ALLAH NOOR AND 5 Others ISMAIL AND 3 Others vs THE STATE THROUGH COMMISSIONER, PESHAWAR DIVISION, PESHAWAR THE STATE AND 3 Other M. Zahural Haq, Advocate Supreme Court Instructed By Nur Ahmad Khan,
This matter involves two appeals by special leave concerning the procedural requirements for referring criminal cases to a Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963. The core legal question was whether an accused person is entitled to notice and a hearing before a Commissioner issues an order referring their case to a Tribunal under Section 3 of the Act. Relying on established precedents, the Supreme Court held that the decision-making process by a Commissioner regarding the referral of a case constitutes 'proceedings' under Section 25 of the Act. Consequently, the Court affirmed that the accused has a mandatory right to be heard before such an order is passed. An order issued without providing this opportunity is void ab initio, rendering all subsequent proceedings tainted with illegality. Following the concession by the Advocate-General, the Court allowed the appeals, set aside the impugned orders of the Commissioners, and directed that the cases be tried before ordinary criminal courts.
- Is an accused person entitled to notice and a hearing before a Commissioner refers their case to a Tribunal under the West Pakistan Criminal Law (Amendment) Act 1963?
- Does the process of referring a case to a Tribunal constitute 'proceedings' under Section 25 of the West Pakistan Criminal Law (Amendment) Act 1963?
- Is an order of reference to a Tribunal void if passed without affording the accused an opportunity of being heard?
- Section 3, West Pakistan Criminal Law (Amendment) Act 1963
- Section 25, West Pakistan Criminal Law (Amendment) Act 1963
- Section 3(1), West Pakistan Criminal Law (Amendment) Act 1963
1. HAMOODUR RAHMAN, C. J.-In both these appeals, by special leave, the question which arises for decision is ay to whether a person, whose case is sought to be referred to a Tribunal under section 3 of the West Pakistan Criminal Law (Amendment) Act of 190 for trial, is entitled to police of the proceedings and to be heard at the proceedings before the order of reference is made.
2. Learned counsel appearing in these appeals point out that this question is now concluded by two decisions of this Court in the cases of Home Secretary to the Government of West Pakistan, Lahore v. Jan Muhammad (PLD1969SC333) and Mansab A.I v. Amir (PLD1971SC 124).
3. It was held by this Court the above-mentioned cases that in actions in which the Commissioner decides to refer the question of guilt or innocence of an accused person to the decision of a Tribunal are "proceedings" within the meaning of section 25 of the above-mentioned Act and, therefore, the parties have a right of hearing before air order under section 3, subsection (1). Is made. An order passed without complying with this requirement of law which is a mandatory condition for the exercise of jurisdiction lay the Tribunal is void, arid, therefore, since the order passed by tire Commissioner is ab initio illegal, the entire proceedings based as on such an illegal order would also be tainted with illegality.
4. The learned Advocate-General appearing for the North. West Frontier Province concedes that this is now the legal position. These appeals must, therefore, be allowed and the orders of the respective Commissioners referring these cases to the Tribunal set aside.
5. The result of this will be that these cases will now go before the ordinary criminal Courts for trial.