M. A. RASHID, J -This Constitutional petition arises out of the following facts.
1. On 8th March, 1972 respondent No. 2 Mir Muhammad Baluch moved an application before Deputy Commissioner, Mekran for proceeding against the present petitioners alleging an offence under section 447, P. P. C. This application was referred to Assistant Commissioner, Turbat for action according to law. The Assistant Commissioner sent the papers for report from Naib-Tehsildar Buleda, as the dispute related to a Kourjo (an open surface channel) situated in Mauza Mehnaz. Of Teshil Buleda. The Tehsildar submitted his report on 21st March, 1972. And the Assistant Commis-- sioner, while agreeing with such report dismissed the complaint, by his order dated 5th April, 1972.
On appeal the Commissioner, Kalat vide his order dated 3rd July, 1972 remanded the matter back with the direction that a Tribunal should be constituted and matter disposed of according to the Provisions of Criminal Law (Special Provisions) Ordinance, 1968 (hereinafter referred to as the Ordinance). Consequently the Assistant Commissioner constituted a Tribunal on 27th November, 1973. The tribunal in their award dated 7th May, 1975 held that the petitioners were the Serishta of Kourjo Mehnaz and that no offence had been made out. They also held that respondent No. 2 did not appear before the Tribunal on four hearings. The Assistant Commissioner vide his order dated 8th July, 1975 agreed- with the findings of the Tribunal and dismissed the complaint, acquitting the accused under section 11(4) of the Ordinance. Earlier on 2nd July, 1975 respondent No. 2 appeared before Member, Board of Revenue who by his order of the same date observed that respondent No. 2 had shown him to be the Serishta of Kourjo Mehnaz and that the present petitioners were not giving him due share for the excavation of the Kourjo. This was followed by a similar order transmitted through a wireless message on 9th July, 1975. Aggrieved by such orders the petitioners moved a review application before the Member, Board of Revenue on 10th August, 1975. According to the petitioners no action was taken by the Member, Board of Revenue on such application beyond marking it to his reader. But according to Annexure'H' to this petition the record of the whole case was sent by Deputy Commissioner, Mekran to Member, Board of Revenue on 1st December, 1975. This was presumably sent in pursuance of a letter from the latter dated 26th September, 1975.
2. On 7th July, 1976 the Member, Board of Revenue proceeded to examine the whole case. On that day the counsel for respondent No. 2 was also present and had moved an application for revision of the orders of the Assistant Commissioner, Turbat dated 8th July, 1975. Petitioner Wajdad was also present before him. By a detailed order the Member, Board of Revenue came to the conclusion that the Tribunal bad not conducted the inquiry after hearing the parties, nor had they examined the complainant or any of his witnesses, nor those of the respondent. The learned Member Board of Revenue also observed that the report of the Tribunal was only signed by two of the Members, who were nominees of the present petitioners. The learned Member, Board of Revenue further came to the conclusion that Assistant Commissioner had not applied his mind judicially while giving his decision and in view of the learned Member, these irregularities had vitiated the proceedings. He, therefore, in his suo Moto jurisdiction, set aside the proceedings and directed that the case be heard afresh by a new officer. This order of the Member, Board of Revenue is impugned before us in this petition.
3. Mr. Basharatullah the learned counsel for the petitioner contends, firstly, that the revisional jurisdiction of Member Board of Revenue, exercising the powers of the Government under the Ordinance could not be invoked before invoking the provisions of appeal under the said Ordinance.
Secondly that the impugned order has been passed without notice to the petitioners thus violating the statutory provisions. Finally it is contended that the complaint, on which the proceedings were initiated do not constitute an offence under section 447, P. P. C.
4 Section 25 of the Ordinance relates to the revisional powers of the Government. Subsection (1) of this section reads as follows :- "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 any may when calling for such record directed that the execution of any sentence be suspended and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record."
The use of the phrase and at any stage' indicates that the Govern--ment while exercising the revisional jurisdiction can do se at any stag of the proceedings, whether an appeal has been preferred or not. This is particularly so where the Government chooses to act suo motu as is the' position in the present case. No objection could, therefore be taken to the manner of interference by the Member, Board of Revenue under section 251 of the Ordinance, in the present case.
4. Mr. Basharatullah however very strongly contended, while relying upon Muhammad Saleh v.
United Grains & Fodder Agency PLD-1964 SC 97that an order passed without notice to the other party is an act without jurisdiction. In the case cited, however their Lordships of the Supreme Court noted the contention of the appellant before them, that passing of a final order with--out notice to the party against whom the order is passed is an act without jurisdiction for jurisdiction over a party is acquired only if the party has notice. 'But their Lordships of the Supreme Court however approved this proposition because in the opinion of their' Lordships the order, being challenged was the result or the illegal or materially irregular and was struck down on that Court.
5. However there is no doubt that an order passed without notice to the party, adversely affected by such order is not sustainable in law. No body can be condemned unheard is a salutary principle of law. This is so even in those cases where the statute does not require a notice to be given to such parties. In the present case however section 25 of the Ordinance specifically lays down that the order in revision can be passed only after the parties are given an opportunity of being heard..
The question therefore would be if the petitioners were afforded an opportunity of being heard or not.
6. In this regard brief recapitulation of facts would not be out of place, though at the cost of repetition. The orders of Member, Board of Revenue dated 2nd July, 1975 and 9th July, 1975 were obviously made on an oral representation, made by respondent No. 2. By virtue of these orders respondent No. 2, was declared the Serishta of Kaurjo Mehnaz. It may be explained that a Serishta is one of the principal shareholders in a Kourjo who organizes its excavation and is responsible for its proper upkeep and maintenance. The legality or otherwise of the orders of Member, Board of Revenue was not questioned before us and therefore we would not like to say anything in their behalf. In any case these orders of the Member, Board of Revenue do not refer to the complaint of respondent No. 2 under section 447, P. P. C. But as the petitioners were adversely affected by such orders of the Member, Board of Revenue they filed a review petition before him on 10th August 1975.
In this Review petition again the question of Serishta only was raised. However the Member, Board of Revenue, after perusal of the record found out the irregularities committed with respect to the original complaint. Mr. Basharatullah contends that the orders of the Member, Board of Revenue followed the application of respondent No. 2 dated 7th July, 1976 of which there was no notice to the petitioners. No doubt respondent No 2 did make an application on that day but the impugned order of the Member, Board of Revenue is not the Revenue came to be seized of the matter as a result of the review, application moved by the petitioners, though as pointed out earlier, such application related to the appointment of the Serishta. He therefore evidently acted in the matter suo motu, and no exception could be taken to that.
7. Mr. Basharatullah further contends that only petitioner Wajdad was present while other petitioners were not. As to the presence of Wajdad it is stated that he was present before the Member Board of Revenue in connection with other cases. No details of such other cases has been put forward. In a case where lack of notice is contended burden heavily lies on those who make such contention.. Bald statement of the nature made in the present case is not enough to disharge such burden. Member, Board of Revenue ha snoted the presence of Wajdad and absence of Jehangir. It would be safe to presume that such absence of Jehangir was in spite of notice; particularly so when the, learned Member, Board of Revenue was seized of the matter on a application moved by the petitioners themselves. The contention of the learned counsel therefore that the impugned order was passed behind the back) of the petitioners, has no substance in it.
8. Finally the contention raised by Mr. Basharatullah is that complaint (Annex. S) does not disclose offences under section 447, P. P C. This objection is also not sustainable at this stage. The cognizance was taken by the Deputy Commissioner under the Ordinance, as stated by Mr. Shabinshah Hussain after examining the complainant i. e. respondent No. 2. No Objection was taken by the petitioners at that stage. No appeal was preferred against the taking of such cognizance nor against order of reference to the tribunal. In any case it is an error, if at all, committed within jurisdiction. It can be corrected by following the provisions of the Ordinance, we have however noted the submis--sion of Mr. Shahinshah Hussain the learned counsel for respondent No. 2, that the complaint prima facie, not only discloses an offence under section 447, but also under sections 430, 355 and 147, P. P. C. But we would leave this question to be determined by the tribunal, and the Deputy Commissioner.
In view of the above discussion we find no force in this petition and dismiss it with costs.
S. A. H.