1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a learned Single Judge of the former High Court of West Pakistan, Lahore Seat, allowing the appeal and remanding the case back to the trial Magistrate under section 423 of the Code, of Criminal Procedure with a direction, to try .The offences under section 408, P. P. E. And 381, P. P. C., with which the respondent No. 1 was charged, as separate offences in accordance with the provisions of section 233 of the Code of Criminal Procedure.
2. The said respondent No. 1 was at the relevant time working as a clerk in the employ of one, Sher Muhammad Arhati (deceased) of Mian Channu, in his firm known as Sher Mohammad & Sons.
3. It is not clear under what circumstances the said Slier Muhammad died but the news of his sudden death reached his son, the appellant herein, on the 7th February 1962, in England. He reached Mian Channu on the 28th of February 1962, and met the respondent No. 1, who was still working with the firm, on the. 3rd of March 1962. He -called upon the said respondent to hand over the keys of the iron safe of the firm, but the latter declined to do so until the appellant gave him a certificate to the effect that there was nothing due and, owing from him. The keys were, however, obtained through the intervention of some people of the Mandi, but when the iron safe was opened only Rs. 15,000 were found lying therein, although, according to the information of the appellant, his late father had withdrawn Rs.40,000 from the Central Cooperative Bank, Mian Channu, 2/3 months before his death and kept it in the iron safe along with another sum of Rs. 5,000 which was kept in deposit with the deceased by his son-in-law, Muhammad A.I.
4. The appellant also came to know that the said respondent No. 1 had made certain false entries .In the books of account of the firm purporting to show disbursements of the missing amounts by the deceased himself, even though the entries did not bear either the signature or the thumb- impression of the deceased. In these circumstances, the appellant lodged a report with Mian Channu Police Station against the said respondent No. 1 charging him with theft under section 381 and with breach of trust under section 409 of the Penal Code. The said respondent was ultimately challaned on these charges and put up for trial before a Section 30 Magistrate at Khanewal who, after recording some evidence, framed a charge only under section 381, P. P. C. The case was thereafter transferred to the file of another learned Magistrate with section 30 powers. The latter framed another charge under section 408, P. P. C. The respondent Imdad A.I Shah was tried on both these charges jointly and convicted.
5. He came up on appeal to the High Court where it was contended on his behalf that the trial had been vitiated by a mis--joinder of charges, as the charge under section 408 for criminal breach of trust was alleged, according to the prosecution evidence, to have been committed by him on the 1st of August 1960, when he did not carry forward in the cash book of the firm the balance of Rs.13,000, but the charge under section 381 for tile theft of Rs. 30,000, from the iron safe was alleged to have been committed between the 7th of February 1962, when Sher Muhammad died, and the 3rd of March 1962, when the appellant returned from England. The 'contention put forward in the appeal in the High Court, therefore; was that since the offences were committed at different times and on different occasions, they could not have been committed in the course of the same transaction and, therefore, could not have been tried jointly.
6. The conviction, it may be stated, was recorded on the 30th of April 1963, before the enactment of the Code of Criminal Procedure (West Pakistan Amendment) Act, 1964, on the 1st of April 1964.
7. Nevertheless, it was argued on behalf of the State that the misjoinder was only an irregularity which was curable under section 537 of the Code of Criminal Procedure, since at no stage of the trial had any objection been taken by the accused to the alleged misjoinder. In any event, it was contended that as the law had since been amended by the above-mentioned Act, the alleged misjoinder could no longer be a ground for setting aside the trial where no failure of justice had been suggested or shown to have been caused.
8. Section 23 of the Code of Criminal Procedure (West Pakistan Amendment) Act, 1964, had- introduced a new clause as clause (b) in section 537 of the Code of Criminal Procedure to the following effect :- "(b) of any error, omission or irregularity in the charge or mode or trial, including any misjoinder of charges, or;".
9. Section 537 provides as follows :---- "537. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account- (a)------------------------
(b) ------------------------
(c) ------------------------
(d) unless such error, omission, irregularity or misdirection has in fact, occasioned a failure of justice."
10. It is clear from the above that a proceeding to which the amended provisions of section 537 apply cannot be set aside on appeal or revision merely on the ground of misjoinder of charges in the absence of any failure of justice. The learned judge in the High Court, however, took the view that since tile trial had been completed and the conviction recorded before the coming into force of the amended provisions, the validity of the trial and the conviction had to be decided on the basis of the unamended provisions of section 537 of the Code of Criminal Procedure, and according to those unamended provisions the misjoinder was not only an irregularity but an illegality, as it was a trial in a mode which was prohibited by the Code of Criminal Procedure. Reliance for this purpose was placed on a decision of this Court in the case of Mosaddar Hoque v. Stale (PLD 1958 SC (Pak.)
11. 131).
12. Leave was granted- by this Court to consider whether the learned Judge had failed to notice that the appeal before him was a continuation of the trial and, therefore, the amended provisions of section 537 would have been applicable at the appellate or the revision stage, as the case would still be pending at that stage.
13. Learned counsel appearing on behalf of the appellant and the learned Additional Advocate- General appearing on behalf of the State had both contended that the learned Judge had fallen into error in taking the view that the validity of the trial had to be decided on the basis of the unamended provisions of section 537 of the Code of Criminal Procedure. According to them, the provisions of section 537 dealt with the powers of the Court of appeal and the Court of revision and, therefore, if the amendments apply to pending proceedings, then they should have been given effect to, as the appeal was certainly pending before the High Court when the amendment came into force. In any event, learned counsel contend that since the appeal is a continua--petition of the proceeding itself, the proceeding was also pending before the High Court and the amendment, should have -been made applicable to it.
14. This brings us to the question as to whether the amendment was retrospective and was intended to apply to pending proceedings as well? .
15. The amended provisions of section 537 came up for consideration by the Court firstly in the case of The State v. Maulvi Muhammad Jamil and others (PLD1965SC681). The question there was as to whether the amended provisions of section 256 of the Code of Criminal Procedure applied to a criminal proceeding which had been initiated earlier but in which the charge was actually framed after the coming into force of the new law. It was held that the right of cross-examination of a witness was a vested right which matured only when a charge had been framed and since that contingency arose after the amendment came into force the new law was applicable, as it had not taken away the fundamental right of cross-examination but only intro--duced a procedural change which had cut down a further facility for cross-examination not, affecting the substance of the right. It was also opined that the amending law having introduced only changes in the procedure of trials without affecting any vested right, applied to all pending cases, because, the principle is now well settled that alterations in procedure are retrospective unless there is some good reason against such a view. The opinion of Craies in his Treaties on Statute Law, 5th Edn., at pp. 370-371 was cited with approval to indicate that "it is perfectly settled that if the Legislature forms a new procedure, that, instead of proceeding in this form or that you should proceed in another and a different way, clearly thereby bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective unless there is some good reason or other why they should not be".
16. To the same effect are the views of this Court in the case of Muhammad Alam and 3 others v. The State (PLD1967SC 59) where the amended provisions of section 537, Cr. P. C. Again came up for consideration and it was observed as follows :- "Having regard to the objective of the new legislation, viz., cutting out of judicial delays and the provision specifically made in section 537 of the Code to the effect that irregularities in the mode of trial would not affect the validity of the trial, without proof of failure of justice, it seems that the intention of the amending Act clearly was that it should apply even to pending cases, committed for trial but in which trial had not yet commenced within the meaning of section 271 of the Code . . . . . Alternatively even if it be conceded that a trial with assessors is not a mere matter of procedure, but goes beyond the scope of procedural rules, having regard to the general tenor and object of the new legislation and the indications furnished by the amendment of section 537 of the Code of Criminal Procedure, it is fairly clear that the intention of the Legislature was to affect cases committed for trial but awaiting trial."
17. It is now, in accordance with a long line of authorities, well settled that an amending law does not operate retrospectively unless the Legislature has either by express enactment or by necessary intendment given the legislation retrospective effect if the law seeks to alter the rights of parties by taking away or conferring any right of action but there is one exception to this rule, namely, that enactments, which merely affect procedure and do not extend to rights of action, affect all pending proceedings unless there be words in the statute itself indicating a contrary intention. Now as to what are matters affecting rights and as to what are matters affecting procedure merely an attempt was made by this Court in the case of Adnan Afzal v. Capt. Sher Afzal (PLD1969SC187) to make a delinea--petition and it was pointed out that "matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure."
18. If this be so, then there can be no manner of doubt that the question relating to the joinder of charges is a question relating to the mode of trial and nothing more. Indeed, even in the case of N.
19. A. Subramannia lyer v. King-Emperor (28 I A 257) the Judicial Committee of the Privy Council, when considering the effect of disregard of the provisions of sections 233, 234, 235, -236 and 239 of the Code of Criminal Procedure, came to the conclusion that it constituted disobedience of express provisions "as to a mode of trial", which could not be considered to be a mere irregularity. Whether certain offences can be jointly tried or not is a question, therefore, which relates purely to the "mode of trial" and is, therefore, a question relating to procedure.
20. The provisions of the Code of Criminal Procedure (West Pakistan Amendment) Act, 1964, which seek to make a disregard of a provision relating to the mode of trial a mere irregularity curable under section 537, are, therefore, clearly provisions affecting the mode of trial of a case and, therefore, even on general principles, have to be applied to pending proceedings. The High Court was, therefore, in our view, clearly wrong in thinking that the amended provisions did not apply to the proceedings pending before it. The amended provisions of section 537 clearly applied to the appeal pending in the High Court and, therefore, the High Court should not have disregarded these amended provisions.
21. This appeal is, accordingly, allowed, the judgment and order of the High Court are set aside and the case is sent back to the High Court for disposal of the appeal on merits, which have not been considered and indeed could not have been considered in view of the fact that the High Court had remanded the case back for retrial.