P L D 1966 (W (PLP)

These two Criminal Revisions arises out of two murder cases pending before the Sessions Judge, Kalat Division. In Criminal Revision No. 15 of 1966 the petitioner is being prosecuted for the murder of Dr. Hafizur Rahman alleged to have been committed between the night of 11th and 12th December 1963. In the second case the petitioner has been committed for trial for the murder of his wife. The murder in this case is also alleged to have been committed between the night of 11th and 12th December 1963. Both these cases were pending before the Nazim Kharan for enquiry and committal proceedings. Before committal enquiry could be completed Ordinance No. III of 1965 came into force. Under this provision of law all the offences mentioned in the Second Schedule are to be tried by the Tribunal on a reference made by the District Magistrate. These cases were committed for trial to the Sessions Court on 21st November 1965. The peti tioner raised a preliminary objection before the learned Sessions Judge, Kalat Division that he had no jurisdiction in the matter. He contended that since the offence is one of the offences mentioned in the Second Schedule, it was exclusively within the jurisdiction of the District Magistrate to refer it for trial in the manner provided in the ordinance to a Tribunal. The Ordinary Courts had no jurisdiction in such matters. This Contention was repelled by the learned Sessions Judge on numerous grounds by order dated 4‑5‑1966.

2. It is not disputed that the offence in both the cases was committed in December 1963. It is stated by Mr. Riaz Hashmi, the learned counsel for the petitioner, that one of the cases was referred to a Jirga, but it was withdrawn later on and sent for trial to a regular Court by order dated 6th November 1964. It is further not disputed that at the time when the Ordinance III of 1965 came into force both the cases were pending for enquiry before the Nazim Kharan for committal purposes. It is in pursuance of the committal order of the said Magistrate that both the cases came up for trial before the Sessions Judge, Kalat Division on 21st November 1965.

3. Mr. Riaz Hashmi, learned counsel appearing for the peti tioner, has contended that the view of the learned Sessions Judge that Ordinance III of 1965 has no retrospective effect is not based on proper appreciation of the law. The learned counsel contended that any offence committed before the coating into force of the above‑mentioned Ordinance was also triable under it. In my view the contention of the learned counsel in this respect is well founded. But the hurdle in the way of the learned counsel is subsection (2) of section 3 of Ordinance III of 1965 which is in the following terms :‑ "3 (2). The District Magistrate shall have exclusive jurisdic tion over all scheduled `offences committed within his district, whether committed before or after the coming into force of this Ordinance, other than any such offences pending for enquiry or trial before any Court, at the time that this Ordinance comes into force; and where any scheduled offence triable under the provisions of this Ordinance :s or appears to have been committed with a non‑scheduled offence, the District Magistrate shall separate the scheduled offence from the non‑scheduled offence for the purpose of trial of the scheduled offence under the provisions of this Ordinance." A perusal of this provision of law makes it perfectly clear that in respect of certain matters the power of the District Magistrate to refer them to the Tribunal for trial has been taken away. These are those cases which were pending for enquiry or trial before any Court at the time that the above‑mentioned Ordinance came into force. There is no other clause applicable to such cases. Thus in respect of those offences for which an enquiry or trial was pending before the committing Magistrate (sic). In such circum stances, the learned Sessions Judge was perfectly justified in coming to the conclusion that he had jurisdiction to try the two cases and was competent to proceed with their trial.

4. The contention of the petitioner's counsel is that sub section (4) of section 3 of the Ordinance clarified the ambiguity created by subsection (2). In order to appreciate the contention of the learned counsel it would be useful to reproduce subsection (4) of section 3 of the above mentioned Ordinance:‑ "3 (4). Where it appears to any Court enquiring into or trying any offence that such offence is a scheduled offence triable under this Ordinance, it shall stay further proceedings in respect of such offence and refer it to the District Magistrate for disposal in accordance with the provisions of subsection (3)." It will be noticed that this provision of law only applies to those cases which are triable under the said Ordinance and come up for trial' before an ordinary Court for enquiry or trial after the passing of the said Ordinance. In such cases it is the duty of the ordinary Court to refer them to the District Magistrate for disposal in accordance with the provisions of subsection (3). There is not the slightest doubt that the two cases under consideration are not triable under the aforesaid Ordinance. Such cases have been specifically taken out of the purview of section

3. The interpreta tion of subsection (4) is subject to subsection (2) of section 3 of the said Ordinance. It has no independent existence and this is the only legitimate manner in which it can be construed to give harmonious result. I, therefore, find no ground to interfere with the order passed by the learned Sessions Judge. Accordingly both the petitions are summarily dismissed. S. A. H./S. Q. Petitions dismissed.