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Petition No. 494 of 1967, decided on 31st May 1968.

, S. 109 read with West Pakistan Criminal Law (Amendment) Act (VII of 1963), S. 3 Abetment- Substantive offence‑Not merely an appendage of principal offence -Abetment under S. 109, Penal Code, 1860, not being scheduled offence under West Pakistan Criminal Law (Amendment) Act, 1963 Cannot be referred to Tribunal to determine guilt or innocence of accused ‑Accused allegedly having procured poison stated to have been administered to deceased by his wife‑Order of Commissioner under S. 3, West Pakistan Criminal Law (Amend ment) Act, 1963, referring question of guilt or innocence of accused to Tribunal, in circumstances, held, without lawful autho rity.

Reg v. Maruti Dada and ethers 1 Bom. 15; Barendra Kumar Ghosh v. King‑Emperor A I R 1925 P C 1; Muhammad Nawaz v. The State P L D 1967 Lah. 952 and Rehmatullah Khan and others v. The State P L D 1965 Pesh. 162 rel.

Abdul Hafeez Pirzada for Petitioner.

Muhammad Haleem Asstt. A.‑G. for Respondents.

Date of hearing: 23rd May 1968.

.‑In this petition under Article 98 of the Constitution the petitioner Abdul Kadir son of Haji Saifullah has challenged the order of the Commissioner, Khairpur Division dated the 17th of April 1967 as confirmed by the Home Secretary to the Government of West Pakistan, referring the case against him and the co‑accused Mst. Khani to the Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963.

The facts of the case, as disclosed from the papers before us, are that on 15th December 1966 Head Constable Jan Muhammad of Pirjo Goth Police Station lodged the First Information Report under section 328, P. P. C. on receipt of a letter from the Medical Officer that one Allah Bux son of Usman Kanhir, admitted in the Hospital, alleged that he had been poisoned by his wife Mst: Khani and his fuller statement to this effect may be recorded. The F. I. R. incorporates the statement of Allah Bux deceased which is now to be treated as a Dying Declaration. It is to the effect that Allah Bux deceased had a dispute with his father‑in- law Ahmed 8/9 months before his death on account of his wife Mst. Khani's illicit connection with the petitioner Abdul Kadir and the stay In her father's house. The dispute .was however decided through the mediation of Wassand Kanhir in that the couple would live in the house of Wassand until the differences between them were patched up. On the second night of the stay at the house of Wassand, the deceased was given meals by his wife at dawn time for the purpose of fasting immediately thereafter he fell sick and started vomiting. Allah Bux was then taken to the Civil Hospital where during the period of his illness he wished it to be known that the petitioner had got him poisoned through his wife so that he may marry her.

Allah Bux died in the hospital two days after this statement. The F. I. R. was therefore converted for an offence under section 302/34, P. P. C. and the case was sent up in the Court of the Civil Judge and 1st Class Magistrate, Khairpur Mirs on the 29th December 1966 against Mst. Khani only. Subsequently on the 6th of February 1967 the petitioner was shown as a co‑accused in the supplementary challan forwarded to the Court.

During the pendency of the proceedings before the learned Civil Judge and 1st Class Magistrate, Khairpur Mirs, this case was brought to the notice of the Commissioner, Khairpur Division who in the exercise of his powers under section. 3 of the Act referred the question of the guilt or the innocence of the accused Abdul Kadir to the Tribunal.

The petitioner challenged this order in appeal to the Government but this remedy failed and the order of reference was confirmed by the Home Secretary to the Government of West Pakistan on the 12th of August 1967. The petitioner then challenged these orders by way of this petition under Article 98 of the Constitution.

Mr. Abdul Hafiz Pirzada the learned counsel appearing in support of the petition raised two contentions before us. Firstly, that no visible case was made out against the petitioner on the prosecution allegations and therefore the learned Commis sioner could not exercise the power under section 3 of the Act and refer the question of guilt or innocence of the petitions to the Tribunal. The second contention was that even if the allegations against the petitioner be accepted as correct, they at best make out an offence of abetment of murder punishable under section 302 read with section 109, P. P. C. and this offence, being a separate and independent offence, and not being a scheduled offence under the Act, is not capable of reference to the Tribunal constituted under section 4 of the Act.

We would not like to express ourselves on the first conten tion of the learned counsel as we are of the view that the second contention raised before us must prevail in this case. It is not the case of the prosecution that the petitioner himself administered poison to the deceased Allah Bux. The allegations against him are that he supplied the poison to Mst. Khani the wife of the deceased to administer it to her husband. The motive alleged against him is that he wanted to get rid of Allah Bux so as to marry his wife Mst. Khani. We called upon the learned Assistant Advocate‑General appearing for the respondents if there is any evidence to indicate that the petitioner had himself administered the poison to the deceased. The learned A. A.‑G. frankly conceded that there was no such evidence on the record, and the prosecution case against him is only this much that he delivered a packet containing poison to Mst. Khani the evening before the day of occurrence so that she may get rid of her husband by causing his death through poisoning. The prosecution case to this effect according to the learned A. A.‑G., is supported by the statements of Muhammad Ayub, Muhammad Saleh and Jhando.

There can be no doubt that these pieces of evidence read with the motive alleged against the petitioner would at best involve a liability of abetment of murder punishable under section 302/ 109 P. P. C. and not for an offence under section 302/34, P. P. C. This position is in fact conceded by the learned A. A.‑G. All that he urged was that like section 34, the offence of abetment punishable under section 109, P. P. C. is not an independent offence so as to require mention in the Schedule attached to the Act for the purpose of trial by the Tribunal constituted under section 4.

We are afraid we cannot agree that section 109, P. P. C. has no separate and independent existence as an offence under the Pakistan Penal Code. Section 109 appears in Chapter V of the Penal Code under the heading "Of Abetment." This itself would chow that the offences of abetment were independently treated by the framers of the Code. Chapter V comprises of as many as 17 sections dealing with different aspects of abetments, defining these as offences and the prescribing punishments for the various types of abetments. The oldest reported case we have come across on the point is the one of Reg v. Maruti Dada and others (1 Bom. 15), decided by the Bombay High Court. West, J. delivering the opinion of the Division Bench observed :‑---

"The offence of abetment under the Indian Penal Code is a substantive offence. Its punishment when the culprit has been present at the commission of the principal offence, is the same as for that offence; and the trial of it is not, in any way dependent on the conviction of the person charged with the principal offence. By the Indian as well as the recent English Procedure, an abettor may be convicted before the principal is arrested"

The Privy Council in the case of Barendra Kumar Ghosh v. King‑Emperor (A I R 1925 P C 1) exhaustively dealt with the constructions of sections 34, 114 and 149 of the Indian Penal Code. Lord Summer observed at page 7:

" Section 149, however, is certainly not otiose, for in any case it creates a specific offence and deals with the punishment of that offence alone. It postulates an assembly of five or' more persons having a common object, viz., one of those named in section 141 and then the doing of acts by members of it in prosecution of that object.

His Lordships then went on to make the distinction between sections 149 and 34, P. P. C. clearly in these words:

" There is difference between object and intention, for, though their object is common, the intentions of the several members may differ and indeed may be similar only in respect that they are all unlawful, while the element of partici pation in action which is the leading feature of section 34, is replaced in section 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but section 149 cannot at any rate relegate section 34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treat ment at all."

As to the offence of abetments, His Lordship categorically observed that :‑‑--

" Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart."

We were referred to the case of Muhammad Nawaz v. The State (P L D 1967 Lah. 952) decided by the Full Bench of this Court. But the true construction of section 109 was not the question for decision in that case. Their Lordships' of the Full Bench in fact were dealing with the question of the effect of non‑inclusion of section 34, P. P. C. in the Schedule to the Act. Their Lordships observed that:

"Section 34 of the Penal Code appearing in Chapter II headed as "General Explanations" which contains definitions and explanations of the terms and expressions used in the Code. It does not create any offence but merely lays down a principle of joint liability in the doing of a criminal act. It is not even a penal provision as it only enunciates the principle of criminal liability which is that "if a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable as if it were done by him alone."

It would be seen from the perusal of the judgment in that case that section 109, P. P. C. was not even referred to and therefore it was not a subject‑matter of discussion.

The offences of abetment stand totally on a different footing. In the scheme of the Pakistan Penal Code abetments of offences are placed together in a different category in Chapter V. These offences are thus given a separate treatment, they are defined, explained, illustrated and made punishable as separate offences. There can therefore be no room for an argument that an offence under section 109 is not a substantive offence, or that it does not stand by its own force, or that it only enunciates a principle of joint liability of the persons concerned in criminal offences. The difference between the sections 34 and 109 may be noted from the table formulated below:

We may also refer here the case of Rehmatullah Khan and others v. The State (P L D 1965 Pesh. 162) decided by the Full Bench of the Peshawar seat in which it was held that section 109, P. P. C. not being a Schedule offence under the West Pakistan Criminal Law (Amend ment) Act, 1963, the question of guilt or innocence of an accused of that offence cannot be ref erred to the Tribunal under the Act.

We are, therefore, clearly of the view that the offence of abetment under section 109 of the Pakistan Penal Code is a substantive offence, and not merely an appendage of the principal offence, and it being not a Schedule offence the question of guilt or innocence of an accused of that offence cannot be referred by the Commissioner for decision to the Tribunal under the Act. The order of the Commissioner dated the 17th April 1967, challenged before us was therefore an order without lawful authority and it must be quashed. The order of the Home Secretary to the Government of West Pakistan dated the 12th August 1967, confirming the unlawful order must automatically fail.

The result, therefore, is that ire case against the petitioner shall be deemed to be pending before the Civil Judge and 1st Class Magistrate, Khairpur Mirs, wherefrom it was transferred by the Commissioner, Khairpur Division. It shall proceed forthwith and shall be decided according to law. With these directions the petition is allowed, but in the circumstances we leave the parties to bear their own costs.

Petition allowed.

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