SARDAR KHAN ALIAS DARA AND 3 OTHERS Versus DISTRICT MAGISTRATE, KOHAT AND 2 OTHERS

SHAH ZAMAN BABAR, J .‑On 7‑5‑63 at about 10‑50 p.m. Khalid Masood Butt, son of Imam Din Butt of Kohat Cantt. was effectively fired at, Khalid Masood succumbed to the injuries after some time. The police challaned Sardar Khan alias Dara, Shah Sultan alias Shahshoo, Farashullah Khan, Yawas Khan and one Nasrullah (who is since dead) under section 302/34, P. P. C. This case was referred to Tribunal on 21‑3‑64 by the Commissioner, Peshawar Division, Peshawar, under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 (hereinafter called the Act) for trial under section 302/307/148/149, P. P. C. The Tribunal's Award dated 20‑4‑65 was not unanimous, therefore, the District Magistrate, Kohat, by his order dated 25‑5‑65, remanded the case to the same Tribunal for further inquiry and finding. In the Award of this second Tribunal the Chairman of the Tribunal did not agree with the other four members of the Tribunal. The four members of the Tribunal gave a verdict that the accused were entitled to the full right of self‑defence of person and recommended their acquittal. The District Magistrate, Kohat, by his order dated 19‑4‑66 acquitted the accused. Thereupon Imam Din Butt, father of the deceased, filed revision petition before the Commissioner against the acquittal of the five accused. The learned Com missioner vide his order dated 13‑2‑67 treated the revision as an appeal, set aside the impugned order of the District Magistrate, Kohat, dated 19‑4‑66, and remanded the case to him for fresh decision after referring it to another Tribunal.

2. The petitioners have not availed the remedy of revision to the Government against the order of the Commissioner under section 20 of the Act.

3. This case was admitted to full hearing on 4‑4‑67. By the order dated 19‑12‑67 of this Court, the petitioners were allowed to add the additional ground that at the time of the reference to the Tribunal the Commissioner did not give hearing to the petitioners which is contrary to the principles of natural justice and renders the reference null and void.

4. The learned counsel for the petitioners contended that the petitioners were not given any hearing at the time of reference by the Commissioner, which act of his nullifies the order of reference, that the District Magistrate having held that under section 10 (b) of the Act he could not refer the case to the second Tribunal the order of the Commissioner directing him to refer the case for second time is bad in law, and that the Commissioner did not state in the order of reference that it was inexpedient in the interest of justice that the case should be heard by ordinary Court of law. For the third contention the learned counsel relied on Muhammad and another v. Divisional Commissioner, Hyderabad Division, Hyderabad (P L D 1966 Kar. 424).

5. It is apparent that after the reference the case was taken] up before the Commissioner in appeal by the father of the deceased against the petitioner. The petitioners were heard in that appeal. It is now well settled that where an opportunity of hearing is afforded to a party in appeal, there could be no grievance on the part of such party that he was not fully heard in the Court of first instance.

6. The powers of the District Magistrate after the finding of the Tribunal is submitted to him are governed by subsection (2) of section 10 of the Act. This subsection lays:

"10 (1)

(2) On receipt of the finding of the Tribunal, the District Magistrate may, for reasons to be recorded---‑

(a) remand the question t o the Tribunal for a further inquiry and findings; or

(b) where the finding of the Tribunal is not supported by a three‑fourth majority of the total number of members, refer the question to a second Tribunal; or

(c) acquit the accused person or persons or any of them; or

(d) in accordance with the (unanimous) finding of guilt on any matter of fact of the Tribunal, or of not less than four- fifths of the members thereof, convict the accused person or persons or any of them, of any offence specified in the First Schedule of which the facts so found show him or them to be guilty."

Subsection (2) (b) provides that where the finding of the Tribunal is not supported by three‑fourth of the total number of members, the District Magistrate may refer the question to a second Tribunal. In view of this provision of law, we agree with the learned counsel for the petitioners that the District Magistrate could not refer the case to a second Tribunal. However, sub section (2) of section 19 of the Act lays:

"Government and the Commissioner may, in exercise of their respective appellate jurisdiction, exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure, 1898, and may also in any case enhance any sentence."

Section 423, Cr. P. C. governs the powers of appellate Court in the disposal of appeals. The appellate Court under subsec tion (1)(a) of section 423 "in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law." Thus under the powers of this provision of law, the learned Commissioner as an appellate Court, in appeal against an order of acquittal, had the jurisdiction to reverse the order of the District Magistrate and direct that further inquiry be made or that the accused be retried. The second contention is also untenable in law.

7. Muhammad Khan's case (Writ Petition No. 230 of 1964, decided on 2nd June 1965) was taken to the Supreme Court. In Commissioner, Hyderabad Division, Hyderabad v. Muhammad and another (1969 SCMR 515 at pp. 516, 517) the Supreme Court observed:‑

"The learned counsel for the appellant submits that the Divisional Commissioner applied his mind to the facts of this oase and gave reasons for referring the case to a Tribunal. It appears from the order of reference that the Commissioner gave reasons in writing as to why he thought it expedient to refer the case for decision by a Tribunal. The operative part of the order reads thus:‑

Therefore, looking to the peculiar circumstances under which the offence has been committed, it is expedient in the interest of justice that this case should be referred for decision to the Tribunal under the West Pakistan Criminal Law (Amend ment) Act, 1963.

In their judgment, the learned Judges themselves stated :‑

The learned Commissioner has indeed given reasons for the reference in the impugned order.

They, however, found fault with the impugned order on the ground that the Commissioner had only stated that it is expedient in the interest of justice to refer the case to a Tribunal, but did not state that it would be inexpedient in the interest of justice to have the case tried in an ordinary Court. In the context of the reasons given in the order of reference, the implication of the operative part of that order is that the Commissioner thought it inexpedient in the interest of justice to have a trial of this case in an ordinary Court, although this was not expressed in so many words. It is evident from the impugned order that the Commissioner applied his mind to the facts of the case and that there was substantial compliance with the requirement of section 3 of the Act. Therefore, the order of the High Court quashing the reference is not sustainable."

On perusal of the order of reference we find that the Commissioner has applied his mind to the facts of the case and that there was thus substantial compliance with the requirement of section 3 of the Act. The third contention also fails.

8. It is manifest that after the appellate order of the learned Commissioner dated 13‑2‑67, the petitioners had an alternative adequate remedy of revision to the Government against his appellate order under section 20 of the Act. In Muhammad Khan's case (which is also a case under the Criminal Law (Amendment) Act, 1963), the Supreme Court has ruled that when an alternative remedy by way of revision is available and not availed of, the High Court's writ jurisdiction cannot be invoked.

9. For these reasons, the petition is dismissed.

A. E./S. A. H.

Petition dismissed.