1. WAHEDUDDIN AHMAD, J -This order will dispose of C. P. S. L. A. Nos. 2.4-P, 25-P, 26-P, 27 and 28 of 1970, in which common points are involved. The petitioners in all the cases were tried under the F. C.
2. R., 1901. Before their sentences were con--firmed, the West Pakistan Criminal Law (Amendment) Act (VII of 1963), came into force on the 19th April 1963, under section 34 of said Act, the F. C. R. Stood repealed. The sentences of the petitioners were confirmed under the Frontier Crimes Regulation after the repeal and at a time when fundamental rights set out in Chapter I of Part I of the Constitution of the Islamic Republic of Pakistan, 1962 had come into force by virtue of the Constitution (First Amendment) Act, 1963 (Act of 19;4), which became operative from the 16th January 1964. The petitioners challenged their conviction through writ petition under Article 98 of the Constitution in the High Court of West Pakistan, Peshawar Bench. These writ petitions were dismissed by a Division Bench of the West Pakistan High Court on the 23rd December 1969. The petitioners seek permission to file an appeal against the said, order.
3. In support of the petition, learned counsel for the petitioners have urged the following paints :-
(1) That F. C. R. Was repealed by section 34 of the West Pakistan Criminal Law (Amendment) Act, on the 19th April 1963, when the Act came into force and, therefore, the confirma--tion of the sentences of the petitioners being under a repealed Act was void and ab initio.
(2) That the sentences of the petitioners were confirmed after the fundamental rights have come into force and the provisions of the F. C. R. Being inconsistent with the fundamental rights, it had become void and for that reason the confirmation of the sentences and subsequently the entire proceedings under the Regulation were without lawful authority.
(3) That the petitioners were not given any opportunity to show cause when the sentences were confirmed by the Commis--sioner and was thus deprived of the rights under the rules of natural justice.
4. We will take up these points separately.
5. The contention whether the confirmation of the sentences of the petitioners under the repealed Act was void and ab initio was recently considered by this Court in the case of Sona and another v. The State and others (PLD 1970 SC 264) It was held in that case that the effect of sub-clause (e) of section 4(1) of the West Pakistan General Clauses Act is that any legal proceedings in respect of any liability shall be continued and punishment shall be imposed as the Repealing Act had not been passed It is not disputed that the petitioners' case was still pending on the date when the repeal a was made. It could, therefore, be continued and completed as if the F. C. R. Had not been repealed. On this decision the provisions of section 12(2) of F. C. R., 1901, were very much alive for the purposes of the decision of the cases pending against the petitioners. This contention, therefore, is repelled.
6. Coming now to the second contention, it will be noticed that the Constitution of the Islamic Republic of Pakistan was abrogated by Proclamation of Martial Law, on the 25th of March 1969, and the President promulgated a Provisional Constitution Order on the 4th April 1969. In clause (i) of Article 3, it was provided "notwithstanding the abrogation of the Constitution of the Islamic Republic of Pakistan brought into force on the 8th day of June 1962, hereinafter referred to as the said Constitution, by the Proclamation and subject to any Regulation or Order made, from time to time by the Chief Martial Law Administrator, the State of Pakistan shall, except as otherwise provided in this Order be governed as nearly as may be in accordance with the said Constitution", paragraphs 3, 4, 6, 7, 8, 9, 13, 14, 15 and 17 of the Fundamental Rights set out in Chapter I of Part II of the 1962-- Constitution were abrogated by clause (3) of the above mentioned Articles and it was further provided that "all proceedings pending in any Court, in so far as they are for the enforcement of these rights shall abate". In clauses (a) and (b) of Article 5, it was provided "no Court or Tribunal or other authority shall call or permit to be called in question :-
(a) the Proclamation;
(b) any order made in pursuance of the Proclamation or any Martial Law Regulation or Martial Law Order."
7. In the face of the above Provisional Constitution it is quite clear that all the writ petitions in which infringement of the fundamental rights has been claimed stand abated and no action can be taken on them. In the present case also the petitioner; have complained about infringements of the fundamental rights. Therefore, the High Court rightly held them to have been abated.
8. Mian Ziauddin and other learned counsel appearing for the petitioners contended that the petitioners are not complaining of the infringements of the fundamental rights. Their contention is that the confirmation of the sentences were made at a time when fundamental rights had come into force and as the F. C. R., was against fundamental right No. 15, therefore, any confirmation of sentence was void and has no validity in the eye of law. The contention of the learned counsel might have some force if the fundamental rights had not been abrogated by the Provisional Constitution Order dated the 4th April 1969. A similar situation also arose on the abrogation of Constitution of 1958. The Supreme Court had, before the abrogation of the Constitution, held that East Bengal State Acquisition and Tenancy Act, 1950, "to the extent it permitted acquisition of rent- receiving interests in wakf properties", was void, and remanded the case to the High Court for deciding in which cases the suitors in that case had rent-receiving interests in wakf properties. On the abrogation of 1958-Constitution, the High Court dismissed the writ petitions on the ground that they were based on fundamental rights. In appeal, it was contended that by the declaration of the Supreme Court the 1950-Act stood annulled and, therefore, the case was not for the enforcement of the fundamental rights, but under the ordinary law. The contention was repelled on the observation that on the suspension of the fundamental rights, "the law becomes immediately operative without its being re-enacted". In this connection this Court in the case of The Province of East Pakistan and another v. Mohammad Mehdi Ali Khan and 7 others (PLD 1959 SC (Pak.) 387), observed as under :- "When in compliance with the order of remand the High Court investigated the existence of the wakfs and after investiga--tion applied Article 18 to them it was acting judicially in a pending case.
9. Had Article 18 itself been abrogated before the proceedings terminated in that Court, the direction in the order of remand to apply that Article would have become infructuous and abortive and the High Court would have been bound to apply the law as it existed when it decided to issue the writs.
10. The order of the High Court being sub judice before us on special leave to appeal having been granted, we are bound to apply the law as it exists today and since Article 18 is no longer available to impeach the notifications we cannot allow the writs to operate. The applications for writs were founded and are still founded on Article 18 and not on the ordinary law as though by the previous decision of this Court that law had been clipped of its offending provisions. The finding in our previous judgments that the law was void because it conflicted with Article 18 could have operation only as long as the reason of its voidance existed. That reason having disappeared, the law has full operation and it is conceded that if that be so the present applications would be incompetent under it. Their foundation is a fundamental right that no longer subsists and is not available for an attack on the constitutionality of the law under which the notifications were issued. On the contrary the law in force now directs that all such applications shall -abate. Even if Mr. Suhrawardy's contention that with .The coming into force of the late Constitu--tion the provisions of the State Acquisition and Tenancy Act were clipped of their offending provisions be accepted, the notifications objected to would be valid as in that case the general provisions of the Act empowering the Government to acquire all rent-receiving interests would be applicable unless Article 18 be invoked to attack their validity. Therefore unless Article 18 be resorted to, the acquisition would be valid even if it be held that the Act is in force but without the provisions that specifically relate to wakfs."
11. The principle laid down in this decision will also apply to tilt facts of the present case. After the abrogation of the fundamental rights, the F. C. R. Is a valid law and anything done under if will be considered to be a valid act. The contention of the petitioners, therefore, that the confirmation of the sentences of the petitioners was made at a time when the fundamental rights were in force has no force whatsoever. The position is to be seen at the time when the matter was heard by the Court. At that time, the fundamental rights had been abrogated and, therefore, true High Court was perfectly justified in observing that the confirma--tion of the sentences of the petitioners has been validly made.
12. The contention of the petitioners that the petitioners were not given any opportunity to show cause when the sentence was confirmed by the Commissioner and they were deprived of them rights under the principles of natural justice has been raised for the first time before this Court. No such point was raised before the High 'Court. We are not inclined to allow the petitioners to raise a new point in these petitions.
13. It was also urged that the conviction of the petitioners offends against Article 2 of the Constitution.
14. This contention has no force. F. C. R. As it stood amended is a valid piece of legislation. In view of this, the conviction of the petitioners is in accordance with law.
15. After carefully considering the objections raised by the petitioners, we are satisfied that their - sentences were properly confirmed. There is no ground to interfere. The petitions are dismissed.