P L D 1988 Lahore 352 (PLP)

Tasaddaq Hussain Jillani for the State. Ch. Mehboob Ahmad for Respondents Nos.2 to

4. Sahibzada Mehboob Ali Khan for Respondent No.5. Dates of hearing: 9th and 12th March, 1988. This petition under Article 199 of the Constitution seeking to have the order of the learned Additional Sessions Judge, Multan, dated 25‑10‑1987, set aside has arisen in the following circumstances.

2. On 19‑2‑1986, Dir Muhammad, complainant, laid information before the police that Muhammad ldrees son of Ismail and Munammad Sharif son of Muhammad Yousaf (the latter is respondent No. 5 in this petition) had taken his son Asghar aged about 18 or 19 alongwith them on 13‑2‑1986; that Muhammad Asghar had not returned none and expressed the suspicion that ldrees and Sharif had done him to death, for, they nourished a suspicion that Muhammad Asghar was carrying on with their sister Mst Shamim. During the investigating of the case, it was found that ldrees; and Sharif had made an extra‑judicial confession of their guilt. They were arrested. On 5‑7‑1986, Sharif, respondent, then confined in the new Central jail, Bahawalpur, sent a petition to the District Magistrate praying that he be tendered pardon under section 337 of the Cr.P.C.: according to him, the actual culprits who had committed the murder of Mohammad Asghar had been discharged by the police "collusively and he is the only person who knows the real circumstances of the murder which he intends to explain before the Court voluntarily". It appears that Sharif, respondent, was produced before a Magistrate on 11‑2‑1987 and the Magistrate had recorded his statement under section 337 of the Cr.P.C. as he was directed by the learned District Magistrate to do. Later, however, by his order dated 19‑4‑1987, the learned District Magistrate observed that all the accused involved in the case had been arrested; that recoveries had been effected from them; that Sharif was the main accused and his extra‑judicial confession had also been recorded; that the persons against whom he intended to depose had been challaned and that as the evidence of extra‑judicial confession was available, he found no reason "to accede to the request of the petitioner" . Against that order of the learned District Magistrate, Sharif, respondent, approached the Sessions Court under section 439‑A of the Cr.P.C. and the learned Additional Sessions Judge, Multan, by his judgment dated 25‑10‑1987. Set aside the order of the learned District Magistrate, for, in his view, it was abundantly clear that the learned District Magistrate had, by his order dated 9‑12‑1986, tendered pardon to Sharif, respondent, and had, by his order dated 22‑1‑1987, directed the S. D. M. Lodhran to proceed in accordance with law; that in his turn, the S.D.M. Lodhran had recorded the statement of Sharif, respondent, under section 337 of the Cr.P.C. And, therefore, it "does not now lie in the mouth of the prosecution to say that the learned District Magistrate did not tender pardon to the petitioner". He, therefore, accepted the revision petition and directed that Sharif, respondent, "shall henceforth be treated as an approver in this case".

3. Though in the petition, the clause of Article 199 of the Constitution under which the relief sought falls is not mentioned, yet it seems to me that it falls under clause (a)(ii) of sub‑Article (i) of that Article which empowers this Court to declare that any act done or proceeding taken by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect. This Court is, therefore, not concerned with whether the learned Additional Sessions Judge ought or ought not to have interfered with the order of the learned District Magistrate in the exercise of his revisional jurisdiction; what this Court is concerned with is whether the learned Additional Sessions Judge was competent to entertain the revision petition. This is so because under section 435 of the Cr.P.C. the High Court or Sessions Judge has power to call for and examine the record of any proceeding before any "inferior Criminal Court" and the question is whether the District Magistrate, when, he acts under section 337 of the Cr.P.C., acts as an "'inferior Criminal Court".

4. It may be said at once that if, while acting under section 337 of the Cr.P.C., the District Magistrate acts as a Court, then he is an inferior Criminal Court, but is he a Court for the purposes of section 435 of the Cr. P. C.?

5. There are four classes of Criminal Courts in Pakistan; Court of Session (ii) Magistrate of the first class; (iii) Magistrate of the second class and (iv) Magistrate of the third class (section 6 of the Cr.P.C.). Section 9 of the Cr.P.C. empowers the Provincial Government to establish a Court of Session for every Sessions Division and appoint a Judge of such Court; it also empowers the Provincial Government to appoint Additional Sessions Judges and Assistant Sessions Judges. Section 10 requires the Provincial Government to appoint a Magistrate of the Ist Class in every district, to be called the District Magistrate. Under that section, the Provincial Government may also appoint a Magistrate of the 1st Class to be an Additional District Magistrate, who shall be deemed to be subordinate to the District Magistrate. Section 11 enacts that whenever in consequence of the office of District Magistrate becoming vacant, any officer succeed temporarily to the Chief Executive Administration of the District, such officer shall," pending the orders of the Provincial Government, exercise all the powers and perform all the duties, respectively conferred and imposed by this Code on 'the District Magistrate". Section 12 empowers the Provincial Government to appoint as many W5 persons as if thinks fit, besides the District Magistrate to be Magistrates of the 1st, 11 or III Class in any District. By section 13, the Provincial Government may place any Magistrate of the 1st Class or 11 Class incharge of a Sub‑Division to be called the Sub‑Divisional Magistrate. By that section also, the Provincial Government may delegate its powers to the District Magistrate to place any Magistrate incharge of a Sub-Division. It will thus be seen that the District Magistrate is not one of the Courts established under the Code of Criminal Procedure. Sections 10 and 11 read together tend to show that he occupies a dual position; he is the chief executive, incharge of the administration of the District and as Magistrate of the First Class, he may exercise the powers conferred upon such Magistrate by the Code, The Sub‑Divisional, Magistrate occupies, the same position in the Sub‑Division of which he is incharge.

5. Section 337 of the Cr.P.C. empowers the District Magistrate or a Sub‑Divisional Magistrate, at any stage of investigation or inquiry into, or the trial of any offence triable exclusively by the High Court or Court of Session or any offence punishable with imprisonment which may extend to 10 years, or any offence punishable under section 211 of the P.P.C. with imprisonment which may extend to seven years or any offence under any of the sections mentioned therein, with a view to obtaining the evidence of any person supposed to have directly or indirectly concerned in or privy to the offence to tender pardon to such a person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. ‑

6. It will be noticed that the power to tender pardon under section 337 of the Cr.P.c vests in the District Magistrate or the Sub‑Divisional Magistrate only; this strongly suggests that in discharging their duties under that section the District Magistrate and the Sub‑Divisional Magistrate act as persona designata and not as a Court.

7. There are observations in Bawa Faqir Singh v. Emperor AIR 1938 Privy Council 266 that fatting as it does under Chapter 24 of the Code which deals with general provisions as to inquiries and trial, section 337 deals with the action of a judicial officer and not of an executive officer. That, however, does not mean necessarily that in acting under section 337 of the Cr.P.C., the District Magistrate or the Sub‑Divisional Magistrate acts as a criminal Court. For while every Court is a tribunal, the converse is not true. There are many tribunals which are not Courts despite the fact that they are, charged with dealing with certain matters and have features in common with Courts. (See Attorney‑General v. BBC (1981) A.C. 303, 338). Nor does the mere fact that the District Magistrate is a Magistrate of the 1st Class afford ground for holding that all that he is empowered to do under the Code he does as a Court.

8. Only one case directly in point was cited at the bar of the Court and that was Akbar Sheriff's case A I R (35) 1948 Madras

232. Little guidance is, however, to be gleaned from that case, or other cases cited by the learned counsel for the parties. Akbar Sheriffs case gives no reasons and other cases deal with questions such as whether the District Magistrate had or had not tendered the pardon or what was the effect of the Magistrate not recording his reasons for tendering pardon under section (1‑A) of section 337.

9. I have, however, derived immense and valuable guidance from two cases of high authority, Bahadur and another v. The State and another P L D 1985 S C 62 and Attorney General v. BBC (1981) A.C.

303. In Bahadur's case, ' the question was whether a Magistrate concurring with the police report submitted under section 173 of the Cr.P.C. discharging the accused and cancelling a criminal case acts as Court in judicial proceedings and is for that reason subject to the revisional jurisdiction of the High Court under section 439 of the Cr.P.C. It was held that the order cancelling a case qualifies as proceedings; that Magistrate passing the order is inferior to the Court of Session and the High Court but in cancelling the case he does not act as a Criminal Court. It was observed that: "under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct Judicial proceedings or is way amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges these duties not as a Court but as a persona designata. Mere name or designation of a Magistrate is not decisive of the question because 'Judges often administer and Administrators often judge." It was, therefore, held that though a 'Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all state power, there is no decision given, no finality or irrevocability attached to the order.

10. In Attorney‑ General v. B.B.C. (1981) A C 303) the question before the House of Lords of England was whether the local valuation Court was a Court coming within R.S.C. Ord.52, rule 1, which empowered the Divisional Court of the Queen's Bench Division to make an order of committal where the contempt of Court was committed in connection with "proceedings in an interior Court". Local Valuation Courts were created by section 44 of the Local Government Act, 1948, which states‑, Local Valuation Courts constituted as hereinafter provided shall be convened ‑‑‑‑‑‑‑‑‑ for Vie purpose of nearing and determining appeals against draft valuation lists and against objections to proposals for the alteration of valuation lists. It was held that the local valuation Court was a Court but this lave] did not necessarily mean that it was an "inferior Court"; the Divisional Court's jurisdiction did not extend to all Courts created by the State; a distinction has to be drawn between Courts which discharge judicial functions and those which discharge administrative functions, between Courts of law which form part of the judicial system of the country on the one hand and Courts which are to resolve problems which arise in the course of administration of the Government of the country. A local valuation Court has to act judicially, that is to say its proceedings must be conducted with the fairness and impartiality which characterise proceedings in Courts of justice and are proper to the functions of a Judge, but that does not make it a Court of law, fur there are many tribunals with many of the trappings of a Court and upon which the Parliament has put the "Court" label, yet they are not Courts in the strict sense of exercising judicial power. Judicial power is an exercise of sovereign power; and a Court of law means a Court of judicature, as a body established by law to exercise, either generally or subject to defined limits, the judicial power of the State. In this context, judicial power is to be contrasted with legislative and executive (i.e. administrative) power, If the body under review is established for‑ a purely legislative or administrative system of the State, it is part oz' the legislative or administrative system of the state, even though it has to perform duties which are judicial in character. Therefore, unless the body exercising judicial functions can be demonstrated to be part of the judicial system, it is not a Court of law.

11. Thus the test is not whether the authority under review is required to act judicially, that is to say, act with such fairness and impartiality as characterise proceedings in Courts of just c e ; nor whether it has the label of Court attached to it. For, as Lopes L. J. said in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson (1892) 1 Q.B. 431, the word 'judicial' has two meanings. It may refer to the discharge of duties exerciseable by a Judge or by justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind ‑ that is, a mind to determine what is fair and just in respect of the matters under consideration. The test is whether the authority under review is required to perform the act in question as a Court in the proper sense of the word and whether the authority under review was performing the act judicially as a Court in the exercise of the judicial power of the State, as distinguished for executive (administrative) or legislative power of the State. Judicial power, in this context, has a well‑known meaning, particularly in countries having a written Constitution like Pakistan, namely, the power which every sovereign authority must of necessity have to decide controvercies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property (Griffith C.J. in Huddart, Parker & Co. v. Moorehead (1909) 8 C.L.R. 330, 357).

12. Here, the avowed object of tendering pardon under section 337 is to obtain evidence. This is not the function of the Court; far less is it the exercise of the judicial power of the State. Collection or obtaining of evidence forms part of the machinery for the investigation of crime and the function that the District Magistrate performs under section 337 is, therefore, an executive or administrative function. This is reinforced by the fact that he performs it as a persona designata. The tendering of pardon does not involve and is not made in the course of any lis inter partes. It cannot create res judicata. Neither the person sought to be made approver nor the other accused persons are entitled to any notice or hearing. In my opinion, these considerations afford sufficient ground for thinking that in tendering pardon or not tendering pardon under section 337, Cr.P.C., the District Magistrate acts, not as an "inferior Criminal Court" but as part of the administrative system of the country.

13. I would, therefore, hold that the order of the District Magistrate dated 19‑4‑1987 was not a revisable order under section 435 read with sections 439 and 439‑A of the Code of Criminal Procedure and that the learned Additional Sessions Judge acted without lawful authority or what is the same thing without jurisdiction in setting it aside. Accordingly, the learned Additional Sessions Judge's order dated 25‑10‑1987 is hereby declared to have been made without lawful authority and to be of no legal effect. M. B. A. /F-70/L Petition accepted.