UMAR HAYAT Versus GOVERNMENT OF PUNJAB

1. ZIA MAHMOOD MIRZA, J: --A case under section 382, P.P.C. was registered against the petitioners at Police Station, Qadirabad on 12-7-1987. On completion of the investigation, however, they were challaned for an offence under section 392, P.P.C. Case was later transferred for trial to the Special Court for Speedy Trials vide notification, dated 15th of October, 1987, which notification was brought under challenge through this Constitutional petition. It appears that while the petition remained pending in this Court, trial of the petitioners continued before the Speedy Court for Speedy Trials which convicted them under section 392, P.P.C. and. sentenced each of them to 10 years' R.I. and a fine of Rs.25,000 vide judgment, dated 2nd of December, 1987. Petitioners preferred an appeal in this Court but with no better result as the same was dismissed by a Division Bench of this Court maintaining their conviction under section 392, P.P.C. read with section 34, P.P.C. (this latter provision was added by the Division Bench) and upheld the sentence awarded to them. This was vide judgment, dated 11-4-1989. We are informed that the petitioners also approached the Supreme Court with a petition for leave to appeal which, too, bore no fruit and was dismissed vide order, dated 24-6-1989 reported as Umer Hayat and another v. The State 1990 S C M R 495.

2. We have heard the learned counsel for the petitioners as also learned Additional Advocate-General appearing for the respondents. The only point argued by the learned counsel for the petitioners is that the case against the petitioners was entrusted to the Special Court for Speedy Trials under the provisions of Special Court for Speedy Trials Ordinance II of 1987 which Ordinance made any offence punishable under any law for the time being in force triable by the Special Court. The Ordinance was later repealed by Act XV of 1987 which was promulgated on 16th November, 1987 and under this Act, only the offences specified in the Schedule attached thereto were triable by the Special Court and the offence under section 392, P.P.C. was not mentioned in the Schedule. In the submission of the learned counsel, the Special Court thus had no jurisdiction to try and convict the petitioners under section 392, P.P.C. We find that this precise plea together with an additional contention that Ordinance II of 1987 being temporary in nature ceased to be effective on the expiry of four months from its promulgation except for the transactions past and closed was raised on behalf of the petitioners in their appeal but the learned Division Bench hearing the appeal repelled this plea/contention holding that the repeal of temporary enactment by a fresh legislation on the same subject-matter which was a situation in the instant case saves the effect of the repealed enactment under section 6 of the General Clauses Act. It was further held by the Division Bench that section 15 of Act XV of 1987 (which repealed Ordinance II of 1987) preserved the continuity of legal proceedings commenced under the Ordinance irrespective of their being inconsistent with the provisions of the Act. Note was particularly taken of the phrase "as if this Act had not been passed" occurring in clause (d) of subsection (2) of section 15 and reliance was placed on a Supreme Court judgment reported as Sona and another v. The State P L D 1970 SC 264. It may prominently be observed that the view taken by the Division Bench was upheld by the Supreme Court with the observation " Section 15 of Ordinance II of 1987 saves the previous proceedings and judgment of the trial Court".

2. In view of the position aforestated, we find no merit in the contention raised by the learned counsel for the petitioners which even otherwise stands concluded by the aforementioned appellate judgment of this Court and the decision of the Supreme Court. This petition is accordingly dismissed but with no orders as to costs.

3. N.H.Q./U-33/L

4. Petition dismissed.