By this order, I purpose to dispose of all the these Criminal Revision Applications Nos.S-124/2003, S- 125/2003, S.-2/2003, C.Ps. Nos.S-303/2004, S-329/2004 and S-330/2004 involving common question of law. These cases call for examination the validity of the orders passed in exercise of section 22-A on the ground that section 22 of Cr.P.C.(sic) It was enacted by virtue of amendment No,CXXXI of 2002, promulgated by President on 15-11-2003 and published in Gazette of Pakistan on 21-11-2002. The powers of the President to promulgate the Ordinance and effect the amendments are not disputed. The main contention is that after the expiry of period of 4 months, the said Ordinance expired on 4-3-2003 and therefore the amendments made therein by virtue of the said Ordinance have become ineffective. As such the provisions and powers conferred by virtue of said amendments are no longer available. By an earlier orders dated 30-12-2003 Messrs Habibullah Shaikh and A.R. Farooque Pirzada, Advocates were appointed as amicus cruiae. The learned counsel have advanced their respective views and that the valuable assistance rendered by the two gentlemen is very much appreciated. The contentions of Mr.Gul Bahar Korai, learned counsel appearing for the Petitioner in Criminal Revision Application No,135 of 2003 are that the period of four months as prescribed under Article 89(2)(a) of the Constitution, is attracted to the provisions of every Ordinance inclusive of the present Ordinance and as such the Ordinance ceases to have effect after expiry of the period of four months. Mr.Korai also argued that Constitution was not abolished and the provisions are operative and continued to remain in operation. Messrs Muhammad Aslam Goltar, Abdul Kareem Noonari and Shaikh AmanIlah, the Aslam Goltar, Abdul Kareem Noonari and Shaikh Amanullah, the counsel representing the petitioners in other connected petitions, adopted the same arguments of Mr. Gul Bahar Korai, Advocate. The views of both the learned amicus curiae on the point are that the powers available to the President after promulgation of P.C.0.2000 have been validated by apex Court in the case of Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others 2000 SCMR 1137. The exercise of such powers for the duration up to 17th amendment adopted by the Parliament whereby all the Acts and Orders made during the period are validated is attracted. As a consequence of the said provisions that has an overriding effect, the provisions of Article 89 of the Constitution prescribing a period of four months is not attracted therefore the amending Ordinance continues to remain valid even after expiry of four months. Mr. Mujahid Hussain Rajput, learned counsel representing the respondents in Cr. Rev. No,124 of 2003 adopted the same arguments of both the learned amicus curiae. Mt. G.D. Shahani, learned Addl. A.-G. Has also taken the same line of arguments and contended that in exercise of the powers available the President issued the Ordinance, which continues to be operative. After hearing the detailed argument advanced by the learned counsel, these revision applications as well as Constitution petitions were admitted to regular hearing and are being disposed of by this order. The crux of the matter is the effect and validity of amendment after a period of four months in pursuance of Ordinance CXXXI of 2002. The Code of Criminal Procedure (Third Amendment)
Ordinance, 2002. Which is reproduced as follows:-- " F. No,2(1)/2002-Pub. , dated 21-11-2002 . -The following Ordinance promulgated by the President on 15 November, 2002 is hereby published for general information:- Whereas it is expedient further to amend the Code of Criminal Procedure, 1898 (Act V of 1898). For the purposes hereinafter appearing; And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action: Now, therefore, in pursuance of the Proclamation of Emergency of the Fourteenth day of October.
1999. And the Provisional Constitution Order No, I of 1999. Read with the Provisional Constitution (Amendment) Order No,9 of 1999. And in exercise of all other powers enabling him in that behalf, the President of the. Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:--
1. Short title and commencement.---(1) This Ordinance may be called the Code of Criminal Procedure (Third Amendment) Ordinance, 2002.
(2) It shall come into force at once.
2. Amendment of section 22-A, Act V of 1898.---In the Code of Criminal Procedure 1898 (Act V of 1898), hereinafter referred to as the said Code, in section 22-A, after subsection (5), the following new subsection shall be added, namely:- "(6) An ex officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding-
(i) non-registration of a criminal case;
(ii) transfer of investigation from one police officer to another; and
(iii) neglect, failure of excess committed by a police authority in relation to its functions and duties.
3. Amendment of section 25. Act V of 1898.---In the said Code, for section 25 the following shall be substituted, namely:- "25. Ex officio Justice of the Peace.---By virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of the Peace within and for whole of the District of the Province in which they are serving." The title of the Ordinance as well as the preamble and operative sections expressly reveal that the sole purpose of the Ordinance is to amend the provisions of Criminal Procedure Code and there is no controversy in this regard. The question involved is the effect of the expiry of the Ordinance due to affix of time on the law amended by virtue of the same.
The amendment brought by an amending Act continues to remain in force even after repeal of the amending Act. In this regard a A reference may be made with advantage to the provision so section 6-A of the General Clauses Act, which reads as follows:-- "6-A. Repeal of Act making textual amendment of Act or Regulation.--Whether any (Central Act) or regulation made after the commencement of this Act repeals any enactment by which the text of any (Central Act) or Regulation was amended by the express omission, insertion or substitution of any matter, then; unless a different intention appears, the repeal shall not affect the cOntinuence of any such amendment made by the enactment so repealed and in operation at the time of such repeal." The question of revival under the original provisions after repeal of amending Act, came under examination before the Lahore High Court in case of Muhammad Afzal Khan v. Excise and Taxation Officer and 2 others PLD 1984 Pesh. 215,Azam Ali and others v. The Custodian of Evacuee Property West Pakistan, Lahore and Mst. Khem Bai alias Ghulam Fatima PLD 1968 LA. 148 and PLD 1994 Kar.173.
The view taken in all the cases is that an amendment once effected in a statute continues to be effective. After the amendment has been made the purpose of the amending Act is served and retaining it on the statute book amounts to carrying of dead weight. Repeal of such Act is an exercise synonymous with the spring clearing of dead leaves. Such exercise is taken by the legislature periodically. All the learned counsel concede that at the time of enactment the President enjoyed the powers to promulgate Ordinance CXXXI of 2002. Albeit all Acts of the President have been validated and it is nobody's case that the powers to enact the aforesaid Ordinance were not available to the President. The question of the effect of the Article 89 of the Constitution will not be necessary to be considered in this case. The above point may be considered at a more appropriate juncture. In view of the above discussion the Code of Criminal Procedure (3rd Amendment) Ordinance 2002 served its purpose after promulgation and publication. The amendment has been effected in the Criminal Procedure Code. Having affected such amendment repeal or expiry of the Ordinance would not undo the amendment already made which continues to remain operative and which has now become a part of the Criminal Procedure Code and continues to remain operative. In view of the above the criminal revisions are dismissed. Petition No,303 of 2004 is allowed. The impugned order dated 20-2-2004 is set aside. The matter is remanded to the trial Court for disposal of the case on merits. Constitution Petitions Nos. 329/2004 and 330/2004 are dismissed.
The Petitioners may approach the trial Court and seek remedy available under section 22-A&B, Cr.P.C.