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Criminal Revision Application No. 104 of 1962, decided on 15th October 1962.

(VI of 1956), S. 4 General Clauses Act (X of 1897), S. 6. A person was challaned under the Sind Control of Goondas Act, 1952. While the proceedings were pending this Act was repealed and replaced by the West Pakistan Control of Goondas Ordinance, 1959 and the person was subsequently convicted and declared a Goonda under section 13 of the Ordi nance :

that section 29 of the West Pakistan Control of Goondas Ordinance, 1959, which repealed the Sind Control of Goondas Act, 1952, makes no provision for pending cases. In these circumstances recourse must be had to section 4 of the West Pakistan General Clauses Act, 1956, the language of which is mandatory and says that repeal shall not affect a pending legal proceeding which may be continued as if the repealing Act had not been passed. In the face of these express words the proceedings against the person having commenced under the Sind Control of Goondas Act, 1952 his subsequent conviction under the West Pakistan Control of Goondas Ordinance, 1959 was not a mere irregularity but an illegality vitiating his convic tion.

Akhtar v. The State P L D 1961 Lah. 1049 ref.

Azizullah Shaikh for Applicant.

R. A. Minwalla for Respondent.

Date of hearing : 11th October 1962.

The applicant Syed Ali Shah with three others was challaned on 24-10-1958, by the Station House Officer A' Section Police Station, Sukkur in the Court of the District Magistrate and Tribunal Sukkur under the Sind Control of Goondas Act of 1952. In the course of the proceedings the A.P.P. raised a legal objection to the joint trial of the four accused. This objection was upheld and proceedings were then started separa tely against each of the accused. In the meanwhile, the Sind Control of Goondas Act 1952, had been repealed by the West Pakistan Control of Goondas Ordinance of 1959 (Ordinance XXXV of 1959), which came into effect as from 4th June 1959. On 27-8-196 0, a fresh charge containing the allegations against the applicant and signed by the District Magistrate and Tribunal Sukkur was read over and explained to the applicant to which he pleaded not guilty and claimed to be tried.

2. That same day the applicant submitted a written application to the Tribunal praying for an adjournment of his case owing to the non-availability of his Advocate and the Tribunal passed the following order

"The main case has been split up and the case is to proceed afresh. This is the first hearing. Hence the request is granted in the interest of justice."

The case then proceeded on subsequent hearings and on 16-9-1961, the applicant was convicted under section 13 of the West Pakistan Control of Goondas Ordinance of 1959, was declared a Goonda under section 13 and under section 14 he was directed to furnish a bond in the sum of Rs. 1,000 with two sureties each solvent in the like amount, to be able to control his activities to be of good behaviour for a period of two years. It was further ordered that in case of default the applicant be remanded to jail to suffer rigorous imprisonment for a period of two years or till the specified sureties are furnished earlier. Against this order an appeal was preferred on behalf of the applicant under section 18 of Ordinance XXXV of 1959, to the Commissioner, Khairpur Division which was dismissed on 8-3-1962. Hence the present revision application to this High Court praying that as the order of the- trial Court was without jurisdiction and the appellate Court had failed to exercise the jurisdiction vested in it this Honourable High Court would be pleased to revise the orders of the lower Courts and set aside the conviction.

3. Appearing on behalf of the applicant Mr. Azizullah K. Sheikh, Barrister-at-Law contended that the proceedings against the applicant had been vitiated by the fact that he was challaned under one Act and convicted under the Successor Act or Ordinance. The applicant was challaned under the Sind Control of Goondas Act of 1952. Section 29 of the West Pakistan Control of Goondas Ordinance of 1959, repealed the Sind Control of Goondas Act of 1952, in toto without, at the same time, making any provision for pending cases. In these circumstances recourse must be had to the West Pakistan General Clauses Act 1956, section 4 (1) (e) of which provides that where legal proceedings are instituted under an enactment subse quently repealed then, unless a different intention appears, the repeal shall not affect such legal proceeding which may be continued as if the Repealing Act had not been passed. Therefore, the learned counsel argued that his client should have been convicted under the same Act under which he was challaned namely the Sind Control of Goondas Act of 1952, and his conviction under the latter Ordinance is without jurisdiction. Mr. Azizullah's second contention was that no complaint in compliance with the provisions of Ordinance XXXV of 1959, had at any time been preferred against his client so that his client's conviction under this Ordinance was without jurisdiction and, therefore, illegal. Mr. Azizullah relied upon the case of Akhtar v. The State (P L D 1961 Lah. 1049).

4. Mr. R. A. Minwalla appearing on behalf of the State contended that although these proceedings had originally been started against the applicant and three others on a valid complaint under the Sind Control of Goondas Act of 1952, in October 1958, yet, after the joint trial had been abandoned separate proceedings under Ordinance XXXV-of 1959, were taken against the present applicant and these fresh proceedings commenced with the charge-sheet read out to him on 27-8-1960, by the District Magistrate and Tribunal, Sukkur, Thus, the trial and conviction of the applicant commenced and ended under Ordi nance XXXV of 1959.

5. I have carefully considered the arguments advanced at the Bar. To me it is plain that these proceedings against the applicant and three others were originally set in motion in October 1958, by a valid complaint under the Sind Control of Goondas Act of 1952, and in compliance with the provisions of that Act. Section 7 of that Act required that for a Tribunal to take cognizance of a case under this Act the complaint must be from a police officer of the Area concerned not lower in rank than a Sub-Inspector and who has taken part in the investigation of the case. The complaint must be signed by him and it must briefly set out the practices with which the person complained against is charged, instances, with details of time and place of such practices. Such a complaint was filed against the applicant and it continues to be on the record before me. The case against the applicant, then, having been commenced under the Sind Control of Goondas Act of 1952, it should have been completed under this Act. Although- this Act was repealed by Ordinance A XXXV of 1959, yet this Ordinance makes no provision for pending cases. It, therefore, becomes necessary to fall back upon the West Pakistan General Clauses Act, 1956. Section 4(l)(e) of this Act is in these words

"Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not-affect any investigation, legal proceeding 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, forfei ture or punishment may be imposed as if the Repealing Act had not been passed."

These proceedings having been commenced under the Act of 1952, should have been continued and completed under the same Act. But, in this case, this has not been done and this is the error that vitiates the conviction of the applicant in this case.

6. In the case of Akhtar v. The State the following passage appears "In Ordinance XXXV of 1959, there is no indication whatso ever that the pending proceedings are to be dropped or that they are to be governed by the new law. Thus, there being nothing to the contrary, the provisions of section 4(1)(e) of the West Pakistan General Clauses Act would apply, with the result that the proceedings which were pending before the District Tribunal, consisting of the District Magistrate and the Superintendent of Police, would be continued under the provisions of the Punjab Control of Goondas Act, 1951, under which they were initiated notwithstanding its repeal. These proceedings carried their own law with them and had to be decided under the Act of 1951, and not under the Ordinance of 1959. The authorities cited by Mr. Saeed-ur-Rahman, appearing for the State, leave no doubt that this case is fully covered by the provisions of section 4 of the West Pakistan General Clauses Act or section 6 of the General Clauses Act of 1897. I, therefore, see no force in the contention put forward on behalf of the petitioners and would dismiss the petitions.

7. Similarly in the present case the proceedings against the applicant having been started under the Act of 1952, had in the absence of any express provision in the Repealing Ordinance of 1959, providing for pending cases to be completed under the Act of 1952. Mr. Minwalla attempted to distinguish this Lahore Case from the present case on the ground that in the Lahore Case the composition of the Tribunal under the two Acts was essentially different. Under the 1951 Act, the Tribunal comprised the District Magistrate as well as the Superintendent of Police of the District whereas under the 1959, Ordinance the Tribunal consists only of the District Magistrate. In our case there is no such difference between the Sind Control of Goondas Act of 1952, and the Ordinance of 1959, the provisions of the two being almost the same. The punishment imposed by the Tribunal under the Ordinance XXXV of 1959, could equally have been imposed by it under the Act of 1952. But, this argument cannot be of assistance to the State counsel in this matter. The Criminal Law and all penal enactments have to be very strictly construed and in the present case the conviction clearly has been under the Ordinance of 1959. That the Tribunal could have imposed the same penalty under the Act of 1952, is no excuse for this illegality in commencing the trial under one Act and concluding it under another. Nor can it be said that this is a mere irregularity and not an illegality. The language of section 4 is mandatory and it says that the repeal shall not affect a pending legal proceeding which may be continued as if the Repealing Act had not been passed. In the face of these expressive words it cannot be held that the mistake committed in this matter is a mere irregularity and not an illegality.

8. It was contended by the counsel appearing on behalf of the State that the separate proceedings against the applicant had started under the Ordinance of 1959, with the reading of a fresh charge-sheet to him by the Tribunal and District Magistrate, Sukkur on 27-8-1960. If this charge-sheet which does not appear in the paper book but is to be found at page 7 of the R. & P. of the lower Court is to be taken as the commencement of these separate proceedings against the applicant then, it is plain that this charge-sheet is no complaint at all within the meaning of section 5 (2) of the 1959 Ordinance. Section 5 of this Ordi nance is in more or less the same terms as section 7 of the 1952, Act and it requires that the information shall be signed by the police officer concerned and shall briefly set out (a) the practices with which the person complained against is charged and (b) instances, with details of time and place of such practices. The present charge-sheet appearing at page 7 of the R & P contains none of these particulars. It is signed by the District Magistrate and Tribunal Sukkur and not by the police officer concerned. It is, therefore, clearly not a complaint within the meaning of section 5 and the Tribunal had no right to take cognizance of the case against the applicant on the strength of the writing on this piece of paper which under no circumstances can be termed as a complaint. These proceedings, then, being without jurisdic tion have no basis in law and must be set aside.

9. In the result, therefore, I am of opinion that this revision application must be allowed. The Tribunal and District Magis trate, Sukkur has erred in law in concluding under the Ordinance of 1959, a case commenced under the Act of 1952. The charge -sheet signed by the Tribunal and District Magistrate, Sukkur, on 27-8-1960, is no complaint within the meaning of section 5 of Ordinance XXXV of 1959. 1, therefore, set aside the order of the two Courts below in this matter.

K. B. A.

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