P L D 1967 Supreme Court 259 (PLP)

S. A. RAHMAN, J.‑The appellants in this case moved a petition for special leave to appeal from an order of the High Court of West Pakistan, by which the appellants' convictions under sections 148, 324, 325 and 302, Pakistan Penal Code, read with section 149, Pakistan Penal Code, and the sentences imposed thereunder by the trial Judge, were maintained. By order, dated the 4th of November 1965, a Bench of this Court declined to grant leave on the merits of the case. The contention was, however, raised that the trial of the appellants having taken place without the aid of assessors, was vitiated in law. The question being one of law, special leave to appeal was granted to consider it. The relevant facts are that the incident that led to the prosecution of the appellants took place on the 18th January 1963. They were committed for trial to the Court of Session, by order of the Committing Magistrate, dated the 6th June 1963. Till that time the Code of Criminal Procedure provided for trial of such cases by the Court of Session with the aid of assessors. On the 1st of April 1964, however, the Code was amended by Provincial Act, XVII of 1964 which changed the law so far as the Province of West Pakistan is concerned. As the result of the amendment, introduced into the Code by this Act, all trials before a Court of Session were ordered to be with the aid of a jury or by the Judge himself. Admittedly the instant case is not one which called for a jury trial. If therefore the new law governed the case, the trial without the aid of assessors by the Judge would be perfectly legal. Mr. Brohi, who argued the appeal, has maintained before us that Act XVII of 1964 was prospective in its effect and there were no express words in the Act, such as could make the relevant provision retrospective. He also contended that no necessary intendment to that effect could be spelt out of the language of the Act. As the accused‑appellants had been committed for trial before the amendment came into force, it is claimed that the appellants had acquired a vested right of trial with the aid of assessors, under the unamended Code. This right, according to the learned counsel, could not be taken away by the amending Act and he referred in this connection to section 6 of the General Clauses Act. The changes effected by the amending Act, it was argued, did not merely relate to procedure but affected substantive rights of trial by a particular forum, namely, the Court of Session, consisting of the presiding Judge and assessors. The constitution of the Tribunal, authorised to try the appellants had been changed by the amending Act. A number of authorities were cited by the learned counsel in support of this position. The first case to which our attention was drawn is Muhammad Sajjad and another v. The State (P L D 1961 S C 13). The learned counsel relied particularly on the observations at page 17 of the reported judgment to the effect that non‑compliance with the relevant provision in section 309 of the Code, although it might have the full aspect of illegality if no opinions at all were obtained from the assessors on any of the charges, yet if the non‑compliance is in respect only of a minor part of the case, the contravention would amount ordinarily to an irregularity. Such an irregularity, it was added, would not vitiate the conviction unless there was consequential prejudice to the person convicted. In that particular case, the learned Sessions Judge had obtained the opinion of the assessors, on the offence of murder, but had failed to question them with regard to the charge under section 323, Pakistan Penal Code, although the charge being in respect of the injuries said to have been caused to the eye‑witnesses, the opinion of the assessors on that charge was directly connected with the formation of a correct opinion about the credibility of the evidence. It was, consequently, found that the prejudice from the failure to question the assessors, with respect to the charge, was perfectly plain. The Court directed that the convictions be set aside and the case was remanded to the trial Court for retrial. Mr. Brohi also invited our attention to Raj Bahadur and others v. Emperor (A I R 1934 Oudh 409), in which it was held by a Division Bench of the Oudh Chief Court that in a case tried with the aid of assessors, the assessors form an integral part of the Court and any proceedings taken by the Judge, in the absence of the jurors or assessors, would be void and illegal. In that case, apparently, the trial Judge had inspected the site of occurrence, without the assessors being present, and had made an inspection note which had some bearing on the credibility of the witnesses. The learned Judges ruled the inspection note out of consideration and the part of the judgment, which discussed the inspection note, was also excluded from consideration. On the question as to the extent of retrospectivity to be given to an amending Act, the leading case of the Colonial Sugar Refining Company Ltd. v. Irving (1905 A C 369), was referred to. The facts of that case were that the appellants had disputed the rights of the Collector of Customs for Queensland to levy an excise duty, in respect of 6,700 tons of sugar. They brought an action against the Collector to recover the sum, they had deposited with him under protest. The writ in the action was issued on October 25, 1902. The Supreme Court of the State decided on September 4, 1903, that the Government was entitled to retain the duty and gave judgment for the Collector with costs. In the meantime the Judiciary Act, 1903, had been passed. It received the Royal Assent on August 25, 1903. By section 39 of this Act, it was provided that every decision of a Court of a State from which at the establishment of the Commonwealth, an appeal lay to the Queen in Council, shall be final and conclusive, except so fat as an appeal may be brought to the High Court of Australia. The appellants, being dissatisfied with the judgment of the Supreme Court of their State, applied to the Court for leave to appeal to His Majesty in Council. The learned Chief Justice thought that leave ought to be granted but the other Judge differed. In accordance with the Order in Council of June 30, 1860, the opinion of the Chief Justice prevailed and leave to appeal was granted. The Commonwealth Collector of Customs for Queensland then challenged the competency of the grant of leave, before the Privy Council. It was observed by their Lordships of the Judicial Committee that if the amendment concerned more than a matter of procedure, if it touched a right in existence at the passing of the Act, in accordance with a long line of authorities, the appellants would be entitled to succeed. The Judiciary Act, it was observed, was not retrospective by express enactment or by necessary intendment. It was found that the right vested in the appellants at the date of the passing of the Act, to appeal to His Majesty in Council and to deprive a suitor in a pending action, of an appeal to a superior tribunal, which belonged to him as of right, was a very different thing from regulating procedure. In principle, their Lordships saw no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, it was held, there was interference with existing rights, contrary to the well‑known general principle that statutes were not to b‑. held retrospective unless a clear intention to that effect is manifested. Learned counsel sought to strengthen his argument by reference to other decisions by Courts in the Indo‑Pak Sub Continent. In Akhtar v. The State (1), a learned Single Judge of the High Court of West Pakistan held in a case under the Goondas Act that proceedings instituted before the repeal of the 1951 Act, by Ordinance XXXV of 1959, could be continued before the tribunal set up under the old Act, by virtue of clause (e) of sub section (P L D 1961 Lah. 1049) of section 4 of the West Pakistan General Clauses Act, 1956, which is analogous to clause (e) of section 6 of the General Clauses Act, 1897. The tribunal envisaged by the new law consisted only of the District Magistrate, whereas the tribunal before which the proceedings started under the old Act, comprised of the District Magistrate as well as the Superintendent of Police of the district. In Srinivasachari v. The Queen (6 1 L R Mad. 336), the facts were that there was a trial of 'S' by a Sessions Court in December 1882, on charges, some of which were triable with the aid of assessors and others with the aid of a jury. Before the trial was concluded, the Code of Criminal Procedure, 1882, came into force. By section 269 of that Act, all such charges were to be tried by jury. By virtue of section 558 of the same Act, the provisions of the Act were to be applied, as far as may be, to all cases pending in any criminal Court, on the 1st January 1883. It was held by a learned single Judge of the Madras High Court that by virtue of section 6 of the General Clauses Act, 1868, the trial must be conducted by the rules of procedure in force at the commencement of the trial. A Full Bench of the Patna High Court in Banwari Gope and others v. Emperor (A 1 R 1943 Pat. 18), dealt wish a case which had been started before the Special Criminal Courts Ordinance (11 of 1942) was brought into force. It was hell that the Ordinance did not govern such cases, as the new provision could not govern such cases, as the new provision could not be given retrospective operation. The Magistrate had already taken cognizance under toe old law. There being nothing in the new Ordinance making it retrospective in effect, it was held that the procedure of the trial that had already started, could not be changed. It was observed that no person had a vested right in any course of procedure and so alterations in procedure were to be retrospective, unless there was good reason against it. The fact that the trial had already started under the old procedure, was considered sufficient reason to exclude the new law of procedure. The same Ordinance, namely, the Special Criminal Courts Ordinance, 1942, came up for consideration before a Full Bench of the Bimbay High Court in Shreekant Pandurang Ketkar and others v. Emperor (A I R 1943 Bom. 169). In that case the accused were arrested on the 6th of September 1942, and on the 5th of October, charge sheet was placed against their names. Some of the charges being exclusively triable by the Court of Session, on the 31st October, the Magistrate committed the accused for trial to that Court. Trial would have ordinarily taken place with a jury. On the 7th of December, the Government of Bombay made an order under section 5 of the Special Criminal Courts Ordinance, directing the Assistant Judge of Thana, who was Special Judge appointed under the Ordinance, to try the accused's case. The Ordinance had been applied to the Province of Bombay on the 26th October, that is, five days before the committal order. The Special Judge was to try the offences in a more summary fashion without a jury, as contrasted with an ordinary trial and the right of appeal from a decision was taken away, though there was a limited right of review by one of the High Court Judges, nominated by the Provincial Government. Beaumont, C. J., with whom Weston, J., agreed, held that the Ordinance was a piece of emergency legislation, introduced for the protection of public safety and the intention of the Ordinance clearly was, having regard to the context in which the words of the Ordinance were used, that the Legislature contemplated interference with existing vested rights. As the trial had not actually commenced in that case, when the law came into force, the order assigning into a Special Judge was held to be valid. The third Judge, who composed the Bench Divatia, J., observed that it may be taken as established a right of appeal, a right to be tried by jury and even a tip get bail, are substantive rights. He further posed the question as to, at what stage there would come into existence such vested rights as cannot be taken away by subsequent legislation. The learned Judge then expressed himself as follows. "The analogy of trial of civil cases on that point does not seem to me to be quite appropriate. As held in (1905) A C 369, it is quite true that the right to appeal would begin on the date of the trial of the civil suit, and to the same effect is the decision of the Calcutta High Court in 56 Cal. 512, in which it is observed that a suit, appeal and second appeal are really but steps in a series of proceedings connected by an intrinsic unity. When we come, however, to the application of this principle to criminal cases, the difficulty is that it is not in every criminal case that the trial begins when cognizance of the complaint is taken by a Magistrate. In cases which could be tried by a Magistrate, the trial may begin when cognizance was taken but in cases which are exclusively triable by a Court of Session, the trial does not begin unless and until an order of commitment is made. All the previous proceedings before the commitment are stages of enquiry at the end of which the accused may or may not be committed." Further, the learned Judge went on to say: "It is only if the accused is not thus discharged either under section 209 or under section 213, subsection (2), that the order of commitment to the Sessions Court is made, and thereafter the trial takes place. It is really when the trial begins that the right to be tried by a jury and the right of appeal might arise. Till then they are not acquired rights, because at any stage the accused might be discharged by the Magistrate." He, therefore, was of the opinion that if the law relating to the procedure of the trial was changed before the date of the actual trial, the accused was liable to be tried by the amended procedure as he had not acquired any vested right to be tried by the oriental law. He thought that if the law was changed after the trial begins, an accused might claim to be tried by the original law as the right had vested in him. In that particular case the learned Judges noted that the commitment had been made after the Ordinance had been promulgated and the trials under the Ordinance were upheld as legal. In Venugopala Reddiarv. Krishnaswami Reddiar (A I R 1943 F C 24), it was ruled that a right to continue a duly instituted suit, is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect. A right to continue an action well commenced under the old law was to be upheld unless taken away by the new law. Two cases were also cited from the post‑Partition Indian jurisdiction, by the learned counsel. They are: The State v. Ex‑Major P. K. Swamy (A I R 1953 Mad. 451) and Ram Singh v. Crown (A I R 1950 E P 25). In the first case, a learned Single Judge of the Madras High Court decided that "if an order had been validly passed, committing a case to the Court of Session, under the law then in force, a subsequent change in the law, would not divest the Court of Session of its jurisdiction to try it and the accused acquires a vested right to have the case continued in that Court and tried according to the law in force, on the date of the order of commitment." The East Punjab High Court decision concerned a case that had been sent to the Court of Session, under the provisions of section 37(1) of the Punjab Public Safety Act, at a time when the district concerned was declared to be a dangerously disturbed area. Before the trial in the Court of Session actually commenced, the district ceased to be a dangerously disturbed area and, therefore, the trial could take place under the ordinary provisions of the Code of Criminal Procedure. It was held that the Court of Session should continue the trial under the provisions of section 37, Punjab Public Safety Act, as the Court had been seized of the case and continued to be seized of the case, despite the change in the procedural law. It was remarked that the new law could not be applied to proceedings for which it did not purport to provide and to which it was otherwise clearly inapplicable. It was pointed out that a trial could not take place under the ordinary provisions of the Code, in the absence of a commitment which was absent in that case: because of the special procedure of the Punjab Public Safety Act. Finally, Mr Brohi placed reliance on Sugni Chand Dayaram Jatwani v. Pakistan (P L D 1961 S C 523). It was observed in that case at page 530 that the effect of section 6 of the General Clauses Act was that proceedings under the old law were to be continued and completed in the same manner, as if that law had never been repealed, as such proceedings carried their own law with them. The learned Attorney‑General for Pakistan and the Advocate‑General, West Pakistan suggested in the course of their arguments that assessors are not an integral part of the Court of Session and any law which abolishes them, would not alter the forum of trial. Learned counsel recognised however that the case of assessors would be distinguishable from that of jurors in this respect. The change in the constitution of the Court, so far as assessors were concerned, would be a matter of procedure only, according to learned counsel, and the new law would, therefore. be applicable to pending cases in which actual trial had not yet started. Reliance was placed in this connection on a judgment of this Court, reported as Abdul Mowla Bepary v. The State (12 D L R 100). It was laid down therein that the contention that the offences under the Foreign Exchange Regulation having been committed before the amending Act of 1957 came into force, the accused could not have been tried by a tribunal which had been constituted under the latter Act, was completely devoid of force, because no accused person has any vested right in procedure which is regulated by the law in force at the time of the trial. It is obvious that the time of the commission of the offence is not a decisive factor in determining the law which is to apply to its trial. Obviously, the trial would take place according to the procedure prevalent at the time the case is brought before a Court or a Tribunal. The case is, therefore, distinguishable from the instant case. Reference was then made to Kallpada Shaha v. The State (P L D 1959 S C (Pak.) 322), in which the facts were peculiar and the decision does not seem to be apt in the circumstances of the present case. Certain provisions of the Code of Criminal Procedure, as introduced by the West Pakistan Amendment Act of 1964, fell for consideration by a Bench of this Court in State v. Maulvi Muhammad Jamil (P L D 1965 S C 681). In that case, the respondents to the appeal were being tried for offences under section 420, Pakistan Penal Code, by a Magistrate of the First Class, at Dera Ghazi Khan, on a complaint. Some witnesses were examined in support of the complaint and then the accused's statements were recorded under section 342 of the Code of Criminal Procedure. The case was then adjourned for hearing, to examine whether the framing of a charge would be justified or not. In the meantime, on the let of April 1964, the West Pakistan Amendment Act, XVI1 of 1964, was promulgated. This did away with the right given by section 256 of the Code to the accused, to call for further cross examination, witnesses already examined, after the charge. The charge in that case was actually framed on the 11th June 1964. The accused's plea was then recorded and a date fixed for examination of the remaining prosecution witnesses. On a revision being taken to the High Court of West Pakistan by the accused persons, the High Court held that the right given by section 256 of the Code was a vested right which could not be taken away by the amending law. This view was challenged as erroneous by an appeal to this Court. It was ruled by this Court that, having regard to the obvious objective of the new procedure, of cutting down judicial delays and. preventing abuse of process, the new procedure was meant to apply even to pending cases and therefore if a person had been cross‑examined before the charge, be could not be recalled for cross‑examination, after the charge, under section 256 of the Code. In bard cases, it was pointed out, section 544 of the Code could be pressed into service, to recall such witnesses, if some material questions had been omitted to be put to him, when he was in the witness‑box. The principle was affirmed in the above decision that when the law is altered during the pendency of an action, the rights of the parties are to be 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 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 the procedural laws, the general principle is that alterations in procedure are retrospective unless there be some good reason against such a view. 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 touches 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. For this proposition, reliance was placed in that case on Maxwell on Interpretation of Statutes, 1962 Edition, pages 212, 216 and 217, Crawford on Statutory Construction, 1940 Edition, pages 568 and 646, Halsbury's Laws of England, Vol. 36, Third Edition, pages 423 and 426, Craies on Statute Law, Fifth Edition, pages 370 and 371 and Corpus Juris, Vol. 59, page 1174. The above formulation of the principles to such cases fairly sums up the legal position as envisaged by the decisions cited by both parties before us. The real question that falls for determination then is whether the new law manifests an intention to affect pending cases, and if so, to what extent. The general intent of the amending law, as has been pointed out in State v. Muhammad Jamil, is clearly to y provide for more expeditious trials and with that object in view, the new law seeks to do away with certain procedural provisions. It is in the light of this dominant intention that the point raised in this case is to be resolved. It may be at once conceded that if the trial in the case had already commenced before the promulgation of the new law, the trial ought to have proceeded under the old procedural rules.) This is conceded on behalf of the State. But this is by means the position here. Mr. Brobi forcefully contended that since the accused was committed for trial to the Court of Session, all the provisions of the unamended Code of Criminal Procedure, with regard to Sessions trials, were at once attracted to the case. But it does not appear to be correct to postulate that with the commitment itself, the trial of the case can be said to have started. The commitment, no doubt, is a sine qua non far jurisdiction to be assumed by a Court of Session, as is clear from the provisions of section 193 of the Code. It is also true that a commitment order once made can only be quashed by the High Court, on a point of law, under section 215 of the Code. Bu there may be cases in which the accused is either on bail when p the case is committed, or conceivably he may even escape from custody after the commitment and before the actual taking up of the case by the Court of Session. It would be inapt to say that trial had started in the absence of the accused, in the circumstances visualised. It is clearly only when the accused is brought before the Court to stand his trial, that the trial can b.‑ said to commence. Support is lent to this view by the fact that section B of Chapter XXIII of the Code is headed "Commencement of Proceedings" and section 271 of the Code, which has the sub‑title "Commencement of Trial" in the margin, reads as follows:‑ "(1) When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him and be shall be asked whether he is guilty of tire offence charged, or claims to be tried. (2) If the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon." It is apparent that at that stage, the Judge is sitting by himself, without the aid of assessors. He commences the trial as soon as the accused is brought before him and the charge is then read out in Court and explained to him. As provided by section 272 of the Code, the assessors come on the scene only if the accused refused to plead or pleads not guilty or claims to be tried. Till the trial commences within the meaning of section 271 of the e Code, in my judgment, no vested right accrues to the accused, to be tried according to the procedure laid down under the Code. If before that contingency arises, the Legislature intervenes and changes the procedure, there is no good reason why the new procedure should not become applicable to the trial. The trial in the present case started on the 11th of May 1963, where the amending Act had been promulgated on the 1st of April 1964 and judging from this point of view the trial ought to be upheld as legal. Judicial decisions, it is true, have attached a good deal oil importance to the opinion of the assessors when the trial takes place with their aid under the Code. The opinion of the assessors is, however, not binding on the Judge under the Code. As is pointed out above, the trial commences before the Court of Sessions, without the aid of assessors and if a contest is raised on behalf of the accused or is deemed to be raised, then the assessors are brought in, to assist the Judge to form his opinion. In this context, the presence or absence of assessors apparently relates to the mode of trial rather than to the constitution of the Court stricto sensu. The right of decision seems to be vested squarely in the presiding Judge in all circumstance. It is significant in this connection to note that the amending Act P contemplates after its enforcement, only trials by jury or by the presiding Judge and by an amendment of section 537 of the Code, any error, omission or irregularity in the charge or mode of trial, including any misjuinder of charges, would not invalid a trial. unless failure of justice has been occasioned thereby. Having regard to the objective of the new legislation, viz., cutting out of judicial delays and the provision specifically made in section 537 of the Code to the effect that irregularities in the mode of trial would not affect the validity of the trial, without proof of failure of justice, it seems that the intention of the amending Act clearly was that it should apply even to pending cases, committed for trial but in which trial had not yet commenced, within the meaning of section 271 of the Code. The case of a Magistrate taking cognizance of a case triable by himself, obviously stands on a different footing. It may be noted that it is not merely by the lodging of the complaint or the placing of the police report before the Magistrate that a trial is said to commence. The commencement of the trial takes place only when the Magistrate takes congnizance of the case and not earlier. Similarly, a trial before the Court of Session, does not begin with the order of commitment, but only when the accused is brought up for trial within the meaning of section 271 of the Code. As that stage had not yet arrived when the new law was brought into fore, it cannot be said that the application of the new Law would interfere with any vested right of the accused. Alternatively, even if it be conceded that a trial with assessors is not a mere matter of procedure, but goes beyond the scope of procedural rules, having regard to the general tenor and object of the new legislation and the indications furnished by the amendment of section 537 of the Code of Criminal Procedure, it is fairly clear that the intention of the Legislature was to affect cases committed for trial but awaiting trial. It is also to be remarked that no objection seems to have been taken on this ground, either before the trial Judge or before the High Court. The question of failure of justice in the circumstances of this case, does not therefore call for consideration. The only right that seems to have accrued to the accused by the commitment order in the instant case was to be tried by a Court of Session and that right has not been interfered with. though the mode of trial of the Court has been changed by the provision for elimination of assessors. As a result of the above discussion, I have reached the conclusion that the trial in the present case cannot be said to have been vitiated by the failure to call assessors for aiding at the trial. I would, therefore, dismiss the appeal. A. R. CORNELIUS , C. J.‑I agree. FAZLE‑AKBAR, J.‑I agree. HAMOODUR RAHMAN, J.‑I agree. MUHAMMAD YAQUB ALI, J.‑I agree.