P L D 1954 Lahore 114 (PLP)

SHABIR AHMAD. J.‑This is an appeal presented by the Provincial Government under section 417 of the Code of Criminal Procedure against an order of a Magistrate of the 1st Class, Lahore, acquitting Mirza Azam Beg of offence under section 29 of the Police Act (Act V of 1861). The order of acquittal was passed mainly because the learned trial Magis trate was of the view that not having been appointed under the Police Act the respondent could not be punished under section 29 thereof. It is with a view to having this enunciation of law by the trial Magistrate declared incorrect that the present appeal has been instituted. In brief the relevant facts are these: The respondent was enlisted as a Sub‑Inspector in the Border Police, West Punjab, from the 9th of March 1949. The order of appointment which is stated by the learned Assistant Advocate‑General to have been passed by the Commandant, Birder Police, Lahore Cantonment, is in the following terms :‑ "Azam Beg, son of lqbal Beg, caste Mughal, resident of House No. 3664, Kuchan Talwaran, Sutar Mandi, Police Station Lohari Gate, District Lahore, aged 20 years, 5 feet 6 inches in height, chest 32/34, No. 261, has been enlisted as. Sub‑Inspector on a monthly salary of Rs. 120 since the 9th March 1949. The aforesaid person was declared fit in the medical examination. Statement showing verification of character and service ticket were issued. Order to be re gistered in the Order Book ; persons concerned intimated and orders issued. Signature of ; The Adjutant, for Commandant, Border Police, Lahore Cantonment." The evidence on the record shows that the respondent took up his duties and that he absented himself from duty on the 4th of June 1952, and did not return to it for many days. The learned counsel for the appellant contended, that the reasons given by the learned Magistrate are untenable in law, and that the respondent was governed by section 29 of the Police Act. This section is in the following terms :‑ "

29. Every police officer who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by competent authority, or who shall withdraw from the duties of his office with out permission, or without having given previous notice for the period of two months, or who, being absent on leave, shall fail, without reasonable cause, .to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment other than his police duty, or who, shall be guilty of cowardice, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a Magistrate, to a .penalty not exceeding three months' pay, or to imprisonment with or without hard labour, for a period not exceeding three months, or to both." It will be noticed that this section does not in terms say that in order to be punishable under it, the police officer should have been enrolled under the Police Act. The term "Police Officer" has not been defined in the Police Act and as the word "police" is stated by section 1 of the Act to mean as including all persons who shall be enrolled under the Act, it may be assumed, without being held, that what section 29 enacts is that before a person can be punished thereunder he must have been appointed under the Police Act. If this section were the only one that had application, the judgment of the trial Magistrate would be open to no exception ; but we have to consider section 4 of the West Punjab Border Police Act (Act I of 1948) which deals specifically with members of the Border Police: Subsection (1) of section 4 reads as follows :‑ "(1) A member of the Border Police whey, discharging his duties shall have the 'same powers, privileges and protection and shall be under the same authorities and liable to the same penalties as an officer of police appointed under any Act for the time being in force." As I read this provision of the West Punjab Border Police Act, it appears to mean that for the purpose inter alia of penalties, a member of the Border Police was to be considered to be a member of the ordinary police force enlisted under the Police Act (Act V of 1861). The provisions of the Border Police Act do not appear to have been brought to the notice of the learned trial Magistrate because of reference to them that one finds in the judgment under appeal. It appears to me therefore that the acquittal of the respondent was not justified on the ground on which the learned trial Magistrate arrived at his conclusion. There is, however, another question which requires con sideration for the proper decision of the case. As mentioned already it is the Crown case that the ‑order of the appoint ment of the respondent was passed by the Commandant; Border Police, Lahore Cantonment, and the question arises if this order of appointment made section 29 of the Police Act applicable to the respondent by virtue of subsection (1) of section 4 of the West Punjab Border Police Act (Act I of 1948). Section 3 of the West Punjab Border Police Act, 1948, is in the following terms :‑ "

3. Appointment of Border Police.‑The Inspector-- General of Police may appoint as members of the Border Police so many persons who are fit and willing to serve as such, as he is authorised by the Provincial Government to appoint and may appoint any such member to any office of command in the Border Police." Another section of the Act which has some relevancy with regard to the question of appointment of members of the Border Police is section 5 of the Act which is in the following terms :‑ "

5. Rules.‑The Provincial Government may make rules consistent with this Act‑ (a) regulating the organisation, appointment, conditions of service, duties, discipline, arms, accoutrements and clothing of the Border Police ; and (b) generally for giving effect to the provisions of this Act." The counsel for the parties stated that no rules have been made by the Provincial Government under section 5 of the West Punjab Border Police Act, 1948. Section 6 of that Act repeals the Home Guards Ordinance, 1947, and lays down that any rules made, anything done and any action taken in exercise of any powers conferred under or by the said Ordinance shall be deemed to have been made, done or taken, so far as may be in exercise of powers conferred under or by the Act, as if the Act had come into force on the 25th August 1947. It may be mentioned that sections 2 to 5 of the Border Police Act except for the changes necessitated by the difference of the name of the force are an exact copy of sections 2 to 5 of the Ordinance which was promulgated on the 25th of August 1947. The material difference between the Ordinance of 1947 and the Act of 1948 is that while the former is comprised of only 5 sections the latter has a sixth section, the gist of which has already been given. Rules were made by the Provincial Government under' the Home Guards Ordinance, 1947. and they are by virtue of section 6 of the Act to be deemed to have been made under the Act. Rule 3 is the one which was relied upon by the learned counsel for the Crown for his contention that the appointment of the respondent as a member of the Border Police suffered from no defect. The relevant part of rule 3 is as follows:

3. Organisation and Administration; All the provisions of the Punjab Police Rules, 1934 shall apply mutatis mutandis to the Home Guards, West Punjab, but for the exceptions given below :‑ (i) The officer directly in charge of the Home Guards shall be known as Commandant Home Guards and he shall be assisted by such number of officers of the various ranks as the Provincial Government may from time to time direct. (ii) There shall be the following ranks of the Home Guards, the equivalent Police rank being shown against each Home Guards rank : -- (i) Commandant Superintendent of Police. (ii) Assistant Commandant: Deputy Superintendent of Police. (iii) Company Commander: Inspector of Police. (iv) Platoon Commander; Sub‑Inspector of Police. (v) Platoon Officer. Assistant Sub‑Inspector of Police. (vi) Havildar. Head Constable of Police. (vii) Home Guard. Foot Constable. (iii) Appointment to the post of Commandant and to the Rank of Assistant Commandant shall be made by the Government, to the rank of Company Commander by the Inspector‑General of Police and to the rank of Platoon Commander and Platoon Officer by the Commandant. When considered together, sections 3 and 5 of the Border Police Act, 1948, are capable of two interpretations. One of the interpretations is that it is only the Inspector‑General of Police who can make appointments and the second is that the question of appointment is to be governed by the rules made by the Provincial Government under section 5 of the Act. In support of the second interpretation the learned counsel for the appellant urged that, as worded, section meant that the Inspector‑General could make only those appointments which the Provincial Government authorised him to make and that the other appointments could be made by authorities mentioned in the rules made under section

5. It is a cardinal principle of interpretation of statute that Courts should presume that no part of a statute is without meaning. If sections 3 and 5 of the Border Police Act, 1948, are looked at in that manner the interpretation contended for by the learned counsel for the Crown is by no means un reasonable. In this connection it cannot be overlooked that the rules made soon after of 1941 authorised officers other than the Inspector‑General of Police to make appointments to the Home Guards and one may safely presume that it the intention of the Ordinance were that only the Inspector‑General of Police was authorised to make appointments it was very unlikely that the rules would have authorised any other authority to do so. One may legitimately ask why it was necessary to have section 3 of the Home Guards Ordinance, 1947, and the Border Police Act, 1948, if the authorities competent to make appointments were to be named, by the rules framed under section 5 of the Ordi nance and the Act. The answer to the above question, is contained in the enactments themselves. Section 2 of the Act as that of the Ordinance left it to the Inspector‑General of Police to constitute for the Province a body to be called the Border Police and the Home Guards respectively. If section 2 stood alone it would have been for the Inspector‑General of Police to make appointments to the body created under section 2 and it appears that in order to make it clear that the Inspector‑General of Police could make only such appoint ments as he was authorised by the Provincial Government to do, sections 3 and 5 were enacted. In view of what I have said above, the appointment of the respondent by the Commandant of the Border Police was perfectly in order and by the appointment the respondent, for the reasons I have already given, became liable as a Police Officer governed by the Police Act, 1861. The learned counsel for the respondent urged that as at the time the respondent is alleged to have absented himself from duty he was not actually on duty, section 29 of the Police Act could not be applicable. For this argument reliance was placed on subsection (1) of section 4 of the West Punjab Border Police Act (I of 1948) which has already been quoted. It was argued that as a member of the Border Police was liable to the same penalties as an officer of Police only when discharging his duties, section 29 could not be applied to a member of the Border Police if he failed to appear on duty as distinguished from withdrawing from duty. In my view this argument has no force as the words "when discharging his duty" do not govern all that succeeds them in subsection (1) of section 4 but were intended to convey that only when discharging his duties a member of the Border Police was to have same powers, privileges and protection as a Police Officer. If the argument of the learned counsel for the respondent were accepted it would mean that the subordination of a member of the Border Police to his superior officers ceased as soon as he went off duty, and it cannot be seriously doubted that this easy escape from subordination could never have been intended. By failing to appear to discharge his duty the respondent withdrew from duty within the provision of section 29 of the Police Act and became punishable thereunder. On the merits the learned counsel for the respondent did nut seriously dispute the prosecution case. In the trial Court, the respondent had pleaded that before going away he had taken leave from the Commandant of the Border Police. There is, however, no reliable evidence in support of this plea and in my opinion tile statement of Ahmad Nawaz (D. W. 1) who tried to support the plea was rightly rejected by the trial Magistrate. For the reasons given above I have arrived at the con clusion that the respondent was wrongly acquitted by the trial Magistrate. I would, therefore, accept the Crown appeal and convict the respondent of an offence under section 29 of the Police Act With regard to the sentence I think that in view of the fact that the offence was committed about a year ago a sentence of imprisonment is not called for, I would sentence the respondent to pay as fine Rs. 40, Which sum would equal about ten day's pay of the respondent. In default of payment of fine the respondent shall undergo imprisonment with hard labour for ten days. A. H. Appeal accepted.