1. ' IFTIKHAR MUHAMMAD CHAUDHARY, J.--In this Constitutional petition, following reliefs have been claimed:-- "It may kindly be declared that Ordinance II of 1968 was repealed and only six months were allowed for decision of cases, but the Tribunal, the Deputy Commissioner, Bolan, the Commissioner, Nasirabad and Member, Board of Revenue, Balochistan, by findings, orders dated 7th July, 1997, 22nd January, 1998 and 9th September, 1995 have illegally assumed the jurisdiction and acquitted the respondents. Therefore, the impugned orders are illegal, unlawful and without jurisdiction; ' The case is pending and required to be referred to a competent Court of law; ' This Hon'ble Court may also kindly declare that the Courts below have neither considered the evidence nor taken into account the provisions of law, which provide for doing complete justice, therefore, the order is not only illegal, but contravention of justice and law, therefore, liable to be set aside."
2. ' The matter relates to a criminal case under sections 302/324/325/148/ 149/34, P.P.C. Registered as back as on 30th October, 1975, by Naib Tehsildar, Zehri, alleging against the respondents that they have committed murder of Mst. Allah Dini and have caused injuries to Mst. Inayat Khatoon and Mehtab, while they were cutting grass in the field. In pursuance of the complaint, the case was interrogated, respondents were arrested and challan was submitted before the Assistant Commissioner with power of Deputy Commissioner, Bhag, under the Criminal Law (Special Provisions) Ordinance II of 1968 (hereinafter referred as 'Ordinance II of 1968'). As per requirement of the Ordinance H of 1968, the Deputy Commissioner constituted Tribunals, from time to time; proceedings whereof are summarized hereinbelow:--
(i) First Tribunal vide Unanimous Award dated 21st January, 1976, recommended for conviction of accused namely Mazar, Naimatullah and Abdul Hamid. The findings were accepted by the Assistant Commissioner/Deputy Commissioner, Bhag and awarded sentence to the accused to undergo six years' R.I. And to pay fine of Rs,2,000 each, but in appeal, the order was set aside by the Commissioner and remanded the case to A.C./D.C., Bhag and this order was also maintained in Revision by the Member, Board of Revenue, filed by petitioners/aggrieved party.
(ii) Second Tribunal constituted by A.C./D.C., Bhag gave findings on 8-11-1995, recommending acquittal of all the accused peisons. The A.C./D.C. Did not agree with the findings and in exercise of powers under section 11(2) of Ordinance II of 1968, referred the matter, to the fresh constituted Tribunal.
(iii) Third Tribunal gave dissenting Award on 30th December, 1996, as two members and Chairman, recommended for the conviction of 8 persons namely Taimur, Muhammad Rahim, Sufi Amir Bakhsh, Lutufullah, Hamid, Naimatullah, Lado and Murad. Whereas two, members recommended for acquittal of accused. On 7th July, 1997, the Deputy Commissioner, Bolan acquitted the accused persons. Petitioner preferred appeal before the Commissioner, Nasirabad, who set aside the acquittal order on 22nd January, 1998 and remanded the case, to constitute Fourth Tribunal.
3. ' Against the last-mentioned order of Commissioner, Nasirabad, petitioner filed a Revision Petition before the Member, Board of Revenue, who vide order dated 9th September, 1998, dismissed the same, simultaneously holding that Commissioner, under the law, was not justified, to order for the constitution of Tribunal and upheld the order of Deputy Commissioner, Bolan dated 7th July, 1997. It is noteworthy, that in the memo. Of Revision, request was made to the Board of Revenue, to convict/sentence the respondents, by setting aside the order of Commissioner dated 21st January, 1998, instead of remanding the case to the fourth Tribunal under Ordinance II of 1968. As such, instant petition has been filed by Mr. Tahir Muhammad Khan, learned counsel for petitioner.
4. ' Initially when the Constitutional Petition was filed, the official respondents were not impleaded as party, therefore, we enquired from learned counsel about the maintainability of petition. On this learned counsel without permission of the Court filed amended title, impleading the Functionaries, who have passed the impugned orders, as respondents. However, instead of entering into any technicality, we allowed him to place the same on record.
5. ' Learned counsel, contended that as back as in the year 1991, the Ordinance H of 1968, was declared ultra vires of the Constitution, by this Court. Thereafter the Functionaries under the Ordinance II of 1968, had no jurisdiction to proceed with the matter and after the repeal of law, case was bound to be transferred on the file of ordinary Court, functioning under the. Code of Criminal Procedure, for the purpose of decision. Learned counsel also stated that a six months' period was given to the Functionaries, under Ordinance II of 1968 for disposal of pending cases and on the expiry of said period, no jurisdiction vested in them, to proceed with the matter. As such, the impugned orders dated 7th July, 1997, 22nd January, 1998 and 9th September, 1998, passed by Deputy Commissioner, Bolan, Additional Commissioner, Nasirabad and Member, Board of Revenue, be declared as having been passed without lawful authority and jurisdiction.
6. ' It is to be noted that in the cue of Balochistan Bar Association v. Government of Balochistan reported in PLD 1991 Quetta 7 a Division Bench of this Court, declared the provisions of Ordinance II of 1968, ultra vires of the Constitution and this judgment was maintained by Hon'ble Supreme Court, in the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341, with the following observations:-- "In these circumstances, as Ordinance II of 1968 is declared to be void being in conflict with Articles 9, 25, 175 and 203 of the Constitution, the question arises what further relief should be granted as in the absence of Ordinance 11 of 1968 there should be some valid law to hold the field. It had been admitted that District Judges and Civil Judges are functioning in every District. In cues of violation of fundamental rights the superior Courts are empowered to issue direction to the Federal Government or the Provincial Governments to bring the law in conformity with Fundamental Rights and/or enforce law and issue notification in that regard. The State as defined in Article 7 is bound to discharge its Constitutional obligations. In case of failure even the Legislature and executive can be directed to initiate legislative measures to bring law in conformity with the Fundamental Rights.
7. In these circumstances, while maintaining the impugned judgments, we dismiss the appeals, declare Ordinance II of 1968 as void being in conflict with Articles 9, 25, 175 and 203 of the Constitution and direct the appellant--
(i) to issue necessary notification in terms of subsection (2) of section 1 of Ordinance XII of 1972 for enforcing the aforesaid Ordinance by creating posts of and separately appointing Judicial Magistrates and Executive Magistrates and to place Judicial Magistrates under the administrative control of the High Court within a period of three months;
(ii) to take necessary steps as required by the Constitution to amend and implement laws and rules relating to Courts, judiciary and its officers and lower staff to bring them in conformity with Articles 9, 25, 175 and 203 of the Constitution within a period of six months."
8. ' In pursuance of above directions, the Government of Balochistan, issued a Notification dated 22nd. December, 1993, declaring that the application of the provisions of Ordinance II of 1968, cease to exist and shall be deemed to have been repealed, wherever applicable with effect from 10th October, 1993. After the issuance of Notification, in the case of Haji Muhammad Hussain v. Province of Balochistan and others NLR 1995 Cr.C.313, question for consideration came up before the Division Bench of this Court, to determine, that what would be the fate of cases pending before the Tribunals/Forums under Ordinance II of 1968, prior to issuance of the Notification. This question was attended and answered, as follows:-- "Thus considering settled principle of law, legal effect of Notification causing repeal of The Ordinance' and above discussion we are persuaded to lay down following categories for regulating the pending cases:
(i) Matter where on appointment of Tribunal, recording of evidence had commenced before 10th October, 1993, shall be decided by the Tribunal/Deputy Commissioner, and appeals and revisions lie in the hierarchy of forums under 'The Ordinance';
(ii) Matter pending adjudication by way of appeals or revisions shall be finalized uneffected in accordance of 'The Ordinance';
(iii) Matter, irrespective, when offence was committed where cognizance has not been taken or where colourable cognizance is taken but evidence has not commenced by or before 10th October, 1993 shall be dealt with and tried under normal law, by the Courts functioning under Criminal Procedure Code; and
(iv) Matters which have been finally decided under The Ordinance' and transactions are past and closed by or before 10th October, 1993, shall not be open to any inspection, merely because Ordinance II of 1968 has been declared as void law."
9. Thus, with regard to the pending cases, in which recording of evidence has commenced before 10th October, 1993, it was declared that they shall be decided by the Tribunal/Deputy Commissioner and the Appeals and Revisions will lie in the hierarchy of Forums under the Ordinance II of 1968. Because in the instant case, process of recording evidence has commenced, as back as in 1975-76, therefore, it was law liable to be decided by the same Forums.
10. ' Mr. Tahir Muhammad Khan, learned counsel contended that petitioner's case is distinguishable on facts, because after 10th October, 1993, third Tribunal was constituted towards 1995-96, with an authority, to determine the question of guilt or innocence of respondents, afresh. Therefore, according, to him, it should be deemed that the process of recording evidence had commenced, as per the directions of appellant Forums, after 10th October, 1993. Thus all proceedings, subsequent thereto, have been drawn without lawful authority and jurisdiction and case is liable to be transferred, on the file of District and Sessions Judge.
11. ' In the criteria, laid down in the aforesaid judgment, it has not been mentioned that if the Tribunal has been asked by the Deputy Commissioner or the Commissioner to record fresh evidence, after the crucial date i,e, 10th October, 1993, then case should be transferred on the file of Regular Court.
12. The underlined idea in laying down the criteria, mentioned at Serial No,1, in the judgment of Haji Muhammad Hassan, was to ensure final and expeditious disposal of the cases in the Forums, where they have commenced, without causing prejudice to any of the parties, to undergo once again the ordeal of trial before the Regular Court. In the instant case, as it has been observed hereinabove that despite hearing the case by the three Tribunals, at different times, they failed to form their opinion, about the guilt or innocence of accused, therefore, it would not be fair and in the interest of justice, to direct the transfer of this case on the file of Regular Court, particularly in view of the fact, that throughout the proceedings, either before the Deputy Commissioner, Commissioner or Member, Board of Revenue,, respectively, it was never pleaded by petitioner that his case be transferred to the Ordinary Court and to the contrary, he always conceded to the jurisdiction of Functionaries, acting under the Ordinance II of 1968. Inasmuch as, in the last revision, which has been disposed of vide order dated 9th September, 1998, the petitioner has prayed for awarding sentence to the respondents as he was not agreeing to remand the case, to the fourth Tribunal.
13. ' Mr. Tahir Muhammad Khan. Learned counsel, at this stage, made reference to the statements of Mst. Inayat Bibi and Mehtab Khatoon, who were allegedly injured and stated that their evidence is sufficient to convict the, respondents, but the Deputy Commissioner vide order dated 7th July, 1997, illegally acquitted them of the charge.
14. ' We cannot agree with the learned counsel, in view of the scheme of Ordinance II of 1968, according to which, the Deputy Commissioner is not to form an independent view/opinion, concerning the guilt or innocence of accused, because he has to depend upon the recommendations of Tribunal. It is worth to mention here that the last Tribunal expressed dissenting opinion, as two members and the Chairman, recommended for the conviction and two members, stated for their acquittal, therefore, the Deputy Commissioner under section 11(5) of the Ordinance H of 1968, had no option, but to acquit the accused, as such, the argument put forth by learned counsel is not considerable.
15. ' It was also argued by him that the Member, Board, of Revenue vide order dated 9th September, 1998, was either to accept or reject the revision filed by petitioner, but was not empowered to dismiss the complaint, by maintaining the order of Deputy Commissioner dated 7th July, 1997.
16. ' We have drawn his attention, towards the provisions of section 11 of Ordinance II of 1968, according to which, fourth Tribunal cannot be constituted, therefore, the Member, Board of Revenue, rightly came to the conclusion, that the impugned order of Appellate Forum, dated 22nd January, 1998, is not sustainable and on having noticed such glaring illegality and irregularity he in exercise of his supervisory jurisdiction, conferred upon the revisiong authority under section 23 of the Ordinance II of 1968, passed appropriate order in the interest of justice, because it was in his notice, that the matter is lingering on since 1975 onward and a period of 25 years has passed without any final determination of case. Therefore, in our opinion, the Revisional Court was right in finally disposing of the matter, instead of once again directing its remand.
17. ' It is also to be seen that the prayer made in the instant petition, with reference to last-mentioned relief seems to be contradictory to the other reliefs, because, once the petitioner being the complainant himself, is of the opinion that the orders dated 7th July, 1997, 22nd January, 1998 and 9th September, 1998, have been passed without jurisdiction, then how he can seek declaration in writ jurisdiction, that the Forums below have failed to consider the evidence nor have taken into account, the provisions of law, which provides for doing complete justice.
18. ' Besides, the contradictory pleas, it is also to be borne in mind that as far the Deputy Commissioner under Ordinance II of 1968, is concerned, he does not enjoy independent jurisdiction, to determine the guilt or innocence of accused and he has to depend upon the recommendations of the Tribunal, as we have already observed hereinabove.
19. ' We have examined all the aspects of this case keenly, in order to ensure that injustice may not be caused to any of the parties and on basis whereof, we have reached to the conclusion that it would not be fair and in the interest of justice to remand this case to the Forums functioning under Ordinance 11 of 1968, who have failed to adjudicate upon the matter, despite lapse of 23 years and on the other hand, if the case is transferred on the file of Regular Court, functioning under the Criminal Procedure Code, then it would also equally cause injustice to respondents, who are facing the protracted proceedings, for the last 23 years. Thus we are inclined to hold that irrespective of any of the pleas, put forth by learned counsel for petitioner, the impugned orders under challenge, have not caused any injustice to petitioner, therefore, it is not necessary for us, to issue writ. In forming this opinion, we are fortified with the judgment delivered by Hon'ble Supreme Court in the case of Muhammad Baran and others v. Settlement and Rehabilitation, Board of Revenue, Punjab and others PLD 1991 SC 691.
20. ' In view of above discussion, we see no merits in petition, which is accordingly dismissed in limini.