AKHTAR ZAMAN MALGHANI, J.---The Sessions Judge, Quetta has sent reference in respect of two cases. State v. Changez Khan and State v. Agha Muhammad which were pending trial under Criminal Law: (Special Provisions) Ordinance, II of 1968 for guidance and appropriate order as after the abolishment of posts of Deputy Commissioners and Assistant Commissioner's, no forum was available to try these cases. Similarly C.Ps: Nos.587 of 2001 and 614 of 2001 have been tiled on the subject.
2. This Court vide its judgment reported in PLD 1991 Quetta 7 declared the Criminal Law (Special Provisions) Ordinance, II of 1968 as a "void Law" being inconsistent with Articles 25, 2-A and 176(3) of the Constitution of Islamic Republic of Pakistan, 1973. The said judgment was challenged before the Hon'ble Supreme Court of Pakistan by the Government Of Balochistan and the Hon'ble Apex Court maintained the dictum laid down by this Court and declared the Ordinance II of 1968 as void being in conflict with the Articles Of Constitution and the Government was directed:- "(i) to issue necessary notification in terms of subsection (2) of section 1 of Ordinance XII of 1972 for enforcing the aforesaid Ordinance by creating posts of and separately appointment Judicial Magistrates and Executive Magistrates and to place Judicial Magistrate under the administrative control of the High Court within a period of three months; and (ii) to take necessary steps as required by the Constitution to amend and implement laws and rules relating to Court, Judiciary and its Officers and lower staff to bring them in conformity with.
Articles 9, 25, 175 and 203 of the Constitution, within a period of six months; ' Such direction resulted in issuance of Notification No,US (JUDL) 4 (5)/93-6269-6311 dated 10th November, 1993 which reads as under:-- ' In exercise of the powers conferred by subsection (3) of section I of Criminal Law (Special Provisions) Ordinance, 1968 (II of 1968), the Government of Balochistan is pleased to cease the application of the provisions of said Ordinance and shall be deemed to have been repealed wherever applicable, with effect from 10th November, 1993.
' The affects and implications of the above said Notification came under consideration before this Court in C.P.No,17/1994 and this Court laid down following categories for regulating the pending cases:-- "(i) Matter where on appointment of Tribunal, recording of evidence had commenced before 10th October, 1993, shall be decided by the Tribunal/Deputy Commissioner, and appeals and revisions lie in the hierarchy of forums under 'The Ordinance.
(ii) Matter pending adjudication by way of appeals or revisions shall be finalized unaffected in accordance, with provisions of 'The Ordinance.
(iii) Matter, irrespective, when offence was committed where cognizance has not been taken or where colourable cognizance is taken but evidence has not commenced by or before 10th October, 1993, shall be dealt with and tried under normal law, by Courts functioning under Criminal Procedure Code, and
(iv) Matters which have been finally decided under 'The Ordinance' and transactions are past and closed by or before 10th October, 1993 shall not be opened to any inspection, merely because Ordinance II of 1968 has been declared as void law."
' Thus the pending cases falling under category (1) were being tried by the Executive Magistrates and the Deputy Commissioners of respective districts when on 19th July, 2001 in the meeting of Chief Executive's Committee on Devolution (CECD) the following decision was made:-- "(i) The Offices of Deputy Commissioner, District Magistrates and Sub-Divisional Magistrates be abolished on 14th August, 2001.
(ii) Small Claims and Minor Offences Courts be established in each Tehsil/Town to try cases with local and Special Laws added to their jurisdiction, as soon as possible.
(iii) Trial functions of the Executive Magistracy be phased out as follows with effect from 14th August, 2001, 1st Phase: trial functions be entrusted to the requisite number of Executive Magistrates on full time basis but subordinated to the District and Sessions Judges. 2nd Phase. As soon as Small Claims and Minor Offences Courts are fully functional, all trial functions be transferred to the Judiciary.
(iv) Executive Magistrates with appropriate experience/legal qualifications be transferred to the Judiciary for appointment as Judicial Magistrates.
3. In consequence of the above decisions the system of Deputy Commissioners and Executive Magistrates was completely abolished whereas under the provisions of Criminal Law (Special Provisions) Ordinance II of 1968 the Tribunal was to be presided by Assistant Commissioner or Extra-Assistant Commissioner or Tehsildar as Chairman and the Deputy Commissioner was the authority to give final verdict. After repeal the Ordinance H of 1968 has become a dead statute as such no amendment could be brought in it for substituting the word "Deputy Commissioner".
Therefore, in present system it is not possible to continue the proceedings under the Ordinance II of 1968.
4. It may be observed that Criminal Law (Special Provisions) Ordinance (II of 1968) in its nature was a procedural law except a few provisions such as section 12 under which the punishment which could have been awarded by the Deputy Commissioner was maximum up to 14 years. No person has vested right in a procedural law and he cannot claim as of right to be dealt in accordance with the procedure of a repealed law. Therefore, so far the procedure of trial envisaged in the repealed Ordinance II of 1968 is concerned, the same could not be pressed into service as of right and the persons who were being tried under the provisions of Ordinance H of 1968, could be competently tried by the Courts set up under Criminal Procedure Code, however, so far the imposition of sentence and punishment is concerned, it may be seen that under the General Clauses Act the repeal shall not effect any right, privilege, obligation or liability acquired, accrued or incurred under the statute so repealed, therefore, notwithstanding the repeal of Criminal Law (Special Provisions)
Ordinance (II of 1968) and abolishment of office of Deputy Commissioners and Assistant Commissioners/Extra Assistant Commissioners, the accused persons who were being tried under the said Ordinance, would be liable to sentences on being found guilty, which were provided under the Ordinance II of 1968. As already observed under section 12 the maximum punishment which could have been passed under the Ordinance H of 1968 by the Deputy Commissioner was 14 years as such the accused persons in the instant cases, if found guilty, could be awarded sentence maximum up to 14 years notwithstanding the offences with which they are charged, carrying sentence of more than 14 years and death sentence.
5. Thus under the new situation, the cases which were pending before the Tribunal or Deputy Commissioners would be triable under the normal law by. The Courts functioning under the Criminal Procedure Code but subject to above observation with regard to punishment.
6. In C.P.No,614 of 2001 the petitioner has also made respondents Nos.4 to 10 party who were tried under the Criminal Law (Special Provisions) Ordinance (II of 1968) and convicted. They have already undergone the sentences and also paid the amount of fine which was to be paid to the complainant in case of realization. The attorney of the petitioner, who was present at the time of hearing, admitted the receipt of such amount. The respondents Nos. 4 to 10 have not challenged their conviction order and accepted the guilt. Likewise the petitioner/complainant also did not further challenge the order of conviction after dismissal of revision petition of respondents by Member Board of Revenue, as such; same has become past and closed transaction as held in C.P.
No,17 of 1994. The record reveals that only Juma Khan challenged his conviction order before this Court by way of filing Constitution Petition No,337 of 1998, which was eventually accepted and after setting aside the conviction order the matter was remanded to the Tribunal. In the judgment it has been specifically mentioned that "after dismissal of petition by Member Board of Revenue remaining convicts except petitioner (Juma Khan) conceded to the judgments whereas instant petition (Petition No,337 of 1998) was filed by the petitioner to challenge the impugned order operating against him". It is also evident from the judgment passed in C.P. No,337 of 1998 that the respondents Nos. 4 to 10 were not party to said petition and this Court remanded the case to the extent of petitioner i,e, Juma Khan. Thus they were unnecessarily impleaded in the petition and dragged into litigation. When the learned counsel was confronted with this situation, he could not satisfactorily answer and merely stated that the respondents Nos. 4 to 10 were made party as the judgments of Deputy Commissioner, Commissioner and Member Board of Revenue were set aside by this Court and matter was remanded. As already observed the remand order Was only to the extent of respondent No,3 Juma Khan who had challenged his conviction order through the said petition, as such; the Petition No,614 of 2001 is dismissed to the extent of respondents Nos.4 to 10, with cost i,e, pleader fee (Rs,25,000).
Upshot of the above discussion is that the cases pending under the Criminal Law (Special Provisions) Ordinance II of 1968 will be tried under the normal law by the Courts functioning under Criminal Procedure Code subject to observation made hereinabove with regard to the sentence to the awarded, in case the accused are found guilty.
' Before parting with judgment, we would like to observe that the cases which are subject matter of reference and constitution petitions, are pending since long, therefore, the concerned Courts are directed to decide these cases on top priority basis as far as possible within six months.
' The reference and constitution petitions arc disposed of in the light of observation made hereinabove.
' The judicial records of the two cases i,e, State v. Agha Muhammad and State v. Changez Khan be retransmitted to Sessions Judge, Quetta along with copy of this judgment.