1992 S C M R 602

[Supreme Court of Pakistan]

Present: Shafiur Rahman, Abdul Shakurul Salam, Ajmal Mian, Rustam S. Sidhwa and
Muhammad Rafiq Tarar, JJ

GOVERNMENT OF PUNJAB through Secretary,
Home Department---Appellant

versus

ZIA ULLAH KHAN and 2 others---Respondents

Civil Appeal No.680 of 1989, decided on 8th January, 1992.

(From the judgment dated 30-9-1989 passed by Lahore High Court, Lahore in Writ Petition
No.5094 of 1987).

(a) Constitution of Pakistan (1973)---

----Art. ia5(3)---Leave to appeal was granted for the reason that the questions raised in the
petition were common to a large number of other cases and related to the interpretation of
Constitutional provisions of public importance having general effect.

(b) Special Courts for Speedy Trials Ordinance (II of-1987)---

----Preamble---Legislative history.

(c) Constitution of Pakistan (1973)---

----Art. 264---Where, a law is repealed or deemed to have been repealed by, under or by virtue of
the Constitution, the repeal shall not, except as otherwise provided in the Constitution,' affect the
previous operation of the law or anything duly done or suffered under the law.

(d) General Clauses Act (X of 1897)--

----S. 6-A---Effect---When an amending Act, whereby the text of a Central Act or Regulation
was amended, is repealed, then, unless a different intention appears, the repeal is not to affect the
continuance of any such amendment made by the amending enactment so repealed---Effect of
S.6-A is that, in spite of the repeal of an amending Act, the amendment, if it was in the text of
any Act or Regulation, was to continue.

(e) General Clauses Act (X of 1897)---

----Preamble---Act cannot be used in aid while construing a Constitutional provision in the
absence of making the same applicable through a Constitutional provision.

(f) Constitution of Pakistan (1973)---

----Art. 264(b)---General Clauses Act (X of 1897), S.6-A---Article 264(b), Constitution of
Pakistan (1973), cannot be equated with S.6-A, General Clauses Act, 1897.

(g) General Clauses Act (X of 1897)---

----S. 6-A---Constitution of Pakistan (1973), Art.264(b)---Article 264(b), Constitution of
Pakistan (1973), cannot be equated with S.6-A, General Clauses Act, 1897.

(h) General Clauses Act (X of 1897)---

----S. 6---Constitution of Pakistan (1973), Art.264(b)---Section 6 of the General Clauses Act,
1897 is couched in terms of Art.264, Constitution of Pakistan (1973) if both provisions are put in
juxtaposition.

(i) Constitution of Pakistan (1973)---

----Art. 264(b)---General Clauses Act (X of 1897), S.6---Section 6 of the General Clauses Act,
1897 is couched in terms of Art.264, Constitution of Pakistan (1973) if both provisions are put in
juxtaposition.

(j) Constitution of Pakistan (1973)---

----Art. 89---Ordinance is a temporary legislation and cannot be given permanency in the
absence of any sound legal principle or backing.

Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 and
Gooderham and Worts Ltd. v. Canadian Broadcasting Corporation A I R 1949 PC 90; Crawford
Statutory Construction and Interpretation of Statutes by Maxwell 12th Edn. ref.

(k) Constitution of Pakistan (1973)---

----Art. 89---Ordinance if not approved by both the Houses before the expiry of four months
from its promulgation, the same shall stand repealed---Rationale behind providing an outer limit
of four months.

Article 89 of the Constitution envisages that, if an Ordinance is not approved by both the Houses
before the expiry of four months from its promulgation, the same shall stand repealed. The above
clear Constitutional mandate cannot be defeated by pressing into service any rule of construction
of statutes or a provision of a statute which cannot be pressed in aid while construing a
Constitutional provision.

Article 89 of the Constitution empowers the President to' promulgate an Ordinance when the
National Assembly is not in session or stands dissolved and he (the President) upon being
satisfied that the circumstances exist which render it necessary to take immediate action. Such an
Ordinance is to last, at the most, for four months, if not approved or if not rejected by the
parliament earlier or withdrawn by the President in terms of sub-clause (a) of clause (2) of the
above Article 89 of the Constitution.

The rationale behind providing an outer limit of four months for an Ordinance seems to be that
even if the National Assembly or a Provincial Assembly stands dissolved at the time of
promulgation of an Ordinance, the election of it is to take place within 90 days from the date of
its dissolution in terms of clause 5 of Article 48 of the Constitution.

(l) Constitution of Pakistan (1973)--- --

----Art. 89(2)(a)---Ordinance having not been placed for approval before the Parliament within
time limit of four months in terms of Art.89(2)(a) of the Constitution of Pakistan (1973), it stood
repealed with the amendments contained therein upon the expiry of four months from the date of
its promulgation.

(m) Special Courts for Speedy Trials Ordinance (II of 1987)--

----Preamble---Special Courts for Speedy Trials Act (XV of 1987), Preamble [as amended by
Special Courts for Speedy Trials (Amendment) Ordinance (XIX of 1988)]---Constitution of
Pakistan (1973), Art.89(2)(a)---Special Courts for Speedy Trials (Amendment) Ordinance, 1988
having not been placed for approval before the Parliament within time limit of four months in
terms of Art.89(2)(a) of the Constitution of Pakistan (1973), it stood repealed with the
amendments contained therein upon the expiry of four months from the date of its
promulgation---Government, however, could take whatever curative actions which were open to
it in accordance with law.

Maqbool Elahi Malik, Advocate-General, Punjab, Irfan Qadir Addl. A: G. Punjab and Rao
Muhammad Yousaf Khan Advocate-on-Record for Appellant.
Respondents Nos.l and 2: Ex parte.
Raza Qazim and Raja Abdul Razaq, Advocates Supreme Court and Sh. Sabahuddin and SAA.
Jafri, Advocates-on-Record for the Remaining Respondents.

Date of hearing: 22nd December, 1991,

JUDGMENT
AJMAL MIAN, J.---This is an appeal, with the leave of this Court, against the judgment dated
30-9-1989, passed by a Division Bench of the Lahore High Court, Lahore in Writ Petition No.
5094 of 1987, 65 connected Writ Petitions and two criminal revision petitions, filed by various
persons including respondents 1 and 2, impugning the orders of the Government of Punjab,
passed under section 5 of the Special Courts for Speedy Trials Ordinance II of 1987 and Special
Courts for Speedy Trials Act XV of 1987, hereinafter referred to as `the Act', directing the
criminal cases against them be tried by the Special Courts for Speedy Trials. The provisions of
the Act were also challenged on the ground of being discriminatory and violative of Article 25
and other provisions of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter
referred to as `the Constitution'. The High Court, through a very elaborate judgment, held as
follows:--

"The conclusions that follows from the foregoing discussion are summarised hereunder:

(i) That the impugned legislation though discriminatory being disadvantageous / prejudicial to
the accused subjected to trial before the Special Courts for Speedy Trials are not hit by Article 25
of the Constitution as the impugned law has provided for reasonable classification permissible in
law.

(ii) That the provisions of section 8 of the impugned Act/Ordinance in so far as they permit the
trial of an accused person in absentia are violative of Article 10 of the Constitution.


(iii) That the amending Ordinance XIX of 1988 stood repealed on the expiration of four months
from its legislation and its provisions particularly the provisions seeking to extend the life of the
main Act from one year to two years have not survived the repeal.

(iv) Consequently, Act XV of 1987 was operative only up to the date of the repeal of the
amending Ordinance:'

2. After having held as above, the High Court granted the following reliefs:

"As a consequence of the findings hereinbefore recorded, we hold and declare that all
orders/Notifications issued by the Government under section 5 of Act XV of 1987 after the date
of its expiry i.e. with effect from the day of repeal of the amending Ordinance XIX of 1988 and
all proceedings pending or taken, trial of cases held, orders/judgments passed by any Special
Courts established under the said Act, were taken held and passed without lawful authority and
of no legal effect.

It is further declared that any proceedings pending in any Special Court for Speedy Trials in
pursuance of any order/ Notification issued by the Government under section 5 of Ordinance II
of 1987 and Act XV of 1987 during the period that they were in effective operation cannot
proceed as no Special Court for Speedy Trials exits after the expiry of Act XV of 1987 as
aforementioned.

3. The Government of Punjab, being aggrieved by the above judgment, filed a petition for leave
to appeal, which was granted for the reason that the questions raised in the petition were
common to a large number of other cases and related to the interpretation of Constitutional
provisions of public importance having general effect. While granting the above leave, the effect
of the impugned judgment was suspended so as not to affect the proceedings taken by, the
Special Courts after the 13th February, 1989 till the date of impugned judgment.

4. The brief facts are that Special Courts for Speedy Trials Ordinance II of 1987 was
promulgated by the President of Pakistan on 26-7-1987, the Preamble to the same provided the
object by stating that "it is expedient in the public interest to provide for the establishment of
Speedy Courts for Speedy Trial of certain offences". The above Ordinance was repealed and
replaced by the Act, the assent to which was given by the President on 8-11-1987, but it was
published in the Gazette of Pakistan, Extraordinary on 16-11-1987. It may be observed that its
subsection (2) of section 1 provided that the Act shall remain in force for a period of one year
from the date it was assented to by the President. It was also provided that the Parliament may,
by a resolution of each House, extend the said period for a similar term or terms. The Act
re-enacted the provisions of the aforesaid Ordinance II of 1987 with minor modifications and
additions. Since the provisions of the Ordinance and the Act have been referred to in the
impugned judgment in detail, it is not necessary to repeat the same. However, it may be pertinent
to point out that the President promulgated Amending Ordinance XIV of 1988 (Special Courts
for Speedy Trials (Amendment) Ordinance, on 13-10-1988, whereby inter alia above subsection
(2) of section 1 of the Act was amended by substituting the words `two years' for the words `one
year'. The above-amended subsection (2) reads as follows:

"It extends to the whole of Pakistan and shall remain in force for a period of two years from the
date on which it is assented to by the President."

5. The above Ordinance XIV of 1988 was not placed before the National Assembly in terms of
clause (2) of Article 89 of the Constitution and, consequently, the same stood repealed at the
expiry of four months from its promulgation. It was contended by the Government of Punjab
before the High Court that notwithstanding the factum that the above Ordinance XIV of 1988
stood repealed, the amendment made in subsection (2) of section 1 of the Act, remained
operative. However, the High Court repelled the above contention and held as under:

"From the foregoing discussion, it is quite clear that section 6-A of the General Clauses
Act is designed to save the textual amendments made in the parent statute by an
amending Ordinance which has since been repealed. No such saving provision is
admittedly available in the Constitution and the law is well-settled that the provisions of
the General Clauses Act do not apply to Constitutional matters. Absence of such a
specific provision in the Constitution as is contained in section 6-A of the General
Clauses Act is the manifestation of the intention of the framers of the Constitution that
they did not want the amendments/substitution made by an Ordinance in the text of an
Act of the Parliament to survive the repeal of the amending Ordinance. In this view of the
matter, we are constrained to repel the contention of the learned Advocate-General and
we hold that the impugned amendment made by the amending Ordinance No. XIX of
1988 in the parent Act (whereby the life of the Act was extended from one year to two
years) was in force only during the subsistence/currency of the amending Ordinance and
it has not survived the repeal of the said Ordinance. Result, therefore, is that the main
statute viz. Act XV of 1987 remained in force and operative only upto the date of the
repeal of the Ordinance."

6. Before us the only point urged on behalf of the Punjab Government was that the High Court
had wrongly concluded that the amendment made in subsection (2) of section 1 of the Act by
Ordinance XIV of 1988, stood repealed with the Ordinance upon the expiry of four months
period from the date of its promulgation. No other point was urged.

7. In support of the above contention, Mr. Irfan Qadir, learned Additional Advocate-General,
Punjab, has placed reliance on clause (b) of Article 264 of the Constitution. It may be
advantageous to reproduce the, above Article 264, which reads as follows:---

"264. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the
Constitution, the repeal shall not, except as otherwise provided in the Constitution,---

(a) revive anything not in force or existing at the time at which the repeal takes place;

(b) affect the previous operation of the law or anything duly done or suffered under the law;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed
under the law;

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment;

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 law had not been
repealed:'

7-A. A perusal of the above-quoted Article indicates that it, inter alia provides that where a law
is repealed or deemed to have been repealed by, under or by virtue of the Constitution, the repeal
shall not, except as otherwise provided in the Constitution, affect the previous operation of the
law or anything duly done or suffered under the law.

According to Mr. Irfan Qadir, since at the time of repeal of Ordinance XIV of 1988, the period
specified in subsection (2) of section 1 of the Act was two years, operation of the same was not
be affected by virtue of saving by above clause (b) of Article 264 of the Constitution, nor
anything duly done or suffered under the law was to be affected. To reinforce the above
submission, he has relied upon the following passage from Bindra's Interpretation of Statutes, 7th
Edition:

"15. Temporary Statutes:--The effect of the expiry of a temporary statute is really a matter of the
construction of the statute itself. A temporary statute could provide for its effectiveness beyond
its expiry. The general rule in regard to a temporary statute is that, in the absence of special
provision to the contrary, proceedings which are being taken against a person under it will ipso
facto terminate as soon as the statute expires. When a temporary Act is repealed, the proceedings
instituted under such an Act terminate at the time the temporary Act would have otherwise
expired. After the expiry of the Ordinance IV of 1968, if any conviction thereunder is made, it
cannot be upheld, and the prosecution would terminate. There is a difference between temporary
statutes and statutes which are repealed; the latter (except so far as they relate to transaction
already completed under them) become as if they had never existed; but with respect to the
former, the extent of the restrictions imposed and the duration of the provisions are matters of
construction---------------------

8. It may be appropriate, at this juncture, to point out that if section 6-A of the General Clauses
Act, 1897 could have been pressed into service in the present case, the above contention of Mr.
Irfan Qadir would have been sustainable. The above section 6-A reads as follows:

"6-A. Repeal of Act making textual amendment in Act or Regulation. "' Where any Central Act
or Regulation made after the commencement of this Act repeals any enactment by which the text
of any Central Act or Regulation was amended by the express omission, insertion or substitution
of any matter, then, unless a different intention appears, the repeal shall not affect the
continuance of any such amendment made by the enactment so repealed and in operation at the
time of such repeal:'

9. A plain reading of the above section 6-A shows that when an amending Act, whereby the text
of a Central Act or Regulation was amended, is repealed, then, unless a different intention
appears, the repeal is not to affect the continuance of any such amendment made by the
amending enactment so repealed. In other words, the effect of above section 6-A of the General
Clauses Act is that, in spite of the repeal of an amending Act, the amendment, if it was in the text
of any Act or Regulation, was to continue.

10. Mr. Irfan Qadir has not been able to press into service the above section 6-A in the case in
hand, as it is well-settled proposition of law that General Clauses Act cannot be used in aid while
construing a Constitutional provision in the absence of making the same applicable through a
Constitutional provision, as it was provided in Article 219 of the late Constitution of Islamic
Republic of Pakistan, 1956, which provides as under:

"219 (1). Unless the context otherwise requires the General Clauses Act, 1897, shall apply for
the interpretation of the Constitution as it applied for the interpretation of a Central Act, as if the
Constitution were a Central Act.

(') For the application of the General Clauses Act, 1897, to the interpretation of the Constitution,
the Acts repealed by the Constitution shall he deemed to be Central Acts."

11. It may be mentioned that since there is no corresponding provision in the Constitution, the
General Clauses Act cannot be pressed into service in the instant case, as has been rightly
conceded by Mr. Irfan Qadir. However, his submission was that the above clause (b) of Article
264 of the Constitution can be equated with section 6-A of the General Clauses Act. In our view
the above contention is not tenable as in fact, section 6 of the General Clauses Act, and not its
section 6-A, is couched in terms of Article 264 of the Constitution, which is evident, if we were
to place the above two provisions in juxtaposition. The above section 6 reads as follows:--

"6. Effect of repeal.--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) revive anything not in force or existing at the time at which the repeal takes effect; or

(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

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or

(e) 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, forfeiture or punishment may be imposed as if the repealing Act or
Regulation had not been passed."

12. It may be stated that an Ordinance is a temporary legislation. It cannot be given permanency
in the absence of any sound legal principle or backing of law. In this regard it may be
advantageous to quote the following passage from the judgment of this Court in the case of
Mahreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397):

"It will be seen that this Article intended to make provision for emergency or temporary
legislation at any time when the Provincial Assembly stands dissolved or is not in session, and it
is for this reason that clause (2) of this Article, while conferring on an Ordinance promulgated by
the Governor the same force and effect as an Act of the Provincial Legislature, contemplates that
every such Ordinance shall be laid before the Provincial Assembly and shall cease to operate at
the expiration of six weeks from re-assembly thereof, or if before the expiration of that period a
resolution disapproving it is passed by the Provincial Assembly, upon the passing of that
resolution. The same clause also provides that the Ordinance may be withdrawn at any time by
the Governor. An Ordinance is, therefore, essentially in the nature of a temporary legislation, and
its future operation is made conditional on the approval of the Provincial Assembly. The
provisions contained in the proviso to clause (4) could not, therefore, be intended to confer
permanency on an Ordinance, in violation of the clear stipulation in clause (2) of the Article.

`Apart from this basic objection, resting on the very nature of an Ordinance as a piece of
temporary legislation, the proviso itself, as relied upon by the learned Attorney-General, makes it
clear that it has a narrow and limited purpose, namely, of meeting the requirement specified in
the proviso to clause (2) of Article 143 of the Interim Constitution in relation to the enactment of
provincial laws on subjects included in the Concurrent Legislative List. As that proviso does not
make a separate or special mention of the manner in- which an Ordinance shall be promulgated
in the Concurrent field, the proviso to clause (4) of Article 135 contains a special direction in this
behalf to the effect that an Ordinance containing provisions inconsistent with an Act of the
Federal Legislature or an existing law with regard to a matters enumerated in the Concurrent
Legislative List shall be deemed to be an Act of the Provincial Legislature which has been
reserved for the consideration of the President and assented to by him, provided the Ordinance is
made by the Governor in pursuance of instructions from the President. Thus the proviso in
question merely seeks to apply to an Ordinance the special stipulation contained in a subsequent
Article on the subject of legislation in a Concurrent field, but does not have the effect of
rendering the Ordinance promulgated by the Governor as a permanent Act of the Provincial
Legislature for all purposes:'

We may also refer to the following observation of the Privy Council in the case of Gooderham
and Worts Ltd. v. Canadian Broadcasting Corporation (AIR 1949 PC 90), on the question of
effect of expiry of a temporary amendment in an enactment:

"15. This argument, at first sight attractive as a point of pleading, is, in their Lordships' opinion
untenable on a sound appreciation of the structure and terms of the Act of 5th July, 1935,
abovequoted. The first temporary amending Act of 1933 repealed certain provisions of the
principal Act of 1932 and substituted other provisions in their place. The operation of this
amending Act was continued down to 30th June, 1935, by two further Acts. Then by the Act of
5th July, 1935; its operation was further extended to 31st March, 1936, but only till then. The
sections of the three temporary Acts prescribing successive dates of expiry of this temporary
legislation were repealed. The result is that on 31st March, 1936, the temporary legislation
contained in the first Act of 1933 repealing provisions of the principle Act of 1932 and
substituting other provisions came to an end not by the repeal of the temporary legislation but by
the efflux of the prescribed time. No question as to the revival of the temporarily repealed
provisions of the principal Act of 1932 by the repeal of the repealing legislation arises. The
repeal effected by the temporary legislation was only a temporary repeal. When by the fiat of
Parliament the temporary repeal expired the original legislation automatically resumed its full
force---------------------

13. Reference may also be made to the following observations from Crawford Statutory
Construction:

Page-658 "Many laws are of a temporary nature, and obviously such laws expire of their
own force when the time arrives for their expiration ---------------------

Page-640 "In the first place, an outright repeal will destroy the effectiveness of the repealed Act
in future, and operate to destroy inchoate rights dependent on it, as a general rule. In many cases,
however, where statutes are repealed, they continue to be the law of the period during which they
were in force with reference to numerous matters."

Maxwell 12th Edition has dealt with the effect of repeal as under:-

Page 16. "The common law rule is that if an Act expired or was repealed it was regarded, in the
absence of provision to the contrary, as having never existed, except as to matters and
transactions past and closed. Where, therefore, a penal law was broken, the offender could not be
punished under it if it expired before he was convicted, although the prosecution began while the
Act was still in force."

14. We may state that, if we were to accept Mr. Irfan Qadir's above contention, the same would
be violative of Article 89 of the Constitution, which envisages that, if an Ordinance of the type in
issue is not approved by both the Houses before the expiry of four months from its promulgation,
the same shall stand repealed. The above clear Constitutional mandate cannot be defeated by
pressing into service any rule of construction of statutes or a provision of a statute which cannot
be pressed in aid while construing a Constitutional provision. We may further observe that our
Constitution is a written Constitution based on Federal System. It envisages tracheotomy of
powers between the three limbs of the State i.e. the Legislature, the Executive and the Judiciary.
In the above political set up the power to legislate is vested in the parliament. However, Article
89 of the Constitution empowers the President to promulgate an Ordinance when the National
Assembly is not in Session or stands dissolved and he (the President) upon being satisfied that
the circumstances exist which render it necessary to take immediate action. Such an Ordinance is
to last, at the most, for four months, if not approved or if not rejected by the parliament earlier or
withdrawn by the President in terms of sub-clause (a) of clause (2) of the above Article 89 of the
Constitution.

The rationale behind providing an outer limit of four months for an Ordinance seems to be that
even if the National Assembly or a Provincial Assembly stands dissolved at the time of
promulgation of an Ordinance, the election of it is to take place within 90 days from the date of
its dissolution in terms of clause 5 of Article 48 of the Constitution. Since Ordinance XIX of
1988 was not placed for approval before the Parliament within the above time limit of four
months in terms of sub-clause (a) of clause (2) of the Article 89, it stands repealed with the
amendments contained therein upon the expiry of four months from the date of its promulgation.

15. We are, therefore, of the view that the High Court's judgment on the above point is
unexceptionable and, 'hence, the above appeal has no merit, it is dismissed with no order as to
costs. The above interim order is recalled.

16. We may mention that Mr.Maqbool learned Advocate General, Punjab, who was also present
during the hearing, requested that in case the above appeal fails, we should clarify that it will be
open to the Government to take appropriate curative action/actions, as this decision may affect a
number of tees. Suffice to observe that it will be open to the Government to take whatever
actions are open to it in accordance with law.

Appeal dismissed. M.BA./G-349/S