1. ' AMIR-UL-MULK MENGAL, J.--By this constitutional petition the petitioners have challenged the judgment, dated 25-4-1985, 4-8-1986 and 28-9-1986 respectively passed by the Deputy Commissioner, Panjgoor, Commissioner, Mekran Division and the Member, Board of Revenue under Criminal Law (Special Provisions) Ordinance-II, 1968, hereinafter referred to as the Ordinance.
2. ' The facts in a nutshell are that on 30-12-1975 a report (Annexure 'A') was lodged by one Mir Behram Khan before the Naib-Tehsildar, Tasp, Panjgoor that unknown persons have killed one Noor Muhammad. The Assistant Commissioner and the Naib-Tehsildar proceeded to the place of incident and removed the dead body to Militia Hospital where it was examined by the Medical Officer who issued certificate (Annexure 'B'). On the basis of some previous hostility the petitioners alongwith one Abdullah and Sher Muhammad were suspected to have committed the offence, hence they were arrested. As the practice in 'B' area in such cases is to take assistance from the trackers, the Assistant Commissioner called official and private trackers to identify the foot-prints on the scene of incident who however, refused to have identified the said foot-prints while deposing before the Tribunal. However, the Assistant Commissioner recorded alleged confessional statement of petitioner No, 1 under section 164, Cr.P.C. (Annexure 'C') who before the Tribunal retracted from the same in his statement (Annexure 'D').
3. ' As per provisions of the Ordinance a Tribunal was constituted on 15-12-1976 which reported its findings on 21-1-1977 without recording the defence evidence. On this the Deputy Commissioner sent the case file back to the Tribunal for recording the defence evidence. Consequently the Tribunal recommended finding of guilty and on that basis the Deputy Commissioner convicted the petitioners. But on appeal the Commissioner, on 22-8-1977 set aside the conviction and remanded the case. The second Tribunal was constituted on 3-9-1977. The Tribunal on 10-1-1978 unanimously reported a finding of not guilty (Annexure 'E'). The Deputy Commissioner acquitted the petitioners but on appeal by the respondent No, 1 the Commissioner set aside the order of acquittal on 20-6- 1978, and ordered de novo trial. The Member, Board of Revenue by its order dated 27-7-1980 maintained the order of the Commissioner. The copies of the orders in sequence are F/1 to F/3. A third Tribunal was constituted which sent its recommendations (Annexure 'J') on the basis of which the Deputy Commissioner passed the impugned order dated 25-4-1985 and sentenced the petitioners to 14 years' R.I. Each and a fine of Rs,one lac and in default to undergo a term of 4 years each (Annexure 'K'). Once more the appeal filed, was accepted and the case was remanded by the Commissioner on 4-8-1986 (Annexure 'W) for further inquiry. Both the parties filed revision petitions against the orders of the Commissioner before the Member, Board of Revenue who by order dated 28-9-1986 (Annexure '0') accepted the revision filed by the respondent No, 1, set aside the order of the Commissioner, Mekran Division and maintained the conviction as made by the Deputy Commissioner. The aforesaid orders are challenged in this constitutional petition .
4. ' We have issued notices to the Advocate-General, Baluchistan to assist us, since some important legal questions were raised which required adjudication.
5. ' We heard the counsel of the parties as well as learned Advocate-General, Baluchistan at a considerable length.
6. ' The counsel for the petitioners Mr. Zafar vehemently urged the following points in support of this petition:--
(1) That the conviction of the petitioners is based on no evidence.
(2) That neither Deputy Commissioner nor Commissioner is competent under law to have remanded the case for the third time to the Tribunal which is contrary to section 11(6) of the Ordinance. It was further contended that the remand order of the Commissioner was prejudicial, because it amounts to fill in lacuna of the prosecution.
(3) The order of the Member, Board of Revenue is equally without any legal basis and without lawful authority. Particularly the observations that the Tribunal can have even secret inquiry with respect to the guilt or innocence of the accused are contrary to the provisions of the Ordinance and the Constitution of Pakistan.
(4) That Qanun-e-Shahadat Order, 1984 has been extended to whole of Pakistan and it applies to the proceedings before the Tribunal and the authorities, performing their functions under the Ordinance.
(5) It was further contended that statement of the defence witnesses were not at all considered by the forums under the Ordinance, thus making the entire proceedings as without lawful authority. It was also contended that under the proviso of section 24(2) of the Ordinance the Member, Board of Revenue could pass only a sentence which a Deputy Commissioner can pass under the Ordinance and no more. The Deputy Commissioner can pass only a sentence of 7 years for sentences more than that have to be confirmed by the Commissioner.
7. ' It was lastly contended that no offence under section 302 has been committed.
8. ' On the other hand Mr. Basharatullah, the learned counsel for the private respondent pleaded as under:--
(1) That the writ jurisdiction can be exercised only on the grounds taken in the petition and not on other grounds. The grounds therefore which have not been taken in the petition cannot be urged by the petitioner. The ground that no case be remanded or referred for third time was therefore out of scope of the petition.
(2) The confessional statement recorded by the Magistrate First Class and statement recorded by Naib-Tehsildar were proved by Naib-Tehsildar and therefore it could be considered as a piece of evidence under the Ordinance because as per section 3(2) of the Ordinance, provisions of Evidence Act and Cr.P.C. Are not applicable.
(3) It was further contended that since the Commissioner exercises the same powers as an Appellate Court under the Cr.P.C., hence he was competent under the law to have ordered re-trial of the case.
(4) It was next contended that section 24 is not subject to section 12 of the Ordinance. Therefore Member, Board of Revenue is competent to pass a sentence of 14 years under section 302, P.P.C.
(5) Regarding applicability of Qanun-e-Shahadat, 1984, it was contended that section 3(2) of the Ordinance excludes the Evidence Act expressly. Keeping in view principles of legislation by reference, the provisions of Qanun-e-Shahadat, 1984 are impliedly excluded under the Ordinance.
(6) In this regard it was next contended that by the repeal of Evidence Act, 1872, Qanun-e- Shahadat would not automatically be deemed to be applicable to the Ordinance because such repeal would not affect section 3(2) of the Ordinance.
(7) That Tribunal does not exercise judicial or quasi-judicial authority and Deputy Commissioner is not competent to record evidence, therefore, the Qanun-e-Shahadat, 1984 would not apply to proceedings conducted by these authorities.
(8) The provisions of Qanun-e-Shahadat shall not apply to the past and closed transactions because its applicability is at once.
9. ' The learned Advocate-General, Baluchistan adopted the arguments of Mr. Basharatullah, the learned counsel for the private respondent and added that in view of section 8 of the General Clauses Act, unless different intention appears, the reference in any other enactment or in any instrument to the provisions so repealed shall be construed as reference to the provisions so re- enacted. The Evidence Act, 1872 according to the Advocate-General has been repealed and re- enacted in the shape of Qanun-e-Shahadat. Therefore, unless different intention appears reference in any Central Act or any Regulation or Instrument be construed as reference to the provisions so re-enacted.
10. ' In order to appreciate respective contentions of the learned counsel for the parties and the learned Advocate-General, Baluchistan, it would be advantageous to firstly dilate upon the important legal question raised in this petition.
11. ' In the first instance, we propose to dispose of the legal proposition whether the Deputy Commissioner, under section 11 of the Ordinance is empowered to refer the case to a third Tribunal or make a second remand to the same Tribunal?
12. ' Before proceeding to dispose of this legal issue, it would be advantageous to reproduce the provisions of the Ordinance relating to the reference of the matter to the Tribunal after taking of coginzance by the Deputy Commissioner and the powers of the Deputy Commissioner to take action on the report of the Tribunal. The following are the relevant sections under the Ordinance:-- "Section 5(1).--The Deputy Commissioner taking cognizance of a scheduled offence shall constitute a tribunal in accordance with section 6 and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such tribunal.
13. ' Section 11(1) .-- The finding of the tribunal on a question referred to it under section 5 shall be submitted to the Deputy Commissioner in the form of a report containing the reasons for such finding.
14. ' Section 11(2).-- Upon receipt of a report of the tribunal, the Deputy Commissioner may, if the report does not give a finding on the question referred to the tribunal or any substantial part thereof, or he is of opinion that there has been material irregularity or that the proceedings of the tribunal have been so conducted as to occasion a miscarriage of justice, remand the question to the tribunal or refer the question to a second tribunal constituted in accordance with section 6.
15. ' Section 11(3).-- Where the tribunal unanimously or by a majority of four-fifth reports a finding of guilty, the Deputy Commissioner may, if he does not proceed under subsection (2), either convict and pass sentence on or acquit, the person or persons so found guilty.
16. ' Section 11(4).-- Where the tribunal unanimously or by a majority of four-fifth reports a finding of not guilty, the Deputy Commissioner shall, if he does not proceed under subsection (2), acquit the person or persons so found not guilty.
17. ' Section 11(5).-- Where the tribunal reports a finding either of guilty or of not guilty by a majority of less than four-fifth, the Deputy Commissioner shall, if he does not proceed under subsection (2), acquit the accused person or persons.
18. ' Section 11(6) .-- Where the Deputy Commissioner remands or refer under subsection (2) a question, he shall--
(a) if the tribunal, on such remand or reference, unanimously or by majority of not less than four- fifth reports a finding of guilty, convict and pass sentence on the accused; and
(b) in any other case, acquit the accused.
19. It is evident from the above-quoted sections that the Deputy Commissioner after taking cognizance of an offence under the Ordinance, shall refer the matter (section 5) to a tribunal constituted under section 6 of the Ordinance. (This would be the first reference). The Tribunal so constituted shall report its finding to the Deputy Commissioner. The Deputy Commissioner on receiving of such a report of finding from the Tribunal, shall take action according to the provisions of section 11 of the Ordinance.
20. ' Subsections (2) to (6) of section 11 describe the powers and scope of the authority of the Deputy Commissioner to take action after receiving a report of finding from the Tribunal. If the Deputy Commissioner does not proceed under subsections (3), (4) and (5) of section 11, he may take action under subsection (2) of section 11 which provides that the Deputy Commissioner may if the report does not give a finding on the question referred to the Tribunal or any substantial part thereof or he is of the opinion that there has been material irregularity or that the proceedings of the Tribunal have been so conducted as to occasion the miscarriage of justice, remand the case to the tribunal or refer the question to a second Tribunal constituted in accordance with section 6. The pertinent question to be resolved is the extent and scope of powers of Deputy Commissioner to refer a case to a third Tribunal or to remand a question to the same Tribunal for more than two times (firstly under section 5 and secondly under subsection (2) of section 11). Such extent and scope of powers of the Deputy Commissioner regarding remands or references is covered by subsection (6) of section 11. After remand or reference under subsection (2), the Deputy Commissioner shall take action under clauses (a) and (b) of subsection (6) of section 11. His powers for further remand of the question to the same Tribunal for the third time or reference to a third Tribunal has been clearly restricted by subsection (6). As per clause (a), subsection (6) of section 11, he may convict an accused person when he receives report after remand or reference of the question as the case may be, under subsection (2) of section 11, provided the Tribunal unanimously or by a majority of not less than four-fifth reports that accused person/persons were found guilty, or if the finding of the Tribunal on such remand or reference is either not unanimous or is by a majority of less than four-fifth, he shall acquit the accused as per clause (b) of subsection
(6) of section 11. No other construction can possibly be made in absence of any provision to the contrary. Thus, we are inclined to hold that by subsection (6) of section 11 the legislature has intentionally imposed an embargo on the powers and authority of the Deputy Commissioner, restricting him to make further reference or remand a question to the Tribunal after taking action under subsection (2) of section 11. The wisdom behind this restriction on the powers of the Deputy Commissioner seems to be that the legislature wanted to put an end to the prolonged litigation between the parties in order that justice is done between the parties without delay.
21. ' Adverting to the facts of this case, the question requires further adjudication, because the reference to the third Tribunal in the under-mentioned case has been ordered not by the Deputy Commissioner but by the Commissioner as an Appellate Authority. Since there is no provision under the Ordinance that reference can directly be made by the Appellate Authority to the Tribunal, the Commissioner, therefore, directs the Deputy Commissioner to make such reference, if, as an Appellate Authority, he is satisfied to do so. We do not subscribe to the submission made by Mr. Zafar that the embargo put on the powers of the Deputy Commissioner as per subsection (6) of section 11 shall also apply to the authority of the Commissioner. Because in our view section 23 of the Ordinance is not subservient to section 11 of the Ordinance and, therefore, is neither controlled by it nor is dependent upon it. It will be profitable to reproduce section 23 of the Ordinance:- "Section 23(1).--Any party aggrieved by any decision given, sentence passed or order made by the Deputy Commissioner under this Ordinance may, within thirty days of such decision, sentence or order, prefer an appeal to the Commissioner.
22. Explanation ' Section 23(2).--The Commissioner shall not confirm, modify, alter or set aside any decision, sentence or order appealed against except after giving the parties an opportunity of being heard.
23. ' Section 23 (3).--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.
24. ' Provided ........................................................... If Subsection (3) of section 23 is pertinent as regards the issue in question. It clearly lays down 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 Cr.P.C., 1898 (V of 1898) and may also enhance any sentence, subject to the proviso.
25. ' Before appraising the scope of the Authority of the Commissioner, we would like to dispose of the objection raised by the counsel for the petitioner that the Commissioner while ordering the case to be referred to a fresh Tribunal, in fact gave an opportunity to the prosecution to fill the lacuna of the prosecution case by allowing it to adduce additional evidence. We have perused the order of the learned Commissioner, dated 4-8-1985 (Annexure 'M') of the petition, and operative portion of the said order reads as follows:-- "Due to these irregularities I order that the case may be referred to a fresh tribunal to probe into this murder and the accused may be released on bail."
26. ' We are unable therefore to agree with the contention of the petitioner's counsel that the learned Commissioner ordered additional evidence to be recorded. In fact he had pointed out certain irregularities committed by the Tribunal and while accepting the appeal has ordered that the case may be referred to a fresh Tribunal to probe into the murder.
27. The learned counsel for the petitioner then contended that the Commissioner also was not empowered to order a reference to a third Tribunal particularly so when this course has already been exhausted by the Deputy Commissioner and that the Commissioner cannot act beyond the scope of section 11. We find this argument as devoid of force and fallacious. The reasons are that firstly, as observed hereinabove, section 23 is not controlled by section 11 of the Ordinance. Section 23 is independent and prescribes the powers of the Appellate Authority and it has been clearly and unequivocally laid down in subsection (3) of the aforesaid section that the Commissioner may exercise all the powers as are conferred on an Appellate Court under the Cr.P.C. Section 423, Cr.P.C.
28. Is relevant and for the sake of convenience is hereby reproduced:-- "Section 423(1).--The Appellate Court shall then send for the record of the case, if such record is not already in Court.
29. ' After perusing such record or may -- ' in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction subordinate to such Appellate Court or 22(sent) for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of section 106, subsection (3), not so as to enhance the same;
(e) and (d)
30. The Appellate Court under the Cr.P.C. Is competent to order re-trial of a case. Hence inter alia, the power to order re-trial of the case is conferred on the Commissioner under the Ordinance.
31. Obviously a particular mode is provided for trial under the Ordinance, i,e, the matter has to be referred to the Tribunal who shall record evidence and submit its report to the Deputy Commissioner. It would, therefore, be anomalous to argue that since there being no provision under the Ordinance empowering the Commissioner directly to refer the matter to the Tribunal, hence the Deputy Commissioner cannot refer it to the Tribunal even if directed by the Commissioner to do so because the powers of Deputy Commissioner are restricted under subsection (6) of section 11. To further elaborate our point of view it may be observed that undoubtedly the Deputy Commissioner is not competent himself, once he takes action under section 11(2), to further refer the case to the third Tribunal or to make further a remand as observed hereinabove, but this embargo would not apply to the Appellate Authority i,e, Commissioner. The legislature intentionally extended all the powers of criminal Appellate Court to the Commissioner including the powers of ordering re-trial of a particular case. Thus, conclusion would be that while referring the case for the third time by orders of the Commissioner, the Deputy Commissioner would do so not under section 11 but under the directions and orders of the Appellate Authority.
32. After the orders being passed by the Commissioner, Deputy Commissioner would comply with his orders and in such event the Deputy Commissioner would pass orders on the report of the finding.
33. Of course he cannot exercise his authority under subsection (2) of section 11 (provided he has already exercised such authority) when he would be complying with the orders of the Appellate Court for re-trial. Secondly, it would amount to anomaly if we agree with the contentions of the counsel for the petitioner because if the Commissioner cannot order re-trial it would mean that the orders of the Deputy Commissioner are final which of course is not the purpose of the Ordinance or the rules made thereunder. On the other hand section 23 becomes redundant. Thus, we find no force in the contention of the petitioner's counsel that the Commissioner is not competent under the Ordinance to order re-trial of a case by referring it to a fresh Tribunal.
34. ' Before we embark upon to the next point, we would like to dispose of the preliminary objection raised by Mr. Basharatullah that points not raised before the Courts below or in the petition, cannot be looked into. Relying on a Full Bench judgment of Lahore High Court as reported in PLD 1964 Lah.
35. 612, it was urged that since the contention that provisions of Qanun-e-Shahadat apply to the proceedings under the Ordinance was taken in the High Court while filing the constitutional petition, the same, therefore, may not be considered. There can be hardly any cavil to the submission that all legal grounds may usually be taken at the first instance in order to enable the forums to adjudicate upon the same, but if a question raised at the stage of constitutional petition is of general importance affecting the rights of the public in general and which could otherwise be properly decided by High Court in view of its importance, may be allowed to be taken for the first time in a constitutional petition. The authority relied upon by the learned counsel also supports our view. It was observed, "the validity of the Regulation as applied to North and South of Waziristan was also challenged in arguments before us on a ground but not specifically taken in the petitions, but which, on account of its importance, we permitted to be urged " We are, therefore, inclined to allow the said contention, keeping in view its general importance, to be urged.
36. ' We now advert to the legal question whether the provisions of Qanun-e-Shahadat, 1984 shall apply to the proceedings under the Ordinance?
37. ' It was urged by the petitioner's counsel that the legislature expressly excluded the applicability of the provisions of Evidence Act, 1872 (hereinafter called as Evidence Act) to the proceedings under the Ordinance. But the Evidence Act was repealed under section 166 of Qanun-e-Shahadat, 1984 and was replaced by Qanun-e-Shahadat, 1984 (hereinafter referred to as Qanun-e-Shahadat).
38. ' It was contended that since provisions of Qanun-e-Shahadat have been extended to whole of Pakistan and apply to all judicial proceedings in or before any Court a Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction, hence for all intents and purposes the same shall apply to the proceedings under the Ordinance.
39. ' It was next contended that the Ordinance was in the field when Qanun-e-Shahadat was promulgated hence being a central enactment promulgated subsequently, it overrides the ouster clause of the Ordinance. Its applicability therefore, to the proceedings under the Ordinance were intentional and deliberate.
40. ' Controverting the said argument, Mr. Basharatullah vehemently urged that section 3(2) of the Ordinance unequivocally excluded the provisions of Evidence Act to the proceedings under the Ordinance and that since no departure has been made in Qanun-e-Shahadat from the provisions of Evidence Act, therefore, impliedly the ouster clause of the Ordinance shall continue to apply to the provisions of Qanun-e-Shahadat. Thus, Qanun-e-Shahadat shall not apply to the proceedings under the Ordinance. It was further argued that repeal of Evidence Act in section 166 of Qanun-e- Shahadat would have no effect and bearing on section 3(2) of the Ordinance. Mr. Basharatullah the learned counsel for the private respondent further tried to make a point of distinction between section 1 of the Evidence Act and section 1 of Qanun-e-Shahadat. Before determining the question, we would like to reproduce section 1 of the above two laws as under:-- "Section 1 of the Evidence Act.--It extends to (the whole of Pakistan) and applies to all judicial proceedings in or before any Court, including Courts martial (other than Court-martial convened under the Army Act) (the Naval Discipline Act or that Act as modified by the Pakistan Naval (Discipline) Act, 1934) (or the Air Force Act) but not to affidavits" presented to any Court or officer, nor to proceedings before an arbitrator.
41. Section 1 of the Qanun-e-Shahadat.--(1) This Order may be called the Qanun-e-Shahadat, 1984.
(2) It extends to the whole of Pakistan and applies to all judicial proceedings in or before any Court, including a Court martial, a Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction, but does not apply to proceedings before an arbitrator.
(3) It shall come into force at once."
42. ' It was urged that the words used in section 1 of Qanun-e-Shahadat are that it applies to all judicial proceedings in or before any Court including the Court-martial, Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction. He invited our attention to section 4 of Cr.P.C., where judicial proceedings have been defined. Judicial proceedings include any proceedings in the course of which evidence is or may be legally taken on oath. Relying on the aforesaid definition he submitted that under section 9 of Ordinance the Tribunal is competent only to record evidence of the parties. But it does not exercise judicial or quasi-judicial powers. It was argued that the Tribunal can merely record evidence but cannot adjudicate upon a lis between the parties. Thus powers being exercised by the Tribunal under the Ordinance are not judicial or quasi- judicial powers. It was argued that Qanun-e-Shahadat applies to all judicial proceedings including Tribunals which may be competent to exercise judicial or quasi-judicial powers in order to attract the provisions of Qanun-e-Shahadat and not otherwise.
43. ' It was thus concluded that since the Tribunal is not empowered to decide a lis between the parties, and is divested of exercising any judicial or quasi-judicial powers (i,e, it cannot pass orders of either acquittal or conviction), therefore, section 1 of Qanun-e-Shahadat is not attracted.
44. Arguing from another angle, Mr. Basharat Ullah submitted that since under the Ordinance the Deputy Commissioner is not authorised to conduct judicial proceedings (i,e, he cannot record or take evidence) but merely acts upon the findings of the Tribunal, therefore, provisions of Qanun-e- Shahadat shall not be applicable to the proceedings either before the Tribunal or Deputy Commissioner. Reliance was placed on the following authorities:--
1. Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others as reported in PLD 1957 SC (Pak.) 91, relevant observations on page 98 thus reading:- "An inquiry is judicial if the object of it is to determine a jural relation between one person and another or a group of persons or between him and the State representing the community.
45. Generally speaking a person performs judicial functions if he is enjoined by the law to adjudicate upon and determine, as between the parties, some controversy relating to existence or non- existence of a right or liability, whether such right or liability . Be the creation of common law or statute provided the right or liability is actionable either under the general law or special law, and the duty to determine the controversy is derived from the State and rests on the ascertainment, with notice and opportunity to parties, of the facts and the law applicable to them and not on policy, expediency or some other extraneous consideration."
2. PLD 1958 (W.P.) Pesh. 157, wherein it was observed that:-- "If the statutory authority is allowed to pass an order subjectively, based on his personal or private opinion, and does not impose a liability or affect the right of others in a substantial manner, then the order will be executive, but if the statutory order is to be passed objectively and based on some relevant and existing circumstances and facts, and at the same time substantially affects the rights of others, it would be a quasi-judicial order."
3. PLD 1958 SC (Pak.) 437 and relevant observations on page 439 are reproduced:-- "The true question in the case of judicial or administrative tribunal always is whether the act which is complained of is a judicial act and not whether the procedure adopted by the tribunal is judicial or quasi-judicial or whether the dominant or general aspect of the tribunal is that of a judicial, quasi-judicial or administrative body."
46. ' The aforesaid authorities do not support the contention of Mr. Basharatullah. We are afraid that we cannot agree with the contention of the learned counsel. The Tribunal under the Ordinance obviously conducts judicial proceedings because it records evidence of the parties who are at dispute. The witnesses are examined by the Tribunal on oath. Section 9, subsection (3) of the Ordinance makes it quite clear that the Tribunal may administer oath to witness in such form or manner not inconsistent with the religion of the witness, as it deems fit. Furthermore section 5(1) of the Ordinance contemplates that the Deputy Commissioner taking cognizance of a scheduled offence shall constitute a Tribunal in accordance with section 6 and refer the question of guilt or innocence of the person or persons accused of such offence to the decision of such Tribunal (underlining is ours). The Tribunal records it and makes recommendation within the meaning of section 5(1). In other words the case under the Ordinance is tried by the Tribunal and the decision taken is reported in the form of recommendation to the Deputy Commissioner. The trial by the Tribunal cannot be termed as investigation but it is an inquiry in order to find out guilt or innocence of an accused person or persons after recording evidence and giving opportunity to the accused person or persons to cross-examine the witnesses. Of course, a Tribunal under the Ordinance is not a Court in the strict sense of the term, but it is a fact-finding forum which submits its finding to the Deputy Commissioner who is the ultimate judicial authority to pass orders either agreeing or disagreeing with such recommendation. However, it is to be further taken note of that equally the Deputy Commissioner is not empowered to pass an order of conviction or acquittal regarding an accused person without referring the case to the Tribunal or receiving report of the Tribunal. Both are interdependent and act as such. Therefore, action taken by the Tribunal as well as Deputy Commissioner are judicial acts and proceedings conducted before them are judicial proceedings because while conducting such proceedings they set at rest a lis between the parties. By no stretch of imagination it can be said that the Tribunal under the Ordinance is mere an administrative Tribunal. On the other hand it is empowered to conduct judicial proceedings and exercises quasi- judicial authority in the shape of its recommendations to the Deputy Commissioner. All the scheduled offences under P.P.C. Notwithstanding the exceptions mentioned therein, are tried under the Ordinance by the Tribunal and are decided finally by the Deputy Commissioner. Authority referred to by Mr. Basharatullah PLD 1958 SC (Pak.) 437 fully supports our view, wherein it was observed, that the true question in the case of judicial or administrative Tribunal always is whether a judicial act which is complained of is judicial act and not whether the procedure adopted by the Tribunal is judicial or quasi-judicial. It was further observed that the character of the action taken in a given case and the nature of right on which it operates must determine whether that action is judicial, ministerial or legislative or whether it is merely an act of public agent. Obviously the character of the action taken by the Tribunal is judicial under the Ordinance II because it is to give its finding on judicial matters referred to it and it cannot be said that any ministerial, legislative or administrative work or action can be done by the Tribunal under the Ordinance II. Similarly the Deputy Commissioner does not act administratively but judicially when he passes orders on the recommendation of the Tribunal under section 11 of the Ordinance. The Tribunal and the Deputy Commissioner are thus said to be exercising judiciary powers and jurisdiction after conducting judicial proceedings. The contentions thus raised by Mr. Basharatullah do not find favour and fall to the ground. In any case they are quasi-judicial proceedings.
47. ' Before dilating upon the remaining submission of the learned counsel for the parties in this regard, it would be expedient to determine as to which principle of interpretation shall be attracted in deciding the issue, in view of the facts of the case in hand. The admitted facts are (i) that the Ordinance was promulgated by the Governor of West Pakistan and approved by the West Pakistan Assembly, whereas Qanune-Shahadat has been promulgated by the President of Pakistan being President's Order No, 10 of 1984. (ii) The Ordinance is prior in its promulgation but Qanun-e- Shahadat is a later legislation. (iii) The Ordinance is a special law whereas Qanun-e-Shahadat is a general law. (iv) the Ordinance has not been repealed but the Evidence Act, the provisions of which were excluded under the Ordinance, was repealed and was replaced by Qanun-e-Shahadat.
48. ' Keeping the above facts in mind, we may, out of exhaustive of interpretations take assistance from the following principles interpretations:--
(1) The principle of leges posteriores priores contrarios abrogantI (if the provision of a later Act are so inconsistent with those of an earlier Act that both cannot co-exist, the earlier stands' impliedly repealed by the later.
(2) If the prior enactment is special and subsequent enactment is general, the earlier special legislation will not be indirectly repealed, altered or derogated from, merely by force of the general words of the later statute, without any indication of a particular strong intention to do so.
(3) If the co-existence of the two inconsistent statutes would be destructive of the object for which the later was passed, the earlier would be deemed to have been repealed.
49. As per section 3(2) of the Ordinance, the application of the provisions of Evidence Act were expressly excluded to proceedings under the Ordinance. But instead, no separate exhaustive procedure or mode or rule of evidence was prescribed, to apply to the proceedings K under the Ordinance, except a section or a rule under the Ordinance itself. The relevant section regulating the mode of evidence may be found in section 9(1), (2) and (3) read with rule 6(1) and (2) of the Criminal Law (Special Provisions) Rules, 1968.
50. Admittedly the Provincial Legislature did not make any amendment in section 3(2) of the Ordinance to exclude the provisions of Qanun-eShahadat to be applicable to the proceedings under the Ordinance uptil date.
51. ' In general parlance, the repeal of Evidence Act would be of no effect as far as the Ordinance is concerned, in which the provisions of Evidence Act were excluded. The moot question, therefore, is the overriding effect of the provisions of Qanun-e-Shahadat qua the ouster clauses of the Ordinance (section 3(2) of the Ordinance) and other inconsistent clauses relating to mode of taking evidence under the Ordinance and rules thereunder. (Section 9, Rule 6 of the Ordinance).
52. With the promulgation of Qanun-e-Shahadat, its provisions were made applicable to the judicial proceedings, inter alia, conducted by a Tribunal, exercising judicial or quasi-judicial authority. Thus the provisions of Qanun-e-Shahadat and the ouster clauses of the Ordinance etc. Are derogatory to each other and cannot, therefore, co-exist being inconsistent.
53. It may be kept in mind that it is not the Ordinance as a whole but its ouster clauses (section 3(2) and section prescribing the mode of taking of evidence (section 9, Rule 6) which are inconsistent, contradictory and destructive to section 1 of Qanun-e-Shahadat, in case we presume that ouster clauses of the Ordinance equally apply to the provisions of Qanun-e-Shahadat by necessary implications.
54. ' Here the argument advanced by the learned Advocate-General becomes relevant. He invited our attention to section 8 of the General Clauses Act (Central Act). The corresponding section of section 8 is section 5 of West Pakistan General Clauses Act (VI of 1956). Section 8 of the General Clauses Act, 1897 (Central Act X of 1897) runs as under:-- "Section 8(1).--Where this Act, or any 14 (Central Act) or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provisions of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
55. ' Section 8(2) .....
56. ' It was argued that Evidence Act was repealed and re-enacted as Qanun-e-Shahadat with modification, therefore, the reference of Evidence Act as contained in section 3 (2) of the Ordinance be construed as reference to the Qanun-e-Shahadat. Thus, it was concluded that provisions of Qanun-e-Shahadat: would not be applicable since reference to Evidence Act would, in view of this section, be construed as reference to Qanun-e-Shahadat.
57. Obviously Qanun-e-Shahadat is now an existing Act. If Qanun-eShahadat had simply repealed the Evidence Act and no different intention appeared, which would not have been inconsistent with section 3(2) of the Ordinance, then of course, exclusion as provided in section 3(2) of the Ordinance might have been a reference to Qanun-e-Shahadat. But section 1 of Qanun-e- Shahadat makes the intention of the legislature abundantly clear. The incorporation of the word 'Tribunal' in section 1 seems to be deliberate and well thought. Word 'Tribunal' was not used in section 1 of the Evidence Act. It was introduced in Qanun-e-Shahadat. It is now a well-settled principle that the legislature must be presumed to be aware of all the existing laws of the country.
58. The legislature was thus conscious of the Ordinance where the Tribunals are constituted to try scheduled offences under the Ordinance. The extension of the provisions of Qanun-e-Shahadat to the Tribunals was, therefore, purposely made. The preamble of Qanun-e-Shahadat further highlights the intention of the legislature. It begins: "Whereas it is expedient to revise, amend and consolidate the law of evidence so as to bring it in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah.......................................... Ft In order, therefore, to consolidate the law of evidence and to bring it in conformity with Islam, its provisions were made applicable, inter alia, to the Tribunals exercising judicial or quasi-judicial powers. Recourse to section 8 of the General Clauses Act could be had only when different intention would not have appeared. Here intention of the legislature is objectively manifested. In fact application of p Qanun-e-Shahadat was not an amendment of section 1 of the Evidence Act but an addition to it in order to bring the law of evidence in conformity with injunctions of Islam. We, therefore, see no force in the contention that by virtue of section 8 of the General Clauses Act, the ouster clause of the Ordinance applies equally to Qanun-e-Shahadat by necessary implications.
59. Judging it from a different angle, the Qanun-e-Shahadat was promulgated in 1984 whereas the Ordinance came into force in the year 1968. Thus, Qanun-e-Shahadat is a subsequent and later legislation. The provisions of the Qanun-e-Shahadat are inconsistent with those of the Ordinance, thus on the principle of Leges posteriores priores contrares abrogant, the relevant provisions of the Ordinance (regarding evidence) stand impliedly repealed. But the question is that the aforesaid maxim is subject to the principle that if prior enactment is special and subsequent enactment is general, the special legislation will not be directly repealed, altered or derogated from merely by force of general words of latest statute without indication of particular strong intention to do so.
60. Here as discussed in detail in the preceding paras. The intention of the legislature is strong enough to exclude the inconsistent .Provisions of the Ordinance with Qanun-e-Shahadat. With introducing the word 'Tribunal' for the first time in Qanun-e-Shahadat, the legislature positively intended that provisions of Qanun-e-Shahadat shall apply to the Tribunals. Therefore, the principle that prior enactment being special and subsequent being general, the special will not be indirectly repealed, would not be attracted in this case. Another argument may be advanced, that if the relevant provisions of the Ordinance are allowed to continue, it would be destructive for the object for which Qanun-e-Shahadat was passed. The object of Qanun-eShahadat as shown earlier is to consolidate the law of evidence so as to bring it in conformity with Islam and injunctions of Holy Qur'an and Sunnah, thus on the principle of interpretation that if the co-existence of the two inconsistent statutes would be destructive of the 'object' for which the latter was passed, the earlier would be deemed to have been repealed, would apply. Yet another argument would be relevant that Qanun-e-Shahadat is Central Act and the Ordinance is Provincial enactment. If both are inconsistent then normally it is, the Central Act which will have overriding effect. In this context section 165 of the Qanun-e-Shahadat is very relevant which reads as under:-- "Order to override other laws.--The provisions of this order shall have effect notwithstanding anything contained in any other law for the time being in force."
61. Being a law, promulgated later and having overriding provisions over all the other laws on the subject, it would prevail over relevant provisions of the Ordinance. There is no ouster clause regarding application of the Qanun-e-Shahadat to proceedings under the Ordinance, but on the other hand, section 165 of Qanun-e-Shahadat expressly describes its overriding effect to other laws. Reliance may be placed on PLD 1980 Quetta 73, the case of Maqsood Ahmed v. Summary Military Court Pishin where the question before D.B. Was as to which of the two laws would hold field i,e, the Dangerous Drugs Act, 1930 or Prohibition (Enforcement of Hadd) Order, 1979, it was observed:-- "In that view of the matter, and because the Order is a later law having overriding provision over all the other laws on the subject. It would prevail over the relevant provisions of Dangerous Act. In fact it has an effect of impliedly repealing such provisions of Dangerous Drugs Act."
62. ' Reliance was placed in the aforesaid case of AIR 1930 Mad.
63. 963.
64. From the above discussion we are inclined to hold that the provisions of Qanun-e-Shahadat shall apply to the proceedings under S the Ordinance. Section 3(2) of the Ordinance shall have no effect to applicability of provisions of Qanun-e-Shahadat to proceedings under the Ordinance.
65. It was next contended that since the provisions of Qanun-e-Shahadat if at all apply, its application is at once. Such provisions do not apply to past and closed transactions. It was, therefore, argued that since the matter now has been finally decided under the Ordinance, the provisions of Qanun- e-Shahadat cannot be invoked by the petitioners. Suffice to say in this regard that the learned Commissioner on 20-6-1978 ordered de novo trial of the matter by a new Tribunal. The case remained pending before the Tribunal till 1985, when on 26-1-1985 the Tribunal gave its finding. Whereas the Qanun-e-Shahadat came into force in 1984, thus the provisions of Qanun-e-Shahadat were in force when the Tribunal was conducting inquiry. Hence the same were applicable to the proceedings of the Tribunal.
66. ' We are left now to appreciate the contentions regarding merits of the petition. According to the learned counsel for the petitioners, the petitioners have been convicted on no evidence.
67. Countering the said contention, it was urged by the respondent's counsel that while sitting in writ jurisdiction this Court shall not go into the facts of the case. We are mindful of the fact that while sitting in a supervisory writ jurisdiction, we shall not interfere with the decision arrived at by a fact- finding forum, more so when such forums act under a special law. But at the same time if the decisions or inferences which were totally unsupported by evidence on record and the authorities acted on mere presumptions and guess work, or on no evidence, then interference would be called for even if there is concurrent finding as has been repeatedly held by the superior Courts of the country.
68. ' According to the petitioners' counsel there is absolutely no evidence against the present petitioners. It would be worth to point out that at the time of admitting this petition on 7-10-1986, we had ordered for summoning of the record from the Court of Member Board 'of Revenue. We, therefore, perused the relevant record in order to determine whether it is a case of no evidence or otherwise. The Tribunal examined 14 prosecution witnesses and out of 14 only one witness namely Dad Muhammad attempted to implicate the petitioners by saying that, "he understands rather he believes that the accused persons have committed the murder of the deceased." This piece of evidence according to our considered view amounts to no evidence because even this witness has stated nothing about the incident. He has expressed his doubt or belief that the petitioners were responsible for the murder of the deceased on the basis of previous hostility between the parties.
69. Therefore, no reliance was placed on the statement of Dad Muhammad in the finding, dated 26-1- 1985 by the Tribunal. However, the Members of the Tribunal have relied on two pieces of evidence, namely, (i) the statement of petitioners Nazar Muhammad before the Investigating Officer i,e, Naib- Tehsildar Muhammad Karim and (ii) his alleged confessional statement recorded by Mr. Bahar Shah, the Magistrate First Class. Thus, these are the two pieces of evidence which have been made basis for conviction of the present petitioners.
70. ' Muhammad Karim, Naib-Tehsildar conducted investigation of the case under the provisions of the Ordinance, because the alleged offence was committed in 'B' area where there is no regular police force to investigate the commission of the crime under provisions of Cr.P.C. Both these statements have no evidentiary value, if the provisions of Qanun-e-Shahadat would apply and the same does apply as has been observed hereinabove. But we allowed the parties to argue whether these two pieces of evidence were relevant and admissible and could be made basis for conviction under the Ordinance.
71. ' According to Mr. Zafar, the statement made before the Naib-Tehsildar is or amounts to a statement under section 161, Cr.P.C. Which is not admissible even under the Ordinance, being recorded by an investigating agency. It was secondly contended that as per Rule 6 sub-rule (2) of the Ordinance, 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 a Tribunal (underlining is ours); provided that so much of such confession as relates distinctly to the recovery of any fact shall be admissible.
72. ' On the other hand Mr. Basharatullah submitted that since Naib-Tehsildar is a Magistrate Third Class and not a Police Officer, therefore, confession made by the accused before him would be admissible, even if he be conducting investigation.
73. ' We once more advert to the relevant provisions of the Ordinance to resolve the aforesaid controversies in the light of the Ordinance (apart from the view taken that provisions of Qanun-e- Shahadat shall apply); section 15 subsection (2) of the Ordinance is the relevant provision in this regard. It may be pointed out that it is the State Levies Force which equally conducts investigation in 'B' area as police in 'A' area, under the Ordinance and Naib-Tehsildar or Tehsildar being incharge of the Levy Force submits challan to the Deputy Commissioner for taking cognizance under the Ordinance. The legislature was conscious of the fact that the Investigating Agency in 'B' area being State Levies Force, made an amendment in the Ordinance which was published in the Baluchistan Gazette on 3-12-1979 namely, Criminal Law (Special Provisions) (Baluchistan Amendment)
74. Ordinance, 1979 (XIV of 1979) wherein section 15(2), it was added after the word Levy Force, "who shall have the same powers in respect of investigation of a scheduled offence as the police have under the Cr.P.C. 1898". The fact that Naib-Tehsildar or Tehsildar acts as an incharge of station of levy force in their respective area cannot be denied. Thus, acting as such, they are equivalent to the incharge of a police station in view of the aforesaid amendment. Any statement recorded by Naib-Tehsildar or Tehsildar during investigation, therefore, would amount to a statement recorded by an incharge of a police station or a Police Officer under section 161, Cr.P.C. The amendment in subsection (2) of section 15 of the Ordinance if read with sub-rule (2) of Rule 6 of the rules under the Ordinance, would make it crystal clear that such statements so recorded shall not be admissible before the Tribunal. Consequently the contention of Mr. Basharatullah that statement recorded by Naib-Tehsildar would be admissible because he acts as a Magistrate is totally devoid of force. We unhesitatingly hold that any statement of an accused person recorded by any officer of Levy Force or Investigating Officer in 'B' area like Naib-Tehsildar etc. Shall not be admissible as valid piece of evidence before the Tribunal subject to sub-rule (2) of Rule 6 of the rules made under the Ordinance.
75. Thus the only evidence remains in the field would be the alleged confessional statement of petitioner No, 1 before the Magistrate First Class. It is an admitted position that the Magistrate recording such confessional statement did not appear before the Tribunal or was not produced to prove or verify that the statement was made voluntarily or the statement was not the result of torture on account of fear of bodily hurt or of deprivation of property. In absence of such a proof as per sub-rule (2) of Rule 6 such confessional statement becomes inadmissible before the Tribunal.
76. ' Mr. Basharatullah, the learned counsel for the private respondent tried to face this situation by contending that Naib-Tehsildar who was well-acquainted with the signatures of the Magistrate who recorded the alleged confessional statement, proved the contents of the confessional statement. This contention is equally untenable because subsection (2) of section 9 of the Ordinance and sub-rule (2) of Rule 6 both become redundant, if we accept the aforesaid contention. Subsection (2) of section 9 reads as under:- "The Tribunal shall give the parties an opportunity to cross examine the witnesses deposing against them."
77. The Magistrate did not appear and it would be anomalous to hold that the right of cross- examination as provided under this subsection was provided by cross-examining the Naib- Tehsildar who himself did not record the confessional statement under section 164, Cr.P.C. The accused persons thus were deprived of right of cross-examining the Magistrate who allegedly recorded confessional statement in order to prove its voluntariness as provided under sub-rule (2) of rule 6.
78. ' The irresistible conclusion, therefore, is that the alleged confessional statement was also not an admissible piece of evidence against the petitioners.
79. ' After declaring these two pieces of evidence as inadmissible even under the provisions of the Ordinance, there remains not an iota of evidence against the present petitioners.
80. ' The orders passed by the Deputy Commissioner, dated 25-4-1985 and Member, Board of Revenue Baluchistan, dated 28-9-1986 are thus declared as having been passed without lawful authority and are of no legal effect.
81. ' But the Commissioner as an Appellate Authority did not rely on the evidence and did not comment whether such evidence was sufficient for conviction order or not. However, he remanded the case for further probe. As has been held by us in the preceding paras that the Commissioner was competent under the Ordinance to have remanded the case, hence his orders cannot be declared as having been passed without lawful authority. Thus, we maintain the order of the Commissioner, dated 4-8-1986. However, we observe that since the petitioners have already faced ordeals of criminal trials for more than 10 years during which they were repeatedly arrested and released, facing mental agony and torture and their case being remanded time and again without achieving any useful purpose, it was not proper in the ordinary course to have remanded the case once again. But since the Commissioner had jurisdiction to do so, hence we hesitate to interfere with his orders and while maintaining the same, we further observe that the trial of the accused persons may be concluded within two months after receipt of the record.
82. ' Since we have already disposed of C.M. No, 396 of 1986 praying for bail, hence the petitioners are directed to move the Court of Deputy Commissioner for bail if they so desire. As per affidavit filed by the petitioners that as they have remained behind the bars for more than two years, they therefore, are entitled to be released on bail in view of the Full Bench Judgment of this Court in C.P.
83. No, 64 of 1986 wherein it was held that third proviso to subsection (1) of section 497, Cr.P.C. Equally applies in cases under Ordinance II of 1968. This point may be urged by the petitioners if they choose to move the Court of Deputy Commissioner for bail. We further order that the parties shall have to bear their own costs.