1. ' IFTIICHAR MUHAMMAD CHAUDHRY, J.--Having heard the learned counsel for parties as well as amicus curiae, following propositions emerge for determination:-- A. Whether Criminal Law (Amendment) Ordinance, 1990, which has amended sections 299 to 338, P.P.C. , in pursuance of the judgments announced by Hon'ble Federal Shariat Court and Shariat Appellate Bench PLD 1989 SC 633 stands extended to the Provincially Administered Tribal Areas of Balochistan, without adhering to Article 247(3) of the Constitution of Islamic Republic of Pakistan, 1973; and if not so, which provisions of the offences against human body?
2. B,, Whether Criminal Law (Application of Provincially Administered Tribal Areas of Balochistan)
3. Regulation of 1979, is a void law being inconsistent with the fundamental rights guaranteed under the Constitution, as has been held in Balochistan Bar Association v. Government of Balochistan (PLD 1991 Quetta 7) and also confirmed by Hon'ble Supreme Court in the case of Government of Balochistan v. Azizullah Memon and 16 others PLD 1993 SC 341; and if so under which provisions of the Law, proceedings of criminal cases relating to Provincially Administered Tribal Areas of Balochistan, shall be regulated?
4. C. What is the implication of Notification No, US (JUDL.)4(5)/ 93-62696311 dated 12th December, 1993, in the Tribal Areas, issued by the Provincial Government, in pursuance whereof the provisions of Criminal Law (Special Provisions) Ordinance, 1968 (II of 1968) have been repealed, wherever it was applicable, with effect from 10th October, 1993?
5. ' It is not essential to marshal the facts of case, because the ultimate determination of above formulations will be relevant to dispose of the proceedings on merits, thus if need be, at appropriate stage, precisely the facts of the case will also be discussed.
6. ' Now adverting to the first point, it is to be observed that the Hon'ble Federal Shariat Court during process of examining the offences against human body, specified in the Penal Code, under Article 203-D of the Constitution, declared sections 299 to 338 repugnant to the Injunctions of Islam. The Federation of Pakistan as well as Private Persons, preferred appeals under Article 203-F of the Constitution, before Shariat Appellate Bench, which were disposed of vide judgment reported in PLD 1989 SC 633, whereby, the President of Pakistan was required to take steps to amend the P.P.C., so as to bring it in conformity with the Injunctions of Islam under Article 203(3)(a) of the Constitution. It appears that despite lapse of stipulated period, the Competent Authority could not do necessary legislation and filed a Review Application whereupon the Hon'ble Supreme Court held that in absence of required legislation, the provisions of sections 299 to 338 shall cease to have effect from the day when the decision of the Shariat Appellate Bench, has taken effect and in state of vacuum vis-a-vis statute law, on the subject, the common Islamic law/Injunctions of Islam as contained in Holy Qur'an and Sunnah relating to offences of Qatl, Jurh (hurt) shall be deemed to be the law on the subject and Courts while hearing and deciding the cases of Qatl and Jurh (Hurt) in accordance with the common Islamic law/Injunctions of Islam as contained in Holy Qur'an and Sunnah, may also seek guidance from the provisions of the Ordinance, if it in the meantime having once been enforced had elapsed or otherwise had become unenforceable. As such, in view of the command of Constitution as well as the mandate of the Judgment of Hon'ble Shariat Appellate Bench, Criminal Law (Amendment) Ordinance, 1990 was promulgated on 5th September, 1990. The Ordinance could not be made Act of the Parliament; as such, before its lapse, by the efflux of time it was continuously followed by the successive Ordinances, up to date. As far as, non-Tribal Areas of the Province of Balochistan are concerned, there had been no difficulty to try the accused under the amended provisions of Penal Code, however in Tribal Areas, difficulty was experienced by the Court in charging the culprits under new Islamic provisions of the law, relating to offences, against human body, because Ordinance was not extended over there. Article 247(3) of the Constitution envisages: "247(1) ....................................
7. (2)
(3) No act of (Majlis-e-Shoora (Parliament)) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of (Majlis-e-Shoora (Parliament)) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Government of the Province in, which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction."
8. ' Although in the instant proceedings, directly this question was not involved but during hearing of the matter being a question of law cropped up for consideration. As such, it was decided that besides hearing the learned counsel for petitioner Mr. Zafar as well as learned Advocate-General, on 2-8-1993, notice was also issued to the Attorney-General of Pakistan. In the meanwhile, senior Members of the Bar Messrs Ehsanul Haq, Basharatullah Aslam Chishti, S.A.M. Quadri and Tariq Mehmood, Advocates were also asked to assist the Court as amicus curiae.
9. ' Despite issuance of notice, neither the Attorney-General for Pakistan, nor his representative appeared to address the Court.
10. ' Except learned amicus curiea Mr. Aslam Chishti and Mr. SA.M. Quadri, other learned Advocates, including the Advocate-General and Additional Advocate-General, were of the view that without adhering to Article 247(3) of the Constitution, the Criminal Law (Amendment) Ordinance, 1990, automatically does not stand extended to the Provincially Administered Tribal Areas, as according to them, compliance of this Article is mandatory requirement. Additionally they stated that in absence of the application of amended sections 299 to 338, P.P.C., the Courts can seek assistance and guidance from the Judgment of Shariat Appellate Bench, passed in Review Application PLD 1990 SC 1172.
11. ' Learned Advocate, Mr. Aslam Chishti, addressed that the President of Pakistan has promulgated an Ordinance to amend P.P.C. So as to bring it in conformity with the Injunctions of Islam in pursuance of Article 203(3)(a) of the Constitution which was mandatory in view of the directions of Hon'ble Shariat Appellate Bench. Therefore, in such type of legislation provisions of Article 247(3) of the Constitution, shall not be applicable. As such, the said Ordinance, automatically will be deemed to have been extended in the Provincially Administered Tribal Areas.
12. ' Mr. SA.M. Quadri, learned counsel concurred with Mr. Aslam Chishti, Advocate and added that the steps taken by the President of Pakistan for implementing the directions of Hon'ble Shariat Appellate Bench, which have been made to make the laws in accordance with the Holy Qur'an and Sunnah, under the Constitution, cannot be frustrated on the excuse that without complying with Article 247(3) such legislation will have no operation in that Areas.
13. ' At the first instance, it is to be determined that in the Constitution, Chapter 3-A was inserted by the Constitution (Amendment) Order, 1980/President Order No,1 of 1980. In pursuance whereof, the Federal Shariat Court was constituted with its jurisdiction in whole of the Pakistan, including Federally as well as Provincially Administered Tribal Areas. There was no corresponding provisions in this Chapter or any Article inserted therein like sub-Article (7) of Article 247, by means of which, the Supreme Court or High Court, shall not exercise any jurisdiction in relation to a Tribal Areas, unless Majlis-e-Shoora (Parliament) by law or otherwise provide: ' It may be re-called that in abrogated Constitution of 1962 as well as in Interim Constitution of 1972, identical provisions were incorporated, as such, to confer the jurisdiction on Superior Courts, Tribal Areas (Restoration of Jurisdiction) Act (II of 1964) was promulgated which now had been protected and saved under Article 268 of the Constitution. In this behalf, reference can be made to Malik Ghulam Jilani v. Assistant Commissioner, Kolhu and another PLD 1975 Karachi 728. It may not be out of context to note that jurisdiction of the Supreme Court and High Court by Act II of 1964 was extended to the Tribal Areas which were situated in territory of the then Quetta Division. All the Provincial Tribal Areas under. Article 246(ii) namely Zhob District, Loralai District, excluding Dukki Tehsil, Dalbandin Tehsil of Chagai District and Marri and Bugti Tribal Territories of Sibi District were included in the then Quetta Division, as such, notwithstanding the fact that from administrative point of view the Provincial Government now had created Zhob Division at Loralai or had formed some of the areas mentioned therein as independent Districts or some of the earlier Districts had been bifurcated in more than one Uhits but for the Constitutional purposes all the above areas shall be deemed to be in Quetta Division unless Constitution on its amendment has not provided otherwise. So it' is concluded that any declaration under Article 203-D of the Constitution, made by the Federal Shariat Court and under Article 203-F by the Shariat Appellate Bench in respect of the laws, which already had its application in the Provincially Administered Tribal Areas to make them in conformity with the Injunctions of Holy Qur'an and Sunnah, shall have its full applications as well as Constitutional effect.
14. ' Now to examine the contention of Mr. Aslam Chishti, Advocate, it would be appropriate to reproduce Article 89(1) and clause (a) of sub-Article (3) of Article 203-D of the Constitution, which read as under:--- "89.--(1) The President may, except when the National Assembly is in session, if satisfied that circumstances exist, which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
15. 203-D(3).--(a) The President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative list, or the Governor in the case of a law with respect to a matter not enumerated in either of those lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam;"
16. ' Since the offences against human body in un amended P.P.C. Have been declared contrary to Injunctions of Islam, therefore, the Articles concerning the powers of temporary legislation has been reproduced above, because the offences covered by P.P.C. Have been enlisted in Federal Legislative List and the President of Pakistan to implement the declaration, made by the Shariat Appellate Bench had amended sections 299 to 338 through Ordinances from time to time. On comparison of the above two provisions of Constitution, one can visualize that in latter Article, no discretion is left with the President, except to take steps to amend the law so as bring it into conformity with the Injunctions of Islam, after pronouncement by the Federal Shariat Court or the Shariat Appellate Bench. Whereas in the former Article promulgation of Ordinances by the President depends upon the circumstances coupled with the fact that immediate action is required to be taken, in the circumstances when National Assembly is not in session. Another prominent difference between both the Articles is that in the cases covered by latter Article it is the President and no one else, who is bound to ensure the implementation of the declaration made by the Federal Shariat Court etc., notwithstanding the fact, whether the Parliament had consented to make the Ordinance as an Act but in absence thereof, till the time, the judgment is holding field it would be his duty to go on taking steps in that behalf, whereas in the former, the President is not bound to issue Successive Ordinances.
17. ' The above distinguishing features if are compared with Article 247(3) of the Constitution, it is abundantly clear that after issuance of an Ordinance to bring the already applicable laws in tribal area in conformity with the Injunctions of Islam, the President is not required to issue fresh directions in respect of the legislation which he himself has made or which subsequently was passed by the Parliament in pursuance to the directions of Federal Shariat Court or Shariat Appellate Bench. Thus no conclusion, except that without formally extending Criminal Law (Amendment) Ordinance, 1990, which ordinarily is known as Qisas and Diyat Ordinance, under Article 247(3) of the Constitution, it shall stand extended in the Provincially Administered Tribal Areas and in the eve of lapse of Constitutional measures to implement the directions of Hon'ble Shariat Appellate Bench, the Courts functioning in Tribal Areas, will seek guidance from the provisions of the Ordinance, which has already lapsed, as it has been declared by Hon'ble Shariat Appellate Bench, in PLD 1990 SC 1172. Relevant para. Therefrom for future guidance is reproduced herein below:--- "It is also held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411 A.H., the said provisions would nevertheless cease to have effect on 12th Rabi- ulAwwal. In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi- ul-Awwal and same lapses or otherwise becomes un unforceable due to any reason, creating a similar vacuum in the Statute law on the subject. In the afore-visualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic Law/Injunctions of Islam as contained in Qur'an an Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable. All these matters stand disposed of."
18. ' Turning to the next point it would be useful to observe that in the Provincially Administered Tribal Areas, the Frontier Regulation was applicable regulating both Criminal as well Civil disputes. In 1976 to decide the Civil disputes amongst the private parties, Balochistan Civil Disputes (Shariat Application) Regulation, 1976 was promulgated and the Courts of Qasis were created being original Court of jurisdiction with Majlis-e-Shoora, .Having original as well as appellate jurisdiction throughout in those areas. Thereafter this Court in the case of Moulvi Mahammad Ishaque Khosti v.
19. Government of Balochistan PLD 1979 Quetta 217 declared the `FCR' repugnant to the Injunctions of Islam. The necessary consequence thereof were that for the trial of criminal cases no forum was available in Tribal Areas, thus to fill up the vacuum the President of Pakistan did legislation by reference and extended the Criminal Law (Special Provisions) Ordinance II of 1968 to the Provincially Administered Tribal Areas through a Regulation called the Criminal Law (Special Provisions) (Application to the Provincially Administered Tribal Areas of Balochistan) Regulation, 1979 sections 2, 3 and 4 of the Regulation are reproduced herein below:-- "2. Application of West Pakistan Ordinance No, II of 1968 to the Tribal ' Areas.--The provisions of the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance No, II of 1968) shall apply to the whole of the Provincially Administered Tribal Areas of Balochistan subject to the modification that references therein to `Deputy Commissioner' and 'Assistant Commissioner' shall be construed as references to 'Political Agent' respectively.
3. Repeal.--The Frontier Crimes Regulation, 1901 (Regulation II of 1901), is hereby repealed.
4. Transfer of pending cases.--All criminal cases which were pending under the Frontier Crimes Regulation, 1901 (Regulation III of 1901), immediately before the commencement of this Regulation in the Provincially Administered Tribal Areas of Balochistan shall on such commencement, stand transferred to a tribunal constituted for the purpose under the Criminal Law (Special Provisions)
20. Ordinance, 1968 (West Pakistan Ordinance No, II of 1968)."
21. ' It may be seen that according to the Preamble of the Regulation, it was found expedient by the Competent Authority to apply the Ordinance II of 1968, as such, the expression of 'Deputy Commissioner' and 'Assistant Commissioner' through section 2 were directed to be construed as reference to `Political Agent' and 'Assistant Political Agent'. The rest of the provisions of Ordinance II of 1968, were adopted in extenso. It may be noted that Ordinance II of 1968 was found to be inconsistent with Articles 25, 2-A and 175(3) of the Constitution, as such, was declared, a void law, by this Court in the case of Balochistan Bar Association and others v. Government of Balochistan and others (PLD 1991 Quetta 7). The Government of Balochistan feeling dissatisfied from the above decision preferred an appeal before Hon'ble Supreme Court. However the same was dismissed vide judgment reported in PLD 1993 SC 341, upholding the judgment of this Court. Relevant para being advantageous, is reproduced herein below:-- "17. In these circumstances, as Ordinance II of 1968 is declared to be void being in conflict with Articles 9, 25, 175 and 203 of the Constitution, the question arises what further relief should be granted as in the absence of Ordinance II of 1968, there should be some valid law to hold the field. It has been admitted that District Judges and Civil Judges are functioning -in the very District. In cases of violation of fundamental rights the superior Courts are empowered to issue directions to the Federal Government or the Provincial Government to bring the law in conformity with fundamental rights and/or enforce law and issue notification in that regard. The State as defined in Article 7 is bound to discharge its Constitutional obligation. In case of failure even the legislature and executive can be directed to initiate legislative measures to bring law in conformity with the fundamental rights. In these circumstances, while maintaining the impugned judgments we dismiss the appeals, declare Ordinance II of 1968 as void being in conflict with Articles 9, 25, 175 and 203 of the Constitution and direct the appellant---
(i) to issue necessary notification in terms of subsection (2) of section 1 of Ordinance XII of 1972 for enforcing the aforesaid Ordinance by creating posts of and separately appointing Judicial Magistrates and Executive Magistrates and to place Judicial Magistrates under the administrative control of the High Court within a period of three months;
(ii) to take necessary steps as required by the Constitution to amend and implement laws and rules relating to Court, Judiciary and its officers and lower staff to bring them in conformity with Articles 9, 25, 175 and 203 of the Constitution, within a period of six months."
22. ' The above development has given rise to the following supplementary question:--
(i) What would be the effect of law having been declared void being inconsistent with the fundamental rights?
(ii) What would be the effect of a void law i,e, Ordinance II of 1968, on the Regulation of 1979?
23. ' Mr. Zafar, learned counsel for petitioner contended that the provisions of Regulation of 1979, were not challenged before this Court independently for getting it declared as inconsistent with the fundamental right, therefore, in the Tribal Areas, the Regulation shall continue to have its effect keeping in its fold all provisions of Ordinance II of 1968, without considering its effect of being a void law and for that purpose the judgment passed by this Court as well as Hon'ble Supreme Court will not be attracted, and the cases shall continue to be tried under `Jirga System' considering the requirement of the Members of Tribal Areas.
24. ' Messrs Ehsanul Haq, Tariq Mehmood and Aslam Chishti, supported his contention. However Mr. Aslam Chishti, Advocate advanced two-fold argument:-
(i) The Regulation of 1979 should have been challenged independently.
(ii) Alternatively and without prejudice to the first limb of his contention, he stated that if the judgment of this Court as well as Hon'ble Supreme Court are read together to test the Regulation at the touchstone of Article 8(1) of the Constitution, even then the Regulation shall have no effect of repeal, and it shall remain in the books as a Floating Statute."
25. ' The then Advocate-General, Raja M. Afsar, as well as Chaudhry Ejaz Yousaf, Additional Advocate- General, also emphasised that the voidness of the provisions of Ordinance II of 1968, shall have no effect on the Regulation and the cases shall continue to be decided by the `Jirga' in the Provincially Administered Tribal Areas.
26. ' Mr. Basharatullah, learned amicus curiae, opposed the submissions. According to him, since Ordinance II of 1968 has been found inconsistent with the Fundamental Rights, which have been restored throughout the country as back as in 1985, therefore, to enjoy such rights, no classification is permissible in respect of the citizens residing in the Tribal Areas. He stressed that in view of the judgment of this Court and Hon'ble Supreme Court, the Regulation of 1979 is nothing than an ineffective statute till the time, the fundamental rights are available. The learned counsel argued that Criminal Procedure Code is applicable in Tribal areas, which has created the Courts of Magistrate, Sessions Judges, etc. As such no difficulty will be experienced by the administration as well as judiciary in trying the culprits under the ordinary regular law, where they would be having better forums and facilities to defend themselves. As far as declaring Criminal Law (Special Provisions) Ordinance II of 1968, a void law being inconsistent with the fundamental rights is concerned, no detailed discussion is required in view of the earlier judgment of this Court which has been confirmed by Hon'ble Supreme Court. Now the limited question would be in respect of effect of a law which has been declared void being inconsistent with the fundamental rights. It may be observed that there are two categories of void laws, one which has been declared inconsistent with fundamental rights guaranteed by the Constitution and the second, being a law void for legislative incompetence. Since we are concerned with former category, as such we recapitulate the expression 'void law' with reference to 'inconsistency with Fundamental Rights' and its interpretation. In this behalf in AIR 1974 SC 1300, it was held that where Fundamental Rights have been conferred only on some persons, natural or juristic, a pre-Constitution or post-Constitution law contravening those rights is void qua those persons but is valid qua other persons on whom those rights have not been conferred. It was further laid down in this judgment that a law which is repugnant to the Fundamental Rights enshrined in the Constitution is neither void ab initio, extinct, still-born or non nor it obliterated from the Statute book. It rather exists totality without any portion of it being eclipsed by any outside object and is operative as such for per-Constitutional matters and with regard to persons other than those enjoying fundamental rights. In the case of Abul A'ala Maudoodi PLC 1964 SC 673 the Hon'ble Supreme Court held that void law being inconsistent with the Fundamental Rights 'ineffective' in the premises and not obliterated or repealed to the extent of inconsistency. It was the opinion of the Lordships that inconsistent law remains in a state of hibernation but becoming operative again if fundamental rights disappear and Hon'ble Division Bench of Lahore High Court in the case of Province of Punjab through its Home Secretary and 3 others v. Gulzar Hussain, dvocate and 8 others (PLD 1978 Lahore 1298) after having surveyed a plethora of case-laws formed the following opinion :-- "33. It is quite clear from the above resume of the prevailing opinions of the various Courts enjoying a legal and constitutional system similar to ours that a law or its provisions which are inconsistent with the Constitution basic norm or a supreme law do not die and are neither still born, non est or non-existent nor are they effaced or obliterated from the statute book. Rather such a law or such of its provisions do exist totally to be applicable to the pre-Constitutional matters and also to those to whom the Fundamental Rights afford no protection. Further such a law of those provisions may re- appear to be operative as soon as Fundamental Rights or the supreme law cease to exist."
27. We are in full agreement with the illuminating and instructive judgments (ibid) and hold that Ordinance II of 1968 is no more an effective law. Now in this context it is important to note that after a long considerable period the fundamental rights guaranteed in the 1973 Constitution were revived in 1985 when the state of Emergency under Article 233 of the Constitution was lifted. So the conclusion would be that in absence of invocation of the provisions of Article 233 of the Constitution, irrespective of the fact that a class of persons is living in the Provincially Administered Tribal Areas, they shall be entitled to enjoy the Fundamental Rights in the same situation and manner which are being enjoyed throughout in the Province as well as in the country by the general public without any discrimination. As far as their rights are concerned that would be preserved under Articles 4 and 25 of the Constitution.
28. ' Thus with reference to second supplementary question, it would be considered, whether a former law having been declared void shall operate validly with the law, which has adopted it.
29. ' According to the petitioner's Counsel as well as other learned amicus curiae, except Mr. Basharatullah, Advocate, since Regulation of 1979, had adopted Ordinance II of 1968, therefore, unless it is not challenged and examined independently with regard to its application in the Tribal area, it shall continue to remain operative. With a view to understand the Doctrine of Legislation by reference, it is necessary to quote hereinbelow para. 234 from Crawford Statutory Construction:-- S.234. Adopted Statutes.--A statute may adopt all or only a part of another statute by express reference, or by re-enactment of the former in verbatim or in substantially the same language.
30. Where this is true, the adopted provisions become a part of the adopting statute. Similarly, a statute may adopt the provisions of another statute by what is known as descriptive reference. In this case, the adopted provisions become a part of the adopting statute but only those provisions which relate to the new statute's subject.
31. ' Moreover, the omission of a provision from an adopting statute indicates that it was not intended that such provision should be adopted. And in like manner, the departure in a statute, modeled after the statute of another state, from the phraseology of the latter statute, shows that the legislature intended to express an intent different from that expressed in the latter enactment.
32. ' Furthermore, it is also a general rule that the adoption of a statute of another State or country, will also carry with it the interpretation or construction placed upon such statute by the highest Courts of the jurisdiction from which the statute was adopted. In fact, there is a presumption that the legislature in adopting a statute also adopts the construction which has been placed upon it, in the absence of some indication of a contrary intent. This rule is applicable to Federal Statutes adopted by a State, or to State statutes adopted by the Federal Government. But the construction placed on a State statute by the highest Court in the State, if such statute was copied into a Federal Statute, would not under all circumstances be binding on the Federal Court. Statutes adopted from the Law of England, however, will bear the construction placed thereon by the English Courts."
33. ' In the American Jurisprudence, Second Edition, Volume 73 at pages 284 to 286, the effect of subsequent amendment or repeal of an adopted statute has been discussed as follows:- "28. General. The adoption of an earlier statute by reference makes it as such a part of the later act as though it had been incorporated at full length.
29. Effect of subsequent amendment or repeal of adopted statute,-- is a general rule that when a statute adopts a part or all of another statute, domestic or foreign, general or local, by a specific and descriptive reference thereto, the adoption takes the statute as it exists at this time, and does not include subsequent additions or modifications of the adopted statute, where it is not expressly so declared. But when the adopting statute makes no reference to any particular statute or part of statute by its title or otherwise, but refers to the law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of the adopting act, but also subsequent laws on the particular subject referred to, in so far at least as they are consistent with the adopting act. Indeed there is even authority that when the reference is general, the referring statute takes the law referred, to not only in its contemporary form but also as it may be subjected to elimination altogether by repeal... .. .."
34. ' A careful study of relevant provisions of the Regulation reveals that it being an adopting statute had not made reference to any particular part of Ordinance II of 1968, but it has adopted it generally as a whole therefore, any subsequent amendment, modification, repeal etc: shall be read into Regulation of 1979. Thus in view of this principle of interpretation of adopting statute, declaration made in the case of Balochistan Bar Association shall also equally effect the Regulation of 1979 and it would also remain ineffective so long the Fundamental Rights are exercisable in the Provincially Administered Tribal Areas.
35. ' The next question for consideration would be that Hon'ble Supreme Court while upholding the judgment in the case of Balochistan Bar Association, has also considered provisions of Article 175(3) of the Constitution relating to separation of Judiciary from Executive and made certain directions which have already been reproduced hereinabove, and in pursuance of the directions contained therein the Provincial Government issued a Notification which is reproduced here in below:--- "NOTIFICATION.
36. ' No, US(JUDL.)4(5)/93-6269-6311/.--In exercise of the powers conferred by subsection (3) of section 1 of the Criminal Law (Special Provisions) Ordinance, 1968 (II of 1968) the Government of Balochistan is pleased to cease the application of the provisions of the said Ordinance and shall be deemed to have been repealed wherever applicable, with effect from 10th November, 1993."
37. ' After the issue of above Notification we again called the counsel appearing in this case to examine its implications in pursuance whereof point No,3 has been framed hereinabove.
38. We heard the learned counsel at length who put forth their respective view-points, but in the meanwhile a Division Bench of this Court in C.P. No,17/94 independently considered the effect of above Notification and vide judgment dated 27th June, 1994, laid down the following categories for regulating the pending cases, which are as under:---
(i) Matter where on appointment of tribunal, recording of evidence had commenced before 10th October, 1993, shall be decided by the Tribunal/Deputy Commissioner, and appeals and revisions lie in the hierarchy of forums under 'the Ordinance'; Matter pending adjudication by way of appeals or revisions shall be finalized unaffected in accordance with provisions of 'The Ordinance';
(iii) Matter; irrespective, when offence was committed where cognizance has not been taken or where colourable cognizance is taken but evidence has not commenced by or before 10th October, 1993 shall be dealt with and tried under normal law, by Courts functioning under Criminal Procedure Code, and
(iv) Matters which have been family decided under 'The Ordinance' and transactions are past and dosed by or before 10th October, 1993 shall not be open to any inspection, merely because Ordinance II of 1968 has been declared as void law."
39. ' Since the judgment of the Division Bench of this Court is binding on this Bench therefore, we feel no-necessity to note down and dilate upon the respective contentions of learned counsel, except adding that the pending cases in the Provincially Administered Tribal Areas shall be governed on the basis of above criteria.
40. ' The upshot of the above discussion, emanates as under:---
(i) The Criminal Law (Amendment) Ordinance, 1990 stands extended to Provincially Administered Tribal Areas without seeking directions of the President of Pakistan under Article 247(3) of the Constitution of Islamic Republic of Pakistan, 1973.
41. The Criminal Law (Special Provisions) Application of Provincially Administered Tribal Areas of Balochistan Regulation, 1979, shall remain ineffective and the forums which have already been identified in PLD 1993 SC 341 shall dispose of the criminal cases.
(iii) The implication of the Notification dated 12th December, 1993 would be the same as has been held by the Division Bench of this Court in C.P. No,17 of 1994, vide judgment dated 27th June, 1994, and the pending cases, awaiting for decision shall be dealt with on the basis of same criteria, as laid down therein, and has also been reproduced herein-above.
42. ' Adverting to the merits of the case, as far as the Criminal Revision No,54 of 1992 is concerned wherein relief has been claimed for the transfer of case from the Court of Sessions Judge to Deputy Commissioner, Zhob, after setting aside order dated 29th October, 1991, is concerned, cannot be allowed, because the case falls under Category (iii) of the criteria, laid down in the judgment passed in C.P. No,17 of 1994 ' As far as the Criminal Bail Applications Nos.116, 117 and Suo Motu Reference No,12 of 1993, are concerned those will be enlisted before Single Bench after issuance of notice to all concerned, so the matters can be decided on merits, after perusal of the case record.
43. ' Before parting with the judgment, we would like to place our thanks on record for the learned counsel, who appeared as amicus curiae and assisted the Court in reaching the above conclusions.