Thursday 9 April 2015

IMPORTANCE OF CRIMINOLOGY IN MODERN ERA HISTORICAL ASPECTS OF IT AND STAGES WITH WHICH IT EVOLVE BY MR. M. IMRAN KHAN BALOCH ADVOCATE



Criminology





The development of social scientific c theory and knowledge takes place not simply
within the heads of individuals, but within particular institutional domains. These
domains, in turn, are shaped by their surroundings: how academic institutions are
organized, how disciplines are divided and subdivided, how disputes emerge, how
research is funded and how the findings are published and used. In Criminology, an
understanding of these institutional domains is especially important for knowledge is
situated not just, or not even primarily, in the ‘pure’ academic world, but in the
applied domain of the state’s crime control apparatus.
                                                                                            (Cohen, 1981: 220)

      I.            Composition of word
The word criminology is composite of two words criminal + logy. Literally, it means a systematic study of the criminals
   II.            Introduction
Man is a social animal. Human beings live in communities and groups together engaged in mutual concourse. In order to keep order and avoid conflict it is essential to have a set of rules and regulations of collective behavior. Each community and each group prescribes its own behavioral norms and standards which keep the wheels of society well-oiled and as far as possible frictionless; only thus can a community make progress. The norms and standards prescribed in a particular society determine the activities of the individuals which can be considered normal or permissible any deviation from these permissible acts is an abnormal behavior. If these abnormal acts are pronouncedly deviant and pose threat to communal order and peace, these are called crimes. Thus crimes may be defined as an act inimical to social peace and harmony. The crimes may be defined as an act inimical to social peace and harmony. The crimes are hurtful to social stability. In order to achieve prevention of crimes, we need to study the various causes and background of crimes systematically. The discipline engaged in such a systematic investigation is known as criminology. Before making a detailed study of Criminology it is essential to understand its meaning and scope
III.            Meaning
The word criminology is composite of two words criminal + logy. Literally, it means a systematic study of the criminals, that is, persons who break or offend the social or group law. However, since the offences committed by criminals are crimes; and as crimes occur in society, the term criminology fully means a study of crimes as well as criminals in relation to society. It also tries to determine the causes of these and also thereby recommends preventive measures. The science of criminology is a scientific and systematic study of a social phenomenon
IV.            Scope
The interests of criminologists include the study of nature of crime and criminals, origins of criminal law, etiology of crime, social reactions to crime, and the functioning of law-enforcement agencies and penal institutions.
Like other social sciences, the scope of criminology is also quite vast and extensive. It is related to each and every social class and structure. Though the scope of criminology is very vast and coextensive with many sciences, the criminologists have tried to limit its scope in order to be able to study the subject scientifically, systematically and exhaustively. The viewpoints of certain notable criminologists are given below
(A) According to Sutherland the science of criminology, “includes within its scope the processes of making laws, of breaking laws, and of reacting towards the breaking of laws.” In the opinion of Sutherland criminology has three distinct aspects of departments. Though distinct, these are nonetheless not independent, but inter-linked. A thorough study of these aspects exhausts the scope of criminology; to study all of them is the same as studying the whole science of criminology. In accordance with Sutherland’s description of the scope of criminology, we can divide it into departments:
(a) The sociology of law-In this we study the nature of crime from legalistic point of view. Also we investigate into the effects of present laws upon them and study the possible reforms in the laws in order to prevent and control the occurrence of crime. The major concern of the sociology of law is to critically examine the impact of various legal systems upon crime. This study can go a long way to evolve suitable changes in the laws to curb crime.
(b) Criminal Etiology-In this department a systematic investigation into the various causes of crime is made. Here we study the social and personal factors responsible for the occurrence of crime and growth of criminals.
(c) Penology-Besides knowledge and determination of the causes and factors which generate or encourage crime, it is equally, if not more essential to know the ways and means of controlling and preventing the crime. This aspect is studied systematically and in a scientific manner to achieve control over crime. The fact and theories in this regard from the scope of Penology, an important department of criminology.
   V.            Nature
The foregoing discussion about the meaning and description of criminology makes abundantly explicit and clear the nature of this science. Fundamentally speaking, the task of criminology is a scientific, systematic, statistical, structural and functional in depth study of crime. The behavior covertly deviant is liable to become overtly offensive of social norms and laws, both from sociological and psychological standpoints. Besides having a theoretical understanding of crime, criminal and his behavior, the object of criminology is also to devise effective tools to minimize the incidence of crime, reform and rehabilitate the criminal. Lastly, criminology also tries to suggest reform in penal code and its enforcement in order to make these rational and humanitarian.
VI.            Object
The objective of criminology is the development of a body of general and verified principles and of other types of knowledge regarding this process of law, crime, and treatment."

VII.            Criminology deals with
Criminology involves three different types of problems:
(1) The problem of detecting the law breaker, which is the work of the detective, the police officer, the medical specialist, the chemist; in other words, the field of criminalistics. The Pioneer Series article on Hans Gross discusses the pioneering
work of this man in the field of criminalistics.
(2) The problem of the custody and treatment of the offender once he is detected and legally judged to be guilty, which is the work of the penologist. Social workers, psychiatrists, sociologists, psychologists, juvenile court judges, probation
and parole officers and others are engaged in correction work in connection with the prevention and control of delinquency and crime. Pioneer Series articles on Havilland, Maconochie, Doe, Aschaffenburg, Ray, and Maudsley deal with one
or more aspects of correctional work.
(3) The problem of explaining crime and criminal behavior, which is the problem of scientifically accounting for the presence of crime and criminals in a society. The legal aspect of crime is of interest to the lawyer and to the sociologist who is studying the sociology of criminal law.
VIII.            Definitions of Criminology

Neither the definition of "crime" nor that of the "criminal" is standardized or universally accepted as a unit of criminological research
Criminology is a contested, contradictory and interdisciplinary discourse marked by constant incursion, interactions, translations, deviations and transgressions. Competing theoretical perspectives meet and sometimes they are able to speak to, listen to and understand each other, at others they appear not to share any common discourse. There is, therefore, no one definition of ‘Criminology’ . . . but a multitude of noisy, argumentative criminological perspectives.
                                                                        (McLaughlin and Muncie, 2006: xiii)

(1) According to an eminent sociologist Sutherland: “Criminology is the body of knowledge regarding crime as a social phenomenon.” This definition exhibits sociological bias and regards crime to be reaction to certain set of social factors and causes.
(2) According to an eminent criminologist Elliot: “Criminology may be defined as the scientific study of rime and its treatment.” This definition, besides emphasizing the scientific investigation into the nature and etiology of crime, stresses the practical or utilitarian nature of this body of knowledge, namely, devising ways and means to prevent or reduce the incidence of crime and rehabilitate criminals as normal members of the society.
(3) According to renowned criminologist D. R. Taft: “Criminology is the study which includes all the subject matter necessary to understanding and prevention of crimes together with the punishment and treatment of delinquents and criminals.” This is a comprehensive definition and describes theoretical as well as practical aspects of the study. It brings out clearly the fact, which may get overlooked usually, that criminology is concerned not with the offences committed by adults only but also deals with juvenile offences.
(4) According to another noted sociologist Webster, the science of Criminology may be described to be “the scientific study of crime as a social phenomenon, or of criminals and their mental traits, habits and discipline.” This definition has the merit of emphasizing equally the sociological as well as psychological aspects of the crime and the criminal.

IX.            Subject matter
Criminology is the body of knowledge regarding crime as a social phenomenon. It includes within its scope the processes of making laws, of breaking laws, and of reacting towards the breaking of laws . . . The objective of Criminology is the development of a body of general and verified principles and of other types of knowledge regarding this process of law, crime and treatment.
                                                                      (Sutherland and Cressey, 1955: 3)
   X.            Key features of criminology
There are number of features about criminology:
1)       As a discipline it is held together by a substantive concern: crime.
2)       This means that it is multidisciplinary in character rather than being dominated by one discipline. As a consequence, in order to make sense of what criminologists might be saying it is important to understand the conceptual apparatus with which they might be working.
3)       Thus criminologists frequently disagree with each other.
4)       Despite such disagreements, it could be argued that there is some consensus
around some features of what constitutes the crime problem, although much less agreement on how to ‘solve’ that problem.
5)       Nevertheless criminologists have been historically (and still are contemporaneously) concerned to offer some form of intervention in the policymaking process.
6)       These features of criminology sometimes resonate with popular (common
sense) thinking about crime and sometimes challenge such thinking. Such tensions are a perpetual challenge for the discipline.
7)       These debates are taking place in a ‘late modern’ society increasingly preoccupied with crime, risk and insecurity.
These features of criminology render it both stimulating and frustrating
as an area of study. They also reflect the more general strengths and weaknesses
between theoretical and practical concerns of any applied area of
study.
XI.            Facts about crime
Braithwaite (1989: 44–9) states that there are 13 ‘facts’ about crime that criminology needs to explain, which more ‘common sense’ knowledge can sometimes fail to appreciate:
1.       Crime is committed disproportionately by males.
2.       Crime is perpetrated disproportionately by 15–25 year olds.
3.       Crime is committed disproportionately by unmarried people.
4.       Crime is committed disproportionately by people living in large cities.
5.       Crime is committed disproportionately by people who have experienced high residential mobility and who live in areas characterized by high residential mobility.
6.       Young people who are strongly attached to their school are less likely to engage in crime.
7.       Young people who have high educational and occupational aspirations are less likely to engage in crime.
8.       Young people who do poorly at school are more likely to engage in crime.
9.       Young people who are strongly attached to their parents are less likely to engage in crime.
10.   Young people who have friendships with criminals are more likely to engage in crime themselves.
11.   People who believe strongly in complying with the law are less likely to violate the law.
12.   For both men and women, being at the bottom of the class structure –whether measured by personal socioeconomic status, socioeconomic status of the area of residence, being unemployed or belonging to an oppressed racial minority – increases rates of offending for all types of crime apart from those for which opportunities are systematically less available to the poor.
13.  Crime rates have been increasing since the Second World War in most countries, developed and developing.
XII.            View point of Elliot and Merrill
The eminent scholars Elliot and Merrill have made an exhaustive and thorough study regarding the scope of criminology. According to these scholars, in criminology we study four sets of facts. These are as follows:
(a) The Nature of Crime-What are the features of crime? What type of action is crime? In what respect does a criminal act differ from a social or moral act? Is it just the action which may be considered criminal or can the motive make difference to our description of a crime? For example, the theft committed for personal gain and the theft committed for impersonal reasons or social gain are both cases of theft. Can we make any distinction between the two? The answers to these questions tell us the nature of crime.
(b) Investigations into the causes of Crime-Under this aspect of Criminology we study the reasons of criminal behavior. The different types of crime have different causes. Are these differences apparent or real? Can we come by a general theory of crime which will be adequate to explain all types of crime? Are there relations, inverse or direct, between various crimes. These questions are investigated under this head. Besides, we also study the question of responsibility of crimes. If criminals are made and not born, who is responsible for encouraging criminality? Is it parent education or social system that is responsible in conjunction or one of these alone? All these questions form the subject matter of this aspect of criminology.
(c) Individualized Study of Criminals-How and when does one turn into a criminal? What particular event or series of events happen which turn man towards criminality? In order to know all these facts we have to study in detail the personal lives of the criminals. Also we have to study the life of a person in totality for understanding the nature of crime and criminal. For this purpose we make use of what has come to be known as the technique of case-history method.
(d) Study of Prevention of Crime & Reform of the Criminal-Most obviously crimes is inimical to the interests of the society. They not only disturb the social equilibrium but make life hell for the criminal as well as his relatives. Even more, due to crime the normal law abiding citizen lives in fear. Therefore it is most essential to devise ways and means to prevent crime and reform the criminals. Should the system of punishment the deterrent, preventive, reformative or exemplary? What type of punishment is adequate for each type of crime? Such questions are studied under this head.
XIII.            Methods Of Criminology
The successful growth and effectiveness of scientific and systematic study requires the sophisticated and well developed methods and techniques, suited and attuned the nature and scope of the study. The techniques of criminology fall into two categories, which are
a.       General Methods.
b.      Specific Methods
XIV.            Historical Development
Criminology is the scientific procedure to studying both social and individual criminal actions. It is divided up into several separate disciplines including psychology, economics, political science, natural science, biology and the evolution and development of people. While other investigative professionals are in charge of who committed a crime and how, criminologists are responsible for answering why someone would be led to breaking the law or causing a crime. The field of study has a long, rich history and has changed a lot.
Step 1
Criminology truly began in Europe between the late 1700’s and the early 1800’s. Classical school of criminology founders were theorists on crime and punishment development. These people include writers Cesare Beccaria and Jeremy Bentham. Although torture was taking place all over the continent, especially for confessions and testimonies, classical school believed torture to be wrong. According to the classic school of thought, crimes are committed through free will. People know what they are doing and should be punished. Those consequences should be strong enough to deter other people from the crime and should be harsher than the criminal gain. They did explain that the criminal justice system drastically needed to be modernized and improved. At that time, criminal justice included painful torture such as stretching, crushing and stabbing of the accused bodies. The classical school aimed to improve the system partly by limiting or eliminating the torture. It marked the beginning of great progress for the criminal justice system.
The Neo-classical school of thought followed the classic school and brought with it a few revisions. For one, this way of thinking suggests that people can be led by behavior, which can be irrational. It also suggests the world is imperfect and therefore there will always be mistakes. Self-defense is included in the neo-classical school of thought too. Famous neo-classical criminologists include Raymond Saleilles, author of The Individualization of Punishment and his teacher Gabriel Tarde.
Determinism is the belief that all actions are pre-established in time and that free will is only an illusion. It, along with the requirement of scientific evidence for criminal conviction, falls under the positivist school of thought. Positivists believe that all people are different, both intellectually and physically. Punishment within the positivist school of thought would not be determined by crime, rather by person. Also, correction, treatment and rehabilitation are theoretically possible within all criminals and those that cannot be fixed should be killed. Lombroso is credited with being the father of criminology and a positivist.
Step 2
In the 1920s, Robert E. Park and Ernest Burgess presented their Chicago school of thought through the University of Chicago. The study related criminology to sociology and provided research on concentric zones, or zones in transition where people tend to be more criminally active than others. Through the addition of Henry McKay and Clifford Shaw’s research specifically on juvenile delinquents, a new social ecology study was developed. The Chicago school of thought determined that crimes tend to be taught by older criminals whom people may be associated with either personally or professionally.
Contemporary criminology includes a similar hedonistic theory that people can deter emotions and actions according to incentive manipulation. Thus, criminology today includes categorizing criminal’s motives whether they are instrumental or expressive. Instrumental motivation means the person has more incentive, outside the act itself, for committing a crime. There is a tangible benefit. For example, contract killers have the added incentive of money. Gang members may commit crimes for the initiation incentive. When there are obvious signs of instrumental motivation, there are generally harsher punishments for crimes as there is proof behind premeditation. Expressive motivation is different than instrumental as it includes acts done out of emotion. The crime itself is the desired result. Common feelings for expressive motivation crimes include anger or rage, fear, jealousy and passion. They are frequently committed in the heat of the moment as a means of overpowering the source of the criminal’s frustration. In these instances, fifty-seven percent of the crimes occur to acquaintances which include friends and relationships outside of marriage. Also, fifty three percent of the homicides are blamed on arguments.
XV.            Importance Of Criminology
Criminology Is very important in following two aspects
a.       Theoretical importance
b.      Practical importance
XVI.            Theoretical Significance
Explaining the theoretical significance of the science of criminology the eminent criminologist Sutherland writes; “This knowledge will contribute to the development of other social studies and through other social studies it will contribute to efficiency in general social control.”
The foregoing observation of Sutherland is extremely significant as it brings into relief the theoretic importance and value of the science of criminology. The chief theoretic benefits of criminology are the following:
(1) Knowledge of Crime-Data-In every social community and group, there are always some criminals and incidence of crime. It is not humanly possible to bring about an ideal republic or perfect society in which every chance of criminal behavior has been eliminated. The nature of crime and criminals may undergo sea-change, but the very existence of crime cannot be uprooted. This is not difficult to appreciate. In crime psychosis we have two kinds of factors: personal and social .It is not possible to eliminate the aggressive and acquisitive tendencies from man and, again, it is equally impossible to eliminate all inequalities and anomalies from any society. This is borne out by the fact that even under communist regime crimes are not non-existent. Therefore, given the kinds of men and societies known to man, we can safely say that each society, even a social group, harbours some criminals. A systematic, scientific and unbiased study of criminology furnishes us with factual, true and realistic data about crimes and criminals; this results in increase in our knowledge. By studying criminology we also learn about the kinds or types of crimes and criminals and also about the modus essendi as well as modus operandi of crimes. This enables us to compile what may be called taxonomy of crime, that is, an extensive and deep classification of crimes.
(2) Criminology attempts both extensive and intensive study of crime under all perspectives and by taking into account every possible viewpoint. Thus its analysis and description of crime is scientific, authentic and reliable. This analytical description helps in determination of the exact causes of various categories of crime, and this information, in turn, helps to formulate preventive and remedial laws regarding crime. Besides helping to make laws, criminology also carries out extensive surveys regarding the impact of various laws on the actual incidence of crime. It is found that a particular law, instead of curbing crime, encourages it, the law is amended in the light of fresh evidence. Thus, the various laws regarding prohibition and narcotics are cases in point. In the light of modern knowledge gained by extensive surveys and in-depth studies, there are proposals to declare suicide not criminal. In Denmark and many other civilized nations, pornography has been declared non-criminal. This has had salutary impact upon society. In England, homosexuality among consenting adults is now no longer criminal. Thus we find that constant review of the relationship between crime and law help to make penal laws more and more rational and humane. Even in a highly orthdox society like Indian, abortion has been made non-criminal. There is also growing public opinion in favour of relaxation of obscenity laws inIndia. Kissing and nudity on screen should be permissible is the view of G. D. Khosla Commission. The rationale behind all such moves is the discovery by Criminologists that greater the repression of natural instincts, greater the thwarting of sensuous pleasure, greater is the incidence of perversions and sadistic crimes. It is better to let people decide what is good for them and as long as this “good” does not contravene the rights of others, it must be allowed. From the above discussion it is plain that the science of criminology goes a long way in rationalizing and humanizing the penal legislation.
(3) Information about White-Collar Crime-To an average man, the nature and number of crimes is quite definite. Asked to enumerate crimes, he will name only murder, assault, dacoity, rape, loot and arson, burglary and theft, sodomy and reduction as the only instances of crime. He may have difficulty in appreciating that maltreatment of one’s cattles, bestiality with them are criminal. But he will certainly be baffled if he is told that misuse of power, nepotism etc; are criminal and equally, if not more, harmful to society than other crimes. However, the not easily recognizable crimes are not considered crime by an average person because they are committed by well-to-do, upper-bracket persona and normally involve little violence. But such acts, whosoever may commit them, are very much criminal. For example, if a man earns a huge ransom by letting out the secrets of someone, he is indulging in black mail. The private secretaries and yalets of top political and finance magnets usually have access to many intimate secrets and there is strong temptation to earn big money by the threatening exposure. Many innocent persons are made victims of this vicious commercial mal practices, for example, under-invoicing, graft etc. To gain some advantage by production of false testimonials is an act of forgery and the crime of forgery is quite widespread. Again, sexual abuse of private secretaries is fairly common in advanced countries. All these are white-collar criminals and their crimes are really criminal activity. The Watergate scandal threatening the office of President Nixon is a classic instance of white-collar crime.
XVII.            Practical Significance
Apart from having theoretical value and importance, criminology also has much practical use and importance. In the words of Sutherland, “Criminology is concerned with the immediate application of knowledge to the program of social control of crime.” Following are some of the specific practical uses of criminology.
(1) Elimination of Crimes-The elimination of crime is one of the specific aim of criminology. It helps society in controlling and eliminating the crime both directly and indirectly. It is most obvious that if one knows the cause of a malady, its cure becomes easy. It is a truism in medical practice that correct diagnosis is more than half the cure. The same holds good in regard to the phenomenon of crime. By the knowledge of the causes of the crime, we can undertake specific measures to remove them.
(2) Helpful in understanding the Psychology of the Criminal-Criminology is practical study. With the help of its knowledge we can easily assess the attitudes and opinions of the criminals. The study of criminology helps us to pin-point the factors responsible for the various crimes, that is, we learn as to how a particular crime is generated. There by we are able to correlate specific crime with specific set of circumstances. Apart form learning about the psychology of crime, the knowledge of criminology helps us to classify the criminals, that is, we are enabled to correlate personal factors like age, family and social background, education and physical environs, physical and mental traits with different types of crime. Thus for example, it may be revealed traits with different types of crime. Thus for example, it may be revealed that sexual crimes are committed, contrary to general impression, by persons with low sex-drive rather than by highly-sexed persons. A prostitute-monger may be consorting with different women so as to cover up the self consciousness and guilt over inadequate performance or he may be doing so in order to receive the thrill of personal quirks and varied techniques of arousal exercise by the professional sex-vendors. These facts make it abundantly clear that the study of criminology goes a long way in helping us to appreciate the psychology of crime and criminal.
(3) Reforms of Criminals-Besides controls, prevention and elimination of crime, it is the important task and responsibility of the science of criminology to device and suggest measures for the reforms and rehabilitation of the criminal. For example, to wean a prostitute from the sale of her bodily wares, we must know how and why she has taken to this profession. In the societies which do not stigmatize such persons and are prepared to accept them, the task is relatively easy. Again, it is easy if the prostitute has taken to this profession from economic hardships and other compulsions but it disgusted with what she is doing. But if, on the contrary, either the society is orthodox or the prostitutes like and enjoy what they are doing, the task of reform is extremely difficult, if not impossible.
(4) Reforms of Evil Forces-Every society are under the influence of certain evil forces and their removal is the concern of every well-meaning member of the society. The science of criminology helps us a great deal in appreciating and understanding these evil forces and, thus, enables us to device ways and means for the effective check of those forces
XVIII.            Importance of criminology for study of terrorism
Criminologists have been making important contributions to the research literature on terrorism and responses to terrorism for many years and two past presidents of the American Society of Criminology, Nicholas Kittrie and Austin Turk, explicitly built terrorism into their research on political crime in the 1970s and 1980s. However, much of this early work was done without federal support. It took two key events, the Murrah Federal Building bombing in Oklahoma City in 1995 and the September 11, 2001 attacks in New York City, Washington DC and Pennsylvania before major federal funding became available for criminologists to embark on large scale empirical work on this phenomenon. After these events, funding through the National Memorial Institute for the Prevention of Terrorism, terrorism research solicitations by the National Institute of Justice and the Bureau of Justice Administration and eventually, the creation of the Department of Homeland Security (DHS) opened the door for an expanded portfolio of criminology related research on terrorism. In this essay we summarize the work of two entities that have in recent years taken a lead in this endeavor: the Human Factors Division (HFD) of the Department of Homeland Security's Science and Technology Directorate, and the National Consortium for the Study of Terrorism and Responses to Terrorism (START), a DHS funded national Center of Excellence focused on social and behavioral science research on terrorism and its consequences
X
Bibliography:
1)      Wolfgang, Marvin (1990). "Crime and Punishment in Renaissance Florence". Journal of Criminal Law and Criminology (The Journal of Criminal Law and Criminology 1973
2)       Mayo, Katherine (1920). Justice to All: The Story of the Pennsylvania State Police.  
3)      Kelling, George L., Mary A. Wycoff (December 2002). Evolving Strategy of Policing: 
4)      Criminology and Penology Written by Dr.Rajendra K. Sharma

The Gas (Theft Control and Recovery) Ordinance, 2014


The Ordinance namely The Gas (Theft Control and Recovery) Ordinance, 2014 is no more enforceable after the consolidated judgment passed by Honourable Justice Shahid Karim.


JUDGMENT SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
          
Writ Petition No.11993 of  2014
M/s Rasheed C.N.G Station
Versus  
Federation of Pakistan etc
  
J U D G M E N T
Date of Hearing.  04.12.2014  
PETITIONERS BY:  Mr. Fahad Ikram Advocate, Mian M. Hussain Chotya Advocate, Mr. M. Salman Masood Advocate, Mr. Nadeem ud Din Malik Advocate, Mr. M. Ahsan Asghar Ch. Advocate, Ch. M. Shakeel, Mr. Arshad Mehmood, Mr. M. Riaz Ch. Advocate, Ch. Waseem Ahmad Gujjar, Advocate, Mr. M. Shahbaz Rana Advocate, Mr. Jahanzaib Khan Advocate.  Mr. Asad Ali Bajwa Advocate, Mr. Abdul Razzaq Advocate, Mr. Hussain Ibrahim M. Advocate, Mr. M. Mohsin Virk Advocate, Miss. Sumaira Khanum Advocate, Maj.(R) Aaftab Ahmad Advocate, Ms. Ruhi Saleha Advocate, Miss. Huma Khurram Sheikh Advocate, Mr. Asif Bashir Mirza Advocate, Mr. Sarfraz Ahamd Qureshi Advocate, Mian Mushtaq Ahmad-1 Advocate, Mr. M. Baleegh uz Zaman Chaudhry Advocate, Kh. Waseem Abbas Advocate, Mr. Imran Humayun Cheema Advocate, Rao Zaigham Ali Advocate, Mr. Aish Bahadur Rana Advocate, Mian Muhammad Rauf Advocate, Mr. Sajjad Ahmad-1, Malik Muhammad Imtiaz Mahal, Advocate, Mr. Muhammad Irfan ul Haq, Mr. Safdar Hayat Bhatti Advocate, Mr. Ashfaq Ahmad Tabassum Advocate, Mr. Irfan Mehmood Ranjha Advocate, Mr. Abdul Sattar Chaudhry Advocate, Mr. M. Mansoor Humayun Advocate, Mr. Shahid Hanif Advocate, Mian Mahmood Rashid, Advocate, Mr. M.Ajmal Khan-1 Advocate, Ch. Mehboob ul Hassan Advocate, Mr. Zafar Iqbal Chohan Advocate, Ch. Sarfraz Ali Dayal Advocate, Mr. Tariq Bashir Advocate, Syed Muhammad Shah Advocate, Mr.Ghulam Farid Sanotra Advocate, Mr. Saeed Ahmad Rana Advocate, Mr. Tahir Amin Chaudhry Advocate, Mr. Waheed Ashraf Bhatti Advocate, Major (R) Aftab Ahmad Khan Advocate, Mr. Khalid Hashmi Advocate, Mr. Muhammad Sharif Advocate, Mr. Umer Riaz Advocate, Mian Bilal Bashir Advocate, Raja Tasawer Iqbal Advocate, Ms Ammara Liaqat Bhatti Advocate, Mr. Muhammad Ashan Asghar Ch. Advocate, Mr. Muhammad Yasir Hussain, Mr. Muzaffar Aziz Khan Advocate, Mr. Zulfiqar A. Sheikh Advocate, Mr. Shahid Ismail Advocate,Ms. Sabiha Ali Chughtai Advocate, Mr. Munawar us Salam Advocate, Mr. Nadeem ud Din Malik Advocate, Barrister Ahmed Pervaiz. Ch. Akbar Ali Shad, Advocate.

RESPONDENTS BY:  M/s  Amir  Rehman  and Muhammad Mehmood  Khan, D.A.G for Pakistan. Mr. Umer Sharif, Advocate for the respondent-SNGPL. Mr. Aurangzeb Mirza, Advocate for respondent-FESCO. Mr.  Amanat  Ali  Advocate.  Mr.  Imran  Raza  Chadhar Advocate  for SNGPL  (Sheikhupura Range). Mr. Rasaal H. Syed Advocate.  Barrister Haroon Dugal Advocate for respondent  OGRA  and  Rana  Zia  ul  Islam  Manj, Advocate.

W.P No.11993 of 2014 2
Shahid Karim, J:- The connected petitions, a list  of  which  is  attached  with  this  judgment  as Annexure  ‘A’  are  being  decided  by  this  common judgment  as  similar  issues  of  law  have  been raised. 
RELEVANT FACTS
2.The  challenge  in  these petitions which has been brought forth, is encapsulated in the order of this Court  dated  5.5.2014,  passed  by my  learned brother  (Amin-ud-Din  Khan  J.)  which  is reproduced as under: - “Through  this  writ  petition  petitioner  has challenged the vires of Section 29 of the Gas (Theft Control  &  Recovery)  Ordinance,  2014.    Learned counsel  states  that  it  is  ultra  vires  to  the Constitution of Islamic Republic of Pakistan, 1973.  Further  states  that  his  suit  for  declaration, wherein  the  bill  imposed  by  the  respondent company has been challenged, was pending before the civil court.   The  interim  injunction granted by the  court was  confirmed  afterwards.    States  that petitioner  has  deposited  near  about  4.7  million under the orders of the court, whereas at the time of the suit, the disputed amount was near about 11 million.   States  that under  the new enactment  the orders  passed  by  the  court  have  been  vacated which  is  not  permissible  under  the  law.    Relies upon  “Dr.  Mobashir  Hassan  and  others versus  Federation  of  Pakistan  and  others (PLD  2010  Supreme  Court  265).    Further  argues that as the “court” mentioned under section 2(j) of the  Ordinance  established  under  section  3  of  the Ordinance does not  include  the High Court but  in section  4(2)  the  High  Court  has  also  been mentioned.   States  that as  the disputed amount  in this  case  is  more  than  5  million,  therefore, jurisdiction vests with which court is still not clear, therefore, states  that petitioner has been  forced to file this petition before this Court”.
3.  As  is  reflected  in  the  said  order,  the provisions  of  Gas  (Theft,  Control  and  Recovery) Ordinance,  2014  (the Ordinance,  2014), were challenged  as  being  ultra  vires  the  Constitution and  non  est.    It  is  not  relevant  to  revert  to  the W.PNo.11993 of 2014  3 facts  in  each petition.   However,  suffice  it  to  say that  all of  these petitions  arise  from proceedings which  are pending before  the Gas Utility Courts, set up under the Ordinance, 2014.  The grievances substantially arise from different orders passed by those  courts,  yet  they  have  now  converged  to challenge the very legality of the Ordinance, 2014.  The  question  therefore,  before  this  Court, which required  determination  was  whether  the Ordinance,  2014  is  ultra  vires  Constitution  of Islamic Republic of Pakistan, 1973 or not.
4.  During the course of the proceedings, it was brought  up  that  the  Ordinance  2014  stood repealed by afflux of time as it was lastly extended by  a  resolution  of  the  National  Assembly  on 14.5.2014  under  proviso  to  sub  paragraph  (ii)  of paragraph  (a)  of  clause  (2)  of  Article  89  of  the Constitution of Islamic Republic of Pakistan, 1973 for  a  further  period  of  120  days.    It  stands repealed on the expiry of the said extended period on 23.9.2014.   The question arises as  to whether the Ordinance, 2014 was still a valid law or not as also  whether  it  stood  repealed  or  had  it  been enacted as an Act of the parliament.
5.  On 26.11.2014 the Deputy Attorney General for Pakistan was  required  to  seek  instructions  in the matter and to apprise this Court of the current W.P No.11993 of 2014 4 status  of  the Ordinance,  2014.    In  response,  the Deputy Attorney General, Mr. Amir Rehman has produced  a  copy  of  the  report  of  the  Standing Committee  of  the  Senate  on  Petroleum  and Natural  Resources  according  to  which deliberations  have  been  held  by  the  said Committee and it is recommended that the bill of the Ordinance, 2014 may be passed by the Senate.  However,  the  learned D.A.G submits  that  the bill is  pending  in  the  Senate  and  has  not  yet  been passed into an Act of the parliament.
6.  From  the  forgoing  discussion,  it  is  clear that  the Ordinance 2014 has, at  the expiry of 120 days  from  its promulgation,  repealed  in  terms of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973.
7.  An  Ordinance  is,  by  its  very  nature,  a temporary  statute.    A  temporary  statute  as distinguished  from  a permanent  one,  remains  in force  for  a  limited  period  and  ceases  to  operate without  a  repeal.    The  power  to  make  and promulgate Ordinance  is a  legislative  and not  an executive  power.    Article  89  of  the  Constitution which  gives  the  law making power by Ordinance to the President reads: -“89.  Power  of  President  to  promulgateOrdinances.—(1)   The President may, except wen the [Senate or] National Assembly is in session, if satisfied  that  circumstances  exist which  render  it W.P No.11993 of 2014 5 necessary  to  take  immediate  action,  make  and promulgate  an  Ordinance  as  the  circumstances may require. (2)   An Ordinance promulgated under  this Article shall  have  the  same  force  and  effect  as  an Act  of [Majlis-e-Shoora  (Parliament)]  and  shall  be subject to like restrictions as the power of [Majlis-e-Shoora (Parliament)] to make law, but every such Ordinance-- (a)  shall be laid – (i)  before  the  National  Assembly  if  it [contains provisions dealing with all or any of  the  matters  specified  in  clause  (2)  of Article  73],  and  shall  stand  repealed  at  the expiration of [one hundred and twenty days] from  its promulgation or,  if before  the  expiration of  that  period  a  resolution  disapproving  it  is passed  by  the  Assembly,  upon  the  passing  that resolution [Provided  that  the National Assembly may by a resolution extend  the Ordinance  for a further  period  of  one  hundred  and  twenty days  and  it  shall  stand  repealed  at  the expiration  of  the  extended  period,  or  if before  the  expiration  of  that  period  a resolution disapproving  it  is passed by  the Assembly,  upon  the  passing  of  that resolution:   Provided  further  that  extension  for further period may be made only once.] (ii)  before both Houses if it [does not contain provisions dealing with any of  the matters referred to in sub-paragraph (i)], and shall stand  repealed  at  the  expiration  of  [one hundred  and  twenty  days]  from  its promulgation  or,  if  before  the  expiration  of  that period  a  resolution  disapproving  it  is  passed  by either House, upon the passing of that resolution:    [Provided that either House may by a resolution  extend  it  for a  further period of one hundred  and  twenty  days  and  it  shall stand  repealed  at  the  expiration  of  the extended period, or  if before the expiration of  that period a  resolution disapproving  it is  passed  by  a House, upon  the  passing of that resolution: Provided further that extension for a further  period  may  be  made  only  once; and] (b) may  be withdrawn at  any  time  by  the President.”
8.  As to the true nature of Ordinance, suffice it to refer to Sabir Shah v. Shad Muhammad Khan (PLD  1995  SC  66)  followed  in  Federation  of W.P No.11993 of 2014 6 Pakistan  v. Muhammad Nawaz  Khokhar  (PLD 2000  SC  26,  36).    “From  an  examination  of Article 89’, so observed Saiduzzaman Siddiqui, J. “it  is  quite  clear  that  the  legislative  power conferred  by  this  Article  on  the  President  to promulgate  Ordinance  is  circumscribed  by  these conditions.    Firstly,  at  the  time  the  Ordinance  is promulgated  by  the  President,  the  National Assembly  must  not  be  in  session  and circumstances  exist  which  render  it  necessary  to take  immediate  action  for  promulgation  of  the Ordinance.   The Ordinance so promulgated by the President  is  only  a  stopgap  arrangement  and  a temporary measure,  as  this  Ordinance  has  to  be placed before  the National Assembly  if  it pertains to  matters  specified  in  Article  73(2)  of  the Constitution  and  in  all  other  cases  before  the Parliament,  within  4  months  of  the  date  of  its promulgation unless it is earlier withdrawn by the President  or  disapproved  by  the  National Assembly or Parliament as the case may be.   It  is, therefore,  quire  clear  that  the  power  to promulgate an Ordinance by  the President under Article 89 of the Constitution of 1973 is designed to meet  a  situation when  the  legislation  is  required urgently and  the Assembly  is either not  in session or is unable to function for reasons of having been dissolved  in accordance with  the provisions of  the Constitution  of  1973.    But  the  Ordinance  so promulgated by the President does not acquire the status of a permanent Act of Parliament as it loses its  validly  on  expiry  of  4 months period  from  the date of  its promulgation  if  the National Assembly or  Parliament  as  the  case  may  be,  does  not approve  the  legislative  measure  within  that period.”   Reference may also be made  to Federation of Pakistan  through  Secretary Ministry  of Law, Justice and Parliamentary Affairs, Islamabad v. Dr. Mobashir Hassan and others (PLD 2012 SC 106) and the following observations at page 128:  “24.  In  terms  of  Article  89  of  the  Constitution, the President may promulgate an Ordinance and it shall  have  the  same  effect  as  an  Act  of  the Parliament.    However,  the  Article  inter  alia  provides  that  it  shall  stand  repealed  if  not extended  by  the  National  Assembly  within  the period stipulated in the said Article.”   In  Govt.  of  Punjab  through  Secretary, Home  Department  v.  Zia  Ullah  Khan  and  2 W.P No.11993 of 2014 7 others  (1992  SCMR  602),    the  Hon’ble Supreme  Court  had,  once  again,  the  occasion  to deal with the issue and observed as under: “We may state that, if we were to accept Mr. Irfan Qadir’s  above  contention,  the  same  would  be violative  of  Article  89  of  the  Constitution,  which envisages that, if an Ordinance of the type in issue is  not  approved  by  both  the  Houses  before  the expiry  of  four months  from  its  promulgation,  the same  shall  stand  repeal.    The  above  clear Constitutional  mandate  cannot  be  defeated  by pressing  into  service  any  rule  of  construction  of statutes  or  a  provision  of  a  statute which  cannot pressed  in  aid  while  construing  a  Constitutional provision.    We  may  further  observe  that  our Constitution  is  a  written  Constitution  based  on Federal System.  It envisages trichotomy of powers between  the  three  limbs  of  the  State  i.e.  that Legislature,  the  Executive  and  the  Judiciary.    In the above political  set up  the power  to  legislate  is vested  in  the parliament.   However, Article 89 of the  Constitution  empowers  the  President  to promulgate  an  Ordinance  when  the  National Assembly is not in Session or stands dissolved and he  (President)  upon  being  satisfied  that  the circumstances  exist which  render  it  necessary  to take  immediate  action.    Such  an  Ordinance  is  to last, at the most,  for  four months,  if not approved or  if  not  rejected  by  the  parliament  earlier  or withdrawn by the President in terms of sub-clause (a)  of  clause  (2)  of  the  above  Article  89  of  the Constitution.   The  rational  behind  providing  an  outer limit of four months for an Ordinance seems to be that even if the National Assembly or a Provincial Assembly  stands  dissolved  at  the  time  of promulgation of an Ordinance, the election of  it is to  take  place within  90  days  from  the  date  of  its dissolution  in  terms of  clause 5 of Article of 48 of the  Constitution.    Since  Ordinance  XIX  of  1988 was not placed for approval before the parliament within the above time limit of four months in terms of  sub-clause  (a) of  clause  (2) of  the Article 89,  it stands  repealed  with  the  amendments  contained therein  upon  the  expiry  of  four months  from  the date of its promulgation.”
9.  In these cases, the statement made and the document  relied upon by  the D.A.G brings home the fact that the Ordinance stands repealed at the expiration of one hundred  and  twenty days  from its  promulgation.    It  has  not  been  extended  by either  the Senate or  the National Assembly  for  a W.P No.11993 of 2014 8 further period by a resolution and  thus  it  follows indubitably that  it  loses  its validity, on the expiry of that period since it has not been made an Act of the Parliament within that period.  At best, it shall be  deemed  to  be  a  Bill  introduced  in  the House where it was first laid.
10.  In view of the above, no proceedings can be commenced or continued in the Gas Utility Courts set  up  by  the  Ordinance  2014  as  the  law  which was  the  provenance  of  their  powers  does  not occupy the field any more.   Thus any proceedings initiated, commenced  or  continued  will  be without lawful Authority and ultra-vires.
11.  It  is,  therefore,  held  that  since  the Ordinance, 2014  stands  repealed,  the Gas Utility Courts set up under that Ordinance shall cease to have effect and would become functus officio.
CONSEQUENCES
12.  There are certain unsavory and unpalatable consequences  that  flow  from  the  repeal  of  the Ordinance.   Since  the Ordinance  loses  its validity and  has  ceased  to  have  effect,  the  Gas  Utility Courts  set  up  by  that  Ordinance  shall  cease  to function  having  been  denuded  of  that  special power  under  the  Ordinance.    All  cases  pending  with  these  courts,  heretofore,  shall  stand transferred  to  the  ordinary  courts  of  plenary W.P No.11993 of 2014

 13. Jurisdiction to  be  adjudicated  upon  their  respective merits.  The proceedings in these cases can be continued from the stage at which they had reached before the Gas Utility Courts.  All of these cases  shall  be  tried  and  continued  under  the relevant law relating to such matters.  I described it  as  unsavory  and  unpalatable  consequences  for  the  litigants  as  the  vortex  of  litigation  does  not bring the end closer but only eclipses it.   In order to alleviate the litigants’ suffering, this order shall be communicated  to all  the District and Sessions  Judges who shall put steps into motion to transfer the  cases  pending  before  formerly Utility  Courts within  their  respective  jurisdiction  to  ordinary courts (according to each case) and shall complete the process within fifteen days from the receipt of this judgment.
With  the  above  observations,  all  these petitions are disposed of.

           (SHAHID KARIM)
               JUDGE

Announced in open Court on 15.12.2014.




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