PLJ 1991 SC (AJK) 26

PLJ 1991 SC (AJK) 26

[Appellate Jurisdiction]

Present: SARDAR SAID MUHAMMAD KHAN, JJ.

KARAM HUSSAIN-Petitioner

Versus

BASHARAT HUSSAIN and another-Respondents

Criminal Revision Petition No.l of 1990, dismissed on 4.3.1991.

[In matter of review of judgment of Supreme Court, dated 20.12.1989, in Cr. petition for Leave to Appeal No.3 of 1989].

(i) Amendment--

—-Amendment in Islamic Penal Laws Act-Effect on pending cases-Whether amendment would operate retrospectively-Question of~Amendment in question is not merely procedural in nature but affects substantive rights of parties-It cannot be said that amendment in question is merely procedural in nature and does not affect vested rights of prosecution or defence—When punishment, penalty or obligation is changed by amendment, that does not fall within purview of procedural law-Held: It is settled law that if alongwith procedure, vestd rights of parties are also affected, amendment would always operate prospectively and not retrospectively-Held further: Instant case which is subjudice in court of Sessions Judge, would be tried and disposed of by Sessions Judge and shall not be transferred to District Criminal Court.

[Pp.29,31&32]B,C,D&E

PLD 1969 SC 599, PLD 1969 SC 187, PLD 1969 Pesh. 62, PLD 1981 AJK 123 and PLD 1981 AI&K 88 discussed.

PLD 1969 Lah. 24, PLD 1970 Quetta 27, PLD 1968 Karachi 480, PLD 1965 Lah. 54, PLD 1968 Dacca 143, PLD 1967 Lah. 828 and PLD 1973 Lah. 114 rel.

(ii) Review--

—Amendment in Islamic Penal Laws Act-Effect on pending cases-Whether review is not competent-Question of—In this case, two contrary orders by this court have come into existence-Held: It has become necessary to elucidate matter so as to remove confusion created by orders. [Pp.28&29]A

1973 SCMR 210 distinguished. PLD 1969 SC 77 and 1975 SCMR 16 ref.

Mr. Muhammad Abdul Khaliq Ansari, Advocate for petitioner. Ch. Muhammad Azam, Advocate for non-petitioner No.l. Ch. Ali Muhammad, Advocate General for State. Date of hearing: 25.2.1991.

order

This review petition has been directed against the order of this Court dated 20-12-1989, whereby the petition for leave to appeal filed by the petitioner, herein, was dismissed in default with certain observations.

Brief facts giving rise to the present petition are that an amendment was brought in section 24 of the Azad Jammu and Kashmir Islamic Penal Laws Act, 1974, whereby sub-section (2) of the said provision was deleted. The question arose before the trial Court as to what would be the effect of the amendment on the case in hand which was pending in Court of the Sessions Judge. The Sessions Judge opined that amendment would not affect his jurisdiction to proceed with the trial, Consequently, a revision petition was filed in the High Court by the non-petitioner, BasharaS Hussain, against the order of the trial Couri. The revision petition was heard 'and disposed of by the Division Bench of the High Court vide its order dated 25-1-1989; holding that aforesaid amendment would not affect ihc jurisdiction of the Sessions Judge to continue with the trial of too case. A petition for leave to appal was preferred by Karam Hussain, petitioner herein, to this Court which was disposed of vide order dated 20-12-1989 as a result of an application by the counsel of Karam Hussain wherein it was staled that as the matter at issue had been resolved in some other similar petition, he did not intend to press his petition any more. Thus, the petition for leave to appeal was dismissed in default ; but all the same it was observed in the order of dismissal that 'even otherwise the judgment of the High Court did not suffer from legal infirmity'. It so happened that previously another petition for leave to appeal, entitled "Nusrat Bi v. State," was dismissed in default by this Court wherein identical point was involved. In that case too, it was observed by this Court that the judgment of the High Court on the point did not suffer from any legal defect. The findings of the High Court in that case were contrary to the findings in the present case. It was observed in that case that the amendment in section 24 of Islamic Penal Laws Act would operate retrospectively and thus the case was held to be triable by the District Criminal Court and not by the Sessions Judge. Consequently, two contrary orders came into existence ; one in the instant case and the other in case entitled "Nusrat Bi v. Slate." It was ur.der the aforesaid circumstances that the present review petition was filed against the order whereby the pciiu^n for Icnvv to appeal was dismissed with the obsc-nations that despite the amendment (he Sessions Judge would continue to enjoy the jurisdiction in the case.

I have heard the arguments. A preliminary objection has been raised by Ch. Muhammad Azam, Advocate, the counsel for non-petitioner No. 1. that the review petition was not competent. He has cited a case reported as, Ashfaq Ahmad Sheikh v. Tlie State (1973 S.C.M.R. 210). The learned counsel has contended that mere fact that a different view on the question of law is possible, is no ground for review. In the aforesaid case the review in a criminal case was sought on the grounds that the accused person should have been given benefit of doubt in view of the dictum given in the case reported as S.M. Yousuf v. S,K, Rahim (P.L.D. 1969 S.C. 77); and that the punishment awarded to the accused was harsh. So fat-as the question regarding different view taken in S.M. Yousufs case was concerned, it was opined that the decision in each criminal case depends on the peculiar circumstances of the case and, thus, the view taken in the former case about the 'benefit of doubt' had no relevancy in the case of which the review was sought. In the instant case, the question as to whether the review was competent was examined at the stage of preliminary hearing; and relying on the case reported as Mst. Shatnim Akhtar v. Syed Alain Hussain (1975 S.C.M.R.16), it v/as held that failure to notice previous decision binding on the Court constitutes a good ground for review although misapplication of principle laid down in an earlier case, after considering the same, may not furnish a ground for review. In the instant case, as has already been pointed out, two contrary orders by this Court have come into existence and, thus, it has become necessary to elucidate the matter so as to remove the confusion created by the orders. It may be observed that in both the cases, i.e., the case entitled Mst. Nusrat Bi v. Vie State (Criminal Petition for Leave to Appeal No. 7 of 1987, decided on 6-4-1988) and the case under review, the arguments were not heard on the merits; rather the petitions for leave were dismissed for non-prosecution. However, while dismissing the said petitions, it was casually observed that the relevant judgments did not suffer from any legal infirmity.The learned counsel for the petitioner, Mr. Muhammad Abdul Khaliq Ansari, has contended that the amendment, whereby sub-section (2) of section 24 of the Islamic Penal Laws Act was deleted, is procedural in nature and, thus, the same would operate retrospectively and the case in hand which was previously B subjudice before the Sessions Judge would not be tried by the District Criminal Court. The learned counsel has cited the following authorities in support of his I contention.

In \^;abi Ahmed v. Home Secretary, Government of West Pakistan, Lahore. (P.L.D. 1969 S.C. 559), it was opined that procedural law may operate retrospectively. However, it was opined that it is not easy to draw a line between substantive and procedural law. The law of procedure was defined as a branch of law which governs the process of litigation and all the residaury laws which do not relate to the process of litigation but to the purpose of subject-matter, are substantive laws.

InAdnan Afzal v. Capt. Sher Afzal (P.L.D. 1969 S.C. 187), it was observed that if a law is merely procedural in nature, it would operate retrospectively, however, if such a legislation alters the rights of the parties and takes away a substantive right that would not operate retrospectively but prospectively.

InAlifdin v. ShaukatAli (P.L.D. 1969 Pesh. 62), it was observed that change of forum by a statute is a matter of procedure and would always operate

prospectively.

In State v. Gul Bahar (P.L.D. 1981 Azad J & K 123), the facts were that some appeals against the judgments of District Criminal Court were pending before the High Court. An amendment was made in sections 23, 25 and 31 of the Islamic Penal Laws Act, 1974, whereby the right of appeal and revision against the judgment and order of the District Criminal Court was provided to the Shariat Court instead of the High Court. It may be stated that before the aforesaid amendment, the appeal and revision against the judgment or the order of the District Criminal Court lay to the High Court. The Full Bench of the High Court expressed the view that the amendment was mere procedural and, thus, it would operate retrospectively and the appeals pending in the High Court would be heard by the Shariat Court by virtue of the aforesaid amendment.

In State v. Sahib Dad (P.L.D. 1981 Azad J & K 88), sub-section (2) to section 24 of the Islamic Penal Laws Act was added as under:Before the aforesaid amendment in section 24,. the murder cases were tried by the District Criminal Court. However, after the aforesaind amendment, the question arose as to whether the case which falls within the purview of the amendment and was pending in the District Criminal Court should be transferred to Sessions Judge. The High Court held that as the amendment was not merely a procedural in nature, the cases cannot be transferred to the Sessions Judges and the District Criminal Courts would continue to hear the cases pending before them. It may be observed here that the aforesaid amendment which was made in section 24 of the Islamic Penal Laws Act has now been deleted by an amending Ordinance (now Act) and thus resulted in present controversy. Thus, the legal proposition involved in the case reported as State v. Sahib Dad (P.L.D. 1981 Azad J & K 88) was identical to the case in hand ; at the time of said controversy the cases were being tried by the District Criminal Court when sub-section (2) was added by way of an amendment wheras at present the case in hand is subjudice before the Sessions Judge when the aforsaid sub-section (2) of section 24 of the Islamic Penal Laws Act has been deleted. So far as the case reported as State v. GulBahar (P.L.D. 1981 Azad J & K 123) is concerned, the same is distinguishable because in that case the question involved was as to whether the High Court would continue to hear the appeals, revisions etc. against the judgments and orders of the District Criminal Court or the same would be heard and disposed of by the Shariat Court. The High Court held that as the matter merely pertained to the change 61" forum, the amendment would operate retrospectively. In case reported as State v. Sahib Dad (P.L.D. 1981 Azad J & K 88). while dealing with the effect of the Islamic Penal Laws Act, it was observed as under:-

"The first point for determination is whether the amendment in question is merely a procedural one or it is more than that and affects the substantive rights of the parties. Even a cursory glance at sub-section (2) of Section 24 shows that if the provisions of the Islamic Penal Laws Act of 1974, are applicable to a case but evidence required by the said Act is not available, the accused would be challaned under 'other laws' for their offences, and the forum for the trial would be the Courts constituted under the Criminal Procedure Code and not under the Islamic Penal Laws Act. It is obvious that, according to the amendment, if the required evidence is missing, the accused will be challaned under 'other laws' such as A.P.C. etc. and not under the Islamic Penal Laws Act. It may be pointed out that definitions of offences under the Islamic Penal Laws Act, in some cases, are different from those in the Penal Code. The offences, of murder and 'Zarrar' are compoundable under the Islamic Penal Laws Act while under the Penal Code, the offences of murder and grievous hurt are not compundable. Again, under Islamic Penal Laws Act, punishments for offences may be different from those prescribed in the Penal Code. It is obvious that the amendment in question is not only a procedural one but it is much more than that which affects the substantive provisions of law and as such, the argument that the amendment being merely procedural in nature, would operate retrospectively, is not tenable."

It may be stated that principle laid down in the above mentioned authority is fully applicable to the case in hand. The amendment in question is not merely procedural in nature but affects the substantive rights of the parties, for instance, the punishments prescribed under Section 3 of the Islamic Penal Laws Act are not identical to those which are prescribed under the provisions of the Penal Code. Under Section 3 of the Islamic Penal Laws Act, following punishments have been prescribed: