ASLAM RIAZ HUSSAIN, J.-This appeal is directed against the judgment of a Single Judge of the Lahore High Court, whereby the writ petition of respondents Nos. 1 and 2 was accepted.
2. The facts giving rise to the appeal are briefly, that two respondents, namely, Sardar Ali and Abdul Khaliq, who were members of the West Pakistan Rangers, were accused of an offence under section 14(l) (a) of the West Pakistan Rangers Ordinance, 1959, for having acted in a manner prejudicial to discipline of the Force, inasmuch as they had resiled from certain statements made by them earlier during the investigation of a case against three persons who were apprehended for smuggling. They were tried by the Commandant, in exercise of the magis--terial powers conferred on him under section 20 of the said Ordi--nance. Finding them guilty of the said offence, the Commandant sentenced each one of them to one year R. I. As a result, they also stood automatically dismissed from service by virtue of section 16, which provides that "Any member of the Force who is sentenced to a term of imprisonment for 90 days or more shall be deemed to have been dismissed from the Force".
3. The respondents filed an appeal before the Director-General, West Pakistan Rangers, who maintained their conviction but reduced their sentence to 6 months' R.
1. Each. The respondents then challenged their conviction and sentence through .a writ petition in the High Court. The learned Judge in Chamber accepted the same, vide the impugned judgment and set aside the respondents' conviction and sentence on the ground that their trial was bad in law inasmuch as `prior sanction' for their prosecution had not been obtained from the Director-General, West Pakistan Rangers, as required by section 19 of the Ordinance.
Aggrieved by this judgment the appellant (Government of Pakistan) filed a petition for Leave to Appeal in this court.
At the hearing of the petition for grant of Leave it was urged on behalf of the appellant- Government that previous sanction under section 19 of the Director-General or the Government is not required in cases where a member of the Force is tried by the Commandant or any other officer invested with magisterial power under section 20(1) of the West Pakistan Rangers Ordinance of 1959 (hereinafter called the Ordinance).
Leave was granted to consider the true interpretation to be placed on section 19 of the Ordinance.
4. We have heard the learned counsel for the parties at length and have also carefully considered the reasons given by the learned Judge in Chamber for holding that the respondents, or for that matter any officer or member of the Force, cannot be prosecuted for an offence mentioned in section 19 of the said Ordinance, without the previous sanction either of the Government or the Director-General, as the case may be From the reasons given by the learned Single Judge, in paragraph 7 of the impugned judgment for reaching this conclusion, it appears that he relied mainly on the plain language of section 19 which reads as follows :- "Section 19,, Sanction of prosecution.-Notwithstanding anything to the contrary in any law, a member of the Force shall not be prosecuted under section 13 or section 14 or for any offence committed within ten miles of the border before a Court other than that mentioned in section 20 without the previous sanction, in the case of a gazetted officer of Government, and in the case of other ranks, of the Director General."
After reproducing the above-noted section the learned Judge in Chamber observed as follows :- "The above provision shows that the conditions must be met before the prosecution of a member of the Force can be undertaken :-
(a) that it is only the Court mentioned in section 20 which shall try members of the force for an offence under sections 13 and 14, or for any offence, committed within ten miles of the border ;
(b) that the prosecution will be commenced only after obtaining the previous sanction of the competent authority."
He then went on to observe that this interpretation was consistent with other provisions of the Ordinance in as much as according to section 16 thereof, if a member of the Force is sentenced to a term of imprisonment for 90 days or more, he is automatically deemed to have been dismissed from the Force. By virtue of section 4 the authority of appointment of other ranks of the Force vests in the Director-General or any other officer authorised by him in this behalf. From this the learned Judge in Chamber conclud--ed that ;- "In' so far as a sentence to a term of imprisonment for 90 days or more entails the automatic dismissal from the force, it would be reasonable to assume that the previous sanction of the appointing authority should be necessary before commencing his prosecution, which is likely to result in his dismissal from the force as well."
5. We have carefully considered the above-noted reasoning adopted by the learned Judge in Chamber and have also studied the provision of section 19 in the light of the other provisions of the Ordinance and, with profound respect, are not persuaded to agree with the interpretation placed by him on the said section or the reasons given by him in support thereof.
6. We notice that sections 1.3 and 14 of the Ordinance enumerate certain acts which if done by any member of the Force would constitute an offence thereunder and would be punishable with such sentences as are mentioned at the end of each of these sections. The punishments provided for offences under section 13 are manadatory in nature, as it is provided that any member of the Force who commits any of the offences mentioned in . Clause (a) to (f) of that section (i. e. Section 13) "shall be punishable with transportation for life" and a member of the Force who commits an offence mentioned in clause (g) of section 13 "shall be punished with 7 years' R. I.".
Section 14 relates to offences which are less serious in nature. This section also provides the punishment for the offences mentioned therein. It lays down that any member of the Force "who is guilty of any such offence would be punishable with imprisonment for a term which may extend to one year R. I. Or with fine which may extend to 3 months' pay or both". It would be noticed that the sentence provided in this section is not mandatory.
Besides the offences enumerated in sections 13 and 14, section 19 also refers to other offences, namely those committed by a member of the Force within 10 miles of the Border. )t is thus, clear that section 19, which requires previous or prior sanction for prosecution of the members of the Force for the offences mentioned therein, mentions three kinds of offences, namely;
(i) offences enumerated in section 13 of the Ordinance;
(ii) offences enumerated in section 14 of the Ordinance ; and
(iii) any other offence committed (by a member of the Force) within 10 miles of the Border.
It provides that notwithstanding anything to the contrary in any other law (e. g. In column No. 8 of the II Schedule to the Cr. P. C.) as to which court shall try an offender for a particular offence, a member of the Force shall not be prosecuted for any of the three categories of offence noted above, before a Court other than that constituted under section 20 without the previous sanction, of the Government in the case of a gazetted officer, and of the Director-General in the case of other ranks.
Now the relevant portion of section 20, to which reference has been made in section 19, provides as follows; "Section 20. Powers of Government to invest the Commandant or any other officer with Magisterial powers.-(1) Government may invest the Com--mandant or any other officer with the powers of a Magistrate of first class for the purpose of inquiring into or trying any offence committed by a member of the force not punishable with death."
The working of the latter part of subsection (1) of section 20 clearly shows that the powers intended to be conferred on the officers specified in it are those conferred on a Magistrate under section 30, Cr. P. C., who is empowered under section 34 of the said Code to award a sentence up to 7 years' R.
I., only. This would be appreciated by a perusal of the provisions of sections 30 and 34 of the Cr. P.
C., which are reproduced below :--- "Section 30. , the Provincial Government may, notwithstanding anything contained in section 29, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death."
"Section 34. The Court of a Magistrate, specially empowered under section 30, may pass any sentence authorized by law, except a sentence of death or ofimprisonment for a term exceeding seven years."
It is also evident from a reading of section 30 that it is only an enabling provision and not a mandatory one, because it provides that Government may invest the Commandant or any other officer with powers of a Magistrate. In other words it is possible that there are periods when the Government has, by design or inadvertently, not invested either the Commandant or any other officer with magisterial powers and, consequently, no Court constituted under section 20 is in existence. Obviously it would not mean that during such periods a person guilty of any offence mentioned in section 19 cannot ,.,: be tried at all. .
Again, as already mentioned above, majority of the offences mentioned in section 13 are such that a member of the force found guilty thereof must be sentenced to Transportation for Life. But we have seen that the Com--mandant or any other officer invested with magisterial powers under section 20 of the Ordinance can only award a maximum of 7 years' R.
1. It would, therefore, follow that a member of the Force prosecuted for an offence under clauses (a) to (f ) of section 13 of the Ordinance has, of necessity, to be tried by a Court "other than that mentioned in section 20" i. e., by a Court competent to award mandatory sentence of imprisonment for life: Similarly, as envisaged in section 19, itself, a member of the Force may also commit any offence other than those mentioned in sections 13 and 14, within 10 miles of the border and provides for his trial for such offences. He could, ------for instance, commit a murder within 10 miles of the border, which is an offence punishable under section 302. Cr. P. C. Only with death or imprison--ment for life. If the interpretation placed by the learned Judge in Chamber, namely, that a member of the Force can be tried' only by a Court constituted under section 20, is accepted as correct, it would, then follow that a member of the Force who commits murder within the prescribed area cannot be tried at all.
Obviously, that could never be the intention of the legislation.
7. The correct interpretation to be placed on section 19 would, therefore, be that a member of the Force can or has of necessity, to be prosecuted for an offence mentioned in section 19 before any Court "other than the constituted under section .20", either when no officer or Commandant o officer has yet been invested with magisterial powers under that section, o when the offence committed is such for which a court constituted under section 20 is not empowered to award the prescribed sentence. But section 19 provides that in all such cases the prior sanction for their prosecution would not be required, but when he is to be tried by an "outsider", i. e. a court "other than one constituted under section 20", then such sanction would necessary.
7-A. We have mentioned in paragraph No. 4 above that in support of his conclusion as to the interpretation of section 19 the learned Judge in Chamber has observed that it was in consonance with the provisions of section 4 read with section 15. He pointed out that since a sentence to a term of imprisonment for 90 days or more entails automatic dismissal from the Force, it would be reasonable to assume that the previous sanction of the appointing authority should be necessary before commencing his prosecu--tion which was likely to result in his dismissal from the Force as well. This observation, however, overlooks the fact that while the authority to appoint vests in the Director-General or any othe officer authorised by him in this behalf, section 19 only requires prior sanction of the Director-General only --and omits any mention of a person authorised by him in this behalf. As such the provisions of section 4 read with section 15 cannot be said to support the interpretation placed on section 19 by the learned Judge in Chamber.
8. It may be mentioned that whenever even a member of the Force has to be tried (for any of the reasons mentioned in paragraph No. 7-A) by a Court other than that constituted under section 20, then, in order to determine which would be such "other court", reference shall have to be made to the portion of IInd Schedule to Cr. P. C., relating to "offences against other laws," which specifies the courts which would be competent to try persons accused of offence under laws other than the Pakistan Penal Code.
In view of the foregoing discussion, we hold that since the respondents had been tried by the Commandant who had been invested with magisterial powers under section 20 and the offence was one for which he could award the requisit sentence, previous sanction of the Director-General was nod required for their prosecution. Consequently, we accept the appeal and set) aside the impugned judgment of the Lahore High Court.