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Writ Petition No. 810 of 1966, decided on 8th March 1968.

S. 7‑A (i) read with Ss. 5 & 9 and West Pakistan Criminal Law Amendment Rules, 1963, rr. 11 (1) (a) & 17‑‑‑Tribunal Jurisdiction‑One of members resigning and another removed from panel‑Situation covered by .r. 11 (1) (a) and not by r. 17‑ Constitution of fresh Tribunal not necessary in such circumstances‑‑ District Magistrate competent to fill up vacancies under. r. 11 (1) (a)‑Proceedings of Tribunal so constituted held, valid.

Ss. 8 (5) & 10 (2) (d)‑Secret enquiries‑Unwarranted and illegal Sum‑total of secret enquiries neither brought on record nor accused appraised of their substance and called upon to meet them‑Such secret enquiries playing decisive part in formation of opinion of Tribunal ‑ Held, procedure adopted by Tribunal in gathering evidence, being in violation of provisions of S. 8, was entirely illegal and unwarranted‑Order passed on basis of such opinion‑Without lawful authority and of no legal effect‑Principles of "absence of prejudice" envisaged in S. 537, Cr. P. C.‑Do not protect such patent illegalities in procedure‑Criminal Procedure Code (V of 1898), S. 537.

S. 537‑‑‑‑Conduct of secret enquiries and formation of opinion with regard to guilt of accused ors basis thereof‑Held, a worst case of prejudice to accused‑‑‑Evidence received by a forum in contravention of procedure laid down by law‑proceedings become streaked with an incurable illegality‑Interpretation of statutes Penal statutes to be strictly construed‑‑‑Departure from authorised procedure can only be sanctioned by statute.

There cannot be a worst case of prejudice to an accused person than the conduct of secret enquiries against him and the formation of an opinion with regard to his guilt on that basis without giving him the least indication as to the nature and the source of such enquiries. The principle is now established that where a trial is conducted in disregard of the fundamental and imperative provisions of procedure, the whole proceedings are vitiated.

The recording of evidence in any criminal trial is a matter of fundamental character and strict adherence to the procedure prescribed for this purpose is necessary in order to ensure the proper dispensation of justice. There is an ample authority in support of the proposition that where the evidence had been received by a forum in contravention of the procedure laid down by law, tae proceedings became streaked with an incurable illegality. A radical departure from procedure and the mode of recording evidence has to be strictly avoided as the fate of a prisoner cannot be permitted to be decided on the basis of information received through channels not recognised by law. The penal Statutes are to be strictly construed and a departure from the authorised procedure can only be sanctioned by Statute.

Emperor v. Brij Lal and others A I R 1942 Lah. 232; Ramhit v. Emperor A I R 1934 All. 776 and Mashooq arid another v. The State Writ Petition No. 295/66 distinguished.

Subrahmania 1yyar v. King‑Emperor I L R 25 Mad. 61; Qadar Dad and others v. Sultan Bibi and another P L D 1956 F C 129; Muhammad Musadafar Hodae and another v. The State P L D 1958 S C 131; John Thomas Lyme v. The Crown A I R 1924 Lah. 17; Allu and others v. Emperor A I R 1924 Lah. 104; Hayat v. The State A I 12 1928 Lah. 380 and Khair Muhammad Pirwali Muhammad and others v. Emperor A I R 1940 Lah. 466 rel. Nazir Ahmad v. Emperor A I R 1936 P C 253 ref.

Principles to be invoked only where there is no specific provision in statute ensuring their observance.

R. v. Chancellor of Cambridge (1723) 1st Range ref.

Zafar Mahmood assisted by Bashir Ahmad Sheikh for Petitioner.

Saeed‑ul‑Hasan for A.‑G. for the State.

Dates of hearing : 23rd and 24th October 1967.

This writ petition by Haji Mir Khan is directed against the order of the District Magistrates Rawalpindi, dated 25‑9‑1965, convicting the petitioner's son Muhammad Siddique under section 302/149 of the Pakistan Penal Code and sentencing him to 14 years' R. 1. and the subsequent orders of the Commissioner, Rawalpindi Division, dated 10‑1‑1966, and the Home Secretary to the Government of West Pakistan, dated 30‑4‑1966, dismissing the revision petitions filed by the convict, Muhammad Siddique against the aforesaid order of the District Magistrate.

2. Muhammad Siddique was involved in an incident in which two persons, Nazir and Zafar Ali alias Zafri also mentioned as Muzaffar Ali lost their lives on 23‑11‑1963 at Edwards Road, Rawalpindi Cantonment. He was prosecuted along with Subail Asghar, Jan Masih, Ghulam Sabir alias Sabira and Nazir Hussain for the murder of the above two persons.

3. The Commissioner, Rawalpindi passed an order on 3‑6‑64 under section 3 of the West Pakistan Criminal Law Amendment Act, 1963 (hereinafter called the Act) referring the case to a Tribunal under the said Act. The members of the Tribunal appointed by the District Magistrate met for the first time on 23‑7‑1964 and evidence was recorded on 7th and 8th of August 1964. It, however, transpired during the proceedings before the Tribunal that one of the members of the Tribunal, Ch. Abbas Ali, had resigned from the panel and his resignation was accepted on 28‑7‑1964. It also transpired that the name of another member, Sh. Abdul Hakeem bad been removed from the panel of the members of the Tribunal on 30‑6‑64. The matter was brought to the notice of the District Magistrate, when twelve witnesses bad already been examined. The District Magistrate, by order dated 25‑8‑64 appointed two new members.

4. The newly constituted Tribunal started recording the evidence afresh, but as would appear from the order of the President of the Tribunal, Syed Mahmood Shah Hamdani, dated 28‑5‑65 (Copy Annexure A') the presence of the two injured witnesses, namely, Muhammad 13ux alias Luddi and Muhammad Hanif, could not be procured before the Tribunal despite the issue of repeated process for their appearance. The stand of the prosecution is that these witnesses were avoiding to appear before the Tribunal for the second time. The President of the Tribunal transferred on the record the statements made by these two witnesses before the earlier Tribunal of which Ch. Abbas Ali and Sh. Abdul Hakeem were the members. All the four members of the Tribunal were of the view that Muhammad Siddique and Nazir Hussain, wore not guilty. The Chairman, Syed Mahmood Shah Hamadani, however, did not agree with this view, and appended a dissenting note holding that Muhammad Siddique and Nazir were guilty. The District Magistrate, Malik Karam Dad Khan, remanded the case back to the Tribunal under section 10 (2) (a) of the Act. He observed that the members of the Tribunal had not given any reasons for the finding that Muhammad Siddique and Nazir were not guilty and that they had not taken into consideration the fact that motive lay with them. He, therefore, directed that a further enquiry be made and if the members of the Tribunal should like to examine Muhammad Bux and Muhammad Hanif every effort should be made to produce these witnesses before them. Since Muhammad Hanif had been done to death a day before he was about to appear before the Tribunal, his evidence remained on the record and he could not be personally examined again. Muhammad Bux, however, appeared and stuck to his previous statement implicating Muhammad Siddique.

5. The members of the Tribunal, by their note, dated 31‑7‑65 (Copy Annexure 'C') observed that they had made secret enquiries in the cast, awl that they had earlier expressed their doubt with regard to the criminality of Nazir and Siddique, because they had not made thorough secret enquiries at that time and had not looked into the statements of Muhammad Hanif and Mahmood Bux alias Luddi. Three members of the Tribunal, out of four, signed this report. The President agreed with them and came to the conclusion that all the five accused were guilty of the offence of the murder of Nazir and Zafar Ali. Mr. Muhammad Ashraf, District Magistrate, Rawalpindi after receiving this opinion convicted Siddique accused for the murder of Nazir and sentenced him to 14 years' R. I. he convicted Nazir and Sohail accused for the murder of Zafar Ali deceased and sentence them to 14 years' R. I. each. Sabir and Jan Masih were sentenced to 10 years' R. I. each, because they had only taken part in inflicting injuries on Muhammad Hanif and Mahmood Bux Luddi. A revision petition was filed before the Commis sioner against this order and it was argued before him that the secret enquiries made by the members of the Tribunal had vitiated the whole proceedings. The learned Commissioner, however, repelled this contention and observed as follows:‑--

"The question of the finding having been arrived at on the basis of secret enquiries is not correct. The evidence on the record was sufficient to bring home the guilt of the accused and the Tribunal and the District Magistrate held them guilty."

He, however, reduced the sentence of Nazir and Suhail to seven years' R. I. each and that of Sabir and Jan Masih to five years' R. I. each.

6. Another revision was taken to the Government, which was heard by Mr. Niaz Ahmad, C. S. P., Secretary to Govern. ment, west Pakistan Home Department. In para. 7 of the grounds of revision, Annexure G/1, the legality of the order or conviction and sentence has been attacked on the ground that secret enquiries were made by the Tribunal. The second Revisional Authority does not appear to have taken note of this objection at all and has held that no material irregularity appeared to have been committed in the proceedings of the case. The sentences of Nazir Hussain and Sohail were further reduced to 5 years' R. I. each and the order of the Commissioner is respect of the, petitioner, was upheld.

7. Mr. Zafar Mahmud, the learned counsel for the petitioner raised the following points before us;‑

(i) That the learned District Magistrate should have constituted a fresh Tribunal for the hearing of the case, because two of the members of the Tribunal having been incapacitated to work, a new Tribunal should have been appointed in terms of rule 17 of the rules framed under the Act.

(ii) That the secret enquiries having influenced the mind of the Tribunal in regard to the inculpation of Siddiq and Nazir accused, the whole proceedings are vitiated, because of the disregard of the rules of natural justice and contraven tion of the provisions of section 8 of the Act, which prescribe a particular mode of recording evidence.

8. The first argument was based on the comparison of the language of male 11(1) (a) and rule 17 of the Rules framed under the Act. W may pint out that rule 11 (1) (a) has new been reconstituted as section 1 (a) (1) by Ordinance XV of 1966, but the language practically remains the same. The learned counsel argued that under section 9 of the Act, at least three members of the Tribunal, apart from the President, have to be present in order to lend validity to the proceedings of the Tribu nal, Since the two of the members had lost the capacity to function on 7th and 8th of August, the dates on which the evidence of the witnesses was recorded, there was m) quorum in the eye of law, and the learned District Magistrate instead of adding two members should have constituted a fresh Tribunal, under rule 17 of the Rules framed under tire Act. Rule 17 reads as under: ‑‑

"Rule 17.‑‑Where a Tribunal declines to proceed with the reference or to give a finding on a question referred to it, or for any reason, is unable to function or proceed with reference made to it, the District Magistrate shall constitute another Tribunal in the manner provided in rule 8 and make over the reference to it for finding."

In our view, the above rule was not applicable to the situation which had arisen in this case. Tire precise and more appropriate rule was rule 11(1)(a) which deals with contingencies due to which a Member becomes incapacitated to act. In this case, the name of one of the members, namely, Abdul Hakim had been omitted from the panel on 30‑6‑1962, and the resignation of the other i. e. Ch. Abbas Ali had been accepted on 28‑7‑64. The two members had been visited with an incapacity to work on the, Tribunal and it was within the powers of the District Magistrate to fill up the two vacancies caused on account of the above circum stance. The Tribunal as newly constituted recorded the whole evidence once again and the only witness, who could not be produced was Muhammad Hanif, as he had been done to death. His evidence before the first Tribunal had been transferred to the file and the statement that he made under section 164 of the Criminal Procedure Code, which was proved by Pir Muhammad Shah, Magistrate 1st Class, was also on the record. The Tribunal although re‑constituted, acted as a fresh Tribunal and recorded the entire evidence in the case. Although Evidence Act is not applicable to the proceedings under the Act yet the Tribunal acted on the principles contained in section 33 of the Evidence Act in transferring on their file the statements of Muhammad Hanif who had died. We, therefore, do not find any substance in the first contention raised by the learned counsel.

9. With regard to the second objection, we may say drat the question of the violation of the rules of Natural Justice does not arise directly in this case. All fair procedure is based on the rules of Natural Justice, but the rules of Natural Justice are to be invoked only where there is no specific provision in a, Statute ensuring their observance. In such a case, unless the Legislature has given an indication to the contrary, the Courts will be called upon to enforce the rules of Natural Justice because that, as an ancient English authority (R. v. Chancellor of Cambridge ((1723) 1st Range.) says is the law, since the days of Adam. The procedure for recording evidence is laid down in section 8 of the Act. Subsection (5) of section 8 reads as under:--

"The Tribunal shall give the accused an opportunity of cross examining the witnesses deposing against him."

The Act does not make any provision for secret enquiries. On the other hand, subsection (5) of section 8 quoted above gives a gaurantee to an accused person that all evidence against him shall be recorded in his presence and he shall have tire opportunity to test the veracity of the witnesses by cross examining them.

10. The learned counsel for the petitioner referred to Emperor v. Brij Lal and others (AIR 1942 Lah, 232) and Ramhit v. Emperor (AIR 1934 All. 776). The first case was referred to the High Court by the Sessions Judge for expunction of certain remarks made by a Magistrate in the course of proceedings under section 107 of the Criminal Procedure Code. These remarks inter alia contained criticism of the local police and the members of the Municipal Committee for which there was no material on record. It was observed by the High Court that a Magistrate, while sitting as a Judge is not at all expected to base his decision on matters which come to his knowledge through extra‑judicial channels. In the Allahabad case, the Sessions Judge had levelled certain criticism on the Congress party, whom he held responsible for the riot case which he tried. In was observed that the Sessions Judge should riot have allowed his views upon the Congress activities to obtrude on his judicial pronouncement. These two judgments do not deal directly with the matter before us. There are, however, stronger reasons and more apt authority to uphold the objection of the learned counsel in regard to the legality of the proceedings of the Tribunal and the consequent orders that flowed from it.

11. The findings of a Tribunal have very great importance in the scheme of the Act. 1 under clause (d) of subsection (2) of section 10, the order of conviction by a District Magistrate is to be based on a unanimous finding of guilty by the Tribunal or of not less than 4/5th members thereof. He has the powers to acquit or remand the case in spite of such a verdict, but the order of conviction is to be based on a verdict given unanimously or by requisite majority. If the opinion of the Tribunal with regard to the guilt of an accused person is formed by a process unwarranted by law and against the mode of trial prescribed by the statute, tire finding of the District Magistrate stands vitiated, because of the inherent legal defect in the verdict on which he is basing the conviction.

The opinion of the Tribunal in regard to the guilt of a person is, therefore, not merely advisory. Its formation by requisite majority is the sine qua non for an order of conviction. A reference to the report, dated 31‑7‑65 (Copy Annexure C' ) would show that the secret enquiries made by the members of the Tribunal played a decisive part in the formation of their opinion. The last part of Annexure C' may be reproduced with some advantage:‑--

"We were doubtful about the guilt of Siddiq and Nazar ac cused in our previous findings because we had not made thorough secret enquiry on that occasion and the statements of Muhammad Hanif deceased and Mahmood Bux alias Ludi were not looked into at the time of forming that opinion. The remaining two witnesses i.e. Abbas Akhtar and Shah Zainan had excluded their names. Now, we are of the opinion that the last mentioned two P. Ws. deliberately avoided to implicate Siddiq and Nazar accused under pressure. We all contribute to the arguments advanced by the President Tribunal in his finding."

12. It is apparent from the above quotation that the Tribunal attached great weight to the secret enquiries made by them in determining the guilt of Muhammad Siddiq and his co accused Nazir. The sum total of these secret enquiries was never brought on record, nor was the accused apprised of their substance and called upon to meet them. The procedure adopted by the Tribunal in gathering evidence through secret enquiries is, therefore, entirely illegal and wholly unwarranted by law. Where a Magistrate took rough notes of a confession made to him by an accused person and the provisions of section 164 of the Criminal Procedure Code were not observed, the Privy Council held that where a power is given to do a certain thing in a certain way, the thing must be don‑, in that way or not at all. Other methods of performance are necessarily for bidden. Their Lordships held that it would be an unnatural construction to hold that any other procedure was permitted than that which was laid down with such minute particularity in sections 164 and 364 of the Criminal Procedure Code. Reference may be made to Nazir Ahmad v. Emperor (A I R 1936 P C 253).

13. The learned counsel appearing for the State tried to meet the case of the petitioner on the ground that there was otherwise sufficient evidence to prove tire guilt of siddiq and Nazir and that the secret enquiries having not caused any prejudice to the above two accused persons, the should not interfere with the impugned orders. The learned counsel for the State had perhaps in his mind section 537 of the Criminal Procedure Code when he contended that this Court could not interfere in the absence of prejudice. According to subsection (4) (a) of section 8 of the Act, the provisions of the Criminal Procedure Code are not applicable to the trials conducted before the Tribunal except those which may be specifically applied. The provisions of section 537 have not been applied to the Act. The argument regarding absence of prejudice, therefore, is not available to the learned State counsel. Even if this argument were available to him, there would have been no difficulty in holding that the case of Muhammad Siddiq and Nazir was seriously prejudiced by the procedure that was adopted by the Tribunal. There cannot be a worst case of prejudice to an accused person than the conduct of secret enquiries against him and the formation of an opinion with regard to his guilt on that basis without giving him the least indication as to the nature and the source of such enquiries. The principle is now established that where a trial is conducted in disregard of the fundamental and imperative provisions of procedure, the whole proceedings are vitiated. It was held in Subrahrnania Ayyar v. King‑Emperor (I L R 25 Mad. 61) that the disregard of the express provisions of law as to the mode of trial was not a mere irregularity such as could be remedied by section 537 of the Criminal Procedure Code. It was an illegality and conviction had to be set aside. This judgment has all along been followed by superior Courts in this sub continent. The Supreme Court in the case of Qadar Dad and others v. Sultan Bibi arid another (P L D 1956 F C 129) observed as follows:‑--

"Where the trial is found to have been conducted in a way not authorised by law and by the rules of procedure relating to matters of a fundamental character, the decision in such a trial whether of conviction or of acquittal is of little consequence and the entire proceedings must be set aside irrespective of any question of prejudice to any one."

In Muhammad Mosaddar Haque and another v. The State (PLD1953SC131) where a Sub‑Registrar and Moharrir were tried for acts of independent bribe taken in the course of the registration of the same document, it was held that the question, whether prejudice was caused or not need not be considered, as illegality had resulted from adopting a mode of trial prohibited by the Code of Criminal Procedure.

14. The authorities quoted above relate to the non observance of the provisions of Chapter XIX of the Code regarding joinder of charges and separate trial. Section 537 of the Criminal Procedure Code was amended in West Pakistan in 1964 to the effect that any departure from a mode of trial conducted under the above Code will not render the proceedings illegal unless prejudice has be‑.n caused. In view of this recent amendment, the above authorities so far as West Pakistanis con cerned, may have ceased to be fully applicable to trials conducted under the Criminal Procedure Code, but the force of the general principle of law, that they enunciate remains undiluted. The proposition that they firmly lay down is that a trial held in contravention of the procedure relating to fundamental character, would be illegal, and the entire proceedings have to be set aside irrespective of the question of prejudice.

15. The recording of evidence in any criminal trial is a matter of fundamental character and strict adherence to the procedure prescribed for this purpose is necessary in order to ensure the proper dispensation of justice. There is ample authority in support of the proposition that where the evidence had been received by a forum in contravention of the procedure laid down by law, the proceedings became streaked with an incurable illegality. A radical departure from procedure and the mode of recording evidence has to be strictly avoided as the fate of a prisoner cannot be permitted to be decided on the basis of information received through channels not recognised by law. The penal Statutes are to be strictly construed and a departure from the authorised procedure can only be sanctioned by Statute. In John Thomas Lyme v. The Crown (A I R 1924 Lah. 17), the accused who was a European British subject demanded a right of trial by Jury after the examination‑in‑chief of seven witnesses had been conducted. Before the Jury the rest of the prosecution witnesses were examined and cross‑examined, but the seven witnesses who had already been examined by the prosecution were not formally examined and their previous statements were read out and after asking a few other questions from them, the Prosecutor tendered them for cross‑examination. Some of these witnesses were not even sworn. It was held that the procedure adopted was entirely illegal and amounted to a wholly unauthorised variation from the ordinary and proper procedure. The proceedings were set aside and re‑trial of the accused was ordered. In Allu and others v. Emperor (A I R 1924 Lah. 104) there were two cross‑cases and the accused in both the cases, when questioned, whether they would produce defence, stated that the evidence of the prosecution witnesses who had appeared against them should be treated as defence evidence. The Court by the agreement of both sets of the accused treated the prosecution evidence in one case as defence evidence in the other. It was held that the procedure adopted was wholly unauthorised by law and the method in which the Court had dealt with the evidence was open to great objection. Following the case of John Thomas Lyme v. The Crown, it was held that the trial was prohibited in the mode in which it was conducted and was, therefore, illegal. In Hayat v. The State (A I R 1928 Lah. 380) there were two cross‑cases and the evidence in one case was utilised against the accused in the other case and the statements before the police under section 162 were treated as substantive evidence. The High Court in appeal held that the opinion of the Assessors was influenced by the evidence which could not be considered at all and the conclusions arrived at by learned Sessions Judge were based on inadmissible evidence. A retrial was ordered. Similarly in Khair Muhammad Pirwadi Muhammad and others v. Emperor (A I R 1940 Lah. 466) where after hearing cross‑cases, the learned Sessions Judge wrote one judgment and the evidence in one case was used in order to decide the other, it was held that the mixing up of the evidence in the two records was an irregularity which could not be condoned by reasons of absence of prejudice to the accused.

16. It would be clear from the above that the reception of evidence in an unauthorised manner by the Courts has been held to be an illegality which vitiates the whole proceedings. In the case before us, it is not a mere error in the reception of evidence, but there is a complete departure from the provisions of section 8, which imperatively lays down that the evidence shall be recorded in the presence of the accused and he shall have the right to cross‑examine the prosecution witnesses and to produce defence evidence in rebuttal of the prosecution case.

17. The learned counsel for the State referred us to the decision of the Division Bench of this Court in writ petition entitled Mashooq and another v. The State' (Writ Petition No. 295/66) decided on 9‑10‑1967 to which one of us (Muhammad Siddiq, J.) was a party. In that case, the Tribunal had made spot inspection in the absence of the accused and had also made personal enquiries. It was argued before the High Court that these personal enquiries had operated to the prejudice of the accused and were conducted in violation of the rule of audi alterum partem. The Bench hearing the case repelled this con tention and held that since no witnesses were examined by the Tribunal at the spot, the provisions of section 8 with regard to the recording of the evidence had not been violated. It was also observed in para. 4 of the judgment that the personal enquiries did not go beyond the spot inspection. The case relied upon by the learned State counsel is clearly distinguishable. It is pertinent to point out that the provisions of clause (d) of sub section (2) of section 10 were not at all brought to the notice of the Bench. We may, however, make it clear that any enquiries made regarding the merits of the case in the absence of the accused even during a spot inspection will suffer from a clear illegality.

18. This being the case, we hold that the order of the District Magistrate, Rawalpindi, dated 25‑9‑65 convicting and sentencing Siddiq and the subsequent revisional orders passed by the Commissioner, Rawalpindi, and the Home Secretary, West Pakistan Government on 10‑1‑1966 and 30‑4‑1966, respectively were passed without lawful authority and are of no legal effect as they were passed on the basis of a recommenda tion, which suffered from a patent illegality. As a result of this order, the conviction and sentence of Muhammad Siddique is set aside, but this will not have the effect of washing away the order of the Commissioner referring his case to a Tribunal. His case shall be deemed to be pending before the District Magistrate for the formation of a new Tribunal. He shall be treated as an under‑trial prisoner and shall receive his orders from the District Magistrate, Rawalpindi.

A. E /S.A.H. Order accordingly.

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