2004 P Cr (PLP)

Rashid Ahmad v. The State PLD 1972 SC 271; Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 and Chief Kwame Asante Tredahone v. Chief Kwame 9 DLR 686 (P C) ref. Sardar Muhammad Ishaq Khan‑I for Appellants. Malik Muhammad Nawaz Khan‑I for the Complainant. Muhammad Ayub Kiani for the State. Date of hearing: 17th October, 2003. Through this appeal appellants, namely Shahid Mehmood son of Mehmood, Arif Khan son of Khadim Khan, Waris son of Akram, Javaid Khan son of Sher Ahmad Khan and Hanif Khan son of Rustam Khan impugn the convictions and sentences awarded to them by the learned Additional Sessions Judge, Rawalpindi vide judgment, dated 29‑8‑2000 in case F.I.R. No.314, dated 9th October, 1997 registered at Police Station Pir Wadhai, Rawalpindi, for offences under sections 302/324/148/149, P.P.C. Through the aforesaid judgment the appellants were convicted under section 311 P.P.C. and each of them was sentenced to 14 years' R.I. They were also convicted under section 324, P.P.C. and each of them was sentenced to ten years' R.I. with a fine of Rs.10,000 or in default of payment of the same, to further undergo one year's R.I. Each of them was also convicted under section 148, P.P.C. and sentenced to two years' R.I. Javed Khan appellant was further convicted under section 337‑F(ii), P.P.C. and sentenced to one year's R.I. All the convicts were also directed to pay a fine of Rs.20,000 each payable as compensation to both the injured persons, or in default in payment thereof each of them was to undergo S. I. for six months. All the convicts were extended the benefit of section, 382‑8, Cr.P.C. All the sentences were to run concurrently.

2. At the outset, the learned counsel for the appellants without arguing the appeal on merits contends that the learned Additional Sessions Judge had no jurisdiction to convict and sentence the appellants as a case under sections 302/324/148/149, P.P.C. was registered vide the aforementioned F.I.R. on the complaint (Exh.P.E.) of Anzar Gul (P.W.7) son of Shamroz Khan, drafted by Muhammad Taj, S.‑I. (P. W.12) for Qatl‑i‑Amd of Muhammad Hafeez and Abdul Jamil and murderous assault on Muhammad Nawaz and Shah Nazar (P.Ws.) at the hands of the appellants while armed with fire‑arm in which a compromise was effected between the legal heirs of the above mentioned deceased Muhammad Hafeez, namely Muhammad Aziz father. Mst. Rehmat Jan mother, Mst. Sabeda Bibi widow on their own behalf and on behalf of the minor children of the said deceased, namely Yasir Hafeez, Mst. Sumaira Hafeez, Mst. Samina Hafeez, Mst. Nagina Hafeez, Imran Hafeez and Sadiq Hafeez, who had raised no objection on the acquittal of the appellants, the legal heirs of deceased Abdul Jamil, namely Abdus Salam father, Mst. Tahira Bibi mother and Mst. Mehmooda widow of the said deceased, on their own behalf and on behalf of the minor son and daughters namely Abdul Wakeel, Faiza, Sidra and Shumaila have also effected compromise with the said appellants. After composition for the offence under section 302, P.P.C. the learned Additional Sessions Judge. Rawalpindi charged the appellants under sections 311/324/148/149. P.P.C. to which they did not plead guilty and claimed to be tried. The learned counsel contends that the appellants could not have been charged on the above offences because section

311. P.P.C. has no direct nexus with section 302, P.P.C. in which a compromise was effected and no objections on the acquittal of the accused persons were raised by the legal heirs of both the deceased in their statements made on 16‑9‑1998 and in the affidavits sworn by them, that sections 324 and 148, P.P.C. are triable by the Judicial Magistrate Section 30 and therefore, the learned Additional Sessions Judge had no jurisdiction to charge the appellants and therefore, the convictions and sentences of the appellants recorded .vide judgment, dated 29‑8‑2000 were without jurisdiction.

3. The learned counsel for the State assisted by the learned counsel for the complainant contended that the objection should have been taken at the earlier stage before the trial Court at the time of framing of the charge and as such no such objection was raised and it should not be allowed to be taken before this Court.

4. Confronted with the position, the learned counsel for the appellants contends that if a mandatory condition for the exercise of a jurisdiction before a Court, Tribunal or authority is not fulfilled then the entire, proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. He adds that the question relating purely to the jurisdiction of the Court may be raised at any stage of the proceedings. Reliance is placed on the case reported as Mansab Ali v. Amir and 3 others PLD 1971 SC 124 and Rashid Ahmad v. The State PLD 1972 SC 271.

5. I have heard the learned counsel for the parties and perused the record with their assistance. The admitted position on the record is that before commencing the trial of the case legal heirs of the deceased Muhammad Hafeez and Abdul Jamil entered into compromise with the appellants and the offence under section 302, P.P.C. was compounded and there was no objection on the acquittal of the appellants‑accuse persons raised by the legal heirs in their statements recorded on 16‑9‑1998. Thereafter the learned Additional Sessions Judge charged the appellants on 7‑1‑1999 under sections 311/324/148/149, P.P.C. arid thereafter sentenced them as aforesaid. Since section 311, P.P.C. has direct nexus with section 302, P.P.C., therefore, charge could have not been framed after the acquittal of the appellants in the main murder case under section 311, P.P.C. The offences under section 324/148, P.P.C. were triable by a Judicial Magistrate. Section 30, Cr.P.C. which section reads as under:‑‑ "

30. Offence not punishable with death.‑‑‑Notwithstanding anything contained in sections 28 and 29, the Provincial Government may invest Magistrate of the first class with power to try as a Magistrate all offences not punishable with death."

6. Admittedly the offences under sections 324 and 148, P.P.C. are triable by the Magistrate. In this view of the matter, the charge under the above stated sections of the P.P.C. could have not been framed by the learned Additional Sessions Judge on 7‑1‑1999 having no jurisdiction in the matter.

7. As for the question of raising objection and framing of the charge, it is well‑settled rule of law that the legal questions relating to jurisdiction could be raised at any stage of the proceedings. It has been held by the Honourable Supreme Court in the case reported as Rashid Ahmed v. The State PLD 1972 SC 271 that if a mandatory condition for the exercise of a jurisdiction before a Court, Tribunal or authority is not fulfilled then the entire proceedings which follow become illegal and suffer from want of jurisdiction. In the afore‑referred case of Rashid Ahmad while relying on the case reported as Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 the Honourable Supreme Court held that the question relating to jurisdiction could be raised at any stage of the proceedings. In this connection following observation is expressed:‑‑ "Where the Court is not properly constituted at all, the proceedings must be held to be coram non judice and, therefore, non‑existent in the eye of law. There can also be no doubt that in such circumstances it could never be too late to admit and give effect to the plea that the order was a nullity, as was observed by the Privy Council in the case of Chief Kwame Asante Tredahone v. Chief Kwame 9 DLR 686 (P.C.)."

8. After careful consideration of the whole matter I am of the considered view that the learned Additional Sessions Judge had no jurisdiction to frame the charge against the appellants under sections 311/324/148, P.P.C. The jurisdiction to try the case under sections 324/148, P.P.C. was available to the Judicial Magistrate Section

30. Consequently, this appeal is allowed, the convictions and sentences of the appellants awarded by the learned Additional Sessions Judge dated 29‑8‑2000, are set aside and the case is remanded to the learned Sessions Judge, Rawalpindi for its entrustment to a Judicial Magistrate Section 30 having jurisdiction in the matter. N.H.Q./S‑797/L Case remanded.