' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the High Court, dated 3-5-1999, whereby accepting the appeal filed by the State, the acquittal order passed by the trial Court in favour of the appellant, herein, was set aside and the case was remanded to the Special Court to try the same according to law.
2. The brief facts of the case are that a case was registered against the appellant, herein, under sections 409, 419, 420, 467 and 468, A.P.C., on 5-6-1977. According to the appellant, the record of the trial Court was destroyed during the night falling between 30/31-5-1990 as the Court building at Rawalakot was burnt. Consequently, a supplementary challan was filed in the trial Court on 18-2- 1991. Thereafter, the trial Court recorded the statement of the accused-appellant under section 242.
Cr.P.C. And also recorded the statements of some of the prosecution witnesses. An application was filed by the appellant, herein, under section 249-A, Cr.P.C., praying for his acquittal alleging that the case against him was vexatious. His prayer was accepted and he was acquitted. The State went up in appeal before the High Court and the High Court remanded the case observing that in fact the case was triable by Special Court constituted under the Ordinance known as the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance IX of 1984) (hereinafter shall be called the Ordinance) (adapted in Azad Kashmir by the Azad Jammu and Kashmir Government vide its Act No,I of 1984) and not by the Magistrate. Thus, the High Court set aside the acquittal order of the appellant and transferred the case to the Special Court for de novo trial.
3. Sardar Muhammad Sayab Khalid, Advocate, the learned counsel for the appellant, had argued that the High Court has committed an error in setting aside the acquittal order of the appellant and directing the de novo trial by the Special Court. He has maintained that the case against the appellant was registered in the year 1977 when neither the Ordinance was in force nor there was any Special Court. The learned counsel has contended that the punishment for .Some of the offences mentioned in Schedule II to the Ordinance, with which the appellant has been charged, has been enhanced and some other substantive changes have been also made. Thus, he has submitted that the changes in the Ordnance are not merely of procedural nature justifying the trial by the Special Court. He has maintained that under section 6(2) of the Ordinance read with Schedule II to the same, the punishment under section 409, A.P.C., cannot be less than seven years; punishment under section 467, A.P.C., cannot be awarded less than seven years; and similarly, punishment under section 468, A.P.C., cannot be awarded less than four years in any case.
Evidently, the aforesaid amendments incorporated in the Ordinance have enhanced the penalties which are not procedural but of substantive nature. Therefore, it cannot be said that the transfer of the case to the Special Court is legal because the provisions of the Ordinance are procedural in nature. According to the learned counsel for the appellant, the Special Court constituted under an Ordinance cannot proceed with the trial on the ground that only .The forum is changed and, thus, change being procedural in nature would operate retrospectively. He has further maintained that if the change in procedure accompanies other substantive changes, the statute would not operate retrospectively but would operate prospectively. He has further submitted that after the trial in the ordinary Court, in case of conviction, the appeal is competent to Sessions Judge whereas in case of trial by the Special Court, appeal lies only to the High Court; consequently, the convict is deprived of one right of appeal. Thus, the learned counsel has maintained that if a statue is not merely procedural in nature and it also affects, the substantive rights of an accused person, the same cannot be made applicable retrospectively. He has also submitted following authoritites in support of his contentions:-- ' In case reported as Prof. Syed Sadiq Hussain Shah v. Azad Government 1997 PCr.LJ 1837 it was held as under:-- "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 a statute which deals with the procedure and substantive rights both simultaneously, is to be seen in 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 procedural 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 Daman 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 tife 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."
(Underlining is ours).
' In case reported as Karam Hussain v. Basharat Hussain PLD 1991 SC (AJ&K) 27, it was observed that if an amendment affects the substantive rights of a person alongwith procedure, it would operate prospectively and not retrospectively.
' In case reported as Muhammad Alam v. The State PLD 1967 SC 259, it was observed that as only the assessors were eliminated and instead of having committing proceedings, the accused was to be tried by the Sessions Court, the change was mere in the procedure and, thus, would not vitiate the trial.
' 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, it was observed that the rights of the parties are to be decided according to law which was in existence at the time of initiation of action and not according to law existing at the time of judgment or order.
' In case reported as Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, it has been held that the procedural amendment operates retrospectively but if the matter is more than procedure, then that would always operate prospectively until and unless otherwise provided.
' The learned counsel for the appellant has also argued that in case his contentions are accepted that the High Court was not justified in remanding the case to the Special Court, the accused may be acquitted by this Court instead of remanding the matter to the High Court for decision on merits. The learned counsel has submitted that the accused has already suffered for about 22 years by facing a protracted trial and, thus, it would be in the fitness of things if this Court itself decides the matter on merits.
4. Raja Shiraz Kayani, the learned Advocate-General, has submitted that in view of the provisions contained in the Ordinance, it cannot be said that the provisions of said Ordinance are merely procedural in nature. He has submitted that not only the forum of trial has been changed but the punishment prescribed for certain offences has also been enhanced and strict restrictions regarding the property of an accused and movements have also been placed on him under the Ordinance. Thus, he has agreed with the learned counsel for the appellant that the High Court was not justified in remanding the case to Special Court.
5. We have given due consideration to the matter. The perusal of the case-law including the one cited by the learned counsel for the appellant is indicative of the fact that if punishment for an offence is enhanced, the change is not a change in the procedure. There is no quarrel with the proposition that some of the provisions of the Ordinance are procedural in nature but there. Are other provisions which are substantive in nature and are harsher than the provisions of ordinary law. In the instant case, the appellant was challaned for the commission of the aforesaid offences in the year 1977, much before the enforcement of the aforesaid Ordinance. Consequently, the High Court was not legally correct in remanding the case to the Special Court constituted under the Ordinance when some of the provisions of the same are much stringent than the ordinary law.
6. So far as the question of deciding the case on merits by this Court is concerned, we are afraid we cannot subscribe to the views of the learned counsel for the appellant. The appeal to this Court has been preferred by leave. Obviously, in such a case, this Court would not ordinarily decide a matter in absence of the findings of the High Court one way or the other, especially when no leave was granted in that regard.
' In the light of what has been stated above, we accept the appeal, set aside the impugned order of the High Court and remand the case to the High Court with the direction that it shall rehear the arguments in the appeal on merits of the case and decide the same afresh according to law.