1. ' A31.4AL M1AN, ACTG. C. J.-By this common judgment we intend to dispose of the above two petitions, which raise the common questions of facts and law. The petitioners in both the petitions have prayed for the following relief : "It is prayed that this Hon'ble Court may be p1,4sed to order :- (i)Declaring that the action of the learned Assistant Commissioner with powers of Deputy Commissioner, Quetta in taking cognizance of the private respondents complaint and subsequent proceedings by him are without lawful authority and of no legal effect.
(ii) Quashing the proceedings in the complaint case instituted by the private respondent.
(iii) Declaring the appellate order to the extent of remand of the case, to be void.
(iv) Declaring the revisional orders of the respondent No, 1 to be void and setting aside the same.
(v) Granting any other relief deemed fit and proper including cost of the petitions.
2. The brief facts leading in the filing of the above two petitions are that Messrs Hydari Construction Company Limited (hereinafter referred to as the "Company") having its registered office at Karachi and branches throughout Pakistan and as per averment in the petitions, is one of leading construction companies of the country, in 1982-83 took three construction works in Baluchistan, namely, the construction of Grain Silos at Sheikh Manda, Quetta, Said Hameed Lora Bridge on Quetta-Chaman Road, and Manzaki Bridge on Barshore Road, in Pishin Sub-Division (hereinafter referred to as the "works"). The petitioner in Constitutional Petition No, 131 of 1986 (hereinafter referred to as the "first petition") remained as the Project Manager of the works from 7th April, 1982 to 20th March, 1983. Respondent No, 1 was employed by the Company for supply of sand, Bajri and bricks and to do some masonry work for the works. It is the case of the petitioner in the first petition that he was transferred in March, 1983. He got the balance amount, namely, Rs, 98,839 paid to respondent No, 1 in full and final settlement of the supply and work done by the respondent No, 1 upto 12th March, 1983 against a receipt (Annexure "A" to the petition), which reads as follows :- "Hydari Construction Co. Ltd. N. L. C. Silos Site Quetta.
2. Voucher No, 5577 Quetta 13-3-1983 ' Debit Haji Mehr Ali A/C, the sum of Rs, 98,839 (in words Rupees) Ninety-eight thousands eight hundred thirty-nine only, on account of paid by Cheque No, C/22-735274, dated 12-3-1983 to Haji Mehr Ali in full and final settlement of material supplies and work done up to 12-3-1983 for all the three sites. Rs, 98,839.
3. (Sd.) (Sd.)
4. Sanctioning Authority Accountant (Sd.)
5. Cashier. (Sd.)
6. Receiver. Mehr Ali.
7. ' Whereas, the petitioner in Constitutional Petition No, 135 of 1986 (hereinafter referred to as the second petition) acted as the Project Manager" of the Works for the Company for the period from 6th June, 1983 to 6th June, 1984. As per his averment in the second petition, he left the job because of his old age and illness after all the payments which were due against the Company were made to the respondent No,
1. He has also filed a photostat copy of the medical certificate about his ailment. It seems that in November, 1983, the Company terminated the arrangement between it and respondent No, 1 in respect of the above supply and work. Thereupon, respondent No, 1 filed a private complaint under section 420/ 406, P. P. C. Against the petitioners in the first and second petitions before the honorary and Special Magistrate at Quetta, in which, he stated about the supply of the above construction material and masons. In paras. 5 and 6 of the above private complaint, he made the following averments :- {{URDU TEXT}} ' It seems that the honorary Magistrate examined respondent No, 1 and his two witnesses, namely, Najeebullah son of Hameedullah and SyedAgha issued process of Syed Saleem under section 202, Cr. P. C. And thereafter issued process to. The petitioners in the first and second petitions in the form of bail warrant in the sum of Rs, 5 lac each. The petitioners went in appeal. The learned Additional Commissioner directed that instead of one surety for the sum of Rs, 5 lac, five sureties of Rs, 1 lac each be accepted provided the surety was a Zamindar or had property in the urban area.
8. The petitioners filed Constitutional Petitions Nos. 8 of 1985 and 9 of 1985, in which, inter alia, they raised the question of maintainability of the private complaint and also the correctness of the order of the surety amount. This Court by a judgment dated 5th May, 1985 confirmed the interim order, dated 18th February, 1985 reducing the amount of the bail bonds to Rs, 20,000 but declined to touch upon the question of maintainability of the private complaint on the ground that the said point could be agitated before the learned Member of the Board of Revenue. It may be pertinent to point out that after the filing of the above private complaint, respondent No, 1 also filed a civil suit for declaration and injunction in the Court of District Judge, Quetta, in which, he alleged that a sum of Rs, 36,77,766.81 was outstanding in addition to the liability to ray Rs, 5 lac for each contract as compensation. It was also averred that he would file a separate suit for the recovery of the above amount. It may also be stated that the above private complaint was transferred to the Assistant Commissioner. Quetta exercising the powers of Deputy Commissioner under the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance II of 1968) (hereinafter referred to as the "Ordinance"), who by his order dated 7th February, 1985 constituted a tribunal for referring the above private complaint for adjudication. The petitioners filed an appeal-under section 24 of the Ordinance, which was disposed of by the learned Additional Commissioner, Quetta by his order dated 6th March, 1985 the operative portion of which, reads as follows :-- "3. After bearing the learned counsel for the parties and perusal of the record, I have come to the conclusion that the matter is of civil nature and the respondent has also filed a civil suit of the same cause of action before the Senior Civil Judge, Quetta, which is pending adjudication. Besides no preliminary enquiry, as provided in the law has been carried out by the lower Court. I, therefore, remand the case to the District Magistrate/Deputy Commissioner, Quetta for holding preliminary enquiry through a responsible officer and see if any case is made out and can be referred to the tribunal. Record of the case be returned to the District Magistrate, Quetta and the Extra-Assistant Commissioner III, Quetta be informed accordingly."
9. It may be pertinent to point out that while the case was pending before the Assistant Commissioner, on 16th February, 1985, respondent No, 1 proposed that in case the petitioners in the first and second petitions would take oath on Holy Qur'an, he would not press his private complaint.
10. Thereupon, on 20th February, 1985, the petitioners in first and second petitions took oath on Holy Qur'an before the learned Assistant Commissioner, Quetta, but respondent No, 1 resiled from his above proposal/ promise. The diary sheet of the above two dates reads as follows :"16-2-1985 ' Both parties present. Counsel also present. Complainant has proposed that he is willing to settle outside the Court according to Shariat by taking oath on Holy Qur'an from accused side that payment is due or not. Whatever be the outcome he has deposed in open Court that he will withdraw.
11. ' Adjourned till 9-30 a. m. 20-2-1985. Parties have been informed of the time and date.
12. (Sd.)
13. Assistant Commissioner, Quetta with powers of Deputy Commissioner.
14. 16-2-1985."
15. "20-2-1985 ' Accused persons present. In spite of a delay of one hour complainant is not present. Accused persons have deposed on oath that nothing is due. Complainant has later opposed and wishes to pursue it in tribunal. As per law issues are now framed and file is sent to Jirga President EAC-III.
16. (Sd)
17. Assistant Commissioner with powers of Deputy Commissioner, Quetta.
18. 20-2-1985."
19. ' Against the above appellate order, dated 6th March, 1985, respondent No, 1 filed revision (Criminal Revision No, 29 of 1985) in which, the counsel for the petitioners again raised the question of maintainability of the revision, but the learned Member of the Board of Revenue by his order dated 12th December, 1985 set aside the aforesaid order of the learned Additional Commissioner dated 6th March, 1985 on the ground that he had no power under the Ordinance to withdraw the complaint from the Assistant Commissioner/Deputy Commissioner, Quetta having jurisdiction. It also seems that after the disposal of the above Revision, the petitioners filed a revision under section 24 of the Ordinance (Criminal Revision No, 6 of d986) before the learned Member of the.
20. Board of Revenue, which was dismissed by an order, dated 9th October, 1986 on the ground that allowing of the above revision would amount to reviewing of the earlier order, dated 12th December, 1985 passed by a learned Member of the Board of Revenue upon respondent No, l's revision. The petitioners thereafter, have filed the present two petitions, in which, it has been averred that the private complaint has been filed out of sheer malice and vindictiveness with the object to coerce and pressurise the Company and the petitioners into yielding to respondent No, l's entirely baseless, unlawful and extortionist demands.
3. Neither the official respondents, nor the private respondent has filed any counter-affidavit to the first and second petitions, and, therefore, the averments contained in the above petitions remained unrebutted. Private respondent submitted that he would rely upon the arguments of the learned Advocate-General and would not like to make any submissions in addition to the same.
3. Messrs Raja M. Afsar and Ayyaz Zahoor, Advocates appearing for the petitioners in support of the above petitions have urged as follows :-
(1) That a perusal of the private complaint and the supporting statements recorded by the learned Honorary Magistrate indicates that no offence under section 420/406, P. P. C. Was made out and, therefore, the private complaint should have been dismissed ;
(ii) That since the respondent No, 1 had filed the above private complaint mala fidely pressing into service the provisions of the Ordinance, amounts to abuse of process of Court ;
(iii) That the learned Additional Commissioner upon appeal having come to the conclusion that the matter was of civil nature and of which respondent No, 1 had also filed a civil suit, should not have remanded the case to the District Magistrate/Deputy Commissioner for holding preliminary enquiry, as it would cause harassm ent to the petitioners who are no longer in service of the Company and are no longer residing in Baluchistan ; and
(iv) That the instant case is a fit case, in which, this Court should exercise its Constitutional jurisdiction. Whereas, Mr. Yaqub Khan Yousufzai, learned Advocate-General appearing for the official respondents has contended as follows :-
(i) That since the petitioners in their earlier petitions of 1985 had raised the very plea and as the same was not granted, the present first and second petitions on the same question are not maintainable :
(ii) That the learned Additional Commissioner in terms of subsection (5) of section 4 of the Ordinance was competent to order further inquiry by the Deputy Commissioner and that the order of the learned Member of the Board of Revenue was not justified ;
(iii) That since the learned Additional Commissioner had the power under the Ordinance, this Court cannot declare the order of the learned Additional Commissioner as being without lawful authority ; and
(iv) That the exercise of Constitutional jurisdiction in the instant case, would not be justified.
21. 4.It would be appropriate to take up the -first contention of Mr. Yaqub Khan Yousufzai, learned Advocate-General that since the petitioners had filed earlier petitions, namely, Constitutional Petitions Nos. 8 of 1985 and 9 of 1985 and as in the said petitions, they had agitated the question of maintainability of the private complaint and as the same was not allowed, the present two petitions are not competent, it may be observed that a perusal of the judgment, dated 5th May, 1985 passed in the aforesaid two earlier Constitutional petitions indicates that this Court declined to examine the question of maintainability of the private complaint by observing that the same could be agitated before the learned Member of the Board of Revenue, therefore, it cannot be urged that the above judgment constitutes res judicata for the purpose of the present two petitions. After the passing of the above judgment by this Court, factually the petitioners agitated the above question of maintainability of the private complaint before the learned Member of the Board of Revenue in the revision filed by respondent No, 1, which was disposed of on 12th December, 1985 and I also in their separate revision petition, which has been disposed of on 9th October, 1986.
22. The learned Members of the Board of Revenue who heard the above two revisions did not go into the above question.
23. ' In this view of the matter, the above contention of Mr. Yaqub Khan Yousufzai, learned Advocate- General is untenable.
24. 5.Adverting to the first and second submissions of learned counsel for the petitioners that a perusal of the private complaint and the supporting statements indicates that no case of offences under section 420/ 406, P. P. C. Is made out and, therefore, the complaint should have been dismissed and that respondent No, 1 pressed into service the provisions of the Ordinance mala fidely, which amounted to abuse of process of Court, it may be observed that we have perused the private complaint, three statements recorded by the learned Honorary Magistrate and we find that the private complaint is vague on material particulars, inasmuch as, it has not been stated what was the total cost of the materials and the services rendered, how much amount was received by respondent No, 1, when the petitioners drew the various amounts under bogus names and when they entered into conspiracy to defraud respondent No,
1. The two statements of the witnesses, namely, Syed Agha son of Syed Saleem Shah and Najeebullah son of Hameedullah do not disclose even indirectly a criminal liability. It is alleged in the above statements that in their presence the petitioner Mohiuddin had promised to pay the alleged dues, but, thereafter, he did not pay.
25. ' Mr. Raja M. Afsar, learned counsel for the petitioner in the first petition has referred to the following cases :- (i)J. S. Daver v. 'Oat Qadir and another PLD 1962 (W. P.) Pesh.
26. 107.
(ii) Jamot Ghulam Muhammad and 3 others v. The State and another 1972 P Cr. L J 1130.
(iii) Mst. Hamida v. The State and another PLD 1973 Kar.
27. 478.
(iv) Mst. Nasreen Begurn and 3 others v. Muhammad Younis and another 1975 P Cr. L J 647.
(v) Muhammad Moosa and another v. Muhammad Abbas and 3 others PLD 1975 Kar.
28. 1054.
(vi) Mst. Rehana and 4 others v. Nawab Khan 1975 P Cr. L J 380, and
(vii) Hakim Jamshed Ahmed Khan v. Fateh Muhammad and 2 others 1984 P Cr. L J 1540.
29. ' In the above cases, the High Courts had quashed the proceedings upon finding that the private complaints did not disclose a criminal liability and, therefore, invoking of the criminal jurisdiction amounted to abuse of process of Court.
30. ' On the other hand, Mr. Yaqub Khan Yousufzai, learned Advocate-General has referred to the following cases :-
(i) Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 P C 18.
31. (ii)Muhammad Samiullah Khan and another v. The State PLD 1963 SC 237.
(iii) Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 ; and
(iv) Mian Munir Ahmad v. The State 1983 P Cr. L J 1043.
32. ' In the above cases, it has been held that the scope of section 561-A, Cr. P. C. Is limited to avert abuse of process of Court and that it cannot be pressed into service where other express remedy is provided by the Code, fundamental different.
33. 6.We are inclined to hold that in a constitutional petition, the I provisions of section 561-A, Cr. P. C.
34. Cannot be pressed into service., However, the pronouncements of the superior Courts on the question of criminal liability in civil transactions and what constitutes abuse of process of Court, are relevant for determining, whether respondent No, l's above private complaint is bona fide or mala fide.
35. 7.Before taking up the other submissions of the learned counsel for the petitioners, it may be pertinent here to dilate upon the submission of Mr. Yaqub Khan Yousufzai, learned Advocate- General that under subsection (5) of section 4 of the Ordinance, the learned Additional Commissioner could have ordered holding of enquiry, it may be observed that the above subsection (5) of section 4 of the Ordinance was added to by Ordinance XIV of 1980 gazetted on 14th October, 1980 providing that the Deputy Commissioner or Political Agent may direct an enquiry or investigation to be made by such person as he thinks fit for the purpose of ascertaining truth or falsehood of a complaint and such other person shall for the purpose of the said enquiry or investigation exercise all the powers conferred by the Code of Criminal Procedure, 1898 or an Officer-in-Charge of the Police Station. It further provides that if the result of the enquiry/ investigation indicates that no offence has been committed, the Deputy Commissioner or the Political Agent may, instead of making reference to tribunal, dismiss the complaint.
36. ' There is no doubt that under the above subsection (5) of section 4 of the Ordinance, a Deputy Commissioner or a Political Agent, which will include the Appellate Authority i. e. The Commissioner, may order enquiry into the truth or falsehood of a complaint by any person. However, the point in issue is, whether in the instant case, the learned Additional Commissioner was justified to order further enquiry after having conclude that the private complaint and the supporting statements disclosed a case of civil nature, in respect of which, a civil suit was pending for , adjudication. It has been consistently held by the superior Courts including in some of the above cases cited by Raja M.
37. Afsar, Advocate that in a private complaint, a Court should be more careful as compared to a State criminal case, as to the bona fide of the complainant, particularly if the complainant and the arraigned accused had some civil transaction between them preceding to the filing of the complaint, as it is not uncommon that in order to bring pressure or to harass one of the parties to a civil transaction, the provisions of the criminal law are pressed into service. As pointed out hereinabove that the private complaint lacked material particulars and the supporting statements particularly of the two F witnesses did not make out any criminal case, In our view, respondent No, 1 had filed the above private complaint in order to pressurise the Company and its employees though the dispute was of civil nature.
8. This leads us to the question, whether we should exercise Constitutional jurisdiction. We may point out that when the two petitioners had filed the above Constitutional Petitions Nos. 8 of 1985 and 9 of 1985,G we had declined to go into the merits of the question, whether the private complaint was justified or not and whether it amounted to abuse of process of Court, as we thought that the petitioners could agitate the above question before the learned Member of the Board of Revenue, which is revisional authority under the Ordinance. The High Court is generally reluctant to allow the parties to bypass the hierarch) of the forums provided under the special laws. In the instant case, the petitioners had agitated the above point Lahore the Board of Revenue, but could not get any redress. Their grievance is that they are no longer residents of Baluchistan after having left the services of the Company and, therefore, it would cause erase injustice, if they were made to go through the ordeal of facing a trial on the basis of a private complaint, which apparently was moved for mato fide reasons, as it would not only cause inconvenience to them but won't also cause incurring of substantial expenses.
38. ' We have given our serious thought to the above aspect and also have gone through the case-law cited by the learned counsel for the parties. Mr. Raja Afsar, learned counsel for the petitioner in the first petition has referred to the following cases :-
(1) Dr. Abdul Ailed v. The Political Agent, Kurratn Agency and 2 others PLD 1970 Lah, 888, in which, it was held that once a complaint under the F. C. R. 1901 was consigned to record for non- prosecution, the aggrieved party should have recourse to proper remedy under law i. e. Revision before the Commissioner and as it was not filed, therefore, the order of the Commissioner of reviving the same was illegal and all subsequent proceedings vitiated. The High Court allowed a constitutional petition and the proceedings were quashed.
(ii) Mir Dost Muhammad v. Government of Baluchistan and 3 others PLD 1980 Quetta 1. In the above case, a Constitutional petition was allowed on the ground that the Assistant Commissioner after taking cognizance under section 4 of the Ordinance was bound to refer the case to tribunal for trial and his direction to Naib-Tehsildar for holding investigation into the matter was illegal, void and without lawful authority.
(iii) Muhammad Hanif and another v; Assistant Commissioner with powers of Deputy Commissioner, Kalat and 2 others 1986 P Cr. L J, 292, in which the facts were that private respondent Qadir Bux was married to one Mst. Hameeda sister of petitioner No, 1 in 1979. Upon relations having become strained between the spouses Mst. Hameeda left the house of the private respondent and came to Noushki to reside with her mother. New days thereafter, respondent No, 2 filed a complaint on 15th July, 1982 under section 494/424, P. P. C. Against the petitioner No, 1 alleging that he had taken away Mst. Hameeda without permission alongwith ornaments and other articles mentioned in the complaint. Upon the submission of report by the S. H.O., the Assistant Commissioner, Kalat dismissed the above complaint and consigned the same to record, but his successor in-office took cognizance of the offence on 5th January, 1985 and issued warrants of arrest. The revision filed before the Board of Revenue was dismissed. Thereupon, a constitutional petition was filed, which was resisted by the private respondent, inter (Ilia, on the ground that the same was not competent. While allowing the above petition, the following observations were made "7. Now it has to be seen whether relief by way of constitutional petition can be availed in view of objection of the respondent that alternate remedy could be resorted to by the petitioner. It may be observed that action taken by respondent No, 1 is in flagrant violation of law and in the exercise of jurisdiction not vested in him thereby likely to cause injustice, and harassment to petitioners. As held above the forums under Ordinance II have no jurisdiction to deal with accusation in this case.
39. Therefore, it would not be proper to leave petitioners at the mercy of those authorities and to be confronted with sufferings. It may be observed that in an appropriate case, showing complete lack of jurisdiction, misexercise of powers, disregard of law, wholly without lawful authority, palpably arbitrary or based on proved make fides, writ jurisdiction can be directly invoked to rectify patent illegalities and excess of authority jurisdiction apparent on record. In this behalf reference can be had to observations in following cases :- "(1) The Murree Brewery Co. Ltd. v. Pakistan through Secretary of Government of Pakistan Works Division PLD 1972 SC 279,
(ii) Syed Ali Abbas v: Vissan Singh PLD 1969 SC 294.
(iii) Salobka Steel Mills v. Director-General Coast Guards of Pakistan PLD 1981 Quetta 1.
(iv) Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244.
40. (v)Ch. Ghulam Ali v. Commissioner, Lahore Division PLD 1981 Lah.
41. 368.
(vi) Syed Riaz Hussain Zaidi v. Muhammad Iqbal and others PLD 1981 IA.
42. 215.
43. ' Keeping in view facts and circumstances discussed above we are persuaded to hold that this is a fit case for entertaining writ irrespective of alleged alternate remedy."
44. ' Whereas, Mr. Ayyaz Zahoor, learned counsel appearing for the petitioner in the second petition has referred to the following cases (i)The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279, in which, the honourable Supreme Court of Pakistan held that the rule that the High Court will not entertain writ petition when other appropriate remedy available, is not a rule of law barring jurisdiction, but the rule by which Court regulates its jurisdiction. It was also held that if the order of statutory body is attacked on the ground that it was wholly without authority, partial, unjust and mala fide, the High Court in exercise of its writ jurisdiction has the power to grant relief to the aggrieved party without his invoking alternate remedy.
(ii) Chief Land Commissioner, Punjab, Lahore v. Makhdoom Syed Nazar Hussain Shah and 13 others 1975 SCMR 352, in which, the honourable Supreme Court of Pakistan while declining leave to appeal against a judgment of the Lahore High Court held that the High Court is competent to interfere with orders of tribunals, if such orders are based on misreading of evidence or suffer from any error apparent on face of record.
(iii) Maqbool Ahmad Sharif v. National Industrial Relations Commission, Islamabad and 2 athers PLD 1977 Lah.
368. In the above case, a learned Single Judge of the Lahore High Court held that writ of certiorari under Article 199 of the Constitution of Pakistan, 1973 cannot be issued when remedy to appeal to another tribunal is provided. It was also held that certiorari may be granted in case of absence or excess of jurisdiction or where impugned order suffers from illegality on face of record.
(iv) Messrs National Tyre and Rubber Co., Karachi v. Subedar Fazal Rahman and 2 others PLD 1977 Kar.
33. In the above case. a learned Single Judge of the erstwhile High Court of Sind and Baluchistan held that finding of faCt shown to be contrary to establi,hed facts on record or based on misreading of facts, could be disturbed in exercise of constitutional jurisdiction.
45. ' On the other hand, Mr. Yaqub Khan Yousufzai, learned Advocate-General appearing for the official respondents has referred to the following cases :-
(i) Roza Muhammad and 5 others v. Member, Board of Revenue, Baltwhigan, Quetta and another PLD 1979 Quetta 106 in which, a Dives; Bench of this Court held that the grant or refusal of bail was within the discretion of the relevant authority under Ordinance II of 1954 and that mere fact that such discretion was not exercised properly or was exercised wrongly, would not justify interference by the High Court in its Constitutional jurisdiction.
(iii) Abdul Rehman Baja v. Sultan and 9 others PLD 1981 SC 522. In the above case, the honourable Supreme Court held that a Court or tribunal set-up under the Ordinance having jurisdiction to decide a particular matter, has jurisdiction to decide it rightly or wrongly.
46. ' In this regard, reference may also be made to the case of Sharbat Khan and others v. Haji Lal Gul and others (1) in which, the fact were that the Additional Commissioner cancelled the bail granted to the accused under the Ordinance, which order was impugned through a Constitutional Petition in this Court, but the same was dismissed by a Division Bench of this Court through a judgment reported in 1984 P Cr. L J 411. Upon appeal, the honourable Supreme Court of Pakistan granted bail through the judgment reported above.
9. We are inclined to hold that though Constitutional jurisdiction is not intended or designed to correct the erroneous views on questions of facts or law recorded by a competent forum provided under the relevant law, but at the same time, Constitutional jurisdiction can be pressed into service when a competent forum fails to exercise jurisdiction vested in it, or when while exercising jurisdiction exceeds its jurisdiction or when it acts in violation of some provision of law or when the.
47. Jurisdiction is pressed into service nzala fidely or the impugned order is contrary to the evidence on record, or is based on misreading of evidence. In the instant case, the learned Additional Commissioner having concluded on the basis of the material before him that the dispute was of civil nature, of which, a civil suit was pending for adjudication and which view was in consonance with the matetial on record, in our view, acted in excess of jurisdiction or without lawful authority by remanding the case to the Deputy Commissioner for enquiry. If we were not to interfere in the instant case, it will result in grave miscarriage of justice. Admittedly, the two petitioners are no longer in the employment of the Company and they are no longer residing in Baluchistan; admittedly, as per averment in the petitions, which have not been rebutted by filing any counter- affidavit, the works had already been completed. If the petitioners are to be made to go through the ordeal of trial of a private complaint, which is manifestly filed ma/a fidely immediately upon termination of respondent No, l's petty contract for supply of materials etc. It would put the petitioners not only to inconvenience but would cause harassment and financial loss of coming over to Quetta from other Province for attending the case. It may also be pointed out that from the conduct of respondent No, 1, it is evident that his object is to. Harass the petitioners, inasmuch as, on 16th February, 1985 he made an offer before the learned Assistant Commissioner not to press his private complaint, if the petitioners were to take oath on Holy Qur'an, but when they took the
(1) 1984 SCMR 616 oath on 20th February, 1985 on Holy Qur'an, respondent No, 1 went back from his commitment.
10. We, therefore, allow the above two petitions and declare that the appellate order, dated 6th March, 1985 passed by the learned Additional Commissioner, Quetta, quoted hereinabove, to the extent of remand of the y case and the M. B. R.'s order, dated 12th December, 1985 are without lawful authority and of no legal effect. In consequence thereof, the proceedings pending before respondent No 2 are also declared to be without lawful authority and of no legal effect, There shall be no orders as to cost.