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Criminal Appeals Nos. 9 of 1978 ; 4 and 5 of 1980, decided on 1^stApril, 1981.

------Ss. 23, 25 & 31 [as amended by Amending Ordinance of 1974]---Interpretation of statutes-Change in forum pending trial, principle to govern-Right of appeal as well as revision against Judgment/order of District Criminal Court given to an aggrieved party by virtue of Amending Ordinance, to be availed before Shariat Court instead of High Court-Amendment, held, being procedural in nature operates retrospectively.---[Interpretation of statutes].

The change of forum is a matter of procedure and if during the pendency of proceedings, in a Court or Tribunal, a new forum is created, which is capable of giving relief to the aggrieved parties in the same degree and with an equal or more convenience, as was possible in case of former Court, or Tribunal, the statute creating new forum, would operate retrospectively and thus would be applicable to the pending proceedings. However, if, along with change of forum or other proce dural amendment, the substantive and vested rights of the parties are also affected, the provisions of amending statute would not operate retrospectively and would be inapplicable to the pending proceedings, unless of course, such a statute has been given retrospective effect expressly or by necessary implications.

Munsif Khan v. The State P L D 1960 Azad J & K 45; Gul Akbar v. Deputy Chief of Air Staff, PAF P L D 1968 Pesh. 114; Adnan Afzal v. Capt. Sher Afzal P L D 1969 S C 187, Hafiz Abdul Karim v. The State P L D 1959 Lah. 883 and State v. Muhammad Jamil P L D 1965 S C 681 rel.

S. Rafique Mahmood Khan, Addl. A.-G. for the State.

Ch. Sher Zaman and Abdul Khaliq Ansari for the Complainants.

Muhammad Yunus Surakhvi and Ch. Muhammad Tai for Appellants.

Dates of institution: 16th November 1978; 3rd July and 23rd August 1980.

The above-entitled appeals were directed against the judgments of the District Criminal Court; constituted under the Islamic Penal Laws Act of 1974.

Initially, these appeals were being heard by a Division Bench but during the pendency of these appeals, an amending Ordinance was promulgated on the 3rd of March, 1981, whereby an amendment was brought in sections 23, 25 and 31 of the Islamic Penal Laws Act of 1974. By virtue of the aforesaid amendment, right of appeal and revision against the judgment and the order of District Criminal Court was provided to the Azad Jammu & Kashmir Shariat Court. Before the aforesaid amendment, appeal and revision against the judgment and order of the District Criminal Court lay to this Court. The question cropped up Before the Division Bench as to whether the aforesaid amendment would apply to the pending appeals etc. In view of the importance of the point involved, it was referred to Full Bench for determination.

It is a settled principle of law of interpretation that procedural law operates retrospectively until anti unless a different intention is expressed by Legislature expressly or by necessary intendment. In the instant case, the right of appeal as well as revision, against the judgment and order of District Criminal Court has been given to an aggrieved party and by virtue of amending Ordinance, a party is competent to avail the same, before the Azad Jammu & Kashmir Shariat Court. An appeal has also been provided against a judgment or an order of Shariat Court to the Supreme Court of Azad Jammu & Kashmir. Before the introduction of the amendment, an appeal or a revision, against the judgment or order of this Court, lay to the Supreme Court under the Azad Jammu & Kashmir Interim Constitution Act of 1974 and in most of the cases, special leave to appeal was necessary. But after the amendment, an aggrieved party has right to file an appeal to the Supreme Court without seeking any such special leave. It means, the amending Ordinance provides a more convenient procedure for the redress of the grievance of the parties, if any.

Thus the amending Ordinance provides a forum, the decision of which is appeaLahle as a matter of right without seeking any special leave to appeal, as is necessary in some cases, if the aggrieved party wishes to go in appeal against the order or judgment of this Court. The change o forum is a matter of procedure and if during the pendency of proceedings, in a Court or Tribunal, a new forum is created, which is capable of giving relief to the aggrieved parties in the same degree and with an equal or more convenience, as was possible in case of former Court, or Tribunal, the statute creating new forum, would operate retrospectively and thus would be applicable to the pending proceedings. However, if, along with change of forum or other procedural amendments, the substantive and vested rights of the parties are also affected, the provisions of amending statute would not operate retrospectively and would be inapplicable to the pending proceedings, unless of course, such a statute has been given retrospective effect expressly or by necessary implications. We are fortified in our view by various judicial authorities. It would be expedient to make a brief survey of judicial opinion on the subject which is as under:-

In P L D 1958 Kar. 107 ( ) it has been held that change of forum is a procedural matter and it would operate retrospectively, unless amendment in the statute also affects the substantive rights of the parties. In P L D 1960 Azad J & K 45 it was held that direction of District Magistrate for prosecution under the provisions of Emergency Powers .Act, was a matter of procedure and as such, after amendment in the relevant law, the direction of the District Magistrate was necessary even in cases which were pending before the amendment. In another case reported as P L D 1968 Pesh. 114 one of the points involved in the case was whether amendment in the relevant law, whereby the offence under section 3(1) (a) of Official Secrets Act of 1923 was made triable by Court Martial, operated retros pectively. It was held that the amendment only changed the forum and did not affect the rights of the parties such as nature of offence or penalty prescribed for the offence, therefore, the amend ment being procedural in nature, would operate retrospectively. It was further opined that no one had a vested right in the course of procedure and as such, amendment with regard to change of forum would operate retrospectively until and unless it was made to operate prospectively by express provisions or by necessary intendment.

In another case reported as Adnan Afzal v. Capt. Sher Afzal (P L D 1969 S C 187) the matter came up for consideration as to whether the change of forum would operate retrospectively. It was held that change of forum being procedural in nature, would operate retrospectively until and unless it affected the vested rights of the parties. It is expedient to reproduce from the aforesaid authority:-

"The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford, too, takes the view that question relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only."

It was further observed as under:-

"Looking at the provisions as a whole we are of the view that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication,"

In another case, reported as P L D 1959 Lah.' 883 the view expressed is that general rule that no statute shall be construed to have retrospective operation is subject to the exception that statute which affects the procedural matter ought to operate retrospectively. It was held that a Court might be given jurisdiction for an offence, which was committed before the jurisdictional statute was passed.

In P L D 1965 S C 681 the facts of the case were that accused were being tried for an offence under section 420, Penal Code. The prosecution witnesses were examined and statements of the accused were also recorded under section 342, Cr. P.C. and the case was apparently fixed for arguments. At this stage, an amendment was brought which did away with the right of the accused given by section 256 of the- Cr. P. C. whereby the accused could ask for recalling of the prosecution witnesses further cross-examination after charge-sheet. The amendment was brought in the relevant law on 1^stApril, 1964, while charge in the case was framed on 18th June, 1964. A revision was filed on behalf of the accused that they had been deprived of the right to recall the witnesses for further cross-examination. The High Court declined to quash the proceedings bile held that right of cross-examination given by section 256, Cr. P. C. "as a vested right and could not be taken away by amendment. On appeal to the Supreme Court, it was opined that fundamental right of cross-examination was not taken away by amendment but only a further facility of cross-examination was cut by the amendment. It was held that change being merely of procedural nature, would affect the pending cases.

The State appeal was accepted and it was held that after the amendment, the accused had no right to recall the witnesses for further cross-examina tion, after charge-sheet.

The brief survey of the aforesaid authorities lends support to our view that change of forum by the amending Ordinance in the instant case, would operate retrospectively because a remedy for aggrieved parties has been provided by the amending Ordinance by giving them the right of appeal and revision to the Shariat Court and right of appeal and revision has also been given against the judgment or order of the Shariat Court to the Supreme Court by a more convenient procedure.

In the light of what has been stated above, the above-entitled appeals shall be transmitted to the Registrar of Azad Jammu & Kashmir Shariat Court forthwith.

Order accordingly.

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