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Petitioner: MUBARIK SHAH VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Syed Ibne Ali, Abdur Rehman Khan, Raza Ahmad Khan Title: MUBARIK SHAH vs THE STATE Case No.: Criminal Appeal No,8 of 1989 Criminal Appeal No,76 of 1979 Date of Judgment:1990-05-27 Reported As: 1990 P Cr. L J 1796 Result: Order accordingly
JUDGMENT
JUDGMENT ' RAZA AHMAD KHAN, J.--- This Full Bench is constituted to consider the constitutionality of certain provisions of the West Pakistan Arms Ordinance (No,XX of 1965) as amended by the Pakistan Arms (Amendment) Ordinance (No,XVI of 1988) and the Suppression of Terrorist Activities (Special Courts) Act, 1975 as amended by the Suppression of Terriorist Activities (Special Courts) (Amendment) Ordinance (No,XVII of 1988) read with, and in the light of, Article 264 of the Constitution of Islamic Republic of Pakistan, 1973. 2. The circumstances giving rise to examine the matters are that the accused-appellant Mubarik Shah, on 1st January, 1989 was arrested in a case registered vide FIR. No,3 in Police Station Mansehra on the charges of possessing a .7 mm rifle with seven cartridges, and a revolver of .32 bore, with sixteen bullets of shinkov, punishable under section B of the Arms Ordinance No,XVI of 1988, whereby sections 13-A and 13-B were added to the original Pakistan Ordinance, 1965, and under section 13-B, the penalty for breach of section 8 or section 9 (ibid) a minimum sentence of three years was prescribed. The challan of the case was put, into the Special Court, set up under the Suppression of Terrorist Activities Act, 1975, on 18-2-1989 and the appellant was convicted and sentenced to a term of four years' R.I. With a line of Rs,3,000 or in default to further undergo three months' Si. Vide order of the Special Court dated 17-5-1989. 3. Mubarik Shah called into question his conviction and sentence by way of an appeal preferred and the same came up for hearing before a learned Division Bench of this Court comprising two of us, namely. S. Lime Ali and Abdur Rehrnan Khan, JJ. At the hearing of the appeal on 4-7-1989, Mr. Ljaz Al/al Khan, the learned counsel for the appellant, raised a point of jurisdiction of the Special Court on the ground that Suppression of Terrorist Activities (Special Courts) (Amendment)
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Ordinance, 1988, promulgated by the President of Pakistan on 13-10-1988, having not been laid before the National Assembly, within the prescribed period of four monhts, stood repealed under Article 89 of the Constitution on 13-2-1989 and as such the trial of the appellant having commenced therezifter, his conviction and sentence, recorded by thc learned Special Court, were without jurisdiction. The learned Judges, therefore, deemed it advisable to call upon the Advocate- General, N.-W.F.P. To assist the Court on the principles of continuity of such repealed statute qua the effect and impact thereof on the subsequent proceedings with special reference to the trial of the appellant, by the Special Court, in the circumstances 4. On the next hearing i,e, on 10-10-1989, the learned Advocate-General appeared and, while referring to Articles 89 and 264 of the Constitution,submitted that an offence if committed under a law then in force, the offender, notwithstanding the appeal of such law, shall continue to he dealt with thereunder in respect of his rights and liabilities including the enhanced punishment prescribed as also the forum provided to him for the trial of his offence, and procedure provided therfor. He, however, brought to our notice an unreported judgment of this Court in Cr. Appeal No,76 of 1979 Muhammad Akhar Khan v. The State in which one of us (Abdur Rchman Khan, J.) was a party and the learned Bench observed that:-- "We have very anxiously considered this aspect of the matter and we are of the opinion that although under Article 264 of the Constitution, the offence complained of against the appellant could be tried by the learned Special Court but since it has ceased to he a scheduled offence, the appellant should have been sent up for trial before a Court of ordinary jurisdiction as, after the repeal of the aforesaid Ordinance, the offence ceased to he a scheduled offence." ' The learned Advocate-General, therefore, made a written request for constituting a Full Bench of this Court in order to examining the matter in depth for a more authoritative pronouncement. 5. In the context of importance of the matter involved, the request of the learned Advocate-General was acceded to and as per order of this Court dated 10-10-1989 it was directed that the case may he laid before the Honourable Chief Justice for appropriate order. 6. We have heard Mr. Ejaz Afzal Khan, Advocate, the learned counsel for the appellant and Qazi Muhammad Anwar, the learned Advocate-General, N.-W.F.P., who has by now replaced Mr. J.D. Akbarji, at length. 7. The learned counsel for the appellant reiterated his arguments as referred to in the earlier part of this judgment. He, however, conceded that the appellant could be tried by a Criminal Court of ordinary jurisdiction under section 13-B of the Arms Ordinance, the lapse and consequent repeal of the amending Ordinance XVI of 1988 notwithstanding, but the Special Court neither could try him nor could punish him under section 13-B of the Arms Ordinance, 1965, for want of jurisdiction which the learned Court stood divested of, after the lapse of Ordinance No,XVII of 1988. 8. On the other hand, Qazi Muhammad Anwar, the learned Advocate-General submitted that if an offence is committed under an Ordinance promulgated by the President or, as the case may he, by the Governor of a Province, and then in force; the offender, notwithstanding the lapse of such Ordinance, shall continue to be dealt with thereunder with all the rights accrued to, and liabilities incurred by, him. He further argued that its repeal by operation of law, shall not affect any investigation to he instituted or the ensuing legal proceedings be continued, including the forum provided to him for the trial of his offence and the procedure prescribed thereunder. He drew our attention to the language of Article 264 of the Constitution as also that of section 6 of the General Clauses Act, 1897, or for that matter section 4 of the West Pakistan General Clauses Act, 1956; in particular to clause (e) and the concluding parts of the said provisions, which are almost analogous to one another. He laid great emphasis on the expression 'legal proceedings' as used therein and submitted that legal proceedings include the procedural matter pertaining to the trial of an accused person of which the forum provided therefor forms an integral part. In this context of
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the matter, the learned Advocate-General maintained, the learned Special Court, despite the repeal of the Ordinance XVII of 1988, was nonetheless validly clothed with the jurisdiction vested in it under the repealed Ordinance and as such has held the trial of the appellant competently. He, therefore, urged that the trial cannot stand vitiated nor the conviction and sentence recorded by him can be set aside on this saare. 9. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas. 10. To recapitulate the matter it may be stated that under the Suppression of Terrorist Activities (Special Courts) Act (No,XV of 1975) (hereinafter referred to as the Act of 1975), the learned Sessions Judge, Mansehra, was notified as Special Court for its respective territorial jurisdiction. The President of Pakistan in exercise of his powers, under Article 89 of the Constitution, promulgated the Pakistan Arms (Amendment) Ordinance, 1988 (No,XVI of 1988) on 12th October, 1988. It was published in the Gazette of Pakistan, Extraordinary on 13th October, 1988 and as per its subsection (2) of section 1 it came into force at once. As per its subsection (3), the Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No,XX of 1965) (hereinafter referred to as the Arms Ordinance of 1965) was amended and sections 13-A and 13-B were added thereto. 11. The same day another Ordinance viz. Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance, 1988 (No,XVII of 1988) was promulgated which was simultaneously published in the Gazette of Pakistan, Extraordinary of 13th October, 1988 and as per its subsection (2) of section 1 it also came into force at once. As per its section 4, the schedule of Act of 1975 was amended and the offence punishable under the newly-added sections 13-A and 13-B of the Arms Ordinance, 1965 were added thereto. 12. The overall effect of the two aforesaid Ordinances was that whereas the penalty for breach of section 4 of the Arms Ordinance was enhanced to the extent of 14 years, a minimum sentence not less than 7 years, fine and forfeiture of property was prescribed under section 13-A. Similarly penalty for breach of section 8 or 9 of the Arms Ordinance, 1965, in respect of cannon of Automatic weapon etc. Was enhanced to a term extending to 10 years and a minimum sentence of 3 years and fine was prescribed under section 13-B (ibid). By virtue of the second and contemporaneously promulgated Ordinance (No,XVII of 1988), however, exclusive jurisdiction was bestowed on the Special Court set up under the Act of 1975 to try the offences under sections 13-A and 13-B of Arms Ordinance 1965. It is pertinent to note that an appeal against the order of the Special Court under section 7 of the Act of 1975, lies to the High Court within whose jurisdiction the sentence has been passed. 13. It was in this context that the case was registered vide F.I.R. No,2 on 1-1-1989 against the appellant in Police Station Mansehra under section 13-B of the Arms Ordinance and he was tried, convicted and sentenced by the Special Court, Mansehra vide its judgment dated 7-5-1989. 14. Both the Ordinances, however, could not be laid before the National Assembly as required under clause (2)(a)(i) of Article 89 of the Constitution within the prescribed period of 4 months, lapsed consequently on 12th February, 1989 and stood repealed as such. 15. The admitted position thus obtaining then, qua the case in hand was that the occurrence took place on 1st of January, 1989 when Ordinances XVI and XVII of 1988 were in force, but the challan was submitted on 18th February, 1989 before the Special Court when both the Ordinances had lapsed on 12-2-1989 and, according to the learned counsel for the appellant, the Special Court by virtue of the fact that Ordinance XVII was no more on the Statute Book, was left with no jurisdiction to conduct the trial of the accused inasmuch as the jurisdiction vested in the Special Court under Ordinance No,XVII of 1988 was nor more in the field. 16. The point thus falls for determination is that the offence having been committed with a Special forum exclusively provided for the trial thereof, under the laws for the time being in force; whether
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the lapse/repeal of such laws by, under or by virtue of the Constitution vide its Article 264 shall, nonetheless, govern the ensuing proceedings against the offender, particularly the forum provided for the trial of the offence he is charged with. 17. It will be advantageous to reproduce the relevant Articles of the Constitution which read as follows:-- "Article 89(1). The President may, except when the National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require; (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of (Majilis-e-Shoora) (Parliament) and shall be subject to like restrictions as the power of (Majlis-e- Shoora) (Parliament) to make law, but every such Ordinance-- (a) shall be laid-- (i) before the National Assembly if it (contains provisions dealing with all or any of the matters specified in clay of Article 73, and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of t at period a resolution disapproving it is passed by the Assembly upon the passing of that resolution; (ii) before both Houses if it (does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disproving it is passed by either House, upon the passing of that resolution; and (b) may be withdrawn at any time by the President. (3) Without prejudice to the provisions of clause (2), an Ordinance laid before the National Assembly, shall be deemed to be a Bill introduced in the National Assembly." Article 264. ' Where a law is repealed or is deemed to have been repealed by, under, or by virtue of the Constitution:-- (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) effect the previous operation of the law or anything duly done or suffered under the law; (c) effect 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 proceeding 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 endorsed, and any such penalty, forfeiture or ' punishment may he imposed, as if the law had not been repealed." 18. 'Having regard to the language of the aforequoted Constitutional provisions, the point that initially needs to he examined, in the instant case is, as to whether the ensuing proceedings to an offence committed under a law in force and exclusive forum for the trial thereof depends upon the state of law as to when the offence was committed or as it stood on the day on which the prosecution was laid-against the offender. 19. It is not controverted that in case of a penal provision, a person who commits an offence becomes liable the moment the offence is committed. But what is urged for the appellant is that this principle will not apply to, or for that matter include the forum for the trial of the offence thus committed inasmuch as on repealing of a statute vesting jurisdiction on the special Court, the forum stood divested of the same and was no more a competent Court of law to proceed with the trial of the accused for the offence the Court was empowered to try him. The learned counsel for the State, however, submits that trial of the accused is the continuation of the accrual of his rights
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and incurrence of his liabilities and as such his trial cannot be isolated from the proceedings already set in motion. Thus, the simple question that emerges out of the arguments and counter- arguments of the learned counsel for the parties would be whether, in such a situation, the prosecution could be laid against the appellant in respect of the offence committed under the laws which stood lapsed/repealed on the day when the appellant was charge-sheeted before the Special Court, presumably under section 173 of the Code of Criminal Procedure. 20. Need I state that the purpose of interpretation of a statute is to ascertain the intention of the law-maker in order to make it effective. The basic principles, therefore, governing the interpretation or construction of a statute although well-settled yet are seldom regarded as inflexible save, of course, where a statute is plain, unequivocal and free from any embiguity. Else, statute will be construed liberally or strictly according to their subject-matter and the object and purpose intended to be achieved. In this regard, it is now well-known rule of law that when faced with a choice between a wide meaning, which carries out what appears to be the object of the Legislature more fully, and a narrow meaning which carries it out less fully or not at all, the choice of the Courts is often the former. 21. Viewed the matter in the perspective of the foregoing proposition of interpretation, I cannot lose sight of the fact that the Ordinances XVI and XVII of 1988 had common aim and object behind these which was required to be achieved in the circumstances in that due to indiscriminate possession of unlicensed fire-arms, security of citizens has been placed in extreme jeopardy and having regard to the prevailing deteriorated situation of law and order in the country, the President rather felt satisfied to the existence of such circumstances as to have prompted him to promulgate the two Ordinances which unfortunately, for the reasons not explained before us could not be laid before the Parliament, and hence lapsed. 22. In the context of the above and the concession of the learned counsel for the appellant to the extent that the incurrence of criminal liability under the repealed Ordinance XVI of 1988 is not in question and that his offence, in the ordinary course, could be visited with the punishment provided for under section 13-B of the Arms Ordinance, despite its being no longer on the Statute Book; I fail to understand as to how the provisions of Ordinance No,XVII can be isolated in such a situation which was promulgated simultaneously with Ordinance No,XVI of 1988. For the aim and object of both the Ordinances, as stated earlier, was rather complementary to each other with the additional reason that the forum envisaged for its trial was presided over by a Sessions Judge, per contra a Magistrate, with a right of appeal to the High Court and thus more beneficial for the appellant. 23. All this leads me to an inescapable conclusion that the object and purpose of both the lapsed/repealed Ordinances XVI and XVII of 1988 being common, the effect of their having lapsed, when considered in the context of Article 264 of the Constitution, the trial of the appellant held by the Special Court was in continuation of the incurrence of his liabilities and accrual of the rights as enshrined in the provisions of the lapsed/repealed enactments and the investigation having been set in motion under a law then in force, all subsequent legal proceedings were in accord with the rest of the provisions thereof and, ex consequenti, the trial of the offence which the appellant was charged with has been lawfully held by the Special Court, the repeal of the law in this behalf notwithstanding. 24. In somewhat similar situation came for examining, before the Supreme Court of Pakistan, the effect of repeal of Frontier Crimes Regulation, 1901, vide the West Pakistan Criminal Law (Amendment) Act (VIII of 1963), in the case of Sona and another v. The State reported in PLD 1970 SC 264. 25. In this case the Commissioner, Dera Ismail Khan Division, had confirmed the order of conviction and sentence of the appellant, after the repeal of Frontier Crimes Regulation, 1909 and the order of
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the Commissioner, otherwise valid under section 12(2) of the said enactment, was called into question on the ground that on the day he exercised his jurisdiction in this behalf, the regulation stood repealed vide the repealing Act VIII of 1963, consequently his impugned order being without jurisdiction was of no legal effect. 26. Repelling the arguments, the learned Judges of the Supreme Court held:-- "One of the effects of the repeal is that is shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforsaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is, therefore, quite clear that all the investigations or proceedings which are contemplated are to continue as if the Repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure in force at the commencement of the trial and the same procedure has to be followed." 27. It may be mentioned here that under the Frontier Crimes Regulation, 1901, on a verdict of guilty, awarded by a Jirga, the Deputy Commissioner concerned is required to pass the sentence which is subject to confirmation of the Commissioner. In other words, the process of prosecution of the accused in a trial by the Jirga under the Frontier Crimes Regulation stands completed only when an order of confirmation is ultimately passed by the Commissioner. Accordingly, it can be said with an amount of certainty that confirmation of the sentence in Sona's case by the Commissioner, Dera Ismail Khan, was one of the links of the same chain of process as contemplated in the expression, legal proceedings used in Article 264 of the Constitution. 28. I am mindful of the situation that in this case the prosecution had already been laid against the accused persons when the Frontier Crimes Regulation of 1901 was in force and it was only at the concluding stage of the proceedings that the parent law stood repealed. It can be thus argued that in that case, under the settled principle of interpretation of statutes, the proceedings could be continued and the Commissioner could validly exercise his powers vested in him under the repealed law; which in the instant case, the prosecution was laid before a Court on the day when it was no more competent to take cognizance of the offence. 29. Answer to this is made available in a case of Indian jurisdiction, where came under examination the effect of the repeal of the Bombay Prevention of Hindu Bigamous Marriage Act (XXV of 1946), under section 5 whereof the Bigamous marriage was made punishable and under section 8 (ibid), the jurisdiction to try the offender was bestowed exclusively on a Presidency Magistrate or a Magistrate 1st Class. The aforementioned Act was in force when on 16th May, 1955, one Narayandas Mangilal Dayame allegedly committed the offence of bigamy. However, before the complaint was formally filed in a Court of the Magistrate of competent jurisdiction, the Bombay Act No,XXV of 1946 was repealed by a Central Act No,XX of 1955 which came into force on 18th May, 1955. The learned Magistrate, before whom the complaint was lodged on 5th of July, 1955, held that since the prosecution was launched after the Act No,XXV of 1946 was repealed vide Central Act No,XXV of 1955, having come into force on 18th May, 1955, the accused was entitled to an order of acquittal. The State of Bombay preferred an appeal against the said order. A Division Bench of Bombay High Court referred, inter alia, the matter due to its importance, to a Full Bench. In the leading judgment delivered by Chief Justice Chagla, to which the other two learned Judges concurred, while resolving the controversy as to whether or not the complaint could be laid against the accused in the Court of exclusive jurisdiction after the repeal of the Bombay Act No,XXV of 1946, in the case State v. Narayandas Mangilal Dayame reported as AIR 1958 Bom. 68, it was held:-- "We are also in agreement with the view taken by Mr. Justice Shah and Mr. Justice Palnitkar that the learned Magistrate was obviously in error when he held that although the alleged offence was
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committed when the Bombay Act was in force, the mere fact that the complaint was filed after the repeal of the Act, precluded the State from prosecuting the accused. If the accused is guilty and if he has committed an offence, then the mere fact, that prosecution is launched after the repeal of the Act which constituted the offence, cannot possibly affect the guilt of the accused or the right of the State to prosecute him or the jurisdiction of the Court to convict him." 30. In the light of the rule laid down in the aforequoted decision of the Supreme Court of Pakistan and that of Bombay High Court, I have no hesitation in holding that the trial of the appellant depended upon the state of laws when the offence was committed and not as it stood on the day when the prosecution was laid against him. Or, for that matter, prosecution could be laid against him even after the lapse/repeal of the laws when the appellant was charge-sheeted before the Special Court presumably under section 173 of the Code of Criminal Procedure. 31. In this context of the matter I cannot help observing that in view of the admission made by the learned counsel for the appellant to the effect that despite lapse/repeal of Ordinance XVI of 1988, the appellant could be tried for the offence under section 13-B by the Court other than the Special Court set up under the Act of 1975, his contention that the Special Court nonetheless, could not try him for want of jurisdiction due to the…
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