' The petitioner through this Constitutional petition challenged the criminal proceedings in the complaint under section 447/427, P.P.C. Pending against him before the Tribunal constituted under Criminal Law (Special Provisions) Ordinance 1968 (Order II of 1968) to be illegal and without lawful authority.
2. The brief facts giving rise to this Constitutional petition are that Khuda Bakhsh respondent No, 1, a resident of the area of B.M.P. Post Fazilia Kachh, Dera Ghazi Khan lodged a report against Nabi Bakhsh petitioner who also belongs to said area, to respondent No,2 containing the allegations that the petitioner through trespass forcibly occupied the land owned by the complainant and has caused damage to the property. A case was registered against the petitioner under section 447/427, P.P.C. On the direction of respondent No, 2 and after investigation, the challan was submitted before respondent No, 2 for trial who vide order dated 31-8-1986 summoned the petitioner and consequently the case was sent to Jirga constituted under Criminal Law (Special Provisions) Ordinance 1968 for trial.
3. The petitioner objected for his trial by Jirga on the ground that the question involved in the case is not that of illegal possession by way of trespass but that of the title of the property which is a civil dispute involving no criminal liability and the matter was to be brought before the Conciliation Court constituted under West Pakistan Conciliation Courts Ordinance, 1961. The main stress of the petitioner was that without first establishing the ownership of the land in question, the provisions of section 447, P.P.C. Could not be made applicable against him as the respondent has no proof of the ownership of the disputed land with him and the possession of the petitioner was in his independent right as owner of the land.
4. The objection of the petitioner was not entertained by respondent No,2 and he was constrained to file appeal before the Commissioner but that too failed. The petitioner without invoking the revisional jurisdiction of Government filed this writ petition before this Court questioning the authority of the Tribunal to proceed with the case for want of being properly constituted under section 6 of Criminal Law (Special Provisions) Ordinance, 1968.
5. The learned counsel for the petitioner contends that the matter is exclusively to be decided by Conciliation Court constituted under West Pakistan Conciliation Courts Ordinance, 1961, and not by Jirga constituted under the Criminal Law (Special Provisions) Ordinance, 1968. He urged that the value of the property damaged if exceeds Rs,100 constituting an offence under section 427, P.P.C., it shall, no doubt, be triable by the Jirga and not otherwise, if case falls under Part I of the Schedule to the Conciliation Courts Ordinance, 1961.
6. In reply to the arguments, the learned counsel for the respondent submitted that if damage caused to the property is more than Rs,100 attracting provisions of section 427, P.P.C., the offence is triable by the Jirga as provided in Part II of the Schedule to the Ordinance. II of 1968.
7. I have heard the learned counsel for the parties and gone through the relevant provisions of law.
8. The scheduled offence has been defined in section 2(E) of West Pakistan Ordinance 11 of 1968 as under: "An offence made punishable by the Pakistan Penal Code other than an offence specified in Section 'A' of Part I of the Schedule to the Conciliation Courts Ordinance, 1961". (XLIV of 1961)."
' Section 447, P.P.C. Is included in section A of Part Ito the scheduled of Conciliation Courts Ordinance, 1961 and section 427, P.P.C. Shall also be not a scheduled offence to be tried by a Tribunal constituted under Criminal Law (Special Provisions) Ordinance, 1968, if the value of the property involved does not exceed Rs,100. The complaint filed by the respondent does not disclose the value of the damaged property, for the purpose of section 427, P.P.C. Copy of the report submitted by President of Jirga (Annexure 'G') with this petition is only regarding the commission of an offence under section 447, P.P.C. And does not disclose the commission of an -offence under section 427, P.P.C. For the purpose of trial by the Tribunal. From the complaint and the report of the President of Jirga with evidence, the allegations are only of tres passing in the land and not that of the causing damage to any property. There is no cavil to the proposition that the offences mentioned in Part I to Section `A' of the Schedule to West Pakistan Conciliation Courts Ordinance, 1961 do not fall within the definition of scheduled offences for the purposes of West Pakistan Ordinance II of 1968. The Tribunal and the Commissioner an appellate Authority, have not bothered to look into this aspect of the matter. The Deputy Commissioner/Political Agent cannot take cognizance of an offence not falling within the definition of scheduled offence under section 2(c) of the Criminal Law (Special Provisions) Ordinance, 1968. Under section 4 of the said Ordinance, the Deputy Commissioner or the Political Agent as the case may be, if comes to the conclusion that no offence has been committed, has to dismiss the complaint. Further, if a person accused of more offences than one and any of such offences is not a scheduled offence, the Deputy Commissioner shall proceed only in respect of the scheduled offence. However, if the Deputy Commissioner makes a reference to the Tribunal constituted under section 6 of the Ordinance, the Tribunal shall provide opportunity to the parties and record such evidence as may be adduced by the parties or called by the Tribunal and at the conclusion of the proceedings shall submit a report giving its finding on the question referred to it by the Deputy Commissioner. On the receipt of the report, the Deputy Commissioner may pass appropriate order as provided under the Ordinance. The party aggrieved by the decision given by the Deputy Commissioner can prefer appeal to the Commissioner under section 23 of the Ordinance and a revision to the Government under section 24 of the Ordinance. In the present case, the Deputy Commissioner respondent No, 2 without applying mind to the facts of the case took cognizance of the matter and proceeded in the manner as provided under section 5 of the Ordinance. If the offence mentioned in the complaint is not of the nature falling within category of case in which Deputy Commissioner in exercise of has. jurisdiction has to take cognizance and sent it to the Tribunal, the whole proceedings shall be coram non judice and to be struck down. From the material placed on record, the case is not triable under Criminal Law (Special Provisions) Ordinance, 1968.
9. The basic question to take cognizance into the matter and exercise jurisdiction has not been looked into either by respondent No, 1 or by the appellate Authority. Section 24 of the Ordinance provides remedy of revision before the Government with regard to any proceedings pending before or disposed of before the Commissioner, Deputy Commissioner or Tribunal, the petitioner without availing the said remedy has filed this petition. Ordinarily, without exhausting the remedy of revision available under the law, the writ petition is not competent to be entertained, but in the present case the question of taking the cognizance and exercising the jurisdiction by the Deputy Commissioner and Tribunal is involved, therefore, the non-availing of the remedy of filing revision before the Government, in the circumstances of the case will not create a bar for this Court to exercise its Constitutional jurisdiction in the matter. This writ petition was admitted to regular hearing in December, 1989 and it is not proper to dismiss the same after five years on B technical ground. The writ petition bounds to succeed. 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 the 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 .