Section 489-F P.P.C., which has been inserted in the Pakistan Criminal Code, 1860 (PPC) pertaining to the action of dishonoured cheques as a criminal offence by virtue of Presidential Criminal Amendments Ordinance No LXXXV of 2002 promulgated on 25th October, 2002 had become infractuous after the lapse of 120 days automatically, as the instant Ordinance was not tabled before the Parliament in the shape of a bill for approval as an act of Parliament.
Any fresh or any new Presidential Ordinance pertaining to Section 489-F P.P.C. has not been promulgated by the President of Pakistan.
Section 489-F P.P.C. is no more in the field or books of statute, the said provision has become infractuous and the Presidential Criminal Amendments Ordinance, 2002 has died its natural death after a lapse of 120 days in view of Article 89 of the Constitution, 1973.
That recently a single bench of Lahore High Court has held in a reported judgement "KLR 2005 Cr. Cases 39" in the case of Mian Hasnain Ahmed Haider v. SHO that the above criminal amendment ordinance has become infractuous. Even the above Ordinance had not been covered/protected by the Legal Framework Order, 2002. (The LFO), by virtue of Article 270 AA of the Constitution of Pakistan, 1973 with reference to Legal Framework Order, 2002 (LFO), inserted in the Constitution on 21st August, 2002 and now action of dishonoured cheques has become a civil dispute only between the parties and no more a criminal offence.
That section 489-F P.P.C according to which the dishonoured cheques was made criminal offence by inserting Section 489-F, P.P.C by promulgation of Criminal Amendments Ordinance, 2002 has expired/lapsed.
A contrary view has been taken in a reported judgement in case of Abdul Rehman v. SHO and others reported as 2005 P Cr. LJ 684 by a single bench of the Lahore High Court comprising Justice Muhammad Farukh Mahmood that "on 31-12-2003 Act No III of 2003 Constitution (Seventeenth Amendment) Act was promulgated and by Act of the Parliament all laws of Act No III are validated." Para 9 (693-C).
It is held in para-10 (relevant 695-D) of the judgement (Supra). "The upshot of the whole discussion is that the provisions of Section 489-F, P.P.C. introduced through Ordinance No XXXV are alive and in force. I am fortified in my view by placing reliance on the judgement passed by the learned division bench of this Court dated 12-05-2003 in the case titled Chaudhry Zaffar Ali v. Chairman, NAB and others PLD 2003 Lah 593." in PPC."
Although when the judgement reported as KLR 2005 Criminal Cases 39 was passed the 17th amendment was not enforced and only the LFO was promulgated, but officially the date of insertion of Article 270-AA in the Constitution, 1973 is 21st August, 2002 and/or not 31-12-2003 as the Article 270-AA was inserted officially and/or firstly through LFO on 21st August, 2002 and/or not through Act III of 2003 (Seventeenth Amendment) Act, which is dated 31-12-2003.The same can be proved by the published copies of Constitution of Pakistan, 1973 by the Government of Pakistan between the period of 21st August 2002 till 31st December 2003.
The words used "insertion of this article" as contained in article 270 AA, means when the article was inserted firstly and/or officially which is in any case on 21st August 2002. In any case claiming the period of 25th February 2003 (when Criminal Amendment Ordinance XXXVII of 2002 lapsed, the legal enforcement of section 489F PPC cannot be accepted/warranted.
In any case the operation of Section 489-F PPC from 25th February 2003 is unwarranted/unconstitutional.
Moreso; when the Criminal Amendment Ordinance, 2002 was promulgated, the Parliament, including the National Assembly, was in function, the wording of the Ordinance is also that the Assembly is not in session. As far as section 489-F is concerned, which was inserted by virtue of Criminal Amendment Ordinance, 2005 on 25th October, 2002 is subjective to Article 89 of the Constitution, 1973 and/or cannot be covered by any Constitutional Amendment.
Article 89 of the Constitution provides that an Ordinance can be promulgated by the President of Pakistan in exercise of the power conferred on him under Article 89 of the Constitution of Pakistan, which envisaged that the President may, except when the National Assembly is in session, if satisfied that the circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
Sub-clause (a) o sub-article (a) of Article 89 further provides that (i) before the National Assembly if it (contain provisions dealing with all or any of matters specified in clause (2) of Article 73), and shall stand repealed at the expiration of four months from the promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution (ii)----- The Ordinance will become Act if it has been laid before the National Assembly through a Bill and if passed by the National Assembly and signed by the President.
After the expiry of a period of four months, the Criminal Law Amendment Ordinance LXXXV, of 2002 died its natural death on 25th February 2003. No further Ordinance in continuation of the said Ordinance has been promulgated or enforced by the President.
After General Election dated 10th, October 2002 of the National Assembly 25th October 2002 the Ordinance No LXXXV of 2002 was promulgated in violation of Article 89 of the Constitution 1973 and/or beyond the time period of three (3) years as granted by the Supreme Court in Zafar Ali Shah case which expires on 12th October 2002 and the Ordinance LXXXV of 2002 promulgated on 25th October 2002 beyond the protected/exempted period in view of general elections held on 10th October 2002 and/or expiry of exempted/projected period on 12th October in view of Zafar Ali Shah's case has no Constitutional and/or legal protection.
The issuance of Ordinance LXXXV of 2002 on 25th October pursuant to PCO 1999 and/or proclamation of emergency dated 14th October 1999 instead of article 89 of the constitution is itself very debatable.
That after the general elections for the National Assembly on 10th October 2002 as well as enforcement of LFO on 21st August in which Article 270 AA was inserted, the promulgation of Presidential Ordinances is subject to Article 89 of the Constitution, 1973 as Validation of PCO, 1999 and/or Proclamation of Emergency dated 14th October 1999 has ceased to its end after enforcement of LFO as well as general elections held on 10th October, 2002 the Validation awarded to "coup d'etat" dated 12th October 1999, Proclamation of Emergency dated 14th October 1999 and/or PCO,1999 by virtue of Zafar Ali Shah's case by the apex Court of Pakistan came to an end on 12th October,2002.
By virtue of any statues Law and/or Constitutional Amendment(s) the protection which was to be given to the Ordinance LXVVV of 2002 dated 25 October, 2002 cannot be awarded after the general elections of National Assembly held on 10th October 2002 and/or lapse of period of 3 years on 12th October 2002 by virtue of Zafar Ali Shah's case.
It is an established fact that Article 89 of the Constitution, 1973 was in operation, when Ordinance XXXV of 2002 was promulgated as well as infact article 270-AA having no overriding effects upon Article 89 of the Constitution. Further in Zafar Ali Shah's Case (PLD 2000 SC 869) the apex Court of Pakistan granted the validation to the "coup d'etat " of 12TH October, 1999 and awarded three years from the date of "coup d'etat ".
Further the powers to promulgate the laws/statutes and/or to amend the Constitution, 1973 to run the day to day affairs were also given, it is held by the Supreme Court of Pakistan in the supra judgement by virtue of short order dated 12th May, 2000 as fallows;
"On 12th October, 1999 a situation arose for which the Constitution provided no solution and the intervention by the Armed Forces through an extra constitutional measure became inevitable, which is hereby validated on the basis of the doctrine of State Necessity and the principle of "Salus populi est suprema lex."
Chief Executive, having validly assumed power by means of an extra Constitutional step, in the interest of the State and for the welfare of the people, is entitled to perform all such acts and promulgate all legislative measures as enumerated hereinafter, namely:-
All acts or legislative measures, which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it.
All acts which tend to advance or promote the good of the people;
All acts required to be done for the ordinary orderly running of the State; and
That these acts, or any of them, may be performed by the Chief Executive or through Ordinances on his advise.
It is held in Zafar Ali Shah's case reported in PLD 2000 SC 869 by a full bench of the apex Court of Pakistan while validating the PCO, 1999 and Proclamation of Emergency dated 14th October, 1999 (the relevant Page 1216 Z2".)
"State necessity, doctrine of, and salus populi est suprema lex, principle of ----- Applicability ----- the Supreme Court, while recording in detail the factors for action by Armed Forces validated the same on the basis of the doctrine of State Necessity and the principle of salus populi est superma lex for a transitional period to prevent any further destabilisation, to create corruption-free atmosphere at the national level through transparent accountability and revival of economy before restoration of democratic institutions under the Constitution, in that Constitution offered no solution to the prevailing crisis.
The National Assembly is the highest representative body, which reflects the will and aspirations of the people of Pakistan. Similar is the status of a provincial assembly in a province. Senate, being a symbol of unity of the federating units has its own utility for the country as a whole. It is, therefore, of utmost importance that the impugned suspension of the above democratic institutions is examined with great care and caution, otherwise it would adversely affect the democratic process in the country, which may cause instability, impair the economic growth and resultantly prove detrimental to the general well-being of the people."
The PCO 1999 and/or Proclamation of Emergency dated 14th October, 1999 was validated by the Supreme Court of Pakistan for a transitional period of three years, the relevant portion of the Supra Judgement is as follows:-
"Effect of action of Armed Forces was not that legal order in the country had been completely suppressed or destroyed, but it was merely a Constitutional deviation for a transitional period so as to enable the Chief Executive of Pakistan to achieve his declared objectives." [PP.1219, 1220, 1222] QQ & BBB]"
Three years time from 12-10-1999 to 12-10-2002 was granted to the Chief Executive to exercise his power(s), in pursuant of PCO, 1999 and proclamation of Emergency dated 14th October, 1999 by the full bench of apex Court of Pakistan, the relevant paras runs as under:-
"Supreme Court, after having regard to all the relevant factors involved allowed three years' period to the Chief Executive of Pakistan with effect from the date of the Army take-over ie 12-10-1999 for achieving his declared objectives ---- Chief Executive of Pakistan shall appoint a date, not later than 90 days before the expiry of three years, for holding a general election to the National Assembly and the Provincial Assemblies and the Senate of Pakistan." [PP 1219, 1220, 1222] QQ & BBB]
The date of 25th October, 2002 is also beyond the period of three years, when the powers to amend an/or promulgate the laws lapsed as well as after the general elections on 10th October, 2002 and/or when the elected National Assembly was very much in existence, the so-called validation to the Ordinance LXXXV of 2005 dated 25th October, 2005 is beyond the scope and/or spirit of Zafar Ali Shah's case as well as LFO dated 21st, August, 2002, which is the primary basis of 17th amendment of the Constitution, 1973. Further articles 89 and 270AA are conflicting to each other and the normal procedure of legislation in respect of Section 489.F was not adopted which is the creator of constitution, 1973. The wisdom and/or reasons to give validation to Ordinance XXXVII of 2002 cannot be accepted, in the backdrop of XVII the Constitutional Amendments.
Article 270-AA of the 17th Constitutional Amendment, according to which the Ordinance(s) after the period of 14th October till 31st December 2003 has been validated/protected and/or the Article 4 of LFO 2002 and Notification dated 16.11.2002 reviving the Article 89 of the Constitution, 1973 pursuant to Article 4 of LFO 2002 is inconsistent, contradictory and/or against the myths, spirits and/or rules laid down by the Supreme Court in the reported judgement of Zafar Ali Shah's case reported in PLD 2002 SC 689.
Even the reported judgement P.Cr. K. T 2005 684 the time framework of three years more period awarded to the Chief Executive/President of Pakistan and/or Legal prosecution/validation to CPO, 1999 and/or Proclamation of Emergency dated 14th October, 1999 for a transitional period from 12th October, 1999 to 12th October, 2002 was not discussed.
The protection allowed to the Ordinances in 17th Constitutional Amendments beyond the period of 12th October , 2002 is inconsistent and/or contradictory to the rules framed in Zafar Ali Shah's case as well as against the spirits and/or practices of the Constitution as well as Parliament.
And/or till the date of 31st December, 2003 from 25th February, 2003, all the proceedings/FIRs lodged and/or actions taken under Section 489-F PPC in view of expiry of the Ordinance are void in any case and the dictum laid down in the reported judgement 2005 KLR Cr. Cases 39 is legal and/or valid as no protection was existing in respect of said Ordinance, the judgement reported as 2005 KLR Cr. Cases 39 was also delivered in the same period, when even the 17th Constitutional Amendment was not existing.
The extension of validity date from 21st August, 2002 to 31st December, 2003 by virtue of 17th Constitutional Amendment is due to mistake and/or misconception and as the age for the appointment of judges of High Court was not reduced from 45 to 40, the same mistake has been done to that article.
It is a Constitutional requirement that if the National Assembly is in existence but not in session the President can promulgate the Ordinance, having the life of 120 days. Further after the revival of Constitution and general elections, the Ordinance can be promulgated under Article 89 of the Constitution, 1973 and/or not otherwise.
Even after the general election issuance of any Presidential Ordinance under PCO 1999 and/proclamation of Emergency dated 14th October 1999 instead of article 89 is not warranted.
The instant Ordinance dated 25-10-2005 is not covered by LFO which protected the legislation between 12-10-1999 to 21-08-2002 but the Ordinance promulgated after the general elections dated 10th October, 2005 cannot be protected by any stroke of 17th Constitutional Amendment.
That if the President or Parliament is intended to re-enforce or re-promulgate the statute/ordinance regarding the 489-F PPC, then ambiguity in the above present disputed law(s) relating to of Section 489-F PPC may be removed and it will be proper that as in India Chapter XVII and sections 138, 139, 140, 141, 142 were inserted in the Indian Negotiable Instrument Act, 1881 by promulgation of Banking/Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, (Act 66 of 1988 (Act 66 of 1988) and/or introduction of Chapter XVII of the Indian Instrument Negotiable Act, 1881 which provides filing of the criminal complaint before the Metropolitan Magistrate and a 15-day notice under Section 138 is required by the complainant to make payment of dishonoured Cheque.
The proposed amendments are that in Pakistan proper modifications like in India in Negotiable Instruments, Act, 1881 be made by inserting Chapter XVII and the Sessions judges be empowered to entertain the direct criminal complaint, the stale cheques as well as dishonoured cheques referred to above will not be included in the clause of dishonoured cheques in which criminal remedy will be available.
Further in both statures the Financial Institutes (Recovery of Finances) Ordinance, 2001 and/or in the proposed amendment in Negotiable Instrument Act, 1881 punishment should be similar in which is proposed one year and the fine should be determined not exceeding to the twice or double of the cheque's amount.
Section 138 of Indian Negotiable Instruments Act, 1881 as inserted in 1988 provides the punishment with imprisonment for a term which may extend to one year, or with fine which may extend to twice of the amount of the cheque or with both. It is also provided that the cheque should not be a "stale cheque" and the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. Further the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of time, within fifteen days of the receipt of the said notice.
The Offence should by Compoundable, non-cognisable, bailable under the proposed amendments and/or proposed/suggested Criminal Laws regarding dishonoured cheques which will replace Section 489-F PPC and/or Section 20 Sub Section (4),(5) and (6) of Financial Institution(s) (Recovery of Finance) Ordinance, 2001.