1. BASHARAT AHMAD SHAIKH, J.--These two appeals have been filed as of right against the judgment of the Shariat Court announced on 28th of February, 1997 whereby the appellants were refused bail. The prayer for bail came up before the Shariat Court for the third time. On the first occasion bail was refused on merits as the appellants were found to be reasonably connected with the offences for which they had been charged. On the second occasion some of the appellants sought bail on medical grounds which could not be proved. This time bail was claimed on the ground that the appellants had been detained in custody for more than two years but their trial had not yet concluded.
2. The case against the present appellants and other accused persons was registered at Police Station Dhirkot under section 5 of the Islami Tazeerati Qawanin Nifaz Act read with section 15 of the said Act as well as sections 147, 148, 149, 341 and 307 of the Penal Code. Respondent No,2, Muhammad Nazir Khan, is the first informant who lodged the report on 13th of March 1994. The appellants were arrested after the registration of the case and they have been in custody for a period exceeding two years. However the Shariat Court has rejected their prayer for being enlarged on bail on the basis of statutory delay for two reasons. The first reason recorded by the Shariat Court is that the case had to be adjourned by the trial Court on three occasions because the appellants were not present in the Court as they were admitted in C.M.H., Muzffarabad. It has been observed that the counsel for the accused persons should have got his clients exempted from personal appearance so that time could be saved and statements of the prosecution witnesses could be recorded. The second reason which has appealed to the Shariat Court is that the appellants moved successive bail applications which caused delay. Before us lengthy arguments were addressed, which were spread over two days, in support of the appeals by Sardar Azad Tariq, Advocate and in opposition thereof by Kh. Attaullah, the learned Addl. A.-G. And Mr. Ashfaque Hussian Kiani, who represented the complainant. It was vehemently contended by the learned counsel for the appellants that the Shariat Court was not right in reaching the conclusion that the appellants were responsible for any delay disentitling them from the statutory right of being released on bail. It was explained at length by Sardar Muhammad Azad Tariq that the fact that some of the appellants were admitted in hospital could not be considered to be an act of the accused persons and they could not be held responsible for this delay. It was also pleaded with great vehemence that if an application for bail is moved by an accused person it is his right to do so and the learned counsel in particular took exception to the view taken in the judgment under appeal that the time consumed in deciding bail applications moved by the accused persons had to be deducted while calculating period of detention. This view was expressed for the first time by the Shariat Court of Azad Jammu and Kashmir in Muhammad Siddique v. The State 1991 PCr. LJ 683.
3. Apart from countering the arguments advanced on behalf of the appellants, Mr. Ashfaque Hussain Kiani, the learned counsel for the first informant, raised a point that the provision of law under which bail was being sought by the appellants was not in force because the Ordinance had not been published in Official Gazette and thus appeals are not maintainable. This point goes to the root of the case because if the point prevails it would mean that there is no law under which the appellants can be released on bail on the basis of statutory delay.
4. Section 497 of the Code of Criminal Procedure as previously in force was amended on 15th of November, 1996 through Ordinance No, XLIX of 1996 'known as the Code of Criminal Procedure (Amendment) Ordinance, 1996, to provide right of bail on the basis of detention for specified periods of undertrial prisoners. This Ordinance consisted of only two sections. Section 1 related to short title and commencement while section 2 sought to amend section 497. Section 2 is as follows:-- "Provided further that notwithstanding anything contained in section 27 of the Azad Jammu and Kashmir Islami (Tazirati) Qawanin Nafaz Act, 1974 the Court may, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person may be released on bail- -
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: Provided further that the provisions of the third proviso to this , subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who:--
(a) in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism;
(b) is not a State Subject of Azad Jammu and Kashmir; or
(c) a State Subject of Azad Jammu and Kashmir residing in Pakistan."
5. The appellants moved bail application before the trial Court on the ground that they were in continuous detention for a period exceeding two years and they were entitled to bail. Their application was decided on 12th of December, 1996. The appeal filed by them was decided by the Shariat Court on 28th of February 1997 while P.L.A. In this Court was filed on 3rd of April, 1997. During the arguments in this Court there was difference of opinion about the factual position whether the Ordinance was repeated or not. It was contended by Mr. Ashfaque Hussain Kiani that the Ordinance had not been repeated but copies of two Ordinances were produced by the learned counsel for the appellants Sardar Azad Tariq. The position is now clear that the Ordinance of 15th of November, 1996 was still in force when another Ordinance, being Ordinance No, I of 1997, was made by the President on 3rd of January 1997. It was also known as the Code of Criminal Procedure (Amendment) Ordinance, 1997. By this Ordinance, Ordinance No, XLIX of 1996 made on 15th of November, 1996, mentioned earlier, was repealed and the same provision about grant of bail on the basis of statutory ground was incorporated in it. Section 2 of Ordinance No,1 of 1997 is verbatim the same as was section 2 of the Ordinance XLIX of 1996. However a new section, namely section 3, was added to carry out some amendments in Schedule II of the Code of Criminal Procedure. This Ordinance was to remain in force till the 2nd of May, 1997. On 3rd of May, 1997 another Ordinance carrying the same provisions as those in Ordinance I of 1997 was made by the President of Azad Jammu and Kashmir. When appeals were filed in this Court on 3rd of April, 1997 Ordinance No, I was purportedly in force while Ordinance No, XVIII made on 3rd of May, 1997 was purportedly in force when arguments were heard in this Court on 3rd of June, 1997. All these are admitted facts but the point which has been raised before this Court is that these Ordinances have not been promulgated, as it required by the AJK Interim Constitution Act. The copies which have been supplied by the learned counsel for the parties are photo copies which carry the signatures of a Section Officer of the Law Department. The argument of Mr. Ashfaque Hussain Kiani is that these Ordinances have not been promulgated. He submitted that promulgation is made through publication in official Gazette which has not been done.
6. We checked up from our office that no Gazette containing these Ordinances were received in this Court. The system in vogue in the office of the Supreme Court is that, like any other document, when copy of a Gazette is received it is duly entered in the receipt register. The receipt register has been checked and it has been found that no such Gazette has been received. Even otherwise all copies of the Gazettes are properly filed in the office. It has also been found on proper checking that no Gazette has been received carrying these Ordinances. In fact it has transpired that even typed copies of these Ordinances were not sent to this Court. Above all Mr. Ashfaque Hussain Kiani filed a certificate signed by Senior Manager of Printing and Stationery Department in which he has certified that Ordinance No,I of 1997 and Ordinance No,XVIII of 1997 were in the final stages of publication. The certificate was issued on 3rd of June, 1997. In other words the said officer has certified that these two Ordinances, made, respectively, on 3rd of January, 1997 and 3rd of May, 1997 have not been published in the official Gazette till writing of the judgment in first week of October. It has also been found out from the record that the first Ordinance arraying the amendment under reference which was made on 15th day of November, 1996 has also not so far been published in official Gazette. Therefore, the question which has to be resolved is whether these Ordinances without being published in official Gazette can be said to have become law.
7. ' The power to make laws is vested in the AJK Council and the Legislative Assembly in light of the division of legislative powers laid down in section 31 of AJK Interim Constitution Act. Besides that the joint sitting is also vested with legislative power but it is restricted to the power of amending the AJK Interim Constitution Act. To meet emergent situations arising when the Assembly is not in session power of legislation is also vested in the President under section 41. Subsections (1) and (2), which are relevant in the present case, relate to Ordinance making in respect of matters which are within the legislative competence of the Legislative Assembly while subsection (4) provides for making of Ordinances in respect of subjects which are within the legislative domain of the AJK Council.
8. Subsections (1) and (2) are worded as follows:-- "(1) The President may, except when the 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. .
(2) An Ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly and shall be subject to like restrictions as the power of the Assembly to make law, but every such Ordinance--
(a) shall be laid before the Assembly and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; and
(b) may be withdrawn at any time by the President."
9. In subsection (1) it is laid down that President may "make and promulgate an Ordinance". It means that the President, apart from making an Ordinance, has to promulgate it. It is clear that "making" and "promulgation" are two different and independent steps. Subsection (2) lays down two things.
10. Firstly it lays down that an Ordinance "promulgated" under this section shall have the same force and effect as an Act of the Assembly. It means that an Ordinance "made" by the President does not have the effect of an Act of the Assembly but it has that force and effect when it is "promulgated".
11. Secondly subsection (2) lays down that an Ordinance shall have force and effect as an Act of the Assembly for four months from its "promulgation". Thus, the starting point is not the date on which an Ordinance is made. The conclusion is that an Ordinance comes into force not when it is made by the President but when the second step of promulgation is completed. This leads us to the question as to what is promulgation, but it may be pointed out before entering into that discussion that so far as the term "make an Ordinance" is concerned it does not pose any difficulty. In our view the moment when the President affixes his signature on an Ordinance it may be said that he has made that Ordinance.
12. The legislative history of Ordinance-making shows that promulgation has all along been a condition precedent. This was the position in the Government of India Act, 1919, Government of India Act, 1935, the Constitution of Pakistan 1956, the Constitution of Pakistan 1962 and the present Constitution of Pakistan (1973) contained provisions for making and promulgation of an Ordinance.
13. The condition of promulgation is not restricted to Ordinances. This condition is imposed by the Legislature in respect of Orders also. An example can be found in section 188 of the Pakistan Penal Code which lays down punishment for disobeying of an order promulgated by a public servant.
14. However the word "promulgate" has not been defined in any Constitution. Moreover, it has not ever been defined, as to what is meant by "promulgation". Therefore to ascertain its meaning the ordinary meaning have to be seen. The words "promulgate" and "promulgation" have been assigned the following meaning in Shorter Oxford English Dictionary: "Promulgate: To expose to public view. To make known by public declaration; to publish; esp. To disseminate (some creed or belief), or to proclaim (some law, decree, or tidings.)"
15. Promulgation: The action of promulgating or fact or being promulgated; publication. b. Spec. The official publication of a new law, Ordinance, etc., putting it into effect."
16. In Black's Law Dictionary (6th Edition) the following meanings are assigned to these words:-- "Promulgate or promulgation.--To publish; to announce officially; to make public as important or obligatory. The formal act of announcing a statute or rule of Court. An administrative order that is given to cause an agency law or regulation to become known and obligatory."
17. In 'Law Terms and Phrases' Judicially Interpreted by Sardar Muhammad Iqbal Mokal and in 'Aiyer's Manual of Law Terms and Phrases' the word "promulgation' is defined as under:-- "The declaring, publishing of an proclaiming of law to people."
18. The Latin word is "promulgatus" which means "published or proclaimed". There is a Latin phrase "promulgare legem". This phrase originally meant to B submit a proposed law to the members of the Legislature in order that they might know its contents and consider the expediency of passing it. But now it means to declare, publish and proclaim a law to the people.
19. In State v. Anandilat 1957 Cr.L,J 251 it was laid down as follows:--"Promulgation connotes the fact of making the public aware of the existence of the new order. Ordinarily, an order is said to be promulgated on the day on which it is published in the State Gazette. There is a difference between the making of an order and its promulgation. Promulgation and publication in the official Gazette are, however, not synonymous; publication in the promulgation has taken place. The significant point is that the making of an order must precede its promulgation, though, no doubt both can take place on the same day. But if the making of an order is found to be not authorised and ultra vires, its promulgation will not make it intra vires."
20. In State v. Muhammad Tugla AIR 1955 All. 423 while dealing with section 188 of the Indian Penal Code it was held as follows:-- "The word "promulgate" connotes two ideas: (i) making known of an order, and (ii) the means by which the order is made known must be by something done openly and in public. Private information will not be "promulgation". But the law does not prescribe any particular mode in which an order is made known openly and publicly. It may be by beat of drum; it may be by publication in the Gazette; it may be by reading out an order openly in public. An order duly pronounced in open Court must be deemed to be duly promulgated so far as the parties to the case are concerned.
21. Therefore an order of the Criminal Court under section 145(b), Penal Code, having been passed in the presence of the parties, must be deemed to have been promulgated within the meaning of section 188 qua the parties to the litigation in the Court."
22. ' From the foregoing it is clear that the promulgation of a law is meant its publication and making it known to the public at large.
23. 'As has already been seen no mode of promulgation of an Ordinance has been laid down. The purpose clearly is that before a law is applied to the citizens it must be made known to them that a law has been made which creates rights and obligations. This may be done by beating of drum or by wide publicity which covers all population or any other method of wide publicity. It is a long standing practice that an Ordinance is published in official Gazette and then it is generally assumed that its contents have been made known to the public at large. This practice has been followed for a long time and publication in official Gazette is the minimum which must be done before an Ordinance is accepted as having been promulgated. It is clear that private or limited circulation of an Ordinance cannot be accepted as promulgation.
24. It has already been seen that Ordinances made from time to time to add 3rd proviso to section 497, Cr.P.C. Were not published in official Gazette. The appellants have included in the Paper Book typed copy of Ordinance No, XLIX made on 15th of November along with its covering letter sent to Manager, Government Printing Press, Muzaffarabad in which prayer was made that the Ordinance may be published in extraordinary issue of official Gazette on "top priority" basis. It shows that, as was the practice in old days, it was considered necessary that an Ordinance may be published at the earliest. It may be pointed out that copies of the Ordinance were endorsed to Secretary to the President, Secretary Home, Registrar High Court and the PLD Publishers. It means that the circulation of the Ordinance was restricted to the three offices mentioned above, apart from the PLD Publishers. It also demonstrates that the Law Department was looking forward to its promulgation through the extraordinary issue of the official Gazette, but it has not so far been done.
25. As an upshot of the foregoing discussion the Ordinance through which third proviso to section 497 of the Code of Criminal Procedure was sought to be added were not promulgated and, thus, never assumed force and effect as an Act of the Assembly. Consequently, there is no law in force under which bail can be granted to the appellants on the basis of statutory delay.
26. In this connection we have to notice subsection (4) of section 5 of the General Clauses Act which is to the following effect: "(4) Unless the contrary is expressed any Ordinance made and promulgated by the President after 11th day of August, 1977 shall be construed as coming into operation on the day on which it receives the assent of the President."
27. The provision of law mentioned above was added on 11th of August, 1977 through an Ordinance and was repeated in successive Ordinances till it became an Act of the Assembly on 25th of November, 1985. An analysis of the provision extracted above shows that it is an exercise in futility. The provision lays down that an Ordinance made and promulgated by the President shall be construed as coming into operation on the day on which it receives the assent of the President but, as already discussed, subsection (2) of section 41 of the AJK Interim Constitution Act lays down that an Ordinance assumes the like force and effect as an Act of the Assembly from its promulgation. Thus subsection (4) reproduced above is clearly inconsistent with the Constitution and must be ignored.
28. Even otherwise this subsection has no relevance in the present case because, as concluded above, the Ordinances under discussion have not yet been promulgated while the subsection purportedly deals with a stage which may be reached after the promulgation of an Ordinance.
29. We have seen that there was no law under which the appellants could be granted bail on the ground that they had been in detention on more than two years and their plea raised in this appeal, being based on provision which has not come into operation cannot be considered. The appeals have therefore to be dismissed on that ground. In view of this conclusion the other points raised during hearing of the appeal need not be decided. Therefore we need not decide the question whether the appellants themselves were responsible for the delay due to which the case against them could not be decided within two years as has been held by the Shariat Court.
30. During the hearing of the appeal it came to our notice that although the case of the appellants was registered on 13th of March, 1994 and challan was presented within reasonable time not a single witness has so far been examined. The Trial Court is, therefore, directed to hear this case on priority basis and the case should be decided within six months calculated from the date on which this order is communicated to the Trial Court. The appeals stand dismissed.