P L D 1969 Supreme Court 333 (PLP)

Aslam Riaz Hussain, Assistant Advocate‑General West Pakistan (Saeedur Rahman Khan and Saeedul Hassan, Advocates Supreme Court with him) instructed by Ijaz Ali, Attorney for Appellants (in C. A. No. 12 of 1968). Muhammad Anwar Buttar Chaudhry, Advocate Supreme Court instructed by S. Ali Imam Naqvi, Attorney for Respondents (in C. A. No. 12 of 1968). Aslam Riaz Hussain, Assistant Advocate‑General West Pakistan (Saeedur Rahman and Saeedul Hassan Advocates Supreme Court with him) instructed by Ijaz Ali, Attorney for Appellants (in C. A. No. 16 of 1968). Respondent: Ex‑parse (vide order dated 25th May 1968). Date of hearing: 17th February 1969. MUHAMMAD YAQUB ALI, J.--‑This disposes of Civil Appeals Nos. 12 and 16 of 1968 involving a common question of law for consideration of the Court. A Full Bench of five Judges of the High Court of West Pakistan has held that before the Commissioner decides under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, hereinafter referred to as the Act, that it is inexpedient in the interest of justice that the question of guilt or innocence of a person accused of an offence specified in the Schedule ‑be tried by a Court mentioned in section 6 of the Code of Criminal Procedure and refers the question to the decision of the Tribunal constituted under section 4, the parties have under section 23 of the Act a right to be heard. Feeling dissatisfied with the decision of the High Court the Provincial Government has with the leave of the Court preferred these appeals. Section 3 of the Act under which reference to Tribunal is made provides as under: "3 (1) Where, in the opinion of the Commissioner it is inexpedient in the interest of justice, that the question of the guilt or innocence of any person accused of a scheduled offence or of any several persons so accused, be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, 1898, the Commissioner may, not withstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law for the time being in force, by an order in writing, with reasons therefore refer the question to the decision of a Tribunal, and requires the Tribunal to come to a finding on the question after such enquiry as may be necessary and after hearing the accused." Under section 18 of the Act an appeal is provided for from the order of reference to the Provincial Government. Section 25 lays down that in proceedings under this Act before the Tribunal the District Magistrate, the Commissioner and the Government the parties shall be entitled to be represented by a legal practitioner of their choice. A fortiori if the action in which the Commissioner decides to refer the question of guilt or innocence of an accused person to the decision of a Tribunal is a 'proceeding' within section 25 then the parties have a right of hearing before an order under section 3 (1) is made. As 'proceeding' is neither defined in the Act nor in the Pakistan Penal Code and the Code of Criminal Procedure the learned Judges in the High Court referred to the following decided cases for this purpose: Bhati Kirpal Singh v. Risaldar Ajaipal Singh and others (A I R 1928 Lah. 627), Emperor v. Fazalur Rahman and others (A I R 1937 Pesh. 52), Prover v. City Office Co. ((1883) 10 Q B D 504) and Houlsten v. Woodall ((1884) 78 L T J 113). Reference was also made to an American Publication (the name is not mentioned) on "Words and Phrases" in which 'proceeding' is defined as a comprehensive term which means a prescribed course of action for enforcing a legal right and necessarily embraces the requisite steps by which judicial action is invoked. In Bhati Kirpal Singh v. Risaldar Ajalpal Singh and others a Full Bench of the High Court of Judicature at Lahore observed that the words 'suit', 'proceeding' and other words of similar connotation have different meanings in different statutes and it is not possible to lay down a general rule of interpretation which may be applicable to all cases. In each particular case the question is to be decided with reference to the context and that meaning is to prevail which will best fit in with it. In Emperor v. Fazalur Rahman the term 'proceeding' was defined as including the whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case until its disposal. In Prover v. City Office Company the phrase: "in any proceeding" was construed as a general phrase meant to cover any step in an action and is equivalent to the word `action'. In Houlston v. Woodall `proceeding' was held to be step towards and not after judgment. In Stroud's Legal Dictionary (Vol. III, p. 1561) `proceeding' is defined as may mean according to the context either any action or any proceeding in the action. In Manzur Ahmad v. The Commissioner Lahore Division and others (P L D 1964 Lah. 194), Haider Shah and others v, The Province of West Pakistan (P L D 1964 Kar. 251), Dilawar and others v. The Commissioner, Peshawar Division (P L D 1965 Pesh. 61) and Rehmatullah Khan v. The State and others (P L D 1965 Pesh. 162) the High Court had taken a contrary view. The reasons on which the decision in these cases rested were examined by the Full Bench and in view of the provisions of section 25 of the Act which were except in the last mentioned case not noticed by the learned Judges considered to be untenable. In Rehmatullah Khan v. The State and others the learned Judges in view of the sequence of the authorities mentioned in section 25 viz. the Tribunal, the District Magistrate, the Commissioner and the Government concluded that the right of hearing under section 25 of the Act accrued after the reference to the Tribunal was made. This reasoning did not appeal to the Full Bench as the question which fell for decision was not "whether an order of reference to the Tribunal can be considered as a proceeding before the Tribunal within the meaning of section 25 of the Act", but "whether the reference made by the Commissioner can be described as a proceeding under the Act before the Commissioner and not the Tribunal." Noticing the remaining reasons given in Rehmatullah's case the Full Bench observed as follows: "In the opinion of the learned Full Bench section 25 is clear on the point that in "all" proceedings before the Government the accused is entitled to be represented by a legal practitioner of his choice. On the same interpretation of section 25 of the Act, one may as well ask, then why not so in "all" proceedings before the Commissioner? Further, according to the Full Bench a provision exists in the Act for the representation of the accused by a legal practitioner before the Government on revision at a "mere appropriate stage", when the reasons given by the Commissioner for the reference are available. But it hardly needs any argument to show that a hearing in revision is not the same thing as the right of hearing at the initial stage on the original side. As regards the third reason which impressed the Full Bench, we feel that nothing depends on the more sequence in which the various functionaries are arranged in the section, and no adverse inference can be drawn from it. The argument does not take notice of the proceedings, say for instance, taken for keeping the peace against any person started by the District Magistrate. Under sections 13, 14 and 15 of the Act he is bound to hold the enquiry in the presence of the. person concerned and to provide an adequate opportunity to him to show cause against the action proposed to be taken against him. Similarly on revision by an aggrieved party against the order of reference made by the Commissioner under subsection (2) of section 18 of the Act. The Government may be called upon to intervene even before the reference has actually reached the Tribunal. Therefore, no special significance can be attached to the sequence in which the names of all the functionaries are put together in section 25 of the Act." Mr. Aslam Riaz Hussain, Assistant Advocate‑General, who appeared for the Province mainly repeated the reasons advanced in the aforementioned decisions of the High Court which as seen above were overruled by the Full Bench. It was contended that whenever a right of hearing was contended to be conferred by the Act a specific provision was made to that effect. For example in the concluding part of section 3 (1) it is laid down "and require the Tribunal to come to a finding on the question after such inquiry as may be necessary and after hearing the accused." Similarly section 8 (5) provides: "The Tribunal shall give the accused an opportunity of cross‑examining the witnesses deposing against him". Similar provisions exists in sections 15, 18, 19 and 20 of the Act. If the argument of the learned Assistant Advocate‑General was accepted then the provisions of section 25 that in proceedings under the Act before the Tribunal, the District Magistrate, the Commissioner and Government the parties shall be entitled to be represented by a legal practitioner of their choice will be curtailed also and apply only to the proceedings dealt with in the aforementioned sections of the Act. Such an interpretation will be clearly contrary to the plain meanings of the words: "The proceedings under this Act". Even in Rehmatullah's case the earlier Full Bench of the High Court had to concede that `proceeding' in section 25 meant "all the proceedings" before the authorities mentioned therein. Besides the weighty reasons, on which the Full Bench decision in the present case is based we consider that the answer to the question raised before the High Court lay more squarely in finding the nature of the functions performed by the Commissioner under section (3) (1) of the Act in referring the question of guilt or innocence of any person accused of a scheduled offence to the decision of a Tribunal. Under sub‑sections (4) and (4‑a) of section 8 the provisions of the Evidence 44Act except sections 121 to 126 and the provisions of the Code of Criminal Procedure do not apply to the proceedings before the Tribunal. The two statutes contain a number of safeguards' for safe administration of criminal justice, such as, section 24J of the Evidence Act relating to confession by a person while In police custody or procured by any inducement, threat of promise and section 162 of the Code of Criminal Procedure under which statements made to police are not to be need for any purpose other than by the accused to contradict the witness when he appears at any inquiry or trial against him. In, continuation section 163 provides that no police officer or other person in authority shall offer or make or cause to be offered or make any such inducement, threat or promise as is mentioned in section 29 of the Evidence Act. Depriving an accused person of the safeguards provided in the Code of Criminal Procedure and the Evidence Act is a serious consequence which stems from the order of reference to the Tribunal under section 3 of the Act. Would it, therefore, stand to reason that the person accused of a scheduled offence should be denied the right of hearing before the Commissioner refers the question of his guilt or innocence to the Tribunal `' The right is clearly recognised by section 18 which provides for an appeal to the Government from an order of reference under section 3 of the Act. An effective exercise of this right alone necessitates that the accused person should be heard before the Commissioner forms his opinion and give the reasons in support of the order of reference. On the above premises the view adopted by the Full Bench of the High Court that a person accused of a scheduled offence has a right to be represented before the Commissioner while he is determining to refer the question of his guilt or innocence to a Tribunal, is plainly correct. In the result both the appeals fail and we hereby dismiss them. K. B. A. Appeals dismissed.