1993 S C M R 1589

[Supreme Court of Pakistan]

Present: Ajmal Mian, Saleem Akhtar and Wali Muhammad Khan, JJ

MUHAMMAD ARIF and another---Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No. 224 of 1992, decided on 15th May, 1993.

(On appeal from the judgment dated 15-6-1992 of the Lahore High Court, Rawalpindi Bench,
Rawalpindi, passed in Criminal Appeals Nos.39 and 56 of 1989).

(a) Special Courts for Speedy Trials Act (XV of 1987)---

----S. 1 (2)---Special Courts for Speedy Trials (Amendment) Ordinance (XIX of 1988),
Preamble---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to
consider whether the fact that Special Court had taken cognizance of the matter before 12-2-1989
(up to which date Act XV of 1987 was extended by Ordinance XIX of 1988) could be tried and
completed keeping in view the ratio decided of the judgment of Supreme Court in the case of
Government of Punjab v. Zia Ullah Khan and others 1992 SCMR 602.

Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and others 1992
SCMR 602 ref.

(b) Constitution of Pakistan (1973)---

-----Art. 264---Interpretation of Art. 264.---[Interpretation of Constitution].

Article 264 of the Constitution of Pakistan (1973) indicates that it lays down that the repeal shall
not except as otherwise provided in the Constitution inter alia 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, enforced, and any such penalty, forfeiture or punishment may be imposed
as if the law had not been repealed. Article 264 of the Constitution is couched in more or less
identical words as section 6 of the General Clauses Act, 1897.

(c) Constitution of Pakistan (1973)---

----Art. 264---General Clauses Act (X of 1897), S.6---West Pakistan General Clauses Act (VI of
1956), S. 4---Repeal of laws---Effect---Temporary enactment and permanent
enactment---Distinction---Repeal of such laws--Effect.

There is a marked distinction between a temporary enactment and a permanent enactment. The
rules of interpretation of temporary statutes are different from those which are permanent.

Where a law is repealed, it will not, inter alia, affect any investigation, legal proceedings or
remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment,
and any such investigation, legal proceedings or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or punishment may be imposed as if the law had not
been repealed. This is so, inter alia, because of section 6 of the General Clauses Act, 1897
(which corresponds to section 4 of the West Pakistan General Clauses Act, 1956), in the absence
of any contrary intention manifested in the relevant statute. Since the General Clauses Act is not
applicable to the Constitution, the above provision has been incorporated therein in the form of
Article 264. However, the above principle cannot be pressed into service, while dealing with
temporary statutes. The general rule in regard to a temporary statute is that in the absence of
special provision to the contrary, proceedings which were taken under it would ipso facto
terminate.

Said Ali Shah v. The State PLD 1963 Kar. 10; Akhtar v. The State PLD 1961 Lah, 1049; Saeed
Ahmad v. The State PLD 1964 SC 266; Sardar Nawab Haji Muhammad Khan v. Additional
Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and
others PLD 1964 Lah. 401; Sona and another v. The State and others PLD 1970 SC 264;
Mubarik Shah v. The State 1990 PCr.LJ 1796; Bindra's Interpretation of Statutes, Sixth Edn.,
1975, pp. 797-798 ; Construction of Statutes by Earl T. Crawford, 1940 Edn., pp. 658, 640;
Interpretation of Statutes by Maxwell, 12th Edn., p. 16 and Craies on Statute Law, Fifth Edn., pp.
377-378 ref.

Muhammad Naccm alias Naeema v. The State 1992 SCMR 1617 distinguished.

(d) Special Courts for Speedy Trials Act (IV of 1987)---

----S. 1 (2)---Special Courts for Speedy Trials (Amendment) Ordinance (XIX of 1988),
Preamble---Effect of promulgation of Special Courts for Speedy Trials (Amendment) Ordinance,
1988 was that the life of Special Courts for Speedy Trials Act, 1987 was extended for a period of
four months i.e. up 12-2-1989---Where Special Court recorded conviction on 11-4-1987 when
Act and Ordinance already stood lapsed, the judgment of the Special Cc was coram non judice.

Wicks v. Director of Public Prosecutions 1947 1 All E L R -distinguished.

Nasir Saeed Sheikh, Advocate Supreme Court and Ejaz Muhamm Khan, Advocate-on-Record
for Appellants.

S.M. Naeem, Advocate Supreme Court for the State.

Nemo for Respondent No.2.

Dates of hearing: 19th and 21st April, 1993.

JUDGMENT

AJMAL MIAN, J---This is an appeal with the leave of this Cou against the judgment dated
15-6-1992 passed by a Division Bench of the Lahore High Court in Criminal Appeals Nos. 39
and 56 of 1989, filed t respondent No.2 and the State against the judgment dated 11-4-1989
passed 1: the Punjab Special Court for Speedy Trials No.VII, Rawalpindi, hereinafter referred to
as the Special Court, convicting respondent No.2 (Tahir Mahmoo son of Ghulam Rasool) under
section 302. P.P.C., for the murder of one Khalid Bashir and sentencing him to death and a fine
of Rs.50,000; in default to suffer R.I. for two years and under section 460, P.P.C. imprisonment
for life and a fine of Rs.50,0(0; in default thereof to suffer further R.I. for two year; and
acquitting the present two appellants (Muhammad Arif son of Fan Karim and Muhammad
Arshad son of Muhammad Bashir), allowin; respondent No.2's appeal against his above
convictions and sentences on the above two counts and, at the same time, allowing State appeal
against the acquittal of the present appellants on the ground that the trial of the case b, the
Special Court was coram non judice with the direction that the above three accused were to be
tried afresh in accordance with law pursuant to F.I.R No. 137 dated 26-5-1988 by the learned
Sessions Judge, Rawalpindi.

2. Leave to appeal was granted to consider, whether the factum that the Special Court had taken
cognizance of the above matter before 12-2-1989 (up to which date Act XV of 1987 was
extended by Ordinance XIX of 1988) could be tried and completed keeping in view the ratio
decided of the judgment o this Court in the case of Government of Punjab through Secretary,
Home Department v. Zia Ullah Khan and others, (1992 SCMR 602).

3. In order to appreciate the controversy in issue, it may be pertinent to state that the Special
Courts for Speedy Trials Ordinance (II of 1987) was promulgated by the President of Pakistan on
26-7-1987. The above Ordinance was repealed and replaced by the Special Courts for Speedy
Trials Act, 1987 (Act XV of 1987), hereinafter referred to as the Act, which was extended to the
whole of Pakistan and was to remain in force for a period of one year from the date on which it
was assented to by the President by virtue of subsection (2) of section 1 of the Act with the
proviso that the Parliament may by resolution of each House extend the said period for a similar
term or terms. The President gave his assent to the Act on 8-11-1987 but the same was published
in the Gazette of Pakistan, Extraordinary dated 16-11-1987. It may further be pointed out that
subsection (3) of section 1 provided that the Act shall come into force on such date as the
Provincial Government may by notification in the official Gazette appoint.

4. It appears that the President promulgated amending Ordinance XIX of 1988 (Special Courts
for Speedy Trials (Amendment) Ordinance) on 13-10-1988, whereby inter alia above subsection
(2) of section 1 of the Act was amended by substituting the words "two years" for the words "one
year". The above amended subsection (2) of section 1 of the Act reads as follows:--

"It extends to the whole of Pakistan and shall remain in force for a period of two years
from the date on which it is assented to by the President."

5. The above Ordinance, XIX of 1988 was not placed before the National Assembly in terms of
clause (2) of Article 89 of the Constitution and, therefore, it stood expired on the expiry of four
months from its promulgation i.e. on 12-2-1989. However, the President issued identical
Ordinances upon the expiry of above Ordinance XIX of 1988, namely, Ordinance No. XXXVIII
of 1991 gazetted on 4-12-1991, Ordinance No.II of 1992 gazetted on 2-4-1992. After that, the,
Parliament enacted Act IX of 1992, which was gazetted on 22-7-1992. The above subsequent
Ordinances and the Act of 1992 are not relevant for the controversy in issue as the present case
was assigned to the Special Court on 4-2-1989. It took cognizance on 8-2-1989 and decided the
same on 11-4-1989. Prom the above facts it is evident that though the Special Court took
cognizance on a date when Ordinance XIX of 1988 had not expired, but it decided the case on
11-4-1989 when the above Ordinance already stood expired on 12-2-1989.

6. It may be pertinent to refer at this juncture the judgment of this Court in the case of
Government of Punjab through Secretary, Home Department v. Zia U11ah Khan and 2 others
(1992 SCMR 602) decided by a Bench comprising five Judges including one of us (Ajmal Mian,
J.). The above case has arisen out of the judgment rendered by a Division Bench of the Lahore
High Court in 66 connected writ petitions, wherein the learned Judges of the Division Bench
arrived at the following conclusions:--

"(i) That the impugned legislations though discriminatory being disadvantageous /prejudicial
to the accused subjected to 'trial before the Special Courts for Speedy Trials are not hit by Article
25 of the Constitution as the impugned law has provided for reasonable classification permissible
in law.

(ii) That the provisions of section 8 of t*he impugned Act/Ordinance in so far as they permit the
trial of an accused person in absentia are violative of Article 10 of the Constitution.

(iii) That the amending Ordinance XIX of 1988 stood repealed on the expiration of four months
from its legislation and its provisions particularly the provisions seeking to extend the life of the
main Act from one year to two years have not survived the repeal.

(iv) Consequently, Act XV of 1987 was operative only up to the date of the repeal of the
amending Ordinance."

After having held as above the learned Judges of the Division Bench granted the following
reliefs:--

"As a consequence of the findings hereinbefore recorded, we hold and declare that all
Orders/Notifications issued by the Government under section 5 of Act XV of 1987 after the date
of its expiry i.e. with effect from the day of repeal of the amending Ordinance XIX of 1988 and
all proceedings pending or taken, trial of cases held, orders/judgments passed by any Special
Courts established under the said Act, were taken, held and passed without lawful authority and
of no legal effect.

It is further declared that any proceedings pending in any Special Court for Speedy Trials in
pursuance of any Order/Notification issued' by the Government under section 5 of the Ordinance
II of 1987 and Act XV of 1987 during the period that they were in effective operation cannot
proceed as no Special Court for Speedy Trials exist after the expiry of Act XV of 1987 as
aforementioned."

7. The Government of Punjab filed appeal with the leave of this Court. The only argument
advanced before this Court on behalf of the Punjab Government was that the substituted period
of two years by Ordinance XIX of 1988 was not affected upon the lapse of above Ordinance on
the expiry of four months period by virtue of clause (b) of Article 264 of the Constitution. This
Court,, after referring the case-law and some well known treatises on Interpretation of Statutes,
dismissed the above appeal of the Punjab Government and maintained the finding of the Division
Bench that amending Ordinance XIX of 1988 stood repealed on the expiration of four months
from its legislation and its provisions particularly the provision seeking to extend the life of the
amending Act from one year to two years- had not survived the repeal, for the following
reasons:--

"14. We may state that, if we were to accept Mr. Irfan Qadir's above contention, the same would
be violative of Article 89 of the Constitution, which envisages that, if an Ordinance of the type in
issue is not approved by both the Houses before the expiry of four months from its promulgation,
the same shall stand repealed. The above clear Constitutional mandate cannot be defeated by
pressing into service any rule of construction of statutes or a provision of a statute which cannot
be pressed in aid while construing a Constitutional provision. We may further observe that our
Constitution is a written Constitution based on Federal System. It envisages trichotomy of
powers between the three limbs of the State i.e. the Legislature, the Executive and the Judiciary.
In the above political set-up the power to legislate is vested in the Parliament. However, Article
89 of the Constitution empowers the President, to promulgate an Ordinance when the National
Assembly is not is session or stands dissolved and he (the President) upon being satisfied that the
circumstances exist which render it necessary to take immediate action. Such an Ordinance is to
last, at the most, for four months, if not approved or if not rejected by the Parliament earlier or
withdrawn by the President in terms of sub clause (a) of clause (2) of the above Article 89 of the
Constitution.

The rationale behind providing an outer limit of four months for an Ordinance seems to be that
even if the National Assembly or any Provincial Assembly stands dissolved at the time of
promulgation of an Ordinance, the election of it is to take place within 90 days from the date of
its dissolution in terms of clause (51 of Article 48 of the Constitution. Since Ordinance XIX of
1988 was not placed for approval before the Parliament within the above time limit months in
terms of sub-clause (a) of clause (2) of the Article 89, it stands repealed with the amendments
contained therein upon the expiry of four months from the. date of its promulgation."

8. In the above authority, this Court maintained the judgment of the High Court, in which inter
alia it was held that all orders, notifications issued by the Government under section 5 of Act XV
of 1987 after the date of its expiry i.e. with effect from the date of repeal of the amending
Ordinance XIX of 1988 and all proceedings pending or taken, trial of cases held,
orders/judgments passed by any Special Courts established under the said Act were taken, held
and passed to be without lawful authority and of no legal effect and that no Special Court for
Speedy Trials existed after the expiry of Act XV of 1987. However, there was no discussion on
the question, whether the pending matters after 12-2-1989 i.e. upon the expiry of Ordinance XIX
of 1988 could be proceeded with by the Special Courts.

9. In support of the above appeal, Mr. Nasir Saeed Sheikh, learned ASC appearing for the
appellants, has vehemently urged that by virtue of Article 264 of the Constitution, the above
repeal of Act XV of 1987 and expiry of Ordinance XIX of 1988 did not affect the pending
proceedings and, therefore, the Special Court was competent -to conclude the trial of the case of
which it had taken cognizance before the expiry of Ordinance XIX of 1988.

10. At this stage, it may be advantageous to reproduce above Article 264 of the Constitution,
which reads as follows:--

"264. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the
Constitution, the repeal shall not, except as otherwise provided in the Constitution,---

(a) revive anything not in force or existing at the time at which the repeal
takes effect;

(b) affect the previous operation of the law or anything duly done or
suffered under the law;

(c) affect 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
enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not
been repealed:"

A perusal of the above Article 264 indicates that it lays down that the repeal shall not except as
otherwise provided in the Constitution inter alia 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 proceeding or remedy may be instituted, continued
or enforced, and any such penalty, forfeiture or punishment may be imposed as if the law had not
been repealed. The above Article of the Constitution is couched in more or less identical words
as section 6 of the General Clauses Act, 1897.

11. In furtherance of his above submission, Mr. Nasir Saeed Sheikh has referred to the following
cases:--

(i) Saied Ali Shah v. The State (PLD 1963 Karachi 10);

in which the question before a learned Single Judge of the erstwhile High Court of West Pakistan
was, whether the proceedings which had commenced against the petitioner under the provisions
of Sindh Control of Goondas Act (XXVIII of 1952), could continue after its repeal and
enforcement of the West Pakistan Goondas Ordinance (XXXV of 1959). It was held that since
the proceedings had commenced under the Act of 1952, the same should have been continued
and completed under the same Act and not under the above Ordinance of 1959 in view of section
4 (1) (e) of the West Pakistan General Clauses Act, 1956, which corresponds to section 6 of the
above General Clauses Act, 1897. Reliance was placed on the judgment of a learned Single
Judge of the erstwhile High Court of West Pakistan in the case of Akhtar v. The State (PLD 1961
Lahore 1049), in which it was held that the proceedings which had commenced under the Punjab
Control of Goondas Act, 1951, were to continue and to be concluded under it and not under the
West Pakistan Control of Goondas Ordinance, 1959.

(ii) Saeed Ahmad v. The State (PLD 1964 SC 266);

In the above case inter alia the question before this Court was, whether section 165-B, P.P.C.
which came into force on 6-6-1962 could be pressed into service. Kaikaus, J. inter alia observed
as under:--

"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 an 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."

(iii) Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner,
Frontier Crimes Regulation Quetta Division, Quetta and others (PLD 1964 Lahore 401);

In the above case, a Full Bench of the erstwhile High Court of West Pakistan comprising five
Judges held that the proceedings which had commenced under the Frontier Crimes Regulations
(III of 1901) were not affected by reason of enactment of the West Pakistan Criminal Law
(Amendment) Act, 1963, in view of section 34 (2) of the above Act, which provided that "For
the removal of doubts, it is hereby declared that the provisions of section 4 of the West Pakistan
General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regulation, 1901". It
may again be pointed out that section 4 of the West Pakistan General Clauses Act, 1956,
corresponds with section 6 of the General Clauses Act, 1897, and above Article 264 of the
Constitution.

(iv) Sona and another v. The State and others (PLD 1970 SC 264);

in which the question before this Court was, whether repeal of Frontier Crimes Regulations (III
of 1901) by the West Pakistan Criminal Law (Amendment) Act, 1963, would affect the pending
cases. Wahiduddin Ahmad, J. quoted with approval the above judgment of the Full Bench of the
erstwhile High Court of West Pakistan and concluded as under:--

"After considering the argument advanced by the learned counsel for the parties, it is quite clear
that the effect of sub-clause (e) of section 4 (1) of the West Pakistan General Clauses Act is that
any legal proceedings in respect of any liability shall be continued and punishment shall be
imposed as if the Repealing Act has not been passed. In these circumstances, the appellants' case
which was still pending on the date when the repeal was made was to be continued and
completed as if the F.C.R. had not been repealed. The provision of section 12(2) of the Frontier
Crimes Regulation, 1901 was very much alive for the purposes of decision of the case pending
against the appellants. The Commissioner of Dera Ismail Khan, therefore, was quite competent
to confirm the sentences- awarded against the appellants by the Deputy Commissioner."

(v) Mubarik Shah v. The State (1990 PCr.LJ 1796);

In the above case, the question before a Full Bench of the Peshawar High Court was, whether the
Special Courts could continue the proceedings after the lapse of the Suppression of Terrorist
Activities (Special Courts) (Amendment) Ordinance, 1988 (XVII of 1988). Two of the learned
Judges of the Full Bench took the view that the cumulative effect of the lapse/repeal of
Ordinances XVI and XVII by, under or by virtue of Article 89 of .the Constitution read with
Article 264 in general and its clauses (e) in particular, is that the relevant provision thereof shall
continue to govern the ensuing proceedings against the offender if the offence is committed
under repealed enactment then in force and would include the forum provided for the trial of the
offence he is charged. However, the third learned Judge took a contrary view and held that when
Ordinance XVII of 1988 making section 13-B as scheduled offence lapsed, no proceedings were
pending in the Special Court at that time and, therefore, the question of the Special Court
continuing with the trial would not arise.

12. At this stage it may be appropriate to point out that there is a marked distinction between a
temporary enactment and a permanent enactment. In the case in hand, the Act was a statute of a
temporary nature as subsection (2) of section 1 of it provided that it was to operate for a period
of one year from the date on which it was assented to by the President. The rules of interpretation
of such statutes are different from those which are permanent. In this regard, reference may be
made to the following passages from Bindra's Interpretation of Statutes, Sixth Edition, 1975,
pages 797-798, The Construction of Statutes by Earl T.Crawford, 1940 Edition, pages 658 and
640, The Interpretation of Statutes by Maxwell, 12th Edition, page 16, and the Craies on Statute
Law, Fifth Edition, pages 377 and 378.

"Passage from Bindra's Interpretation of Statutes:

15. Temporary Statutes.--The effect of the expiry of a temporary statute is really a matter of the
construction of the statute itself. A temporary statute could provide for its effectiveness beyond
its expiry. The general rule in regard to a temporary statute is that, in the absence of special
provision to the contrary, proceedings which are being taken against a person under it will ipso
facto terminate as soon as the statute expires. When a temporary Act is repealed, the proceedings
instituted under such an Act terminate at the time the temporary Act would have otherwise
expired. There is a difference between temporary statutes and statutes which are repealed; the
latter (except so far as they relate to transaction already completed under them) become as if they
had never existed; but with respect to the former, the extent of the restrictions imposed and the
duration of the provisions are matters of construction. In Spencer v. Hooton, Roche, J., (1920) 4
Munitions Appeals, 67, (1920) 37 TLR 280) held "he had no jurisdiction to hear appeals from
Munitions Tribunals in proceedings taken under the Wages (Temporary Regulations) Acts by
reason of the Act giving him jurisdiction having expired before the appeals came on for hearing."
The case of R. v. Ellis (1921) 125 LT 397) was also one relating to the jurisdiction of Munitions
Tribunal set up by the Industrial Courts Act, 1919, by which the provisions of an earlier Act,
namely the Wages (Temporary Regulations) Act, 1918, were extended so as to remain in
operation until 30th September, 1920. The offence in question was created by the Industrial
Courts Act, but the procedure in respect thereof was regulated in relevant respects by the earlier
Act which, were it not for the Industrial Courts Act, 1919, would have ceased to operate with
effect from 21st November, 1919. The prosecution was commenced before 30th September,
1920, but the order in the prosecution was made after that date, and it had been held by the
Munitions Tribunal that on account of the Act of 1918 having expired they had no authority to
issue a distress warrant for satisfaction of an award made by the Tribunal. Thereupon the party
affected took out a rule nisi for a mandmus to the Chairman, commanding him to issue such a
distress warrant. The rule was discharged."

"Passages from the Construction of Statutes by Crawford:

Page 658. Many laws are of a temporary nature, and obviously such laws expire of their own
force when the time arrives for their expiration----"

Page 640. In the first place, an outright repeal will destroy the effectiveness of the repealed Act
in future, and operate to destroy inchoate rights dependent on it, as a general rule. In many cases,
however, where statutes are repealed, they continue to be the law of the period during which they
were in force with reference to numerous matters."

Passage from The Interpretation of Statutes by Maxwell:

"The common law rule is that if an Act expired or was repealed it was regarded, in the absence
of provision to the contrary, as having never existed, except as the matters and transactions past
and closed. Where, therefore, a penal law was broken, the offender could not be punished under
it if it expired before he was convicted, although the prosecution began while the Act was still in
force."

Passage from the Craies on Statute Law:

"(ii) Expiration. As a general rule, and unless it contains some special provision to the contrary,
after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any
further effect. Therefore, offences committed against temporary Acts must be prosecuted and
punished before the Act expires, and as soon as the Act expires any proceedings which are being
taken against a person will ipso facto terminate. In Spencer v. Hooton (1920) 37 T.L.R. 280,
282), Roche, J., held he had no jurisdiction to hear appeals from Munitions Tribunals in
proceedings taken under the Wages (Temporary Regulation) Acts, 1918, 1919 by reason of the
Act giving him jurisdiction having expired (on September 20, 1920), before the appeals came on
for hearing.

The difference between the effect of the expiration of a temporary Act and the repeal of a
perpetual Act, is pointed out by Parke, B., in Steavenson v. Oliver (1841) 8 M. & W. 234, 240,
241). `There is a difference between temporary statutes and statutes which are repealed; the latter
(except so far as they relate to transactions already completed under them) become as if they had
never existed; but with respect to the former, the extent of the restrictions imposed, and the
duration of the provisions are matters of construction".

13. We may also refer to a recent judgment of this Court in the case of Muhammad Naeem alias
Naeema v. The State (1992 SCMR 1617), in which a Klashnikov was recovered after the lapse of
amending Ordinance whereby clause (c) of West Pakistan Arms Ordinance (XX of 1965) was
amended and the words "or a light or heavy automatic or semi-automatic weapon such as
Klashnikov, a G-III rifle or any other type .of assault rifle" were added. The question arose,
whether the trial for the above offence after the lapse of above amending Ordinance was legal.
This Court held as follows:--

"The above resume of amendments made in the Act of 1975 makes it abundantly clear that the
Special Court was invested with the powers to try offences under the Arms Ordinance in respect
of Klashnikov with effect from 7-11-1988. No doubt, on the date of recovery of Klasbnikov Exh.
P.1 from the possession of the accused/appellant the amending Ordinance had lapsed but through
the subsequent amending Ordinance the lapsed provisions were reintroduced with effect from
7-11-1988 and through the last Act with effect from 2-11-1988. Needless 'to emphasise that the
Act ibid is a procedural law and legally operates retrospectively but in view of the clear
provisions contained in the subsequent amending Ordinances and the Act V of 1990 whereby the
amendments were deemed to be retrospective; there cannot be the slightest doubt that -the
Special Court bad, now jurisdiction to try the offence with which the accused/appellant was
charged and its order convicting him' is perfectly within jurisdiction:"

14. We may also refer to the case 'of Wicks v. Director of- Public Prosecutions (1947) 1 All.
England Law Reports 2(K), in' which the facts were that the acts with which the appellant was
indicted, for contravention of Defence (General) Regulations; 1939, Reg. 2A, made under the
Emergency Powers (Defence) Act, 1939, hereinafter referred to as the Act, were all committed
between April; 1943; and-January, 1944, and the trial took place on 27/28-5-1946. 'After
numerous extensions, the Act expired on 24-2-1946. However, section 11 (3) of the Act provided
"The expiry of this Act shall not affect the operation thereof as respects things previously done
or omitted to be done".

15. The question came up for consideration before the House of Lords, whether the above
section 1.1 (3) of the Act authorised the conviction of the appellant notwithstanding the expiry of
the Act. The House of Lords held that from the natural meanings of the words employed in
section 11'(3) of the Act, it was clear that the Parliament did not intend the subsection to expire
with the rest of the Act and its presence in the Act preserves the right to prosecute after the date
of expiry. It was, therefore, held that the conviction of the appellant, in spite of the expiry of the
Act, was legal.

16. From the above cited cases, it is evident that there is judicial consensus that where a law is
repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of
any right, privilege, obligation, liability, penalty, forfeiture or punishment, 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 law had not been repealed. This is so,
inter alia, because of section 6 of the General Clauses Act, 1897 (which corresponds to section 4
of the West Pakistan General Clauses Act, 1956), in the absence of any contrary intention
manifested in the relevant statute. Since the General Clauses Act is not applicable to the
Constitution, the above provision has been incorporated therein in the form of Article 264.
However, the above principle cannot be pressed into service, while dealing with temporary
statutes as highlighted in the above treatises on the interpretation of statutes. The general rule in
regard to a temporary statute is that in the absence of special provision to the contrary,
proceedings which were taken under it, would ipso facto terminate. The case of Wicks v.
Director of Public Prosecutor supra decided by the House of Lords has dealt with a statute where
the law-maker while enacting it expressed contrary intention in section 11 (3) thereof by
providing that its expiry shall not affect operation thereof as respects things previously done or
omitted to be done. There is nor similar provision in the Act in issue. It was to operate only for
one year from the date on which it was assented to by the President in terms of section 1 (2)
thereof unless it was extended by the Parliament. The effect of promulgation of Ordinance XIX
of 1988 was that the life of the Act was extended for a period of four months i.e. up to
12-2-1989. Since in the present case the Special Court recorded conviction on 11-4-1989 when
the Act and Ordinance XIX of 1988 already stood lapsed, the judgment of the Special Court was
coram non judice as has been held by the High Court. The judgment of this Court in the case of
Muhammad Naeem alias Naeema v. The State (1992 SCMR 1617) wherein conviction of the
accused person for possessing a Klashnikov after the expiry of the relevant Ordinance was held
good for the reason that the relevant provision of the Ordinance was re-enacted retrospectively
from a date prior to the date of conviction. Thus, the above case is distinguishable from the
instant case.

17. The upshot of the above discussion is that the appeal has no merits and, therefore, it is
dismissed.

M.BA./M-1773/S Appeal dismissed.