1. ' The Ordinance No,LIV of 2001 has been promulgated. Learned counsel for the parties have contended that the changes made in the Criminal Procedure Code by virtue of this Ordinance are applicable prospectively and not retrospectively. The said Ordinance is reproduced hereunder: ' Further to amend the Code of Criminal Procedure 1898.
2. ' Whereas it is expedient further to amend the Code of Criminal Procedure, 1898 (Act V of 1898) for the purpose hereinafter appearing.
3. ' And whereas. The National Assembly and the Senate stand suspended in pursuance of the proclamation of emergency of the fourteenth day of October 1999 and the Provisional Constitution Order No,1 of 1999.
4. ' And whereas the President is satisfied that circumstances exist , which render it necessary to take immediate action.
5. ' Now, therefore, in Pursuance of the proclamation of Emergency of the fourteenth day of October, 1999 and the Provisional Constitution Order No,1 of 1999 read with the Provisional Constitution (Amendment) Order No,9 of 1999 and in exercise of all powers enabling him in that behalf the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:-- Short title and commencement.--(1) This Ordinance may be called the Code of Criminal Procedure (Amendment) Ordinance, 2001.
(2) It shall come into force at once.
2. Amendment of section 497, Act V of 1898.---In the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the said Code in section 497 in subsection (1).---
(a) in the second proviso for the colon at the end a full-stop shall be substituted; and
(b) third and fourth provisos shall be omitted.
3. Amendment of section 426 Act V of 1898.--In the said Code in section 426, subsection (1-A) shall be omitted.
6. ' Before we go into the applicability of this Ordinance, it .Would be pertinent to observe that the objections that have been taken are connected with those matters which had been filed in Court prior to 11th October, 2001. These matters are either bail applications or appeals where applications, under section 426, Cr.P.C. Are also pending. In all these cases, the overall objective of the applicants was to be released on bail. Since by virtue of this Ordinance the third and fourth provisos of section 497 have been omitted and subsection (1-A) of section 426 has also been omitted, therefore, it was the contention of the counsel appearing on behalf of the applicants that the benefit of applying for the concession of bail would be taken away if the Ordinance was considered to be retrospective in nature. They were of the view that it cannot be retrospective. In fact they insisted that it would not affect all pending matters but would definitely affect those matters where applications are filed after the promulgation of the Ordinance.
7. ' It would be appropriate for the benefit of a deeper appreciation to see what portions of 426 and 497 have been removed. Section 426 is a detailed section which starts as follows:- "426. [(1-A). This section was introduced by the Law Reforms Ordinance 1972 and reads as follows: "426. Suspension of sentence pending appeal. Release of appellant on bail.--(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by ' it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he be released on bail or on his own bond.
8. [(1-A) An Appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced--
(a) to imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction;
(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction;
(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction]."
9. "S.497(3). Provided further the Court shall, except where it is of 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, or in exercise of any right or privilege under any law for the time being in force direct that any person shall 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.
10. ' ,S.497(4). 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, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."
11. ' It was argued by the counsel appearing on behalf of the applicants that the omission of the subsections can only be prospective as the legislature would not deprive the applicant from taking away a existing right. According to them, retrospectivity of the operation of statute can be given but it has to be stated in clear terms in the Statute. In the absence of a clear cut stipulation the vested and substantive rights would be not impaired. According to them no rule of construction is more firmly established than the dictum that a retrospective operation cannot be given to a statute. A statute which would impair vested rights or legality of past transactions or the obligations of contract, prima facie cannot be held to be with retrospective affect. Specially when through the introduction of the statute a change is brought about which may create a new obligation or impose a new duty or attach a disability in direct relation to past transactions. Even by implication such rights once vested cannot be taken away.
12. ' Learned counsel Mr. Abdul Razzak Soomro further urged that if it was matter of procedure only then there would be no cavil to the fact that it can operate retroactively, however, if it touches the rights in existence at the time of passing of the statute then there would be no retroactivity given to the statute unless and until by express words, the Legislature through the statute has given such applicability. Learned ' counsel was of the opinion that there is a clear distinction between the substantive and procedural law. Whereas retroactivity can be a source of Procedural Law wherever substantive law is involved there would be no retroactivity given to it,. To illustrate a point, it was pointed out that if the law 'is altered to bring about a mere change in the forum but leaving the right to sue intact the alteration so brought about being a matter of mere procedure and not affecting any existing rights or privilege the same can operate fetroactively. In the. Same token if the right to sue is taken away, then its operation would be prospective as the right to sue is a substantive right.
13. ' The learned counsel have relied upon the case of Asif Ali Zardari v. The State (1993 PCr.LJ 781) where a Full Bench of the Sindh High Court had looked at the issue that was placed before them in connection with the amendment that had been brought about in section 497, Cr.P.C. By Ordinance XV of 1992 dated 16-11-1992 the third and forth provisos were omitted. The matter was taken to the Court and a detailed and historical judgment was given which discussed at length the applicability of such a change. It would be appropriate to reproduce certain relevant portions from the judgment: "It is well-settled that if the law is altered during the tendency of an action, the rights of parties are decided according to the laws as it existed when the action was begun and not the law that existed at the date of the judgment or order. This, however, is subject to the exception that the new law shall apply if it is a mere rule of proceedings, or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, page 400 is as follows:-- ' It is general rule that when the Legislature alters the right of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to right of action.'
14. ' Reverting now to the Ordinance XV of 1992 in the first instance, there is no controversy that the Code of Criminal Procedure is a procedural law so also the Ordinance XV of 1992 which seeks to amend the former. As to whether it is retrospective or not, suffice to state that the expression that 'it shall come into force at once' and that 'the third and fourth provisos shall be omitted leave no doubt that it operates prospectively. The golden rule of interpretation is that the words of a statute must be given their ordinary and normal meaning. These words speak for themselves and are free from ambiguity and simply because the Ordinance XV of 1992 relates to procedural law, it cannot be said that it would be retrospective in operation. There is nothing to suggest either expressly or by necessary implication that the date of commencement of the Ordinance was earlier than its enactment or the accused's right to apply for bail under third proviso stood altered retrospectively."
15. ' We are, therefore, bound by the dicta laid down by the full Bench of this Court specially when it relates directly to the identical situation which exists, now. In both situations change was brought about in the Cr.P.C. And in the case cited above the Honourable Full Bench of this Court had held that the change so brought about would be prospective. We hold that the Ordinance No,LIV of 2001 is to be applicable- prospectively and shall not affect all those cases where applications under section 497, Cr.P.C. Or 426, Cr.P.C. Have been filed and were pending disposal at the time when the said Ordinance was promulgated. By virtue of the principle of vested right and legitimate expectancy it would also not affect all those who at the time of the promulgation of the notification were behind bars and their case had not proceeded due to no fault of theirs. Even they would be entitled to the concession of bail which was available under sections 497, Cr.P.C. And 426, Cr.P.C.
16. Before the promulgation of the said Ordinance.
17. ' By virtue of the above, the matters should now be fixed for hearing of the applications which are pending.