RANA BHAGWAN DAS, J.---This petition for leave to appeal arises out of an order, dated 1-11-1999 passed by the Sindh High Court disposing of a preliminary objection in Criminal Acquittal Appeal No,75 of 1998 expressing the view that the amendment introduced in section 417, Cr.P.C. By insertion of subsection (2-A) would be applicable to pending cases before the date of amendment.
2. Facts of the case appear to be that petitioners were prosecuted on or about 10-5-1992 on a charge under sections 420 and 448/34, P.P.C. After the trial, they were convicted by a Judicial Magistrate at Karachi and sentenced to R.I. For six months and to pay a fine of Rs,2,000 or in default to undergo S.I. For one month for offence under section 420, P.P.C., and R.I. For three months on the second count. They assailed the judgment of conviction in appeal before the Court of Session and by judgment, dated 9-5-1998 they were acquitted by a learned Additional Sessions Judge.
Respondent impugned the judgment of acquittal by way of appeal under section 417(2-A), Cr.P.C.
Before the Sindh High Court in which a preliminary objection was raised as to maintainability of the appeal for the reason that the aforesaid amendment was, incorporated in law with effect from 14- 11-1994 which would not affect the rights accrued to petitioners before coming into force of the abovesaid amendment. Learned High Court, after hearing the parties and their counsel, came to the conclusion that the amendment being procedural in nature would apply to the pending cases as well and repelled the objection, hence this petition for leave to appeal.
3. Mr. Abdul Latif Channa, learned A.S.C. For the petitioners, strenuously contended that since on the date of commission of alleged offence and prosecution of the petitioners before a Court of law, right to appeal as against a judgment of acquittal was not available to a private person/complainant while the petitioners had a valuable vested right that an order of their acquittal arising out of their prosecution could only be impugned by the State through a Public Prosecutor as contemplated by unamended provisions of section 417, Cr.P.C. Learned counsel urged that rights and obligations of the parties must be determined strictly in accordance with law as they stood on the date of the commission of an act and not on the basis of subsequent developments in law. According to learned counsel, in any event, right to appeal provided to a person aggrieved from an order of acquittal by virtue of the amended provision would not operate retrospectively and thus, pending proceeding stood saved from the operation of the newly inserted subsection in section 417, Cr.P.C. Mr. Chaim heavily relied upon the judgments reported as Ghazi v.
State (PLD 1962 Lahore 662), Essential Industries v. Central Board of Revenue (PLD 1969 Lahore 24), Mir Hassan v. State (PLD 1969 Lahore 786), State v. Muhamamd Tamil (PLD 1965 SC 681), S.M. Yusuf & Bros. v. Muhammad Mehdi Pooya PLD 1965 SC 15), Nabi Ahmad v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599), PIA Corporation v. Pak Saaf Dry Cleaners (PLD 1981 SC 553) and Zahid Ali v. Abdul Hamid (1996 Pakistan Criminal Law Journal 586).
4. Conversely, Mr. Raja Qureshi, learned Advocate-General, Sindh, appearing on Court notice, vehemently urged that the right of appeal already vesting in State and by virtue of amendment extended to a person aggrieved from an order of acquittal was in the nature of a procedural amendment and would, thus, govern the pending proceedings as well. In any event acquittal order in favour of the petitioners having been passed on 9th May, 1998, long after insertion of the amendment, any person aggrieved by a judgment of acquittal would be entitled and competent to impugn the vires of such judgment. It may be pertinent to point out that the Amendment Act came into force with effect from 14- 1 1-1994.
5. The question of law requiring our consideration seems to have been answered by a Full Bench of this Court in Adnan Afzal v. Sher Afzal (PLD 1969 SC 187) as far back as February, 1969, laying down that the general principle with regard to interpretation of statutes as laid down in the well-known case of the Colonial Sugar Refining Company Limited v. Irving (1905 AC 369) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively unless the Legislature had by express enactment or by necessary intendment given the legislation retroactive effect. Referring to the case reported as Joseph Suche & Company Limited (1875) 1 Ch.D 48, this Court observed that "it is obvious, that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure". Even Crawford in his treatise on Construction of Statutes, 1940 Edition on page 581 expressed the view that questions relating to jurisdiction over a cause of action, venue, parties, pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Late Hamoodur Rehman, C.J. (as his Lordship then was) speaking for the Full Bench cautioned by stating that what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourable incline towards giving effect to such procedural statute retroactively.
6. There is a chain of authorities on this point. In State v. Muhammad Jamil (supra) dilating upon the question relating to alteration in procedural law during pendency of an action this Court observed that the general principle is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. A statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words, if a statute deals merely with procedure in an action and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future. It is only if it be more than a mere matter of procedure, i,e, if it touches a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act. In Nabi Ahmed's case (supra), this. Court laid down the principle of law that rights of the parties arising from facts which come into existence before the passing of a statute should be presumed to be unaffected by it, unless it is expressly or by necessary implication made retrospective.
7. Now the crucial question for our examination obviously is whether the petitioners had acquired any enforceable right on the date of enactment of amending Act XX of 1994 to the extent that their acquittal shall not be called in question by a person aggrieved other than the State within the contemplation of section 417, Cr.P.C. A plain answer to the query,. In our view, would be in negative for the simple reason that on the cut off t;iate, there was no order of acquittal in favour of the petitioners and rather they stood convicted of a criminal indictment by a competent Court of law.
Indeed, verdict of acquittal was announced in their favour as late as 9-5-1998 whereas the amendment became effective with effect from 14-11-1994. Admittedly, acquittal order favouring the petitioners could be impugned by way of an appeal by the State through its Public Prosecutor or by an aggrieved person independently of each other. Evidently in any event, petitioners did not acquire a vested right during the pendency of their appeal against their conviction that the order of acquittal, if any, emerging from the proceedings would only be assailed by the State and none else. In our view, by extending the right of appeal to a person aggrieved in addition to the State, Legislature has only simplified the procedure which otherwise was time-consuming and cumbersome in that a person aggrieved from acquittal was required to approach the Provincial Government to take steps for filing an appeal against the acquittal order and failing that to file an appeal before the High Court with the leave of the Court. This change would, in our view, certainly, amount to an alteration in the procedure rather than extinguishing any right vested in a party. At any rate, acquittal of the petitioners taking place long after a right of appeal accrued to the person aggrieved it would not relate back to the date of prosecution as completely misunderstood by the learned counsel for the petitioners. Undoubtedly, there was no substantive right vesting in the petitioners, which could be said to be adversely affected by the amendment in law making a provision for a right of appeal at the instance of an aggrieved person. Intention of the Legislature by introducing this amendment seems to be to bring existing laws in accordance with Injunctions of Islam which guarantee and acknowledge a right, of appeal to an aggrieved person. In case argument of the petitioners is accepted it is bound to defeat the spirit and object of law. We are, therefore, of the considered view that there was no right vested in the petitioners as contended on their behalf. Consequently, there is hardly any question of retrospect application of the amending statute in the case in hand.
8. According to Salmond's Jurisprudence, 12th Edition, 1966, page 128, the law of procedure may be defined as that branch 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.
In Ghazi's case (supra), Lahore High Court was of the view that a right of appeal existing on a day on which a proceeding or a lis commence or prosecution is lodged, is a vested right and that right is governed by the law prevailing on that day and not the law prevailing on the date of its decision.
The Court further held that this vested right can be taken away only by subsequent enactment if it so provides expressly or by necessary . Intendment and not otherwise. In Mir Hassan's case (supra), a Full Bench of the Lahore High Court, dealing with the High Court's jurisdiction to entertain petition under section 561-A, Cr.P.C. After the promulgation of Martial Law Regulation No,42, reiterated that if the law is changed during the pendency of an action, the principle that governs the situation would be that the rights of the parties are to be decided according to the law as it existed when the action was taken unless the new law shows a clear intention either by express words or by necessary intendment to vary such rights. In S.M. Yusuf's case (supra), this Court was confronted with interpretation of Rule 33 of Order XLI, C.P.C. And the case does not seem to be relevant in the instant petition. Again in Essential Industries' case (supra) a Full Bench of the Lahore High Court reiterated the principle of law laid down in Colonial Sugar Refining Company's case, which to our mind, does not advance the case of the petitioners any more. In PIA Corporation v. Pak Saaf Dry Cleaners' case (supra) the rule laid down in Colonial Sugar Refining Company and Nabi Ahmed's case was reiterated laying down that right of appeal is not mere matter of procedure but a substantive right. There can hardly be any cavil with this well-entrenched proposition of law.
However, the case is hardly of any assistance to the petitioners. Lastly, a reference may be made to Zahid Ali's case (supra) by a Division Bench from Quetta jurisdiction, which is on all fours to the facts of the case in hand in which the appeal by an aggrieved person filed on 15-3-1995 against acquittal of the accused, dated 14-2-1995 was held to be maintainable at law in terms of section 417 (2-A), Cr.P.C. Taking almost all precedent cases on the subject into consideration Division Bench of the High Court observed that the amendment had been made in order to commensurate the law with the Shariah which gave such a right to an aggrieved party. The Court observed that when this amendment was introduced in law, the case of the accused was at the trial stage and no procedure for trial had been changed, nor any right of accused had been infringed. Indeed, this case has been heavily relied upon by the learned Advocate-General as well, which for all practical purposes supports the view taken by the learned Single Judge of the High Court as well. We are inclined to approve the view taken in Quetta case.
9. It may not be out of place to refer to two recent cases decided by two Full Benches of this Court reported as Muhammad Alzal v. Karachi Electricity Corporation (1998 SCMR 92) and Aftab Ahmed v.
KESC (1997 SCMR 197) interpreting the provisions of section 2-A inserted in Service Tribunals Act, 1973, essentially laying down that matters relating to remedy, mode of trial, manner of taking evidence being all matters pertaining to procedure would be effective retrospectively. In both the cases Adnan Afzal's case (supra) was referred to and cited with approval.
10. A resume of case-law discussed hereinabove leads to an irresistible conclusion that the amendment introduced in section 417, Cr.P.C. Being essentially of procedural character would operate retrospectively and affect all pending cases, for neither any right of accused person is taken away, nor the ends of justice defeated by retrospective application of this provision. It may, however, be clarified that in the case in hand even if the amended provision is applied prospectively case of the petitioners is fully covered by it. Obviously, neither any right accrued to the petitioners, nor was it taken away by reason of filing of acquittal appeal at the behest of the respondent. In any event, no miscarriage of justice appears to have been occasioned by entertaining acquittal appeal against the judgment of acquittal.
11. For the aforesaid facts and reasons we are of the view that the view taken by the learned High Court is neither contrary to law, nor in violation of the settled principles for interpretation of statutes. The petition is, thus, devoid of merit and substance. It is accordingly dismissed and leave to appeal refused.