' This order shall dispose of Writ Petitions Nos.609 of 1999, 6215 of 1999, 5328 of 1999, 18160 of 1998, 4942 of 1998 and 26195 of 1998 as they involve common questions of law.
2. The petitioners in all these writ petitions are facing trial in separate cases registered under the provisions of the Control of Narcotic Substances Ordinances.
3. Mr. Fakhar-ud-Din G. Ibrahim, Senior Advocate/the learned counsel for the petitioner (W.P.
No,609/99) argued that the offences were allegedly committed when Ordinance No,XIII of 1996 called the Control of Narcotic Substances Ordinance, 1996, was in force. It was submitted that another contemporary law viz. The Prohibition (Enforcement of Hadd) Order, 1979, was already in field. It was submitted that successive Ordinances on the subject-matter issued by the President before and after the promulgation of the Ordinance (No, XIII of 1996) were unconstitutional. The learned counsel contended that after the lapse of Ordinance No, XIII of 1996 the same was not protected or saved by the succeeding Ordinances including the Control of Narcotic Substances Act, 1997. No prosecution could be launched or continued either on the basis of Ordinances of 1996 as the legislation was of a temporary nature. It was lastly contended that the act was punishable only with reference to law which was in force at the time of the commission of the offence and that a substantive law operating at the time of registration of case, trial or final judgment by a learned trial Court had no relevance. The learned counsel placed reliance on the cases of Government of Punjab through Secretary, Home Department v. Ziaullah Khan and 2 others (1992 SCMR 602), Muhammad Naeem alies Naeema v. The State (1992 SCMR 1617), Muhammad Arif v. The State (1993 SCMR 1589), Muhammad Ashraf v. The State (PLD 1986 SC 42) and The Collector of Customs.
Karachi and others v. Messrs New Electronics (Pvt.) Limited and 59 others (PLD 1994 SC 363).
3. The other learned counsel appearing for the other petitioners adopted that arguments of Mr. Fakhar-ud-Din G. Ibrahim, Senior Advocate. They, however, added that there would be no vacuum if the prosecution under the Control of Narcotic Substances Ordinances was declared illegal. The Prohibition (Enforcement of Hadd) Order, 1979, would adequately cater for such contingency.
4. The learned Deputy Attorney-General for Pakistan as well as the learned Assistant Advocate- General, Punjab, submitted that the repeal of the Ordinances would not affect any investigation or legal proceedings or the previous operation of the law in view of the provisions of Article 264 of the Constitution, section 6 of the General Clauses Act, 1897 and section 78 of the Control of Narcotic Substances Act No, XXV of 1997. They relied on the cases of Hakim Ali Zardari v. The State (PLD 1988 SC 1), Rasool Bakhsh and others v. The State and others 1998 PCr.LJ 438) and Noor Muhammad v.
The State (1999 SCMR 264) in support of their contentions.
5. We have heard the learned counsel for the parties at length. The Ordinance making power of the President is provided by Article 89 of the Constitution of Islamic Republic of Pakistan, 1973. The said provision is reproduced below for facility of reference:-- "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.
(2) An Ordinance promulgated under this Article shall have that same force and effect as an Act of Majlis-e-Shoora (Parliament) and shall be subject to like restrictions as the power of Majlis-e- Shoora (Parliament) to make law, but every such Ordinance--
(a) shall be laid--
(i) before the National Assembly if it contains provisions dealing with all or any of matters specified in clause (2) of Article 73, 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;
(ii) before both Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), 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 either House, upon the passing of that resolution, and
(b) may be withdrawn at any time by the President.
(3) Without prejudice to the provision of clause (2), an Ordinance laid before the National Assembly shall be deemed to be a Bill introduced in the National Assembly."
' A similar power is given to the Governor of a Province by Article 128 of the Constitution.
6. The Ordinance making power has a historical background. For the first time, the British Parliament, by section 26 of the East India Company Act, 1773, empowered the Governor-General and the Council to make Ordinances from time to time with the consequential power of repeal. The same position was continued by the Indian Council Act, 1861 (section 23), The Government of India Act, 1915 (section 72) and the Government of India Act, 1935 (section 42). Similar provisions exist in the Constitutions of India (Article 123), Malaysia (section 150), Nepal (Article 57) and Philippines (Section 26).
7. By Article 69 of the 1956 Constitution, a power similar to that of Article 89 of 1973 Constitution was given to the President of Pakistan to promulgate an Ordinance. However, by clause (2) of Article 69 of the said Constitution, an Ordinance promulgated by the President was required to be laid before the National Assembly and would cease to operate at the expiration of six weeks from the next meeting of the Assembly, or upon a resolution by the Assembly disapproving it. Thus, under the 1956 Constitution, the effect of expiry of a statute and not that of repeal was given to an Ordinance.
It seems that Article 69 of. The 1956 Constitution was enacted in the light of similar provision of Article 123 of the Constitution of India.
8. However, a departure was made in the 1962 Constitution by Article 29 where under in the case of non-approval or disapproval by the National Assembly, an Ordinance promulgated by the President was to be deemed to have been repealed on the expiry of 180 days. The Interim Constitution of 1972 also empowered the President by Article 94 to make an Ordinance.
9. It would be clear that the legislative power of the President/Head of the State in an emergent situation has always been there albeit under certain conditions. The power to make an Ordinance under Article 89 of the Constitution is co-extensive with the power of the Parliament to make the law. Clause (2) of Article 89 of the Constitution states that the Ordinance shall have the same force and effect as an Act of Parliament and shall be subject to like restrictions as the power to make laws. It means that in exercise of Ordinance making power, the President cannot overreach the Parliament to do what the Parliament cannot do in exercise of its legislative power. Not only that by clause (2) of Article 260 of the Constitution an Act of Parliament or a federal law shall include an Ordinance promulgated by the President. An Ordinance by the President or the Governor is on the same footing as that of an Act of Parliament or a Provincial Assembly, as the case may be.
However, there are some inbuilt limitations on the exercise of the legislative power by the President as provided by Article 89 of the Constitution. This power is not exercisable when the National Assembly is in session. An Ordinance has to be laid before the National Assembly. It shall stand repealed at the expiration of four months from its promulgation or upon the passing of the resolution by the National Assembly disapproving it.
10. The Constitution although provides for the life of an Ordinance but does not limit the number of times it may be promulgated. There are no other specific provisions inhibiting the exercise of Ordinance-making power of the President. Article 89 of the Constitution may be invoked by the President on his satisfaction that circumstances exist which render it necessary to take immediate action. An Ordinance has to be promulgated to bring forth an emergent legislation when the National Assembly is not in session or existence. Such a situation may arise from time to time.
Article 52 of the Constitution specifically provides that there shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting of the President and two Houses to be known respectively as the National Assembly and the Senate. The President is not only the head of the State and a representative of the unity of the republic, he is also an integral part of the Parliament. No bill passed by the Parliament can become law without the assent of the President.
11. The question as to the validity of successive Ordinances by the President or the Governor has been a matter of debate before the superior Courts of the Sub-Continent. In the case of Maulvi Tameez-ud-Din Ahmad v. Province of East Bengal (PLD 1949 Dacca 1), a Division Bench of the Dacca High Court took the view that the Governor under section 88 of the Government of India Act, 1935, had no power to resuscitate an expired Ordinance by another Ordinance. In Begum Zebun Nissa Hamidullah Editor and Publisher of "The Mirror". Karachi v. Pakistan. Through the Secretary.
Ministry of Interior. Government of Pakistan (PLD 1958 SC (Pak.) 35), the question of the validity of re-promulgation of an Ordinance was left undecided. Subsequently, a Full Bench of the erstwhile West Pakistan High Court was constituted, to consider the question, in the case of Tirathmal and others v. The State (PLD 1959 Karachi 594). In the precedent case, there was re-enactment of the West Pakistan Foodstuffs (Control) Ordinance No,l of 1957 by Ordinance No,XI of 1957. It was held that the life of an Ordinance could not be extended by another Ordinance saying that it would continue despite its fixed life. But there was a distinction between extension of life of an Ordinance and its re-enactment which was not merely technical. The effect of re-enactment and of the continuous of the life of an Ordinance was not the same. There were certain effects attached to the expiry of a statute. It was, therefore, held that there was no bar to the reenactment of the provisions of an Ordinance although there was a technical bar to the Ordinance making power for continuing the life of an expired Ordinance. An Ordinance could be re-promulgated with or without interval between the two. Subsequently, the Azad, Jammu and Kashmir High Court also took the same view in the case of Ch. Noor Hussain and 3 others v. The Special Court. Muzaffarabad and others (1980 CLC 1528). In Riaz Ahmad v. The State (1998 SCMR 1729) and Muhammad Miskeen v. Summandar Khan and 2 others (PLD 1991 Lahore 217), the successive Ordinances were held to be valid. A Full Bench of this Court re-examined the matter in the case of Rehmat Khan v. Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad and 3 others (PLD 1993 Lahore 70) wherein it was laid down that the President was fully competent to re-enact an Ordinance even if subsequent Ordinance was word by word the same as the preceding Ordinance. The judgment by the Full Bench has since been affirmed by the Hon'ble Supreme Court in appeal in the case of Noor Muhammad and others v. Ghulam Mustafa and others (1999 SCMR 264). The judgments referred to by the learned counsel for the petitioners were noticed in the cases of Riaz Ahmad and Noor Muhammad (supra).
12. In the case of K. Krishankutty, M.L.A. And others v. State of Kerala (AIR 1985 Kerala 148) (F.B.), the repeated exercise of Ordinance making power was held to be valid. But in the case of Dr. D.C.
Wadhwa and others v. State of Bihar and others (AIR 1987 SC 579), the successive Ordinances were held to be unconstitutional for the reason that the Government never took any step to place such Ordinances before the Assembly, However, it was observed at page 589 of the report, that there might be a situation where the re-promulgation of the Ordinance would not be open to attack. The case of Dr. D. C. Wadhwa (supra) was considered by a Division Bench of Delhi High Court in Gyanendra Kumar and another v. Union of India and others (AIR 1997 Delhi 58) and it was held that the re-promulgation of Ordinance was not open to attack.
13. In view of the recent pronouncements of the superior Courts, it is too late in the day for the learned counsel for the petitioners to raise objection as to the competence of the President to promulgate successive Ordinances on the same subject-matter. It was not denied at the bar that the Ordinances in question had been laid before the National Assembly and eventually the Control of Narcotic Substances Act, 1997 was passed.
14. The other objection by the learned counsel for the petitioners as to the invalidity of the prosecution under the Control of Narcotic Substances Ordinances for lack of validation/continuation/saving is equally devoid of merit. The learned counsel for the petitioners admitted that in all these cases the succeeding Ordinances were promulgated during the lifetime of the previous ones. In such a case, the provisions of section 6 of the General Clauses Act, 1897, will be attracted. Under the said provision, where an act repeals any earlier enactment then unless a different intention appears the repeal shall not affect any right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed or affect any investigation, legal proceedings or remedy which may be instituted, continued and enforced as if the repealing Act has not been passed. Article 264 of the Constitution of the Islamic Republic of Pakistan is also in pari materia to the provisions of section 6 as aforesaid. Now, the effect of repeal of a statute is to be given where an Ordinance expires by virtue of the Constitution or is repealed by another statute.
In Mir Ahmad Nawaz Khan Bughti v. Superintendent. District Jail. Lyallpur and others (PLD 1966 SC 357), it was held that even where the National Assembly does not approve an Ordinance, such an enactment does not lapse but is "deemed to have been repealed" so as to attract provisions of Article 250 of the 1962 Constitution. Similar view was taken in the cases of Ziaullah and Muhammad Arif (supra). The learned counsel failed to point out that a different intention was expressed by any of the repealing Ordinances or the Control of Narcotic Substances Act, 1997. The other arguments of the learned counsel as to the simultaneous operation of different laws on the same subject- matter would be dealt with at the appropriate stage in appropriate proceedings lest any observations made by this Court at this stage may prejudice either of the parties during the course of trial of the case.
15. We are of the opinion that notwithstanding the repeal of the Ordinances, the criminal proceedings were competently instituted and continued under the repealed laws/Ordinances as no different intention was expressed or spelt out by the repealing laws.
16. For the foregoing reasons, we do not find any merit in these writ petitions which are dismissed in limine.