P L D 1966 Supreme Court 701 (PLP)

S. A. RAHMAN, J.‑This order will dispose of two Civil Appeals Nos. 5 and 6 of 1966 and Criminal Petition for Special Leave to Appeal No. 4 of 1966. They arise out of the same proceedings. The relevant facts are these. The respondents, Rana Bashir Ahmad and Rana Muhammad Shabbir, were prosecuted by the police for the murder of Qadir Beg, father of Mirza Mahmood Beg, who is the appellant in Civil Appeal No. 5 of 1966, said to have been committed on the night between the 15th and 16th of November 1963. The commitment proceedings were pending in the Court of Raja Irshadul Haque Kayani, Magistrate first Class, Multan. No prosecution witness had yet been examined, when the District Magistrate. Multan, who is one of the appellants in Civil Appeal No. 6, called for the records of the case from the Court and, after examining them, made a recommendation to the Commissioner, Multan, who is the other appellant in that appeal, that t?' e case be referred to a Tribunal under section 3 of the Criminal Law (Amendment) Act, 1963 (hereinafter referred to as the Act). The records were forwarded to the Commissioner on the 9th January 1964. Prior to that, Mirza Mahmood Beg had also made a similar prayer in writing to the Commissioner on the 16th of December 1963, while the father of the two accused, had submitted a petition to him, praying that the case should not be referred to a Tribunal under the Act. It is stated before us at the Bar that the Commissioner heard a representative of the State, a counsel for the accused as well as a counsel for Mirza Mahmood Beg, the complainant, some time in April, but gave no indication of the orders that he was going to pass. It appears that he recorded a detailed order, dealing with the contentions raised by all the relevant parties before him, on the 8th of July 1964, but that this order was not communicated to the parties or to the District Magistrate immediately. It was only on the 17th of September 1964, that the Commissioner sent a formal order, referring the case to a Tribunal, to the Deputy Commissioner, for further action. It was the function of the District Magistrate under the Act to take steps for the constitution of the Tribunal. In this formal order, he made reference to the fact that he had examined the record, heard all the parties concerned and had also considered the recommendation made by the District Magistrate. Before the accused persons knew of this order, they had approached the High Court of West Pakistan with a petition under Article 98 of the Constitution, on the 4th of September 1964, challenging the vires of the recommendation made by the District Magistrate to the Commissioner. It was, inter alia, mentioned therein that, so far as the petitioner knew, the Commissioner had passed no orders till the date of the petition. The High Court called for a report from the Commissioner and it then transpired that the Commissioner had recorded the two orders, mentioned above, and had made a reference to a Tribunal under the Act. The petition was, therefore, amended in the High Court and the vires of the Commissioner's orders were also challenged. The High Court held, relying on a Full Bench judgment of the Peshawar Bench of that Court, published as Sabir Khan v. The State (P L D 1964 Pesh. 217). that the District Magistrate had no jurisdiction to send foe the records of the case from the Committing Magistrate's Court and that, therefore, his recommendation to the Commissioner based, on a perusal of those records, was vitiated in law. As the Commissioner had, in the view of the learned Judges, been influenced, very likely, by the District Magistrate's recommendation, the order of reference made by him was also declared to be invalid on the assumption that the recommendation of the District Magistrate was an extraneous factor which could not, in law, have been taken into account by the Commissioner. The learned Judges recognised that this was not the only ground on which the Commissioner purported to base his decision, but they expressed the opinion that if a Tribunal of special jurisdiction had taken into consideration a matter which could not at all have been referred to, under the law, then the situation called for the exercise of writ jurisdiction and the order of such a Tribunal could be declared to be inoperative, Authority for this view was found in two other judgments of the High Court, one reported as Sher Muhammad v. Rao Bashir Ahmad (P L D 1962 Lah. 172) and the other a Full Bench judgment in Rehmat Elahi v. Government of West Pakistan, delivered in Writ Petition No. 1052 of 1964, which had not yet been published. The objections raised on behalf of the accused, that the impugned orders of the Commissioner had been passed during the pendency of the writ petition in the High Court, were repelled, as having no substance. It was pointed Gut that the High Court had passed no orders of stay, such as could have prevented the Commissioner from exercising the jurisdiction vested in him by law. In the result, the accused's petition was allowed and it was declared that the recommendation of the District Magistrate and the orders passed by the Commissioner, were not in accordance with law and had no legal effect. The parties were left to bear their own costs. Leave to appeal was granted to the Commissioner and the Deputy Commissioner in one case and to Mirza Mahmood Beg in the other, from the order of the High Court, as it was contended that the Commissioner was competent under section 3 of the Act, to refer any case pending in a Court, before the framing of the charge, to a Tribunal under the Act and the mere fact that the District Magistrate bad withdrawn the records of the case from the Court, for the purposes of determining whether a recommen dation should be made to the Commissioner, would not vitiate the Commissioner's orders. Rana Bashir Ahmad and Rana Muhammad Shabbir also presented a petition to this Court for special leave to appeal from the High Court's order refusing them bail. The relevant part of section 3 of the Act may be extracted follows:‑ "3. Reference to Tribunal.‑(1) Where, in the opinion of the Commissioner, it is inexpedient in the interest of justice, that the question of the guilt or innocence of any person, accused of an offence specified in the First Schedule, or any several persons so accused, be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, 1898, the Commissioner may, notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law for the time being in force, by an order in writing, with reasons therefor, refer the question to the decision of a Tribunal, to come to a finding on the question, after such enquiry as may be necessary and after hearing the accused. (2) Where a case is pending in a Court, the reference may be made at any time before the charge is framed against the accused: Provided that if the case is in respect of an offence specified in Part B of the Schedule, the reference may be made (at) any time before the judgment is pronounced." It is true that as compared with the provisions of the Frontier Crimes Regulation, 1901, the provisions of the Act regarding power to make a reference to a Tribunal, vests in the Commis sioner, to the exclusion of the District Magistrate. However, Mr. Nazir Ahmad Khan, who appeared for the accused‑respondents before us, very fairly and frankly conceded that on the language of section 3 of the Act, it was open to the Commissioner to send for the records of the case pending in the Committing Magistrate's 9 Court, in order to satisfy himself whether this was a fit case for reference to a Tribunal under the Act. This power must be assumed to exist as an incidental power, necessary to enable him to fully discharge his responsibility under section 3 of the Act. It should be obvious, that without access to the records, the Commissioner would not be able to form a correct opinion. Indeed, without it, his action would have suffered from arbitrariness, divorced from any factual basis. If this be the correct position, then it may be accepted that if the Commissioner requisitions the records of a case for the purpose of section 3 of l the Act, he would normally ask the District Magistrate concerned, to obtain the records and forward them to him. The question, therefore, arises whether the District Magistrate could not, on his own initiative, send for the records of a case from a Court wherein it was pending, before the charge stage has been reached, in order to make a recommendation to the Commissioner that action might be taken by him, under section 3 of the Act. It is clear that the operation of section 3 of the Act is left in the field of expediency of which the Commissioner is to be the sole Judge. His discretion in this behalf is unfettered and it plain that before coming to a decision, it would be open to him to inform himself of all aspects of the case, from any source) available to him. The District Magistrate is in charge of the law‑and‑order situation of the district, on behalf of the State, and may be in the best position to tender advice to the Commissioner in such a matter. Rules 1.14, 1.15 and 27.12 of the Police Rules amply bear out that the Commissioner exercises control over the administration of his Division, in criminal as well as in other matters, through the District Magistrates. In order to decide the question of expediency or inexpediency of a reference to a Tribunal, under section 3 of the Act, it was not merely proper but necessary for the Commissioner, to obtain the opinion of the District Magistrate and to consider it along with other factors, such as the facts on the record of the case and the contentions raised by the parties. If the District Magistrate on his own initia tive, draws the attention of the Commissioner to the desirability of action under section 3 of the Act, in a particular case, he would only be discharging his responsibility of maintaining law and order and preserving peace in the district. For that purpose, he might send for the file of a pending case for determination he question whether he would make a recommendation to that effect to the Commissioner or not. The High Court in its Full Bench decision cited above appears to have taken the view that it was a fraud on the provisions of the Code of Criminal Procedure that the District Magistrate should have pressed into service section 435 of that Code, for sending for the records of a case, in order to make a recommendation, under a different statute, to the Commissioner. In the opinion of the learned Judges, action under section 435 of the Code of Criminal Procedure could only be taken for the purposes mentioned in that section. With respect, it seems to us that the position appears to have been misapprehended by the High Court and perhaps even by the District Magistrate and the Commissioner. There was no question of calling for the records under section 435 of the Code of Criminal Procedure for the purposes of that Code, when the matter fell to be decided under another statute. In order to decide whether action under the Act was called for or not, the District Magistrate could have, through the Public Prosecutor, requested the Court to hold up proceedings in the case, if the stage of charge had not yet been reached, in order to enable the relevant authorities to take the necessary decision under section 3 of the Act. If the District Magistrate had asked his Public Prosecutor to obtain copies of the records for his perusal and to request for an adjournment, with this end in view, the High Court presumably would have upheld his action. It would taking altogether too technical a view of the matter to say that the calling of the records instead, vitiated the action of the District Magistrate, for the result in either case would be the same. Even if it could be assumed for the sake of argument that the action of the District Magistrate, in calling for the records from the Court was irregular, it would not vitiate the order, passed by the Commissioner under section 3 of the Act. The view that prevailed in the High Court to the effect that the recommendation of the District Magistrate to the Commissioner was an extraneous f factor that could not be taken into consideration is seen to be erroneous. It must follow that the order passed by the Commissioner was within his powers, conferred by section the Act and suffered from no infirmity. The irregularity, if any, in procuring the records, would not invalidate the order of the Commissioner. For analogy, the Privy Council case of Prabhu v. Emperor (1), may be referred to. If a Tribunal is properly seized of a matter, the order passed by it, would not be vitiated by any antecedent irregularities, committed in procuring evidence or in securing the presence of the accused. The decisions relied upon by the High Court to support the thesis, that the District Magistrate's recommendation may have influenced the judgment of the Commissioner, were really not in point. The recom mendation itself was not foreign to the jurisdiction exercisable by the Commissioner. The order, passed by the High Court, consequently, cannot be sustained. The two appeals are allowed and the order of the High Court set aside. There remains the petition for special leave to appeal, by the two accused persons, from the order of the High Court, declining to grant them bail. It has been found that the matter has been taken outside the strictly judicial field and now rests in another jurisdiction. If so advised, the accused can approach the relevant authorities, exercising powers under that jurisdiction, for bail. The petition for special leave appeal is dismissed. A. H. Appeals accepted. Petition dismissed.