P L D 1968 Supreme Court 259 (PLP)

HAMOODUR RAHMAN, J.‑This appeal by special leave is directed against a judgment anti order of a Division Bench of the High Court of West Pakistan, Lahore, setting aside in its writ jurisdiction an order passed by the Commissioner, Rawalpindi Division, on the 11th August 1964, referring under section 3 (i) of the West Pakistan Criminal Law (Amendment) Act, 1963, the question of the guilt or innocence of the appellant before us, in respect of an offence alleged to have been committed under section 363 of the Pakistan Penal Code, to a Tribunal under the said Act. The circumstances in which this reference came to be made are briefly as follows On the 6th June 1964, Mst. Fahmida Begum, a minor girl, aged about 7 or 8 years, was kidnapped from Hansraj Street, Rawalpindi where she was playing with her friend, Mst. Samina. She was taken to a grove of trees on the bank of a Nullah in the vicinity of Dhok Khambah (Dhok Tahlian) where she was ravished and then left on the Murree Road, by the kidnapper. She was found later near bazar Talwaran by Bashir Ahmad, a relative, and was brought home: She lodged an information at the Police Station at 11‑30 p. m. of the same day. In the First Information Report the accused was not named but it was said that the girl had seen him once or twice before in her locality and would be able to recognize him if she saw him again. On this report a case under sections 363, 366 and 376 of the Pakistan Penal Code was registered and the respondent was arrested on the 8th June 1964. He was ultimately sent up for trial before a Section 30 Magistrate at Rawalpindi on the 30th June 1964. During the pendency of the trial, after the statements of the girl and of two doctors had been recorded, the Senior Superintendent of Police, Rawalpindi moved the District Magistrate to take steps to have the case under section 363, P. P. C. referred to the Tribunal under section 3 of the afore‑mentioned Act. This was done and the Commissioner on the 11th August 1964, directed that the case be referred to a Tribunal. The respondent then moved the High Court on the 2nd of September 1964, to have the order of reference quashed. on the ground that a graver offence cannot legally be split up and reduced to a minor offence, simply to confer jurisdiction on a particular Court or Tribunal. According to the contentions of the respondent, the words "a case" in subsection (2) of section 3 of the West Pakistan Criminal Law (Amendment) Act No. VII of 1963, meant "the whole case" pending in a Court and not only a part of the case where a graver offence is also alleged and such graver offence is not included in the Schedule to the said Act. The High Court, relying upon its own Full Bench decision in the case of Khizar Hayat and others v. The Commissioner, Sargodha Division and another (P L D 1965 Lah. 349) upheld this contention, as it considered itself bound by the decision of the Full Bench, and set aside the order of the Commissioner. This Court granted leave to appeal to the Commissioner because leave to appeal had already been granted from then decision of the High Court in the Full Bench case. The appeal in that case sub‑nominee Commissioner, Sargodha Division and another v. Khizar Hayat and others (P L D 1966 S C 793), was decided by this Court on the 14th July 1966, and the decision of the Full Bench of the High Court was reversed. The question now is whether the present case is covered by that decision. The learned counsel appearing for the respondent contends that it is not, for, the specific q1jestion raised by him did not come up for consideration in that case. In the above‑mentioned. case 6 persons were charged with offences punishable under sections 363, 366, 368 and 376 of the Pakistan Penal Code, in respect of a girl, allegedly aged about 14 years. They were sear 3:p for trial before a Magistrate but subsequently, the Commissioner, Sargodha Division, referred the question of the guilt or innocence of the accused therein in respect of all the offences alleged against them, for determination by a Tribunal under the Act of 1963. This order was challenged in the High Court. But a learned Single Judge referred the following question for decision to a Full Bench: "If a person is accused of more than one offence some of which are included in the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963, and some are not so included and the evidence in proof of those offences is partly or wholly common, is it permissible for the Commissioner to refer those offences which are included in the Schedule to a Tribunal, leaving the other offences to be dealt with by the Court under the Criminal Procedure Code, 1898." The Full Bench, by a majority of two to one, answered the reference as follows: "The Commissioner, acting under section 3 of the Criminal Law (Amendment) Act, has no power to sub‑divide a case in the manner postulated, and in the alternative, that even if he be deemed to have such a power, it would be contrary to all known principles of natural justice to do so." The learned Judge who dissented from the majority view, was of the opinion that the Commissioner was competent to refer the offences which are specified in the Schedule to a Tribunal in accordance with section 3 of the Act, leaving the other offences to be dealt with by the Courts under the Criminal Procedure Code, even if the evidence in proof of the offences may be partly or wholly common. This Court, unanimously, took the view that the First Schedule to the West Pakistan Criminal Law (Amendment) Act of 1963 "is not framed on a basis of categories, but is to be treated as an enumeration ad hoc of the particular offences which the West Pakistan Legislature has directed should be referable by the Commissioner under section 3 to a Tribunal. It is in that sense that it should be understood and applied." On the basis of this principle, this Court came to the conclusion that the Commissioner "may withdraw cases falling under specified sections from the jurisdiction of the ordinary Courts and once he does that validly, the ordinary Courts cease to have jurisdiction to try those offences" With regard to the question as to what would happen to the other offences of more aggravated nature falling in the same category, it was pointed out that in such cases `after withdrawal of the offence under section 363, P. P. C. from the jurisdiction of the Magistrate, further proceedings in respect of other offences, arising out of the same set of facts, should be stayed, until the decision in the case withdrawn and referred to the Tribunal, is reported to the Magistrate and the prosecuting agency makes known its intention with regard to such other offences. It would be at that stage that the plea of autre fois acquit or convict, as the case may be, could appropriately be raised for adjudication. In coming to this conclusion, this Court had also taken due note of the fact that; "It is well‑recognised that an offence is in its nature indivisible, whether it consists of a single act or of a series of acts, or whether those acts are performed simultaneously or at different times. There is an obligation upon the Courts to see that upon any given set of facts, the trial should proceed in respect of the most serious offence that is constituted by those facts. Where this is not done, an attempt later to prosecute on the same set of facts for a more serious offence, which could have been, but was not charged in the first instance, may be met with the plea of double jeopardy. It is for a party interested to claim before a Court that the case to be placed before it should be for the most serious crime which the facts constitute, prima facie. The Court is empowered, suo motu, to amend the charge after receiving evidence so as to extend the accusation to cover the full crime therefrom appearing. But such an action could not be taken in the present case by the. Tribunal, to which, by assumption, the offence punishable under section 363, P. P. C, may be referred. The Tribunal's jurisdiction being limited to that offence, its duty would be to ascertain the facts in relation only to that offence, and to pronounce a verdict thereon." The learned counsel for the respondent has, however, contended that on the facts alleged in the Fist Information Report in this case, no offence under section 363, P. P. C, could possibly be said to have been committed, for, in accordance with the principle indicated in the judgment of this Court in the passage last cites the only offence in respect of which the respondent could have been tried would have been under section 366, P. P. C. which was a non‑Scheduled offence. The learned Advocate‑General, on the other hand, has pointed out that the arguments that are now being advanced, are precisely the same as those advanced on behalf of the Commis sioner in Khizar Hayat's case but they were not accepted either by the High Court or by this Court. It seems to us that the contention of the learned counsel for the respondent is untenable, for, the Criminal Procedure Code itself clearly contemplates by subsection (3) of section 235, Cr. P. C. that where "several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts" but subject to the requirements of section 71 of the Pakistan Penal Code which is as follows; "Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it to so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences." It would thus appear that where several acts of which one or more than one would, by itself or themselves constitute an offence, although when combined they may constitute a different offence, there can be a trial for each of such offences. Thus if commits house‑breaking with intent to commit adultery and also commits adultery in that house he may be separately charged with and convicted of both the offences under sections 454 and 497, P. P. C. But the accused, if found guilty, cannot be given a more severe punishment than that which the Court trying him could award for any one of such offences. Thus there appears to be no bar in the Code of Criminal Procedure to charging or trying any person for as many offences as the acts committed by him are found to have constituted, although an ordinary criminal Court would normally not do so, but would charge him in respect of the most serious offence that is constituted by those acts. It is, no doubt, true that the lesser offence will inevitably in every case be included in the more aggravated form of the offence. But it cannot, for this reason, be said that the lesser offence has not been committed where the offence of a more aggravated nature has also been committed. Thus an offence of kidnapping simpliciter which is punishable under section 363, P. P. C. does form a necessary ingredient of the offences under sections 364, 364‑A, 365, 366 and 367, P. P. C., yet it is not difficult to appreciate that the offence under section 363, P. P. C. may by itself, be treated as a separable offence, for, it is committed whenever any minor is removed from lawful guardianship. Thus, in the present case, as soon as the appellant took the girl away on the false pretext of giving her the ghee purchased by her father, the offence under section 363, P. P. C. was committed. But when he raped her, he committed also the offences under sections 366 and 376, P. P. C. But, nevertheless, he committed all the three offences and could have been tried for all of them although under section 71, P. P. C. he could only a punished with one sentence in respect of the severest offence committed by him. Section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, has since been amended by the West Pakistan Ordinance No. XV of 1966, published in the Gazette of West Pakistan on the 27th April 1966, which has inserted a sub section (1‑A) to section

3. This subsection is to the following effect "(1‑A). Where the Commissioner decides to refer, under the provisions of subsection (1), the question of the guilt or innocence of any person to a Tribunal, and such person is accused of a scheduled offence, as well as one or more offences not specified in the First Schedule (whether committed in the course of the same transaction in which the scheduled offence was committed or otherwise), only the question relating to the scheduled offence shall be referred to the Tribunal, and the offence not specified in the First Schedule shall be dealt with as if this Act were not in force." The question has, therefore, now been fully set at rest that, such a reference of one of the offences which is a scheduled offence is competent. For these reasons we are of the view that this appeal must be allowed and accordingly allow the same. The Magistrate will now follow the procedure indicated by this Court in the case of Khizar Hayat in respect of the non‑scheduled offences. S. A. RAHMAN, C. J.‑While agreeing with the judgment proposed to be delivered in this case by my learned brother, Hamoodur Rahman, J., I feel it necessary to make one or two observations. As has been brought out clearly in the judgment, in cases of the kind under consideration, the result may well be that the Tribunal may deal with a lesser offence but later on the Courts would be powerless to proceed with the graver offence, of which the lesser offence was a part. The policy of the law undoubtedly, as prevalent in the ordinary Courts, ‑ is that where a series. of acts constitute more than one offence, the accused should be tried for the more serious offence. However, the law now contemplates the diversion of the less serious offence to a parallel jurisdiction with results that cannot be described as entirely satisfactory. The procedure is fraught with the potentiality of mischief, insofar as it is possible that in certain cases extra‑legal or extra judicial considerations may prevail, in sending a case to the Tribunal under a lesser offence, rather than having the case tried for a more serious offence in the ordinary Courts. This opens up possibilities of favouritism and though one may presume that the officers concerned would always try to act impartially, it is not altogether inconceivable that pressures may be brought on them, whether political or otherwise, to take a line which might either favour or prejudice a prosecution for the graver offence. An element of discrimina tion thus appears and this is a matter which may engage the serious attention of the legislative authority. In my humble opinion, either the whole group of cognate offences should be referable for trial to a Tribunal or in cases where a more serious offence can be spelt out of the facts, which is beyond the jurisdiction of the Tribunal, it should be laid down as a matter of policy that such cases would invariably be allowed to remain with in the jurisdiction of the ordinary Courts. A copy of this judgment may be forwarded to the Chief Secretary of the Provincial Government for such action as may be deemed fit. A. H. Appeal allowed.