1. QAISAR KHAN, J.--On 7-9-1964 the dead body of Diljan son of Maghullah, a young boy aged 11/12 years, a resident of village Khawargai Kotla Saudad Khan of the Domel Police Station of the Bannu District was found at a place known as "Torekh Grang", situated in the tribal territory attached to Bannu District. (It may be mentioned here that there is some tribal territory bordering Bannu District which is attached to Bannu District and for which the Deputy Commissioner, Bannu acts as Political Agent).
2. Mirabat, uncle of Diljan, reported the matter at Police Station, Domel charging his co-villagers Abdur Rahman and Faraz Khan, sons of Saudad Khan and Gulla Khan, and Sahib Khan, sons of Sharam Khan for the offence, where a case was registered. The Police after investigation and after obtaining permission under section 188, Cr. P. C. from the Deputy Commissioner, Bannu in his capacity as Political Agent for the tribal area put in challan against the aforesaid four persons and two others namely, Resham Khan and Wali Khan in the Court of the Local Magistrate.
3. The Commissioner, D. I. Khan Division, however, by his order, dated 6-1-1965 referred the question of the guilt or innocence of the accused to the decision of a Tribunal under the Criminal Law Amendment Act, 1963. The Tribunal sub-mitted its report on 20-4-65 and the District Magistrate, Bannu agreeing with the report, by his order, dated 22-4-65 convicted all the six accused to fourteen years' R. I. each under section 302/34, P. P. C. read with section 10(2)(d) of the Criminal Law (Amendment) Act subject to confirmation by the Commissioner. The accused went up in revision to the Court of the Commissioner against the order of their convictions and sentences and the learned Commissioner by his order, dated 27-5-65 while maintaining the convictions and sentence of Abdur Rahman, Faraz Khan, Gulla Khan and Sahib Khan set aside the convictions and sentences of Resham Khan and Wali Khan and acquitted them.
4. Abdur Rehman, Faraz Khan, Gulla Khan and Sahib Khan filed a revision petition under section 19 subsection (2) of the Criminal Law (Amendment) Act with the Provincial Government and the Secretary to the Government Home Department by his order, dated 10-7-65 accepted the revision petition. It will be pertinent to reproduce here the order of the learned Home Secretary: "The counsel for the petitioners has urged before me that the occurrence took place in the tribal territory (special area) attached to Bannu District, where the provisions of the West Pakistan Criminal Law Amendment Act, 1963 do not apply in accordance with the provision of subsection (2) of section 1 of the Act. This is supported by the fact that the Investigating Officer had to take out a certificate under section 188, Cr. P. C. from the District Magistrate, Bannu who exercises the powers C., Political Agent for the said area attached to Bannu District. The Tribunal also has in its finding referred to this order under section 188, Cr. P. C. The counsel for the State has conceded that the reference to and trial by a Tribunal of this offence under the West Pakistan Criminal Law Amendment Act, 1963 was without jurisdiction. I, therefore, quash the proceedings and set aside the convictions of the petitioners and direct that the case be tried under the provisions-of the law operative in the area where the offence is alleged to have been committed, namely the Frontier Crimes Regulation of 1901. The petitioners shall remain as undertrials under the said Regulation."
5. The learned Deputy Commissioner, Bannu thereupon by his order, dated 24-8-1965 referred the question of the guilt or innocence of all the six accused to the decision of a Council of-Elders under subsection (1) of section 11 of the F. C. R.
2. The order which is a short one is reproduced here for convenience:-- "The above-noted six accused stand charged for the murder of Diljan at Tarkha Garang (tribal territory) by firing at him. The case against the accused was tried under the West Pakistan Criminal Law Amendment Act VII of 1963, which resulted in the conviction of the accused. The Home Secretary to the Government of West Pakistan, Lahore while dealing with the revision petition of the convicts directed that the accused should be dealt with under Frontier Crimes Regulation which operates in the area where the occurrence took place.
3. I, therefore, refer the case to the following Jirga Members for enquiry and report regarding the guilt or innocence of the accused in accordance with the issues noted below: Jirga Members:
(1) Assistant Commissioner, Bannu.
4. (2)Muhammad Aslam Gandapur.
5. (3)Muhammad Khan Wazir Jani Khel.
6. (4)Usman Khan son of Shah Pasand Khan Mughal Khel.
7. (5)Muqarrab Khan Haji of Kachkot Asad Khan.
8. Issues: (1)Whether the accused are guilty of the offence charged with?
9. (2)What was the motive and what recommendation the Jirga have to make."
6. The six accused have filed this writ petition praying for the quashment of the orders dated 6-1- 1965 and 22-4-65 of Deputy Commissioner, Bannu, dated 27-5-1965 of the Commissioner, D. I.
10. Khan, dated 10-7-65 of the Home Secretary and dated 24-8-65 of the Deputy Commissioner, Bannu.
11. The learned counsel for the petitioners Mr. N. M. Khan, Advocate raised the following contentions before us:-- "(1) That no show-cause notice was given to the petitioners when their case was referred to the Council-of-Elders under the F. C. R. on 24-8-1965 by the Deputy Commissioner, Bannu.
(2) That it was a case of no evidence and no reference could, therefore, be made under the F. C. R.
12. (3)That neither the Criminal Law (Amendment) Act nor the F. C. R. was in force in the tribal territory in question and hence no reference could be made under the F. C. R.
13. (4)That the case of the acquitted accused at least could not be referred to a Council-of-Elders.
14. (5)That the Deputy Commissioner did not act on his own but simply complied with the order of the Home Secretary and hence the reference was bad."
15. 6-A. A perusal of the facts described above and the contentions raised by the learned counsel for the petitioners makes it abundently clear that the only order that is is dispute is the order dated 24- 8-65 passed by the Deputy Commissioner, Bannu referring the question of the guilt, or innocence of the petitioners for the decision of a Council-of-Elders under the F. C. R. The other orders dated 6- 1-1965 and 22-4-1965 of the Deputy Commissioner and dated 27-5-1965 of the Commissioner have already been set aside by the order dated 10-7-1965 of the Home Secretary. But before the contentions of the learned counsel for the petitioners could be gone into the two contentions raised by the learned Additional Advocate-General on behalf of the State require disposal first.
16. These contentions are:
(1) That this Court had no jurisdiction in the matter ; and (2) that the petition was not competent as the petitioners had not availed of the alternative remedy, that is to say, of revision to the Commissioner, available to them.
7. For the first contention the learned Additional Advo-cate-General referred to Article 223, sub- Article (5) of the Constitution of 1962, which runs as follows:-- "Notwithstanding anything in this Constitution, neither the Supreme Court nor a High Court shall, unless the Central Legislature by law otherwise provides, exercise any jurisdiction under this Constitution in relation to a Tribal Area."
17. He contended that since the occurrence had taken place in a tribal territory, the order of the Deputy Commissioner referring the case to a Council-of-Elders for decision was in relation to a Tribal Area and this Court had, therefore, no jurisdiction. In this connection the following authorities were cited by counsel for the parties:-- (1)The State v. Dosso and another PLD 1958 SC (Pak.) 533.
18. (2)Piao Gul v. The Stare PLD 1960 SC 307.
19. (3)Sar Khan v. The State PLD 1967 SC 149.
20. (4)Ihsanullah and others v. Commissioner, F. C. R. Peshawar and another 1968 SCMR 974 and (5)Jamil Ahmad and another v. The State and 5 others PLD 1969 SC 344 and The Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 485.
8. The relevant portions of these authorities are reproduced here for convenience:-- PLD 1958 SC (Pak.) 533: "In the case of Dosso and Muhammad Khan the position is materially different in so far as the trial and all proceedings up to the conviction were held in a 'special area' over which the High Court had not jurisdiction. It follows that the High Court had no authority to decide whether the trial and conviction were legal or otherwise. The only matter of which they could be seized was whether these persons were properly held in custody by the Jailer at Machh."
21. PLD 1960 SC 307: "That case however, was different from the case of Piao Gul in one respect, namely that there, as the judgment shows .`The trial and all proceedings up to the conviction were held in a 'special area' over which the High Court had no jurisdiction'. In the present case it is admitted that all the proceedings of the case were held in Peshawar, and it was only for the pronouncement of the judgment that the Political Agent Mr. Faridullah Shah took the case to Jamrud Fort. We do not consider that the case falls within the observations made in the precedent case with reference to cases which arise and are wholly tried in a special area."
22. PLD 1967 SC 149: "The effect of these two decisions is clear, namely, that with respect to all proceedings held in a judicial or a pretended judicial capacity within the territories where the writ of the High Court runs, the High Court had power in certiorari to examine into their propriety and legality."
23. 1968 SCMR 974: "The learned counsel for the petitioners has argued that as the offence had taken place in Peshawar and the Political Agent, Khyber has his office in Peshawar, where the order imposing the fine was made and where the money was also deposited, the matter fell within the jurisdiction of the High Court which has wrongly declined to exercise it. Article 223, sub-Article (5) on a plain reading bars the exercise of jurisdiction by the High Court and the Supreme Court in relations to a tribal area, unless the Central Legislature, by law provides otherwise. The fine on the tribes under section 22, F. C. R. has been imposed due to their recalcitrant behaviour in their own area in not surrendering or securing the surrender of the culprits who had taken shelter in that area. The fine was also realised from them in the tribal area although it was subsequently deposited in the office of the Political Agent at Peshawar. The impugned action of the Political Agent, in our view, being in relation to and operation in a tribal area, the High Court was quite right in declining to give relief to the petitioners, for lack of jurisdiction."
24. PLD 1969 SC 344: "As all these actions took place in the tribal territory of Miranshah, including the order for the execution of the warrants which was lawfully made the jurisdiction of the High Court was clearly barred for any redress against those actions. It was rightly conceded by the learned Attorney- General on the basis of the decisions of this Court in the cases of Piao Gul v. The State PLD 1960 SC 307 and Sar Khan v. The State PLD 1967 SC 149 that if the cause of action had arisen to the appellants within the territorial jurisdiction of the High Court, for instance, if, they had been arrested or detained within those territories without a lawful authority the High Court would certainly have had the jurisdiction to examine the legality and the lawful authority for that action."
25. PLD 1969 SC 485: "The next question is as to whether the writ could at all issue, because, the truck and the articles therein were seized within the tribal area. The Court has already held in the case of Jamil Ahmad and another v. The State Cr. Appeal No, 11 of 1968 that the High Court has no jurisdiction to issue a writ under Article 98 of the Constitution to the tribal areas. But in this case since the truck and the goods were brought to Peshawar Cantonment which was within the jurisdiction of the Court no legitimate objection could be taken to the High Court issuing a writ on the authorities concerned within their jurisdiction to release the truck from such seizure. Since that order would have had to be carried out within the territorial limits of the jurisdiction of the High Court it could have been lawfully issued. It is only if the order was sought to take effect in a territory outside the limits of the jurisdiction of the High Court that the question of non-maintainability of the writ could arise."
9. A perusal of the aforesaid authorities, therefore, makes it abundantly clear that whenever, any order is made or any action taken in territories within the jurisdiction of this Court even if it is in relation to an occurrence having taken place in a tribal territory, this Court would have jurisdiction to examine the legality and propriety of the order passed by any authority within its territorial jurisdiction.
26. In the instant case the position is as follows, which was not denied by any of the parties:-- "(1) The deceased belongs to the settled area of Bannu District.
27. (2)The accused belong to the settled area of Bannu District.
28. (3)The Political Agent of the tribal area where the occurrence allegedly took place is the Deputy Commissioner of Bannu District who sits and works at Bannu.
29. (4)The impugned order of reference was passed at Bannu.
30. (5)The petitioners are under restraint in Bannu District, in that they have furnished sureties at Bannu for their appearance at Bannu before the Deputy Commissioner.
10. Under these circumstances in view of the authorities mentioned above, we are, firmly of the opinion that this Court has jurisdiction to examine the propriety and legality of the order of reference passed by the Deputy Commissioner at Bannu which is a settled area. The first contention of the learned Additional Advocate-General to the jurisdiction of this Court is, therefore, repelled.
11. So far as the second contention is concerned, there is no dispute regarding the legal position that if an alternative adequate remedy, which is equally speedy, convenient, less expensive and efficacious, is available to the petitioners, then the High Court will refuse to exercise its writ jurisdiction.
31. But then in view of the authorities laid down in Malik v. The Province of West Pakistan and another and Fazal Rvehman Din alias Mina and others v. Commissioner, Peshawar Division, State Peshawar and another the alternative adequate remedy is to be considered with reference to the circumstances of each case. .
32. The following excerpts from these authorities are worth noting: PLD 1963 Lah. 575: "If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy while generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Courts should give the required relief under Article 98."
33. PLD 1968 Pesh. 30: "If an adequate remedy is available to a suitor, he cannot invoke the jurisdiction of the High Court under Article 98. However, the existence of an alternative remedy is not per se a bar to the issuance of an order under Article 98. If a remedy is available, but it is not adequate, it will not be a bar for invoking the jurisdiction under the said Article.
34. The question whether or not a particular remedy is adequate remedy, will always depend on the facts of each case."
35. 12.Now in the instant case the petitioners were convicted under the Criminal Law (Amendment)
36. Act and the order of conviction was modified in revision by the Commissioner. The Home Secretary on a further revision, however, set aside the order of conviction and issued a direction in express terms that the case be tried under the F. C. R. In view of this express order of the Home Secretary, it is therefore, idle to assert that the petitioners have an adequate remedy by way of revision to the Commissioner. We are, therefore, in the circumstances of the present case, of the opinion that no adequate remedy is available to the petitioners and that they are entitled to invoke the writ jurisdiction of this Court.
37. 13.Besides, in view of the authority laid down in Muhammad Ashraf v. Board of Revenue, West Pakistan and others the contention of the learned Additional Advocate-General has no force in it.
38. The relevant portion of the aforesaid authority is reproduced here for convenience: "In this connection, we should note that some of these petitions were filed in 1964 but no counter- affidavits have been submitted on behalf of the respondents and no preliminary objection was taken to their maintainability until the addresses on behalf of the petitioners were concluded. The delay in raising the objection has resulted in the pendency of these petitions for several years. The consequence of this delay is that if the objections were now to be upheld, all the time that has been spent till today will have to be written off as wasted and fresh proceedings will have to be commenced by the petitioners over again. This consideration _itself, to our minds, is enough to defeat the objection."
39. In the instant case too the petition was filed on 3-11-65 and the objection as to the alternative remedy was raised for the first time during the arguments on 2-4-1970. In the circumstances, in view of the above authority, we therefore repel the second contention of the learned Additional1 2 3 Advocate-General as well. .
14. Now adverting to the contentions raised by the learned counsel for the petitioners, the first point to be determined is as to whether the petitioners had any right to be heard before the reference could be made. In this connection counsel for the petitioners referred to the following authorities, alleging that the petitioners should have been heard before the reference was made: (1)Home Secretary to the Government of West Pakistan, Lahore and others v. Jan Muhammad and another PLD 1969 SC 333.
40. (2)Khena Ram v. The Commissioner, F. C. R., Quetta Division, Quetta and another PLD 1969 Quetta 24.
41. (3)Sardar Khan alias Dara and 3 others v. District Magistrate, Kohat and 2 others PLD 1970 Pesh. 1.
42. These authorities, however, have no application to the facts of the present case as in all these authorities action had been taken under the Criminal Law (Amendment) Act and not under the F.
43. C. R. In view of the provisions of sections 18 and 25 of the Criminal Law (Amendment) Act it was held that an accused person was entitled to be heard before any action could be taken against him. There are, however, no provisions in the F. C. R. corresponding to sections 18 and 25 of the Criminal Law (Amendment) Act and the aforesaid authorities are, therefore, of no help to the petitioners. As a matter of fact the unpublished authority of the Supreme Court in State and others v. Qazi Khanzada Criminal Appeal No, 39 of 1965 referred to in PLD 1969 Quetta 24 lays down that as accused person is not entitled to a hearing before the Commissioner in revision even after his conviction by the Deputy Commissioner under the provisions of the F. C. R. The provision of section 11, F. C. R. read with section 17 makes it abundantly clear that the order of reference has to be made by the Deputy Commissioner in his discretion independently and not after consulting or hearing anybody. We are, therefore, of the opinion that the reference on that account is not bad.
15. The next contention of the learned counsel for the petitioners was that there was no evidence whatsoever as against the accused for connecting them with the crime and the case against them could not, therefore, be referred to a Council-of Elders. For this, reliance was placed on The State v.
44. Nawab Gul and Mehr Jang and others v. Commissioner, Dera Ismail Khan Division and another .
45. On the other hand the learned Additional Advocate-General relying on Sabir Khan v.
46. Commissioner, Peshawar Division, Peshawar and another contended that the evidence against the accused was not to be judged by judicial standards applied by Courts of law, but if there was material available, which if believed by the tribunal, would be sufficient for conviction, then it would not be a case of no evidence.
47. 16.After going through all the three authorities, we agree with the contention of the learned Additional Advocate-General. The evidence against an accused person while referring his case to a Council-of-Elders under the F. C. R. is not to be judged by judicial standards, and if there is evidence direct or circumstantial connecting the accused with the offence, then the reference will not be bad. Judging the instant case in the light of the above, we are of the opinion that there was enough evidence justifying the reference.
48. The accused are related to one another and there was serious enmity between the accused and the father of the deceased. The accused had attacked the house of the father and uncle of the deceased in which attack the grandfather of the deceased and Allah Dad a cousin of the accused Resham Khan were killed. Zaman Khan P. W. had seen the deceased going towards the hills in the morning, where he was killed and had also seen the accused coming from the side of those hills the same day at about mid-day. The deceased was a young boy aged 12/13 and his father and uncle had no enmity whatsoever with any other person. The villagers of village Chashmai which lies on the way from the spot to the village of the accused suspected the accused for the murder and the accused gave a sheep worth Rs, 240 to the villagers. The statement of Gul Munir D. W. shows that the accused approached the uncle of the deceased before they had been charged,4 5 6 which further points to wards their guilty mind. This circumstantial evidence, in our opinion, was more than sufficient to justify the reference by the Deputy Commissioner. We are, therefore, of the opinion that there is no substance in the second contention of the learned counsel for the petitioners as well.
49. 17.The third contention of the learned counsel for the petitioners that neither the Criminal Law (Amendment) Act nor the F. C. R. was in force in the territory in question has no substance whatsoever in it. The F. C. R. of 1901 was extended originally to the six districts of the Former N.-W. F.
50. P. as is evident from section 1, subsection (3) of the Regulation. Later, on it was extended to the various agencies and tribal areas bordering the Former N,-W. F. P. by various notifications. The F. C.
51. R. was extended to the area in question vide Notification No, 8-W-Simla (External Affairs Department) published in the Gazette of the Government of India, Extraordinary, dated 3rd of September 1939. Sometimes after the establishment of Pakistan some tribal areas bordering the Hazara and Mardan Districts of the Former N.-W. F. P. were merged in Mardan and Hazara Districts, and later on when the Province of West Pakistan was formed, some States of the Baluchistan were merged in the Province of West Pakistan. Vide Frontier Crimes Regulation (Second Amendment)
52. Ordinance XLIII of 1963, the provisions of the F. C. R. of 1901 were extended to these merged areas.
53. These merged areas were shown in a Schedule which was named as Third Schedule to the Regula- tion.
54. 18.The West Pakistan Criminal Law Amendment Act (VIE of 1963) was extended to the whole of the West Pakistan, excepting the tribal areas and the areas specified in the Third Schedule according to subsection (2) of section 1 of the Ordinance. This Third Schedule included the same areas which were mentioned in the Third Schedule added to the F. C. R. mentioned above. The F. C. R., therefore, applied to the tribal areas and the areas mentioned in the Third Schedule, while the Criminal Law (Amendment) Act applied to the rest of the West Pakistan.
55. 19.Vide Notification No, Judl-I-I(72)/64(l), dated 17-12-1964 the areas mentioned in the Third Schedule were exempted from the application of the F. C. R. and Vide Notification No, Judl-I-I (72)/64 (ii), dated 17-12-1964 the provisions of the Criminal Law (Amendment) Act were enforced in the areas mentioned in the Third Schedule. The F. C. R. therefore remained in force in the agencies and the tribal area in question. The contention was raised by the learned counsel for the petitioners because in the book with him containing the Criminal Law (Amendment) Act, the words "except the tribal areas" were missing. This contention is, therefore, also repelled.
56. 20.The fourth contention of the learned counsel for the petitioners to the effect that the case against the acquitted accused, namely, Resham Khan and Wali Khan could not be referred, in our opinion, has much substance in it.
57. Chapter IV of the Criminal Law (Amendment) Act deals with appellate and revisional powers of the Commissioner and Government but the orders in the instant case by the Commis-sioner and the Government were passed before Chapter IV was amended by the West Pakistan Criminal Law (Amendment) Ordinance XV of 1966. Before the amendment there was no right of appeal as laid down in section 18 and the revisional powers of the Commissioner and the Government were described in section 19, which runs as follows :- "19.--(1) The Commissioner may suo motu at any time and shall on the application of a party to the proceedings made within one month of the passing or making of a sentence, decision or order by the District Magistrate under this Act, call for the record of the proceedings, and may for reasons to be recorded, revise such sentence, decision or order.
58. Provided that no such sentence, decision or order shall be revised without giving the parties an opportunity of being heard.
(2) Subject to the other provisions of this Act, Government may within sixty days of an order passed by the Commissioner under section 3 referring a case to a tribunal or refusing to make such reference, or an order under subsection (1) of section 11 confirming a sentence of imprisonment for a term exceeding seven years, or an order made under section 20 enhancing the sentence, either suo motu or on application made to it by a party, and for reasons to be recorded, revise any such order, and the order shall be given effect to as revised."
21. Now the two petitioners namely, Resham Khan and Wali Khan were acquitted by the Commissioner in exercise of his revisional powers and only the remaining four petitioners approached the Government under section 19, subsection (2) in revision for their acquittal. The learned Home Secretary, however, quashed the proceedings, set aside the convictions of the four petitioners and directed that the case be tried under the F. C. R.
59. It has, therefore, to be seen as to whether the Home Secretary had powers under section 19 (2) to set aside the order of acquittal of the two petitioners and direct their retrial.
60. Subsection (2) of section 19 reproduced above gives the Government the powers to interfere in the following cases :- (a)When the Commissioner makes a reference under section 3 or refuses to make a reference.
61. (b)When the Commissioner under section 11, subsection (1) confirms a sentence of imprisonment exceeding seven years.
62. (c)When the Commissioner enhances the sentence in the exercise of his powers under section 20.
63. It is, therefore, abundantly clear that the Home Secretary had no powers to set aside an order of acquittal and to order a retrial. The order of the Home Secretary so far as Resham Khan and Wali Khan petitioners are concerned is, therefore, without jurisdiction and bad in law.
22. Besides, there is no dispute regarding the fact that no opportunity of hearing was given to these two petitioners by the Home Secretary when he heard the revision petition of the other four petitioners, and that the order by the Home Secretary was passed behind the back of these two petitioners. In the circumstances in view of the authorities mentioned in para. 14 above, the order of the Home Secretary so far as the two petitioners are concerned, is bad in law on that account also.
64. When the order of the Home Secretary so far as the two petitioners are concerned is held to be bad and without jurisdiction, then the two petitioners remain acquitted and could not be called persons accused of any offence. Their case could not, therefore, be referred by the Deputy Commissioner to the Council-of-Elders under section 11, subsection (1) of the F. C. R.
65. The order of reference by the Deputy Commissioner under the F. C. R. so far as Resham Khan and Wali Khan petitioners are concerned is, therefore, without jurisdiction and bad in law.
66. 23.The last point of the learned counsel for the petitioners to the effect that the learned Deputy Commissioner never formed any opinion and did not act in the exercise of his discretion as required by subsection (1) of section 11, F. C. R. but acted mechanically simply by complying with the directions of the Home Secretary is also not without force.
67. A perusal of the order of the learned Deputy Commissioner reproduced in para. 5 above clearly shows that he did not apply his mind to the case but simply in compliance with the order of the Home Secretary referred the case under the F. C. R. The mechanical nature of the action taken by the Deputy Commissioner is further apparent from the fact that he has made no reference whatsoever to the distinction in the cases of the two sets of the accused namely those, who, were acquitted by the Commissioner and those whose convictions were upheld. We are therefore, firmly of the opinion that the learned Deputy Commissioner never formed any independent opinion but simply complied with the direction of the Home Secretary.
68. 24.It has now to be seen as to whether the order of the-Deputy Commissioner was bad in law on that account or not. Relying on Sher Wall and others v. The State , Masud Ahmad v. The State and B. S. Industries v. The Deputy Registrar, Trade Marks and another learned counsel for the petitioners contended that since the Deputy Commissioner had acted under the orders of the7 8 9 Home Secretary and had not formed any independent opinion, his order of reference was bad in law. The relevant portions of these authorities are reproduced here for convenience :- PLD 1961 Pesh. 117: "We may also mention that the order of the Deputy Commissioner in Writ Petition No, 52 of 1960 is incompetent on the ground that it was not made in his own discretion or on his-own satisfaction of the inexpediency of the trial by ordinary Court, but in obedience to the order of the Home Secretary to-Government of West Pakistan."
69. PLD 1962 Lah. 878: "If the Deputy Commissioner had been of the view that a- reference to the Council-of-Elders should not be made under section 11 of the Frontier Crimes Regulation and had been given a direction by someone who was himself incompetent to make a reference to the Council-of-Elders to make a reference to that body and the reference had made because of that direction the reference would have been of doubtful validity."
70. PLD 1969 Dacca 451: In this case an order had been passed by the Deputy Registrar for the registration of a trade mark which he was competent to pass but under the directions of the Registrar, who had no power in the matter, refused the registration. It was held that the impugned order of the refusal by the Deputy Registrar under the directions of the Registrar was bad in the eye of law and of no consequence: "It is clear in this case that the discretion at an earlier stage was exercised in favour of the appellant by the Deputy Registrar. On an examination of the record transmitted to this Court, we find an endoresment in the file in the following terms : 'AS PER D. R.'s order above registration certificate is put up please.' This shows that the matter reached finality and the certificate would have been issued but for the contrary opinion of the Registrar. It should also be appreciated that the scheme of this Act is that the Deputy Registrar while dealing with the registration of a trade mark exercises a power conferred on him by a statute and no appeal lies to the Registrar against the order. Therefore, the inference of the Registrar was absolutely in excess of the authority conferred on him by the statute and has the effect of vitiating the impugned order of the Deputy Registrar." No authority to the contrary was produced and in view of the above authorities, we are therefore of the opinion that the order of reference by the Deputy Commissioner under the directions of the Home Secretary without applying his mind to the case was bad in law and of no legal effect. Consequently, we accept this writ petition and declare that the order of reference dated 24-8- 1965 made by the Deputy Commissioner was bad in law and of no legal effect. However in view of the complicated nature of the issue involved we leave the parties to bear their own costs. PLD 1963 Lah. 575 PLD 1968 Pesh. 30 PLD 1968 Lah. 1155 PLD 1963 SC 270 PLD 1969 Pesh. 141 PLD 1966 Pesh. 248 PLD 1961 Pesh. 117 PLD 1962 Lah. 878 PLD 1969 Dacca 451 1 2 3 4 5 6 7 8 9