Full Judgment Text & Judicial Ruling

1969 P Cr

1969 P Cr. L J 991

[Karachi]

Before Faizullah Khan and Feroze Nana Ghulamally, JJ

Mir GHOUS BAKHSH BAZENJO‑Petitioner

Versus

THE STATE‑Respondent

Criminal Miscellaneous Application No. 939 of 1968, decided Oil 2nd March 1969.

(a) West Pakistan Criminal Law (Special Provisions) Ordinance (II of 1968), S. 9‑Summoning of defence witnesses‑Witnesses amenable to process of Court and no difficulties indicated in calling them‑Refusal of Tribunal to call such witnesses‑Held, without lawful authority.

(b) Natural justice‑Opportunity of fair trial‑Administrative Tribunals, particularly when deciding a lis, bound to observe rules of natural justice of affording a fair trial.

Shivji Nathubhai v. Union of India and others A I R 1960 S C 606 ; Chief Commissioner, Karachi v. Messrs Dina Sohrab Katrak P L D 1959 S C (Pak.) 45 ref.

(c) West Pakistan Criminal Law (Special Provisions) Ordinance (II of 1968), S. 23‑Powers of Commissioner under S. 23(1)‑Powers of an Appellate and Revisional Court equal to those of High Court under Cr. P. C.‑Commissioner to approach case, coming before him, with an open mind and come to an independent conclusion apart from views expressed by Tribunal and Deputy Commissioner.

It would be clear from the perusal of these provisions that the Commissioner combines in him the powers of an appellate Court as also revisional Court equal to that of the High Court under the Criminal Procedure Code and therefore while confirming a sentence and hearing the appeal the entire case is open before him and it is incumbent on him to approach the case with an open mind and find whether the finding arrived at by the Tribunal and the sentence recorded by the Deputy Commissioner is correct or not on facts and law. To put it differently, in fact the pro ceedings before the Commissioner are a reappraisal and reassess ment of the entire facts and law in order that it should be satisfied on the material about the guilt or innocence of the accused person. Such being the true scope of the proceedings and the lowers of confirmation before the Commissioner it is the duty of the Commissioner to consider the proceedings in all their directs and come to an independent conclusion on the material apart from the views expressed by the Tribunal and the Deputy Commissioner In so doing the Commissioner will be assisted by the opinion expressed by the Tribunal and the Deputy Commissioner but under the provisions of the Ordinance mentioned above it is for the Commissioner to approach the case with an open mind and come to an independent conclusion.

Yahya Bakhtiar for Petitioner.

Qazi Akhtar Ahmad, A. A.‑G, for the State.

Dates of hearing : 22nd, 23rd and 24th January 1969.

JUDGMENT

FAIZULLAH KHAN, J.‑By our short order dated 24th January 1969, in the Constitutional Writ Petition No. 71 of 1968, instituted by Mir Ghous Bakhsh Bizanjo, an Ex‑M. N. A., resi dent of Nal Jhalawan, District Kalat, was granted bail in the sum of Rs. 25,000 with one surety, in the like amount. This order furnishes the grounds which prevailed with us in allowing the bail.

2. The material facts, so far as they are not in dispute and relevant for the purposes of granting bail, may be stated thus: On 4‑3‑67 the petitioner, who was then Member of the National Assembly of Pakistan, was arrested and detained in Quetta Jail for alleged offences under section 124‑A, P. P. C. etc. The allegations against the petitioner for his arrest and being challaned under section 124‑A etc. were that on 1‑3‑67 having purchased ammunition worth Rs. 672 from an Arms and Ammunition Dealer in Quetta, he made payment in currency notes, one of which of the denomination of Rs. 100 bore rubber stamp slogans in vernacular, which translated into English read:

(1) "Undo One Unit.

(2) Restore the rights of the people of Baluchistan.

(3) Establish provinces on linguistic and cultural basis."

The petitioner challenged his arrest and detention for the alleged offences, on the ground that the pre‑requisite sanction under section 196, Cr. P. C. had not been obtained. On 13‑7‑67 a Bench of the High Court ordered the release of the petitioner.

3. After obtaining the requisite sanction under section 196, Cr. P. C. from the Provincial Government, the petitioner was re‑arrested on 15‑2‑68 under section 124‑A, P. P. C. The City Magistrate‑cum‑Deputy Commissioner, Quetta (hereinafter to be referred to as the Deputy Commissioner), by his order dated 28‑3‑68, overruling the objection of the petitioner that the case would not be referred under the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance No. II of 1968), (hereinafter, for the sake of brevity, to be referred to as the Ordinance) referred the question of guilt or innocence of the accused to the Tribunal to be nominated by the A. D. M., Quetta. As a President of the Tribunal, who nominated four other Members of the Tribunal, the Tribunal recorded all the evidence which the prosecution wished to produce against the petitioner. The petitioner gave a list of II witnesses to be summoned in defence, but the Tribunal refused to summon all of them except two witnesses, "on the ground that it would cause delay in the disposal of the case." Since the Tribunal could not be persuaded to examine all the defence witnesses cited by the petitioner, he declined to examine the aforesaid two defence witnesses.

4. The Tribunal in its finding dated 12‑6‑1968 found the accused guilty of an offence under section 124‑A, and forwarded the record to the Deputy Commissioner, recommending that "he should be given exemplary punishment under section 124‑A, P. P. C." It is indeed amazing to note that the Tribunal should have felt advised to make what might be termed a preposterous recommendation that the licence (Legal practitioner licence) of the counsel for the petitioner, be cancelled notwithstanding the fact that such a puaishment is not at all envisaged by the Ordinance, but on the contrary an accused has been given statutory right of defending himself by a counsel of his choice under section 28 of the Ordinance. The Deputy Commissioner on 14‑6‑68 recorded the following order after having turned down the request of the petitioner for appointment of a new Tribunal:

"I have carefully studied the record of the case and it has been found that after the close of the prosecution proceedings the statement of the accused has not been recorded. I, therefore, order that since it is a serious flaw as the decision would not sustain in any way, the file of the case is returned to the Tribunal to do the needful as soon as possible."

After the case was remitted to the Additional City Magistrate for recording the statement of the accused, the latter in a written application dated 15‑6‑68 (Annexure E), which was presented on 17‑6‑68, refused to give his statement, as he thought it was futile to do so when the Tribunal had already condemned him unheard. It will be convenient here to reproduce paras, 1 and 2 of the petition

"I have read the report of the Tribunal dated 12‑6‑1968 whereby they have found me guilty of offence under sec tion 124‑A, P. P. C. and recommended to the Deputy Commissioner that I should be exemplarily and severely punished. This report, finding of guilt and recommendation for punishment have been made without hearing me and giving me an opportunity to produce my defence.

2. It is, therefore, no use for me to make a statement before this Tribunal after having been condemned without being heard. I do not believe that they will change their mind or the report after hearing me having already made up their mind about my `guilt.' I have no faith and no confidence whatsoever in this Tribunal and I do not expect any justice from it."

The tribunal on 17‑6‑68 required the petitioner to give a statement, but he in a very brief statement in vernacular declined to do so, saying that he has given detailed reasons in his written petition to the Tribunal refusing to give a statement. The case was then placed before the Deputy Commissioner who by his order dated 18‑6‑68, accepting the finding of the Tribunal convicted the petitioner under section 124‑A, P. P. C., read with section 1 (3) of the Ordinance, and sentenced him to the maximum sentence under the section, namely, 14 years' R. I., and also tagged a fine of Rs. 5,000 or in default further R. I. for 12 year, and submitted the record to the Commissioner, Quetta District "for confirmation of the sentence as required under section 12(2) of Ordinance No. II, 1968." It may be mentioned in passing that the petitioner having been sentenced to transportation, the appropriate provision for confirmation would be sec tion 12(b) (iii).

5. The record of the case was then placed before Sheikh Muhammad Hussain, TQA, CSP., Commissioner, Quetta Division, who on 26‑6‑1968 without giving any hearing to the petitioner or his counsel and before the expiry of period of limitation of filing an appeal passed the following two‑word order:‑

"Sentence confirmed."

6. Counsel for the petitioner after obtaining the certified copy of the order of the Deputy Commissioner, preferred an appeal on behalf of the petitioner before the Commissioner on 18‑7‑68. Annexure `H' is the memo of appeal. With the memorandum of appeal, an application was also presented, requesting the Commissioner to move the Provincial Government "for the appointment of another Commissioner under the ordinance for hearing the appeal as this Court his already confirmed the sentence imposed." The application contained a further prayer that "Commissioner to be appointed for the hearing of the appeal should not be junior to the Commissioner who has confirmed the sentence."

7. After a few days the Commissioner heard the counsel for the petitioner on the application referred to above, and observed that "he would refer the matter to the Provincial Government for advice." On 27‑8‑68 an application was moved on behalf of the petitioner to the Commissioner for suspension of the sentence and release of the appellant on bail, pending disposal of the appeal. Paragraphs 2 and 3 of the said application may be profitably reproduced:

"2. That the appeal was taken up for hearing on 22‑8‑1968 when this Court holding the objections raised on behalf of the appellant‑applicant expressed the opinion that the appeal would be referred to the Provincial Government for the appointment of another Commissioner to decide the appeal as the sentence imposed on the appellant had already been confirmed by this Court.

3. That as it is likely that the Provincial Government will take a long time to appoint another Commissioner for the purpose and for reasons stated in the petition of appeal it is fit case for the suspension of the sentence."

8. On 11‑11‑68 this writ petition was instituted on behalf of the petitioner under Art. 98 of the Constitution, seeking prayers, among others:

"to declare the impugned order of the City Magistrate/D. C., Quetta dated 18‑6‑68 (Annexure F) and that of the Commis sioner Quetta Division dated 26‑6‑1968 (Annexure G) as without lawful authority and of no legal effect."

9. The proceedings before the Tribunal the conviction and sentence recorded by the Deputy Commissioner and the order of the Commissioner confirming the sentence were assailed on various grounds, but for the purpose of bail application tile following grounds may be reproduced :‑

"(1) That the allegations made against the petitioner do not constitute any offence under section 124‑A, P. P. C. or under any other law.

(6) That the Tribunal did not care to give the appellant a fair trial and illegally refused to summon the material witnesses which included some eye‑witnesses of the purchase of the ammunition.

(7) That the Tribunal at no stage called upon the petitioner to explain the circumstances given in the prosecution evidence against him nor was he heard in the matter at all nor his statement recorded. It is vehemently denied that before giving their finding the Tribunal ever called upon the petitioner to make a statement as alleged in the City Magistrate/D. C's. order. If there is anything on the record to this effect that must have been manipulated after the matter was referred back to the Tribunal by the D. C. for recording his statement.

(9) That the petitioner has been condemned unheard at all stages of the proceedings contrary to the provisions of section 28 of the Ordinance and against the principles of natural justice.

(12) That the so‑called slogans are in the nature of demands from the Government and even if proved against the petitioner will not result and did not result nor are ever likely to result in the consequences mentioned in section 124‑A, P. P. C. Those demands are part of the National Awami Party's Manifesto which is a lawfully organized political party which believes in attaining its objectives through lawful, peaceful and constitutional means.

(13) That the learned Commissioner acted without jurisdic tion and in violation of the provisions of section 28 of the Ordinance and contrary to the principles of natural justice by confirming the sentence imposed without hearing the petitioner who had the right to be represented in such proceedings by his counsel also.

(14) That learned Commissioner also erred and failed to perform his duty in not disposing of the appeal made against the orders of the D. C. regarding the reference of the case and the appointment of the Tribunal members, till the case was almost finally decided by the Tribunal and the D. C.

(17) That in view of Art. 30(9) of the Constitution the Provincial Legislature as well as the Provincial Governor are not competent to promulgate the said Ordinance, notwith standing the Proclamation of Emergency, as the Ordinance is inconsistent with the Fundamental Rights Nos. 1, 2 and 15 of the Constitution.

(18) That the order of the President of Pakistan No. F. 24(1)/65‑Pub. dated 6‑9‑1965 read with Order of the same number dated 16‑9‑1965 whereby the right of a citizen to move any Court for the enforcement of the fundamental rights provided for in paragraphs 2 and 15 of the fundamental rights in Chapter I of Part II of the Constitution and all proceedings pending in Courts for the enforcement of the said rights, have been suspended for the period during which the said Proclamation of Emergency is in force, is ultra vires and invalid to the extent of incompetency because of its repugnancy with the relevant provisions of the Constitution."

10. We had the benefit of very full arguments by Mr. Yahya Bakhtiar, learned counsel for the petitioner, and Qazi Akhtar Ahmad, the learned A. A.‑G. on most of the grounds enumerated above, bearing on the limited question of bail. It shall be my endeavour to avoid, as far as possible, expressing any concluded opinion on merits of the case, but even for the limited purpose of bail some of the points raised have inevitably to be touched though on the fringe to determine whether or not bail should be allowed.

11. Mr. Yahya Bakhtiar, learned counsel for the petitioner, vehemently argued that the rules of natural justice ensuring fair trial to an accused, though incorporated in the provisions of the Ordinance, had been violated more in their breach than observance. The points made out by the learned counsel may be summed up thus :‑

"(1) The Tribunal had failed to give an opportunity to the accused to explain the accusation against him by making a statement on the line contemplated by section 342, Cr. P. C.

(2) The Tribunal had refused to summon all defence witnesses cited by the petitioner for reason which is not covered by the 1st proviso to section 9 under which the Tribunal could "refuse to take or hear any evidence which in its opinion is being tendered for the purpose of causing vexation or delay or for defeating the ends of justice.

(3) That the refusal of the Deputy Commissioner turning down the prayer of the petitioner for ordering fresh trial was unwarranted and violative of the rules of natural justice as also the provisions of the Ordinance, namely sections 7 and 11, under which the Deputy Commissioner should have referred the question of guilt or innocence of the accused to a new Tribunal.

(4) That the two‑word confirmatory order of the Commis sioner was rendered without lawful authority for two‑fold, reason (a) that within 8 days of the conviction without waiting for the period of limitation for appeal to expire, and (b) without giving any opportunity to the petitioner and his counsel to be heard, the sentence was confirmed.

12. I now proceed to deal with the above points seriatim. It was argued that an opportunity to explain the accusation was a must of a fair trial, in that in the absence of an opportunity to explain the accusation on the lines envisaged by section 342, the statutory right to call witnesses in defence would be rendered wholly nugatory for the short and sensible reason that without an opportunity to admit or deny the charges, the right of calling defence witnesses becomes wholly illusory. There are several authorities of the Supreme Court both of Pakistan and India on the point that even administrative Tribunals are bound to observe the rules of natural justice of affording a fair trial in particular when the Tribunal has to decide a lis. In the instant case, the proceedings before the Tribunal are for all intents and purposes judicial proceeding with a right of appeal, right of calling witnesses in defence, the right of being represented at all stages of the proceedings by a counsel of his choice and consequently the failure of the Tribunal to give the petitioner an opportunity of explaining the accusation after the conclusion of the prosecution evidence prima facie is not only violative of the rules of natural justice but also breach of the statutory provisions of the Ordinance, which guarantees to the petitioner a fair trial. The Supreme Court of India in Shivji Nathubhai v. Union of India and others (A I R 1960 S C 606), even in a quasi‑Judicial proceedings under the Mines and Minerals (Regulations and Development) Act, 1948, and the rules at page 609, while repealing the argument that Rule 54 gave full power to the Central Government to Act as it may deem just and proper and that it was not bound even to call for the relevant records and other information from the State Government before deciding an application for review, summed up the discussion thus:‑‑

"That is undoubtedly so. But that in our opinion does not show that the statutory Rules negative the duty to act judicially.

What the Rules require is that the Central Government should act justly and properly; and that is what an authority which is required to act judicially must do. The fact that the Central Government is not bound even to call for records again does not negative the duty cast upon it to act judicially, for even Courts have the power to dismiss appeal without calling for records. Thus rule 54 lays down nothing to the contrary. We are therefore of opinion that there is prima facie a lis in this case as between the person to whom the lease has been granted and the person who is aggrieved by the refusal and therefore prima facie it is the duty of the authority which has to review the matter to act judicially and there is nothing in rule 54 to the contrary. It must therefore be held that on the Rules and the Act as they stood at the relevant time, the Central Government was acting in a quasi‑judicial capacity while deciding an application under rule 54. As such it was incumbent upon it before coming to a decision to give a reasonable opportunity to the appellant, who was the other party in the review application whose rights were being affected, to represent his case. Inasmuch as this was not done, the appellant is entitled to ask us to issue a writ in the nature of certiorari quashing the order of 28‑1‑1954, passed by the Central Government."

I may wind up the discussion on this point by quoting the obser vations of the Supreme Court in Chief Commissioner, Karachi v. Messrs Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45). At page 50 it was held:‑

"It cannot be disputed that it is a principle of natural justice that no one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence. That being so, when statute gives a right of appeal it should be understood as silently implying when it does not expressly provide that the appellant shall have the right of being heard (the underlined[*Here in italics] is mine)".

13. The grievance of the petitioner that the order of the Tribunal refusing to call all the witnesses cited for defence also prima facie appears to be well founded, in that under section 9 it is incumbent on the Tribunal "to hear . . . . . such evidence as may be adduced . . . . on behalf of the accused, or as may be called for by the Tribunals. It was complained that the order of the Tribunal refusing to call all the witnesses cited by the petitioner barring two, was a bald order in the sense that the Tribunal had not cared at all to say what were the difficulties, if any, in calling the defence witnesses, or that they were not amenable to the process of the Court. The perusal of the list of defence witnesses does not in the least suggest that any of the defence witnesses were not amenable to the process of the Court, and, at any rate, the fact that the Tribunal has not said so specifically would entitle the Court to presume that the witnesses were amenable to the process of the Court and the refusal of the Tribunal in the circumstances was prima facie without lawful authority.

14. There also prima facie appears to be some substance in the third grievance that instead of remitting the case to the same Tribunal for affording opportunity to the petitioner to explain the accusation against him, the Deputy Commissioner should have ordered the constitution of a new Tribunal under section 7 or 11 of the Ordinance. It was complained that the rules of natural justice ensure to the accused the right of being tried by an unbiased Judge or Tribunal. The learned counsel invoked the legal maxim that it was not only important that justice should be done but it was manifestly seen to be done, and that in the instant case the rules of ensuring fair trial and safeguarding against miscarriage of justice have been "grossly violated" in remitting the case to the Tribunal, which was wholly biased having not only recommended the "exemplary punishment", but also having felt impelled to make extraordinary recommenda tion of even cancelling the licence of the defence counsel. It was also complained that the order of remand by the Deputy Commissioner was not in the least motivated by the desire of giving the accused a fair opportunity of making a defence, but conversely was done with a view to filling up and overcoming the insurmountable obstacle of having the proceeding annulled on the ground of not affording the accused an opportunity to meet the charges. Our attention was invited to section 7 of the Ordinance under which the Deputy Commissioner had ample powers of directing "by order in writing, stating the reasons therefore, constitute another Tribunal in accordance with section 6 and refer the question to the Tribunal so constituted." On account of the failure of the Tribunal to give the petitioner chance to make a defence it was equated to be a misconduct within the meaning of subsection (1). Our attention was also directed to subsection (2) of section 11 under which the Deputy Commissioner on receipt of the report is of opinion that "there has been material irregularity or that the proceedings of the Tribunal have been so conducted as to occasion a miscarriage of justice, remand the question to the Tribunal or refer the question to a second Tribunal constituted in accordance with section 6".

15. This brings me to the last but prima facie most formidable challenge that the two‑word confirmatory order of the Commis sioner was prima facie rendered wholly without lawful authority. Three‑pronged attack was directed against the order of confirmation:‑

(1) That the Commissioner had exhibited "undue haste" in confirming the sentence of transportation for life within 8 days and thereby rendering the right of appeal wholly illusory, with the result that there was what might be termed a "complete paralysis of judicial faculties" in that the right of appeal provided by section 23 of the Ordinance providing a period of limitation of 30 days plus the time taken in obtaining copies had been rendered nugatory in that the order of confirmation and appeal must be heard simultaneously, and there is no provision for hearing of appeal by some other functionary in a situation where the Commissioner confirms the sentence without waiting for the period of limitation prescribed for the appeal.…

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