1. Present petitioner Mohammad Arshad Dawood and respondent No. 2 Shaukat Saeed are accused of having committed a dacoity in the Bibi Ji Branch of United Bank Ltd., situated on Sariab Road Quetta, on 8th January 1977. Recoveries were made at the instance and pointation of the two accused persons. Such recoveries were made on 10th January, 1977 and were of the amount taken away from such branch.
2. The challan of the case was submitted on 16th January, 1977 in the Court of Sessions Judge, Quetta, through, the Illaqa Magistrate. Learned Sessions Judge entrusted the case to Additional Sessions Judge for trial. Charge was framed and the trial commenced. Petitioner was granted bail by the learned Additional Sessions Judge while respondent No. 2 was refused such concession. He approached the High Court where a notice was issued to the petitioner as well to show cause as to why his bail should not be cancelled. Subsequently such bail was cancelled. However a direction was given that the trial should be completed within four months. As the trial did not end within the said period a second bail application was moved. It was however withdrawn on 16th of March, 1978, as prosecution case was, by then closed. Subsequently the accused were examined and the defence evidence was adduced. Arguments were partly heard when on 16th April, 1978, the learned Additional Sessions Judge, before hearing the arguments of the defence counsel, raised the jurisdictional question. The learned Additional Sessions Judge wanted to examine if the place where the offence was committed fell within the Municipal limits or not. For this purpose the learned Additional Sessions Judge directed that the Municipal Engineer should be called as a Court witness. On 9th May, 1978 the learned Additional Sessions Judge came to the conclusion, as a matter of fact, that the place of commission of offence fell beyond the cantonment and Municipal limits of Quetta and that he did not have the jurisdiction to try the same, as Criminal Law (Special Provisions) Ordinance, 1968 (hereinafter referred to as the Ordinance) applied in such areas. It was further held that as section 3 of the Ordinance gives exclusive jurisdiction to the Deputy Com-- missioner to take cognizance of scheduled offences therefore he referred the matter to the Deputy Commissioner in terms of subsection (4) of section 4 of the Ordinance. The petitioner has impugned orders of the learned Additional Sessions Judge dated 16th April, 1978 and 9th May, 1978.
3. The first objection to the validity of these orders as taken by Mr. Muhammad Aslam Chishti, the learned counsel for the petitioner, is that neither the prosecution nor the defence raised the question of jurisdiction, and therefore, in the view of the learned counsel, the order of 16th April, 1978 and the subsequent order suffer from illegality. The question of jurisdiction is such that a Court has not to wait for a move to be made by either party before it. It is the primary duty of the Court itself to see whether it has the jurisdiction to try an offence or to adjudicate upon a matter. For a Court must acquire jurisdiction before a decision is given, because where a Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision will amount to nothing. Therefore no exception can be taken when a Court, suo motu, decides to enquire into the question if it has the jurisdiction to try an offence.
4. The next contention raised by Mr. Chishti is that subsection (4) of section 4 of the Ordinance restricts the powers of a Court to refer a case to the Deputy Commissioner only if during an inquiry or trial, it finds that the offence is a scheduled one.
5. This provision reads as follows :--- "(4) Where it appears to any Magistrate, Court or other authority enquiring into or trying any offence that such offence is a Scheduled offence, such Magistrate, Court or authority shall stay further proceed--ings in respect of such offence and refer it to the Deputy Commissioner for proceeding in accordance with the provisions of this Ordinance."
6. Mr. Chishti contends that as the 'trial' had concluded in this case therefore the learned Additional Sessions Judge did not have the jurisdic--petition to go into the question if the offence was a scheduled one or otherwise. In other words Mr. Chishti's contention is that trial having been concluded the Court of Session, presided over by the Additional Sessions Judge, was divested of any authority of reference to the Deputy Commissioner. In support of such contention Mr. Chishti relies upon the definition of the word 'trial' as given in Wharton's Law Lexicon (page 1011). Mr. Chishti parti--cularly relies upon the following meanings given of this word; "Trial' the hearing of a cause, civil or criminal, before a judge who has jurisdiction over !t, according to the Laws of the land. Trial is to find out by the examination the truth of the point in issue or question between the parties, whereupon judgment may be given (Co. Litt. 124-b).
7. Mr. Chishti particularly referred to the last part of this definition and claims that a judgment is not a part of the trial. This is putting an unreasonably restricted meanings to the word. Generally trial is said to have concluded only after the judgment, whether of conviction or acquittal, is pronounced.
8. In Inayat v. Rex (AIR 1950 All. 369) trial is said to terminate by the pronouncement of a judgment. It is further said that so long as a judgment is not pronouncethe trial is not terminated even though the judgment itself may not be a part of trial. The question before a Division Bench of Allahabad High Court was if after the parties had concluded their evidence and the case was argued, the Court could, in exercise of its powers under section 540, Cr. P. C. Summon any person as Court witness. This provision of the Code of Criminal Procedure also refers to the summoning of a witness, "at any inquiry, trial or other proceeding." It was in this context that the word trial was examined.
9. Same view was expressed in AIR 1951 All. 541. In view of this principle of Law it can not be contended that the learned Addi--tional Sessions Judge or for that matter any other Court acting under sub--section (4) of section 4 of the Ordinance, could not, at such stage, refer the matter in terms of section 4(4) of the Ordinance.
10. Even if such narrow meanings, as claimed by Mr. Chishti is assigned without conceding, to the word trial then such trial has to be before a Judge who has jurisdiction over the matter.
11. A trial without jurisdiction is not a trial in the eyes of law. This is also the condition where principle of double jeopardy in section 403 of the Code of Criminal Procedure, is invoked, because this section also speaks of trial of a person by "a Court of competent jurisdiction". So no protection of such narrow definition of this word 'trial' can be taken where the 'trial' is no trial in the eyes of law.
12. As to the question of bail I may say that it is a separate question to be agitated in accordance with law governing the present case.