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Writ Petitions No. 147 of 1957 (Peshawar Bench) and No. 61 of 1958 (Lahore), decided on 16th May 1958.
(a) Frontier Crimes Regulation (111 of 1901), Ss. 11 and 12‑Sentence passed before, but confirmed after coming into force of Constitution‑Order of confirmation invalid ‑Sentence set aside‑Accused may be tried under ordinary law‑General Clauses Act (X of 1897), S. 6‑Inapplicable‑Invalidity not equivalent to repeal of provision.
After a finding of the Council of Elders, the petitioner was convicted by the Deputy 'Commissioner under S. 302, P. P. C. and sentenced to 14 years' rigorous imprisonment on 14th March 1956. This sentence was, under the provisions of S. 12 of the Frontier Crimes Regulation (111 of 1901), subject to confirmation by the Commissioner who confirmed it on 28th July 1956. Mean while, the new Constitution had come into force on the 23rd March 1956, by Articles 4 and 5 of which Ss. 11 and 12 of the Regulation had been rendered invalid.
Held (Per Kayani, C. J.) that the petitioner's sentence could not be confirmed under section 12 and that, consequently, it was invalid.
The petitioner was convicted and sentenced under a valid law, but before the sentence could be confirmed by the Commis sioner, the entire procedure culminating in confirmation became invalid, with the result that confirmation took place under a law which was invalid. It is no consolation, therefore, that up to a certain stage the proceeding was valid, because in that state it was not executable.
In order that S. 6, General Clauses Act (X of 1897) should have effect, the case must be expressly one of repeal, and it is not enough that it should be analogous to repeal. When the Legislature repeals an enactment, it does so consciously, but when it says in a particular statute that any existing law which is inconsistent with that statute shall be void to the extent of inconsistency, it is contemplating a possible conflict, and is not necessarily contemplating a repeal, and therefore the contemplation of any saving clause is out of the question.
There being no vested right in procedure, the a is no corres ponding liability, and if that procedure is rendered void by the Constitution, it must be abandoned immediately in favour of the procedure which is valid.
The petitioner, therefore, could be tried de novo under the ordinary law.
Toti Khan v. District Magistrate Sibi P L D 1957 Quetta 1; Keshavan v. State of Bombay A I R 1951 S C 128 and Kay v. Goodwin (1830) 130 E R 1403 ref.
‑Section 6, General Clauses Act (X of 1897) has no application to procedural provisions and it is a pro cedural provision with which we are dealing. Section 6 only saves rights created and liabilities incurred on account of a statute that has been repealed, but no person has any vested right in any procedure and procedural provisions do not create rights or liabilities referred to in this section. A substantive right or liability created by an Act acquires an existence independent of the Act which created it so that even after the Act is repealed it continues. But a procedural provision, even though we may call the authority or power granted by it to a person a right' does not create a right which may exist independently of the continuance of the provision creating it. The procedural right' continues only as long as the procedural provi sion exists and does not survive it. While a person can claim that a substantive right which he possesses should be enforced he cannot claim that the procedure for the enforcement of his right which was in force when the proceeding commenced must be taken to its very end.
The question, therefore, is whether a liability to be impri soned has been created on account of the order of the Deputy Commissioner. The liability would be created, if, in case no further proceedings went taken, the petitioner would have to suffer imprisonment. But it is clear that if no further pro ceedings are taken, he would have to be released for there would be no executable sentence.
Crowd v. Haveli P L D 1949 Lah. 550 ref.
Per Masud Ahmad, J.‑Only the proceedings which had been taken under the Regulation and had been completed before the Constitution Day were saved, but if something had still to be done, no further action could be taken after the Constitution Day under those provisions of the Regulation which had become void. On this view of the case, therefore, the Commissioner's order passed on the 28th of July 1956, must be held to be void.
The reference to the Council of Elders, their finding that the petitioner was guilty of the offence of murder and the order passed by the Deputy Commissioner convicting the petitioner under section 11 of the Regulation, would amount to things done and suffered thereunder, within the meaning of clause (b) of section 6, General Clauses Act and these proceedings having been taken before the Constitution Day, the same would be saved, even though section 11 of the Regulation became void after that date. The proceedings which were taken after the Constitution Day would not, however, be saved by the application of clause (b).
The State, however, had not acquired any "right" to have the petitioner tried under any particular law, or by any particular procedure and, therefore, ‑ no such "right" could be considered to have been saved by the implied repeal of section 12 of the Regulation. If any punishment had been imposed before the Constitution Day, that also could have been saved, but as the order imposing punishment on the petitioner was subject to confirmation by the Commissioner and as without being con firmed that order could not have become operative, it cannot be said that any punishment had, in fact, been imposed on the petitioner before the Constitution Day. It follows that the power of the Deputy Commissioner to impose punishments and that of the Commissioner to confirm the Deputy Commissioner's orders could not be saved, by virtue of clause (c) of S. 6.
(b) Interpretation of Statutes‑Repeal‑General rule of English law before enactment of Interpretation Act, 1889‑Not in consonance with spirit of Art. S, Constitution of Pakistan.
The position in England before the enactment of the Inter pretation Act, 1889 was that when a statute ceased to be in force it was deemed never to have existed except for transactions past and closed. Section 38 of the Interpretation Act, 1889, made a provision in the same words as section 6 of the General Clauses Act (X of 1897), so as partly to save the effect of a repealed Act.
‑This (the old) rule creates a distinction between civil rights and criminal liabilities for which there is no reasonable basis. If on account of a statute a civil right is created that right will remain even though the statute comes to an end. That becomes a transaction past and closed. But if a criminal liability is incurred that liability vanishes when the statute terminates.
This rule of English law is not in consonance with the spirit of Article 5 of the Constitution of Pakistan which guarantees to all persons equal protection of law. It cannot be regarded as an equal protection if one person is hanged and another goes scot free while the act committed by both is the same and there is no material difference in the circumstances. The only point of dis tinction between the two cases is that in one case for an accidental reason the trial is prolonged. This is hardly reasonable classification. It is true that Article 5 does not in terms apply for a rule of interpretation does not fall with "existing law", but' the spirit of Article is violated.
R. v. Ellis 125 L T 397 ; Steavenson v. Oliver 8 M & W 234 Rex v. Elizebeth M'Knzie and another 1820 Statute 10 and 11 Will, 3, c: 23 and R. v. Swan (1849) 14 J P 161 ref.
(c) Constitution of Pakistan, Art. 4 (1)‑Prospective, and not retrospective application.
Per Masud Ahmad, J.‑Generally speaking, all laws are pro spective in their operation, unless an intention to the contrary can be gathered‑from the language used. The Constitution cannot be considered to be an exception to this general rule. Clause (1) of Article 4 of the Constitution of Pakistan, while saving all existing laws, lays down clearly that if any such la s inconsistent with the provisions of Part Ii of the Constitution relating to Fundamental Rights, it shall, to the extent of such inconsistency, be void. If the intention of the framers of the Constitution had been that all such laws which come into conflict with this part of the Constitution should be considered to be void from the very beginning, there was nothing to prevent them from expressing such an intention in clear language. As this was not done, the inference is that the framers never intended to declare such laws to be void from the very beginning and, therefore, this clause was to operate prospectively and not retrospectively. This interpretation should be applicable to laws of all kinds, whether relating to procedural matters, or creating or affecting substantive rights.
The distinction between laws relating to matters of pro cedure and those affecting or creating substantive rights, is not very material for the purpose of the present case, because whatever might be the nature of the disputed law, the question requiring decision is whether the framers of the Constitution did intend to apply the provisions of clause (1) of Article 4 prospectively or retrospectively. The language used in the clause, in my opinion, does not indicate that the intention was to apply this clause retrospectively and, therefore, the inference is that procedural laws and as well as laws relating to substantive rights were to be deemed to be void from the date the new Constitution came into force, if they came into conflict with the fundamental rights guaranteed by Part 11 of the Constitution.
Keshavan Madhava Menon v. The State of Bombay A I R 1951 S C 128 ; Lachmandas Kewalram and another v. The State of Bombay A I R 1952 S C 235 and Syed Qasim Razvi v. State of Hyderabad A I R 1953 S C 151 ref.
The Delhi Cloth and General Mills Company Limited v. Income‑tax Commissioner Delhi A I R 1927 P C 242 and Colonial Sugar Refining Co. v. Irving 1905 A C 369 not helpful.
Peer Bakhsh Khan for Petitioner.
M. Anwar, A. A. G. for Respondents.
Date of hearing : 14th April 1958.
‑The petitioner, Muhammad Bashir, was prosecuted for the murder of his brother, which took place on the 1st July, 1955. During the committal proceedings, after the entire evidence had been recorded, the Deputy Commissioner of Peshawar referred the case under section 11, Frontier Crimes Regulation, to the decision of a Council of Elders on the 1st February 1956, and, in accordance with the finding of the Council, convicted the petitioner of an offence under section 302, P. P. C. sentencing him to fourteen years' rigorous imprison ment the date of the conviction and sentence being the 14th March 1956. Section 12, Frontier Crimes Regulation, provides that where the Deputy Commissioner "convicts a person of an offence punishable with transportation or with imprisonment for a term exceeding seven years, he may, subject to confirmation by the Commissioner, sentence the person to a term either of transportation or of imprisonment exceeding seven years but not exceeding fourteen years". In other words, a sentence exceeding seven years required confirmation by the Commis sioner, and the Commissioner confirmed it on 28th July 1956.
2. Meanwhile, on 23rd March 1956, the new Constitution of Pakistan‑ had come into force, and thereafter, from time to time, various provisions of the Frontier Crimes Regulation came under attack as being repugnant to the equality clause in Article 5. In Toti Khan v. District Magistrate Sibi (P L D 1957 Quetta 1) among others, it was held that sections 11 and 12 and other provisions which enabled the authorities to refer criminal cases to a Council of Elders were repugnant to Article 5 and void under Article 4 of the Constitution.
3. The petitioner, therefore, claims that since his sentence was confirmed after the Constitution came into force, it is illegal. His counsel's argument was simple : the sentence was not executable until confirmation and before confirmation section 12, Frontier Crimes Regulation had been rendered void by the Constitution. Confirmation, therefore was unlawful.
4. But the case does not appear to us to be so simple. The conviction and sentence had been imposed by the Deputy Commissioner when the Frontier Crimes Regulation was good law, and till then the proceedings were valid. If the Constitution is not retrospective in operation, those proceedings are not affected, and since the exercise of the power of confirmation is not by itself repugnant to the Constitution, it may well be regarded as having been exercised properly.
5. The question turns on the effect of avoidance under Article 4, which is as follows:
"Any existing law, or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of this part shall, to the extent of such inconsistency, be void".
6. For the State, it was argued that when a law becomes void, it is on the same footing as though it had been repealed, for it does not lapse like a temporary law, and would have continued in force but for its avoidance by the Constitution. For this argument, reliance was placed on the majority view in Keshavan v. State of Bombay (A I R 1951 S C 128). If this view be accepted, section 6 of the General Clauses Act, 1897 will become operative, with the result that "the repeal shall not‑
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability** * * * * as aforesaid , any such investigation, legal proceeding or remedy may instituted, continued or enforced * * * * * as if the repealing Act or Regulation had not been passed".
7. In short, if the petitioner had incurred any liability to be prosecuted, and any legal proceeding in respect thereof had been started against him, such proceeding could be continued not withstanding the repeal.
8. I find it somewhat difficult to think that when an enact ment becomes void, it is on the same footing as though it had been repealed. Before section 38 (2) was inserted in the English Interpretation Act, 1889, even the effect of repealing a statute was, in the words of Tindal C. J. in Kay v. Goodwin ((1830) 130 E R 1403) "to obliterate it as completely from the records of the Parliament as if it had never been passed, and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law". The practice in England therefore was to insert in the repealing statute a clause saving pending actions, until section 38 (2) of the Interpretation Act, (on which section 6 of the General Clauses Act is based made it unnecessary to repeal the insertion each time. Section 6 of the General Clauses Act is now applicable to the Constitution, but in order that section 6 should have effect, the case must be expressly one of repeal, and it is not enough that it should be analogous to repeal. When the Legislature repeals an enact ment, it does so consciously, but when it says in a particular statute that any existing law which is inconsistent with that statute shall be void to the extent of inconsistency, it is contemplating a possible conflict, and is not necessarily con templating a repeal, and therefore the contemplation of any saving clause is out of the question. The framers of a Consti tution must, of all persons, know what the effects of repeal are, and if they intend to save anything in a situation of a different kind, they must make their minds clear.
9. I particularly draw attention to the following passage in the judgment of Mahajan J., who supported the majority view in Keshavan v. State of Bombay "It seems clear that an existing statute, in spite of a declaration by Court that it is void remains in force till 25‑1‑50 (the date of the Indian Constitution) and continues to remain on the statute book even after 26‑1‑50 except that no effect can be given to any of its provisions which are repugnant to the fundamental rights guaranteed by the Consti tution".
The italics are mine, and are intended to emphasize the fact that once it is agreed that effect cannot be given to the repugnant provisions, then the validity of the pending action upto a certain date makes no difference, because after that date it cannot be carried .any further. Take the present case. The petitioner was convicted and sentenced under a valid law, but before the sentence could be confirmed by the Commissioner, the entire procedure culminating in confirmation became invalid, with the result that confirmation took place under a law which was invalid. It is no consolation, therefore, that up ,to a certain stage the proceeding was valid, because in that state it is not executable. I said earlier that since the power of confirmation by itself was not invalid, it may be said to have been exercised validly if the rest of the proceedings were valid. This argument is obviously defective, for the power of confir mation by itself is meaningless. It is not a process which can be detached from the earlier processes of reference to a Council, report by the Council and the Deputy Commissioner's discretion to agree or not to agree with the report. If these earlier processes did not exist, confirmation would convey no sense. If, therefore, these processes were illegal at a certain date, the entire procedure of which confirmation was only the culminating point would be illegal.
10. Then a question is asked‑and a very pertinent question too‑whether any right, as of appeal or revision, which the petitioner himself may have acquired before the Constitution day would also vanish. In the present case, the petitioner had a right of revision under section 44, Frontier Crimes Regulation and the Commissioner exercised the revisional power at the same time with confirmation. But suppose the sentence had been only seven years' imprisonment and it did not require confirmation, and suppose it had been passed a day before the Constitution day. The petitioner had then applied for revision, and the revision had been heard at a time when the relevant law had become illegal. The rule in such cases is stated thus
"Pending judicial proceedings based upon a statute cannot proceed after its repeal. The rule holds true until the proceedings have reached a final judgment in the Court of last resort, for that Court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subor dinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower Court has been withdrawn by an absolute repeal:"
11. It may again be argued that if the Commissioner can exercise the power of revision notwithstanding that the procedure culminating in the exercise of that power has disappeared, he may also exercise the power of confirmation. Put it that way, but then the Commissioner will find that the procedure upon which confirmation rested has become illegal, and he will, therefore, refuse to confirm the sentence.
12. But even if the majority view in Keshavan v. State of Bombay be adopted, it is not applicable to the present case. The question there was whether a matter which constituted an offence under the Press (Emergency Powers) Act and in respect of which legal proceedings had been taken before the Constitution day could be pursued even after the Constitution day, when the law relating to that matter had become void by reason of repugnancy with a fundamental right, namely freedom of speech. In the present case, murder is still an offence, and the question is whether 4 certain procedure by which a person accused of murder can be tried is valid. There being no vested right in procedure, there is no corresponding liability, and if that procedure is rendered void by the Constitution, it must be abandoned immediately in favour of the procedure which is, valid.
13. I, therefore, think that the petitioner's sentence could not be confirmed under section 12, Frontier Crimes Regulation and that, consequently, it is invalid.
.‑I agree with the conclusions of my Lord the Chief Justice and to a great extent with the reasons. On one part of the case however I hold views which, I think, I should record.
2. The learned Assistant Advocate‑General, who appears for the Province of West Pakistan,. has not challenged the correctness of the judgments of this Court which hold that those sections of the Frontier Crimes Regulation, which enable a reference to a jirga for the decision of criminal cases, are ultra vires on account of their conflict with Article 5 of the Constitution of Pakistan. The learned Assistant Advocate‑General has contended, however, that even accepting that the sections mentioned above were no longer law, the Commissioner had authority to confirm the sentence awarded by the Deputy Commissioner and for this he has advanced two reasons : El) that section 12 of Frontier Crimes Regulation under which the sentence was to be confirmed was not one of the sections which had been held to be void and, therefore, continued to be law on the date of the confirmation and (2) that when a law becomes void on account of its conflict with a fundamental right, the effect is the same as if there had been a repeal so that section 6 of the General Clauses Act becomes applicable and proceedings under the repealed statute can be continued in spite of the fact it has ceased to be law.
3. The reply to first of these contentions is that when a part of a statute is declared to be void the answer to the question whether the other part remains in force depends upon whether what is left of the statute can exist independently of the provisions that have been declared void. If it can so exist, if it presents a workable whole in spite of the mutilation of the Act, it still remains the law. But if the provisions that are invalidated were the substance of the Act it is not only those provisions but the whole Act that disappears. It is like the mutilation of a human being. Feet, arms and other parts may be cut, but if life continues, the remaining parts of the body can function. If, however, life is finished no part of the body even though it has remained untouched is capable of functioning.
4. Section 12 of the Frontier Crimes Regulation is not a . provision that can exist independently of those that have been declared void. This section depends for its existence on the provisions that precede, that is, the reference to the jirga, the verdict and the sentence by the Deputy Commissioner. If the reference to a jirga is by itself illegal, all the provisions relating to what is to follow would, also become void. If one were to ask the question : is section 12 a law today the answer will have to he in the negative. It was a part of the procedure the basis of which has disappeared and the provision is not capable of independent existence at all.
5. To consider the second objection of learned counsel for the State, it cannot be held, if we are not to disagree with a Full Bench case of the Lahore High Court i.e., Crown v. Haveli (P L D 1949 Lah. 550), that the termination of a law on the Constitution Day on account of its conflict with the Constitution will have the effect of a repeal. The position in England before the enactment of the Interpretation Act, 1889, as enunciated in a number of cases, was, that when a statute ceased to be in force it was deemed never to have existed except for transactions past and closed. Section 38 of the Interpretation Act, 1889, made a provision in the same words as section 6 of our General Clauses Act, so as partly to save the effect of a repealed Act. In Crown v, Haveli the question of the effect of the termination of an Act, apart from repeal, came up for decision. The facts were that capital punish ment for the offence of dacoity had been provided by a statute which expired during the course of the trial and a question arose as to whether the accused could be tried and punished under the expired statute. The learned Judges of the Full Bench held that the general rule as to the effect of the termination of a statute was the same in Pakistan as it was in England, that section 6 of the General Clauses Act created an exception to this rule only in the case of a repeal and as the case before them was not of a repeal, the general rule remained applicable and the accused could not be punished under the expired statute. That reasoning is fully applicable to the present case. Here too the termination of a statute is not on account of a repeal, which gives rise to a special result on account of section 6 of the General Clauses Act, and the general rule as to the effect of termination of a statute applies. As, according to that general rule, a statute is deemed never to have existed except for transactions past and closed, there existed no law on the date of confirmation under which the Commissioner could confirm the sentence. The trial was not as yet a transaction past and closed. If the Full Bench judgment is, good law, the invalidity of the confirmation is obvious. While I am not refusing to follow the Full Bench judgment I must add that in spite of the high and consistent authority by which this rule of interpretation (that a statute which has terminated is deemed never to have existed except for transaction past and closed) is supported in England, I am, with all respect, not prepared to agree to it in so far as it prevents the trial of persons in respect of offences committed by them on the ground that the statute which created the offence is no longer law on the date of the trial, and unhampered by authority I would take a contrary view. I see no justice in hanging one man for an action committed on a certain day and totally absolving another who committed the same act on the same day, but whose trial could not be concluded before the expiry of the statute which created the offence because his case was lower down the list of cases, or because the Judge fell ill, or because a witness could not be served. And if one reads the judgments delivered in R. v. Ellis (125 Law Times 397) on which reliance was placed by the Full Bench one would find that the case does not fully support the proposition that the expiry of a statute which made an act an offence bars the trial of the offender for that offence. It is judgment of Darling, J., alone which was referred to in the Full Bench Case. Even Darling J. had said that he was deciding the case on account of the wording of the law before him. The learned Judge, in so far as he did in one part of the judgment express his concurrence with the rule I am discussing, did so more on the basis of the authority of, as he says a case decided a hundred years ago" and it does not appear that he held any strong opinion as to the correctness of the proposition that with the expiry of the statute creating an offence the trial comes to an end. The learned Judge referred to the contrary view of. Lord Abinger in the case of Steavenson v. Oliver (8 M. & W. 234), where Lord Abinger had said "take the case of a penalty imposed by an Act of Parliament, would not a person who had been guilty of the offence upon which the Legislature had imposed the penalty while the Act was in force be liable to pay it after the expiration " and the learned Judge's own comment on this was "it may be that that would be just, and that it would be the manifest intention of the words of the statute under which he had been convicted. That suggestion was not altogether adopted by the Court, but I see nothing against it in what Parke, B., says, except that he is more careful and makes it more plain that the question must after all depend on the words of the statute which is being considered. But a case which is binding upon us shows that, in the absence of some such words as I think Parke, B. certainly would have looked for, we could not lay down such a rule as Lord Abinger suggested : we could not lay it down as a general rule, because there is the case of Rex v. Elizebeth M'Knzie and another, which was decided in the year 1820 under the statute 10 and 11 Will, 3, c. 23, by which a person stealing money of a greater value than 5s. was liable to conviction without benefit of clergy. , That meant that the person was to be hanged for having stolen property worth 5s." While concluding the discussion the learned Judge said :" Therefore it seems to me that, although it may be regrettable that proceedings which had been begun for an offence which had been committed cannot be completed : the Legislature has used language which, having regard to a case decided so long as 100 years ago, makes it impossible for this Court to remedy what the Legislature perhaps might have dealt with if it had only seen the loophole which it was leaving. Therefore, in my view, this rule should be discharged."
6. The other two Judges, Avory J. and Horridge J. made it clear that they did not regard expiry of a statute a bar to trial for an offence under the statute and that they were deciding the matter only on the special words of the Act before them. Avory J. said : "As the Act of 1918 enacted that it was only for the period of six months from the 21st November 1918 that that offence could be committed, it follows that by the 21st May 1919 that statute ceased to be operative, so far as the com mission of the offence was concerned. Section 5 of the same statute provided the procedure for offences under that Act, and I am quite prepared to assent to Mr. Montgomery's argument, to this extent, that if an offence under that Act of 1918 had been committed at any time before the 21st May 1919, proceedings under section 5 might have been taken in respect of that offence;" and further "I think that Roche, J. was right in the conclusion at which he arrived, when he said that the effect of this statute of 1919 is to say that those proceedings under section 5 of the Act of 1918 shall continue in operation until the 30th Sept. 1920 and no longer," Horridge J., said in pointed words that he was basing his judgment only on the peculiar wording of the law with which he was dealing, and he made it clear too that as a genera. principle expiry of a statute was not a bar to a trial under it. He began by saying: "I am prepared to assume that under the Act for prescribing minimum rates of wages, during the limited period, called the Wages (Temporary Regulation) Act 1918, although the offence had to be committed within six months of the passing of the Act, proceedings could have been taken for the purpose of getting an order in respect of the offence, subject‑ possibly to the limitation contained in section 11 of the Summary Jurisdiction Act 1848, at any time after the expiration of the six months." and further on said : "By the Act which created that offence a limitation was put upon the period during which the 'offence could be committed, and by the same Act a limitation was put upon the time within which legal proceedings could be brought. I wish to base my concurrence in the judgment of the Court simply upon the construction of the Industrial 'Courts Act, 1919. That Act was creating a new offence in the sense that it was creating an offence which could be committed in a different period from that specified in the earlier Acts, and by the same Act of Parliament the time during which that offence could be prosecuted is specified in the Schedule to the Act."
7. I have pointed out how the rule, on. account of a circumst ance that is of no consequence whatsoever may result in the hanging of one person and the release of another; though both persons committed the same act on the same day, but the rule does not stop here. Its logical consequence is that when one statute comes to an end (by repeal or otherwise) and another takes its place, then although both statutes penalise the act, the offender would go scot free because the statute under which he was prosecuted and which was in force when he committed the act was deemed never to have existed and the statute which succeeded it was not in force at the time when he committed the offence. That this is the logical conclusion of the rule was recognised in R. v. Swan ((1849) 14 J.P. 161), where the offender was acquitted on the very ground that although an act was an offence at the date of its commission and was an offence on the date of the trial yet the offender was not liable to be punished, because the statute in force at the time of the commission of the offence has been succeeded by another statute before the trial concluded. The case was one of repeal and the repealing enactment had re‑enacted the penal clauses.
8. This rule creates a distinction between civil rights and criminal liabilities for which there is no reasonable basis. If on account of a statute a civil right is created that right will remain even though the statute comes to an end. That becomes a J transaction past and closed. But if a criminal liability is incurred that liability vanishes when the statute terminates.
9. I would, at the same time, point out that this rule of English law is not in consonance with spirit of Article 5 of our Constitution which guarantees to all persons equal protection of law. It cannot be regarded as an equal protection if one person is hanged and another goes scot free while the act committed by both is the same and there is no material difference in the circumstances. The only point of distinction between the two cases is that in one case for an accidental reason the trial is prolonged. This is hardly reasonable classification. It is true that Article 5 does not in terms apply for a rule of interpretation does not fall within "existing law", but the spirit of Article is violated.
10. Even if we were to accept that section 6 of the General Clauses Act applies to a case where the statute is found to be void on account of the Constitution, the effect would not be to grant the Commissioner authority to confirm the sentence. Section 6 has no application to procedural provisions and it is a procedural provision with which are dealing. Section 6 only saves rights created and liabilities incurred on account a statute that has been repealed, but no person has any vested right in any procedure and procedural provisions do not create rights or liabilities referred to in this section. A substantive right or liability created by an Act acquires an existence independent of' the Act which created it so that even after the Act is repealed it continues. But a procedural provision, even though we may call the authority or power granted by it to a person a ‑right' does not create a right which may exist independently of the continu ance of the provision creating it. The procedural right' continues only as long as the procedural provision exists rind does not survive it. While a person can claim that a substantive right which he possesses should be enforced he cannot claim that the procedure for the enforcement of his right which was in force when the proceeding commenced must be taken to its very end.
11. As Maxwell says in his Interpretation of Statutes (page 232) "no person has a vested right in any course of proce dure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort ; it takes away no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without, or with only a defective remedy."
12. Confronted with the argument that section 6 would have, no application to procedural provisions the Assistant Advocate‑General was obliged to concede that in so far as section 12 provided for a procedure he could not contend that it should be followed after the section ceased to be law, but he urged that in the present case the matter had by the sentence awarded by the Deputy Commissioner passed the stage of proce dure and by that sentence a definite liability had been incurred which liability would continue even though the law which created it had expired. He also contended that a right had been created in the State to have the sentence confirmed and he relied for this contention on 1905 A. C. 369 where it had been held that a right of appeal was a substantive right and could not be taken away by a repeal of the enactment under which it lay.
13. It is true that the procedure of Courts and Tribunals culminates generally in an enforceable determination of a right or liability and when this happens the matter passes beyond the stage of mere procedure and by the order of the determining tribunal a substantive right or liability comes into existence. When a decree is passed the decree‑holder gets a right to have it executed, and there is a liability created against the judgment debtor. The right of the decree‑holder and the liability of the judgment‑debtor exist henceforth on account of this order and independently of the original right and liability on which the decree is based. Similarly when a sentence of imprisonment is passed, the State gets the right to imprison and the offender is under a liability to be imprisoned on account of the order. This right and liability once created may continue independently of the procedural provisions that brought it into existence.
14. The question, therefore, is whether a liability to be imprisoned has been created on account of the order of the Deputy Commissioner. The liability would be created, if, in case no further proceedings were taken, the petitioner would have to suffer imprisonment. But it is clear that if no further proceedings are taken, he would have to be released for there would be no executable sentence. It is the State that wants to have further proceedings and not the petitioner. The learned Assistant Advocate -General contends that the case of a sentence subject to appeal is similar to that of a sentence subject to confirmation and if liability is created in the case of appeal it should also be created in the case of confirmation. I cannot place the two cases on the same footing for the simple reason that in the case of a sentence subject to appeal no further proceedings are essential to the creation of a liability. In the case of a sentence subject to appeal a definite liability exists though the liability is yet subject to a right of appeal. In the other case a proceeding essential to the creation of a liability has still to be taken. It is on account of a realisation of this weakness in his argument that the learned Assistant Advocate‑General had to say that the State had acquired a right to have the sentence confirmed. He does not realize that he is claiming a right in mere procedure. By the fact that a sentence subject to confirmation has been passed, no substantive right to have the sentence confirmed is created. It was just a procedure which leas been abolished.
15. In connection with the right of appeal there is a matter which requires clarification. I have said that when an order subject to appeal is passed, a liability is created and this liability is subject to the right of the party concerned to file an appeal. But what happens if the right of appeal cannot be exercised at all for the Tribunal that was to hear the appeal no longer exists
In that case the only view to take is that no liability is created by the order. The liability was subject to a right of appeal, which right cannot, on account of the absence of proper machinery, be exercised. There is no valid creation in such 4 case of a liability, because the order which created the liability was after all only part of a whole procedure intended for the determination of the liability, and as the whole procedure has been rendered impossible, part of it also fails. That order created a liability on the assumption that circumstances existed for taking the whole procedure. In the absence of these circumstances the order is invalid and the proceedings for determination of the liability must begin de novo.
.‑The point referred to the Full Bench is as to the effect which Article 5 of the Constitution has on the cases under the Frontier Crimes Regulation which had been concluded prior to the 23rd March, 1956, but in which the sentences which required confirmation under section 12 of the Regulation, were confirmed after that date.
2. The facts of this case have been stated in the order of reference and, therefore, need not be repeated. Generally speaking, all laws are prospective in their operation, unless an intention to the contrary can be gathered from the language used. The Constitution cannot be considered to be an exception to this general rule. Clause (1) of Article 4 of the Constitution, while saving all existing laws, lays down clearly that if any such law is inconsistent with the provisions of Part II of the Constitu tion relating to Fundamental Rights, it shall, to the extent of such inconsistency, be void. If the intention of the framers of the Constitution had been that all such laws which come into I conflict with this part of the Constitution should be considered to be void from the very beginning, there was nothing to prevent them from expressing such an intention in clear language. As this was not done, the inference is that the framers never intended to declare such laws to be void from the very beginning and, therefore, this clause was to operate prospectively and not retrospectively. This interpretation should, I think, be applicable to the laws of all kinds, whether relating to procedural matters, or creating or affecting substantive rights.
3. The learned Assistant Advocate‑General who appeared for the State, however, contended that if any substantive rights had been created, or any liabilities had been incurred before the new Constitution came into force, clause (1) of Article 4 of the Constitution would not affect the exercise of such rights, or the imposition of any such liability, though if any such law related to procedural matters only and if that procedure came into conflict with the Fundamental Rights guaranteed by Part II of the Constitution, the same would, in view of the wordings of clause (1) of Article 4 to the extept of such conflict, become inoperative. To support his contention he referred to The Delhi Cloth and General Mills Company Limited v. Income Tax Commis sioner Delhi (A I R 1927 P C 242), and the Colonial Sugar Refining Co. v. Irving (1905 A C 369), In the first‑mentioned case, following the views expressed in the second‑mentioned case, it was held that while the provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible have retros pective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively, in the absence of express enactment or necessary intendment. In this case the right of appeal, which had been created for the first time by a new law was denied on the ground that such a right, if recognised, would deprive the existing orders of their finality, because when those orders were passed, no such right of appeal existed. In the second‑mentioned case the right of appeal to His Majesty‑in‑Council, which existed before, was taken away by a new law. It was held that the change in law did not affect the exercise of the existing right of appeal to His Majesty‑in‑Council.. It was, however, observed that if the‑matter in dispute had been a matter of procedure only, the right claimed by the appellant would have been recognised, but as it related to a right which vested in the appellant at the date of the passing of the Act, the appellant could not be deprived of it.
4. The distinction between laws relating to matters of proce dure and those affecting or creating substantive rights, is no very material for the purpose of the present case, because what ever might be the nature of the disputed law, the question requiring decision is whether the framers ‑of the Constitution did intend to apply the provisions of the clause (1) of Article 4 prospectively or retrospectively. The language used in the clause, M in my opinion, does not indicate that the intention was to apply this clause retrospectively and; therefore, the inference is that pro cedural laws and as well as laws relating to substantive rights were to be deemed to be void from the date the new Constitution came into force, if they came into conflict with the fundamental rights guaranteed by Part II of the Constitution. These two authorities, therefore, are of no help in deciding the precise points which are in dispute in the present case, namely, whether the proceedings pending against the petitioner, when the Constitution came into force, were saved and if so to what extent. For the decision of these points no authority of any of our own High Courts, or of our Supreme Court was cited at the Bar, but reference was made to certain authorities of the Indian Courts in which these points have been dealt with and which, in my opinion, can be kept in mind in arriving at a correct decision.
5. In Keshavan Madhava Menon v. The State of Bombay (A I R 1951 128), the majority view was that Article 13 (1) (which corresponds to Article 4 (1) of our own Constitution) could have no retrospec tive operation, but was wholly prospective. It was held that if an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Con stitution, became void with respect to the exercise of any of the fundamental rights, the inconsistent law was not wiped out so far as Vie past acts were concerned and that the proceedings pending at the date of the Constitution were not affected. The minority view, however, was that though Article 13 (1) did not have any retrospective operation and the transactions which were past and closed and the rights which had already vested would remain untouched, with regard to matters which were still not determined when the Constitution came into force and with regard to proceeding, which had not yet begun, or were pending at the time of the enforcement of the Constitution, and in which final judgments had not been delivered, a la v which had been declared by the Constitution to be completely ineffectual could no longer be applied.
6. In another case decided by the Supreme Court of India, which has been reported as Lachmandas Kewalram and another v. The State of Bombay (A I R 1952 S C 235), the majority took the same view as was the minority view in the first‑mentioned case. It was held that .‑
"The application of the discriminatory procedure to their cases after the date of the Constitution constituted a breach of their fundamental right guaranteed by Article 14 and being inconsistent with the provisions of that Article, the special procedure became void under Article 13 and as there is no vested right or liability in matters of procedure the appellants are entitled to be tried according to the ordinary procedure after the date of the Constitution. Their complaint is not for something that had happened before the 26th January 1950, but is for unconstitutional discrimination shown against them since that date. Their grievance, their cause of action as it were, is post‑Constitution and, therefore, must be scrutinised and examined in the light of their constitutional rights. So viewed, there can be no doubt or question that they have been discriminated against after the date of the Constitution in the matte: of procedure * * * * * * *. Indeed, in a sense the Special Judge's jurisdiction came to an end for he was enjoined to proceed only according to the special procedure and that procedure having become void as stated above, he could not proceed at all as a Judge of a Special Court constituted under the impugned Act."
I am in respectful agreement with these views and applying them to the facts of the present case there should be no difficulty in holding that, at least, in procedural matters on and from the Constitution Day those provisions of the Regulation which were discriminatory in nature could not be applied even in relation to proceedings which were pending before that date
7. In yet another case which came up before the Supreme Court of India Syed Qasim Razvi v. State of Hyderabad (AIR 1953 S C 151), the majority, without disagreeing with the majority view expressed in Lachmandas's case referred to above, for reasons which are not very intelligible, came to the conclusion that the discriminatory provisions of law could be separated from the rest and even without them a fair measure of equality in the matter of proce dure could be secured to the accused. The minority, consisting of two of the Judges, however, relying on Lachmandas's case, came to a different conclusion and held that as the discriminatory provisions were not sever able from the rest of the Regulation, the trial held under the Regulation was void in view of the provisions of Article 13, 14 and 21 of the Constitution.
8. The learned Assistant Advocate‑General also referred to the provisions of, section 6 of the General Clauses Act, 1897, and contended that the proceedings which were pending against the petitioner at the time of the coming into force of the Constitu tion were saved as well as the orders which were passed in these proceedings after the said date. Though this is not the case of the repeal of a statute to which the provisions of section 6 of the General Clauses Act, if strictly construed would be held applicable it may have to be treated in the same way as a case of repeal of a statute and decided on the basis of the rules laid down in section 6 of that Act, which is based substantially on section 38(2) of the Interpretation Act, 1889. Before the last‑mentioned Act came into force, the practice in England was to insert in most of the repealing statutes a clause to save actions taken, liabilities incurred and rights accrued under the repealed enactments. In the absence of such a savings clause, however, the position in the words of a well‑known Judge, as given at page 131 of Keshavan Madhava Menon's case was as follows :‑
"The object of repealing a statute is to obliterate it com pletely from the records of Parliament as if it had never passed and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law".
If this strict rule of interpretation is applied, it would follow that only the proceedings which had been taken under the Regula tion and had been completed before the Constitution Day were saved, but if something had still to be done, no further action could be taken after the Constitution Day under those provisions of the Regulation which become void. On this view of the case, therefore, the Commissioner's order passed on the 28th of July 1956, must be held to be void.
9. If, however, it be held that the provisions of section 6 of the General Clauses Act, 1897, would be applicable to this case, the question would arise whether all the proceedings taken under the Regulation would be saved, or only those which came within the purview of clauses (b) or (e), on which reliance was placed by the learned Assistant Advocate‑General. These two clauses are worded as follows :‑
"6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not‑
(a) * * * * *
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or
(c) * * * * *
(d) * * * * *
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ;
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 repealing Act or Regulation had not been passed."
If clause (b) is held applicable the meaning of the expression "any thing duly done or suffered thereunder" will have to be found out with reference to the proceedings in question. In my opinion, the reference to the Council of Elders, their finding that the petitioner was guilty of the offence of murder and the order passed by the Deputy 'Commissioner convicting the petitioner under section 11 of the Regulation, would amount to things done and suffered thereunder, within the meaning of this clause and these proceedings having been taken before the Constitution Day, the same would be saved, even though section 11 of the Regulation became void after that date. The proceedings which were taken after the Constitution Day would not, however, be saved by the application of clause (b).
10. As to the application of clause (e), the petitioner had, no doubt, incurred the liability of being tried for the offence of murder before the Constitution Day and that liability still attaches to him. The State, however, had not acquired any "right" to have the petitioner tried under any particular law, or by any particular procedure and, therefore, no such "right" could be considered to have been saved by the implied repeal of section 12 of the Regulation. If any punishment had been imposed before the Constitution Day, that also could have been saved, but as the order imposing punishment on the petitioner was subject to confirmation by the Commissioner and as without being confirmed that order could not have become operative, it cannot be said that any punishment had, in fact, been imposed on the petitioner before the Constitution Day. It follows that the power of the Deputy Commissioner to impose punishments and that of the Commissioner to confirm the Deputy Commissioner's orders could not be saved, by virtue of clause (c). As from the Con stitution Day section 12 of the Regulation became void, on and from that date, the Deputy Commissioner could not impose any punishment, nor could the Commissioner confirm any such order passed by the Deputy Commissioner prior to that date. Even on this view of the law, the Commissioner's order confirming that of the Deputy Commissioner must be held to be inoperative, as it was passed under a law which had become void before the order was passed.
11. From whatever point of view the case is looked at, the order dated the 28th July, 1956, passed by the Commissioner, under subsection (2) of section 12 of the Regulation, cannot be upheld and the petitioner cannot be allowed to be kept in deten tion in pursuance of that order. This, however, would not mean that the liability which the petitioner had incurred before the Constitution Day of being tried for the offence of his brother's murder also came to an end with the coming into force of the Constitution. That liability still attaches to him and he can still be tried under the ordinary law for the alleged commission of that offence.
A. H. Order accordingly.
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