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Criminal Acquittal Appeal No. 252 of 1964, decided on 13^th October 1966.

S. 3 and West Pakistan Criminal Law (Amendment) Rules, 1963, r. 4-Requirements of r. 4 -Merely directory and not mandatory Omission to forward copies of referring order to parties concerned or non-receipt of same by them-Cannot render such order nugatory and invalid-Mere passing of valid order under S. 3-Held, serves to oust instantaneously jurisdiction of ordinary, Criminal Court then seized of case.

The requirements of rule 4 are merely directory and cannot be considered as mandatory because there is nothing to indicate either in the main Act or the Rules framed thereunder that an order of reference under section 3 of the main Act is rendered nugatory and invalid unless a copy thereof is forwarded to the District Magistrate or furnished to the accused or sent to the Presiding Officer of the Court concerned. The main purpose or RAISON DIETRL of the rules is to carry out the purposes and objects of this Act and not to serve as an obstacle or hindrance in the way of implementing the provisions of the Act. It further seems that if for the sake of argument the contrary construction were to be placed on rule 4, then, it would mean placing a premium upon the activities of dishonest accused who may be able to so arrange things with office subordinates as to ensure that the copies do not reach their destination. Such a contrary interpretation may least to disastrous consequences and even chaos. There is a similarity between an order of re ference such as in this case and an order of a civil Court granting an injunction or stay order or of a High Court transferring a case from one subordinate Court to another. It is well known that an injunction or stay or transfer order takes effect from the moment it is made and not from the time that it is served on the subordinate Court or the party concerned.

It cannot be believed or held that the effect of rule 4 is to render an order of reference under section 3 nugatory unless and until copies thereof have reached the parties mentioned in this rule. To place a construction upon rule 4 such as is sought for would be not merely to treat the provisions of rule 4 as manda tory which they are not but also to exalt them to such a high level as to be of co-equal status with the provisions of the main Act and, as it were to control those provisions. Now, this is some thing, which cannot be envisaged and, therefore, the provisions of rule 4 are directory and not mandatory and cannot control the terms of section 3 of the main Act. Therefore, the mere passing of a valid order under section 3 serves to oust instantaneously the jurisdiction of any ordinary Criminal Court then seized of the case in question.

Crawford on Construction of Statutes, 1940 Edn. p. 104; Craies on Statutes Law, 1963 Edn. p. 229 and Chief Commissioner of Karachi v. Jamil Ahmad and another P L D 1961 S C 145 ref.

S. 3 read with Ss. 18, 19 & 20-Order of reference found to have been passed by Commissioner within jurisdiction-High Court, held, precluded from vouchsafing any opinion ax to merits or demerits, validity or invalidity of such order.

Jamal Shah v. Election Commission P L D 1966 S C 1 ref.

-Statute creating general obligation and providing specific remedy-Such statutory remedy is the only remedy in circumstances.

Craies on Statute Law, 1963 Edn. p. 229 ref.

Kazi Akhtar Ahmad assisted by Jamaluddin H. Ahmad for the State.

A. H. Kureshi and M. M. Pirzada for Respondents.

Date of hearing: 6th and 7th October 1966.

-This judgment will dispose of Criminal Acquittal Appeal No. 252/64 State v. Jagan and another Criminal Appeal No. 217/64, Jagan and another v. State and Criminal Revision Application No. 385/64 filed by the Additional Advocate General, West Pakistan, and Ex-Officio Public Prosecutor, Karachi, against Jagan and another. The first of these is a Criminal Acquittal Appeal against the acquittal of the two respondents Jagan and Allan by the Sessions Judge, Jacobabad of the murder of Ghulam Nabi the alleged lover of the wife of respondent Jagan. The Second Criminal Appeal No. 217/64 has been filed on behalf of the two appellants Jagan and Allan against their conviction by the Sessions Judge, Jacobabad, of an offence under section 302/34 P. P. C. for the murder of Mst. Hani wife of appellant Jagan. The two appellants were sentenced to transportation for life and in addition to pay a fine of Rs. 500 each or in default to suffer R. i. for one year more Criminal Revision Application No. 358/64 has been filed by the Additional Advocate-General West Pakistan and Ex-Officio Public Prosecutor, Karachi against the conviction of respondents Jagan and Allan and the sentences imposed upon them in respect of the murder of Mst. Hani wife of Jagan. The sole point of law urged in this criminal revision petition is that an order of reference having been passed by the Commissioner, Khairpur Division, under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 referring the two Criminal Cases 57 and 58 of 1963 for trial to the Tribunal, the conviction of the two respondents by the Ordinary Criminal Court was illegal and should, therefore, be set aside. It may be added here that the A. A.-G., West Pakistan, Karachi, in the Memo. of appeal filed by him on behalf of the State in Criminal Acquittal Appeal No. 252/64 has urged as his very first ground therein that an order of reference having been passed by the Commissioner, Khairpur Division referring this case also to the Tribunal to be constituted under the West Pakistan Criminal Law (Amendment) Act, 1963, the trial of this case by an Ordinary Criminal Court was without jurisdiction and, therefore, illegal. In order to appreciate this point of law taken on behalf of the State, it is necessary at the very outset of this judgment to set out here a few relevant dates.

2. The murders of Ghulam Nabi and Mst. Hani were committed at about Tripahri time on 19-7-63 in village Paryo Chandio Taluka Kandhkot District Jacobabad. Two F. I. Rs. lodged at the Kandhkot Police Station on 20-7-63 at 9 a.m. and 12 noon respectively in regard to these two murders. The appellant Jagan was arrested on 20-7-63 and appellant Allan a week later on 27-7-1963. On 9-9-1963 both the cases were challaned in the Court of the Civil Judge and F. C. M. Kandhkot. On 14-12-1963 both cases were committed to the Court of Sessions at Jacobabad where they were numbered as Sessions Cases Nos. 152 and 153/63. In the meanwhile, on 14-11-63, the Commissioner, Khairpur Division passed an order under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 referring these two cases to a Tribunal for decision and also directing that copies of this order should be forwarded to the District Magistrate, Jacobabad with reference to his letter No. A-3-33 (HVC) 63-4049 dated 2-I1-j3 and No. A-3032 (HVC) 63/4053 dated 4-11-1963 as well as to the Sub-Judge and F. C. M. Kandhkot and to the accused care of the District Magistrate, Jacobabad. On 27-11-63 copies of this order left the office of the Commissioner, Khairpur Division: but, it appears, that these copies either did not reach the Courts concerned or were not brought to the notice of the District Magistrate, Jacobabad, and the Sub-Judge and F. M. C., Kandhkot. The result was that both cases were committed to the Court of Sessions where on 1-4-64 Sessions Case No. 153/63 ended in. an acquittal of the two accused Jagan and Allan and on 14-4-1964 Sessions Case No. 152/63 ended in the conviction of these two accused.

3. We have heard Mr. Kazi Akhtar Ahmed the A. A.-G. Mr. Abdul Hayee Qureshi on behalf of the appellants in Criminal Appeal No. 217/64 and Mr. M. M. Pirzada Pauper Advocate for the two respondents in Criminal Acquittal Appeal No. 252/64. It may be mentioned here that the arguments addressed to us have been confined to the above-mentioned point of law raised by the A. A.-G. and that we have not at all entered into the merits of the two murder cases.

4. Before proceeding to deal with the arguments advanced before us on this point of law it would be advisable to set out here in extenso the order of reference passed by the Commissioner,, Khairpur Division, on 14-I2-63, which is as under:--

"In the matter of Criminal Cases Nos. 57 and 58 of 1963 Police Station Kandhkot State v. Jagan and others under section 302/201/34, P. P. C. Jacobabad District. Order of the Commissioner, Khairpur Division under section 3 (1) of the West Pakistan Criminal Law (Amendment) Act, 1963,"

The murder have taken 'place owing the Siahkari affairs. The parties are Balochis who harbour grudge for a number of years and commit murders in retaliation from time to time as and when they get an opportunity. In Siahkari matters the members of Tribunal find out best solution for check-mating the acts of retaliation, apart from sifting out truth. There is no independent eye-witness in this case and the bodies of the deceased were recovered from a canal. The cases have not yet reached the stage of charge. The Commissioner is, therefore, pleased to refer above cases to a Tribunal for decision.

(Sd.) G. Yazdani Malik, T. Pak.

C. S. P.

Commissioner, Khairpur Division.

Attested:

(Sd.)

Ghulam Kadir A. Shaikh, P. C. S.,

Assistant to Commissioner (General),

Khairpur.

No. S-XIX-112-Conf/63 Khairpur dated 27th November 1917.

The District Magistrate, Jacobabad with reference to his letter No. A. 3-33 (HVC) 63-4049 dated 2-11-63 and No. A. 3032 (HVC) 63/4053 dated 4-11-1963.

The Sub-Judge & F. M. C., Kandhkot.

The accused c/o District Magistrate,

Jacobabad.

5. The learned A. A,-G, commenced his arguments by inviting our attention to the provisions of sections 3, 6 and 33 of the West Pakistan Criminal Law (Amendment) Act, 1963, and to Rule 4 of the Rules framed thereunder section, 3 prescribes that where in the opinion of the Commissioner it is inexpedient in the interests of justice that the question of the guilt or innocence of any person accused of an offence specified in the First Schedule or of any several persons so accused, be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, 1898, the Commissioner may, 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. It is also provided that if the case is pending in Court such a reference may be made at any time before the charge is framed against the accused. Section 6 deals with the appointment of members to the Tribunal and provides that the District Magis trate shall not later than fifteen days from the date of the receipt of the reference nominate the members of the Tribunal, communi cate these names to the parties and record any objection raised by any of them thereto. The District Magistrate should then proceed to consider and decide upon these objections Section 33 is the rule-making section and provides far the making of rules by Government "to carry out the purposes and objects of this Act. Rule 4 is as under.

"Where the Commissioner, makes an order, under, sub section (1) of section 3 referring a case to a Tribunal for decision a copy of the order shall forthwith.

(a) be forwarded to the, Magistrate of the District wherein the offence is alleged to have en committed;

(b) be furnished to the accused free of, cost; and

(e) where the case is pending in a Court be also sent to the Presiding Officer of that Court:"

6. Analysing these provisions of law stated above, the learned A. A: G. contended that once a. valid order was passed by the Commissioner under: section 3 of the Act, that order; stood supreme and had the instant effect of ousting the Jurisdiction of any ordinary Criminal; Court hen seized of the case concerned.

The provisions of Rule 4, he maintained, are merely directory and not mandatory: these rules, he emphasised, having been drawn up under the power vested in Government by section 33 of the Act, they are designed to and are meant for the sole object of carrying out the purposes and objects of the Act and certainly not for creating any obstruction or obstacle in the way of carrying out the purpose: and the objects of the Act. He submitted that the provisions of Rule 4 can never control the operation of section 3 of the main Act and that, therefore, once a valid order was passed under section 3 it served as an instant. ouster of the jurisdiction of the ordinary Criminal Court in respect of the case concerned. The learned A. A.-G. further contended that this Court cannot enquire into the validity or vices of the Referring Order beyond examining its jurisdictional aspect. In other words, he submitted that this Court could only examine the Referring Order in order to see whether it was passed with jurisdiction and was not mala fide, because mala fides does affect the exercise of jurisdiction. Beyond ibis, he submitted, we cannot examine the validity of the Refer ring Order as this function is reserved for Government alone under section 18 (2) of the main Act.

7. On the other hand, Mr. A. H. Qureshi and Mr. M. M. Pirzada on behalf of the two accused have argued that the Referring Order in these two cases not having reached either their clients or the Committing Court, it is of no legal effect. They laid emphasis on the provisions of Rule 4 and contended that unless the provisions of this Rule are complied with and Referring Order is forwarded to the Magistrate of the District, a copy thereof furnished to the accused and also sent to the Presiding Officer of the Court, the Referring Order is of no legal effect. They also submitted that this Court can enquire into the validity of the order: as to whether it complies with the requirements of section 3 of the main Act and, therefore, as to whether it is a good or bad order. Both the A. A.-G. and these Advocates quoted Case-Law in support of their respective contentions.

8. We would first take up for consideration the question as to whether the provisions of Rule 4 are mandatory or directory: in other words, as to whether an order of reference is complete and binding the moment it has been made or whether it only acquires its efficaciousness and effect after copies thereof have been supplied to the Magistrate of the District, the accused and the Presiding Officer of the Court concerned. Now, dealing with this point the learned A. A. G. submitted that a provision is mandatory only if non-compliance therewith invokes sanction i.e. soma punishment, some harm of damage or the invalidating of an act already done. Crawford in his Book on Construction of Statutes, 1940 Edition, at page 104 defines a mandatory statute as:-

"One whose provisions or requirements, if clot complied with, will render the proceedings to which it relates illegal and void, while a directory statute is one where non-compliance will not invalidate the proceedings to which it relates."

Similarly, Craies on Statue Law, 1963 Edition, at page 229 states that:

"When a statute creates a duty, one of the first questions for judicial consideration is what is the sanction of its breach, or the mode for compelling the performance of the duty Ray. This question usually resloves itself into the inquiry whether the Act is mandatory or directory, i.e. absolute or discretionary. If, it is directory, the Courts cannot interfere to compel performance or punish breach of the duty, and disobedience to the Act does not entail any invalidity. If the Act is mandatory, disobedience entails legal consequences, which may take the shape of a public or private remedy obtainable in a Court of Justice, or the avoidance of some contract, instrument, or document without the intervention of any Court."

On the basis of these principles which have been accepted and re-enunciated by our own Supreme Court in the case of Chief Commissioner of Karachi v. Jamil Ahmad and another (PLD1961 SC145) it seems to us, that the requirements of the Rule 4 are merely director and cannot be considered as mandatory because there is nothing to indicate either in the main Ac: or the rules framed thereunder that an order of reference under section 3 of the main Act is rendered nugatory and invalid unless a copy thereof is forwarded to the District Magistrate or furnished to the accused or sent to the Presiding Officer of the Court concerned. We are fortified in this view by a consideration of the further question that the main purposes or RAISON D'ETRE of the rules is to carry out the purposes and objects of this Act and not to serve as an obstacle or hindrance in the way of implementing the provisions of the Act. It further seems to thus that if far the sake of argument the .A contrary construction were to be placed on Rule 4, then, it would mean placing a premium upon the activities of dishonest accused who may be able to so arrange things with office subordinates as to ensure that the copies do not reach their destination. Such a contrary interpretation may lead to disastrous consequences and even chaos. We are also mindful of the similarity that may be struck between an order of reference such as in this case and an order of a Civil Court granting an injunction or stay order o of a High Court transferring a case from one subordinate Court to another. It is well known that injunction or stay or transfer order takes effect from the moment it is made and not from the time that it is served on the subordinate Court or the party concerned. When we adverted to this similarity during the course of the arguments before us, Mr. A. H. Qureshi replied by saying that neither the Codes of Civil or Criminal. Procedure or the Rules of the High Court contain such a provision as is embodied in Rule 4 of the West Pakistan Criminal Law (Amendment) Rules, 1963 and, therefore, the similarity is ill-founded as the two cases are not all fours. But, even so, we cannot bring ourselves to believe or to hold that the effect of Rule 4 is to render an order of reference under section 3 nugatory unless and until copies thereof have reached the parties mentioned in this rule. It seems to us that for us to place a construction upon Rule 4 such as is sought for by the defence advocates would be not merely to treat the provisions of Rule 4 as mandatory which they are not but also to exalt them to such a high level as to be of co-equal status with the provisions of the main Act and, as it were, to control those provisions. Now, this is something which we simply cannot envisage and, therefore, we would conclude this portion of the discussion in this judgment by reiterating that the provisions of the rule 4 are directory and mandatory and cannot control the terms of section 3 of the main Act. Therefore, in our opinion, the mere passing of a valid order under section 3 serves to oust instantane ously the jurisdiction of any ordinary Criminal Court then seized of the case in question.

9. The next question which arises for consideration is whether sitting as we are on the Criminal Appellate Revisional side of this High Court we can enquire into the validity of the Referring Order beyond examining its jurisdictional aspect. It was contended by the learned A. A.-G. that this being an order under a Special Act, in the exercise of our appellate as well a, revisional jurisdiction under the Code of Criminal Procedure we are not empowered to touch this order once we find that it is within the jurisdiction: and that the question as to the validity or invalidity of this order and as to whether it complies with the requirements of section 3 is reserved for Government under section 19 of the main Act. We would refer in this connection to certain illuminating passages in the judgment of Kaikaus, J. in the case of Jamal Shah v. Election Commission (PLD 1966SC 1). There, that learned Judge has explained the true distinction between an order without jurisdiction and having no legal effect and an order than is merely illegal in that certain forms or procedures or requirements have not hen complied with. In the first case, it is said that the order is nullity and has no existence in the eye of the law at all: in the second case, the order though illegal continues in force until reversed and set aside by a superior Tribunal. Now, applying these principles to the facts of the present case, we observe that the Commissioner of Khairpur was acting within his jurisdiction when he passed his Referring Order of 14-11-63. The further questions as to whether it is a good or bad order, whether it complies with all the requirements of section 3 and as to whether it is a legal and competent order are questions to be decided in accordance with the provisions of the West Pakistan Criminal Law (Amendment) Act and sections 18 and 19 provide for the forum where these question may be agitated. Section 20 confers upon Government in addition to the appellate powers referred in the previous two sections 18 and 19 further revisional powers and, this being so, we feel, that we are precluded from vouchsafing any opinion as to the merits or demerits, validity or invalidity of the Referring Order beyond stating that it is an order with jurisdiction. Craies in his Book on Statute Law has remarked that the general rule of law or rather of construction D is that where general obligation is created by a Statute and a specific statutory remedy is provided, that statutory remedy is the only remedy. In this case, the Statute namely the West Pakistan Criminal Law (Amendment) Act, 1963 provides for an appeal or a revision to Government against any order of reference made under section 3 of the Act and that, being the remedy provided under the Special Act, it is for the accused now to avail themselves of this remedy. The obstacle of time-bar, if raised, could be met by referring to the history of these two cases and the fact that a copy of the Referring Order was only supplied to the accused by the A. A.-G. during the hearing of these matters in this High Court.

10. In the result, then, we uphold the point of law taken by the learned A. A: G. in the two appeals arising out of Sessions Cases Nos. 152 and 153 of 1963 of the Jacobabad Sessions Division, set aside the orders of the Sessions Judge, Jacobabad in these two cases and quash all proceedings in these two matters after the Commissioner's order of reference of 14-11-63. It is now open to the Commissioner, Khairpur Division, to deal with these two cases in pursuance of his aforesaid order.

Appeal accepted.

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