P L D 1969 Lahore 537 (PLP)

Masud Ahmad Khan for A. G. for the State. Date of hearing: 9th December 1968. This Revision Petition is directed against the order of Mr. Ali Muhammad V. Akhund, Additional Sessions Judge, Multan, dated 28th of May 1965, whereby he set aside the convictions and sentences passed on the respondents under various sections of the Penal Code, and ordered their re trial on the ground that the respondents having taken part in a series of transactions, their joint trial was not justified according to law.

2. The respondents were convicted by order of Sheikh Nasir‑ud‑Din Ahmad, Magistrate Section 30, Multan, dated 22nd of April 1965, for offences under sections 366/368/392; P. P. C. Allah Ditta respondent was also convicted under section 376, P. P. C. They were sentenced to various terms of rigorous imprisonment. The allegation against them was that they had abducted Mst. Kaniz Fatima while she was proceeding from the house of her father to the buss‑stand in order to go to her husband at bungalow Umarpur in the District of Sahiwal. The respondents appealed to the Sessions Court and the learned Additional Sessions Judge directed retrial as stated above. He did not at all advert to the merits of the case.

3. The occurrence took place on 21st of February 1963, and the F. I. R. was lodged on 2nd of April 1963. The challan was filed in Court on 1st of August 1963. A charge was framed against the respondents on, various grounds on 17th of February 1964.

4. The short argument addressed by the learned counsel for the petitioner is that even if the allegations of mis- joinder of charges and persons was correct, the learned Additional Sessions Judge could not have ordered a retrial unless prejudice bad been proved. It is contended that by the enforcement of West Pakistan Act XVII of 1964, with effect from 1st of April 1964, which amended section 537 of the Criminal Procedure Code in a way so as to include the mode of trial within the ambit of the above section, the mis joinder of charges was no longer an illegality and the question had to be examined in the light of the fact whether any prejudice had or had not been caused to the persons arraigned at the trial. It is submitted that the earlier pronouncements of the High Court and the Supreme Court, namely, Alli and others v. The Crown (P L D 1954 Lah. 183), Qadar Dad and others v. Sultan Bibi and another (P L D 1956 F C 129) and Md. Mosaddar Haq and another v. The State (P L D 1956 S C (Pak.) 131) declaring the mis‑joinder of charges to be an illegality and a violation of the mode of trial, which vitiated the whole trial, are no longer applicable to a case of mis‑joinder of charges.

5. Mr. Arif Iqbal Hussain Bhatti who appears on behalf of the respondents has submitted that the case was pending .at the time when the amendment in section 537, Cr. P. C. came into force and, therefore, the old law would continue to govern the proceedings in the case. He has, in this connection, referred to Muhammad Alam and 3 others v. The State (P L D 1967 S C 259). In the precedent case, the objection raised was that the provisions regarding trial of Sessions cases with the aid of assessors had been done away with after the com mitment of the case, and the trial, therefore, should have been held with the aid of assessors. Their Lordships repelled that contention. It was, however, observed at page 269 of the report that if the trial in the case had already com menced before the promulgation of the new law, the trial ought to have proceeded under the old procedural rules. Mr. Arif Iqbal Hussain presses this latter observation in service and says that in view of this observation of the Supreme Court, I should hold that the amendment in section 537 of the Criminal Procedure Code having taken effect during the pendency of the case before me, the old law regarding the prohibition of joint trials in regard to certain matters should have held the field. As I read this observation in my humble way, it only means that if the trial bad commenced with the aid of assessors in the case before the Supreme Court, it would not have been interrupted because of the amendment in law.

6. The rule is established that no, body has any vested Tight in procedure and any amendment in the procedural law is also applicable to pending cases. Reference in this connection may be made to Muhammad Basher v. The Province of West Pakistan (P L D 1958 Lah. 853) and The State v. Maulvi Muhammad Jamil and others (P L D 1965 S C 681). The latter case also dealt with an amendment made in the Criminal Procedure Code by West Pakistan Act XVII of 1964. The precise contention raised before the Supreme Court was that the accused had a fundamental right of further cross‑examination and that notwithstanding the change in law, he should have been permitted to further cross‑examine the witnesses who appeared against him. Their Lordships decided that the fundamental right of cross‑examination was there, but had to be used only once. They found that it had been used in that case. It was observed that only a procedural change had been effected in law which cut down a further facility for further cross‑examination not affecting the substance of right. It was further observed that the new law should be applicable even to pending cases. It is not denied that the provisions regarding mode of trials are procedural. The purpose of the amendment is to do away with legal techni calities and to provide for speedy trials. The Legislature notwithstanding the judicial pronouncements which said earlier that any departure from the mode of trial would vitiate the trial, has provided that a departure from a mode of trial would not vitiate the proceedings unless prejudice had been caused to the accused. In my view, therefore, the amendments made by West Pakistan Act XVII of 1964, in section 537, Cr. P. C. would apply to the present case even though it was pending before the amendment came into force.

7. I would, therefore, set aside the order of the learned Additional Sessions Judge, Multan, and direct that re‑hearing of the case on merits. It will, of course, be open to the respondents to show to the Appellate Court that the trial was held against the provisions of sections 233 and 239 of Cr. Procedure Code and they had been prejudiced by the procedure adopted by the Court.

8. The respondents were allowed bail by the learned Additional Sessions Judge. They will appear before the Session Court when called upon to do so. K. B. A. Petition allowed.