DAIMIR Versus PUNJAB PROVINCIAL GOVERNMENT

In connection with F. I. R. No. 111, dated 26‑7‑1966, record ed at Police Station Nur Shah, District Sahiwal, commitment proceedings were pending against the present four petitioners and one Muhammad alias Mammi for the murder of Mst. Fatima under section 302/149, P. P. C. The Commissioner, Multan Division, by means of his order, dated 18‑3‑1967, exercising powers under section 3 of the Criminal Law Amendment Act VII of 1963 (hereinafter called the Act), directed that the question of guilt or innocence of the persons, hereinbefore mentioned, be referred to a Tribunal to be constituted under section 4 of the Act and required the Tribunal to give a finding on the said question after such enquiry as may be necessary and after hearing the accused.

2. The petitioners were then tried by a Tribunal consisting of one President and four Members. All the Members and the President agreed that Muhammad alias Mammi accused was, guilty. Regarding the other accused the opinion was divided. The four Members held the remaining four persons as not guilty, though the President held that they were also guilty. The report of the Tribunal came up for consideration before the learned District Magistrate who on 27‑11‑1968 held Muhammad alias Mammi accused as guilty of an offence under section 302, P. P. C. and sentenced him to fourteen years' R. T. subject to confirmation by the Commissioner as required by section 11 of the Act read with Rule 20 of the West Pakistan Criminal Law Amendment Rule, 1963. The other accused were acquitted by him.

3. The convicted accused, namely, Muhammad alias Mammi, filed an appeal and the matter was taken up along with the Reference submitted by the District Magistrate as hereinbefore indicated. There was no cross‑appeal either by the State or the complainant, against the acquitted accused. The Commissioner dismissed the appeal of Muhammad alias Mammi and maintained and confirmed his conviction and sentence by means of his order, dated 15‑1‑1969.

4. Muhammad alias Mammi accused filed an appeal under section 18(2) of the Act, which was taken up by the Home Secretary Mr. Masud Hassan Khan, who, by means of his order, dated 1‑8‑1969, dismissed it as barred by limitation by two days Muhammad alias Mammi accused filed a writ petition in this Court being W. P No. 1593 of 1969, which was accepted by a Division Bench of this Court, consisting of Muhammad Iqbal and Muhammad Afzal Khan, JJ., by means of their judgment and order dated 28‑5‑1970, whereby they quashed the order of the Home Secretary and directed him to dispose of the aforesaid appeal on merits.

5. After the aforesaid remand, the appeal of Muhammad alias Mammi came up for hearing before the Home Secretary. He heard the arguments of the accused and the State counsel. Being of the opinion that the matter of the acquitted accused also required consideration, he on 22‑8‑1970, issued a notice to the acquitted accused to show cause as to why their acquittal should not be converted into conviction. The actual notice reads as follows :‑----

I, Mr. Masror Hasan Khan, SQA, T. Pk., C. S. P., Secretary to Government of the Punjab, Home Department, Civil Secre tariat, Lahore do hereby direct you (1) Pir Ali son of Saddu, (2) Waryam son of Pir Ali. (3) Sher son of Rajab all Dhaku by caste, residents of Chak No. 54/GD, Tehsil and District Sahiwal and (4) Dalmir alias Dalli son of Walia, caste Dhaku, resident of 63/5‑L Tehsil and District Sahiwal, to appear before me in person or through your counsel on the 24th September 1970 at 7‑30 a.m. sharp and show cause why your acquittal granted by the District Magistrate, Sahiwal vide by order dated 27‑11‑1968 should not be converted into conviction."

6. At this stage, when the appeal of Muhammad alias Mammi is still pending before the Government, the four acquitted accused, to whom notice has been Issued by the Home Secretary, have come up in writ petition against the same under Article 98 of the late Constitution, praying for a writ of prohibition to restrain the Government from taking up their case at this stage and in the manner hereinbefore mentioned.

7. Learned counsel for the petitioners argued that the Government/Home Secretary had no jurisdiction to re‑open the case of his clients and the notice issued to them be quashed and the respondents be prohibited from proceeding any further against them. The plea of absence of jurisdiction is based on the provisions of sections 18 to 21 of the Act which read as follows :‑

Section 18.‑(1) Any party aggrieved by any decision given, sentence passed, or order made, by the District Magistrate under any of the provisions of this Act, may, within thirty days of such decision, sentence, or order, prefer an appeal to the Commissioner.

(2) Any party aggrieved by an order of the Commissioner referring a case to a Tribunal for decision, or confirming a sentence of imprisonment exceeding seven years, or enhancing any sentence or converting a finding of acquittal into a finding of conviction, may, within sixty days of the passing of such order, appeal to Government.

Section 19.‑(1) The Commissioner or Government shall not modify, alter or set aside any sentence, decision or order under section 18 without giving the parties an opportunity of being heard.

(2) Government and the Commissioner may, in exercise of their respective appellate jurisdictions, 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.

(3) Where, in the exercise of his appellate jurisdiction, the Commissioner varies or sets aside any decision, sentence or order, he shall record his reasons for so doing.

Section 20. Government may at any time call for the record of any case which has been decided by the Commissioner in which no appeal lies to it, and after giving the parties an opportunity of being heard, pass such order in the case, as it deems fit.

Provided that nothing in this section shall be deemed to authorize Government to set aside :‑

(i) an order of the Commissioner refusing to refer the question of the guilt or innocence of any person to a Tribunal or

(ii) a finding on any question of fact of a Tribunal, where such finding has been accepted by the District Magistrate and the Commissioner, unless it is of opinion that there has been a material irregularity or defect !n the proceedings or that the proceedings have been so conducted as to occasion a failure of justice.

Section 21. No sentence shall be passed by Government or by the Commissioner in the exercise of its or his appellate or revisional jurisdiction which the District Magistrate could not have passed under this Act.

8. A perusal of the aforesaid sections will show that :‑

(i) From a decision or order of the District Magistrate an appeal lies to the Commissioner.

(ii) From the following orders of the Commissioner a further appeal lies to the Government namely ;‑

(a) From an order referring a case to a Tribunal for decision ;

(b) from an order confirming a sentence of imprisonment exceeding seven years ;

(c) from an order enhancing any sentence ; or

(d) from an order converting a finding of acquittal Into a finding of conviction.

(iii) The Commissioner or the Government while exercising appellate jurisdiction have all the powers conferred on Appellate Court by the Code of Criminal Procedure and in addition thereto can enhance any sentence.

(iv) The revisional jurisdiction of the Government extends only to any case which has been decided by the Commissioner in which no appeal lies to the Government.

(v) In revisional jurisdiction the Government :‑

(a) Cannot set aside an order of the Commissioner refusing to refer the question of the guilt or innocence of any person to a Tribunal ;

(b) and cannot set aside a finding of fact of a Tribunal where such finding has been accepted by the District Magistrate and the Commissioner, unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a failure of justice.

(vi) The revisional jurisdiction of the Government does not extend to the original order or decision of a District Magistrate.

9. In the instant case it is a common ground that against the decision or order of District Magistrate acquitting the petitioners, no appeal was filed either by the State or the complainant before the Commissioner. The Commissioner had only the appeal of one convicted accused before him and the case of the acquitted accused was neither heard nor decided by him and nor did he pass any order about them. The case of the acquitted petitioners‑(to stick to the language of the statute)‑was not decided by the Commissioner, therefore the Government/Home Secretary had no jurisdiction to take up their case in revision. When confronted with this situation, learned counsel for the State repeated the following sentence in section 20 :‑

"Government may at any time call for the record of any case which has been decided by the Commissioner in which no appeal lies to it." and argued that the word "case" in the aforesaid section does not refer to the case of any individual accused as such but means, just a case in general, and would cover the case which was referred, for instance by the Commissioner to a Tribunal for trial. The "reference order" of the Commissioner, it was submitted tantamount to instituting a case against all the accused before a Tribunal, and if as a result of the trial of that reference, some accused were acquitted and some convicted, the case on the whole remained one and the same, and if the Commissioner heard and decided an appeal of only one of the accused, nevertheless he could be said to have decided the same case about which he had made the reference earlier. In this way it was argued, that even if the appeal before the Commissioner was only of Muhammad alias Mammi, accused still It was the same case which had been referred by the Commissioner to the Tribunal and which he decided (later on) in the aforesaid appeal, and as such, the Government, when it called for the record of that case, was perfectly within its jurisdiction to do so, and if it found, that persons acquitted by the District Magistrate were unjustifiably acquitted, it could convert their acquittal into conviction.

10. In my opinion the contention raised by the learned counsel for the petitioners seems to be sound. The woes "a case which has been decided by the Commissioner" indicate that it should be such a case which he specifically decides. The jurisdiction of the Commissioner (so far as relevant for the subject in hand) can be gathered from reading section 18 of the Act as a whole. A cage can come before the Commis sioner in the form of an appeal at the instance of any party aggrieved, and also, in the form of a reference, where an accused has been sentenced to imprisonment of more than seven years under section 7 of the Act read with Rule 20 of the West Pakistan Criminal Law Amendment Rules, 1963. These provisions of law, can serve as a guide for finding out, as to what in any given circumstances was the case which the Commissioner may be said to have been seized of. If, for instance it as an appeal of one convicted accused, then it is the case of that and that accused alone which he will be deciding. When there is no appeal against an acquittal, the case of the acquitted accused will neither be before him and nor will he be deciding the same. If therefore, certain acquitted persons, against whom no appeal was filed before the Commissioner, and whose case, as such, was not decided by him, are issued any notices by the Government, in exercise of its revisional jurisdiction under section 20 of the Act, the same will be without lawful authority, because the revisional jurisdiction of the Government extends only to such a case which was decided by the Commissioner. The intention seems to be that persons against whom no appeal was filed before the Commissioner or whose case was not dealt with by the Commissioner (either on their own appeal or otherwise) may not be hauled up by the Government in exercise of its revisional jurisdiction. Condition precedent, for initiating revisional proceedings or assuming jurisdiction, by the Government, against an accused, is, that his case should have first been decided by the Commissioner. The words "case decided" by the Commis sioner refer to the matter which is actually decided by him. The view which I have taken can be said to have an indirect support from Shahadat Khan v. Home Secretary (PLD 1969 SC 158), where it was held that cases of persons jointly charged, some of whom may or some of whom may not come within the scheduled offences could be split up in this way that scheduled offences may be referred to the Tribunal while unscheduled offences may not be so referred. This shows that the concept of word case" is not confined to the case as a whop as reported in the F. I. R. (or as shown in the charge) but that against each accused there is a case by itself. In this way taking the above point to its logical end, when a Commissioner decides a particular case, it should be seen as to against whom and qua which accused he has decided it. If the case of the acquitted accused was not before him and he did not decide it as such, then the revisional jurisdiction of the Government would not extend against the aforesaid order of the Commissioner. A very perusal of the impugned notices (one out of which has been reproduced earlier) would show that the Government was calling for the record of a case decided by the District Magistrate and not the Commissioner, inasmuch as it clearly recited to show cause why acquittal order of the District Magistrate dated the 27th of November 1968, should not be set aside. On their very face, these notices arc in excess of jurisdiction and cannot be legally sustained.

11. The gist of the above discussion is that the jurisdiction assumed by the Government against the petitioners and notices be issued to them, as such was without lawful authority and have no legal effect against them, which I hereby so declare. The writ petition is accepted. The notices are quashed and the Government is prohibited from proceeding against the petitioners on the basis of the aforesaid notices. The petitioners will get their costs.

S. Q. Petition accepted .