MANSAB ALI vs AMIR AND 3 OTHERS

1. MUHAMMAD YAQUB ALI, J.--The subject-matter of this appeal relates to the murder of one Rutallon, who left his house in Chak No, 615/G.B., P. S. Tandlianawala, District Lyalipur, to offer Isha prayers on the night of the 31st of December 1963, and was not traced thereafter. Mansab Ali, brother of the deceased, suspecting a foul play lodged a report with the Police on the 5th of January 1964, on which a case under sections 364, 302 and 201, P. P. C. was registered and investigation undertaken by the S. H. 0., P. S. Tandlianwala.

2. After investigation, the Police submitted report under section 173 of the Code of Criminal Procedure implicating the respondents 1 to 3 for the abduction and murder of Rutallon and destroying the evidence of their crime. While inquiry under Chapter XVIII of the Code of Criminal Procedure was pending, the Commissioner, Sargodha Division, by order dated the 21st of July 1964, passed under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, referred the question of the guilt or the innocence of the respondents for determination to a Tribunal under that Act.

3. The Tribunal found respondents guilty and recommended that they should be sentenced to ten years' rigorous imprisonment each. The District Magistrate, Sargodha, accepted the recommendation and convicted the respondents accordingly on the 10th December 1964.

4. Aggrieved by their convictions the respondents filed a revision petition under section 19(2) of the Criminal Law (Amendment) Act before the Commissioner, Sargodha, raising numerous grounds on the merits of the trial. No complaint was, however, made that they were not heard by the Commissioner before referring the case to the Tribunal, The Commissioner dismissed the revision petition filed by the respondents and acting suo motu enhanced sentences of the respondents to fourteen years' rigorous imprisonment each. The respondents then filed a second revision petition before the Home Secretary to the Government of West Pakistan which was accepted and the convictions and sentences awarded to respondents were set aside on the ground that their trial by the Tribunal was vitiated as it had proceeded jointly both for scheduled and unscheduled offences which according to the Full Bench decision of the High Court in Khizar Hayat and others v. The Commissioner, Sargodha Division, etc. , was without lawful authority. The Home Secretary further directed that the case shall proceed afresh before a Court constituted under the Code of Criminal Procedure.

5. The appellant challenged the order of the Home Secretary in Writ Petition No, 126 of 1965. While this Writ Petition was pending the respondents too filed Writ Petition No, 1296 of 1966 in the High Court for quashing the order of the Home Secretary on grounds pertaining to the legality of their convictions. After the filing of these Writ Petitions the Full Bench decision of the High Court in Khizar Hayat's case was reversed by this Court as reported in The Commissioner, Sargodha Division v.

6. Khizar Hayat and others . Following this view the High Court accepted writ petition filed by the appellant and quashed the order of the Home Secretary which had the effect of restoring the order of the Commissioner sentencing the respondents to 14 years' rigorous imprisonment each.

7. In the meantime, the High Court of West Pakistan in another case arising under the Criminal Law Amendment Act, Jan Muhammad v. Home Secretary , held that an accused person is entitled to be heard before the Commissioner forms the opinion that it is expedient to refer the question of his guilt or innocence to a Tribunal and to withdraw the case pending against him from an ordinary criminal Court. An appeal filed by the Home Secretary, Government of West Pakistan, from the decision of the High Court in this Court was dismissed in 1969 as reported in Home Secretary, Government of West Pakistan v. Jan Muhammad . It was observed in that case that the right of an accused person to be heard before the question of his guilt or innocence was referred to a Tribunal under section 3 of the Criminal Law (Amendment) Act was recognized by section 18 of that Act which provided an appeal to the Government and effective exercise of that right necessitated that the accused person should be heard before the Commissioner formed the opinion and gave reasons in support of the order of reference.

8. After the High Court had delivered the judgment in the aforementioned case the respondents on the 26th September 1967, added an additional ground to their Writ Petition No, 1296 of 1966 viz. that as the Commissioner had not given them an opportunity to show cause as to why the case pending against them before the Inquiry Magistrate be not referred to a Tribunal under section 3 of the Criminal Law (Amendment) Act was ab initio void. Following the decision in the case of Jan Muhammad, the High Court allowed the writ petition filed by the respondents and held that the reference of their case to the Tribunal under section 3 of the Criminal Law (Amendment) Act by the Commissioner without giving them an opportunity to show cause was without lawful authority and that all the proceedings that had taken place in pursuance thereto were equally vitiated in the eye of law.

9. Leave to appeal was granted to the brother of Rutallon from the order passed by the High Court in the second writ petition to consider the pleas : (i) that the respondents could not object to the validity of the reference made by the Commissioner under section 3 of the Criminal Law (Amendment) Act as they had failed to raise this ground in the revision petitions filed by them before the Commissioner and Home Secretary as well as in the writ petition filed in the High Court ;

(ii) that the failure to give notice to the respondents was more than cured by the opportunity granted to them in the proceedings before the Commissioner and the Home Secretary ; and (iii) that the writ petition calling in question the legality of the reference under section 3 should have been dismissed on the ground of laches.

10. On hearing the learned counsel for the parties and the learned Advocate-General who1 2 3 4 represented the State, we find that this appeal is concluded by the decision of this Court in the case of Home Secretary, Government of West Pakistan v. Jan Muhammad, to which reference has been made above. Mr. Gbazanfar Ali Gondal appearing for the appellant was unable to make out that if the order passed by the Commissioner under section 3 of the Criminal Law (Amendment)

11. Act referring the question of guilt or innocence of the respondents to a Tribunal was illegal ab initio, the failure of the respondents to raise this issue in the revision petitions filed by them before the Commissioner and the Home Secretary had clothed that order with legality. If it was a necessary condition for the proper exercise of jurisdiction by the Commissioner under section 3 of the Criminal Law (Amendment) Act to give notice to the respondents, before referring the question of the guilt on innocence to the Tribunal, then failure to comply with this requirement rendered the order of reference illegal and void.

12. It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in c continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. The learned Advocate-General fully supported this view and asked for dismissal of the appeal.

13. The contentions raised by the appellant in support of the appeal are thus devoid of force. The order passed by the Commissioner on 21st July 1964, referring the question of guilt or innocence of the respondents to a Tribunal under section 3 of the Criminal Law (Amendment) Act being ab initio illegal the proceedings which followed that order were without lawful authority. The order passed by the Home Secretary dated 8th May 1965, directing that the case against the respondents shall be deemed to be pending before an ordinary criminal Court, therefore, stands in the field though not on the grounds on which that order proceeds.

14. In this view the appeal is dismissed without any order as to costs. PLD 1965 Lah. 349 PLD 1966 SC 793 PLD 1968 Lah. 1455 PLD 1969 SC 333