P L D 1965 (W (PLP)

Dates of hearing: 13th and 14th July 1964. ORTCHESON, J.‑The facts leading up to ,this reference are that on the 25th of February 1962, a case under sections 363, 366, 368 and 376, P. P‑ C. was registered at Police Station Nowshera, District Sargodha, against six persons, including one Khizar Hayat, on the allegation that they had kidnapped one Mst. Iqbal Khatoon, a girl of about 14 years. On the 23rd of April 1962, Mst. Iqbal Khatoon made a statement under section 164, Cr. P. C., in which she declared that she was major; that she had married Khizar Hayat of her own free‑will; and that she had neither been kidnapped nor raped as alleged by her father, Maqsood Ali, complainant. On the basis of the above statement, the accused were released on bail, but a challan under the sections of the Penal Code above‑mentioned was lodged in the Court of the Ilaqa Magistrate, Sargodha. The girl was meanwhile recovered and was handed over by the police to her parents. On the 6th of May 1963, she again disappeared, and on the 9th of May 1963, a separate case under section 364/366, P. P. C. was registered at Police Station Sadar, Sargodha against three persons, two of whom, Akbar Khan and Muhammad Iqbal, appear to be also accused in the original case. On the 6th of June 1963, Mst. Iqbal Khatoon made a statement in the Court of a Magistrate of the First Class, Sargodha, in which she repeated that she was married to Khizar Hayat and wished to go with him. She was accordingly allowed to do so. The trial of the case registered on the 25th of February 1962, was proceeding before the Ilaqa Magistrate when, on the 30th of August 1963, the Commissioner, Sargodlia,, passed an order under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, (hereinafter referred the Act), withdrawing the case from the Court and transferring it to a Tribunal appointed under the Act on the ground that it was inexpedient that the question of the guilt or innocence of the persons accused should be tried by the ordinary Courts for the following reasons:‑ (1) The abductee has riot supported the prosecution in her statement under section 164 Cr. P. C. (2) That there was no medical evidence of rape. (3) That Mst. Iqbal Khatoon had been again abducted and was reported to be untraceable. (4) That tile girl might have been murdered by the accused for fear of deposing against him (sic). Against the above order the six accused filed a Writ Petition No. 1195 of 1963, imp1eading the Commissioner and the Deputy Commissioner, Sargodha, as respondents Nos. 1 and 2, res pectively. Of the three grounds advanced by the petitioners, the second and third are based on the facts of the case and are therefore irrelevant to the present reference. The first, however, runs: "The Commissioner is competent to withdraw the case from a Magistrate's Court and refer it to the Tribunal under section 3 of. the West Pakistan Criminal Law (Amendment) Act of 1963 only if the offence against the accused is an o(hence specified in the First Schedule. The offences in the present case are under sections 363/366/368/376, P. P. C. Out of the said four offences, only one, i.e., under section. 363 is specified in the Schedule the other three offences, i.e., under sections 366/368/376, P. P. C. which are more heinous in nature are not at all specified in the First Schedule. Therefore, the Commissioner had no lawful authority to withdraw the case from an :ordinary Court of criminal jurisdiction and refer it to a special Tribunal to be constituted by the District Magistrate with (sic) provisions of the said Act." The petitioners accordingly prayed that the order of the Commis sioner (respondent No. 1 in the petition) be declared to be without lawful authority and of no legal effect.

2. The petition was heard by a Division Bench which, by order dated the 26th of May 1964, requested the learned Chief Justice to nominate a larger Bench to consider the following question :‑ "If a person is accused of more than one offence some of which are included in the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963, and some are not so included and the evidence in proof of those offences is partly or wholly common, is it permissible for the Commissioner to refer those offences which are included in the Schedule to a Tribunal, leaving the other offences to be dealt with by the Courts under the Criminal Procedure Code, 1898."

3. The respondents filed a written statement through the learned Advocate‑General, West Pakistan, paragraph 5 (i) of which runs: "The offence of kidnapping is not only punishable under section 363, P. P. C., but the kidnapping with the intention as specified in sections 365, 366, 368, P. P. C., gives an aggravating form to offence under section 363, P. P. C. The principal offence committed was 363, P. P. C. which is included in the 1st Schedule of the Act. The other offences falling under section 356, P. P. C. and 368, P. P. C. are the aggravated form of kidnapping and as such are the side (sic) of the offence of kidnapping, which are not separable. The offence of rape punishable under section 376, P. P. C. is no doubt not included in the Schedule but a reference was necessary to determine the motive." In paragraph 6 it is repeated, no doubt for the sake of emphasis, that those offences which are aggravated forms of an offence under section 363, P. P. C. are legally triable by a Tribunal under the Criminal Law (Amendment) Act.

4. In the course of arguments before us it was conceded that the alleged offence, under section 376, P. P. C. could not have been legally referred by the Commissioner to the Tribunal. The first question for decision, therefore, is whether the contention that although offences under sections 366 and 368 are not included in the Firs Schedule j the Act; they can be referred to a Tribunal on the ground that they are merely aggravated forms of section 363 can be accepted.

5. It may be stated at the outset that the argument that section 368, P. P. C. is an aggravated form of section 363 is incorrect. Section 368 runs: "Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement." It will thus be seen that the object of the above section is to place, a third party who, with the requisite knowledge, assists the offence of kidnapping or abduction in any of their various forms by wrongfully concealing or confining the person kidnapped or abducted, on the same footing as the kidnapper or abductor, and to render that party liable to the same punishment. It would there fore have been appropriate to provide in the Act that the case of a person accused of an offence under section 368, P. P. C. arising out of a kidnapping or abduction falling within the scope of section 368 should also be liable to be transferred to a Tribunal. The effect of the omission will be discussed later.

6. With respect to the remaining offence transferred by the Commissioner, Sargodha, to the Tribunal in the case out of which this reference arises, namely, that under section 366, P. P. C., it is no doubt true that an offence falling within the orbit of that section is merely an aggravated form of an offence under section 363, P. P. C., but the argument that a case under section 366 can, therefore, be transferred to the Tribunal cannot be accepted. As pointed out by our learned brothers in their referring order, the First Schedule to the Act has made the aggravated form of dacoity, namely, dacoity with murder (section 396), robbery or dacoity with attempt to cause death orb grievous hurt (section 397) and attempt to commit robbery or dacoity when armed with a deadly weapon (section 398), trans ferable to a Tribunal along with what may be termed simple dacoity, which is punishable under section 395, P. P. C. This raises a presumption that the question whether the aggravated) forms of kidnapping or abduction should also be made triable by a Tribunal under the Act was considered by the Legislature, and that the omission to do so was deliberate and not merely accidental. It is well settled that the Courts cannot extend a statute to meet a case for which provision has clearly and' undoubtedly not been made. In this connection the following passage from Craies on Statute Law, Sixth Edn. from page 70, may be cited with advantage:‑ "The authorities on this subject are numerous and unanimous. `No case can be found to authorise any Court to alter a word so as to produce a casus omissus', said Lord Halsbury in Mersey Docks v. Henderson. In Crawford v. Spooner, the Judicial Committee said: We cannot aid the Legislature's defective phrasing of an Act, we cannot add and mend and, by construc tion, make up deficiencies which are left there. In 1951 in Magor crud St. Mellons R. D. C. v. Newport Corn. It was held by the House of Lords that a Court has no power to fill any gaps' disclosed in an Act. To do so would be to usurp the function of the Legislature. In other words, the language of Acts of Parliament, and more especially of modern Acts must neither be extended beyond its natural and proper limits, in order to supply omissions or defects, nor strained to meet' the justice of an individual case." No instance of departure by the Courts from the above settled principle has been cited before us. It is true that in Moazzan Husain Khan v. Government of Pakistan and another (P L D 1958 Kar. 35), relied upon by the learned Additional Advocate‑General, it was held that it was the duty of the Court to interpret a statute in such a way as to suppress such inventions and evasions as may lead to mischief and may be contrary to the true intent of the Legislature, but the above observation, which gives expression to another well‑settled principle, is based upon the following quotation from Maxwell's Interpretation of Statutes, Tenth Eon. at page 68: "It is said to be the duty of the Judge to make such cons truction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it." With the utmost respect, I entirely agree with the remarks of the learned author, but they are controlled by the words emphasised above. Moreover, in the present case the question involved is not that of the interpretation of the language of the Act, but of the effect of the omission to include certain sections of the Penal Code from the First Schedule. The case cited, is, therefore not strictly in point. It is possible that section 368, P. P. C. was omitted from the First Schedule to the Act by oversight, but as pointed out in the above citation from Craies' Work on Statute Law, a Court has no power to fill any gaps disclosed in an enactment. The omission of sections 364, 364‑A, 365 and 366 appears, for the reasons already given, to be deliberate. It may incidentally be stated with respect to section 365 that it carries the same maximum punishment as section 363 and cannot, therefore, be described as an aggravated form of the latter section, the only difference between the two being that whereas the scope of section 363 is confined to a particular form of kidnapping, section 355 also punishes abduction with the intent specified in the section.

7. I, therefore, find myself entirely unable to hold that sections 364, 364‑A, 366 and 368 of the Penal Code can, in spite of their omission from the First Schedule, be transferred by the Commissioner to a Tribunal on tire ground that they are merely aggravated forms of section 363.

8. Coming now to the specific question referred to us, as; enunciated in paragraph 2 above, it may be remarked at the outset that on the facts of the present case, to transfer the trial for the offence under section 363 to a Tribunal, leaving the trial for the remaining offences to continue before the ordinary Courts, would lead to a particularly anomalous result. As pointed out in Isree Panday's case ((1867) 7 W R (Cr.) 56) referred to in the commentary an page 888 of Ratan Lal's Law of Crimes, Eighteenth Edition, an offence under section 366 is an aggravated form of the offence under section 363 and the same person cannot be convicted on the same facts under both the sections. Even if, therefore, the common evidence is accepted as true by both the Tribunal and the ordinary Court, one or other of the convictions will be illegal. It follows that if the State was of the opinion that the offence committed by the accused concerned was prima facie one under section 363 and therefore referable to a Tribunal, it was its clear duty to withdraw the prosecution under section 366.

9. It must next be seen whether an order of the type envisaged in the reference can legally be passed. The relevant provisions of section 3 of the Act may with advantage be cited. They are: "3. (1) 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 speci fied in the First Schedule, or of any several persons so accused, be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, 1898; the Commissioner may, notwith standing 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 the Tribunal to come to a finding on the question after such enquiry as may be necessary and after hearing the accused. (2) Where a case is pending in a Court, the reference may be made at any time before the charge is framed against the accused: Provided that if the case is in respect of an offence specified 'in Part B of the First Schedule, ‑the reference may be made at any time before the judgment is pronounced." The question whether the action of the Commissioner in referring to a Tribunal those offences included in the First Schedule, while leaving the others to be dealt with by a Court constituted under section 6 of the Code of Criminal Procedure is legal or illegal therefore hinges on the meaning of the word "case", which is nowhere defined in the Act.

10. Purp6rting to act in exercise of the powers conferred by section 33 of the Act the Governor of West Pakistan was pleased to frame a set of rules known as the West Pakistan Criminal Law (Amendment) Rules, 1963. Rule 18 thereof is to the following effect "Where the Tribunal finds that an accused, whose case has been referred to it under section 3, is not guilty of any offence specified in the First Schedule but there is evidence to suggest that he is guilty of some other offence, the Tribunal shall make such a report to the District Magistrate, who shall thereupon, if the case had been withdrawn from any Court, return the case of such accused to the said Court for disposal, and where the case had not been withdrawn from any Court, refer it for disposal to a Court of competent jurisdiction." The above rule throws no light on the meaning attached to the word "case". It must, therefore, be seen how it is employed in legal parlance. In Earl Jowitt's Dictionary of English Law the relevant definition is "an action; a trial". Read in the above light, "the case" therefore means the trial of all the offences included in the challan, and to separate one or more of those offences from the others would be to sub‑divide the case. It is true that under the scheme of the Code of Criminal Procedure the basic principle is that laid down in section 233, namely, that except in the cases mentioned in sections 234, 235, 236 and 239, there shall be a separate charge for every distinct offence of which any person is accused and that every such charge shall be tried separately, but two points are to be borne in mind in this connection. The first is that, as laid down in Bhagwati Dial v. The King‑Emperor ((1905) Pb. R. No. 2 (Cr.)), the general rule laid down in section 233 was enacted for the benefit of accused persons and not for that of the prosecution. In Gam Mallu Dora alias Malayya and others (A I R 1925 Mad. 690) it was further observed :‑ "The general rule is laid down in section 233 of the Code: for every distinct offence there shall be a separate charge separately tried. The principle obviously. is that the accused person shall have a simple allegation to meet and the Court a clear issue to try. But to the general rule certain exceptions are made. One person may be tried at one trial for three offences of the same kind committed within a year (section 234) one person may be tried at one trial for several offences forming parts of the same transaction (section 235), one person may be tried at one trial for several offences or for alternative offences if it is doubtful which of those offences the facts which can be proved will constitute (section 236), and lastly more persons than one may be tried together at the same trial for the same offence committed in the course of the same transaction, for three offences of the same kind committed by them jointly within a year, for different offences committed in the course of the same transaction, etc. (section 239). The object of introducing these exceptions to the general rule is to prevent unnecessary duplication of proceedings. On examination it will be seen that all these exceptions can be interpreted so as not to conflict with the general principle that the accused person should not be perplexed and the Court should not be confused by complicated or numerous or disconnected allegation." The second point is that it is of the utmost importance that the accused should not be exposed to the risk of conflicting decisions. In Banairppa hallappa Ajawan and others v. Emperor (A I R 1944 Bom. 146) while dealing with a case involving rival factions which had taken part in a riot, the learned Judges observed: "The two factions must obviously be prosecuted separately, since the common intention of each of the two parties to the riot would be different and they could not be tried in 4. single case. There is of course no objection in law to both the cases being tried by separate Judges with the help of separate juries or assessors, but such a procedure is always open to the risk of the two Courts coming to conflicting findings, and occasionally as in the present case, it may result in very serious injustice, one side or the other being wrongly convicted."

11. If even the trial of two different factions by separate Courts is considered likely to result in serious injustice, what can possibly be said in favour of a procedure where by a case forming an integral whole is dismembered and one of the fragments handed over to a Tribunal? The present case forms an apt illustration of the possible results of such a procedure. It was stated at the Bar that out of the six accused who were prosecuted under sections 363, 366, 368 and 376, P. P. C. only four were concerned with the original kidnapping, the allegation against the others being that they gave shelter to the kidnapped girl. It has already been held that the case under section 368 cannot be transferred to the Tribunal. The position would, therefore, be that while, on the one hand, the Tribunal would decide the question whether the girl had been kidnapped, and might conceivably come to the conclusion that the accused involved were innocent and acquit them, the ordinary Court, on the same evidence, might decide that she had in fact been kidnapped and convict the persons accused of having concealed or confined her. The converse, and perhaps more likely, case is also possible.

12. Our attention was also drawn to other anomalies that might arise if the Commissioner acted as he has done in this case, but I do not consider it necessary to discuss them.

13. My answer to the reference would, therefore, be that, the Commissioner, acting under section 3 of the Criminal Law (Amendment) Act, has no power to sub‑divide a case in the manner postulated, and in the alternative, that even if he be deemed to have such a power, it would be contrary to all known principles of natural justice to do so (the Act has been exempted from the, operation of the Fundamental Rights). NAZEER A. MAHMOOD, J.‑I agree. MUHAMMAD AKRAM, J.‑I am in respectful agreement with, my learned brothers in holding that cases under sections 364.1 364‑A, 366 and 368 of the Pakistan Penal 'Code in spite of their omission from the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963 (hereinafter referred to as the Act) cannot be transferred to the Tribunal by the Commissioner on the ground that the offences under these sections are merely aggravated forms of the offence under section 363, P. P. C. I have no hesitation in repelling the contention raised by the learned counsel for the respondents in this con nection and have to adopt the reasoning given by my learned brother Ortcheson, J. in support of this conclusion.

2. But I regret that I am unable to agree with the answer returned by my learned brothers to the reference made to the Full Bench question referred to us for our decision follows: "If a person is accused of more than one offence some of which are included in the First Schedule to the West Pak Criminal Law (Amendment) Act, 1963, and some are not so included and the evidence in proof of these offense, is partly or wholly common, is it permissible for the Commissioner to refer these offences which are included in the Schedule to a Tribunal, leaving the other offences to be dealt with by the Court under the Criminal Procedure Code, 1898." The Commissioner is invested with powers to make the reference to the Tribunal under section 3 of the Act which is reproduced below: "3 (1) 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, or of an) several persons so accused, be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, 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 the Tribunal to come to a finding on the question after such enquire as may be necessary and after hearing the accused. (2) Where a case is pending in a Court, the reference may be made at any time before the charge is framed against the accused: Provided that if the case is in respect of an offence specified in Part B of the First Schedule, the reference may be made at any time before the judgment is pronounced. (3) No reference shall be made to a Tribunal under this section in respect of an offence specified in Part B of the First Schedule, where the accused or any of them is a public 'servant as defined in section 21 of the Pakistan Penal Code, save with the sanction of the Central Government or such other authority as the Central Government may specify in this behalf where such servant serving in connection with the affairs of the Centre or is a member of an All‑Pakistan or a Central Service, and with the sanction of the Provincial Government or such other authority as the Provincial Government may specify in this behalf where such public servant is serving in connection with the affairs of the Province: Provided that no such sanction shall be required where sanction for the prosecution of the public servant has previously been obtained under the provisions of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958." Under subsection (1) whenever the Commissioner thinks fit, he may refer the "question of the guilt or innocence of any person accused of an offence specified in the First Schedule" of the Act to the Tribunal constituted under section

6. The reference is confined to this limited question. Under section 10 (1) the Tribunal has to submit its findings with reasons on the "question" referred to it under section

3. On receipt of the findings the District Magistrate may remand the "question" to the Tribunal for a further enquiry or refer the "question" to the second Tribunal or acquit the accused person or in accordance with the findings of guilt of the Tribunal convict the accused of any offence specified in the First Schedule as contemplated in sub section (2) of section

10. At the same time in subsection (2) of section 19. of the Act, reference under section 3 has been described as a "case". Similarly, throughout rule 3 of the West Pakistan Criminal Law (Amendment) Rules, 1963, the reference to be made by the Commissioner to the Tribunal has been termed as a "case". It appears to me that in the Act and the rules made thereunder the terms "question" and "case" have been used interchangeably without any discrimination. But this conclusion does not taken us any further and nothing turns upon it. It does not necessarily follow that under section 3 of the Act the Commissioner has to refer the whole case in the wider sense of the word so as to include all the offences of which the accused is challaned or not at all and it is not permissible for him to separate one or more of those offences from the rest and refer them to the Tribunal. In my opinion "case" in this context means no more than their, limited question" of the guilt or innocence of the accused person of the specified offences referred to the Tribunal under section 3 of the Act. In other words the question of the guile or innocence of the person accused of the offences specified in the Schedule is in itself a "case" within the meaning of the Act and the rules. So far as I can see there is no indication in the Act or the rules to give 'any clue to the answer fox which this Full Bench was constituted and we have to look elsewhere for our assistance.

3. The general rule as contained in section 233 of the Code of Criminal Procedure, 1898, is that for even, distinct offence of which any person is accused there shall be a separate charge anti every such charge shall be tried separately. Not only there is to be a separate charge for every distinct offence but there should also be a separate trial for each of those offences. The exception to this rule are given in sections 234, 235, 236 and 239' which are) purely optional. Section 234 requires that if a person is accused, of more offences than one of the same kind committed within the space of a year, he may be charged and tried at one trial. Section 235 (1) permits of a joint trial of a person who has committed more offences than one in one series of acts so connected together as to form the same transaction and sub section (2) lays down that if the alleged acts constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial for each of such offences. Section 239 speaks of different persons who may be joined together in one trial. All these are enabling provisions and there is no law compelling a single trial of the accused if he is charged of more than one distinct offence In Muhammad Mosaddar Haque v. The State (P L D 1958 S C (Pak.) 131), it was held that section 233 lays down the primary rule that there should be a separate charge and a separate trial for every distinct offence. In a case from the Indian jurisdiction, Chuttani v. State of Uttar Pardesh (P L D 1957 S C (Ind.) 23), it was observed that "there is no illegality or irregularity in holding separate trials of the same accused persons even in cases where a single trial could have been permissible under the Criminal Procedure Code."

4. The main anxiety behind the question referred to the Full Bench appears to me to be that the accused person should not be disturbed for twice the same cause. Nemo debet bis vexari pro cadem causa is a well‑recognized maxim. In our country statutory recognition has been given to the principles embodied in this maxim in the form of section 403 of the Criminal Procedure Code, 1898, and in it safeguards have been provided for the accused against his repeated prosecutions. The relevant provisions of this section are reproduced below:‑ "403 (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237. (2) A person acquitted or convicted of an offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection (1). (3) . . . . . . . . . . (4) A person acquitted or convicted of any offence constituted by any act may, notwithstanding such acquittal or conviction, be subsequently charged with and tried for an), other offence constituted by the same acts which he may have committed if the Court by which he was first tried, was not competent to try the offence with which he is subsequently charged. (5) . . . . . . . . . . " The general rule is embodied in subsection (1) which lays down that once a person has been tried and convicted or acquitted of an offence he cannot be tried again "for the same offence nor on the same facts for any other offence for which a different charge might have been made under section 236 or for which he might have been convicted under section 237". In other words, no person can be tried again for the same offence or on the same facts for cases where it is doubtful which of the several offences the facts which can be proved will constitute or for offence for which he could have been charged under the provisions of sec tion

236. This, however, does not prevent an accused from being tried again for any distinct offence based on the same transaction for which separate charge could have been framed against him p on the former trial under section 235 (1) of the Criminal Procedure Code. To give an illustration‑"A" is tried for offence: "X" and is convicted or acquitted. He is sought to be tried again for offence "Y". "X" and "Y" are distinct offences forming part of the same transaction but not falling within sections 236 and 237 of the Code. Subsection (3) of section 403 provides that in such a case the subsequent trial is not barred. It is, however, important that the offences in the two cases should be "distinct". Autre fois convict forbids a man to be punished twice for the same offence, i. e., the same act and omission which may have two distinct results. Subsection (4) of section 403 is, however, an exception to the general rule enunciated in subsection (1) and is relevant for the present. It lays down that in case tile Court by which the accused person was first tried was not competent to try the offence with which he is subsequently charged, his earlier acquittal or conviction cannot be a bar in the way of his subsequent trial for the other offence constituted by the "same acts". The basis for a bar against the second trial in section 403(1) is that the first trial should have been before a Court com petent to hear and determine the case as a whole and record a verdict of acquittal or conviction. The bar against a fresh charge and trial under this section will have no application if the Court at the first trial had no power to try the offence with which the accused is faced at his subsequent trial. In Purnanda Das Gupta v. Emperor (A I R 1939 Cal. 65), it was observed that section 403 requires that the Court of first instance should have been competent to try the charge put forward at the second trial and in view of the fact that at the earlier trial the Special Magistrate of Faridpur was not competent to try a charge of conspiracy under section 121 (a) Penal Code, there was no bar to the subse quent trial of the same person for the same acts. In another case Abdul Hakim Khan v. Emperor (A I R 1919 Cal. 464) it was held that the acquittal by a Magistrate on a charge under section 465, Penal Code does not bar a subsequent commitment to a trial by the Court of Session for offence under section 467 on the same facts. In a reported case from India, K. Velukutty and others v. State (A I R 1956 Trav. 191), the accused were tried by the Sub‑Divisional Magistrate for offences under section 420/34, Penal Code, but the offence of cheating was compounded between the parties with the permission of the Court. Subsequently, the police started prosecution against them under sections 161 and 165‑A in the Court of the Special Judge having exclusive jurisdiction .to try these offences under the Criminal Law Amendment Act of India. It was held that the bar under section 403 of the Code of Criminal Procedure to the second trial does not apply because the Court of the Sub‑Divisional Magistrate was not competent to try these offences. Applying the principle contained in subsection (4) of section 403, Cr. P. C. to a case referred to the Tribunal by the Commissioner under section 3 of the Criminal Law (Amend ment) Act, 1963, it is evident that a finding of acquittal or conviction of the‑ accused by the Tribunal in respect of the offences specified in the Schedule to the Act (which fall within its special jurisdiction) will not debar any subsequent trial of the same person on the same facts for the offences not so specified in the Schedule for which the Tribunal has no jurisdiction. In a case in which the Court at the previous trial was not competent l to try the offence with which the accused is subsequently charged, the second trial of the accused is not only not barred on the principles of "autrefois acquit" and "autrefois convict", on the contrary it is, permissible under section 403 (3) of the Code. On principle, therefore, I see no bar to, split up the offences based on the same facts against an accused person so that he may be tried for some of them falling in the Schedule to the Act by the Tribunal and for the rest falling outside its purview, by the ordinary Courts of the country.

5. It is contended that it is of utmost importance that the accused should not be exposed to the risk of conflicting decisions on the same facts by the special Tribunal as well as by the ordinary Courts established by law in the country. This argument appeared to me to be impressive on the first sight. But on a further consideration this apprehension does not seem to be well‑founded. I will illustrate my reply by reference to the facts of a case before their Lordships of the Privy Council in Sambasavim v. Public Prosecutor, Federation of Malaya (54 C W N 695 P C). A person was arrested and charged with two offences, namely, being in possession of ammunition and being in possession of fire‑arms. He was tried upon the charge of being in possession of the ammunition separately and acquitted. In his trial for being in possession of firearm it was sought to tender in evidence the acquittal on the charge of being in possession of ammunition. The trial Court did not accept the acquittal as any evidence affecting the merits of the case. Lord MacDermott, who delivered the opinion of the Board, observed on page 705 of the report: "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudica tion. The maxim res judicata proveritate accipitur, is no less applicable to criminal than to civil proceedings. Here the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to' accept the correctness of that verdict and was precluded from taking any step to challenge it ' at the second trial and the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other." A previous judgment or order can be tendered in evidence in support of a plea of res judicata or of autre fois acquit or autre foi convict in criminal cases. Even if a finding in a previous case may not operate as res judicata it is the paramount duty of the party against whom it is given to displace the findings in the s subsequent proceedings. Therefore, the apprehension of the accused being exposed to the risk of conflicting decisions if he is allowed to be prosecuted twice on the same facts disappears.

6. At any rate, there is no impediment imposed, by law preventing the Commissioner from referring the question of the guilt or innocence of the accused person to the Tribunal in relation to some of the offences of which he is charged. What will happen to the remaining offences pending before the ordinary Courts of the country is quite a separate issue. Assuming for the sake of arguments that in the process adopted in splitting the offences against the accused, his subsequent trial for the remaining offences under the Criminal Procedure Code tantamounts to an abuse of the process of law, this Court has ample powers under section 561‑A of the Code to quash the proceedings against him in the interest of justice. This will depend on the circumstances of each case. But it does not mean that the reference to the Tribunal would be incompetent or that under no circumstances an accused can be tried in the two Courts separately for different offences on the same facts.

7. In view of this discussion, I am of the opinion that it. is permissible for the Commissioner to refer the offences which are specified in the Schedule to a Tribunal in accordance with u section 3 of the Act, leaving the other offences to be dealt with by the Courts under the Criminal Procedure Code, 1898; even if the evidence in proof of the, offences may be partly or wholly common. A. H. Reference answered.