Afaq Riaz Ahmad etc. V. Federation of Pakistan etc.

PLJ 2011 Karachi 191 (DB)

Present: Gulzar Ahmad and Shahid Anwar Bajwa, JJ.

AFAQ RIAZ AHMED and another--Petitioners

versus

FEDERATION OF PAKISTAN through the Secretary Ministry of Law and another--Respondents

C.P. No. D-1476 of 2010 and Misc. No. 5865 of 2010, decided on 4.6.2010.

Prevention of Electronic Crime Ordinance, 2007--

----Ss. 4, 8, 9, 13, 16 & 19--Telecommunication (Re-organization) Act, 1996, S. 31(1)--E.T.O, 2002, Ss. 36 & 36--Constitution of Pakistan, 1973--Art. 199--Provision of Prevention of Electronic Crime Ordinance having lapsed on 4.11.2009--Temporary law which having lapsed could not be continued--Validity--Prevention of Electronic Crime Ordinance being temporary law and it having lapsed on 4.11.2009, proceeding under such Ordinance could not be continued in law--Proceeding against petitioner under Ordinance, 2007 was quashed.    [P. 192] A

1993 SCMR 1589, ref.

M/s. Rasheed A. Rizvi, Ziaul Haq Makhdoom and Mahmood A. Qureshi, Advocates for Petitioners.

Mr. Ashiq Raza, D.A.G. and Mr. Adnan Karim, A.A.G. for Respondents.

Date of hearing: 4.6.2010.

Order

Petitioners' grievance is that despite the provision of Prevention of Electronic Crime Ordinance having lapsed on 04.11.2009, they are being proceeded under the said Ordinance in the Court of VIIth Civil Judge & Judicial Magistrate, Karachi South. Learned Counsel for the Petitioners has relied upon case of Muhammad Arif versus The State (1993 SCMR 1589) to support his contention that a case initiated on the basis of a temporary law which having lapsed/expired could not be continued as the said case also lapses/expires with the lapsing/expiring of the legislation under which it was initiated.

Learned DAG so also learned AAG are unable to controvert such legal position.

We have considered the submission made by learned counsel and have gone through the record.

It appears that a complaint under Sections 4, 8, 9, 13, 16, 19 of Prevention of Electronic Crime Ordinance, 2007 read with Section 31(1) of Pakistan Telecommunication (Re-organization) Act, 1996 read with Sections 36 and 37 of E.T.O. 2002 was lodged against the petitioners. Apparently there seems to be no dispute that Prevention of Electronic Crime Ordinance which was promulgated on 31.12.2007 lapsed on expiry of 120 days but it appears that it was repromulgated and last such repromulgation was made on 8th July 2009 and lapsed on 4.11.2009. Detail of such legislation are given by the petitioner in Para 11 of this petition.

In the case of Muhammad Arif & another vs. The State & another (1993 SCMR 1589) the Hon'ble Supreme Court has observed as follows:

"16.  From the above cited cases, it is evident that there is judicial consensus that where a law is repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of any 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 he imposed as if the law had not been repealed. This is so, inter alia, because of Section 6 of the General Clauses Act, 1897 (which corresponds to Section 4 of the West Pakistan General Clauses Act, 1956), in the absence of any contrary intention manifested in the relevant statute. Since the General Clauses Act, is not applicable to the Constitution, the above provision has been incorporated therein in the form of Article 264. However, the above principle cannot be pressed into service, while dealing with temporary statutes as highlighted in the above treatises on the interpretation of statutes. The general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which were taken under it, would ipso facto terminate."

The rule laid down by Hon'ble Supreme Court seems to be squarely applicable to the present case and no other contrary rule is pointed out to us. The Prevention of Electronic Crime Ordinance being a temporary law and it having lapsed on 4.11.2009, the proceeding under such Ordinance could not be continued in law. Therefore, to the extent of the proceeding against the petitioners under the Prevention of Electronic Crime Ordinance is concerned, the same is quashed. Petitioner may however be proceeded under other provision of law as mentioned in the complaint in accordance with law. Listed application is also disposed off.

(R.A.)     Application disposed of.