P L D 1969 Peshawar 141 (PLP)

(1) That the skin was peeling off. (2) That the deceased had gun shot wounds. (3) That the body was decomposed. (4) That the probable time that elapsed between injury and death was 2‑3 weeks.

5. It is important to mention here that Mst. Bibi Aisha on 21st December 1964 (about one month and 14 days after the recovery of the dead body) made a written application to the District Magistrate in which she added the names of Abdur Rahim (One of the contestants to the election) and his brother Muhammad Ayub to have also accompanied the three petitioners and taken away the deceased, and that the said two persons had so far not been arrested. The police after investigation challaned the three petitioners, but Abdur Rahim and Muhammad Ayub were placed in column No. 2 and later on they were also arrayed as accused, having been summoned by the enquiry Court, and the case was pending before the enquiry Court when by the impugned order dated 13th October 1965, the case was referred by the Commissioner to the Tribunal.

6. Abdur Rahim and Muhammad Ayub also filed a writ petition (No. 598 of 1965) challenging the reference of their case to the Tribunal as illegal and by our order dated 3rd October 1968 the writ petition was accepted and reference of their case to the Tribunal was held without "lawful authority", being a "case of no evidence" as conceded by the learned Additional Advocate‑General.

7. S. Masoom Shah, learned counsel for the petitioners, strenuously argued that only those cases could be referred by the Commissioner to the Tribunal in which there was a "prima facie case". In other words, it was a condition precedent for a valid reference that there should be a "prima facie case" against the accused. Reliance was placed on the rule enunciated 'by the Supreme Court in The State v. Nawab Gul (P L D 1963 S C 270). The learned counsel also relied on the decision of the Full Bench comprising of five Judges in Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others (P L D 1964 Lah. 401), in which the learned Judges were required to fully import the rule enunciated in The State v. Nawab Gul's case, in particular to the meaning of the expression "prima facie case".

8. In The State v. Nawab Gul, A. R. Cornelius, C. J. while conceding that the statute was so worded as to make the executive authorities the final Judges of expediency, whether a case should be heard by a Jirga or should be left to be tried by the ordinary Courts, but proceeding further the learned Chief Justice, if I may say so, tersely summed up the discussion thus :‑ . . . . but it may be permitted to question whether it can ever be expedient to refer under section 11 of the Regulation, for trial a set of facts which do not constitute a case at all. If the question were whether the accused had a motive (i.e. they bad an eye on the shop of the deceased) that would be susceptible of enquiry and decision, but a positive answer would not suffice to connect them with the killing. Something more would be needed to make out a prima facie case.

9. The words "prima facie case" were greatly emphasised and the learned counsel vehemently argued that it is pre‑requisite condition of a valid reference that there should be a "prima facie case", i.e. such evidence which ii believed and unrebutted by defence can be considered sufficient to establish the guilt of the accused.

10. In the Full Bench decision referred to above, Ortcheson, J. speaking for the Full Bench, after exhaustive review of the observations of the Supreme Court in The State v. Nawab Gul, summed up the discussion in paragraph 27 thus :‑ "With great respect, and with due diffidence, I venture to interpret the words emphasised above as meaning that in the opinion o: their Lordships, a reference to a Jirga cannot be made when, on the facts before the Deputy Commissioner, points do not emerge from the facts before him which, if established, will suffice for the conviction of the accused for a criminal offence falling within the scope of the Regulation, and that in such circumstances the reference to a Jirga will be bad. It follows that if no case for reference is made out, the superior Courts will, in the exercise of their special constitutional jurisdiction, be competent to interfere". (Underlined" is ours).

11. Sardar Fakhre Alam Khan, Additional Advocate General, on the other hand, argued that it was not a condition precedent for reference of the question of guilt or innocence of the accused by the Commissioner that there should be a "prima facie case" in the sense that there should be evidence or material before the Tribunal which is considered by the Courts as sufficient for recording conviction, and that it was for the Commissioner to say whether the material before him was sufficient which could be considered by the Tribunal for conviction, and that the Tribunal was not bound by any rule of evidence. The learned Additional Advocate‑General tried to reinforce his argument on some of the observations made in Sabir Khan v. Commissioner, Peshawar Division, Peshawar and another (P L D1966 Pesh. 248), to which incidentally one of us Justice Faizullah Khan, was a party.

12. The fate of the writ petition hinges on the true interpretation of the rule enunciated in The State v. Nawab Gul. On a careful reading of that decision and the Full Bench decision in Sardar Nawab Haji Muhammad Khan v. Addl. Commissioner and Commissioner, F. C. R., Quetta, we have formed the opinion that before a case could be validly sucked into the Tribunal by the Commissioner, there must be a "prima facie case", i.e. points do "emerge from the facts before him, which, if established, will suffice for the conviction of the accused for a criminal offence falling within the scope of the Regulation". No doubt there are certain observations in Sabir Khan's case which are likely to be construed that the judgment must rest with the Commissioner and not with the superior Courts which are called upon to examine the legality of the question, but on a careful reading of the judgment the impression cannot be sustained for the short and good reason that a Division Bench could not interpret the expression "prima facie case" as to mean something other than what the learned Judges of the Supreme Court had expressly said, namely, that facts do not emerge which if believed would suffice for the conviction of the accused. What was emphasised in this judgment was the different standards of appreciation of evidence by the Member of the Tribunal while giving finding in regard to the guilt or innocence of the accused, or the Commissioner at the time of making reference, and that of the judicial standard insisted by Courts for recording conviction. It was never intended that the superior Courts while exercising powers under Article 98 of the Constitution could not call into question the legality of the reference where there was "no case" at all, or there was no "prima facie case". Reference may be made to paragraph 10 of the judgment at page 251, wherein it was stated :‑ "A case of complete absence of incriminating evidence of course stands on a different footing, as in such a case it is clear that whatever standards of appreciation of evidence are applied no conviction could at all be recorded for want of any evidence whatsoever. This position does not however hold good in cases where there is some evidence or material which, if believed by the Tribunal by Concerned, would suffice for the conviction of the accused." Continuing further, it was observed :‑ "For these reasons, we are of the view that while considering a case of the present kind, it would not be appropriate for us to substitute our own judgment for that of the Commissioner in forming an opinion about the expediency or otherwise of referring the question of the guilt or innocence of the accused person to a Tribunal constituted under the Act ; and we must confine ourselves to the examination of a very narrow question viz., whether there was any material or evidence, at all before the Commissioner to warrant the reference, or, to use the words of Ortcheson, J. in the case of Muhammad Khan, `whether points do not emerge from the facts before him which, if established, will suffice for the conviction of the accused'. If there was such material or evidence then the reference could not be held to be bad in the sense indicated by their Lordships in Nawab Gul's case." It deserves to be mentioned here that in the above noted casq leave to appeal has been granted by the Supreme Court on 21‑12‑66 to consider the question "whether the considerations which have appealed to the learned Judges of the High Court in principle distinguish the present case from The State v. Nawab Gul."

13. Judged in the light of the test laid down by the Supreme Court in The State v. Nawab Gul and the Full Bench in Sardar Nawab Haji Muhammad Khan v. Addl. Commissioner and Commissioner, F. C. R., Quetta, we on careful review of the evidence in the instant case are clearly of the view that there is no "prima facie case", or, to put it differently, facts do not emerge, which if believed, would be sufficient for recording the conviction of any one of the three petitioners. The expression "prima facie case" means evidence which if believed to be true and unrebutted by the defence, can be considered sufficient to establish the guilt of the accused. In other words, before a case can be validly referred to the Tribunal, there must be some evidence in the shape of eye‑witnesses, which purports to say that the offence was committed in their presence by the accused$ or else there should be such circumstantial evidence, which if taken in conjunction with other evidence in the case would lead to the inference that the accused alone have committed the offence. In the instant case, there is no suggestion, where, by whom and in what manner was the deceased killed. The only evidence led in the case is that the petitioners had late in the evening gone to the house of the deceased and taken him out allegedly for canvassing of votes and after a week the dead body of the deceased was found in the Bajra crop. There is no suggestion that any one had actually seen any of the petitioners killing the deceased. The motive for the offence, namely, that there was civil litigation between two of the three petitioners, other than Mir Ghazab, and the father of the widow of the deceased, is too meagre for committing a heinous offence of murder. Again, there are certain facts, which completely belie the suggestion that the deceased had been taken away late in the evening on 28‑10‑1964. The post‑mortem report, as already stated, revealed that the doctor had given the period between the death and the post‑mortem to be between 2 or 3 weeks, which would show that the deceased had been killed by gun‑shot at least about one week earlier than the 28th October 1964. Again, Mst. Bibi Aisha, wife of the deceased, her brother and father are not in the least reliable witnesses, in that, as already stated, Mst. Bibi Aisha after lapse of a month and fourteen days made a clumsy attempt to falsely implicate Abdur Rahim and Muhammad Ayub in her application to the District Magistrate to the effect that they too had accompanied the three petitioners and taken away the deceased.

14. For all the foregoing reasons, facts do not emerge before the Commissioner, which if believed, could result in the conviction of the petitioners. We accordingly accept this writ petition, set aside the order of reference, and quash the proceedings against the petitioners. A. E. Petition accepted.