P L D 1964 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑The facts leading to this petition under Article 98 of the Constitution in which the vires of the West Pakistan Criminal Law (Amendment) Act (VII of 1963), (hereinafter referred to as the Act) are challenged may, for the purposes of this order, be stated thus: On the night between the 26th and 27th of July 1962, Mst. Aisha and her daughter, Mst. Niaz Fatima, while asleep in their home in Kot Shah Sarwar Khan Maripura, Police Station Bhai Pheru, District Lahore, were ruthlessly murdered by three unknown assailants. On hearing the alarm raised by the unfortunate victims, out of whom the former had been given twenty‑two stab wounds and incised injuries and the latter sixteen similar injuries, the neighbours, including Mst. Irshad Begum P. W., selected at the spot. Some of them gave pursuit to the assailants but did not succeed in apprehending them. The names of the assailants and the motive for the commission of this heinous offence were accordingly not set out in the first information report lodged by Sharif P. W. at the police station on the following morning. In the investigation, which followed the registration of the case, Manzur Ahmad petitioner and three other persons, namely, Abbas Khan, Abdul Aziz and Mst. Nisaran, who had a motive to kill the deceased, were put under arrest, in the course of interrogation, the petitioner led to the recovery of a bloodstained cheddar and a pistol, while Abbas Khan led to the recovery of a knife allegedly used in the murder of Mst. Aisha and Mst. Niaz Fatima. In addition to these incriminating circumstances Mst. Irshad Begum P. W. succeeded in identifying Abbas Khan accused as one of the assassins in a parade held under the supervision of a First Class Magistrate.

2. Instead of allowing the case to proceed to trial under the Criminal Procedure Code, Mr. Sher Afzal, Commissioner, Lahore Division, referred it to the Tribunal under section 3 of the Act by the impugned order, which reads as under :‑ "In this case Mst. Aisha and her daughter Mst. Niaz Fatima have been killed. The offence took place at night and the offenders were not mentioned in the initial report. There are reasons to believe that the offence was committed by hired assassins. It is also reported that the accused persons are tampering with the witnesses in order to make them resile from telling the truth. The motive against the accused for the commission of the crime is strong. The case, if tried by a Magistrate, is not likely to stand the judicial scrutiny. Hence under section 3 (1) of the West Pakistan Criminal Law (Amendment) Act, 1963, I direct that the question of the guilt or innocence of the accused shall be determined by a Tribunal to be appointed by the District Magistrate, Lahore."

3. The petitioner feels aggrieved by this order on the follow ing grounds :‑ (i) That under Article 134 of the Constitution the Act under which the question of his guilt or innocence has been refer red to the Tribunal is invalid in so far as it is inconsistent with the provisions of the Criminal Procedure Code, which is an existing Central Law, within the purview of Articles 134 and 225 of the Constitution ; (ii) that the discretion vested by section 3 of the Act in the Commissioner to determine whether an accused person shall be tried by the ordinary law of the land or by a Tribunal under the Act amounted to excessive delegation of Legislative power and, as such, the provisions of the said section were illegal ; (iii) that the Commissioner should have given the petitioner an opportunity to show cause before he decided to refer their case to the Tribunal under section 3 of the Act ; (iv) that rule 13 (2) framed under the Act which makes the statement of an accused person made to police officer leading to discovery of a fact admissible in evidence is ultra vines of section 8 (4) of the Act ; and (v) that there was no evidence whatsoever to warrant the trial of the petitioner for murders of Mst. Aisha and Mst Niaz Fatima and, in the circumstances, as observed by their Lordships of the Supreme Court in The State v. Nawab Gul P L D 1963 S C 270 at page 273 of the report it seems impossible to discover what would be for the Tribunal to try.

4. The substance of the first contention is that the Criminal Procedure Code of 1898, is an existing Central Law within the purview of Articles 134 and 225 of the present Constitution, and as such the Provincial Assembly of West Pakistan could not amend, modify or repeal any one of its provisions. Support of this, reliance is placed on the Government of India Act, 1935, and the Constitution of the Islamic Republic of Pakistan, whereby the subject of Procedure of Criminal Courts was included in the Concurrent List and as such the Federal Legislature was competent to enact laws in relation thereto.

5. From this, it is inferred that the Code of Criminal Procedure is an existing Central Law within the purview of Articles 134 and 225 of the Constitution. The two Articles read as under :‑ "

134. When a Provincial Law is inconsistent with a Central Law, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." 225. (I) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature . . . . .

6. If the Code of Criminal Procedure is a Central Law then undoubtedly the appropriate Legislature within the purview of Article 225 to amend, modify or repeal its provisions was the Central Legislature, and the Act would be struck down by Article 134 to the extent of inconsistency with the Code. But in order to determine whether the Code of Criminal Procedure of 1898, is a Central or Provincial Law, one has to look at the provisions of Articles 131 and 132 of the Constitution reproduced below:‑ "131. (1) The Central Legislature shall have exclusive power to make laws (including laws having extra‑territorial opera tion) for the whole or any part of Pakistan with respect to any matter enumerated in the Third Schedule. (2) Where the national interest of Pakistan in relation to‑ (a) the security of Pakistan, including the economic and financial stability of Pakistan ; (b) planning of co‑ordination ; or (c) the achievement of uniformity in respect of any matter in different parts of Pakistan, so requires, the Central Legislature shall have power to make laws (including laws having extra‑territorial operation) for the whole or any part of Pakistan with respect to any matter not enumerated in the Third Schedule. (3) If‑ (a) It appears to the Assembly of a Province to be desirable that a matter not enumerated in the Third Schedule should be regulated in the Province by an Act of the Central Legisla ture ; and (b) a resolution to that effect is passed by the Provincial Assembly, the Central Legislature shall have power to make laws having effect in the Province with respect to that matter, but any law made in pursuance of this power may be amended or repealed by an Act of the Provincial Legislature. (4) The Central Legislature shall have power (but not exclu sive power) to make laws for the Islamabad Capital Territory and the Dacca Capital Territory with respect to any matter not enumerated m the Third Schedule. (5) The Central Legislature shall have power to make laws for any part of Pakistan not forming part of a Province with respect to any matter.

132. A Provincial Legislature shall have power to make laws for the Province, or any part of the Province, with respect to any matter other than a matter enumerated in the Third Schedule."

7. Unlike the Government of India Act, 1935, and the Constitution of 1956, the distribution of legislative power between the Central Legislature and the Provincial Legislature under the present Constitution rests on an entirely different basis. So far as matters included in the Third Schedule are concerned, the Central Legislature has the exclusive authority to enact laws in relation to them, and in respect of all other matters the Provincial Legislatures have the authority to enact laws. As against that under the Government of India Act, 1935, and the Constitution of 1956, so far as the matters included in the Federal List were concerned, the Federal Legislature had and the Provincial Legislature did not have the authority to enact laws on those matters. Similarly, in relation to matters included in the Provincial List the Provincial Legislature had and the Federal Legislature did not have the powers to enact laws on those matters. In addition to it, there was a Concurrent List. Beth the Federal and the Provincial Legislatures were competent to enact laws on matters included in it. 1n case of inconsistency between the Federal and the Provincial Laws, on matters included in the Concurrent List subsection (2) of section 107 of the Government of India Act, 1935, provided that: "Where a Provincial Law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal Law or an (existing law) with respect to that matter, then, if the Provincial Law, having been reserved for the consideration of the Governor‑General has received the assent of the Gover nor‑General, the Provincial Law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter." Similar provisions are contained in Articles 106, 107 and 110 of the 1956, Constitution. The logical conclusion which can beg drawn from this comparison is that under the present Constitu tion the Central Legislature has a limited power to enact law I on matters included in the Third Schedule, while the Provincial Legislatures have residue of power to enact laws on all other matters, It was, however, contended that the Central Legislature was competent to enact laws on procedure of Criminal Courts because within the purview of clause (c) of Article 131 (2) of the Constitution it was in the interest of Pakistan to have a uniform law on the subject in different parts of the country. Reliance was placed in this respect on the preamble of the Code of Criminal Procedure, 1908, that it was enacted to consoli date and amend the law relating to Criminal Procedure.

8. We have given anxious consideration to the contentions set out above and regret our inability to accept any one of them. The reference to the provisions of the Government of India Act, 1935, and the Constitution of 1956, is wholly out of place. It was frankly conceded by the learned counsel for the petitioner that but for clause (c) of Article 131 (2) of the Constitution, the Provincial Legislature had the authority to amend, modify or repeal the provisions of the Code of Criminal Procedure, 1898, within the purview of Article 225 of the Consti tution. We, however fail to see how the petitioner can invoke this constitutional provision inasmuch as it is prospective in its operation, and no one has so far declared that it is in the national interest of Pakistan that the law on the procedure of Criminal Courts should be uniform throughout Pakistan. In fact, a con trary provision is contained in the principles of law‑making in Part II, which provides that the principle that all citizens shall be equal before law shall not be construed as preventing a Legislature from making laws different from laws made by any other Legislature, The Code of Criminal Procedure, 1898, is therefore, not a Central Law within the purview of Article 131, (2) (c) of the Constitution and the Provincial Legislatures are competent to amend, modify or repeal it under Article 225 of the Constitution.

9. The remaining contentions raised in support of this petition have little weight. As to the excessive delegation of legislative powers to the Commissioners under section 3 of the Act, not only the policy of the law for referring the question of innocence or guilt of persons accused of offences set out in the Schedule to the Act is laid down in the Act itself, but the con ditions subject to which that discretion is to be exercised have also been provided for in the Act and the rules framed there under. Firstly, the Commissioner can, by an order in writing, refer only those cases to the Tribunal in which he is of opinion that it is inexpedient in the interest of justice that the question of guilt or innocence of any person accused of an offence specified in the First Schedule be tried by a Court mentioned in section 6 of the Criminal Procedure Code. Further, as the Act originally stood, section 3 provided that the Commissioner should record his reasons in writing for making a reference to the Tribunal instead of allowing the case to proceed to trial in ordi nary Courts of law. Additional conditions on the exercise of the discretion by the Commissioner under section 3 of the Act are provided in the First Schedule to the Act. For instance, only those cases under sections 302, 304 and 307, Pakistan Penal Code, can be referred to the Tribunal in which firearms have been used in their commission. Similarly, cases under sections 215, 379 to 392, 411, 454 and 457 to 460 of the Penal Code can be referred to the Tribunal if they involve theft of cattle. Lastly, in the rules framed under the Act, a detailed criterion has been laid down for reference of the offences mentioned in Schedule I to the Tribunal. The relevant rule reads as follows:‑ "

3. What cases to be referred to Tribunal.‑ Subject to the provisions contained in section 3, the follow ing principles are laid down for the guidance of the Com missioners in determining the expediency or otherwise of referring a case to a tribunal:‑ (1) A case shall not ordinarily be withdrawn from a Court for reference to a Tribunal after the close of the prosecution case. (2) The following factors may among others be considered in determining whether a case be referred to a Tribunal for decision‑ (a) in murder, culpable homicide not amounting to murder, attempt to murder, dacoity and robbery cases that the accused have not been named in the F. I. R., or the assassins or any of them are alleged to have been hired ; (b) in cases under section 363 of the Pakistan Penal Code, that the accused is not related to the kidnapped person within three degrees from the paternal or maternal side ; (c) in cases under section 498 of the Pakistan Penal Code, that the number of the accused does not exceed one and the accused is not related to the enticed woman within three degrees from the paternal or maternal side ; (d) in murder, attempt to murder, dacoity and robbery cases, that the offence is alleged to have been committed between the hours of sunset and sunrise ; (e) in cases under section 215 of the Pakistan Penal Code, that the stolen property has not been recovered ; (f) in cases relating to theft of cattle or receiving stoles property, that the stolen property has not been recovered ; (g) in cases of receiving illegal gratification, that the conside ration alleged to have been passed has not been recovered from the possession of the public servant ; (h) in cases falling under clause (e) of section 5 of the Preven tion of Corruption Act, 1947, that the amount or the value of property misappropriated or dishonestly converted exceeds rupees ten thousands ; (i) in smuggling cases falling under item 81 of the Schedule to section 167 of the Sea Customs Act 1878, and section 7 of the Land Customs Act, 1934, that the value of the smuggled property exceeds rupees five thousands ; (j) that the accused is tampering with the witnesses or is likely to make the witness to resile from disclosing the truth; (k) in arson cases punishable under sections 435 and 436 of the Pakistan Penal Code, that any agricultural produce or any building used as human dwelling or for the custody of the property is destroyed or substantially damaged." Thus, not only the policy of the law is laid down in the Act but the conditions on which the Commissioners will exercise the power conferred on them under section 3 are also specified. The doctrine of excessive delegation of power is, therefore, not E applicable in this case and the authorities relied upon by the learned counsel, namely, Panama Refining Co. v. Ryan (79 Law Ed. 446 S C U S A pp. 456 & 458), Attorney‑General of Canada v. Hallet & Casey Ltd. (P L D 1952 P C 29) and Dawakhana v. Union of India (A I R 1960 S C 554) are distinguishable on this view of the case.

10. The third contention does not call for any serious con sideration. It was urged that right of appeal from an order of conviction and sentence under the Criminal Procedure Code could not be taken away by a Provincial or Central Law inasmuch as Article 98 of the Constitution has provided that the High Courts shall have such jurisdiction as conferred on them by this Constitution or by law. The word "law" was construed as the law in force on the 8th of June 1962, and it was contended that any change in the provisions of the Code of Criminal Procedure affecting the jurisdiction of the High Courts could be achieved by a constitutional amendment only. We confess our inability to follow the argument, but it is sufficient to point out that the provisions of Article 98 are subject to the provisions of Article 225 of the Constitution that all existing laws can be amended, modified or repealed by appropriate Legislatures.

11. The next argument is ingenious. Section 8(4) of the Act provides that provisions of the Evidence Act will not be applicable to the proceedings before the Tribunal. There would thus have been no bar to admit in evidence a confession made to a police officer or which appears to have been made by him as a result of torture or on account of his being put in fear of bodily hurt to himself or to any other person in whom he is interested or fear of deprivation of property, but to protect the interests of an accused rule 13 (2) makes such a confession inadmissible with the proviso that so much of such confession as relates distinctly to the discovery of any fact shall be admissible. Curi ously enough it was contended that since the proviso to the rule corresponds to section 27 of the Evidence Act, it is repugnant to section 8 (4) of the Act but it is overlooked by the learned counsel that in that event the first part of the rule will also stand abrogated as its provisions correspond to section 26 of the Evidence Act.

12. The next contention has likewise no force. In The State v. Nawab Gul (P L D 1963 S C 270), their Lordships of the Supreme Court observed that as to the third accused person, Gulin, there was no evidence at all, as he seemed to be free of involvement in the affair of the shop, and, in the circumstances, it seemed impos sible to discover what there would be for the firga to try and that unless the enquiry were to proceed on distinctly unorthodox lines, e.g., by third degree methods, or at the other extreme, by reading of omens, or other adventitious devices, it was more than clear that to go forward with the enquiry was futile. The facts of the present case are, however, entirely different. As mentioned in the opening part of this order, the petitioner and Abbas Khan accused had led to recovery of incriminating evi dence. In addition to it, the latter was identified by Mst. Irshad Begum as one of the assailants of Mst. Aisha and her daughter Mst. Niaz Fatima. Moreover, in spite of the observations, referred to above, the Supreme Court did not held the reference to frga under section 11 of the Frontier Crimes Regulation in that case illegal.

13. The last contention that the petitioner should have been heard before the Commissioner made the reference under section 3 of the Act to the Tribunal is equally unwarranted. There is no provision to that effect in the Act nor can this right be claimed on the basis of any general principle of law for an accused has no vested right in the procedure to be followed for, determining the question of his innocence or guilt.

14. For the foregoing reasons, this petition is dismissed, but in the circumstances of the case we refrain from making any order as to costs. On the prayer orally made by the learned counsel of the peti tioner we grant certificate under Article 58 of the Constitution for further appeal to the Supreme Court as the case involves substantial question of law as to the interpretation of the Constitu tion. K. B. A. Petition dismissed.