P L D 1966 Supreme Court 793 (PLP)

CORNELIUS, C. J.‑In this appeal by special leave granted to the Commissioner of the Sargodha Division and the Deputy Commissioner, Sargodha, the question for consideration is the, validity of an order by the Commissioner of Sargodha passed on recommendation by the Deputy Commissioner under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, withdrawing from the jurisdiction of the ordinary Courts and a referring to a Tribunal under the said Act, the question of the guilt or innocence of six persons against whom there were accusations of offences punishable under sections 363, 366, 368 and 376, P. P. C., in respect of a girl Mst. Iqbal Khatun allegedly aged about 14 years. The accused persons moved the High Court for a writ to quash the order of the Commissioner. ? n due course, the matter was placed before a Full Bench of three Judges, for consideration of the following question, viz.:‑ "If a person is accused of more than one offence some of which are included in the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963, and some .ire not so included and the evidence in proof of those offences is partly or wholly common, is it permissible for the Commissioner to refer those offences which are included in the Schedule to a Tribunal, leaving the other offences to be dealt with by the Court under the Criminal Procedure Code, 1898." Two of the learned Judges were of the view that "the Commissioner acting under section 3 . . . . has no power to sub‑divide a case in the manner postulated, and in the alternative, that even if he be deemed to have such a power, it would be contrary to all known principles of natural justice to do so." The learned Judge, who was in the minority took the view that there is no impediment imposed by law preventing the Commissioner from referring the question of the gilt or innocence of the accused person to the Tribunal in relation to some of the offences of which he is charged." He observed further that the fate of the case as to the remaining offence will be quite a separate issue and the High Court has ample power to make appropriate orders should it be sought to bring the accused person to trial for the "remaining offences." In the view this learned Judge, "it is permissible for the Commissioner to refer the offences which are specified in tile Schedule to a Tribunal in accordance with section 3 of the Act, leaving the other offences to be dealt with by the Courts under the Criminal Procedure Code, 1898, even if the evidence in proof of the offences may be partly or wholly common." Leave to appeal was granted to consider the question of law which thus arose, it being one of considerable A general importance. We have heard Mr. Aslam Riaz Hussain in support of the appeal and Mr. Iftikharul Haq Khan has replied on behalf of the accused persons. In order to establish a case punishable under section 363, P. P. C., it is necessary, to establish that a person has been kidnapped, in this case, within the meaning of section 361, p. P. C., i.e., that a female below the prescribed age has been taken or enticed out of the keeping of her lawful guardian, without the consent of such guardian. The offence under section 366, P. P. C., is more heavily punishable and materially more elaborate. It covers not only kidnapping, but also abduction, that is to say, taking by compulsion or force or by deceitful means of a person from one place to another, irrespective of age or the fact of being under guardianship. It requires further a special intention, namely, that such female should be married to some person against her will or that she should be forced or seduced to illicit intercourse. The section also covers cases where a woman is abducted with intent to be forced or seduced to illicit intercourse, by means of criminal intimidation or abuse of authority or any other method of compulsion. The particular offence dealt with in section 368, P. P. C., is that of wrongfully concealing or confining a person, knowing that such person has been kidnapped or abducted. By section 376, P. P. C., the offence of rape is made punishable and this is irrespective of whether the woman raped has been kidnapped or abducted. By section 3 of the Act, the Commissioner is empowered, whenever it is in his opinion inexpedient in the interest of justice that the question of guilt or innocence of any person accused of an offence specified in the First Schedule should be tried by a Court constituted under the Criminal Procedure Code, to refer such question to a Tribunal for decision. In the First Schedule, offences are not specified by category, but are enumerated by precise sections in the Penal Code. Thus, it is not homicide that is mentioned in the First Schedule, but separately sections 302 and 304 are mentioned. There are other forms of homicide such as causing death by rash and negligent act punishable under section 304‑A, but that offence is not included in the First Schedule. Kidnapping and abduction are covered as a subject in the Penal Code in some 11 sections, but of these only one is mentioned in the Schedule, namely, section

363. Robbery and dacoity are covered in the Code in some 13 sections, but of these only four are specified in the Schedule, namely, `simple' dacoity under section 395, P. P. C., dacoity with murder under section 396, P. P. C. and using deadly weapons or causing grievous hurt, etc., at the time of committing robbery or dacoity, under sections 397 and 398, P. P. C. These instances are sufficient to establish that the First Schedule is not framed on a basis of categories, but is to be treated as an enumeration ad hoc of the particular offences which the West Pakistan Legislature has directed should be referable by the Commissioner under section 3 to a Tribunal. It is in that sense that it should be understood and applied. Before the Full Bench, the argument that was placed on behalf of the Commissioner was as follows:‑ "The principal offence committed was 363, P. P. C., which is included in the First Schedule to the Act. The other offences falling under sections 366, P. P. C. and 368, P. P. C., are the aggravated form of kidnapping, which are not separable. The offence of rape punishable under section 376, P. P. C., is no doubt not included in the Schedule, but a reference was necessary to determine the motive." This argument was repelled by all three of the learned Judges. It was noted that the offence punishable under section 368, P. P. C., is not an aggravated form of kidnapping. The learned Judges of the majority were of the view that other offences of kidnapping and abduction that were made specifically punishable by the Code, besides section 363, P. P. C., should be treated for the purpose of construction of the Schedule as casus omissus. They came to the conclusion that the failure to mention any other section than section 363 was deliberate and therefore there was no power in the Commissioner to transfer to the Tribunal any charge of an offence other than that punishable under section 363, P. P. C., in the present case. With this view, the third learned Judge agreed. The learned Judges of the majority then proceeded to consider whether it was possible for the Commissioner to refer in a case of the present kind only that offence which was specified in the First Schedule to a Tribunal "leaving the others to be dealt with by Courts constituted under section 6 of the Code of Criminal Procedure." They examined a certain rule made under the Act and after referring to certain pre‑Partition judgments of the Indian Courts, they came to the conclusion that from such action there would inevitably follow "a particularly anomalous result." Observing that in one of the judgments cited, strong emphasis had been laid on the necessity of adopting such procedure as avoids the risk of Courts coming to conflicting decisions on the same facts, the learned Judges posed the question‑"what can possibly be said in favour of a procedure whereby a case forming an integral whole is dismembered and one of the fragments handed over to a Tribunal?" They observed that by such a division in the case before them, the Tribunal might conceivably find the accused persons not guilty of kidnapping the girl under section 363, P. P. C., while "the ordinary Court, on the same evidence, might decide that she had in fact been kidnapped and convict the persons accused of having concealed or confined her." Other anomalies had been indicated to the learned Judges which they preferred not to deal with in their judgment. The learned Judge who was in the minority and was of the opinion that the Commissioner could refer a scheduled offence "leaving" the other offences to be dealt with by the Courts under the Criminal Procedure Code, based his view on the well‑recognized principal of auter fois convict and auter fois acquit being rules of res judicate applicable in criminal cases. He thought that these rules could be applied so as to avoid all risk of conflicting decisions such as had been emphasized by the learned Judges of the majority The case having come before the High Court on a petition under Article 98 of the Constitution to declare the order of the Commissioner under section 3 to be "of no legal effect being made without lawful authority," it seems to me that the simple question before the High Court was to decide whether the order was valid in whole or in part, and if only in part, which part of the order should be quashed. The offences which were being referred to the Tribunal for trial by the Commissioner's order were separately stated, and were to be treated prima facie as four references in respect of four separate offences. No difficulty need have been felt in ascertaining which of the references was sustainable in law and which was not so sustainable. Viewed in that simple light and bearing in mind that the First Schedule of the Act is not formulated on the basis of categories of offences, but enumerates specific offences in terms of sections contained in the Penal Code, it should have been apparent immediately that since sections 366, 368 and 376 were not mentioned in that Schedule, the order of the Commissioner referring the offences punishable under those sections to a Tribunal was plainly bad and should be set aside. The result of an order to that effect would be to validate the order of the Commissioner referring the offence under section 363, P. P. C., only and thus to enable the Tribunal to proceed with the trial of that offence alone. This would represent a proper vindication of the law, that being a primary purpose of the power provided by Article

98. In the High Court, however, the matter was looked at in an altogether different light. The question which was referred to the Full Bench is a wholly hypothetical one, not arising out of the facts of the case as it reached the High Court, or out of the contentions in the writ petitions, where quashment of the order of reference in its entirety was sought. Moreover, by the use of the underlined words in the question referred, viz., "is it permissible for the Commissioner to refer those offences which are included in the Schedule to the Tribunal leaving the other offences to be dealt with by the Court under the Criminal Procedure Code," it was being suggested that something of the kind had been done or could be done by the Commissioner. In fact, it is not for the Commissioner under the Act to leave offences to be tried by the ordinary Courts. Ordinary Courts have their jurisdiction apart from any volition or voluntary act on the part of the Commissioner. The Commissioner's powers are strictly limited. He may withdraw cases falling under specified sections from the jurisdiction of the ordinary Courts and once he does that validly, the ordinary Courts cease to have jurisdiction to try those offences. It has been held in more than one judgments delivered by this Court that once a case had been validly so withdrawn, the ordinary Courts cease to have any kind of jurisdiction in respect of action taken thereafter in accordance with the Act. What seems to have lain at the basis of the question was indeed the fear of anomalous consequences that were considered in some detail in the judgment of the learned Judges of the majority. Their conclusion was that because anomalous results would follow, therefore, the Commissioner could not leave other offences than those scheduled to be tried by the ordinary Courts and it would seem to follow that, in their opinion, the reference was bad as a whole. The learned Judge of the minority was of the opinion that no anomalies could result, if the rule laid down in section 403, Criminal Procedure Code were applied, in respect of the remaining offences. Section 403 bars the trial for any offence of a person who has "once been tried by a Court of competent jurisdiction . . . . and convicted or acquitted of such offence." The general principles of autre fois convict and autre fois acquit may be referred to for the proper application of this salutary provision in the Criminal Procedure Code to an acquittal or conviction by a Tribunal under the Act. This would of course be done in a proper case, that is to say, if in the present case, the Commissioner's order was to be upheld as regards the reference of the offence under section 363, and those proceedings were finalised, if thereafter the prosecuting authorities were to proceed against the accused persons for the alleged offences under sections 366 and 368, P. P. C., in respect of the same girl, the question could be raised in bar of the trial that for a basic offence there had already been either a conviction or an acquittal. It is well‑recognised that an offence is in its nature indivisible, whether it consists of a single act or of a series of acts, or whether those acts are performed simultaneously or at different times. There is an obligation upon the Courts to see that upon any given set of facts, the trial should proceed in respect of the most serious offence that is constituted by those facts. Where this is not done, an attempt later to prosecute on the same set of facts for a more serious offence, which could have been, but was not charged in the first instance, may be met with the plea of double jeopardy. It is for a party interested to claim before a Court that the case to be placed before it should be for the most serious crime which the facts constitute, prima facie. The Court is empowered, suo motu, to amend the charge after receiving evidence so as to extend the accusation to cover the full crime therefrom appearing. But such an action could not be taken in the present case by the Tribunal, to which, by assumption, the offence punishable under section 363, P. P. C., may be referred. The Tribunal's jurisdiction being limited to that offence, its duty would be to ascertain the facts in relation only to that offence, and to pronounce a verdict thereon. What the effect of‑that verdict might be in relation to a subsequent attempt to bring the other charges before the ordinary Courts competent to deal with the more aggravated forms of kidnapping, is a matter upon which it would be unwise to pronounce in the present state of the case. A number of F considerations would arise, affecting the detailed nature of the fresh accusations, and the application to them of the rule in section 403, Cr. P. C., as well as the larger principle of autre fois acquit and autre fois convict. These rules are sufficiently comprehensive and the principles have been elaborated and explained to a sufficient degree in a long series of authoritative judicial pronouncements ensure that nothing like the supposed conflict of decision on which the learned Judges of the majority have based their view can conceivably arise. It is true that these difficulties might have been avoided by framing the First Schedule in a different way, but it is not for the Courts to nullify an action taken in accordance with the dictate of the Legislature merely because that dictate, while it is clear so far it goes, may not appear to be founded upon a detailed understanding of all the implications in so complex a field as that of the criminal jurisdiction. Where the law is clear, the Judges of the Superior Courts are under oath to vindicate and enforce it. So much, however, may be said with certainty that the rules against double jeopardy is so well‑established that there need not be any substantial apprehension that if the Commissioner's order in this case were held to be valid in relation to the offence in section 363, P. P. C., that rule would prove ineffective to prevent conflict of decision. The High Court is equipped with ample power to supervise and correct every step taken in the ordinary Courts, should the case be pursued there on the same set of facts, in relation to the more serious offences which appear therefrom. In my opinion, the learned Judge of the minority was right in the view he took, namely, that the Commissioner's order should be held to be good as far as it was within the law, and as for the fact that thereby, from the first trial, there would be excluded a number of aspects of the case which were graver than G those constituting the offence referred, if consequence in law were to follow, those could be left to take care of themselves. If in the result certain of the more serious aspects of the crime were to go unpunished, the responsibility would lie upon the Legislature, whose dictate was being obeyed by the Courts, as in duty bound. Consequently, in my opinion, the proper reply which the Full Bench should have returned to the question referred was that in view of the fact that the writ petition did not raise any question as to the power of the Commissioner to refer a scheduled offence and his power to leave other allied offences to be dealt with bar the ordinary Courts, but merely sought quashment of the whole order of reference which mentioned a number of unscheduled offences, the proper course and that which was dictated by the law was to find that the reference under section 363, P. P. C., was in accordance with law, but the reference of the offences under sections 366, 368 and 376, P. P. C., was in excess of the powers of the Commissioner and to that extent, his order should be quashed. Both by reason of the exclusive nature of the Tribunal's jurisdiction and that the f facts which the Tribunal would be called upon to adjudicate upon were basic to a charge of kidnapping, simpliciter, the requirement of law would' be that any further proceedings before the ordinary Courts that may be contemplated should wait upon the final decision under the Act, In other words after withdrawal of the offence under section 363, P. P. C., from the jurisdiction of the Magistrate, further proceedings in respect of other offences arising out of the same set of facts should be stayed, until the decision in the case withdrawn and referred to the Tribunal is reported to the Magistrate, and the prosecuting agency makes known its intention with regard to such other offences. It would be at that stage that the plea of autre fois acquit or convict, as the case may be, could appropriately be raised for adjudication. S. A. RAHMAN, J.‑I agree. FAZLE‑AKBAR, J.‑I agree. HAMOODUR RAHMAN, J.‑I agree. MUHAMMAD YAQUB Ali, J.‑I agree. A. H.