1968 P Cr (PLP)

Mir Muhammad Tahir was brought to trial before the Sessions Judge, Kalat, in two separate cases, committed by Sub-Divisional Magistrate, who framed a 'charge under section 304, P. P. C., in each case. The Sessions Judge altered the charge to section 302, P. P. C., in each case. Before the commencement of either trial, the petitioner pleaded a bar to the jurisdiction, on the footing of a provision in the Quetta and Kalat (Civil and Criminal Law) Ordinance, 1965, contained in subsection (2) of section

3. The whole of section 3 is reproduced below: - "3:-(1) Notwithstanding anything to the contrary contained in any law in force in West Pakistan other than this Ordinance or the Conciliation Courts Ordinance, 1961, an offence specified in the Second Schedule shall be tried in the manner provided b) this Ordinance and not otherwise. (2) The District Magistrate shall have exclusive jurisdiction over all scheduled offences committed within his District, whether committed before or after the coming into force of this Ordinance, other than any such offences pending for inquiry or trial before any Court at the time that this Ordinance comes into force; and where any scheduled offence triable under the provisions of this Ordinance is or appears to have been committed with a non-scheduled offence, the District Magis trate shall separate the scheduled offence from the non scheduled offence for the purpose of trial of the scheduled offence under the provisions of this Ordinance. (3) A District Magistrate taking cognizance of an offence under this section shall, after giving the parties an opportunity of being heard and after considering the objections, if any, to the appointment of the members of the Tribunal, as provided in section 6, refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of a Tribunal and require the Tribunal to come to a finding on the question after holding an enquiry in the manner provided in section 7, and after hearing the accused. (4) Where it appears to any Court enquiring into or trying any offence that such offence is scheduled offence triable under this Ordinance, it shall stay further proceedings in respect of such offence and refer it to the District Magistrate for disposal in accordance with the provisions of subsection (3). (5) An offence referred for decision under the provisions of the Frontier Crimes Regulation, 1901, or the West Pakistan Criminal Law (Amendment) Act, 1963, on or after the 10th of January 1964, or in which a conviction was recorded and the sentence awarded has not been served out or a revision application-was pending under the provisions of either of the; aforesaid enactments on or after the aforesaid date, shall notwithstanding any decision of any Court, be referred by the District Magistrate for decision to the Tribunal in accordance with the provisions of subsection (3): Provided that the District Magistrate may decline to refer any such offence to a Tribunal, if it appears to the District Magistrate that by reason of the accused having served out the major portion of his sentence or for any other sufficient reason, to be recorded in writing, it is inexpedient in the interest of justice to refer the offence to the Tribunal." The offence of murder appears in the Second Schedule, and falls to be tried under the aforesaid Ordinance if, inter alla, it is committed "in consequence of Siah-Kari" or "between the: hours of sunset and sunrise." The appellant was charged with the murder, first of his wife's alleged paramour and shortly after, of his wife, both committed on the night of the 11th December 1963. The suggestion of siah-kari finds support from the circumstance that the Committing Court framed charges under section 304, P. P. C., but the time of the occurrence is not doubted, and is sufficient by itself to place the offences within the Schedule. Committed proceedings in both cases were pending when the Ordinance came into force on the 18th March 1965. The Sessions Judge overruled the plea in bar, relying expressly (and somewhat ill-advisedly) on a Government notifica tion which purported to interpret the relevant provisions in the Ordinance, and set out the conclusion that an "offence pending for inquiry or trial at the time of the coming into force of the Ordinance is not to be referred for decision to the Tribunal." Revisions were moved before the High Court where a learned Single Judge interpreted the relevant provisions in subsections (2) and (4).of section 3 of the Ordinance as under :- (a) the power of the District Magistrate is taken away in respect of those cases which were pending for enquiry or trial before any Court at the time that the Ordinance came into force ; and (b) subsection (4) has reference to cases triable under the Ordinance which came up for trial after the passing of the Ordinance ; the application of this subsection is "subject to" subsection (2). Leave was granted to appeal to this Court to examine the validity of the argument that subsection (4) applied equally to a case which, on the date when the Ordinance came into force, was pending before a Court, so that such Court was under obligation to part with seisin of the case, and refer it to the District Magistrate who would take cognizance and act in compliance with subsection (3). When leave was granted, it was stated that the trials before the Sessions Judge had ended in conviction. At the hearing of these appeals we were informed that appeals against the two convictions were pending before the High Court. Mr. Riaz Hashmi, supporting the appeals has stressed the argument for the examination of which leave was granted. On careful consideration of the terms of subsection (2) aforesaid, we are satisfied that it has the effect of setting exhaustively the limits of the exclusive jurisdiction of the District Magistrate to take cognizance of scheduled offences, i.e., that the exclusive jurisdiction extends to cases of such offences, including those committed before the Ordinance came into force, but excluding such offences in the latter category as were "pending for enquiry or trial before any Court at the time that this Ordinance comes into force." Subsection (4) is not to be construed as having the effect of amending subsection (2) unless the result follows from clear expression or necessary intendment in either subsection or elsewhere in the Ordinance. As has been indicated in the judgment of the High Court, subsection (4) is susceptible of application, in its terms, o situations where a Court which is seized of an offence finds' that it possesses the incidents of a "scheduled offence," and thus falls within the exclusive jurisdic tion of the District Magistrate. But that exclusive jurisdiction does not extend to the small category of cases of scheduled offences which were pending for enquiry or trial when the Ordinance came into force. Consequently, subsection (4) can have application only to cases which come up before a Court for enquiry or trial after the coming into force of the Ordinance. This subsection cannot be construed to extend the exclusive jurisdiction of the District Magistrate beyond the limits set upon that exclusive jurisdiction by the statutory provision, i.e., sub section (2) by which it was created and conferred. Accordingly, on a true construction of the relevant statutory provisions, the view which found favour with the High Court must be upheld, and we accordingly dismiss these appeals. Appeals dismissed.