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Petitioner: NAZAR KHAN VS Respondent: THE ADDITIONAL SESSIONS JUDGE-II, QUETTA AND 2 OTHERS
Court Name: Balochistan High Court Judge(s): Ajmal Mian, Amir-ul-Mulk Mengal Title: NAZAR KHAN vs THE ADDITIONAL SESSIONS JUDGE-II, QUETTA AND 2 OTHERS Case No.: Constitutional Petition No, 29 of 1986 Date of Judgment:1986-04-28 Reported As: PLD 1986 Quetta 214 Result: Order accordingly
JUDGMENT
JUDGMENT ' AJMAL MIAN, ACTG. C. J.-This petition is difected against the orders, dated 23th January, 1986 and 5th February, 1986 passed by the respondent No, 1 and the order, dated 10th February, 1986 passed by the respondent No, 2. The relevant facts leading to the filing of the above petition are that the petitioner's brother, namely, Badar Kha alias Badel son of Muhammad Khan (hereinafter referred to as the `deceased') was murdered on or about 5th August, 1985 in Kasi graveyard (hereinafter referred to as the graveyard) by inflicting a number of injuries by a sharp-edged weapon and the dead body was thrown in a well in the same graveyard. The Gawalmandi police recovered the dead body of the deceased on 6th August, 1985, in pursuance whereof, F. I. R. No, 144/85 under section 302, P. P. C. Was registered on the same day by the aforesaid Police Station. It has been averred that on investigation by the Investigating Agency, it was discovered that the respondent No, 3 Abdur Rahim son of Abdul Majid (hereinafter referred to as the 'accused') had committed the aforesaid murder and, therefore, he was arrested on 7th August, 1985. It was also alleged that the accused made a confessional statement under section 164, Cr. P. C. Before a First Class Magistrate on 20th August, 1985. After that, on 21st October, 1985, a challan was submitted before the learned Sessions Judge, Quetta for trial of the above case, but he transferred the same to the file of learned Additional Sessions Judge-II, Quetta. It appears that on 5th November, 1985, the learned counsel appearing for the accused filed an application stating therein, that the graveyard was situated outside the limits of Quetta Municipal Corporation and, therefore, the learned Additional Sessions Judge had no jurisdiction and the case was liable to be tried under the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance II of 1968) (hereinafter referred to as the `Ordinance'). The above application was resisted by the State. The learned Additional Sessions
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Judge in order to resolve the above controversy, first examined Mr. Maqsood Ahmed, Building Inspector, Qaetta Municipal Corporation as C. W. 1. As the statement of the above witness was ambiguous, at the request of learned counsel for the accused, the learned Additional Sessions Judge examined Mr. M. Saghir Farooqui, Municipal Engineer, as C. W, 2 on 28th December, 1985 who had visited the site alongwith the S. H. 0. Gawalmaudi, Police Station and Gardawar. However, on the same day, District Attorney submitted an application praying therein, to call for all the revenue record pertaining to the graveyard with effect from 1934 upto 1970 alongwith the record of Exh. C/1, which is an extract from the Khasra Gardawari indicating the graveyard as a part of District Quetta. However, the above application was rejected by the learned Additional Sessions Judge by his order, dated 25th January, 1986. After that, the learned Additional. Sessions Judge by his order, dated 5th February, 1986 held that the graveyard was outside the limits of Quetta Municipal. Corporation and fell within the "B" area and, therefore, the case was triable under the Ordinance. Consequently, he transferred, the case to the file of Assistant Commissioner with the powers of Deputy Commissioner under section 4(3) of the Ordinance. It seems that after the receipt of the above case file, the Assistant Commissioner issued notice on 10-2-1986 to the State and the accused to appear on 24th February, 1986 before him. The petitioner filed a revision (Criminal Revision No, 2/86) under section 435/439, Cr. P. C. In this Court against the above order, dated 5th February, 1986 on 15th February, 1986 and obtained a stay order on 16th February, 1986 against the above order. However, learned counsel for the accused moved an application in the above revision averring therein that since the learned Assist ant Commissioner, Quetta exercising the powers of Deputy Commissioner has taken cognizance of the matter within the purview of the Ordinance by his order, dated 10th February, 1986 and fixed the case for appointment of Tribunal, this Court had no revisional jurisdiction. The above objection, prevailed with the learned Single Judge of this Court, who by his order, dated 25th March, 1986 dismissed the above revision on the above preliminary objection. The petitioner has, therefore, filed the present petition. 2. The above petition has been resisted by the accused. The learned counsel appearing for the State has also opposed the same. Mr. S. A. M. Qadri, learned counsel for the petitioner in support of the above petition has urged as follows :- (1) That there was no material before the learned Additional Sessions Judge, on the basis of which, it could have been concluded that the graveyard is outside the limits of Quetta Municipal Corporation and, therefore, the impugned order, dated 5th February, 198t is without lawful authority ; (ii) That if the above order dated 5th February, 1986 suffers from the above legal infirmity it must follow that the order, dated 10th February, 1986 taking the cognizance is also without lawful authority ; and (iii) That the learned Additional Sessions Judge was not justified in rejecting the District Attorney's application for summoning of the revenue record for the period mentioned in his application and, therefore, the order, dated 25th January, 1986 is also without lawful authority. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the accused has contended as under :- (i) That under subsection (4) of section 4 of the Ordinance, the learned Additional Sessions Judge was obliged when it appeared to him that the offence was a scheduled offence, to refer the case to the Assistant Commissioner exercising the powers of Deputy Commissioner under the Ordinance, and, therefore, the above order cannot be said to be without lawful authority or without jurisdiction.; (ii) That there was some evidence, on the basis of which, the learned Additional Sessions Judge could have concluded that the graveyard was outside the limits of Quetta Municipal Corporation and, therefore, fell within the "B" area ;
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(iii) That the learned Additional Sessions Judge had the discretion to summon or not to summon any further evidence on the question whether the graveyard was within the limits of Quetta Municipal Corporation and, therefore, the order, dated 28th December, 1985 rejecting the District Attorney's application for summoning the Tehsildar, cannot be said to be without jurisdiction or without lawful authority ; and (v) That the order dated 10th February, 1986 of taking of cognizance by the Assistant Commissioner is also within the purview of the Ordinance and, therefore, cannot be said to be without jurisdiction or in excess of jurisdiction. ' Mr. Muhammad. Nawaz Marri, learned counsel appearing for the State has supported the arguments of Mr Muhammad Aslam Chishti and has urged that the learned Additional Sessions Judge has passed the impugned order after recording the evidence and after hearing the parties and, therefore, the order does not suffer from any infirmity, nor it can be said that it is based on no evidence. 3. Before taking up the above contentions of learned counsel for the parties, it may be pertinent to dilate upon the question, as to when the Ordinance was enacted and where it was made applicable and when the limits of Quetta Municipal Corporation were excluded from the application of the provisions of the Ordinance. In this regard, it may be mentioned that the Ordinance was promulgated by the Governor of erstwhile West Pakistan on 16th January, 1968 which was approved by the Provincial Assembly on 12th June, 1968 In the Schedule to the Ordinance, under section 1(2), inter alia, the Divisions of Quetta and Kalax excluding the trial areas were specified and, therefore, the provisions of the Ordinance were applicable, inter alia, to the above areas. It seems that under the newly-added subsection (3) by Ordinance IX of 1968, which empowered the Provincial Government to withdraw the application of the above Ordinance by a Notification in any area, the Provincial Government issued Notification No, S. 0. (H) 96/72 on 30th April, 1972 withdrawing the operation of the Ordinance inter alia from the Quetta Municipality and the Cantonment. It was followed by Ordinance V of 1972 which came into operation on 22nd May, 1972, whereby the provisions of the Ordinance were made applicable to Quetta Municipality and Cantonments. The above Ordinance was converted into an Act, namely, Quetta municipality and Cantonment Act, 1972 (IV of 1972) However, the above Act was repealed by Repealing Ordinance, 1973 with effect from 3rd March, 1973. The above Repealing Ordinance was converted into an Act of the Provincial Assembly on 10th October, 1973. In other words, upon enactment of the Repealing Ordinance, the provisions of the Ordinance ceased to be applicable to Quetta Municipality and Cantonment. 4. Reverting to the contention of Mr. S. A. M. Qadri, learned counsel for the petitioner that there was no evidence on record, on the basis of which, the learned Additional Sessions Judge could have recorded the finding that the graveyard was outside the limits of Quetta Municipal Corporation, it may be again observed that the learned Additional Sessions Judge has recorded the statement of two witnesses, namely, C. W. 1 Maqsood Ahmed and C. W. 2 Saghir Farooqui. A map was also produced indicating the Municipal limits though unsigned and undated. The statement of Maqsood Ahmed was found not sufficient even by the learned counsel for the accused, as on his application C. W. 2 Mr. Saghir Farooqui was examined. The question, therefore, is as to whether on the basis of the evidence of Mr. Saghir Farooqui. Independently or read with the statement of C. W. 1 Maqsood Ahmed and the map, the learned Additional Sessions Judge could have concluded that the graveyard was outside the limits of Quetta Municipal Corporation. According to Mr. Saghir Farooqui, the first map produced was of 1934. He also brought a new map though undated, but the above map did not reflect the pillars the boundaries of Quetta, Municipal Corporation as per new Notification of 1979 issued by the Provincial Government under the Baluchistan Local Government Ordinance, 1979, In his examination-inchief, he has stated that the point of occurrence is far
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beyond the Municipal limits of Quetta but in the cross-examination, he stated that the graveyard is within the Municipal limits since 1940. ' It has been urged by Mr.. Muhammad Aslam Chishti, learned counsel for the accused that this Court in exercise of Constitutional writ jurisdiction cannot sit as a Court of appeal and cannot interfere with a finding of fact recorded by a competent Court merely on the ground that on he basis of the evidence on record, this Court might have taken a different view in the matter or would have found it insufficient. He has relied upon the judgment in the case of Alia v Additional District Judge-I, Quetta (1), which, a D. W of this Court, to which one of us (Mr. Justice Ajmal Mian) was a party, has observed as follows :- "Para. 9. It cannot be urged that there was no evidence on record on the basis of which the decree for dissolution of marriage on the (1) 1986 CLC 27 ground of exercising the option of puberty could have been granted. This Court on the basis of the evidence on record migat have taken a different view in the matter, or might have held that the evidence produced by the respondent No, 2 was not such on which implicit reliance could have been placed. But this fact does not warrant interference by this Court in exercise of Constitutional Writ jurisdiction. A competent Tribunal may take an erroneous view on a question of fact, but this itself does not attract Constitutional writ jurisdiction of the High Court. The High Court's Constitutional Writ jurisdiction can be pressed into service when a finding of fact is recorded on the hasis of no evidence on record, or when it is based on misreading of evidence ; namely contrary to what is on record, but the question of appraisal of evidence or the assessment of the evidentiary value of such evidence or drawing of inferences from such evidence is within the competency of a Tribunal constituted for the purpose of adjudicating upon a particular dispute. In the above case, the Family Appellate Court was a Court of competent jurisdiction. It had the same power as the Family Trial Court and, therefore, was competent to reappraise the evidence and to take a contrary view to what was recorded by the Family Trial Court." 5. There cannot be any cavil to the proposition enunciated in the above-quoted passage from the above judgment. However, we would like to point out that a distinction is to be drawn between a finding of fact, on which. The jurisdiction of the very Court or Tribunal which records the finding depends and a finding of fact on the merits of a case. It may be observed that Constitutional Writ jurisdiction mainly designed to correct jurisdictional errors. If a Court or a Tribunal by recording a wrong finding of fact divests itself with the jurisdiction which vests in it, or confers jurisdiction on it. Which does not vest in it, the High Court will not in such a case, de-line to invoke Constitutional Writ jurisdiction to correct such error, if there is no other adequate alternate remedy available to an aggrieved party. ' However, it was contended by Mr. Muhammad Aslam Chishti, learned counsel for the accused that in view of wordings of subsection (4) of the Ordinance, the learned Additional Sessions Judge was not required to go into the question minutely whether the graveyard was within the limits of Quetta Municipal Corporation or outside, as the words employed in the above subsection (4) of section 5, inter alia, are "where it appears to any Magistrate, Court or other Authority.." It has been contended that there is a marked distinction between the words "appear" and "proved". In furtherance of his above submission, he has referred to the meaning of the word "appear" given in Stroud's Judicial Dictionary, Third Edition, at page 162, particularly para. 4, which reads as follows :- "(4) But where the phrase is as, e.g. In Public Health Act, 1875 (38 & 39 Vict, c. 55), section 36, if a state of things shall 'appear' to a local authority 'that is obviously for the purpose of making the local authority the Judge.' i,e, it is their opinion, and not the actual fact, which is predicated (per Channell, J. Robinson v. Sunderland, (1899) 1 Q B 751, cited Sufficient Cause),"
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' In this regard, it will be pertinent to refer to para. 3 of the same Dictionary on the same page, which reads as follows :- "(3) A state of things, 'made to appear' see Stanley v. Fielden 5 B & Aid. 431, 433 437. Semble, the phrase is nearly, if not quite, synonymous with 'proved'," We are inclined to hold that there is some distinction between the words "appear and "proved" in context with the quantum of evidence, but even a decision under subsection (4) of section 4 of the Ordinance should be based on some evidence. A Magistrate or a Court or other Authority should form the opinion that the offence is a scheduled offence in terms of the Ordinance on some evidence on the point in issue and not on some evidence not on the point in issue. In the instant case, in our view, the learned Additional Sessions Judge and the learned counsel for the parties have not addressed themselves to the point in issue in its proper perspective. The point in issue for determination was, whether on the date i,e, on 30th April, 1972 when the application of the provisions of the Ordinance were withdrawn from the areas falling within the limits of the then Quetta Municipality and Cantonment, the graveyard was within or outside the said limits. In this regard, reference may be made to the case of Ali Jan v. The State (1), referred to by Mr. Muhammad Aslam Chishti in different context, in which, the facts were that an offence was committed in the locality known as Nasirabad situated on the outskirt of Quetta in the last week of June, 1978. The case was tried by the learned Sessions Judge, Quetta. After the conclusion of the arguments, counsel for the accused raised an objection to the jurisdiction of the trial Court vis-a-vis the application of the Ordinance to that area. The above objection was overruled and the accused was convicted. Thereupon, the accused filed an appeal before the High Court which was accepted and it was held that though Nasirabad area was included in the Quetta Municipal limits by a Notification, dated 25th May, 1976 issued under section 8 of the Baluchistan Local Government Act, 1975 but there was no separate notification for making the provisions of the Ordinance applicable to the above extended area. In this regard, it may be pertinent to refer to paras. 7 and 8 of the judgment, which read as follows :- "Para. 7.-In the year 1976 the Government by notification dated 25-5-1976 under section 8 of Baluchistan Local Government Act, 1975 extended the limits of the Quetta 'Municipality so as to include Nasirabad the place where the place of occurrence is situated. The contention of the learned Advocate-General that by this notification the provisions of the Ordinance II of 1968 were automatically withdrawn from Nasirabad, has no force. Firstly the Baluchistan Local Government Act of 1975 has been enacted for a specific purpose as is shown in the preamble of the Act. Inclusion of Nasirabad under section 8 within Municipal limits is for the specific purpose of carrying on the functions by the Municipal authorities and extending the jurisdiction of the Local Government institution of Quetta Municipality to that area. This extension of the limits of the Quetta Municipality by statutory notification was necessary in order to provide facilities to the residents of that locality, levy taxes and performance of other duties in that area as required under the Local Government Act of 1975. It was not in contemplation of the Government to cease (1) PLD 1983 Quetta 78 the operation of Ordinance II of 1968 from that area by issuing a notification under section 8 of the Baluchistan Local Government Act, 1975. Para. 8.- Once a particular enactment is applied to a particular area, the enactment continues to apply in that area by its own force. A notification under section 8 of the Baluchistan Local Government Act, 1975 would not mean to operate as a withdrawal of the Ordinance from that area. Subsection (3) added to the Criminal Law (Special Provision) Ordinance, 1968 by the amending Ordinance IX of 1968 is still there and a notification could be issued to withdraw the operation of the Ordinance
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from Nasirabad. Since specific provision is available which is not redundant there could not be any withdrawal by implication specially so by enactment from a different field altogether and issued for another specific purpose." 6. The above judgment being a Division Bench judgment is binding) on us on the question that mere extension of the limits of Quetta' Municipality, would not result in ceaser of the application of the provision D of the Ordinance. In this view of the matter, it is evident as observed hereinabove, that the learned Additional Sessions Judge has not dilated upon the real point in controversy resulting into miscarriage of justice. We may observe that though it is a well-settled proposition of law that generally the High Court in exercise of Constitutional Writ jurisdiction does not probe into the complicated disputed questions of fact, and for resolving the same, the proper forum is a civil Court or any other legal forum provided by any other special law, but at the same time, it may beE pointed out that there is no law prohibiting the High Court from probing into a question of fact in a writ petition if the same does not require a detailed inquiry and the diciates of justice demand doing so. In this regard, reference may be made to a Division Bench case of this Court, namely, Major (Retd.) Muhammad Sabir Khan v. Government of Pakistan through Secretary, Ministry of Interior, Islamabad and 2 others (1). 7. Mr. S. A. M. Qadri, learned counsel for the petitioner has referred to the following cases :- (i) Masood All Khan v. Muhammad Aslam and another PLD 1979 Quetta 84, in which, a learned Single Judge of this Court in a criminal revision filed by the complainant in a State case, in exercise of the power contained under section 561 -A read with section 435/439, Cr. P. C. Recalled the High Court previous order of referring the case for trial under the Ordinance, which was passed on the basis of the concession made by the learned counsel for the State and directed the learned Sessions Judge to hold inquiry after giving both the parties an opportunity of proving their respective contentions on the question whether the occurrence had taken within the limits of Quetta Municipality or Cantonment or outside. (ii) An unreported judgment given by a learned Single Judge of this Court on 13th August, 1984 in Criminal Revision Application No, 16 of 1984 (Gul Muhammad v. Munir Ahmed and others) filed under section 435/439, Cr. P. C. Against the order of the learned (1) 1986 C I. C 930 Sessions Judge referring the case to the Deputy Commissioner for trial under the Ordinance. In the above case, the case from the file of the Tribunal presided over by E. A. C. H, was withdrawn and was sent to the learned Sessions Judge for deciding the question of jurisdiction afresh. On the other hand, Mr. Muhammad Aslam Chishti, learned counsel for the accused has referred to the following citations :- (i)All Sher and another v. The State PLD 1970 Kar. 790 in which, a learned Single Judge of the erstwhile High Court of West Pakistan sitting at Karachi while construing section 28 of the Ordinance, held that the term "proceeding" used in the above section, comprises of a continuous process commencing with the taking of cognizance of case by proper authority and culminating in final disposal thereof by way of trial, appeal or revision under relevant provisions of Ordinance. It was also held that the constitution of a Tribunal in terms of section 5 of the Ordinance is an act subsequent to taking of cognizance under section 4 thereof and not a condition precedent and thus a Deputy Commissioner starts proceeding when he takes cognizance and not when actual trial of the cases commences. (ii) Muhammad Arshad Daud v. The State and another -PLD 1978 Quetta 187. In the above case, the facts were that the offence was tried by the learned Additional Sessions Judge, Quetta in respect of offence of dacoity committed in the Bibi Ji branch of United Bank Limited, situated on Sariab Road, Quetta on 8th January.
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1977. After the arguments were partly heard, the learned Additional Sessions Judge raised the question of jurisdiction. After hearing the parties, he concluded that the place of occurrence was outside the Municipal limits and, therefore, fell within the "B" area and consequently, the offence was not triable by him. He referred the case under subsection (4) of section 4 of the Ordinance to the Deputy Commissioner for trial. The revision against the above order was filed in this Court, which was dismissed by a judgment, in which, it was held that the Court on its own motion could decide the question of jurisdiction. The trial does not conclude upon the conclusion of the evidence or hearing of the arguments but culminates in delivering of the judgment and that under section 4, the Deputy Commissioner possessed of exclusive jurisdiction to take cognizance of scheduled offences under the Ordinance. (iii) Ali Jan v. The State PLD 1983 Quetta 78, already referred to hereinabove. The above-cited cases indicate that the High Court in exercise of Revisional jurisdiction has directed the learned Sessions Judge to hold proper inquiry on the question, whether the place of occurrence was within the Quetta Municipal limits or not. They further indicate that once it is shown that the offence is a scheduled offence committed within the area covered by the Ordinance, it is exclusively triable under the Ordinance and not by a normal criminal Court. 8. This lead us to a further question that since a revision was competent under the Code of Criminal Procedure against the order of the learned Additional Sessions Judge, whether we would be justified in exercising the Constitutional…
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