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Writ Petition No. 194 of 1961, decided on 1st May 1964.

Whether Regula tion a "law" within meaning of S. 5, Pakistan Criminal Law Amendment Act (XL of 1958)-General Clauses Act (X of 1897), S. 3 (37-b).

The question whether the Frontier Crimes Regulation, 1901 is a "law" within the meaning of section 5, Pakistan Criminal Law Amendment Act, 1958, does not admit of any doubt in view of the definition of the term "Pakistan Law" as given in section 3 (37-b), General Clauses Act, 1897 wherein the term includes "Regulation."

S. 5 and Sched.-Offence under S. 409, P. P. C.-Exclusively triable by Special Judge-Cannot be referred to council-of-Elders for trial tinder Frontier Crimes Regulation, 1901--Frontier Crimes Regulation (III of 1901), S. 11(1) read with S. 6, Criminal Procedure Code (v of 1898).

After the enforcement of the Pakistan Criminal Law Amend ment Act, 1958 the provision of section 5 automatically takes away the jurisdiction of all other Courts, including the Council -of-Elders, to try an offence under section 409, P. P. C. by directing that the said offence shall be tried "exclusively by a Special Judge". It is a well-established principle of law that when a certain offence is declared by certain Statute to be exclusively triable by a particular Court or Tribunal, then, all other Courts and Tribunals, which were competent before the enactment of that Statute to try such offences, are automatically excluded. The power to try offences by Council-of-Elders is conferred by section 11 of the Frontier Crimes Regulation.

It will be noticed by reading the language of this section that the jurisdiction of the Commissioner and the Deputy Commissioner to refer the case against "any person or persons accused of any offence . . . ." is restricted to those cases which are triable" by the Courts of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898" In other words, the power of the Commissioner and the Deputy Commissioner to refer the question of guilt of any person is restricted to those offences only which are triable by any one of the five Courts mentioned in section 6 of the Criminal Procedure Code. To put it differently, if the case is not triable by any one of the Courts mentioned in section 6, the Commissioner and the Deputy Commissioner are rendered incompetent to refer the case to a Council-of-Elders. Section 5 of the Act of 1958 makes the offences in the Schedule "exclusively triable by a Special Judge", and it, therefore, follows as a necessary corollary that the offences mentioned in the Schedule are automatically excluded from the jurisdiction of the Courts mentioned in section 6 of the Criminal Procedure Code, with the result that the power of reference of the Commis sioner and the Deputy Commissioner comes to an end in regard to such offences.

The State v. Saeed Ahmad P L D 1962 S C 277 rel.

Pir Bakhsh Khan and Muhammad Nawaz Kundi for Petitioner.

Sher Bahadur Khan A. A. G. for the State.

Dates of hearing: 28th and 29th April 1964.

This writ petition has been instituted by Habibullah Khan, Head Clerk, now under suspension, in the office of the Executive Engineer, Electricity, WAPDA, Kurram Garhi Division, Bannu, praying "for grant and issue of writs of certiorari, mandamus and prohibition or any other appropriate writ against the order of reference made by the Deputy Commissioner, Bannu dated 9-9-61 and the order of the Commissioner, D. I. Khan Division dated 11-8-61, whereby sanction for trial of the petitioner under section 409, Pakistan Penal Code read with 11 F. C. R. was accorded on the remarks and comments made by the Additional Advocate-General, Peshawar".

2. The material facts giving rise to this writ petition briefly are that the petitioner was a Head Clerk in the Office of the Executive Engineer Electricity, WAPDA, Kurram Garhi Division, Bannu. On or about 28th February 1961, a sum of Rs. 36,193.50 were stolen from the chest in the office of the Executive Engineer, Electricity, WAPDA, and a report about the occurrence was lodged jointly by the petitioner and Muhammad Iqbal Executive Engineer on 28-2-61 at Police Station Saddar. The police suspected the petitioner for complicity of the offence under section 409, P. P. C. and he was arrested and the case eventually referred to the Council-of-Elders under section 11, Frontier Crimes Regulation, under the orders of the Commissioner dated 11-8-61.

3. The petitioner has challenged the reference of the case under section 11, F. C. R. among other grounds, on the ground that the offence under section 409, P. P. C. was "exclusively triable under Criminal Law Amendment Act, 1958, by the Court of Special Judge," and as such the reference of the case under section 11 of the F. C. R. by respondents 1 and 2 was without jurisdiction.

4. Mr. Sher Bahadur Khan, Additional Advocate-General, when confronted with section 5, in particular subsection (1) of the Pakistan Criminal Law (Amendment) Act, 1958, (hereinafter to be referred to as the Act of 1958), which in most unequivocal terms states that "notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be, triable exclusively by a Special Judge," frankly conceded that in view of the very clear language of section 5 (1) he could not defend the reference of the case to the Council-of-Elders, in that section 409, P. P. C. was admittedly one of the offences specified in the Schedule.

5. In view of the concession of the learned A. A. G. that the offence under section 409, P. P. C. was exclusively triable by the Special Judge under the Act of 1958, we should have allowed the writ petition, but since the case was argued before us fully by the learned counsel for the petitioner, we do not rest our decision on the concession but proceed with a discussion to show that the stand made by the learned A. A. G. is very well founded.

6. Since the decision of the case mainly hinges on the decision of the language of section 5, it will be convenient to reproduce that section, which runs thus:-

25. Offences to be tried by Special Judges.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge.

(2) The appropriate Government may, from time to time, by notification in the official Gazette, include in the Schedule such other offences as it deems necessary or expedient.

(3) All cases relating to the offences specified in the Schedule and pending in any Court other than the Court of a Special Judge immediately before the commencement of the Criminal Law, (Amendment) Act 1953, or this Act shall, on such com mencement, stand transferred to the Court of the Special Judge having jurisdiction over such cases.

(4) Whenever an offence is included in the Schedule by a notification of the appropriate Government made under sub section (1), all cases relating to that offence pending in any Court other than the Court of a Special Judge immediately before such notification shall stand transferred to the Court of the Special Judge having jurisdiction over such cases.

(5) In respect of cases transferred to a Special Judge under the proviso to subsection (2) of section 4 or by virtue of subsection (3) or subsection (4) of this section, such Judge shall not, by reason of the said transfer, be bound to recall, and rehear any witness who has given evidence in the case before transfer and may act on the evidence already recorded by or produced before the Court which tried the case before the transfer.

(6) For the purpose of trial before a special Judge, the provisions of Chapter XVIII of the Code of Criminal Procedure, 1898, shall not be applicable but a Special Judge may, In any case where he deems it necessary, order an investigation by any police officer in whose jurisdiction the offence was wholly or partly committed.

(7) When trying an offence under this Act a Special Judge may also charge with and try other offences not so triable with which the accused may, under the provisions of the Code of Criminal Procedure, 1898, relating to the joinder of charges, be charged at the same trial."

It will be manifest from reading the language of subsection (1) that all offences specified in the Schedule (which admittedly includes offence under section 409) are to be tried exclusively by a Special Judge. The subsection opens with the words "notwithstanding anything contained in the Code of Criminal Procedure, 1898, or any other law", which clearly indicate that notwithstanding any "law" or the Code of Criminal Procedure, the offences mentioned in this Schedule are to be tried exclusively by a Special Judge. Subsection (3) emphasises the fact that after the enactment of Act of 1958, "all cases relating to the offences specified in the Schedule and pending in any Court other than the Court of a Special Judge immediately before the commencement of the Criminal Law (Amendment) Act, 1953, or this Act shall, on such commencement, stand transferred to the Court of the Special Judge having jurisdiction over such cases". In other words, in abundant caution with a view to removing doubts about the meaning of subsection (1), incorporated subsection (3) that after the enactment of the Act of 1958 all cases pending in any Court shall stand automatically transferred to a Special Judge.

7. The question might arise, whether the., Frontier Crime Regulation of 1901 is a "Law" within the meaning of section 5 of the Act of 1958. This question does not admit of any doubt, in view of the definition of the term "Pakistan Law" within meaning of section 3(37-b) of the General Clauses Act, 1897, wherein the term, among other meaning, includes "Regulation." It, therefore, follows that the F. C. R. of 1901 is a "Laws" within the meaning of section 5. We need not labour the point further to show that the offences mentioned in the Schedule of Act of' 1958 are to be exclusively tried by special Judge and by no other Court, suffice it to say that in The State v. Saeed Ahmad (P L D 1962 S C 277) there are observations which support the view which we have taken. At page 282, B. Z. Kaikaus, J. delivering the judgment for the Supreme Court, observed:-

" . In 1953 when the Special Judge was given exclusive jurisdiction over certain offences and all proceedings relating to those offences were transferred to Special Judges a provision was made that such proceedings would not require sanction. The same thing happened when the Act of 1958 was enacted. Again, a provision was made in section 5 (3) that "All cases relating to offences specified in the Schedule pending in any Court other than the Court of a Special Judge immediately before the commencement of the Criminal Law (Amendment) Act of 1953 or this Act shall stand transferred to the Court of a Special Judge having jurisdiction in such cases" and in section 5 (4) it was provided that whenever an offence is included in the Schedule by a notification of the appropriate Government made under subsection (1), all cases relating to that offence pending in any Court other than the Court of a Special Judge immediately before such notification shall stand transferred to the Court of the Special Judge having jurisdiction over such cases', and the proviso to section 6 (5) said provided further that no such sanction shall be needed in respect of a case transferred by virtue of subsection (3) or subsection (4) of section 5."

8. By a different process of reasoning we arrive at the same conclusion, namely, that after the enforcement of the Act of 1958 the provision of section 5 automatically takes away the jurisdiction of all other Courts, including the Council -of-Elders, to try an offence under section 409, P. P. C. b5 directing that the said offence shall be tried "exclusively by al Special Judge." It is a well-established principle of law that a when a certain offence is declared by certain Statute to be exclusively triable by a particular Court or Tribunal then, all other Courts and Tribunals, which were competent before the enactment of that Statute to try such offences, are automatically excluded to try such an offence. The power to try offences by Council-of-Elders is conferred by section 11 of the Frontier Crimes Regulation, and section 11 (1), which is material to the discussion, is in the following terms:-

"11 (1) Where in the opinion of the Commissioner or Deputy Commissioner, it is expedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any several persons so accused, should be tried by a Court of any of the classes mentioned In section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner, may, or if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council-of-Elders, and require the Council to come to a finding on the question after such enquiry as may be necessary and after hearing the accused person. The members of the Council-of-Elders shall, in each case, be nominated and appointed by the Deputy Commis sioner."

It will be noticed by reading the language of subsection (1) that: the jurisdiction of the Commissioner and the Deputy Commis sioner of referring the case against "any person or persons accused of any offence . . . . . " is restricted to those cases which are triable "by the Courts of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898". In other words, the power of the Commissioner and the Deputy Commis sioner of referring the question of the guilt of any, person of offences is restricted to those offences only which are triable by any one of the five Courts mentioned in section 6 of the Criminal Procedure Code. To put it differently, if the case is C not triable by any one of the Courts mentioned in section 6, the Commissioner and the Deputy Commissioner are rendered incompetent to refer the case to a Council-of-Elders. Section 5 of the Act of 1958 makes the offences in the Schedule "exclusively triable by a Special Judge," and it, therefore, follows as a necessary corollary that the offences mentioned in the Schedule are automatically excluded from the jurisdiction of the Courts mentioned in section 6 of the Criminal Procedure Code, with the result that the power of reference of the Commissioner and the Deputy Commissioner comes to an end in regard to such offences.

9. For all the foregoing reasons, we had, by our short order dated 29-4-64, accepted the writ petition, and quashed the orders of the Commissioner and the Deputy Commissioner, referring the case for trial under section 11, F. C. R. In view of the fact that the learned Additional Advocate-General did not contest the writ petition, we make no order as to costs.

S. Q. Petition accepted.

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