MUHAMMAD NAEEM Versus STATE

GUL MUHAMMAD KHAN, C.J. ‑‑ The Additional Sessions Judge, Sialkot, vide his order, dated 27th of October, 1986, convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to five years' rigorous imprisonment, with whipping numbering fifteen stripes and a fine of Rs.5,000. In case of default in payment of fine he was ordered to suffer one year's simple imprisonment. The appellant was, however, acquitted of the charge under Article 3 of the said Order.

2. The occurrence took place on the 11th of November, 1983 at 6‑00 p.m. in the Mushtaraqa godown in Lahai Bazar Chowk, Sialkot City. Muhammad Sharif, P.W.3, Sub‑Inspector, received a secret information that heroin was being sold in the Mustharaqa godown. Consequently, he formed a raiding party and left for the place pointed out. Therefore found the present appellant and some others (particulars given in the first information report) selling heroin. He took into custody the present appellant and found a plastic bag' in his right hand with 43 smaller packets weighing two grams each. He also found twenty smaller packets weighing one gram each. The total weight of the recovered material was 106 grams. A sum of Rs.480 was also taken from the pocket of his shirt. He, therefore, took the samples of the material and registered the case. The report received from the Chemical Examiner, Exh.P.D., was positive.

3. The prosecution produced rive Witnesses in support of its case. Chan Peer Shah; P.W.1, Assistant Sub‑Inspector, testified to have recorded the first information report on the complaint of Muhammad Sharif P.W.3, Sub‑Inspector. Rehmat Ullah, P.W.2, Moharrir Head Constable, stated that he received the sealed parcels from P.W.3, kept them in the Malkhana and later handed them over to Chemical Examiner through Muhammad Shabbir Khan, P.W.4, Foot Constable who testified having received the parcel and delivered the same to the Chemical Examiner.

4. The other two witnesses are witnesses of the occurrence. The complainant Muhammad Sharif, P.W.3, supported the version given by him in the first information report with regard to raid, search and recovery of a total of 106 grams of heroin. Muhammad Ashraf, P.W.5, Assistant Sub‑Inspector, supported, P.W.3, in all material respects. The appellant, however, denied the allegation against him, in his statement under section 342, Cr.P.C. and stated that he had been falsely involved in the case, though he had been arrested and taken in custody a couple of days earlier. He, however, produced no evidence in defence.

5. It is contended by the learned counsel that as the offence had taken place on the 11th of November, 1983, when the maximum sentence was two years' rigorous imprisonment, the subsequent amendment made in December, 1983, could not have been invoked and acted upon and therefore, the award of punishment for more than two years is unlawful. The learned counsel added that even the very trial by the learned Additional Sessions Judge was illegal and ineffective for the reason that the case could be tried exclusively by a Magistrate in view of Article 27 of the Prohibition (Enforcement of Hadd) Order, 1979 read with the 4th Item in Chapter XXIII of the IInd Schedule of the Cr.P.C.

6. The provision referred to above states that if the offence done is against the other laws (i.e. other than P.P.C.) and punishable with imprisonment for one year and upwards but less than three years or with whipping not exceeding 40 stripes, with or without imprisonment, it shall be triable by a Magistrate First Class or Second Class. It is' argued that as the maximum punishment under the unamended law was two years, the only Court entitled to try the offence was that of the Magistrate of the First Class or the Second Class. As to the prejudice that might have been caused to the accused it is submitted that he has lost a right of appeal before the Court of Session and exercise of revisional power of the High Court.

7. The "learned counsel has referred to a number of judgments in this regard to support his view point. It will, therefore, be much useful if the relevant portions of those judgments are reproduced to show the view taken or the ratio decidendi of decision. Firstly, an Indian Court in Marthra and others v. Kamta A I R 1940 Oudh 244 and 245 relying on a view taken by the Lahore High Court in A I R 1933 Lah. 1009, held that a defect in jurisdiction is not curable while a defect in the exercise of jurisdiction could be ‑cured under section 537, Cr.P.C. The Court found out in the Lahore case that on‑the basis of the facts alleged the case fell under section 420, P.P.C. and not section 417 and was triable by a Magistrate 1st Class. Consequently, the trial held by a IInd Class Magistrate was held to be a defect of jurisdiction going to the very root of the case and not just an irregularity. Reference be made to Khuda Bakhsh and another v. Emperor A I R 1933 Lah. 1009 (1010).

8. In the other case the learned Judges of the Sind Chief Court, as it then was, in Mansharam Gianchand and another v. Emperor A I R 1941 Sind 36 and 38 held that:‑

"A Magistrate cannot therefore; usurp a jurisdiction to himself he did not possess by placing an offence, which rightly falls under section 220, Penal Code, under section 342, or section 347, Penal Code, so as to give himself jurisdiction and trying it himself. It is however, desirable from all points of view, that serious cases, involving offences such as under section 220, Penal Code, should, so far as the law permits, be committed to the Court of Session even if a First Class Magistrate had power to try them."

"It is a matter merely of personal opinion, and I may be wrong, but where serious offences, such as are alleged in this case against the Sub- Inspector, are to be tried, it appears to me that it is desirable from all points of view, from the point of view of the public, from the point of view of the police force, from the point of view of the officer concerned, from the point of view of justice, that these most serious cases, and they are most serious cases, should, so far as the law permits, be committed to the Court of Session even if a First Class Magistrate had power to try them, for it appears to me that for an offence of this nature, even though it involves the loss of appointment and of pension, a sentence of five years' rigorous imprisonment in the case of one man would be far more effective than six months or, a year in the case of more than one, in the cases, say of five or six Sub‑Inspectors, who might be convicted and sentenced to six months' imprisonment each."

The contents of this report would show, that the case was different from the previous two cases inasmuch as that there the jurisdiction did 'tot vest in the lower Court which tried the case. In the Sind case, however, the trial Court by changing the section usurped the jurisdiction which otherwise would not reside in him. Further it was felt desirable that a case would be tried by a higher Court if it was in public interest and that of others.

9. The principle to be derived from all the above cases is that if a lower Court exercised the jurisdiction which vested in higher Court, it will amount to defect of jurisdiction but if the higher Court does so it may only be a defect in the exercise of jurisdiction not going to the root of the case. The other cases are much different from those dealt with earlier. In Rukhu Sharif v. Panchanon Monda A I R 1937 Cal. 256 the accused brought an appeal before the District Magistrate though he ought to have gone to the High Court to set aside an order of the Sessions Judge. However, the High Court instead of refusing the relief interfered the case, with the following remarks:‑

"It is to be noted that it is: Panchanon himself who went to the wrong Court, and it might be that in the absence of a satisfactory explanation for his so doing this Court might refuse to interfere: Here again it would lead to mere waste of time it I were to order the District Magistrate to dismiss the appeal as incompetent and then leave it to Panchanon Mondal to apply to this Court to set aside the order of the Sessions Judge. In the present state of the matter it is, in my opinion, desirable that it should be finally settled."

10. The conclusion to be drawn from the views taken above is that if there was defect of jurisdiction the proceedings must be quashed but it will not be so where there was a defect only in the exercise of jurisdiction. Further, the higher Court will try and finally settle the matter and avoid waste of time and effort to permit compliance with mere technicalities or formalities. The final view taken by the Indian Courts in the controversy before us is also similar and was summed up by a Full Bench in Rex v. Matoley and others A I R 1949 All. paras. 46, 51 and 52. The Court discussed elaborately the relevant provisions of the Cr.P.C., and observed as follows:‑

"The provisions contained in sections 346, 347 and 349 are generally applicable to all inquiries and trials. Obviously, therefore, they apply to trials of summons cases under Chap. 20, as also to trials of warrant cases under Chap.

21. Similarly they are applicable to summary trials under Chap.

22. It seems to me, therefore, that they should be looked upon as supplemental to the provisions contained in those Chapters." (para.46)

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In the light of the above it must be observed that the reasons for which the superior Magistrate may commit a case to the Court of Session are not in any way limited either to a case which he cannot try or to a case in which he cannot adequately punish the accused. The Legislature did not intend to provide that the Magistrate, otherwise competent, would have no power to commit a case to the Court of Session except for one of the two reasons, viz. (i) that he cannot inflict sufficiently severe sentence, and (ii) that he is not competent to hold a trial of the case." (para.51)

"After giving my anxious consideration to the relevant provisions of the Code and the case‑law, I have arrived at the conclusion that the view which has so far been generally accepted by this Court and, in particular, the view taken by the learned Judges in the case of King‑Emperor through Bachan Lal v. Subedar Singh and others, 1946 A L J R at p. 137: A I R (33) 1946 All. 365: 47 Cr. L J 804 ii not correct. On the contrary, I find myself in full agreement with the view taken by the Madras, Bombay, Lahore and Rangoon High Courts and the 4ind Chief Court in the cases discussed by me in an earlier part of my judgment. To sum up, in my judgment, a Magistrate otherwise competent, may commit any person for trial to the Court of Session or the High Court for any offence: but he must give adequate reasons for committing a person for an offence which is not exclusively triable by the Court of Session or the High Court : (para 52)

11. The same view was followed by the Lahore High Court in Muhammad Baqar and another v. Muhammad Rafi and another 1981 P Cr. L J 432, p. 434 with the following observations:‑

"I examined the first contention raised in the case of Ahmad and another v. The State 1980 P Cr. L J 580 and held that notwithstanding the provisions contained in section 190, Cr.P.C., a Magistrate under section 347, Cr.P.C. has power to send a case triable by him to the Court of Session or High Court at any stage of the proceedings if it appears to him that the case is one which ought to be tried by these Courts and I need not take a different view. Under section 347, Cr.P.C., the ground, for instance, that a complicated question of law arises or that a connect matter is already before Court of Session etc. were generally accepted to commit the case to Sessions Court. Rex v. Motlay A I R 1949 All.1 can be cited in support of this. On law reforms, a Magistrate taking cognizance of a case triable by him can send the same to the Court of Session for trial, if the circumstances so warrant. In the instant case learned Magistrate has given reasons such as that the connected matter is pending there while sending the case to the Court of Session. In the Lahore case cited, section 347, Cr.P.C. was not adverted to. Therefore, even the second contention raised has no merit. The result is that the petition fails and is dismissed accordingly."

12. This Court also left it to the discretion of the Magistrate to send up a case to the Court of Session in the State v. Anayatullah and another P L D 1983 FSC 244. The observations made in paras 24 and' 30 may reproduced with advantage.

"24. Section 190(3) provides for cognizance of offences by the Magistrate which he can take (a) upon receiving the complaint of facts which constitute the offence, (b) upon the report in writing of such facts made by any Police Officer and (c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed. It is only after taking cognizance of a case that the Magistrate has to determine whether the matter before him is exclusively triable by Court of Session. Once he arrives at the confusion that it is so triable, his own jurisdiction to try it ceases, and he must send the case to the Court of Session for trial."

"30. The upshot of the above discussion is that though the police may register a case under section 8 of the Order alongwith or without any other section the Magistrate should not forward the case to the Sessions Judge unless he finds it is covered by the provisions of sections 8 and 9 of the Order and the Hadd sentence is possible to be passed on the facts ensured on the face of the record. If he finds on the face of the record that the matter is covered by section 8 or the evidence of two witnesses as required by section 9 thereof is forthcoming, he has no option but to send the matter to the Sessions Court in which case the Sessions Court will have no doubt the jurisdiction to pass any other sentence, if the offence under section 8 is not proved on trial before it. But if the required evidence be not forthcoming he should try the case himself.

13. The above discussion will show that is an illegality going to the very root of the case if a Magistrate of lower jurisdiction takes up or tries a case which could have been tried by the higher Court. However, it is discretionary with him, for reasons to be recorded, to send a case up to a higher Court for trial. The first category is a defect in the jurisdiction while the second is a step in the exercise of jurisdiction. It is, however, a settled law that while the former cannot be cured under section 537, Cr.P.C., the latter is curable, unless there has been a failure of justice or some prejudice of substance has been caused to the accused. This was also the view of the Indian Courts as held by a Full Bench in Khetra Mohan Das v. Emperor A I R 1921 Cal 38, at page 39 as under:‑

"Consequently, I answer the question which has been referred to this Bench in this way: where a person has been sentenced upon a conviction for an offence mentioned in section 195 of the Criminal Procedure Code, the sentence is not liable to be reversed or altered on appeal, or revision, on the ground that the sanction required by section 195 was not in force at the time when the prosecution was instituted, unless it is established that this has in fact occasioned a failure of justice within the meaning of section 537 of the Criminal Procedure Code."

14. The Supreme Court, however, should have set at rest this controversy in the case of Shahzada and others v. Malik Shamsuddin and another P L D 1977 SC 384, p. 392 as under:‑

"It will be seen that any technical defect or omission in the procedure followed by the Magistrate in the proceeding was not held to affect his jurisdiction, as long as there was material on the record to justify the order made by him. The effect of any such defect or omission would in fact depend upon its nature and character, which really has reference to the question whether any prejudice has been caused to one party or the other. The same principle was reiterated in another context Shamim v. The State P L D 1966 SC 178 While considering the effect of the failure of a Magistrate to examine a complainant under section 200 of the Code of Criminal Procedure before issuing process to the accused, the Court observed that this is a mere irregularity curable under section 537 of the Code:"

15. In the case in hand the defect brought out is that the Magistrate sent up; the case to the Court of Session on an erroneous assumption that the amendment of law took away his jurisdiction and vested the same exclusively in that Court.

The Court of Session, however, would have been competent in any event, to try ii the case was sent to it under sections 346, 347, 349, 526 or 528, Cr.P.C. It is thus not a case where the Court of Session completely lacked the jurisdiction curable under section 537, Cr.P.C. Further no prejudice has been caused to any side. The contention that the appellant has lost a valuable right of appeal in the lower Court has not impressed us at all. The same objection can be taken if a case is transferred to a higher Court and the objection should be fatal if a High Court takes up a trial under its original jurisdiction. The trial by a higher Court should rather be more satisfying and advancing the cause of justice. Again, this Court can look into the record under Article 203‑DD of the Constitution and pass such order as it thinks fit. We would, therefore, neither waste time nor effort of the Courts below who acted with jurisdiction just to satisfy some technicality or formality. The objection thus has no merit and is not sustained.

16. The other objection of the learned counsel has merit. The amendment enhancing the sentence could not be applied retrospectively. In that view of the matter the sentence awarded by the trial Court is set aside but as the conviction is maintained we award the sentence of one and a half years with whipping numbering 15 stripes and a fine of Rs.5,000 (five thousand). In default of payment of fine the appellant shall suffer one year S.I. The appeal thus partly succeeds and shall stand disposed of accordingly.

SA./454/FSC Sentence reduced.