Is Magistrate Competent Under Section 30 of The Code of Criminal Procedure, 1898, To Try Cases Under The Sindh Arms Act, 2013

IS MAGISTRATE COMPETENT UNDER SECTION 30 OF THE CODE OF CRIMINAL PROCEDURE, 1898, TO TRY CASES UNDER THE SINDH ARMS ACT, 2013 IS MAGISTRATE COMPETENT UNDER SECTION 30 OF THE CODE OF CRIMINAL PROCEDURE, 1898, TO TRY CASES UNDER THE SINDH ARMS ACT, 2013 By Haleem Ahmed, Additional District and Sessions Judge, Karachi East The Code of Criminal Procedure ("Code") envisages two tiers of Courts i.e. Court of Session and Court of Magistrate, besides the High Court, which is the Constitutional Court and not established by the Code. Unlike Sessions Court, the Court of Magistrate is vested with ordinary, special and additional powers under the Code at different levels of criminal proceedings. Ordinarily, a Magistrate cannot pass sentence exceeding three years imprisonment. However, section 30 of the Code vests in the Magistrate power to try as a Magistrate all offences not punishable with death. The Provincial Assembly of Sindh has enacted the Sindh Arms Act, 2013 ("Act") in recent times, which provides for offences pertaining to arms and ammunitions, where maximum punishment for the offence is extendable to fourteen years imprisonment. The debate has sparked within the legal fraternity in general and district judiciary in particular whether Magistrate vested with special jurisdiction section 30 of the Code is competent to try offences under the Act , notwithstanding anything contained in the Act. For the sake of discussion, it is imperative to precisely examine sections 28 and 29 which are relevant in this context. Section 28 reads as: "Offences under Penal Code: Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried-- (a) by the High Court, or (b) by the Court of Session, or by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable." This provision in plain terms lays down the general rule that offences under Pakistan Penal Code shall be tried by Sessions Court or Court of Magistrate. It implies in the scheme of the Code that all courts established under the Code have jurisdiction to try all offences under Pakistan Penal Code as per description given in the eighth column of the second schedule. Nevertheless, this provision is subject to other provision of the Code, which means that if certain offences are shown to be triable by the Court of Sessions, the Magistrate invested with Section 30 may try the same, if such offences are not punishable to death. Section 28 may also to be read with section 30 due to the fact that at the outset of Section 28 it is stipulated that 'subject to other provisions of this Code.' However, it must be borne in mind that meaning of the said qualifying clause is not necessarily restricted or limited to section 30, but it may include some other provisions of the Code. This point would be elucidated after comprehensive discussion from other corresponding provisions of the Code. For a while, let's now turn focus to section 29 of the Code which deals with offences under other laws unlike preceding provision and it reads as: "Offences under other laws: (1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court. (2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to be triable." This provision envisages trial of cases under other laws which may include any local or special law excluding the trial under the Pakistan Penal Code. It lays down that offences under other laws shall be tried by any Court mentioned in any local or special law. However, this provision being conditional and qualified like the previous one, is subject to other provisions of the Code. Section 30 of the Code begins with a non obstante clause, which reads as, notwithstanding anything contained in sections 28 and 29, the Provincial Government may invest any Magistrate with power to try as a Magistrate all offences not punishable with death. Apparently, it looks as if the non obstante clause incorporated at the outset of the provisions has overriding effect on sections 28 and 29 of the Code. It clearly illustrates that offence under Pakistan Penal Code shall be triable by the Court according to second schedule while offences under other laws are to be tried in the courts mentioned in other laws, the Magistrate vested with power under Section 30 may try any offence(s) not punishable to death notwithstanding anything contained in sections 28 and 29. Seemingly, section 30 is in consonance with second schedule of the Code, to the extent of offences specified in the Pakistan Penal Code, where sentence in number of offences is beyond the jurisdiction of Magistrate to award in the ordinary course. According to Section 32 of the Code, a Magistrate may pass a sentence not exceeding three years, therefore, the Magistrate, if invested with power under Section 30 power can conveniently pass sentences more than three years but less than seven years due to the fetters placed under section 37 of the Code. But, according to section 35 of the Code, the aggregate punishment shall not exceed twice the amount of punishment the Magistrate is empowered to inflict in case of sentence of conviction of several offences at one trial which means that in extraordinary circumstances powers to pass sentence by Magistrates may be enhanced. The sole purpose in the mind of the legislature while specifying the Court of Magistrate in the eighth column of the second schedule in multiple offences in which enhanced punishment (more than three years) is prescribed is that the Magistrate invested with powers under section 30 power may conveniently try and pass an appropriate sentence without any impediment where enhanced sentence is warranted in the interest of justice. This proposition holds good for offences as specified in the Pakistan Penal Code but the same cannot be true for any local or special law in force for the time being such as the Sindh Arms Act. The trouble begins when under section 35 of the Sindh Arms Act expressly confers jurisdiction upon the Court of Sessions for trial of all offences. For the sake of convenience section 35 of the Sindh Arms Act is reproduced as under: "All offences under this Act, shall be cognizable withing the meaning of the Code of Criminal Procedure, 1898, and triable by the Court of Session" The above referred provision is divided in two distinctive clauses. First clause refers the nature of offences defined in the Act to be cognizable. Cognizable offence is defined under Section 4(1)(f) of the Code, which means an offence in which a police officer may in accordance with the Code or any other law for the time being in force arrest without warrant as contemplated under Section 54 of the Code. The Code also contains definition of non-cognizable offence according to which a police officer may not arrest without warrant, if accused is involved in non-cognizable offence. The first clause of section 35 of the Act clearly stipulates that all offences defined in the Act are to be cognizable offences without creating any exception as is found in the Code for the offences specified under the Pakistan Penal Code. The second clause, on the other hand, prescribes the forum of trial i.e. the Court of Sessions, irrespective and regardless of quantum of sentence of any offence, the trial shall be conducted by such Court for all purposes. If section 35 of the Act is read in conjunction with section 30 of the Code then there exists a glaring conflict between two provisions. One possible view is that section 30 of the Code has overriding effect upon section 35 of the Sindh Arms Act by the force of non obstante clause inserted at the outset of section 30, which says that notwithstanding anything contained in sections 28 and 29 of the Code, the Magistrate vested with section 30 may try all offences not punishable with death. If such view is accepted to be correct interpretation of law then it will clearly violate the cardinal rule of interpretation which stipulates that in case of conflict between general and special law, the latter prevails. This principle is firmly imbedded in our legal system and affirmed, applied and restated by superior courts of our country time and again in many authoritative pronouncements. In the case of Muhammad Sharif v. SHO (PLD 1997 Lah. 692), it was held that general law, substantive or procedural, is superseded by the Special law of the same category in as much as that special law excluded the general law. This rule was followed also in the case of Agha Muhammad v. Additional Collector Pakistan Coast Guard (2002 CLC 1584). This canon was further reiterated in the case of Muzzaffer Ali v. Mst. Meharunissa (1989 CLC 1805), wherein the honorable Sindh High Court was pleased to observe that recourse to general law is permissible when special law is silent on a particular point except where the provision of general law is inconsistent with provision of special law. Where law of a provision is clear and unambiguous, it should be accepted as such without any hesitation or demur. Where specific provision is made in statute as to manner in which powers are to be exercised, they should be exercised by authority in manner specified in statute and in strict conformity with provisions thereof. Reliance is placed on the case of Muhammad Ameen Khan and others v. Muhammad Siddique and another (1984 PCr.LJ 1580). Apart from the conflict between the provisions in between general and special law and the resultant effect thereof as discussed above, if we closely examine the scheme of Code, the answer to the proposition is not far to seek within body of the Code itself. Nonetheless, before embarking on the discussion related to other provisions of the Code, it would be useful to discuss the fundamental principle of interpretation of the Statute, which is applicable in the present context. When interpreting any statute, it must be read as a whole to attain the consistency and cannot be read in isolation. The intention of the legislature in enacting a statute ought to be derived from a consideration of the whole enactment in order to arrive at a consistent plan. It is wrong to start some a priori idea of that intention and try by construction to wedge it into the words of the statute. Reference is invited from the matter of Reference by the President of Pakistan (PLD 1957 SC 219). This statement of rule is based upon Lord Halsbury's observations in Leader v. Duffey (1888) 13 AC 294, 301, which reads as "Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute". His lordship the Chief Justice Muhammad Munir was pleased to observe in the above reference that the method of construing statutes is not to take particular words and to attribute to them a sort of prima facie meaning which you may have to displace or modify. It is read the statute as a whole and ask one -self the question- "In this state, in this context, relating to this subject matter, what is the true meaning of that word". The words of Crawford's on Statutory Construction on page 258 are worth reproducing "In as much as the language of a statute constitutes depository or reservoir of the legislative intent, in order to ascertain or discover that intent, the statute must be considered as a whole, must as it is necessary to consider a sentence in its entirety in order to grasp its true meaning. Let's revert to the discussion by referring other provisions of the Code to as to read them all in the present context to resolve the issue. According to Section 1(2) of the Code, which deals with 'Extent' of the Code that means scope, limits, boundaries of the Code, and how far and to what extent it is appliable. It reads as "It extends to the whole of Pakistan, but, in absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law, now in force, or any special jurisdiction or power conferred or any special form of procedure, prescribed by any other law for the time being in force." This provision in plain terms makes it clear that this Code is applicable throughout the geographical limits of Pakistan, meaning thereby it is a federal statute in terms of Article 142 of the Constitution. It further elaborates that it shall not affect any special or local law in force or special jurisdiction of power conferred on any special forum of prescribed in other law. In the humble estimation of the author, the scope and applicability of the Code is not extendable to any special or local law, where specific procedure is postulated. If any special Court is specified in other law the same will take precedence notwithstanding anything contained in the Code. This provision is to be read with every other section of the Code when a question as to the extent, scope and applicability of the whole Code is agitated. At the beginning of sections 28 and 29, it is specified that it is 'subject to other provisions of the Code' which is not only restricted any particular provision of the Code like section 30. If the intention of the legislature was to control sections 28 and 29 of the Code by section 30, it would have been specified in sections 28 and 29 expressly by insertion of section 30 instead of words 'subject to other provisions of the Code'. Absence of section 30 from qualifying clauses appearing in sections 28 and 29 inexplicably reveals the intention of the legislature was not to control these provisions with Section 30 only but with the whole Code including section 1(2) of the Code. It unambiguously lays down that nothing herein contained shall affect any special or local law in force. If any provision is found existing in the special or local law then it must have overriding effect over the similar provisions specified in the Code. Introduction of new enactment always poses an inquiry to a law student, why new law has been promulgated? And what changes in particular law has been made in new enactment. The Act has enhanced punishment and raised forum for trying of an offence, which was previously triable by Court of Magistrate, using provisions of general law to lower the forum of trial provided by special law, would defeat the intention of legislature on the one hand and undermine time tested and well settled principles of interpretation of statutes as discussed above. Undoubtedly, the Sindh Arms Act is special law dealing with special subject as reflected from its preamble which reads as: "WHEREAS it is expedient to reform the legislation pertaining to arms and ammunition in the province is being enacted to curb the proliferation of arms and ammunition, whether licenced or not, which disrupts the social harmony and development, vitiates the law and order affairs, and directly contributes to the barbarity of violence. This act envisages to ensure that arms licenses are issued to the bona fide persons in the province." The subject of the Sindh Arms Act is related to curb proliferation arms and ammunition within province of Sindh. Undoubtedly, this law falls within the category of special law and shall have preference, when specific procedure and forum of trial is stipulated therein. Interestingly, second schedule at the end expressly mentions the schedule for "Offences against other laws". According the said part of the schedule, if offence is punishable with death, imprisonment for life, or imprisonment exceeding seven years, the same offence is triable by the Court of Sessions. But when offence under other law, if punishable with imprisonment for three years and upward but not exceeding seven years the same is triable by the Magistrate. At the time the Sindh Arms Act was enacted the legislature was well cognizant to the state of existing procedural law, which is of course the Code of Criminal Procedure 1898, in which forum of trial of offences against other laws was clearly specified. Nonetheless, the legislature made it clear that all offences under the Sindh Arms Act shall be cognizable and triable by the Court of Sessions. It is for this reason that Section 1(2) provides nothing herein contained shall affect any special or local law, now in force, or any special jurisdiction or power conferred or any special form of procedure, prescribed by any other law for the time being in force." Once special law provides a separate forum for trial of such offences it will have precedence over any other forum provided by ordinary law. Similarly, Section 5(2) of the Code which falls within the heading of "Trial of offences against other laws" articulates that all offences under any other law shall be investigated, enquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. This provision further clarifies that offences against any other law, apart from the Pakistan Penal Code, shall be tried and dealt with according to the Code but subject to any enactment for the time of being in force. It simply stipulates that the procedure provided in the Code shall be applicable to other laws as a matter of rule but where specific provision dealing with investigation, inquiry or trial is provided in any other law, the same shall take precedence. Likewise, Section 34 of the Act, deals with arrest and searches. The Code also contains provisions related to arrest in section 46 and searches under sections 100 to 103 of the Code. Section 34(a) of the Act says that all arrests and searches under this Act or under any rules shall be executed in line with the provisions of Code of Criminal Procedure except section 103 of the Code. In this provision the exclusion of section 103 of the Code from the operation of the Act is made in express terms, which is strictly in accordance with sections 1(2) and 5(2) of the Code. Similarly, section 35 of the Act clearly stipulates that all offences shall be triable by the Court of Session, without creating any ambiguity as to forum of trial. If, for the sake of discussion, the Sindh Arms Act, had not provided the forum of trial of offences then in such case the procedure provided under the Code would have been applicable mutatis mutandis and Magistrate vested with jurisdiction under section 30 would have been competent to try the same. Since the specific forum of trial has been provided therefore, the trial shall be conducted by the Court of Sessions and not by any Magistrate vested with jurisdiction under section 30 of the Code. To conclude, from the preceding discussion and comparative analysis of various provisions, it transpires that the Sindh Arms Act has expressly and category specified a forum for trial of all offences without stipulating anything to suggest that Magistrate vested with jurisdiction under section 30 of the Code may try such offences. Therefore, the legislative will have to be enforced strictly in accordance with the mandate of the Constitution as ordained under Article 175(2) of the Constitution reads as no court shall have jurisdiction save as is or may be conferred by the Constitution or by or under any law. It is now well-settled principle of interpretation of law that all statutory provisions have to be interpretated harmoniously and consistently with the Constitution, the paramount law. Reference is cited from the case of the State v. Qaim Ali Shah (1992 SCMR 2192). If Magistrate under Section 30 is held to be competent to try offences under the Sindh Arms Act, it would be inconsistent to the Constitution, which stipulates in stronger terms that no court shall have jurisdiction except as is conferred by law. This will also be in conflict with other provisions of the Code. In order to make harmonious construction of the provisions it must be construed that power of Magistrate under Section 30 of the Code is subject to Sections 1(2) and 5(2) of the Code read with Section 35 of the Sindh Arms Act. The Magistrate under Section 30 may try all offences not punishable death under the Pakistan Penal Code and offence against under other laws on the sole condition that no specific forum of trial is contemplated in any other law for the time being in force. In this way conflict between various provisions of the Code of Criminal Procedure could be avoided and harmonious construction of the law is made and at the same time will of the legislature as set out in the special law could be enforced.