Law: West Pakistan Criminal Law (Amendment) Act (VII of 1963)

Section: 3,10(d)

Law: West Pakistan Criminal Law (Amendment) Ordinance (XV of 1966)

Section: 9,10

Law: Pakistan Penal Code, 1860

Section: 302,34

 West Pakistan Criminal Law (Amendment) Act (VII of 1963), Ss. 3, 10 (d) & First Schedule read with West Pakistan Criminal Law (Amendment) Ordinance (XV of 1966), Ss. 9 & 10-Reference' made and conviction recorded against accused under S. 302 read , with S. 34, Pakistan Penal Code prior to inclusion of S. 34 in First Schedule to Act-Reference void ab initio and conviction and sentence recorded, held, illegal and without lawful authority Provision of S. 10 of amending Ordinance (XV of 1966) not applicable to cases where reference originally made regarding offence not included in Schedule at time of reference-Penal Code (XLV of 1860), S. 302 read with S. 34.   Where section 34 of .the Penal Code, 1860, which is a substantive provision, was not one of the sections included in the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963 at the time when reference was made to and conviction was recorded by the Tribunal acting under that Act, the reference must be held to be one without jurisdiction and void ab initio invalidating all subsequent proceedings thereon despite the fact that before the confirmation of sentence, amending Ordinance (XV of 1966) by which section 34 of the Penal Code, 1860 has been added to the First Schedule of the Act, might have come into force.   Section 10 of the West Pakistan Criminal Law (Amendment) Ordinance, 1966 is intended to validate only one class of cases, namely those in which the Commissioner had bifurcated the scheduled and the non-scheduled offences, so as to refer to the Tribunal only the question relating to scheduled offences. The validating clause contains no indication whatsoever, that it -was intended to apply even to those cases where the reference had originally been made regarding an offence which was not included in the Schedule at the time of making the reference but was subsequently so included.   Nazir Ahmad etc. v. The Home Secretary, Government of West Pakistan etc., W. P. No. 132 of 1965 and Rahmatullah Khan and others v. The State and others P L D 1965 Pesh. 162 ref.   Dates of hearing: 30th and 31st May 1966.   JUDGMENT   ANWARUL HAQ, J.-The two…