P L D 1968 Lahore 1455 (PLP)

MUHAMMAD AKRAM J.‑

The following two questions raised in Writ Petition No. 330 of 1965, Muhammad Afzal and another v. Government of Pakistan and another, have been referred to this Full Bench:‑‑ "(1) On a true interpretation of section 25 of the West Pakistan Criminal Law (Amendment) Act (VII of 1963), has the accused person a right to be represented before the Commissioner at the time he is going to refer the case to the Tribunal In the exercise of the powers vested in him under section 3 of the Act? (2) Is it permissible to read Into the provisions of section 3 of the Act, the principle of natural justice and rules of judicial procedure, such, for instance, as that which require that the person sought to be prejudicially affected shall have an opportunity of being heard." Substantially the same questions of law also arose in another Writ Petition No. 592 of 1964, Noor Muhammad and others v. The Commissioner, Surgodha Division, Sargodha and others and the following question was more compendiously formulated by a Division Bench of this Court for reference to the Full Bench:‑-- "Is it necessary for the Commissioner to hear the accused before passing an larder of reference under section 3 of the Act?" Similar questions were also raised in four other Writ Petitions Nos. 329 of 1965, 501 of 1965, 1663 of 1965 and 1923 of 1966 for answer by this Full Bench. At first a Full Bench of three Judges was constituted to answer all these references together. However, at the hearing it transpired that in the meantime another Full Bench of three learned Judges at Peshawar in Rehmatullah Khan and others v. The State and others (1) had already given its derision on the same questions separately raised before it. Therefore, it was considered advisable to constitute a larger Bench for this purpose to give a more authoritative pronouncement in the matter. Hence these references were placed before us for answer.

2. Ordinary Criminal Courts are constituted under section 6 of the Code of Criminal Procedure (V of 1899) to try offences under the more familiar and regular procedure But the West Pakistan Criminal Law (Amendment) Act VII of 1963 (hereinafter called "the Act") was promulgated, with the avowed object, as its preamble professes, to "provide for more speedy trial and more effective punishment of certain heinous offences . . . . . and to take more effective steps for the eradication of corrup tion". This has introduced a special procedure for the trial of the specified offences by a Tribunal constituted under the Act. Section 3 of the Act provides for the manner by which the case against any person accused of an offence specified in the First Schedule to the tact, may be drawn into that system of administration of justice for disposal. Subsection (P L D 1965 Pesh. 162) of this section, relevant for our present purpose, is reproduced below:‑-- "Where, in the opinion of the Commissioner, it is inexpedient, in the interest of justice, that the question of the guilt or innocence of any person accused of an offence specified in the First Schedule, pr of any several persons so accused, be tried by a Court mentioned in section 6 of the C. P. C., 1898, the Commissioner may, notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law for the time being in force by an order in writing, with reasons therefore refer the question to the decision of a Tribunal, and require to Tribunal to come to a finding on the question after such enquiry as may be necessary and after hearing the accused." There is no positive indication in this subsection, and if at all the closing words above lead to the inference that although after the reference by the Commissioner, the Tribunal is bound to hear the accused but there is no such compulsion on him to hear him at the earliest stage at the time of or before referring his case for trial by the Tribunal. This inference, however, is by no means conclusive and in our opinion the answer to the questions raised before us can be found in the true interpretation to be placed on section 25 of the Act. This section, as the marginal note indicates, deals with the "Appearance of legal practitioners." It is reproduced below: "In proceedings under this Act before the Tribunal, the District Magistrate, the Commissioner and Government, the parties shall be entitled to be represented by a legal practitioner of their choice." The precise question then is‑When do the "proceedings under this Act" commence? Could it be said that the initial stage at which the Commissioner has get to make up his mind under section 3 of the Act to refer the case against an accused person to the Tribunal, is a part of the "proceedings under this Act" within the meaning of section 25? If the answer be in the affirmative, the accused has indeed a statutory right to be represented before the Commissioner, even at the initial stage, by a counsel of his own choice. This pre‑supposes a right of hearing secured to the accused before the Commissioner from the very outset.

3. The expression "proceedings" is not defined anywhere in the Act or the rules framed thereunder; nor in the Pakistan Penal Code (XLV of 1860) and the Code of Criminal Procedure (V of 1898). In the Cr. P. C in section 4 (1), "investigation" has been defined to include all proceedings under the Code for collection of evidence conducted by a police officer. Similarly, in section 4 (n) "judicial proceeding" is defined to include any proceeding in the course of which evidence is, or may be legally taken on oath. According to the Shorter Oxford Dictionary "proceeding" means to move onward, to go on with an action, a discourse, an investigation. It further means: "the investigation or carrying on of an action at law, a legal action or process, any act done by an authority or a Court of law, any step taken in a cause by either party." In Bhai Kirpal Singh v. Risaldar Ajai pal Singh and others (A I R 1928 Lah. 627) a Full Bench of the High Court of Judicature at Lahore observed that the words "suit, proceeding and other words of similar connotation have different meanings in different Statutes and it is not possible to lay down a general rule of interpretation which may be applicable to all cases. In each particular case the question has to be decided in reference to the context and that meaning is to be preferred which will best fit in with it." In Stroud's Legal Dictionary, Volume III, page 1561, it is pointed out that "proceeding" may mean according to the context either "any action" or "any proceeding in the action." According to Emperor v. Fazlur Rahman and others (A I R 1937 Pesh.52) the term "proceeding" includes: "the whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case until its disposal." According to Prem's Judicial Dictionary, Vol. III, page 1310 the word "proceeding" can be given a narrow or a wide import depending upon the nature and scope of an enactment in which it is used and in the particular context of the language of the enactment in which it appears. It may in some enactments mean an action or that which initiates an action and in other enactments it may also mean a step in an action." It is further mentioned therein that in Pryor v. City Offices Co. ((1883) 10 Q B D 504) the phrase `in any proceeding' was construed as a general phrase meant to cover every step in an action and is equivalent to the word `action'. In R. S. C. Order LXIV, rule 13, `proceeding' is used as meaning `a step in an action, i.e., semble a step `towards' and not `after judgment' Houlston v. Woodward (1885 Law Notes 15). In the American publication `Words and Phrases', at page 83, the term `proceeding' is defined: "The term `proceeding' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked" A `proceeding' would include every step taken towards the further progress of a cause in Court or before a tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment.

4. Coming to the provisions of this Act, the machinery of the law is put in motion, the moment the Commissioner starts taking cognizance of a case under section 3 in order to make up his mind as to whether it is expedient or not that the case against the accused should be referred to the Special Tribunal for disposal. Previously an order refusing to make the reference to the Tribunal, was open to revision by the Government under subsection (2) of section 19 before it was amended. But now after the amendment, by virtue of the proviso (1) to section 20 the power of the Government in this respect has been expressly curtailed and it is no longer authorised to set aside an order of the Commissioner refusing to refer the question of the guilt or innocence of any person to a Tribunal. Under section 28 (c), "no proceedings under this Act" are liable to be called in question in any Court or otherwise save in accordance with the provisions of this Act. Similarly section 32 lays down that no suit or other legal proceedings shall lie against any person for anything done or intended to be done in good faith under this Act. It cannot be suggested that the protection and the immunities afforded by these two sections of the Act do not extend to the Commissioner when acting under section 3 of the Act whether for or against the accused. In a recent case decided by the Supreme Court Mirza Mahmood Beg v. The Commissioner, Multan Division, Multan (P L D 1966 S C 701) it has been held that on the language of section 3 of the Act, it is open to the Commissioner to send for the records of the case pending in the committing Magistrate's Court, in order to satisfy himself whether it was a fit case for reference to the Tribunal under the Act, and that this power must be assumed to exist as an incidental power, necessary to enable him to fully discharge his responsibility under section 3 of the Act. Therefore, taking everything into consideration, in our opinion the expression "proceedings under this Act" within the meaning of section 25, is quite comprehensive so as to include the very first step taken by the Commissioner to put the machinery of the law under section 3 in motion and all the proceedings taken in pursuance thereto in which the parties are entitled to be represented by a legal practitioner of their choice as allowed by section 25 of the Act. It, therefore follows, that the accused has a right of hearing before the Commissioner in the course of the proceedings taken by him under section 3 of the Act.

5. On this interpretation of section 25 of the Act, we need not go into the next question as to whether on the wording of section 3 of the Act, either by implication or on the principles of natural justice, it was necessary for the Commissioner to hear the accused before passing the order of reference to the Tribunal. It is not necessary for us to go into that question at all. But we might mention that, in this connection, after this reference to the Full Bench, the Supreme Court of Pakistan in Criminal Appeal No. 48 of 1966, the Commissioner, Lahore Division, Lahore v. Muhammad Akbar and another has remarked: "As at present advised, we do not think that the wording of section 3 of the Act, either directly or by implication, makes a hearing to the accused person, a necessary condition of the making of an order referring his case to the Tribunal."

6. In Manzoor Ahmad v. The Commissioner, Lahore Division and others (P L D 1964 Lah. 194) a Division Bench of this Court has remarked generally, without reference to section 25, that there is no provision in the West Pakistan Criminal Law (Amendment) Act, under which the accused has a right of hearing at the initial stage. The Court observed that this right cannot be claimed on the basis of any general principles of law for an accused has no vested right in the procedure to be followed for determining the question of his innocence or guilt. The next case cited before us in this connection is Writ Petition No. 251 of 1964 (Karachi Bench) Raider Shah and others v. The Province of West Pakistan and others. The learned Division Bench of this Court, in following Manzoor Ahmad's case, has held that the accused person does not have a vested right to be tried by the ordinary Court and repelled the contention advanced before it that under section 25 of the Act the accused has a right to be represented by an Advocate before the Commissioner before his case is referred to the Tribunal. But with great respect it may be mentioned that the assumption was not based on any discussion of the language used in section 25 of the Act. In Dilawar and others v. The Commissioner, Peshawar Division (P L D 1965 Pesh. 61) a similar contention advanced on behalf of the accused person was also repelled by a Division Bench at Peshawar. But in that case, too the attention of the learned Division Bench does not appear to have been drawn to the provisions of section 25 of the Act.

7. Now coming to the Full Bench case in Rehmatullah Khan and others v. The State and others to which we have referred in the very beginning. The Bench composing of the three learned Judges at Peshawar bad repelled a similar contention advanced before it on behalf of the accused person in the following short para:‑-- "The third point is, in substance, whether the petitioners were entitled under section 25 of the Act to be represented by a legal practitioner of their own choice before the Commissioner passed the order of reference to the Tribunal. This question was considered and answered in the negative by a Division Bench of this Court at Karachi in Hyder Shah v. The Province of West Pakistan Writ Petition No. 251 of 1964, decided on 3rd of September 1964, and I respectfully agree with this conclusion, though for somewhat different reasons. The first is that an order of reference to the tribunal cannot be considered to be a proceeding before the tribunal within the meaning of section 25 of the Act. Secondly, section 19 (2) of the Act provides that Government may within sixty days of an order passed by the Commissioner under section 3 referring the case to a tribunal revise any such order, and section 25 is clear on the point that in all proceedings before the Government the accused is entitled to be represented by a legal practitioner of his choice. Provision has therefore, been made by the Act for representation by a legal practitioner at a more appropriate stage, namely, when the reasons even by the Commissioner for the reference are available. Thirdly, it appears to me that the order in which the various authorities are mentioned in section 25 indicates a definite sequence, and the first to be mentioned is the tribunal." On the face of it the reasons for the decision by the Karachi Bench in Haider Shah v. The Province of West Pakistan did not impress the Full Bench, which proceeded to base is conclusions on different reasons. But with due deference end utmost respect, it is submitted that none of the three reasons on which the decision by the Full Bench is resting appears to us to be 8 tenable on a fuller examination. The question is not as to whether an order of reference to the Tribunal can be considered to be s "proceeding before the tribunal!' within the meaning o section 25 of the Act. We have to gee as to whether the reference made by the Commissioner can be properly described as a proceeding under this Act before the "Commissioner" and not the "Tribunal" within the meanings of the section. In the opinion of the learned Full Bench section 25 is clear on the point that in "all" proceedings before the Government the accused is entitled to be represented by a legal practitioner of his choice On the sane interpretation of section 25 of the Act, one ms as well ash, then why not so in "all" proceedings before the Commissioner? Further, according to the Full Bench provision exists fn the Act for the representation of the accused by a legal practitioner before the Government on revision at a "more appropriate stage", when the reasons given by the Commissioner for the reference are available. But it hardly needs any argument to show that a hearing in revision is not the same thing as the right of hearing at the initial stage on the original side. As regards the third reason which impressed the Full Bench, we feel that nothing depends on the mere sequence in which the various functionaries are arranged in the section, and no adverse inference can be drawn from it. The argument does not take notice of the proceedings, say for instance, taken for keeping the peace against any person started by the District Magistrate. Under sections 13, 14 and 15 of the Act he is bound to hold the enquiry in the presence of the person concerned and to provide an adequate opportunity to him to show cause against the action proposed to be taken against him. Similarly on revision made by the Commissioner, under subsection (2) of section 18 of the Act, the Government may be called upon to intervene even before the reference has actually reached the Tribunal. Therefore, no special significance can be attached to the sequence in which the names of all the functionaries are put together in section 25 of the Act.

8. From the above it follows that none of these cases cited before us on behalf of the learned counsel for the respondent was decided on a true and comprehensive interpretation of section 25 of the Act.

9. To sum up, therefore, our answer to the first question referred to us is that under section 25 of the West Pakistan Criminal Law (Amendment) Act (VII of 1963) the accused person has a right to be represented before the Commissioner while he is considering the question of referring his case for trial by the Tribunal. In view of this decision by us, the second question does not at all arise and need not be answered.

10. All these cases shall now be returned to the Division Bench for disposal in accordance with law. K.B.A Reference answered.