RAJA FAYYAZ AHMED, C.J.---In this Constitutional Petition following reliefs have been claimed:-
(i) "That the order dated 27-34999 having been passed in misexercise of jurisdiction by the respondent No,2 is illegal, without jurisdiction having no effect and consequently the same may be directed to be set aside, besides dismissing the revision petition filed by the respondent No,l.
(ii) Any other relief which may deem fit and proper in the circumstances of the case be also granted, in the interest of justice."
2. The brief facts of the case are that the petitioners were arrested in connection with the F .1. R .
Registered with Levies Thana Dhadar, District Bolan under sections 302/407/326/34 pursuant to the written report submitted to the Tehsildar Dhadar on 28-10-1997 by Levies Piada Ghulam Rasool.
Subsequent to the registration of the case and after completion of investigation challan for trial of the offence was submitted to the Deputy Commissioner, Nasirabad who took cognizance of the offence under the provisions of Balochistan Ordinance, 1968 who referred the question of guilt or innocence of the petitioner to the Tribunal constituted under section 5 of the Criminal Law (Special Provisions) Ordinance II of 1968 presided over by the Assistant Commissioner. It has been disclosed in para No,4 of the petition that several tribunals were constituted by the Deputy Commissioner but no report containing findings was submitted by the tribunals and lastly a tribunal was constituted on 15-2-1987 and the prosecution produced five witnesses during the course of inquiry to substantiate the accusation namely Muhammad Ramzan, Rais Qadir Bakhsh, Muhammad Yaqoob, Wazeer and Pir Bakhsh, whereas; the petitioners relied on their statements already recorded in the matter by the earlier tribunal and application to such effect was also filed by the accused on 12-5- 1993. After close of the parties' case, report was submitted by the tribunal on 22-8-1993 to the Deputy Commissioner recommending for conviction of the petitioners and for acquittal of some of the accused. On receipt of report submitted by the tribunal, the learned Deputy Commissioner, Bolan convicted the petitioners vide order dated 18-12-1994 under the above-quoted section of P.P.C. And sentenced them to various terms of imprisonment and simultaneously reference was made to the Commissioner, Nasitabad at Dera Murad Jamali/Appellate Authority for confirmation of the sentence as required by law.
3. The petitioners feeling themselves aggrieved of the order passed by the Deputy Commissioner, Bolan convicting them under sections 302/307/326/34, P.P.C. Tiled appeal before the Commissioner, Nasirabad-cum Appellate Authority and the learned Commissioner vide order dated 5-11-1995 set aside the order of the Deputy Commissioner and did not confirm the sentence awarded to the petitioners and remanded the matter to the Deputy Commissioner with the direction to constitute a new tribunal for holding de novo inquiry into guilt or innocence of the accused. Operating part of the order passed by the Appellate Authority is reproduced herein {{URDU TEXT}} Respondent No,1 (Wadera Muhammad Ramzan) assailed the order passed on appeal by the Appellate Authority by filing Criminal Revision No,9 of 1995 before the Member-II Board of Revenue, Balochistan, Quetta being the delegatee of the Revisional Authority (Government of Balochistan).
The learned Revisional Authority by means of order dated 28-3-1996 set aside the impugned appellate order and remanded the matter to the Appellate Authority with the direction that the appeal filed by the petitioners and the reference made by the Deputy Commissioner for confirmation of the sentence awarded to the petitioners be finally decided on merits on the basis of available record. Relevant part of the order passed on revision by Member-II, Board of Revenue, Balochistan, Quetta is reproduced herein below:-- "I have heard the counsel for the respondents carefully and perused the petition and the record of the case. It is now well-established general rule of the Hon'ble High Court of Balochistan (e.g. The case of Lal Muhammad and Misk Ali Bugti under section 302, P.P.C. v. The State) that the Appellate and Revisional Authorities should never remand the cases to the lower Courts and that they should themselves decide them finally on merits on the basis of available record, in view of the withdrawal of Ordinance II of 1968. The order of the learned Commissioner, Nasirabad dated 5-11-1995 remanding the case to the Deputy Commissioner, Bolan is, therefore, defective and is set aside. The result will be that the appeal and the confirmation proceedings shall be treated as pending before the Commissioner, Nasirabad Division who shall decide them finally on merits on the basis of available record."
On remand of the case, the learned Additional Commissioner as being the Appellate Authority vide order dated 13-5-1997 acquitted the petitioners of the charge by setting aside order of conviction of the petitioners and rejected the reference sent to it by the Deputy Commissioner for confirmation of the sentence awarded to the petitioners. Operating part of the appellate order for convenience is reproduced here in under:-- "I have carefully examined the record of the case and have given thoughtful consideration to the arguments advanced by the counsel for the parties and that of the Assistant District Attorney. It is an established position from the record that (i) no accused was nominated in the F.I.R.; (ii) the tracker did not name any accused; (iii) no identification parade was carried out; (iv) no medico- legal certificate of the deceased or that of the injured persons was obtained by the investigation; and that (v) no recovery of the weapon of offence has been made. The accused have been convicted merely on the statements of Muhammad Ramzan and Muhammad Yaqoob on the basis of their contradictory statements given after six months of the incident whereas in their earlier statements they did not identify any accused. The changed version cannot be accepted in view of the authorities quoted above. It has also come on record that there existed enmity between the parties over lands and therefore, as contended by the defence counsel, the accused were implicated falsely on this account. Thus the tribunal has failed to find out the real culprits. All the infirmities in conducting the investigation and the position of evidence as explained above cause grave doubts about the commission of offence by the accused persons as also admitted by the Assistant District Attorney.
9. For the foregoing reasons, the benefit of doubt goes to the accused persons. Accordingly the conviction order dated 18-12-1994 passed by the Deputy Commissioner, Bolan is hereby set aside under section 23(2) of the Criminal Law (Special Provisions) Ordinance II of 1968 and the convicted accused persons namely (1) Saifullah; (2) Ghulam Fareed s/o Sardar Dinnar Khan; (3) Ahmed Bakhsh s/o Muhammad Bakhsh; (4) Ahmed Yar s/o Sher Zaman; (5) Muhammad Alam s/o Muhammad Khan; (6) Ghulam Mustafa s/o Haji Ghulam Qadir; (7) Yar Muhammad s/o Fazal Muhammad and Dahood Khan s/o Behram Khan are hereby acquitted and shall be released if not wanted in any other case."
4. Respondent No,1 (Wadera Muhammad Ramzan) assailed the abovesaid order of the learned Appellate Authority by tiling revision petition before respondent No,2 (Member-III), Board of Revenue, Balochistan, Quetta and the learned Revisional Authority by means of order dated 1-2- 1999 remanded the matter to the Deputy Commissioner to obtain report of the Tribunal comprising of four Members and the President of Tribunal by observing that report was submitted only by the President of the tribunal and three Members only, whereas; as per requirement of provisions of section 10 read with section 5 of Balochistan Ordinance, 1968 report containing reasons for the findings was to be submitted by the 'Tribunal' and not by some Members of the 'Tribunal'. Operating part of the order passed by the Revisional Authority on 27-3-1999 is reproduced here in below for convenience:--- "Before going into the merits of the case a legal defect attracted my attention which lost sight of Deputy Commissioner, Bolan, Commissioner, Nasirabad and even of my predecessor while remanding the case to Commissioner, Nasirabad with the direction to dispose of the matter.
Perusal of record shows that only four Members (Chairman and three Members) have submitted findings and there is no signature of the 5th Member nor there is separate finding of the 5th Member available on record. It means that the Deputy Commissioner, Bolan has passed orders on the finding of 4 members. The definition of Tribunal is given in section 6 of the Ordinance as under:- -- A tribunal constituted for the purpose of section 5 shall consist of a Government Official not below the rank of Naib-Tehsildar, who shall be its President and four other Members all to be appointed by the Deputy Commissioner'.
"In section 11 action is to be taken on the report of Tribunal unanimously or by majority of four-fifth.
It means that the findings of all the Members are necessary though may be different. In the present case only President and 3 Members has given its findings while the 5th Member has not given findings. Thus the matter is coram non judice and the entire matter is defective in the eye of law.
The Hon'ble High Court of Balochistan has already decided a matter of the same nature. Reliance is placed on 1986 CLC Quetta 486-490."
"Since the matter is defective legally being coram non judice I therefore, set aside both the acquittal order of Commissioner, Nasirabad and conviction orders of Deputy Commissioner, Bolan and remand the matter to the Deputy Commissioner, Bolan to refer the matter to the Tribunal to give its findings."
5. The petitioners have assailed the above said order by filing the instant Constitutional petition.
6. We have heard the learned counsel for the petitioners as well as the Assistant Advocate-General Mr. Kamran Murtaza contended that in view of order passed on 22-11-1994 in Constitution Petition No,225 of 1994 the matter should have been finally decided on the existing record in accordance with law by the Revisional Authority instead of referring the matter to the 'Tribunal' to give its findings, hence according to the learned counsel the impugned order having been passed in derogation to the mandate of the above said order, is liable to be set aside, consequently; respondent No,2 be directed in dispose of the criminal revision filed by respondent No,1 on the existing record. The learned counsel further argued that in the circumstances of the case remanding the matter to the 'Tribunal' is unjustified and illegal because the petitioners for more than last two decades are undergoing agony of the finalisation of the proceedings, therefore, in such view of the matter as well and in light of the report submitted by three/four Members of the 'Tribunal' besides the findings given by the President of the 'Tribunal' to have been treated as sufficient to meet with the requirements of the law for the purpose of decision of the case on merits.
7. The learned Assistant Advocate-General submitted that the Deputy Commissioner can act only on the report of the 'Tribunal' comprising of four Members of the 'Tribunal' and the President of the 'Tribunal' hence, the report submitted by the majority of the Members and President of the 'Tribunal' cannot be equated with the report of the 'Tribunal' as envisaged by the provisions of section 11 of Balochistan Ordinance No,II of 1968 and a 'Tribunal' constituted for the purpose of determining the question of the guilt or innocence of the accused comprises of four Members to be appointed by the Deputy Commissioner and a Government Official not below the rank of Naib-Tehsildar, who shall be its President and to be appointed as aforesaid for the purpose of section 5 of the Ordinance, therefore, report/decision of the majority of the Members of the 'Tribunal' and of its President submitted to the Deputy Commissioner cannot be treated as the report of the 'Tribunal' within the expressed provisions of section 11 of the Ordinance, hence, appropriately the Revisional Authority in accordance with law remanded the matter to the Deputy Commissioner with the direction to obtain report of the 'Tribunal' and the impugned order according to the learned Assistant Advocate-General has been passed strictly in accordance with law.
8. The contentions noted above have been considered in the light of the documents appended with the memo. Of the petition and the impugned order, gone through carefully. Admittedly out of four, three Members of the 'Tribunal' and the President of the 'Tribunal' have submitted report to the Deputy Commissioner in the light whereof, vide order dated 18-12-1994, the Deputy Commissioner convicted the petitioners in the purported exercise of the powers vesting in him within the purview of subsection (5) of section 11 of the Ordinance, and; on appeal filed by the petitioners against order of the conviction, the learned Appellate Authority vide order dated 5-11-1995 set aside the order assailed in appeal and remanded the case to the learned Deputy Commissioner for constitution of a new 'Tribunal' for holding de novo enquiry into the question of guilt or innocence of the accused and such order has been set aside by the learned Revisional Authority (respondent No,2) impugned herein mainly on the ground that the findings/report submitted by three/four Members of the 'Tribunal' and of its President being not a report, submitted by the 'Tribunal' within the purview of section 11 of the Ordinance, hence, cannot be acted upon for any purpose, accordingly; the matter has been remanded to the Deputy Commissioner to obtain report of the 'Tribunal'. Section 5 of Balochistan Criminal Law (Special Provisions) Ordinance, 1968 provides that the Deputy Commissioner taking cognizance of a scheduled offence shall constitute a Tribunal in accordance with section 6 and refer the question of guilt or innocence of the persons accused of scheduled offence to the decision of such 'Tribunal' constituted in accordance with. Section 6 of the Ordinance and a Tribunal constituted for the purpose of section 5, in terms of section 6 of the Ordinance shall consist of a Government Official not below the rank of Naib Tehsildar, who shall be its President and four other Members to be appointed by the Deputy Commissioner, whereas; subsection (1) of section 11 of the Ordinance expressly provides that the findings of the Tribunal on a question referred to it under section 5 shall be submitted to the Deputy Commissioner in the form of a report containing the reasons for such finding, pursuant to which the Deputy Commissioner if finds that the report of the 'Tribunal' does not contain finding on the question referred to the 'Tribunal' or any substantial part thereof, or if he is of opinion that there has been material irregularity or that the proceedings of the 'Tribunal' have been conducted in the manner so as to occasion a miscarriage of justice remand question to the same 'Tribunal' or refer the question to a second 'Tribunal' constituted in accordance with section 6 in exercise of powers conferred on him by subsection (2) of section 11 and if he does not proceed under the aforesaid subsection, either convict and pass sentence on, or acquit the persons so from guilty provided the 'Tribunal' unanimously or by a majority of four/fifths reports a finding of guilty within the meaning of subsection (3) of section 11 of the Ordinance, but in the case where the 'Tribunal' unanimously or by majority of four/fifths reports a finding of guilty the Deputy Commissioner shall, if he does not proceed within the purview of section 11(2) acquit the persons so found not guilty as envisaged by subsection (4) and; under subsection (5) of the Ordinance the Deputy Commissioner shall, if he does not proceed under subsection (2) either convict and pass sentence on, or acquit the accused persons if the 'Tribunal' reports a finding either of guilty or of not guilty by a majority of less than four/fifths. From the above-mentioned provisions of sections 5, 6 and 11 it is abundantly clear that final decisions report on the question of guilt, or innocence of the accused has to be submitted by a 'Tribunal consisting of its President and four members on which the Deputy Commissioner can only act and exercise powers within the meaning of section 11 of the Ordinance and a report submitted by all the members short 01 President, or by its President in addition to the members of the 'Tribunal' less than four/fifths cannot be termed and treated as a report submitted by the 'Tribunal' hence, subsequent orders passed by the Deputy Commissioner and the Appellate Authority are coram non judice, consequently; we are inclined to hold that the learned Revisional Authority in the lawful exercise of powers vesting in it appropriately remanded the matter to the Deputy Commissioner for obtaining report/findings from the 'Tribunal'.
Reverting to the remaining limb of 'the argument of the petitioners learned counsel it may be seen that vide order dated 22-11-1994 passed in Constitutional Petition No,225 of 1994 the orders impugned therein respectively passed by the Additional Commissioner/Appellate Authority and the Member, Board of Revenue-II/Revisional Authority were set aside in view of the judgment passed by this Court in Constitutional Petition No,17 of 1994 decided on 27-6-1994 and in view of the concession made by the learned Advocate-General, resultantly; the appeal of the petitioners in Constitutional Petition No,225 of 1994 was directed to be finally decided on the existing record in accordance with law, which does not pertain to this case, and; secondly, judgment passed in Constitutional Petition No,17 of 1994 by this Court has no nexus nor is helpful to the contentions of the petitioner's learned counsel for the reason that vide impugned order matter has not been remanded to the Deputy Commissioner for any fresh enquiry or proceedings to be conducted by the 'Tribunal' except that the same simply pertains to the reference to be made to the 'Tribunal' by the Deputy Commissioner for obtaining report on the existing record, thus; in our considered view, in the light of impugned order the Deputy Commissioner is required to obtain report from the 'Tribunal' because no report earlier was submitted by the Tribunal.
In the light of what has been discussed hereinabove, the argument of Mr. Kamran Murtaza to the effect that since more than two decades have passed, the report submitted by three Members of the 'Tribunal' and the President of the 'Tribunal' can be treated as the report of the 'Tribunal' is devoid of any substance which if allowed to prevail would amount to defeat the above-noted mandatory provisions of the law.
Thus; for the foregoing reasons Constitutional petition being without any substance is dismissed with no order as to costs, however; in the circumstances of the case and in the interest of justice, we direct the Deputy Commissioner to obtain report from the 'Tribunal' consisting of four Members and its President within two weeks from the receipt of this order and to dispose of the same finally in the next two weeks, after hearing the parties and in accordance with law.