MIR HAZAR KHAN KHOSO, J.-By this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, Raza Muhammad and five others have assailed the orders dated 26th October, 1977 passed by the Member, Board of Revenue, Baluchistan. By these orders the Member, Board of Revenue within his --- revisional powers under section 24 of Ordinance II of 1968, had cancelled the bail granted to the petitioners by the Commissioner Sibi and ordered for their arrest and remand to custody.
2. The facts leading to this constitutional petition are that on 19th of March 1977, the petitioner Issa Khan is said to have caused grievous injuries by means of a knife to respondent Abdul Aziz in Village Khajak of Tehsil Sibi. A report of the incident was therefore made to the Naib. Tehsildar, Sibi.
On receipt of the report, the Naib-Tehsildar investigated into the matter and submitted a final report to the Assistant Commissioner, Sibi on 7th April, 1977. In his report, the Naib-Tehsildar booked the petitioners either as principal accused or instigator for facing trial of the case. After receiving of the report, the Assistant Commissioner with powers of Deputy Commissioner under provisions of the Criminal Law (Special Provisions) Ordinance II of 1968 (hereinafter referred to as Ordinance II) took cognizance of the case against all the petitioners for offences under section 326/ 307 of the Pakistan Penal Code. It is however on the record of the case that during the investigation, the petitioners were arrested and released on bail by the Naib-Tehsildor. On taking of the cognizance of the case the Assistant Commissioner cancelled the bail of the petitioners and ordered for their arrest. Besides, ordered for reference of the case to a Tribunal. It .Vas all done ort 8th April, 1977. On an appeal from the petitioners, the Commissioner, Sibr sitting as an appellate authority under the Ordinance II set aside the order of the Assistant Commissioner, Sibi and 'allowed the petitioners to remain on bail. This order of the Commissioner aggrieved the respondent Abdul Aziz and consequently he filed a revision petition under section 24 of the Ordinance II before the Member Board of Revenue, who on 26th October, 1977 allowed the petition, maintained the order of the Assistant Commissioner, cancelled the bail of the petitioners and ordered for their arrest and remand to custody.
3. The petitioners as such have brought this constitutional petition before this Court and have assailed the adverse orders passed against them for taking them in custody by the Assistant Commissioner as well the Member, Board of Revenue.
4. Mr. Munawar Ahmad Mirza, Advocate appeared for the petitioners. Mr. Sarfraz Khan, Advocate represented the respondent Abdul Aziz. Nemo appeared for the State.
6. It was contended by Mr. Mirza on behalf of the petitioners that the orders of the Member Board of Revenue were indeed based on as he called them on no evidence. They were as such neither lawful nor maintain--able, the learned counsel maintained. To substantiate his contention, the learned counsel referred to the statements of Abdul Aziz and other witnesses recorded by the Tehsildar, Sibi during course of the investigation of the case. All this was done by the learned counsel to show us that active part in the incident was taken by petitioner Issa alone and not by the rest of the petitioners. Besides, the other petitioners were neither present at the spot nor had any connection with the crime. The orders having been passed on no evidence were amenable to the jurisdiction of this Court. To fortify his contention, Mr. Mirza placed reliance on cases reported in The Commis--sioner and another v. Mian Sher Muhammad (1972 SCMR 395), Chief Land Commissioner, Punjab, Lahore v. Makhdoom Syed Nazar Hussain Shah and 13 others (1975 SCMR 352), Muhammad Anwar v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore and 3 others (PLD 1975 Lah. 1463), Messrs Foundation Engineering Ltd. v. The 4th Junior Labour Court, Karachi and 5 others (PLD 1976 Kar. 98), Karachi Stevedoring Co. Ltd. v. Vth Sind Labour Court and others (PLD 1976 Kar. 1091) and Miss Nasreen Fatima Awan v. Principal, Bolan Medical College, Quetta (PLD 1978 Quetta 17).
7. In 1972 SCMR 395, it was bled :- "High Court not ordinarily entitled to investigate disputed questions of fact in writ jurisdiction.
Finding of fact can, however, be interfered with if based on no evidence, or misreading of evidence, or in ignorance of material evidence, or on consideration of inadmissible evidence."
In 1975 SCMR 352, it has been held :- "High Court, competent to interfere with orders of Tribunals if such orders based on misreading of evidence, or suffer from any error apparent on face of record. High Court in detail bringing out misreading of evidence, non-consideration of material evidence; erroneous assumption of facts, and patent error of law committed. High Court, held, did not misconceive scope of its jurisdiction in circumstances."
9. In PLD 1975 Lah. 1463, it has been held "Administrative authority, order of.-Liable to be set aside in writ jurisdic--tion if based on no evidence, or misreading of evidence, or in ignorance of material evidence, or on consideration of inadmissible evidence. Order suffering from errors of fact and law on face of record, held, without lawful authority."
10. In PLD 1976 Kar. 98, it has been held :-- "In this case both the lower Courts have not gone through the record correctly and by misinterpreting law and misreading of evidence they have given a finding in favour of the respondents Nos. 3 to 7 which is patently erroneous and is therefore liable to be reversed."
11. In PLD 1976 Kar. 1091, it has been held :-. `Finding based on no evidence. Held, without lawful authority. High Court can upset such finding in writ jurisdiction."
92. In PLD 1978 Quetta 17; it has been held :- "High Court would not' normally undertake appraisal of evidence and displace findings of fact yet would interfere if finding based on in--sufficient evidence, misreading of evidence, non- consideration of material evidence, erroneous assumption of facts, patent errors of -law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power, and unreasonable views on evidence."
13. On the other hand, Haji Sarfraz Khan, the counsel for the respondent Abdul Aziz vehemently counter attacked contention of Mr. Mirza. The learned counsel stressed that Assistant Commissioner had taken cognizance of the case, as such the jurisdiction of the civil Courts is barred under the provision of section 28 of the Ordinance II. The learned counsel further submitted that actually the main contention of Mr. Mirza was based on disputed question of facts and such disputed question of facts could not be resolved in constitutional jurisdiction by this Court. The learned counsel in support of his arguments has relied on the authorities, Sher Bahadur Khan v.
Capital Development Authority, Islamabad and 2 others (PLD 1968 Lah. 938) and Tariq mohsin Siddiqui v. Province of Sind through the Secretary to the Government of Sind, Karachi and 4 others (PLD 1976 Kar,728).
14. In PLD 1968 Lah. 938, it has been held :- "High Court in writ jurisdiction cannot embark upon inquiry into realm of facts:"
15. In PLD 1976 Kar. 728, it has been held :-- "Controversial question of fact cannot be adjudicated in the Constitutional Petition."
16. Admittedly the incident has taken place in an area where the:---- Criminal Law (Special Provisions) Ordinance II of 1968 was and is in vogue at the present time.
Undisputedly this Ordinance lays down special way or procedure for trial of scheduled offence.
Section 4 of the Ordinance II deals with taking of cognizance by Deputy Commissioners exclusively.
It reads :- "(1) The Deputy Commissioner shall have exclusive jurisdiction to take cognizance of .a scheduled offence committed within the district to which he is so appointed for the time being ; and such cognizance may be taken by him-
(a) upon receiving a complaint of facts which constitute such offence ;
(b) upon a report in writing of such facts made by a Police Officer ; or
(c) upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed;
17. On taking of such cognizances, the Deputy Commissioners have to refer the question of the guilt or innocence of the accused person involved in. The crime to a Tribunal constituted under section
6. Section 6 reads :- "(1) A Tribunal constituted for the purpose of section 5 shall consist of a Government official, not below the rants of Naib-Tehsildar, who shall be its President, and four other members, all to be appointed by the Deputy Commissioner.
18.Section 16 relates to bails. It reads as under :---- "(1) A scheduled offence shall be bailable or non-bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898 (V of 1898), and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code.
(2) The President of a Tribunal may, in regard to a case referred to the ' Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section."
19. Section 23 deals with appeals. It reads :- "(1) Any party aggrieved by any decision given, sentence passed or order made, by the Deputy Commissioner under this Ordinance may, within thirty days of such decision, sentence or order, prefer an appeal to the Commissioner.
(2) -----------------
(3) -----------------
(4) The decision of the Commissioner on an appeal under this section shall be final."
20. Section 24 deals with revision. It reads :- "(1) Government may at any stage, call for and examine the record of any proceedings pending before, or disposed of by a Commissioner, Deputy Commissioner or Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order given, passed or made, or as to the regularity of any such proceedings and may when calling for such record, direct that the execution of any sentence be suspended and, if the accused is it confinement, that he be released on bail or on his own bond pending the examination of the record :-
(2) Government may, after examining any record called for under sub--section (1), and giving the parties an opportunity of being heard, pass such orders as it may think fit;
21. Section 28 ousts the jurisdiction of civil Courts. These are the material sections of the Ordinance II, which in our view or as was argued by the learned counsel for the parties, relevant to the decision of this petition. On factual side of the case, the final report of the incident was placed by the Naib-Tehsildar the officer who investigated the case before the Assistant Commissioner, Sibi.
He took judicial notice of facts. The facts constituting offences under section 326/307 of the Pakistan Penal Code, it is on the record that the Assistant Commissioner with powers of Deputy Commissioner had taken the cognizance of the case on 23rd April, 1977.
22. In his order he has not only ordered for a cancellation of the bail of the petitioners but in unequivocal words has too ordered for reference of the case to a Tribunal. It would suffice to say that the Assistant Commissioner had taken the cognizance of the offences. Such action of the Assistant Commissioner/Deputy Commissioner is sufficient to establish that cognizance of the case was taken by him. Definition of word "cognizance" has always remained debatable before Courts. Similar situation as is before us was faced by his Lordship in case of Ali Sher and another v.
The State (PLD 1970 Kar. 790). His Lordship took lot of pains and analysed meaning of the word "cognizance". He has held :- .
"It seems to me that the moment a case involving the alleged commis--sion of a scheduled offence is placed before the Deputy Commissioner, and he takes judicial notice of the facts constituting such offence, the case is drawn into the ambit of the Ordinance for the reason that the Deputy Commissioner has taken cognizance thereof within the meaning of section 4 of the Ordinance."
23. This authority is not only relevant but identical to the facts of the case in respect of taking of cognizance of the case. We respectfully agree with the view expressed by his Lordship in the citation.
24. This aspect of the case was too not disputed by Mr. Mirza the learned counsel for the petitioners.
We are therefore of the definite view that cognizance of the case was taken by the Assistant Commissioner. Besides, it was pointed out to us that the case has proceeded with before the Tribunal and some of the witnesses have been examined there.
25. Now the material question involved in the matter is the bail of the petitioners, as such we would revert to certain facts and the provisions of bail under the Ordinance II. Relevant section for convenience has already been reproduced above. It sa3 s that the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under the Criminal Procedure Code. Indeed this is the section which empowers the Deputy Commissioner the discretion of granting bail to accused: However this section too empowers him to cancel bail allowed to accused persons. This position of law is not even disputed by the petitioners' counsel. However relying on case of Mushtaq Ahmad v. The State (PLD 1966SC 126), Mr. Mirza submitted that Assistant Commissioner had neither given show-cause notice to the petitioners nor had given them opportunity of being heard while cancelling their bail. According to Mr. Mirza, his such action was in utter violation of the principles of natural justice. The orders as such was ab initio void. Indeed this argument of the learned counsel would have carried some weight if the petitioners had not been heard by the Commissioner in appeal and the Member Board of Revenue in revision. A The record shows that the petitioners have been heard at length at the both stages. Indeed this objection of Mr. Mirza vanished as his clients were heard by the Commissioner and the Member, Board of Revenue. Particularly this ground disappeared when the Commissioner allowed the petitioners to remain on bail.
26. Then it was contended by Mr. Mirza as already said here in above, that the Member, Board of Revenue had passed the impugned orders against the petitioners except Issa on no evidence at all, as such the orders were passed without lawful authority. We are however not convinced by this argument of Mr. Mirza. Grant or refusal of bail is a discretionary matter. It is within the discretion of relevant authority to grant or refuse bail to accused. Indeed such discretion can be exercised by that competent authority. Having competence to decide, the competent authority may do it in it discretion rightly or wrongly. The mere fact that such discretion has not been properly or even wrongly exercised would not indeed lay a foundation so strong as to call for interference of this Court under its constitutional jurisdiction. At the highest, such order may be said to be an erroneous one. But not in any way void or without lawful authority. Every erroneous or incorrect decision could never be termed to be a decision, void or having been made without lawful authority. The High Court indeed in its writ jurisdiction would be reluctant to interfere with such orders made by a Tribunal within its competency. However no bard and fast rule could be laid down in this respect. Such Tribunals do not have unfettered powers. Their capricious or void orders have often been interfered with by the High Courts. However, it all depends on facts of cases.
Proposition of jurisdiction was well discussed by their Lordships in case of Muhammad Hussain Munir v. Sikandar and others (PLD 1974SC139). Their Lordships have dealt with the proposition as under :- "It is well-settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact."
27. It is not the case of the petitioners that the Assistant Commissioner or the Member Board of Revenue had no jurisdiction to decide the applica--tions of the petitioners. Certainly they could have not raised such objection as it would have been fallacious stand indeed. Section 16 empowers the Assistant Commissioner and section 24 of the Ordinance II confers jurisdiction upon the Member, Board of Revenue, having jurisdiction to decide the bail matter, the Member, Board of Revenue had the jurisdiction to decide it rightly or wrongly specially when it was within his discretion as already discussed, above.
28. Besides, the Member Board of Revenue in his two orders has given the cogent reasons for cancelling the bail of the petitioners. He has in clear words observed that the record of the case transpired to him that Issa oninstigation of other petitioners had attacked the respondent Abdul Aziz and inflicted grievous injuries on him as a result of which he was admitted in the Hospital and was under treatment for about three weeks. He has passed this order on perusal of the record.
Whether there was sufficient material before the Member Board of Revenue or not for having taken such decision, it is not the function of this Court to assess in its constitutional jurisdiction. We are not sitting as appellate Court to assess so. Nor even we can import our own views, which we might have taken otherwise.
29. However, the matter is pending before the Tribunal, where some evidence actually has already been recorded and some of witnesses are yet to be examined. In view of such circumstances, we would indeed refuse to appraise the evidence recorded before the Tribunal or even before the investigating officer as it would certainly prejudice case of the parties before the Tribunal or any other authority sitting on appellate or revisional jurisdiction.
30. Even otherwise, in their jurisdiction under section 497 or 498 of the Criminal Procedure Code, the ordinary Courts have refused to embark on detailed factual enquiry, during the pendency of proceedings of the cases; cases which are punishable with death or for life or ten years.
31. For the foregoing reasons, we refuse to interfere with the decision given by the Member, Board of Revenue.
32. In result, the petition stands dismissed.
33. However in peculiar circumstances of the case, we pass no order as to costs.