' AMIRUL MULK MENGAL, J.---The petitioners have challenged the order of conviction passed by Assistant Political Agent-cum-Deputy Commissioner, Dera Bugti on 20-7-1989.2. . ' Facts briefly stated arc that on 9-7-1989 Naib-Tehsildar Dera Bugti being ' accompanied by Levies Personnel were coming from Dera Bugti to Pir Koh and when they reached Marao, they found accused Mukhtar Ahmed and Mumtaz Ali owners and drivers of Diesel Oil Tankers engaged by O.G.D.C. Standing there. Accused Gul Nawaz, Mirzo, Lal Muhammad and Yar Muhammad were purchasing diesel oil from them. The accused Mukhtar Ahmed and Mumtaz Ali had sold six drums of diesel oil at the rate of Rs, 700 per drum. The purchasers had taken away two drums but remaining drums were lying there which were taken into custody and a case was registered against all the accused persons. A , Tribunal was constituted to try the accused persons under section 409/406/109/ 34, P.P.C. The aforesaid Tribunal gave its award on 18-7-1989 and the learned Assistant Political Agent-cum-Deputy Commissioner under Criminal Law (Special Provisions)
Ordinance II of 1968 (hereinafter referred to as the "Ordinance") while agreeing with the said award passed order of conviction against the petitioners. The following sentences were awarded to petitioners:- ' Mumtaz Ali, Mukhtar Ahmed, Yar Muhammad and Gul Nawaz were convicted and sentenced under section 406 P.P.C. And were awarded three years' rigorous imprisonment and also fine of Rs, 2,000 each. The aforesaid convicts were also awarded seven years' R.I. And fine of Rs,5,000 each under section 409, P.P.C. In default of fine they were ordered to suffer one year R.I. Each.
' Accused Lal Muhammad and Mirzo were found guilty of abetment and convicted under section 406/109, P.P.C. To suffer two years' R.I. Each and a fine of Rs, 1,000 each and for offence of abetment under section 409 P.P.C. They were convicted to five years' R.I. Each and a fine of Rs, 3,000 each and in default one year R.I. Each.
3. It is this order of conviction which has been challenged in this Constitutional Petition by the petitioners.
4. Heard Mr. Muhammad Nawaz Marri for the petitioners and learned Advocate-General Balochistan for respondents.
5. It was strenuously urged,by Mr. Nawaz that petitioners have committed no offence within the meaning of sections 406 and 409 P.P.C. Read with section 109/34, P.P.C. He also challenged the aforesaid order as having been passed by a Tribunal which was coram non judice because besides the President the remaining members were also Government officials. He laid much emphasis on the fact that it is a case of, no evidence and if entire evidence is taken into account, it is proved that no offence whatsoever has been committed. It was lastly contended that action against the petitioners is mala fide as they have been in fact politically victimised.
6. Learned Advocate-General while controverting the aforesaid contentions submitted that Constitutional Petition is not competent because alternate remedy is available to the >petitioners by way of appeal under the Ordinance before the Commissioner. He further submitted that as far as the petitioners Nos. 1 and 2 are concerned they were entrusted with the property but they dishonestly misappropriated the same as such they were rightly convicted. The remaining petitioners purchased diesel oil from petitioners No 1 and 2 knowing that it belonged to O.G.D.C., therefore, their conviction under section 409 P.P.C. Read with section 109, P.P.C. Is justified and is legal.
7. It is pertinent to point out that the petitioners have annexed alongwith the petition certain documents showing that it was settled between them and the company that whenever there is any shortage in supply of diesel oil the same would he paid by the petitioners. This practice has been acted upon since very long and the petitioners have been paying for any shortage to the company 'and the company has taken no exception to the aforesaid shortages after receiving the payment.
8. In order to dispose of this Constitutional Petition we have to first dilate upon the question of maintainability of the petition. Although prima facie there is some force in the contention of learned Advocate-General that whenever alternate remedy is available by way of appeal, generally. The Courts hesitate to entertain the Constitutional petitions and would direct the petitioners to move the appellate forum first and after when they exhaust all the alternate remedies then alone they are entitled to file Constitutional petition. But at the same time we find that the superior Courts have entertained Constitutional petitions directly in certain circumstances despite the fact that alternate remedy was available to the petitioners.
9. We, therefore, have to see whether in the circumstances of present case deviation from the general rule of refusing to issue writ in cases where alternate remedy is available i.s called for or not. It is not mere availability of alternate remedy which would render the Constitutional petition incompetent, but such remedy should be expeditious and adequate. If it is found that the forum which passed orders affecting the aggrieved party was corum non judice or proceedings were ultra vires or in certain cases where tribunal was not fully competent to have conducted proceedings, hence there was absence of jurisdiction, in all such circumstances refusal of writ on the mere ground that statutory right of appeal was available would not serve the ends of justice.
We are fortified in this view by the judgments of Hon'ble Supreme Court in the cases of Anjuman-e- Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639 and Sind Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450. The argument of the learned counsel for the petitioners thus becomes relevant when he pleaded that the Tribunal which conducted proceedings under the Ordinance and recommended for conviction of petitioners was not properly constituted inasmuch as besides the President, the other members of the Tribunal were also Government officials being Levies Jamadars. This fact is not denied by the respondents in their comments but the learned Advocate-General while representing the respondents argued that since under section 6 of the Ordinance there is no express prohibition for appointing Government officials as Members of the Tribunal, therefore, the constitution of the Tribunal was proper. It was argued in the alternative that except the President the remaining levies personnel in fact belong to Federal Levies, therefore, they are not covered by definition of Public Servant. In order to appreciate the aforesaid arguments, it would be proper to reproduce section 6 of the Ordinance:-- "6. Constitution of Tribunal.--(1) A tribunal constituted for the purpose of section 5 shall consist of a Government official, not below the rank of Naib-Tehsildar, who shall be its President, and four other members, all to be appointed by the Deputy Commissioner.
(2) In appointing a person as a member, other than the President the Deputy Commissioner shall have regard to the integrity, education, social status and representative character of such person.
(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."
' In section 6(2) it is laid down that while appointing a person as a Member other than the President the Deputy Commissioner shall have regard to the integrity, education, social status and representative character of such person. When it was pointed out to learned Advocate-General to explain how representative character of a Government official would be determined, he had no reply. However, he made an attempt to substantiate his argument by referring to different similar laws applicable, in the region from time to time. Our attention was firstly drawn to Act VII of 1963 known as West Pakistan Criminal Law (Amendment) Act, 1963. Section 4 whereof is in respect of the constitution of the Tribunal. A Tribunal in the aforesaid law consisted of a President who would be a Magistrate exercising powers of an Additional District Magistrate or invested with the powers under section 30 of Code of Criminal Procedure, 1898 by the District Magistrate from the panel constituted under section 5. For the sake of convenience both sections 4 and 5 of the aforesaid Act are hereby reproduced:-- "(4) Constitution of Tribunal.--The Tribunal shall consist of--
(a) a President who shall be a Magistrate exercising powers of an Additional District Magistrate or invested with powers under section 30 of the Code of Criminal Procedure, 1898; and
(b) four other persons to be appointed by rotation by the District Magistrate from amongst the panel constituted under section 5.
5. Constitution of panel.--(1) The Commissioner shall for each District in his Division constitute in the prescribed manner a panel consisting of not less than thirty and not more than fifty persons."
' Similarly Ordinance III of 1965 which is popularly known as Quetta and Kalat (Civil and Criminal Law) Ordinance, 1965 was referred. Again section 4 of the said Ordinance is in respect of constitution of Tribunal and reads as under:-- "4. Constitution of Tribunal.--The Tribunal shall consist of--
(a) a President who shall be a Magistrate exercising powers of an Additional District Magistrate or a Sub-Divisional Magistrate or who is invested with powers under section 30 of the Code of Criminal Procedure, 1898 or who has exercised powers of a Magistrate of the First Class, whether continuously or otherwise for a period of not less than three years; and
(b) four other persons to be appointed by the District Magistrate with due regard for integrity and social status."
' In both the aforesaid laws only the President was to be a Magistrate and as regards the remaining members of the Tribunal those had to be appointed having due regard for their integrity and social status. In Act VII of 1963 as per section 5 the Commissioner had to constitute a panel of such members consisting of not less than 30 and not more than 50 persons for each District in his Division.
10. It is pertinent to note that all these laws were special laws legislated for certain purposes, therefore, the interpretation or definition of any of the terms used in these laws would be relevant for the purpose of interpreting the similar terms used in the Ordinance II of 1968. In both Act VII of 1963 and Ordinance III of 1965 there are provisions for constitution of Tribunal as in section 6 of Ordinance II of 1968. The other peculiar feature which is common in all the three special laws was that the President of the Tribunal had to be a Magistrate whereas the words used for other four members were other persons and the authority while appointing them had due regard to the integrity and social status of such persons. In Act VII of 1963 a panel had to be appointed by a Commissioner for each District in his Division. If we agree with the contention raised by learned Advocate-General that there is no provision which expressly prohibits appointment of a Government official as a member, then we find also no such provision in the aforesaid two special laws but from the scheme of these laws the intention of legislature was to meet the special requirements of the area and to provide them legal forums for settlement of their disputes in accordance with their prevailing Riwaj and customs and way of their life. Learned A.-G. Failed to point out any instance that besides the President any Government official was ever appointed as Member in the proceedings conducted under these special laws. On the analogy of above laws, Ordinance II of 1968 was enacted. The scheme of Ordinance was to meet the special requirements of the area where application of Criminal Procedure Code was expressly excluded and for finding whether any offence has been committed, a forum consisting of a Government Official not below the rank of Naib-Tehsildar and four other persons to be nominated by the Deputy Commissioner was created.
11. Preamble provides a key to the main statute for the purpose of interpreting the terms and object of the statute. The preamble of Ordinance II of 1968 contemplates that it was enacted in order to meet the special requirements of the area. Special requirements are generally known to the representatives or notables of the public as they are well acquainted with the custom and Riwaj of the area. The intention was to allow participation of the people of the area in adjudicating the matter. If we agree with the interpretation as propounded by learned A.-G. Then people are excluded and it would be only Government officials who would form a tribunal. Had this been the intention then the legislature would have definitely said so and further that there was no need of as many as five Government officials to constitute a forum. Otherwise this interpretation would defeat the object as it contravenes the preamble.
12. In interpreting provisions of a statute or enactment where the words or a passage is susceptible of more than one meaning it would be important to consider the consequences of a proposed interpretation which would result from it. Unless the legislature expresses its intention with irresistible clearness to adopt a meaning which might be possible but which is against the intention of the legislature, such interpretation may not be readily accepted. While interpreting a statute the consequences are to be taken into consideration of any proposed interpretation.
Applying this principle if we agree with the contention as raised by learned A.-G. Then the consequences would be that the complexion of jirga system or of tribunal which has been practised for decades would entirely change because then Government officials would take the place of tribal notables. Obviously this was not the intention of legislature while enacting Ordinance II of 1968 and the consequences which would follow would be most unreasonable because then any S.H.0 , a Patwari or any other officer would he qualified to be appointed as a member of the tribunal.
13. Another factor to be taken into consideration in this regard is the principle that the statute if is susceptible of interpretation, then an interpretation which will be beneficial to the general public may be adopted. This backward area with its rudimentary custom has already started marching on the path of development and it is required that the laws governing this society must correspond with the social and economical change brought by development. In such circumstances if we interpret the provision, of Ordinance II to give absolute powers to the Government officials to sit and decide cases of scheduled offences under the Ordinance where Criminal Procedure Code is not applicable it would be a callous interpretation because the Government officials would be clothed with blanket authority with no participation of private persons in a jirga or tribunal system.
14. If we adopt the principle that the best way to interpret a statute is to assign to the words their literal meaning, even then the interpretation as propounded by learned A.-G. Cannot be accepted.
The words as used in section 6(2) of Ordinance II of 1968 are that in appointing a member other than the President the Deputy Commissioner shall have regard to the integrity, education, social status and representative character of such persons and subsection (1) contemplates that the Tribunal constituted for the purpose shall consist of a Government official not below the rank of Naib-Tehsildar and four other members all to be appointed by the Deputy Commissioner. From the perusal of subsection (1) the intention of legislature becomes much clear even from the plain reading of the provisions and if we attach literal meaning only a Government official is to be appointed who shall be the President of the Tribunal and who shall not be an official below the rank of Naib-Tehsildar. This clearly shows that the remaining members shall not be Government officials because while appointing them the D.C. Shall have regard to the integrity, education, social status and above all their representative character. The word `representative character' was intentionally added in this special enactment which ] was lacking in similar laws promulgated earlier.
'Representative character' has not been defined any where in the Ordinance, hence we have to see its dictionary meanings. As per Oxford Dictionary representative means "serving as portrayal or symbol of (a group representative of the theological virtues); that presents or can present ideas to the mind (imagination is a representative faculty); (of art) representational; typical of a class or classes containing typical specimens of all or many classes, (the truth of an allegory is representative, not literal; call a meeting of representativement; a very representative selection, collection); consisting of elected deputies or representatives; based on representation of nation etc. By such deputies.
15. That even from the dictionary meaning of word representative it becomes clear that a person who leads a group or can represent a class can be called a representative. We cannot concur with learned A.-G. That a Government official also falls within this definition as he represents his official status in the Government. Similarly word 'social status' means, the position of a person in the society. Further more subsection (3) of section 6 envisages that no person shall be appointed as a member of the Tribunal other than the President, except after giving opporutnity to parties concerned to raise objections if any to the appointment of such persons. Objections are invited in respect of members other than the President because the President is a Government official, therefore, the parties have not been allowed to raise objections on his appointment. The cumulative effect of reading entire section 6 would be that there shall be only one Government official who shall preside over and the remaining persons shall not be Government officials but private persons to be appointed by Deputy Commissioner who shall have regard for their social status, education and representative character. It is worth to point out that a similar Ordinance was enacted for settlement of Civil Disputes in this area known as Civil Law (Special Provisions)
Ordinance I of 1968 and composition of the Tribunal was exactly in the same words. While interpreting section 7 of the said Ordinance a Division Bench of this Court in case reported in PLD 1986 Quetta 130 (Ghulam Rasul and others v. Khudai Dad and others) had held:-- "Unless two private members were present with President, proceedings could not be conducted at all. Any action taken in violation of said provision, would automatically render proceedings quoram non judice and as such of no legal effect."
15-A. The conclusion of the aforesaid discussion would be that under section 6 of the Ordinance the Tribunal shall consist of only one Government official not below the rank of Naib-Tehsildar who shall be the President of the Tribunal and four persons who would be taken from amongst the private persons qualified to be taken as such under section 6(2) by the Deputy Commissioner.
16. As a result the tribunal constituted to try the petitioners was coram non judice as the same admittedly consisted of Government officials. The conviction so recorded on the basis of finding by said tribunal has, therefore, no legal basis and is ab initio void and without jurisdiction. In the circumstances constitutional petition before us is, competent and the petitioners could directly invoke the constitutional jurisdiction of this Court. A Division Bench of this Court has already held so in the case of Muhammad Nawaz Khoso v. The State as reported in 1987 PCr.LJ 2350.
17. The only course left would be to remand the case provided from the material on record it appears that any offence at all has been committed by the petitioners. The learned counsel for the petitioners filed certain documents alongwith this petition showing that there was an understanding and agreement which was being practised by the petitioners with O.G.D.C. With the effect that in case of shortage in the delivery of oil, petitioners Nos. 1 and 2 would be responsible to make good the deficiency by making payment. This was so agreed because usually people require oil for their tube-wells etc. Which the petitioners used to provide them and then make up the shortage. This practice was not new but was acted upon with the approval of the parties since long, so much so that the pro forma/forms contained a column regarding shortage so that the accounts may be kept right. In the circumstances, therefore, it is to be seen whether petitioners at all committed any offence. The learned counsel for the petitioners vehemently urged that in fact the petitioners committed no offence because they had undertaken to the O.G.D.C. To compensate the shortages. This practice was never challenged by O.G.D.C. And this being the reason that neither P.S.O. Nor O.G.D.C. Have filed any complaint against the petitioners for such shortages. From perusal of the documents it appears that almost every month there was shortage which was paid by the petitioners Nos. 1 and 2 and the same was accepted by the O.G.D.C. In the circumstances, therefore, there was no occasion for Naib-Tehsildar to initiate proceedings against petitioners.
18. Of course there are circumstances where criminal intention or mens rea would not constitute a necessary ingredient for an offence but generally such criminal intention is an essential feature to constitute an offence. In the peculiar circumstances of the case in hand, where the petitioners were charged with commission of offences under section 406/409/190/34 P.P.C., we think that mens rea was essential because there are documents to prove that the company took no exception in case of shortage of oil provided the same was compensated by payment. From perusal of all the attached documents it appears that almost in every month there were some shortages which were paid in terms of money to the company, with the tacit approval of the company. The State had not filed any document or produced any evidence to the contrary and the petitioners frankly admitted that they have sold two drums of oil because there was agreement with the company to make good such shortage by payment. So also the O.G.D.C. Or P.S.O. Filed no complaint against the petitioners for misappropriation. It appears that the petitioners used to sell few drums to the local people in the way while transporting oil from Dera Bugti to Pir Koh. Learned Advocate-General failed to controvert the aforesaid contentions. He, however, relied on the definitions of sections 409 and 406 P.P.C. By reading the same. His main attack was that since the case file has been sent to the Commissioner for confirmation of the sentence, therefore, such objections may be raised before the said forum. As we are convinced from the circumstances of the case that petitioners have committed no offence at all because they have acted upon the general practice by selling some oil to the people, therefore, it would not be in the interest of justice to put them to face a trial which would ultimately result in a fiasco.
19. Keeping in view all the aforesaid circumstances we are inclined to declare that the conviction and sentence passed by APA-cum-Deputy Commissioner, Dera Bugti dated 20-7-1989 was passed without lawful authority and the same, therefore, is of no legal effect. The order so passed is, therefore, set aside and the petitioners are ordered to be acquitted. The petitioners shall be released forthwith if not required in any other case. We leave the parties to bear their own costs.
20. Above are the reasons for our short order announced in open Court on 1-11-1989.