MUHAMMAD AFZAL CHEEMA, J.--This writ petition filed by Din Muhammad, an accused in a case under section 302, P. P. C., calls in question the legality of the order of the Commissioner, Bahawalpur, dated 11-11-1964, whereby in exercise of powers vesting in him under section 3(1) of the West Pakistan Criminal Law Amendment Act, 1963 (hereinafter referred to as the Act), he referred the case for being tried by a Tribunal to be constituted under section 4 of the Act.
2. The relevant facts giving rise to the case are that on 19-3-1964 at about 8-30 p.m. a case under section 302, P. P. C. was registered at Police Station Khanpur, District Rahimyarkhan, against Din Muhammad petitioner at the instance of one Dhandoo, a water-carrier of Gharibabad locality. The allegations brought by the complainant were that at about 7-30 p.m. on the same day about an hour prior to the registration of the case Din Muhammad petitioner had murdered the complainant's son Zahoor Din in the presence of Sattar, Rahim Khan, Din Muhammad, water- carriers, and Shera and Amira, shop keepers, near the Chowk of Gharibabad locality, by inflicting two injuries with a clasp knife in the chest and left thigh of the deceased, who succumbed to the injuries on way to the hospital. The motive for the alleged assault as mentioned in the F. I. R. was that the petitioner suspected the deceased of having illicit connection with a girl named Sarwar with whom he was himself carrying on a liaison. The challan was submitted in the Court of the M. I.
C., Khanpur on 10-4-1964, who examined Sattar, Rahim Khan, Muhammad Din, Shera and Amira, the so-called eye-witnesses, besides three police constables and only the evidence of the doctor who performed autopsy and that of the Investigating Officer remained to be recorded. It was at this stage that on being moved by the Superintendent of Police, the District Magistrate, Rahimyarkhan, withdrew the case from the Court of the learned Inquiry Magistrate and forwarded the record to the Commissioner who vide his order dated 11-11-1964, directed that the case be referred to the Tribunal under section 4 of the Act. Accordingly, the District Magistrate constituted a tribunal under the Presidentship of Mr. G. M. Durrani, S. D. M., Liaqatpur for trial under the Act. The proceedings commenced before the President of the Tribunal on 19-12-1964 and the members of the Jirga were summoned for 6-1-1965 to proceed with the trial, when the present Writ Petition was moved by the petitioner calling in question the legality of the proceedings before the Tribunal.
2-A. The grounds of attack taken in the petition, briefly, were that the alleged occurrence had taken place before sunset time, that the accused was named in the F. I. R. not being a hired assassin, that the District Magistrate had no authority to withdraw the case from the ordinary criminal Court before the Commissioner had actually decided that the trial be held by a Tribunal, that the learned Commissioner did not hold or even state in his order of reference that the determination of the question of guilt or innocence of the accused by an ordinary criminal Court was inexpedient in the interest of justice as required under section 3 of the Act. Exception was also taken in regard to the validity of the constitution of the Tribunal on the ground that the members had been nominated by the District Magistrate without prior communication of their names to the parties as required under section 36 of the Act. Violation of the provisions contained in sections 7 and 9 and rule 12 of the relevant rules (West Pakistan Criminal Law (Amendment) Rules, 1963) was also alleged which were considered to be vitiative of the proceedings. Reliance was placed on the Full Bench authority reported as Malik Muhammad Usman v. The State and another as to the arbitrariness of the mode of trial under the Act which allegedly amounted to an infringement of the constitutional safeguards enumerated in Article 2 of the Constitution.
3. The petition was admitted to a full hearing by a Division Bench of this Court vide its order dated 22-7-1965 on the basis of the Full Bench decision in Sabir Khan v. The State and another . The admitting D. B. declined to stay the proceedings before the Tribunal, but directed that the final order shall be deferred till the disposal of the Writ Petition.
4. We have also before us a connected matter, Writ Petition No, 1405/65, which was directed against the order of the S. D. M., Liaqatpur dated 27-3-1965 by which respondent Din Muhammad, accused-petitioner in Writ Petition No, 32/65, was released on bail on the grounds that he was below 16 years of age, that there was no direct evidence against him and, that he had faced the agony of trial for one year without any prosecution evidence having been produced. It was admitted to a full hearing on 22-2-1965 by the then Chief Justice, Inamullah Khan. The two connected matters were ordered to be, taken up together and were listed before us today. Having been argued simultaneously, they are being disposed of by a single judgment.
5. Most of the grounds taken in Writ Petition No, 32/65 were not pressed by the learned counsel for Din Muhammad petitioner. One of the principal grounds challenging the validity of the order of the District Magistrate withdrawing the case from the Court of the Inquiry Magistrate before the Commissioner had chosen to make a reference, was obviously based on the Full Bench judgment in Sabir Khan v. The State and another. Since this authority was overruled by their Lordships of the Supreme Court in Mirza Afahmood Beg v. The Commissioner, Multan Division etc. the futility of this contention was readily conceded by the learned counsel who attacked the order of reference on the sole ground that it had not been passed in strict compliance with the provision laid down in section 3 of the West Pakistan Criminal Law Amendment Act, which made it incumbent on the Commissioner to give reasons in the order of reference to show that it was inexpedient in the interest of justice that the question of the guilt or innocence of the accused may be determined by the ordinary Criminal Court. Reliance was placed in this regard on Muhammad and another v.
Divisional Commissioner, Hyderabad Division, Hyderabad . In this case the relevant expression used by the Commissioner in the order of reference was that "it is expedient that the case be referred to Jirga". Their Lordships took the view that the provision contained in section 3 of the Act1 2 3 4 was to be strictly construed and that the above expression used by the Commissioner did not amount to saying that "it is inexpedient in the interest of justice that the case be tried by ordinary Courts", and as such did not fulfil the legal requirement of section 3. It was further observed that the expression used in the above provision "an order in writing with reasons therefor" had the same meaning and import as the expression "for reasons to be recorded in writing", making it incumbent on the Commissioner to state his reasons in writing on the inexpediency of the determination of the question of guilt or innocence of an accused person, in the interest of justice by an ordinary criminal Court. In this view of the matter, their Lordships struck down the order of reference as being illegal. This view was upheld and elaborated by their Lordships of the Supreme Court in Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others .
The following observation of their Lordships may be advantageously reproduced :- "The law clearly requires that the reference must be made `by an order in writing with reasons therefor. The necessity for the giving of reasons arises because rule 3 of the West Pakistan Criminal Law (Amendment) Rules, 1963, framed in exercise of the powers given by the statute itself, makes it obligatory on the Commissioner to consider a number of factors which have been specified seriatim in clauses (a) to ( j ) of this rule. It is only when he is satisfied that the case falls within one or the other of the said categories that he can make a reference. It postulates, therefore, that the reason to be given must be a reason relatable to one of the matters mentioned in rule 3.
The Commissioner must, therefore, disclose his mind by specifying in writing the specific reason which had prompted him to refer the case to the Tribunal so that the revising authority may be in a position to say as to whether the reference had been made upon valid and sufficient reasons."
The judgment was delivered in this case by Hamoodur Rahman, C. J., and his Lordship criticised the order of reference in the following terms :- "In the result, I am in agreement with the High Court that the order of the Commissioner being devoid of reason, was not an order made in compliance with the provisions of section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 and had therefore in any event to be set aside even though the other legal reasons given by the High Court were not sound."
For a proper appreciation of the above ruling of their Lordships, it would not be out of place to reproduce the order of the Commissioner impugned before the High Court and the Supreme Court.
It was as follows:- "As regards the other accused, I am satisfied from the facts on record that ends of justice would be best served if they are tried under West Pakistan Criminal Law Amendment Act, 1963 and I accordingly direct such a trial."
The argument raised in defence of this order, that it was based on a perusal of record containing recommendation by the District Magistrate giving his reasons which should be deemed to have been adopted by the Commissioner, and in any event it would be a mere irregularity not vitiative of the reference, did not find favour with their Lordships and was repelled. In order to see as to how far this authority can be attracted to the facts of the instant case, we consider it useful to reproduce the order of reference which is Annexure 'B' on the record. It is as follows :- "Under the circumstances explained in letter No, 8550 dated 4-5-1964 from the Superintendent of Police, Rahimyarkhan endorsement dated 3-6-64 recorded by Public Prosecutor, Rahimyarkhan and letter No, 1676/JB dated 23rd June 1964, from the District Magistrate, Rahimyarkhan. I, Mr. G. M.
Yazdani Malik, T. P. K., C. S. P., Commissioner, Bahawalpur Division by virtue of powers vested in me under section 3(1) of West Pakistan Criminal Law Amendment Act, 1963, order that the question of the guilt or innocence of Din Muhammad alias Dinu son of Allah Bakhsh caste Mashki resident of Gharib Abad, Khanpur, accused in this case be referred to the decision of a tribunal to be constituted under section 4 of the Act. I further direct that the tribunal may come to a finding on the question referred to them after such enquiry as may be necessary and after hearing the5 accused.
The public and judicial files containing 35.40 leaves respectively are returned herewith in original.
Please acknowledge receipt."
6. Three things clearly emerge from a perusal of this order; firstly, that the order of reference was based on the grounds initiated by the Superintendent of Police endorsed by the Public Prosecutor and adopted by the District Magistrate in his recommendation, secondly, that it makes no reference, whatever, to the inexpediency in the interest of justice of the determination of the question of the guilt or innocence of the accused by the ordinary criminal Court, which in fact is the crux of the matter and; thirdly, no reasons of his own were recorded by the Commissioner for making the reference, an implied adoption on his part of the reasons of the District Magistrate having already been found in the above-quoted judicial authorities to be wholly inadequate to fulfil the legal requirements. Precisely as it happened in the case before their Lordships of the Supreme Court, even the letters mentioned by the learned Commissioner in his order of reference forming its basis, have not been placed before us in support of the contention of implied adoption of the reasons contained therein. In the circumstances, therefore we are firmly of the view that the observation by their Lordships of the Supreme Court in the above quotation applies with full force to the facts of the instant case.
7. This is not all and there is yet another aspect of the matter. In the comment submitted by the Commissioner it was frankly conceded in paragraph 'G' that the order of reference was passed without hearing the petitioner. This was, however, sought to be explained away on the pretext that no such opportunity used to be given to the accused in those days and that the necessary instructions in this behalf were issued by the Home Department on 22-8-1967. This so-called defence is on the face of it absurd and wholly untenable. In Home Secretary to the Government of West Pakistan, Lahore and others v. Jan Muhammad and another , while dismissing the appeals and upholding the Full Bench decision contrary to the view consistently taken in Manzoor Ahmad v. Commissioner, Lahore Division and others , Messrs Haji M. Muhammad Zikriya & Company v.
Province of West Pakistan , Dilawar and others v. Commissioner Peshawar Division and another and Rehmat ullah Khan and others v. The State and others their Lordships of the Supreme Court held that the consideration by the Commissioner of the question of making a reference to the Tribunal was fully covered by the expression 'proceeding' within the meaning of section 25 of the West Pakistan Criminal Law Amendment Act and as such the Commissioner was bound to afford opportunity of hearing the parties concerned before making a reference under section 3. The precise observation made by their Lordships in this regard is as follows :- "Section 25 lays down that in proceedings under this Act before the Tribunal the District Magistrate, the Commissioner and the Government the parties, shall be entitled to be represented by a legal practitioner of their choice. A fortiori if the action in which the Commissioner decides to refer the question of guilt or innocence of an accused person to the decision of a Tribunal is a proceeding' within section 25 then the parties have a right of hearing before an order under section 3(1) is made."
Likewise in the penultimate paragraph, it was observed.
"Depriving an accused person of the safeguards provided in the Code of Criminal Procedure and the Evidence Act is a serious consequence which stems from the order of reference to the Tribunal under section 3 of the Act. Would it, therefore, stand to reason that the person accused of a scheduled offence should be denied the right of hearing before the Commissioner refers the question of his guilt or innocence to the Tribunal. The right is clearly recognised by section 18 which provides for an appeal to the Government from an order of reference under section 3 of the Act. An effective exercise of this right alone necessitates that the accused person should be heard before the Commissioner forms his opinion and give the reasons in support of the order of reference."6 7 8 9 10
8. The learned counsel appearing on behalf of the respondents raised a preliminary objection to the maintainability of the writ petition on the ground that under section 18(2) of the Act the order of reference could be challenged in appeal before the Government, indeed an equally efficacious remedy, which has not been availed of by the petitioner. It may be observed that B this remedy of appeal was provided for the first time by the amending Ordinance XV of 1966. The remedy available in the form of revision has not, however, been always, considered equally efficacious in view of its limited scope and as such we have no hesitation in repelling this objection.
9. On merits, however, learned counsel for the respondents had not much to say in support of an indefensible proposition and only half-heartedly referred us to Muhammad and another v.
Divisional Commissioner, Hyderabad and A. M. Khan Laghari v. Government of Pakistan and others in which we have not been able to find out anything relevant.
10.The upshot of the discussion, therefore, is that we allow this petition and declare the order of reference to be without lawful authority and of no legal effect. As an inevitable consequence of this finding, the proceedings taken before the Tribunal are quashed and the case stands restored to the file of the learned Inquiry Magistrate. There shall be no order as to costs.
11.In Writ Petition No, 1405/65 Dhandoo complainant-petitioner father of Zahoor Din deceased has challenged the order of enlargement dated 27-3-65 passed by S. D. M., Liaqatpur as President of the Tribunal by which Din Muhammad accused-respondent was allowed bail on furnishing a personal bond and a surety in the sum of Rs, 5,000. The grounds of attack taken in this writ petition and reiterated before us were, firstly, that the S. D. M. was not competent to allow bail and, secondly, that there was no provision in the Act corresponding to the proviso to section 497, Cr. P. C. making it discretionary with the Court to allow bail to the accused persons below sixteen years of age even in cases punishable with death or transportation. The argument though appearing to be specious at first sight, loses much of its force on closer examination. In the first instance subsection (11) of section 28(D) of the Act confers on the "President of the Tribunal" all powers conferred by section 28(D) on the District Magistrate. The relevant powers of the District Magistrate are contained in section 28(D)(2) which reads as follows :-- "Any person accused of non-bailable offence whose case has been referred for decision to a tribunal, if in custody, may be released on bail by the 'District Magistrate' but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life."
As a result of the above provision read with the provision contained in section 28(D)(11) of the Act, the expression 'The President of the Tribunal' occurring in the latter can be sub-stituted for the 'District Magistrate' occurring in section 28(D)(12) so as to invest him with the powers of releasing a person on bail accused of non-bailable offence. The only restriction on his power of enlargement, which of course is imperative in nature, however, is that he shall not release the accused if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or transportation. This expression is identical with the one used in section 497, Cr. P. C. which has been interpreted in several authorities of this Court as well as of the Supreme Court. Reference may be made in this regard to Muhammad Ayub v. Muhammad Yaqoob and another , Muhammad Aslam and others v. The State and Nadra v. Jamiat Khan and another .
12. A perusal of the impugned order clearly shows that the older of enlargement was passed on three-fold considerations, firstly, of the accused being below sixteen years, secondly, of the non- availability of any direct evidence against him and, thirdly, of the agony of a protracted trial lasting for one year without the production of the prosecution evidence. Of course, it has to be readily conceded that there is no provision in the Act corresponding to the proviso to section 497 making it discretionary with the President of the Tribunal to allow bail to an accused below sixteen years of age and to that extent the impugned order is indefensible. The sole point that falls for11 12 13 14 determination, therefore, is as to how far the other two grounds, namely, absence or non- availability of direct evidence against the respondent and the delay in the conclusion of the trial can be legitimately considered to negative the appearance of reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. In the report submitted by the Superintendent of Police, Rahimyar Khan placed on the connected Writ Petition No, 32/65, it has been frankly admitted that all the eye-witnesses resiled from their statements before the Tribunal except the complainant himself, namely, Dhandu petitioner. Authorities are not wanting wherein inordinate delay alone has been considered as affording sufficient justification for the enlargement of persons accused of offences punishable with death or transportation for life which in the circumstances of the case may not be considered long enough. Nevertheless, even if that aspect of the matter is excluded from consideration, the admission made by the Superintendent of Police in his report referred to above regarding the failure of the eye-witnesses to support the prosecution version would, in our view, be per se good enough to justify the order of enlargement. In the circumstances, therefore, we find nothing wrong with the impugned order which appears to us to have been passed in proper and lawful exercise of authority vesting in the S. D. M. The petition, therefore, fails and is hereby dismissed with no order as to costs. PLD 1965 Lah. 229 PLD 1964 Pesh. 217 PLD 1966 SC 701 PLD 1966 Kar. 424 PLD 1969 SC 158 PLD 1969 SC 333 PLD 1964 Lah. 194 PLD 1964 Kar. 251 PLD 1965 Pesh. 61 PLD 1965 Pesh. 162 PLD 1967 Lah. 227 PLD 1966 SC 1003 PLD 1967 SC 539 PLD 1968 SC 310