P L D 1969 Lahore 966 (PLP)

ANWARUL HAQ, J.

‑This judgment will dispose of Writ Petitions Nos. 1087, 1375 and 1519 of 1967 as well as Writ Petition No. 200 of 1968 which raise common questions of law and fact. The first petition is by two persons, namely, Nabi Ahmad and Aziz Ahmad ; the second is by seven persons named Khushi, Ali, Shall, Ghulam Nabi son of Mehtab, Ghulam Nabi son of Sultan, Muhammad Din and Muhammad Shall ; the third is only by one man named Ghulam Hussain, whereas the fourth is by two persons named Yousuf and Khushi son of Faujdar. All the 12 petitioners and six others were named as the assailants in F. I. R. No. 44 lodged at Police Station Sadar, Gujranwala on the 1st of April 1964 by Said son of Nawab who is cited as one of the respondents in the first three petitions. He assigned various parts to these petitioners and others during the incident which resulted in the death of six members of his family, namely, his three sons, one nephew and two brothers. Some womenfolk of the family also sustained injuries at the hands of the assailants who had set fire to the residential kotha of the complainant in order to force the deceased persons to come out of their hiding place. The police officer investigating the case submitted an incomplete challan to the Court of the Magistrate on the 25th of April 1964 under sections 148, 302 and 436, read with sections 109 and 149 of the Pakistan Penal Code. The petitioners, Nabi Ahmad and Aziz Ahmad were shown in Column No. 2 of the challan as apparently the investigating officer was satisfied with their alibis. Two persons named Khurshid and Yusuf son of Sharif, absconded and have not so far been arrested. The respondent Said filed a private complaint against the petitioners Nabi Ahmad and Aziz Ahmad as a result of which the Magistrate summoned them as accused persons. On the 3rd of August 1964 the Commissioner, Lahore Division, passed an order under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 (hereinafter referred to as the Act), referring the case for trial to a Tribunal as constituted under the Act, observing that "this is a cruel and sensational murder and it would be a pity if the culprits escape punishment. Tribunal will be in a better position to sift the available evidence by making on the spot enquiries. I, therefore, in the interest of justice sanction trial of the case under the West Pakistan Criminal Law (Amendment) Act, 1963".

2. The accused persons filed a revision petition against this order under section 19(2) of the Act as it then stood, and it was accepted by the learned Home Secretary to the Government of West Pakistan by his order dated the 16th of September 1964. As the terms in which this order is couched have a bearing on one of the contentions raised before us, the relevant portion of this order may be reproduced here as under :‑ Without going into the contentions put up by the petitioners in their petition dated the 12th August 1964, I consider that the said order of Commissioner, Lahore Division, has not been passed keeping in view strictly the provisions of section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 and rule 3 of the West Pakistan Criminal Law (Amendment) Rules, 1963. It is further observed that section 109, P. P. C. is not included in the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963 and as such a tribunal constituted under the said Act cannot take cognizance of an offence under section 109, P. P. C. and cannot give their findings in this behalf. I, therefore, set aside the order of the Commissioner, Lahore Division, dated the 3rd August 1964. The Commissioner, Lahore Division, will, however, not be precluded from passing a fresh order in this case, if he so deems fit, keeping in view the provisions of the Act and the Rules framed thereunder.

3. On the 13th of August 1966, the District Magistrate of Gujranwala addressed a letter to the Commissioner, Lahore Division, stating as under :‑ My predecessor entrusted this case to the ordinary Court of Law.‑ The prosecution evidence has been concluded and the accused have won over all independent P. Ws. including two eye‑witnesses. Two of the accused Muhammad Hussain and Muhammad Khan are not named in the F. I. R. Khushi and Shaft accused are hired assassins in this case. Besides committing murders, the accused have also set fire to agricultural produce and the building of the complainant's party. As no independent evidence is forthcoming to bring home the charge to the murderers, therefore, the case is not likely to stand the rigours of the trial in regular Court of law. For these reasons, the learned District Magistrate agreed with the recommendation of the Superintendent of Police and in his turn recommended to the Commissioner that the case of fifteen accused persons mentioned in the letter of the Superintendent of Police be referred to a Tribunal and the case of three persons, namely, Muhammad Hussain, Muhammad Akram and Muhammad Khan, who were also charged under section 109 of the Pakistan Penal Code, may be left to be tried by the ordinary Court.

4. On receiving this reference, the learned Commissioner heard the counsel for the accused, the counsel for the complainant and the Prosecuting Inspector for the State and passed a fresh order of reference on the 9th of September 1966. The Commissioner accepted the reasons set out by the District Magistrate for withdrawing the case from the ordinary Court in respect of fifteen accused and left the case of the remaining three accused to be dealt with by the ordinary Court as section 109, P. P. C. was not included in the Schedule to the Act.

5. The petitioners thereupon filed an appeal under section 18. of the Act, but the same was dismissed by the learned Home Secretary on the 17th of June 1967. Hence the present petitions under Article 98 of the Constitution.

6. The several learned counsel appearing for the various petitioners in these four cases have raised a large number of contentions to challenge the correctness and legality of the latest order of reference made by the Commissioner, Lahore Division, and upheld by the Home Secretary to the Government of West Pakistan, and these may be summarized as under :‑ (1) The first order of reference having been set aside by the revisional authority, the learned Commissioner had no jurisdiction to make a second reference as the Home Secretary's. revisional order was final and could not be reversed or by passed by the Commissioner, and also because the case did not fall within the ambit of the newly added subsection (5) of section 3 of the Act. (2) The second order of reference was without lawful authority for the following reasons:‑ (a) that sections 148 and 149, P. P. C. having been added to, the Schedule of Offences to the Act by an Ordinance promulgated on the 25th of May 1964, they could not be applied retrospectively to the present case in which the offences were alleged to have been committed on the 1st of April 1964, because a vested right bad accrued in favour of the petitioners. to be dealt with in accordance with the procedure embodied in the Criminal Procedure Code and the Evidence Act and to file appeals, if convicted, to the High Court and the Supreme Court. (b) that two of the accused persons, namely, Khurshid and Yusuf son of Sharif having been declared absconders, their cases could not be dealt with by the Tribunal as section 512 of the Criminal Procedure Code has not been made applicable to proceedings before it, and serious prejudice is likely to be caused to the petitioners if evidence against the absconders is allowed to be led at the trial. (c) that the case against three of the accused persons, namely, Muhammad Hussain, Muhammad Akram and Muhammad Khan, falling under section 302 read with section 109, P. P: C. having been allowed to remain with the ordinary Court, there has resulted a bifurcation of offences and accused persons which is likely to cause grave prejudice to the petitioners, and (d) that the opinion formed by the Commissioner that it is inexpedient in the interest of justice that the case be tried by an ordinary Court is not based on any cogent material or reasons and is not the result of a proper application of his mind to the issues involved. (3) In any case, the reference is bad as against petitioners Nabi Ahmad and Aziz Ahmad for the reasons :‑ (a) that they were not accused persons within the meaning of section 3 of the Act, having been mentioned only in Column No. 2 of the challan, (b) that according to the polio investigation there was no case against them, and (c) that there is no power to refer a case on the basis of a private complaint like the one which was filed against these two petitioners by the respondent Said in the Court of the Magistrate. 7. as regards the first contention concerning the incom petence of the second order of reference, it is clear that there is no merit in the argument that the revisional order passed by the Home Secretary on the 16th of September 1964 was final and could not he reversed or by‑passed by the Commissioner. It has already been stated that the learned Home Secretary had himself observed in this order that the Commissioner would not be precluded from passing a fresh order, if he so deemed fit, keeping in view the provisions of the Act and the rules framed thereunder. The Home Secretary had set aside the first order of reference dated the 3rd of August 1964 on two grounds, namely, (i) that a case falling under section 109, P.P.C. could not be referred to the Tribunal as this provision of law was not included in the Schedule to the Act, and (ii) that the order passed by the learned Commissioner did not keep in view the provisions of the Act and the Rules. It seems to us that the Home Secretary did not set aside the order of reference on the merits of the case but clearly left it open to the Commissioner to re‑consider the matter in the light of the Act and the Rules, if he so desired. In these circumstances, it can hardly be said that the revisional order was of such a final nature as to preclude any further action by the Commissioner under section 3 of the Act.

8. The argument that the second reference is bad for the reason that it is not covered by the newly added subsection (5) of section 3 of the Act obviously proceeds on the assumption that this subsection was intended to be comprehensive of the types of cases in which a second reference could be made. This assumption does not appear to us to be justified. The subsection in question lays down that "the Commissioner may refer the question of the guilt or innocence of any person accused of a scheduled offence to a Tribunal in accordance with the provisions of this section, notwithstanding that he has previously declined to refer such question to a Tribunal solely on the ground that the reference, if made, would involve bifurcation of a scheduled offence or offences from a non‑scheduled offence or offences, or an order made by the Commissioner referring such question to a Tribunal has been set aside by Government in exercise of its powers of revision under this Act or by any Court, solely or4 the ground that such reference was in respect of both scheduled and non‑scheduled offences or involved bifurcation of a scheduled offence or offences from a non‑scheduled offence or offences". This subsection was inserted by Ordinance XV of 1966 and appears to have been enacted so as to overcome the difficulty created by the judgment of a Full Bench of this Court in Khizar Hayat and others v. The Commissioner, Sargodha Division (P L D 1965 Lah. 349), in which it had been held that bifurcation of a case so as to refer scheduled offences to a Tribunal and leave the non‑scheduled offences to be dealt with by the ordinary Court was either illegal or, in the alternative, contrary to the principles of natural justice. The subsection sought to validate such bifurcations by enabling the Commissioner to make a fresh order of reference even though the previous order had been set aside on this ground either by the revisional authority or by a Court of law. This does not, however, mean that the subsection necessarily excludes the making of a second order of reference in other cases where the previous order of reference is held to be bad for some other reasons. If the circumstances of the case are such that the defects in the first order are capable of rectification, then we are not able to spell out any prohibition in the Act, or on general principles, which would prevent the Commissioner from re‑considering the matter so as to pass an order in accordance with law. Now, in the present case, the revisional authority clearly left open the possibility of the Commissioner re‑considering the matter in the light of the Act and the Rules framed thereunder, while indicating that the offences made punishable by the application of section 109, P. P. C. could not be referred. The Commissioner was, therefore, clearly within his powers in re‑considering the matter irrespective of the provisions of subsection (5) of section 3 of the Act which are only partly attracted to the case, and would appear to authorise the second reference rather than invalidate it.

9. Taking now the further questions regarding the legality of the present order of reference, the first contention is that on the date when the offences are alleged to have been committed sections 148 and 149, P. P. C. were not a part of the Schedule to the Act, with the result that the offences made punishable C under, or by the application of, these sections could not be referred for trial to a Tribunal constituted under the Act, with the further consequence that the petitioners, or at least those of them who are sought to be punished under these sections, had acquired a vested right to be dealt with in accordance with the ordinary law involving the application of the Criminal Procedure Code and the Evidence Act and the availability of the right of appeal to the High Court and the Supreme Court in the event of their being convicted by the Sessions Court. It is submitted on behalf of the petitioners that even though there can be no vested right in procedure, yet the right of appeal . has consistently been regarded as a substantive right which cannot be taken away by the retrospective application of a new procedural law. The learned counsel appearing for the petitioners have in this connection placed reliance on a large number of decided cases, namely, Muhammad Ishaq v. The State (P L D 1956 S C (Pak.) 256), The State v. Maulvi Jamil and others (P L D 1965 S C 681), Muhammad Ibrahim Munshey and others v. The Province of West Pakistan (P L D 1968 S C 1), Pakistan v. Devachand Muljimal and others (P L D 1968 Kar. 107) and Mst. Shorat Bano v. Ismail Dada Adam Soomar (P L D 1968 S C 574).

10. It is not necessary to refer at any length to the cases mentioned above for the reason that the principle which governs the retrospective application of laws, procedural or otherwise, is well‑settled and it would suffice to quote from only one judgment of the Supreme Court, namely, the case of Maulvi Muhammad Jamil and others. While delivering the judgment of the Court, S. A. Rahman, J. (as he then was) observed as under :‑ "The general principle is that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights. Where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view. A statute can be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie to all actions, pending as well as future. It is only if it be more than a mere matter of procedure, that is, if it touched a right in existence at the passing of the new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new Act."

11. Now, in determining the applicability of this principle to the instant case, two questions need to be answered ; (a) is section 149 in the nature of a substantive provision creating a specific offence or is it merely in the nature of an enunciation of a principle of constructive liability which may be read into any criminal charge without even being specifically mentioned; and (b) if section 149 is to be regarded as being in the nature of a substantive provision, which had to be included in the Schedule to the Act for its application to a given case, referred for trial to a Tribunal, then when did the substantive right of appeal to the High Court and the Supreme Court accrue to the petitioners under the normal procedure ?

12. We have, of course, omitted to include section 148, P. P. C. in the two questions posed here for the reason that this section does create a substantive offence and it had to be included in the Schedule before a reference could be made in respect thereof. The only question in such a case would again be about the vested right of appeal to a person charged with this offence. The submission made by the learned counsel for the petitioners is that section 149, for all legal and practical purposes, a substantive provision creating a distinct offence even with regard to persons who have not themselves committed the physical act or acts made punishable under the other provisions of the Penal Code, provided the circumstances mentioned in the section are present. In support of this assertion reliance is placed on observations made by the Judicial Committee of the Privy Council on page 72 of the Report in Barendra Kumar Ghosh v. The King‑Emperor (52 IA 40). While comparing sections 34 and 149 of the Penal Code, their Lordships observed :‑ "The other part of the appellant's argument rests on sections 114 and 149, and it is said that if section 34 bears the meaning adopted by the High Court,, these sections are otiose. Section 149, however, is certainly not otiose, for in any case it creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or more persons having a common object‑namely, one of those named in section 141: Reg. v. Sabed Ali, and then the doing of acts by members of it in prosecution of that object. There is a difference between object and intention, for though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, is replaced in section 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combination of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but section 149 cannot at any rate relegate section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all."

13. This view of the Privy Council has been followed by the Indian Supreme Court in cases reported as Pandurang and others v. State of Hyderabad (AIR1955SC216) and Nanak Chand v. State of Punjab (AIR1955SC274) as well in Suraj Pal v. State of Uttar Pradesh (AIR 1955 S C 419). The discussion of the point is not very elaborate in the first‑mentioned case, but in the case of Nanak Chand the learned Judges examined the ingredients of section 149 of the Penal Code at some length and expressed the view "Under section 149 a specific offence is created . . . . . Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore, when the accused are acquitted of rioting and the charge for being members of an unlawful assembly fails, them can be no conviction of any one of them for an offence which he had not himself committed. Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore, the appropriate punishment section must be read with it. It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it. The finding that all the members of an unlawful assembly are guilty of the offence committed by one of them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence."

14. In all these cases it was emphasised that in order to punish a member of an unlawful assembly by the application of section 149 it was essential that the section must be clearly mentioned in the charge and the accused given specific notice thereof. This view was naturally followed in various other cases from the Indian jurisdiction and mention may be made of Krishna Pillal Vasu and others v. The State (A I R 1956 Travancore 230) and Tahsildar Singh v. State (A I R 1958 All. 255).

15. However in two cases from the Indian jurisdiction a contrary view was expressed. In Theethumalai Goundar and others (A I R 1925 Mad. 1), at Full Bench reached the conclusion that :‑ "Section 149 creates no offence, but is like section 34 merely declaratory of a principle of the common law, and its object is to make it clear that an accused who comes within that section cannot put forward as a defence that it was not his hand which inflicted the grievous hurt . . . . . A person could not be tried and sentenced under section 149 alone, as no punishment is provided by the section. Therefore, the omission of section 149 from a charge does not create an illegality by reason of section 233, Criminal Procedure Code, which provides that for every distinct offence of which any person is accused there shall be a separate charge." This view was following in Madhuwa Pyarelal Kurmi and others v. State of Vindhya Pradesh (A I R 1954 V. P. 36), but the Madras case was specifically overruled by the Indian Supreme Court in the cases mentioned by us earlier and, therefore, the authoritative Indian view seems to be in keeping with the view of the Privy Council in the case of Barendra Kumar Ghosh to the effect that section 149'B creates a specific, offence unlike section 34 of the Penal Code which merely enacts a principle of constructive criminal liability.

16. The learned counsel appearing for the parties have not cited any case of our own superior Courts having a direct bearing on the point, although reference is made to Faiz Bakhsh and others v. Emperor (A I R 1954 Lah. 188), Nawab and others v. The Crown (P L D 1954 Lah. 78) and Niamat and others v. The State (P L D 1961 Lah. 1), in which the distinction between sections 34 and 149 of the Penal Code was brought out. However, the point came up for indirect consideration in Rehmat Ullah Khan v. The State (P L D 1965 Pesh.162), in which the Full Bench, while dealing with the question of tine application of section 109, P. P. C. to a case referred to a Tribunal under section 3 of the Act, observed that this section stood on the same footing as section 149, P. P. C. "which also does not constitute a substantive offence but makes any member of an unlawful assembly responsible for any offence which he knew to be likely to be committed in prosecution of the common object of the assembly. If, therefore, section 149 could not be invoked , in proceedings before a Tribunal without being specifically included, the same is equally true of section 109 . . . . .". These observations do not amount to holding directly that section 149 creates a distinct offence, rather the view expressed is that it does not constitute a substantive offence, yet Mr. Buttar appearing for two of the petitioners has pressed these observations into service to show that without being specifically included in the Schedule to the Act sections 109 and 149 could not be applied to a case referred to a Tribunal. However, a contrary view was expressed by another Full Bench at Lahore in Muhammad Nawaz and others v. The State (P L D 1967 Lab. 952). In the concluding paragraph of the main judgment, which dealt with the true nature of section 34 of the Pakistan Penal Code with reference to the question of its inclusion in the Schedule to the Act, it was observed as under :‑ "The addition of sections 148 and 149 to the Schedule by the second amending Ordinance IX of 1964 and the inclusion of section 34 in the Schedule by Ordinance XV of 1966 appear to have been done either by way of abundant caution or in subservience to the judgments of this Court hitherto delivered on the effect of their inclusion or non‑inclusion in the Schedule. Obviously enough, the inclusion or exclusion of section 3 in the Schedule by the Legislature does not alter the real purport of the section which, as already stated above, neither creates an offence, nor amounts to one by its own force." One of us (S. Anwarul Haq, J.), was a party to this judgment of the Full Bench which overruled two previous decisions of this Court with regard to the true nature of section 34 of the Penal Code. 7 he question before the Full Bench was about section 34 only and the true nature and scope of sections 148 and 149 of the Penal Code were not examined at all either in the light of the substantive provisions themselves or with reference to precedents. These observations must, therefore, be construed as being the nature of an obiter diction in so far as sections 148 and 149 are concerned.

17. There being no judgment to the contrary effect which would be binding on us, we would respectfully like to follow the view of their Lordships of the Judicial Committee in the case of Barendra Kumar Ghosh to the effect that unlike section 3. section 149 of the Penal Code creates a specific offence and a person cannot be punished thereunder unless the section is included in the charge. This view still prevails in India, and the Courts in Pakistan have also taken pains to bring out the distinction between sections 34 and 149 of the Penal Code which clearly establishes the different nature of the liability created by section 149, P. P. C. As a result, it is clear that the case of a person made punishable by the application of section 149, P. P. C. could not be referred to a Tribunal under section 3 of the Act unless section 1.49 was specifically included in the Schedule to the Act. The same observations would apply to section 148,1 P. P. C. as well. In these circumstances, the petitioners could not be tried by a Tribunal under the Act for offences made punishable under sections 148 and 149, P. P. C. as the law stood at the time the offences in the instant case were committed, and therefore they had to be tried by the Court of Session, and in that event they would have had the right of appeal to the High Court and the Supreme Court, if convicted at the trial. However, during the pendency of the inquiry proceedings against them these sections were included in the Schedule to the Act. Ordinarily the Act being a procedural law could be applied to all pending cases and the only question which now remains to be considered is whether a substantive right of appeal had already accrued to the petitioners such as could not be taken by the retrospective application of the amending Ordinance.

18. According to the learned counsel for the petitioners, proceedings in a criminal case are initiated either by the registration of a first information report or by the institution of a private complaint in the Court of a Magistrate and accordingly is this point of time which determines the respective rights of the parties as regards the procedure and appeals etc. In the alternative, it is submitted that at best the accrual of these vested rights could be postponed to the date of the submission of a complete or incomplete challan in the Court of the Magistrate, for that would in any event show that the proceedings had begun before a prescribed forum in this case the Court of a Magistrate empowered to hold an inquiry under Chapter XVIII of the Criminal Procedure Code for the purpose of committing the case to the Court of Session.

19. Now, the general principle obtaining in these matters, as already stated by us, is that the vested rights of the parties, if any, are to be determined according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. It seems to us that the phrase "when the action was begun" must be taken to refer to the commencement of proceedings of the trial of a civil suit or of a criminal case before a competent Court, and not to antecedent or preliminary proceedings undertaken to determine whether the matter is to be brought to trial or not. The mere registration of a first information report of the institution of a private complaint in the Court of a Magistrate would not necessarily mean that the persons named therein would indeed be brought to trial. The investigation may reveal that the first information report was false, or the private complaint may be dismissed b the Magistrate without summoning any person as an accused. Similarly, the commitment proceedings undertaken by a Magistrate under Chapter XVIII of the Criminal Procedure Code may result in a discharge of the accused persons and they may thus not be brought to trial before the Court of Session. The same possibilities can be envisaged in the matter of a civil action. A party may send a notice to another party threatening the filing of a suit but may in fact never do so. In such a case it could not be said that any vested right of appeal would accrue to one party or the other from the date of issuance of such a notice or the denial of the claim by the opposite‑party. For these reasons, it seems clear that the earliest date which would be relevant for determining whether any vested right of appeal has accrued to a party or not would be the date when the trial is commenced before a Court of competent jurisdiction.

20. In the case of Maulvi Muhammad Jamil, while considering whether a vested right of further cross‑examination had accrued to the accused, their Lordships of the Supreme Court observed that such a right matured into a vested right only when a charge was framed against the accused person so as to bring into play the provisions of the unamended section 256 of the Criminal Procedure Code. Their Lordships rightly observed, if we may say so with respect, that if a charge is not framed, the question of re‑calling a witness .for further cross‑examination would hardly arise.

21. In Kirpa Singh v. Rasalldar Ajaipal Singh and others (A I R 1928 Lah. 627), a Full Bench held that "it is now authoritatively settled that the right of appeal is not a mere matter of procedure, but is a vested right which inheres in a party from the commencement of the action in the Court of first instance. If according to the law in force at the time when the action was started in the Court of first instance the ultimate decision of such Court was appealable, the right to prefer or to prosecute an appeal therefrom is not affected by subsequent change of the law abolishing the appeal or modifying its forum, unless it is so provided expressly in the amending statute or follow by necessary implication from its terms". In reaching this conclusion the learned Judges relied upon Colonial Sugar Refining Co. Ltd. v. Irving (1905 A C 369). The same view was expressed by the Indian Supreme Court in Garikapati Veeraya v. N. Subbian Choudhary and others (A I R 1957 S C 540), and it was emphasised that "the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the Us commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decision or at the date of the filing of the appeal".

22. Keeping in view the above principles, it is manifest that in the matter of criminal proceedings the question of exercising the vested right of appeal would hardly arise if the accused person is not even brought to trial. We consider, therefore, that the right of appeal to the High Court and the Supreme Court would have accrued in the present case only if the petitioners had been brought to trial before the Court of Session after having been committed by the Magistrate. The Court of Session was the Court of first instance in this case, but the stage of trial by that Court was never reached. In any case if the accused had been committed to the Court of Session or the trial had commenced before that Court, no reference could have been made in view of the provisions contained in subsection (2) of section 3 of the Act. This is thus not a case where it can be said that the addition of sections 148 and 149 of the Pakistan Penal Code to the Schedule to the Act by the amending Ordinance IX of 1964 has operated retrospectively so as to take away any vested right of appeal to the superior Courts which might have accrued to the petitioners under the ordinary law.

23. The next ground of attack on the second reference is that as section 512 of the Criminal Procedure Code has not been made applicable to proceedings before the Tribunal, the Commissioner was not competent to direct the Tribunal to deal with the cases of the two absconders, namely, Khurshid and Yusuf, and that for this reason the reference is bad even as against the petitioners because they would be seriously prejudiced by bringing on record the evidence relating to the absconders. In this behalf reliance is again placed on the Peshawar case of Rehmat Ullah Khan and others. In that case out of the 12 persons' alleged to have been concerned in the occurrence no fewer than nine were said to be absconding and it was held that as section 512 of the Criminal Procedure Code was not one of the provisions of that Code which had been made applicable to proceedings under the Act Tribunal should, therefore, have been directed to confine itself to the evidence against the three accused alone, and the failure to give such a direction might easily cause grave prejudice to the Three persons concerned, particularly since without the addition of the alleged absconders section 149, Pakistan Penal Code, could have no application. It was added that the Tribunal was not a Court within the meaning of section 512, Criminal. Procedure Code, and so could not avail itself of that section.

24. It will be seen that the learned Judges of the Full Bench, in the case just referred to, did not positively hold that the reference under section 3 against the non‑absconders stood invalidated for the reason that it included the absconders as well. The learned Judges particularly noticed the fact that the Tribunal could not proceed under section 512, Cr. P. C. against the absconders and that without the addition of the absconders section 149, P. P. C. could not be applied to the three persons who were sought to be placed on trial before the Tribunal. In the present case, the position is quite different. Out of the F 18 persons mentioned in the first information report only two are said to be absconding and, therefore, there is no difficulty in applying section 149 to the remaining large number of persons whose case has been referred to the Tribunal under section 3 of the Act. fit best, the question can be raised of prejudice to the present petitioners by bringing on record evidence relating to the two absconders. This would not, by itself, in our view, invalidate the reference as regards the present petitioners, and all that is necessary to do here is to caution the Tribunal against bringing on record evidence relating to the absconders so as to avoid causing any prejudice to the petitioners.

25. The next contention deals with the bifurcation of offences and accused owing to the fact that the case against three petitioners, namely, Muhammad Hussain, Muhammad Akram and Muhammad Khan, has been left to be tried by the ordinary Court for the reason that they were charged by the application of section 109, P. P. C. which does not figure in the Schedule to the Act. It is true that in Khizar Hayat's case, a Full Bench of the High Court had held that a reference was bad owing to bifurcation of offences and offenders, but this judgment was reversed by the Supreme Court in P L D 1966 S C 793 and it was held that the Commissioner's order should be held to be good as far as it was within the law and only that part of the reference should have been held to be invalid which related to offences note mentioned in the Schedule. This view has been reiterated in Commissioner, Rawalpindi Division v. Parvez Iqbal (P L D 1968 S C 259). Apart from the view taken by the Supreme Court, there is the further fact that the Legislature amended the law itself and specifically allowed bifurcation of scheduled and non‑scheduled offences by adding subsection (1‑A) to section 3 of the Act. There is thus no merit in the argument based on the question of bifurcation.

26. The last ground on which the validity of the order of reference is attacked in all these cases is that the opinion formed by the Commissioner regarding the inexpediency of the trial by an ordinary Court is not based on any cogent material or reasons, and is not the result of a proper application of his mind to the issues involved. We fail to see the basis for this contention. While narrating the facts of the case we have already referred at some length to the detailed letter addressed by the District Magistrate of Gujranwala to the Commissioner, Lahore Division, on the 13th of August 1966, giving reasons to justify reference of the case to the Tribunal. The order passed by the Commissioner contains a detailed mention of these reasons and he reached his opinion after studying the file and hearing the counsel for the petitioners. In brief, the learned Commissioner has listed three reasons for making the reference :‑ (i) The accused have won over all independent witnesses including two eye‑witnesses, (ii) Two of the accused, namely, Muhammad Hussain and Muhammad Khan, are not named in the F. I. R., and (iii) Khushi and Shafi accused are stated to be hired assassins in the case. These reasons are within the ambit of rule 3 of the Rules framed under section 3 of the Act. It would appear, therefore, that the learned Commissioner had applied his mind to then question before ordering the reference and that the reasons which influenced him in coming to his decision were those sanctioned by law.

27. The above discussion concludes the general attack on the validity of the orders of reference, and we may now turn to the three further specific contentions raised by Mr. Muhammad Anwar Buttar on behalf of the petitioners Nabi Ahmad and Aziz Ahmad (Writ Petition No. 1087 of 1967). It is contended that these two petitioners were not accused persons within the meaning of section 3 of the Act as they were mentioned only in Column No. 2 of the challan ; that according to the police investigation there was no case against them which needed reference to the Tribunal ; and finally that there was no power in the Commissioner to refer a case on the basis of a private complaint like the one which was filed against these two petitioners by the respondent Said in the Court of the Magistrate in which they were summoned as accused persons.

28. There is no merit in any of these submissions. The two petitioners were named as being among the assailants in the first information report lodged by the respondent said on the Ist of April 1964. The mere fact that the investigating officer was satisfied with the alibis of these two persons did not take them out of the category of persons "accused of a scheduled offence" as mentioned in subsection (1) of section 3. of the Act. The meaning and the scope of the words "any person accused of an offence" as used in the provision of law just mentioned came up for examination by a Full Bench of this Court in Noor Muhammad etc. v. The State (Writ Petition No. 592 of 1966), and in the opinion delivered on the 29th of May 1967 it was held:‑ The words any person accused of an offence as used in subsection (1) of section 3 of the Act are to be interpreted roll the ordinary dictionary sense as meaning any person against whom a charge or accusation of a scheduled offence has been brought, irrespective of the fact whether such an accusation is brought by way of a first information report or a report submitted under section 173 of the Criminal Procedure Code, or is contained in a private complaint instituted in a Court. The words are not limited to only those persons who are actually sent up for trial before an ordinary Court from which the case is sought to be transferred to a Tribunal. The same Full Bench further examined the meaning of the words the accused's appearing in subsection (2) of section 3 of the Act and came to the following conclusion:‑ "These words have reference only to the person or persons who are actually facing the inquiry or trial and do not refer to those persons whose names may have been mentioned in column 2 of the challan but who have not been summoned by the Court as accused persons for the purpose of that inquiry or trial. Subsection (2) deals with a pending case and lays down a limitation as regards the stage up to which a pending case can be withdrawn from an ordinary Court and referred to a Tribunal ; but this subsection in no way limits the power given to the Commissioner under subsection (1) of the same section. In other words, although the reference in a pending case would be confined to the person who is in fact facing the inquiry or trial as `the accused', yet the case of other persons who have not been summoned as accused in that inquiry or trial can be referred to a Tribunal under subsection (1) of section 3 of the Act."

29. The same question was considered by a Division Bench of this Court in Taj Muhammad Khan v. The State (P L D 1966 Lab. 745), and it was observed that "a person is accused of an offence when a report of the commission of an offence is registered against him, or when a report of the commission of an offence is submitted against him by the police under section 173, Criminal Procedure Code. These are two instances in which a person may be said to be accused of an offence". It was contended by Mr. Buttar that if this opinion of the Division Bench is followed, then the case of a person summoned as an accused in a private complaint would not be covered by subsection (1) of section 3 of the Act, but it would be seen that the learned Judges of the Division Bench did not lay it down that the two instances given by them were exhaustive of the categories of accused persons within the meaning of these words as used in section 3 (1) of the Act. In any case, the opinion of the Full Bench would obviously prevail, in case the learned Judges or the Division Bench were limiting the meaning of these words as contended by Mr. Buttar, which. J however, does not appear to us to be the case. It is clear, therefore, that the two petitioners Nabi Ahmad and Aziz Ahmad were accused persons within the meaning of the law and the cases could be referred to the Tribunal irrespective of the fact whether they had been shown in Column No. 2 of the challan submitted by the police and whether they bad been summoned as accused persons in the private complaint. Their names having been mentioned in the first information report and they having been summoned as accused persons in a criminal case, albeit a private complaint, they must clearly be regarded as accused persons.

30. The contention that there was no case against them which could be referred to a Tribunal has no merit in view of the fact that they had been mentioned as the assailants in the first information report by a person who claimed to have seen the incident. The question whether the eye‑witnesses in this regard are worthy of credit is still to be determined, but in the presence of an assertion that the two petitioners were among the assailants it can hardly be said at this stage that there was no case against them which could be referred to the Tribunal under section 3 of the Act.

31. Our conclusions may now be summed up by saying that the first order of reference having been set aside on technical grounds by the provisional authority and that authority having expressly permitted the Commissioner to make a second reference according to law, if he so desired, the second reference was obviously competent ; and that this reference is not vitiated for any of the reasons urged by the learned counsel for the petitioners. Further, there is no illegality attaching to the reference as against the petitioners Nabi Ahmad and Aziz Ahmad simply for the reason that the police found that their alibis were acceptable and they were shown only in Column No. 2 of the challan and were summoned as accused persons in the private complaint instituted by the respondent Said.

32. For the reasons stated above, no justification is made nut for our interference with the order of reference passed by the learned Commissioner, Lahore Division, on the 9th of September 1966 under section 3 of the Act. The petitions, therefore, fail and are hereby dismissed, but in the circum stances of the case we would leave the parties to bear their own costs.

33. We would, however, like to add that the Tribunal not having powers to proceed under section 512 of the Criminal Procedure Code, should take care to see that evidence regarding the absconders is not brought on the record in such a way as to prejudice the petitioners. K.B.A. Petition dismissed.