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Criminal Miscellaneous No. 13 of 1985, decided on 15th April, 1987.

‑‑‑ Liability to prosecution and punishment‑‑Where an act or omission constituted an offence under two or more enactments offender, held, was liable to be prosecuted and punished under either or any of those enactments but could not be punished twice for same offence.

‑‑‑S.561‑A‑‑Penal Code (XLV of 1860), Ss.147, 148, 382 & 507‑ Industrial Relations Ordinance (XXIII of 1969), Ss.16(1)(d) & 54(3)‑ Quashing of proceedings‑‑Accused workers allegedly intimidated, abused and wrongfully confined their employers for pressurising them to stop inquiry against their Joint Secretary‑‑Acts of accused, held, was unfair labour practices as defined in S.16(1)(d) of Industrial Relations Ordinance, 1969 and punishable under S.53(3) of the said Ordinance exclusively by N.I.R.C. or Magistrate 1st Class authorised by it and ought to be dealt with under said special law‑‑Ordinary criminal Court has no jurisdiction to try said workers under general law‑‑Proceedings against accused pending before ordinary criminal Court constituted abuse of process of Court and quashed.

Hoot Khan's case P L D 1977 Kar. 145 ref.

‑‑Ss.16(1)(d) & 43‑‑Word 'demand' occurring in S.16(1)(d), held, did not mean an 'industrial dispute', a term used in S. 43 of Ordinance‑‑Contention, that since demand (of stopping inquiry) had not been made by accused workmen in manner prescribed under S. 43 it could not be deemed to be a 'demand' as contemplated by S.16(1)(d) of Ordinance, repelled.

Fazal Elahi Siddiqui for Petitioners.

Malik Bashir Ahmad, assisted by M.A. Siddiqui for Respondent

'No. 1 Muhammad Aslam Malik for A.‑A.G. for Respondents.

Date of hearing: 4th April, 1987.

Through filing this petition under section 561‑A, Cr.P.C., the petitioners have prayed that proceedings in challan case under sections 147, 148, 342 and 506, P.P.C. pending against them in. the Court of Magistrate 1st Class, Attock, be quashed as being incompetent and abuse of the process of Court.

2. Ahmad Khan, Muhammad Safdar and Fateh Khan (petitioners herein) are respectively the President, General Secretary and Joint Secretary while remaining petitioners are the members of Mazdoor Union of Lawrancepur Woollen and Textile Mills Limited. On 20‑3‑1984, Mr. A.A. Ajjan was conducting an inquiry against Fateh Khan (petitioner) in the Mills Officers Mess. At about 2 p.m., Fateh Khan and Muhammad Safdar (petitioners) informed the Inquiry Officer they would not participate in the inquiry. The Inquiry Officer replied that in that event he would proceed ex parte. At this, the petitioners abused him and threatened him that if he continued the inquiry he would be dealt with severely. Fateh Khan and Muhammad Safdar at about 4‑30 p.m., the same day, collected the outgoing shift workers and started shouting slogans against the Mills management. Ahmad Khan (petitioner) President of the Union, also joined them. They addressed the workers and instigated them not to let the officers go out of the Mills premises. About 150 workmen Gheraoed the Administration Block and refused to lift 'Gherao' unless their demand regarding stopping of the inquiry and cancelling the charge‑sheet issued against Fateh Khan, Joint Secretary, was accepted. Mr. Aftab Ahmad, General Manager of the Mills, sent a written complaint to the Superintendent of Police Attock, informing him that lives of officers and his staff were in danger who should be provided protection and a case against the offenders be also registered. F.I.R. No.100 was accordingly registered at 10 p.m., at Police Station Saddar Attock, and after completing investigations the police submitted challan under sections 147, 148, 342 and 506, P. P. C. against the petitioners in the Court of Magistrate 1st Class, Attock, for trial. It is this case the proceedings of which are sought to be quashed. It may be stated that another complaint against the petitioners on the same facts was filed by Pir Jamil Ahmad (respondent), Personnel Manager of the :Hills, before N.I.R.C., Islamabad, for punishing them for having committed unfair labour practices under section 53(3) read with 16(1)(d) of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance).

3. On 31‑10‑1984 the petitioners moved an application under section 249‑A, Cr.P.C., in the Court of Magistrate 1st Class, Attock, praying for their acquittal in the challan case on the ground that as they were being prosecuted before N. I. R. C., under the Ordinance, a special law, for committing unfair labour practices, therefore, the proceedings in the challan case (based on same facts) under Pakistan Penal Code, which is general law, were not competent. This application was dismissed by learned Magistrate on 12‑12‑1984 saying that ingredients of the offences being tried by him were different from those being tried by N.I.R.C. Feeling aggrieved of this order the petitioners filed revision which was dismissed by Sessions Judge on 7‑4‑1983 observing that necessary ingredients of section 249‑A, Cr.P.C., i.e. the charge should be groundless and that conviction of the accused for any offence was not probable, were not satisfied, therefore, the trial Court had rightly dismissed petitioners' application. Feeling still dissatisfied the petitioners have invoked inherent jurisdiction of this Court for quashing these proceedings. This petition was admitted to regular hearing on 5‑6‑1985 whereafter the respondents withdrew their complaint pending with N. I. R. C., under section 53(3) of the Ordinance on 21‑10‑1985.

4. It is now argued on behalf of the petitioners that acts of intimidation, insulting and confining the officers of the Mills who are "employers", by the petitioners who are "workmen" constitute unfair labour practices in the meaning of section 16(1)(d) read with 53(3) of the Ordinance which are exclusively punishable by N. I. R. C., or a Magistrate of the First Class authorised by it under section 53(6) of the Ordinance, therefore, proceedings against them under Pakistan Penal Code pending with Magistrate 1st Class, Attock, being not competent are liable to be quashed.

5. Learned counsel for the respondents has replied that only those "workmen" are tried by N. I. R. C., or the Magistrate authorised by it who allegedly committed unfair labour practices while compelling for the acceptance of a "demand" raised in accordance with section 43 of the Ordinance and not otherwise. Since the demand (stopping of inquiry against Fateh Khan and withdrawing the charge‑sheet issued against him) in this case had not been made legally to the authorities before resorting to violent agitation, therefore, petitioners' acts are not covered under clause (d) of subsection (1) of section 16 of the Ordinance, hence the proceedings under the general law before ordinary criminal Court are competent. Relying on Hoot Khan's case P L D 1977 Kar. 145 learned counsel alternatively submitted that ingredients of offences under sections 147, 148, 342 and 506, P.P.C. and those of unfair labour practices mentioned in section 16(1)(d) of the Ordinance are quite different from each other, therefore, the petitioners can be simultaneously tried both in an ordinary criminal Court under Pakistan Penal Code (the general law) and for unfair labour practices under the Ordinance (the special lax) by N.I.R.C., Islamabad.

6. It may be at once stated that where an act or omission' constitutes an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under either or any of those enactments but cannot be punished twice for the same offence.,

7. Precisely the question for determination before me is, whether the petitioners on the above facts can be competently tried by Magistrate 1st Class, Attock, under Pakistan Penal Code general law of the land Admittedly the petitioners are "workmen" while the respondents are their "employers". As per allegations made in F. I. R., the petitioners (workmen) intimidated, abused and wrongfully confined the respondents (employers) from 4 p. m. to 8 p.m., on 20‑3‑1984 for pressurising them to stop inquiry against their Joint Secretary Fateh Khan, therefore, their acts, to my mind, constitute unfair labour practices as defined in section 16(1)(d) which are punishable under section 53(3) of the Ordinance exclusively by N.I.R.C., or Magistrate of the First Class authorised by it. I am unable to agree with learned counsel for the respondents that since the "demand" (of stopping the inquiry) had not been made by the petitioner/ workmen in the manner prescribed under section 43 of the Ordinance, therefore. it cannot be deemed to be a "demand" as contemplated by section 16(1)(d) of the Ordinance. It is nowhere provided in the Ordinance that word "demand" occurring in section 16(1)(d) means an "industrial dispute" a term used in section 43 of the Ordinance. Offences of intimidation, insulting, wrongfully restraining and wrongfully confining, committed by a workman in relation to his employer ought to be dealt with under the special law, i.e. Industrial Relations Ordinance, enacted for the purpose because special law overrides the general law. Furthermore, a special forum for the trial of unfair labour practices has been provided under the Ordinance.

8. Hoot Khan's case (supra) relied upon by learned counsel for the respondents does not help them as it proceeds on materially different facts. In that case, labourers (workmen) of Indus Jute Mills Ltd., Thatha, were challaned to the Court of S.D.M., Thatha, under sections 504, 323, 142, 341 and 342, P.P.C. for insulting, beating, wrongfully restraining and wrongfully confining their "employer". This case was withdrawn by the Government. Subsequently, Senior Member of the N.I.R.C., on complaint filed by the "employer" on the same facts tried and convicted the workmen under section 16(1)(d) read with section 53 of the Ordinance. The convicts/ workmen challenged their conviction in the High Court among others on the ground that because they had been tried and acquitted (as result of withdrawal of case by the Government) by S.D.M., Thatha, therefore, their subsequent prosecution and conviction for the same offences by the N.I.R.C., was illegal as being violative of Article 13 of the Constitution of Islamic Republic of Pakistan which bars prosecution and punishment of an accused for the same offence more than once. A learned Davison Bench of the Karachi High Court held that subsequent prosecution and punishment of the convicts/ workmen by the N.I.R.C., was legal as S.D.M., Thatha had no jurisdiction to try unfair labour practices, so the earlier prosecution in his Court did not bar subsequent prosecution of the accused/ workmen under the Ordinance. I may quote here the relevant paragraph of the judgment with advantage:‑

"8. The test for the 'same offence' is whether the former offence and the offence subsequently charged have the same ingredient in the sense that the facts constituting the one' are sufficient to justify the conviction of the other, not that the facts relied on by the prosecution are the same at the two trials. Furthermore, the previous prosecution must be before a Court which had jurisdiction to try both, the first as alleged as well as the offence for which, the accused is being subsequently prosecuted. There cannot be valid prosecution before a Court if the Court had no jurisdiction to a try the offence of which the accused is being subsequently tried."

In the precedent case, it was not held that workmen allegedly guilty of committing offences of intimidation, wrongfully confining, etc., against their employer would be tried under general law (Pakistan Penal Code) by an ordinary criminal Court in preference to their trial under the special law (industrial Relations Ordinance) for unfair labour practices by N. I. R. C., or a Magistrate authorised by it.

9. For what has been stated above, I am in no manner of doubt that on the facts narrated above the petitioners/workmen who allegedly committed offences of intimidation and wrongful confinement, etc., in relation to their employers/ respondents while compelling them to accept, their demand of stopping the inquiry launched against Joint Secretary of their Mazdoor Union constitutes 'unfair labour practices' in the meaning of section 53 read with section 16(1)(d) of the Ordinance, as special law, which further provides the trial by N. I. R. C. or Magistrate authorised by it, therefore, the ordinary criminal Court, i.e. Magistrate 1st Class, Attock, has no jurisdiction to try them under) Pakistan Penal Code, the general law of the land. Consequently, I find the proceedings in question, being incompetent, constitute abuse of process of the Court, hence they are quashed.

M.Y.H./A‑114/L. Proceedings quashed.

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