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1989 CLC 2103

TARIQ COTTON MILLS LTD. AND ANOTHER
V/S
JOINT REGISTRAR, JOINT STOCK COMPANIES AND ANOTHER

Per Saleem Akhtar, J.(a) Constitution of Pakistan(1973), Article 8, 9, 28.

—Art. 8(2) & 9 to 28–Fundamental Rights and Principles of Policy–Scope and import of–State is prohibited to make any law which curtails or takes away any Fundamental Right and any law so made shall to the extent of inconsistency with such right be void–Definition of “State” is wide and all embracing to include the Federal right be void–Definition of “State” is wide and all embracing to include the Federal and Provincial Government’s Legislative organs from Parliament to the lowest conceivable authority which is empowered to impose tax or cess–Provision of Art. 12(a) provides protection against retrospective punishment.

Fundamental Rights as embodied in Articles 9 to 28 find a unique and supreme place in the Constitution.Article 8 guarantees that any law, custom or usage having force of law in so far it is inconsistent with the Fundamental Rights be void to the extent of inconsistency.The sanctity of the Fundamental Rights has been maintained by providing under Article 8(2) that the State shall not make any law which curtails or takes away any Fundamental Rights and any law so made shall to the extent of inconsistency be void.It is pertinent to note that for purposes of Part II of the Constitution dealing with “Fundamental Rights and Principles of Policy” special meaning to the word’State’has been given.It covers Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, Provincial Assembly, and such local or other authorities which are empowered under law to impose any tax or cess.The definition of State is wide and all embracing to include the Federal and Provincial Government, Legislative organs from Majlis-e-Shoora which includes National Assembly and Senate to the lowest conceivable authority which is empowered to impose tax or cess.Thus restraint has been placed on their legislative power.In order to ensure its observance a declaration has been given that all laws to the extent of inconsistency will be void and no law shall be made in violation of Fundamental Rights but if it is made then to the extent of inconsistency with any Fundamental Right it shall be void and inoperative.The Fundamental Right are “beyond the reach of the State including Government and Legislature”.It may be noticed that while defining State for Part II of the Constitution two organs viz.Executive and Legislature have been included but no reference has been made to the Judiciary.The reasons are obvious.The apprehended breach is always from the Executive and Legislature and not from Judiciary.The reasons are obvious.The apprehended breach is always from the Executive and Legislature and not from Judiciary whose role is to enforce the Fundamental Rights and judicially review legislation.

Article 12 of the Constitution (1973) prohibits convictions or sentences under ex post facto laws or a higher punishment than permissible under the law at the time of commission of the offence.This concept is not a new phenomena in the Constitution guaranteeing Fundamental Rights which is analogous to the recognition of Human Rights as set out in Article11(2) of the United Nations Universal Declaration of Human Rights, section 9(3) of the USA Constitution, Article 20 of the Constitution of India and similar provisions in many other Constitution of various countries.

Article 12 of the Constitution prohibits making an act a crime for the first time and giving it retrospective effect and further prohibits imposing higher penalty or inflicting greater punishment than what could be imposed or inflicted at the time of the offence.Any law raising the penalty for an existing offence cannot have retrospective effect.

Article 12(a) provides protection against retrospective punishment.No person can be inflicted with punishment in respect of an act or omission which was not punishable at the time he committed or omitted to act.A law which provides punishment for an act which was not an offence at the time of commission of the act is a retrospective law which governs the past acts.Such retrospective laws affect and impair vested rights imposing new punishment or obligation.They are made to disturb the existing rights and conditions of the past .In order to bring the law within the ambit of Article 12 it should be penal in nature imposing punishment.

Maintaining the same spirit Article 12(b) contemplates a different situation.A person guilty of an offence cannot be punished by a penalty greater than the penalty provided at the time of commission of the offence. [pp. 2106. 2107]A,B & C

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