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Writ Petition No. 592 1965, of 1965, decided on 22nd April 1965.

----S. 3 read with First Schedule‑Persons said to have committed, in course of same transaction, several offences some listed while others not listed in First Schedule‑Prosecution competent to drop charges for offences not falling under Schedule and thus bring accused for trial before Tribunal for offences falling within ambit of its jurisdiction‑Rest of offences can be tried in ordinary criminal Courts or may be dropped altogether‑Penal Code (XLV of 1860, Ss. 302 & 379‑Arms Act (XI of 1878), S. 19.

The accused in a murder case, soon after the murder, were found to be in possession of a transistor radio belonging to the deceased as well as an unlicensed pistol with live cartridges. The case against the accused under section 302/34, P. P. C. was withdrawn from the Court of a Magistrate and referred for trial to a Tribunal to be constituted under the West Pakistan Criminal Law (Amendment) Act, 1963. The validity of the order of reference was attacked on the ground that since the three offences, namely, murder under section 302, P. P. C., theft of radio under section 379, P. P. C. and the offence under section 19, Arms Act, 1878 for being found in possession of unlicensed pistol were said to have been committed in the course of same transaction, they could not be split up for purpose of separate trials in two different forums and that as the case against the accused included offences not mentioned in the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963, it could not be referred for trial under that Act and the reference could not become valid by the isolation of the offence of murder, which is mentioned in the First Schedule from the other offences which are not so mentioned therein

Held, that the impugned order of reference to Tribunal did not suffer from any defect. The offence under the Arms Act regarding the recovery of unlicensed pistol is by itself an independent offence, unconnected with the murder occurrence, except that the prosecution may want to prove that the pistol in question was the weapon of offence in the case. Whether it was or it seas not a weapon of offence in the murder occurrence, the accused has to explain his possession of the pistol at the time of its recovery from him without a licence for the same. The offence under section 19 of the Arms Act, 1878, therefore need not of necessity be joined with the murder offence for trial in one single forum.

As regards recovery of the transister radio from the possession of the accused soon after the murder, the evidence of the recovery may he a relevant piece of evidence for the alleged offence of murder. But if tile prosecution, on the material available to it, chooses not to prosecute the accused for theft jointly with the offence of murder or separately for its trial as a distinct offence, the accused cannot have grievance on that score. It is up to the prosecution to drop any charge or charges against an accused person and for. determining the jurisdiction of a Tribunal for the trial of the accused persons for a certain offence all that has to be seen is whether oil the accusation brought before the Tribunal the matter does or does not fall within the ambit of its jurisdiction. If the prosecution is satisfied that it can make out a gave charge against an accused person, it may eliminate a minor one which may be spelt out of the graver charge or even independently of it.

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----‑Prosecution may eliminate minor charge which can be spelt out of grave charge or even independently of it.

Shamim Hussain Kadri for Petitioner.

Nemo for Respondents.

‑This is a petition under Article 98 of the Constitution, seeking the quashment of an order made by the Commissioner, Sargodha Division, dated the 11th of November 1964, whereby a criminal case, F. I. R. No. 78 dated the 17th of July 1964, under section 302,134, P. P. C. (Police Station Sahiwal) against the petitioner and his co‑accused has been withdrawn from the Court of Sardar Ghulam Baqir Ali Khan, Magistrate 1st Class, Sargodlia, and referred for trial to a Tribunal to be constituted by the District Magistrate, Sargodha, under the West Pakistan Criminal Law Amendment Act of 1963 (hereinafter referred to as the Act). The impugned order has been made under section 3 of the Act. The reasons mentioned for the order are (1) that the occurrence took place at night time and (2) that the accused are not mentioned in the first information report.

2. The points referred for the decision of the Tribunal under the Act are:

(1) Whether the accused oil the night between the 16th and 17th of July 1964, at about 11/12 p. m. in village Jara in furtherance of their common intention committed the murder of Falak Sher deceased by inflicting injuries on his person, thereby intentionally causing his death

(2) What was the motive of the offence

(3) Any other recommendation.

3. The learned counsel for the petitioner has attacked the validity of this order on a legal argument for which it is necessary to give the background of facts as stated by him. The first information report lodged in the case (copy Annexure A') discloses that a transistor radio belonging to the deceased, which was allegedly with him at the time of the occurrence, was missing. Recovery memo. (copy Annexure C' attached with the writ petition) shows that a transister radio was produced by the petitioner before the police during the investigation of the murder case and that he was also found in possession of a pistol with a live cartridge loaded in it. The police has separately challaned the petitioner for being in possession of an unlicensed pistol and a live cartridge under section 19 of the Arms Act in a regular criminal Court, but has not taken any steps for the prosecution of the petitioner or his co‑accused for the alleged theft of the transister radio belonging to the deceased. It is argued by the learned counsel that since the three offences, namely, the murder under section 302, P. P. C., theft of the transister radio under section 379, P. P. C. arid the offence under the Arms Act for being in possession of an unlicensed pistol were committed in the course of the same transaction, they could not be split tip for purpose of separate trials under the Criminal Procedure Code and the Act. The argument in other words is that the case could not be sub‑divided for trial in two different forums and as the case against the petitioner included offences which are not mentioned in the Schedule attached to the Act, it could not be referred for trial under the Act, and that the reference. does not, become valid by the insulation of the offence of murder, which is mentioned in the Schedule from the other offences which are not so mentioned there. We feel that there has been no division of this case as argued by the learned counsel to invite our decision on the validity of the reference on that basis. The offence under the Arms Act regarding the recovery of the unlicensed pistol is by itself an independent offence, unconnected with the murder occurrence, except that the prosecution may want to prove that the pistol in question was the weapon of offence in that case. Whether it was or it was not a weapon of offence in the murder occurrence, under section 19 of the Arms Act, for which he has been separately challaned, the petitioner has to explain his possession of the pistol at the time of its recovery from him without a licence for the same. We are unable to appreciate the insistence of the learned counsel that the' offence under section 19 of the Arms Act must of necessity be: joined with the murder offence for trial in one single forum.

4. The argument about the alleged offence under section 379, P. P. C. for theft of the transister radio of the deceased and its trial is equally misconceived. The evidence of the recovery of the transister, radio from the possession of the petitioner soon after the murder occurrence, if proved, will be a relevant piece of evidence for the alleged offence of murder against the petitioner and his co‑accused. If the prosecution has, on the material available to it and as advised at present, not chosen to prosecute the accused persons for theft jointly with the offence of murder or separately for its trial as a distinct offence, we are unable to appreciate the grievance of the defence in this behalf. It is up to the prosecution to drop any charge or charges against an accused person and for determining the jurisdiction of a Tribunal for the trial of the accused persons for a certain offence all that has to be seen is whether on the accusations brought before the Tribunal the matter does or does not fall within the ambit of its jurisdic tion if the prosecution is satisfied that it can make out a grave charge against an accused person, it may eliminate a minor one which may be spell out of the graver charge or even independently of it. The learned counsel's assumption that at ‑a later stage a case for theft or a case under section 411, P. P. C. may also' be put up against the accused persons and which would thus involve them in double jeopardy is wholly irrelevant at this stage of the case, as we cannot assume that the prosecution will do so, but if that step is ever taken by the prosecution, the defence can avail of the remedies that may be open to it to resist that action and successfully so, if‑it‑can maintain that the method employed by the prosecution, even though not illegal, amounts to an abuse of the process of the Court, entailing unnecessary harassment to the accused persons. We do not find that the impugned order of the learned Commissioner in this case suffers from any defect; and we are, therefore, constrained to dismiss this petition in limine.

K. B. A. Petition dismissed.

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