P L D 1966 (W (PLP)

(3) That there was in fact no case at all which could have been referred to the Tribunal for the only evidence in the case was that the petitioner Mohammad Umar had come to the ghani shortly before Zardad was murdered.

3. We consider that this petition has to be accepted on the first ground and it is accordingly not necessary for us to deal with the second and the third contentions raised by the learned counsel for the petitioners. As the Act stood on the date the reference order was made by the Commissioner and on the dates the Tribunal gave its award and the District Magistrate recorded the conviction and sentence against the petitioners, section 34 of the Pakistan Penal Code was not included in the Schedule of offences appended to the Act. The question whether in these circumstances an offence made punishable by the application of section 34, P. P. C., could be referred to the Tribunal under the Act, as it then stood, was considered by a Division Bench of this Court at Lahore in W. P. No. 132 of 1965, "Nazir Ahmad etc. v. The Home Secretary, Government of West Pakistan etc., decided on the 15th of April 1966. After referring to the dictum of the Full Bench in the case of Rahmatullah Khan and others v. The State and others (P L D 1965 Pesh.162) regarding a reference under section 109 of the Pakistan Penal Code, it was observed that:‑-- "Even though section 34, P. P. C. does not create a substantive offence, yet it creates a criminal liability even in respect of those accused persons who may not have themselves inflicted the fatal blows but who were nevertheless acting in furtherance of the common intention of all. From the fact that the Legislature has included section 149, P. P. C. in the first Schedule to the Act, its intention is clear that punishment for constructive liability cannot be imposed by the Tribunal under the Act unless the relevant provisions creating that constructive liability are included in the First Schedule.

4. It was contended by Mr. Sher Bahadur Khan, the learned Additional Advocate‑ General, appearing for the State, that whatever be the position with regard to section 34, P. P. C., at the time the reference was made in the instant case and the conviction recorded by the learned District Magistrate, the situation has radically changed since the promulgation of the Amending Ordinance XV of 1966 on the 27th April 1966, for the reason that section 34, P. P. Code has now been included in the Schedule of offences. It was submitted by the learned Additional Advocate- General that the Act being a procedural law has retrospective application to all pending causes, and as in the present case the sentence of 14 years' rigorous imprisonment imposed by the District Magistrate has not yet received confirmation from the Commissioner, the case must be deemed to be a pending case, with the result that it will be governed by the new law as intro duced by the Amending Ordinance.

5. As the legal proposition that there is no vested right in procedure and consequently procedural changes have retrospective application in the sense that they apply to all pending cases, well -established, the argument advanced by the learned Additional Advocate‑General appears plausible at first sight. We consider, however, that it cannot bear close scrutiny. The argument proceeds on the following assumption :‑ (a) That the Act is merely a procedural Law‑a position which is not accepted on behalf of the petitioners; (b) that the addition of section 34 of the Pakistan Penal Code to the schedule of offences appended to the Act is constitu tionally valid an assumption which is again disputed by the opposite side; and (c) that the case is still pending within the frame‑work of the Act, for the reason that the sentences awarded by the District Magistrate have not yet been confirmed by the Divisional Commissioner‑an assumption resting on want of information either way.

6. Even when these assumptions are made, the question is what exactly is the scope of the law with which we are dealing. It creates a special forum for the speedy trial and effective punishment of certain heinous offences, and an essential pre requisite for drawing a case into it or it is an order of reference passed by the Commissioner under section 3 of the Act. One way of looking at the question is that the Act being in the nature of a procedural law, all criminal cases involving a scheduled offence, or offences, and pending in the ordinary Criminal Courts, can be ordered to be tried by a Tribunal constituted under section 3 of the Act, on an order of reference being made in this behalf by the Commissioner. In such a situation it could perhaps be contended that it is not necessary that the offence should have been committed after the enactment of this special Law, and that the procedure laid down by it could be applied even in those cases in which the offences had been committed previously. In this sense of the Act would have retrospective application to pending cases. But it is clear that the Act does not apply ipso facto to pending cases unless an order of reference is made. In this respect, therefore, the Act is different in scope and application than an ordinary procedural law which would automatically apply to all cases which might be pending before the ordinary Courts at the time of its enactment. In other words, the scope of this Act is different, for instance, from procedural changes which may be introduced in the Criminal Procedure Code, as such changes would automatically apply to all pending cases, irrespective of the fact that the offences involved therein had been committed before the introduction of those changes. However, this .is not so with regard to the Act with which we are dealing, as it does not come into play until such time as a case is drawn into the system created by it.

7. Another aspect of the matter is that once a case is drawn into the system of trial created by this Act, then all procedural changes which might be introduced during the pendency of such a case before a Tribunal or the District Magistrate or the Commis sioner, would apply irrespective of the fact that the case had been drawn into the system prior to the introduction of the new procedure. But those changes would then relate only to the manner of disposal of a case which has been validly referred to the Tribunal, and not to the antecedent stage of reference to the Tribunal itself. It seems to us that when the learned Additional Advocate‑General speaks of the present case as being a pending case, he is really referring to this aspect of the matter, namely, that the proceedings under the Act have not yet been concluded. But the pendency of the case in this sense does not have any bearing on the question whether the case was validly drawn into the special system created by this Act. That question must still be determined by the provisions contained in this law regarding the offences which could be referred to the Tribunal under section 3 of the Act.

8. We have already expressed by the view that according to us section 34 of the Pakistan Penal Code must be regarded in the nature of a substantive provision for the reason that it creates criminal liability, which would otherwise not be present if this provision of law were not applied. In these circumstances, it is clear to us that section 34, P. P. C. was not a Scheduled section at the time the reference was made in this case and subsequent proceedings taken thereon, with the result that the reference must be held to be one without jurisdiction and of no, lawful authority. The Act, as already stated, applies only to the trial of schedule offences and to no others. In the present case the order of reference must therefore be held to be ab initio void, as it related to a non‑scheduled section of the Pakistan Penal Code.

9. It was next contended that it might still be possible for the Commissioner to pass a fresh order of reference in accordance with the amended schedule, as introduced by Ordinance (XV of 1966), and therefore, the petitioners might not gain any real benefit by succeeding in the present petition. The learned counsel for the petitioners sought to address arguments against the validity of such a course of action, but we do not think it necessary to consider this question in the present case, for the reason that no such fresh order of reference has yet been made, and it would be premature for us to proceed to decide in advance whether such an order would be valid or not, if made. Suffice it to say that as the matter stands at present, the only order of reference, on the basis of which all proceedings have been taken in this case, was passed at a time when section 34 of the Pakistan Penal Code was not included in the Schedule of offences; and for the reasons given above we consider that the changes introduced by Ordinance (XV of 1966), do not have automatic application to the present case, as the foundation of the Tribunal's jurisdiction has to be a proper order of reference, which does not yet exist in this case.

10. We may also take note of the fact that the only validating provision contained on Ordinance (XV of 1966), is section 10 which is to the following effect: "Any order made by the Commissioner under section 3 of the said Act before its amendment by this Ordinance referring to a Tribunal for decision, the question of the guilt or innocence of a person accused of a scheduled offence or offences as well as a non‑scheduled offence or offences, shall, unless such order was set aside by Government in the exercise of its powers of revision under the said Act or by any Court before the coming into force of this Ordinance, shall be deemed to have been validly made, if the Commissioner separated .the scheduled offence or offences from the non‑scheduled offence or offences in accordance with the provisions of the said section as amended by this Ordinance, and only the .question relating to the scheduled offence was referred for decision to the Tribunal."

11. There was some argument at the Bar as to the constitutional validity of this section, but apart from that it will be seen that the section is intended to validate only one class of cases, namely those in which the Commissioner had bifurcated the scheduled and the non‑scheduled offences, so as to refer to the Tribunal only the question relating to scheduled offences. The validating clause contains no indication whatsoever, that it was intended to apply even to those cases where the reference had originally been made regarding an offence which was not included in the Schedule at the time of making the reference but was subsequently so included. We have, therefore, no hesitation in holding that references of this kind have not been validated by section 10 of the Ordinance, simply on account of the inclusion of certain offences in the Schedule, which were previously not to included.

12. The result, therefore, is that the present case has to be governed by the unamended law; and in accordance with the provisions of that law the offence made punishable by they application of section 34, P. P. C. could neither be referred to the Tribunal nor the letter had any jurisdiction to try the same. For these reasons we have come to the conclusion that the convictions and sentences recorded against the petitioners before us are without lawful authority and of no legal effect. They are accordingly set-aside, and as a necessary consequence the case against them shall be deemed to be pending in the ordinary Criminal Court, so as to be disposed of in accordance with the procedure applicable to such cases.

13. The petition is, therefore, accepted, but in view of the legal questions involved, the parties are left to bear their own costs. K. B.A. Petition accepted.