P L D 1969 Supreme Court 158 (PLP)

HAM00DUR RAHMAN, C. J.

‑This appeal by special: leave i~ directed against the judgment of a Division Bench of the High Court of West Pakistan declaring an order made by the Commissioner, Lahore Division, on the 31st October 1964, for referring the case of the respondents Nos. 4 to 7 herein to, a Tribunal under the West Pakistan Criminal Law (Amend ment) pact, 1963, to be without lawful authority arid of no legal effect and directing a competent criminal Coust to deal with the case expeditiously. The impugned reference came to be made in the following circumstances The respondent Nazir Ahmad, on the 23rd July 1964, lodged a First Information Report at the Mangtanwala Police Station in the District of Sheikhupura against 8 persons for the murder of one Mushtaq Ahmad but on the 3rd August 1964, the appellant Waryam Khan lodged another report charging the last named four respondents herein and a 5th person, named Choudhury Noor Ahmad Parhar, Advocate, with the murder of Anwar, one of the accused named in the earlier F. I. R. with regard to the same incident. After investigation the Police submitted a challan against the last four respondents herein and Choudhury Noor Ahmad Parhar under section 332/109/34 of the Pakistan Penal Code. No action was, however, taken on the First Information Report lodged by Nazir Ahmad. The latter, therefore, filed a private complaint before a Magistrate on the 23rd July 1964. Thereafter, on the 31st October 1964, the Commissioner, Lahore Division made the impugned order, leaving the case of Choudhury Noor Ahmad Parbar to be dealt with by the ordinary Courts. This order was upheld in revision by the Home Secretary to the Government of West . Pakistan. Hence the writ petition. The contentions raised before the High Court were (i) that the case of Choudhury Noor Ahmad Parhar, a co‑accused could not be split up so as to refer the cases of only the others for decision by the Tribunal ; (ii) that since the offence alleged against the said respondents was under section 302/34, P. P. C., it could not at all be referred to the Tribunal as section 34, P. P. C. was not included in the Schedule to the West Pakistan Criminal Law (Amendment) Act and (iii) that the order was bad, because, the Commissioner had not given any reasons for making the reference as he was required to do under section 3 of the said Act. The High Court relying upon an earlier Full Bench decision of its own in the case of Khizar Hayat and others v. Commissioner, Sargodha Division and another (P L D 1965 Lah. 349) came to the following conclusions: (i) That even though upon the allegations made by Waryam Khan the persons whose cases had been referred to the Tribunal were charged under section 302/34, P. P. C. and Choudhury Noor Ahmad Parhar was charged under section 302/109/120‑B, P. P. C. the offences formed parts of the same transaction. (ii) That the "splitting up or dismembering of a case forming an integral whole was fraught with serious consequences inasmuch as it exposed the accused to the risk of conflicting decisions." (iii) That in the facts of the present case the principle enunciated by the Full Bench was attracted with greater force, for here the splitting up was not between "two sets of offences, but between the two acts of the accused persons". (iv) That where the challan was under section 302 read with section 34, P. P. C., the reference of only the offence under section 302, P. P. C. was not permissible, for, section 34, P. P. C. did create a distinct criminal liability even in respect of those accused persons who had not themselves inflicted the fatal blow but had acted merely in furtherance of a common intention of them all. The splitting up of the case and taking out only the offence under section 302, P. P. C. was thus objectionable. (v) That under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, the Commissioner was bound to state the reasons for making the reference. Since he had not done so he had failed to apply his mind to the facts of the case and his order was not sustainable. Leave to appeal was granted in this case as leave had already been granted by this Court to consider the correctness of the majority view in the above mentioned Full Bench decision of the High Court and till then the decision of this Court in the case of Commissioner, Sargodha Division and another v. Khizar Hayat and others (P L D 1966 S C 793) had not been announced. This Court has since reversed the majority view of the Full Bench of the High Court and held that the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963, is not framed on any basis of categories of offences but has to be treated as an enumeration ad hoc of the particular offences which the Legislature had chosen to be referable to the Tribunal. This view has also since been re‑armed by this. Court in the case of The Commissioner, Rawalpindi Division and another v. Pervez Iqbal (P L D 1968 S C 259) and the High Court has itself, by another Full Bench decision in the case of Muhammad Nawaz and others v. The State (P L D 1967 Lah. 952) held that since section 34 of the Penal Code does not create any distinct offence but merely lays down a principle of joint liability in a criminal act, it is immaterial whether it is mentioned in the Schedule to the West Pakistan Criminal Law (Amendment) Act or not as a referable offence. The mere fact, therefore, that a person is charged constructive for an offence by appending section 34, P. P. C. to the said offence does not affect the validity of the reference itself. Even if section 34 is not included in the Schedule yet, on the facts, if it is found that certain persons whose cases have been referred to the Tribunal are only constructively liable for that offence, the Tribunal would be able to recommend their conviction thereunder. Learned counsel for the appellants has, therefore now confined his challenge to the last finding of the High Court, namely; that the order of the Commissioner was lacking in reason. The order discloses that although the records had been perused, yet the case that was discussed was mainly that of Noor Ahmad Parhar and after discussing his case the Commissioner came abruptly to the following conclusion: "As regards the other accused, I am satisfied from the facts on record that ends of justice would be best served if they are tried under West Pakistan Criminal Law (Amendment) Act, 1963, and I accordingly direct such a trial." The learned counsel contends that since the Commissioner states that he had perused the records and the records con tained the recommendation of the Deputy Commissioner wherein reasons were given in full, the Commissioner must be deemed to have adopted the reasons of the Deputy Commis sioner. In any event, since the Home Secretary had, on revision, upheld the order of the Commissioner and given reasons for the reference the omission of the Commissioner is a mere irregularity which could not vitiate the reference. No copy of the order of the Deputy Commissioner has been placed before us but on a perusal of the order of the Home Secretary, we find that it is equally devoid of reasons. The law clearly requires that the reference must be made "by an order in writing with reasons therefore. The necessity for the giving of reasons arises because rule 3 of the West Pakistan Criminal Law (Amendment) Rules, 1963, framed in exercise of the powers given by the statute itself, makes it obligatory on the Com missioner to consider a number of factors which have been speci fied seriatim in clauses (a) to (j) of this rule. It is only when he is satisfied that the case falls within one or the other of the said categories that he can make a reference. It postulates, therefore, that the reason to be given must be a reason relatable to one of the matters mentioned in rule

3. The Commissioner must, therefore, disclose his mind by specifying in writing the specific reason which had prompted him to refer the case to the Tribunal‑ so that the revising authority may be in a position to say as to whether the reference had been made upon valid and sufficient reasons. We regret to say that neither in the order of the Commissioner nor in the ‑order of the Home Secretary is there anything to show that they were even aware of the requirements of the law, far less can it be said that they had complied with these requirements. Learned counsel has further urged that since by an amending Ordinance of 1966, sections 34 and 109 of the Pakistan Penal Code had been included in the Schedule the order had been validated. Section 10 of the said Ordinance No. XV of 1966, however, itself says that validation shall not take place in cases where either the Government or any Court, including the High Court, has already set aside the order of reference. This amending Ordinance was promulgated on the 27th April 1966, after the High Court had on the 16th of April 1966, set aside the impugned order. It cannot, therefore, be contended that this order had been validated by the amending Ordinance. Lastly it is contended that the High Court had no jurisdic tion to entertain this writ petition as after the proclamation of the Emergency in 1965 fundamental rights were suspended and all proceedings pending in Courts for the enforcement of such rights were suspended for the period during which the Emergency remained in force. Since the Emergency is still continuing the‑ petition, it is argued, could not have been entertained by the High 'Court, for, it was really an indirect challenge to the validity of the impugned order on the ground of violation of the fundamental right of equal treatment under the law. We are unable to accept this contention, for, the grounds upon which the writ petition, as indicated by us earlier, was pressed made no reference whatsoever, direct or indirect, to any fundamentals right. The learned counsel also attempted to argue with some zeal that the West Pakistan Criminal Law (Amendment) Act should be given effect to, as far as practicable, for it was really a beneficial piece of legislation aimed at reviving the Muslim Law of Evidence in this country. This argument is irrelevant, for, a statute, whether beneficial or not, has to be enforced by the Courts, as long as it is on the statute book. The generally accepted rules of interpretation require that it should always be so interpreted that it prevails rather than fails. In the present case the High Court too has insisted on no more. It has given effect to the statute and pointed out that it was incumbent upon the authorities concerned to comply with the provisions of the statute, i.e. to make a reference according for law after giving reasons therefore. This is no more than enforcement of the statute and the learned counsel can have no, grievance against that. It would thus appear that although the reasons given by the High Court for setting aside the order of reference by splitting up of the offences have now been overruled by this Court in the cases cited above, yet this appeal cannot succeed merely on that ground, for even otherwise, the order of the Commissioner was bad for want of reasons therefore and non compliance with the provisions of section 3 of the Ordinance itself. The learned counsel, appearing for the respondents Nos. 4,. 5, 6 and 7 has, on the other hand contended that this Court had not decided in the case of Commissioner, Sargodha Division and another v. Khizar Hayat and others that for the purposes of a reference under the Criminal Law (Amendment) Act, a case could be so split up that the cases of some of the accused were referred while of some others left to be tried by the ordinary Criminal Courts. This question was not directly in issue in the said case. It is, accordingly, argued relying on the terminology of section 3 of the Ordinance itself that such splitting up is not permissible. Section 3 is in these terms: "3. (1) Where, in the opinion of the Commissioner it is expedient in the interest of justice, that the question of the guilt or innocence of any person accused of a scheduled offence or of any several persons so accused, be tried by a Court mentioned in section 6 of the Code of Criminal Pro cedure, 1898, the Commissioner may, notwithstanding any thing contained in the Code of Criminal Procedure, 1898, or in any other law for the time being in force, by an order in writing with reasons therefore refer the question to the decision of a Tribunal, and require the Tribunal to come to a finding on the question after such enquiry as may be necessary and after hearing the accused. (1‑A) Where the Commissioner decides to refer, under the pro visions of subsection (1), the question of the guilt or innocence of any person to a Tribunal, and such person is accused of a scheduled offence, as well as one or more offences not specified in the First Schedule (whether committed in the course of the same transaction in which the scheduled offence was committed or otherwise), only the question relating to the scheduled offence shall be referred to the Tribunal, and the offence not specified in the First Schedule shall be dealt with as if this Act were not in force. (2) . (3) . (4) . (5) . It would appear that the question of the guilt or innocence of "any person" accused of a scheduled offence or "of any several persons so accused" can be referred to the Tribunal, notwith standing anything contained in the Code of Criminal Procedure, 1898, or in any other law for the time being in force. The learned counsel's contention is that since the Legis lature has not said that the guilt or innocence of "any person" or "persons" may be referred but has advisedly used the words "any person" and "or of any several persons" so accused the intention manifested is that where several persons are jointly charged with a scheduled offence the cases of all should be referred or none at all. This, it is pointed out, is further confirmed by the difference in the language used in section 11 of the Frontier Crimes Regulation where the words are "of any person or persons accused of any offence, or of any several persons so accused." It is no doubt true that the section is not worded with clarity. The Legislature could very well have said "or of any of several persons" but it has not done so. The question, however, is whether, as contended by the learned counsel, the intention of the Legislature was that the cases of accused persons charged with a common offence or offences cannot be split up for the purposes of a reference? Under the Code of Criminal Procedure the rule laid down in section 233 is that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 234, 235, 236 and 239, Cr. P. C. These sections are the exceptions to the general rule. The general rule is clear enough. A joint trial is under these provisions, by no means compulsory. Nor can it be said that if several accused persons charged for committing the same offence in the course of the: same transaction are tried separately then the trial will, irrespective of any question of prejudice, be illegal. The provisions of sections 234 to 239, Cr. P. C. are merely enabling provisions and do not make it incumbent upon the criminal Courts to hold a joint trial in every case. Notwithstanding these provisions, a joint trial may not be held if it bewilders or prejudices a particular accused. If this be the position under the procedure prescribed for an ordinary criminal trial, can there be any serious objection to the cases of accused persons being split up for the purposes of trial under the Criminal Law (Amendment) Act, 1963? Did the latter intend to lay down any different rule ? I think not. It is not difficult to visualize a position in which out of several persons jointly charged for an offence, the cases of some may come within the categories mentioned in rule 3 while of others may not fall within any one of the said categories. In such circumstances it is manifest that the cases of those persons who do not come within the mischief of rule 3 must be taken out, for, their case; cannot be lawfully referred to a Tribunal. Furthermore, if as held by this Court, it is possible to split up offences even though they may be co‑related or lesser offences of the same category, then what serious objection can in principle be taken to the splitting up of accused persons. Such an interpretation would also render the words "any person accused of a scheduled offence" in section 3 of the Act artificially restricted to only the cases in which a 1r single individual is charged. There can be no justification for so restricting the meaning of these words which in their ordinary grammatical sense are of general application. In any event, in the present case, there is no such splitting up for Noor Ahmad Parhar was charged with a totally different offence under sections 302, 109 and 120‑B, P. P. C. and not under section 302/34,. P. P. C. along with the respondents whose cases were referred. In the result I am in agreement with the High Court that the order of the Commissioner, being devoid of reasons, was not an order made in compliance with the provisions of section 3 of the G West Pakistan Criminal Law (Amendment) Act, 1963, and had, therefore, in any event, to be set aside, even though the other legal reasons given by the High Court were not sound. Having set it aside, however, it has now to be considered as to what further order should be made. Under Article 98 of the Constitution, it seems to me, that clause (2)(a)(ii) thereof does not contemplate the making of any consequential order. It merely gives to the High Court the power to declare an act done or decision taken by a functionary of the Government the Province or a local authority to have been done or taken without lawful authority and as of no legal effect. The con sequences of this declaration will follow of their own force. In the present case, the consequence of it will be that there will be no valid order of reference to the Tribunal. It is necessary for us, therefore, to say anything else. If the Commissioner is still' advised that he has a right even now to make a reference and that this is a proper case to be referred, he can do so but it is to be pointed out that this will have to be upon a fresh proceeding. On the other hand if he does not make any order of reference, then the case, as pointed out by the High Court, will proceed before the ordinary criminal Courts. I would, therefore, dismiss this appeal. SAJJAD AHMAD, J.

‑I agree. M. R. KHAN, J.‑

I agree. K. B. A. Appeal dismissed.