' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the order of the High Court, dated 29th December, 1996, whereby the revision petition filed by respondent No.1 was dismissed.
2. According to the case of the petitioner, herein, on 1-4-1995, he was walking on Water Supply Road at District Headquarters, Bagh, when Muhammad Khurshid, respondent No.2, who was driving a jeep rashly, seriously injured the appellant and two others by colliding the vehicle with them. In view of serious nature of his injury, the appellant was removed to Pakistan Institute of Medical Sciences, Islamabad, where his leg was amputated to save his life. Meanwhile, a criminal case was registered against respondent No.2 under sections 279, 337 and 338, A.P.C., and after investigation he was challenged in the Court of S.D.M. Respondent No.2 confessed his guilt before the Court and was convicted and awarded punishment of fine of Rs.200 under section 279, A.P.C. Rs.300 under section 337, A.P.C. And Rs.500 under section 338, A.P.C. Consequently, the Government filed a revision petition before the High Court but the same was dismissed by the High Court holding that in the circumstances of the case the trial Court did not commit any error while awarding sentence of fine to the accused-respondent.
3. It has been argued by Sardar Muhammad Sayab Khalid, Advocate, the learned counsel for the appellant, that the offence in the instant case is alleged to have been committed on 1-4-1995, whereas the amendments in A.P.C. And Cr.P.C. Were brought vide Ordinance promulgated on 19-7- 1995, the case was challenged in the Court of Magistrate on 28-12-1995, the date on which the accused-respondent made confession and was convicted and sentenced by the Magistrate. The learned counsel has argued that 28-12-1995, the date when the challan was filed and cognizance of the offence taken would determine the forum before which the accused should have been challenged. The learned counsel has maintained that on 28-12-1995, section 337, A.P.C. Had been substituted by various other penal provisions including section 337-G, which would be attracted to the case in hand because section 337, A.P.C. Was no more on the statute book. He has argued that the relevant date in the case would be the date on which the Magistrate examined the accused- respondent under section 242, Cr.P.C. And recorded his confessional statement. Thus, in the estimation of the learned counsel for the appellant, the relevant date for deciding the question as to which of the Court had the jurisdiction to try the offence would be the date on which cognizance of the offence was taken and not the date on which the offence was committed. The learned counsel for the appellant strenuously argued that as on 28-12-1995, when the challan was filed. The District Criminal Court had the jurisdiction to try the case and not the Magistrate, irrespective of the fact that the offence was committed on 1-4-1995. When the learned counsel was confronted with the situation that if his submissions are accepted as valid, how the District Criminal Court could not try the offence under section 337, A.P.C. In view of the amendments made in Azad Penal Code and Code of Criminal Procedure, the learned counsel maintained that despite that the challan should have been filed before the District Criminal Court. However, the said Court could not convict and sentence the accused under section 337-G, A.P.C. In view of the fact that the offence had become graver as a result of enhanced punishment prescribed through the said amendments. He has argued that in such an eventuality, the District Criminal Court had the jurisdiction to convict the accused under section 337-G, A.P.C. But could not award the punishments more severe than provided under section 337, A.P.C. The learned counsel has cited the following authorities in support of his contentions:-- ' In case reported as Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, it was observed that if the matter is merely of procedural nature, it will operate retrospectively. However, it was observed that if a procedural amendment is of such a nature that it also affects existing rights of substantive nature or if retrospective operation is given to the procedural amendment that would cause inconvenience or injustice, then the Court will not give it a retrospective effect.
' In case reported as Nabi Ahmed v. Home Secretary, Government of West Pakistan, Lahore PLD 1969 SC 599, it has been observed that the statutes are presumed to be applicable to the cases and facts coming into existence after their enactments unless there is clear intention to the contrary giving retrospective effect to the law. It has been further observed that every law that makes an action penal which was innocent when it was done or aggravates a crime, or makes it a greater offence than one when it was committed or it changes the punishment or inflicts greater punishment, or changes substantive law would operate prospectively until and unless contrary intention appears in the statute. However, this principle would not apply in cases of procedural matters which would ordinarily apply to the pending proceedings. While dealing with the question of procedural and substantive law following observations were made at page 613:-- "People do not mind changes in law, if only the procedure is altere without altering the substance of the law. True, it is not easy to draw a line between substantive and procedural law, but the task is not impossible if the essential difference is kept in mind. According. To Salmond's Jurisprudence 12th Edition of 1966 at p.128-- ' The law of procedure may be defined as that breach of the law which governs the process of litigation ... All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter.'
' Thus, ' a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party, rules defining the remedy ... As those which defined the right itself, that part of criminal law which deals, not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law. ' and, as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the change of forum-- ' if in the process ai.y existing rights are affected or the giving of retroactive operation causes inconvenience or injustice."
' In case reported as Muhammad Aslam v. The State PLD 1967 SC 259, the facts were that the incident which led to the prosecution of the accused persons took place on 18-1-1963. They were committed for the trial to the Court of Sessions by order of the Committing Magistrate, dated 6-6- 1963. Till that time the Code of Criminal Procedure provided for trial of such cases by the Court of Session with the aid of assessors. On 1-4-1964, the Code of Criminal Procedure was amended whereby all trials before the Sessions Courts were to be held without assessors. The question arose as to whether the trial should be held with the aid of assessors or without them in view of the amendment. It was observed that the trial of. The accused persons would be deemed to have commenced when they were examined by the Magistrate under section 242, Cr.P.C. Thus, it was observed that even if the trial without the aid of assessors is not merely a matter of procedure but goes beyond that, the fact remains that there is no reason why the trial should not be held without the aid of assessors because the relevant law had been amended prior to the taking of cognizance of the offence by the Sessions Court.
' In case reported as Referring Authority/Chief Secretary, Azad Government of the State of Jammu and Kashmir v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112, while dealing with the scope of provisions contained in sections 6(a) and 9 of the Holders of Representative Offices (Disqualification) (Amendment) Ordinance, 1981, it was observed that rights of the parties are to be decided according to law which existed at the time of initiation of the action and not according to law which existing at the time of the judgment or order. However, it was observed that if the matter is merely of procedural nature, that would operate retrospectively, if it was not otherwise intended, by the Legislature.
' In case reported as State Bank of Pakistan v. Pervez Iqbal Bhatti, Proprietor, Former Bhatti Trading Company, Peshawar PLD 1995 Peshawar 112, it was observed that after the substitution of sections 23-B, 23-C and 23-E of Foreign Exchange Regulation Act, 1947 by section 4 of Finance Act, 1987, a new forum had been provided and the old forum had been omitted., It was observed that the repealing Act provided a new forum for the trial of the cases which took place before the promulgation of repealing Act, and, thus, the new forum was competent to try the cases.
' In case reported as Brig. (Recd.) F.B. Ali v. The State PLD 1975 SC 506, it was observed that mere lodging of information against a person does not make him an accused nor can a person be called accused against whom investigation is conducted by the Police.
4. In reply, Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for accused-respondent, has contended that the arguments advanced by the learned counsel for the appellant that the relevant date for determining the forum for trial in the instant case would be the date on which the accused was examined by the Magistrate under section 242, Cr.P.C. Or for that matter the date on which the challan was presented is not tenable. He has argued that the question to be decided in the case is as to whether the aforesaid amendments are merely of procedural nature or those travel beyond that and affect the vested right of the accused-respondent. The learned counsel has maintained that the factors which would determine the forum for trial would depend upon the nature of amendments brought in law and the date of the commission of offence. He has argued that when the accused-respondent committed the offence, it was triable under section 337, A.P.C.
And other penal provisions of Azad Penal Code, as no amendments had been made in Azad Penal Code of Criminal Procedure by that time. He has argued that the offence committed by rash and negligent driving, after the amendments, falls under section 337-G, A.P.C. For which the accused is liable to the punishment of "Arsh" or "Daman" specified for the kind of hurt caused and he can also be punished with imprisonment for a term which may extend to five years as "Taazir". The learned counsel maintained that after the said amendments, the gravity of the offence has been enhanced and punishments prescribed have also been changed. Thus, the learned counsel for the respondents maintained that the aforesaid amendments are not merely of procedural nature but travel beyond that. Therefore, those would not operate retrospectively because it has not been so provided by the amending Acts. According to the learned counsel, only the Magistrate had the jurisdiction to try the case and not the District Criminal Court because it was not vested with the powers to try the offence under section 337, A.P.C. The learned counsel for the respondent has cited the following authorities in support of his arguments:-- ' In case reported as Karam Hussain v. Basharat Hussain PLD 1991 SC (AJ&K) 27, it was held that if the change is not merely of procedural nature but it also affects the substantive rights, the statute cannot be given retrospective effect. It was observed that the amendment whereby subsection (2) of section 24 of the Islamic Penal Laws Act, 1974 was deleted would not apply to the cases which were pending before the Sessions Judge and, thus, the same could not be transferred to the District Criminal Court constituted under the Islamic Penal Laws Act, 1974.
' In case reported as Karam Hussain v. The State PLD 1989 Shariat Court (AJ&K) 11, it was held that the amendment brought in section 24 of the Islamic Penal Laws Act, 1974 was not merely of procedural nature but affected the substantive provisions of law and had no retrospective operation. Thus, it was observed that the cases pending before the Sessions Judges would not be affected and they would continue to proceed with the trials.
' In case reported as Sona v. The State PLD 1970 SC 264, it was observed that one of the effects of the repeal of law is that legal proceedings or remedy in respect of any of such rights, privileges, obligations, liabilities, penalty, forfeitures or punishment is not affected and any such investigation, legal proceedings, remedy may be instituted continued or even enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed at all.
' In case reported as Muhammad Bashir v. Muhammad Firdaus PLD 1988 SC 232, it was observed that where a statute purports to transfer the jurisdiction over certain causes of action, it may operate retrospectively because the change of forum is a matter of procedure. But when in such a process any existing rights are also affected or retrospective operation causes inconvenience or injustice, then the Court will not, even in case of procedural statute, favour an interpretation giving retrospective effect to the statute. It was further observed that the change of forums in the statute are not to be given retrospective effect, unless a clear intention to that effect was expressed; to deprive a person of a right of appeal to a superior Tribunal is a right which is different from merely regulating the procedure.
' In case reported as Asif Ali Zardari v. The State 1993 PCr.L.I 781, it was observed that a statute which impairs vested rights or the legality of past transactions or obligations of contract should not be held to operate retrospectively. However, the statute which takes away or impairs the vested rights acquired under the existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have retrospective effect unless a clear intention is expressed in that regard.
' In case reported as State v. Sahib Dad PLD 1981 Azad J&K 88, it was held that amendment under section 24(2) of the Islamic Penal Laws Act, 1974, cannot operate retrospectively and the cases being tried before the Sessions Judges would not be transferred to the District Criminal Courts consisting of Sessions Judge and Qazi.
' In case reported as Zargul v. The State 1989 SCM R 529, it was held that as the expression in section 57 of the P.P.C. Was 'transportation for life' when the offence was committed, it was subsequently changed to 'imprisonment for life'. Thus, the amendment would not apply to the case of the accused concerned because when the offence was committed, the penalty was 'transportation for life'. As a result of the said change, the term of the imprisonment was increased from 20 years to 25 years.
5. It is evident from the authorities cited above that whether a law is merely of procedural nature or it also affects the substantive rights or it is statute which deals with the procedure and substantive rights both simultaneously, is to be seen in the light of the provisions of particular statute and no general principle can be laid down that law in a particular case would operate retrospectively or prospectively. Thus, the question as to which of the forums would be competent to try the case would depend upon the question as to the nature of the amendment. The effect of Cr.P.C.
Amendment Act, 1995 and Penal Code Amendment Act, 1995 on the offences committed before the promulgation of the said amendments would depend upon the nature of the amendments which have been brought in the relevant provisions of the law, i.e. Whether the same are merely of procedural nature or of substantive nature or deal with both procedure and substantive rights. In the instant case, the nature and quantum of punishment in cases of different kinds of hurts have been changed; punishment for causing hurt by rash and negligent driving has been enhanced as compared with the punishment which was provided under section 337, A.P.C. Under section 337-G, A.P.C. The accused who causes hurt by rash and negligent driving is liable to the punishment of Arsh or DamPrI specified for the kind of hurt and the punishment of imprisonment of five years as Taazir, whereas under section 337, A.P.C. The punishment prescribed is six months or a fine of Rs.500 or both. Evidently, the punishment prescribed for causing injuries by rash and negligent driving under section 337-G, A.P.C. Is much more harsh as compared with the punishment stipulated under section 337, A.P.C. Therefore, after the aforesaid amendment in the A.P.C. Not only the nature of offence of causing injury by rash and negligent driving has become graver but the punishment prescribed for various kinds of injuries has also been increased. As indicated above, the offence in the instant case was allegedly committed on 1-4-1995 and challan in the Court was put up on 28-12-1996 whereas the aforesaid amendment in the law was brought on 19-7-1995, i.e. After the commission of the offence under section 337, A.P.C. Thus, in the instant case it cannot be said that the amendments made in the aforesaid two enactments are merely procedural in nature and do not affect the substantive rights of the parties concerned. Therefore, in our opinion, the contention that the amendment made in the A.P.C. Whereby the offence under section 337, A.P.C.
Was substituted would operate retrospectively is without any force and is hereby repelled.
6. The contention of the learned counsel for the appellant that the relevant date for determining the forum for the trial of the case in hand would be the date on which the challan was presented before the Magistrate or the Magistrate took the cognizance and not the date when the offence was committed is not tenable in view of the settled principles of law as reflected by the authorities discussed above. Similarly, the argument of the learned counsel for the appellant that when the offence was committed the accused-respondent was liable to punishment under section 337, A.P.C. but after the said amendments, only the District Criminal Court was competent to try the accused under section 337,G, A.P.C. Is also without any substance because the date on which the accused committed the offence, section 337-G was not on the statute book of the State and it had no jurisdiction to try a case falling under section 337, A.P.C. For elucidating the matter, section 6(c) of the General Clauses Act is reproduced as under:-- "6. Effect of repeal.--- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:-- (a)
(b)
(c)
(d)
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed (underlining is ours).
' It is clear from the above provision that the accused-respondent could be challenged under section 337, A.P.C. In the Court of Magistrate which had the jurisdiction to try the offences committed and not in the District Criminal Court.
7. The expression used in clause (c) of section 6 of the General Clauses Act, reproduced above, "that any such investigation, legal proceeding or remedy may be instituted, continued or enforced", is clearly indicative of the fact that after investigation by the Police, the challah was to be presented to the Magistrate and not to the District Criminal Court. Thus, in view of the proposition of law enunciated in the authorities, referred to above, the offence in question was essentially tribal under unlamented provisions of Penal Code by the Magistrate and not by the District Criminal Court as is contended on behalf of the appellant.
' Iii the light of what has been stated above, finding no force in this appeal, it is hereby dismissed.