P L D 1965 (W (PLP)

FAIZULLAH KHAN, J.-In this writ petition Ahmad Khan challenges the validity of the order of the Commissioner, Rawalpindi Division, Rawalpindi, respondent No. 1, under which he, acting under section 3 of the west Pakistan Criminal Law (Amendment) Act, 1953 (hereinafter to be referred to as the Act), referred to the Tribunal the guilt or innocence of Bahadur Khan son of Mehr Khan, Muhammad Aslam and Muhammad Ashraf sons of Rabnawaz, and Mst. Fateh Khatoon, wife of Bahadur Khan, for the offence under section 302, P. P. C.

2. The admitted facts, giving rise to this writ petition, briefly are that originally a case under sections 328/366/304, P. P. C., was registered against the four accused, referred to above, for complicity in the abduction and causing the death of Mst. Sahibu daughter of Ahmad, resident of Dhurnal by poisoning her. Later on, the offence under section 304 was altered to section 302, P. P. C. In the writ petition, however, the petitioner, who is brother of Bahadur Khan, accused, has erroneously described the offence under section 302, P. P. C., as an offence under section 304, P. P. C. The District Magistrate made recommendation to the Commissioner Rawalpindi Division that the case against the four accused under sections 302/ 328/ 366 be referred to the Tribunal under the Act. The Commissioner on scrutiny found that the offences under sections 328 and 366 being not listed in Schedule I could not be referred to a Tribunal. He, therefore, drew the attention of the District Magistrate to this fact and asked him "to consider the matter in the light of above observations and to advise the police to put up amended challan." On receipt of this communi cation the District Magistrate dropped the charges under sections 328/366 and the case was sent back to the Commissioner for referring the guilt of the accused to the Tribunal for the offence under section 302, P. P. C. only. The Commissioner, acting under section 3 of the Act, referred the question of the guilt or innocence of the accused on the charge under section 302, P. P. C. to be tried by the Tribunal. The impugned order of the Commissioner is assailed on the following two grounds listed in para. 16 of the writ: (a) That the sections under which the accused were charged are not included in the Schedule and the Commissioner had no authority or jurisdiction to refer the case under these sections and he in, order to assume jurisdiction, directed the police to cancel the charges. (b) That the directions of the Commissioner are absolutely mala fide and are based on the misrepresentation of the police.

3. S. Masoom Shah, learned counsel for the petitioner's principal challenge against the impugned order as that under section 3 of the Act the Commissioner could validly refer to the Tribunal for decision the cases of those accused when all the offences of which they were charged were mentioned in Schedule and when some of the offence or offences 'of which they were charged were not mentioned in Schedule I then in that case the Commissioner was not empowered to pick and choose and refer the offence or offences enumerated in Schedule I and leave the other charges to be tried in criminal Courts or to direct that those charges should be dropped. In paraphrase, the argument boils down to this that where accused are charged for more than one offence some of which are listed in Schedule I and as such can be validly referred to the Tribunal, but the other offence or offences cannot be made a subject of reference to the Tribunal, then in that case none of the offences, even if it falls in Schedule I, can be validly referred by the Commissioner under section 3 of the Act to the Tribunal. The learned counsel tried to suggest that since there was nothing in the Criminal Law Amendment Act or in the Rules framed. thereunder which empowered the Commissioner to split the charges so as to refer the charge which was listed in Schedule I, therefore, in cases where some of the offences are not mentioned in Schedule 1, the cases cannot be validly referred to the Tribunal. The argument in my view is wholly fallacious and cannot be sustained, in that it assumes that there is statutory provision in the Act or the rules framed thereunder that where the accused are charged of several offences and all the offences are not mentioned in Schedule I, the Commissioner cannot refer the case to Tribunal even for the offences which are mentioned in the Schedule.

4. The learned counsel tried to suggest that it was cardinal principle that all offences, which are committed in the course of the same transaction, must be made a subject-matter of one trial.

5. Mr. Sher Bahadur Khan, Additional A.-G., on the other hand, argued that under section 3 of the Act the Commissioner was empowered to refer to the Tribunal for decision the guilt or innocence of the accused only for the offences listed in Schedule I and in cases where the accused were charged of several offences some of which could not be validly referred to the Tribunal the Commissioner was competent to refer the guilt or innocence of the accused to the Tribunal for those offences which are mentioned in Schedule I and the remaining charges can be tried in criminal Courts. The learned A. A.-G. contended that when the Commissioner had the power to refer the guilt of the accused on the charges mentioned in the Schedule, he had the power in cases where the accused was charged of some offences which were not mentioned in the Schedule I to split up the charge and refer that charge or charges which were mentioned in the Schedule and permit the remaining charges being tried in the ordinary criminal Court. It was argued that the power of dropping or splitting the charges was employed in the circums tances of the case, and that at any rate, the accused could not make a valid grievance of the fact that the accused had been spared the jeopardy and expenses of trial by criminal Courts by dropping the charges under sections 328 and 366, P. P. C. altogether.

6. After giving the arguments addressed at the Bar my, anxious consideration, I have formed the opinion that there is no' merit whatsoever in the contention that since two of the three A offences could not be validly referred to the Tribunal under section 3 of the Act, therefore, the reference of the offence of murder, which could be validly referred to the Tribunal, was also invalidated. It is one of the cardinal rules of construction that where an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employ such means which are essentially necessary to its execution. This cardinal rule is based on the doctrine of "implied powers" which in turn is embodied in the maxim "Quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non potest". The full and true import of this maxim has been lucidly expressed in Fanton v. Hameton (11 Moo. P C c. 347), which is as follows:- "Whenever anything is authorised and especially if, as matter of duty, required to be done by law, and it is found. impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment. But, if, when the maxim comes to be applied adversely to the liberties or interests of others, it be found that no such impossibility exists, that the power may be legally exercised without the (sic) doing that something else, or even going a step further, that it is only in some particular instances, as opposed to its general operation, that the law fails in its intention unless the enforcing power be supplied, then, in any such case, the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus omissus." I may also extract the following passage from the decision of Muhamrnad Fazlul Rahman v. Custodian (E. P.) (A I R 1956 Hyd. 91): - "when the Evacuee Property Act has conferred jurisdiction upon the Custodian to secure and administer evacuee property, it impliedly also grants powers to take possession in proper cases of evacuee property though it be joint property." There is another aspect of the case and it is since the Act confer jurisdiction on the Commissioner to refer the question of guilt of the accused for the offences detailed in Schedule I to the Tribunal, it carries with it by implication the power of doing all such acts or employing such means as are necessary for its proper execution, namely, in the instant case, to split up the charges or drop such charges altogether which were not triable by the Tribunal and to refer only such offence or offences which are so triable. Reference may be made to R. v. Twyford (1836 S A & E 430),I wherein it was held that: "An Act which gave justices power to require persons to take an oath as special constables and to inquire into an offence was impliedly held to give them jurisdiction to apprehend the person who unlawfully failed to attend before them for that purpose." I may profitably refer to the decision in Ex. p. Martin. ((1879) 4 Q B D 212) in which it was held that "the power to grant an injunction carried with it the power to punish disobedience of it." This decision in my view is a very extreme case which went to the length of punishing the disobedience of the injunction where in the body of the Act the disobedience was not in so many words stated to constitute an offence.

7. There is another aspect of the case and it is, that assuming without holding that there is omission in the Act, authorising the Commissioner to split the charges or to drop some of the charges which cannot be properly drawn for reference to the Tribunal, the Courts in such a situation are not only empowered to modify the language of the Act to give effect to the E manifest and undoubted intention of the Legislature, but the Courts are under statutory obligation to supply the omission with a view to preventing the defeating of the very object of the Act. I am fortified in this view by the high authority of the Supreme Court reported in Muhammad Amir Khan v. Controller of Estate Duty (P L D 1961 S C 119). Kaikaus, J., delivering the judgment for the Supreme Court, summed up the discussion at page 143, thus: "But while we reject this contention of the Attorney-General we find force in the other two contentions. We are satisfied that this is a case where the Court can modify the language of an enactment. It will be observed that there cannot be the slightest doubt in the present case as to the intention of the Legislature. In fact, it is admitted on behalf of the appellants that the failure to make a consequential amendment in section 57 could only be due to a slip. After providing that the Controller could determine value subject to an appeal to the Appellate Tribunal the Legislature could not possibly have intended that duty should be paid only on the account which was filed by the accounting party itself. All that has happened is that the draftsman failed to refer in section 57 to the provisions relating to determination in accordance with the amended Act. That we can modify the language of an Act to give effect to the manifest and undoubted intention of the Legis lature is a proposition which is well supported by authority and well justified in reason. As stated in "Craford on Statutory Construction" (section 201, p. 348): If the true meaning of the Legislature appears, from the entire enactment, errors, mistakes, omissions and misprints may be corrected by the Court, so that the legislative will may not be defeated. As a result, spelling, grammar, numbers and even words, may be corrected. This, as already stated, is simply making the strict letter of a statute yield to be obvious intent of the Legislators. But it must clearly, or at least with reason able certainty, appear that the error is in fact one before the Court will be justified in making the proper correction or amendment or the Court will invade the province of the Legislature and exercise legislative power. But when satisfied of the error, the Court may make the necessary correction. In accord with this principle, an erroneous description may be made to describe the thing actually intended or a misnomer made to name the thing really meant. In Maxwell's Interpretation of Statutes the rule is thus stated on p. 229, 1953 Edition: `where the language of the statute in its meaning and grammatical constructions, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconv enience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.' In Salmon v. Duncombe and others (11 A C 634) their Lordships of the Privy Council said `It is however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used. And they have set themselves to consider, first, whether any substantial doubt can be suggested as to the main object of the Legislature, and, secondly, whether the last nine words of section 1 are so cogent and so limit the rest of the statute as to nullify its effect either entirely or in a very important particular."

8. This brings me to the argument which was tried to be raised that it was cardinal principle of criminal jurisprudence that all the charges committed in the same transaction should be tried together with a view to preventing the accused from running gamut of different trials. The argument is not only erroneous but opposed to the provisions of the Cr. P. C., namely, sections 233 to 240, which deal with joinder of charges. These sections contemplate that there should be a charge for each distinct offence and that it should be formulated with precision; that the precise charge framed is to be tried, and tried separately, as contemplated by section 233, except in cases mentioned in sections 234 to 236 and section

239. It will be convenient here to read section 233, which runs thus "For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239." It will be manifest from reading the language of the section that it has two parts and each part lays down a general rule. The first part lays down that for every distinct offence of which any person is accused there should be a separate charge, and the second part lays down that every such charge shall be tried separately, except the cases mentioned in sections 234, 235, 236 and

239. It will therefore be plain that criminal cases cannot, like civil suits, be consolidated, and tried together on the same evidence, except within the limits as to the joinder of charges laid down in the Criminal Procedure Code (see Emperor v. Chamask Lal (1941 Bom. 156) ). Again, sections 234 to 239 are merely permissive and not mandatory, i.e., it is for the prosecution to try the accused on different offences in one trial as provided by those sections, but in case the prosecution decides to split the charges and try him separately on those charges the accused cannot insist on joinder of charges.

9. It follows from the above discussion that the reference by the Commissioner of the charge against the accused for offence under section 302, P. P. C. and dropping the other two offences cannot be called in question. In the result, the writ petition fails and is dismissed with costs. The cost is assessed at Rs.

200. K. B. A. Petition dismissed.