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Petitioner: ASIF ALI ZARDARI VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Mamoon Kazi, Muhammad Aslam Arain, Haziqul Khairi Title: ASIF ALI ZARDARI vs THE STATE Case No.: Cr. Bail Applications Nos.839 and 290 of 1992 Date of Judgment:1993-01-31 Reported As: 1993 P Cr. L J 781 Result: Bail granted
JUDGMENT
JUDGMENT ' MAMOON KAZI, J.--- Applicants Asif Ali Zardari and Ali Bux Abbasi have been indicted before the learned Special Courts Nos.I and II for Suppression of Terrorist Activities, Karachi for allegedly committing offences under sections 13(f) and 16(b) of Pakistan Arms Ordinance, 1965 and sections 365-A, 395 and 109, P.P.C. Read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, respectively. During the pendency of their trial, after the applicants had respectively remained under detention for a continuous period exceeding one year, they moved their respective bail applications first before the learned trial Court and subsequently before this Court by invoking the third proviso to section 497, Cr.P.C. Which enabled them to seek bail on the ground of their continuous detention in custody for the said period. When the said applications were pending, Ordinance No,XV of 1992 was promulgated on the 16th November, 1992 which amended section 497, Cr.P.C. With immediate effect by omitting the third and the fourth provisos from the said section. The same has consequently resulted in depriving persons under custody of right to seek bail under the said provisos. The main question that has arisen for determination is, whether the said Ordinance operates retrospectively in the present case. Some ancillary and incidental questions have also been raised which we propose to dispose of by this common judgment. 2. According to the facts of Criminal Bail Application No,839 of 1992, which has been filed on behalf of applicant Asif All Zardari, F.I.R. No,260 of 1990 was lodged on 26-8-1990 at 6-30 p.m. At Police Station Shahra-e-Faisal, Karachi alleging recovery of arms from two persons, namely Muhammad Akbar Samejo and Muhammad Razzaque Awan in respect of which licence had been issued in the name of applicant Asif All Zardari. But the same had expired on 31-12-1989. It was alleged that the
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applicant had failed to surrender or deposit the said arms either with any police station or a licensed arms dealer in contravention of section 10 of the Arms Act. Subsequently, the same had been given into custody and possession of the said persons. The applicant was, therefore, charged with commission of offences punishable under sections 13(f) and 16(b) of the Arms Ordinance as pointed out earlier. 3. Although the F.I.R. In respect of the said offence was lodged in August, 1990 but the same remained pending as no further action was taken thereon by the police. The challan was, however, submitted before the learned trial Court on 16-11-1991. The applicant was already in custody when the F.I.R. In respect of the said offence was registered by the police. 4. Bail application on behalf of the applicant was filed before the learned trial Court on 13-10-1992, invoking third proviso to section 497(1), Cr.P.C. The application was, however, dismissed by the learned trial Court on 4-11-1992 as it was found that the application filed by the applicant was premature as the period of one year had not expired and the applicant was himself instrumental in causing protraction of the trial. Thereafter, the present application was moved on behalf of the applicant on 10-11-1992. 5. So far as the facts of Criminal Bail Application No,290 of 1992 filed by applicant Ali Bux Abbasi are concerned, the applicant is one of the accused in the case which is pending before the learned Special Court for Suppression of Terrorist Activities under sections 365-A and 120-B, P.P.C. The applicant was arrested in April, 1990 in connection with the said case and theresince he has continuously remained under detention. 6. On 27-4-1991 an application on behalf of the applicant and co-accused Dr. Babar Jamali and Noor Ahmed Abbasi was filed before the learned trial Court wherein the third proviso to section 497(1), Cr.P.C. Was invoked. However, after the said application had been kept pending for nearly a year, an order was passed by the learned trial Court dismissing the said bail application. It was held by the learned trial Court that the said applicant was not entitled to the benefit of the third proviso in view of the judgment of the Supreme Court in Muhammad Aslam v. The State 1991 SCMR 599. Although, according to the learned trial Court, the observations made in the said case related to the provisions of Ordinance IX of 1984 but the provisions of section 5(6) of the said Ordinance which were under examination were similar to the provisions of subsection (8) of section 5-A of the Suppression of Terrorist Activities Act, 1975 under which the applicant was being tried. 7. Thereafter, bail application was filed on behalf of the applicant before this Court on 21-4-1992 which was, however, dismissed for the same reasons by a Division Bench of this Court of which one of us (Mamoon Kazi, J.) was a member. 8. The applicant, thereafter, moved the Honourable Supreme Court which set aside the order of the Division Bench and referred the case to this Court for reconsideration since after the decision of the Supreme Court in the case of Muhammad Aslam, another judgment was given by the Honourable Supreme Court in the case of The State v. Syed Qaim Ali Shah 1992 SCMR 2192 wherein the earlier judgment in the case of Muhammad Aslam was reviewed and it was held that the third proviso to section 497(1), Cr.P.C. Was available to the accused facing trial before a Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975. 9. The main contention of Mr. Aitizaz Ahsan, learned counsel for applicant Asif Ali Zardari has been that, the accused is entitled to bail under the said proviso as of right and no enactment can operate retroactively so as to take away existing rights. Reliance has been placed by him upon the observations made by Muhammad Afzal Zullah, J. (as he then was) in Nazir Hussain v. Ziaul Haq 1983 SCMR 72. In this case, the learned Judge while speaking on behalf of the Supreme Court, has observed:--
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"9. The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr.P.C. Before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes effected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word 'shall' in the third proviso, is in the meaning of 'may'. Learned counsel failed to notice that while in first proviso the words 'may' has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the 'word' shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it becomes due in the context of bail. We accordingly repel the argument of the learned counsel and hold that word 'shall' in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub-clause (b) to show the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court it is empowered to take into account the expected/apprehended delay." ' The view taken in the above case was followed in Roshan v. The State 1989 P Cr. L J 31. 10. As to retroactive operation of statutes, N.S. Bindra, in his Book Interpretation of Statutes 7th Edition, at page 851 while relying upon the observations made by the Indian Supreme Court in K. Eapen Chacko v. Provident Investment Co. (P.) Ltd. AIR 1976 SC 2610 has observed:-- "Perhaps no rule of construction is more firmly established than this -that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. A statute which impairs vested rights or the legality of past transactions or the obligations of contract should not prima facie be held to be retrospective. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions already past must be presumed to be intended not to have retrospective effect. Such rights cannot be taken away by implication." ' The right of a party to institute a suit or to file an appeal in a particular Court in view of the decision of the Privy Council in Colonial Sugar Refming Co. v. Irving 1905 AC 369 has always been regarded as a substantive right and not merely a matter of procedure or procedural law. The said principle is now found reflected in clauses (c) and (e) of section 6 of the General Clauses Act, which provides that:-- "6. Effect of repeal.--- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a)------------------------------------------------------------- (b) ------------------------------------------------------------------------------- (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) ------------------------------------------------------------------------------- (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, . Obligation, liability, penalty, forfeiture, or punishment as aforesaid; 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
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Regulation had not been passed." ' The above provisions could not be better expounded than by the following observations made by the Supreme Court in the case of Saeed Ahmad v. The State PLD 1964 SC 266. In this case section 165-B was introduced in the Pakistan Penal Code which exempted bribe-giving under inducement or threats from operation of section 165-A, P.P.C. Question arose, whether section 165-B which was introduced in the Pakistan Penal Code during the pendency of an appeal filed by the acused against his conviction under section 165-A, P.P.C. Could receive retrospective operation in order to determine guilt of the accused. In other words, whether the guilt of the accused could be determined on the basis of the law as it stood on the date when he committed the offence or the same was to be determined in accordance with the law as it stood when the appeal was decided by the High Court. It was observed by the Supreme Court in this case as follows:- "As to the applicability of a statute which is enacted after the coming into existence of the acts or events, the legal effects which are to be determined, the law is not in any doubt. So far as substantive rights of parties to a litigation are concerned, a law which comes into force either during the pendency of the proceedings in a Court or even before the institution of such proceedings, but after the coming into existence of the events, the legal effect of which is to be determined, can have no effect whatsoever on the proceedings except to the extent of the retrospective effect which it may possess expressly or by necessary implication. If a person died before 1948 and he was governed in matters of inheritance by custom, an act passed in the year 1948 according to which all his property is to descend to his heirs in accordance with Muhammadan Law has obviously no effect whatsoever on the rights of parties even though the litigation began after the new act came into force. When rights once vest in parties they are not affected by any legislation that has merely prospective effect. This is the position so far as substantive rights are concerned. So far as the procedural provisions are concerned the ordinary rule is that Courts continue to have the jurisdiction which they had at the time when a proceeding was instituted even though that jurisdiction is subsequently taken away, but an interpretation of the new Act may lead to a different result. Not long ago we held that all appeals which were competent under the old Constitution could be filed if the judgment under appeal had been delivered when the previous Constitution was still in force. Even if the appeal was in such a case filed after the coming into force of the new Constitution that would make no difference to the competence of the appeal. It is true that sometimes the jurisdiction of a Court to pass a particular kind of order may be taken away by a new Act so that it can henceforth pass no order of that kind even in a pending proceeding, but as I have said this will depend upon the interpretation of the new statute." ' When the provisions of section 6 of the General Clauses Act once again came to be examined in the case of Sona v. The State PLD 1970 SC 264 the same view was once again propounded by the Supreme Court. It was observed in this case as follows:- "Section 6 of the General Clauses Act of 1897 which applies to Central Acts or Regulations is also in the same terms and language. One of the effects of the repeal is that it shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; 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."
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11. As it has been earlier observed, unless there is a clear intention expressed by the Legislature to give retrospective effect to a statute affecting an existing right or a privilege, a statute is always presumed to be prospective in operation, that is to say it is applied to cases and facts which came into existence after its enactment. This was stated to be, in Nabi Ahmad V. Home Secretary, Government of West Pakistan PLD 1969 SC 599, not a statutory protection but a principle to effectively check by virture of presumption of fair-play, existing rights. Its origin was said to be found in the conscientious abhorrence that all just men have for the injustice that is inherent in changing the legal implications of a situation to the disadvantage of those who would otherwise benefit by a right which existed at the time of the change. Similar view has been expressed by the Supreme Court in the Income-tax Officer v. Sulaiman Bhai Jiwa PLD 1970 SC 80. In this case, it was further observed that use of the words such as "shall" or "hereinafter" is to be taken to indicate an intent that the statute is to be construed as prospective only; on the other hand, the use of the words denoting past tense such as "has been" or "heretobefore" D constitutes an explicit declaration that the Act is to be construed retrospectively. 12. The general principle relating to retrospective operation of statutes, which has been prepounded in the above cases including the case of Colonial Sugar Refining Company seems to be that, if the matter in issue is a matter of procedure only, the statute would operate retroactively. However, if it touches a right in existence at the time of passing of the statute, then according to a long line of authorities the Legislation would not operate retrospectively unless such an intention is expressed by the Legislature either by express words of the statute itself or by necessary intendment. The distinction between substantive and procedural law drawn in Salmond's Jurisprudence, 12th Edition, at page 128 has been explained in PLD 1969 SC 599 thus:-- "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." ' Thus: "'a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party', 'rules defining the remedy as those which define the right itself, that part of criminal law which deals, not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law," ' and, as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the change of forum--- ' If in the process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice." ' In Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187, although, the above distinction between statutes dealing with mere matters of procedure or substantive rights was once again reconfirmed, but the question arose as to what are the matters of procedure, and those of substantive rights. Reference in this regard may be made to the following observations made by Hamoodur Rahman, C.J. Who delivered the judgment on behalf of the Supreme Supreme Court:-- "The next question, therefore, that arises for consideration is as to what are matters of procedure. 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. Crawford too takes 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. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is 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
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affected or the giving of retroactive operation cause 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 favourably incline towards giving effect to such procedural statutes retroactively." 13. Challenging the correctness of the contentions raised by Mr. Aitiza7 Ahsan on behalf of applicant Asif All Zardari, Mr. Aftab Ahmed Akhund, the learned. Advocate-General has strenuously contended that grant of bail to an accused person is a mere matter of procedure and not of a substantive right. While referring to the third proviso to section 497(1), Cr.P.C., the learned Advocate-General has argued that even if it is assumed that the said proviso creates a right in favour of the accused, the same only being a procedural right, must be deemed to have been extinguished with the repeal of the enactment itself. The learned Advocate-General has further contended that even the existence of such right, if any, would depend upon the satisfaction of certain conditions as laid down by the said proviso or the fourth proviso to section 497(1), Cr.P.C. Consequently, the said right in any case is not an absolute right or a vested right. Additionally, it has been argued that in any case the right to apply for bail under the third proviso has not accrued to applicant Asif All Zardari as he has not been under detention for a continuous period of one year in connection with the present case as postulated by the said proviso and consequently such right, in any case, has not yet ripened. 14. So far as the last contention of the learned Advocate-General is concerned, there is no controversy on the point that when F.I.R. In the present case was lodged, applicant Asif All Zardari was already in confinement in connection with a number of criminal cases which were pending against the applicant in different Courts. The challan in the case was filed by the prosecution on 16-11-1991 after a lapse of more than a year after the F.I.R. In the case had been registered by the police. No formal arrest of the applicant was made by the police in connection with the present case. Our attention has been invited to a letter dated 6-11-1991 addressed by the then S.D.P.O., Airport Sub-Division, Karachi to the Senior Superintendent of Police, District East; Karachi which shows that the said S.D.P.O. Was directed to file a charge-sheet against applicant A.Cif All Zardari in the competent Court of law. Thereafter, on 16-114991, the applicant was charge-sheeted before the learned trial Court. Learned Advocate-General has argued that the date of filing of the challan would be the date for the purpose of computation of the period of one year, entitling the applicant to grant of bail under the third proviso to section 497(1), Cr.P.C., whereas according to Mr. Aitizaz Ahsan, such period must be computed from the date when the F.I.R. In respect of the offence had been lodged against the applicant, such date being 26-8-1990. The third proviso to section 497(1) indicates that a right to apply for bail under the said proviso accrues to an accused, who has been detained for an offence, for a continuous period exceeding one year or as the case may be, two years and whose trial for such offence has not concluded. The period of detention must at least be one year in case of an offence not punishable with death and two years in case of an offence punishable with death. It would thus appear that only such person who has been detained for an offence for a continuous period exceeding one year, or, as the case may be, two years and whose trial for such offence has not concluded can invoke the said proviso to section 497(1), Cr.P.C. It, therefore, follows that right to apply for bail under the said proviso cannot accrue to an accused person unless he has remained under detention for an offence for the period referred to in the said proviso. Such period is, therefore, to be computed not from the date of filing of challan by the prosecution, but the date on which the accused was detained in custody. The only question to be considered by the Court, therefore, would be as to the continuous period of detention of the accused. In the present case, as has been pointed out earlier, the applicant was already under
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detention in connection with other criminal cases. In case this period is computed from the date when the challan in the case was filed, the same being 16-11-1992, then the obvious inference would be that the applicant had not completed one year in custody as postulated by the third proviso to section 497(1), Cr.P.C. At the time of filing of the bail application because admittedly his application had been presented before the learned trial Court on 13-10-1992 and a similar application had been filed before this Court on 10-11-992. However, the endorsement made on the letter of S.D.P.O., Airport Sub-Division dated 6-11-1991 by the Superintendent of Police, District East, Karachi, dated 7- 11-1991 reference to which has earlier been made in this order, undoubtedly indicates that the applicant who was already in jail was also to be treated as arrested in the present case. Such endorsement, therefore, indicates that if not before, at least the applicant was arrested in connection with the present case on 7-11-1991. Consequently, in case the period of detention of one year in the case of the applicant had not expired at the time of filing of the application before the learned trial Court, the same undoubtedly had expired before…
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