h1

P L D 2000 SC 26

FEDERATION OF PAKISTAN AND OTHERS

V/S

M. NAWAZ KHOKHAR AND OTHERS

Per Saeeduzzaman Siddiqui, C.J.

(a) Constitution of Pakistan(1973) Art. 89

In view of the preceding discussion, we are of the view that Ordinance CXI promulgated on 18-11-1996, was a temporary piece of legislation which would have expired in terms of Art. 89(2) of the Constitution on 17-3-1997. [p. 41]C

(b) Constitution of Pakistan(1973) Art. 89

The contention of the learned counsel for the private applicant does not appear to be correct. Ordinance CXI of 1996 promulgated on 18-11-1996 was no doubt enforced on 1-2-1997, when Ehtesab Ordinance (XX of 1997) was promulgated. However, ordinance (CXI of 1996) was thrice amended between the period from 31-12-1996 to 27-12-1996 before it was repealed and replaced by ordinance XX of 1997. On 1-2-1997, when ordinance XX of 1997 was promulgated the National Assembly stood dissolved and general election in the country were called on 3-2-1997 and therefore. It would have taken some time or the National Assembly to come into existence. In these circumstances, the promulgation of Ordinance XX of 1997 to repeal and replace Ordinance CXI of 1996 as amended by Ordinance CXXIII of 1996, ordinance VII of 1997 and Ordinance XI of 1997, could not be described as arbitrary or improper exercise of power vested in the president under Article 89 of the constitution. The essential conditions mentioned in Article 89 of the constitution for exercise of Ordinance Making power by the president being present at the time of promulgation of ordinance XX of 1997, no exception could be taken to the promulgation of ordinance XX of 1997, Ordinance XX of 1997 was a valid piece of legislation. The said ordinance having been promulgated on 1-2-1997 remained operative until 31-5-1997. [p. 41]D

(c) Constitution of Pakistan(1973) Art. 89 & 264

Before condidering the above contention, it may stated here that if an Ordinance stands repealed under the constitution, the consequences of repeal are provided under Article 264 of the constitution. However, if a law is repealed by a subsequent Act, the consequences flowing from such repeal are to be determined with reference to the provisions of sections 6 of General Clause Act. In the present case the contention was that ordinance XX of 1997 while repealing ordinance CXI of of 1996, though contained a saving clause, did not provide for continuation the proceedings pending under ordinance CXI of 1996, which showed that the legislature did not intend to keep the pending proceedings alive under Ordinance XX of 1997 Repeal of Ordinance CXI of 1996, by Ordinance XX of 1997 was not a case of simple repeal but it was a case of simultaneous repeal and re-enactment of a legislation, and therefore, besides consequences mentioned in section 6 of the General clauses Act, section 24 of the General Clauses Act were also attracted. Ordinance XX of 1997 was a verbatim reproduction of Ordinance CXI of 1996. Ordinance CXI of 1996 was still enforced when it was repealed by Ordinance XX of 1997. Ordinance XX of 1997 was finally converted into a permanent legislation when the legislation passed it as Act IX of 1997. It is, therefore, quite clear that though ordinance CXI of 1996 was a temporary legislation but the legislature intended to provide continuity to its provisions by first repealing but the legislature intended to provide continuity to its provisions by first repealing it by ordinance XX and then converting the later into am Act of legislature by Passing it as Act IX of 1997. [p. 42]E

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