P L D 1968 Lahore 1441 (PLP)

ANWARUL HAQ, J.‑‑--The following four questions have been referred to this Full Bench by a Division Bench of this Court:‑-- (1) What is the meaning and scope of the words "any person accused of an offence" as used in subsection (1) of section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 ? Do they include all persons against whom any allegation or accusation with regard to the commission of a scheduled offence has been made either by way of a private complaint or by way of registration of a case with the police; or do they refer only to those persons who are actually sent up for trial before the Court from which the case is sought to be transferred to a Tribunal ? (2) In case it is held that the words "any person accused of an offence" are of a wider import than the words "the accused", then what is the meaning to be placed on subsection (2) of section 3 of the Act, which deals with pending cases and speaks of "the accused"? (3) Is it permissible for the Commissioner to refer a case under section 3 of the Act for reasons which have no relation at all to the guiding principles enumerated in rule 3 of the Rules framed under the Act ? (4) Is it necessary for the Commissioner to hear the accused before passing an order of reference under section 3 of the Act ?

2. The last question has been referred under a separate order, to a Full Bench consisting of five Judges and accordingly the present opinion concerns only the first three questions. Ch. Nazir Ahmad Khan, who had appeared for the petitioners before the Division Bench, stated that he had no instructions to appear before the Full Bench. We accordingly called upon Mr. A. G. Chaudhary to assist us as amicus curiae. We are grateful for the assistance rendered by him.

3. At this stake it will be useful to give a brief resume of the facts giving rise to these questions. On the 28th of October 1963 a case under sections 148 and 302/149, P. P. C. was registered at police Station Bhawana, Tehsil Chiniot, District Jhang, on the report of one Sahib Khan relating to the death of one Muhammad Panah. The six petitioners Noor Muhammad, Zulfiqar, Ahsanullah, Amanullah, Amira and Manzura, as well as one Shera, were named as the culprits. The investigation of the case was first taken up by the local police but later on the investigation was entrusted to the Crimes Branch, and in the final report submitted under section 173, Cr. P. C. It was reported that after a thorough inquiry it had been found that all the six petitioners were innocent and none of them had taken part in the attack on the deceased. The report further stated that only the seventh accused person, namely, Shera, had committed the offence. In coming to this conclusion the investigating officer mentioned that he was fully satisfied with the alibis of the six petitioners. They were accordingly mentioned in column No. of the challan, and the Court was requested to summon them as accused persons, if so desired. It was stated at the Bar that the Magistrate had not yet summoned any of the petitioners as accused in the case.

4. It is not clear on the record whether any evidence has so far been recorded by the Magistrate during the commitment proceedings, but the investigating agency recommended to the Commissioner, Sargodha Division, that the case of Shera be tried by a Tribunal constituted under the West Pakistan Criminal Law (Amendment) Act 1958 (hereinafter referred to as the Act). This recommendation was accepted by the Commissioner who, by his order dated the 28th of April 1964; not only referred the case of Shera to the Tribunal but also made a reference with regard to the guilt or innocence of the present six petitioners, in spite of the fact that the investigating agency had reported that there was no evidence against them.

5. In the order of reference the learned Commissioner gave the following reasons :‑-- (i) That there is no independent eye‑witness to the occurrence, (ii) That there is a disparity in the statements of the P. Ws., (iii) That there has been a delay of 14 hours in lodging the F. I. R. with the police, (iv) That no independent version of the occurrence is forthcoming ; and (v) That there is a contradiction between the investigation report made by the local police and that made by the Crimes Branch.

6. As all the three questions, which we are considering here, have to be answered with reference to section 3 of the Act and Rule 3 of the West Pakistan Criminal Law (Amendment) Rules, 1963 framed under section 33 of the Act, these two provisions of law art reproduced here for facility of reference:‑-- "Section 3.‑(1) where, in the opinion of the Commissioner it is in expedient in the interest of justice, that the question of the guilt or innocence of any person accused of a scheduled offence 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, 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 enquiry as may be necessary and after hearing the accused. (1‑A) Where the Commissioner decides to refer, under the provisions of subsection (1), the question of the guilt or innocence of any person to a Tribunal, and such person is accused of a scheduled offence, as well as one or more offences not specified in the First Schedule (whether committed in the course of the same transaction in which the scheduled offence was committed or otherwise), only the question relating to the scheduled offence shall be referred to the Tribunal, and the offence not specified in the First Schedule shall be dealt with as if this Act were not in force. (2) Where any Court is enquiring into or trying any schedul ed offence, whether along with an offence not specified in the First Schedule, or otherwise, the reference m respect of the scheduled offence may be made at any time before the charge is framed against the accused person, and for the purpose of making such reference, the Commissioner may requisition the record of the case from the Court concerned: Provided that a reference in respect of an offence specified in clause (a) of Part B of the First Schedule 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 clause (d) of Part A or 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 Govern ment may specify in this behalf where such servant is 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 previous ly been obtained under the provisions of subsection (5) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958. (4) The Commissioner may, notwithstanding that he may have previously declined to refer the question of the guilt or innocence of any person accused of a scheduled offence to a Tribunal, refer such question to a Tribunal, if fresh grounds in support of such reference are made out. (5) The Commissioner may refer the question of the guilt or innocence of any person accused of a scheduled offence to a Tribunal in accordance with the provisions of this section, notwithstanding that he has previously declined to refer such question to a Tribunal solely on the ground that the reference, if made, would involve bifurcation of a scheduled offence or offences from a non‑scheduled offence or offences, or an order made by the Commissioner referring such question to a Tribunal has been set aside by Government in exercise of its powers of revision under this Act or by any Court, solely on the ground that such reference was in respect of both scheduled and non‑scheduled offences or involved bifurcation of a scheduled offence or offences from a non‑scheduled offence or offences." "Rule

3. The following factors shall be considered by the Commissioner in determining whether a case be referred to a Tribunal for decision‑ (a) in murder, culpable homicide not amounting to murder, attempt to murder, dacoity and robbery cases, that the accused have not been named in the F. I. R., or the assassins or any of them are alleged to have been hired or that the offence is alleged to have been committed between the hours of sunset and sunrise ; (b) in cases under section 363 of the Pakistan Penal Code that the accused are not closely related to the kidnapped persons; (c) in cases under section 498 of the Pakistan Penal Code, that the accused is not closely related to the enticed woman ; (d) in cases under section 215 of the Pakistan Penal Code, that the stolen property has not been recovered ; (e) in cases relating to theft or receiving of stolen property, that the stolen property has not been recovered. (j) in cases of receiving illegal gratification that the con sideration alleged to have been passed has not been recovered from the possession of the public servant ; (g) in cases falling under clause (c) of section 5 of the Prevention of Corruption Act, 1947 that the amount or the value of property misappropriated or dishonestly converted exceeds rupees ten thousands ; (h) in cases falling under item 81 of the Schedule to section 167 of the Sea Customs Act, 1878 and section 7 of the Land Customs Act, 1924, that the value of the smuggled property exceeds rupees five thousands ; (i) that the accused has or is likely to tamper with any witness ; (j) in arson cases punishable under sections 435 and 436 of the Pakistan Penal Code, that any agricultural produce or any building used as a human dwelling or for the custody of property is destroyed or damaged".

7. The first two questions may be taken was submitted by Mr. A. G. Chaudhary that hp together. It as far as sub section (2) of section 3 of the Act was concerned it was clear that the term "the accused" used therein meant the accused then under trial or inquiry, and did not include those persons whose names were merely included in the challan but who were not summoned at the trial, and reliance in this behalf was placed on Keshar Vasudeo Kortikar v. Emperor (A I R 1935 Bom. 186) and Emperor v. Karamalli Gulamalli (A I R 1938 Bom. 481). This position was not contested by Mr. Aslam Riaz Hussain, the learned Assistant Advocate‑General appearing for the State. As regards the interpretation of the relevant phrase appearing in subsection (1) of section 3 of the Act, it was submitted by the learned counsel appearing as amicus curiae that the words appeared to be of a wide import so as to include all persons against whom any charge or accusa tion has been brought concerning a scheduled offence. The learned counsel for the parties also drew our attention to two decided cases in which section 3 of the Act has come in for interpretation, namely, Mir Muhammad and another v. District Magistrate, Nawabshah (P L D 1965 Kar. 494) and Taj Muhammad Khan v. The State and others (P L D 1966 Lah. 475). In the case of Mir Muhammad a difference of opinion arose between J. H. Rizvi, J. and A. S. Faruqui, J. as to the competence of the High Court to interfere with an order of reference made by the Commissioner under section 3 of the Act. J. H. Rizvi, J. held that according to section 3 of the Act as soon as a person is accused of an offence the Commis sioner can straightaway take action and refer the case for trial to a Tribunal, but he went on to say that "the law as it stands, therefore, now permits the Commissioner to make a reference to a Tribunal irrespective of whether there is evidence to warrant the putting of a challan in Court or not and the High Court in exercise of its writ jurisdiction cannot scrutinize the order of reference made by the Commissioner". A. S. Faruqui, J. took a contrary view and observed:

"The inferences that as soon as a person is accused of a scheduled offence by means of a first information report with the police, the Commissioner is entitled to make a reference to the Tribunal under section 3 of the Act and that a reference would be competent even before the investigating officer had collected any evidence at all are not permissible by the scheme of the Act . . . . . . . Moreover, in order to give jurisdiction to the Commissioner for the exercise of the power under section 3 of the Act, it must appear in his opinion to be inexpedient in the interest of justice that the question of guilt or innocence of a person be tried by the ordinary Courts. How can this opinion be formed merely upon the F. I. R.? It is, therefore, necessary that before the Commissioner may act under section 3 of the Act he must have a full report of the case before him . . . If upon the scrutiny of these reports or from the record of the case it appears to the High Court that upon the facts before the Commissioner points do not emerge which, if established, will suffice for the conviction of the accused persons, the High Court in the exercise of its special jurisdiction under Article 98 of the Constitution, 1962 would be entitled to quash the reference made by the Commissioner."

8. On the case being referred to a third Judge, namely, Inamullah, J. (as he then was), it Was held that "there is no doubt that the language of subsection (2) of section 3 is wide enough to give jurisdiction to the Commissioner to 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 even before any investigation has commenced by the police and immediately after the F.I.R. is lodged" but the learned Judge went on to agree with A. S. Faruqui, J. on the question of the jurisdiction of the High Court to interfere with an order of reference made by the Commissioner if it be found that it related either to a non‑scheduled offence, or from the evidence points did not emerge which, if established, would suffice for the conviction of the accused person. It seems to us that the learned Judge has inadvertently referred to subsection (2) instead of subsection (1) of section 3 of the Act while observing that the language of the subsection was wide enough, as sub section (2) is clearly limited to pending cases and does not deal with those cases where even the investigation has not yet commenced. In fact, the position which emerges from the three judgments delivered in this case is that all the three learned Judges agreed that subsection (1) of section 3 permitted reference to a Tribunal of the case of any person accused of a scheduled offence irrespective of the fact whether he was actually challaned in an ordinary Court or not and the difference between the learned Judges composing the Division Bench was only with regard to the material on which the Commissioner should base his opinion regarding the inexpediency of the trial by an ordinary Court, and as to the jurisdiction of the High Court to interfere with such an order.

9. In the case of Taj Muhammad Khan it was observed :‑‑ "A person is accused of an offence when a report of the commission of an offence is registered against him, or when a report of the commission of an offence is submitted against him by the police under section 173 Cr. P. C. These are two instances in which a person may de said to be accused of an offence. Therefore, either a First Information Report or a challan submitted by the police may be taken as the basis of the accusation. When either an R, I. R. is recorded against a person, though there has been no investigation, or when a report under section 173, Cr. P. C. has been submitted after investigation by the police against a person, the first require ment of an accusation of an offence for the reference of a case to a Tribunal by the Commissioner exists."

10. The word "accused" is not defined in the Act, nor is it defined anywhere in the Criminal Procedure Code. However, in several sections of that Code words and phrases have been used which give the impression that the framer of the Code have employed the word "Accused or the words "person accused of an offence" or the term offender" more or less as being interchangeable terms, without having any special significance as terms of art. For instance, in section 157, which prescribes the procedure to be followed by an officer‑in‑charge of a Police Station who has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, it is laid down that such officer can arrest "the offender". In section 162 the reference is to "the accused", who is facing an inquiry or trial and is entitled to a copy of the statements recorded by the Police Officer during the investigation of the case. Although section 162 refers to the stage of inquiry or trial and uses the words "the accused" with reference to that stage, yet in section 167 the words "the accused" are employed to describe a person who has been arrested and detained in custody during the earliest stages of investigation, namely, the first twenty‑four hours. The section enjoins the Police Officer to produce "the accused" before a Magistrate for obtaining a remand for the purpose of completing the investigation. Again, section 169 of the Code contains the term "the accused" as referring to a person whose case is still under investigation. Same is the case in section

170. In section 436, however, which confers power to order further inquiry, the expression used is, "any person accused of an offence who has been discharged", but in the very next section, namely, section 437, the phrase "an accused person" has been employed. Lastly, in sections 496 and 497 the terms used are "any person accused of any non bailable offence", but in subsection (2) of section 497 itself again the term "the accused" has been used.

11. From the manner in which the two phrases, namely, "the accused" and "a person accused of an offence" have been used in the various sections of the Criminal Procedure Code, it is clear that these terms have to be given their ordinary dictionary meaning according to the context in which they appear, and no question of attaching to them any fixed meaning or significance arises. It seems to us that the same position obtains with regard to the use of these words and phrases in the various subsections of section 3 of the Act. According to the New Standard Dictionary, to accuse means, inter alia, "to charge with wrong doing, misconduct or error make a charge of crime or misdemeanor against, especially before a judicial officer or tribunal"; and the word "accused" means "one against whom a charge is made". While interpreting the words used in various parts of section 3 of the Act, these ordinary dictionary meanings have to be kept in view.

12. In subsection (1) of section 3 of the Act the words used are "of any person accused of a scheduled offence or of any several persons so accused". These words are clearly of a comprehen sive nature so as to include the case of any person against whom an allegation or charge regarding the commission of a scheduled offence has been made, irrespective of the fact whether his case is sent up to a Court under section 173 of the Criminal Pro cedure Code or not. To put it differently, the words used in subsection (1) include the case not only of a person who has been, to use the popular phrase, challaned by the police, but also include those persons against whom either a First Informa tion Report has been lodged or a private complaint has been made containing allegations that he has committed a scheduled offence. The words thus apply to cases which are still in the investigation stage as well as to cases of which cognizance has been taken by a Criminal Court and which are pending therein.

13. The words used in subsection (1‑A) of section 3 of the Act are analogous to those used in subsection (1) and the remarks we have made above will equally apply to this subsection as well.

14. Subsection (2) of section 3 deals with a case which is pending before an ordinary Criminal Court for inquiry or trial, and in that context it is clear that the phrase "the accused person" has reference to the person who is actually standing the inquiry or trial, and not to a person who may be merely mentioned in column 2 of the challan but who has not been summoned by the Court to appear before it as an accused person for the purpose of that inquiry or trial. A reference to the Tribunal in respect of a case covered by subsection (2) of section 3 would thus be in respect of "the accused" concerned in that case. This section is primarily intended to limit the stage beyond which the Commissioner is not competent to make a reference in a pending case, namely, before the charge is framed against the accused person and if the offence be on specified in clause (a) of Part B of the First Schedule to the Act, then at any time before the judgment is pronounced.

15. There is, however, in our view, no contradiction between subsection (1) and subsection (2) of the Act, and sub section (2) cannot be interpreted as laying down that the case of those persons who are mentioned in column 2 of the challan and who have not yet been summoned as accused persons cannot at all be referred to the Tribunal. It is true that they are notes "the accused persons" in the case which is pending in the ordinary Criminal Court, and, therefore, the reference in respect of such persons will not be under subsection (2), but under subsection (1) of section 3 of the Act which, as already stated, is of a more comprehensive character.

16. Although the reference made to us by the Division Bench is confined only to subsections (1) and (2) of section 3 C of the Act, yet we consider it proper to make a brief reference to the other subsections as well so as to obviate any controversy regarding their scope and meaning. Subsection (3) deals with the cases of public servants and here the term "the accused" clearly has reference to a person against whom a charge or accusation has been brought, irrespective of the fact whether his case is still under investigation or has been taken cognizance of by a Court, but the limitation laid down by subsection (2) as to the stage at which reference can be made in a pending case would obviously apply even in respect of cases covered by subsection (3).

17. The words used in subsections (4) and (5) are the same as employed in subsection (1) of the section, and accordingly they carry the same comprehensive meaning as attaches to the words appearing in subsection (1), and nothing more needs be said about these two subsections.

18. In the preceding paragraphs we have endeavoured to set out the meanings to be attached to the words "any person accused of an offence" or the words "the accused" appearing in the various subsections of section 3 of the Act, but nothing said by us in this context is to be taken to mean that section 3 confers any power on the Commissioner to refer to the Tribunal the case of a person against whom, upon the facts before the Commissioner, points do not emerge which, if established, will suffice for his conviction of scheduled offence. This aspect of the matter stands concluded by the judgment of the Supreme Court in Nawab Gul's case (P L D 1963 S C 270) as well as by several other judgments delivered by this Court namely Manzoor Ahmad v. Commissioner, Lahore Division and others (P L D 1964 Lah. 194), Haji Muhammad Khan v. Additional Commissioner and Commissioner F. C. R. Quetta and others (P L D 1965 Lah. 401), Mir Muhammad and another v. District Magistrate, Nawabshah and others and Sabir Khan v. Commissioner, Peshawar Division, Peshawar and another (P L D 1966 Pesh. 248). We have thought it necessary to clarify the position in this behalf for the reason that in the present reference we are merely dealing with the meaning to be attached to certain words, and not with the question of expediency or inexpediency which falls to be decided by the Commissioner under section 3 of the Act in the light of the facts presented before him.

19. We may now turn to the third question, namely, whether it is permissible for the Commissioner to refer a case under section 3 of the Act for reasons which have no relations at all to the guiding principles enumerated in rule 3 of the Rules framed under the Act. It was submitted by Mr. A. G. Chaudhary that subsection (2) of section 33 of the Act lays down that "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 reference to Tribunals under section 3" and, therefore, it was clear that the Commissioner had to be guided by the factors contained in rule 3 which was mandatory in nature. It was contended by the learned counsel that if the Commissioner was to base his reference on considerations other than those mentioned in rule 3, then there would be a violation of the equality clause embodied in subsection (2) of section 33, rendering the reference invalid. In support of this position Mr. A. G. Chaudhary drew pointed attention to the fact that the rule in its present form prescribed that "the following factors shall be considered by the Commissioner in determining whether a case be referred to a Tribunal for decision . . . . . ."

20. Mr. Aslam Riaz Hussain, the learned Assistant Advocate‑General, contended, on the other hand, that the power of referring a case to a Tribunal having been conferred by section 3 of the Act, the same could not be curtailed by a rule framed under the Act; and that the purpose underlying sub section (2) of section 33 was sufficiently served by the fact that rule 3 contained guiding principles which had to be considered by the Commissioner at the time of deciding whether a reference should be made or not. The learned Assistant Advocate‑General further submitted that the Commissioner would be within his rights to consider other factors which were related to the object of the legislation, namely, ensuring speedy trial and more effective punishment of certain heinous offences in West Pakistan.

21. There is no doubt that the Commissioner derives his powers from section 3 of the Act, and this provision of law makes it a matter of expediency or inexpediency in the interest of justice whether the question of the guilt or innocence of any person accused of a scheduled offence or of any several persons so accused be tried by an ordinary Criminal Court or be referred to a Tribunal constituted under the Act. As laid down in the case of Nawab Gul "the matter of expediency is within the judgment of an executive authority and the Courts cannot be the final judges in a matter which is entrusted by the law to the executive for decision." If section 3 of the Act had stood by itself the position might then have been that it was within the unfettered discretion of the Commissioner to decide as to when a case should be referred to a Tribunal; but the Legislature has in its wisdom, included another provision in the statute which seems to he in the nature of a limitation on the power of the Commissioner as conferred by section

3. Subsection (1) of section 33 of the Act empowers 1 the Government to make rules to carry out the purposes and objects of the Act, and subsection (2) thereof lays down, as already stated, that 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 a reference to Tribunals under section

3. It is clearly that rule 3, which lays down the factors which have to be considered by the Commissioner in determining whether to refer a case to a Tribunal, is in pursuance of subsection (2) of section 33 of the Act. The question, however, still remains whether the rule is exhaustive in character or whether it has merely to be construed as laying down guiding principles which the Commissioner must take into account before coming to his decision regarding the inexpediency of the trial by the ordinary Courts.

22. When the Rules were first promulgated on the 19th of July 1963, rule 3 laid down that, among other factors, the Commissioner may take into account the factors enumerated in this rule, and that was the state of the rule when the reference was made in the present case on the 28th of April 1964. The Rules were first amended on the 24th of November 1963, then on the 22nd of December 1964 and finally on the 5th of May 1966. As rule 3 stands at present, it is in mandatory form, namely, that "the following factors shall be considered by the Commissioner . . . . . ". It is clear, however, that the rule cannot be interpreted as being derogatory of the power conferred upon the Commissioner by section 3 of the Act read with subsection (2) of section 33 of the Act. In other words, the real limitation upon the proves of the Commissioner is to be found in subsection (2) of section 33 of the Act and not in rule 3 framed under the Act to give effect to the provisions of the statute itself.

23. Now, it is well settled that the requirement of equality before law is fully satisfied if the Legislature lays down guiding principles or factors which the statutory authority must take into account while taking decisions under the relevant law. This question was considered at some length by a Division Bench of this Court in Sohbat Khan v. The State and others (P L D 1966 Pesh. 210) in which the validity of rule 3 was challenged on the ground that it violated the mandatory requirement as contained in sub section (2) of section 33 of the Act. After reviewing a large number of authorities on the subject it was concluded that: "a statute or the rules framed thereunder would not infringe the clause relating to the equal protection of the laws, if there is reasonable classification bearing a relation to the object underlying the special legislation, and if standards or norms are laid down for the guidance of the executive or administrative authorities which are called upon to apply such special legislation to individual cases or persons or class of cases and persons. The various authorities have made it abundantly clear that the Legislature cannot be expected to lay down a scientifically perfect classification and that discretion has necessarily to be given to the statutory functionaries called upon to operate a special statute. As long as the intent and policy of the Legislature is made clear, and principles or standards are laid down for the guidance of the executive authorities, no exception can be taken to the trial of specific cases or class of cases before the special forum created under the special law, leaving other similar cases to be dealt with by the ordinary law . . . . . . It seems, therefore, that the factors enumerated in rule 3 do provide tangible guidelines for the exercise of discretion by the executive authority in deciding whether a particular case should be referred to a Tribunal or not. There is thus no question here of the executive authority enjoying uncontrolled and arbitrary power unguided by any principle or standard having a relation to the object and the policy underlying the Act."

24. It would be seen, therefore, that rule 3 which is intended to give effect to the equality clause as embodied in subsection (2) of section 33 of the Act, with reference to the power conferred by section 3 of the Act, must be regarded as a provision containing guiding principles for the Commissioner, and cannot be viewed as being exhaustive of the factors which have to be taken into account by the Commissioner when deciding whether a case should be withdrawn from the ordinary Court E and referred for trial to a Tribunal under the Act. At the time when the reference was made, the language of the rule itself indicated that it was neither exhaustive nor mandatory; and even though at the present moment the rule is couched in a mandatory form all that it means is that the factors enumerated therein must be taken into account by the Commissioner, but this enumeration cannot exclude other factors which may indeed be directly relevant and germane to the object underlying this special legislation, namely, making provision for the "more speedy trial and more effective punishment of certain heinous offences in West Pakistan." It seems to us, therefore, that a Commissioner is not precluded from considering factors other than those enumerated in rule 3 provided that factors considered by him are directly relatable to the object underlying the Act. If this requirement is fulfilled, then the condition of equality before law will stand satisfied.

25. Incoming to this conclusion we have taken note of the fact, so ably emphasised by eminent judicial authorities, that it is not possible to lay down a scientifically perfect classification and that discretion has necessarily to be given to the statutory functionaries called upon to operate the special statute. In the present case, rule 3 undoubtedly outlines factors which are relevant for the exercise of the power conferred by section 3 of the Act, but we can take judicial notice of the fact that other factors do exist, and very often appear in several cases, which would make it inexpedient for a case to be tried by the ordinary Criminal Court, if it is desired to achieve speedy and effective punishment of the offenders charged with a scheduled offence. These considerations militate against placing an interpretation on rule 3 which would have the effect of excluding consideration of other relevant factors. The rule in question must, therefore, be deemed to be directory and not mandatory in nature.

26. For the foregoing reasons our answers to the three questions considered by us are as follows:‑ (1) The words "any person accused of an offence" as used in subsection (1) of section 3 of the Act are to be interpreted in the ordinary dictionary sense as meaning any person against whom a charge or accusation of a scheduled offence has been brought, irrespective of the fact whether such an accusation is brought by Way of a first information report or a report submitted under section 173 of the Criminal Procedure Code, or is contained in a private complaint instituted in a Court. The words are not limited to only those persons who are actually sent up for trial before an ordinary Court from which the case is sought to be transferred to a Tribunal. (2) The words "the accused" appearing in subsection (2) of section 3 of the Act have reference only to the person or persons who are actually facing the inquiry or trial and do not refer to those persons whose names may have been mentioned in column 2 of the challan but who have not been summoned by the Court as accused persons for the purpose of that inquiry or trial. Subsection (2) deals with a pending case and lays down a limitation as regards the stage up to which a pending case can be withdrawn from an ordinary Court and referred to a Tribunal; but this subsection in no way limits the power given to the Commissioner under subsection (1) of the same section. In other words, although the reference in a pending case would be confined to the person who is in fact facing the inquiry or trial as "the accused", yet the case of other persons who have not been summoned as accused in that inquiry or trial can be referred to a Tribunal under subsection (1) of section 3 of the Act. (3) The provisions contained in rule 3 are in the nature of guiding principles or factors which the Commissioner must take into account when determining the question whether it is inexpedient in the interest of justice that a case be tried by an ordinary Criminal Court; but the factors enumerated in this rule are not exhaustive and it is open to the Commissioner to consider other factors which are directly relevant and germane to the object of the special legislation, namely, speedy trial and effective punishment of certain heinous offences in West Pakistan. It is clear, however, that the other factors cannot be factors which have no relevance to the purpose and the object of the special legislation. Viewed in this light, section 3 of the Act read with subsection (2) of section 33 and rule 3 cannot be said to confer unguided, uncontrolled and arbitrary power on the Commissioner to withdraw any case he pleases from an ordinary Court for reference to a Tribunal.

27. The case shall now go back to the Division Bench for disposal in accordance with the opinion recorded by the Full Bench on the questions referred to it. K.B.A. Reference answered.