' AJMAL MIAN, ACTG. C.J.-- This petition is directed against the orders dated 24-9-1984, and 6-2- 1986, passed by respondents Nos.3 and 4 respectively.
2. The brief facts leading to filing of the above petition are that on 24-10-1970 an FIR was lodged by the petitioner No,1 (nephew of deceased Naik Ali Muhammad) with the Tehsildar Turbat, about the killing of his aforesaid uncle. After the investigation of the case the challan was submitted against respondent No,1, his brother Pir Muhammad and two other persons in the Court of Assistant Commissioner Turbat, exercising the powers of Deputy Commissioner, who referred the case to a tribunal on 11-3-1971 in terms of the Criminal Law (Special Provisions) Ordinance, 1968, (hereinafter referred to as the Ordinance). The tribunal submitted its unanimous award on 15-9-1971, recording finding of guilt against respondent No,1 (Gul Mohammad) but acquittal in respect of the remaining three c-o-accused. The above award was accepted by the Assistant Commissioner by his order dated 1-10-1971, he convicted respondent No,1, sentenced him 7. Years, R.I. And to pay a fine of Rs,4,000 or In default of payment three years' further R.I. Respondent No,1 being aggrieved by the above order filed an appeal before the learned Commissioner Mekran Division at Turbat, who accepted the same and ordered reconstitution of the tribunal. However, respondent No,1 filed a revision before the Member Board of Revenue Baluchistan, against the above remand order. But the same was dismissed by an order dated 6-7-1972. After that the Assistant Commissioner constituted a new tribunal which submitted its fresh award on 25-8-1977, again recommending conviction of respondent No,1 and acquittal of other co-accused. The Deputy Commissioner accepted the above award and again awarded 7 years' R.I. And a fine of Rs,4,000 or in default three years further R.I. Respondent No,1 again filed an appeal against the above order before the Commissioner Turbat, who accepted the same by his order dated 31-10-1978 and remanded the case to the Deputy Commissioner for giving opportunity of being heard to the respondent No,1.
Against the above remand order respondent No,1 filed a revision before the Member Board of Revenue Baluchistan, which was accepted by an order dated 29-9-1979 and respondent No,1 was acquitted. Against the above order the present petitioner No,1 filed a Constitutional Petition No,136 of 1981 in this Court, which was allowed by a judgment dated 14-11-1983 whereby the aforesaid order of acquittal of the Member Board of Revenue dated 29-9-1971 was set aside and the aforesaid Commissioner's remand order dated 31-10-1978 was restored. In pursuance of the above order of the Commissioner dated 31-10-1978, the parties were heard by the Deputy Commissioner, who by his order dated 18-4-1984 third time convicted respondent No,1 and awarded him 7 years'
R.I. And a fine of Rs,4,000 and in default of payment further R.I. Of three years. Against the above order respondent No,1 filed an appeal before the Commissioner Mekran at Turbat, who by his order dated 24-9-1984 maintained the conviction but reduced the sentence to the period which respondent No,1 had already undergone as under-trial prisoner which according to the Commissioner was 9 years. Against the above order, Petitioner No,1 filed a revision before the Member Board of Revenue, who by his order dated 6-2-1986 dismissed the revision and maintained the aforesaid order of the Commissioner. He also held that factually respondent No,1 remained under-trial prisoner for snore than two years and not 9 years as was stated by the Commissioner in his order. He also observed that respondent No,1 faced ordeal of repeated trial for nearly 14 years. He was also of the view that respondent No,1 was entitled to the benefit of section 382-B, Cr.P.C.
3. Being aggrieved by the above order, the petitioner has filed the present petition. The above petition was admitted to regular hearing on 21-10-1986, inter alia, to consider the following points:-
(i) In view of section 3 r/w section 12 of the Ordinance II of 1968, benefit provided for under section 382-B, Cr.P.C. Is not available to the accused convicted as a result of trial under the said Ordinance.
(ii) Even otherwise the learned M.B.R. After having held that the respondent No,1 has not completed seven years' R.I., was not justified in maintaining the order of learned Commissioner.
' Mr. Ehsanul Hague, learned counsel for the petitioners in support of the above petition has urged as follows:--
(i) That in view of subsection (2) of section 3 of the Ordinance, the provision of section 382-B, Cr.P.C.
Is not applicable to a trial in terms of the Ordinance.
(ii) That factually, it is-incorrect that respondent No,1 remained as under-trial prisoner for 9 years as held by the Commissioner.
(iii) That even otherwise on merits the learned Commissioner was not justified and so also the learned Member Board of Revenue to reduce the sentence of respondent No,1 from 7 years' R.I. And fine of Rs,4,000 and in default 3 years' further R.I., to the period during which respondent No,1 remained as under-trial prisoner.
' Raja M. Afsar learned counsel appearing for respondent No,1 has contended as under:-
(i) That though the provisions of section 382-B, Cr.P.C. Are not applicable but the principles contained therein can be invoked as there is no prohibition to apply the above provisions.
(ii) That the Commissioner as appellate authority was competent on the basis of material placed before him to reduce the sentence.
(iii) That since the learned Commissioner as well as the learned Member Board of Revenue have acted within their jurisdiction, the constitutional jurisdiction of this Court cannot be pressed into service.
4. Mr. Muhammad Yakub Khan Yousufzai, learned Advocate-General appearing on Court notice has candidly submitted as under:-
(i) That though the provisions of section 382-B, Cr.P.C. Are not applicable to a trial under the Ordinance, but there is nothing inconsistent provided in the Ordinance debarring the Deputy Commissioner or the Commissioner or the Member Board of Revenue from applying the principles contained in the above provisions.
5. Mr. Basharatullah, learned counsel appearing as amicus-curiae had first submitted that the provision of section 382-B, Cr.P.C. Attracted to even in case of award of sentences under section 12 the Ordinance, however, after resuming his arguments after tea-break he took a contrary stand that the above provisions are Applica only in Quetta and Nasirabad Sub-Divisions and not in any of area.
6. Mr. Muhammad Aslam Chishti appearing as amicus-curai submitted as under:-
(i) That under section 24 (2) of the Ordinance the Government (which powers are exercised by the Board of Revenue) been authorised to pass such order as it may deem fit al therefore, the application of the provisions of section 382Cr. P.C. By the learned Member Board of Revenue in instant case cannot be said to be without jurisdiction.
(ii) That the Government being the rules framing authority under section 31 of the Ordinance can frame a rule contain provisions of section 382-B, Cr.P.C.
(iii) That though the Member Board of Revenue has awarded benefit of section 382-B, Cr.P.C. As indicated from impugned order but the forums below him have not been apply the provisions of above section 382-B, Cr.P.C. Which is caus discrimination between the convicts and, therefore, reason conclusion would be that the' above provisions of section 382Cr.P.C. Are available to all the forums provided for uni the Ordinance.
7. Mr. Ehsanul Haq, learned counsel for the petitioners furtherance of his above first submission that in view of subsect (2) of Section 3 of the Ordinance, the provisions of Section 382 Cr.P.C. Are not applicable to a trial in terms of the Ordinance referred to the above provision, which reads as follows:- "3 (2)--Except as otherwise provided in this Ordinance, provisions of the Evidence Act, 1872 (I of 1872) and the C of Criminal Procedure, 1898 (V of 1898), shall not apply any proceedings under this Ordinance."
' A perusal of the above quoted subsection (2) of Section-: the Ordinance indicates that except as otherwise provided in Ordinance, the provisions of the Evidence Act. 1872 (I of 1872) the Code of Criminal Procedure, 1898 (V of 1898) are not application to any proceedings under the Ordinance.
'Otherwise' has t provided, inter-alia, in the ,following provisions:-
(i) That second proviso to Section 9 and second provision subsection (1) of Section 19, which provide that the provision of Sections 121 to 126 of the Evidence Act, 1872 (I of IJ shall apply to any proceedings before a tribunal as they al to proceedings before a Judge or a Magistrate;
(ii) That Section 10 of the Ordinance provides that for the purl of the performance of its functions under this Ordinance, tribunal shall have the same powers as are vested in a C under the Code of Criminal Procedure, 1898 (V of 1898 respect of enforcing the attendance of any witness or production of any document or other thing; :iii) That sub-clause (iv) of clause (b) of Section 12 provides that subject to the provisions of Section 393 of the Code of Criminal Procedure, 1898 (V of 1898), pass a sentence of whipping, or of whipping and imprisonment of either description not exceeding five years;
(iv) That subsection (1) of section 16 provides that a scheduled offence shall be bailable or non- bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898 (V of 1898), and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a court has under that Code;
(v) That subsection (6) of Section .17 provides that where the Commissioner or the Deputy Commissioner is of opinion that sufficient grounds exist for making an order under subsection [ (1), he may, either in lieu of or in addition to, such order, by order in writing, direct that the person concerned shall notify his residence and any change of residence in the manner prescribed by Section 565 of the Code of Criminal Procedure, 1898 (V of 1898), during such term, not exceeding three years, as may be specified in the order;
(vi) That subsection(3) of Section 23 provides that the Commissioner may, in deciding an appeal under subsection (1), exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure, 1898 (V of 1898), and may also enhance any sentence; :vii) That Section 25 which relates to the execution of sentence, interalia, provides that any other sentence including a sentence of imprisonment in default of payment of fine, shall be executed in the manner provided for the execution of such sentence passed by the Court under the Code of Criminal Procedure, 1898 (V of 1898); and :viii) That Section 26 provides that Government shall have the same powers of suspension, remission and commutation in respect of sentences passed under this Ordinance as it has under sections 401 and 402 of the Code of Criminal Procedure, 1898 (V of 1898) in respect of sentences passed under that Code.
From the above-quoted provisions of the Ordinance, it is evident at the legislature has expressly provided the application of some of te provisions of the Evidence Act and the Code of Criminal Procedure, high provisions it intended to make applicable to any proceedings ider the Ordinance.
As pointed out hereinabove, the exclusion of application of the provisions of the Evidence Act and the. Code of criminal Procedure are subject to the rider as otherwise provided in Ordinance and, therefore, the exclusion is not absolute or total.
' Mr. Ehsanul Haq, learned counsel for the petitioners- has submitted that the expressions "shall not apply to any proceeding order this Ordinance" are of wide connotation and it will cover the age from the commencement of the trial till the imposition and direction of the sentence. In furtherance of his above submission, has referred to the following cases:-
(i) Jan Muhammad and another v. Home Secretary Government of West Pakistan and others, reported in PLD 1968 Lahore, 1455, in which, a Full Bench- comprising of five Judges of the erstwhile High Court of West Pakistan at Lahore while construing the words "proceedings under this Act" i.e; employed in Section 25 of the West Pakistan Criminal Law (Amendment) Act (VII of 1963), observed that it would include any step taken towards the further progress of a cause in Court or before a tribunal and that it is a step towards the objective to be achieved, say for instance the judgment in a pending suit. It was further held that the proceeding commences with the first step by which the machinery of law is put into motion in order to take cognizance of the case and include all possible steps and actions under the law from its commencement to the execution of the judgment;
(ii) Ghulam Muhammad and 3 others, v. The State reported in PLD 1979 Quetta,
1. In the above case, a learned Single Judge of this Court while construing the word "proceedings" used in the Ordinance held that generally it would mean "all what is done in a case" and would include every step and transaction commencing from the first step whereby the machinery of law is put into action upto the stage of the case where it concludes and does not require any further action and that this last stage, would not necessarily mean the stage of judgment, for it may further include all steps taken till the stage of the execution of the judgment.
' The above Lahore case of PLD 1968 Lahore page-1455 was relied upon.
(iii) Meher Gui v. Member, Board of Revenue, Quetta and 4 others, reported in PLD 1982 Quetta, 103, in which, Zakaullah ,Lodi, the then Acting Chief Justice while construing the word "proceedings" held that the word "proceedings" when interpreted generally in connection with a criminal case, would carry vast meanings and shall cover any action taken in a case from its inception uptil the execution of the judgment".
(iv) Mangoo v. Jeewan and 2 others, reported in PLD 1979 SC (A J & K) page-67. In the above case the Honourable Supreme Court of Azad Jammu & Kashmir while construing the term "pending proceeding" used in Section 16 of the Judicial Boards Act relied upon the judgment of Anwarul Haq, J in the case of Abdul Rashid and another v. Muhammad Hafeez and another, reported in PLD 1963 (W.P.) Lahore, page-414, and held that it should be a competent proceeding.
' Mr. Raja M. Afsar, learned counsel for the respondent No,1 has not contested the above legal position, nor Mr. Yaqub Khan Yousufzai, learned Advocate-General and Mr. Muhammad Aslam Chishti, Advocate appearing as amicus-curiae.
' However, Mr. Basharatullah, learned counsel appearing as amicus curiae had contended that by virtue of second part of Section 25 relating to the execution of the sentence which provides that any other sentence including a sentence of imprisonment in default of payment of fine shall be executed in the manner provided for the execution of such sentence passed by a Court under the Code of Criminal Procedure, 1898 (V of 1898), the provisions of Chapter 28 to the Code of Criminal Procedure are attracted to which includes Section 382-B, Cr. P.C.
' In furtherance of his above submission, he had referred to the case of Muhammad Bashir and 7 others, v. Piran Ditta, reported in PLD 1976 Lah. 1338, in which, a learned Single Judge of the Lahore High Court construed the expression "in the manner hereinafter provided in Section-107, Cr.P.C." used in section 112 of the aforesaid Code. But after he resumed his arguments after the tea-break, he candidly submitted that Section 382-B, Cr.P.C. Was made applicable only in Quetta and Nasirabad, Sub-Divisions and, therefore, is not applicable to the proceedings under the Ordinance.
' We are also inclined, to hold apply to any proceeding under this (2) of Section 3 of the Ordinance, application of the provisions of the Criminal Procedure from the stage proceedings till the execution of the rider "unless otherwise provided for has already been highlighted hereinabove that the expression "shall not Ordinance" used in subsection is wide enough to exclude the Evidence Act and the Code of the commencement of the judgment subject to the above in the Ordinance itself", which eve.
' Mr. Yaqub Khan Yousufzai, learned Advocate-General has invited our attention to the following cases:-
(i) Syed Essa Noori v. Deputy Commissioner, Turbat and 2 others, reported in PLD 1979 Quetta, 188, in which, a Division Bench of this Court, held, that a tribunal under the Ordinance cannot be made equal with criminal Courts under the Code of Criminal Procedure and that tribunal is not a criminal Court.
(ii) Syed Hashim Ali Shah v. President Summary Military Court Karachi etc. Reported in 1984 P Cr. L J 1379. In the above case, a Division Bench of the Sind High Court held that provisions of Section 382- B, Cr.P.C. Are not applicable to Summary Military Courts.
Here it may be advantageous to reproduce Section 382-B, Cr.P.C., which reads as follows:- "382-B.--Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused was detained in custody for such offence."
A plain reading of the above-quoted Section indicates that the above section is attracted to when a court decides to pass a sentence of imprisonment on an accused for an offence. If the authority which C is to impose the sentence is not a court in the ordinary parlance, the above Section is not attracted to. In the above Quetta case of Syed Essa Noori v. Deputy Commissioner, Turbat and 2 others, reported in PLD 1979 Quetta, 188, it was pointed out that though the term "criminal court" has not been defined, but in general connotation it means a court as mentioned in the Code of Criminal Procedure. Even otherwise, as pointed out hereinabove, sub-section (2) of Section-3 of the Ordinance, excludes the application, inter alia, of the provisions of the Code of Criminal Procedure to any proceedings under the Ordinance, unless otherwise provided for.
In this view of the matter, we are inclined to hold that Section 382-B, Cr. P.C. Is not applicable by statutory force to a proceeding E under the Ordinance.
' However, it was submitted by Mr. Yaqub Khan Yousufzai learned Advocate-General as well as Mr. Muhammad Aslam Chishti, Advocate that if the above provisions of Section 382-B, Cr.P.C. Are invoked by a Deputy Commissioner or a Commissioner or by the Board of Revenue, it would not violate any provision of the Ordinance or any other law.
' Mr. Muhammad Aslam Chishti, learned counsel appearing as amicus-curiae has invited our attention to the fact that the learned Member of the Board of Revenue who exercises the powers of Provincial Government under Section-24 of the Ordinance has held that Section 382-B, Cr.P.C. Is applicable in the instant case. He has further invited our attention to another order of learned Member of the Board of Revenue, in which, also another learned Member of the Board of Revenue, took the view that Section 382-B, Cr.P.C. Is applicable to a proceeding under the Ordinance. He has, therefore, contended that though the learned Member of the Board of Revenue has invoked the above provision of Section 382-B, Cr.P.C. But the Commissioners and the Deputy Commissioners are not pressing into service the same, with the result that it is causing discrimination between the convicts inasmuch as, some get the benefit of the above provision, while the others do not. He has also submitted that since under the aforesaid subsection (2) of Section 24 of the Ordinance, the Board of Revenue has been empowered, inter alia to pass such order, as it may think fit except that it cannot pass a sentence which the Deputy Commissioner could not have passed under the Ordinance, the invoking of Section 382-B, Cr.P.C. By the learned Member of the Board of Revenue does not violate any provision of the Ordinance or any other law.
' In furtherance of his submission, Mr. Muhammad Aslam Chishti, learned counsel appearing as amicus-curiae, has referred to the following cases:-
(i) Mst. Fatima Bibi v. Government of Azad Jammu and Kashmir, reported in PLD 1974 Azad J & K.Page-90, in which, a learned Single Judge, held, that the Criminal Procedure Code is not exhaustive and that the Court may act on principle that every procedure unless shown to be prohibited by law is permissible;
(ii) Ayub Khan and another v. Fazal Haq and others, reported in PLD 1976 SC Page-422. In the above case, it was contended that since the provision of the Civil Procedure Code were not applicable to proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, the Rent Controller was not competent to invoke the provisions of Order-5 Rule-17 C.P.C. For effecting service by affixation. It was held by the Honourable Supreme Court that his having discretion not to follow the provisions of the Code of Civil Procedure does not divest him of discretion to follow such course when necessary; ' Hidayatullah and 21 others v. Noor Muhammad and 49 others, reported in PLD 1986 Quetta, page-
107. In the above case, a Division Bench of this Court held that though the provisions of the Code of Civil Procedure are not applicable in the proceedings under the Civil Procedure (Special Provisions)
Ordinance (I of 1968), but the Deputy Commissioner or the Assistant Commissioner exercising the powers of the Deputy Commissioner was entitled to press into service the provisions of Order-5 Rule-20, C.P.C. For substituted service.
(iv) In this regard, reference may also be made to the case of Mst. Akhtar Nasimi v. Martial Law Administrator, Zone "C" Karachi and 2 others, reported in PLD 1982 Karachi, page-130, in which a Division Bench .Of the Sind High Court converted the Constitutional Petitions filed against the ejectment orders passed by the Martial Law authorities as appeals in terms of Sind Military Courts (Validation of Orders) Ordinance (I of 1980) and observed as follows:- "4.(a)--From the above-cited cases, it is evident that the Court with the view to. Foster justice may take appropriate action or to adopt a procedure which is not provided for if it is not expressly prohibited by any provision of law. Since there is no express prohibition against the conversion of a writ petition into an appeal, the Court has inherent power to adopt above procedure in a fit case in the interest of justice."
We are of the view that the learned Member of the Board of Revenue by invoking the provisions of Section 382-B, Cr. P.C. Has F not violated any provision of law. The ratiodecidendi .Of the above Supreme Court case of Ayub Khan and another v. Fazal Haq and others, reported in PLD 1976 SC 422 is applicable to the instant case, namely, that the factum that the forums under the Ordinance have the discretion not to follow the technicalities of the Code of Criminal Procedure, does not divest their discretion to follow any good/beneficial provision of the Code of Criminal Procedure or the Evidence Act so long as it does not prejudice an accused person. It may also be observed that even otherwise, it is within the competence of a tribunal or authority or a court while imposing sentence upon an accused person to take into consideration all relevant factors including the factum as to how long he has already remained in jail as ari under-trial prisoner independent of the above provisions of Section 382-B, Cr.P.C.
8. Mr. Muhammad Aslam Chishti further contended that under Section 31 of the Ordinance, the Government is the rules-framing authority and that in exercise of the above power, the Government has, inter alia, framed sub-rule (2) of Rule-6 of the Criminal Law (Special Provisions)
Rules, 1968, which provides that "a confession made by an accused to a Police Officer or which appears to have been made by him as a result of torture on account of his being put in fear of bodily hurt to himself or to any other person in whom he is interested or fear of deprivation of property shall not be admissible before the tribunal; provided that so much of such confession as relates distinctly to the discovery of any fact shall be admissible", which in fact incorporates the provisions of sections 24 to 27 of the Evidence Act. He, therefore, further submitted that a rule incorporating the provisions of Section 382-B, Cr.P.C. May be framed by the Provincial Government in order to eliminate the discrimination among the convicts. He has also submitted that the endeavourance of the Courts has been to apply the provisions of the above Section 382-B, Cr.P.C.
In this regard, he has pointed out that even when originally in Section 382-B the word "may" was used and not the word "shall" which was substituted by the Code of Criminal Procedure (Second Amendment) Ordinance (71 of 1979), the Honourable Supreme Court of Pakistan made efforts to grant the benefit of the above provision to the convicts, convicted prior to the above substitution.
' In furtherance of his above submission, he has referred to the case of Manzur Ahmad v. The State, reported in 1981 SCMR page-260, in which the Honourable Supreme Court of Pakistan while dismissing the Petition for leave against the judgment of the Lahore High Court observed as follows:- "9. We feel that this petition has no merit and is, therefore, dismissed. But in view of the compromise between the parties, we would like to observe that the relevant authorities may take into consideration the period spent in jail by the accused as under-trial prisoner from the date of his arrest uptil the date of announcement of sentence of imprisonment for life, against him in the light of the recent amendment in section 382-B of the Cr.P.C. In making this observation, we are respectfully following a Full Bench judgment of this Court reported as Ali Sher v. State and 3 others (PLD 1980 SC 317)."
' He has also submitted that when two constructions of a criminal provision are possible, the one which favours the accused may be preferred to.
' In furtherance of his above submission, he has referred to the case of Haji Kadir Bux v. Province of Sind and another, reported in 1982 SCMR 582, in which, inter-alia, it was held that while construing the remedial and beneficial statutes, out of the two possible interpretations, one which is remedial and beneficial is to be preferred to.
We are also inclined to agree with the above submission of Mr. Muhammad Aslam Chishti. In our view, it will be appropriate on the part of the Provincial Government to frame a rule under Section- 31 of the Ordinance incorporating the provisions of Section 382-B, Cr.P.C. Enjoining the Deputy Commissioner or the Assistant Commissioners exercising the powers of Deputy Commissioners under the Ordinance while imposing the sentence to give adjustment of the period during which a convict remains as an under trial prisoner. This rule will not only eliminate the discrimination obtaining between the convicts under the Ordinance and that of those under the Criminal Procedure Code but it will also discourage the 'complainant parties to delay the disposal of the criminal cases mala fidely to prolong the detention of under-trial prisoners in prisons. Additionally, it will also ease to some extent congestion in the prisons. A copy of this judgment may be sent to the Provincial Department concerned for taking action in the light of the above observations.
9. 'Adverting to the merits of the case, it was vehemently urged by Mr. Ehsanul Haq, learned counsel for the petitioners that the learned Commissioner has arbitrarily reduced the sentence of 7 years to the period which the respondent No,1 had already undergone. He also invited our attention to the factum that he has wrongly stated in the order that the respondent No,1 had already remained in prison for about 9 years contrary to the actual period namely, about 2 years. He has further submitted that the learned Member of the Board of Revenue also committed the same error though corrected the period of under trial detention as about 2 years in his order.
' On the other hand, Mr. Raja M.Afsar, learned counsel for the respondent No,1 has submitted that his client was entitled to acquittal, as the other co-accused on the basis of the same evidence were acquitted, whereas, the respondent No,1 was convicted. He has further invited our attention to the Medical Certificate issued by the District Health Officer, District Turbat, Mekran Division, Turbat, dated 22nd October, 1978 produced alongwith the counter-affidavit, certifying that respondent No,1 was examined by him on 5th October, 1978, and he found him aged about 65 years and was suffering from blindness as a result of mature Catarait Right eye.
In our view, under Section-12 read with Sections 23 and 24 of the Ordinance, the imposition of the quantum of sentence is within the competence of a Deputy Commissioner, Commissioner and the Member of the Board Of Revenue and, therefore, by imposing lesser sentence as urged by the learned counsel for the pemoners, they have not acted without jurisdiction or in excess of jurisdiction. The entire record was before the Commissioner as well as before the Member of the Board of Revenue. The latter had taken into consideration, inter alia, the factum that the respondent No,1 has faced the ordeal of trial for nearly 13 years. He might have also taken into consideration the age of the respondent No,1 and the merits of the case etc. ' We, therefore, cannot in exercise of Constitutional jurisdiction interfere with the above sentence.
10. The petition is, therefore, dismissed with no order as to costs.
' We record our thanks to the learned counsel who appeared as amicus-curiae.