' ABDUL WAHEED, J.--Umar Hayat son of Ghulam Rasul and Akbar son of Muttalli have filed this appeal against the judgment passed by the Punjab Special Court for Speedy Trials No,IX, Gujranwala on 2nd of December, 1987 whereby they were convicted under section 392 P.P.C. And each of them was sentenced to suffer R.I. For a period of ten years and to pay a fine of Rs,25,000 or in default to undergo R.I. For a further period of 21 years. It was directed that half of the fine, if realized be paid to Tahir Abbas, complainant under section 544-A, Cr.P.C.
2. The occurrence took place on 11th of July, 1987 at 'dopehrwela' in the area of village Dhola Kalan, seven miles away from Police Station Qadirabad, District Gujrat. It was reported by Tahir Abbas'
PW.3 by a written complaint Ex.PA presented to S.I. Muhammad Aslam PW.6, S.H.O., Police Station Qadirabad on 12th of July, 1987 at 10.00 a.m. At the place known as Bhiko More where he was present on patrol duty. On the basis of this complaint, a case under section 382 P.P.C. Was registered at Police Station Qadirabad on the same date at 10.15 a.m. Vide formal F.I.R. Ex.PA/1 drawn by M.H.C. Muhammad Anaar PW.1.
3. The prosecution case briefly was that on 11th of July, 1987 at about dopehrwela, Tahir Abbas PW.3 and Altaf Hussain PW.4 were going on motor-cycle No,SGD-4203 from Phalia to Dhola Kalan. When, on the way, they reached the bridge of a Rajbah in the area of village Dhola Kalan, the appellants who were already known to them confronted them. Umar Hayat appellant was empty handed while Akbar appellant was armed with a gun. Umar Hayat appellant signalled Tahir Abbas P.W.3 to stop his motor-cycle. Tahir Abbas, however, did not stop. Umar Hayat appellant caught hold of the motor-cycle from behind and felled Tahir Abbas and Altaf Hussain PWs on the ground. Akbar appellant aimed his gun at Tahir Abbas and asked Umar Hayat appellant to search them and take over whatever they possessed. He also asked Tahir Abbas to hand him over his motor-cycle. He threatened to kill them if they did not hand over their motor-cycle. Tahir Abbas and Altaf Hussain out of fear gave the motor-cycle to Umar Hayat and Akbar. Umar Hayat drove away the motor- cycle carrying Akbar on the back seat. Akbar PW.5 and Shera who was given up at the trial happened to come there afterwards on a motor-cycle. Tahir Abbas PW narrated the occurrence to them. All of them chased the appellants but they disappeared in Mauza Dhugal Kalan.
4. The case was investigated by S.I.Muhammad Aslam PW.6. He visited the spot on 12th of July, 1987 and prepared a site plan Ex.PE. On 23rd of July, 1987, on receipt of secret information he in the company of Tahir Abbas PW raided village Kahloon and apprehended Umar Hayat appellant alongwith the stolen motor-cycle. He was arrested and the motor cycle P.3 was recovered vide memo Ex.PD which was attested by Tahir. Abbas PW.3 and Muhammad Anwar who was not produced. On 24th of July, 1987 S.I.Muhammad Aslam arrested Akbar appellant at the bridge of Dhuni Nullah and recovered from him gun P.1 vide memo Ex.PB which was attested by F.C. Akhtar Hussain PW.2 and Ikramullah who was given up. On the completion of the investigation, both the appellants were challaned under section 392, P.P.C.
5. The Governor of the Punjab vide Home Department Notification No,8-34-H.SPL.III/87 dated 15th of October, 1987, ordered that this case be tried, in the public interest, by the Punjab Special Court No,IX, Gujranwala.
6. The appellants were charged under section 392, P.P. C. To which they pleaded not guilty. At the trial, the prosecution in support of its case examined six witnesses who included two eye-witnesses namely Tahir Abbas PW.3 and Altaf Hussain PW.4, Akbar PW.5 who joined in the pursuit of the appellants and S.I.Muhammad Aslam who investigated the case. The appellants in their statements recorded under section 342 and also under section 340, Cr.P.C. Denied the prosecution case. Both of them professed innocence. Umar Hayat pleaded as follows:- "In 1966 one Zaman now Inspector Police was posted as NaibMoharrir of P.S.Phalia. The father of Umer Hayat accused, Ghulam Rasool, arranged a raiding party and consequently a raid was conducted upon him and matter was also referred to the Anti-Corruption Committee where the departmental action was taken against him. Muhammad Zaman Inspector bore a grudge against me on account of the aforesaid matter and in connivance with Muhammad Aslam SI/SHO who also belongs to Gujrat, I have been falsely implicated in this case. The aforesaid Zaman also belongs to Gujrat and now he is posted as Police Inspector at Islamabad."
' The plea of Akbar was as follows:- "I was posted as Octroi Moharrir in Tehsil Phalia at road crossing. Shera PW got me falsely involved in this case as I had quarrelled with some of the relatives of Shera PW over the payment of octroi duty."
However, none of the appellants adduced any evidence in defence.
7. The learned trial Court after appraising the evidence believed the ocular account and the evidence of recoveries in corroboration thereof and convicted and sentenced the appellants as above.
8. The material witnesses in this case are Tahir Abbas PW.3 and Altaf Hussain PW.4. They were the victims of robbery. They deposed that on 11th of July, 1987 they were going on a motor-cycle from Phalia to Dhola Kalan at about noon time. When they reached the bridge of a minor near village Dhola Kalan, they saw the appellants who were known to them already sitting near the bridge. Out of them, Akbar appellant was holding a gun while Umar Hayat appellant was empty handed. Umar Hayat appellant asked them to stop the motor-cycle and when they did not accede, he caught hold of the motor-cycle from its carrier and felled them. Akbar appellant threatened them at gun point that they should hand over the motor-cycle and everything in their possession. Due to fear, they surrendered the motor-cycle to the appellants. Umar Hayat appellant drove away the motor- cycle carrying Akbar on its back. Akbar and Shera happened to come there. They narrated the occurrence to them. All of them followed the appellants but they disappeared in a fair being held in village Dhugal. Akbar PW.5 supported them by saying that soon after the occurrence he alongwith Shera happened to pass by the spot where Tahir and Altaf PWs apprised them of the occurrence.
All of them went in pursuit of the appellants but they disappeared in the fair in village Dhugal.
9. The above witnesses were cross-examined but nothing was elicited which could recoil on their veracity. They had no feud, no animus, which could motivate them to falsely implicate the appellants. They were independent witnesses and their statements inspire confidence.
10. S.I.Muhammad Aslam PW.6 testified to the arrest of Umar Hayat appellant and Akbar appellant on 23rd of July, 1987 and 24th of July, 1987 respectively from two different places and recovery of the stolen motor-cycle P.2 from Umar Hayat appellant and gun P.1 from Akbar appellant. He was corroborated by Tahir Abbas PW.3 in respect of the recovery of the motor-cycle and by F.C. Akhtar Hussain PW.2 as regards the recovery of the gun. The evidence of the recovery witnesses also suffered from no infirmity.
11. In view of the above evidence, the learned trial Court was justified in invoking the conviction of the appellants under section 392, P.P.C.
12. In fact, learned counsel for the appellants has addressed no arguments challenging the veracity of the prosecution witnesses. The only contention which has been pressed into service by him is that after the repeal of the Special Courts for Speedy Trials Ordinance (II of 1987), the Special Court had ceased to have jurisdiction to try this case and its decision by it subsequently was ultra vires.
Learned counsel for the State has controverted this contention. According to him, the repeal of the Ordinance did not affect the pending proceedings.
13. Ordinance II of 1987 was promulgated on 26th of July, 1987 when it was published in the Gazette of Pakistan. The notification entrusting this case to the Special Court was issued by the Provincial Government on 15th of October, 1987 when Ordinance II of 1987 was still in force. This Ordinance was repealed by the Special Courts for Speedy Trials Act (XV of 1987) which came into force on 16th of November, 1987., The provisions of this Act were enforced in the Province of the Punjab w.e.f. 25th of November, 1987 vide Notification of the Government of the Punjab, Home Department No,8-34/H- SPL. 111/87, dated 25th of November, 1987. According to Ordinance II of 1987, an offence punishable under any law for the time being in force was triable by the Special Court on being ordered so by the Provincial Government. However, according to Act- XV of 1987, only the offences specified in its Schedule were triable by the Special Court. This Schedule does not contain an offence under section 392, P.P.C. The ordinary life of Ordinance II of 1987 was four months under Article 89 of the Constitution.
14. The plea of learned counsel for the appellants is two-fold; firstly that Ordinance II of 1987 being temporary in nature ceased to be effective on the expiry of a period of four months from its ' promulgation except for transactions passed and closed and secondly that even if it continued to remain effective in view of the saving clause in Act XV of 1987 which repealed the Ordinance, the trial of the case could not continue in the Special Court on account of the omission of the offence under section 392, P.P.C. In the Schedule of the Act. In this connection, he has cited The State v.
Muhammad Sharif (PLD 1960 Lah.236) and Messrs Baho Film Corporation v. Islamic Republic of Pakistan and another (PLD 1981 Lah.295). It was held in the first case that when a temporary statute expires, a prosecution under it comes to an end, for a temporary statute when it expires, is deemed never to have existed except for a transaction passed and closed and that the provisions about repeal contained in section 6 of the General Clauses Act, 1897 have no application to a temporary statute, so as to carry the effect of a temporary statute beyond its original life. However, in that case, the principle of law enunciated in Tirathmal and others v. The State (PLD 1959 Kar.594) that the repeal of a temporary enactment by a fresh legislation on the same subject saves the effect of the repealed enactment under section 6 of the General Clauses Act, was accepted. In this case also, Act XV of 1987 while repealing Ordinance II of 1987 made fresh legislation on the same subject and by its section 15 preserved continuity of legal proceedings commenced under the Ordinance. Section 15 runs as under:- "Repeal.-(1) The Special Courts for Speedy Trials Ordinance, 1987 (II of 1987), is hereby repealed.
(2) The repeal of the aforesaid Ordinance shall not--
(a) affect the previous operation of the aforesaid Ordinance or anything duly done or suffered thereunder; or
(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the aforesaid Ordinance; or
(c) affect any penalty, forfeiture or punishment incurred in respect of any offence; or
(d) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed.
(3) Notwithstanding the aforesaid repeal, any appointment, notification, order, rule, made or issued under the aforesaid Ordinance shall be deemed to have been made or issued under this Act."
The provisions of the above section manifestly accorded blanket saving to the legal proceedings initiated under the Ordinance and allowed their unfettered continuance irrespective of their being inconsistent with the provisions of the Act as if the Act had not been passed. This view is supported by Sona and another v. The State (PLD 1970 SC 264), cited by learned counsel for the State.
15. The other precedent cited by learned counsel for the appellants viz. Messrs Baho Film Corporation v. Islamic Republic of Pakistan (PLD 1981 Lah. 295), however, is not applicable as the same relates to a case in which only those actions taken under the repealed enactments were left unaffected and allowed to continue in force which were not inconsistent with the provisions of the repealing legislation.
16. For the foregoing reasons, we hold that the objection to the continuity of the proceedings in this case in the Special Court after the repeal of Ordinance II of 1987 by Act XV of 1987 is untenable.
17. In the result, we maintain the conviction of the appellants but with a little variation that it would be deemed under section 392 read with section 34, P.P.C. Instead of merely under section 392, P.P.C.
As they committed the offence in furtherance of the common intention of them both. We also uphold the sentence awarded to them.
18. Accordingly this appeal is dismissed.