' This judgment shall dispose of W.P. No,11880 of 1995 and W.P. No,12516 of 1995 as the facts and law in both these writ petitions are the same.
' Facts for the disposal of these petitions are that an advertisement appeared in the daily "The Pakistan" on 8-7-1995 for leasing out the collection rights of goods exit tax of Zila Council, Okara, through auction for the year 1995-96. The case of the writ petitioner in W.P. No,11880 of 1995 is that he submitted his call deposit for an amount of Rs,25 lacs drawn at United Bank Limited and participated in the auction held on 17-7-1995 along with nine other bidders. Since the highest bid offered at the time of auction was Rs,2,27,00,000 which was less than the previous years as such the auction committee decided to re-auction it again through public notice. Subsequently he came to know that respondent No,2 Administrator Zila Council, Okara, recommended the bid of contesting respondents Nos. 3 to S for an amount of Rs,2,47,00,000 and sent the papers for confirmation of their bid. It was the case of the petitioner that the moment he came to know about this development, he immediately approached the Minister for Local Government and Rural Development and pointed out the illegalities committed in the holding of auction and making of reference. He himself offered Rs,2,60,00,000. The Minister through his order, dated 23-7-1995 rejected the proposal submitted by Administrator for the acceptance of the bid and directed him to re-auction the right again immediately. It so happened that instead of adhering to this direction of re-auction, by another order, dated 31-8-1995 the Minister approved the bid of respondents Nos.
3 to 5 for Rs,2,47,00,000 for a period of 11 months. Consequent to this the possession was handed over to respondents on 3-9-1995. Further on their representation it was decided by the Government that the lease period would be 12 months commencing from 1-7-1995 to 30-6-1996. However, subsequently it was conveyed to respondents Nos. 3 to 5 that 12 months period would commence from 3-9-1995, the date of handing over of the possession.
' The case was argued at some length by the learned counsel appearing for the respective parties and they also produced precedents in support of their respective stances. It is pertinent to mention here that Writ Petition No,11880 of 1995 firstly came up for hearing on 20-9-1995 and being prima facie satisfied with the allegations levelled by the petitioner, I directed respondents Nos.1 and 2 Secretary, Local Government and the Administrator Okara respectively to appear personally in Court along with record on 26-9-1995. W.P. No,12516 of 1995 involving identical points came up for hearing on 24-9-1995 and was ordered to be heard along with Writ Petition No,11880 of 1995.
' Both these writ petitions came up for hearing on the adjourned date i,e, 26-9-1995. The petitioner in Writ Petition No,11880 of 1995 filed an application in Court under section 151, C.P.C. Through another learned counsel Mr. Ihsanullah Khan Lillah making prayer for the withdrawal of his writ petition as the same according to him was filed under some "misunderstanding". Since I was not satisfied with the bona fide of the stance of the petitioner, I checked his signature on the bid sheet (Annex.B) of his petition at serial No,6. Firstly he denied his signature but after some time he stated that it was he who had affixed his signature on the bid sheet at serial No,6. Due to contradictory stances taken by him in the Court he was asked to produce his National Identity Card and was also directed to sign in Urdu on a paper. I noticed that his signature on the Identity Card is in English while signature got in Court on a paper in Urdu did not at all tally with his signature on the bid sheet. Learned counsel for the respondents Nos3 to 5 Mr. All Ahmad Awan also supported the stance vehemently qua the withdrawal of the Constitutional petition. It is not denied that the writ petitioner has got right to withdraw his petition but the same cannot be exercised freely after the notices have been issued to the other side who have incurred a lot of expenses in order to cause their representation in the lis particularly so when the illegalities pointed out by the petitioner prima facie satisfied the Court resulted in the issuance of the notice. In this case the Minister for Local Government and Rural Development earlier ordered for re-auction on 23-7-1995 because of the alleged pooling of the contractors. This assertion of the Minister qua pooling among the contractors gets some support from the conduct of the parties demonstrated before this Court in the matter of withdrawal of the Constitutional petition. The petitioner advanced a vague reason of "misunderstanding" in seeking the permission to withdraw. If this tendency is allowed to continue, this would certainly give under lever to the unscrupulous litigants to come to this Court with the bundle of allegations and after succeeding in getting issuance of notices to the other side, would settle their score by withdrawing their Constitutional petition in the amidst. There is another aspect of the matter in this case which cannot be lightly overlooked as the same allegation respecting the conduct of auction and pooling of the contractors is also the subject-matter of the connected writ petition. In this background after having noticed the illegalities committed in the acceptance of the bid I am not persuaded to accede to the prayer of withdrawal after issuance of notice to the other side. Reliance in this respect is placed upon Messrs Hindustan Sanitary and Drainage Works v.
Shabbir Burhani and 6 others PLD 1992 Karachi 21.
The other ground that a vested right accrued to respondents Nos. 3 to 5 after the acceptance of their bid and consequent transfer of possession to them is devoid of any force. According to the statement of the Administrator Zila Council, Okara till date no formal contract has been executed between the parties. To determine whether the execution of formal contract is necessary it is desirable to detail out the following provisions of the Punjab Local Government Ordinance, 1979 and the rules made thereunder. Section 39 thereof provides as under:-- "39. Contract.--(1) All contracts made by or on behalf of a local council shall be--
(a) in writing and expressed to be made in the name of the local council;
(b) executed in such manner as may be prescribed; and
(c) reported to the local council by the Chairman at the meeting next following the execution of the contract.
(2) No contract executed otherwise than in conformity with the provision of the section shall be binding on the Local Council.
It is noticed that subsection (2) ibid is couched in negative terms to the effect that any contract executed otherwise would not be binding upon the local council.
' Sub-rule (5) of rule 7 of the Punjab Local Council Lease Rules, 1990 as under:--
(5) A lease shall not become operative unless the lessee enters into an agreement with the Local Council.
In the same terms sub-rules (7) and (10) of rule 16 of the Punjab Zila Council Goods Exit Tax are couched which are as under:--
(7) In case the Zila Council does not confirm the bid, it may decide that the lease of the export tax shall again be put to auction under the rules. '
(10) The successful bidder shall execute a formal deed in favour of the Zila Council the cost of which shall be borne by him, containing the terms and conditions of the lease before exercising rights thereunder.
The reading of the aforesaid provisions demonstrate that the execution of formal agreement is necessary before any party embark upon the collection of taxes. The terms and conditions of the agreement is to be executed in a formal deed. It was admitted before me by the Administrator, Okara as already mentioned that till date no formal agreement has been executed between the parties. The law/rules quoted above have provided in an unequivocal terms that all the contracts should be in writing. In this case by delivering possession to respondents Nos. 3 to 5 on 3-9-1995, the respondent Local Council has violated the aforesaid provisions in clear terms. It amounts to putting the cart before the horse. It has consistently been held by the superior Courts that if a method has been prescribed to do a thing in a certain manner it must be done in that manner alone or not at all. The violation of law/statutory rules would not create any right in favour of the respondents.
' The argument that the Administrator is the last authority in leasing out the collection right and the Minister for Local Government is totally alien in the matter as he has got nothing to do is also of no assistance to the respondents. Section 26-A of the Local Government Ordinance provides as under:-- "26-A. Curtailment of term of office.--(1) Notwithstanding anything to the contrary contained in section 26, where, before the expiry of the term of office of the local councils, fresh elections to local councils have been announced or held under the Ordinance, Government may by Notification in the official Gazette curtail the term of office of the Local Councils.
(2) On the curtailment of the term of office of the local councils under subsection (1) all powers and functions of the local councils shall be exercised and performed by such person or authority as Government may appoint in this behalf as Administrator and the lands and properties belonging to the local council shall vest in Government still such time to newly elected local councils are inducted into office."
' Chapter 15 of the Local Government Ordinance deals with the supervisory power of the Government over the local council. Sections 153 and 156 thereof provide as under:- "153. Supervision of Local Council.---Government shall exercise general supervision and control over the local councils in order to ensure that their activities conform to the provisions of the Ordinance.
156. Safeguards.---If, in the opinion of Government anything done or intended to be done by or on behalf of a Local Council or Committee is not in conformity with law or is in any way against public interest, Government for reasons to be recorded may---
(a) quash the proceedings;
(b) suspend the execution of any resolution passed or order made by the Local Council or Committee: and
(c) prohibit the doing of anything proposed to be done."
The aforesaid provisions demonstrate that the control is to be exercised by the Government to ensure that the activities of the local council conform to the provisions of the Ordinance. Since the local council stood superseded as such Administrators were appointed to look after the affairs. It is to be noticed that the Zila Council themselves were collecting the tax and duty. The Government having supervisory power decided through Memo. Dated 24-4-1995 to give allowance to the Zila Councils to lease out the collection of goods exit tax for the financial year 1995-96. Certain conditions were laid down to ensure fool proof and transparent nature of the transaction. It is provided in that Memo. That the auction proceedings would be forwarded to the Government for confirmation of the lease by Minister for the Local Government. In this case it is not denied that auction was held pursuant to the aforesaid Memo. The Administrator Zila Council, Okara after holding the same submitted the papers for onward confirmation. The Minister for Local Government after noticing that there was allegation/complaint of pooling among the contractors did not confirm the bid and ordered that the lease be auctioned with the base line of Rs,2,60,00,000 offered by the writ petitioner in W.P. 11880 of 1995. The auction having held after the allowance given by the Memo. Dated 24-4-1995 to the Zila Council it cannot be said that the Minister has got no say in the matter. The administrator sent the papers in pursuance to the dictates of the Memo. Dated 24-4-1995 for confirmation of the bid to the Minister as the same was held thereunder. In this background it cannot be said that the Minister has got no say in this matter. Even otherwise Government or for that matter the Minister would not be a silent spectator to the dolling out of the State property. He having passed the order of fresh auction could not have withdrawn the same as the valuable right has accrued to the prospective bidders as well as Zila Council, Okara. Alleged pooling of the contractors in the words of the Minister has deprived the Zila Council from substantial amount. The argument that the Minister under the General Clauses Act has got power to recall his order would also be of no assistance. He having taken stock of all the events decided for holding of fresh auction. After this decision a right has been accrued in favour of the prospective bidders as well as Zila Council, Okara. As stated by the learned counsel appearing in W.P. 12516-95 the petitioner therein is ready to pay Rs, one crore more than the amount on which it was allegedly given to the respondents. The facial matter of the Zila Council cannot be put at stake. The functionaries entrusted with the performance of duty are expected to act in an honest and transparent manner so as to protect the interest of the State. After accrual of right to prospective bidders as well as Zila Council the direction for reacting cannot be frustrated. #TBS PLD #TBE Another argument has been advanced that the matter pertains to the disputed questions of facts as such the Constitutional jurisdiction would not be attracted is also of no avail. It is not disputed that the Minister after taking stock of auction proceedings of Zila Council came to a definite conclusion that the same has been effected through pooling of contractors which has caused tremendous loss to the Zila Council. After considering this aspect he came to a definite conclusion to re-auction the same. In this background simply because he petitioner has been given possession by Zila Council through work order before execution of the formal contract and has embarked upon collection of tax by expending some money would4not detract this Court from exercising its Constitutional jurisdiction.
' The learned Advocate-General who has entered appearance on Court's call has vehemently supported the stance of the writ petitioner in Writ Petition No,12516 of 1995 on the strength of section 26, subsection (2) of the Local Government Ordinance on the ground that the property of the local council vests in the Government and it is the responsibility of the functionaries to utilise the same in the best manner so as to watch its interest.
' Resultantly for what has been stated above the writ petitions are accepted and the order dated 31-8-1995 confirming the bid of the respondents is declared to have been passed without lawful authority and of no legal effect. It is further directed that the fresh auction be held with the base line of Rs,3,47,00,000 as offered by the writ petitioner in W.P. 12516 of 1995. It is made clear to the writ petitioner in W.P. No,12516 of 1995 that in case he does not stick to his offer of Rs,3,47,00,000, Rs,25 lacs deposited by him would be forfeited. There shall be no order as to costs.
Order accordingly PLD 1995 Lahore 30 Before Arif Iqbal Hussain Bhatti, J MUHAMMAD NADEEM---Petitioner versus ADDITIONAL SESSIONS JUDGE, LAHORE and others---Respondents Writ Petition No,3471 of 1995, decided on 11th July, 1995. (a) Penal Code (XLV of 1860)--- ----Ss. 302/324/34 & 324/337/34---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Cross-cases---Trial of---Complaint filed by accused containing counter-version of the incident, on which a challan case was already pending before Sessions Court, was dismissed by the Magistrate and the revision petition against that order was also dismissed by the Sessions Court---Both the parties claimed to have fired in the exercise of the right of private defence at the time of occurrence resulting in death of a person on the complainant side and a compound fracture of the leg of one of the accused persons---Both the cross-cases containing counter- versions of the same incident between the same parties under the established principle of law were to be tried by one Court and the impugned orders whereby the aforesaid complaint was dismissed had violated that principle---Both the Courts had committed an error of law in deciding the matter and had gone outside their jurisdiction conferred on them---Impugned orders were consequently declared illegal and of no legal effect and were set aside and the complaint was restored to the Court of Magistrate which had sufficient prima facie evidence for summoning of the accused and proceeding further in accordance with law---Constitutional petition was allowed accordingly. [pp. 35, 36, 37] A, E & F 1991 SCMR 1608; PLD 1984 Lah. 323; Abdul Rehman Bajwa v. Sultan and others PLD 1981 SC 522; Utility Store Corporation v. Punjab Labour Tribunal PLD 1987 SC 447; PLD 1974 SC 139 and 1974 SCMR 530 ref.
(b) Criminal trial-- ----Cross-cases---Trial of---Cross-cases containing counter-versions of the same incident between the same parties are to be tried by one Court, evidence is to be adduced side by side and judgment is to be announced simultaneously. [p. 35] B
(c) Criminal Procedure Code (V of 1898)--- ----S. 202---Inquiry under S.202, Cr.P.C. And regular trial---Distinction.
The object of an inquiry under section 202, Cr.P.0 is to ascetain the truth or falsity of the complainant. There is a difference between a primary inquiry and a full dress trial by a Court. A private complaint can be dismissed after holding a preliminary inquiry and if in the judgment of the Court, there is not sufficient ground for proceedings. The burden of proof in a preliminary inquiry under section 202, Cr.P.C. Is lighter on complainant as compared to the burden of proof on the prosecution during the trial of an offence. There is a marked distinction as to the approach of appraisal of evidence at the time of holding a preliminary inquiry and at the regular hearing of a criminal case. At the former stage, a Magistrate or the Court is not expected to examine the evidence where as the later stage, the Magistrate or the Court is required appraisal of the evidence thoroughly and to record its finding on the basis of such appraisal. [p. 35] C 1991 SCMR 1608 and PLD 1984 Lah. 323 ref.
(d) Constitution of Pakistan (1973)- ----Art. 199---Constitutional jurisdiction, exercise of---When a Tribunal makes an error of law in deciding a matter it goes outside its jurisdiction and its finding shown to be erroneous on a point of law can be quashed under Constitutional jurisdiction on the ground of being in excess of jurisdiction. [p. 36] D Utility Store Corporation v. Punjab Labour Tribunal PLD 1987 SC 447; PLD 1974 SC 1'39 and 1974 SCMR 530 ref. Muhammad Iqbal Bhatti and Malik Abdul Wahid for Petitioner.
RA. Awan and Syed Nadeem Saglain, A. A.-G. For the State. Date of hearing: 18th May, 1995.
' Muhammad Nadeem through this writ petition has impugned the orders dated 9-10-1994 of Judicial Magistrate Section 30, Lahore, respondent No,2 and order dated 12-2-1995 of the learned Additional Sessions Judge, Lahore.
2. The brief facts of the case are given as under:-- "Case: F.I.R. No,559/93 dated 21-9-1993 offence under sections 302, 324/34, P.P.0 was registered at P.S. Mughalpura, Lahore on the statement of Tahir Mahmood. In the F.I.R the complainant named Muhammad Umer, Muhammad Munir, Muhammad Tariq, Muhammad Khalid and Muhammad Nadeem as accused. According to the prosecution the five accused came armed to the place of occurrence and committed the murder of Muhammad Aslam, complainant's father. Muhammad Tariq also received a fire-arm injury. The complainant stated in -the F.I.R. That he also fired pistol- shots in the exercise of his private defence. After investigation, the case was submitted in Court and now the trial of the accused is pending before a learned Additional Sessions Judge, Lahore."
3. Muhammad Nadeem was arrested and was in the judicial lock-up. Petitioner filed private complaint through his counsel on 30-3-1994 under sections 324, 337/34, P.P.0 against Muhammad Javid, Tahir Mahmood and Tanvir Aslam. In his statement he alleged that his maternal uncle Muhammad Umer and his brother Muhammad Aslam (deceased) had a dispute regarding Umer's house. Muhammad Aslam deceased wanted to purchase his brother's house, but the price was not settled by Muhammad Umer. Muhammad Umer built a new house and sold his old one to Muhammad Hameed. On 21-9-1993 Muhammad Umer went to perform his duties in the Railways and asked Muhammad Nadeem to shift his goods from the old house to the new one. At 9-00 a.m.
He along with Muhammad Farooq and Muhammad Ahmad P.Ws visited the house for shifting the goods, Muhammad Aslam (deceased) and his sons Tahir Mahmood, Tanvir and Javid were present there, who obstructed Muhammad Nadeem and others from taking away the goods and threatened them with dire consequence. All the four were armed with fire-arms and opened fire at Nadeem. Javaid fired 222 rifle, hitting left thigh of Nadeem while Tahir Mahmood fired his 222 rifle hitting and smashing left lower leg of Nadeem. The petitioner was holding a licensed rifle, which he fired at Muhammad Aslam in exercise of the right of his private defence. His condition was precarious. He fell down on the spot. He was taken to the General Hospital and was admitted. He came to know in the hospital that Muhammad Aslam succumbed to the injuries and police registered a case of murder against him and others. He gave statement to the local police/Investigating Officer, who promised to do justice in the case. Thereafter the investigation was conducted by D.S.P City, who recorded his evidence but did not take any action against the opposite-party. The learned Magistrate also recorded the statements of Muhammad Farooq, Muhammad Ahmad and Muhammad Khalid, who materially corroborated the D.Ws. The medico- legal report of Muhammad Nadeem was also exhibited as marked 'A'. The learned Magistrate dismissed the complaint. The learned Magistrate inter alia noted that the complaint was filed after six months and no explanation was given. The doctor in the medico-legal report kept the injuries under observations and the kind of weapon declared as may be fire-arms. During these months, nobody cared to get the final result as well as kind of weapon used at the time of alleged occurrence. And that there was no corroboration between the statements of witnesses and the medico-legal report. And that P.W. Muhammad Farooq stated that Arif alias Cheena Fajja and 2/4 women came to spot, were not cited as witnesses and that Muhammad Farooq is a relation of the complainant. It was further observed that P.W.3 Muhammad Ahmad had intermingled the situation.
Lastly P.W.4 Muhammad Khalid was not an eye-witness and whatever he stated was narrated to him by a shopkeeper. The learned Magistrate was of the opinion that there was no sufficient ground for proceedings. In the light of the foregoing reasons, therefore, the complaint was dismissed under section 203, Cr.P.C.
4. Petitioner filed revision against the impugned order under section 439-A, Cr.P.C. In para. 2 of the revision the petitioner submitted that he remained admitted in Lahore General Hospital for more than two months, because two bones of his legs were smashed due to the fire-arm injury. In para. 3, he submitted that he presented a complaint to the local police but the police remained in league with the opposite-party and did not register cross-case against them. In para. 4 he submitted that he produced two eyewitnesses in support of the statement before the Magistrate and Muhammad Khalid P.W.4 was produced regarding the motive. He applied for the summoning of Dr. Mazhar Mustafa from General Hospital, but at the instance of learned Magistrate, certified copy of medico-legal report marked 'A' was exhibited. The revision was dismissed by the learned Additional Sessions Judge inter alia on the grounds of delay in filing of the complaint and the complaint was not signed by the complainant. Learned Addl. Sessions Judge concentrated more on technical things than on the objective issues. The facts remain that at the time of the filing of the complaint, Muhammad Nadeem was in detention in jail. On his behalf, his counsel filed complaint and on an application he was summoned from jail. He came in an injured condition and his statement was recorded. It is to be noted that Addl. Sessions Judge concentrated more on technical grounds but did not advert himself to the basic issues involved i,e, a counter-version to the incident. He produced medico-legal report in support of his statement duly supported by two eye-witnesses. The learned Judge did not care to read the complaint where the delay was reasonably explained. The learned Judge at the end remarked "it is dimitted in the private complaint that the complainant fired a shot at Muhammad Aslam father of the respondent/accused, who died subsequently due to that injury though according to the complainant he had fired in his self-defence. It appears that as counterblast to the case of murder against the complainant and others, this instant complain was motivated." To the contrary Muhammad Nadeem has put up his counter-version in the complaint and had stated that it was the opposite-party, who resorted to brutal firing when petitioner and others intended to taking away the household goods.
5. It is an established principle that cases of counter-version in the same occurrence are to be tried together and disposed of together. The counter-versions are to be assessed in juxtaposition by the same Court. The view taken by the learned Sessions Judge is absolutely unjustified and whimsical.
The petitioner has now come up in this Court in writ jurisdiction.
6. Learned counsel for the petitioner inter alia submitted that he was a subject of brutal attack by the opposite-party, in which he suffered two fire-arm injuries on his legs. The hones of his legs were smashed and he had to undergo operation for four times and he was still under treatment and waiting for some more operations. Under these circumstances, after a long detention he was granted bail by the Lahore High Court. Regarding the delay in filing the complaint, learned counsel submitted that. He immediately lodged his report containing counter-version to the local police. He had to file W.P. No, 535 of 1993 in this Court for the registration of his case. He attached copy of complaint and medical report. Mr. Justice Raja Afarsiab on 2-11-1993 disposed of the writ petition, by directing the Investigating Officer to record the version of the petitioner. His evidence was recorded by the D.S.P City but the opposite-party were not arrested nor challaned. With the compound fracture and undergoing complicated operations, he remained in a bad condition in the General Hospital. Thereafter he was sent to judicial lock-up. He was, therefore, compelled to file private complaint after six months. Learned counsel submitted that in the administration of criminal justice the technicalities, formalities and procedural impediments cannot retard its course. Learned counsel further submitted that at the stage of inquiry under section 202, Cr.P.C. The complainant is expected to produce evidence which make a prima facie case for further inquiry or trial. Even the complainant's single statement supported by the medico-legal report was sufficient for the summoning of the accused in the case. The production of three other witnesses was more than sufficient for the purposes of making a prima facie case, in a case of counter-version of both the parties who assert their right of private defence. The accused in the complaint case should have been summoned and forwarded to the learned Additional Sessions Judge seized of the police challan on the same subject. Learned counsel submitted that there was no other alternative or adequate remedy available to the petitioner except invoking the extraordinary inherent and Constitutional jurisdiction of this Court.
7. The learned counsel further submitted that through the impugned orders the two Courts have rejected the petitioner's case on merits. The petitioner along with others are being tried in a murder case. Therefore expression of opinion in the said impugned orders has caused a great prejudice to them.
8. I have heard the learned counsel for the parties, the State and have perused the record. It is the case of both the parties that both of them were armed with fire-arms and both the parties claimed to have fired in the exercise of the right of private defence. On the complainant side Muhammad Aslam succumbed to the injuries while from the accused side Muhammad Nadeem suffered two fire-arm injuries on his legs, one being a compound fracture. Being a case of counter-version between the parties, the impugned orders were not justified in law and appropriate in the circumstances of the case. It is an established principle of law that cross-cases containing counter-versions of the same incident, between the same parties are to be tried by one Court.
Evidence is to be adduced side by side and judgment to be announced by the Court simultaneously. The impugned orders have violated that principle.
9. The object of an inquiry under section 202 Cr.P.0 is to ascertain the truth or falsity of the complainant. There is a difference between a primary inquiry and a full dress trial by a Court. A private complaint can be dismissed after holding a preliminary inquiry and if in the judgment of the Court, there is not sufficient ground for proceedings. The burden of proof in a preliminary inquiry under section 202, Cr.P.C. Is lighter on complainant as compared to the burden of proof on the prosecution during the trial of an offence. There is a marked distinction as to the approach of appraisal of evidence at the time of holding a preliminary inquiry and at the regular hearing of a criminal case. At the former stage, a Magistrate or the Court is not expected to examine the evidence whereas the later stage, the Magistrate or the Court is required appraisal of the evidence thoroughly and to record its finding on the basis of such appraisal. It was so held in 1991 SCMR 1608 and PLD 1984 Lahore 323. Keeping in view this criteria, I hold that there was sufficient evidence on the record in the complaint case for the summoning of the accused and holding of the trial against them.
10. The learned counsel for the respondent has relied on PLD 1981 SC 522 (Abdul Rehman Bajwa v.
Sultan and others). The learned counsel submitted that the Magistrate under his jurisdiction and the learned Additional Sessions Judge exercising revisional powers, dismissed the plea of the petitioner. Therefore, the High Court in the exercise of Constitutional powers under Article 199 cannot interfere and set aside the impugned orders. It is interesting to note that in similar circumstances in the above-noted case, a Magistrate acquitted the accused in a Challan case while in the private complaint based on counter-version was still pending before another Magistrate. In revision the learned Sessions Judge on the principles of counter-versions in cross-cases, in the same incident between the same, parties, set aside the order of acquittal. Learned Judge remanded the case for retrial by the same Magistrate, where the complaint of the opposite-party was pending with a direction that both the cases be tried together. The accused being aggrieved by the order of the Sessions Judge, filed writ petition in the High Court for the quashment of the said order. The learned Judge of the High Court heard the writ petition at length, considered the facts of the case and evidence and accepted the writ petition, declaring that the order of remand by learned Sessions Judge was without lawful authority. The opposite-party went in appeal before the Supreme Court. The learned Judges of the Supreme Court upheld the findings of the Sessions Judge on the principle that cross-cases of the same parties are to be tried by the same Court. Therefore, the Supreme Court held that the interference by the High Court in the matter was not called for. In PLD 1987 SC 447 (Utility Store Corporation v. Punjab Labour Tribunal) while considering the rule laid down in PLD 1974 SC 139 and 1974 SCMR 530, wherein it was observed that the Tribunal or Court has the jurisdiction to decide a particular matter rightly or wriggly and the fact that the decision is incorrect does not render the decision without jurisdiction. After considering these cases, the learned Judges ruled it is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it rightly or wrongly. Because the condition of the grant of jurisdiction is that it should decide the matter in accordance with law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it, because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter, it goes outside its jurisdiction and, therefore, determination of a Tribunal which is shown to be erroneous on a point of law can be quashed under writ jurisdiction on the ground that it is in excess of the jurisdiction". In view of the rule laid down by the Supreme Court, I hold that both the Courts committed an error of law in deciding the matter and therefore, went outside their jurisdiction conferred on them. Resultantly this Court in the exercise of the Constitutional and inherent powers is duty bound to interfere and declare that the impugned orders were illegal. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen: In exercise of its Constitutional jurisdiction this Court will immediately come to the rescue of a citizen and direct that the concerned authorities, Tribunal or Court, shall perform its legal obligation in the matter. The right to have fair and proper trial is invaluable right of every citizen. The present case is an example in which the petitioner is being deprived of his right and the impugned orders passed are therefore in violation of the said principles and are therefore declared illegal and of no legal effect. The two impugned orders are set aside. The complaint is restored to the Court of Illaqa Magistrate as discussed above. There is sufficient and prima facie evidence in the complaint case for summoning of the accused and proceeding further, in accordance with law. This writ petition is accepted with no orders as to costs.
11. The petitioner may move this Court for the transfer of the complaint-case before the same Court seized of the murder case in view of the rule laid down in 1986 PCr.LJ 989, PLD 1981 SC 522 and PLD 1966 SC 708 (Noor Illahi's case).
12. The writ petition is accordingly disposed of.