' SHAHZAD AKBAR KHAN, J.--- This is an appeal under section 7 of the Suppression of Terrorist Activities Act, 1975, whereby the trial conducted, conviction recorded and sentence passed by the Special Judge, vide his judgment and order, dated 12-10-1998, in Special Case No,321 of 1996, has been challenged. The appellant has, vide ground No,1 of the memo of appeal, challenged the jurisdiction of the Special Judge in the following words:--- "(1) That the learned trial Judge committed patent illegality in taking cognizance of the case as schedule offence, thus, the trial held and the verdict delivered on 12-10-1998, all are coram non- judice and without lawful authority."
A variety of other grounds have also been taken.
2. The appellant was charged for the murder of Naqeebullah, who happened to be the brother of Muhammad Yaseen complainant. The murder was said to have been committed by the appellant inside the shop of Naqeebullah. The occurrence was claimed to be witnessed by Asmatullah, besides the complainant himself who appeared as P.Ws. 9 and 8 respectively. The case was registered at police station Ghoriwala vide F.I.R. No,149, dated 17-5-1996 under section 302, P.P.C.
The case was sent to the Court of Special Judge, Bannu, who took cognizance of the matter on 17- 11-1996 and tried the appellant as Special Judge for the offence he was charged with. On conclusion of the trial, he found the appellant guilty who was convicted and sentenced to death under section 302(b), P.P.C., as amended by Qisas and Diyat Ordinance, 1990. He was also directed to pay Rs,30,000 as compensation under the mandatory provisions of section 544-A, Cr.P.C., to the legal heirs of the deceased. The murder reference was sent to this Court for confirmation which was also to be heard alongwith this appeal.
3. Mr. Dost Muhammad Khan, the learned counsel for the appellant, at the very outset took this legal objection that the trial of the appellant by'the Special Court was coram non-judice, as during the time of trial, the relevant Ordinance, i,e,, Ordinance No,CXVII of 1996, which was called as the suppression of Terrorist Activities (Special Court) (4th Amendment) Ordinance, 1996 which brought amendment to the Schedule to the Act XV of 1975, was due to expiration of its Constitutional duration was non-existent in the Statute Books.
4. In order to appreciate the controversy in issue, it would not be impertinent to state that the Suppression of Terrorist Activities (Special Courts) Act, 1975, (hereinafter referred to as the Act) came into force on 1-2-1975 for the purposes of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance or in connection with such acts. By virtue of section 4 of the Act, it was provided that the Scheduled Offences shall be triable exclusively by a Special Court. The "Scheduled Offences" would mean an offence specified in the Schedule as per section 2(b) of the Act.
5. In the Act, an amendment was introduced in its Schedule by Ordinance No,XL of 1995 on 9th April, 1995 which, for the sake of convenience, is reproduced as follows:--- ' AMENDMENT OF THE SCHEDULE, ACT XV OF 1975.
"In the Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975), in the Schedule, in clause (c), after the words and letters ' a G-III rifle', the commas and words, ' including semiautomatic or automatics pistols and those commonly known as T.T. Pistols,' shall be inserted."
' It demonstrates that the semi-automatic or automatic pistols and those commonly known as T.T.
Pistols, which were previously not included in the "Schedule" to the Act were also included therein. In other words, the offences in which semi-automatic, automatic or T.T. Pistols were used were brought within the jurisdiction of Special Courts constituted under the Act.
6. On the expiry of Ordinance No,XL of 9th April 1995, several Ordinances were made by the President to revive the desired object. The last Ordinance, however, in the said hierarchy of Ordinances, was the Ordinance No,XVII of 5th December, 1996, which lost its efficacy on the expiration of 120 days, i,e,, its Constitutional duration. This being the legal position, the trial of the appellant by the trial forum as Special Judge was corum non judice and illegal, and, as such, all the proceedings of trial, judgment and conviction and sentence recorded by the Special Judge is nullity in the eyes of law. He relied on the cases reported in Government of Punjab v. Ziaullah Khan 1992 SCMR 602, Muhammad Arif v. The State 1993 SCMR 1589 and Younus Khan v. The State 1990 PCr.LJ 1719.
7. On the contrary, Syed Zafar Abbas Zaidi, learned counsel appearing on behalf of the complainant, as an effort to controvert the submissions of the learned counsel for the appellant, has relied on Article 264 of the Constitution of Islamic Republic of Pakistan, 1973, which is reproduced below:--- Effect of Repeal of Laws:--- "Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution---
(a) revive anything not in force or existing at the time at while the repeal takes effect;
(b) effect the previous operation of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."
' He particularly made reference to clause (e) thereof and stated that any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment would stand protected and, as such, he argued that the learned Trial Court had passed the judgment with jurisdiction and lawful authority and no exception can be taken thereof on any ground of jurisdictional defect.
8. We have heard the rival arguments of both the sides and gone through the impugned judgment.
9. The Honourable Supreme Court in 1992 SCMR 602 dealing with the appeal (with the leave of the Court) of Government of Punjab made reference to the concluding part of the judgment of the Lahore High Court reported in PLD 1989 Lah. 554, which in view of its relevancy is reproduced below:-- "The conclusions that follow from the foregoing discussion are summarised hereunder:
(i) That the impugned legislation though discriminatory being disadvatageous/prejudicial to the accused subjected to trial before the Special Courts for speedy Trials are not hit by Article 25 of the Constitution as the impugned law has provided for reasonable classification permissible in law
(ii) That the provisions of section 8 of the impugned Act/Ordinance in so far as they permit the trial of an accused person in absentia are violative of Article 10 of the Constitution.
(iii) That the amending Ordinance XIX of 1988 stood repealed on the expiration of four months from its legislation and its provisions particularly the provisions seeking to extend the life of the main Act from one year to two years have not survived the repeal.
(iv) Consequently, Act XV of 1987 was operative only up to the date of the repeal of the amending Ordinance."
2. After having held as above, the High Court granted the following reliefs:--- "As a consequence of the findings hereinbefore recorded, we hold and declare that all orders/Notifications issued by the Government under section 5 of the Act XV of 1987 after the date of its expiry, i,e,, with effect from the day of repeal of the amending Ordinance XIX of 1988 and all proceedings pending or taken, trial of cases held, orders/judgments passed by any Special Courts established under the said Act, were. Taken, held and passed without lawful authority and of no legal effect.
' It is further declared that any proceedings pending in any Special Court for Speedy Trials in pursuance of any order/Notification issued by the Government under section 5 of the Ordinance II of 1987 and Act XV of 1987 during the period that they were in effective operation cannot proceed as no Special Court for Speedy Trials exists after the expiry of Act XV of 1987 as aforementioned."
10. It is obvious that an Ordinance is a temporary legislation and it loses its force and afficacy on the expiration of its legal period envisaged by the Constitution itself and, as such, it is mentioned to ,point out that there is a marked distinction between a temporary enactment and permanent enactment. In the case in hand, the Ordinance was of a temporary nature, the life whereof is prescribed as 120 days. In this regard, reference may be made to page No,16 of the judgment reported in 1992 SCMR 602 (ibid), wherein the Maxwell on the interpretation of Statute 12th Edition has dealt with the effect of repeal as under:- "The Common law rule is that if an Act expired or was repealed it was regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions past and closed. Where, therefore, a penal law is broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution began while the Act was still in force."
11. In another judgment of the Lahore High Court reported in 1990 PCr.LJ page 1719 in paragraph 6 thereof, it has been observed as follows:--- "As a necessary consequence of the aforesaid amendments, the offence allegedly committed by the petitioner in respect of the stengun, which is a light automatic weapon and its ammunition, became exclusively triable by a Special Court set up under the 1975 Act, while the offence in respect of two carbines and their ammunition remained triable by the Magistrate of the 1st Class. In other words, the learned Magistrate, who was trying the petitioner for the possession of both kind of weapons and had the jurisdiction to do so, ceased to have jurisdiction to try him so far as the offence related to the sten-gun and its ammunition, w,e,f,, 13th of October, 1988, the day when the abovementioned amending Ordinance came into force. He, however, continued to have jurisdiction to try him for the offence so far as it related to the carbines and their ammunition. But despite having ceased to have jurisdiction in respect of the sten-gun and its ammunition, he continued to try him and from that day onward, the trial became illegal and without lawful authority. Therefore, his conviction and sentence is not sustainable at law."
12. In 1993 SCMR 1589, at page 1593 in paragraph 7, it has been observed as follows:- "The Government of Punjab filed appeal with the leave of this Court. The only argument advanced before this Court on behalf of the Punjab Government was that the substituted period of two years by Ordinance XIX of 1988 was not affected upon the lapse of above Ordinance on the expiry of four months period by virtue of clause (b) of Article 264 of the Constitution. This Court, after referring the case-law and some well-known treatises on Interpretation of Statutes, dismissed the above appeal of the Punjab Government and maintained the finding of the Division Bench that amending Ordinance XIX of 1988 stood repealed on the expiration of four months from its legislation and its provisions particularly the provision seeking to extend the life of the amending Act from one year to two years had not survived the repeal, for the following reasons:---
14. We may state that, if we were to accept Mr. Irfan Qadir's above contention, the same would be violative of Article 89 of the Constitution, which envisages that, if an Ordinance of the type in issue is not approved by both the Houses before the expiry of four months from its promulgation, the same shall stand repealed. The above clear Constitutional mandate cannot be defeated by pressing into service any rule of construction of statutes or a provision of a statute which cannot be pressed in aid while construing a Constitutional provision. We may further observe that our Constitution is a written Constitution based on Federal System. It envisages trichotomy of powers between the three limbs of the State, i,e,, the Legislature, the Executive and the Judiciary. In the above political set-up the power to legislate is vested in the Parliament. However, Article 89 of the Constitution empowers the President to Promulgate an Ordinance when the National Assembly is not in session or stand dissolved and he (the President) upon being satisfied that the circumstances exist which render it necessary to take immediate action. Such an Ordinance is to last, at the most, for four months, if not approved or if not rejected by the Parliament earlier or withdrawn by the President in terms of sub-clause (a) of clause (2) of the above Article 89 of the Constitution.
' The rationale behind providing an outer limit of four months for an Ordinance seems to be that even if the National Assembly or a Provincial Assembly stands dissolved at the time of promulgation of an Ordinance, the election of it is to take place within 90 days from the date of its dissolution in terms of clause (5) of Article 48 of the Constitution. Since Ordinance XIX of 1988 was not placed for approval before the Parliament within the above time limit of four months in terms of sub-clause (a) of clause (2) of the Article 89, it stands repealed with the amendments contained therein upon the expiry of four months from the date of its promulgation."
13. In view of the above discussion and the case-law supported by the view of experts on the Interpretation of Statutes, we are of the firm views that the Ordinance No,XL of 1995 introducing an amendment of the Schedule Act No,XV of 1975 was not in force during the trial of the accused and, as such, his trial by the Special Court was jurisdictionally defective and coram non judice.
Therefore, we accept this appeal, set aside the conviction and sentence of the appellant and remand the case to the learned Sessions Judge, Bannu, for trial de novo in accordance with law.