MUHAMMAD NAWAZ AND Another vs THE DISTRICT MAGISTRATE, HAZARA AND 5 Other
This matter arises from a criminal case registered against the petitioners under sections 302 and 307 read with section 34 of the Pakistan Penal Code on 22nd April 1965. The Commissioner, Peshawar Division, referred the question of the petitioners' guilt to a Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963. The petitioners challenged the reference before the High Court via a writ petition, arguing that the reference order was passed without affording them a hearing. The High Court dismissed the writ petition, holding that any initial illegality was cured by a subsequent hearing before the Member, Board of Revenue. Upon appeal, the Supreme Court held, following precedent, that the Commissioner's reference made without hearing the accused was without lawful authority. However, considering the repeal of the said Act and inordinate delay, the Court declined to grant leave to appeal, instead advising the Provincial Government to cancel the reference and transfer the case to a court of competent jurisdiction under the Code of Criminal Procedure.
- Whether a reference to a Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963, made without hearing the accused, is without lawful authority?
- Can the illegality of an order of reference passed without a hearing be cured by a subsequent hearing given by a higher revenue authority?
- How should pending proceedings under a repealed special law be handled in cases of inordinate delay?
- Section 302, Pakistan Penal Code
- Section 307, Pakistan Penal Code
- Section 34, Pakistan Penal Code
- Section 3(i), West Pakistan Criminal Law (Amendment) Act 1963
- Section 19, West Pakistan Criminal Law (Amendment) Act 1963
- Code of Criminal Procedure
ORDER
1. MUHAMMAD YAQUB ALI, J.-A case under sections 302, 307 read with section 34, P. P. C. Was registered against the petitioners on 22nd April 1965. The Commissioner, Peshawar Division, by order dated the 17th August 1966, referred the question of their innocence or guilt to a Tribunal under section 3(i) of the West Pakistan Criminal Law (Amendment) Act, 1963, then in force. The petitioners filed a revision petition under section 19 of the Act and maintained that the Commissioner ought to have heard them before making the order of reference. The revision petition was dismissed whereupon the petitioners moved the High Court in writ jurisdiction reiterating the plea that an order of reference passed in the absence of the accused person is without lawful authority.
2. The learned Judges in the High Court dismissed the writ petition on the 6th March 1970, on the finding that the illegality of the order of the Commissioner was cured by the hearing given to the petitioners by the Member, Board of Revenue.
3. The view adopted by the High Court is contrary to the decision in Home Secretary to the Government of West Pakistan v. Jan Muhammad (PLD1969SC333). The reference made by the Commissioner is, therefore, without lawful authority, but instead of giving leave to, appeal at this late stage, we would conclude by pointing out to the Provincial Government that in view of the repeal of the West Pakistan Criminal Law (Amendment) Act and the inordinate delay which has already taken place in bringing the petitioners to trial, the reference to the Tribunal may be cancelled and the case against the petitioners be sent to a Court of competent jurisdiction under the Code of Criminal Procedure.