' Muhammad Wazir Khan petitioner by way of this Constitutional petition has sought declaration of the order dated 26-7-1992 passed by the Commissioner, D.G. Khan and dated 31-10-1992 by Home Secretary, Government of Punjab refusing the transfer of a case pending before the Tribunal at D.G.
Khan constituted under Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance II of 1968) to be illegal and without lawful authority.
2. Brief facts of the case are that cross-cases vide F.I.R. No, 19 of 1985 dated 6-5-1985 registered under section 148/302/307/149/109, P.P.C. Against Jalal Khan and F.I.R. No, 10 of 1985 dated 6-5-1985 registered under section 148/307/452/149/109, P.P.C. Against Akhtar Khan etc. At B.M. Post (Barthi), D.G. Khan are pending trial before the Political Assistant, D.G. Khan. The petitioner an accused in case F.I.R. No, 9 of 1985 approached Commissioner, D.G. Khan for transfer of the above titled case from the Court of Political Assistant, D.G. Khan to the Court of Political Assistant, Rajanpur but his application was dismissed by the Commissioner vide order dated 26-7-1992. Feeling aggrieved he moved a petition before Home Secretary, Government of Punjab under section 24 of the Criminal Law (Special Provisions) Ordinance, 1968 but that too was dismissed on 31-10-1992.
' The petitioner has assailed the order dated 26-7-1992 passed by the Commissioner, D.G. Khan and order dated 31-10-1992 passed by the Home Secretary, Government of Punjab before this Court through this petition mainly on the ground that sons of Nabi Bukhsh and Ghaus Bakhsh, the two members of Jirga are Sawars in B.M.P. And are under the control of Ghulam Qadir Jamandar an accused in the case, who had prevailed upon the above-named members of the Jirga and the petitioner did not expect fair trial and apprehends his conviction. The other ground taken by him was that the Jirga is not properly constituted for want of participating of Maulvi Qatab Din another member, in the proceedings of the Jirga since long.
3. The learned counsel argued that the Commissioner, D.G. Khan as an appellate Authority and the Home Secretary, Government of Punjab, a revisional Authority in the case were competent to transfer the case as prayed but the refusal to exercise power vested in them amounts to failure to administer the justice required under the law.
4. The learned counsel for the respondents submitted that the case pending is in evidence before the Tribunal and the transfer application before the Commissioner and revision petition before the Home Secretary and now this petition before this Court has been moved with no useful purpose except to delay the matter and frustrate the proceedings in the case. He next argued that members of the Tribunal were appointed by the Deputy Commissioner with the consent of the parties, therefore, petitioner is not justified to raise objection to the appointment of Nabi Bukhsh and Ghous Bukhsh and members of Jirga.
5. The preliminary objection raised was that High Court is not empowered to exercise its Constitutional jurisdiction under Article 199 of the Constitution to the Tribal area.
6. Tribal Area has been defined under Article 246 of the Constitution of Islamic Republic of Pakistan, 1973. The Provincial and Federal administered tribal areas have been classified separately. The schedule to West Pakistan Ordinance No, 11 of 1968 under item No, 6 includes: "The Former excluded Areas of Upper Tanawal and Baloch Area of Dera Ghazi Khan specified in the schedule to the Excluded Areas (Cessor of Exclusion) West Pakistan Order, 1961 (P.O. 3 of 1961).
7. The Criminal Law (Special Provisions) Ordinance, 1968 has been made applicable to the area specified in the schedule to the Ordinance. The Baloch area of D.G. Khan and Rajanpur specified in the schedule to be excluded area (Cessor of Exclusion) (West Pakistan Order, 1961) (P.O. No, 3 of 1961) is a scheduled area for the purpose of West Pakistan Ordinance No, II of 1968. An area forming part of Tribal area or an extended area for the purpose of Criminal Law (Special Provisions)
Ordinance, 1968, is subject to Constitution and a High Court established under Article 192 of the Constitution has the jurisdiction throughout the Province unless specifically excluded through an Act of Parliament. Under Article 192 (4) an area not forming part of province can also be made subject to the jurisdiction of a High Court through an Act of Parliament, thus the High Court of a Province is not debarred to exercise its jurisdiction in the Tribal area under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8. Section 23 of Criminal Law (Special Provisions) Ordinance, 1968 provides the remedy of appeal against the decision given, sentence passed or order made by the Deputy Commissioner under the said Ordinance. Similarly, the Government enjoys revisional powers under the Ordinance.
Section 24 provides that Government may at any stage call for and examine the record of any proceedings pending before or disposed of by the Commissioner, Deputy Commissioner or Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of any decision or sentence or order given, passed or made as to the regularity of such proceedings. The 'order' passed under the Ordinance is not confined to the order Of conviction or acquittal only but includes all orders passed by he Deputy Commissioner in the case being proceeded under the Ordinance and the appellate Authority is competent to confirm, modify, alter or set aside any decision, sentence or order passed by the Deputy Commissioner. Further, the Government enjoys the revisional powers of satisfying the correctness, legality and propriety of any decision, sentence or order, given, passed or made, therefore, the revisional jurisdiction of the Government is wide enough and the order of transfer of the case or order of refusal to transfer the same is amenable to the revisional jurisdiction of the Authority. Once a case is referred to a Jirga for trial, the parties are deprived of the ordinary freedom and methods of law applicable in a regular Court of law. An accused before Jirga cannot avail remedies of appeal/revision etc. Against an order before any other forum except provided under the Ordinance. The deep scrutiny of the provisions of Ordinance make it clear that it confers unrestricted and unfettered powers in the executives to administer criminal justice. The entire hierarchy provided in the Ordinance to deal with the cases triable by a Jirga is from the executive officers from bottom to top.
' The power of hearing appeal and revision has been entrusted to Commissioner of the Division and the Home Secretary of the Province respectively with complete exclusion of jurisdiction of the regular Courts. Undoubtedly, there is no specific provision for the transfer of cases provided in the Ordinance but by virtue of sections 23 and 24 of the ibid Ordinance the Authorities are empowered to exercise this jurisdiction in respect of all orders passed under die Ordinance. The appeal provided under section 24 of the Ordinance is not only confined to the conviction or acquittal but also other orders of the nature to have substantial effect on the ultimate decision of the case.
9. In the present case, the petitioner moved an application before the appellate Authority for transfer of the case which was dismissed on the ground of incompetency. The Home Secretary, Government of Punjab declined to transfer the case in exercise of his revisional jurisdiction under section 24 of the Criminal Law (Special Provisions) Ordinance, 1968 which confers wide powers to him to deal the matters falling within his competence and jurisdiction with no restriction as has been observed by the Home Secretary. The provisions of section 24 of the Ordinance are not confined only to the exercise of revisional power in the matter relating to the conviction and sentence or acquittal but also to all ancillary matters relating to the proceedings. The connotation of the word 'order' used in relation to the revisional jurisdiction of the Government includes all orders whether as a result of conclusion of the proceedings or in relation to the proceedings pending trial, therefore, the Home Secretary by virtue of section 24 of the Ordinance can competently exercise his jurisdiction in the matters of transfer of a case from one Tribunal to other Tribunal.
10. However, the Criminal Law (Special Provisions) Ordinance 11 of 1968 being in conflict with the fundamental rights granted under the Constitution of Islamic Republic of Pakistan, 1973 has been declared void by the Supreme Court of Pakistan in Government of Balochistan v. Aziz Ullah (PLD 1993 SC 341).
' The Authorities under the said Ordinance have ceased to exist and exercise their powers forthwith, resultantly, all matters pending before the Tribunal constituted under the said Ordinance including the appeals and revision cannot proceed and shall be tried/heard by he Ordinary Courts functioning in the district. The Deputy Commissioner shall make the necessary arrangement for sending the record of the case subject-matter of this petition to the Sessions Judge D.G. Khan for the trial. This petition is accordingly accepted with no order as to costs.
Writ .