1. A preliminary objection has been taken by the defence counsel Mr. Iqtedar Ali Hashmi that Ordinance XXV of 1991, having been enforced on 5-8-1991, cannot have retrospective effect so as to apply to the present case in which the accused are alleged to have committed the offence on 31- 5-1991 and the crime was registered on 31-5-1991 and the case was challaned on 24-7-1991 which are dates prior to the enforcement of the Ordinance, specially, when it not only changes t hr forums of trial and appeal, but it takes away substantial and vested right of appeal to High Court and right to approach the Supreme Court for invoking its paramount jurisdiction of intervening where it was necessary to do substantial justice, particularly when no retrospectivity is given to the Ordinance.
2. He has relied upon, inter alia, the following decisions:-- (1)PLD 1969 SC 187 (Adrian Afzal v. Sher Afzal)
3. (2)PLD 1970 SC 264 (Sons v. The State); (3)PLD 1971 SC 252 (Rafiuddin v. The Chief Settlement and Rehabilitation Commissioner); (4)PLD 1957 Kar. 111 (Sardar Ali v. Collector of Customs);
(5) PLD 1980 Lah. 47 (Fatch Khan v. Muhammad Zia-ur-Rahman); (6)PLD 1960 Kar. 20 (Shah Mastan Khan v. Sui Gas Transmission Co. Ltd.): anal (7)PLD 1956 SC (Pak.) 256 (Muhammad Ishaque v. The State).
4. As against this Nit. Aria Munshi, the learned Attorney-General and Mr. Shaukat Zubedi. Special Public Prosecutor, have contended that Ordinance XXV of 199t is a procedural law. It has the support of XIIth Amendment of the Constitution. It has not taken away any substantial or vested right of the accused, I-fence it will operate; retrospectively. Additionally it was contended that it has, by making provision in section 5 thereof for trial of a registered case and for transfer of a pending case to Special Court expressed a clear intendment that it shall apply retrospectively. They have relied upon the following cases:- (1)P 1. D 1962 (W.P.) Lah. 6o2 (Ghazi v. The State)
(2) 1972 SCMR 173 (Muhammad Abdullah v. Imdad Ali) and 03 (3)AIR 1957 SC 532 (Newspapers Ltd. v. State Indusirial Tribunal).
5. Before I proceed to examine and discuss the various authorities cored by the learned counsel for the parties, I would like to make it clear that in view-- of the leading decisions of the Privy Council in, inter alia, Colonial Sugar Refining Co, Ltd, v. Irvin 14M5 AC 36r> and In re: Joseph Suche and Company Ltd. 1875 (1) Ch.D. 48, the following propositions are well-established:--
(1) Every Statute is deemed to be prospective unicss by express provision or necessary implication it is to have. a retrospective effect.
(2) Presumption against retrospective construction has no application to enactment which affects the procedure and practice of the Court provided a vested eight is not taken away thereby.
(3) Right to appeal is a vested/substantive right and is not a mere matter of procedure.
6. Hence, in order to judge as to whether Ordinance XXV of 1991 would be applicable to the present case, we would have to see as to whether it has taken away any vested right of the accused or not.
7. If it has taken away any vested right, then as to whether there is an express or implied intention to apply this Ordinance retrospectively. On the answer of these questions, will depend the decision as to whether the Ordinance will apply to the present case: or not.
8. I would now take up the first ruling cited by Mr. Iqtedar Ali Hashmi. The case of Adrian Afzal v. Sher Afzal (supra) reiterates the already settled principle that if a procedural legislation touches a right in existence, then it would not operate retrospectively unless the Legislature has either by express enactment or necessary intendment given it retroactive effect. This reported decision related to West Pakistan Family Courts Act and it was held that since it has not taken away any substantive right and it has only brought about procedural changes, therefore, it was retrospective and applicable to pending proceedings as well.
9. The learned Attorney-General Mr. Aziz Munshi has also placed reliance on this ruling, particularly, the following observations:- "As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective operation is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will at least, presumptively apply to accrued and pending as well as to future actions."
10. The decision further went on to elaborate as to what were matters of procedure and made the following illustrious observations:- "it is obvious 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. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that ii in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Court would favourable incline towards giving effect to such procedural statutes retroactively."
11. Hence the ratio-decidendi of this ruling is that legislation, which relates solely to procedure or to legal remedies can be retrospective in operation and there will be no presumption against its retrospective construction. The matters relating to remedy, mode of trial, manner of taking evidence, questions relating to the jurisdiction over the cause of action, venue, parties, pleadings and rule of evidence all pertain to procedure provided burden of proof is not shifted. Similarly, statutes pertaining to transfer of jurisdiction over certain cases may operate retroactively.
12. However, the Courts will even in case of a procedural statute not favour a retrospective interpretation, if any, existing rights arc affected or inconvenience or injustice is caused.
13. The learned Attorney-General, then contended that it was not necessary to insist upon the use of specific words in the statute providing for retrospective operation thereof. It was also not necessary to insist on presence of such words in the statute from which a retrospective operation is spelled out. According to him, the entire enactment is to be considered in the retrospect alongwith the reasons for enacting it, the purpose for which it was enacted and the object that it was to serve. In this connection he placed reliance in the case of Newspapers Ltd. v. State Industrial Tribunal (supra) and in particular observation made in para. 14 thereof which reads as under:- "(14) But in order to get its true import it is necessary to view the enactment in retrospect, the reasons for enacting it, the evils it was to end and the objects it was to subserve. The Act has, therefore, to be viewed as a whole and its intention determined by construing all the constituent parts of the Act together and not by taking detached sections or to take one word here and another there. Exposition ---ex visceribus actus---is applicable."
14. He, therefore, submitted that viewed from this angle the Ordinance was clearly retroactive.
15. The case of Sona v The State (supra) cited by Mr. Iqtedar Ali Hashmi clarifies that in view of section 6 of General Clauses Act and section 4 of West Pakistan General Clauses Act, the effect of the repeal is that it shall not affect any investigation, legal proceedings and remedy etc. And therefore, trial of criminal case has to be in accordance with rules and procedure in force at the commencement of the trial. It was, therefore, held that trial of the petitioner was to be continued and completed under Frontier Crimes Regulation in spite of its repeal. In the case of Rafiuddin v.
16. The Chief Settlement and Rehabilitation Commissioner (supra) it was held that rights of the parties are to be decided according to laws which existed when the action began and not that which were existing at the date of judgment or order. It related to a case under the Settlement Laws and it was held by M.R. Khan, J. That appellant's right of transfer of cinema house could not he destroyed unless that law was retroactive as it required the passing of an order under paragraph 15 of the schedule which order was passed by the Central Government as a subordinate legislation and therefore, could not take away the right of the appellant. It may be pointed out that this view of F.I.R.
17. Khan, J. Though distinguishable from this case, was even otherwise, a minority view and a contrary view was expressed by Hamood-ur-Rehman, CJ. With whom Sajjad Ahmed Jan, J., Abdul Sattar, J., and Waheeduddin, J. Agreed and consequently the appeal was dismissed. Hence this view of M.R.
18. Khan, J. Cannot be treated as good law.
19. In the case of Sardar Ali v. The Collector of Customs (supra) it was held that presumption is always against the retrospectivity of an enactment more so when the latter is of a penal nature and therefore;, the order passed under the amended provision was quashed. This ruling is also distinguishable from the present case, because there was no specific or, implied intention expressed in the Ordinance amending Sea Customs Act to give it rctrospective effect. In the case of Fateh Khan v. Muhammad Zia-ur-Rahrnan (Supra) the question of applicability of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 was taken into consideration and it was held that since the Ordinance was not retrospective and had not come into force when the police investigation was started, no objection could be taken to the desire of police to investigate a case and prosecute the offender under section 366. P.P.C. Which is, on the face of it, distinguishable from the present case. The case of Shah Mastan Khan v. Sui Gas Transmission Co. Ltd. Does not say ally thing more then this that according to well-settled rule of construction a retrospective effect is not to be given to a penal statute unless it so provides expressly or by necessary implication. The case of Muhammad Ishaque v. The State (supra) is also clearly distinguishable from the present case, because it was held therein that clause (ix) of Article 195 of the Constitution Act was not retrospective and therefore, no appeal lies as a right to the Supreme Court under that clause in a case in which the High Court had revered in appeal an order of acquittal and had passed sentence of death or transportation for life before the coming into force of the Constitution,' though such an appeal could be treated as petition for leave to appeal. He has cited some other rulings also, but none of those rulings contains any new proposition worthy of note.
20. The decision in the case of Ghazi v. The State (supra) cited by the Special Public Prosecutor which was also relied upon by the learned Attorney General, is very pertinent. It fully applies to the facts of the present case. In the reported case a challenge was thrown to the power of Deputy Commissioner under section 14 of the Frontier Crimes Regulations 1901, which was extended to Mianwali District by F.C.R. (West Pakistan Extension) Ordinance, 1960 (Ordinance XXXIII of 1960) providing for referring a case pending in a Magistrate's Court since before the enforcement of the Ordinance to a Council of Elders. It was held that though the Ordinance (XXXIII of 196o) which had extended the Frontier Crimes Regulation to Mianwali had affected a pending case and thus took effect retrospectively, the order passed therein was valid, and the right of appeal accruing to the accused was taken away, but it was done so by an express provision or necessary intendment. It will be useful to reproduce the following observations from decision which is given by a Full Bench of West Pakistan High Court:- "There is no force in the contention that the amendment was applied retrospectively. It is not the Ordinance (XXXIII of 1960), but the Frontier Crimes Regulation which was utilised for making the impugned order and for this purpose it was an existing power which was exercised, though it may have affected a pending case and thus took effect retrospectively. The order being valid, the rights of appeal, accruing to the accused by reason of prosecution of the accused having commenced were, taken by express provision. Though it is not denied that section 14 of the Frontier Crimes Regulation gave the Dept. Commissioner the rower to refer a pending case to a Council of Elders it is contended that this rower could only be exercised in cases instituted or commenced after the promulgation of Ordinance (XXXIII of 1960), which enforce, the Frontier Crimes Regulation, and not those which were pending on that date but this argument is notsound because its effect is to take away the power of referring pending cases to Council of Elders and renders the provision negatory, and such a construction is not to be adopted. The power to refer a case to Council of Elders having been vested in the Deputy Commissioner under section 14 of the Frontier Crimes Regulation and exercised by him under an existing law, namely, the Frontier Crimes Regulation, which is admittedly a valid piece of legislation and the exercise of that power not being subject to any limitation as to the time of institution of proceedings, there is no doubt about the competency or validity of the order of reference of the case against the petitioners to a Council of Elders. The question in essence is the choice of forum given to the Deputy Commissioner and the Commissioner in a pending case and the exercise of power is valid, even though it may have retrospective operation in the sense that it takes away vested rights, for there is an express provision and the intention is clear. There is ample authority for the view which I have taken in this case:"
21. (Underlining is mine).
22. The next authority cited by Mr. Shaukat Zubedi is the case of Muhammad Abdullah v. Imdad Ali (supra). In that case a person was tried jointly for charges under sections 381 and 408, P.P.C. And was convicted. His conviction was recorded before the enactment of the Code of Criminal Procedure (West Pakistan Amendment) Act XVIII of 1964. He went in appeal before the High Court and pending the appeal, Act XVIII of 1364 came into force. The High Court hearing the appeal took the view that since the trial had been completed and the conviction recorded before the coming into force of Act XVIII of 1964, the validity of the trial and conviction had to he decided on the basis of the unamended provisions and the misjoinder of charges was not only irregular but illegal. The High Court, therefore, accepted the appeal, set aside the proceedings below and remanded the case back to the trial Magistrate with the direction that be should try the offence under section 408 and section 381, P.P.C. As separate offences in accordance with the provisions of section 23.1, Cr.P.C.
23. The matter was taken up in appeal to the Supreme Court, which was allowed and the order of the High Court was set aside and case was sent back to the High Curt for disposal of appeal on merits.
24. It will be useful to reproduce, the observations of the Supreme Court as under:-- "It is clear that a proceeding to which the amended provisions of section 537, Cr.P.C. 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 High Court was, 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 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. 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. Matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. 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."
25. On a careful and thorough examination of Ordinance XXV of 1991 in the light of above decisions, it is quite clear that the Ordinance, no doubt, deals with procedure, but it has made drastic changes in the procedural law particularly in connection with the venue of trial and appeal and has taken away the right of appeal to the High Court and the right to invoke the paramount jurisdiction of Supreme Court. Not only that, but it has restricted the period for which a case could be adjourned and has also curtailed the right to ask for denovo trial, Even it has narrowed down the scope of granting bail irrespective of the various classes assigned to the offences by Cr.P.C. Such as bailable and non-bailable, punishable with death, imprisonment for life or ten years and the others. There can be no denying the fact that these procedural changes, though unavoidable in the present circumstances, do cause at least inconvenience to the parties if not injustice. Even the Acting Chief Justice of Pakistan Dr. Nasim Hassan Shah had, in a recent speech, declared that he was not in favour of the idea of Special Courts. Having come to the conclusion that the Ordinance affects substantial rights and causes inconvenience, it is to be seen as to whether it is intended to apply retrospectively or not.
26. I would, therefore, examine the provisions of subsections (1) and (2) of section 5 of Ordinance XXV of 1991, which arc as under:-- "5. Jurisdiction of Special Courts.--
(1) If the Government is of the opinion that a case relating to any offence which has been registered should be tried and decided speedily, it may order that such case shall be tried by a Special Court.
(2) If the Government is of the opinion that a case pending before any Court should in the public interest be tried and decided speedily, it may, by order in writing, transfer the same for trial to a Special Court."
27. Mr. Iqtedar Ali Hashmi, did not deny that these provisions gave power to the Federal Government of referring a registered case or a pending case to the Speedy Trial Court, but this power could only be exercised in cases instituted and commenced and offences committed after the promulgation of the Ordinance, and not those which were registered before or were pending on that date. This argument is not sound because its effect would be to take away the power of referring a registered or pending case to the Speedy Trial Court, and renders the provisions of subsections (1) and (2) nugatory and such a construction is not to be adopted. Reliance in this connection is placed in the F.B. Decision of West Pakistan High Court referred to above, in the case of Ghazi v. State (supra) which applies with full force to this case.
28. After having taken into consideration the contentions of the learned counsel for the parties, I am of the view that whereas the Speedy Trial Court Ordinance, 1991 (XXV of 1991) relates solely to procedure, but it affects the existing rights to some extent and its retroactive operation may cause inconvenience to the accused. But the Legislature has, by express enactment and necessary intendment, given retroactive effect to the above statute. Hence I do not find any force in the objection raised by the learned counsel for the accused. The same is therefore, overruled. I express appreciation for the assistance provided by the learned Attorney General Mr. Aziz Munshi, S.S.P. Mr. Shaukat Zubedi and Mr. I.A. Hashmi, defence Counsel on his Point.
29. N.H.Q)./S-809/K Objection overruled