NOORUL ARFIN, J.-This constitutional petition calls in question the order dated 17-11-1971 made by a Member of the Board of Revenue, Baluchistan. In brief, the facts are these. On 9-5-1969, one Mir Ahmad Ashezai of Chaman informed the Assistant Commissioner that there has been a quarrel between two groups, namely, the group of Malik Pir Muhammad and Muhammad Isa of Rehman Kahol of Ashezai Tribe and the group of Malik Abdul Ghaffar, and that both the groups were proceeding towards village Sirki Talliri where, it was appre--hended, the groups will fight among themselves. The Assistant Commis--sioner, accompanied by the Tehsildar, reached the place where a fight was apprehended, but, by that time the fight was already over and two persons of the Rehman Kabol group. (the petitioner's party) were already dead, they being Muhammad Umar and Abdul A.I, and nine persons of this party had received injuries, they being Khair Muhammad, Inayatullab, Abdulla Qayyum, Abdul Ghafoor, Sadullab, Abdul Ghani, Ghulam Muhammad, A.I Khan and Mohammado. The last two persons later succumbed to their injuries and died. The Tehsildar was ordered to carry out the investigation, and in his report submitted to the Assistant Commissioner, he submitted that he had reached the conclusion that only seven persons of the respondent's party were involved in the fight, namely, Malik Abdul Ghaffar, Malik Abdul Kadir, Malik Abdul Mannan, Khair Muhammad, Abdul Hai, Abdul Karim and Akhtar Muhammad, all sons of Malik Zarif, but that, according to the statements of the persons who received injuries, six more persons belonging to the respondent's party were also involved in the fight, they being the six respondents before us, but that the allegations against these six persons were not supported by any other evidence. The petitioner's party also filed a direct complaint before the Assistant Commissioner on 28-5-1969, in which they had implicated all the 13 persons belonging to the respondent's party who have been named above. On the same day the Assistant Commis--sioner ordered registration of the case against all these 13 persons and referred the matter to the Tehsildar, who was already carrying out investi--gations. As stated above, the Tehsildar submitted his report, and this was done on 15-9-1969, in which report he took the view that only 7 persons, referred to above, were involved in the fight and the other six had only been implicated by the injured persons, but that their allegations did not find support from other evidence. It may here be stated that seven persons named by the Tehsildar had already made good their escape into Afghanistan. On 2-1-1970, the Assistant Commissioner, who was invested with powers of the Deputy Commissioner, made an order that he had taken cognizance of the offence under section 4 of the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance II of 1968) against thirteen persons, namely, Malik Abdul Ghatfar and twelve others, and that the case would come up before him on the same day for constitution of a Tribunal under this Ordi--nance. Accordingly, notices were issued to all the accused including the respondents 1 to 6, who moved an application before the Assistant Com-- missioner on 1-3-1971 to the effect that they should be discharged from the case, as the report of the Tehsildar had completely exonerated them. This application was rejected by the Assistant Commissioner on 3-4-1971, and in his order, the Assistant Commissioner took the view that under section 4 of the said Ordinance, be was required to refer the case to the Tribunal for making an enquiry of the offence of which he had taken cognizance, and that as regards the guilt or innocence of the accused, this would rest on the determination which the Tribunal may make on the evidence before it. An appeal made by the respondents 1 to 6 against this order was rejected by the Commissioner, Quetta Division on 6-7-1971, but a revision application there against was accepted by the Member, Board of Revenue, baluchistan by order dated 17-11-1971. Hence the petitioner's party has brought this constitutional petition to obtain a declaration that this order of the Member of the Board of Revenue was made without lawful authority.
2. Mr. I. H. B. Hanafi, the learned Advocate for the respondents 1 to 6 submitted his written objections in the Court today, and contended therein that no action could be taken by the Assistant Commissioner on the direct complaint dated 28-5-1969, as the matter was already under investigation by the Tehsildar, and, in the alternative, cognizance of the offence was taken in fact only on 2-1-1970 on the report submitted by the Tebsildar, but only against seven persons who were named as the guilty persons in this report. At the Bar, Mr. I. H. B. Hanafi formulated these two contentions into one proposition, that is, that since cognizance of the offence had once been taken by the Assistant Commissioner when he directed the Tehsildar to carry out investigation, no second cognizance of the offence could be taken on the direct complaint dated versus Thus, the very order upon which reliance is placed by Mr. I. H. B. Hanafi shows that the Assistant Commissioner took cognizance of the offence against all the thirteen persons named in the direct complaint submitted to him by the petitioners' party. As regards the contention of Mr. I. H. B. Hanafi that having once taken cognizance of the offence by directing the Tehsildar to carry out investigations, the Deputy Commissioner could not take cog--nizance a second time on the direct complaint made by petitioner's party, we would say that this is not the course which the Assistant Commissioner in fact adopted. If the order to the Tehsildar to carry out investigations constituted cognizance of the offence by the Assistant Commissioner, then the order on the direct complaint dated 28-5-1969 did not in any way constitute a second cognizance of the offence as this order would show. The order reads as follows;----
5. Accordingly, we are of the view that even if it be held that the Assistant Commissioner took cognizance of the offence when he directed the Tehsddar to carry out investigations, his order on the direct complaint submitted to him on 28-5-1969 does not constitute "cognizance of the offence", but is, in effect, a direction to the Tehsildar to carry out investigations against the persons named in the complaint as the offenders, because cognizance of the offence had already been taken previously, and the second order is merely taking cognizance of the case of more accused persons than proceeded against by the Tehsildar. However, in our opinion, the direction to the Tehsildar to carry out investi--gation does not constitute cognizance of an offence. If any orders constitute cognizance of an offence, then it is either the order made by the Assistant Commissioner on 28-5-1969 on the direct complaint of the petitioner's party when he directed that the case be registered against the offenders named in the complaint, or the order dated 2-1-1970, when the Assistant made a formal order to the effect that he took cognizance of the offence against Malik Abdul Ghaffar and twelve others, and that the case should come up before him in the course of the day for constitution of the Tribunal. We are, therefore, unable to agree with Mr. Hanafi's contention that the Assistant Commissioner took cognizance of the offence twice, once when he directed the Tehsildar to carry out investigations, and again when he made the order on the direct complaint of the petitioner's party. In our view, the orders of the Assistant Commissioner, dated 3rd April 1971, when he refused to discharge the respondents 1 to 6, and the order of the Commis--sioner, Quetta Division, when he rejected the appeal of the respondents, were valid orders, and it was the learned Member .Of the Board of Revenue who, when making the revisional order dated 17-11-1971, completely_ misunderstood the legal position. Accordingly, we accept this petition and quash the order of the Member of the Board of Revenue as having been made without lawful authority.