1. ABDUL QADEER CHAUDHARY, J.-After hearing the counsel for the peti--tioner and Advocate-General, Baluchistan for respondents Nos. 1 to 3, by our short order dated 28-7-1979, we allowed the petitioner and held that the very reference made by the Chief Secretary, Baluchistan is bad in law and so is the findings and orders of disqualification by the Disqualification Tribunal as well as proceedings before the Special Summary Military Court, Baluchistan, Quetta. Here are the reasons for the same.
2. The petitioner was holding the post of Governor of Baluchistan and his case was referred to the Disqualification Tribunal by the respondent No. 1 wide the letter dated nil. The reference was made under Martial Law Order No. 31 as reconstituted by Martial Law Order No. 57. There were three allegations against the petitioner that he filed false and incorrect declaration of his assets; that he indulged in selection of Tehsildars in violation of the rules; and that he was guilty of maladministration and misapplication of Government funds. After the reference was notified in the official Gazette, the respondent No. 2 started proceedings against the petitioner. According to the respondent No. 2, the petitioner refused to acknowledge the notice, therefore, the respondent No. 2 examined witnesses and passed the order, whereby the petitioner was held guilty of misconduct and he was disqualified for a period of 7 years from being elected or chosen as a Member of Parliament or of a Provincial Assembly.
2. The case of the petitioner is that he had not received any information from the respondent No. 2 regarding the proceedings and in fact an envelop was brought by a Police Officer for service on the petitioner, and the petitioner had informed him that it should be sent to him through registered post. The petitioner did not know the contents of that envelop.
3. After the petitioner was disqualified; the respondent No. 3 proceeded against the petitioner for trial on the allegations that be committed misconduct by misusing his position as Governor of Baluchistan.
4. The petitioner therefore approached this Court in its constitutional jurisdiction, to challenge the acts, proceedings and orders passed by the three respondents.
5. The learned counsel for the petitioner did not press his petition against the respondent No. 4 and no relief was claimed against him we heard the petitioner against the respondents Nos. 1 to 3 only.
6. The learned counsel for the petitioner has made the following submissions;
(i) The Chief Secretary was not competent under Martial Law Order 31 as reconstituted by Martial Law Order 47 to make a reference to Disqualification Tribunal with regard to the petitioner.
(ii) That no notice has been served by the respondent No. 2 before proceeding against him and therefore the action of the respondent No. 2 violated the principle of natural justice.
(iii) That the petitioner had been a victim of discrimination as he has been tried under Martial Law Order 47 in spite of the fact that there are other laws parallel to Martial Law Order 47 and more beneficial to the subject under which the petitioner could be tried.
3. As regards the first contention, raised by the learned counsel, about the competency of the Chief Secretary, to refer the case of the petitioner to Disqualification Tribunal, we have to examine vie law itself. Paragraph 2(a) of Martial Law Order 47 (hereinafter referred to as Order) defines Chief Secretary as under :- "Chief Secretary, in relation to a holder of a representative office, means the Chief Secretary of the Government of the Province, in which the place from which such holder was elected as a Member of Parliament or of a Provincial Assembly is situated or, if such place is situated in the Federally Administered Tribal Areas, the Chief Secretary to the Government of the North-West Frontier Province or, if such place is situated in the Islamabad Capital Territory, the Chief Secretary to the Government of Punjab or, in the case of the Attorney-General or an Advocate-General, the Chief Secretary to the Government of the Province in which such holder has or had his headquarters; Paragraph 2 (c) defines holders of representative office and this includes the office of Governor.
4. The learned counsel for the petitioner has not disputed that the petitioner was a holder of representative office. According to paragraph 4(11 of the Order a Disqualification Tribunal shall not proceed to enquire into any charge of misconduct against a holder of representative office except on a reference in writing made to it by the Chief Secretary. The condition precedent for proceeding against a holder of representative office is that a reference in writing has to be made by the Chief Secretary. Paragraph 2(a) of the Order defines Chief Secretary who is competent to make reference. This paragraph further gives the list of such persons whose cases could be referred to the Tribunal. The bare reading of this paragraph makes it clear that either a holder of representative office-who had the character of an elected person could be proceeded against, or the reference could be made against the Attorney-General or an Advocate-General. There is no provision in this clause that the case of a Governor could also be referred to a Disqualification Tribunal. The learned counsel for the respondent has submitted that the definition of Chief Secretary must be read along with the definition of holder of representative office; wherein the name of the Governor or President has been mentioned. Even if we read the two definitions together it does not bring to the conclusion that a Governor can be roped in simply because he was holding a representative office. Paragraph 2(a) of the Order is in fact not the definition of Chief Secretary; but it has named the Chief Secretary who is competent to make a reference about a particular individual holding a representative office. The learned Advocate-General submitted that the intention of the Legislature has to be borne in the mind. According to him the scheme of the order is to make enquiry against all those persons who are holding, or had held representative office. Therefore even if the name of the Governor is missing in paragraph 2(a) of the Order, that is immaterial, because the purpose for which the law was promulgated has to be achieved. In fact the learned Advocate-General has taken too broad proposition of law. If the words and phrases of an enactment are clear and unambiguous, then ordinary meaning must B be given to those words and phrases; and the Court should not incorporate extraneous terms which have been not provided in the legislation itself. The hidden intention of a law-giver stored in his mind could not be blindly applied to each and every case. The persons mentioned in paragraph 2(a) of the order is quite clear and by no stretch of legal acument this definition can be extended to those representative whose names, the law giver has either intentionally omitted or for the reasons best known to him.
5. According to the learned Advocate-General, if the definition of Chief Secretary is to be accepted in restricted sense, then the cases of few holders of representative office could be referred to the Disqualification Tribunal. This argument on the face of it has no weight, because if a law does not provide a certain thing to be done in a certain way; the scope of such law cannot be extended by any anology of interpretation to such circumstances which are not provided in the law. Moreover Mr. Yahya Bakhtiar has given the names of 17 persons whose case under existing laws could be referred to the Tribunal.
6. The learned Advocate-General submitted that the intention of a law is the primary object and if there is any lacuna in the Act it can be filled in by the Court. The intention of law cannot be applied on the hypothesis proposition, but it must be clear and not unambiguous. Moreover if the Legislature had intentionally omitted to refer the case of a particular holder of representative office, the Court cannot function as a legislative body to do the work of the Legislature or to fill in the gaps which are apparent in the law itself. The learned Advocate-General has referred to In a matter of Reference by President (PLD 1957 SC (Pak.) 219), in support of his contention that the intention of the author must be kept in view on interpreting the written instruments; but it has been stated in this authority that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. , The second authority quoted by him is Province of West Pakistan v. Mahboob Ali and others (PLD 1976 SC 483), wherein, it has been held that basic principles governing the interpretation or construction of statutes are not inflexible. In fact this authority also does not support the contention made by the learned counsel. It is profitable to quote the relevant part of the judgment:----- "The basic principles governing the interpretation or construction of statutes are well settled. But these have seldom been regarded as inflexible except perhaps where a statute is plain, certain and free from any ambiguity so that a bare reading of it would suffice. In essence, in such case, interpretation is unnecessary. Barring such plain cases statutes would be construed liberally or strictly according to their subject-matter, the object or purpose intended to be achieved, or whether it is in any way in derogation of any common law or inherent right. For instance, it is well settled that penal or fiscal statutes or statutes impinging upon common law, rights, are to be strictly construed and any ambiguity or imprecision is to be resolved in favour of the subject. On the other hand it is equally well settled that remedial statutes are to be liberally construed so as to advance the remedy and suppress the mischief. So also empowering statutes are generally liberally construed so as to effect and not to stultify the power conferred. Modern cases provide many instances of the Judges, reluctance to stand upon the letter of the law strictly in the interpretation of a statute falling under the second category. It is true that even in such cases, what is an obvious omission cannot be supplied by invoking the rule of liberal interpretation. In such cases rule of cassus omissus is generally applied. But when faced with as choice between a wide meaning, which carries out what appears to be object of the Legislature more fully and a narrow meaning which carries it out less fully of not at all, the choice of the Courts is often the former.
7. Beneficial construction is a tendency, rather than a rule."
8. It has been specifically stated that where a statute is plain, certain and free from any ambiguity in such cases interpretation is unnecessary. It is further held that the penal or fiscal statutes or statutes impinging upon common law rights are to be strictly construed and any ambiguity or imprecision is to be resolved in favour of the subject, and further that what is an obvious omission cannot be supplied by invoking the rule of liberal interpretation. Similarly in Zaibtun Textile Mills Ltd. v. Central Board of Revenue (PLD 1971 Kar. 333), it has been held :- "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest construction of the apparent purpose of the enactment, or to some inconvenience of absurdity, hardship or injustice, presumably not intended a construc--tion may put upon it which modifies the meaning of the words, and even the structure of the, sentence, because, where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Even though, as a general or, a Court of law is not authorised to supply a cassus omissus or to alter the language of a statute for the purpose of supplying a meaning, yet in certain circumstances it is permissible for the Courts to give effect to the true and patent intention of the law-maker to supply the omission in order to avoid doing a manifest injustice."
9. The principle enunciated in this authority is to be read as a whole and not in peace-meal. The language of the present statute is clear, its ordinary meaning and construction does not lead to hardship, absurdity or injustice. In Commissioner, Sargodha and another v. Khizer Hayat and others (PLD 1966 SC 793), it is held that where the law is clear, the Judges of the superior Courts are under oath to vindicate and enforce it. So also in Patricial Anne Patel v. General Cowling Patel (PLD 1972 Kar. 444), it is laid down that omissions in a statute cannot, as a general rule, be supplied by construction. The same principle has been made in Bhadramma and another v. Kotam Raj (A R 1955 Hyd. 140). The learned Advocate. General also referred to Province of West Pakfstan v.
10. Sharafatullah (PLD 1970 SC 514), wherein it has been held :- "It is an established rule that the Courts will adopt that construction which will remove the lacuna and advance the purpose and object of the statute."
11. The interpretation was used not only in favour of the subject but the facts of the case are quite distinguishable.
12. The overall conclusion from the above discussion is that when the language is not only plain but admits of only one meaning there does not arise the question of any interpretation. Such language itself shows the intention of the law-giver. In such circumstances the consequences are immaterial and the plain words of the law must be enforced ; for it is not the functions of the Judges to apply their own opinion or interpretation so as to materially change the ordinary plain meaning of the words mentioned in the statutes. So also if there is no lacuna or omission then it is not the Court's province to supply an omission in an Act, and if any such correction would extend the penal scope of an Act, still less will the Court be inclined to correct it. The object of the Act has to be considered.
13. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law-giver. Where the language of an Act is clear and explicit, we must give effect to it whatever may be the consequences; for in that case the words of the statute speak the intention of the Legislature.
14. Apart from the fact that literal construction must be applied to a statute but every criminal or punitive statute is subject to which has been called a strict construction. A statute which encroaches on the rights of subject must be strictly construed. Under the Martial Law Regulation 47 the right of a person to contest the election has been curbed. Thus not only; the petitioner's right to contest the election but also the right of those voters who would choose to cast their votes in favour of the petitioner have P been infringed, if we do not interpret the law in the strict sense. This is not a procedural statute as contended by the learned Advocate-General, but it is statute affecting the right of franchise, therefore, the provision of this law cannot be applied to those holders of representative office who have not been mentioned in the order itself. We therefore hold that the Chie Secretary was not authorised to refer the case of the petitioner to Disqualifi--cation Tribunal. In Maxwell on Interpretation of Statutes, 11th Edition, page 254 it is observed:----- "But the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. Where an enactment may entail penal consequences, no violence must be done to its language to bring people within it, but rather care must be taken that no one is brought within it who is not within its express language."
15. It is fundamental principle of Interpretation that a Tribunal of special jurisdic--tion must exercise jurisdiction on the conditions specified in the law which constituted such Tribunal. In Nusserwangee Pastonjee v. Mynoodeen Khan (1), it is stated that "the present question turns upon this principle that wherever jurisdiction is given to a Court by an Act of Parliament, or by a Regulation in India (which has the same effect as an Act of Parliament), and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for if they be not complied with the jurisdiction does not arise." In Abdul Sattar and another v. Mst. Hamida Bibi (PLD 1950 Lab. 370), it is held that :---- "Every Tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such Tribunal is dependent upon the existence of certain facts or circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that Tribunal can function, it goes without saying, that before that Tribunal assumes jurisdiction is a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen."
16. For the above-stated reasons the reference was bad and the respondent No. 2 could not proceed against the petitioner on a bad reference.
17. There is also force in the contention that the principle of natural justice has been violated as sufficient opportunity was not afforded to the petitioner by the Disqualification Tribunal to appear and contest the reference. Paragraph 4(4) of the Order provides that on receiving a reference under sub-paragraph (1) the Tribunal shall scrutinize the necessary records forwarded to it by the Chef Secretary relating to the charge mentioned in the reference and according to sub-para. (a) if it is of the opinion that no charge can be established, return the reference to the Chief Secretary and in other cases issue notice to the respondent requiring him to show cause why he should not be proceeded against under this Order. Therefore the condition precedent for proceeding against the petitioner was to issue show-cause notice. It is the case of the respondent that notice was sent to the petitioner through Tajjamal Hussain Shah but the petitioner refused to receive the notice on 7th December 1978, and stated that the notice be sent to him by post. The case of the petitioner is that an envelop was brought by a police officer for service on the petitioner and the petition informed him that it should be sent to him through registered post. Without entering into this controversy, we have to see whether the requirement of law has been complied with by the Tribunal. We have also summoned the record of the case which has been produced before us by the learned Advocate-General. The order-sheet dated 13-8-1978 shows that it was directed that notice be issued to the respondent requiring him to show cause within one week why he should not be proceeded against under Martial Law Order 31. The case was adjourned to 9-9-1978. The Tribunal examined the Inspector Police Tajjamal Hussain Shah on 9-9-1978 H as P. W. 1 who has deposed about refusal of the petitioner. The note which was allegedly sent has not been exhibited or placed on record, but there is a report of the Process-server Tajamal Hussain Shah dated 9-9- 1978, repeating the same facts as stated by him in his deposition. Now let u see what the Tribunal has done on 9-9-1978. It was the date which was fixed for the presence of the petitioner to show cause within a week. Even if the service had been effected on the petitioner on 7-9-1978 a period of 7 days granted by the Tribunal had not expired when the Tribuna started taking evidence against the petitioner. Additionally it has not been held by the Tribunal either that the respondent has been served or that he/ had refused to take the notice. Para. 4 of the order dated 9-9-1978 reads as under;------ "Mr. Tajjamal Shah's statement has been recorded by the Tribunal. The present address of the respondent is not known because he is reported to have left Quetta to an unknown place. In view of this it is decided to proceed against the respondent in his absence."
18. The Tribunal decided to proceed against the petitioner in his absence on the sole ground that he had left Quetta to an unknown place and the present address of the petitioner is not known. It means the Tribunal passed the order within the meaning of sub-paragraph (2) of paragraph 6 of the Order which provides that Disqualification Tribunal may proceed against the respondent on whom a notice under clause (b) of sub-paragraph (4) o paragraph 4 cannot be served because his address is not ascertainable or who is absconding, in his absence. Therefore proceedings against a person can only be conducted in his absence if his address is not known or if he is absconding. There is no finding that the petitioner had absconded or left to an unknown place and no evidence has been produced to substantial such a charge. As regards the address of the petitioner; it was known to the Disqualification Tribunal. A notice was sent according to the Tribunal through P. W. 1 on his address. P. W. 1 has himself stated that the petitioner had met him when he took the notice. As the Disqualification Tribunal had proceeded against him in accordance with paragraph 6(2) of the Order it was incumbent on the Tribunal to record a positive finding within the terms and sprit of the Order itself. There is not an iota of evidence on this score and therefore we are inclined to hold that the respondent No. 2 failed to give sufficient opportunity to the petitioner before proceeding against him, and the ex parte proceedings taken against the petitioner cannot be sustained, as the same violated not only the principle of natural justice but also passed in derogation to sub-paragraph (2) of paragraph 6 of the Order. The learned Advocate-General has contended that the personal hearing of the petitioner was not necessary in view of the fact that the Tribunal had held the service good. We have already expressed our view about the service and we have not persuaded ourselves to agree with the Advocate-General's contention that personal hearing was not necessary. The learned Advocate-General relied upon Mehrab Khan v. Taj Muhammad (PLD 1961 Quetta 1). It has held there:- "A personal hearing before deciding a matter is not a necessary requirement of the principle of natural justice. All that the necessary is a full and fair opportunity of making a representation or showing cause. What is full and fair opportunity depends upon the facts of each case. In some cases it may be enough if a party has placed his point of view and has shown cause for the consideration of the authority, and no prejudice is shown to have been caused."
19. This authority does not support the contention raised by the learned counsel; because no fair opportunity was afforded to the petitioner. The next case cited by the counsel is Messrs Gladys M.
20. Jacob v. Chief Settlement Commissioner, Lahore and others (PLD 1966Lah.464), wherein it has been held that the fact that the original order was passed without notice did not necessarily mean that the order was to be set aside. In the same authority it has been held that the question to be decided would be whether any prejudice has been caused by the fact that the party was not heard. In fact this authority negatives the contention raised by the learned Advocate-General. The wide proposition convassed by the learned Advocate-General, that even if no notice was given to the petitioner, that was not necessary and the order of Disqualification Tribunal has the sanctity of legal decision, has not impressed us. We do not make any comment on this broad proposition stressed by the Advocate-General but only say "Do not spit in your own well, one day you will have to return to it for a drink. It is now well-- established rule of prudence that no person shall be condemned unheard. Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and others (PLD 1962SC531). Even where there is no provision of notice the principle of natural justice that no person shall be condemned unheard, cannot be ignored. Charssada Sugar Mills Ltd. v. Government of Pakistan and others (PLD 1971 Pesh- 210).
21. In Judicial Control of Administrative Action by A. T. Markose, page 219 it is stated that notice is the first limb of a proper bearing. Notice to be real, must be definite, and must be ample to give time to the person notified of the case against him. The learned Advocate-General has referred to paragraph 5(10)(a) of the Order :- "A Disqualification Tribunal shall expeditiously dispose of the cases referred to it and shall proceed with all deliberate speed and shall not adjourn the proceedings unless it considers necessary in the interests of justice to do so."
22. The learned Advocate-General has stressed on the word `deliberate which has been used in the order and therefore according to him the Tribunal could not adjourn the case. This argument is without any substance. The Tribunal could not proceed with deliberate speed by ignoring the provisions of notice incorporated in the order. The entire scheme has to be kept in view.
23. The necessary conclusion from the above facts and circumstances are that the petitioner was condemned unheard and the Disqualification Tribunal has violated the provision of sub paragraph
(2) of paragraph 6.
24. There is another aspect of the matter. The bare reading of paragraph 4(4) of the Order brings to the conclusion that after the scrutiny of the reference if the Tribunal wants to proceed against the respondent then a notice must be given to him, requiring him to show cause why he should not be proceeded against under this order. This is the first part of the act on the part of the Tribunal. The' necessary conclusion is that if respondent appears and able to satisfy the Tribunal that the reference against him is illegal or based on no material; the Tribunal would lay off their hands; otherwise there is no necessity of issuing a show-cause notice to a respondent and the Tribunal after receiving the reference from the Chief Secretary straightaway issue notice for the appearance of a respondent and for proceeding against him. This view finds support from the paragraph 6(1) of the Order :- "In a case under clause (b) of sub-paragraph (4) of paragraph 4 the Disqualification Tribunal shall, after such further scrutiny of records and such enquiry as it thinks fit and after giving the respondent an opportunity of being heard, record its finding whether or not the respondent is guilty of misconduct and cause its finding to be published in the official Gazette soon after."
25. Therefore there are two stages of giving notice to a person against whom a reference has been received. Firstly when he was called upon to show cause as laid down under paragraph 4(4) (b) and secondly under paragraph 6(1) of the Order. The second stage would arise only if a person appears and furnishes his reply; because the scrutiny has already been made by the Tribunal under paragraph 4, sub-paragraph (4) before the issuance of notice, therefore a further scrutiny was not necessary. The scrutiny for the second time is required if the petitioner appears before the Tribunal and submits his reply. In that case the reply, if given, has to be considered. In this view of the matter even if we accept the position that the petitioner had refused to take the notice and he had been properly served and thus the provisions of paragraph 4(4) (b) of the Order have been complied with, it was the bounden duty of the Tribunal to afford an opportunity to the petitioner as contemplated in paragraph 6(1) of the Order, before recording the evidence and making enquiry against the respondent. The first notice was only to show cause why he should not be proceeded against under the Order; but the second notice was necessary for giving the respondent an opportunity of being heard. As the second notice was not issued and proper opportunity was not afforded, on this ground also, the proceedings and the order made by the Disqualification Tribunal are bad.
26. The learned counsel for the petitioner next contended that the entire reference is bad, because it contained certain charges over which the respon--dent No. 2 has no jurisdiction. The three charges have been framed by the Chief Secretary and they read as under :------
(i) The respondent filed false/incorrect declaration of his assets by concealing the holdings in the name of his wife and two sons. He also failed to declare 3 vehicles owned by him. He is thus guilty of violation of Martial Law Regulation 21 for filing wrong declaration of assets.
(ii) The respondent while holding the portfolio of Governor Baluchistan interviewed candidates for the post of Tehsildars. He personally indulged and selected candidates for such posts in clear violation of the Rules and thus he abused his powers and position as Governor of Baluchistan.
(iii) The respondent by using his official position as Governor of Baluchistan directed Tehsildar Dera Bugti to send a report to him regarding so-called famine conditions prevailing in the Bugti area and also he directed the Board of Revenue to place heavy amount of Rs. 3,82,000 at the disposal of Deputy Commissioner, Sibi for advancing the same as loan to his Tribe's men and thus he is guilty of maladministration and misapplication of Government funds.
27. The learned Advocate-General has frankly conceded that the first statement of allegation cannot be made against the petitioner; because under Martial Law Regulation 21 only a person who is a Member of National Assembly or a Senator or a Member of the Provincial Assembly a required to furnish statement of property and assets etc. But as the petitioner was holding the post of Governor, he was not supposed to file an declaration. The declaration filed by the petitioner could not form basis for reference to the Disqualification Tribunal. The learned counsel for the petitioner has submitted that as a part of the reference is bad therefore the entire reference is bad. He has referred to Muhammad Ajmal Khan v. District Magistrate, Lyallpur and others (PLD 1977 Lah. 20), wherein it has been held that if one of the grounds is unlawful the mere fact that some other ground is lawful cannot validate otherwise invalid detention order. The learned Advocate-General on the other hand has submitted that even if one of the grounds is unlawful, the entire order cannot be set aside if the petitioner had been tried on lawful ground also. No doubt if a reference has been made to a Tribunal for adjudication; then mere fact that one of the allegation M made in the reference is bad, the entire reference cannot be struck down; for the reason that the reference is only in the nature of a complaint or charge-sheet which is to be inquired into by the Tribunal or a forum of competent jurisdiction. In such cases further point for con--sideration is what is the finding of the Tribunal on such enquiry? If a person is tried on various charges and the Tribunal holds him guilty on the charge which are within the domain of the Tribunal and also find him guilty on these charges over, which he has no jurisdiction; then the entire order of the Tribunal could not be set aside on the ground; that it has given its verdict even on those allegations which were outside the jurisdiction of the Tribunal. In such circumstances it has to be seen whether the finding of the Tribunal on the allegation on which the Tribunal has jurisdiction can be separated from the finding on the allegation which is beyond its jurisdiction. If both sets of allegations and the findings thereon can be spelt out distinctly; then the finding of a Tribunal on the matters which are within four walls on its jurisdiction is to be held to have been passed with jurisdiction and no exception can be made to such order, simply because the Tribunal has also given its findings on the allegations which could not have been referred to such a Tribunal. In this respect I may quote Brig.
28. F. B. Ali and another v. The State (PLD 1975 SC 506):---- "There can be no doubt that if a Tribunal or a Court acts wholly without jurisdiction, its action would be a nullity but it does not necessarily follow from this that even what it does with jurisdiction will also be rendered void, because, the Tribunal or Court has at the same time done something which was without jurisdiction. If it is possible to separate what has been done with jurisdiction from that which has been done without jurisdiction without any prejudice to any one than, what is done with jurisdiction cannot be invalidated or anyone, the declared null and void, at least, in the writ jurisdiction."
29. In the light of above observation we have to see whether the order passed by the Tribunal has been passed with jurisdiction or without jurisdiction. The reference has been made to the Tribunal by the Chief Secretary on 3 allegations. The first allegation regarding the declaration of assets could not be referred to the Tribunal and an enquiry could not be made. Now the Tribunal recorded the evidence of 7 witnesses and then passed the judgment.The Tribunal held the petitioner guilty on the following charges :-----
(i) Allocation of Rs. 2,24,000 and Rs. 3,82,000 to the Deputy Commis--sioner, Sibi as Taccavi loans without completing the formalities.
(ii) Abdurrehman Shah, Tehsildar submitted a false report to the respon--dent for issue of Taccavi loans. The wheat seed was not distributed amongst the Bugti Farmers but misappropriated by Salim Akbar Bugti.
(iii) The respondent initiated a proposal for the purchase of Buldozers for Agriculture Department.
30. The respondent violated the provisions of Constitution as he did not have the powers.
(iv) The respondent filed wrong declaration of assets.
(v) The respondent made selection of Tehsildars in disregard of rules.
(vi) The respondent has failed to clear his telephone bills.
(vii) The respondent ordered 200 rifles and 20000 rounds from Commis--sioner stock sent to the Deputy Commissioner. The respondent deputed his son Salim Akbar Bugti for a seat and distribution of the arms.
31. Conclusion thus arrived at by the Tribunal is as under :---- "In view of the above-unrebutted evidence, the Tribunal holds the respondent guilty of misconduct and orders that the respondent should stand disqualified for a period of seven years from being elected or chosen as a Member of Parliament or of a Provincial Assembly."
32. It is clear that though the Tribunal had jurisdiction to give its findings o 2 allegations only. It has given its verdit of guilty against the petitioner on 7 grounds. Three allegations were referred to the Tribunal by the Chie Secretary and the other allegations were not referred by the Chief Secretary. It is not a cases of separating the 2 sets of allegations. The Tribunal not only held him guilty on an allegation which was outside the jurisdiction of the Tribunal; but also held him guilty on the allegations which were not referred to him by the competent authority, i.e. Chief- Secretary. It is clear from the law that unless a reference has been made by the Chief Secretary, the Tribunal has no jurisdiction to make any enquiry. The Tribunal has not given its finding separately on each allegation but simply stated that prosecution examined 7 witnesses and some documentary evidence. The evidence produced in Court has established beyond doubt the 7 charges of misconduct." If the Tribunal had given its finding on each allegation separately, on the basis of evidence produced before it, it could be possible to hold that the Tribunal's order is legal in relation to the allegations which were within its jurisdiction. In the absence of any specific and clear finding on each allegation, it is difficult to accept the contention that the order made by the Tribunal is lawful and good on the 2 allegations which have been referred to it. The Tribunal has held the petitioner guilty on all the charges without referring to the evidence adduced by the prosecution in support of each charge. Chaff cannot be separated from the wheat we are therefore of the opinion that the judgment passed by the Tribunal, in view of the facts explained above is without lawful authority.
33. After the petitioner was held guilty of misconduct by the respondent No. 2, the respondent No. 3 proceeded against him under section 5(2) of Act 11 of 1947 and under section 409, P. P. C. And the allegations are as under :- .
1. Ist charge under section 5(2)Criminal misconduct by public of Act II of 1947.Servant In that he, at Quetta, in the year 1973 committed misconduct by misusing his position as Governor, Baluchistan by unlawfully sanctioning 200 Government rifles along with 40,000 rounds and Taccavi loans of Rs. 6,000 for his Bugti Tribe of Dera Bugti and thereafter got misappropriated the same through his son accused Salim Akbar Bugti.
34. II. 2nd charge.Criminal breach of trust public under section 409, P. P. C. Servant.
35. In that he, at Quetta, in the year 1973 committed criminal breach of trust as Governor, Baluchistan in respect of 200 Government rifles along--with 40000 rounds and Taccavi loans of Rs. 6,06,000 by unlawfully sanctioning for his Bugti Tribe of Dera Bugti and thereafter got misappropriated the same through his son co-accused Salim Bugti.
36. The charge-sheet was framed by D. M. L. A. And the petitioner was to be tried by the Summary Military Court beaded by a Brigadier. The learned counsel for the petitioner has submitted that the Summary Military Court has been specially constituted to try persons disqualified under Martial Law Order 31 read with Martial Law Order 41. When the Dis--qualification order passed against the petitioner is patently illegal, without jurisdiction, the Summary Military Court becomes corum non judice, has jurisdiction to try the petitioner. In order to appreciate the contention raised by the learned counsel it is beneficial to refer to paragraph 10 of Martial Law Order. According to this paragraph, the provisions of this Order shall be in addition to and not in derogation of any other law for the time being in force and nothing in this order shall prevent or prejudice the trial or punishment of any person under any other such law. According to paragraph 7 of this Order a holder of representative office who has been convicted by a Military Court or any other Court and sentenced to imprisonment for a term not less than 2 years shall stand disqualified for a period of 7 years from being elected or chosen as a Member of a R Parliament or Member of a Provincial Assembly and in respect of such offence no reference to Disqualification Tribunal to be required to be made. The reading of two provisions would bring to the conclusion that if a person has been convicted by any Court then he shall stand dis--qualified and a reference to a Tribunal shall not be required. But accord--ing to paragraph 10 of the Order even if a person has been disqualified he could be tried or punished under any other law. The words "Any person" in paragraph 10 are significant. Martial Law Order applied only to holder of representative office. Paragraph 10 does not say that holder of representative office could be tried by a Court even through proceedings are pending under the Order before a Tribunal. The intention of the law-giver is clear in paragraph 7, but in paragraph 10 there is n s reference of a holder of representative office. As pointed out earlier Statute like the Martial Law Order, is to be strictly construed, and what is not mentioned in the law cannot be applied on the principle of cassus omissus. We are therefore of the opinion that the words `Any person' mentioned in paragraph 10 do not include a holder of representative office. The further trial on the same allegations by a Court would amount to double jeopardy. The Tribunal consisted of a Brigadier and Magistrate First Class made the enquiry against the petitioner. Some of the allegation were again placed before the Summary Military Court for trial of the accused. As the finding of guilty has already been given by the Tribunal there would be hardly any justification for making a fresh enquiry against accused on the same charges. In such a case there is possibility of conflict of judgments. This view is supported from the fact that under paragraph 7 of the Order if a representative is held guilty by a Court then no further enquiry is required, and the conviction for a term not less than 2 years disqualifies the holder of a representative office for being elected.
37. There is another aspect of the case. The petitioner was being tried under section 5(2) of Act II of 1947 and section 409, P. P. C. The charges framed against the petitioner are purely civil offences. For trial of such offences Special Judges have been appointed. There is no allegation that the petitioner has violated any Martial Law offence. It is held in Manzoor Ahmed v. President, Summary Military Court No. 3, Karachi (P L D1979 Kar. 623), that :- "As provided in the Pakistan Criminal Law Amendment Act, 1958 the Special Judges appointed under the said Act, have exclusive jurisdiction to try a public servant in respect of the offences specifies in the Schedule to that Act, including an offence of demanding ant' accepting illegal gratification, as in the instant case. No doubts paragraph 2, Martial Law Order 4, has empowered both Special Military Courts and Summary Military Courts to try and punish any person not only for contravention of Martial Law Regulations or Orders but even for offences under any other law, but we are not persuaded to the view that the said provision empowers the Military Courts to try offences which are exclusively triable by Special Courts, Tribunals and Judge."
38. The respondent No. 3 has no jurisdiction to proceed against the petitioner under section 5(2) of Act II of 1947 and section 409, P. P. C.
39. The learned counsel for the petitioner has contended that there are various laws in field and petitioner could be tried under any of those laws. The petitioner must be tried under the law which is more beneficial to the subject. As we are accepting the petition on other grounds, we do not consider it proper to enter into this controversy.
40. For the reasons discussed above we strike down the acts, proceedings and orders passed by the respondents Nos. 1 and 3 and hold that they are without lawful authority and of no legal effect: There would no order as to costs.
41. MIR KHUDA BAKHSH MARRI J.- agree.