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Petitioner: AKHTAR MUHAMMAD VS Respondent: Haji FAIZ MUHAMMAD And 2 Others
Court Name: Balochistan High Court Judge(s): Mir Hazar Khan Khoso, Ajmal Mian, Amir-ul-Mulk Mengal Title: AKHTAR MUHAMMAD vs Haji FAIZ MUHAMMAD And 2 Others Case No.: Constitutional Petition No. 64 of 1986 Date of Judgment:1986-08-31 Reported As: 1986 P Cr. L J 2994 Result: Order accordingly
JUDGMENT
JUDGMENT AJMAL MIAN, ACTG. C J.---This petition is directed against an order dated 29th April, 1986 passed by the respondent No-3 (i.e. Member-1. Board of Revenue, Baluchistan, Quetta) inter alia dismissing the petitioner's revision application for bail. The brief facts leading to the filing of the above petition are that the petitioner, who stands trial with other two co-accused, inter alia, under section 302; P.P.C. Was arrested on 14th July, 1983 for the alleged murder of one Gul Baran. The petitioner filed an application; for bail before the Deputy Commissioner, Pishin on 24th November, 1585 which according to the averment in the petition remained pending and, therefore, he filed a revision before the respondent No. 3, inter alia praying for bail on merits as well as on the ground that more Char, two years had expired since the arrest and, therefore, he was entitled to bail in terms of proviso (3) to subsection (1) of section 497, Cr.P.C. (hereinafter referred to as the 'Code'). The other two co-accused had also filed two separate revisions. All the above three revision's were disposed of by the impugned order, in which, inter alia, it leas been held that the benefit of third proviso to subsection (1) of section 497 of the Code was not available to the accused/ respondent under the Criminal Law (Special Provisions) Ordinance, 198P (W.P. Ordinance II of 1968) (hereinafter referred to as the 'Ordinance') the revisions were rejected, but the Deputy Commissioner was directed to decide the bail applications on merits. He was also directed to constitute a Tribunal under the Ordinance and decide the case within three months and submit a report of compliance. The petitioner has, therefore, filed the present petition. 2. The above petition was admitted to consider the question, whether the judgment of a Division Bench of this Curt in the case of Nek Muhammad and another v. Member, Board of Revenue (Judicial), Quetta and 3 others reported in PLD 1985 Quetta 63 (hereinafter referred to as the
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"Case"), in which, it has been held that the benefit of the above third proviso to subsection (1) of section 497 of the Code is not available to accused triable under the Ordinance, has correctly laid down the law. It was also ordered that the above case would be heard by a Full Bench and notices were issued to Mr. Yaqub Khan Yousufzai, learned Advocate-General and Messrs Basharatullah and Raja Muhammad Afsar, Advocates to appear as amicus curiae. 3. Mr. Muhammad War, learned counsel for the petitioner has contended as follows:- (i)That since section 16 of the Ordinance provides that the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence, as a Court has under the Code, any amendment made in the Code relating to bail after the enforcement of the Ordinance, shall equally apply to accused triable under the Ordinance; and (ii)That the learned Judges of the Division Bench in the case, have overlooked certain relevant words used in section 16 of the Ordinance and certain other pertinent aspects of the case and, therefore, the view found favour with the learned Judges in the case is liable to be reviewed. Mr. S.A. M. Qadri, learned counsel appearing for the private respondent has urged as under:-- (i)That since there is a legislation by reference to a particular provision of the Code through section 16 of the Ordinance, an subsequent amendment in the Code, after the enforcement of the Ordinance, cannot be read therein; and (ii)That the conduct on the part of the Provincial legislature, namely, first incorporating the above proviso by enacting subsection (3) of section if of the Ordinance by Criminal Law (Special Provisions) (Amendment) Act, 1972 (Act II of 1972) and thereafter, by withdrawing the same by Act XVIII of 1974, shows that it did not intend to extend the, benefit to accused persons triable un r the Ordinance. Mr. Yaqub Khan Yousufzai, learned Advocate-General has also canvassed at the Bar that since there is reference to specific provisions of the Code in section 16 of the Ordinance, any subsequent amendment made in the Code after the enforcement of the Ordinance, cannot be read into the Ordinance for the purpose of bail. Mr. Basharatullah, learned counsel appearing as amicus curiae has submitted as under:- (i)That subsection (3) incorporated in section 16 of the Ordinance by Act 11 of 1972 providing the parallel provision to the third Proviso to subsection (1) of section 497 of the Code, still holds the field by virtue of section 5 of the West Pakistan General Clauses Act, 1956; and (ii)In the alternative he submitted that since in section 16 of the Ordinance, there was general reference to the law relating to bail, all the subsequent amendments made in the Code after the enforcement of the Ordinance, are to be read into. Mr. Raja Muhammad Afsar, learned counsel also appearing as amicus curiae has urged that from the reading of the Ordinance as a whole and particularly section 16 thereof, it becomes evident that the amendments made in the Code after the enforcement of the Ordinance are to be read into while deciding a bail application under section 16 of the Ordinance. 4. Before dilating upon the above respective contentions of the learned counsel for the parties and the learned counsel appearing as amicus curiae, it may be pertinent to give the historical background leading to the above controversy which may facilitate the resolving of the issue. In Baluchistan Frontier Crimes Regulation, 1901 (F.C.R.) was applicable in the area which is covered by the Ordinance. The trial under the provisions of the F.C.R. Was conducted in a manner which is not commendable, inasmuch as, the Jirga could act on the basis of private inquiries and it was not obliged to hear the accused person. The enforcement of the Ordinance in June, 1968 in substitution of the F.C.R. Providing, inter alia for the mode of trial of criminal cases, can be said to be a step forward to bring the accused persons triable under the Ordinance at par with the accused persons triable under the Code, which is applicable to most of the areas of the country, inasmuch as, it recognizes the rights of hearing of the accused, right of cross-examination of the witnesses, right to
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object to the nomination of the members of the Tribunal and no private inquiry is permissible etc. Section 16 of the Ordinance which deals with the power to grant bail provides as follows:- "16. Bail.-- (1) A Scheduled offence shall be bailable or non-bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898 (V of 1898) and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code. (2)The President of a Tribunal may in regard to a case referred to the tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section. 5. Before analysing the above-quoted section 16 of the Ordinance, it may also be pertinent to state that on the basis of the recommendations of the Law Reforms Commission, Law Reforms Ordinance, 1972 (Ordinance XII of 1972) was promulgated in April, 1972 containing a large number of amendments In the various enactment referred to in the Schedule to the said Ordinance. Article 163 of the said Schedule provides amendment in subsection (1) of section 497 of the Code, which reads as follows:-- "163. In section 497, in subsection(1), (i) for the word 'transportation' the word imprisonment' shall be substituted; and (ii)in the proviso, for the full-stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely-- "provided further that the Court may, 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, direct that any person may be released on bail- (a)who being accused of any offence not punishable with death, has been detained for such offence for a period exceeding six months, and whose trial for' such offence has not concluded; (b)who being accused of an offence punishable with death, has been detained for such offence for a period exceeding one year, and whose trial for such offence has. Not concluded." It may be pertinent to point out that subsection (2) of section 1 of the Law Reforms Ordinance provided that "it shall come into force at once, except the provisions of the Schedule relating to amendments in the Code of Criminal Procedure, 1898 (Act V of 1898), which shall come into force in any province with effect from such date not later than the first day of January, 1973, as the Provincial Government thereof may, by notification in the official gazette, specify in this behalf." However, by Law Reforms (Amendment) Act, 1973 (Act XIX of 1973) the above subsection (2) of section 1 was amended, inter alia omitting the, words "not later than the first day of January, 1973". The effect of the above omission was that the Provincial Government were no longer obliged to adopt the amendments suggested in the Code by the first day of January, 1973. They had the option to decide themselves as to the date of adoption. It may also be pertinent to state that in the Province of Baluchistan by the criminal law (Special provincial) (Amendment) Act 1972 (Act II of 1972) gazetted on 8th June, 1972, a new subsection (3) to section 16 of the Ordinance was added providing as follow:---- "3. ADDITION IN SECTION 16.--After subsection (2) the following subsection shall be added:- "(3)The Court shall except where it is of the 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, direct that any person may be released on bail-- (a)who being accused of an offence punishable with imprisonment of either description not exceeding 7 years, has been detained for such offence for a period exceeding- 6 months and whose trial for such offence has not concluded; (b)who being accused of an offence punishable with imprisonment of either description exceeding 7 years, has been detained for such offence for a period exceeding one year, and whose trial for such offence has not concluded."
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However, by Criminal Law (Special Provisions) (Amendment) Act, 1974 (Act XVII of 1974) gazetted on 13th-August, 1974, subsection (3) of section to with sub-clauses (a) and (b) was omitted. It may be advantageous to reproduce sections 1 and 2 of the above Act, which will have some relevancy to the point in controversy, and which read as follows:---- "1. Short title and commencement.--(1) This Act may be called the Criminal Law (Special Provisions) Amendment Act, 1974. (2)It shall come into force at once. 2.Amendment to section 16(3) of Ordinance II of 1968: Subsection (3) of section 16 of the West Pakistan Criminal Law (Special Provisions) Ordinance, 1968 with sub-clauses (a) and (b) shall be omitted." 6. It seems that the Federal , Government by Code of Criminal Procedure (Second Amendment) Ordinance, 1979 (Ordinance LXXI of 1979) gazetted on. 22nd December, 1979, by section 3 added proviso (3) to subsection (1) of section 497 of the Code, which reads as under:- - "Provided further that the Court shell, 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, 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." It may also be stated that by the Code of Criminal Procedure (Second Amendment) Ordinance, XXXII of 1983, the following new proviso to above-quoted third proviso was added:-- "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal." 6-A. In our view, it will be appropriate first to take up the above first submission of Mr. Basharat Ullah, Advocate that subsection (3) incorporated in section 16 of the Ordinance by Act 11 of 1972 providing the parallel provision to the third proviso to subsection (1) of section 497 of the Code, still holds the field by virtue of section 5 of the West Pakistan General Clauses Act, 1956, and if we were to agree with the above submission, it will not be necessary to dilate upon the other submissions of ,the other learned counsel. In this behalf, it will be adventurous to reproduce section 5 of the West Pakistan General Clauses Act, 1986, which reads as follows:-- "5.Repeal of Act making textual amendment in Act: Where any West Pakistan Act repeals any enactment by which the text of any enactment was amended by the express omission, insertion or substitution of any matter then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." A perusal of the above-quoted section 5 indicates, that if any West Pakistan Act repeals (which is now to be read as Baluchistan) any enactment by which the text of any enactment was amended either expressly or by omitting some provision or by making insertion or substitution of any matter, then unless a different intention appears, the repeal does not affect the continuance of any such amendment by the enactment so repealed and in operation at the time of such repeal. To put it precisely, that in order to press into service the above section, it is incumbent that repealing should be of an enactment by which the text of any existing enactment was amended. If that is not so, the above-quoted section cannot be invoked. Mr. Basharatullah, learned counsel appearing as amicus curiae in furtherance of his above submission has referred to the case of Abdul Majid v. The Custodian of Evacuee Property West
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Pakistan and others, reported in PLD 1962 (W.P.) Kar. 306, Azam Ali and others v. The Custodian of Evacuee Property West Pakistan, Lahore and Mst. Khem Bai alias Ghulam Fatima, reported in PLD 1968 Lah. 148, Khadim Hussain and another v. District Council, Lyallpur and another, reported in PLD 1976 Lah. 1044, Abdul Majid etc. v. Shahzada Asif Jan etc. Reported in PLD 1982 SC 82, and Muhammad Afzal Khan v. Excise and Taxation Officer and 2 others, reported in PLD 1984 Pesh. 215. It will suffice to observe that in the above-cited cases, the Courts while construing above section 5 of the West Pakistan General Clauses Act, 1956 and the corresponding section in the General Clauses Act, 1897, i.e., section 6-A, held that repeal of Amending Act does not affect continuance of amendment as it becomes part and parcel of the main Act. It was also held that the main object of repealing Acts C and Ordinances is only to strike out the unnecessary enactments and excise dead matters from the Statute Book in order to lighten the burden of ever-increasing spate of legislation and to remove confusion) from the public mind and that they are not intended to make any change in the laws their aim being legislative spring cleaning. On the other hand, Mr. Raja Muhammad Afsar, learned counsel appearing as amicus curiae and Mr. S.A.M. Qadri, learned counsel appearing for the private respondent hails urged that the above section 5 of the West Pakistan General Clauses Act, 1956 has no application, as Act XVII of 1974 has not repealed the above amending Act II of 1972. 7. It is, therefore, necessary to examine, whether Act XVII of 1974 has repealed the amending Act II of 1972, whereby subsection (3) in section 16 of the Ordinance was incorporated by the Baluchistan Provincial Legislature. In this regard, reference may be made to the aforesaid Act II of 1972, which indicates that it not only incorporated subsection (3) to section 16 of the Ordinance, but also amended section 12 of the Ordinance by omitting the words 'transportation or Furthermore, Act XVII of 1974 quoted hereinabove has not repealed the above-amending Act II of 1972, but has in fact amended subsection (3) of section 16 of the Ordinance by providing omission thereof. In this view of the matter, it is evident that the above-quoted section 5 of the West Pakistan General Clause Act, 1956 has no application to the instant case. 8. Adverting to the submission on merits, it may be pertinent to observe that Mr. Muhammad Zafar, learned counsel appearing for the petitioner has submitted that the learned Judges of the Division Bench in the case, have not applied the pertinent rule of interpretation of Statute out of the rules enunciated by a learned Single Judge of the Lahore High Court in the case of Pakistan International Airlines Corporation v. Chairman, Punjab Labour Appellate Tribunal, Lahore and another, reported in PLD 1979 Lah. 415, inasmuch as, the rule referred to in sub-pare. (d) of para. 37 was applicable, whereas according to Mr. S.A.M. Qadri and Mr. Yaqub Khan Yousufzai, learned Advocate-General, sub-paras. (a) and (e) of para. 37 were rightly invoked by the learned Judges of the Division Bench. In order to appreciate the respective contentions, it may be advantageous to reproduce para. 37 of the judgment, which reads as follows:-- "37. The rule of interpretation to be inferred from all the references quoted above is: (a)when a statute adopts a part or all of another statute by specific or descriptive reference the adoption takes the statute as it exists at that time and the adopted provisions with necessary adaptations if any because a part of the adopting statute as if it was written down in it; (b)any subsequent addition to or modification of the adopted statute, can be included in the adopting statute only if so expressly or impliedly provided in the adopting statute; (c)When particular sections of an earlier statute are expressly incorporated into a later statute the other sections of the earlier statute may be referred to in order to resolve any ambiguity or absurdity that may arise in its interpretation of that section; (d)When the adopting statute refers to law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of adopting Act but all
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subsequent laws on the particular subject referred to, in so far as they are consistent with the adopting law; (e)When Legislature in adopting the procedural provisions of another Act, made substitutions in certain instances, it will be inferred that in matters not specified no substitutions were intended." It may be pointed out that in the above-referred case of Lahore, the facts were that originally for violation of the provisions of West Pakistan industrial and Commercial (Standing Orders) Ordinance (VI of 1968), an aggrieved worker had the remedy in the form of Standing Order 12(3) and Standing Order 18. The aforesaid two provisions were amended by Ordinance IX of 1972 and the Standing Order 18 was repealed, whereas the scope of Standing Order 12(3) was enlarged and was made applicable to all workers. A remedy was also provided under the I.R.O. 1969 under section 25-A; which was incorporated simultaneously, by virtue of which, an aggrieved workman could approach directly or indirectly to the employer as well as the Labour Court. He could also challenge the order of Labour Court in appeal before the Labour Appellate Tribunal under section 37 (3) of the I.R.O. 1969, which was also amended by Ordinance IX of 1972. However, the above arrangement later on, on 24th May, 1972 was upset and the provisions which were the subject- matter, of the above case, namely, Standing Order 12 (3), was amended providing that a worker could have resort to a remedy referred to in section 25-A of the I.R.O. 1969. The question arose, whether the worker would be entitled to the right of appeal under section 37(3) of the I.R.O. 1969. In that context, reference to the various decided cases on the question of legislation by way of reference was made and the above-cited rules of interpretation were deduced from the case-law referred to and discussed therein. The learned Single edge after having enunciated the above- cited principles of interpretation 'concluded as follows:- "40. The above discussion makes it further clear that the remedy provided is contemporaneous, not with the adopting statute, but with the stage at which the worker becomes entitled to take action, The general rule of interpretation applicable to 'legislation by reference, therefore would not apply to the present case The rule at (d) and (e) referred to above would apply with the result that the subsequent amendments shall apply but only to the extent as they would be applicable to taking an action in accordance with section 25-A and as they would apply to cases of individual grievances at the time when the proceedings are initiated." From the above quoted para. 40 of the judgment, it is evident that the learned Single judge Was of the view that rules of interpretation given at sub-paras. (d) and (e) of Para. 37 were applicable to the above Lahore case and that subsequent amendments made in section 25 A, of the I.R.O. 1969 would be applicable. The above conclusion seems to be contrary to what has been found favour by the learned judges of the Division Bench in the case. 9. At this stage, we may analyse, the above-quoted section 16 of the Ordinance. A plain reading of the above section 16 indicates that subsection, (1) has two parts, namely; (a)That it provides that a scheduled offence shall be bailable or non-bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898, and (b)That the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code. For the purpose of the present controversy the above second part of subsection (1) of section 16 of the Ordinance is pertinent. It is evident that it has not made any reference to any particular provision of the Code, but has referred to the powers exercisable by a Court. It may also be noticed that the use of the words 'shall have the same powers of granting bail' and the further, employment of the words 'that Code" and not 'the Code' is indicative of the fact that the legislature wanted to place accused persons triable under the Ordinance with those triable under the general law, at par in relation to bail matters. The words 'shall have same powers' are relatable to the point of time when the above power is sought to be invoked by an accused person and they are not referable to
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the day when the Ordinance was enacted. The parity of reasoning of the above Lahore case of 1979, particularly referred to in the above-quoted Para. 40, on all fours supports the view that the subsequent amendments in law on the subject of bail will be applicable. Mr. Muhammad Zafar, learned counsel appearing for the petitioner has referred to a passage from Bindra's Interpretation of Statutes, 7th Edition, at page 926, which reads as follows:- "Broadly speaking, legislation by referential incorporation falls in two categories; first, where the statute by, specific reference incorporates the provisions of another statute as of the time of adoption. Second where a statute incorporates by general reference of law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of the latter category, it may be presumed teat the legislative intent was to include all subsequent amendments also; made from time to time in the generic law on the subject adopting by general reference." Whereas, Mr. S.A.M. Qadri, learned counsel appearing for the private respondent has referred to General Clauses Act, 1897 by Dr. Vidya Dhar Mahajan, 1962 Third Edition, particularly to the comments on section 6-A of the said Act, which deals with the question of continuance of an amendment after repeal of the amending Act. The above comments on section 6-A are not relevant to the point in issue. Mr. Raja…
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