' JAWWAD S. KHAWAJA, J.--- The present case highlights a serious issue viz. The non-availability, whether on an official website or in hard form, of the laws of Pakistan in the form of a consolidated code. Making the applicable laws readily available to the public is a responsibility of the state about which there can be no two opinions. Discharging this responsibility is one of the primary functions of the Federal and Provincial Law Departments, a function which they did perform in the past, as we will discuss later in this opinion. Yet, now, it appears as if through deliberate effort the law has been shrouded in a cloak of secrecy. Regardless of whether this state of affairs has arisen on account of a glaring omission or a deliberate act, it has serious consequences for state governance and for judicial adjudication of cases. It adversely effects the rights of the people of Pakistan and contributes towards the perpetuation and spread of lawlessness in the country.
2. Initially Suo Moto Case (`SMC') No.4 of 2004, SMC Nos. 1, 2, 6 & 7 of 2007 and SMC No. 17 of 2007 were taken up when it was noticed that a number of law books privately published and cited in court contained glaring mistakes committed by authors and publishers in the text of the statutes.
Even bare Acts of statutes were erroneously printed. These cases received the attention of the Court and notices were issued to the Bar Councils as well as to certain authors and publishers of books containing errors. The aforesaid suo moto cases were disposed of on 9.5.2013 in the following terms:- "Iftikhar Muhammad Chaudhry, W.- In these cases, notices have been served in respect of 'the glaring mistakes committed by the authors and publishers in bare acts and law books. It is pointed out that the matter has already been referred to the respective Bar Councils to look into the matter.
Since the matter relates to the printing of the law books, etc. Therefore, the respective Bar Councils within their permissible jurisdiction under the Legal Practitioners and Bar Council Act, 1972,, shall be free to take action if such material is provided to them, therefore, the above-said petitions are disposed of."
3. It is apparent from the discussion which follows that the Bar Councils or even the Federal and Provincial Governments did not attend to the important legal issues mentioned above because no action whatsoever appears to have been taken since the disposal of the above noted cases on 9.5.2013. It was on 25.2.2014 while hearing a case (CP No. 102 of 2014) it came to our notice that a vital omission had been made in section 23 of the Contract Act published by Al Qanun Publishers and authored by Mr. M. Mehmood Advocate. We may add that the potential financial impact of this case and an erroneous adjudication based on the aforesaid publication would have run into billions of rupees.
4. We, therefore, directed the Librarian of this court to examine the issue and submit a report. He has done so, whereafter the case was ordered to be put up in court. It was pointed out by the Court Librarian that the issue of gross negligence in the publication of law books had been dealt with in the earlier cases noted above. Notices, therefore, were issued to the various Bar Councils and also to the Federal and provincial governments. When the governments entered appearance, it was disconcerting to note that they had not undertaken any measures to address the dire situation and nor had the Bar Councils done so despite the order dated 9.5.2013, reproduced above. We had in particular noted that the Bar Councils were supposed to look into this matter which seriously undermines the administration of justice and results potentially in immense loss to litigants. On 24.10.2014, therefore, we once again issued notices to the five Bar Councils as well as the Federal and provincial law departments. On 19.11.2014, we also asked the learned Attorney General to inform us if there is any effective mechanism or legislation in place to ensure that the publication of law books is properly regulated. He was also asked to ascertain if there was any law which would impose a civil and/or criminal liability on publishers, authors etc. Responsible for publishing law books with such errors. It appears that there is no law on the statute book because none was cited before us. The learned Attorney General, however, stated that according to his information the entire statute book of the Country in the form of the Pakistan Code was available on the website of the law department, but on 19.11.2014 he sought time to confirm if this indeed was so.
5. Even today and as reflected in the orders passed on the previous dates of hearing, it appears that there is in effect, no serious interest evinced in the matter by the concerned authorities. Neither the Bar Councils (who have since the past few dates of hearing stopped appearing in this case) nor the Federal or provincial governments have shown any seriousness of intent in addressing what clearly is a major issue. We find it to be quite extraordinary that there is in fact no official publication whether in hard form or on the internet which can provide an accurate and error free version of the laws of Pakistan in one easily accessible compendium. As such there are no easy and user-friendly means, available to the people of Pakistan to enable them to find out what the statute book contains. The abysmal state of affairs was amply demonstrated in a few hearings of this case, firstly, when it was found out by our research staff sitting in Court that when they tried to access the website of the Ministry of Law it was unavailable because of shutdown; secondly, when the Pakistan Constitution was not easily accessible on the website of the Ministry of Law, it could conveniently be accessed through the website of the Library of the United States Congress in Washington. Even today when our research staff attempted to access the website of the federal Ministry of Law, Justice and Human Rights, although the main page of the website opened, but the link namely "Laws" was not accessible and the caption appeared that "This web page has a redirect loop", but the user was not redirected anywhere nor provided any further information about how to gain access.
6. Furthermore, during the hearing of one of the cases in Court on 27.01.2015 we had observed that different versions were available regarding Section 420 of the Pakistan Penal Code, 1860 being bailble or not. "The Code of Criminal Procedure, 1898" by M. Mahmood (Edition 2005) stated the offence was bailable.,On the other hand the "Code of Criminal Procedure, 'tare Act", by S.A. Abid (Edition 2012) described it as not-bailable. Such glaring errors and mistakes are obviously misleading legal practitioners and judges too and are creating uncertainty in the administration of law. It should be obvious that the non- availability of an easily accessible official version of the Pakistan Code is principally responsible for contributing to this Kafkaesque situation.
7. We are dismayed to note that even the website of the Ministry of Law is grossly inadequate and no effort or initiative has been taken to bring it up to date. It is only when this matter was taken up by this Court and the governments and their law departments were reminded of their duties and obligations that there was some movement to rectify the matter. One fact apparent from the hearings in this case is that the Federal Government had a very effective system for compiling the Pakistan Code till 1966 when the last compendium comprising of 16 volumes of Federal laws was published in a proper and user friendly form containing a chronological as well as alphabetical index of the laws on the federal statute book which included the amendments made from time to time so that any lawyer, judge, researcher or man on the street could ascertain the state of the law applicable in the country. On 8.1.2015, we were informed by our Librarian and later also by the learned DAG, that the last official publication is a book titled "Pakistan Code" which has been published by the Manager of Publication, Government of Pakistan, Karachi in the year 2010. A cursory examination of said book shows that it is not the statute book in the form of a Code and is unhelpful because whilst it has a chronological index of statutes most of these have not been printed in the said book, secondly, there is no alphabetical index as was the norm until the publication of the Pakistan Code in proper format was discontinued after 1966, thirdly, there are no marginal notes or cross referencing of a statute to provisions in another connected statute and, fourthly, there are no foot-notes mentioning the amendments made from time to time Therefore, the said book mentioned by the DAG does not constitute the Pakistan Code. It has not been explained to us why the manner in which the Pakistan Code was published until 1966 was discontinued.
9. The provinces also appeared to be in a similar state of disarray. This was not always so. In Sindh there used to be a publication known as the Sindh Code but the last printing of the Sindh Code occurred in 1956, thereafter and till the present day, there is no compendium of the provincial laws in Sindh in the form of the Sindh Code. In Balochistan, there was a publication by the provincial law ministry which purported to contain the laws of the province last published in 1990, but the said publication is also not helpful as it does not contain an alphabetical index as was done in the Pakistan Code until 1966. In Khyber Pakhtunkhwa we were informed that the provincial code had been published until 1988 and thereafter the laws of 2013 and 2014 had been published in two volumes and that the gap years (1988 to 2013) will be filled by working backwards from 2013. It is not clear whether such publication will contain an alphabetical index, which as stated above is the most effective and utilitarian feature of any statutory compendium. The Punjab province appears to be ahead of the other three provinces and the Federation because it has brought the Punjab Code up to date although the Additional Secretary of the Punjab Law Ministry has acknowledged that the Code contains errors and omissions which are in the process of being rectified.
10. Neither the Provinces nor the Federation have undertaken the exercise of codifying the subordinate legislation made pursuant to rule-making powers given to the respective executives by legislation and nor is there any codification of notifications or other statutory instruments. At present only the Punjab Government appears to have in mind a second phase of its Code which will comprise of subordinate legislation and a third phase which will comprise 14 notifications and statutory orders. The Federation and the Provinces claimed to have the laws of the Federation and Provinces respectively on their websites. We, however, note that what is displayed on the respective websites is not a Code. The Pakistan Code which was modified upto 31st December, 1967 and published by the Manager of Publications, Government of Pakistan provides the template of a Code. It can be very substantially improved and made user friendly by use of the latest technology.
It is clear that none of the online publications mentioned by the Law Officers of the Federation and Provinces can be considered the same as a Code.
11. On 8.1.2015, we were constrained to direct the law secretaries of the Federation and the four provinces to make sure that at least the statute book is made available both in hard form and on the website of the law departments -of the Federation and the four provinces. We had noted in our order of the said date that the situation represented by this case is alarming and could be one of the. Contributory causes of the lawlessness which prevails in the country 'today. It is obvious that where applicable laws are not available, there can be little expectation or likelihood that the law will be abided by.
12. At this juncture, it is important to bear in mind -that copyright in the laws is vested in the governments which have made such laws. This is also reflected in the Rules of Business of the Federal and the provincial governments made under the Constitution. It, however, appears that the books published in print and available for sale in the country are authored and published incorporating the statutes of the federation and the provinces, but without the permission of the concerned government, being the owners of the 'copyright. In view of the distressing situation which is reflected from the above narrative, it is for the governments tto rectify the situation, if necessary, by enforcing their copyrights or by legislation so that publishers of law books can be dealt with and penalized if they publish erroneous books.
13. Here it is also important to emphasize that in ' any civilized system of government, the first and foremost obligation of the government is to make sure that all applicable laws are made easily available to citizens in easily understandable language. It was, therefore, a matter of great concern to us that the laws, whether Federal or Provincial, had not been translated into the national language which is a ;requirement of Article 251 of the Constitution or publicized in provincial/local languages if considered appropriate, in line \with the constitutional provision in Article 28 of the Constitution. Section 78 of the Stamp Act 1899 enacted in the pre-independence period provided that, "every Provincial Government shall make provision for the sale of translations of this Act in the principal vernacular languages of the territories administered by it at a price not exceeding twenty five paisa per copy". If the colonial dispensation could be sensitive to the need for dissemination of laws through inexpensive translations, we do not see why this is not being done post Independence.
14. Because of the inadequacy of the functioning of the Federal and provincial law departments, we gave extensive hearing to this case on 19th, 21st and 22nd of January, 2015. In view of the lack of assistance received by us from the concerned Government functionaries, we were constrained to direct the Federal and provincial law secretaries to appear and to let us know why the laws of the Federation and the provinces had not been made available to the people of Pakistan as was the norm in the Federal Law Ministry till 1966 and in the provinces. There being no explanation forthcoming, the five law secretaries were asked to submit reports setting out targets to be met by the five governments and timelines within which such targets are to be met. Reports were submitted by the governments from which it appears that the governments of Sindh, Balochistan and the Federation are not currently equipped with or in a position to publish whether online or in hard form their respective law codes. As noted earlier, only the Punjab Government appears to have made some progress and has published on the official government website, the statutes applicable in the Province in the form of a Code. The progress and direction of the KPK Government also indicates that a Code of all laws applicable in the Province may become available in the near future.
15. In view of the fact that the five governments were unable to give any satisfactory explanation for their glaring omissions which have far reaching consequences, we directed our own research staff to examine the state of affairs in India, Bangladesh and in the United Kingdom. In India there is a complete chronological and alphabetical index both in English and in Hindi and all laws are available in both the said languages on the internet ('Indian Code' (India Code)
16. Samples from the extracts of the above were printed and paper books of the same were supplied by the Court to the law secretaries of the five governments and their law officers. We are constrained to emphasize that this extensive exercise which had been undertaken by the Court was in fact the responsibility of the governments and only because the governments had failed to fulfill this duty the Court had to expend its own resources for this purpose. We may mention that it did not take long for our young and relatively inexperienced (for this task) researchers to produce their output. Based on the current situation, we are not satisfied that the five Governments will have the willingness and/or the capacity to undertake the relatively simply exercise of preparing the Pakistan Code and the Provincial Codes in the form of one consolidated compendium of laws in hard and in soft form.
17. Therefore, after hearing the Law Officers and the Law Secretaries of the five Governments and taking into account the reports which have been submitted on behalf of the respective Governments in the present matter, we direct and order as under:---
(i) The complete Pakistan Code the Code') shall be compiled and displayed on the website of the Federal Law Ministry.
(ii) Bound hard copies of the Code shall be made available for sale throughout the country so as to be easily accessible to the public, at inexpensive prices.
(iii) An alphabetical consolidated word index containing the words in the title of a statute and words defined in the provisions of a statute containing definitions shall be included in the alphabetical index.
(iv) As a sample of the required consolidated word index, the consolidated index appearing at the end of volume 16 of the Pakistan Code published by the Manager of Publications, Government of Pakistan, Karachi (1968) may be used as a rudimentary sample. Improvements in the sample must be made by use of technology and by benefiting from the Codes published by common law jurisdictions in the subcontinent and elsewhere.
(v) The Code shall include in foot-notes, particulars of amendments made from time to time in the various statutes published in the Code.
(vi) Marginal notes shall be made to cross reference the provisions of one statute with related provisions in another statute. The sample of the Pakistan Code published by the Manager of Publications (1968) may be adapted and improved.
(vii) Translation into the national language shall be completed and displayed in easily understandable form at inexpensive prices.
(viii) Translations of the Code into provincial/vernacular languages where deemed appropriate by provinces shall be made by the Provinces.
(ix) Subordinate legislation in the form of rules and regulations framed under statutory powers shall be compiled in the form of a Code. This shall also contain a consolidated word index.
(x) A compendium of all statutory orders and notifications shall be compiled and shall be made available to the public at inexpensive prices.
(xi) A legislative and/or administrative regime shall be prepared with effective enforcement and prosecution mechanisms to ensure that law publications for sale to the public are error free and, where applicable, have the permission of the Government owning copyrighted material.
(xii) The Provinces shall follow the same pattern of publication of soft and hard copies of laws, rules and notifications as has been ordered for the Federation.
18. The matter shall now be listed for hearing on 17.02.2015 on which date the five Governments shall come prepared so that the Court can settle timelines within which each of the directives and orders in the preceding paragraph shall be complied with. A copy of this judgment shall be sent to the five Governments through their Chief Executives and Law Secretaries. A copy shall also be sent to the Secretary of the Law and Justice Commission (LJCP) with notice for 17.2.2015 so that within the mandate of the LJCP under the Law Commission Ordinance, 1979, it can monitor the work being done by the five Governments and ensure that the quality and usefulness of the publications to be made as ordered above, are best suited for the public need. {{URDU TEXT}}