Through this appeal appellants, namely, Shahid Mehmood son of Mehmood, Arif Khan son of Khadim, Khan Waris son of Akram Javaid, Khan son of Sher Ahmad Khan, and Hanif Khan son of Rustam Khan impugn the convictions and sentences awarded to them by the learned Additional Sessions Judge, Rawalpindi vide judgment dated 29.8.2000 in case FIR No, 314 dated 9.10.1997 registered at Police Station Pir Wadhai, Rawalpindi, for offences under Section 302/324/148/149 PPC.
Through, the aforesaid judgment the appellants were convicted under Section 311 PPC and each of them was sentenced to 14 years R.I. They were also convicted under Section 324 PPC and each of them was sentenced to ten years R.I, with a fine of Rs, 10,000/- or in default of payment of the same, to further undergo one year R.I. Each of them was also convicted under Section 148 PPC and sentenced to two years R. I. Javed Khan appellant was further convicted under Section 337-F(ii)
PPC and sentenced to one year R.I. All the convicts were also directed to pay a fine of Rs, 20,000/- each payable as compensation to both the injured persons, or in default in payment thereof, each of them was to under go S.I for six months. All the convicts were extended the benefit of Section 382-B Cr.P.C. All the sentences were to run concurrently.
2. At the out-set, the learned counsel for the appellants without arguing the appeal on merits contends that the learned Additional Sessions Judge had no jurisdiction to convict and sentence the appellants as a case under Section 302/324/148/149 PPC was registered vide the aforementioned FIR on the complaint (Exh. PE) of Anzar Gul (PW-7) son of Shamroz Khan, drafted by Muhammad Taj, SI (PW-12) for Qatl-i-Amd of Muhammad Hafeez and Abdul Jamil and murderous assaul on Muhammad Nawaz and Shah Nazar (PWs) at the hands of the appellants while armed with fire-arm in which a compromise was effected between the legal heirs of the above mentioned deceased Muhammad Hafeez, namely, Muhammad Aziz father Mst. Rehmat Jan mother, Mst, Sabeda Bibi widow, on their own behalf and on behalf of the minor children of the said deceased, namely Yasir Hafeez, Mst. Sumaira Hafeez, Mst. Samina Hafeez, Mst. Nagina Hafeez, Imran. Hafeez and Sadiq Hafeez, who had raised no objection on the acquittal of the appellants; the legal heirs of deceased Abdul Jamil, namely, Abdus Salam father, Mst. Tahira Bibi mother and M.st. Mehmooda widow of the :said deceased, on their own behalf and on behalf of the minor son and daughters namely Abdul Wakeel, Faiza, Sidra, and Shumaila have also effected compromise with the said appellants. After composition for the offence under Section 302 PPC the learned Additional Sessions Judge. Rawalpindi charged the appellants under Section 311/324/148/149 PPC, to which they did not plead guilty and claimed to be tried. The learned counsel contends that the appellants could not have been charged on the above offences because Section 311 PPC has no direct nexus with Section 302 PPC in which a compromises was effected and no objections on the acquittal of the accused persons were raised by the legal heirs of both the deceased in their statements made on 16.9.1998 and in the affidavits sworn by them; that Sections 324 and 148 PPC are triable by the Judgicial Magistrate Section 30 and therefore the learned Additional Sessions Judge had no jurisdiction to charge the appellants, and therefore the convictions and sentences of the appellants recorded vide judgment dated 29.8.2000 were without jurisdiction.
3. The learned counsel for the State assisted by the learned counsel for the complainant contended that the objection should have been taken at the earlier stage before the trial Court at the time of framing .of the charge and as such no such objection was raised and it should not be allowed to be taken before this Court.
4. Confronted with this position, the learned counsel for the appellants contends that if a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. He adds that the question relating purely to the jurisdiction of the Court may be raised at any stage of the proceedings. Reliance is placed on the case reported as Mansab Ali v. Amir and 3 others (PLD 1971 SC 124) and Rashid Ahmad vs The State (PLD 1972 SC 271).
5. I have heard the learned counsel for the parties and perused the record with their assistance.
The admitted position on the record in that before commencing the trial of the case legal heirs of the deceased Muhammad Hafeez and Abdul Jamil entered into compromise with the appellants and the offence under Section 302 PPC was compounded and there was no objection on the acquittal of the appellants-accused persons raised by the legal heirs in their statements recorded on 16.9.1998. Thereafer the learned Additional Sessions Judge charged the appellants on 7.1.1999 under Section 311/324/148/149 PPC and thereafter sentenced them as aforesaid. Since Section 311 PPC has direct nexus with Section 302 PPC, therefore, charge could have not been framed after the acquittal of the appellants in the main murder case under Section 302 PPC. The offences under Section 324/148 PPC were triable by a Judicial Magistrate Section 30 Cr.P.C., which section reads as under:-- "30. Offence not punishable with death.--Notwithstanding any thing contained in Sections 28 and 29, the Provincial Government may invest Magistrate of the first class with power to try as a Magistrate all offences not punishable with death."
6. Admittedly the offences under Sections 324 and 148 PPC are triable by the Magistrate. In this view of the matter, the charge under the above stated sections of the PPC could have not been framed by the learned Additional Sessions Judge on 7.1.1999 having no jurisdiction in the matter.
7. As for the question of raising objection and framing of the charge, it is well-settled rule of law that the legal questions relating to jurisdiction could be raised at any stage of the proceedings. It has been held by the Hon'ble Supreme Court in the case reported as Rashid Ahmad v. The State (PLD 1972 SC 271) that if a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. In the afore-referred case of Rashid Ahmad, while relying on the case reported as Chittaranjan Cotton Mills Ltd v. Staff Union (PLD 1971 SC 197) the Honorable Supreme Court held that the question relating to jurisdiction could be raised at any stage of the proceedings. In this connection following observation is expressed:-- "Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances it could never be too late to admit and given effect to the plea that the order was a nullity, as was observed by the Privy Council in the case of Chief Kwame Asante Treadahone vs. Chief Kwame (9 DLR 686 (P.C)."
8. After careful consideration of the whole matter, I am of the considered view that the learned Additional Sessions Judge had no jurisdiction to frame the charge against the appellants under Section 311/324/148 PPC. The jurisdiction to try the case under Section 324/148 PPC was available to the Judicial Magistrate Section-30. Consequently, this appeal is allowed, the convictions and sentences of the appellants awarded by the learned Additional Sections Judge dated 29.8.2000, are set aside and the case is remanded to the learned Sessions Judge, Rawalpindi for its entrustment to a Judicial Magistrate Section 30 having jurisdiction in the matter.