Mirpur. These cases cannot be heard by Mr. Justice Sardar Said Mohammad Khan because he is presiding over one of these Special Courts which is trying petitioner No,
1. It cannot be heard by Mr. Justice Abdul Majeed Malliek because, apart from also heading. a Special Court, he has been a counsel for some of the petitioners in connected' matters. In keeping with the highest traditions of administration of justice, I should refrain myself from hearing these petitions because, apart from the fact that both myself and the petitioners come from the same town the relations between the petitioners and myself over the past 30 years have sometime been not happy. As justice should not only be done but also seem to be done, I have decided not to hear these cases myself.
9. ' Therefore. These cases are made over to Mr. Justice Sardar Mohammad Sharif Khan for hearing and disposal. To be placed before his Lordship today.
10. ' This very point is already subjudice before the Full Bench of this Court to which I am not a party in writ petitions filed by Sardar Mohammad Ibrahim Khan and some others. As this point is collaterally raised by the counsel for the petitioners in these writ petitions before me, I need not go into it and so was even suggested by counsel himself for the petitioners at the time of arguments to leave this point open to be determined by a Full Bench of this Court already having cognizance of the same.
11. That is the advice properly tendered and that is that.
12. ' In PLD 1958 SC 35 it is reported that a question was raised before the Supreme Court' whether an Ordinance expiring under clause (2) of Article 69 of the Constitution can be reenacted by a fresh Ordinance. But this question was not determined by the learned Judges as the impugned order was found unsustainable on another ground. The leaving of the question so undetermined by the learned Judges shows that it milt not have been free then from difficulty.
2. In PLD 1950 Lah. 481, it was held by the learned Judge that "as a general rule unless there is some special provision to the contrary after a temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. An offence, therefore committed against a temporary Act must be prosecuted and punished before the Act expires and as soon as the Act expires, any proceedings which are taken against a person will ipso facto terminate." But this principle of law is in respect of a temporary Act which stands expired by efflux of time or on happening of a contingency. Nothing with regard to repeal of the Act was said therein by the learned Judge. The expiration of the Act and A repeal of the Act are two different things. This view is supported by a decision of the Lahore High Court wherein the terms "expiry" and "repeal" used by the Legislature were appropriately distinguished. To facilitate the point in issue reference may be made to PLD 1955 Lab. 564 which was also cited by the learned counsel for the petitioners : "Expiry of a statute is not the same as repeal,"
13. The Ordinance promulgated by the President is deemed to be included in the words Act of the Assembly as it has constitutionally the same force and effect as an Act of the Assembly. Section 41 under which an Ordinance is made and promulgated by the President itself provides that as soon as the prescribed period for the life of the Ordinance comes to an end the Ordinance so expired shall stand repealed. Thus in view of the regard of the Ordinance as enacted by the Constitution itself, sections and 24 of the General Clauses Act are very much apt to apply to the Ordinances repealed and re-enacted by the President to meet the situation created by the dissolution of the Assembly. In such a situation for the time being existing in Azad Kashmir as indicated above the doctrine of the law of necessity is also very much attracted. Therefore, the re-enactment of the Ordinance by reproduction of the very text of the Ordinance repealed on or before the expiry of the period prescribed as was done in these cases in absence of Assembly was very much necessitated to eive continuance to the establishment of the Courts and Disqualification Tribunals and the legal proceedings taken thereunder against the persons proceeded against.
14. ' In PLD 1979 Lah. 79, the learned Judges remarked that : "No proceedings can be pursued under a repealed Act unless saved by a Special Provision.- ' It was so said by them in a case where repeal of section 288, Cr. P. C. Alone was in question. At the time when the accused was being tried, section 288, Cr. P. C. Was not existing on the statute book and so statement of a witness recorded during a pre-trial enquiry could not legally be brought on record by the trial Court as there was no provision of law existing in the Cr. P. C. This was a procedural matter and so could not be saved by any of the provisions contained in the General Clauses Act. This case is quite distinguishable from the matter in issue in the instant cases. The Ordinance promulgated by the President gets expired after the period of 4 months from the day of its promulgation but at the same time it also stands repealed. Thus the instant cases are not the cases of expiration alone but of repeal as well. A. Provision of repeal in the Constitution itself with regard to the Ordinances is made by the legislature. The learned counsel for the petitioner nowhere stated in the petitions that the impugned Ordinances stood repealed because by indicating so, the assertion of expiration would have lost its weight. The wording of section 41 of the Constitution is to be read as a whole. The repeal of the Ordinances attracts the provisions of General Clauses Act which preserves the continuance of the legal proceedings, etc. Taken under the repealed Ordinances.
15. ' Then, the wholesale 'perusal of the relevant portions of the book by "13indra" on interpretation of statutes cited by the learned counsel for the petitioners may even lead us to a conclusion in favour of the lawmaking 'authority while drawing distinction between the repeal and expiration as pointed out earlier.
16. ' Repetition of Ordinances of the same substance is a clear intention on the part of the law-making authority to continue law of purging by promulgation of Ordinances till it is 'finally settled. The authorities cited by the learned counsel for the petitioners deal with cases of a limited scope having nothing to do with the re-enactment of the Ordinances as being done by the President here to cope with the situation created this wav or that way, under the shade of law of necessity as in the instant cases. Therefore, the main argument of the learned counsel for the petitioners on which the whole edifice was tried to be built has no foundation to lay and as such the promulgation of the Original Ordinances and the subsequent re-enacted Ordinances is found in accordance with law and Constitution. Consequently the establishment of the Special Courts and Disqualification Tribunals under the impugned Ordinances stands intact by all means of law and Constitution. It was then vehemently contended by the learned counsel for the petitioners that no proceedings could simultaneously be taken before Special Courts as well as Disqualification Tribunals against his clients as the allegations shown before them are of criminal nature. I have gone through the charges and the relevant law on the point in issue was, also perused. After doing so, I find that Disqualification Tribunal is not going to enquire into the criminal misconduct of the petitioners but a bare misconduct as defined by the law maker in the Ordinances concerned. The law contained in the impugned Ordinances empowers the Disqualification Tribunals and the Special Courts to proceed with the cases as required thereunder and wherein the principle of double jeopardy does not appear to me to prevail. Moreover, the proceedings taken by the Disqualification Tribunals are distinct from the proceedings before the Special Courts. The Disqualification Tribunal is to deal with the cases in accordance with the provisions of C. P. C. In certain matter. Thus the charges to be proved before the Disqualification Tribunals do not fall within the purview of a Criminal Tribunal. In view of this the charges of misconduct to be proved before the Disqualification Tribunal may not amount to any offence but the charges for which the petitioners are facing trial before the Special Courts. Allegedly, constitute certain offences. No doubt there are some of the offences which are not only simultaneously tried by Special Judge Anti-Corruption but also by the Special Courts. The impugned Special Courts have the exclusive 'jurisdiction to try the scheduled offences, The petitioners have every right to raise the question of double jeopardy in respect of the offences before the Courts concerned which are very well competent to dispose of questioned matters in respect of the trial etc. Of some of the offences by two different Courts at a time.
17. ' That being so I decline to exercise the discretionary powers vested in the High Court under section 44 of the Interim Constitution Act, 1974 and dismiss the writ petitions in limine.
18. ' A certificate of fitness for filing an appeal to the Supreme Court is hereby granted.