P L D 1974 Supreme Court 46 (PLP)

SALAHUDDIN AHMED, J.‑This appeal by special leave of this Court is from the decision of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat, accepting the, respondent's revision petition and quashing all proceedings against him before the trying Magistrate as without jurisdiction. The respondent, a lad of 14/15 years of age, had been convicted under section 380 of the Pakistan Penal Code by a Magistrate empowered under section 30 of the Code of Criminal Procedure and was ordered to be detained in the Borstal Jail (It should have been Borstal Institution under section 5 of the Punjab Borstal Act, 1926, for a period of 3 years in lieu of sentence of imprisonment. On appeal, the learned Sessions Judge confirmed the order of conviction and detention. In the revision filed by the respondent the learned Single Judge of the High Court held that as the trying Magistrate was not legally invested with the powers mentioned in section 8(P L D 1960 Lab. 85) of the Reformatory Schools Act, 1897, the trial was without jurisdiction and the entire proceeding was, accordingly, quashed. The main question for consideration before this Court, and for which leave has been granted is whether the Punjab Government Notification dated the 7th of January 1924, investing all Magistrates of the First Class with the powers mentioned in section 8(P L D 1960 Lab. 85) of the Reformatory Schools Act, 1897, within the local limits of their respective jurisdictions, legally invested the said Magistrates with the said powers. The High Court was of the view that a Magistrate must be specially empowered by name in order to legally clothe him with the aforesaid powers. Before I proceed to consider this question I should like to point out that before the trying Magistrate the respondent had pleaded guilty and the Magistrate had convicted him under section 380 of the Pakistan Penal Code and ordered his detention in a Borstal Institution under section 5 of the Punjab Borstal Act, 1926, for a period of 3 years. On appeal before the Sessions Judge the only point urged before him was that the sentence should be reduced. It was before the High Court that for the first time the validity of the notification and the competency of the Magistrate were challenged., The Magistrate was empowered under section 30 of the Code of Criminal~ Procedure and he acted under section 5 of the Punjab Borstal Act. He ~ never purported to act under section 8 of the Reformatory Schools Act. It is, therefore, not understandable how this question arose at all. Reverting now to the question of the validity of the notification and the competency of the Magistrate, the notification runs as follows :‑"No. 578.‑In exercise of the powers conferred on him by section 8(29 P L R 536) of the Reformatory Schools Act, 1897, the Governor‑in‑Council is pleased to invest all Magistrates of the First Class with the powers mentioned in section 8(P L D 1960 Lab. 85) of the said Act to be exercised within the local limits of their jurisdiction." It is evident from the notification that the Governor‑in‑Council applied his mind to the question of investing the Magistrates with the powers under section 8(P L D 1960 Lab. 85) of the Reformatory Schools Act 1897 and decided that only~.4 on 8 Magistrates of the First Class within the local limits of their jurisdiction should be invested with those powers. The mode adopted for the investment is a well‑recognised one, and is provided for under section 39(P L D 1960 Lab. 85) of the Code of Criminal Procedure. Section 39(P L D 1960 Lab. 85) is as follows "In conferring powers under this Code the Provincial Government may by order, empower persons specially by name or in virtue of their office or classes of officials generally by their official titles." For about half a century the validity of the notification or the competency of the Magistrates invested there under with the aforesaid powers have never been questioned. The advantage of the mode adopted is that it obviates the necessity of frequent appointments, and prevents the existence of any vacuum in respect of the Magistrates under section 29‑B of the Code of Criminal Procedure read with section 8 of the Reformatory Schools Act that may be occasioned by the transfer of the Magistrates, their appointment to secretariat posts, and a host of other contingencies. None of the three cases referred to in the High Court's order, viz., Abdul Hameed v. State (P L D 1960 Lab. 85), The Crown v. Mst. Jannat (29 P L R 536 ) and Emperor v. Udho and others (A I R 1943 Sind 107), applies to the present case. Of these cases the learned Single Judge himself said that the case of the Crown v. Mst. Jannat was of no assistance. The case of Abdul Hameed v. State has also no application because it does not deal with the present question at all. The learned Judge, however, relied on the case of Emperor v. Udho in support of his decision. This case dealt with empowering a Deputy Superintendent of Police under section 6(29 P L R 536 ) of the Bombay Prevention of Gambling Act. The decision has no application to the present case. It may be argued that under section 30 of the Code of Criminal Procedure Magistrates are appointed by names. The reason is that the language and purpose of the section requires so. It is only some Magistrates .of the First Class who are required to be invested with powers under section 30 of the Code of Criminal Procedure, and only those possessing .sufficient ability and experience to shoulder the higher and graver responsibility that are considered suitable for investment with the said powers. I, therefore, think that the notification is perfectly valid, and there under l all Magistrates of the First Class have been validly invested with the powers, mentioned in section 8(1) of the Reformatory Schools Act. As regards the learned Judge's order quashing the proceeding as without jurisdiction I should like to state that the order is illegal as well as uncalled for. Section 29‑B of the Code of Criminal Procedure neither creates a forum of exclusive jurisdiction for the trial of juvenile offences nor does it take away the jurisdiction of a Magistrate to try an offence under the Pakistan Penal Code. Under section 28 of the Code of Criminal Procedure a offence under the Pakistan Penal Code may be tried, inter alia, by any other Court by which such offence is shown in the eighth column of the Second Schedule of the Code of Criminal Procedure to be tribal. Under the ‑Schedule an offence under section 380 of the Pakistan Penal Code is tribal by any Magistrate. Neither the Punjab Borstal Act nor the Punjab Reformatory Schools Act has created any offence. The trying Magistrate was therefore, fully competent to try the offence mentioned in section 380 of the Pakistan Penal Code. And if section 5 of the Punjab Borstal Act apply a Magistrate specially empowered under section 30 of the Code of Criminal Procedure is also competent to order detention in a Borstal Institution. On the facts of the present case the question of the validity of the aforesaid notification did not arise. Section 5(1) of the Punjab Borstal Act provides for detention, inter alia, when a male person less than 21 years .of age is convicted of an offence, and when by reason of his criminal habits, ..or tendencies or associations with persons of bad character it is expedient in the opinion of the Magistrate that he should be detained. In the absence .of any material on the record it is difficult for me to say whether this ‑section applied to the facts of the case. As regards section 8 of the Reformatory Schools Act it may be stated that the provision applied to a `youthful offender', i.e., a person under the age of fifteen years convicted of An offence punishable with transportation for life or imprisonment, and a~ preliminary inquiry and finding as to age was essential under section 11 of the Act. In the present case there was no definite evidence about the age; .of the boy except that he was described as 14115 years of age. Assuming that the trying Magistrate was not competent to pass the ‑order of detention in a Borstal Institution, the trial itself was good, and he should have been directed to refer the matter to the District Magistrate under section 9(1) of the Reformatory Schools Act or undar section 5(2) of ‑the Punjab Borstal Act. The entire proceeding could not be quashed merely because the Magistrate was not himself competent to pass the order of detention in the Borstal Institution. I would, therefore, allow the appeal and set aside the order of the High Court. The occurrence took place on the 3rd of August 1961. We are told'B that the respondent has already been detained in the Borstal Institution for about seven months. In these circumstances I think that the ends of justice will be sufficiently met if I direct that the detention be reduced to the period already undergone by the respondent, and he be set at liberty forthwith if not wanted in connection with any other matter, and I would order accordingly. HAMOODUR RAHMAN, C. J. ‑I agree. WAHEEDUDDIN AHMED, J.‑I agree. A. H. Appeal allowed.