Mr. Hussain Naqi is facing trial before the Special Judge (Central) Lahore under section 3/5 of the Official Secrets Act, 1923 (hereinafter called the Act) in a case registered against him vide F.
1. R. No: 542 of 1978 at Civil Lines, Police Station, Lahore, for publishing an article, "Leftists Beware" in the issue of the Weekly "View Point" dated 6-8-1978, incorporating various portions of a top-secret directive issued by the Chief Martial Law Administrator of Pakistan and basing thereupon the said article.
2. Rao Iqbal Ahmad Khan, respondent No. 2, was appointed Special Judge under section 13 (1) of the Act to try this case against the petitioner as well as two other co-accused. His appointment as such has already been held to be valid by this Court, in another case.
3. Section 13 (2) of the Act provides that if any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed, claims to be tried by the Court of Session, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that Court, notwithstanding that it is not a case exclusively triable by that Court.
4. In the present case the record shows that charge was framed against the petitioner as well as two other accused persons under section 3/5 of the Act on 11-2-1979 for publishing the aforesaid article in the Weekly. "View Point" on 6th of August, 1.978. On the same date Mr. Hussain Naqi presented an application in his own hand to the learned Special Judge praying that the case may be transferred to the Sessions Court for trial as required under section 13 (2) of the Act. At the end he stated that the application was being filed before the receipt or signing of the charge by the Court. The learned Special Judge rejected the application by his order dated 20.2-1979 holding that since two of the accused persons had not moved for transfer of the case and the application for transfer had been submitted after the charge had been framed, therefore, the same was not competent. He further held that since according to section 6 (1) of Pakistan Criminal Law (Amendment) Act, 1958 Special Judge was to be deemed to be a Court of Session, therefore, transfer of the case before another Sessions Judge would be meaningless.
5. Before the petitioner submitted his aforesaid application under section 13 (2) of the Act, Dr. Khalid Ranjha, learned counsel appeared before the Special Judge, according to whom he appeared after the charge had been put to the accused, and submitted that charge should not be framed.
The learned Special Judge observed in his order dated 11-2-1979 that the request made in this respect was too late.
6. It has been submitted by Dr. Khalid Ranjha, Advocate, that since the Special Judge though otherwise holding the rank of Sessions Judge is not the Court of Session at this moment as defined in section 9, Cr. P. C. Therefore, it cannot be said that he will try this case as Court of Session. It is contended that since the application under section 13 (2) was made within time before the charge had been framed, therefore, it was obligatory for the Special Judge to transfer the case to the Court of Session for trial purposes. According to section 9, Cr. P. C. The Provincial Government is obliged to establish a Court of Session for every Session Division and appoint a Judge for such Court.
7. It is submitted that since the Special Judge (Central) Lahore is not incharge of any Session Division and has not been appointed as such by the Provincial Government, therefore, he cannot be deemed to be acting as Court of Session while trying the present case.
8. Rao Iqbal Ahmed Khan holding the rank of Sessions Judge was appointed as Special Judge (Central), Lahore for trial of the present case vide notification No. 6/5/78-Poll-I (2), Government of Pakistan Ministry of Interior dated 30-9-1978. He was appointed as such because of the provision as contained in section 13 (6) of the Act to the effect that the appropriate Government may, if it thinks fit, direct that the procedure for the trial of an offence under the Act shall be that prescribed for offences under the Pakistan Criminal Law Amendment Act, 1958. Section 6 of Pakistan Criminal Law Amendment Act relates to the procedure to be adopted for trial of cases and powers of Special Judge. It provides that provisions of the -Code of Criminal Procedure except those of Chapter XXXVIII of that Code, shall, in so far as they are not inconsistent with this Act, apply, to the proceedings of the Court of a Special Judge and for the purposes of the said provisions, the Court of a Special Judge shall be deemed to be a Court of Session trying cases without the aid of assessors or Jury, and a person conducting prosecution before the Court of a Special Judge shall be deemed to be a Public Prosecutor. It means that in a case to be tried by a Special Judge under the Pakistan Criminal Law Amendment Act, 1958 the procedure as laid down in Cr. P. C. With the exception of the provisions as contained in Chapter XXXVIII would apply.
9. The first question to be examined is as to what is meant by as provided in section 6 of the Pakistan Criminal Law Amendment Act that the Court of Special Judge shall be deemed to be a Court of Session.
10. It has been argued by the learned counsel for the petitioner that since the Special Judge has been made Court of Session by fiction of law, therefore, he not being a Court of Session in reality cannot be deemed to act as such as required by section 13 (2) of the Act. Reliance in this respect has been placed upon Commissioner of Income-tax, Bombay Presidency v. Bombay Trust Corporation (AIR 1930 P C 54), Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore and another (PLD 1965 Lah. 445), Hussain Naqi and another v. The District Magistrate, Lahore and 4 others (PLD 1973 Lab. 164) and M. R. Melhotra and H another v. The State (AIR 1958 All.
492v). The facts of the case as reported in AIR 1930 P C 54 are that a company called Hongkong Trust Corporation, lent money, from time to time, on deposit to the respondents, i.e. Bombay Trust Corporation Limited. The Senior Income-tax Officer duly served a notice on the respondents in terms of section 43, Income-tax Act, 1922, that he intended to treat them as agents of the Hongkong Company, and after hearing the respondents as to liability he assessed them to income-tax and super-tax as agents of the Hongkong Company in respect of the amount of interest in the year of charge. The respondents appealed to the Commissioner under section 30 of the Act contending that they were not liable to be so assessed, and also raising questions as to amount. The Commissioner after hearing the parties held that the respondents were properly assessed as agents of the Hongkong Company. The matter was referred to the High Court at the request of the respondents under section 66 of the Income-tax Act, inter alia to consider the point whether Bombay Trust Corporation, Limited, respondents in that case, could be treated as agents of the Hongkong Trust Corporation Limited, for the purpose of section 42, Income-tax Act in respect of the interest so paid by the respondents to the Hongkong Trust Corporation Limited and whether Bombay Trust Corporation Limited could be deemed to be assesses under section 42 of the Act.
Section 42 of the Income-tax provided that no person shall be deemed to bethe agent of a non- resident person unless he had an opportunity of being heard by the Income-tax Officer as to his liability. The High Court in his reference answered the aforesaid question in the negative holding that the term "agent" was used in the same sense as used in section 40, i.e.a person who receives the said profits and gains and as the respondents, the Bombay Corporation did not receive the money but on the contrary paid it, therefore, they could not be deemed to be agent. Their Lordships of thePrivy Council did not agree with the view taken by the High Court on account of the explicit words of section 43. It was held that since the respondent had a business connection with the Hongkong Company, and through them the Company was in receipt of profits or gains and necessary notice of the intention of the tax officer to treat them as agents had been served upon them, therefore they were to be deemed to be such agents for all intents and purposes of the Act. It was held that since such persons were to be deemed to be the agent under section 42 of the Act, therefore, they would be deemed to be as such and would be chargeable to income-tax being assesses in terms of section 2 (2) defined as the person by whom income-tax is payable. It was further held when a person was deemed to be something the only meaning possible was that where as he was not in reality that something the act of Parliament required him to be treated as if he was. The judgment of the High Court was reversed and that of the Commissioner restored.
11. The learned counsel has laid great stress upon the words used in the judgment of the Privy Council such as "deemed to be" and has argued that it would mean that such person or authority to be deemed to be was not in reality that something, the Act of Parliament required him to be treated. He has argued that a person or authority to be deemed to be different from his or its actual position would not be that real person or authority which he or it actually was. It may be so but the question which requires consideration is whether a person or authority to be deemed to be as such would not be treated as if he or it was the real authority as provided by law. In the case before the Privy Council the respondents who had taken money from a non-resident Company known as Hongkong Company from time to time were treated to be its agents under the proviso of section 42 of the Income-tax Act, laying down that such persons shall be deemed to be the agents of non-resident person after having been heard by the Income-tax Authority.
12. In PLD 1965 Lah. 415 interpretation of the memo. Issued on 7th of March, 1960 under clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was involved. It was to the effect that the Central Government had decided that where a house was in possession of the husband in pursuance of the order passed on or before the 20th day of December, 1958 by a competent authority, his wife, if staying with him, will be deemed to be in possession. It was held by the High Court that in such situation as explained in the memo. Possession of the wife will be within the meaning of section 2 (6) of the Act. It was held that by fiction of law wife was clothed with all the incidents of her personal"possession" for all the purposes of the Act and by virtue of this provision in the Act her possession was in no way subordinate. She was placed directly in possession of the house under the Act without any intermediary by operation of that law. It was held that her possession was good against every other person except her own husband.
13. It may be mentioned that clause (6) of section 2 of the Act provided that the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified m the order, be deemed to be in possession for the purposes of this Act.
14. The High Court while deciding this case relied on Leitch v. Emmolt (Inspector of Taxes) (1929 All E R 638). It was held in that case that the words must be taken to refer to particular circumstances which fell for determination in that case. The word "deemed" introduced an artificial definition which was to be applied as long as the conditions existed to which it was intended to apply. It was held that when a Statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court was entitled and bound to ascertain for what purposes and between what persons the statutory fiction was to be resorted to.
15. The High Court while referring to the aforesaid observation in that case held that there could be no exception to this enunciation of the law as made in that case. It was observed that there was nothing in the whole of the Act to suggest that the concession which had been granted to the wife under the proviso did not extend any further. In fact by virtue of the artificial definition she had to be deemed to be in possession for the purposes of the whole of the Act.
16. After having discussed the pros and cons of the case it was held that the result of the discussion wag that not only the possession of the husband was to be deemed to be the possession of the wife in accordance with the second proviso to clause (c) of section 2 of the Act, her artificial possession was to be recognised for the purpose of the whole of the Act and the only logical conclusion flowing from that state of affairs was that by reason of the application of para 1 of the Schedule, the concession would stand extended to her father and her other relations mentioned therein. It was held that Sh. Abdul Hayee one of the parties in that case could take full advantage of the fictional possession of her daughter, Mrs. S. Z. Ahmad. It was observed that she was put into possession of the property directly by this fiction of law under the Act.
17. The above discussion would show that fictional possession of the wife or daughter, as the case may be, was held to be the real possession as envisaged by law for the purpose of the Displaced Persons (Compensation and Rehabilitation Act, 1958.
18. The facts of the case as reported in PLD 1-73 Lah. 164 are that the President in exercise of the powers conferred by clause (3) of Article 139 of the Interim Constitution of 1972 issued a Gazette Notification dated 30th of April, 1972 that "right to move any Court including the right to move the Supreme Court under clause (4) of Article 7 of the Constitution for the enforcement of Fundamental Rights provided for in Articles 9, 12, 13, 14, 15, 16, 20, 21, 22 and 24 of the Constitution, and all proceedings pending in any Court for the enforcement of any of the said rights, shall remain suspended for the period during which the Proclamation was in force."
19. It was contended before the High Court that the very Notification was invalid having been issued without Proclamation of Emergency as the President under clause (3) of Article 139 could, by an order, suspend the right to move the High Court or Supreme Court for the enforcement of the Fundamental Rights, only if he had declared the Proclamation of Emergency under subsection (1) of Article 139 which he had not done. While repelling the aforesaid contention it was held that there was no doubt that thePresident had not declared any Proclamation of Emergency after the Constitution came into force on the 21st of April, 1972 but that would not make any difference for the reason that the Proclamation of Emergency issued on the 23rd November, 1971, was continued under clause (8) of Article 139 which provided that the Proclamation of Emergency issued on the twenty-third day of November, 1971, would be deemed to be the Proclamation of Emergency issued under this Article, and any law, rule or order made or purported to have been made in pursuance of that Proclamation shall be deemed to have been validly made. It was further contended that clause (8) of Article 139 referred to above only validated the Proclamation of Emergency issued on 23rd of November, 1971 but it could not be a Proclamation of Emergency within the meaning of clause (1) of Article 139. This contention was held to be untenable because if the Legislature had only intended to validate the Proclamation of Emergency issued on 23rd of November, 1971, there was no need to do so by adding clause (8) of Article 139, for the simple reason that under Article 28
(1) of the Constitution all Proclamation made as from 25th day of March, 1969 were declared to have been validly made by competent Authority. It was held that clause (8) of Article 139 was not only a validating provision, it had clearly laid down that the Proclamation of Emergency issued on 23rd of November, 1971 would be deemed to be a Proclamation of Emergency issued under this Article. It was held that by virtue of this provision it was deemed to be a Proclamation under clause
(1) of Article 139 of the Interim Constitution.
20. It was further held that by Constitutional fiction the Proclamation of 23rd of November 1971 was to be considered as one issued under clause (1) of Article 139. The matter was further clarified by clause (9) of Article 139 providing that Proclamation of Emergency issued or deemed to have been issued under this Article would not be called in question in any Court.
21. The learned counsel has tried to argue while relying upon the definition of the word "deemed" as given in the Stroud's Judicial Dictionary as "when a thing is to be 'deemed' something else it is to be treated as that something else with the attendant consequences, but it is not that something else", that the word 'deemed' refers to that something else which is not a reality and as such though the Special Judge is to be deemed Court of Session as provided by section 6 of the Pakistan Criminal Law Amendment Act but he being not the Court of Session in reality cannot act as such while hearing this case. I am afraid this contention has no force.
22. The authorities cited above, relied upon by the learned counsel himself do not support his contention. The legal fiction as provided by particular law by the use of the word 'deemed' becomes reality for the purposes of that Statute. Since the Special Judge is to follow the procedure as laid down in the Code of Criminal Procedure as provided by section 6 of A the Pakistan Criminal Law Amendment Act with the exception of Chapter XXXVIII of the Code and further he is deemed to be a Court of . Session for the purpose of the Code of Criminal Procedure, therefore, when) trying a case under the Pakistan Criminal Law Amendment Act he will be acting as Court of Session for the purposes of the Code.
23. It may be mentioned here that a case reported as Agha Shaukat Ali v. Settlement and Rehabilitation Commissioner, Lahore anal another (PLD 1965 Lah. 445) was relied upon by another Division Bench of this Court in Abdul Hakim Khan v. Mrs. Doreen Barkat Ram (PLD 1973 Lah. 466). In that case interpretation of section 3 of West Pakistan Money-Lenders Ordinance, 1960 was involved.
According to that when an application for renewal of the licence has been received from the money-lender before the expiry of the period of licence, the existing licence shall be deemed to be effective until orders on the application have been made. The question to be determined in that case was as to what was the effect of the word "deemed". It was held that plain reading of this subsection meant that pending the disposal of an application for the renewal of a licence, the existing licence shall be deemed to be effective until orders on the application had been made. It was observed that those words were wide enough and they did not in any way limit the effect of the deeming clause. Under this subsection existing licence shall hold good so long as the Collector does not pass order on the application of the money-lender for the renewal or otherwise of his licence. It was held that the logical conclusion would be that the old existing licence held by a person would ensure until the Collector has disposed of the application pending before him for the renewal of his licence irrespective of the period for which the extension is sought.
24. In AIR 1958 All. 492 two learned Judges of the Division Bench differed as to whether the Special Judge while trying a case under the Criminal Law Amendment Act was to be a Court of Session as provided in the relevant section of the Act. It was held by Justice V. Bhargava that in designating the Court, empowered to try cases under the Criminal Law Amendment Act, 1952, as Court of a Special Judge, the Legislature clearly intended to indicate that a Special Judge would neither be a Magistrate nor a Court of Session as constituted under the Code of Criminal Procedure. Had there been any intention to that effect, it was easy for the Legislature to lay down in the Criminal Law Amendment Act, itself, that the power of trying cases under that law would be exercised by a Court of Session. The mere fact that the Special judge was to follow the procedure prescribed by, Code of Criminal Procedure for the trial of warrant cases could not convert a Special Judge into a Court of Session. It was held that by mere legal fiction. Which is frequently resorted to by the Legislature, the Special Judge was to be deemed to be a Court of Session for the Limited purposes of those provisions of the Code of Criminal Procedure. It was held that even though a Special Judge was not a Court of Session, he had to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases and except for those provisions with regard to warrant cases was to be considered in law to be a Court of Session for all other provisions of the Code of Criminal Procedure.
25. Justice A. N. Mulla while relying upon Go pal Press v. The State (AIR 1954 Pat. 543) and State of Delhi v. S. V. Krlshnaswa mi (AIR 1.954 Pb. 294) and dissenting with the view as expressed In re : A.
Vaidayanatha lyer (AIR 1954 Mad. 350) held that a Special Judge stood on the same footing as a Sessions Judge and he could exercise the same powers under section 503, Cr. P. C. As any Court of Session. He held that intention of the Legislature in conferring the status of a Sessions Judge upon the Special Judge created under the Criminal Law Amendment Act, 1952 was expressed in as clear terms as possible and it was not open to a Court to disregard it. The same view was taken by a Division Bench of Patna High Court as referred to above. A contrary view was taken in AIR 1954 Madras holding-that mere enactment of section 9 (Criminal Law Amendment Act, 1952) would show that the Legislature did not intend the Special Judge to be a Sessions Judge at all. It was held that when it was provided in the Criminal Law Amendment Act that the Court of Special Judge would be "deemed" to be a Court of Session, it certainly was not in fact a Court of Session. It was a Court of Special Judge whose procedure for the trial of such cases would be the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases. However, the view taken in AIR 1954 Madras was overruled by a Full Bench In re : T. A. Fernandez (AIR 1958 Mad. 571).
26. The above discussion would, therefore, show that the words used in section 6 of the Pakistan Criminal Law Amendment to the effect that Special Judge shall be deemed to be a Court of Session would mean that h would be a Court of Session while trying a case under that Act for the purposes of the provisions of the Code of Criminal Procedure except those of Chapter XXXVIII of the Code. In this view of the matter even if it is accepted that option was exercised by the petitioner under section 13 (2) of the Official Secrets Act before the charge in the present case was framed, question of transferring the case to another Court of Session would not arise. Rao Iqbal Ahmad Khan, Special Judge would be a Court of Session to a intends and purposes of the Code of Criminal Procedure.
27. Since important question of' law is involved as to when charge is deemed to have been framed under the relevant provision of Criminal Procedure Code, therefore, I would like to deal with this aspect.
28. According to the provision as contained in section 6 of the Pakistan Criminal Law Amendment Act the provisions of the Code of Criminal Procedure except those of Chapter XXXVIII of the Code shall apply to the proceedings of a case registered under any section of the Official Secrets Act to be tried by a Special Judge. Section 221 of Chapter XIX of the Code provides that every charge under this Code shall state the offence with which the accused is charged. Subsection (6) of the section provides that charge shall be written either in English or in the language of the Court.
Section 222 provides that the charge shall contain such particulars as to time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. According to section 223, when the particulars mentioned in sections 221 and 222 do not give the accused person sufficient notice of the matter with which he is charged, then the charge shall also contain such particulars as will be sufficient to give notice. Section 225 of the Chapter provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it had occasioned a failure of justice. Section 242 of Chapter XX provides that when an accused appears or is brought before a Magistrate a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged. Section 555 relates to various forms mentioned in the schedules of the Code of Criminal Procedure. The forms as set forth in the Fifth Schedule are to be used for the respective purposes therein mentioned. Form No. 28 of the Fifth Schedule relates to charges. It shows that the Magistrate in the first instance has to give his name and office and then state that he charges the accused persons of the offence and give all necessary particulars such as time, date and place of the occurrence. The Form further shows that at the end of the charge signature and seal of the Magistrate is to be affixed.
29. As mentioned above the order sheet of the file maintained by the learned Special Judge shows that Dr. Khalid Ranjha, learned counsel for the petitioner, appeared in the Court on 11-2-1979 when the charge had been put to the accused. Dr. Khalid Ranjha, however, submitted that the charge should not be framed against the petitioner as he wanted the trial of the case by the Court of Session. This submission was rejected on the ground of being quite late. Immediately thereafter the petitioner himself submitted an application in his own hand for transfer of his case to the Court of Session stating that the charge put to him had not been signed by the Special Judge as yet. The learned Special Judge, however, by his detailed order dated 20-2--1979 rejected his application on the ground that the other accused persons had not moved for transfer of the case and the application had been submitted by the petitioner after the charge had been framed. The tenure of the language as used in the order dated 11-2-1979 shows that at the time when Dr. Khalid Ranjha appeared in the Court and made submission for transfer of the case to the Court of Session, charge had already bee put to the petitioner though not reduced into writing and signed by the C Court. The question which arises for consideration is whether the charge should be deemed to have been framed when it was put to the petition though not reduced into writing and signed by the Court. The various provisions under Chapters XIX and XX of the Code show that charge should be in writing containing all necessary particulars such as time, date and place relating to the occurrence. The particulars should be definite and precise so as to give sufficient notice to an accused person with regard to the offence. Form 28 under Schedule fifth of the Code further confirms this views. It shows the manner in which the charge should be framed and is in consonance with the provisions contained in Chapters XIX and XX of the Code.
30. It is significant to notice that unamended provision of section 242 before the enforcement of Law Reforms Ordinance, 1972 provided that particulars of the offence of which a person was accused would be stated to him and he would be asked if he had any cause to show why he should not be convicted. It was further provided that it was not necessary to frame a formal charge. The amended provision of section 242 as mentioned above now provides that a formal charge would be framed against an accused person relating to the offence of which he is accused as soon as he is brought before the Magistrate. It means that putting the charge to an accused orally or stating the charge to him would not amount to framing of charge in a formal manner as required by the existing provision of section 242. If this had not been the intention of the Legislature then section 242 as contained in the old Code would not have been amended by Law Reforms Ordinance of 1972. Rule 9 of Chapter I-D High Court Rules and Orders Volume III provides that provisions of Chapter XIX of the Code of Criminal Procedure as to the framing of the charge as well as sections 221 to 223 showing the form in which a charge must be drawn up and the particulars which must be entered therein should be carefully consulted. This also shows that the charge should be in writing otherwise necessary particulars as mentioned above may not be contained therein.
31. The facts of the case show that at the time when Dr. Khalid Ranjab, Advocate, prayed for transfer of the case to the Court of Session an when the application was submitted by the petitioner in his own hand for that very purpose charge though put to the petitioner had not been reduced into writing nor signed by the Court. In view of that the charge as such could not be deemed to have been framed against the petitioner.
He was, therefore, within his right to claim at that time to be tried by the Court of Session. This matter, however does not end here. Section 13 (2)of the Official Secrets Act entitles an accused person facing trial before a Magistrate to claim to be tried by the Court of Session. The petitioner is being tried by a Special Judge who is deemed to be a Court of Session as provided by section 6 of the Pakistan Criminal Law Amendment Act. As held above he would be a Court of Session to all intents and purposes while trying a case under the Official Secrets Act for the purposes of the provisions of the Code of Criminal Procedure except those of Chapter XXXVIII of the Code. Though charge had not been framed against the petitioner at E the time when he prayed for the transfer of his case yet in view of the fact that Special Judge is a Court of Session while trying him under the Official Secrets Act, therefore, question of his trial by another Court of Session in the circumstances would not arise.
32. As a result of the above discussion the Criminal Miscellaneous fails and the same is hereby rejected without any order as to costs.