Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at

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Course Contents:

1. Sections 6, 16, 21, and 26 of General Clauses Act and course as contained in the book namely Law of
Interpretation by Maxwell and Craze.

Book Recommended:

1.Interpretation of Statutes by Muhammad Anwar Ghuman.

An offender cannot be punished twice for the same offence. Discuss it with reference to the law on the subject?

According to S. 26 of General Clauses Act, where an act is an offence under the provisions of two enactments,
which are not in conflict with each other, prosecution could be resorted to under either of enactment. A person
could be prosecuted and convicted both under the special enactment and also the general law, but he could be
punished only once either under the former or the latter.

Act is no where defined. It must be necessarily be something sort of a transaction which is composed of a series
of acts, but cannot, I think, in ordinary language, be restricted to every separate willed movement of a human
being.

In the presence of the provisions contained in the said section, the principle of generalia specialibus non
derogant (special thing derogates from general things) cannot be applied.

Where a new offence is created under any enactment, the accused must be dealt within accordance with the
provisions of that enactment. Where on the other hand, a statute makes an act, already punishable under some
former law, punishable and there is nothing in the later enactment to exclude the operation of the former one,
then the accused person can be proceeded against under either of the enactments.

Indian Case Rahmatullah v Emperor: In the said case the accused by one act restrained the police and
endangered the lives of bystanders one offence is under the penal code and the other under the Railway Act. It
was held that conviction under the Railway Act must be set aside. But the contention that because a special
enactment dealing with an offence. Similar the offence dealt with by the IPC, the provision of the IPC should be
taken to have been repealed to that extent is not acceptable.

S. 26 of General Clauses Act was enacted with a view to avoid implied repeal if the General Acts by the
enactment of special Acts.

S. 26 only applies when an act or omission is constituted as offence by two or more different enactments. It
makes no difference to the application of S. 26 that the procedure laid down in two enactments with regard to
prosecution of an offences in different or even if different sections are provided in two enactments.

S. 26 does not act as a bar to trial or conviction but merely as a bar to duplicated punishment.

The broad proposition that S. 26 is ruled out when there is repealed of an enactment followed by a fresh
legislation is not correct.

S. 26 would be applicable in such cases also unless the new legislation manifests an intention incompatible with
or contrary to the provisions of the section. Such incompatibility would have to or ascertained from a
consideration of all the relevant provisions of the new law and the mere the sense of a saving clause is by itself
not material.
S. 26 has, however no application if the offences are distinct, e.g., a person found in possession of stolen
revolver may be tried punished both under penal laws and Arms Act. The important point to be noted is that it
is not the same act or omission which constitute the offence under two enactments.

S. 26 is widen in scope under its corresponding S. 33, English Interpretation Act which says, where an act or
mission constitute an offence under two or more Acts, or both under an Act and at common laws, whether any
such Act was passed before or after the commencement of this Act, the offender shall, under the contrary
intention appears, believed to be prosecuted and punished under either or any of these Acts or common law,
but shall not be liable to be punished twice for the same offence.

S. 26 not only deals with an act which is an offence under the penal code, and under a special local Act, and an
act which is an offence under two or more local Acts, but also it deals having regard and to the meaning of
reenactment with an Act which is an offence under two or more sections of the enactments.

S. 403 of Code of Criminal Procedure also deals with the subject that person once convicted or acquitted not to
be tried for the same offence again. Rule of double jeopardy applies here. It means that no one should be vexed
(troubled, annoyed) twice for the same matter and contemplates of a situation where a person has once been
tried by a Court of competent jurisdiction and acquitted by such Court cannot be tried again for the same
offence nor for any other offence based on similar facts. The principle underlying this section is founded on
public policy. It is exhaustive on the subject to the effect of previous acquittal or conviction.

Criminal charge once having been adjudicated upon by a competent Court, that adjudication is final whether it
ends in acquittal or conviction and it may be pleaded as a bar in a subsequent prosecution for the same offence
whether charged with or without matters of mere aggravation, and whether such matter relate to the intent
with which the offence was committed or to the consequence of the offence. Retrial of an offence in which a
person who having once been tried as accused stands finally acquitted is not permitted.

S. 403 of Code of Criminal Procedure is based on the ancient maxim nemo debts bis vexari which means that a
person cannot be tried a second time for an offence which is involved in the offence with which he was
previously charged. The same principle autrefois acquit (formerly acquitted) and autrefois convict (formerly
convicted) is prevailing in the common law. The section is based on the principle of no mans life and liberty
shall be twice put in jeopardy for the same offence on the same set of facts.

S. 403 of Code of Criminal Procedure alongwith S. 26 of General Clauses Act provides procedural shield.
Conviction for the second time on the same facts is not legal. Accused having once been acquitted by a Court of
competent jurisdiction and such finding having attained finality, his conviction on the same facts again by the
Court is not permissible. When once a person was acquitted he could not be tried again and convicted. The
whole basis of S. 403(1) is that the first trial should have been before a Court competent to hear and determine
the case and to record a verdict of conviction or acquittal. If the Court is not so competent it is irrelevant that it
would have been competent to try other cases of other class or indeed the case against the particular accused in
different circumstances, e.g., if a sanction has been obtained.

Res judicata: If an accused is tried on certain charges and acquitted, it will be clearly unjust and highly
oppressive and amount to an abuse of the process of the Court to permit his repeated prosecution on identical
evidence in respect of identical charges even though relating to different items.

Writ petition: Filing of successive writ petition on same cause of action is against the spirit of law and general
principle of res judicata.

Benefit of doubt: Accused given benefit of doubt and acquitted, cannot be prosecuted for same offence a
second time.

Industrial Relations Ordinance, 1969: Bar to second trial applicable not only for same offence but also to a
second trial on same facts for any other offence.
Order of discharge on merits: An order of discharge which is passed on merits and which is not plainly or
substantially an order passed in default, although it does not in law constitute a legal bar will practically have
the same effect as an order of acquittal.

Rules of interpretation of Statutes: Following are the rules of the interpretation of Statues:

The subject of the interpretation of statues or Acts is very wide. The legislature makes the laws while the judges
of the law courts apply or interpret the laws. Legislation or lawmaking is a very high prerogative vested only
in the legislature. The function of a Judge is only to apply the law least concerned with the method adopted by
the parliament or legislature of any country. And the Judge is also supposed not to be influenced by the fact as
to how many votes were in favour of the enactment and how many votes were against it at the time when it
was passed by the parliament.

Impartiality or neutrality is the indivisible virtue of a Judge in interpreting or applying the law to decide a case
before him. The Judge or the Court has to seek the intention of the parliament in the course of application or
interpretation of any law to a given case. In case there are two versions of an Act, one moral and other one is
immoral. The Judge shall decide easily in accordance with the moral or positive version of the Act. And in case
there is only one version, which is immoral, the Judge shall decide as a man of ordinary prudence and wisdom.
Here the old saying is very pertinent which is prudence is a rich, ugly old maid courted by incapacity.

The doctrine Nemo debet esse judex in propria causa, who is personally either directly or indirectly, interested
in a case or subject matter of the property should not sit as a Judge in that particular case because in that way
the vary act of the Court shall prejudice case of the party. No one can be Judge in his own cause. A Judge may
not have any pecuniary or personal interest in a case, which he tries. If he has some interest he must declare it,
e.g., shares in a company which is party to an action.

Actus curiae neminem geravabit, the act of the Court should not prejudice to any body. Act of Court shall
prejudice no one. Law is based upon the justice and reason and when the reason goes away, the law should
also go away, is applicable.

Cessante ratione legis, cessat ipsa lex, the reason of the law ceasing, the law itself ceases. This maxim applies
to the principles of the common law, but not to any considerable extent to statue law.

Cessante causa, cessat effectus, when the cause ceases, the effect ceases. Cessante ratione legis, cessat ipsa
lex, the reason of the law ceasing, the law itself ceases. This maxim applies to the principles of the common
law, but not to any considerable extent to statute law. Reason is the soul of law and when the reason goes
away, the law should also go.

Mutatis mutandis, with slight alteration or the necessary change being made. Where particular law is not
available for particular matter, then law available is applied with slight alteration. For example, Code of Civil
Procedure is not applicable in ejectment cases with Rent Controller, therefore, Code of Civil Procedure is
applied with slight alteration under the doctrine of mutatis mutandis.

Nemo debet bis vexari pro una et eadem causa, a person cannot be tried a second time for an offence which is
involved in the offence with which he was previously charged. Person once convicted cannot be convicted
again under the same offence.

Expressio unius personae vel rei, est exclusion alterius, the express mention of one person or thing is the
exclusion of another. A valuable servant but a dangerous master in the construction of statutes or documents.

Expressum Facit Tacitum, expression precludes implication.

View in the larger interest prevails when two views are possible.

The word suit is related with civil matters whereas the word case is concerned with criminal matters.
1. The statute must be read as a whole. In the exposition of statutes the intention of legislature is to be
ascertained and found from the whole of the statute and each and every part of it taken and prepared
with other parts. The reason is that there should or may not be any contradiction between one part of the
statutes and another. The whole scheme of the Act or Statute has to be taken into consideration to find its
real meaning.

2.The words, phrases, and sentences of a statute are ordinarily to be understood in their natural, ordinary,
popular, and grammatical meaning unless such a construction leads to an end absurdity or obscurity or
form that point of view the context or object of the statute suggests different meaning.

3.Principle: The word of the statute must be construed or understood so as to give a sensible meaning to
them. The Court except in the extreme and rare cases must apply the principle when there is absolute
intractability (rigidity) of language.

4.Delegatus non potest delegare, a delegate cannot delegate. Another rule of the interpretation of statutes
is that power once delegated cannot be redelegated/ relegated. A person to whom power has been
delegated cannot delegate them to another. But trustees may appoint agents to do trust business, and are
not responsible for their default, if employed in good faith. Powers once delegated in a statutes cannot be
redelegated for the reason that the law tends towards an ends but is not an end itself.

5.Noscitur a sociis, a meaning of a word can be gathered from the context. However the man is known
by the company he keeps, in the same manner a word is known by the company with regard to other
words. The meaning of a doubtful word may be ascertained by a reference to the meaning of words
associated with it. The rule that a word is known by the company it keeps is not unescapable/ineluctable
(inevitable). It is applied widely only where a word is capable of many meanings.

6.Ejusdem generis, the rule that where particular words are followed by general words, the general words
are limited to the same kind as the particular words. Equivocation means duplicity of the words and
unequivocal means word which gives definite meaning. Ejusdem generis means preceding the same in an
enumeration of different subjects in an Act. General word following specific words may be construed
with reference to the antecedent (foregoing, previous) matters and the construction may be narrowed
down by treating them as applying to things of the same kind as those previously mentioned unless there
is something to show wider sense was intended.

7.Old statute should be interpreted, as they would have been at the date when they were passed or made. If
the prior interpretations are contradictory the Court will have to consider the reasons given and come to
its own conclusion.

8.The intention of legislature predominates. The main object of the Court in interpreting a statute is to find
out the intention of the legislature as expressed in the statute or Act. The intention and meaning of the
statutes is to be sought in the words used. If they are plain and unambiguous the words must be applied
as they stand/exist.

9. If the meaning of the enactment is plain effect must be given to such meaning irrespective of
consequences. In construing enacted words the Court or a Judge is not concerned with the policy
involved or with the results, injurious, or otherwise which may follow from giving effect to the language
used. In interpreting an Act of legislature the duty of Court is to determining the intention of the
legislature by words used. The primary rule of interpretation or undoubtedly is to take the words in
natural, liberal, or grammatical sense and if the words are plain and admit but of one meaning no
difficulty in interpretation arises.

10. Its construction or interpretation to avoid absurdity is permissible where the language of statute
susceptible to two interpretations one of which is reasonably and other is unreasonably. According to
Court, Court should hold that reasonable version shall apply.
11. Same words to have same meaning. A word which occurs more than once in the same Act should be
given the same meaning throughout the Act unless the context shows that the legislature use the words in
a different sense.

12.The interpretation should be in accordance with the policy and object of the statute.

13.The words are taken to be used ordinarily in the sense they borne at the time of statute.

14.Technical word: Where the legislature uses technical language then the technical meaning must be taken
unless there is an obvious contrary intention.

15.Title of the Act:

16.Schedules of the Act:

17.Sub sections:

18.Footnote/margin:

The general principle with regard to the interpretation of statutes is that if the matter in question is a matter of
procedure only, the provisions would be retrospective. On the other hand if it would be more than a matter of
procedure and it touches a right in existence at the passing of the Act, the legislation would not operate
retrospectively but prospectively.

For instance, a plaintiff sues a defendant for the recovery of money with payment of the requisite amount of
Court fees and at the appeal stage, the law with respect to the Court fees is changed. The aggrieved party
cannot raise the plea to deposit the same amount of Court fees, which was paid by the plaintiff according to the
law as it then was. This being a matter of procedure the aggrieved party is bound to pay the amount of Court
fees in appeal strictly according to the latest rate. Therefore, we may say that the procedural law, unless other
wisely in express terms always operates prospectively and not retrospectively or ex post facto.

But on the other hand a change, if any, is brought or introduced effecting the rights in the property, to sue or be
sued then in that event the law shall operate retrospectively at any stage in the suit, case, at any of the later
stages in appeal or revision.

For instance, A plaintiff brings a lawsuit for the recovery of money of Rs. 100,000/ and affixes Court fees at
prevalent rate, i.e., Rs. 7,500/ @ 7.5%. Later on at the time of appeal, rate of Court fees increases from 7.5% to
15%, he has to affix the Court fees at prevalent rate at that time, i.e., @ 15%. He cannot raise the plea of
retroactive/retrospective (backward, past, looking back) effect of Court fees. He has to apply prospective
(future, coming) rate of Court fees.

Delegated legislation: Legislation is always the prerogative of the parliament as legislature of any country.
When the population was not so large and the laws were also not in large number as it is the state of affairs
today as complex on account of the increase in population and problems faced as such. The legislature,
therefore, used to make laws in the detailed form for the reason they had ample (broad, large, extensive) time
with them to make the laws in a comprehensive manner after due contemplation (viewing, observation,
examining). However it became very difficult for the legislature to make the laws in the detailed form
including the substantive as well as procedural laws. Therefore they started making the laws in the general
form. They left the gaps to be filled in by some other agency and in such a state of affairs. This job to fill in the
blanks that is the procedural law under a particular Act enacted by the parliament could not be done by any
authority except the executive whose function, admittedly, is not to make the laws but to enforce the laws.

This power left with the executive to make the rules or regulations strictly in accordance with the statutes and
Acts made by the parliament is called the delegated legislation or subordinate legislation. It may be called as a
subordinate legislation for the reason that the executive machinery which consists of ministers and high
ranking civil servants. They cannot make any rule and regulation which contravene or otherwise impinge
(infringe, disturb, encroach upon) with the substantive provisions of laws which only falls within the ambit of
the legislature.

For instance, in our country Pakistan Penal Code is a code, which is substantive in nature defining and giving
the ingredients of the different offences. For that purpose as to how an offender or accused guilty of any
offence shall be tried in a Court of law. It pertains to the procedure, which is given in the Code of Criminal
Procedure.

The ministers or executives cannot, in any case, make the laws, which is the function of the parliament or
legislature of any country. But they may make rules and regulations under that Act for giving effect and
application to the provisions of the Act which remaining intact (flawless, perfect, unbroken) and unchallenge
able by the executive or any authority in the country whatsoever. These rules and regulations under the Act are
delegated legislation.

Here, however the superior courts have the powers of judicial review and that is to be exercised very carefully
and jealously. The courts are, no doubt, creation of the constitution. But if they find that any Act of the
legislature is not according to the provisions of the constitution and is thus repugnant (offensive), they may
declare it unconstitutional, void, or ultra vires after full satisfaction.

Delegated legislation, however, is subject to criticism in the sense that legislation is the only privilege of the
legislature of any country. The making of rules and regulations is also legislation. But here it should be kept
into mind that there is no way out with the legislature of any country, in particular, the developed countries, to
acquiesce (agree, consent) in the act of the executive to perform such function as there is not other authority left
to make delegated legislation.

Unfortunately in the developing countries the executive in the garb of delegated legislation may pass a
legislation, rules, and regulations to maintain its hegemony (leadership, authority, supreme command) or
power over the masses which may ultimately negate the great principle of law that is rule of law.

Mandatory and directory: The statutes and enactments mostly contain mandatory and directory provisions of
law. A mandatory provision of law leaves a very little scope in the light of the peculiar (particular, unusual)
circumstances of the case in the context of the law courts. On the opposite, the directory provisions of law can
at best be applied to by a Judge with reference to a particular case according to the wisdom and prudence of
the Judge, he possesses for which he is bound to furnish reasons. At here it is pertinent to note that the legal
acumen (keenness, intelligence) of the Judge which is most important is a matter of concern for a fair and just
application of the law. The impartiality and neutrality of a Judge is an indivisible virtue. His primary and
important duty and function in the application and interpretation of law is to see and examine what is legal
and not what is right. He is bound to interpret the law and it is or as it should be. It is so because legal sanction
only gives legality and not legitimacy. The Judge should keep into his mind that laws and institutions must go
hand in hand with the progress of the human mind.

An ordinary instance of the mandatory provision of law is the constitutional provisions. The judges of the law
Court are themselves creature of the constitution and evidently they are precluded (prevent, hinder) from
challenging/questioning the validity of the constitution or its provisions. The constitution cannot be altered,
changed, or amended except by the observance of the procedure laid down in the constitution by the judges of
the law Court. While interpreting the laws made by the legislature/parliament, as having not made within the
fourcorners of the constitution, Judge may declare it null and void.

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