KARACHI: New Ordinance applicable prospectively, rules SHC
By Shamim-ur-Rahman
KARACHI, Nov 27: The Sindh High Court has held that the Ordinance No LIV of 2001, amending the Criminal Procedure Code, is applicable prospectively and shall not affect all those cases where applications under section 497 or section 426 of CrPC have been filed and were pending disposal at the time when it was promulgated.
This view was taken by a division bench consisting of Justice Zahid Kurban Alavi and Justice S. A. Rabbani in five criminal bail applications (506, 672, 686, 696 and 723 of 2001).
The court also held that by virtue of the principle of vested right and legitimate expectancy it would also not affect all those who at the time of the promulgation of the notification were behind bars and their cases had not proceeded due to no fault of theirs. Even they would be entitled to the concession of bail which was available under sections 497 and 426 of CrPC before the promulgation of the Ordinance.
The court noted that the objections were connected with those matters which had been filed in court before October 11, 2001. These matters were either bail applications or appeals where applications under section 426 of CrPC were also pending.
In all these cases, the overall objective of the applicants was to be released on bail.
Since by virtue of the Ordinance the third and fourth proviso of section 497 of CrPC had been omitted together with sub-section 1-A of section 426 of CrPC, it was the contention of the counsel, appearing on behalf of the applicants, that the benefit of applying for the concession of bail would be taken away if the Ordinance was considered to be retrospective in nature. They were of the view that it could not be retrospective.
The counsel argued that the omission of the sub-sections could only be prospective as the legislature would not deprive the applicant of taking away an existing right.
According to them, retrospectivity of the operation of a statute can be given but it has to be stated in clear terms in the statute. In the absence of a clearcut stipulation the vested and substantive rights would be not impaired.
No rule of construction is more firmly established than the dictum that a retrospective operation cannot be given to a statute. A statute which would impair vested rights or legality of past transactions or the obligations of contract prima facie cannot be held to be with retrospective affect. Especially when through the introduction of a statute a change is brought about which may create a new obligation or impose a new duty or attach a disability in direct relation to past transactions. Even by implication such rights once vested cannot be taken away.
Abdul Razzak Soomro, counsel for the applicants, further argued that if it was a matter of procedure only, then would there be no cavil to the fact that it could operate retroactively. However if it touched the rights in existence at the time of passing of a statute, then there would be no retroactivity given to the statute unless and until by express words, the legislature through the statute had given such applicability.
He was of the opinion that there was a clear distinction between the substantive and procedural law. Whereas retroactivity could be a source of procedural law wherever substantive law was involved there would be no retroactivity given to it. To illustrate a point, it was pointed out that if the law was altered to bring about a mere change in the forum but leaving the right to sue intact the alteration so brought about being a matter of mere procedure and not affecting any existing rights or privilege, the same could operate retroactively.
By the same token if the right to sue was taken away, then its operation would be prospective as the right to sue was a substantive right.
The counsel relied upon the case of Asif Ali Zardari vs The State (1993 P. Cr. L. J 781) where a full bench of the SHC had looked at the issue placed before them in connection with the amendment that had been brought about for section 497 of CrPC. By Ordinance 15 of 1992 dated 16-11-1992 the third and fourth proviso were omitted. The matter was taken to the court and a detailed and historical judgment was given which discussed at length the applicability of such a change.
The court therefore held that it was bound by the dicta laid down by the full bench of this court, specially when it related directly to an identical situation which existed now. In both situations change was brought about in the CrPC, and in the case cited above the full bench of this court had held that the change so brought about would be prospective.
By virtue of the above, the court ordered that matters should now be fixed for hearing of the applications which were pending.
Abdul Razzak Soomro and Asif Ali Soomro, holding brief for Saeed Ahmed Bijarani and Mohammed Ayaz Soomro, appeared for the applicants. Ali Azhar Tunio assisted the advocate-general.
