P L D 1954 Lahore 24 (PLP)

S. A. RAHMAN, J.‑Krishan Gopal Bali was sentenced to dour years' rigorous imprisonment under section 3 of the Official Secrets Act 1923 (hereinafter referred to as the Act). He has sought to challenge his conviction and sentence by an appeal to this Court. No copy of the judgment by which the conviction and sentence were recorded against him has been filed with the memorandum of appeal as it is stated that a copy of that order has been refused by the trial Judge. It was prayed that the record of the case may be called for and the appellant's counsel granted a copy of the order impugned so that the appeal could be argued on the merits, A notice was issued to the Crown on this petition of appeal. The conten tion has been raised on behalf of the Crown that no appeal lies. It appears necessary to make a cursory survey of the provisions of the Act. Section 12 of the Act declares that notwithstanding any thing in the Code of Criminal Procedure 1898, an offence punishable under section 3 or under section 3 read with section 9 of the Act, with imprisonment for a term which may extend to fourteen years, shall be cognizable and note‑bailable offence and every other offence under this Act shall be cognizable and bailable offence. The section, also enacts that any member of the armed forces of Pakistan may, without an order from a Magistrate and without a warrant, arrest, in or in the vicinity of a prohibited place, any person who is concerned in an offence mentioned in clause (a) of section 12 or an offence under clause (a) of subsection (1) of section 6, or against whom a reasonable complaint has been made or credible information received or a reasonable suspicion exists of his having been so concerned, and. shall without unneces sary delay take or send the person arrested before a Magis trate having jurisdiction in the case or be‑fore an officer in charge of a police station, and thereupon the provisions of the said Code applicable in respect of a person who, having been arrested without warrant, has been taken or sent before a Magistrate shall apply to him. Section 13 of the Act lays down some other restrictions on the trial of offences under this Act. It prescribes that no Court other than that of a Magis trate of the first class specially empowered in this behalf by the appropriate Government, which is inferior to that of a District Magistrate, shall try any offence under the Act. If, however, a person under trial before a Magistrate under the Act, at any time before a charge is framed, claims to be tried by the Court of Session, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that Court, notwithstanding that it is not a case exclusively triable by that Court. The section also makes it necessary that there should be a complaint made by order of or under authority from the appropriate Govern ment or some officer empowred by the appropriate Govern ment in this behalf. There is a proviso to this part of the section which is not material for the purpose of this case Then follows a provision with regard to the venue of the trial. There is no specific provision with regard to an appeal under this Act, but it is conceded that if the trial had been under the Act, an appeal would have been competent to the ap propriate Court as the relevant provisions of the Criminal Procedure Code would be attracted to the case By an amend ment of the Act, subsection (6) was added to section 13 of the Act and it is in the following terms :‑ "The Central Government may, if it thinks fit, by general or special order, direct that the procedure for the trial of an offence mentioned in clause (a) of section 12 or an offence under clause (a) of subsection (1) of section 6 shall be that prescribed for offences under the Enemy Agents Ordinance, 1943 or under the Pakistan Criminal Law Amendment Act; 1948." It is common ground between the parties that the Central Government did pass an order in the present case to the effect that the procedure for the trial of the appellant should be that prescribed for offences under the Enemy Agents Ordinance, 1943 (hereinafter referred to as the Ordinance). The appellant was therefore, tried by a Special judge ap pointed under the provisions of the Ordinance. Section 14 of the Ordinance bars an appeal from an order or sentence made or passed by a Special judge under the Ordinance. Section 9, however, provides for a review of the conviction by a judge of the High Court nominated for that purpose by the Central Government, if the person convicted has been sentenced to death or to transportation for life or, though not so sentenced the Special judge certifies that in his opinion the case has involved questions of special difficulty whether of law or fact or is one which for any other reason ought properly to be reviewed. The position of the Crown is that the procedure prescribed by the Ordinance having been applied to the trial of the appellant, he is precluded from appealing against his conviction and his remedy is confined to a review within the limitations imposed by section 9 of the Ordinance. Mr. Rahim Bakhsh on behalf of the appellant‑petitioner has emphasised the words " the trial of an offence " occurring in subsection (6) of section 13 of the Act. He contends that though the provisions with regard to trial contained in the Ordinance were properly applied, the trial ended with the conviction of the appellant and the provisions which shut out an appeal and give a restricted right of review to the appellant under the Ordinance, are not applicable to this case. It would be necessary before proceeding further to take notice of the procedural sections of the Ordinance. Section 4 of the Ordinance enacts that any offence punishable under section 3 committed at any time after the 2nd day of September 1939, whether committed before or after the commencement of this Ordinance, shall be triable under its provisions. The second part of this section lays down that a person may be charged and tried at the same trial for an offence under section 3 of the Ordinance and for any other offence with which he might, under the Code of Criminal Procedure, 1898, be charged at one trial, and the procedure of the Ordinance would apply also to the trial of any such other offence. Section 5 provides that for the trial of offences punishable under section 3, the Central Government may appoint as Special judges, having jurisdiction throughout the Provinces and Capital of the Federation, any person who had acted for a period of not less than two years in the exercise of powers of a Sessions judge or an Assistant Sessions judge under the Code of Criminal Procedure, 1898. Under this section, a Special judge is empowered to try any offence punishable under section 3, which the Central Government by general or special order in writing, directs to be tried by him and he may hold his sittings for the trial in any place fixed by the Central Government. Section 6 deals with the powers of the Central Government to transfer a case at any stage of the proceedings, pending before one Special judge to another Special Judge. Notwithstanding anything contained in the Code of Criminal Procedure, it is further provided, when a case is thus transferred, the transferee judge shall not be bound to resummon or rehear the witnesses or any of them unless lie is satisfied that such a course is necessary in the interests of justice. Section 7 enacts that a Special judge may take cognizance of an offence without the accused being committed to his Court for trial and in trying accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates There is a porviso which is not material for our purpose. Subsection (2) of this section is in the following terms :‑ "In matters not coming within the scope of subsection (1) the provisions of the Code of Criminal Procedure, 1898, so far as they are not inconsistent with this Ordinance, shall apply to the proceedings of a Special judge; and for the purposes of the said provisions the Court of the Special Judge shall be deemed to be a Court of Session." Section 8 declares that a Special judge may pass any sentence authorised by law. Section 9 is the review section providing for review of the conviction in certain contingencies as mentioned above. A reviewing judge has the power to direct a retrial of the accused or to direct further evidence to be taken by the Special judge who tried the accused or by an other Special judge or by a Special judge appointed for the purpose by the Central Government. A person appointed for the purposes of review under subsection (2) of this section may call for and examine the record of any proceedings by the Special judge for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of the proceedings of any Special Judge. Section 10 is to the effect that a Special judge or a reviewing judge, on being satisfied that it is expedient in the interest of the public safety or the defence of the country so to do, may give a direction that throughout or during any part of the proceedings such persons or classes of persons as the judge may determine shall be excluded. Section 11 places certain limitations on the appearance of pleaders for the accused in the case whether before a Special judge or a reviewing judge. Section 12 varies the provisions of the Evidence Act in respect of statements made by a person if such is dead or cannot be found or is incapable of giving evidence. Section 13 authorises the Special judge to dispense with the attendance of an accused and to proceed with the trial in certain contingencies. Section 14 makes an order passed by a Special judge or a reviewing judge immune from interference by other Courts save as provided in the Ordinance. Section 14 (a) provides that no person other than the accused or his pleader shall be entitled to be furnished with a copy or any part of the copy thereof or of any document relating to any proceedings under the Ordinance. Any such copy furnished to the accused or his pleader is required by that section to be kept by the person to whom it was furnished in his personal custody and it has been declared an offence punishable under section 16, for that person to show it to any person other than his pleader or his client as the case may be or to divulge its contents except in the course of proceedings for the purpose for which it was obtained. It is further laid down that any such copy shall be returned to the authority from which it was obtained, within ten days of the conclusion of the pro ceedings for the purpose of which it was furnished and any failure so to do, shall be punishable with the same punish ment as has been provided for an offence under section 16. Section 15 applies the provisions of the Code of Criminal Procedure, 1898, and of any other law for time being in force," in so far as they may be practicable and in so far as they may not be inconsistent with the provisions of the Ordinance" to all matters connected with, arising from, or consequent upon, a trial under the Ordinance. Section 16 declares it as an offence punishable with imprisonment for two years or with fine or with both, the disclosing or publish ing of any information with respect to any proceedings or with respect to any person proceeded against under the Ordinance without previous authorisation of the Central Government. There is no provision corresponding to section 14 (a) of the Ordinance in the Act. This provision, it seems, was made so that information of confidential or secrect character should not be broadcast to the public in view of its possible political repercussions. By virtue of the order passed under sub section (6) of section 13 of the Act, inter alia, section 14 (a) of the Ordinance was made fully applicable to the trial of the present appellant. Mr. Rahim Bakhsh has strenuously argued before me that a trial ends with conviction or acquittal and the proceed ings in an appellate Court, though a continuation of the trial, do not strictly form part of it and, consequently, despite the order passed under subsection (6) of section 13 of the Act, the provisions of the Ordinance relating to the exclusion of an appeal, would not be applicable. The question that falls for determination is whether the word " trial " used in sub section (6) of section 13 of the Act includes an appeal or not. The word " trial " has nowhere been defined either in the Act or in the Ordinance, nor is there a definition of this word forthcoming in the Criminal Procedure Code. In support of his argument that a trial ends with a conviction or acquittal, Mr. Rahim Bakhsh has relied on Basil Ranger Lawrence v. Emperor (A I R 1933 P C 218) and Hema Singh v. Emperor (A I R 1929 Pat. 644 (D B)). In the former case, which came up from Nigeria to the Privy Council, it was observed that the trial means the whole of the proceedings including the sentence. In the second case it was remarked by the learned judges disposing of the case that a trial ends in a conviction or acquittal. In none of these cases, however, was the question which requires consideration in the present case touched upon. In the Privy Council case, their Lordships expressed themselves as follows :‑ " It is an essential principle of our criminal law that the trial of an indictable offence has to be conducted in the presence of the accused ; and for this purpose trial means the whole of the proceedings including sentence ." In the Patna case the learned Judges seem to have been more concerned with the distinction between an inquiry and a trial. The same remarks apply to Charan Mahto v. Emperor (A I R 1930 Pat. 274 (D B)) which was cited by Mr. Rahim Bakhsh. In my opinion, these authorities are not helpful in resolving the issue before us. It appears to me that the meaning of the word " trial " depends on the context in which it appears. It may on some occasions be confined to the proceedings before the original B Court that sentences or convicts the accused and on others it may well embrace the proceedings before an appellate Court. Illustrations of the second interpretation are available in some of the reported authorities. That the proceedings in appeal are a continuation of the trial is a proposition that admits of no doubt and is even conceded by Mr. Rahim Bakhsh. Reference in this connection may also be made to Queen Empress v. Subbayya (I L R 1889 12 Mad. 451 (D B).), Queen‑Empress v. Jabanulla (I L R 1896 23 Cal. 975 (D B).), Re. K. Bali Reddi (I L R 1914 37 Mad. 119 (D B).), Dulla v. Crown (I L R 1926 7 Lah. 148.) and Muhammadi Gul Rohilla v. Emperor (A I R 1932 Nag. 121 (F B) at page 123.). Other reported cases have however gone further. For instance, awhile construing the expression "shall tryany person for any offence" occurring in section 487 of the Criminal Procedure Code, a Division Bench of the Calcutta High Court in the case reported as In the matter of Madhub Chundar Mozumdar (I L R (1889) 16 Cal. 121.), held: that this included the hearing of an appeal. The facts of that case were that a com plainant applied to a Munsif for sanction to prosecute a decree -holder for an offence under section 210 of the Penal Code and, upon the Munsif's refusing such application, preferred an appeal to the District judge who granted the sanction asked for. The decree‑holder, having been prosecuted and convicted before a Deputy Magistrate, preferred an appeal, which came up for hearing before, and was disposed of by, the same District judge who had granted the sanction. It was held that the District judge had no jurisdiction to entertain an appeal against the judgment and sentence passed by the Deputy Magistrate, in the face of section 487 of the Code of Criminal Procedure, which forbids a judge of a Criminal Court or Magistrate other than a judge of a High Court, from trying any person of an offence referred to in section 195 of the Criminal Procedure Code, when such offence is committed before himself or in contempt to his authority, or is brought to his notice as such Judge or Magistrate, in the course of a judicial proceeding. It was found that the hearing of an appeal from the order of the Munsif refusing sanction was a judicial proceeding within the meaning of the Code and disqualified the District Judge from hearing the appeal which was included in the trial. Again in Bansi Lal v. Emperor (7 Cr. L J 224.), a Division Bench of the Calcutta High Court remarked at page 226 that an appeal is a part of a trial of an offence. In that case the question was whether a Subordinate Magistrate who had taken cognizance of a case under section 190 (1) (c), Criminal Procedure Code, but had passed on the case for trial to another Magistrate, could after becoming the District Magistrate, hear an appeal from a conviction in that case, without following the procedure laid down by section 191, Criminal Procedure Code. The question was answered in the negative and the ratio decidendi was that the appeal was part of the trial for an offence. In Abdul Khan v. Emperor (37 Cr. L J 707 (D B).), the accused was tried on charges of murder and conspiracy to murder under section 302 and section 302 read with section 120‑B of the Penal Code. He was acquitted of the charge under section 302 but was convicted on the second charge under sections 302 and 1‑0‑B of the Penal Code. On appeal to the Calcutta High Court, the verdict of the Jury and along with it, the conviction and sentence of the appellant, were set aside and the appellant was directed to be retried according to law. The question arose whether this order referred to the conviction of the accused alone or embraced the offence of which he was acquitted also. It was held by Jack, J that an order of retrial applied to all the charges framed by the original Court and that where the accused had beet acquitted on one of the charges, that acquittal was no bar to his being tried again, notwithstanding the provisions of section 403, Criminal Procedure Code. The learned Judge referred to this proposition as a settled law. He pointed out that to hold otherwise, in some cases would lead to anomalous results. Moreover, he added, it might be said that section 403 had no application as the retrial of the accused on remand, owing to misdirection, is part of the same trial "which is not concluded till the appeal is heard and determined." The other member of the Bench which decided the case, Lort Williams J., did not apparently agree this view and the case was decided on other grounds. A consideration of these authorities, however, fortifies my conclusion that the word "trial" is an equivocal one and may, in certain contexts, include an appeal. We have then to determine what precise meaning should be attached to the word "for trial of an offence" occurring in subsection (6) of section 13 of the Official Secrets Act. Mr. Rahim Bakhsh has drawn my attention to Narendranath Biswas v. Governor‑General in Council (A I R 1948 Nag. 106.) in which a learned Single judge has laid down as a fundamental rule of interpreta tion that a statute is to be expounded according to the intent of those who made it and that this intent is to be discovered, as far as possible, from the literal meaning of the language used by the Legislature and where such language is plain and un ambiguous, effect must be given to it, apart from any notions of justice and expediency. It is not within the Province of a Court, observed the learned Judge, to scan the wisdom and policy of the Legislature, for it is not the duty of the Court to make the law reasonable but to expound was it stands, accord ing to the real sense of the words. The learned judge added, however, that on the other hand it was equally well‑established that in determining either the general object of the Legislature or the meaning of its language in any particular part, the meaning which appears to be most in accord with convenience, reason, justice and legal principles should in all cases of doubt ful significance be accepted. No exception can be taken to the principle of construction of statutes thus laid down. As I have pointed out above, however, it cannot be said in the present case that the words that have to be construed are un ambiguous or unequivocal. The remarks on which Mr. Rahim Bakhsh, therefore, relies do not afford him much assistance. He has also contended that a, construction which takes away the right of appeal from an individual should not be lightly adopted and the Court should lean towards an interpretation which is more conducive to the liberty of the subject and his fundamental rights. It has to be remembered, however, that an appeal is always a creature of a statute. If it can be conferred by a statute it can also be taken away by a similar process. The question really is whether by applying the pro cedure prescribed in the Ordinance the right of appeal which would have normally accrued to the appellant under the Act, has been taken away or not. Mr. Rahim Bakhsh has invited my attention to the provi sions of section 14 of the Act which is in the following terms: "In addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act or the proceedings on appeal, or in the course of the trial of a person under this Act, application is made by the prosecu tion, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall in any case take place in public." He has pointed out that the "proceedings on appeal" appear to be distinguishable from "the course of the trial of a person" under this section. In, my opinion, the occurrence of the two expressions "proceedings on appeal" and "the course of the trial" in section 14 is4 be really conclusive of the matter. They may have been inserted ex abundenti cantela. If the interpreta tion as contended for by Mr. Rahim Bakhsh is adopted, it would be clear that section 14 (a) of the Ordinance which places very stringent restrictions on the use of copies of the record of proceedings, both before the original Court and the Court of review under that Ordinance, would be held to be applicable to the trial, as envisaged by the learned counsel, but not to the proceedings at the appellate stage. The appeal would according to him be competent under the Act read with the relevant provisions of the Criminal Procedure Code and in that case, section 14 (a) of the Ordinance would cease to apply. I feel that this could not have been the result con templated by the Legislature. It is unthinkable that till the case ends in a conviction the provisions of section 14 (a) should be applicable in their full rigour, but as soon as that stage had passed, the convict or his counsel would be under no obligation to keep any copies of the record a closely guarded secret. They could then with impunity reveal the contents of any such documents to all and sundry. Presumably, this section has been enacted to prevent disclosure of information of a certain character. That information does not lose its original character with the passing of a sentence by the trial Judge. I am convinced that an interpretation, which involves such an anomaly, would be unreasonable in the circumstances of this case. Therefore, in my opinion, it was intended that section 14 of the Ordinance should also come into play and preclude an appeal as distinguished from a review such as is provided for in the Ordinance. Mr. Rahim Bakhsh also relies on subsection (2) of section 7 of; the Ordinance and argues that under this subsection the provisions, of the Code .of Criminal Procedure are attracted to the case and the Court of the Special Judge is to be deemed to be a Court of ‑Session so that an appeal could lie to this Court. But he omits to take into consideration the words "so far as they are not in consistent with this Ordinance" occurring in this subsection. If the whole procedure of the Ordinance applies so as to shut out an appeal; as I have indicated above, then obviously this saving expression, takes away the right of appeal. Therefore, I am disposed to hold that by virtue of the order passed under subsection (6) of section 13 of the Act, by which the procedure prescribed in the Ordinance became applicable to the case the right of appeal has been lost to the appellant. I am fortified in this conclusion by the fact that it was open to the Central Government to apply the procedure laid down in the Ordinance or that laid down in the Pakistan Criminal Law Amendment Act, 1948 which provides for an appeal. That the former and not the latter was invoked, is an indication of the real position. I, therefore, find that an appeal is not competent and in these proceedings, consequently, the petitioner‑appellant cannot be allowed inspection of the record or be supplied with a copy of the judgment. I reject the memorandum of appeal. A. H. Memorandum of appeal rejected.