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Petitioner: STATE VS Respondent: Syed MIR AHMED SHAH AND ANOTHER
Court Name: Balochistan High Court Judge(s): Muhammad Afzal Zullah Title: STATE vs Syed MIR AHMED SHAH AND ANOTHER Case No.: Criminal Revision No. 37 of 1968 Date of Judgment:1969-10-29 Reported As: PLD 1970 Quetta 49 Result: Order accordingly
JUDGMENT
JUDGMENT By a challan report, dated 3rd February 1968, the Superintendent of Police requested the Special Judge (Central), Quetta, for trial of the respondents for offences under section 420/468/471, P. P. C. And section 5 (2) of the Prevention of Corruption Act, 1947 Sarfraz Masih respondent is stated to bean employee of the Central Government in the Department of Settlement and Rehabilitation. The evidence had been summoned when on the 20th May 1968, the accused objec--ted to the jurisdiction of the learned Special Judge. The precise objection was that all offences under the Pakistan Penal Code were scheduled offences under the Criminal Law (Special Provisions) Ordinance (No.II of 1968) (hereinafter referred to as the Ordinance) therefore, only the Tribunal created there --under had the jurisdiction The case of the State on the other hand was that the offences being exclusively triable by a Special Judge under the Pakistan Criminal Law Amendment Act (XL of 1958) (hereinafter referred to as the Act), only the Special Judge had the jurisdiction. The learned Special Judge after hearing learned counsel for the parties and also some other learned Advocates of Quetta, as according to him the question involved was important, decided that he had no jurisdiction in the matter. He, therefore, sent the case to the Deputy Commissioner for proceedings under the Ordinance, by his order dated 25th June 1968, which has been challenged by the State in this revision. 2. The respondents were un-represented during the hearing. Therefore, on my asking some learned Advocates of Quetta, whose names appear hereinafter, and Mr. Khalid Ishaque, a learned Advocate from Karachi who happened to be at Quetta on one of the hearings, also addressed arguments. In order to appreciate the arguments, it is necessary to refer to the main relevant provisions of the two laws which require to be inter--preted.
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Subsections (1) and (2) of section 5 of the Act read as follows:- "5.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge. (2) The appropriate Government may, from time to time, by notification in the official Gazette, include in the Schedule such other offences as it deems necessary or expedient." The Schedule, amongst other offences, includes the offences of which the respondents have been charged. Subsection (2) of section 1 makes the Act applicable to whole of Pakistan and to all the citizens of Pakistan and public servants, wherever they may be--- Section 3 of the Ordinance reads as follows: --- "3. Trial of Scheduled offences.--(I) Notwithstanding any--thing contained in any other law for the time being in force, no Scheduled offence shall be tried except in the manner provided by this Ordinance. (2) Except as otherwise provided in this Ordinance, the provisions of the Evidence Act, 1872 (1 of 1872), and the Code of Criminal Procedure, 1898 (V of 1898), shall not apply to any proceedings under this Ordinance." "Scheduled offence" has been defined in clause (e) of section 2 of the Ordinance as an offence made punishable by the Pakistan Penal Code (XLV of 1860), other than an offence specified in section A of Part I of the Schedule to the Conciliation Courts Ordinance, 1961 (XLIV of 1961). 3. Mr. Abdul Hafiz Memon, the learned Assistant Advocate --General contended that the Act being a Central Law and the Ordinance being a Provincial law, the former will apply by virtue of Article 134 of the Constitution of 1962. In the alternative, he contended that even if the Provincial Legislature had the power to alter or amend the Act, the promulgation of the Ordinance has not in fact altered, amended or repeated the Act. The contention further proceeded that the Courts have always leaned against implied repeal; and there being no real inconsistency between the two statutes, there is no question of repeal and thus the Act will continue to apply. He also argued that the Ordinance being a general law while the Act being a special law, the former cannot override the latter. And lastly that the procedure for trial of offences and matters connected therewith provided in the Act being more beneficial to the citizens, the same should be preferred over the mode and forum of trial provided in the Ordinance. Mr. Karam Elahi and Mr. Aziz Ullah Memon, two learned Advocates from Quetta, supported the contentions of the learned Assistant Advocate-General. Mr. Karam Elahi further contended that while promulgating the Ordinance, it was never intended that it would override the provisions of the Act. In fact, he went to the extent to arguing that the Legislature was not conscious of the fact that an overlapping statute i.e., the Act, was already in existence. Mr. Khalid Ishaque, Mr. Muqeem Ansari, Mr. Zaka Ullah Lodhi and Mr. Farhat A.I Advocates have supported the view held by the learned Special Judge, in that the Ordinance over--rides the Act in so far as the offences scheduled in the former law are concerned. I have already mentioned that the two accused-respondents were unrepresentative in these proceedings and they themselves, have not addressed any arguments. 4. It appears that the learned Special Judge did not notice that the challan against the respondents was submitted for trial of an offence under section 5 (2) of the Prevention of Corruption Act, in addition to the offences (420/468/471) under the Pakistani Penal Code. The offence under the Prevention of Corruption Act is not a scheduled offence under the Ordinance On the contrary, it is a Scheduled offence under the Act. Therefore, this offence is exclusively triable by the Special Judge. Thus the reference of the entire case by the learned Special Judge to the Deputy Commissioner without making the exclusion as to the offence under section 5 (2) of the Prevention of Corruption Act is contrary to law. The authorities and the Tribunal under the Ordinance have no jurisdiction to deal with an offender or an offence under that provision.
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5. It is true that the Act was passed by the Central Legis--lature in 1958 under the 1956-Constitution. But the division of subjects between the Centre and the Provinces under the 1956--Constitution was entirely different from that under the 1962--Constitution. Under the earlier Constitution, the subject of Civil and criminal law including the law of evidence was in concurrent list while administration of justice was in the Provincial list. Under Article 106 thereof, both the Provincial as well as the Central Legislatures had the power to legislate in the concurrent list. The Provincial Legislature had exclusive power to legislate in the Provincial list but it was subject to the power of both the Legislatures in respect of the concurrent list. In the 1962-Con--stitution, there is only one list of subjects wherein only the Central Legislature can legislate under Article 131 (1). Under Article 132, a Provincial Legislature has the power to make laws for the Province with respect to any matter other than those reserved for the Centre in the Third Schedule. However, the Central Legislature, under certain circumstances specified in Article 131(2) can also legislate in the subjects not specified in that Schedule. The subjects of criminal law, the law of evidence and administra-- petition of justice are not included in this Schedule. Therefore, under normal circumstances, i.e. Except when legislation is made under Article 131 (2), these subjects are within the Provincial field. 1t may be noticed that though all the subjects mentioned in the Third Schedule are within the exclusive field of the Central Legislature, yet Article 132 does not make the remaining subjects as within the exclusive field of the Province. This is because the Centre can also legislate in the Provincial field, but only under the limitations of Article 131 (2). Keeping in view the above comparison of the two Constitutions in respect of the Central and Provincial fields of legislation, it becomes clear that the subject dealt in the two statutes under discussion is within the com-- petence of the Provincial Legislature under the 1962-Constitution. In other words, the Provincial Legislature is "the appropriate Legislature" for that subject. Article 225 (1) of the 1962-Constitution reads as follows:- "Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature." "Existing laws" have been defined in clause (7) of Article 225 as `all laws . . . . In force in Pakistan . . . . Immediately before the commencing day'. The Act of 1958 under this definition, is an existing law. Article 225 (1) provides that as an existing law, it shall continue in force; but the Provincial Legislature being the appropriate Legislature can alter, amend or repeal the same. "Central Law" is defined in Article 242 as a law made by or under the authority of the Central Legislature, and includes a law made by the President. The "Central Legislature" has; e also been defined in the same Article as the Central Legislature of Pakistan. The Act was not passed by the Central Legislature of Pakistan constituted under the 1962-Constitution. Therefore, it is not a Central Law. It is, as shown above, an existing law. Article 134 provides that "when a Provincial Law is inconsistent with a Central Law, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid". Obviously, this Article resolves the question of inconsistency between a "Provincial Law" and a "Central Law" as defined in the Constitution itself. In the) present case, however, one of the statutes (the Ordinance) is a "Provincial Law" but the other, i.e. The Act, is an existing law" and not a Central Law. Therefore, Article 134 is not applicable. Instead Article 225 (1) is directly attracted. The existing law, i.e., the Act, is liable to be altered/amended/repealed by the "appropriate Legislature". The Provincial Legislature being the appropriate Legislature qua the subject-matter is, subject to the Constitution, competent to alter/amend/repeal the Act. In this view of the matter, the Ordinance is not hit by Article 134 and, therefore, in this context is a valid legislation. I have particularized the context because no other arguments relating to the vires of the Ordinance were addressed.
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Same conclusion is reached by another reasoning. If all the existing laws which were enacted by the Central Legislature under the past constitutional arrangements are treated as Central Laws, the fresh division of subjects in 1962-Constitution would, in some cases, become ineffective. A Provincial Legislature would then be incompetent to legislate in its own field, simply because the Central Legislature enacted in that field in the past. This is not the intention contained in the Constitution. On the contrary the intention is, as expressed in Article 225, that the appropriate Legislature would be able to legislate in its own field as provided in the Constitution, notwithstanding any earlier Constitution where under the subject may have been legislated upon by another Legislature. The above view finds support from the judgment of Kaikaus, J. In the case of Saiyyid Abul A'la Maudoodi (PLD 1964 SC 673). A similar question came up for consideration before a Division Bench of this Court in the case of Manzoor Ahmad v. Commis--sioner, Lahore Division and others (PLD 1964 Lah. 194), with respect to the vires of the West Pakistan Criminal Law (Amendment) Act, 1963, vis-a-vis the Criminal Procedure Code. It was held that the Criminal Procedure Code was not a Central Law within the purview of Article 131 and that the Provincial Legislature was competent to amend, modify or repeal the same by virtue of Article 225 of the Constitution. 6. For the purpose of applying the general principles of interpretation of statutes to the controversy involved in this case, it is necessary to find out whether there is inconsistency between the Ordinance and the Act. The Ordinance is applicable to only the areas specified in the Schedule thereto. Item I of the Schedule also mentions Quetta and Kalat Divisions. The Act, on the other hand, extends to the whole of Pakistan. The) members of the Tribunal under the Ordinance need not be judicial officers while a special Judge under the Act is to be necessarily a judicial officer. The Act does not prohibit the application of Evidence Act while the Ordinance specifically excludes the application of that law except sections 1-1 to 126 thereof. Similarly, the beneficial provisions of the Criminal Procedure Code have been made applicable to the trials under the Act while the same have been excluded for trials under the Ordinance. Under the Ordinance, the trial is held by the Tribunal while the order is passed by the Deputy Commissioner. On the other hand, the Special Judge is the trial Court under the Act and he himself decides the case on the basis of evidence produced before and opinions formed by him. In the matter of sentence, section 12 of the Ordinance makes fairly extensive modifications in so far as the punishment provided in the Penal Code is concerned while under the Act, except for the mandatory imposition of fine in certain matters, no change is made in the matter of punishment. Any aggrieved party can file an appeal to the Commissioner against an order (even that of acquittal) passed by the Deputy Commissioner under the Ordinance and the Commissioner has wide powers to confirm, modify, alter or set aside the same. The orders of the Commissioner as well as of the Deputy Commissioner are revisable by the Government. On the other hand, the appeals and revisions against the decisions of a Special Judge under the Act lie to the highest Court having appellate/revisional jurisdic--petition in the territorial limits, i.e. The High Court. The Deputy Commissioner who is the pivotal controlling authority under the Ordinance can delegate all his powers under that law to an officer of the rank of an Extra Assistant Commissioner while the Special Judge under the Act cannot delegate his power. The most important difference is that previous sanction of the appropriate Government is required for the prosecution of a public servant for an offence, under the Act; while no such sanction is necessary under the Ordinance. There are many other distinguishing features between the two statutes. But for the purpose of the present case, the consideration of those mentioned above will suffice. An important inference drawn from the above comparison is that for an accused person the mode of trial under the Act is far more beneficial than that under the Ordinance. Another D irresistible
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conclusion reached is that both the statutes are inconsistent with each other; and both are in negative form and each excludes the application of the other in absolutely clear words. 7. Keeping in view the special features of the two statutes, as analysed above, it is now easy to examine the question of the application of each statute to the present case wish particular reference to the locality of Quetta which is one of the areas where the Ordinance applies. Some of the accepted general principles for the avoidance of collision between different statutes are: --- (i) If the provisions of a later Act are so inconsistent with those of an earlier Act that both cannot stand together, the earlier stands impliedly repealed by the later. This principle is based on the maxim leges posteriores priors contrarias abrogant. In other words, it means that the latest expression of the will of the Legislature must prevail. This, of course, is subject to the condition contained in the next principle. That is if the prior enactment is special and the subsequent enactment is general, the earlier special Legislation will not be, indirectly, repealed, altered or derogated from merely by force of the general words of the later statute, without any indication of a particular strong intention to do so. (ii) A general later law does not abrogate, by mere implication, an earlier particular or special law which deals with a special object or a special class of objects. This principle is based on the maxim generalia specialibus non derogani. But when a general Act is incorporated into a special one the provisions of the latter would prevail over any of the former with which they are inconsistent. If one stature enacts something in general terms, and afterwards another statute .Is passed on the same subject, which, although expressed in affirmative language, introduces special conditions and F restrictions, the subsequent statute will usually be considered as repealing by implication the former, for "affirmative statutes introductive of a new law do imply a negative". However, if a subsequent statute merely creates an exception from the operation of a previous statute, the previous statute is not necessarily repealed. (iii) When the later of two general enactments is couched in negative terms or is such affirmative terms which unequivoc--ally involve negative which proves fatal to the earlier enactment the earlier one is impliedly repealed. (iv) When the two statutes are expressed in negative terms, they may be affirmative inter se and may not be contradictory to each other; though the effect of both may be that they are negative as regards a third statute at which both of them may have made some inroads'. When seen in this light, an apparent conflict of two statutes is found as without any reality. Because they objects may be different and both may be parallel; and each may be restricted to its own particular subject or locality. (v) If the co-existence of the two inconsistent statutes would be destructive of the object for which the later was passed, the earlier would be deemed to have been repealed. (vi) In so far as the Penal Acts are concerned, if a later statute again describes an offence created by a former one, and provides a different punishment, creates a new jurisdiction and remedy and varies the procedure-modifying the manner of changing the forum of trial or appeal, the earlier statute is impliedly repealed by the later unless, of course, both of them can exist in parallel application to different localities, subjects or objects. (vii) When the words are clear and capable of proper operation, the revocation or alteration of a statute by construction is not permissible. The Legislature is normally not presumed to have intended to keep two contradictory enactments on the statute-book with the intention of repealing the one with the other, without expressing an intention to do so. Such an intention cannot be imputed to the Legislature without some strong reasons and unless it is inevitable. Before adopting the last-mentioned course, it is necessary for the Courts to exhaust all possible and reasonable constructions which offer an escape from repeal by implication.
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(viii) All other consideration being equal, if the inconsistency, in spite of applying all general principles of interpretation of statutes, cannot be resolved, a statute more beneficial in remedy or method of taking action will override the statute which is not so beneficial. The list of the principles on the subject is, by no means, exhaustive. Departures from the above principles have been made in individual cases on the basis of the language used in, and the intention found in respect of, particular statute. The approach in Pakistan on various questions of interpretation of statutes, as compared to India, has usually been pragmatic rather than technical. It was observed in the case of Badrul Haque (PLD 1963 SC 704), "the fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded according to the intent of them that made it". Therefore, it has to be laid down as a governing rule that whenever there are two possible interpretations, the one destroying the intention of the Legislature in passing the Act should not be adopted: But once the intention having been discovered and words having been given correct meaning and interpretation, the Courts will not refuse to give effect to the Legislation merely because it appears to be harsh, unreasonable or even vindictive; because these attributes of a statute fall within the field of policy of the Legislature and go beyond the ambit of the jurisdiction of the Courts. This, of course, is subject to the question of mala fides of the Legislature in enacting a law and the further question whether or not on that basis the Courts can go into validity of a particular law. That subject is not relevant to the discussion of the present case. Therefore, no comments are made thereon. The above General principles and the rules of interpretation of statutes in the subject of the inconsistency of statutes have been taken from the study of the rulings of the Federal Court/Supreme Court of Pakistan listed hereinafter; Craies on Statute Law Maxwell on Interpretation of Statutes; Odger's Construction of Deeds and Statutes and some decided cases from foreign (Indian) jurisdiction. The Federal Court and Supreme Court rulings are: Muhammad Haroon v. The Crown PLD 1951 FC 118, The Punjab Province v. L. Sita Ram, etc. PLD 1956 FC 157, The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200, Khan Bahadur Amir-ud-Din and others v. West Punjab Province PLD 1955 FC 220, Noorul Hassan and others v. The Federation of Pakistan PLD 1956 SC (Pak.) 331, Messrs S. A. Haroon v. The Collector of Customs PLD 1959 SC (Pak.) 177, Rashid Taxtile Mills Ltd. v. Labour Union PLD 1963 SC 293, Badrul Haque Khan v. The Election Tribunal and others PLD 1963 SC 704, Salyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and another PLD 1964 SC 673 and Muhammad Ismail v. State PLD 1969 SC 241. 8. In the light of the above principles, it is necessary to further analyse the two statutes, the interpretation of which is involved in this case. It is, undoubtedly, true that the Act is more beneficial in its application to the citizen than the Ordinance. But the rule of beneficial construction, as observed by the Federal Court in the case of Muhammad Haroon, will apply only if the language of the statute is so ambiguous that two constructions are almost equally possible. Where, however, the language and intention is plain and unambiguous, the rule of beneficial construction has no applicability. As will be presently seen, the intention of the Legislature and the language used in enacting the Ordinance is very clear. Therefore, I do not find any justification for applying the rule of beneficial con--struction to this case and thus repel the argument of the learned Assistant Advocate-General based on that rule. The all important question involved in the contentions raised by the learned Assistant Advocate- General is whether any and which of the two Statutes is Special qua the other and whether the rule of preferential application of special against the general law will apply to the present case. I do not agree with the premises on which the argument has been built. The Act of 1958, as its name suggests (Criminal Law Amendment Act) was a departure from the law contained in a general statute applicable to the trial of criminal cases which is contained in the Criminal Procedure Code
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(V of 1898) and the Evidence Act (I of 1872). It also took into its ambit the trial of offences under the Prevention of Corruption Act which itself, admittedly, is a special law. A further aspect to be noticed is that out of the whole of Pakistan Penal Code (XLV of 1860), only some offences were taken out to be made the subject of this Act. a Therefore, the Act is a special law qua the Code of Criminal Procedure the Evidence Act and the Pakistan Penal Code. On the other hand, contrary to the assumption of the learned Assistant Advocate-General, the Ordinance also, as its name (Criminal Law (Special Provisions) Ordinance) suggests, is all, special law. In its Preamble, it is clearly stated that to make special provision for trial of certain offences in certain area of West Pakistan and to meet the Special requirements of those areas, this law was enacted. The first part of the definition of "Scheduled Offence" given in section 2(1)(e) of the Ordinance gives an impression as if all the offences in the Pakistan Penal Code are scheduled offences. But in the later part…
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