1. MUHAMMAD YAQUB ALI, J.-The facts giving rise to this appeal briefly are that Abdur Rashid, respondent, and his co. Accused Ghulam Ahmad were charged under section 302 read with section 34, P. P. C. For the murder of Ch. Hakim Ali and his son Khizar Hayat in the area of Chak No. 68/DB, District Bahawalpur.
2. The case was in due course made over by the Commissioner to a Tribunal under section 3 of the West Pakistan Criminal Law Amendment Act, 1963, consisting of Mr. Taj Muhammad Khan Lodhi, Magistrate, Section 30, Brigadier Nazir Ali Shah, Malik Ghulam Haider, Syed Farid Hussain Shah and Ch. Shah Muhammad. After holding an inquiry into the guilt or innocence of the accused persons, the members of the Tribunal returned the following findings :---
(i) Mr. Taj Muhammad Khan Lodhi : "There was strong evidence against the accused Abdur Rashid, respondent No. 1".
(ii) Brigadier Nazir Ali Shah : "both the accused were innocent".
3. (i.e) Malik Ghulam Haider : "there was no proof against Ghulam Ahmad and the evidence against Abdur Rashid accused was artificial and fabricated". He, however, held that "Abdur Rashid, accused, might be the murderer".
(iv) Syed Farid Hussain Shah : "Abdur Rashid was the murderer, and his co-accused Ghulam Ahmad was with him in that conspiracy.
(v) Ch. Shah Muhammad : "Ghulam Ahmad co-accused was innocent and Abdur Rashid was proved to be guilty in the case".
4. The report was submitted to the District Magistrate, Bahawalpur, under section 10 of the Criminal Law Amendment Act who remitted the case to the Tribunal with the direction that "Ghulam Haider may be asked to state in clear terms whether he holds Abdur Rashid guilty or innocent".
5. Abdur Rashid, respondent, thereupon filed Writ Petition No. 1422 of 1968 in the High Court disputing the legality of the order of the District Magistrate on the ground that it was not covered by the provisions of section 10 of the West Pakistan Criminal Law Amendment Act (VII of 1963). The section is in the following terms; "10.-(1) The Tribunal shall submit its findings, with reasons therefore on the question referred to it under section 3 to the District Magistrate.
(2) On receipt of the finding of the Tribunal, the District Magistrate may, for reasons to be recorded :-
(a) remand the question to the Tribunal for a further inquiry and finding ; or
(b) where the finding of the Tribunal is not supported by a three-fourth majority of thetotal number of members, refer the question to a second Tribunal ; or
(c) acquit the accused person or persons or any of them ;
(d) 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 any of them, of any offence specified in the First Schedule of which the facts so found show him or them to be guilty.
(3) The District Magistrate shall within three days of the passing or the making of airy 'order, reference or sentence under this section, furnish a copy thereof free of cost to the accused."
6. It was contended that the District Magistrate could remand the case to the Tribunal for a de novo inquiry and findings and not for ascertaining the opinion of airy one of the members of the Tribunal.
7. The plea found favour with the learned Judges who formed the opinion that the remand order was not covered by section 10(2)(a) and that the case should be referred to the Tribunal as a whole for recording its finding collectively.
8. It was urged on behalf of the State before the High Court that as observed by this Court in Summander v. The Crown (PLD 1954 1 228) the niceties of legal procedures to be observed by ordinary Courts were not to be expected from the Tribunal and the District Magistrates who were entrusted with certain functions under the Criminal Law Amendment Act This, however, did not in the opinion of the learned Judges lend validity to the order of the District Magistrate passed in contravention of the provisions of section 10(2)(x), The appellant on the contrary placed reliance on a Full Bench decision of the High Court in Jan Muhammad v. Home Secretary (PLD 1968 Lah.
9. 1455), in which it was held that an order referring for decision the matter of guilt or innocence to the Tribunal constituted under the Act without affording a reasonable opportunity of hearing to the accused persons was liable to be set aside. The decision was upheld by this Court in the appeal preferred by the State from the Full Bench decision. From this decision it was concluded that neither the Tribunal nor the District Magistrate could act in breach of the provisions of section 10(2)
(x) of the Criminal Law Amendment Act. The learned Judges, accordingly, set aside the order of the District Magistrate dated the 31st August 1968, and directed that the report and the findings of the Tribunal shall be deemed to be still pending with the District Magistrate for passing orders thereon as warranted by law.
10. Leave to appeal was granted to consider whether the view formed by the High Court that the order made by the District Magistrate on 31st August 1968, was not covered by the provisions of section 10(2)(a) of the Criminal Law Amendment Act, 1963, was correct.
11. 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 Amend-- ment 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 said that tie might be the murderer. A 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 the Tribunal shall submit its finding with reasons therefore on the question referred to it under section 3 to the District Magistrate. Under clause (b) 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 (c) 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 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 therefore" to the District Magistrate.
12. 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 of the members of the Tribunal in order to record a 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.
13. The impugned order dated the 19th August 1966, by the District Magistrate remanding the case with the direction that Ghulam Haider one of the 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 Con--stitution. 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.
14. The appeal is, in the result, allowed and the writ issued by the High Court is recalled. In the circumstances we make no order as to costs.