P L D 1969 Peshawar 226 (PLP)

SHAH ZAINIAV BABAR, J.

‑ On the 20th of May 1966, A. S. I. Muhammad Zaman Khan of the C. I. A. Staff, Mardan, was on checking duty. On the road near the Premier Sugar Mills, Mardan, the A. S. I. found Mazdoor accused having covered himself in a chaddar. The A. S. L, on suspicion, searched the person of Mazdoor and recovered two unlicensed '303 bore rifles, 11 shots (Exh. P. 1 and P. 2), besides unlicensed '303 bore pistol (Exh. P. 3) five charges (Exh. P. 4) and 25 live cartridges of '303 bore (Exh. P. 5) and other live '303 bore cartridges (Exh. P. 6). Mazdoor was challaned under section 13 of the West Pakistan Arms Ordinance, 1965. He was tried by Haji Muhammad Attal Khan, A. D. M., Mardan, who found him guilty of an offence punishable under section 13 of the Arms Ordinance, 1965 and by the order, dated 22nd of July 1966 sentenced him to one year R.

1. The accused was first offender and a young man. The trial Court, instead of sentencing him to punishment at once, ordered him to be released on executing a bond for Rs. 3,C00 with two sureties for keeping good behavior and to receive sentence as and when called upon during the period of one year, under section 5 of the Pakistan Probation of Offenders Ordinance, 1960. The trial Court also ordered that during this period the accused shall remain under the supervision of a Probation Officer, Mardan.

2. The State lodged a revision against this order of the trial Court in the Court of Capt. Sibghitullah Khan, District Magistrate, Mardan. The learned District Magistrate by his order dated the 9th of November 1965, referred the case to the High Court with the recommendation that "The lower Court has, however, erred in releasing the accused on probation under section 5 of the Probation of Offenders Ordinance, 1960. The age of the accused is definitely 25 years or above and as such he has fully attained maturity of under standing to judge the consequences of his acts. As such, his case does not come within the purview of S. 5 of the aforesaid Ordinance and the order of the lower Court is legally defective to this extent."

3. This reference was heard by Abdul Ghani Khan Khattak, J., on the loth of March 1967. The learned A. A.‑G. argued before his Lordship that, "reading together subsections (1) and (3), its combined effect is that the trial Magistrate by having sentenced the accused, divested himself of the power to make a probation order, i.e. to say, an order requiring him (convict) under the supervision of a probation officer for the period for which the accused was sentenced." His Lordship was confronted with State v. Fazli Khaliq (P L D 1967. Pesh. 105) in which his Lordship Mian Shakirullah Jan, J., had considered the same aspect of the question dad was of the view‑.‑ "That the Magistrate after imposing the sentence of imprisonment on an accused person could not as well place him on probation because the sentence passed had the effect of nullifying the probation order."

4. His Lordship Abdul Ghani Khan Khattak, J. held the view :‑ "The words `for reasons to be recorded in writing instead of sentencing the person at once, make a probation order, occurring in subsection (1) of section 5 in my humble opinion, with due regard to the view taken, d,) not divest the Magistrate to nominate the sentence and at the same time order requiring the accused person to b‑‑ under the supervision of a probation officer for such period as specified in the sentence. I am of the view that subsection (3) of section 5 comes into operation only when during the period of probation the accused person commits an offence thereby contravening the terms of the surety bond executed by him and renders himself liable to the term of imprisonment nominated in the sentence. Since an important question of law is involved, I consider it expedient in the interest of justice, that the question should be resolved by a Division Bench."

5. In the reference State v. Fazli Khaliq before his Lordship, Mian Shakirullah Jan, J., Fazli Khaliq accused was convicted by Haji Muhammad Atta1 Khan, A. D. M., Mardan, by his order dated the 25th of February 1966, under section 307, P. P. C. and sentenced to two years' R. I with a fine of Rs. 60 or in default three months' further R. I Razli Khaliq was further convicted under section 13 of the Arms Ordinance, 1965 and sentenced to one year's R. I. Both the sentences were to run concurrently. The trial Court, while punishing the respondent in that case, ordered him to execute a bond for Rs. 4,000 with two sureties in the like amount for keeping good behavior for a period of two years and to receive sentence when called upon during this period and to remain under the supervision of the Probation Officer, Mardan, as required by section 5 of the Probation of Offenders Ordinance, 1960. The case of Fazli Khaliq was also referred by the District, Magistrate, to the High Court vide order dated the 10th of August 1966, recommending that the sentence awarded to the respondent under section 307, P. P. C. and section 13 of the West Pakistan Arms Ordinance, 1960 to be enhanced. The learned counsel for the State in that reference argued :‑ "that the learned trial Magistrate was not competent to order the respondent to execute a bond in Rs. 4,000 in lieu of sentence awarded to him under section 307, P. P. C., as section 5 of the Probation of Offenders Ordinance, 1960, was not attracted to offences punishable with death or transportation for life." His Lordship, after discussing section 5 of the Probation of Offenders Ordinance and the authority produced before him, held :‑ "The authorities relied upon by the learned counsel for the State are applicable, because the offence under section 307, P. P. C. is the one punishable with transportation for life, and is therefore covered by the Exception to section 5 of the Probation of Offenders Ordinance, 1960, and thus the learned trial Magistrate was not competent to release the respondent on executing bond in Rs. 4,000 for the offence committed under section 307, P. P. C. whereas he was competent to allow him to execute a bond in lieu of the punishment for the offence committed under section 13 of the West Pakistan Arms Ordinance." His Lordship further held: "There is also another aspect of the case, which appears to have been overlooked by the trial Magistrate and which makes the probation order passed by him illegal and, therefore, unsustainable. According to clause (b) of section 5 of the Probation of Offenders Ordinance, 1960, if a Magistrate is of the opinion having regard to the circumstances including the nature of the offence and the character of the offender that it is expedient to do so, he may for reasons to be recorded in writing, instead of sentencing the person at once make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer for such period, not being less than one year or more than three years, as may be specified in the order. This order clearly shows that the Magistrate cannot pass the order of sentence of imprisonment against an accused person while placing him on probation, because the sentence if passed would nullify the effect of the probation order in question."

6. Section 5 of the Probation of Offenders Ordinance, 1960 (Ordinance No. XLV of 196 (1) deals with the power of Court to make a probation order in certain cases. Section 5 subsection (1) reads as under :‑ "(1) Where a Court by which‑

(a) any male person is convicted .. (b) .. is of opinion that, having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to do so, the Court may, for reasons to be recorded in writing instead of sentencing the person at once, make a probation order, that is to say, an order requiring him or her to be under the supervision of a probation officer for such period, not being less than one year or more than three years, as may be specified in the order. "Provided that the Court shall not pass a probation order unless the offender entres into a bond, with or without sureties, to commit no offence and to keep the peace and be of good behaviour during the period of the bond and to appear and receive sentence, if called upon to do so during that period Provided further (2) While making a probation order, .. (3) When an offender is sentenced for the offence in respect of which a probation order was made, that probation order shall cease to have effect." Section 7 of the Ordinance deals with failure to observe conditions of the bond and lays down as under "(1) If the Court by which an offender is bound by a bond under section 5 has reason to believe that the offender has failed to observe any of the conditions of his bond, it may issue a warrant for his arrest or may, if it thinks fit, issue summons to the offender and his sureties, if any, requiring them to appear before it at such time as may be specified in the summons. (2) The Court before which an offender is brought or appears under subsection (1) may either remand him to judicial custody until the case is heard or admit him to bail, with or without sureties, to appear on the date of hearing. (3) If the Court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of his bond, including any conditions which may have been imposed under subsection (2) of section 5, it may forthwith‑ (a) sentence him for the original offence, or (b) without prejudice to the continuance in force of the bond, impose upon him a fine not exceeding one thousand rupees Provided .. (4) If a fine imposed under clauae (b) of subsection (3) is not paid within such period as the Court may fix, the Court may sentence the offender for the original offence." The upshot of the question is that where a Court, by which any male person is convicted for an offence (covered by section 5) is of the opinion that having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to do so, the Court may, for reasons to be recorded in writing, instead of sentencing a person at once, make a probation order and the Court shall not pass probation order unless the offender enters into a bond, with or without sureties, to commit no offence and to keep peace and to be of good behaviour during the period of bond and to appear and receive sentence if called upon to do so during that period. Further, if the Court by, which an offender is bound by a bond under section 5 has reason to believe that the offender has failed to observe any of the conditions of his bond, it may issue a warrant for his arrest or may, if it thinks fit, issue summons to the offender, and his sureties, if any, requiring them to appear before it. If the Court, after hearing the accused, is satisfied that he bas failed to observe any of the conditions of the bond including any condition which may have been imposed under subsection (2) of section 5 it may, sentence him for the original offence. Thus after the conviction and the probation order when the offender is called upon during the period of probation to receive a sentence, a fresh order of sentence is to be passed.

7. Under section 3 of the Ordinance, a High Court, a Court of Session and a District Magistrate, besides other Courts of original jurisdiction, are also empowered to exercise powers under the Ordinance and they may exercise these powers, where the case comes before it on appeal or in Revision. Section 8 of the Ordinance deals with the powers of Court in appeal and revisions and provides :‑ "Where an appeal or application for revision is made against conviction or an offence for which an order is made uncles, section 4 or section 5 discharging the offender absolutely or conditionally or placing vim on probation the appellate Court or the Court sitting in revision may pass such order as it could have passed under the Code, or may set aside or amend the order made under section 4 or section 5 and in lieu thereof pass sentence authorised by law."

8. The object of punishing an offender is the prevention of offences or reformation of the offender. Punishment would be a greater evil, if instead of reforming an offender, it is likely to harm the offender to repetition of crime with the possibility of irreparable injury to him. The provisions of the Probation of Offenders Ordinance are, thus, intended to enable the Court tot carry out the object of reformation and give the accused person a chance of reformation which he would lose by being incarcerated in the prison.

9. It will be implicitly clear from the above discussion that an order of probation under section 4 or section 5 is not a sentence. A conviction, coupled with an order under section 4 or section 5 is, therefore, a conviction without a sentence.

10. The provisions contained in the Probation of Offenders Ordinance are analogous, rather in modified itnd expanded form, to the provisions of law contained in sections 562, 563 and 564 of the Cr. P. C. Section 562, Cr. P. C. enacts. "(1) When any person not under twenty‑one years of age is convicted of an offence punishable with imprisonment for not more than seven years, or when any person under twenty‑one years of age or any woman is convicted of an offence, not punishable with death or transportation for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard teeing had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to, appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep peace and be of good behavior "Provided. "(2) An order under this section may be made by any Appellate Court or by the High Court when exercising its power of revision. (3) (4) Section 563, Cr. P. C. provides :‑ (1) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue. a warrant for his apprehension. (2) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety condition on his appearing for sentence. Such Court may, after hearing the case, pass sentence."

11. The words "instead of sentencing him at once to any punishment" have been the subject of scrutiny of High Courts. In Emperor v. Misri Lal (A I R 1919 All. 394), it was observed :‑ "The Magistrate found him guilty. He passed the following order :‑ `I sentence him to six months' rigorous imprisonment and to pay Rs. 130 as fine. The accused is a young man of a respectable family and there is no previous conviction against him. I do not think that a jail life will be suitable for him. Therefore, under S. 562, Criminal P. C., instead of sending the accused to jail, I order that if the accused executes a personal bond of Rs. 200, with two sureties of Rs. 500 each for keeping good behaviour for six months, he be released on probation of good conduct . . . . . . "The accused appealed to the Sessions Judge, who on the facts came to the same conclusion as the Magistrate and dismissed the appeal. He then submitted the record to this Court with a recommendation that the sentence passed by the lower Court be set aside and a legal sentence be passed. It was quite necessary for the Sessions Judge to refer this matter to this Court. It was within his power on appeal to maintain the conviction and so much of the sentence as was legal and to set aside the illegal portion of the Magistrate's order. As the record however is before this Court and notice has been issued to Misri Lal to show cause why the illegal F art of the sentence should not be set aside and a suitable order passed, I proceed to deal with the case instead of wasting further time by sending it back to the Sessions Judge. It is obvious that S. 562 cannot be applied, because the Court has not only convicted the accused but sentenced him as well. So much of the Court's order as purports to have been passed under section 562, is, therefore, set aside." In Mst. Barkat v. Emperor (A I R 1934 Lah. 514) it was observed : "On 3rd September 1933, Mst. Barkat jumped into a well in order to destroy her life, and she has been rightly convicted under S. 309, Penal Code. The trial Court inflicted upon her a sentence of simple imprisonment for six months, and also released her under S. 562, Criminal P. C. on probation of good conduct. The language of section 562, however makes it clear that the sentence of imprisonment imposed upon her while she was released on probation of good conduct, was wholly illegal and must therefore be quashed". In Karim Bakhsh v. Emperor (A I R 1930 Lah. 56) His Lordship Shadi Lal, C. J. ordered: "The accused Karim Bakhsh has been convicted under S. 454, I. P. C. but on account of his youth he has been released on probation under S. 562, Criminal P. C. The trial Magistrate has, at the same time, imposed upon the convict a fine of Rs. 25 : but in view of the wording of section 562, Criminal P. C. this sentence of fine is illegal. Accordingly I set aside the order inflicting the fine. The fine if realised, shall be refunded to the accused."

12. It would be noticed that all the three authorities referred to above are agreed on the point that the illegal order must be struck down though in Allahabad case the order which purported to have been passed under section 562 was set aside as illegal while in the other two cases of Lahore on the contrary the order in regard to passing of the sentence was held to be illegal and consequently the order in regard to section 562 was upheld. The question then arises as to whether the view expressed by Allahabad High Court is to prevail or that of Lahore High Court. We have given our anxious thoughts to the question and formed the opinion that the view expressed by the Lahore High Court must prevail as against the view expressed by the Allahabad High Court. It is well settled proposition of law that if in the same judgment two sentences or orders are passed, one which is legal and the other which is illegal, then the legal sentence or order must prevail and the illegal order must be set aside. In this view of the matter since the order extending the benefit of probation in the case in hand could be validly passed, the mere fact that by inadvertence or by mis‑apprehension of the correct legal provision of the Ordinance, the Magistrate also nominated the sentence, the order regarding probation cannot be annulled. The rule enunciated in case State v. Fazli Khaliq by our brother Mian Shakirullah Jan is not opposite or at par with the facts of the case in had for the short and good reason that in that case Fazli Khaliq was convicted and sentenced on two counts under section 307, P. P. C. and section 13, Arms Ordinance and doled out respectively sentence of two years' R. I. with a fine of Rs. 60 and one year's R. I. Since the offence under section 307, P. P. C. was punishable for transportation for life (as the complainant was hurt) the benefit of section 5 of the Ordinance could not be legally extended. In that view of the matter our brother should not have felt persuaded in making the observation that the Magistrate after imposing the sentence of imprisonment on the accused person "could not as well place him on probation because the sentence passed had the effect of nullifying the probation order". The above observation with profound respects are nothing more than obitor and it appears that His Lordship had not the benefit of full dressed arguments on the true interpretation of subsection (3) of section 5 of the Ordinance.

13. Now we address ourselves to the true interpretation of subsection (3) of section 5 of the Ordinance which has already been reproduced earlier. It will be manifest on careful reading o subsection (3) that that clause is redundant and introduced in abundant caution to meet the situation where the accused after having beep extended the benefit of probation under section 7 of the Ordinance failed to observe any condition of the bond and after a show cause sentenced as contemplated by subsection (3) of the Ordinance. To put it differently subsection (3) of section 5 comes into operation where the accused has failed to comply with any of the conditions of the bond and is then, after the show‑cause notice, sentenced for the offence for which he in the first instance though convicted was given the benefit of probation. Subsection (3) cannot be interpreted to make the legal order of probation as illegal by the mere fact that by inadvertence or some blunder the Magistrate also nominates a sentence while giving the accused the benefit of section 5 of the Ordinance. Under section 8 of the Ordi nance the order passed under sections 4 and 5 of the Ordinance are appealable and also subject to revision and as already noticed from the language of section 8 that the order made under section 4 or section 5 are subject to appeal and revision and the appellate or revisional Court can pass orders extending the benefit of section 5 on appeal or revision or also set aside the order in which benefit of section 5 has been extended. If we were to follow the obitor dicta in case State v. Fazli Khaliq to the effect that by the erroneous nomination of the sentence it automatically nullifies the order of probation, we would be abrogating section 8 of the ordinance and thereby deprive the appellate and revisional Courts to exercise the appellate and revisional powers conferred on it by the Ordinance. To put it differently the erroneous order passed by a Magistrate must not stand in the way of being corrected by the appellate or revisional Courts and the proper thing to be done to such a situation is to set aside the illegal part of the order.

14. For all the foregoing reasons we in respectful dis agreement with the view expressed in State v. Fazli Khaliq hold that the Magistrate having in the instant case properly and legally extended to the accused the benefit of probation under section 5 of the Ordinance cannot be annulled by the mere fact that he acted in excess of the jurisdiction in nominating the sentence. K. B. A. Reference answered accordingly.