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Petitioner: NAZAR MUHAMMAD and another VS Respondent: ABDUL GHAFOOR and 3 OTHERS
Court Name: Balochistan High Court Judge(s): Ajmal Mian, Amir-ul-Mulk Mengal Title: NAZAR MUHAMMAD and another vs ABDUL GHAFOOR and 3 OTHERS Case No.: Constitutional Petition No, 121 of 1986 Date of Judgment:1987-03-04 Reported As: PLD 1987 Quetta 141 Result: Order accordingly
JUDGMENT
JUDGMENT ' AMIR-UL-MULK MENGAL, J.--By this constitutional petition the petitioners have challenged the judgment, dated 25-4-1985, 4-8-1986 and 28-9-1986 respectively passed by the Deputy Commissioner, Panjgoor, Commissioner, Mekran Division and the Member, Board of Revenue under Criminal Law (Special Provisions) Ordinance-II, 1968, hereinafter referred to as the Ordinance. ' The facts in a nutshell are that on 30-12-1975 a report (Annexure 'A') was lodged by one Mir Behram Khan before the Naib-Tehsildar, Tasp, Panjgoor that unknown persons have killed one Noor Muhammad. The Assistant Commissioner and the Naib-Tehsildar proceeded to the place of incident and removed the dead body to Militia Hospital where it was examined by the Medical Officer who issued certificate (Annexure 'B'). On the basis of some previous hostility the petitioners alongwith one Abdullah and Sher Muhammad were suspected to have committed the offence, hence they were arrested. As the practice in 'B' area in such cases is to take assistance from the trackers, the Assistant Commissioner called official and private trackers to identify the foot-prints on the scene of incident who however, refused to have identified the said foot-prints while deposing before the Tribunal. However, the Assistant Commissioner recorded alleged confessional statement of petitioner No, 1 under section 164, Cr.P.C. (Annexure 'C') who before the Tribunal retracted from the same in his statement (Annexure 'D'). ' As per provisions of the Ordinance a Tribunal was constituted on 15-12-1976 which reported its findings on 21-1-1977 without recording the defence evidence. On this the Deputy Commissioner sent the case file back to the Tribunal for recording the defence evidence. Consequently the Tribunal recommended finding of guilty and on that basis the Deputy Commissioner convicted the petitioners. But on appeal the Commissioner, on 22-8-1977 set aside the conviction and remanded
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the case. The second Tribunal was constituted on 3-9-1977. The Tribunal on 10-1-1978 unanimously reported a finding of not guilty (Annexure 'E'). The Deputy Commissioner acquitted the petitioners but on appeal by the respondent No, 1 the Commissioner set aside the order of acquittal on 20-6- 1978, and ordered de novo trial. The Member, Board of Revenue by its order dated 27-7-1980 maintained the order of the Commissioner. The copies of the orders in sequence are F/1 to F/3. A third Tribunal was constituted which sent its recommendations (Annexure 'J') on the basis of which the Deputy Commissioner passed the impugned order dated 25-4-1985 and sentenced the petitioners to 14 years' R.I. Each and a fine of Rs,one lac and in default to undergo a term of 4 years each (Annexure 'K'). Once more the appeal filed, was accepted and the case was remanded by the Commissioner on 4-8-1986 (Annexure 'W) for further inquiry. Both the parties filed revision petitions against the orders of the Commissioner before the Member, Board of Revenue who by order dated 28-9-1986 (Annexure '0') accepted the revision filed by the respondent No, 1, set aside the order of the Commissioner, Mekran Division and maintained the conviction as made by the Deputy Commissioner. The aforesaid orders are challenged in this constitutional petition . ' We have issued notices to the Advocate-General, Baluchistan to assist us, since some important legal questions were raised which required adjudication. ' We heard the counsel of the parties as well as learned Advocate-General, Baluchistan at a considerable length. ' The counsel for the petitioners Mr. Zafar vehemently urged the following points in support of this petition:-- (1) That the conviction of the petitioners is based on no evidence. (2) That neither Deputy Commissioner nor Commissioner is competent under law to have remanded the case for the third time to the Tribunal which is contrary to section 11(6) of the Ordinance. It was further contended that the remand order of the Commissioner was prejudicial, because it amounts to fill in lacuna of the prosecution. (3) The order of the Member, Board of Revenue is equally without any legal basis and without lawful authority. Particularly the observations that the Tribunal can have even secret inquiry with respect to the guilt or innocence of the accused are contrary to the provisions of the Ordinance and the Constitution of Pakistan. (4) That Qanun-e-Shahadat Order, 1984 has been extended to whole of Pakistan and it applies to the proceedings before the Tribunal and the authorities, performing their functions under the Ordinance. (5) It was further contended that statement of the defence witnesses were not at all considered by the forums under the Ordinance, thus making the entire proceedings as without lawful authority. It was also contended that under the proviso of section 24(2) of the Ordinance the Member, Board of Revenue could pass only a sentence which a Deputy Commissioner can pass under the Ordinance and no more. The Deputy Commissioner can pass only a sentence of 7 years for sentences more than that have to be confirmed by the Commissioner. ' It was lastly contended that no offence under section 302 has been committed. ' On the other hand Mr. Basharatullah, the learned counsel for the private respondent pleaded as under:-- (1) That the writ jurisdiction can be exercised only on the grounds taken in the petition and not on other grounds. The grounds therefore which have not been taken in the petition cannot be urged by the petitioner. The ground that no case be remanded or referred for third time was therefore out of scope of the petition. (2) The confessional statement recorded by the Magistrate First Class and statement recorded by Naib-Tehsildar were proved by Naib-Tehsildar and therefore it could be considered as a piece of
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evidence under the Ordinance because as per section 3(2) of the Ordinance, provisions of Evidence Act and Cr.P.C. Are not applicable. (3) It was further contended that since the Commissioner exercises the same powers as an Appellate Court under the Cr.P.C., hence he was competent under the law to have ordered re-trial of the case. (4) It was next contended that section 24 is not subject to section 12 of the Ordinance. Therefore Member, Board of Revenue is competent to pass a sentence of 14 years under section 302, P.P.C. (5) Regarding applicability of Qanun-e-Shahadat, 1984, it was contended that section 3(2) of the Ordinance excludes the Evidence Act expressly. Keeping in view principles of legislation by reference, the provisions of Qanun-e-Shahadat, 1984 are impliedly excluded under the Ordinance. (6) In this regard it was next contended that by the repeal of Evidence Act, 1872, Qanun-e- Shahadat would not automatically be deemed to be applicable to the Ordinance because such repeal would not affect section 3(2) of the Ordinance. (7) That Tribunal does not exercise judicial or quasi-judicial authority and Deputy Commissioner is not competent to record evidence, therefore, the Qanun-e-Shahadat, 1984 would not apply to proceedings conducted by these authorities. (8) The provisions of Qanun-e-Shahadat shall not apply to the past and closed transactions because its applicability is at once. ' The learned Advocate-General, Baluchistan adopted the arguments of Mr. Basharatullah, the learned counsel for the private respondent and added that in view of section 8 of the General Clauses Act, unless different intention appears, the reference in any other enactment or in any instrument to the provisions so repealed shall be construed as reference to the provisions so re- enacted. The Evidence Act, 1872 according to the Advocate-General has been repealed and re- enacted in the shape of Qanun-e-Shahadat. Therefore, unless different intention appears reference in any Central Act or any Regulation or Instrument be construed as reference to the provisions so re-enacted. ' In order to appreciate respective contentions of the learned counsel for the parties and the learned Advocate-General, Baluchistan, it would be advantageous to firstly dilate upon the important legal question raised in this petition. ' In the first instance, we propose to dispose of the legal proposition whether the Deputy Commissioner, under section 11 of the Ordinance is empowered to refer the case to a third Tribunal or make a second remand to the same Tribunal? ' Before proceeding to dispose of this legal issue, it would be advantageous to reproduce the provisions of the Ordinance relating to the reference of the matter to the Tribunal after taking of coginzance by the Deputy Commissioner and the powers of the Deputy Commissioner to take action on the report of the Tribunal. The following are the relevant sections under the Ordinance:-- "Section 5(1).--The Deputy Commissioner taking cognizance of a scheduled offence shall constitute a tribunal in accordance with section 6 and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such tribunal. ' Section 11(1) .-- The finding 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. ' Section 11(2).-- Upon receipt of a report of the tribunal, the Deputy Commissioner may, if the report does not give a finding on the question referred to the tribunal or any substantial part thereof, or he 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.
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' Section 11(3).-- Where the tribunal unanimously or by a majority of four-fifth reports a finding of guilty, the Deputy Commissioner may, if he does not proceed under subsection (2), either convict and pass sentence on or acquit, the person or persons so found guilty. ' Section 11(4).-- Where the tribunal unanimously or by a majority of four-fifth reports a finding of not guilty, the Deputy Commissioner shall, if he does not proceed under subsection (2), acquit the person or persons so found not guilty. ' Section 11(5).-- Where the tribunal reports a finding either of guilty or of not guilty by a majority of less than four-fifth, the Deputy Commissioner shall, if he does not proceed under subsection (2), acquit the accused person or persons. ' Section 11(6) .-- Where the Deputy Commissioner remands or refer under subsection (2) a question, he shall-- (a) if the tribunal, on such remand or reference, unanimously or by majority of not less than four- fifth reports a finding of guilty, convict and pass sentence on the accused; and (b) in any other case, acquit the accused. It is evident from the above-quoted sections that the Deputy Commissioner after taking cognizance of an offence under the Ordinance, shall refer the matter (section 5) to a tribunal constituted under section 6 of the Ordinance. (This would be the first reference). The Tribunal so constituted shall report its finding to the Deputy Commissioner. The Deputy Commissioner on receiving of such a report of finding from the Tribunal, shall take action according to the provisions of section 11 of the Ordinance. ' Subsections (2) to (6) of section 11 describe the powers and scope of the authority of the Deputy Commissioner to take action after receiving a report of finding from the Tribunal. If the Deputy Commissioner does not proceed under subsections (3), (4) and (5) of section 11, he may take action under subsection (2) of section 11 which provides that the Deputy Commissioner may if the report does not give a finding on the question referred to the Tribunal or any substantial part thereof or he is of the opinion that there has been material irregularity or that the proceedings of the Tribunal have been so conducted as to occasion the miscarriage of justice, remand the case to the tribunal or refer the question to a second Tribunal constituted in accordance with section 6. The pertinent question to be resolved is the extent and scope of powers of Deputy Commissioner to refer a case to a third Tribunal or to remand a question to the same Tribunal for more than two times (firstly under section 5 and secondly under subsection (2) of section 11). Such extent and scope of powers of the Deputy Commissioner regarding remands or references is covered by subsection (6) of section 11. After remand or reference under subsection (2), the Deputy Commissioner shall take action under clauses (a) and (b) of subsection (6) of section 11. His powers for further remand of the question to the same Tribunal for the third time or reference to a third Tribunal has been clearly restricted by subsection (6). As per clause (a), subsection (6) of section 11, he may convict an accused person when he receives report after remand or reference of the question as the case may be, under subsection (2) of section 11, provided the Tribunal unanimously or by a majority of not less than four-fifth reports that accused person/persons were found guilty, or if the finding of the Tribunal on such remand or reference is either not unanimous or is by a majority of less than four-fifth, he shall acquit the accused as per clause (b) of subsection (6) of section 11. No other construction can possibly be made in absence of any provision to the contrary. Thus, we are inclined to hold that by subsection (6) of section 11 the legislature has intentionally imposed an embargo on the powers and authority of the Deputy Commissioner, restricting him to make further reference or remand a question to the Tribunal after taking action under subsection (2) of section 11. The wisdom behind this restriction on the powers of the Deputy Commissioner seems to be that the legislature wanted to put an end to the prolonged litigation between the parties in order that justice is done between the parties without delay.
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' Adverting to the facts of this case, the question requires further adjudication, because the reference to the third Tribunal in the under-mentioned case has been ordered not by the Deputy Commissioner but by the Commissioner as an Appellate Authority. Since there is no provision under the Ordinance that reference can directly be made by the Appellate Authority to the Tribunal, the Commissioner, therefore, directs the Deputy Commissioner to make such reference, if, as an Appellate Authority, he is satisfied to do so. We do not subscribe to the submission made by Mr. Zafar that the embargo put on the powers of the Deputy Commissioner as per subsection (6) of section 11 shall also apply to the authority of the Commissioner. Because in our view section 23 of the Ordinance is not subservient to section 11 of the Ordinance and, therefore, is neither controlled by it nor is dependent upon it. It will be profitable to reproduce section 23 of the Ordinance:- "Section 23(1).--Any party aggrieved by any decision given, sentence passed or order made by the Deputy Commissioner under this Ordinance may, within thirty days of such decision, sentence or order, prefer an appeal to the Commissioner. Explanation ' Section 23(2).--The Commissioner shall not confirm, modify, alter or set aside any decision, sentence or order appealed against except after giving the parties an opportunity of being heard. ' Section 23 (3).--The Commissioner may, in deciding an appeal under subsection (1), exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure, 1898 (V of 1898), and may also enhance any sentence. ' Provided ........................................................... If Subsection (3) of section 23 is pertinent as regards the issue in question. It clearly lays down that the Commissioner may, in deciding an appeal under subsection (1) exercise all or any of the powers conferred on an Appellate Court by the Cr.P.C., 1898 (V of 1898) and may also enhance any sentence, subject to the proviso. ' Before appraising the scope of the Authority of the Commissioner, we would like to dispose of the objection raised by the counsel for the petitioner that the Commissioner while ordering the case to be referred to a fresh Tribunal, in fact gave an opportunity to the prosecution to fill the lacuna of the prosecution case by allowing it to adduce additional evidence. We have perused the order of the learned Commissioner, dated 4-8-1985 (Annexure 'M') of the petition, and operative portion of the said order reads as follows:-- "Due to these irregularities I order that the case may be referred to a fresh tribunal to probe into this murder and the accused may be released on bail." ' We are unable therefore to agree with the contention of the petitioner's counsel that the learned Commissioner ordered additional evidence to be recorded. In fact he had pointed out certain irregularities committed by the Tribunal and while accepting the appeal has ordered that the case may be referred to a fresh Tribunal to probe into the murder. The learned counsel for the petitioner then contended that the Commissioner also was not empowered to order a reference to a third Tribunal particularly so when this course has already been exhausted by the Deputy Commissioner and that the Commissioner cannot act beyond the scope of section 11. We find this argument as devoid of force and fallacious. The reasons are that firstly, as observed hereinabove, section 23 is not controlled by section 11 of the Ordinance. Section 23 is independent and prescribes the powers of the Appellate Authority and it has been clearly and unequivocally laid down in subsection (3) of the aforesaid section that the Commissioner may exercise all the powers as are conferred on an Appellate Court under the Cr.P.C. Section 423, Cr.P.C. Is relevant and for the sake of convenience is hereby reproduced:-- "Section 423(1).--The Appellate Court shall then send for the record of the case, if such record is not already in Court. ' After perusing such record or may --
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' in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction subordinate to such Appellate Court or 22(sent) for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of section 106, subsection (3), not so as to enhance the same; (e) and (d) The Appellate Court under the Cr.P.C. Is competent to order re-trial of a case. Hence inter alia, the power to order re-trial of the case is conferred on the Commissioner under the Ordinance. Obviously a particular mode is provided for trial under the Ordinance, i,e, the matter has to be referred to the Tribunal who shall record evidence and submit its report to the Deputy Commissioner. It would, therefore, be anomalous to argue that since there being no provision under the Ordinance empowering the Commissioner directly to refer the matter to the Tribunal, hence the Deputy Commissioner cannot refer it to the Tribunal even if directed by the Commissioner to do so because the powers of Deputy Commissioner are restricted under subsection (6) of section 11. To further elaborate our point of view it may be observed that undoubtedly the Deputy Commissioner is not competent himself, once he takes action under section 11(2), to further refer the case to the third Tribunal or to make further a remand as observed hereinabove, but this embargo would not apply to the Appellate Authority i,e, Commissioner. The legislature intentionally extended all the powers of criminal Appellate Court to the Commissioner including the powers of ordering re-trial of a particular case. Thus, conclusion would be that while referring the case for the third time by orders of the Commissioner, the Deputy Commissioner would do so not under section 11 but under the directions and orders of the Appellate Authority. After the orders being passed by the Commissioner, Deputy Commissioner would comply with his orders and in such event the Deputy Commissioner would pass orders on the report of the finding. Of course he cannot exercise his authority under subsection (2) of section 11 (provided he has already exercised such authority) when he would be complying with the orders of the Appellate Court for re-trial. Secondly, it would amount to anomaly if we agree with the contentions of the counsel for the petitioner because if the Commissioner cannot order re-trial it would mean that the orders of the Deputy Commissioner are final which of course is not the purpose of the Ordinance or the rules made thereunder. On the other hand section 23 becomes redundant. Thus, we find no force in the contention of the petitioner's counsel that the Commissioner is not competent under the Ordinance to order re-trial of a case by referring it to a fresh Tribunal. ' Before we embark upon to the next point, we would like to dispose of the preliminary objection raised by Mr. Basharatullah that points not raised before the Courts below or in the petition, cannot be looked into. Relying on a Full Bench judgment of Lahore High Court as reported in PLD 1964 Lah. 612, it was urged that since the contention that provisions of Qanun-e-Shahadat apply to the proceedings under the Ordinance was taken in the High Court while filing the constitutional petition, the same, therefore, may not be considered. There can be hardly any cavil to the submission that all legal grounds may usually be taken at the first instance in order to enable the forums to adjudicate upon the same, but if a question raised at the stage of constitutional petition is of general importance affecting the rights of the public in general and which could otherwise be properly decided by High Court in view of its importance, may be allowed to be taken for the first time in a constitutional petition. The authority relied upon by the learned counsel also supports our view. It was observed, "the validity of the Regulation as applied to North and South of Waziristan was also challenged in arguments before us on a ground but not specifically taken in the petitions, but which, on account of its importance, we permitted to be urged " We are, therefore, inclined to allow the said contention, keeping in view its general importance, to be urged.
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' We now advert to the legal question whether the provisions of Qanun-e-Shahadat, 1984 shall apply to the proceedings under the Ordinance? ' It was urged by the petitioner's counsel that the legislature expressly excluded the applicability of the provisions of Evidence Act, 1872 (hereinafter called as Evidence Act) to the proceedings under the Ordinance. But the Evidence Act was repealed under section 166 of Qanun-e-Shahadat, 1984 and was replaced by Qanun-e-Shahadat, 1984 (hereinafter referred to as Qanun-e-Shahadat). ' It was contended that since provisions of Qanun-e-Shahadat have been extended to whole of Pakistan and apply to all judicial proceedings in or before any Court a Tribunal or other authority exercising judicial or quasi-judicial powers or jurisdiction, hence for all intents and purposes the same shall apply to the proceedings under the Ordinance. ' It was next contended that the Ordinance was in the field when Qanun-e-Shahadat was promulgated hence being a central enactment promulgated subsequently, it overrides the ouster clause of the Ordinance. Its applicability therefore, to the proceedings under the Ordinance were intentional and deliberate. ' Controverting the said argument, Mr. Basharatullah vehemently urged that section 3(2) of the Ordinance unequivocally excluded the provisions of Evidence Act to the proceedings under the Ordinance and that since no departure has been made in Qanun-e-Shahadat from the provisions of Evidence Act, therefore, impliedly the ouster clause of the Ordinance shall continue to apply to the provisions of Qanun-e-Shahadat. Thus, Qanun-e-Shahadat shall not apply to the proceedings under the Ordinance. It was further argued that repeal of Evidence Act in section 166 of Qanun-e- Shahadat would have no effect and bearing on section 3(2) of the Ordinance. Mr. Basharatullah the learned counsel for the private respondent further tried to make a point of distinction between section 1 of the Evidence Act and section 1 of Qanun-e-Shahadat. Before determining the…
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