This is a petition under Article 199 of the Constitution whereby petitioners have impugned the order dated the 26th February 1975, passed by the Member, Board of Revenue III in Revision No. 9/CR/Bit/74 filed before him by the petitioners against respondent No. 2 under section 24 of the Criminal Law (Special Provisions) Ordinance, 1968 (hereinafter called the Ordinance).
2. The facts giving rise to this petition, to state them briefly, are That on the 19th August 1972, Malik Mirza Khan respondent No. 2 filed a complaint under sections 424, 379 and 34, P. P. C. Against the petitioners in the Court of Assistant Commissioner, Pishin, who is vested with the powers of the Deputy Commissioner under "the Ordinance" alleging therein that the petitioners have failed to give him his share of Batai from the produce of land known as 'Jungle Sarkar' belonging to the Central Govern--ment. The Assistant Commissioner took cognizance of the complaint and constituted a Tribunal under section 5 of the Ordinance, and referred the question of guilt or innocence of the petitioners the decision of the Tribunal. The Tribunal gave its award on the 19th March 1973 to the effect that the petitioners be punished. On the receipt of the award, the Assistant Commis--sioner, Pishin, by his order dated the 17th July 1.973 convicted each of the petitioners to pay a fine of Rs. 50.00 or to undergo two weeks' rigorous imprisonment.
Aggrieved by the order of the Assistant Commissioner, the petitioners preferred an appeal to the Deputy Commissioner, Quetta-Pishin Quetta, challenging the very maintainability of the complaint, the award of the Tribunal,_ and the order of the Assistant Commissioner, Pishin. The Deputy Commissioner, by his order dated the 10th December 1973, partially allowed the appeal and set aside the order of the Assistant Commissioner inter alia, on the ground that no proceedings whatsoever had taken place before the Tribunal nor was any evidence for the prosecution produced before the Tribunal and remanded the case to the Assistant Commissioner for disposal according to law. Still not satisfied with the order of the Deputy Commissioner, the petitioners preferred a revision application inter alia, on the ground that from the allegations made in the complaint no prima facie offence was made out and, therefore, the Assistant Commissioner had no jurisdiction to take cognizance or to send the matter to the Tribunal. However, subsequently one more ground was added in the revision applica--tion and it was that under section 24 of the Ordinance only Government of the Province has power to hear a revision, and the Member, Board of Revenue, not being Government, has no jurisdiction to bear it. The learned Member, Board of Revenue, however, by his short order dated the 26th February 1975, which is impugned in this Constitutional Petition and which is reproduced herein below, dismissed the petition "I have gone through the impugned order. On perusal of the impugned order it transpires that the Tribunal without examining the prosecution witnesses awarded their verdict, which is against mandatory provisions of law. I see no reason to interfere with the impugned order. Revision stands dismissed."
3. I have heard Mr. Azizullah Memon, the learned Advocate for the petitioners in support of the petition and Mr. Jafri, the learned .Advocate far respondent No. 2. Before me the learned Advocate for the petitioners initially raised the following contentions:
(i) That the Member, Board of Revenue is not authorised under sec--tion 24 of the Ordinance to bear revisions as it is only the Government which is authorised under the said provisions to hear revisions and as such, notwithstanding that the petitioners themselves had preferred the revision to the Member, Board of Revenue, he bad no jurisdiction to hear the revision application and pass the impugned order.
(ii) In any case, and without prejudice to the above, the learned Member, Board of Revenue failed to consider the ground urged before him namely, whether the allegations made in the complaint filed by respondent No. 2 disclosed the commission of any scheduled offence and also failed to give his decision thereon, and as much he acted illegally and failed-to exercise jurisdiction vested in him.
4. However, the learned Advocate for the petitioners did not subsequ--entry press the first ground and confined his arguments only on second ground urged by him before me.
5. Unfortunately, the order passed by the Member, Board of Revenue is not a detailed order and he has not at all discussed in the impugned order the above-mentioned ground or give his finding thereon. It is not even possible for me, fn the absence of any indication in the order itself to hold whether he had applied his mind to the ground urged before him. It has been laid down as a rule by their Lordships of the Supreme Court of Pakistan, in the case of Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173), that "A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their A proper adjudication" because "litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and judicious treatment of their cases and their determination by proper orders".
While considering a judgment of High Court of East Pakistan (Dacca), in the case of AdamJee Jute Mills Limited v. The Province of East Pakistan (PLD 1959 SC (Pak.) 272), the Supreme Court of Pakistan again observed as follows: "There are two basic objections to this procedure (1) the Supreme Court has no idea of the grounds on which the application was dismissed and is thus deprived of the benefit of the High Court's opinion, and (2) the non-suited party has no means of knowing that the questions raised by him were considered by the High Court."
In my opinion the above observations of their Lordships of the Supreme Court are fully applicable also to the orders passed by all judicial or quasi --judicial Tribunals. Therefore. Respondent No. 1 ought to have discussed in his order the ground urged before him and given his finding thereon.
6. I may mention that Mr. S. H. Jafri the learned Advocate for respondent No. 2 contended before me that the member, Board of Revenue must be deemed to have considered the ground urged by the petitioners and rejected it and in support of this contention he relied upon the case of Muhammad Yousaf v. Member, Board of Revenue (1970 SC M C 170), but the facts of this case are different and the question which came up for consideration in this case was that the Collector had decided the appeal without first deciding the question of limitation and it was held since the question of limitation was specifically brought to his notice, he, by deciding the appeal on merits, had impliedly condoned the delay. But before the Member, Board of Revenue, in the present case, the question raised by the petitioners was one relating to the merits of the case and he ought to have decided the same. There was no question of impliedly condoning and delay in the present case. Therefore. The authority cited by the learned Advocate for the respondents is distinguish-- able and is not of much help to him.
7. Mr. Jafri also urged before me that a perusal of the complaint would show that allegations made therein do constitute the commission of scheduled offences. I am not inclined to consider this aspect of the case for I would be usurping the jurisdiction of the learned Member, Board of Revenue. It is for him to apply his mind and give his decision thereon. May be that the decision on the point urged before him might have ended the controversy and he might not have allowed the remand of the case to stand. Therefore, there was failure on part of the Member, Board of Revenue to exercise jurisdiction vested in him and his order is not in accordance with law which also includes a rule of law laid down by the superior Courts of law. There--fore, I have no hesitation to come to the conclusion that the impugned order has been passed without lawful authority and is of no legal effect, and I declare it to be so, and in consequence direct the learned Member, Board of Revenue to consider the aforesaid ground and any other ground taken in the revision application and that may be urged before him and give his decision) thereon.
9. Under the circumstances of this case and in view of the fact that omission to consider the ground was on the part of the Member, Bard of Revenue who has not chosen to defend the case, I do not award any cost. The parties present before me shall bear their own cost.
10. It is pointed out by Mr. Jafri that the learned Member, Board of Revenue who dealt with the revision application is no more there, but his successor must be there. Therefore, the revision application will be heard and decided by the successor as directed above.