P L D 1969 Supreme Court 599

 
Present: Muhammad Yaqub Ali and Qadeeruddin Ahmad, JJ
 
NABI AHMED AND ANOTHER-Petitioners
 
Versus
 
HOME SECRETARY, GOVERNMENT OF WEST PAKISTAN, LAHORE AND 4
OTHERS -Respondents
 
Petition for Special Leave to Appeal No. 328 of 1968, decided on 13th February 1969.
 
(On appeal from the judgment of the High Court of West Pakistan, Lahore, dated the 25th
October 1968, in Writ Petition No. 1087 of 1967).
 
(a) West Pakistan Criminal Law (Amendment) Act (VII of 1963)------
 
-----S. 3 read with First Schedule-First reference to Tribunal set aside on ground that S. 109, P. P.
C. not included in First Sched. to Act - Second reference by Commissioner (after hearing
accused) excluding names of accused charged under S. 109, P. P. C. - Contention that reference
bad because of division of accused persons into two classes-Held, not correct.
 
Shahadat Khan v. The Home Secretary Criminal Appeal No. 24 of 1968 ref.
 
(b) West Pakistan Criminal Law (Amendment) Act (VII of 1963)----
 
-----S. 3-Mere fact that names of two out of several accused shown in column No. 2 of police
challan-Not enough to exclude them from category of persons "accused of Scheduled Offence"
in terms of S. 3(1).
 
The mere fact that the Investigating Officer was satisfied with the (plea of) alibi of some of the
persons named in the first information report could not exclude them from the category of
persons "accused of a Scheduled Offence" in terms of subsection (1) of section 3 of the Criminal
Law (Amendment) Act, 1963. A person who is accused of an offence for purposes of subsection
(1) of section 3 is, obviously, any person against whom a charge or accusation of a scheduled
offence has been brought by the complainant. The opinion of the police could not he accepted as
final, and judicial consideration by the Court of that plea must be deemed to have remained
open. 
 
(c) West Pakistan Criminal Law (Amendment) Act (VII of 1963)------
 
-----S. 3 and Criminal Procedure Code (V of 1898), S. 512--Reference to Tribunal under Act-Not
bad merely because amongst accused there are absconders as well.
 
A reference of case to the Tribunal under section 3 of the West Pakistan Criminal Law
(Amendment) Act, 1963 is not wrong merely because there are absconders amongst the accused
persons, provided the Tribunal does not try the absconders in absentia, nor even prepare a record
which might be prejudicial to them in future. A necessary assumption behind this precaution is
that the absconders are not to be tried, but the proof of the commission of the crime of those who
are tried being inseparable for the involvement of the absconders, some evidence against the
latter will inevitably be brought on the record, therefore, this should be done in a manner so as
not to prejudice their trial, if and when, held in future. Neither the evidence, nor the findings that
are recorded in the case will be binding or useable against the absconders, except for such
evidence as may be ordinarily admissible in terms of section 32 of the Evidence Act. Thus the
precaution is sufficient but not so preclusive as to make the trial perfunctory on this score. 
 
(d) Interpretation of statutes-------
 
---Retrospective and ex post facto legislation, presumption against - Statutes are presumed to be
applicable to cases and facts coming into existence after their enactment unless there be clear
intention to give them retrospective effect.
 
Rights of the parties arising from facts which come into existence before the passing of a statute,
should be presumed to be unaffected by it, unless it is expressly or by necessary implication
made retrospective. The full significance, and implications, of the protection cannot be fully
appreciated, unless we discover its reason. This is not a statutory protection, yet the principle has
by virtue of a presumption of fair-play effectively checked encroachments on existing rights by
the all powerful British Parliament, unless they were found to have been clearly and
unambiguously so intended. The origin o` this presumption is to be found in the conscientious
abhorrence that all just men have for the injustice that is inherent in changing the legal
implications of a situation to the disadvantage of those who would otherwise benefit by a right
which existed at the time of the change. As a manifestation of more or less, a natural or
instinctive sense of justice, or perhaps an instinctive repugnance to what one feels to be injustice,
the Courts have held that laws do not "impose new liabilities in respect of events taking place
before their commencement". Since the above way of thinking is the consequence of a sense of
aversion for injustice, it is immaterial "whether the 'law his changed before the hearing of the
case at first instance or whilst an appeal is pending". One more consideration which appeals is
that law-abiding members of society regulate their lives according to the law as it exists at the
time of their actions, and they expect the law to be steadfast and reliable. They assess and weigh
the consequences according to the demands of existing law, including the requirements implicit
in the existing system of law, and are entitled to feel cheated if the law later lets them down by
taking away or reducing their rights, or increasing their burdens. The time at which a
presumption arises against retrospectivity is to be determined by the circumstances which call for
protection against injustice. The differences in the manifestations of this deed are mere matters
of detail. The need may arise before the commencement of proceedings with reference to the
time at which a cause of action arose, or an innocent deed was done. This happens if, for
instance, a law is made to eliminate that cause of action or to make that innocent act punishable.
It may also arise with reference to the tithe at which a new law was enforced during the
pendency of a proceeding. Such an occasion can arise if, for instance, the right of appeal is
abolished after the institution of a proceeding. So also it may arise with reference to the time at
which a procedure, whether civil or criminal, was concluded by a decree, conviction or acquittal,
and then a law was passed taking away the right of appeal against the decree, conviction or
acquittal, when no proceeding was pending. When we think of such an injustice, we are really
thinking of the adverse effect of the new law on vested rights.
 
Halsbury's Laws of England, Vol. XXXVI, p. 423 ; Bourke v. Nutt (1894) 1 Q B 725; Colonial
Sugar Refining Company Ltd. v. Irving 1905 A C 369; In re: Joseph Suche & Co. Ltd. (1875) 1
Ch. D 48; Midland Railway Company v. Peye 142 E R 419; Bowling v. Camp 128 L T 342;
Henshall v. Porter (1923) 2 K B 193; Re: A Debtor, Ex parte Debtor 1936 Ch. 237; Hughes and
others v. Lumley and others (1854) 4 E & B 358; Phillips v. Eyre 22 L T 869; Muhammad Alam
v. The State P L D 1967 S C 259; Basil Ranger Lawrence v. Emperor A I R 1933 P C 218; Dean
Roscoe Pound's Jurisprudence, Vol. I, p. 547 and Phillips v. Eyre 22 L T 868.
 
(e) Constitution of Pakistan (1962)-----
 
----Art. 6, Fundamental Right No. 4-Ex post facto legislation-Meaning.
 
There is no fundamental difference between retrospective and ex post facto law. The former
expression is used in respect of civil matters and the latter in respect of criminal matters which
by their nature are more serious. "While an ex post facto law has been broadly said to be one that
has a retroactive effect, under other authority there is a difference between an ex post facto law
and a mere retrospective law, and not at all retroactive laws are ex post facto laws". The meaning
of ex post facto legislation has been explained as follows:-
 
"Every law that makes an action done before the passing of the law, and which was innocent
when done, criminal, and punishes such action. Every law that aggravates a crime, or makes it
greater than it was when committed. Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime when committed. Every law that alters the
legal rules of evidence, and receives less or different testimony than the law required at the time
of the commission of the offence, in order to convict the offender." 
 
"Corpus Juris Secundum" Constitutional Law, Vol. 16-A, S. 435; American Jurisprudence, Vol.
16, p. 771, S. 429 and Calder v. Bull (1798) 2 Dall 386.
 
(f) Interpretation of statutes -------
 
--- Procedural and substantive law-Difference.
 
It is not easy to draw a line between substantive and procedural law, but the task is not
impossible if the essential difference is kept in mind. According to Salmond's Jurisprudence,
12th Edition of 1966 at p. 128-
 
"The law of procedure may be defined as that branch of the law which governs the process of
litigation . . . . . All the residue is substantive law, and relates, not to be process of litigation, but
to its purposes and subject-matter." Thus: " `a right of appeal, a right to give evidence on one's
own behalf, a right to interrogate the other party, `rules defining the remedy . . . . as those which
define the right itself,' that part of criminal law which deals, not with crimes alone, but with
punishments also, as the measure of liability and many rules of procedure which, in their
practical operation, are wholly or substantially equivalent to rules of substantive law," and, as
such must be treated as falling within the classification of substantive law. In this category has
been included by this Court the change of forum "if in the process any existing rights are affected
or the giving of retroactive operation causes inconvenience or injustice."
 
 Salmonds' Jurisprudence, 12th Edn. of 1966, p. 128 and Adman Afzal v. Sher Afzal P L D 1969
S C 187 ref.
 
(g) Words and phrases------
 
----Vested right"-What is?
 
According to the Oxford English Dictionary, "vested" means "clothed, robed, dressed especially
in ecclesiastical vestments . . . . vested rights essentially differ .... from rights which are
contingent . . . . . that is, completely created . . . . . vested interests may perhaps be defined as
rights based not upon contract but upon custom". A close examination of these meanings and
explanations reveals that a vested right is free from contingencies, but not in the sense that it is
exercisable anywhere and at any moment. There is hardly any right which can be so exercised.
There must always be occasions at which and circumstances under which they may be exercised.
Those occasions and circumstances do not constitute contingencies, but are the peculiar
characteristics of those rights. For instance, the right to cross-examine (not to re-cross-examine)
a witness is a vested right, although the occasion for exercising it arises only if the witness says
or has said something unfavourable and often after his examination-in-chief is over. The
occasion to cross-examine may not arise or may not be exercised-but the right is not to be
denied.
 
Oxford English Dictionary and J. G. Sutherland on Statutes and Statutory Construction, Vol. 2,
Art. 2205.
 
Ch. Muhammad Anwar Buttar, Advocate Supreme Court instructed by Iqbal Ahmad Qureshi,
Attorney for Buttar & Co. Attorneys Supreme Court for Petitioners.
 
Aslam Riaz Hossain, Assistant Advocate-General West Pakistan assisted by Agha Saeedul
Hasan, Advocate Supreme Court and Ijaz Ali, Attorney Supreme Court for Respondents Nos. 1,
2, 4 and 5.
 
Nemo for Respondent No. 3.
 
Date of hearing: 13th February 1969.
 
 
JUDGMENT
 
QADEERUDDIN AHMAD, J.-The only question for consideration in this petition for special
leave to appeal is the validity of the second order of the Commissioner, Lahore Division, dated
the 9th of September 1966, by which he referred the case of the petitioners to the Tribunal under
the provisions of the West Pakistan Criminal Law (Amendment) Act, 1963. The circumstances
in which it has arisen, are that Saeed son of Nawab was chopping fodder near his well at
Digarwela on the 1st of April 1964. He and his family members apprehended that Yousuf son of
Sharif might at any time attempt to revenge his father's murder, which had occurred a year
earlier. In that case, the accused persons were tried, and Saeed, his son Inayat, his nephews
Nazir, Rafique and 6 other persons were acquitted by the Sessions Judge on the 5th of March
1964. Three years before that incident, Muhammad Elahi was murdered, and Sharif, his son,
Yousuf, Akram, Muhammad and Khushi were challaned, but were acquitted by the High Court.
 
2. On the 1st of April 1964, Saeed saw Yousuf, Khushi, Ghulam Nabi (son of Sultan), Ghulam
Nabi (son of Mehtab), Nasrullah Khan, Ghulam Hussain, Nabi Ahmad, Aziz Ahmad armed with
pistols, Khursheed, Akram, Khushi (son of Foujdar), armed with rifles, Muhammad Din armed
with a gun, Shafi and Yousuf, residents of Daulawali, and Yousuf, resident of Kot Hanif, armed
with dangs, Shafi (son of Hakam), Allu (son of Haku), each carrying a can of kerosene oil, come
towards his dera and position themselves around it. His three sons, Inayat, Hidayat,
Karamatullah and his nephew Hashim, who were also chopping fodder at that time took fright
and ran inside the kotha. His brother Mirdad took refuge in the southern kotha, and his brother
Khuda Dad hid himself in-the Kur, which was meant for the cattle.
 
3. Nabi Ahmad raised a Lalkara that the door be broken open so that they might revenge the
murder of Sharif. The attacking party then broke open the window of the kotha and were about to
enter it, when the four persons who were inside ran from the kotha and took shelter in the Kur.
Shafi and Allu, members of the attacking party, climbed on to the roof of the Kar, sprinkled
kerosene oil on it and set fire to it. As a result of this action, the three sons of Saeed and his
nephews emerged from the Kur. The assailants opened attack on the opposite-party, with the
result that six members of the family of Saeed, his three sons, one nephew and two brothers,
were killed, and some of the women-folk of the family sustained injuries.
 
4. The Police Officer who investigated the case, submitted an incomplete challan before the
Magistrate on the 25th of April 1964, under sections 148, 302 and 436 read with sections 109
and 149 of the Pakistan Penal Code. Nabi Ahmad and Aziz Ahmad took the defence of alibi
before the Investigating Officer, who accepted the plea and entered their names in column 2 of
the Challan. Khursheed and Yousuf son of Sharif absconded, and were not arrested. Saeed filed a
private complaint against Nabi Ahmad and Aziz Ahmad, as a result of which they were
summoned by the Magistrate as accused persons.
 
5. On the 3rd of August 1964, the Commissioner, Lahore Division, ordered under section 3 of
the West Pakistan Criminal Law (Amendment) Act, 1963, that the case be tried by a Tribunal
constituted under the Act, for the following reasons:
 
"This is a cruel and sensational murder and it would be a pity if the culprits escape punishment.
Tribunal will be in a better position to sift the available evidence by making on the spot
enquiries."
 
The accused persons went in revision to the Home Secretary who accepted it on the 16th of
November 1964, on the ground that section 109, P. P. C. was not included in the First Schedule
to the West Pakistan Criminal Law (Amendment) Act, 1963 ; therefore, a Tribunal constituted
under the Act, had no jurisdiction to take cognizance of offences under that section. He,
therefore, set aside the order of the Commissioner with the following reservation:
 
"The Commissioner, Lahore Division, will, however, not be precluded from passing a fresh order
in this case if he so deems fit, keeping in view the provisions of the Act and the Rules framed
thereunder."
 
7. Subsequently, the Superintendent of Police recommended to the District Magistrate,
Gujranwala, that the case of three of the accused namely, Muhammad Hussain, Muhammad
Akram and Muhammad Khan, who were charged under section 109, P. P. C. be excluded from
the reference, and the case against the remaining 15 persons be referred to a Tribunal. The
District Magistrate agreed and wrote to the Commissioner, Lahore Division, on the 13th of
August 1966, that:
 
"The prosecution evidence has been concluded (before an ordinary Court) and the accused has
won over all independent prosecution witnesses, including two eye-witnesses. Two of the
accused, Muhammad Hussain and Muhammad Khan, are not named in the F. I. R. Khushi and
Shafi accused are hired assassins in this case. Besides committing murders, the accused have also
set fire to agricultural produce and the building of the complainant's party. As no independent
evidence is forthcoming to bring home the charge to the murderers, therefore, the case is not
likely to stand the rigors of the trial in regular Court of law."
 
8. On receipt of the above letter, the Commissioner granted an opportunity to counsel for the
accused persons, the complainant party, and the Prosecuting Inspector for the State, of presenting
their points of view to him, and then made a fresh order of reference on the 9th of September
1966. He excluded from the reference the names of the three accused persons charged under
section 109, P. P. C. Since the case of the three accused under this section was not referred to the
Tribunal, and two had absconded, the remaining 12 accused persons filed an appeal under
section 18 of the Criminal Law (Amendment) Act, 1963 to the Home Secretary, which was
dismissed by him on the 17th of June 1967; therefore, they filed 4 petitions bearing Nos. 1087,
1375 and 1519 of 1967 and No. 200 of 1968, under Article 98 of the Constitution before the
High Court of West Pakistan at Lahore. The petitions were heard by a Division Bench of that
Court and dismissed for reasons set out in a well considered order dated the 25th of October
1968.
 
9. The learned Judges have mentioned that several counsel appeared for the petitioners in the
four cases and raised a large number of contentions to challenge the correctness and legality of
the second order of reference. Those contentions have been carefully summarised by the learned
Judges in 3 paragraphs, the second consisting of four sub-paragraphs and the third of three
sub-paragraphs. All the contentions have thus been classified under three heads. The first is that
the Commissioner had no jurisdiction to make the second reference. The second is that the order
of reference was without legal authority because-
 
(a) Sections 148 and 149 having been added to the Schedule of offences to the West Pakistan
Criminal Law (Amendment) Act, 1963 by an Ordinance promulgated on the 25th of May 1966,
they could not be applied retrospectively to the present case in which the offences were alleged
to have been committed on the 1st of April 1964, because a vested right had accrued in favour of
the petitioners to be dealt with in accordance with the procedure embodied in the Criminal
Procedure Code and the Evidence Act, and to file appeals, if convicted, to the High Court and the
Supreme Court.
 
(b) Khurshid and Yousuf having been declared absconders, they could (sic) be tried by the
Tribunal because section 512 of the Criminal Procedure Code is not applicable to the poceedings
before the Tribunal and serious prejudice was bound to be caused to the absconders if they were
tried in absentia by the Tribunal.
 
(c) The case of the three accused persons, namely, Muhammad Hussain, Muhammad Akram and
Muhammad Khan? who were charged under section 302 read with section 109, P. P. C. having
been excluded from the reference, a bifurcation of offences as well as of accused persons took
place, which was prejudicial, to their interest and, therefore, not lawful. 
 
(d) The Commissioner had made the second order of reference because it was recommended by
the Senior Superintendent of Police and the District Magistrate, and not because it was his
opinion under subsection (1) of section 3 of the West Pakistan Criminal Law (Amendment) Act,
1963.
 
The third contention is that the reference was illegal, because it included the names of Nabi
Ahmed and Aziz Ahmed, who were not challaned by the police, but were summoned by the
Magistrate only on a private complaint.  
 
10. This petition has been filed by two of the accused persons, namely, Nabi Ahmed and Aziz
Ahmed, for special leave try appeal against tire order of the High Court
 
11. Choudhury Muhammad Anwar Buttar, appearing for the petitioners, did not press the first
objection, but argued that the order of the Commissioner was without legal authority for five
reasons. Four reasons out of those five, have been set out above (in paragraph 9) at (a) to (d) as
sub-divisions of the second main contentions, and the fifth reason as the third main contention.
 
12. The arguments mentioned as at (c) and (d) above, can be shortly disposed of because division
of accused persons into two classes, has been held by this Court to be legal in Shahadat Khan v.
The Home Secretary (Cr. Appeal No. 24 of 1968, decided) on the 13th of February 1969), and
because the Commissioner has made the second order of reference after hearing counsel for the
complainant, the accused persons, the State, and then applying' Iris own decision to the case. It is
true that his attention was drawn by the Senior Superintendent of Police and the District
Magistrate to the inexpediency of the trial of the accused persons by the ordinary Courts, but this
fact alone does not constitute a sufficient basis to conclude that he did not apply his mind to the
question. The decision, to act on the suggestion, was made as a result of his own deliberations.
 
13. The fifth reason, which was the third contention before the High Court appears to have no
substance in it, because, as pointed out by the High Court, the names of Nabi Ahmad and Aziz
Ahmad were mentioned "among the assailants in the First Information Report lodged by Saeed
on the 1st of April 1964. The mere fact that the Investigating Officer was satisfied with the (plea
of) alibi of these two persons" could not exclude them from the category of persons "accused of a
Scheduled Offence" in terms of subsection (1) of section 3 of the Criminal Law (Amendment)
Act, 1963. A person who is accused of an s offence for purposes of subsection (1) of section 3 is,
obviously, any person against whom a charge or accusation of a scheduled offence has been
brought by the complainant. The opinion of the police could not be accepted as Anal, and
judicial consideration.
 
14. The main emphasis of counsel's argument was reasons which have been noted above at (a)
and (b).
 
15. We have heard counsel for the petitioners fully on both of them, but have heard the Assistant
Advocate-General on the entire question which arises from the reason noted at (b), but on only a
part of the question which arises from the reason noted at (a). The circumstances which dictated
the adoption of this course were that during the address of counsel for the petitioners, we were
informed that commitment proceedings were concluded when the second reference was made.
We framed the following two questions and .issued notice to the State for hearing the parties
 
(i) When does the `trial' of offences covered by Chapter XVIII of the Cr. P. C. commence? and
 
(ii) Whether the case of absconders can be referred to the Tribunal under section 3 of the West
Pakistan Criminal Law (Amendment) Act, 1963?
 
16. I will first consider the reason noted at (b). The argument, which was advanced by counsel
for the petitioners in this respect, was that since section 512 of the Cr. P. Code, which lays down
the manner in which the available evidence against the absentee accused persons may be
preserved, and later judicially used against them, is not applicable to the proceedings which are
held before the Tribunal, therefore, tire case of the absconders cannot be referred to the Tribunal.
The reason was that the evidence of the part they played in the commission of the crime, cannot
legally be recorded by the Tribunal, and that if it is of necessity recorded owing to its
involvement in the case of the accused persons, who are before the Tribunal, then it would
prejudice the case of the absconders unwarrantedly. The High Court has not upheld the
contention that recording of evidence by the Tribunal in the absence of the two absconders, was
illegal in this case, because they are after all accused persons, and, therefore, the question of their
guilt could be referred to the Tribunal for decision under section 3(1) of the West Pakistan
Criminal Law (Amendment) Act, 1963, but has with due care pointed out that since this
procedure may prejudice the case of the absentees, the Tribunal should not bring Oil the record
evidence "in such a way as to prejudice" the case against them. I may explain that if section 512,
Cr. P. C. is left out of consideration, then recording of evidence against the absconders would not
only violate section 353 of the Criminal Procedure Code and sections 3(l), 6(l), 8(5), 15(1) and
25 of the West Pakistan Criminal Law (Amendment) Act, VII of 1963, but would also transgress
the principle of natural justice that a person must be given a fait opportunity of being heard in his
own defence. It is an unfair and prejudicial procedure to prepare the record of evidence against
him, whether for being used presently or after a lapse of time; but, let it be noted that the case is
different if the absconders are not tried, and the trial of only those accused persons, who are
present, is held, but during the course of such trial evidence of the allegedly related deeds of the
absentee accused persons comes on the record.
 
17. In the above circumstances, the High Court's view can be sustained if its purport is, as we
think it is, that reference of the case to the Tribunal is not wrong merely because there are
absconders amongst the accused persons, provided the Tribunal does not try the absconders in
absentia, nor even prepare a record which might be prejudicial to them in future. A necessary
assumption behind this precaution is that the absconders are not to be tried, but the proof of the
commission of the crime of those who are tried being inseparable for the involvement of the
absconders, some evidence against the latter will inevitably be brought on the record, therefore,
this should be done in a manner so as not to prejudice their trial, if and when, held in future.
Neither the evidence, nor the findings that are recorded in the case will be binding or useable
against the absconders, except for such evidence as may be ordinarily admissible in terms of
section 32 of the Evidence Act. Thus the precaution is sufficient but not so preclusive as to make
the trial perfunctory on this score.
 
18. Now turning to the first reason mentioned at (a), I may mention that it has been treated
elaborately by the High Court, and dealt with at length before us. The High Court's discussion
covers more than 13 typed pages-from pages 10 to 23. The relevant law was discussed before us
by referring to a number of authorities. Moreover, the question itself is of considerable general
interest, firstly because of its importance, and secondly because it is ordinarily discussed with
reference to judicial precedents and, therefore, necessarily in view of the expressions used in
them, but seldom with reference to the principles which in the last analysis are the foundation of
even the most authoritative of those precedents. A distinction should be drawn on the one hand
between the fundamental principles and the proposition which are only deductions made from
such principles to be expressed generally in legal terminology, and on the other hand between
such general propositions and the particularised forms which they assume when applied to
individual cases. The general proposition of law containing the presumption against retrospective
applicability of law has been clearly stated by careful writers and Judges. Halsbury's Laws of
England explains the meaning of the expression `retrospective statute' in Vol. 36 at page 423 as
follows:
 
"the Courts regard as retrospective any statute which operates on cases or facts coming into
existence before its commencement,"
 
and as pointed out In re : School Board Election for Parish of Pulborough, Bourke v. Nutt
((1894) 1 Q B 725 at p. 737)
 
"It is a well-recognised principle in the construction of statutes that they operate only on cases
and facts which come into existence after the statutes were passed, unless retrospective effect is
clearly intended."
 
The reference to "facts" along with "cases" in the above quotations should be noted. Further it
should be noted that not commencement of cases, but only their existence is mentioned, because
no technicalities are involved in the idea. The same idea was expressed in the Colonial Sugar
Refining Company Ltd. v. Irving (1905 A C 369) with reference to a pending case and even a
retrospective change in the forum of appeal was held to be bad. The Judicial Committee
observed that:
 
"In principle, their Lordships see no difference between abolishing an appeal altogether and
transferring the appeal to a new Tribunal."
 
The reason for the above view, to my mind, is that while abolition of an appeal takes away a
right entirely, a charge in the forum of appeal equally creates distrust on the one hand and opens
the door to uncertainty on the other. The Judicial Committee has further explained that "if the
matter in question" be "more than a matter of procedure", that is to say, "if it touches a right in
existence at the passing of the Act", then "in accordance with a long line of authorities extending
from the time of Lord Coke to the present day", the Act would not operate so as to take away that
right. The words "touches a right in existence" and the words "at the time of passing of the Act",
should be noted. The relevant time is stated to be that of the passing of the Act, and protection is
granted to a "right in existence". In the case of In re : Joseph Sache & Co. Ltd., ((1875) 1 Ch. D
48) similar protection was recognised against alteration of existing rights of the parties in
"pending actions". The references in these two leading judgments to the pendency of cases were
appropriate to the facts which were considered, but the general proposition of law which emerges
after eliminating that peculiarity, is that rights of the parties arising from facts which come into
existence before the passing of a statute, should be presumed to be unaffected by it, unless it is
expressly or by necessary implication made retrospective.
 
19. The full significance, and implications, of the protections cannot be fully appreciated, unless
we discover its reason. This is not a statutory protection, yet the principle has by virtue of al
presumption of fair-play effectively checked encroachments on existing rights by the all
powerful British Parliament, unless they were found to have been clearly and unambiguously so
intended. What is the nature and strength of this presumption? I conceive that its origin is to be
found in the conscientious abhorrence that all just men have for the injustice that is inherent in
changing the legal implications of a situation to the disadvantage of those who would otherwise
benefit by a right which existed at the time of the change. In Midland Railway Company v. Peye
(142 E R 419) Elre, C. J. said:
 
"Those whose duty it is to administer the law very properly guard against giving to an act of
Parliament a retrospective operation, unless the intention of the Legislature that it should be so
construed is expressed in clear, plain and unambiguous language ; because it manifestly shocks
one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some
new enactment."
 
As a manifestation of more or less, a natural or instinctive sense of justice, or perhaps an
instinctive repugnance to what one feel to be injustice, the Courts have held that laws do not
"impose new liabilities in respect of events taking place before their commencement". In
Bowling v. Camp (128 L T 342) and in Henshall v. Porter ((1923) 2 K B 193) a bar created by
the Gaming Act, 1922 against the institution of suits, was held not to prohibit the continuance or
even commencement of actions Where liability was created before the Act came into force.
 
20. Since the above way of thinking is the consequence of a sense of aversion for injustice, it is
immaterial-
 
"whether the law is changed before the hearing of the case at first instance or whilst an appeal is
pending."
 
In support of the above view, see Re : A. Debtor, ex parte Debtor (1936 Ch. 237). The same
thought and the same sense of justice augments resistance if an erstwhile innocent act is
converted into an offence or a lesser crime is converted into a more serious one, or the rules of
evidence are made unfavourable to the offender by ex post facto legislation, or an
unobjectionable monetary device is converted by such legislation into tax evasion. Such penal
legislation is forbidden by the convention for the Protection of Human Rights and Fundamental
Freedoms which was signed by members of the Council of Europe in 1950, and later ratified by
the United Kingdom. The fourth Fundamental Right of the late Constitution of 1962 partly
preserved the same principle. The provision is as follows:
 
"4. Protection against retrospective punishment.
 
No law shall authorize the punishment of a person-
 
(a) for an act or omission that was not punishable by law at the time of the act or omission ; or
 
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by
law for that offence at the time the offence was committed."
 
The above protection operated with reference to the time of the act or omission which may
subsequently be made punishable and to the commission of an offence for which greater or even
different kind of penalty may be imposed by ex post facto legislation. The time of the
commencement of a proceeding to impose the punishment or penalty is not of the essence of the
protection. There is no fundamental difference between retrospective and ex post facto law. The
former expression is used in respect of civil matters and the latter in respect of criminal matters
which by their nature are more serious. Corpus Juris Secundum explains under Constitutional
Law in Vol. 16-A, Art. 435 as follows:
 
"While an ex post facto law has been broadly said to be one that has a retroactive effect, under
other authority there is a difference between an ex post facto law and a mere retrospective law,
and not all retroactive laws are ex post facto laws."
 
The book explains the nature of ex post facto law as follows:
 
"An ex post facto law is one which makes criminal and punishes an act which was done before
the passage of the law and which was innocent when done, aggravates a crime or makes it
greater than it was when committed, changes the punishment and inflicts a greater punishment
than was prescribed when the crime was committed, or alters the legal rules of evidence and
receives less or different testimony than was required to convict at the time the offence was
committed. Further, an ex post facto law may be one which, assuming to regulate civil rights and
remedies only, in effect imposes a penalty or the deprivation of a right for something which,
when done, was lawful, deprives persons accused of crime of some lawful protection or defence
previously available to them, such as the protection of a former conviction or acquittal, or of a
proclamation of amnesty, or, generally, in relation to the offence or its consequences, alters the
situation of an accused to his material disadvantage."
 
21. In England, the basic sentiment of revulsion against injustice is strengthened by the jealousy
of Courts to preserve their jurisdiction uncontaminated by extra-judicial considerations. They
regard all considerations, whether political, administrative or even legislative, if they are not
embodied in the law itself, as subordinate, if not entirely extraneous, to the judicial outlook. In
the United States of America, emphasis on the constitutional separation of power is added. In the
words of the American Jurisprudence, 16th Volume, page 771, Art. 429:
 
"The position has been taken, however, in some jurisdictions that when an action is once
commenced, jurisdiction is purely a judicial question, and it is unconstitutional, under the
doctrine of the separation of the powers of Government, for the Legislature to attempt to usurp
the judicial function by interfering legislation to oust the jurisdiction of the Court."
 
The leading authority in America is Calder v. Bull ((1798) 2 Pall 386) in which the meaning of
ex post facto legislation has been explained as follows
 
"(1) Every law that makes an action done before the passing of the law, and which was innocent
when done, criminal, and punishes such action.  
 
(2) Every law that aggravates a crime, or makes it greater than it was when committed.
 
(3) Every law that changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime when committed.
 
 (4) Every law that alters the legal rules of evidence, and receives less or different testimony than
the law required at the time of the commission of the offence in order to convict the offender." 
 
22. One more consideration which appeals tome is that law abiding members of society regulate
their lives according to the law as it exists at the time of their actions, and they expect the law to
be steadfast and reliable See Hughes and others v. Lumley and others ((1854) 4 E & B 358).
They assess and weigh the consequences according to the demands of existing law, including the
requirements implicit in the existing system of law, and are entitled to feel, cheated if the law
later lets them down by taking away or reducing' their rights, or increasing their burdens. As
pointed out by Willes, J. in Phillips v. Eyre (22 L T 869) at p. 876
 
"Retrospective laws pre no doubt prima facie of questionable policy, and contrary to the general
principle that legislation by which the conduct of mankind is to be regulated ought, when
introduced for the first time, to deal with future acts, and ought not to change the character of
past transactions carried on upon the faith of the then existing law."
 
Further:
 
"Blackstone, J., 1 Com. 46, describes laws ex post facto of this objectionable class as those by
which `after an action indifferent in itself is committed, the Legislature then for the first time
declares it to have been a crime, and inflicts a punishment upon the person who has committed it.
Here it is impossible that the party could foresee that an action, innocent when it was done,
should be afterwards converted to guilt by a subsequent law; he had, therefore, no cause to
abstain from it, and all punishment for not abstaining must of consequence be cruel and unjust'."
 
23. Justice Holmes of America has emphasised that law should be reliably ascertainable-this is
important for law abiding persons, so that they may arrange their lives accordingly, but it is
equally, if not more, important for wrong-doers in order to know their chances in law. The
learned Judge has said in his address delivered in 1897 that-
 
" . . if we take the view of our friend the bad man, we shall find that he does not care two straws
for the axioms of deductions, but that he does want to know what the Massachusetts or English
Courts are likely to do in fact. I am much of his mind. The prophecies of what the Courts will do
in fact, and nothing more pretentious, are what I mean by the law."
 
What the Courts will do tomorrow depends a great deal on the answer to the question: To whom
the appeal lies. This is why, to my mind, the Privy Council held in Colonial Sugar Co., that there
was no difference between changing the forum of an appeal and altogether abolishing it. A past
and closed transaction must be taken to have been concluded according to the law in force at that
time, and the ultimate legal consequences of a legal duty or a legal right arising there from must
according to Justice Holmes, means to the parties to it, "a prophecy". Civilization is in justice
bound to respect that `prophecy', because the need for such prophecy is a creation of a civilized
society.  
 
24. People do not mind changes in law, if only the procedure is altered without altering the
substance of the law. True, it is not easy to draw a line between substantive and procedural law,
but the task is not impossible if the essential difference is kept in mind. According to Salmonds
Jurisprudence, 12th Edition of 1966 at page 128-
 
"The law of procedure may be defined as that branch of the law which governs the process of
litigation . . . . . All the residue is substantive law, and relates, not to the process of litigation, but
to its purposes and subject-matter."
 
Thus:
 
" `a right of appeal, 4 right to give evidence on one's own behalf, a right to interrogate the other
party,' 'riles defining the remedy . . . . as those which define the right itself,' that part of criminal
law which deals, not with crimes alone, but with punishments also, as the measure of liability
and many rules of procedure which, in their practical operation, are wholly or substantially
equivalent to rules of substantive law,"
 
and, as such must be treated as falling within the classification of substantive law. In this
category has b--en included by this Court the change of forum-
 
"If in the process any existing rights are affected or the giving of retroactive operation causes
inconvenience or injustice."
 
See Adnan Afzal v. Sher Afzal (PLD1969 S C 187).
 
25. I venture to repeat that the full significance of the objection to retrospective and ex post facto
legislation cannot be grasped unless the basic reasons are kept in view. The Courts attempt to
capture the essence of that thought and to apply it to given facts; therefore, it is not a correct
approach to this subject to involve ourselves in the comparison of an expression used in one
judgment with one employed in another judgment, and from that restricted point try to work our
way back to the general principle. For instance, it is easy to see the point of view, of Justice
Chase if we read the opinion expressed in the abovementioned case, Calder v. Bull, with the help
of the underlying principles, rather than the connotations of each word employed by him earlier
to express the idea. He said:
 
"But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the
criminal law; but only those that create, or aggravate, the crime; or increase the punishment, or
change the rules of evidence, for the purpose of conviction. Every law that is to have an
operation before the making thereof, as to commence at an antecedent time ; or to save time from
the statute, of limitations or to excuse acts which were unlawful, when committed, and the like ;
is retrospective. But such laws may be proper or necessary, as the case maybe."
 
26. The above discussion is intended to explain the meaning and purpose of the principles that
support the presumption against retrospective or ex post facto legislation. In some of the leading
cases in which the principles have been elucidated, the law was changed after the institution of
proceedings-See for instance the cases of Sugar Refining Co., and Joseph Suche & Co. but there
were other cases also in which proceedings commenced after the legislation-See for instances the
cases of Bowling and Henshall. They show that pendency of proceedings is not an indispensable
condition of the presumption that exists against retrospectivity, but the case of the Sugar
Refining Co. has attracted the most attention in India and Pakistan, because it, was decided by
the Privy Council. In almost every important case of India and Pakistan that case has been cited
as the basic authority with the result that pendency of proceedings has been treated as sine qua
non of the presumption. Concentration of attention of the idea of "proceedings" has led to a
discussion as to whether an inquiry held under Chapter XVIII of the Cr. P. Code is a trial or
not--See Muhammad Alam v. The State (P L D 1967 S G 259) and the idea of "pendency" has
led to the discussion as to when does a trial commence in a summons case, in a warrant case, and
in a Session case, in terms of the provisions of the Cr. P. Code-See again Muhammad Alam v.
The State.
 
27. There is a long series of judicial precedents in India and Pakistan on this subject in which the
Courts have formulated principles with the help of the provisions of the Cr. P. Code without
reference to the basic concepts and principles, by wholly or partly accepting or rejecting
interpretations judicially placed on the words and concepts of that Code. Such concepts and
expressions as "action began", "proceedings" commenced, inquiry, "trial", "brought to trial",
absence or presence of the accused and the likelihood of the dismissal of private complaints have
held attention. There are references to them in the judgment of the High Court in this case too,
therefore, I beg to be pardoned for venturing the opinion that the presumption against
retrospectivity is a doctrine which can in fairness be understood and applied only on broad
principles, and not on the basis of the provisions and expressions of a statute, even if it be one as
important as the Criminal Procedure Code. That statute has been devised to serve the purpose of
providing a procedure for the trial of offences defined in the Penal Code. 1n that context, the
expression "inquiry" has been defined in section 4 (k) of the Code. Trial has not been defined,
but as the word occurs in a number of sections, it was found necessary to distinguish it from
"inquiry", but the attempt has not succeeded, because the word "inquiry" has been defined to
include-
 
"every inquiry other than trial conducted under this Code by a Magistrate or Court."
 
without pointing out any distinctive feature of "inquiry", and without even defining the word
"trial". There is no greater significance of those expressions. The Privy Council have explained
in Basil Ranger Lawrence v. Emperor (AIR 1933 P C 218), that the concept of trial is not
fettered by technical restrictions. The following observations may be noted:
 
"It is an essential principle of our criminal law that the trial of an indictable offence has to be
conducted in the presence of the accused; and for this purpose trial means the whole of the
proceedings, including sentence."
 
Further, about the absence of the accused:
 
"There is authority for saying that in cases of misdemeanour there may be special circumstances
which permit a trial in the absence of the accused, but on trials for felony the rule is inavoidable,
unless possibly the violent conduct of the accused himself intended to make trial impossible,
renders it lawful to continue in his absence."
 
The substance of the above proposition is even more appropriate when the presumption against
retrospectivity, is claimed as founded on the human sense of justice and fair-play. The Criminal
Procedure Code is not the grammar of jurisprudence nor a hand book of general principles of
law. It is a great Code inasmuch as it is fair concept and comprehensive, as well as mostly
accurate in design and language; but is not meant to be a guide when the object and purpose of
law itself is the subject of, discussion. That object is nothing less than advancement of
civilization: Dean Roscoe Pound has said:
 
"I prefer to think that the recognition of co-operation and new emphasis upon it (law) in all
connections is a step towards some ideal involving organised human effort along with free
spontaneous initiative, and I seem to see such an ideal in the idea of civilization."
 
(See page 547 of Vol. I of his Jurisprudence)
 
It is that concept which impels just minds to raise objections against retrospectivity. Its disregard
is retrogressive. Before the full extent of justice was grasped by British civilization, bills of
attainder used to be passed by the British Parliament, and Courts were bound by them, but
Willes, J. has referred to them in Phillips v. Eyre (22 L T 88$) as follows:
 
"The retrospective attainder Acts of earlier times, when the principles of law were not so well
understood or so closely regarded as in the present day, and which are now looked upon as
barbarous . . . ."
 
28. The time at which a presumption arises against retrospectivity is thus to be determined by the
circumstances which call for protection against injustice. The differences in the manifestations of
this need are mere matters of detail. The need may arise before the commencement of
proceedings with reference to the time at which a cause of action arose, or an innocent deed was
done. This happens if, for instance, a law is made to eliminate that cause of action or to make
that innocent act punishable. It may also arise with reference to the time at which a new law was
enforced during the pendency of a proceeding. Such an occasion can arise if, for instance, the
right of appeal is abolished after the institution of a proceeding. So also it may arise with
reference to the time at which a proceeding, whether civil or criminal, was concluded by a
decree, conviction or acquittal, and then a law was passed taking away the right of appeal against
the decree, conviction or acquittal, when no proceeding was pending. When we think of such an
injustice, we are really thinking of the adverse effect of the new law on vested rights.
 
29. What is a vested right? According to the Oxford English Dictionary, "vested" means
"clothed, robed, dressed especially in ecclesiastical vestments . . . . vested rights essentially differ
. . from rights which are contingent . . . . that is, completely created . . . vested interests may
perhaps be defined as rights based not upon contract but upon custom". A close examination of
these meanings and explanations reveals that vested right is free from contingencies, but not in
the sense that it is exercisable anywhere and at any moment. There is hardly any right which can
be so exercised. There must always be occasions at which and circumstances under which they
may be exercised. Those occasions and circumstances do not constitute contingencies, but are
the peculiar characteristics of those rights. For instance, the right to cross-examine (not to re-
cross-examine) a witness is a vested right, although the occasion for exercising it arises only if
the witness says or has said something unfavourable and often after his examination-in-chief is
over. The occasion to cross-examine may not arise or may not be exercised-but the right is not to
be denied. The following discussion of the connotations of "vested rights" by J. G. Sutherland in
his book on "Statutes and Statutory Construction," Vol. 2, Art. 2205, is helpful in clarifying the
above thought:-
 
"It is impossible . . . to assign precise meaning to the term (vested right) for any attempt results
only in conflict in the decisions. By `vested right' can be meant no more than those rights which
under particular circumstances will be protected from legislative interference (unless it is clearly
intended). But as it is a right which vests upon equities, it has reasonable limits and restrictions :
it must have some regard to the general welfare and public policy, it is not a right which is to be
examined, settled and depended on a distinct and separate consideration of the individual case,
but rather on broad and general grounds which embrace the welfare of the whole community and
which seek the equal- and impartial protection of the interest of all."
 
The observations go to the core of the problem with remarkable directness. Their central idea is
equally well the essence of the doctrine which is the subject of this discussion, that is, the
statutes are presumed to be applicable to cases and facts which come into existence after they are
enacted, unless there is a clear intention to give them retrospective effect.
 
30. Applying the above principles to the facts of this case, I would have granted leave to the
petitioners to appeal, but Mr. Aslam Riaz has pointed out that the Legislature has made the new
law expressly retrospective. This aspect was apparently not brought to the notice of the High
Court. The relevant provision is subsection (2) of section 3 of the West Pakistan Criminal Law
(Amendment) Act, 1963. It runs as follows:
 
"Where any Court is enquiring into or trying any scheduled offence, whether along with an
offence not specified in the First Schedule, or otherwise, the reference in respect to the scheduled
offence may be made at any time before the charge is framed against the accused person, and for
the purpose of making such reference, the Commissioner may requisition the record of the case
from the Court concerned:
 
Provided that a reference in respect of an offence specified in clause (a) of Part B of the First
Schedule may be made at any time before the judgment is pronounced."
 
The proviso is not applicable to this case. Only the main provision is relevant. If it is read with
subsection (1) of the section, it means that a scheduled offence can be referred to decision of a
Tribunal, at any time, before the charge is framed. In other words, the relevant time for deciding
as to what offences can be referred to the Tribunal as scheduled offences, is any time before the
charge is framed. In this case there is nothing on the record to prove that the charge was framed,
nor did any party to this case take this stand. I would accordingly dismiss the petition on this
short ground.
 
K. B. A.                                                                                              Leave refused.