P (PLP)

Malik Khuda Bakhsh J.

This is a petition, in revision, filed by Faiz Alam and 20 others, against the order, dated 13th July 1948, of the learned Sessions judge, 4lazara, who on appeal against the order, dated 8th May 1148, of Pir Fazal Khaliq Khan, Additional District Magistrate; affirmed the convictions, but reduced the sentences in certain cases. In order to see the case in its right perspective, it is desirable to trace the genesis and the development of the present proceedings. On 30th April 1948, K. P. Muhammad Zaman Khan of Khalabat instituted a complaint against 22 persons, alleging that they were his tenants and had, in contravention of the instructions issue by the officers concerned, harvested the whole crop and taken it in its entirety to their own houses. He, prayed for an action being taken against them under section 2 of the Punjab Tenancy (N. W. F. P, Amendment) Ordinance, (V of 1948). The complaint was sent by Pir Fazal Khaliq Khan, Additional District Magistrate, the same day to the S. H. O., Haripur, for necessary action under the above mentioned section. In the endorsement the learned 'Magistrate said that he would himself be also present in Haripur on 3rd. May 1948. Another complaint of a similar nature was filed on 3rd May 1948, by Muhammad Sarwar Khan against two distinct persons, namely, Jehandad and his son Muhammad Dad, who were alleged to be his tenants. This was also made over by the learned Magistrate to S. H. O. Haripur. The S. H. O. in his turn reported, on 8th May 1948, that the accused persons in both the complaints should be tried for an offence under section 3 of the above-quoted Ordinance. He further recommended that Jehandad and Muhammad Dad ought to be tried jointly along with the accused persons, against whom K. B. Muhammad Zaman Khan had lodged his complaint. Out of the 22 persons charged by K: B. Muhammad Zaman Khan, the three viz., Kalu, Karam, and Abdul Latif were stated by the S. H. O. -to be ill and be recommended that action against them should be deferred. Thus, 21 persons in all were sent up by the Police for trial to the Court of the additional District Magistrate, under section 3 of the Ordinance. It may here be noted that section 2 under which the complainants prayed for action relates only to the actual division of the produce between under which the trial of the accused persons was recommended by the Police penalizes the removal of any portion of the produce at such a time or in such a manner as to prevent the due division or appraisement thereof. The learned trial Magistrate disposed of the case summarily the very day it was put before him, viz., .8th May 1948. On behalf of the prosecution the two original complainants, namely, K. B. Muhammad Zaman Khan and Muhammad Sarwar Khan, were examined. In addition to them, the S. H. O., Ghulam Muhammad Khan, the Patwari, Mubarik Shah and Abdul Ghafoor Khan, agent of the Khan Bahadur also went into the witness-box. All the accused pleaded not guilty and produced Nawab Khan, Muhammad Dad and Mir Alam in their defence. The learned Magistrate recorded an order of conviction, but failed to give even a brief statement of reasons therefor, as required by section 263 (b), Criminal Procedure Code. He sentenced Lt. Muhammad Din and Jamadar Noor Alam to a fine of Rs. 200 each, or in default to undergo six weeks' rigorous imprisonment. Each of the remaining 19 accused persons was sentenced to three months' rigorous imprisonment, and a fine of Rs. 200 or in default to a further term of rigorous imprisonment for six weeks. On appeal the learned Sessions Judge, as remarked above, affirmed the convictions and maintained the sentences of Lt. Muhammad Din and Jamadar Noor Alam. In regard to the rest of the accused, he considered the imprisonment already undergone by them to be sufficient and reduced it accordingly. The fine imposed on Jehandad and Muhammad Toad was reduced to Rs. 50 cash, while in the case of the remaining. 17 accused, it was reduced to Rs. 100 each ; the imprisonment prescribed for non- payment of fine was, however, kept intact. At the hearing of the present petition, the learned Advocate-General raised a preliminary objection on the strength of the wording of section 10 of the Ordinance, which debarred any Civil, Criminal or Revenue Court to call into question any order passed under the Ordinance. As the objection raised by the learned Advocate General involved an important question of the interpretation of law, the petition was laid for hearing before the Bench. We have heard the learned counsel for the accused-petitioners as well as the learned Advocate-General in regard to the question of jurisdiction of this Court to entertain the petition. The learned Advocate-General contended that the conviction recorded by the learned Magistrate was tantamount to an order under the Ordinance, and consequently section 10 thereof stood in the way of the conviction being called into question. The learned Advocate-General here appears to have overlooked the fact that the convictions and sentences, passed by the learned Magistrate, did form the subject matter of appeal before the learned sessions-Judge, Hazara, where the Crown counsel did not raise any such objection. Having taken into consideration the objection, which has been raised for the first time before us on behalf of the Crown in the light of the Ordinance, we have come to the conclusion that it has got no substance whatsoever in it. The case was put up before the learned Magistrate in accordance with the provisions of the Ordinance, and but for section 3, which penalizes the removal of the crops under certain circumstances, there could have been no prosecution whatsoever. But the moment a case is instituted in a Criminal Court, the questions of procedure are governed by the Code which has not been repealed by the Criminal Procedure Ordinance. At every stage there do arise such problems as cart be decided by one Court or the other after criminal proceedings are instituted, and their decision can only be based on the provisions of the Code of Criminal Procedure. There may be a question of bail transfer and other points of like nature. The moment a case is disposed of by the original Court, a right accrues to the person affected to file an appeal or revision as the case may be, under sections 408 and 435 to 439, Criminal Procedure (Code. The Ordinance does not make any provision for the determination of questions like those referred to above, nor, as already remarked above, it purports to repeal the Code of Criminal Procedure. Hence, it is obvious that the appeal, which was filed in the Sessions Court, Hazara was quite competent, and so is the revision petition before its. Being confronted with this position, the learned Advocate-General himself was inclined to withdraw his objection. The learned Magistrate tried the case summarily and this he did in accordance with section 8 of the Ordinance, which lays down that all offences under it shall be tried summarily as provided in the Code of` Criminal Procedure of 1898. Now Chap. 22 of the said Code deals with summary trials of cases, and it is laid down in section 260 that a District Magistrate or any other Magistrate, specially empowered in this behalf may, if he thinks fit, try in a summary way offences not punishable with death, transportation or imprisonment for a term exceeding six months. As the imprisonment prescribed under section 8 of the Ordinance does not exceed six months, the offence could well have been tried summarily under section 260, Criminal Procedure Code, provided the trial Magistrate thought it fit to do so. In other words, the Code of Criminal Procedure has invested a Magistrate with a discretion to proceed summarily in cases, which can suitably be so tried. There may be complicated cases, where the Magistrate may not be inclined to use his discretion in favour of a summary trial. Section 8 of the Ordinance uses the word " shall " and thereby deprives a Court of law of a discretion vested in it by the Code of Criminal Procedure. It is a common ground that if the Provincial Legislature had enacted a similar measure affecting the provisions of Criminal Procedure Code, the Bill would not have become law unless it had been assented to by the. Governor-General. Section 88, Government of India Act, 1935 (as adapted by the Pakistan) Provisional Constitution Order, 1947, under which the Ordinance in question, purports to have been promulgated, lays down specifically that the Governor shall not, without instructions from the Governor-General, promulgate any Ordinance, if an Act of the Provincial Legislature containing the same provisions would, under this act, have been invalid unless, having been reserved for the consideration of the Governor-General, it had received his assent. The present Ordinance does not say in so many words that section 8, which affected the Code of Criminal Procedure, was inserted in it under the instructions of the Governor-General, nor has our attention been drawn to any extraneous document to prove that such instructions had been obtained. It is thus obvious that the provisions of section 8 of the Ordinance are ultra vires, and not in any way binding. The next question, which was presented for our determination at the bar, was that each of the accused persons had tenancy of his own 2nd the alleged act of removal of the crops was his own responsibility, with which none of his cc-accused had any concern whatsoever. The prosecution did not plead any conspiracy among the accused and thus the so many acts of so many persons could, by no stretch of imagination, be considered to fall within the preview of one and the same transaction and to bring into play the provisions of section 239, which deal with the point in, issue. It was conceded by the learned Advocate-General that this defect had crept into the proceeding of the learned trial Court, and in fact the learned Advocate-General went to the extent of admitting that the flaw amounted to an illegality, which had vitiated the trial. He, however, urged that if the convictions and sentences were to be quashed, then a retrial may be ordered. The learned counsel for the accused petitioners on the other hand has argued that the proceedings from the very beginning were marred by one defect or the other, and in fact the whole case was nothing but a tissue, of irregularities. Giving our best consideration to the point we find that the accused have already undergone the expense and worry of a trial. They had to prosecution an appeal in the Court of Session, and have also come up to this Court on revision. It is not desirable to expose them to any further trouble and expense, especially when most of them have also suffered imprisonment for about a fortnight as is clear from the record of the appellate Court. Retrial would mean the splitting up of a consolidated case into a4 many as 21 separate cases, a process which will entail a good deal of expenditure on behalf of the Crown as well as waste of energy and time. Thus, it is in the interests of nobody that the request of the Advocate-General be acceded to. For the reasons recorded above, we accept the petition and quash the convictions and sentences of the accused-petitioners. We decline to order a retrial ; no further proceedings shall be taken against them. The fines, if paid, shall be refunded to them. Orders announced. K. M. A. Revision allowed.