A brief history of the case will facilitate its understanding.
2. On 15-8-68 Haji Muhammad Sadiq (P. W. 3) of village Paharpur along with Nur Muhammad, son of Haji Muhammad Din, Chairman Town Committee, Paharpur, submitted an apple--cation to the Commissioner, D.
1. Khan, to take proceedings under the Goondas Ordinance against Muhammad Hussain petitioner, on the allegations mentioned in the application. This application was directed to D. C./S. P., D. I. Khan. Ultimately the application reached S. I. Bahadur Khan, S. H. - O. Paharpur Police Station, who after making some inquiries drew the complaint Exh. P. A. Under sections 13/14 of the Goondas Ordinance, and filed it before the Tribunal D. I. Khan. The Tribunal (District Magistrate, D. I. Khan) took cognizance of the complaint under section 5 of the West Pakistan Control of Goondas Ordinance, 1959 (hereinafter called the Ordinance) and conducted the trial as a summons case under section 10 of the Ordinance to inquire into the" truth or otherwise of the infor- -mation upon which action has been taken. In this regard the Tribunal served a notice dated 14-12- 68 upon the petitioner containing particulars of the allegations. The petitioner denied the allegations. He wanted to show cause against the allegations and to produce defence. During the inquiry the Tribunal recorded the statements of Khuda Bakhsh (P. W. 1) resident of Dhup Shaman, Chairman. Union Council Band Kurai, Ghulam Bahu (P. W. 2), resident of village Paharpur, Haji Muhammad Sadiq (P. W. 3t, one of the applicants of the application dated 15-8-68 and Bahanur Khan S. I. (P. W. 4), S. H. O. Of Police Station Paharpur. The statement of the petitioner was also recorded. He produced D. W.
1. Chaudhry Rifat Khan, ex---Chairman and resident of Paharpur, D. W.
2. Muhammad Afzal Sarbarah Lambardar of village Paharpur. In conclusion of the inquiry, the Tribunal declared the petitioner a Goonda and ordered him to furnish a bail bond for Rs. 3,000 with two sureties each for two years and Personal Bond of like amount or in default to suffer S.1. For the same. Period, by his order dated 15-3-69.
3. The petitioner went up in appeal against this order before the Additional Commissioner, D. 1.
Khan, who by his order dated 13-6-69, dismissed the appeal.
4. The petitioner has now come up on revision to this Court.
5. The learned counsel for the petitioner vehemently argued that the Tribunal and the Commissioner have not applied their mind to the evidence on record, based their conclusion on illegal evidence, acted arbitrarily and capriciously in arriving at the conclusions, that they have also ignored the evidence of P. W. 4 S. 1. Bahadur Khan, and have thus acted in the exercise of their jurisdiction illegally.
6. For the appreciation of his contention the learned counsel read the operative portions of the orders of the Tribunal and the Commissioner, which may be recapitulated with benefit:- Tribunal:- "Arguments of counsel for respondent and P. S. I. Have been heard. Record of the case perused. All the P. Ws. Deposed that the respondent is man of bad character and causes alarm to the public and issues threats verbally. He associates with bad characters. I have gone through the statements of 4 P. Ws. And 2 D. Ws.
There are good reasons to believe that the respondent is a desperate person, hence I declare him Goonda under sec--petition 14(1)(a)(e) of the West Pakistan Control of Goondas Ordinance, 1959. I order him to furnish a bail bond for Rs. 3,000 with two sureties each for two years and personal bond of like amount or in default to suffer S. I. For the same period."
Commissioner (Appellate Court): --- "I have heard the arguments of the counsel of the appellant and Prosecuting Sub-Inspector and have also perused the file. He is a previous convict. Moreover, Khuda Bakhsh Chairman and other witnesses depose against him. I do not find any grounds to interfere in the findings of the learned lower Court. The appeal is hereby dismissed."
7. It is manifest from the order of the learned Tribunal that he has declared the petitioner as Goonda because be "is a desperate person". Subsection (k) of section 13 of the Ordinance provides that "if the Tribunal is satisfied, as a result of the inquiry held under this Ordinance, that the person complained against: -
(k) defies the law generally and endangers public peace", it shall declare that such person is a Goonda, and shall direct that his name be publicly notified in the prescribed manner, and be placed on the prescribed list of "Goondas." Section 14 of the Ordinance lays:- "(1) While making a declaration under section 13, the Tribunal may act in such one or more of the following ways as it may deem fit-
(a) it may require him to furnish a bond, with one or more sureties, for such period not exceeding two years and in such amount as may be specified, to be of good behavior, provided that, where he is a minor, the bond executed by a surety or sureties only may be accepted;
(b) ------------------------------
(c) ------------------------------
(d) ------------------------------
(e) it may direct that be shall not visit or go within sur--roundings specified in the order, or any of the under-mentioned places, without the written permission of the officer in charge of the police station within whose jurisdiction such place is situated,
(2) No order under clause (d) or clause (e) of subsection. (1) shall be made operative for a period exceeding three years and without hearing the goonda in respect thereof."
8. The learned counsel for the petitioner argued that the learned Tribunal having not mentioned section 13 in it: order for the purposes of declaring the petitioner a Goonda, its action under subsection (1), (a) and (e) of section 14, is without foundation and also it has passed no specific order for the restrictions of the movements of the petitioner within certain surroundings. The learned counsel also argued that the Tribunal could not pass the order under section 14(l)(e) without affording him an opportunity of hearing as provided by subsection (2) of section 14, and as such his order under section 14(1)(e)of the Ordinance is vitiated on this ground.
9. The fundamental requirement of section 13 of the Ordinance for declaring a person Goonda is that the Tribunal should be satisfied as a result of the inquiry. This satisfaction A should be based on legal evidence and should not be arbitrary or) capricious. P. W. 1 Khuda Bakhsh is a resident and Chairman of village Dhup Shamali, which is 9 miles away from the village of the petitioner, namely, Paharpur. In his testimony before the Tribunal this witness has to grind his own axe against the petitioner. He complained that 8/9 months back the petitioner had purchased wheat worth Rs.
1,000 from him on loan but the petitioner had not paid the sale money to him even on several demands, and that the petitioner had flatly refused to pay the debt. This witness in cross- examination admitted that he had been sentenced to 20 years' R. I. In a murder case, that the petitioner belongs to a separate village which has a separate Chairman, that he made no report about his complaint of cheating against the petitioner, nor he sued the petitioner for this money.
This witness has also stated that the petitioner is a previous convict having 2/3 convictions at his credit, once when he was coming out of the jail, he had committed the theft of one blanket of the Jail for which he was convicted and sentenced to five months' R. I. He also stated that the petitioner is in habit of using abusive language to the public openly. The prosecution has not proved any conviction out of them or any other conviction for some other offence against the petitioner; nor the witness has given any specific instance of the petitioner's habit of abusive language in public.
P. W. 2 Ghulam Bahu is of course the resident of Paharpur. He stated that the petitioner always indulges in cheating and that he is in the habit of using abusive language, and that the petitioner had abused Nur Muhammad, son of Haji Din Muhammad Chairman. This witness has stated in cross-examination that the petitioner had never abused him. He has also not given any instance to the petitioner's cheating. Nur Muhammad has not come forward to make the complaint of abuses against the petitioner. P. W. 3 Haji Muhammad Sadiq is one of the signatories of the application dated 15-8-68 which he submitted before the Commissioner D. I. Khan for commen--cing inquiry against the petitioner under the Goondas Ordinance. The other signatory of this application, as said above, is Nur Muhammad, son of Haji Din Muhammad Chairman of the Town Committee, Paharpur. According to the evidence of P. W. 2 Ghulam Bahu the sister of P. W. Muhammad Sadiq is married to Din Muhammad Chairman, and that a cousin of Muhammad Sadiq P. W. Had married the petitioner, and that this woman is now not living with the petitioner. P. W. Ghulam Bahu has also deposed that Din Muhammad Chairman has a pending civil case with the petitioner. P. W. 3 Haji Muhammad Sadiq in his testi--mony before the Tribunal has painted the petitioner in blackest possible picture of his conduct and character, apparently on account of his animosity with the petitioner and his relation with Din Muhammad Chairman. The evidence of these three P. Ws., therefore, is not legal evidence for basing judicial conclusions. P. W. 4 S. I. Bahadur Khan has stated that the petitioner belongs to Paharpur, that he is a desperate character, that he quarrels with people and has been convicted for adultery and theft, that he generally defies the law and intimidates people. This witness stated in cross-examination that the petitioner was convicted for adultery on 31-7-53, but he did not know whether the petitioner had been acquitted in revision by the High Court. The witness admitted that the petitioner was acquitted on 29-12-64 in the theft case, in which he was convicted. The witness adds in cross---examination:- "There is nothing against him (petitioner) in the police record. The respondent (petitioner) has never been proceeded against under section 110, Cr. P. C. I do not remember as to how many are the Lambardars of village Paharpur. There is no evidence against the respondent of any Lambardar of Paharpur for his misbehaviour or misconduct. The Chairman of the Paharpur Town Committee is not a witness against the respondent for his bad conduct and misbehaviour whereas a Chairman from village Dhup Shamali is a witness against the respondent. There is no complaint against the respondent lodged in the Police Station prior to the application which the com-- plainant had submitted to the Commissioner D. I. Khan and which application has come to me for enquiry."
The petitioner produced a certified copy of the judgment in Criminal Revision No. 188 of 1953 of the Court of Hon'ble Judicial Commissioner, N.-W. F. P., dated 14-1-54 by which the convictions and sentences of the petitioner and one other person under section 498, P. P. C. Were set aside. The petitioner has also produced a certified copy of an order of Magistrate dated 10-4-69 wherein on complaint of Nur Muhammad, son of Haji Din Muhammad, Haji Muhammad Hussain petitioner and five others were proceeded against under sections 500/504/149, P. P. C. And they were discharged under section 253, Cr. P. C.
10. Section 18 of the Ordinance deals with appeal against the order of the Tribunal while section 19 of the Ordinance deals with the revision of Tribunal's order. Section 19 days as under:- "Revision of Tribunal's orders. In relation to any such order under section 4, or section 13, or section 16 the High Court may call for the record of the case, and if the Tribunal or the Commissioner appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally, the High Court may make such direction a3 it may deem sufficient for the rectification of the error or omission and the Tribunal or the Commissioner shall conduct itself, or himself, as the case may be accordingly."
The three clauses (a), (b) and (c) of this section of the Ordinance have been borrowed from section 115 of the Code of Civil Procedure with the omission of the words "or with material irregularity" from clause-'C'. A close reading of sections 18 and 19 of the Ordinance reveals that an order made by a Tribunal under sections 13 and 14 of the Ordinance, is within the scope of the appellate jurisdiction of the Commissioner; while only an order under section 13 has been subjected to the revisional powers of the High Court. Section 14 is conspicuously not mentioned in section 19 of the Ordinance. The learned counsel for the State argued that from an apparent reading of section 19 of the Ordinance, it is clear that an order of the Tribunal under section 14 is out of the ambit of the revisional jurisdiction of the High Court. The argument is ticklish. In the present case the order of the Tribunal is not happily worded and appears to be a combination of an order under sections 13 and 14 though section 13 is not mentioned in the order. Legally a person complained against can be declared a Goonda only under section 13 and not under section 14. A reasonable interpretation of the impugned order of the Tribunal could be that the Tribunal has declared the petitioner a Goonda under section 13 of the Ordinance and has required the petitioner to furnish a bond under section 14(1)(a) of the Ordinance besides imposing section 14(1)(c).
11. From an assessm ent and appreciation of the prosecution evidence, as discussed above, it is clear that the conclusion of the Tribunal in declaring the petitioner a Goonda on account of being a desperate person is not based on legal evidence, or well recognized judicial principles and ignores the evidence of S. 1. Bahadur Khan in cross-examination, who gave the petitioner a clean slate. It has also acted arbitrarily and capriciously is deter--mining the matter.
12. As the main ingredients of section 19 of the Ordinance and section 115 of the Civil Procedure Code are synonymous, the view that the Tribunal or the Commissioner appear to have acted in the exercise of jurisdiction illegally, can be based on authorities enunciated under section 115(c) of the Civil Procedure Code. In Khair Muhammad v. Abdul Latif (PLD 1954 Bal. 29), it has been laid: "Where important evidence has been ignored or where a lower Court comes to an erroneous conclusion upon such evidence as does exist, High Court must interfere in revision, particularly when grave injustice, which cannot be remedied in any other manner, has been done."
PLD 1957 Lah. 983), the learned Single Judge, after a review of the numerous authorities on the point, has ruled: "If the Court commits an error in the mode prescribed for the exercise of jurisdiction then the High Court has the power to interfere under section 115 of the Code of Civil Procedure.
A Judge cannot hold a fact to be proved unless there is legal proof of it. Conjecture cannot take the place of proof. It is the duty of the Court to consider to relevant and admissible evidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case.
If there is no evidence in support of the truth of a particular fact, a Court cannot hold it to be proved. And if there is legal evidence on the record, a Court cannot in giving its decision just ignore it. In case Court ignores the evidence or gives a finding when there is no evidence on record, it errs in law in the mode prescribed for the exercise of jurisdiction and acts illegally and with material irregularity, and such a case is covered by subsection (c) of section 115 of the Code of Civil Procedure. A Court will be acting irregularly and with material irregularity if coming to a conclusion a Court imports its own knowledge or shuts its eyes to the legal evidence on the record.
A Court is legally bound to apply its judicial mind to the evidence on the record and in arriving at a conclusion is required to be guided by well-recognized judicial principles. If a Court acts arbitrarily or capriciously in determining a matter in utter disregard of the legal evidence on the record or goes out of its way to decide a point without any legal evidence in support of it, then it acts in the exercise of its jurisdiction illegally and with material irregularity and a finding arrived at in such circumstances is open to revision by the High Court under section 115 of the Code of Civil Procedure."
14. In conclusion I hold that the learned Tribunal and, the Commissioner have acted in the exercise of their jurisdiction illegally and the order, declaring the petitioner to be a Goonda under section 13 of the Ordinance, are erroneous in law. I direct that the Tribunal should rectify this error by canceling the order of declaration of the petitioner as Goonda.
15. I am conscious of the limitation of my revisional powers under section 19 of the Ordinance in passing any order relating to an order of the Tribunal under section 14(1), (a) and (e) of the Ordinance, because an order under section 14 has been retracted from the revisional powers of the High Court, though it is made the subject of the powers of an appellate Court under D the Ordinance. Thus it may be presumed that after an appellate) order under section 18 of the Ordinance in the matter of section 14 of the Ordinance, the order under the latter section is meant to gain finality. Reading sections 13 and 14 together, it is inferable that the action contemplated under the latter section is consequential to and flows from the order of declaration under the former section. A fundamental principle of law has been laid in Yousaf A.I v. Muhammad Alam Zia and 2 others (PLD 1958 SC (Pak.) 104), wherein it has been declared: "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must. Unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
PLD 1969 Lah. 786) at page 800 in para. 14, it has been held: - "A general and recognized rule of law is that the jurisdiction of superior Courts is not taken away except by express words or necessary implication and that such jurisdiction cannot be ex--cluded unless there is clear language in the statute which is said to have that effect'. It is, therefore, not open to any one to argue that such jurisdiction can be effected as if it were by aside wind, by a statute containing no express words to that effect in it. Reference may be made in this connection to Maxwell on Interpretation of Statutes. Eleventh Edition, page 122, wherein it has been observed that---- It would not be inferred, for instance, from the grant of jurisdiction to a new Tribunal over certain cases; that the Legislature intended to deprive the superior Court of the jurisdiction, which it already possessed over the same case. Thus an Act which provided that if any question arose upon taking a distress it should be determined by a Commissioner of Taxes would not thereby take away the jurisdiction of the High Court to try an action for an illegal distress. Nor would that Court be ousted of its prevented jurisdiction to stop by injunction the misapplication of poor rates by reasons of the statutory power given to the Poor Law Commissioners to determine the propriety of all such expenditure. Nor did it follow in either case, that because authority was given to the Commissioners, it was taken away from the Court."
16. In this view of the law, the bond furnished by the petitioner under section 14(1)(a) and order under section 14(1)(e) of the Ordinance are declared nullity with no legal effect.
17. An order of the Tribunal under section 14(l)(e) of the Ordinance is also in operation as part of the impugned order. In the impugned order although the learned Tribunal has mentioned section 14(1)
(e), but has not passed a particular order under this clause of the section to restrict the movements of the petitioner within certain surroundings specified in the section. No such action was claimed even by the prosecution against the petitioner.
Moreover, as required by subsection (2) of section 14, no order under clause (e) of subsection (1) can be made operative without hearing the Goonda in respect thereof. Apparently the petitioner after being declared as Goonda has not been given an opportunity of being heard in this regard.
This order having been passed without affording such opportunity of hearing to the petitioner, stands vitiated on this ground also. Reference Ch. Ghulam Muhammad v. The State and 3 others (PLD 1969 Lah. 767).
18. For these reasons, this revision petition is accepted.
S. A. H.