1. In connection with an F. I. R., bearing No. 140 recorded at Police Station Sialkot Sadar on 20-11-1967 at the instance of one Haji Abdul Ghani (complainant), the case against the petitioners was referred to a Tribunal by the Commissioner requiring the Tribunal to come to a finding on the question about the guilt or innocence of the accused involved therein. Actually the reference was made against eight persons though in the present writ petition we are concerned only with three out of them as will be explained later on. The exact date of the order of the Commissioner whereby the reference was made is not apparent on the present record though Mian Nusratullah learned counsel for the State, after going through the files, has submitted that it was somewhere before 10- 9-1968.
2. The Tribunal submitted its report to the District Magistrate on 13-2-1970. The findings of the Tribunal were that two persons, namely, Mian Khan and Muhammad Sadiq were not guilty ; whereas the remaining six accused were guilty. The learned District Magistrate, by means of his judgment and order, dated 3-4-1970, agreed with the aforesaid unanimous report of the Tribunal and convicted six accused under section 395, P. P. C. and sentence them to a rigorous imprisonment of seven years' each. [13]
4. The five accused hereinbefore mentioned then filed a revision but without any success as the same was dismissed by the Additional Secretary, Home Department on 7-5-1971. Out of the lot of five convicted accused only the present three petitioners, namely, Saeed Ahmad son of Nathey Khan Muhammad Ashraf son of Sardar Ali and Bashir Ahmad son of Imam Din have come up in writ petition under Article 98 of the Late Constitution against the aforesaid proceedings and orders to this Court.
5. Learned counsel for the petitioners argued that the case remained with different Tribunals, into the details of which he did not take me through except to point out, that the last President Ch. Muhammad Shafi, P. C. S., Magistrate 1st Class, who compiled the report and recorded the finding was seized of it only on 2-2-1970. He conducted no other proceeding except hearing the arguments, recording the opinion, compiling the report and findings and submitting the same to the District Magistrate. He was not the President at the time when evidence was recorded or the witnesses were examined. At that time different officer(s) acted as President. Learned counsel contended that the report should have been compiled, opinion should have been given and recorded and findings should have been submitted by the same President who had heard the evidence and not by the last President as in this case. The contention seems to have force and my reasons for so holding are as follows :--
(a) According to section 2(l)(e) of the West Pakistan Criminal Law (Amendment) Act, 1963 (Vll of 1963), "Tribunal" means the Tribunal constituted under section 4. In section 4 it is written that "4. Composition of Tribunal.--The Tribunal shall consist of--
(a) a President, who shall be a Magistrate exercising powers of an Additional District Magistrate, or a Sub-Divisional Magistrate, or who is invested with powers under section 30 of the Code of Criminal Procedure, 1898, or who has exercised powers of a Magistrate of the First Class, whether continuously or otherwise, for a period of not less than three years ; and
(b) four other persons to be appointed by the District Magistrate from amongst the penal constituted under section 5."
2. In section 7, it is written that :-- "Every member of the Tribunal shall, before the Tribunal enters upon a reference made to it under section 3 take an oath in the form set forth in the Second Schedule in the language that is understood by such member."
3. In rule 10(1) of the West Pakistan Criminal Law (Amendment) Rules, 1963, it is written :-- "On the date, time and place fixed under rule 9, every member of the Tribunal, including the President, shall, before the Tribunal enters upon the reference and proceeds with the enquiry into the case, take an oath in the formprescribed in the Second Schedule in the presence of the partial."
4. Sub-rule (2) of rule 10 lays down that :-- "The President shall first take the prescribed oath in the presence- of the other members and thereafter he shall administer the oath to the other members."
5. In section 8 (1), it is provided :-- "8(1) The Tribunal shall hear any evidence that may be adduced before it in support of the accusation or which may be led by the accused in his defence."
6. This is to be read with rule 14(1), which states that : "The President shall in his own hand or under his supervision maintain a memorandum of the evidence tendered before the Tribunal and sign the same."
7. All these provisions of law point out that the President once appointed is a part and parcel of the Tribunal and it is the Tribunal as such which under section 10 has to submit its findings with reasons therefor (on the question referred to it under section 3) to the District Magistrate containing the opinion of each individual Member separately. It is not possible that evidence is heard by a Tribunal with one President and opinion, findings and report are submitted by a different President.
(b) Section 9 of the Act, fixed the quorum for the Tribunal and stated that: "No proceedings before the Tribunal shall be valid unless the President and at least three other members of the Tribunal are present."
8. This shows that from amongst the appointed panel of the Tribunal, the presence of the President.in no case can be dispensed with though absence of one Member at a time can be tolerated. It means that it is the Tribunal (and the President) who under section 8 have heard the evidence who are to send a report and not a different President who had not heard the evidence at all.
(c) In section 7-A(2) it is written that :-- "If any member of a Tribunal dies, refuses to act, becomes incapacitated from acting, or fails to attend any two or more meetings of the Tribunal without sufficient cause to the satisfaction of the President, the President shall refer the matter to the District Magistrate for appointing another member in his place from the panel constituted under section 5 and when another member is so appointed by the District Magistrate to the Tribunal, the name of the member replaced shall be removed from the panel constituted under section 5."
9. In sub-rule (4) of rule 8, it is laid down that "(4) A person appointed as a member of a Tribunal shall, except in the case of his death or unless another member is appointed in his place under the provisions of section 7-A of the Act or his name is removed from the panel under the provisions of sub-rule (S) or sub-rule (6) of rule 7, continue as a member of the said Tribunal, until it has submitted its findings on the case or question referred to it, notwithstanding that after his appointment to the Tribunal, a new panel may have been constituted on which, his name does not appear.''
10. Rule l2 further lays down that :-- "The Tribunal shall proceed with the reference from day to day, unless for any special reasons, to be recorded in writing, it deems an adjournment necessary."
11. These provisions go to show that a Member once appointed is to continue till the finalization of the proceedings and submission of the opinions and findings of the Members. On principle, there is no justification to apply a different yardstick vis-a-vis the President who is as much a part of the Tribunal as any other Members.
(d) Rule 14 which has been referred to above shows that the President is required to maintain a memorandum of the evidence tendered before the Tribunal in his own hand or under his supervision and is to sign the same. Words, "his own hand" or, "under his supervision", point out that a President, who has not in his own hand or under his supervision maintained a memorandum of the evidence tendered before the Tribunal or in other words to be more precise who was not a Member of the Tribunal which heard the evidence, is not a President competent to compile the report, solicit the opinion of other Members or express his own opinion and much less submit the findings to the District Magistrate. In other words, he is not a part and parcel of the Tribunal, if under section 8 he has not heard the evidence adduced in the case, A report, therefore, which is submitted by the Tribunal with a new President, other than the one, who was the President at the time of the trial, is not a report of the Tribunal contemplated in sections 8 or 10 of the Act ;
(e) In rule 17, it is laid down that :-- "When a Tribunal declines to proceed with the reference, or to give a finding on a question referred to it, or, for any reason is unable to function or proceed with the reference made to it, the District Magistiate shall constitute another Tribunal in the manner provided in rule 8 and make over the reference to it for finding."
12. This also shows that it is one and the same Tribunal which should function from start to the end. If for any reasons it is unable to function or proceed with the reference, then the District Magistrate shall have to constitute another Tribunal. The reconstituted Tribunal would then hear the evidence and conduct the whole trial and it could not have simply compiled a report on the evidence adduced before an altogether another Tribunal.
13. (/) At this stage, I may refer to a decision of the Supreme Court in Civil Appeal No. 116 of 1969 Umar Hayat v. Abdul Rashid and others (1). In that case, the Tribunal consisted of five Members (to be more precise one President and four Members). Out of them four Members gave their opinions in clear terms but opinion of one Member was somewhat ambiguous. The District Magistrate remanded the case to ask the Member concerned to clarify his ambiguous opinion. The case came up in the High Court in the form of W. P. No. 1422 of 1968 Abdul Rashid v. District Magistrate, Bahawalpur and others and a Division Bench of this Court by means of its judgment and order dated 7-4-1969, set aside the order of the District Magistrate holding that under the Criminal Law Amendment Act (Vll of 1963), there was no scope for remanding the case for recording the opinion of one Member of the Tribunal alone and observed that the remand could be to the Tribunal as a whole. The Supreme Court did not agree with the High Court's view and setting aside the High Court's judgment held that law contemplated, recording of opinion, by each Member separately and if the opinion of one Member was defective in any respect, the remand could be made to get his opinion clarified. The actual passage in the Supreme Court's judgment reads as follows :-- "On hearing the learned counsel for the parties we are unable to subscribe to the interpretation placed by the learned Judges of the High Court on section 10(2)(a) of the Criminal Law (Amendment) Act. The relevant words in clause (a) are "remand the question to the Tribunal for a further inquiry and finding." The 'question', of course, is whether the accused person is guilty or innocent of the charge laid against him. While it may happen frequently that the case is remanded to the Tribunal for further inquiry and collective finding of the Tribunal it by no means follows that if one of the members of the Tribunal has not recorded his finding the District Magistrate cannot remand the case to the Tribunal for ascertaining his finding. As seen the remand was to the Tribunal though for ascertaining only the finding by one of its members who had on the one hand described the evidence led against Abdur Rashid, respondent, to be artificial and on the other hand that he might be the murderer. In substance one member of the Tribunal had failed to give his finding as required by section 3 of the Act which inter alia empowers the Commissioner to require the Tribunal to come to a finding on the question of guilt or innocence of an accused person. In subsection (1) of section 10 of the Tribunal shall submit its finding with reasons therefore on the question referred to it under section 3 to the District Magistrate. Under clause (6) where the finding of the Tribunal is not supported by 3/4th majority of the total number of members, the District Magistrate may refer the questions to a second Tribunal or acquit the accused person or persons or any one of them as provided in clause (e) or in accordance with the unanimous finding of guilt on any matter of fact of the Tribunal, or of not less than four-fifths of the members thereof, convict the accused person or persons or [14] any of them, of any offence specified in the First Schedule of which the facts so found show him or them to be guilty. Thus, while each member has to record his own findings the Tribunal submits 'its findings with reasons therefor' to the District Magistrate. Thereupon the District Magistrate has to ascertain whether the finding of guilt or innocence is supported by 3/4th majority or supported by 4/5th members of the Tribunal in order to record conviction or to acquit the accused persons. It is plain, therefore, that no collective finding by the Tribunal is to be submitted as assumed by the learned Judges in the High Court and until each and every member of the Tribunal has recorded an unequivocal finding on the question of guilt or innocence of the accused person, the Tribunal has not submitted its finding to the District Magistrate within subsection (1) of section 10. The District Magistrate can, therefore, in exercise of the power conferred by section 3 direct the Tribunal or any one of its members to come to a finding on the question of guilt or innocence of an accused person or persons.
14. The impugned order dated the 19th August 1966, by the District Magistrate remanding the case with the direction that Ghulam Haider one of members should record his finding on the question of guilt and innocence of Abdur Rashid, accused, was, therefore, covered both by section 10(2)(a) and section 3 of the Criminal Law (Amendment) Act. In that view, the High Court erred in holding that the order by the District Magistrate remanding the case to the Tribunal for ascertaining the findings of one of its members suffered from an illegality or was without lawful authority within the provisions of Article 98 of the Constitution. On the contrary, the order passed by the District Magistrate was covered by section 10(2) of the Criminal Law (Amendment) Act and did not suffer from any illegality."
15. The ratio decidendi of the Supreme Court's judgment lends support to the view which 1 have taken that it should be the same President and same Members who have heard the evidence who are required to give their findings and opinion and, as such, hearing of evidence by one President (who also is a Member of the Tribunal) and reducing of opinion and report by any other President is outside the scope of the law.
(g) Legislature is supposed to know the rules of natural justice and where it does not prescribe a procedure different from rules of natural justice, it is legitimate to presume that it desired that rules of natural justice are to be followed. One of the rules of natural justice is that a judgment in a criminal case should be rendered by the Judge who has heard the case. In the Act or Rules, no indication of any intention to the Contrary is available. It can, therefore, be safely assumed that it was the intention of the Legislature that it should be the President who had heard the evidence alongwith other Members of the Tribunal who should give and record opinion and submit the report. For the proposition that there exists such a rule of natural justice, reference may be made to the following passage at pages 4-5 of "Natural Justice" by Marshall (19S9) Edition, under the heading "Statement of the principles" :-- "There are numerous other dicta in many other reported cases, some of which will be referred to in their proper place later on, but the above extracts from judgments of the highest authority are sufficient to summarise and explain the two essential elements of natural justice which are in modern times usually expressed in the following form :--
(a) no man shall be Judge in his own cause ; and
(ib) both sides shall be heard, or audi alteram partem. Other principles which have been stated to constitute elements of natural justice are, e.g., that the parties must have due notice of when the Judge or tribunal will proceed, that the tribunal should not act under the dictation of other persons who have no authority and that if the tribunal consists of several members all must sit together all the time. It is, however, hoped to show that these and many other rules are merely extensions or refinements of the two main principles stated above."
16. Applying the said rule to the facts and circumstances of the present case, I feel no hesitation in holding that the opinion,! report and finding, rendered, recorded and submitted in this case| being not of the same President, who heard the evidence, they!" were all without lawful authority and void and any superstructure! based thereon will also be void.
(g) That it is a general principle that it should be the same Judge who has heard the evidence who should pronounce upon the guilt of the accused. Reference may be made to Boota Singh v.
17. Empress (1). The actual passage in the judgment reads as follows "Now it is undoubtedly a general principle, which only has > to be stated to be accepted, that the judgment in a criminal case should be written and pronounced by the Judge who tried the case.
18. Certain exceptions to the general rule are to be found in Chapter XXIV, Criminal Procedure Code.................. "
19. Similarly in Ramehandra Naik and another v. Emperor (2), this principle was reiterated and in this connection the Court further observed :-- "Apart from the question of legality, there is a great prejudice to the accused persons in a case of this nature where almost the entire evidence is recorded by one Judge and judgment is pronounced by another "
20. In Ram Rattan and another v. Emperor (3), where a judgment in a criminal case was delivered by the Sessions Judge after making over charge of his office to his successor, it was held, that "he had no jurisdiction to deliver the judgment and consequently the convictions and sentences were bad".
21. To the similar
(1) 1 P R 1890 (2) AI R 1947 Pat. 428
(3) AIR 1932 All. 582 strain is Jhingur Raut and others v. Emperor (1). In Jogesh Chandra Roy v. Surendra Mohan Roy Chaudhuri (2), it was held that where a Magistrate delivers a judgment written out by his predecessor, the judgment is passed without jurisdiction and is liable to be set aside. In Ramakotish and others v. Subba Rao and others (3), it was held that judgment of a criminal Court should he pronounced by the Court. When the Members composing the Bench leave the Bench, there is no Court at all. The mere fact that the Presiding Officer sits in Court room and writes his judgment will not make that a Court. The mere delivery of a judgment may be let to the Presiding Officer by the other Members of the Bench but they must be aware of what the judgment contains.
22. Judgment prepared by the Presiding Officer after other Members left the Bench is not a proper judgment at all. In Muhammad Ayub Khuhro v. Pakistan and others (4) it was held that a judgment passed by an incompetent Tribunal is void.
6. What has been written above is sufficient to dispose of this case and the other points raised in the writ petition, therefore, need not be attended to.
7. The upshot of the above discussion is that the proceedings and orders impugned in this case are declared to be without lawful authority and of no legal consequence against the petitioners. The writ petition is accepted and the convictions and sentences of the petitioners are set aside. The petitioners shall be set at liberty forthwith unless they are required to be detained otherwise in accordance with law. The question of retrial of the petitioners or restart of the proceedings, whatever the case may be, is left open to be decided by the authorities concerned in accordance with law on the subject and no specific directions by this Court in this respect are issued. Since by this order, the convictions and sentences of such other accused who have not filed any writ petition would also be affected, the Government may take notice of tips fact and attend to the matter in accordance with law. As the said persons are not petitioners before me, therefore, so far I am concerned I refrain from passing any order myself in that behalf. .
(1) AIR 1931 Pat. 386 (2) AIR 1931 Cal. 637
(3) AIR 1928 Mad. 1172 (4) PLD 1960 SC 237