P L D 1965 (W (PLP)

J. ORTCHESON, J.‑This order will dispose of two writ petitions, (Rehmat Ullah Khan and others v. The State and others) No. 625 of 1964 and (Haji Abdul Aziz v. The Commissioner, Peshawar Division, Peshawar and the Home Secretary, Government of West Pakistan Lahore) (No. 7 of 1965) which though based on different facts, were directed by order dated the 13th of January 1965, to be heard together on the ground that both have the common feature of challenging the validity of the withdrawal by the Commissioner of the respective cases out of which the petitions arise for trial by a tribunal under section 33 of the West Pakistan Criminal Law Amendment Act (VII of 1963) (hereinafter referred to as the Act).

2. As the reference to a Full Bench was made in Writ Petition No. 625 of 1964, it will be convenient at the outset to give the facts leading up to that reference. The petitioners are seventeen in number. Fifteen of them are residents of Shabqadar, while of the remaining two, Qismatullah, petitioner No. 14, belongs to Mansooka, and Saif‑ur‑Rahman, No. 17; to village Khat Khilli. The facts as alleged by the petitioners are that on the 7th of November 1964, at about 4‑00 p.m. a fight took place in the main bazar, Shabqadar, in the course of which Mohkam Khan, son of Mukarram Khan on the one side and three persons, Nawab, Shahzad Mir and Muhammad Afzal, on the other were killed, while several other persons on both sides were injured. The petitioners' party was the first to report the matter to the Police, F.

1. R. No. 205, dated the 7th of November 1964, being lodged at Police Station, Batagram (the exact time is not stated). Later the same day Mukarram Khan also made a report (No. 2C6) at the same police station in which he named only Rahmatullah Khan, petitioner No. 1, as having shot his son. On the basis of that report a case was registered against the petitioners under sections 302, 307, 148, 149 and 188, P. P. C.

3. The petitioners contended that in the ordinary course the police should have taken action on both reports and submitted cross‑challans but that; owing to the powerful political influence of Mukarram Khan, only the petitioners were proceeded against, Nos. 1 to 13 being arrested the same night and the remaining four later. No action was taken against the alleged murderers of Nawab, Shahzad Mir and Muhammad Afzal.

4. The petitioners applied for bail to the Ilaqa Magistrate, but without success. They then filed a second application under section 498, Cr. P. C., before the learned Sessions Judge, Peshawar. The file was called for in that connection, but before the application could be heard the Commissioner, Peshawar Division, respondent No. 2, requisitioned the record. The learned Sessions Judge asked for its return, but instead of complying, the Commissioner on the 17th of December 1964, passed an order, copy of which is Annexure `B/1' to the petition. The offence under section 188, P. P. C. was left to the regular Courts, but the trial of the remaining offences was made over to a tribunal, ostensibly under section 3 of the Act.

5. Against the above order of respondent No. 2 the petitioners filed Writ Petition No. 625 of 1964, the respondents being (1) the State, (2) Commissioner, Peshawar Division, Peshawar, (3) the Deputy Commissioner, District Magistrate, Peshawar, and (4) the Senior Superintendent of Police, Peshawar. Of the various grounds on which the order is challenged, the following are particularly relevant for the purposes of this case and are reproduced verbatim:‑ "(vi) The rules containing factors for guidance for action under section 3 of the Criminal Law (Amendment) Act lay down that only those cases should go to Jirga where the accused are not named in the F. I. R., or if the offence takes place at night. In the present case the occurrence had taken place in broad daylight in the main bazar. Several persons were injured and their evidence as well as that of the shop keepers and by‑standers was clearly available. All this was deliberately ignored and to the list of thirteen petitioners named in the F.I.R., four other persons, namely, petitioners Nos. 14 to 17, were also added in order to make one of the rules of guidance for Jirga cases applicable to the circumstances of this case. Such twisting of the factors is a complete misuse of the process of law and mala fide and amounts to a fraud on the statute. (ix) No opportunity was given to the petitioners to show cause against the action which was taken against them, nor were they given any opportunity for being defended by a legal practitioner. (x) The Commissioner has referred the case against the petitioners to a tribunal under sections 302, 307, 148 and 149, P. P. C. The last two sections of the law did not exist when the Criminal Law (Amendment) Act was passed. These sections were added by the West Pakistan Ordinance (IX of 1964) which was published on the 25th May 1964. This Ordinance violates Fundamental Rights under the Constitution and is, therefore, ultra vires. The reference of the whole case is also therefore against law. "(xi) The Commissioner has also ordered a separate trial of the petitioners under section 188, P. P. C. This means that the petitioners will be tried on the same facts and for the same acts or omissions by two different tribunals and in two different manners."

6. None of the four respondents filed any written statement, but a statement was submitted by the Additional Deputy Commissioner, Peshawar, on behalf of respondent No.

3. To the version of the occurrence given by the petitioners in paragraph 4 (a) of the petition, the Additional Deputy Commissioner makes the following reply:‑ "It is incorrect. In fact the petitioners way‑laid the complainants in the bazar and opened fire at them, as a result of which Mohkam Khan, son of Mukarram Khan, was murdered and some others were seriously wounded. The facts are incorporated in the F.

1. R., Annexure 'A'. Of course some persons from the party of the petitioners were also injured, resulting in the death of three persons, one of whom is stated to be a passerby. This is apparently due to the fire opened by the companions of Mukarram Khan in their self‑defence." It is clear from the above that the Additional Deputy Commissioner has already decided in his own mind which is the correct version. He further goes on to observe: "The local police has registered two cases, F. I. R. No. 205 and F. T. R. No.

206. The petitioners being the aggressors have been challaned and their case recommended for action F under West Pakistan Act VII of 1963. The other case is still under investigation." He then strikes a somewhat belated note of caution: "On the face of it, the petitioners appear to be aggressors and as such their arrest was made. The question of the arrest of other party can be conclusively decided at the finalisation of the investigation of case F. I. R. No. 205." The Additional Deputy Commissioner concludes by stating that the accused have no right to be heard before the case is entrusted to the tribunal, that West Pakistan Ordinance No. IX of 1964 is valid; and that section 188, P. P. C. is an independent offence unconnected with the present occurrence, having been invoked as the petitioners violated an order under section 144, Cr. P. C., promulgated by the District Magistrate, Peshawar.

7. On the 6th of January 1965, a Division Bench of this Court passed the following order:‑ "Besides other points the following four points, which deserve full consideration, were raised:‑ (1) The Commissioner had taken no action with respect to the cross‑case in which three persons were murdered, and what would be its effect on the order of withdrawal passed by the Commissioner. (2) The vires of the Second Amending Ordinance IX of 1964, whereby offences under sections 148 and 149, P. P. C. were introduced was challenged, and since this amendment was enforced on the 25th of May 1964, after the First Amending Bill of the Constitution was promulgated, therefore, this amendment would not be protected under the Constitution. (3) The order of withdrawal was passed by the Commissioner in the absence of the petitioners, who were legally entitled under section 25 of the West Pakistan Criminal Law Amendment Act to be represented and defended by a legal practitioner of their own choice before the Commissioner in the proceedings, and its effect. (4) Since the Commissioner had acted on the report made by the Deputy Superintendent of Police, and therefore had not exercised his independent judgment, by virtue of the decision given in Writ Petition No. 1200 of 1964 by the Lahore Seat of the West Pakistan High Court, the withdrawal was illegal. Admitted. Notice. * * * * * * * Since questions involved are important, therefore, the case is referred to a Full Bench.

8. The facts alleged by the petitioners in Writ Petition No. 7 of 1965 are that on the 26th of December 1963, a large police party, including a Deputy Superintendent of Police and two Inspectors, took up a strategic position at a round about near this Court, blocking all traffic approaching along the Grand Trunk Road, the North Circular Road, and the Peshawar‑Charsadda Road. At 3‑30 a.m. a Chevrolet car came from the direction of the North Circular Road and was stopped. There were two occupants including the driver. Soon afterwards a yellow pick‑up also arrived, and when the police attempted to stop it the occupants opened fire. The driver of the Chevrolet Car then also fired, wounding a Sub‑Inspector. As a result of the firing from the pick‑up a Head Constable, Hussain Ghulam, was also fatally inured. The pick‑up succeeded in making off and was later found abandoned near the District Courts, a consignment of artificial silk yarn being recovered from it. Twelve persons were subsequently challaned, of whom nine were, at the time of the Commissioner's reference to a Tribunal, still absconding. The petitioner was not named in the first information report, no copy of which has been filed. It appears, however, that the charges were under sections 302, 307 and 109, P. P. C., section 167 of the Sea Customs Act, section 19 of the Arms Act, and section 512, Cr. P. C.

9. By order dated the 9th of November 1964, (copy Annexure `A' to the petition) the Commissioner, Peshawar Division, made over the trial of the offences under the Penal Code and the Sea Customs Act to a tribunal under section 3 of the Act. The offence under section 19 of the Arms Act was left to the regular Courts.

10. In the first instance the petitioner challenged the order of the Commissioner on the following main grounds: (1) That the fact that in spite of the occurrence having taken place in the presence of a number of police and other witnesses, the petitioner was not named in the first information report shows that it is a case of no evidence. (2) That the action of respondent No. 1 in referring the case to a tribunal is mala fide.

11. On the 14th of January 1965, however, he applied for the addition of the following grounds:‑ (1) That as section 109, P. P. C. is not included in the First Schedule to the Act, a reference could not have been legally made to the tribunal on the basis of that section. (2) That respondent No. 1 ignored the mandatory provisions of section 25 of the Act by failing to give notice of the date of hearing to the petitioner or to allow him to be represented by counsel. (3) That the impugned order offends against the Fundamental Rights. The application was admitted subject to all just exceptions, and the learned Additional Advocate‑General stated before us on the date of the hearing that he had no objection to its being granted.

12. We shall deal first with Writ Petition No. 7 of 1965. The order of reference to a tribunal passed by the Commissioner in this case is illegal on several grounds. In the first place, one of the sections of the Penal Code mentioned in the charges referred is

109. This section neither occurs in the First Schedule as originally framed, nor was it added by West Pakistan Ordinance IX of 1964. It is true that the section does not constitute a substantive offence, inasmuch as it merely provides punishment for the abetment of other offences, but in this respect it stands on the same footing as section 149, P. P. C., which also does not constitute a substantive offence, but makes A any member of an unlawful assembly responsible for any offence which he knew to be likely to be committed in prosecution of the common object of the assembly. If, therefore, section 149 could not be invoked in proceedings before a tribunal without being specifically included the same is equally true of section 109, and, as pointed out in the judgment of a Full Bench in Khizar Hayat, etc. v. The Commissioner, Sargodha and another Writ Petition No. 1195 of 1963, decided on the 13th of January 1965 (P L D 1965 Lah. 349), it is well‑settled that the Courts cannot supply a casus omissus. The order of the Commissioner is, therefore, bad on this grounds alone.

13. Further, it has already been pointed out that of the twelve persons alleged to have been concerned in the occurrence, no fewer than nine are said to be absconding. Section 512, Cr. P. C. is mentioned in the list of charges, though it is obvious that the said section does not constitute any offence. Sub section (1) of the section runs: "(l) If it is proved that an' accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable." The learned Commissioner's order overlooked the fact that section 512, Cr. P. C. is not one of the provisions of that Code which have been made applicable to proceedings under the Act. The tribunal should, therefore, have been directed to confine itself to the evidence against the three accused alone, and the failure to give such a direction might easily cause grave prejudice to them, particularly since, without the addition of the allege absconders, section 149, Cr. P. C., can have no application.‑D Further, the tribunal is not a `Court' within the meaning of section 512, Cr. P. C., and so cannot avail itself of that section.

14. Quite apart, therefore, from the questions common to both petitions, with which I shall presently deal, the order of reference passed by the Commissioner in this case cannot be maintained.

15. Coming now to Writ Petition No. 625 of 1964, I shall first deal with the points specifically referred to us, though it is to be noted that we are not debarred from considering other grounds also, the intention of the reference being that both petitions should be finally decided by this Bench.

16. The first of the said points is: "The Commissioner had taken no action with respect to the cross‑case in which three persons were murdered, and what would be its effect on the order of withdrawal passed by the Commissioner." My answer to this question would be that, however peculiar the procedure adopted in this case, the Commissioner was not compelled by the Act to refer the cross‑case to a tribunal, and his failure to do so would not in itself render his order illegal.

17. The second point is: "The vires of the Second Amending Ordinance IX of 1964, whereby offence under sections 148 and 149, P. P. C. were introduced was challenged, and since this amendment was enforced on the 25th of May 1964, after the First Amending Bill of the Constitution was promulgated, therefore, this amendment would not be protected under the Constitution." In my opinion the answer to this question will depend on whether the amendment is or is not contrary to the Fundamental Rights, since it would be going too far to argue that merely because the Act in its original form was protected, any amendment which introduces a further violation of the Fundamental Rights enjoys the same protection. So far as the amendment row under consideration is concerned, however, I am of the view that it does not offend against those Rights, but G on the contrary removes an anomaly. As already pointed out, section 149, P. P. C. is not a substantive offence, and therefore no trial in a regular Court could be based on it alone. On the other hand, so long as it was omitted from the First Shedule to the Act it could also not be invoked by the tribunal, with the result that a number of guilty persons might escape punishment for their crimes, and the Fundamental Rights enjoyed by a citizen certainly do not include such immunity. So far as section 148 is concerned, it is to be noted that not all cases under section are referable to a tribunal, the new clause (c) introduced into Schedule I of the Act runs "148 and 149, Pakistan Penal Code, when in conjunction with offences specified in clauses (a) and (b) of this Part." The amendment has thus the merit of lessening the danger o conflicting decisions, one by a regular Court trying the offence under section 148, and one by a tribunal trying the remaining offences. Since, therefore, the amendment is not contrary to the Fundamental Rights, the question whether, if it had been, it would have been entitled to protection does not arise.

18. 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 the 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 I 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 given 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.

19. The fourth point is whether, since the Commissioner had acted on a report made by the Prosecuting Deputy Superintendent of Police and had not exercised his own independent judgment, the order of withdrawal was illegal. This contention is based on a complete misapprehension. Reference to the document forming Annexure `B/4" to the petition shows that all that the P. D. S. P. reported was that the file was with the Additional Sessions Judge. The relevant portions runs: The P. D. S. P., therefore, expressed no opinion on the question whether the case should be referred to a tribunal, and there is nothing to show that the Commissioner did not exercise his own independent judgment.

20. My answer to the four questions specifically referred to this Bench is as above.

21. Since, however, the whole petition has been referred to us for decision, it must be pointed out that the Commissioner's order must, in view of the decision of the Full Bench, in Writ Petition No. 1195 of 1963, referred to in para. 14 above, be quashed on yet another ground. The Commissioner has separated the offence under section 188, P. P. C. from the others and left it to be tried by the ordinary Courts, a procedure which, as held by the Full Bench, was either illegal, or, in the alternative, contrary to the principles of natural justice. The case now before us affords an excellent example of the anomalies that may arise if such a procedure is allowed to be adopted. Learned counsel for the State attempted to support the contention of the Additional Deputy Commissioner that section 188, P. P. C. is an entirely independent offence, but this argument is obviously untenable. The basis of the charge under section 188 brought against the petitioners is that they violated the order of the District Magistrate, Peshawar, under section 144, Cr. P. C. forbidding five or more persons to assemble. On the other hand, one of the charges against the petitioners referred to the tribunal is that they formed an unlawful assembly, in prosecution of the common object of which they caused the death of Mohkam Khan. The evidence in both cases is the same, and the possibility cannot be excluded that on that evidence the Court trying the alleged offence under section 188, P. P. C. might come to the conclusion that the charge had not been proved, while at the same time the petitioners might be convicted under section 302/149, P. P. C. by the tribunal.

22. For the above reasons I would accept both the petitions, and quash the orders of withdrawal passed by the Commissioner.

23. Learned counsel in both petitions made a request that if the petitions succeeded, the petitioners should be granted bail. They should apply in that behalf to the ordinary Courts.

24. It was also argued before us that the West Pakistan Criminal Law Amendment Rules are ultra vires of section 33 of the Act, subsection (2) of which provides: "The rules to be made under subsection (1) shall, among other matters, lay down the principles ensuring equality before law to be followed by the Commissioner in making references to tribunals under section 3." This is a point of great importance, and as the petition can be disposed of on other grounds, I do not consider it either necessary or expedient to deal with it in these proceedings. BASHIRUDDIN AHMAD, J.‑The facts have been fully set out in the judgment of my learned brother, Ortcheson, J. with whom I agree. I would add that in the light of the judgment in Khizar Hayat's case W. P. No. 1195 of 1931, decided on the 13th of January 1965, which is a decision by the Full Bench, I consider that the Division Bench judgment in W. P. 8 of 1964 Ahmad Khan v. Commissioner, Rawalpindi Division and Deputy Commissioner, Campbellpur (P L D 1965 Pesh. 65) no longer holds the fields and with the utmost respect with the view expressed by my learned brother Faizullah Khan, J. I am unable to agree with the reasoning that the decision in Khizar Hayat's case is not a Full Bench judgment. I am of the opinion that the judgment in Khizar Hayat's case is binding on us. FAIZULLAH KHAN, J.‑I have had the advantage of reading the judgment prepared by my learned brother Ortcheson, J. which governs the two Writ Petitions Nos. 625 01 1964 and 7 of 1965, which were referred to the Full Bench. The facts leading up to the two writ petitions, referred to above, have been fully stated by my learned brother, and I do not propose to encumber my judgment by reiterating the same. In Writ Petition No. 625 of 1964 four questions were formulated for reference to the Full Bench. While agreeing with the answers returned by my learned brother on all the four questions, I, with profound respect and no less regret am unable to agree with him on the point that the reference to the Tribunal by the Commissioner in both the cases was bad and the matter was concluded by the judgment of the Full Bench in 1Chizar Hayat, etc. v. The Commissioner, Sargodha Division, Sargodha and another Writ Petition No. 1195 of 1963 decided on 13th of January 1965. At this stage I do not propose to discuss the merits of the majority judgment of the three learned Judges in Khizar Hayat etc. v. Commissioner, Sargodha Division (which has been referred to by my learned brother as a Full Bench), suffice it to say that the compelling reason which has weighed with me in not agreeing with the finding of my learned brother that the withdrawal of the cases by the Commissioner was bad in both the writ petitions, is that I regard the majority judgment of three Judges as a Division Bench judgment and not as a Full Bench judgment. If the majority judgment could be regarded as a decision of a Full Bench, the matter would have been concluded and it was binding on me and for the matter of that on a Division Bench.

2. Before pursuing the discussion further on this point, it will be convenient here to state that in Khizar Hayat's case a Division Bench comprising of Muhammad Yaqub Ali and Nazir Ahmad Mahmood, JJ. formulated the following question and requested "the learned Chief Justice to nominate a larger Bench for the disposal of the reference." "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 Court under the Criminal Procedure Code, 1898." The majority; judgment of Mr. Justice J. Ortcheson and Mr. Justice N. A. Mahmood answered the question in the negative, while Muhammad Akram, J. in a dissenting judgment answered the question in the affirmative.

3. It is important to observe here that an almost identical question was raised in Writ Petition No. 8 of 1964 Ahmad Khan v. Commissioner, Rawalpindi Division, Rawalpindi before a D. B. comprising of myself and my learned brother Bashir‑ud‑Din, Ahmad, J. The question raised in the petition was "whether it was a cardinal principle that all offences, which were committed in the course of the same transaction, must be made a subject‑matter of one trial," and in case all the charges of which the accused were charged were not listed in the Schedule; the Commissioner was not competent to drop the charges or split the offences and refer the guilt or innocence of the accused only on the charges which were enumerated in Schedule I. We repelled this contention. It will be profitable here to reproduce the principal reasons which prevailed with us in so repelling the contention. In para. 6 we observed: "It is one of the cardinal rules of construction that where an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employ such means which are essentially necessary to its execution. This cardinal rule is based on the doctrine of "implied powers" which in turn is embodied in the maxim "quando lex aliquid alicui concedit conceditur et id sine quo res ipsa esse non potest.' Continuing further at page 6 it was observed:‑ "There is another aspect of the case and it is, since the Act confers jurisdiction in the Commissioner to refer the question of guilt of the accused for the offence detailed in Schedule I to the Tribunal, it carries with it by implication the power of doing all such Acts or employing such means as are necessary for its proper execution, namely, in the instant case, to split up the charges or drop such charges altogether which were not triable by the Tribunal and to refer only such offence or offences which are so triable. Reference may be made to R. v. Teyford (1836) 5 A & E 430 wherein it was held that: `An Act which gave justices power to require persons to take an oath as special constables and to inquire into an offence was impliedly held to give them jurisdiction to apprehend the person who unlawfully failed to attend before them for that purpose.'

4. I revert to the question whether the majority decision in Khizar Hayat's case can be regarded as Full Bench decision. The term "Full Bench" has not been defined. Para. 6 of the Rules and Orders of the High Court of Judicature at Lahore (Vol. V, Chap. 3‑B), reads thus:‑ "A Full Bench shall ordinarily be constituted of three Judges, but may be constituted of more than three Judges in pursuance of an order in writing by the Chief Justice." The question then arises whether the decision of three or more Judges per se can be regarded as a decision of a Full Bench. After giving my anxious consideration to this question, I have formed the opinion that the question should be answered in the negative, in that to constitute a Full Bench the record must clearly show that the referring Bench had considered necessary the decision of certain points, and requested the Chief Justice for constitution of ` a Full Bench', and the Chief Justice had agreed to the constitution of `a Full Bench'. In the instant case, the record of the case clearly shows that the Division Bench in view of the importance of the question raised had considered it necessary that `a larger Bench' should be constituted and requested "the learned Chief Justice to nominate a larger Bench for the disposal of this reference". In other words, the Division Bench had not requested for the constitution of a Full Bench nor was the case referred to the Full Bench as such for a decision. The term "larger Bench" even if it comprises of more than three Judges would not par se constitute a Full Bench. I am fortified in this view by the decision of a Full Bench in Dhirendra Nath Bera v. Nurul Hudda and others (1). Harries, C. J. at page 135 while dealing with the very same question observed thus:‑ "This decision of five learned Judges has been referred to in other cases as a decision of a Full Bench. But it is quite clear from the records of this Court that it was a decision of special Bench and, therefore, though five learned Judges constituted the special Bench the case only has the authority of a decision of a Division Bench." Continuing further, his Lordship tersely summed up the discussion thus: "If this case could be regarded as the decision of a Full Bench the matter would have been concluded. But it cannot be so regarded." I may also profitably refer to section 17 of the Divorce Act (Act IV of 1869) which requires confirmation of decree for dissolution of marriage by the District Judge to be heard (where the number of the Judges of the High Court is three or upwards) "by a Court composed of three such Judges", and notwithstanding the fact that the decree for dissolution of marriage is confirmed by three Judges, yet the decision of the three Judges does not constitute a Full Bench but is regarded as a "Special Bench". This view finds further support in clause 26 of the Letters Patent in which the Division Court has been described to comprise of two or more Judges. The material part of the said clause may be better reproduced, which reads thus: " .. and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it."

5. On merits too, with respect, I find it difficult to see eyes to eye with the views expressed in Writ Petition No. 625 of 1964 that the procedure adopted by the Commissioner in separating the offence under section 188, P. P. C. from the others A: and leaving it to be tried by the ordinary Courts, "was either illegal or, in the alternative, contrary to the principles of natural justice." The principal reason which weighed with the learned Judges, who delivered the judgment, regarding this procedure being illegal, was that it was likely to lead to a conflict of judgments, in that in a given case the Magistrate may acquit the accused of a cognate offence which was not referable to the Tribunal while the Tribunal may on the same facts record conviction of the accused for the major offence. I am in respectful agreement with my learned brothers that such procedure would afford "an excellent example of the anomalies that may arise", but the real question is whether the Court has any power at all of declaring an Act or any provision in a statute to be illegal, in particular when the competency of the Legislature in enacting the statute or a provision is not open to any question. In other words, if the Legislature is competent to enact a statute or a provision, I am not aware of any law which would entitle the Court to declare it as illegal, on the ground that it would lead to conflicting judgments.

6. By parity of reasons the same argument would apply to the procedure being "contrary to the principles of natural justice". If the Legislature is competent to enact a law the fact that in some aspect of its application it runs contrary to the 10 principles of natural justice, would not empower the Courts to declare the procedure as illegal.

7. It will be convenient here to have a brief discussion as to what is meant by the principles of natural justice. The principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi‑judicial authority while making P an order affecting those rights. These rules are intended to prevent such authority from doing injustice. There are only four principles of natural justice which are recognised by Courts. In this connection I would borrow the observation of Agarwala, J. In the decision reported in Ch. Mukhtar Singh and others v. The State of U. P. and others (A I R 1957 All. 297). At page 301, his Lordship listed the following four principles: (1) That every person whose civil rights are effected must have a reasonable notice of the case he has to meet. (2) That he must have reasonable opportunity of being heard in his defence. (3) That the hearing must be by an impartial tribunal, i.e. a person who is neither directly nor indirectly a party to the case `nemo debet esse judex in propria causa. Frome United Breweries Co. v. Bath Justices 1926 A C 586 (A) or who has an interest in the litigation R. V. L. C. C. (1895) 71 L T 638 (B) is already biased against the party concerned: 1926 A C 586 (A). (4) That the authority must act in good faith and not arbitrarily but reasonably: 1911 A C 179 at p. 182 (C). I may also profitably borrow the terse observations of his Lordship, when in para. 10 it was observed: "Of those the first case alone implies a restriction on the power of the Legislature. The other two are restrictions on subordinate legislative or administrative or judicial or quasi judicial bodies. Under the Indian Constitution except as provided in Article 14 of the Constitution there is no general limitation on the power of the Legislature that it will not enact a law contrary to the principles of natural justice. If a certain procedure is prescribed by law then unless it contravenes the provisions of Article 14, it cannot be challenged as invalid upon any supposed principles of natural justice." It follows from the above authority that (1) the rules of natural justice are four only and (2) that subject to the provisions of the Constitution there is no other limitation on the powers of the Legislature to enact any law contrary to the principles of natural justice. In other words, if a certain statute abrogates the principles of natural justice its vires cannot be called into question unless it infringes any provision of the Constitution. It is important to observe here that the Criminal Law Amendment Act by the Constitution (First Amendment) Act of 1963, under Article 6, sub‑clause (3) (ii) is protected and neither the Act nor any provision thereof shall be void on the Q ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter. In other words, the fundamental rights which include principles of natural justice are no longer justiciable (sic). I would wind up the discussion by extracting a passage from the judgment of the Supreme Court of India in the State of Bihar v. Kameshwar Singh (AIR 1952 S C 252) when the Court examined the Acts in detail to find out if the Acts or any portion thereof were unconstitutional. At page 272, Mahajan, J., speaking for the Supreme Court, expressed himself as follows:‑ "However repugnant the impugned law may be to our sense of justice, it is not possible for us to examine its contents on the question of quantum of compensation. It is for the appropriate legislature to see if it can revise some of its unjust provisions which are repugnant to all notions of justice and are of an illusory nature. The Court's hands are tied by the provisions of Article 31 (4), and that which has been declared by the Constitution in clear terms not to be justiciable cannot be made justiciable in an indirect manner by holding that the same subject‑matter which is expressly barred is contained implicitly in some other entry and therefore open to examination."

8. For all the foregoing reasons and keeping in view the importance of the constitutional question raised in the case, and the further fact that in the two writ petitions the vires of the rules framed under the Criminal Law Amendment Act being inconsistent with the provisions of section 33 of the Act has also been canvassed, it will be desirable that the case be referred to a "Full Bench", comprising of five Judges, which would also resolve the conflict between the decision of the Division Bench in Ahmad Khan v. The Commissioner, Rawalpindi Division and the majority judgment in Khizar Hayat's case.

9. I, however, respectfully agree with my learned brother Ortcheson, J. that the petitioners in both the writ petitions should apply for bail to the ordinary Courts. K. B. A. Petitions accepted.