BHAGAN Versus THE STATE

MUNAWAR AHMAD MIRZA, J. ‑‑‑This Constitution Petition is directed against order dated 19‑6‑1989, passed by learned Political Agent/Deputy Commissioner, Dera Bugti, whereby petitioner Bhagan was convicted under section 302 P.P.C. and sentenced to undergo imprisonment for 14 years besides fine of Rs. 20,000 subject to confirmation by Commissioner, Sibi. He was further required to furnish surety bond for keeping good behaviour/conduct.

2. Respondent No. 7 (Bahgi son of Manghey) on 20th August, 1979, filed a complaint before Additional Political Agent, Dera Bugti, alleging that about fortnight ago, certain accused persons including petitioner made an attempt to take away their camels, but they were followed whereupon accused had opened fire. One of the file‑shots, hit Meharban, the brother of complainant and caused his death. Towards 2‑11‑1983 challan was submitted by Tehsildar Dera Bugti against accused (i) Gulab son of Shambo, (ii) Imam Din son of Laghari, (iii) Kaifee son of Hazoor Bakhsh and (fv) Bhagan (petitioner).

Initially accused Gulab son of Shambo was arrested, whereas remaining three accused persons including petitioner absconded. It may be seen that learned Political Agent, Dera Bugti, in exercise of powers contained in sections 4 and 5 of Criminal Law (Special Provisions) Ordinance II of 1968 (hereinafter referred to as "The Ordinance") for the first time constituted a Tribunal on 10‑3‑1984 and referred the matter to it for determining, `guilt' or `innocence' of accused. During the proceedings, petitioner was apprehended. Later learned Assistant Commissioner‑cum‑Sub‑Divisional Magistrate, Sui, towards 28‑5‑1985. recommended his release on bail; which was eventually allowed by the Political Agent, Dera Bugti on 13‑6‑1985. In presence of petitioner; fresh tribunal was constituted on 28‑10‑1985. This time, Assistant Commissioner‑cum‑Sub Divisional Magistrate, Sui, was nominated as Chairman, whereas (i) Wadera Taj Muhammad Khan Hotkani; (ii) Wadera Pir Muhammad Kalpar, (iii) Wadera Khan, Muhammad Khan Mukadam Kalpar and (iv) Wadera Muhammad Khan Donrani were its members. Complainant Baghi, however, submitted an application seeking substitution of Tribunal on the plea that incident related to Dera Bugti, therefore, members of tribunal should belong to said area. Anyhow, with the consent of petitioner, co‑accused Gulab and complainant, the tribunal was changed and following persons were nominated/appointed on 20‑12‑1985 (i) Assistant Political Agent‑cum‑Sub‑Divisional Magistrate, Dera Bugti, Chairman, (ii) Haji Mian Khan Masoori, (iii) Wadera Dalil Khan Saidani, (iv) Allah Bakhsh Kheiazai and (v) Wadera Moria Khan Bahi. Without there being effective progress, in the absence of petitioner, towards 28‑11‑1987, one of the members namely Haji Mian Khan Masoori was substituted for Ghulam Hyder Khan Masoori. Record reveals that during enquiry before tribunal; prosecution has examined (i) complainant Baghi, (ii) Bakhsh Ali, (iii) Salar and (iv) Sewa, to substantiate accusation against petitioner and co‑accused. Whereas petitioner in his statement expressly denied all the allegations, however, no defence, was led by him. Whereas, co‑accused `Gulab' adduced two defence witnesses namely Phulihan and Sobbani.

3. On the completion of enquiry, all the four members vide Award dated 11‑4‑1989 unanimously recommended for the conviction of petitioner and demanded heavy sureties from him. Simultaneously tribunal proposed, acquittal for co‑accused Gulab. It is pertinent to note that respondent No. 1, who was Chairman of Tribunal made no recommendations, and merely forwarded the award of four members to Political Agent‑cum‑Deputy Commissioner (respondent No. 2).

4. Eventually respondent No. 2, exercising powers within the purview of section 11(4) of "The Ordinance" vide order dated 19‑6‑1989 convicted the petitioner and sentenced him to undergo rigorous imprisonment for 14 years in addition to fine of Rupees twenty thousand or in default to suffer further R.I. for one year, subject to confirmation by the Commissioner, Sibi. Petitioner was also directed to furnish surety bond for good conduct to the tune of Rs. one lac and P.R. bond of the like amount during next three years.

However, co‑accused Gulab was ordered to be acquitted. Surprisingly release warrants of co‑accused Gulab based on this acquittal were issued more than 1 and 1/2 months prior to passing of actual order, vide No. 471 dated 4th May, 1989, addressed by respondent No. 1 to Tehsildar‑cum‑Incharge Judicial Lock‑up, Dera Bugti. Evidently issuance of acquittal warrants, when judgment is not yet announced, indicates preconceived conduct and impropriety of highest order which certainly calls for the explanation of concerned Presiding Officer. Contents of release warrants are reproduced below for ready reference.

5. Present petition was filed on 30‑8‑1989, challenging aforesaid conviction and sentence of petitioner.

6. Mr. Azizullah Memon, learned counsel for petitioner emphatically raised following contentions:‑‑

(i) Tribunal was appointed and re‑constituted by respondent No. 1, behind the back of petitioner without providing opportunity for raising objections.

(ii) Trial was conducted in an arbitrary manner. Right of cross‑examining the prosecution witnesses was denied. Numerous interpolations were made in the record. Even statement of accused/petitioner was modified, to his disadvantage.

(iii) Out of four at least two members namely Wadera Dalilhan Khan and Wadera Allah Bakhsh were levies personnel under direct control of respondent No. 1; therefore, they being under official influence could not act impartially. Besides they are not eligible for appointment as Members of Tribunal under the provisions of Ordinance II of 1968.

(iv) Absolutely no evidence is available on record, implicating petitioner for the commission of any offence. Even otherwise accusations against petitioner and co‑accused Gulab are of identical nature. Since co -accused Gulab was acquitted, therefore, conviction of petitioner is highly discriminatory and unjust.

(v) All proceedings were hastily drawn by Tribunal and respondent No. 1, with mala fides; for political victimization of petitioner.

6‑A. On the other hand, learned Assistant Advocate‑General opposing the petition strenuously canvassed that:‑‑

(i) Tribunal was constituted in accordance with law,. so that petitioner had even affixed his thumb mark indicating, no objection in that behalf.

(ii) Levies personnel are notables of the area, and Levies service in certain cases is bestowed on them by inheritance, therefore, appointment of Tribunal members is not challengeable.

(iii) Sufficient material exists on record; connecting the petitioner with commission of offence, therefore, impugned conviction was justified.

(iv) Petitioner, has alternate remedy provided by the Statute, therefore, without availing it, Constitutional petition is not competent.

7. Attending to first question `Whether tribunal was properly constituted?' we may refer to relevant orders passed by respondent No. 1 at different occasions. Perusal of orders dated 28‑10‑1985 and 2‑12‑1985, regarding constitution of tribunal indicates, petitioner's presence and thumb marks suggesting `No Objection' to the appointment of members. Therefore, plea concerning petitioner's absence, or procedural defects for constituting tribunals on above‑mentioned two dates is not supported from record. It hardly needs elucidation that normally presumption of correctness is attached to record of judicial or quasi‑judicial proceedings regularly maintained, unless circumstances independently dispel or disapprove the same. But reconstitution of Tribunal on 28‑11‑1987 by deleting Haji Mian Khan Masoori and making appointment of Ghulam Hyder Masoori, behind the back of petitioner was clearly repugnant to requirement of section 6(3) of "The Ordinance". Relevant provisions are reproduced below for appreciating requirements of law:‑‑

"Section 5. Question of guilt or innocence to be referred to Tribunal. ‑‑(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.

(2) A tribunal shall hold its sittings at such place as the Deputy Commissioner may fix, having regard to the safety of the accused and the witnesses and availability of adequate legal assistance to the accused; and such place may also be a place situated in an area in which this Ordinance is not for the time being in force.

(3) The power of the Deputy Commissioner under subsection (2) shall, in respect of a place situated beyond the jurisdiction of the Deputy Commissioner by whom the Tribunal has been constituted, be exercisable by the Provincial Government.

Section 6. Constitution of Tribunal. ‑‑(1) A tribunal constituted for the purpose of section 5 shall consist of a Government official, not below the rank of Naib‑Tehsildar, who shall be its President and four other members, all to be appointed by the Deputy Commissioner.

(2) In appointing a person as a member, other than the President the Deputy Commissioner shall have regard to the integrity, education, special status and representative character of such person.

(3) No person shall be appointed as a member of the tribunal, other than the President, except after giving the parties concerned an opportunity of being heard and considering objections, if any, to the appointment of such person."

Record reveals that petitioner was neither present when Ghulam Hyder Khan Masoori was appointed as member by respondent, nor any necessity for such p change existed nor opportunity for raising objections was at all provided Reconstitution of a tribunal was thus patently defective.

8. Next it may be seen that tribunal under section 2(f) and section 6 of "The Ordinance" comprises of Chairman being Government official not below the rank of Naib‑Tehsildar and four members having regards to their integrity, education, social status and representative character. Whereas section 8 while defining `quorum' presupposes presence of Chairman besides at least two other members for validly conducting the proceedings. Bare perusal of abovementioned provisions makes it crystal clear that, if tribunal is not validly constituted or does not fulfil minimum requirement of `quorum' the proceedings would be coram non judice and nullity in the eye of law. Learned counsel for petitioner by referring to' original award of Tribunal dated 11‑4‑1989, pointed out that Chairman had not given his opinion, therefore, same could not be deemed valid or lawful. On careful examination of original record, we are persuaded to observe that mere signing first two pages of the award dated 11‑6‑1989 by Chairman of Tribunal and mechanically forwarding the same to respondent No. 1 without affirming or n disapproving the recommendation made by other four members constitute blatent disregard of mandatory requirements of law; accordingly on the available facts, we have no hesitation in holding that said Award (recommendation of the Tribunal) is ex facie, devoid of lawful authority and incompetent.

9. Besides, undisputedly two of the tribunal members namely (i) Wadera Dalilhan Khan Saidani and (ii) Allah Bakhsh Kiazai are, in the service of Levies. Division Bench of this Court in Constitutional Petition No. 124 of 1989 (Mumtaz Ali v. Assistant Political Agent, Dera Bugti) has already held that; besides Chairman other four members of the Tribunal must be private persons qualified within the meaning of section 6(2) of "The Ordinance". Thus following the dictum laid down in said judgment we are inclined to declare that nomination of aforementioned two persons namely Wadera Dalilhan Khan and Allah Bakhsh as members of the Tribunal in the instant case was contrary to law. Additionally as observed earlier, Wadera Ghulam Hyder Masoori was also improperly and unlawfully substituted. Thus proceedings drawn by said incompetent Tribunal, as well is impugned conviction recorded by respondent No. 1, were totally coram non judice, accordingly, of no legal effect. For the said conclusion there is plethora of reported judgments, some of which are mentioned here (i) Yousaf Ali v. Muhammad Aslam Zia and others P L D 1958 SC 104, (ii) Chittaranjan Cotton Mills Limited v. Staff Union P L D 1971 SC 197, (iii) Rashid Ahmad v. The State P L D 1972 SC 271, (iv) Sind Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 and Khuda Bakhsh v. Khushi Muhammad and others P L D 1976 SC 208.

10. Next question raised by learned Assistant Advocate‑General, pertains to maintainability of petition without availing alternate remedy. It may be seen that ordinarily constitution petitions arc not directly entertained unless aggrieved part has exhausted alternate remedies specified in the Statute. However, when circumstances depict total lack of authority; exercise of jurisdiction otherwise not vested; flagrant disregard of statutory requirement, capricious, arbitrary, whimsical or despotic action; in such circumstances judging factum of adequacy in relation to speed, expense, inconvenience, oppression, quantum of injury injustice; writ jurisdiction can be directly invoked. Some of such aspects which can also be profitable for clinching this issue in the instant case, have been considered in following reported judgments:‑‑

(i) Nagina Silk Mills, Lyllpur v. The Income Tax Officer, A‑Ward Lyllpur and another P L D 1963 SC 322:

"In the present two cases, writs of certiorari had been prayed for in the High Court for quashing the impugned orders which were alleged to suffer from lack A jurisdiction. The circumstances in which certiorari may issue to quash the orders of Administrative Tribunals that are required to act judicially, fell for consideration in two recent cases decided by this Court and reported as S.A. Haroon v. Collector of Customs, Karachi PLD 1959 SC (Pak.) 177 and Pakistan v. Zauddin PLD 1962 SC 440. In both the cases certain orders passed by Customs Authorities had been challenged by means of writ petitions in the High Court. It was laid down that the general rule undoubtedly is that it is wrong on principle to entertain petitions for writs except in very exceptional circumstances, whey the law provides a remedy by appeal to another Tribunal, fully competent to award the requisite relief. At the same time, it was held that in cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, a certiorari may be granted even though the right to statutory appeal had not been availed of."

(ii) The Murree Brewery Co: Limited v. Pakistan through Secretary to Government of Pakistan, Works Division and others PLD 1972 SC 279. Similar principle has been enunciated:

"It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as "the C.DA.") to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been exercise in futility. It was held by the Supreme Court in Lt.‑Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others PLD 1961 SC 119 that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority.

The appellant has also alleged mala fides in law against the C.DA. a statutory functionary. In the case of East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 41 this Court has held that where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question."

(iii) Sind Employees Social Security Institution v. Dr. Mumtaz Ali Taj and another P L D 1975 SC 450:

"The defects of jurisdiction are apparent on the face of the record which in my opinion would at once attract certiorari jurisdiction of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent 1, the proceedings will be wholly without jurisdiction and, therefore, a nullity. In somewhat similar circumstances in the Muree Brewery Company Limited v. Pakistan PLD 1972 SC 279 this Court interfered in proceedings for acquisition of certain properties by the Capital Development Authority although there existed provisions for appeal and review in the statute under which proceedings for the acquisition were initiated."

(iv) Salooka Steels Limited v. Director General Coast Guards of Pakistan P L D 1981 Quetta 1:

"16. One of the objections taken, though not argued is that the petition is not maintainable because of the alternate remedy available to the petitioners. In cases where the very jurisdiction of a tribunal is challenged the aggrieved parties can always directly approach this Court, in its constitutional jurisdiction. In this behalf 1 may refer to the authorities of the Supreme Court reported as Murree Brewery v. Pakistan PLD 1972 SC 279 and Sind Employees Social Security Institution v. Dr. Mumtaz Ali Taj and others PLD 1975 SC 450 wherein their Lordships have held that one of the well‑recognized exceptions t the general rule of availing the alternate remedy, is where an order is attacked on the ground that it was wholly without authority, or the statutory functionary acted mala fide or in a partial, unjust and oppressive manner."

We have already concluded that proceedings recorded by the Tribunal and subsequent decision taken by respondent No. 1 were patently without lawful authority. These forums had obviously acted in an arbitrary manner. Thus keeping in view peculiar circumstances and principle of law enunciated in aforequoted judgments, present petition is certainly maintainable. '

11. Lastly, adverting to merits, it. may be seen that evidence against petitioner as well as co‑accused Gulab who has been acquitted by respondent No. 1 through impugned judgment is exactly the same. Factually no overt act has been ascribed to the petitioner. Admittedly prosecution had not adduced any I direct evidence. Version of prosecution witnesses is based on the information received from injured Gulzar who also is dead. It is pertinent to mention that Division Bench of this Court in case Nazar Muhammad and another v. Abdul Ghafoor and others PLD 1987 Quetta 141 had held that Oanun‑e‑Shahdat Order, 1984 is applicable in respect of proceedings under Ordinance 11 of 1968 Relevant observations are reproduced below:‑‑

"Being a law, promulgated later and having overriding provisions over all the other laws on the subject, it would prevail over relevant provisions of the Ordinance. There is no ouster clause regarding application of the Qanun‑e‑Shahadat to proceedings under the Ordinance, but on the other hand, section 105 of Qanun‑e‑Shahadat expressly describes its overriding effect to other laws. Reliance may be placed on P L D 1980 Quetta 73, the case of Maqsood Ahmad v. Summary Military Court, Pishin, where the question before D.B. was as to which of the two laws would hold field i.e. the Dangerous Drugs Act, 1930 or Prohibition (Enforcement of Hadd) Order, 1979, it was observed:‑‑

"In that view of the matter, and because the order is a later law having overriding provisions over all the other laws on the subject. It would prevail over the relevant provisions of Dangerous Drugs Act. In fact it has an effect of impliedly repealing such provisions of Dangerous Drugs Act."

Reliance was placed in the aforesaid case of A I R 1930 Mad. 963:‑‑

"From the above discussion we are inclined to hold that the provision of Qanun‑e‑Shahadat shall apply to the proceedings under the Ordinance. Section 3(2) of the Ordinance shall have no effect to applicability of provisions of Qanun‑e‑Shahadat to proceedings under the Ordinance."

However, when sketchy statements of prosecution witnesses are tested on the anvil of Oanun‑e‑Shahadat their versions is evidently hearsay and wholly inadmissible. Besides co‑accused Gulab on the identical evidence has been acquitted. Therefore, any different approach, on merits would not only adversely affect co‑accussed Gulab who is not party before us, but may cause apparent conflict in the impugned judgment.

12. Apart from this "The Constitution" guarantees equal protection and equal treatment of law, to all the citizens. Simultaneously it prohibits discrimination and safeguards the `Right' to be dealt only in accordance with law; which has been obviously denied to the petitioner in the instant case. Considering all relevant facts we are satisfied that factually it is a case of `No evidence' against the petitioner.

Consequently relying on the broad principle discussed in case (i) Inayatullah v. Member, Board of Revenue and others P L D 1972 Quetta 22 and (ii) Mir Dost Muhammad v. Government of Balochistan and others P L D 1980 Quetta 1, we are inclined to accept the petition, declare the impugned order to be illegal, void and without lawful authority. Resultantly we are inclined to set aside the impugned conviction and direct acquittal of petitioner. He should, therefore, be released forthwith if not required in any other case. There shall be no order as regards costs.

M.BA./345/Q Petition accepted.