P L D 1954 Lahore 687 (PLP)

MUHAMMAD MUNIR, C. J.‑This order will govern Criminal Appeals, Nos. 357, 363, 367 and 381 of 1954 which arise out of a conviction under section 364 read with section 120‑B of the P. P. C. and Criminal Appeals, No;. 391, 432 and 433 of 1954 which are directed against a conviction under section 411 of the same Code. The judgment in both cases is that of Mr. G. M. Mansoor, Additional District Magistrate, Gujranwala, who, while he was trying these cases as Additional District Magistrate, Jhang, was transferred to Gujranwala but was invested by a special order of the Provincial Government to carry on the trial. Both cases arose out of the same transaction and were originally com menced together. After the charges were framed, however, the cases were separated and subsequent evidence in them was recorded in two separate files. The persons who figure as accused in these cases are Ghulam Abbas, his three sons Ghulam Murtaza, Imdad Husain and Abid Husain, his sister's son Ghulam Shabbir, and three friends of their family, named Allah Yar Lali, Manak and Muhammad Khan. Two more persons require mention in this respect, namely, Bahadri, a servant of the family of Ghulam Abbas, and Allah Yar Pawli, alleged to be a hired assassin. The facts, which may be mentioned briefly and only for the purpose of determining the question of jurisdiction that has been raised in these appeals, disclose an ingenious conspiracy between Nazir Machhi and some of the accused to steal a sum of Rs. 2,69,000 in Government currency notes and the subsequent abduction and murder of Nazir himself by all or some of the accused. Mian Muhammad Shafi, brother of Mian Muhammad Amin M. L. A., carries on extensive business in Sargodha. On 30th January 1950, Muhammad Shafi sent his clerk Iqbal Sadiq and another servant Inam Ilahi with six railway receipts for presentation at the National Bank of India Limited to obtain an advance of Rs. 2,69,

000. Both these persons came to Lahore by a car which was driven by Nazir, a chauffeur of Muhammad Shafi. Iqbal Sadiq came to Mian Muhammad Amin and taking him with himself to the National Bank received against the railway receipts a sum of Rs. 2,69,000 in Government currency notes of one hundred rupee each of `F' series having the following serial numbers : (1) One bundle of notes numbered from F289001 to 290000; (2) a bundle of notes numbered from F291001 to F292000 : and (3) another bundle of notes numbered from F293000 onwards of the value of Rs. 60,

000. These notes together with some others were put in a suit‑case by Iqbal Sadiq and both he and Inam Ilahi after taking their seats in the car by which they had come drove to Sargodha. Nazir was driving the car and Iqbal Sadiq and Inam Ilahi were sitting on the back seat. The car stopped suddenly while it was still at a distance of a mile and a half from Chiniot, Nazir came out of the car, lifted the bonnet and began anxiously to examine the engine. After a few moments' examination he declared that there was something wrong with the engine and asked his companions to come out and push the car in order to start it. Iqbal Sadiq and Inam Ilahi came down, leaving the suit‑case containing the money in the car, and began to push the, vehicle. Just then the car started and Nazir drove it straight t towards Chiniot, not minding the shouts of Iqbal Sadiq and Inam Ilahi to stop. According to the prosecution, Nazir came straight to the town of Chiniot and stopped the car at a place on the road near the house of Ghulam Abbas appellant. He took out the suit‑case and was seen going towards Ghulam Abbas's house. The matter was reported the same day by Muhammad Shafi at Police Station Chiniot, and, though Ghulam Murtaza appellant and some others were arrested, the case remained untraced and neither Nazir nor the money was found. On 22nd October 1951, Ghulam Murtaza and Imdad Hussain appellants were found cashing hundred‑rupee notes in a bazar in Lyallpur on the pretext of making petty purchases. On receipt of the information the Lyallpur police arrested them both and registered a case against them on 27th October 1951. A sum of Rs, 2,265‑9‑0. mostly in the form of notes of the series of stolen notes, was recovered from Ghulam Murtaza. On investigation it was discovered that the accused, whose names have been mentioned in the opening part of the judgment, were concerned in the abduction and murder of Nazir to rob him of the stolen money. An incomplete challan was put in the Court of Mr. M. G. Cheema, Additional District Magistrate, Jhang, who started recording evidence on 26th March 1952. On 4th July 1952, the police submitted a final report to that learned Magistrate stating the result of their investigation to be that Nazir was murdered as the result of a conspiracy among the eight persons mentioned above and Bahadri and Allah Yar Pawli in order to rob him of the notes which he had stolen. During the investigation, Bahadri and Yara Pawli were tendered pardon by the District Magistrate under section 337 of the Code of Criminal Procedure on 29th November 1951, on the condition of their making a full and true disclosure of the facts relating to the abduction and murder of Nazir. The pardon was accepted and both these persons made their statements on the same day before Mr. Leghari, Magistrate 1st Class. Yarn Pawli in his statement admitted that Yara Lali and Manak had come to him and stated that Nazir who had stolen the Khoja's money had been brought to them by Ghulam Murtaza with a view to his being murdered, that these two persons requested him to join in the perpetra tion of the crime, that on his agreeing to do so they all three went to Dera Vinoka of Shera from where they took Nazir towards the river. Nazir sat with Manak on a horse and Yarn Pawli and Allah Yar Lali rode another horse. When they neared a creek Yara Lali struck Nazir with a hatchet and killed him. The dead body was cut to Pieces. made into a bundle and thrown into a canal. Yara Pawli said that for this he was paid a sum of Rs. 500 by Manak and Allah Yar Lali out of which he hid already produced a sum of Rs. 300 to the Police. Bahadri, the servant of Ghulam Abbas, made a long statement in which he described how Ghulam Murtaza Shah took him, Manak and Allah Yara Lali into a conspiracy to murder Nazir, how Muhammad Khan was also taken into the conspiracy, how he and the other conspirators went to Dera Vinoka of Shera, how he returned from that Dera to Lalian leaving behind Manak and Nazir, how after a few days he came to know from Manak that Nazir had been murdered with the assistance of Yara Lali and Yara Pawli, and how a few days afterwards Yara Pawli himself admitted before him that Nazir had been murdered and his body after having been cut into pieces was thrown in a canal by Manak, Yara Lali and Yara Pawli himself. Bahadri also said in that statement that Manak had received a sum of Rs. 4,600 from Ghulam Murtaza for the murder out of which Manak had given to Bahadri himself a sum of Rs. 2,300 which he had spent, with the exception of four currency notes of Rs. 100 each which he had already produced before the police. During the magisterial inquiry. Bahadri and Yara Pawli were examined by the prosecution on 26th April 1952, but they both went back upon their statements which had been recorded on 29th November 1951, and professed complete ignorance of the facts which they had mentioned in their earlier statements. Mr. Cheema had recorded the evidence of 65 witnesses for the prosecution when he was transferred from the district. He was succeeded by Mr. G. M. Mansoor, who resumed proceedings in the case on 26th January 1953. On that day the accused stated their intention of not claiming a de novo trial and the Public Prosecutor made the following statement :‑ "The two approvers have denied all knowledge of the occurrence and have resiled from their statements recorded under section 337 Cr. P. C. They will not, therefore, be examined any more in this case. The original offence of murder of Muhammad Nazir Machhi for which the two approvers were tendered pardon has not been proved. It is, therefore, requester that this case may be decided on the evidence on the record by the Court and need not be committed to the Court of Session". After this the learned Magistrate recorded the statements of the accused persons and framed the following charge against Ghulam Abbas, Ghulam Murtaza, Imdad Hussain, Abid Husain, Ghulam Shabbir, Allah Yar, Manak and Muhammad Khan‑ "that on or about the 30th day of January 1951 at Chiniot y you agreed to abduct Muhammad Nazir Machhi with intent to murder him and rob him of Rs. 2,69,000 in Government currency notes stolen by him from the possession of his master and that in pursuance of the said agreement you did abduct and thereby committed an offence under section 120B of the Pakistan Penal Code and further that on the same day and at the same time and place you all abducted Muhammad Nazir Machhi in pursuance of the criminal conspiracy in order that the said Muhammad Nazir might be murdered and thereby committed an offence punishable under section 364 of the Pakistan Penal Code." The proceedings relating to the trial of this charge continued to be recorded in the file which had been started when the offence was taken cognizance of. The judgment was delivered on 15th April 1954, convicting and sentencing all the accused persons. On the day the charge was framed in the above case some charges were also framed against the accused persons under section 411 of the Penal Code. Six more charge sheets were prepared in one of which Ghulam Abbas was charged with an offence under section 411 of the Penal Code for dishonestly retaining on 25th March 1952, sixty three notes of Rs. 100 each, numbered F290501 to F290543, F290383 to F290399, F290471, F290479 and F290491 belonging to Haji Muhammad Shafi. Ghulam Murtaza was charged on the following three counts :‑ First.‑That you, on or about the‑ 22nd day of October 1951 at Lyallpur dishonestly retained ten Government cur rency notes of one hundred rupee each No. F290573 to F290579 and F290582, F290583 and F290585 belonging to Haji Muhammad Shafi, knowing or believing the same to be stolen property and thereby committed an offence punish able under section 411 of the Pakistan Penal Code and within my cognizance. Secondly.‑That you, on or about the 18th day of November 1951, at village Mehta retained ten Government currency notes of rupees one hundred each, No. F290480 to F290484 and F290496 to F290500 knowing or having reasons to believe the same to be stolen property belonging to Haji Muhammad Shafi P. W. and thereby committed an offence punishable under section 411 of the Pakistan Penal Code, and within my cognizance. Thirdly.‑That you, on or about the 27th day of Decem ber 1951, at Mehta dishonestly retained 1500 Government currency notes of rupees one hundred each in fifteen bundles of hundred each bearing numbers F289101 to F290000 and F291101 to F291800 knowing or having reasons to believe the same to be stolen property, belonging to Haji Muhammad Shafi P'. W. and thereby committed an offence punishable under section 411 of the Pakistan Penal Code, and within my cognizance." Imdad Husain was charged for dishonestly retaining a Government currency note of Rs. 100 No. F290587 on 22nd October 1951. Against Allah Yar, the charges were :‑ "First.‑That you, on or about the 12th day of November 1951, at Lalian dishonestly retained seventy notes of one hundred each bearing Nos. F290059 to F290090, F290316 to F290323, F290492 to F290495 and F290324 to F290349 belonging to Haji Muhammad Shafi P. W. knowing or having reasons to believe them to be stolen property and thereby committed an offence punishable under section 411 of the Pakistan Penal Code, and within my cognizance. Secondly.‑That you, on or about the 30th day of December 1951, at Lalian dishonestly retained ninety‑nine Government currency notes of rupees hundred each belong ing to Haji Muhammad Shafi P. W. and bearing serial numbers F290193, F290178, F290179, F290180, F290182, F290184, F290185, F290187, F290160, F290162 to F290164, F290200, F290249 to F290259, F290261 to F290263, F290265 to F290274, F290276 to F290284, F290352 to F290382, F290400, F290436, F290437, F290451 to F290457, F290459, F290474 to F290478 and F290485 to F290490, knowing or having reasons to believe them to be stolen property and thereby committed an offence punishable under section 411 of the Pakistan Penal Code and within my cognizance." Manak was charged with dishonestly retaining eighty notes of rupees one hundred each, bearing numbers F290001 to F290056, F290301 to F290315 and F290462 to F290470, at Vinoka on 12th November 1951. The charge against Muhammad Khan was that on 18th November 1951, at Chak No. 268, he dishonestly retained ten Government currency notes of rupees one hundred each, bearing numbers F290092 to F290100 and F290157. I have already mentioned that before the accused were examined the Public Prosecutor made a statement that because the two approvers had resiled from their statements the case need not be committed to the Court of Session, There is nothing on the record to show that the learned Magistrate at that stage considered the question of his competency to proceed with the trial or the correctness of the course suggested by the Public Prosecutor. But it appears that after the charges were framed another file was started commencing with the charge sheets under section 411 of the Pakistan Penal Code. When judgments in both cases‑ were written, the learned Magistrate dealt with the question of his own jurisdiction to try the cases and remarked as follows :‑ "I resumed the hearing of the case on 26th January 1953 when the learned Public Prosecutor, Jhang, made a state ment before me that the two approvers having denied all knowledge of the occurrence and having resiled from their statements recorded under section 337 Cr. P. C. would not be any more examined in the case and that the original offence of murder of Nazir Ahmad for which the two approvers were tendered pardon could not be proved. The learned Public Prosecutor requested that the case should be decided by me on the evidence on the record and need not be committed to the Court of Session. In view of section 337 (2‑A) Cr. P. C. in a case in which an approver is examined as a witness it is obviously obligatory for the Magistrate to commit the case for trial to the Court of Session. The learned Public‑ Prosecutor, however, argued that evidence on the record did not make out a case under section 302 P. P. C. for which the approvers had been tendered pardon. The words 'an offence' occurring in the fourth line of section 337 (2‑A) in his opinion referred to the offence for which the approvers were tendered pardon, and as such it was not necessary to commit the case for trial to the Court of Session. The learned counsel for the accused did not object to the trial of this case by me and in fact agreed that the trial should be expedited, as it had already been sufficiently protracted. I then proceeded with the case." It would have been, much better if the question, on which the learned Magistrate had stated the views of the Public Prosecutor and the defence counsel and his own opinion, had been carefully considered by him when the Public Prosecutor made a request to him to proceed with the case and not to commit it to the Court of Session. The Public Prosecutor took a tremendous responsibility in suggesting to the learned Magistrate in no more than an offhand manner that he was competent to try the case and the learned Magistrate himself undertook a greater responsibility in implicitly accepting the opinion of the Public Prosecutor. The learned Magistrate does not appear at all to have considered the question of jurisdiction at its proper stage because he recorded no order on that point and it was only after the trial was over that he sought to justify the action which he had already taken on the Public Prosecutor's request without realising its consequences. It was a bold step on the part of the Public Prosecutor to suggest on 26th January 1953 that since the approvers had resiled from their statements the charge of murder should be dropped. The evidence in the case was that with the stolen currency notes of the value of Rs. 2,69,000 Nazir drove straight to Chiniot, that abandoning the car near the house of Ghulam Abbas he went straight to that house, that there after Nazir was taken by one accused person or the other to different places, that he was last seen being taken to the river‑side, that he has not been heard of since and that out of the currency notes of Rs. 2,69,000 notes of the value of almost Rs. 2,00,000, were subsequently found in the posses sion of different accused persons. No Judge would have withheld from the jury a charge of murder founded on this circumstantial evidence, and the Public Prosecutor assumed a grave responsibility by suggesting it to the learned Magistrate to ignore the charge of murder and to proceed with the trial of the other charges. He does not seem to have consi dered the question whether if the evidence detailed above were believed, the only hypothesis which the accused could have put forward before the Court in answer to the charge of murder was that after Nazir stole the large amount of money and thus exposed himself not only to the risk of a long sentence but also of being required to disgorge the money, he made a present of practically the whole of the money to different accused persons and without any sufficient money with himself he left Pakistan and may now be living among the Eskimos or in Timbuktoo, never to return to his home or country. In accepting this or any other similar hypothesis as reasonably possible to avoid a charge of murder the Public Prosecutor and the learned Magistrate both assumed a responsibility which they should have been well advised to refuse to assume. The correct course for them both was to leave the question of guilt or otherwise as to that charge to be determined by the Court of Session. But this is not all. The point taken before me by all the learned counsel for the different appellants is that the trial of this case by the learned Magistrate was without juridic tion and that, therefore, the judgment delivered by him and the sentences passed are null and void. This contention is based on the terms of section 337 of the Code of Criminal Procedure, subsection (2A) of which provides that in every; case where a person has accepted a tender of pardon and, has been examined under subsection (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be. The learned Advocate‑General, who has appeared to support the result of the trial has endeavoured to meet this point by reiterating the argument that was raised by the Public Prosecutor before the learned Magistrate, namely, that the words "an offence" in subsection (2A) mean any one of the offences which are mentioned in subsection (1) of section 337, which enumerates the classes of cases in which and the conditions on which pardon may be tendered by a~ Magistrate to an accomplice. No express authority was cited before the learned Magistrate 'and none has been referred to before me in support of this construction which is prima facie opposed to the words of the section. It is, however, unnecessary for me to record a considered opinion on this point because, after examining the record, I am satisfied that the Public Prosecutor made his statement of 26th January 1953 in a most irresponsible manner and the learned Magistrate accepted it in an equally light‑hearted manner: It seems to me that the Public Prosecutor did not see the document containing the conditions on which pardon was tendered to and accepted by the approvers, and that if he saw that document he either misunderstood or misrepre sented its import, because one of the essential conditions of the pardon expressly stated therein was that the person accepting the pardon "shall make a full and true dis closure of the whole of the circumstances within his know ledge relative to the offence of abduction of Nazir with intent to murder and the offence of his murders." The final report which was submitted by the Police referred not only to section 302 but also to section 364 of the Penal Code and both these sections were mentioned in the proceedings relating to the tender and acceptance of the pardon. The statements made by the approvers after they had accepted the pardon clearly disclosed both these offences. The Public Prosecutor and the learned Magistrate should, therefore, have realised that, apart from the charge of murder which was being abandoned by the prosecution, there was also an allegation of the commission of an offence under section 364, and as the Subsequent proceedings show the accused were in fact convicted of that offence. Section 364 is included in the class of cases in which pardon can be tendered to ail accomplice and, therefore, even if the argument that the words an offence" in subsection (2A) mean one of the offences covered by the first subsection of section 337 be well founded, the offence under that section could not have been tried by the learned Magistrate. This, and the consequent necessity for a retrial oil the charge under section 364 are conceded by the learned Advocate‑General. The result of this and many another case which has recently come to the notice of this Court is a sad reflection on the manner in which important cases are being handled in the lower Courts both by Public Prosecutors and senior judicial officers, without their bothering to apply their minds to the legal questions that arise before them. Objections to jurisdiction, even a hint of possible lack of jurisdiction should put' every prudent Magistrate on his guard and, unless he is perfectly clear in his mind that he has jurisdiction, the wiser course for him to adopt in any such case in the interests of the public and the accused persons is to lass oil the case to the proper tribunal, if that tribunal's jurisdic tion is undoubted. The result of assuming jurisdiction in doubtful cases is that, if eventually the objection prevails, the time spent and the expense incurred in the proceedings becomes a dead loss; the proceedings taken, judgments rendered and sentences passed become a nullity and the case has to be tried afresh, giving an opportunity to the parties interested further to tamper with the evidence. In the present case, if the learned Magistrate or the Public Prosecutor had cared to see the conditions on which the District Magistrate had tendered pardon to the approvers and just looked at the words of section 337, neither of them could have possibly arrived at the conclusion that the case could be tried by a Magistrate. It was faintly argued by the learned Advocate‑General that because the approvers had refused to support the charge under section 364 of the Penal Code, the learned Magistrate became competent to try that offence on the other evidence in support of that charge. His contention is that it is only those cases where the evidence of an approver, if he has given evidence in support of the prosecution case, has to be judged that the Magistrate is to commit the case to the Court of Session, and that where there is no such evidence to judge, the case need not be committed and can be tried by the Magistrate himself. No authority in support of this proposi tion has been cited and it is opposed to the plain words of the statute. The law requires that if pardon has been tendered to a person on the conditions and in the circumstances mentioned in subsection (1) of section 337, the person accept ing the pardon has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. The law further declares that if the Magistrate before whom the proceedings are pending is of the opinion that there are reasonable grounds for believing that the accused is guilty of an offence he shall commit him for trial to the Court of Session or the High Court, as the case may be. The law does not say that these reasonable grounds for relief should be founded on the evidence of the person who has accepted the pardon and is add these words to the provision in construing it would not be interpretation but legislation. In a case in which pardon has been offered and accepted and the accomplice has been examined as a witness, once the Magistrate is satisfied that there are grounds to believe that the accused is guilty of an offence he must stay his hands and commit the case for trial to the Court of Session or the High Court. When the charges in both cases are closely examined it will be found that if the offences charged were not committed in the course of the same transaction, there was an obvious objection both to the joinder of persons and the joinder of charges in the case under section 411 of the Penal Code. The recor6 of the trial of that case shows that different persons were tried together for having committed offences of the same kind on different dates and in different places. These offences and the persons charged with them could be tried together only if the Court found from the statement of the prosecution case that these offences were committed in the course of the same transaction. Learned counsel for the appellants have, therefore, rightly contended before me that the join trial of all these charges under section 411 indicated that, according to the prosecution case, these offences and the offence under section 364 were committed in the course of the same transaction. If this assumption is true, then the charges under section 411 could have been jointly tried with the charge under section

364. The learned Magistrate, there fore, put himself in a position of self‑contradiction when he decided to try the charge under section 364 separately and the charges under section 411 together though they were committed by different persons and on different occasions. But in fact there have been no separate trials in these cases and the separation of the two cases was more of an appearance than a reality. After the charge the proceedings taken in both cases, though on different files, are identical, the same witnesses having been recalled and cross‑examined in an identical manner and the remaining witnesses for the prosecution having given in both cases the same evidence, in the same order and on the same dates. In fact, the procedure adopted by the learned Magistrate for what he has described as separate trials was a mere farce, because I cannot imagine that in both cases the same witnesses should have been called, put by each party identical questions and the replies to each of these questions made and recorded in identical words. What in fact seems to have occurred is that the learned Magistrate recorded the evidence of the witnesses only in one file and, after having typed, put the copy on the record of the other case it re without examining the witnesses again. There have not, therefore, been in this case two trials but only one trial and I cannot understand why the learned Magistrate adopted this farce of two trials when in point of fact he held only one trial. A point was raised by the learned Advocate‑General that, in any case, the charge under section 411 could have been tried by the learned Magistrate himself and that the convic tions and sentences in that case should be upheld. Even if it be assumed an assumption which as at present advised I am not prepared to make, that the charges under section 411 could in law be tried by the Magistrate and that it was not necessary to commit the trial of those charges to the Court of Session, I am clearly of the view that it will be a wrong course on my part to hear on merits the appeal arising out of those charges, because any expression of opinion by me on the evidence which is common to both cases is bound to affect the opinion of the learned Sessions judge to whom the trial of the charge under section 364 I intend to entrust. I, therefore, hold that the trial in the case under section 364 of the Penal Code was without jurisdiction. and, reversing the finding and sentences, I order each of the appellants in That case to be committed for trial. In the case under section 411, I follow a similar course, without deciding whether that case could or could not in law be tried by the learned Magistrate. I, therefore, reverse the finding and sentences in that case also and order the appellants to be committed for trial. It is common ground between the prosecution and all the defence counsel before me that the several offences charged in both cases were committed in the course of the same transaction. The offences in both cases shall therefore be tried together. No fresh charges need be framed but the learned Sessions Judge, who tries this case, will apply his mind to the necessity or advisibility of retaining a separate charge in respect of the possession by each accused of each lot of currency notes stolen in the same theft. The trial shall take place as early as possible before the learned Sessions judge himself. Formal steps for commitmen t shall be taken by the learned Additional District Magistrate, Jhang, but a copy of this order will be sent to Mr. Mansoor. Another copy will be sent to the learned Sessions judge to apprise him of this commitment in advance and to enable him to fix a date for hearing. A. H. Accused ordered to be committed for trial