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Petitioner: ABDUL KHAN and 2 others VS Respondent: THE STATE and another
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Amir-ul-Mulk Mengal Title: ABDUL KHAN and 2 others vs THE STATE and another Case No.: Criminal Revision No,54 of 1992 C.P. No,17 of 1994 Date of Judgment:1994-07-28 Reported As: PLD 1995 Quetta 12 Result: Order accordingly
JUDGMENT
JUDGMENT ' IFTIICHAR MUHAMMAD CHAUDHRY, J.--Having heard the learned counsel for parties as well as amicus curiae, following propositions emerge for determination:-- A. Whether Criminal Law (Amendment) Ordinance, 1990, which has amended sections 299 to 338, P.P.C. , in pursuance of the judgments announced by Hon'ble Federal Shariat Court and Shariat Appellate Bench PLD 1989 SC 633 stands extended to the Provincially Administered Tribal Areas of Balochistan, without adhering to Article 247(3) of the Constitution of Islamic Republic of Pakistan, 1973; and if not so, which provisions of the offences against human body? B,, Whether Criminal Law (Application of Provincially Administered Tribal Areas of Balochistan) Regulation of 1979, is a void law being inconsistent with the fundamental rights guaranteed under the Constitution, as has been held in Balochistan Bar Association v. Government of Balochistan (PLD 1991 Quetta 7) and also confirmed by Hon'ble Supreme Court in the case of Government of Balochistan v. Azizullah Memon and 16 others PLD 1993 SC 341; and if so under which provisions of the Law, proceedings of criminal cases relating to Provincially Administered Tribal Areas of Balochistan, shall be regulated? C. What is the implication of Notification No, US (JUDL.)4(5)/ 93-62696311 dated 12th December, 1993, in the Tribal Areas, issued by the Provincial Government, in pursuance whereof the provisions of Criminal Law (Special Provisions) Ordinance, 1968 (II of 1968) have been repealed, wherever it was applicable, with effect from 10th October, 1993? ' It is not essential to marshal the facts of case, because the ultimate determination of above formulations will be relevant to dispose of the proceedings on merits, thus if need be, at appropriate stage, precisely the facts of the case will also be discussed.
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' Now adverting to the first point, it is to be observed that the Hon'ble Federal Shariat Court during process of examining the offences against human body, specified in the Penal Code, under Article 203-D of the Constitution, declared sections 299 to 338 repugnant to the Injunctions of Islam. The Federation of Pakistan as well as Private Persons, preferred appeals under Article 203-F of the Constitution, before Shariat Appellate Bench, which were disposed of vide judgment reported in PLD 1989 SC 633, whereby, the President of Pakistan was required to take steps to amend the P.P.C., so as to bring it in conformity with the Injunctions of Islam under Article 203(3)(a) of the Constitution. It appears that despite lapse of stipulated period, the Competent Authority could not do necessary legislation and filed a Review Application whereupon the Hon'ble Supreme Court held that in absence of required legislation, the provisions of sections 299 to 338 shall cease to have effect from the day when the decision of the Shariat Appellate Bench, has taken effect and in state of vacuum vis-a-vis statute law, on the subject, the common Islamic law/Injunctions of Islam as contained in Holy Qur'an and Sunnah relating to offences of Qatl, Jurh (hurt) shall be deemed to be the law on the subject and Courts while hearing and deciding the cases of Qatl and Jurh (Hurt) in accordance with the common Islamic law/Injunctions of Islam as contained in Holy Qur'an and Sunnah, may also seek guidance from the provisions of the Ordinance, if it in the meantime having once been enforced had elapsed or otherwise had become unenforceable. As such, in view of the command of Constitution as well as the mandate of the Judgment of Hon'ble Shariat Appellate Bench, Criminal Law (Amendment) Ordinance, 1990 was promulgated on 5th September, 1990. The Ordinance could not be made Act of the Parliament; as such, before its lapse, by the efflux of time it was continuously followed by the successive Ordinances, up to date. As far as, non-Tribal Areas of the Province of Balochistan are concerned, there had been no difficulty to try the accused under the amended provisions of Penal Code, however in Tribal Areas, difficulty was experienced by the Court in charging the culprits under new Islamic provisions of the law, relating to offences, against human body, because Ordinance was not extended over there. Article 247(3) of the Constitution envisages: "247(1) .................................... (2) (3) No act of (Majlis-e-Shoora (Parliament)) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of (Majlis-e-Shoora (Parliament)) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Government of the Province in, which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction." ' Although in the instant proceedings, directly this question was not involved but during hearing of the matter being a question of law cropped up for consideration. As such, it was decided that besides hearing the learned counsel for petitioner Mr. Zafar as well as learned Advocate-General, on 2-8-1993, notice was also issued to the Attorney-General of Pakistan. In the meanwhile, senior Members of the Bar Messrs Ehsanul Haq, Basharatullah Aslam Chishti, S.A.M. Quadri and Tariq Mehmood, Advocates were also asked to assist the Court as amicus curiae. ' Despite issuance of notice, neither the Attorney-General for Pakistan, nor his representative appeared to address the Court. ' Except learned amicus curiea Mr. Aslam Chishti and Mr. SA.M. Quadri, other learned Advocates, including the Advocate-General and Additional Advocate-General, were of the view that without adhering to Article 247(3) of the Constitution, the Criminal Law (Amendment) Ordinance, 1990, automatically does not stand extended to the Provincially Administered Tribal Areas, as according
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to them, compliance of this Article is mandatory requirement. Additionally they stated that in absence of the application of amended sections 299 to 338, P.P.C., the Courts can seek assistance and guidance from the Judgment of Shariat Appellate Bench, passed in Review Application PLD 1990 SC 1172. ' Learned Advocate, Mr. Aslam Chishti, addressed that the President of Pakistan has promulgated an Ordinance to amend P.P.C. So as to bring it in conformity with the Injunctions of Islam in pursuance of Article 203(3)(a) of the Constitution which was mandatory in view of the directions of Hon'ble Shariat Appellate Bench. Therefore, in such type of legislation provisions of Article 247(3) of the Constitution, shall not be applicable. As such, the said Ordinance, automatically will be deemed to have been extended in the Provincially Administered Tribal Areas. ' Mr. SA.M. Quadri, learned counsel concurred with Mr. Aslam Chishti, Advocate and added that the steps taken by the President of Pakistan for implementing the directions of Hon'ble Shariat Appellate Bench, which have been made to make the laws in accordance with the Holy Qur'an and Sunnah, under the Constitution, cannot be frustrated on the excuse that without complying with Article 247(3) such legislation will have no operation in that Areas. ' At the first instance, it is to be determined that in the Constitution, Chapter 3-A was inserted by the Constitution (Amendment) Order, 1980/President Order No,1 of 1980. In pursuance whereof, the Federal Shariat Court was constituted with its jurisdiction in whole of the Pakistan, including Federally as well as Provincially Administered Tribal Areas. There was no corresponding provisions in this Chapter or any Article inserted therein like sub-Article (7) of Article 247, by means of which, the Supreme Court or High Court, shall not exercise any jurisdiction in relation to a Tribal Areas, unless Majlis-e-Shoora (Parliament) by law or otherwise provide: ' It may be re-called that in abrogated Constitution of 1962 as well as in Interim Constitution of 1972, identical provisions were incorporated, as such, to confer the jurisdiction on Superior Courts, Tribal Areas (Restoration of Jurisdiction) Act (II of 1964) was promulgated which now had been protected and saved under Article 268 of the Constitution. In this behalf, reference can be made to Malik Ghulam Jilani v. Assistant Commissioner, Kolhu and another PLD 1975 Karachi 728. It may not be out of context to note that jurisdiction of the Supreme Court and High Court by Act II of 1964 was extended to the Tribal Areas which were situated in territory of the then Quetta Division. All the Provincial Tribal Areas under. Article 246(ii) namely Zhob District, Loralai District, excluding Dukki Tehsil, Dalbandin Tehsil of Chagai District and Marri and Bugti Tribal Territories of Sibi District were included in the then Quetta Division, as such, notwithstanding the fact that from administrative point of view the Provincial Government now had created Zhob Division at Loralai or had formed some of the areas mentioned therein as independent Districts or some of the earlier Districts had been bifurcated in more than one Uhits but for the Constitutional purposes all the above areas shall be deemed to be in Quetta Division unless Constitution on its amendment has not provided otherwise. So it' is concluded that any declaration under Article 203-D of the Constitution, made by the Federal Shariat Court and under Article 203-F by the Shariat Appellate Bench in respect of the laws, which already had its application in the Provincially Administered Tribal Areas to make them in conformity with the Injunctions of Holy Qur'an and Sunnah, shall have its full applications as well as Constitutional effect. ' Now to examine the contention of Mr. Aslam Chishti, Advocate, it would be appropriate to reproduce Article 89(1) and clause (a) of sub-Article (3) of Article 203-D of the Constitution, which read as under:--- "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.
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203-D(3).--(a) The President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative list, or the Governor in the case of a law with respect to a matter not enumerated in either of those lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam;" ' Since the offences against human body in un amended P.P.C. Have been declared contrary to Injunctions of Islam, therefore, the Articles concerning the powers of temporary legislation has been reproduced above, because the offences covered by P.P.C. Have been enlisted in Federal Legislative List and the President of Pakistan to implement the declaration, made by the Shariat Appellate Bench had amended sections 299 to 338 through Ordinances from time to time. On comparison of the above two provisions of Constitution, one can visualize that in latter Article, no discretion is left with the President, except to take steps to amend the law so as bring it into conformity with the Injunctions of Islam, after pronouncement by the Federal Shariat Court or the Shariat Appellate Bench. Whereas in the former Article promulgation of Ordinances by the President depends upon the circumstances coupled with the fact that immediate action is required to be taken, in the circumstances when National Assembly is not in session. Another prominent difference between both the Articles is that in the cases covered by latter Article it is the President and no one else, who is bound to ensure the implementation of the declaration made by the Federal Shariat Court etc., notwithstanding the fact, whether the Parliament had consented to make the Ordinance as an Act but in absence thereof, till the time, the judgment is holding field it would be his duty to go on taking steps in that behalf, whereas in the former, the President is not bound to issue Successive Ordinances. ' The above distinguishing features if are compared with Article 247(3) of the Constitution, it is abundantly clear that after issuance of an Ordinance to bring the already applicable laws in tribal area in conformity with the Injunctions of Islam, the President is not required to issue fresh directions in respect of the legislation which he himself has made or which subsequently was passed by the Parliament in pursuance to the directions of Federal Shariat Court or Shariat Appellate Bench. Thus no conclusion, except that without formally extending Criminal Law (Amendment) Ordinance, 1990, which ordinarily is known as Qisas and Diyat Ordinance, under Article 247(3) of the Constitution, it shall stand extended in the Provincially Administered Tribal Areas and in the eve of lapse of Constitutional measures to implement the directions of Hon'ble Shariat Appellate Bench, the Courts functioning in Tribal Areas, will seek guidance from the provisions of the Ordinance, which has already lapsed, as it has been declared by Hon'ble Shariat Appellate Bench, in PLD 1990 SC 1172. Relevant para. Therefrom for future guidance is reproduced herein below:--- "It is also held and ordered that even if the required law is not enacted and/or enforced by 12th of Rabi-ul-Awwal 1411 A.H., the said provisions would nevertheless cease to have effect on 12th Rabi- ulAwwal. In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the Injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure Code shall then be applied mutatis mutandis, only as aforestated. The same will be the position if an Ordinance for the law of Qisas and Diyat is enforced on or before 12th Rabi- ul-Awwal and same lapses or otherwise becomes un unforceable due to any reason, creating a similar vacuum in the Statute law on the subject. In the afore-visualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic Law/Injunctions of Islam as contained in Qur'an an Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it, in the meanwhile, having once been enforced, had lapsed or otherwise had become unenforceable. All these matters stand disposed of."
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' Turning to the next point it would be useful to observe that in the Provincially Administered Tribal Areas, the Frontier Regulation was applicable regulating both Criminal as well Civil disputes. In 1976 to decide the Civil disputes amongst the private parties, Balochistan Civil Disputes (Shariat Application) Regulation, 1976 was promulgated and the Courts of Qasis were created being original Court of jurisdiction with Majlis-e-Shoora, .Having original as well as appellate jurisdiction throughout in those areas. Thereafter this Court in the case of Moulvi Mahammad Ishaque Khosti v. Government of Balochistan PLD 1979 Quetta 217 declared the `FCR' repugnant to the Injunctions of Islam. The necessary consequence thereof were that for the trial of criminal cases no forum was available in Tribal Areas, thus to fill up the vacuum the President of Pakistan did legislation by reference and extended the Criminal Law (Special Provisions) Ordinance II of 1968 to the Provincially Administered Tribal Areas through a Regulation called the Criminal Law (Special Provisions) (Application to the Provincially Administered Tribal Areas of Balochistan) Regulation, 1979 sections 2, 3 and 4 of the Regulation are reproduced herein below:-- "2. Application of West Pakistan Ordinance No, II of 1968 to the Tribal ' Areas.--The provisions of the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance No, II of 1968) shall apply to the whole of the Provincially Administered Tribal Areas of Balochistan subject to the modification that references therein to `Deputy Commissioner' and 'Assistant Commissioner' shall be construed as references to 'Political Agent' respectively. 3. Repeal.--The Frontier Crimes Regulation, 1901 (Regulation II of 1901), is hereby repealed. 4. Transfer of pending cases.--All criminal cases which were pending under the Frontier Crimes Regulation, 1901 (Regulation III of 1901), immediately before the commencement of this Regulation in the Provincially Administered Tribal Areas of Balochistan shall on such commencement, stand transferred to a tribunal constituted for the purpose under the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance No, II of 1968)." ' It may be seen that according to the Preamble of the Regulation, it was found expedient by the Competent Authority to apply the Ordinance II of 1968, as such, the expression of 'Deputy Commissioner' and 'Assistant Commissioner' through section 2 were directed to be construed as reference to `Political Agent' and 'Assistant Political Agent'. The rest of the provisions of Ordinance II of 1968, were adopted in extenso. It may be noted that Ordinance II of 1968 was found to be inconsistent with Articles 25, 2-A and 175(3) of the Constitution, as such, was declared, a void law, by this Court in the case of Balochistan Bar Association and others v. Government of Balochistan and others (PLD 1991 Quetta 7). The Government of Balochistan feeling dissatisfied from the above decision preferred an appeal before Hon'ble Supreme Court. However the same was dismissed vide judgment reported in PLD 1993 SC 341, upholding the judgment of this Court. Relevant para being advantageous, is reproduced herein below:-- "17. In these circumstances, as Ordinance II of 1968 is declared to be void being in conflict with Articles 9, 25, 175 and 203 of the Constitution, the question arises what further relief should be granted as in the absence of Ordinance II of 1968, there should be some valid law to hold the field. It has been admitted that District Judges and Civil Judges are functioning -in the very District. In cases of violation of fundamental rights the superior Courts are empowered to issue directions to the Federal Government or the Provincial Government to bring the law in conformity with fundamental rights and/or enforce law and issue notification in that regard. The State as defined in Article 7 is bound to discharge its Constitutional obligation. In case of failure even the legislature and executive can be directed to initiate legislative measures to bring law in conformity with the fundamental rights. In these circumstances, while maintaining the impugned judgments we dismiss the appeals, declare Ordinance II of 1968 as void being in conflict with Articles 9, 25, 175 and 203 of the Constitution and direct the appellant---
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(i) to issue necessary notification in terms of subsection (2) of section 1 of Ordinance XII of 1972 for enforcing the aforesaid Ordinance by creating posts of and separately appointing Judicial Magistrates and Executive Magistrates and to place Judicial Magistrates under the administrative control of the High Court within a period of three months; (ii) to take necessary steps as required by the Constitution to amend and implement laws and rules relating to Court, Judiciary and its officers and lower staff to bring them in conformity with Articles 9, 25, 175 and 203 of the Constitution, within a period of six months." ' The above development has given rise to the following supplementary question:-- (i) What would be the effect of law having been declared void being inconsistent with the fundamental rights? (ii) What would be the effect of a void law i,e, Ordinance II of 1968, on the Regulation of 1979? ' Mr. Zafar, learned counsel for petitioner contended that the provisions of Regulation of 1979, were not challenged before this Court independently for getting it declared as inconsistent with the fundamental right, therefore, in the Tribal Areas, the Regulation shall continue to have its effect keeping in its fold all provisions of Ordinance II of 1968, without considering its effect of being a void law and for that purpose the judgment passed by this Court as well as Hon'ble Supreme Court will not be attracted, and the cases shall continue to be tried under `Jirga System' considering the requirement of the Members of Tribal Areas. ' Messrs Ehsanul Haq, Tariq Mehmood and Aslam Chishti, supported his contention. However Mr. Aslam Chishti, Advocate advanced two-fold argument:- (i) The Regulation of 1979 should have been challenged independently. (ii) Alternatively and without prejudice to the first limb of his contention, he stated that if the judgment of this Court as well as Hon'ble Supreme Court are read together to test the Regulation at the touchstone of Article 8(1) of the Constitution, even then the Regulation shall have no effect of repeal, and it shall remain in the books as a Floating Statute." ' The then Advocate-General, Raja M. Afsar, as well as Chaudhry Ejaz Yousaf, Additional Advocate- General, also emphasised that the voidness of the provisions of Ordinance II of 1968, shall have no effect on the Regulation and the cases shall continue to be decided by the `Jirga' in the Provincially Administered Tribal Areas. ' Mr. Basharatullah, learned amicus curiae, opposed the submissions. According to him, since Ordinance II of 1968 has been found inconsistent with the Fundamental Rights, which have been restored throughout the country as back as in 1985, therefore, to enjoy such rights, no classification is permissible in respect of the citizens residing in the Tribal Areas. He stressed that in view of the judgment of this Court and Hon'ble Supreme Court, the Regulation of 1979 is nothing than an ineffective statute till the time, the fundamental rights are available. The learned counsel argued that Criminal Procedure Code is applicable in Tribal areas, which has created the Courts of Magistrate, Sessions Judges, etc. As such no difficulty will be experienced by the administration as well as judiciary in trying the culprits under the ordinary regular law, where they would be having better forums and facilities to defend themselves. As far as declaring Criminal Law (Special Provisions) Ordinance II of 1968, a void law being inconsistent with the fundamental rights is concerned, no detailed discussion is required in view of the earlier judgment of this Court which has been confirmed by Hon'ble Supreme Court. Now the limited question would be in respect of effect of a law which has been declared void being inconsistent with the fundamental rights. It may be observed that there are two categories of void laws, one which has been declared inconsistent with fundamental rights guaranteed by the Constitution and the second, being a law void for legislative incompetence. Since we are concerned with former category, as such we recapitulate the expression 'void law' with reference to 'inconsistency with Fundamental Rights' and its interpretation. In this behalf in AIR 1974 SC 1300, it was held that where Fundamental Rights have
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been conferred only on some persons, natural or juristic, a pre-Constitution or post-Constitution law contravening those rights is void qua those persons but is valid qua other persons on whom those rights have not been conferred. It was further laid down in this judgment that a law which is repugnant to the Fundamental Rights enshrined in the Constitution is neither void ab initio, extinct, still-born or non nor it obliterated from the Statute book. It rather exists totality without any portion of it being eclipsed by any outside object and is operative as such for per-Constitutional matters and with regard to persons other than those enjoying fundamental rights. In the case of Abul A'ala Maudoodi PLC 1964 SC 673 the Hon'ble Supreme Court held that void law being inconsistent with the Fundamental Rights 'ineffective' in the premises and not obliterated or repealed to the extent of inconsistency. It was the opinion of the Lordships that inconsistent law remains in a state of hibernation but becoming operative again if fundamental rights disappear and Hon'ble Division Bench of Lahore High Court in the case of Province of Punjab through its Home Secretary and 3 others v. Gulzar Hussain,…
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