JAVED NAWAZ vs THE STATE

1. ' WALI MUHAMMAD KHAN, J.---Javed Nawaz, petitioner herein, calls in question the judgment dated 30-10-1993 whereby a learned Division Bench of the Lahore High Court rejected the preliminary objections raised by the petitioner.

2. ' We have heard Raja Muhammad Anwar, Advocate, for the petitioner; Raja Muhammad Akram, Advocate, for the respondent/State; and have perused the record of the case.

3. ' The undisputed facts of the case are that the petitioner alongwith his co-accused were tried by the Special Court constituted under the Suppression of Terrorist Activities Act, 1975 for allegedly abducting Shaikh Muhammad Aftab on 22-4-1990 is case F.I.R. No, 192 dated 22-4-1990 Police Station Gulberg, Lahore, convicted under section 365-A, P.P.C. And sentenced to life imprisonment and forfeiture of property in favour of State. An appeal bearing No, 861 of 1990 was filed before the High Court under section 7 of Act XV of 1975 and during the hearing of the appeal a preliminary objection was raised that though at the time of the commission of the alleged offence, Ordinance of 1990 promulgated on 17-3-1990 included section 365-A, P.P.C. To the Schedule of Offences but since the same was not placed before the National Assembly under the mandatory provision of the Constitution, it lapsed on 16-7-1990 and at the time of submission of challan on 20-9-1990 section 365-A having ceased to be a scheduled offence, the Special Court constituted under the Ordinance had no jurisdiction to try the case. Ordinance XI of 1990 was promulgated on 31-10-1990 amending the Schedule to include section 356-A, P.P.C. Which also lapsed on 2-2-1991 but section 2 thereof contained a deeming clause, according to which, the amendment was deemed to have been so inserted on the 3rd of September, 1989. The conviction and sentence of the appellant was' ordered on 22-11-1990 when section 365-A, P.P.C. Was part of the Schedule and exclusively triable by the Special Court.

4. ' The learned counsel for the petitioner vehemently argued that under the spirit of Article 89 of the Constitution an Ordinance having lapsed could not be re-promulgated and in support of his contention he cited the judgment C of this Court in Akhtar Hussain v. The State (1993 SCM R 1522) whereby leave was granted to consider the important Constitutional points involved.

5. ' The learned High Court, besides relying on the judgment of the Lahore High Court in Liaqat Pervaiz Khan v. Government of the Punjab (PLD 1992 Lahore 517) also placed reliance on the judgment of this Court in case Muhammad Naeem v. The State (1992 SCM R 1617) in which, more or less, identical legal points were involved and it was held that retrospective effect could be given to the re- introduced Ordinance from an earlier date. The said judgment of this Court is still holding the field and so long as it is not dissented from in a later judgment by a larger Bench, is binding on all the Courts in Pakistan under Article 189 of the Constitution. In the judgment cited by the learned counsel for the petitioner only leave to appeal has been granted as the point agitated involved question of general legal importance and interpretation of the provision of the Constitution and so long as authoritative judgment is not pronounced, one way or the other, the earlier judgments of this Court shall remain in force.

6. ' Consequently, there is no merit in the instant petition and the same is dismissed.