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Criminal Appeal No. 981 of 1958, decided on 4th March 1959.

Pakistan Criminal Law (Amendment) Act (XL of 1958), S. 3 (2) (b) read with S. 14‑Additional District Magistrate appointed as a Special Judge under Pakistan Criminal Law (Amendment) Act (XIX of 1948) (as amended)‑Not competent to continue to try case as Special Judge if he .had not exercised powers as Additional District Magistrate for a period of 3 years by 23‑9‑1958 the date of coming into force of Act XL of 1958.

Said Akbar for Appellant.

Maqbool Ahmad, P. P. Spl. P. E. and Abid Hassan Minto for A. G. for Respondent.

Date of hearing : 2nd March 1959.

This is an appeal by Alam Khan, who was a Forester at Ghoragali Range, Murree, and has been convicted under section 161, P. P. C., and sentenced to one year's rigorous imprisonment, and a fine of Rs. 200, in default of payment of which he has been ordered to undergo further rigorous imprison ment for six months. This conviction was recorded on 27th November 1958 by Mian Abdus Sattar, Additional District Magistrate, Rawalpindi, as Special Judge. He was appointed Additional District Magistrate on or about the 14th March 1957.

2. The learned counsel for the appellant contends that the proceedings taken by the learned Special Judge after the 23rd September 1958, when Pakistan Criminal Law (Amendment) Act, 1958 (Act No. XL of 1958) came into force, are null and void, because he did not possess the qualifications of a Special Judge as provided in subsection (2) of section 3 of the Act, and he could not act as a Special Judge, when he convicted the appellant.

3. The qualifications for appointment as a Special Judge have been changed from time to time. Subsection (1) of section 3 of the Pakistan Criminal Law Amendment Act, 1948 (Act No. XIX of 1948), which came into force on the 11th June 1948, enabled the Central Government to appoint Special Judges to try and punish offences specified in the schedule appended to the Act and such other offences as might be notified by the Government from time to time in the official Gazette. Subsection (2) of section 3 provided the qualifications of Special Judges as follows :‑

" (2)‑ No person shall be appointed as a Special Judge unless he,‑

(a) is qualified under subsection (3) of section 220 of the Government of India Act, 1935, for appointment as Judge of a High Court ; or

(b) has, for a period of not less than three years exercised, whether continuously or not, the powers under the Code of Criminal Procedure, 1898, of a Sessions Judge, Additional Sessions Judge or a District Magistrate."

This Act was amended by the Criminal Law Amendment Act, 1953 (Act XXXVII of 1953), which came into force on the 17th November 1953. The following provisions were substituted for section 3 of the above Act :‑

"3. (1) The appropriate Government shall, by notification in the official Gazette, appoint as many Special Judges as may be necessary to try and punish offences specified in the First and Second Schedules and such other offences as may be notified by it from time to time in the official Gazette.

(2) Any person, not being a person who has at any time been removed or dismissed from Government service, or has retired from suc1,i service, shall be qualified for appointment as a Special Ridge if he is or has been a Sessions Judge or an Additional or Assistant Sessions Judge or a District Magistrate for not less than three years."

By subsections (3) and (4) of section 4 of this Act, offences specified in the Second Schedule were made exclusively triable by Special Judges and pending cases stood transferred to them. This provision was further amended by section 2 of the Pakistan Criminal Law Amendment (Amendment) Act, 1954 (Act No. IV of 1954) enforced on 8th April 1954, which brought in the following provisions :‑

(1) Offences specified in the First Schedule and offences notified by the appropriate Government in the official Gazette may and offences specified in the Second Schedule shall be tried by Special Judges under this Act.

(2) The appropriate Government shall, by notification in the official Gazette, appoint as many Special Judges as may be necessary to try and punish offences specified in the First and Second Schedules and such other offences as may be notified by it from time to time in the official Gazette.

"(3) Any person, not being a person who has at any time been removed or dismissed from Government service or who has retired from such service, shall be qualified for appointment as a Special Judge if he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge or a District Magistrate or an Additional District Magistrate,"

4. It will be noticed that Additional District Magistrates were brought in for the first time and the qualification of having acted as Sessions Judge, Additional or Assistant Sessions Judge or District Magistrate for not less than three years was omitted. Section 3 of the Pakistan Criminal Law (Amendment) Act, 1958, now provides as under :‑

" 3. (1) The appropriate Government shall, by notification in the official Gazette, appoint as many Special Judges as may be necessary to try and punish offences specified in the Schedule.

(2) No person shall be appointed a Special Judge unless he‑

(a) is qualified under Article 167 of the Constitution for appointment as Judge of a High Court ; or

(b) has, for a period of not less than three years, exercised, whether continuously or not the powers under the Code of Criminal Procedure, 1898, of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, or of a District Magistrate or an Additional District Magistrate."

Under this Act the appropriate Government has to make a notifica tion in the official Gazette appointing as many Special Judges as may be necessary to try and punish offences specified in the schedule, but no person can be appointed as a Special Judge unless he is qualified under Article 167 of the Constitution (since abrogated) for appointment as a Judge of a High Court, or has, for a period of not less than three years, exercised, whether continuously or otherwise, the powers under the Code of Criminal Procedure of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, or of a District Magistrate or an Additional District Magistrate. Mian Abdus Sattar became an Additional District Magistrate on or about the 14th March 1957 and is not thus competent or qualified to be appointed as or to act as a Special Judge. He was acting as a Special Judge under notification of Government of Punjab in the Home Department dated 13th April 1954 published in the Home Department Gazette dated 23rd April 1954, which is to the following effect :‑

" In exercise of the powers eonferred by subsection (2) read with subsection (3) of section 3 of the Pakistan Criminal Law Amendment Act, 1948, the Governor of the Punjab is pleased to appoint all Additional District Magistrates in the Punjab as Special Judges in addition to their own duties to try and punish offences triable under the said Act."

By another notification of the Government of Punjab, of even date bearing the same number, Additional District Magistrates had jurisdiction to try cases under the Act within the limits of the district in which they were appointed as Additional District Magistrate. Under Act XL of 1958, Government of West Pakistan in the Home Department has issued notification dated 18th December 1958 in the West Pakistan Gazette of even (late as follows :‑

"No. 13/73‑H. Judicial 1958.‑In exercise of the powers conferred by subsection (1) of section 3 and subsection (t) of section 4 of the Pakistan Criminal Law Amendment Act, 1958 and in supersession of all the notifications issued by the integrating units of the Province of West Pakistan under sub section (2) of section 3 and subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1948, the Governor of the West Pakistan is pleased to appoint all Sessions Judges, Additional Sessions Judges, District Magistrates and Additional District Magistrates in the Province of West Pakistan who have for a period of not less than three years exercised whether conti nuously or not, the powers under the Criminal Procedure Code, 1898, of a Sessions Judge or an Additional Sessions Judge, District Magistrate or an Additional District Magistrate to be ex‑officio Special Judges within their respective Sessions Divisions/ Districts for the trial of offences under the said Act."

5. It is conceded before me by Mr. Maqbool Ahmad P. P. that Mian Abdus Sattar cannot act as Special Judge under the notification dated the 18th December 1958 and is not qualified to act as a Special Judge under Act XL of 1958. He, however, contends that as he as Additional District Magistrate exercised the powers of a Special Judge under notification dated the 13th April 1954, the proceedings taken by him even after the 23rd of September 1958 were valid because of section 14 of the Pakistan Criminal Law Amendment Act 1958 and section 24 of the General Clauses Act, 1897 (Act X of 1897).

6. Section 14 of the Pakistan Criminal Law Amendment Act, 1958, provides as follows :‑

" 14.‑(1) The Pakistan Criminal Law Amendment Act, 1948, is hereby repealed.

(2) Anything done or action taken before the commencement of this Act during any trial or proceedings before a Special Judge or otherwise under the aforesaid Act shall be deemed to have been done or taken under this Act as if this Act were in force at the time such thing was done or action taken."

Subsection (1) of this section repeals the Pakistan Criminal Law Amendment Act, 1948, and subsection (2) thereof keeps alive anything done or action taken before the commencement of the Act', but not those done or taken after the Act came into force. Subsection (2) of this section is, therefore, a validating provision in respect of the proceedings taken under the repealed Act prior to 23rd September 1958. There is no challenge by the learned counsel for the appellant to the validity of the proceedings taken by the Special Judge before 23rd September 1958, but the challenge is in respect of the proceedings taken after that date including the judgment passed by him. Section 14 of Act XL of 1958 has thus no bearing on the question before me.

7. The argument of Mr. Maqbool Ahmad, Public Prosecutor, that the appointment of Mian Abdus Sattar enabled him to continue to try this case as a Special Judge under the provisions of Criminal Law Amendment Act 1948, as amended by virtue of section 24 of the General Clauses Act, has no force. This provision enacts as follows :‑

" 24. Where any Central Act or Regulation is, after the commencement of this Act, repealed and re‑enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye‑law, made or issued under the repealed Act or Regulation, shall, so far as it is not deemed to have been made or issued under the provisions so re‑enacted, unless and until it is superseded by any appointment, notification order, scheme, rule, form or bye‑law made or issued under the provisions so re enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5‑A of the Scheduled Districts Act, 1874, or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and re‑extended to such area or any part thereof the provisions of such Act or Regulation shall be deemed to have been repealed and re‑enacted in such area or part within the meaning of this section."

For the present case, subsection (2) of section 3 of the Criminal Law Amendment Act, 1958, provides qualifications of Special Judges expressly otherwise ' and inconsistent with the prior provisions, namely, subsection (2) of section 3 of Criminal Law Amendment Act, 1948, as amended by the Criminal, Law Amendment (Amendment) Act, 1954. The learned Special Judge, by reason of subsection (2) of section 3 of Act XL of 1'958, became in competent to act as a Special Judge. Therefore, his power oz capacity to act under a notification as a Special Judge under a law which was purposely changed by the Legislature cannot continue in him the power to try cases as a Special Judge after the 23rd Sep tember 1958 in express disregard of subsection (2) of section 3 of Act XL of 1958. The notification dated 23rd April 1954, in so far as it is inconsistent with the provision re‑enacted is of no avail in the case of Mian Abdus Sattar, who became incompetent in law to act as a Special Judge. The proceedings taken by him from 23rd September 1958 are thus incompetent.

8. As the trial Court did not possess the necessary qualifica tion for acting as a Special Judge as were enacted by subsection (2) of section 3 of the Act, the proceedings taken by the trial Court from and after 23rd September 1958, are without jurisdiction, null and void. The order of conviction of the appellant passed by Mian Abdus attar, must, therefore, be set aside.

9. The case is remanded for re‑trial from the stage it had reached on 16th September 1958. The proceedings taken in the case on and from 30th September 1958 are set aside. The trial of the case must, therefore, proceed from that stage by a Court competent to try the case under the law. Pending retrial, the appellant shall be released on bail on furnishing a personal bond in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of the Deputy Registrar of this Court.

A. H. Re‑trial ordered.

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