1. AMIR-UL-MULK MENGAL, J.--This constitutional petition arises out of the following facts:- An F.I.R. Was lodged against several persons including the present petitioner under section 302/34/109, P.P.C. For murder of one Muhammad Yaqoob Lashari. After necessary investigations, cognizance of the case was taken by the Deputy Commissioner Nasirabad under the Criminal Law (Special Provisions) Ordinance II, 1968 (hereinafter referred to as Ordinance) and the case was referred to a tribunal constituted under the Ordinance. It appears that before finding of the tribunal, the legal representatives of the deceased and the accused entered into compromise. From the perusal of the record it is evident that first application for composition was moved on 4-11-1986 and the second on 5-11-1986 before the Deputy Commissioner Nasirabad requesting him to accept the compromise and acquit the petitioner as the offence is compoundable under the Ordinance. It may be pointed out here that the compromise was between the L.Rs. Of the deceased and the petitioner alone with exclusion of all the remaining accused persons. However, the Deputy Commissioner did not pass any order on the said application, thus causing grievance to the petitioner which culminated into filing of this constitutional petition, wherein it was prayed that since the Deputy Commissioner failed to exercise jurisdiction under rule 16-A of Criminal Law (Special Provisions) Rules (hereinafter referred to as Rules), hence, the detention of the petitioner be declared as being without lawful authority and thus of no legal effect. It was also prayed, that this Court may issue writ directing the respondent/ Deputy Commissioner to perform his duties under the law and pass orders on the compromise application.
2. After admitting this petition for hearing on 8-3-1987, we ordered for summoning of the record, but the record was received on 15-3-1987 and it transpired that the Deputy Commissioner Nasirabad passed orders of conviction and sentenced the petitioner to undergo rigorous imprisonment for 14 years with a fine of Rs.20,000 under section 302, P.P.C. Read with section 11(3) of the Ordinance. In case of non payment of fine the petitioner was ordered to a further rigorous imprisonment for three years. The case file was ordered to be sent to the Commissioner for confirmation as required under section 12(b)(III) of the Ordinance. In such view of the matter, this Court formulated three points for determination on 22-3-1987 which may be reproduced:-
(i) We would like to be satisfied on the point whether this petition, is still competent after passing of the order by the Deputy Commissioner under the Ordinance II, 1968, whereby he convicted, inter alia, the petitioner and awarded sentence for commission of murder?
(ii) The office is also directed to put up note on the question as to when notice was sent to Deputy Commissioner and when it was received.
(iii) Whether there is any alleged mala fide on the part of the Deputy Commissioner in passing of this order and whether this allegation can be adjudicated in the present petition which was directed against non exercise of the jurisdiction referred to in the opening pare hereinabove.
3. The learned counsel for the petitioner, Mr. Yahya Bakhtiar requested for time for filing an application for amending the constitutional petition. He thereafter filed an application seeking amendment under Order VI, rule 17 read with Order 1, rule 10, C.P.C. And along with the aforesaid application, filed an amended constitutional petition on 7-4-1987. This application for amendment was allowed by this Court on 19-4-1987. The respondent No.2 filed reply and rejoinder was filed by the petitioner on '2-5-1987.
4. We have heard at considerable length the learned counsel for the petitioner Mr. Yahya Bakhtiar and learned Advocate-General Baluchistan.
5. At the first instance Mr. Yahya Bakhtiar gave in detail the history of the case and while referring to the record, invited our attention to certain interpolations allegedly made by the Deputy Commissioner, Nasirabad. It was contended by Mr. Yahya Bakhtiar that the complainant party voluntarily entered into compromise with the petitioner. The Deputy Commissioner Nasirabad, in order to frustrate the process of law with mala fide intention maneuvered certain interpolations so as to take the compromise between the parties out of the ambit of law and thus to decide the case on merits.
6. To sum up the grounds assailing the order of the Deputy Commissioner and proceedings conducted by the tribunal, it was urged by the learned counsel for the petitioner as under:-
(1) That the Deputy Commissioner failed in exercise of his jurisdiction by not passing order on the application for compounding of the offence within 24 hours as required by rule 16-A of the rules. In this regard it was further submitted that the Deputy Commissioner was under legal obligation to have accepted the compromise within 24 hours.
(2) That the Deputy Commissioner Nasirabad acted in mala fide manner by making interpolations in the record and by passing conviction order only after when he received notice of this Court. This was done, according to the learned counsel for the petitioner, in an attempt to oust the jurisdiction of this Court.
(3) That the tribunal recommending the petitioner to be guilty, was coram non judice as the same was not constituted in accordance with the provisions of the Ordinance. Its recommendations, the order of rejection of the compromise application and the final order of conviction thus being based on such finding, are all void and nullity in the eyes of law.
(4) That the conviction recorded by the Deputy Commissioner is based on no evidence. Thus, the detention of the petitioner is unlawful.
7. The learned Advocate-General Baluchistan, on the other hand raised preliminary objection that the constitutional petition is not competent because the petitioner has been convicted under the Ordinance and he has also filed an appeal against the conviction. Furthermore, the order of conviction has been forwarded for confirmation of sentence and is pending before the Commissioner. In such view of the matter it was urged that since the petitioner has alternate remedy by way of appeal as provided under section 23 of the Ordinance, this petition is premature and may be dismissed as 'such.
8. It was next contended by the learned Advocate-General that since the competent authority under the rules, for compounding the offence under section 302, P.P.C. Is the Commissioner and not the Deputy Commissioner hence, the Deputy Commissioner could not pass any order on the aforesaid application.
9. It was also submitted that so far as the point of no evidence is concerned, the same may be looked into by the appellate Court and it is not proper to assess and evaluate evidence in a constitutional petition.
10. It was lastly contended that the Deputy Commissioner was competent under the Ordinance to change the members of the tribunal in case they fail to attend the meetings regularly. Hence no illegality has been committed to the extent of declaring the tribunal as coram non judice.
11. Regarding the contention that the Deputy Commissioner failed to pass orders on composition application suffice to say that while convicting the petitioner, such orders were passed by the Deputy Commissioner who rejected the application for compromise although on extraneous grounds. The reasons given by the Deputy Commissioner that the compromise was the result of duress and threat by the petitioner to complainant party to do away with-their lives in case they did not effect a compromise, is belied by .The fact that the concerned parties; (besides two applications moved before the Deputy Commissioner) filed affidavits in this Court affirming that they have voluntarily compromised and that they have received the amount for composition. But the pertinent question, to our considered view, is whether the Deputy Commissioner was at all competent and had jurisdiction either to accept or to reject such an application? Our attention was invited to Rule 16-A of the Rules, which may be reproduced for better appreciation:- "Rule 16-A:
(i) The application for composition may be accepted at any stage by the Deputy Commissioner, President of the tribunal or the Magistrate in whose jurisdiction the offence may have been committed."
(ii) Order on the application for compromise shall be passed by the competent authority within 24 hours of its presentation, provided that period may, in special circumstances be extended reasonably by the authority accepting the compromise for reasons to be recorded."
(iii) Authority competent to accept compromise shall satisfy itself that the compromise application has been presented by the parties to the case."
12. The learned counsel for the petitioner streneously urged that by virtue of this rule, the Deputy Commissioner was empowered to accept compromise of any offence at any stage and it is incumbent upon him to pass orders within 24 hours after receiving such an application, unless due to peculiar circumstances of a case he fails to do so, in that event he may extend this period but he has to record reasons for doing so.
13. It was contended that no such orders were passed by the Deputy Commissioner until this Court issued notice to the Deputy Commissioner, who passed the impugned order only after receiving such a notice.
14. In order to appreciate the aforesaid arguments of the learned counsel for the petitioner, we have to advert to the relevant rules framed under Ordinance regarding composition of offences. The provisions relevant for the compounding of offence under the Ordinance find mention in rules 13 to 17 of the rules (ibid).
15. Rule 13 provides that schedule offences specified in columns 1 and 2 of the first schedule may be compounded by the persons mentioned against such offences. In column 3 thereof (i.e. Without permission of any Court).
16. Similarly rule 14 contemplates that schedule offences specified in columns 1 and 2 of the second schedule may, with the permission of the Deputy Commissioner be compounded by persons mentioned against such offences in column 3 of the said schedule.
17. Likewise rule 15 provides that the schedule offences specified in columns 1 and 2 of the third schedule may with the permission of the Commissioner be compounded by the person or person mentioned against such offences in column 3 of the said schedule Mode of filing of application and procedure specified therein is contained in sub-rule (2) of rule 15.
18. Rule 15 is thus reproduced:- Rule 15: COMPOSITION OF OFFENCES WITH PERMISSION OF COMMISSIONER:-
(1) The schedule offences specified in columns 1 and 2 of the 3rd schedule may, with the permission of the Commissioner, be compounded by the person or persons mentioned against such offences in column 3 of the said schedule.
(2) An application for the composition of an offence specified in the 3rd schedule may be submitted:-
(a) Where the question of guilt or innocence of the person or persons accused of such offence has been referred to a Tribunal has not submitted and the Tribunal has not submitted its report, to the Tribunal.
(b) Where the Deputy Commissioner has not yet constituted a Tribunal for inquiring into the question of guilt or innocence of the person or persons accused of the offence or the tribunal has submitted its report, to the Deputy Commissioner.
(c) Where the ease has been submitted by the Deputy Commissioner under section 13(2) for confirmation of sentence, or an appeal has been preferred under section 23, to the Commissioner.
(3) Where an application is received by a Tribunal under clause (a) of sub-rule (2), it shall forward the same to the Commissioner, through the Deputy Commissioner, with its recommendations whether permission for compounding the offence may be granted or refused.
(4) Where an application is received by the Deputy Commissioner under clause (b) of sub-rule (2) he shall forward the same to the Commissioner, with recommendation whether the permission for compounding the offence may be granted or refused.
(5) Where an application under sub-clause (c) of sub-rule (2) is received by the Commissioner, he may, before passing orders thereon call for a report from the Deputy Commissioner, the Tribunal, or both.
19. Undisputedly, section 302, P.P.C. Is included in schedule III and is compoundable with the permission of the Commissioner (rule 15). However, sub-rule (3) of rule 15 provides that wherein application is received by the tribunal under clause (a) of sub rule (2) it shall forward the same to the Commissioner through the Deputy Commissioner with its recommendations whether permission for compounding the offence may be granted or refused. Similarly, sub-rule (4) provides that wherein an application in received by the Deputy Commissioner under clause (b), sub-rule (2) he shall forward the same to the Commissioner with recommendations whether the permission for compounding the offence may be granted or refused. But the learned counsel for the petitioner while relying on rule 16-A submitted that by virtue of this rule it is the Court of the Deputy Commissioner who is competent to accept the compromise of any offence at any stage and he is under legal obligation to pass orders within 24 hours after receiving the application for compounding the offence.
20. We have already reproduced rule 15 and rule 16-A in the preceding paras. The contentions of the learned counsel are, therefore, to be legally weighed in the light of the aforesaid rules.
21. Adverting to rule 16-A, it may be observed that the same is not well-worded. A pertinent question in this regard would be whether by rule 16-A, the Deputy Commissioner, the President of a Tribunal or a Magistrate having jurisdiction were authorised to effect a compromise within 24 hours of the presentation of the composition application and if so of what offences. In other words whether it would mean that rules 15 and 16 were impliedly repealed by rule 16-A? To answer the aforesaid two propositions, it may be profitable to reproduce the notification by which rule 16-A was included in the rules: - GOVERNMENT OF BALUCHISTAN HOME, TRIBAL AFFAIRS, TOURISM AND INF.
22. DEPARTMENT, (HOME SECTION)
23. Dated Quetta the 14th June, 1972 NOTIFICATION No SO(H)2-10/72.--In exercise of the powers conferred by section 31 of the Criminal Law (Special Provisions) Ordinance, 1968 (Ord. II of 1968) the Governor of Baluchistan is pleased to Order that in the Criminal Law (Special Provisions) Rules, 1968, notified vide No.Judl-1-3(9)/68; dated the 15th April, 1979, the following addition may be made under section 16: "16-A(1) an application for composition may be accepted at any stage by the Deputy Commissioner, the President of the Tribunal or the Magistrate in whose jurisdiction the offence may have been committed;
(2) order on the application for compromise shall be passed by the competent authority within 24 hours of its presentation provided that the period may, in special circumstances, be extended reasonably by the authority accepting the compromise for reasons to be recorded;
(3) the authority competent to accept the compromise shall satisfy itself that compromise application has been presented by the parties to the case."
24. BY ORDER OF GOVERNOR OF BALH.
25. From the bare perusal of this notification it becomes abundantly clear that rule 16-A was an addition to rule 16 as in transpired from the words "following addition may be made under section 16". (It appears that inadvertantly instead of rule 16, section 16 has been written in the notification).
26. In any case, it is an addition ostensibly with a view to accelerate the legal process in effecting a compromise between the parties. Rule 16-A otherwise is totally silent as to what are the offences which may be compounded by the Deputy Commissioner, the President of the Tribunal or a Magistrate in whose jurisdiction the offence may have been committed. Therefore, in order to find out the offences which are compoundable, there is no alternative but to have resort to rules 13, 14, 15 and 16 as well as the schedules attached to the ules. Thus, by no stretch of imagination, it can be inferred that rules 13, 14, 15 and 16 have been impliedly repealed by rule 16-A. In such view of the matter rule 16-A is to be read conjunctively along with other relevant rules and it cannot be read disjunctively as argued by the learned counsel for the petitioner. Thus, rule 16-A becomes material only in so far as it determines or limits the period for passing orders on the application for composition i.e. 24 hours after the presentation of an application for composition. It cannot be presumed that by virtue of this rule, all the relevant rules and authorities competent to pass orders on compromise applications have become dormant.
27. Another point requiring consideration in interpreting rule 16-A, is whether the provisions of the Ordinance including powers to compound an offence can come into play before taking of the cognizance of the offence by the Deputy Commissioner concerned. This proposition cropped up in a bail matter and was thoroughly examined by this Court in case of "Meter Gul v. The State" as reported in PLD 1982 Quetta 103. As there was difference of opinion, it was referred to Referee Judge and the rule of the Court thus, was that operation of the provisions of normal laws are excluded only after when the Deputy Commissioner takes cognizance of an offence and he refers it to a Tribunal for trial under the Ordinance. Prior to taking of cognizance of an offence, it is the Criminal Procedure Code which operates in the field. It was also observed inter alia, that the Ordinance becomes effective only for trial of offence. It does not operate prior to taking of cognizance of an offence or for that matter for execution of the sentence after final orders. In both the cases, it is Criminal Procedure Code which is operative.
28. This being so, the offence under section 302, P.P.C. Cannot be compounded at least by a Magistrate as contemplated in sub-rule (1) of rule 16-A, because, Magistrate finds no place and figures nowhere in the Ordinance. At the cost of repetition, it may be said that offence under section 302, P.P.C. Is not compoundable under the Criminal Procedure Code but it becomes compoundable only when it is ushered in the ambit of the Ordinance; that is to say that when the Deputy Commissioner takes cognizance of an offence under the Ordinance.
29. Similarly the word" at any stage used in rule 16-A cannot be taken to include a stage, prior to taking of cognisance of an offence by the Deputy Commissioner under the ordinance or subsequent thereto when a final order has been passed by the Deputy Commissioner or finding by the president of the Tribunal. Both the Deputy Commissioner or the Only when the matter is in their respective seisin. To attach a wider; meaning to the words" at any stage" would lead to an anomaly because if the Deputy Commissioner, the President of the Tribunal or the Magistrate (as contemplated in sub-rule (1) of rule 16-A) are said to` be competent to compound an offence when the matter is not before them, but is pending before the appellate or revisional authority, it would tantamount to usurption of the powers of the appellate Court as well as revisional Court which obviously was not the intention of the framers of the Ordinance or rules made thereunder and which otherwise leads to absurdity by making redundant rule 16. The logical conclusion therefore would be that rule 16-A is an addition to the rules in order to facilitate the process of compounding of offences but it does not bestow. Any additional powers to the authorities mentioned therein except the powers which are vested in them under rules 14, 15 and 16.
30. Another important question raised was interpretation of word "shall" as used in sub-rule (2) of rule 16-A. Mr. Yahya Bakhtiar contended that by using the word "shall" in sub-rule (2) of rule 16-A, the intention of the legislature was that as and when the parties file composition application it becomes mandatory upon the competent authority to accept the same. But in our considered view, this interpretation is devoid of any force for the reason that the word "shall" in sub-rule (2) has been used in a different context i.e. Order on application for compromise "shall" be passed within 24 hours. Order includes order of rejection as well as acceptance of compromise.
31. The offences as mentioned in first schedule read with rule 13 may be compounded without permission of the Court, but regarding offences as mentioned in schedules II and III of the rules it is clearly laid down that offences mentioned in former schedule may be compounded with permission of the Deputy Commissioner and offence mentioned in latter may be compounded with the permission of the Commissioner.
32. Besides this, rules 14, 15 and 16 contain provisions that for accepting any compromise application, the competent authority may seek recommendation of the subordinate forum. The Commissioner may seek recommendation of the Deputy Commissioner and likewise the Deputy Commissioner may obtain recommendation of the tribunal. It is clearly laid down that in the recommendations, the concerned forum may recommend for grant or refusal of the compromise of the offence. Thus, it cannot be implied from the perusal of the rules as a whole that an application or compromise may be necessarily accepted. The competent authority may refuse to accept such compromise.
33. However, from the scheme of the Ordinance as a whole and with particular reference to its preamble which provides that whereas it is necessary to make special provisions for trial certain offences in certain areas of West Pakistan to meat special requirements of this area indicate that the intention of the Legislature was to meet those special requirements like blood feuds among tribes etc. Or keeping in view similar peculiar circumstances, it may be observed that competent authority may have all regards for such requirements and may not ordinarily refuse the compromise application if validly presented--. However, this does not mean that the competent authority is not empowered to refuse an application for compromise at all. It may further be observed that for refusal of compromise application strong' reasons may be given.
34. The cumulative effect of the aforesaid discussion would be that there can hardly be any doubt that offence under section 302 PPC may be compounded with the permission of the Commissioner and the mode of filing the application is prescribed in rule 15. Since the applications in the present case were filed before the Deputy Commissioner Nasirabad, therefore, under rule 15(4), the Deputy Commissioner should have forwarded the same to the Commissioner with recommendation whether the permission for compounding the offence be granted or refused within 24 hours. He himself was not competent to pass any orders. The order therefore passed by the Deputy Commissioner rejecting the compromise application was without jurisdiction and thus it is being declared as having been passed without lawful authority and is of no legal effect.
35. The next submission made by the learned counsel for the petitioner was that the Additional Deputy Commissioner Nasirabad acted in mala fide manner by m--king interpolations in the record and the Deputy Commissioner also acted in mala fide manner by passing conviction order as soon as he received notice from this Court in order to oust the jurisdiction of this Court. As far as first limb of his arguments is concerned, it may be observed that the affidavits filed by the L.Rs. Of the deceased in this Court, namely Ghos Bakhsh son of Darvesh, Gul Muhammad son of Darvesh and Mst. Dur Bibi do not contain that they have not made any additional statement before the president of the Tribunal and all that was stated in the affidavits is only that they have compromised the offence voluntarily. The President of the Tribunal was not made party and the Deputy Commissioner denied the allegations of tampering or interpolations in the record. However, the learned counsel for the petitioner invited our attention to pages 64 and 65 of the record submitting that since the additional statement is with different ink, therefore, it must be presumed that it-was later added. We observed that even the statement as given on 4-11-1986 is also signed by the President of the Tribunal i.e. (Additional Deputy Commissioner) with the same ink. Therefore, it cannot safely be concluded that there was any interpolation, without any further inquiry which cannot be done in a constitutional petition.
36. Regarding the second limb of the argument, it may be observed that the jurisdiction of the Court is generally barred as and when congnizance of a case is taken. The cognizance of the matter was taken long before passing of conviction order. Therefore, even if the conviction order had not been passed as per provisions even then it would have made hardly any difference because the jurisdiction of normal Courts is generally barred under section 28 of the Ordinance after taking of cognizance. The contention thus raised is not tenable.
37. It was thirdly contended by the learned counsel that since the Constitution of the Tribunal was not in accordance with the provisions of the Ordinance, therefore, the tribunal was coram non judice and the finding given by it is a nullity and orders of conviction passed on such finding are void.
38. Elaborating the aforesaid argument the learned counsel addressed lengthy arguments taking us to the facts on record and pointing out that first tribunal in this case was constituted on 14-6-1986 consisting of following members:-
(1) Additional Deputy Commissioner, NasirabadPresident.
(2) Syed Mir Muhammad ShahMember.
(3) Mir Muhammad Akbar UmraniMember.
(4) Mir Qadir Bakhsh JatakMember.
(5) Mir Wahid Bakhsh BangulzaiMember.
39. This tribunal was constituted after giving opportunity to the parties to raise objection if any, but none of the parties raised any objection; hence, matter was proceeded by the said tribunal. It was further pointed out that without issuing any notice and without knowledge of the petitioner, on 7-9- 1986 two of the Members namely Syed Mir Muhammad Shah and Mir Muhammad Akbar Umrani were replaced by the following two members:-
(1) Rais Behram Abro.
(2) Wadera Saleh Muhammad.
40. According to the counsel since no opportunity for raising objection was provided to the petitioner, hence, the constitution of the second tribunal was not only ab initio illegal but the tribunal was coram non judice.
41. In order the appreciate the aforesaid contentions it would be profitable to refer to the relevant provisions of the Ordinance. Relevant section is 7(2) of the Ordinance. It reads as under:- "Section 7(2): If any member of the tribunal dies, refuses to act, becomes incapcitated from acting, or fails to attend any two meetings of the tribunal, when sufficient cause to the satisfaction of the President of the tribunal, the President shall refer the matter to the Deputy Commissioner, who shall, as 'soon as may be, appoint another member in the place of the defaulting member in accordance with provisions of subsections (2) and (3) of section 5.
42. Section 6(3): No person shall be appointed as a member of the tribunal, other than the president, except after giving the parties concerned an opportunity of being heard and considering objections, if any, to the appointment of such person."
43. It was therefore argued that appointing subsequent two members in place of the members already appointed, the Deputy Commissioner utterly failed to comply with section 6(3) of the Ordinance by not providing opportunity to the petitioner to raise objection to the appointment of newly appointed members. Therefore, the 'substituted' tribunal was in utter non-compliance of section 6(3) of the Ordinance and as such it becomes coram non judice and award given by such tribunal therefore is a nullity in the eyes of law.
44. On the other hard, the learned Advocate-General Baluchistan urged that the tribunal does not become coram non judice with the change of the two members because as is revealed from the record that the said two members who were changed, were in fact not regularly attending the proceedings. As such the President of the Tribunal referred the matter to the Deputy Commissioner requesting that since the members were not interested to regularly attend the proceedings, they could be changed. As far as the opportunity of being heard and raising of objection to the appointment of new members is concerned, it was contended that no objection was raised by the petitioner who later on appeared before newly constituted tribunal nor for that matter any appeal against newly appointed members was preferred to the Commissioner, as contemplated in section 23 of the Ordinance. Since the petitioner was being represented through his counsel and he himself attended the proceedings before the newly constituted tribunal, he ought to have raised objection or preferred appeal, but he never raised any objection nor he preferred any appeal to the Commissioner against the appointment of two new members who replaced the previous members. In such circumstances it was prayed that the petitioner surrendering to the jurisdiction of the tribunal, is now estopped to raise objection to the appointment of new members for the first time in the constitutional petition.
45. In the light of above arguments one thing becomes clear that at the time of newly constituted tribunal, the Deputy Commissioner did not give any opportunity of raising objection to the newly appointed members as provided in section 6(3) of the Ordinance. There is no cavil to the proposition that the Deputy Commissioner is competent under the Ordinance as per section 7 to change the members or to constitute another tribunal. If any member of the tribunal dies, refuses to act, becomes incapacitated from acting or fails to attend any two meetings of the tribunal without sufficient cause to the satisfaction of the President of the tribunal, the President shall refer the matter to the Deputy Commissioner who shall, as soon as may, appoint another member in place of defaulting member in accordance with the provisions of subsections (2) and (3) of section
6. From the perusal of the order sheet dated 18-9-1986 it is evident that the President of the Tribunal referred the matter to the Deputy Commissioner that since two members namely Sardar Akbar Khan and Syed Mir Muhammad Shah often failed to attend the proceedings hence, they may be replaced by Rais Bahadur Abro and Wadera Saleh Muhammad (back side of page 16 of original file). On this report the Deputy Commissioner passed orders on 20-9-1986 agreeing with the said proposal of appointment of aforesaid two members instead of Sardar Akbar Khan Umrani and Syed Mir Muhammad Shah. It is nowhere indicated from the record that the Deputy Commissioner gave any opportunity to the petitioner for raising any objection, thus there is no denying the fact that section 6(3) of the Ordinance was violated by then Deputy Commissioner while reconstituting the Tribunal. Furthermore, when reconstituting the Tribunal he failed to apply his own mind judicially to appoint new members. He just nominated the members who were proposed by the President of the Tribunal who in fact was not competent under the Ordinance either to send any such proposal or to appoint members. The President of the Tribunal, under subsection (2) of section 5 is competent only to refer the matter to the Deputy Commissioner about the fact that a member has failed to attend any two meetings without sufficient cause. Thus, the President of the Tribunal acted in excess of his jurisdiction and the Deputy Commissioner did not appoint new members independently and having regard to subsections (2) and (3) of section 6 of the Ordinance. The only question remains in this context is whether such excess of jurisdiction exercised by the President of the Tribunal or failure on the part of the Deputy Commissioner to act according to section 6 subsections (2) and (3) would tantamount as acts amounting to be without jurisdiction, thus calling for interference in the constitutional petition or in the alternative, these are minor violations on their part? For this our attention was invited by the learned counsel for the petitioner to the case of Mir Dost Muhammad v. Government of Baluchistan and three others as reported in PLD 1980 Quetta 1. It was inter alia observed by the Division Bench of this Court in the aforesaid case that: "The Assistant Commissioner by neglecting to follow mandatory provisions of section 5 of hearing accused, failing to give jurisdiction to Tribunal for initiating proceedings against him, therefore, proceedings taken before Tribunal, order passed by it in appeal or revision by any authority, appellate or revisional would be deemed to be coram non judice."
46. It was further observed that 'it is well-settled principle of law that in a case where Statute provides a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all. Indeed such Statute impliedly prohibits doing of thing in any other manner; particularly when the procedure is laid down for taking proceedings before a Tribunal or a Court where such procedure before a Court or Tribunal is usually construed to be an imperative-one as doing of the act or a thing under that Statute is a condition precedent to conferring upon the jurisdiction on a Court or a Tribunal as the case may be. The compliance of such act or thing in no way could be either ignored or dispensed with. Their non-compliance would certainly invalidate all the proceedings, orders made or passing by the same authority or any other authority either superior or inferior thereto in respect of the same."
47. In such view of the matter we find hardly any force in the contention of the learned Advocate- General Baluchistan that the order of Deputy Commissioner in appointing two fresh members conferred jurisdiction upon the Tribunal. A Tribunal is said to be vested with jurisdiction to act under the Ordinance only when it is legally constituted under the provisions of the Ordinance. In other words a tribunal becomes competent to exercise jurisdiction when condition precedents as laid down in the Ordinance are duly fulfilled by the Deputy Commissioner. Therefore, failure of Deputy Commissioner to follow relevant provisions of law would render the Tribunal as coram non judice.
48. In substituting members of the Tribunal, it is incumbent upon the Deputy Commissioner to follow section 7(1) and (2) of the Ordinance. Any deviation therefrom would result in that Tribunal so reconstituted, becomes coram non judice. Its finding therefore become void and orders whatsoever passed on such findings become nullity in law.
49. Since it is not disputed that petitioner was not present at the time of the reconstitution of the Tribunal, hence subsequent opportunity, even if given to the petitioner would hardly bring any difference, because appointing' authority being the Deputy Commissioner; no such objection could be taken before the Tribunal.
50. At this stage, the objection taken by the Advocate-General that alternative remedy is available to the petitioner to go in appeal before the Commissioner becomes relevant. The learned Advocate-- -General submitted and is supported from the record that such an appeal has already been filed by the petitioner. The learned counsel for the petitioner however contended that neither the remedy of appeal is afficacious nor expeditious for the reason that present appellate authority (Commissioner) was previously Deputy Commissioner Nasirabad and he took cognizance of the case and conducted proceedings, as such he cannot hear appeal and for that matter an application has already been moved to the Government to refer the matter to another Commissioner having jurisdiction. Besides the aforesaid contentions regarding facts, it was also pointed out that if an order or judgment is void being passed by a Court which was coram non judice, then the question of alternative remedy shall not non suit the petitioner seeking remedy of writ. Reliance was placed on the following authorities:-
(1) The case of Nagina Silk Mill, Lyallpur v. Income-tax Officer, A-Ward Lyallpur and others as reported in PLD 1963 SC 322. It was observed in the said case by the Hon'ble Supreme Court as under:- "This would specially be the case where the alternative remedy provided by the relevant statutes is not as efficacious, speedy or convenient as the one available under the writ jurisdiction of the High Court. This principle would be found discussed in Ferris on Extraordinary Legal Remedies at pp. 185- 187, 1926 Edn. That relief in these cases could not have been obtained as quickly or with as such facility and convenience under the Act which provides for a series of appeals, revision and reference to the High Court on law points, on condition that the tax assessed is first paid, as by recourse to the writ jurisdiction of the High Court, can hardly be contested."
(2) The case of Shershah Industries Ltd. v. Government of Sind and 4 others as reported in PLD 1982 Kar. 653, wherein it was observed at page 665:- "A review of the case-law referred to hereinabove shows that in certain cases the superior Courts of our country did not allow the petitioners to invoke the writ jurisdiction on the ground of availability of an alternate remedy by way of appeal or otherwise, but on the other hand, in other cases, notwithstanding the pendency of an appeal or availability of an alternate remedy, the Courts did not hesitate to exercise such writ jurisdiction and in fact granted relief to the petitioners.
51. It may be expressed as a generally accepted principle, however, that just because an alternate remedy by way of appeal or otherwise is available to a petitioner the High Courts will invariably decline to exercise their extraordinary constitutional jurisdiction. The mere availability of an alternate remedy does not debar the High Courts from exercising such. Jurisdiction. But, as observed by Dorab Patel, J., in Hassan Ali v. Muhammad Ahsan Baluch, the question whether a writ should be entertained when an alternate remedy is available is always one within the discretion of the Court. In case of total lack or absence of jurisdiction or authority, or apparent excess of jurisdiction, the Courts in general would not hesitate much is entertaining a constitutional petition although an alternate remedy may well be available. In other cases, the Courts would generally direct the party to avail and exhaust the alternate remedies available first before entertaining the writ, if in the opinion of the Courts the alternate remedy is an. Adequate remedy."
52. "Whether the alternate remedy available to the applicant who is seeking the constitutional remedy, is adequate or not depends on the special or particular circumstances of the individual case, and it is precisely for this reason that in one case the High Court may not entertain the petition under its constitutional jurisdiction and in another case the same may be entertained. In taking a decision whether the alternate remedy in given case is adequate or not to enable the High Court to take the further decision relating to entertaining the constitutional petition, the Court, in the background of the particular facts of the case before it, considers several factors. The question of speed and expense of the alternate remedy may be considered. Whether the alternate remedy is an effective or efficacious as the constitutional remedy is also a relevant factor. Whether in the circumstances of the case, the alternate remedy or the writ would be the appropriate remedy can also be pertinent consideration."
3. The case "Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others" reported in PLD 1972 SC 279. Relevant observations on page 287 read as under:- "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as the C . D . A .) to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority."
53. On the other hand, learned Advocate-General invited our attention to PLD 1958 SC 437, the case of "Tariq Transport Company Lahore v. Sargodha Bhera Bus Service Sargodha and others". It was observed in the aforesaid case that, where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. It was further held that, it is wrong on principle to entertain petitions for writs except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat legislative intent.
54. However, it was also held that, where appeal does lie, in order to quash a proceeding by certiorari, it is necessary that the lack of jurisdiction should appear on the face of the record.
55. In the instant case the lack of jurisdiction appears on the face ~of the record because there is no dispute over the question that the Deputy Commissioner did not act according to subsection (2) of section 7 of the Ordinance, and thus second tribunal was not properly constituted and was coram non judice. Therefore, the present case falls within exception as observed in the aforesaid authority of the Supreme Court. Another fact also cannot be lightly taken that the appellate authority is the Commissioner who was then Deputy Commissioner and conducted proceedings in the instant case, hence he is not competent to hear the same as appellate authority. The petitioner has already moved an application to the Government for transfer of his case to another Commissioner.
56. In such view of the matter there can hardly be any cavil that the remedy as provided by the Ordinance in the special and peculiar circumstances of this case is not adequate remedy; thus this Court is competent to exercise its discretionary relief.
57. It was lastly contended by the learned counsel for the petitioner that it is a case of No evidence, therefore, it was argued that the detention of the petitioner be declared as illegal. Although Mr. Yahya Bakhtiar, the learned counsel for the petitioner vehemently argued to make us believe that no prudent man could come to the conclusions as were drawn by the Deputy Commissioner on the basis of record, therefore, interference is called for in this case. But we find ourselves unable to associate with such a view of the matter. Mr. Yahya Bakhtiar argued that two witnesses namely Abdul Samad and Wallan Bugti implicated the petitioner in their statements recorded by Naib- Tehsildar during the investigation. But both of them resiled from their statements before the tribunal. In absence of their statements remaining evidence is not only scanty but totally insufficient and no prudent man in the ordinary course can come to the same conclusions as inferred by the Deputy Commissioner. Suffice to say that besides the statements of these two witnesses, we have also perused other evidence on record and without expressing ourselves to the merits of the case and without appreciating the credibility of evidence which may prejudice the competent forum under the Ordinance, we may note that there are certain depositions implicating the petitioner. Whether such material is sufficient for conviction or not is within the domain and jurisdiction of the concerned forum under the Ordinance to decide. Therefore, the contention of the petitioner's counsel is devoid of force that the detention is illegal. The petitioner is facing a murder case which was taken cognizance under the Ordinance. His detention therefore cannot be declared as illegal.
58. For all the reasons mentioned hereinabove, we allow this petition to the extent of declaring the conviction of the petitioner as having been passed without lawful authority and thus of no legal effect. We further hold that the Deputy Commissioner was not competent under the Ordinance to have passed orders on the application for compromise, therefore, order rejecting the same is also without lawful authority. We however, remand the case to the Deputy Commissioner for re-trial after constituting a fresh tribunal in accordance with law (after) giving full opportunity to the petitioner to raise objections if any, to the appointment of the members of the tribunal. Since we have already held that the case is being remanded to the Deputy Commissioner for re-trial. Hence it will be the proper forum to dispose of bail application according to law.
59. It is further observed that the application for compromise is deemed to be pending before the Deputy Commissioner. He is directed to dispose it of according to law in the light of abovementioned observations.
60. In the circumstances of the case there will be no orders as to costs.