1971 P Cr (PLP)

3. I need not discuss the prosecution case at great length, because of the fact that the trial of the offence in question by the Magistrate appears to me to be illegal.

4. Section 364‑A of the Pakistan Penal Code runs as under :‑ "Whoever kidnaps or abducts any person under the age of ten, in order that such person maybe murdered or subject to grievous hurt, or slavery, or to the lust of any person or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person shall be punished with death or with transportation for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years." This section was added after section 364, in the Pakistan Penal Code (Act XLV of 1860) by the Criminal Law Amendment Act, 1958 (Act No. XXXIV of 1958), by the National Assembly on 2nd September 1958, and received the assent of the President on 19th September 1958. The newly added section had to come into force at once. It would be pertinent to point out that no consequential amendment was made in the, cond Schedule of the Criminal Procedure Code. Therefore, the question, that would arise for determination is, as to whether, the learned trial Magistrate was competent to try the appellant?

5. Section 28 .of the Code of Criminal Procedure reads as under :‑ "Subject to the other provisions of this Code, any offence under the Pakistan Penal Code may be tried‑ (a) by the High Court, or (b) by the Court of Session, or (c) by any other Court by which such offence is shown in the eight column of the Second Schedule to be triable." The High Court or the Court of Session could take cognizance of an offence under section 364‑A of the Pakistan Penal Code by virtue of sections 194, and 193 of the Code of Criminal Procedure, respectively, provided the appellant was properly committed to stand trial before them. There appears to be no power to the Magistrate to try the of an offence, which is punishable with death or transportation for life, or whore the imprisonment can .extend for a period of fourteen years especially when it not shown to be triable by him in the eighth column of the Second Schedule.

6. A question with respect to the trial of a new offence, under section 153‑B, created in the Penal Code for which no forum or, procedure was provided in the Second Schedule to the Criminal Procedure Code, came up for decision before their Lordships of Dacca. High Court in Manzoor Hussain v. The State (P L D 1965 Dacca 348). After discussing the relevant case‑law it was held that the Magistrate 1st Class; Nagpur;, could not try' an offence under the aforesaid section, which was triable only by the High Courts or Courts of Session:

7. I am in agreement with the view of their Lordships and held that the trial of the appellant is illegal. He has been erroneously convicted by the Sub‑Divisional Magistrate for the latter had no jurisdiction to hear the case; as the offence had not been shown in the eighth column of the Second Schedule of the Code of Criminal Procedure to, be triable by him. I have, there fore, no hesitation in setting" side the conviction and sentence of the appellant.

8. Question arises, as to whether, the case should or should not be remanded for re‑trial. It would be noticed that the offence took place in July 1966, and the appellant was convicted on 30th September 1967. It appears from the record that throughout the trial, he, has been in the judicial lock‑up. He has thus been in jail for a little less than five years. Thus con sidering the fact that the appellant has already suffered sufficient ly, while, allowing his appeal, I would not order‑ his retrial. He shall 'be' set at liberty forthwith, provided, hers not required to be detained in any other case. Appeal allowed.