P L D 1966 (W (PLP)

A. S. FARUQUI, J.‑

This petition under Article 98 of the Constitution by Muhammad son of Feroze and Ali son of Adam is directed against the order of the Commissioner, Hyderabad Division dated 24th February 1964, whereby the latter in the purported exercise of his powers under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, referred the case to the tribunal for decision on the question of the guilt or innocence of the two petitioners in this case.

2. The facts of the case as they appear from the order of the learned Commissioner are these. On the night between 16th and 17th June 1963 while the deceased Nooro Leghari and his sister Mst. Zainab were sleeping in the house of the complainant Darya Khan Leghari, at about 3 a.m. the complainant woke up on hearing gunshots and ran to the courtyard of the house and saw his wife Mst. Zainab weeping and crying and found Nooro Leghari lying on the cot on which he was sleeping with a gunshot injury in his chest. Nooro was the brother of Mst. Zainab. Mst. Zainab and Nooro told the complainant Darya Khan that Muhammad and Ali (the petitioners before us) had come in the house and had shot Nooro with a gun and made good their escape. Shortly thereafter Nooro expired.

3. The order of the Commissioner goes on to state that it was alleged that the police in their investigation had made it appear that the suspicion with regard to the crime fell upon the complainant himself. He further pointed out that the F.I.R. was lodged on 17th June 1963‑ the police submitted the final report on 2nd August 1963 though the names of the two accused persons were clearly mentioned in the F. I. R.

4. The learned Commissioner then went on to give his reasons for making the reference in the following terms: "The ocular evidence is only of two witnesses who are said to have seen the accused persons running away at night. Therefore, looking to the peculiar circumstances under which the offence has been committed it is expedient in the interest of justice that this case should be referred for the decision of the tribunal under the West Pakistan Criminal Law (Amendment) Act 1963."

5. It is stated in the petition and it has not been denied in the counter‑affidavit filed on behalf of the State that the police put up the challan in the committal Court against the two petitioners and in that Court four prosecution witnesses, namely Darya Khan, the complainant, Haji Ali Muhammad who is alleged to have seen the petitioners running away and Mir Muhammad and Haji Qadir Bux who immediately reached the place of incident after the shooting, were examined. Thereafter an application for the transfer of this case was made by the complainant through his private Advocate on 1‑10‑

63. The record and the proceedings of the case were for that reason called for by the Additional District Magistrate, Hyderabad who sent notice to the Advocate of the petitioners and heard his objections on 13‑11‑63 on the question of the reference of the case to the tribunal under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963. After such hearing the A. D. M. informed the petitioner's Advocate that he had no jurisdic tion to entertain the complainant's request which he had made before him for referring the matter to the tribunal. It was then on 17th March 1964 that the petitioners received the order of the Commissioner dated 24‑2‑64 whereby the case had been referred to the tribunal. It is the validity of this order which has been challenged in this petition before us.

6. A large number of grounds have been urged in the petition challenging the legality and propriety of the impugned order but the main question of attack at the hearing before us was 'that whereas under section 3 of the said Act the Commissioner is required to form. an opinion on the question, namely whether 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 be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, the learned Commissioner has, in this case, made the reference to tire tribunal upon the basis that "it is expedient in the interest of justice that this case should be referred for decision to the tribunal". It is contended by the learned counsel that the West Pakistan Criminal ‑Law (Amendment) Act, 1963 is a special statute and it empowers the Commissioner to take away the case from the ordinary criminal Courts and refer it to a tribunal, thus depriving the accused of many privileges which he enjoys in a trial under the ordinary law including his right of appeal and revision and that being so it must be construed very strictly. It is contended that to say that it is expedient that the case be referred to the tribunal is not the same thing as saying that it is inexpedient in the interest of justice that the case be tried by the ordinary Courts. It is, therefore, contended that the impugned order has been made in disregard of the requirements of section 3 of the Act under which the Commissioner is empowered to make the reference.

7. It will now be convenient to refer to section 3 of the Act under which the reference was made by the Commissioner. Subsection (1) of section 3 reads as 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 of 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, and require the Tribunal to come to a finding on the question after such enquiry as may be necessary and after hearing the accused." The, First Schedule referred to in section 3 names the offences in respect of which a reference may be made.

8. The short point which arises in this case is whether the order of the learned Commissioner is in accordance with section

3. This section is materially different from section 11 of the F. C. R. in so far as it requires the Commissioner to give his reasons for the order of reference. The learned Commissioner has indeed given reasons for the reference in the impugned order. However, the order on the face of it does not conform to the requirement of section 3 because under that provision the Commissioner is called upon to form an opinion on the question, namely whether it is inexpedient in the interest of justice that the case be not tried by the ordinary criminal Courts. The words used in section 3 are "the‑ question of the guilt or innocence of any person accused, of an offence". We have for the sake of brevity used the expression "case". What the learned Commissioner has said is that in his opinion it is expedient in the interest of justice that the case be referred to the tribunal. Now, is this the same thing as saying that it is inexpedient that the case should not be tried by the ordinary Courts. Mr. Haleem, the learned Assistant Advocate‑General, contended that it was not necessary for the Commissioner to give any reasons for making the reference and taking the case out of the jurisdiction of the ordinary Courts. He therefore urged that by saying that it was expedient in the interest of justice that the case be referred to a tribunal the Commissioner has substantially complied with section 3 whereby he is required to form an opinion as to the inexpediency of the trial by the ordinary Courts. He pointed out that as this section originally stood, the words "for reasons to be recorded in writing" in the first sentence after the word `Commissioner' and before the words "it is inexpedient in the interest of justice" were omitted by section 3 of the West Pakistan Criminal Law (Amendment) Ordinance, 1963 (XLIV of 1963). From this it was argued that now it was no longer necessary for the Commissioner to give any reasons for making the reference. We, however, pointed out to the learned A. A.‑G. that the words appearing in subsection (1) of section 3 later "by an order in writing with reasons therefor refer: the question to the decision of a tribunal" were still there and that they‑ have to be given a meaning. We asked the learned A. A.‑G. as to what these reasons were to relate and we were not able to get any satisfactory answer. Having regard to the words just quoted above in the context of the section it seems to us that when the Legislature required the Commissioner to give reasons for his orders those reasons were intended to relate to the considerations which might weigh with him in taking the case out of the jurisdiction of the ordinary Courts and referring it for decision to the tribunal. It follows that these considerations must necessarily relate to the question of ‑Inexpediency of the trial of the case by the ordinary Courts. The omission of the words by the amending Ordinance as has been shown above .may be attributed' to the fact that the giving of the reasons was mentioned twice in the subsection. We do not think that by omitting those words it was intended that the words "with reasons therefor" which occur later in the section, were intended to be made nugatory. It is a rule of interpretation that every word of the statute has to be given a meaning and effect. The fact that these later words were allowed to remain should lead to the conclusion that the intention which is imputed to the Legislature which enacted the amending Ordinance was not there.

9. It is true that the question of inexpediency is a matter on which the opinion has to be formed by the Commissioner. But considering that the Legislature required him to give reasons for the order of reference it must follow that the reasons upon which his opinion is formed must relate to the question, namely whether in a given case it is inexpedient in the interest of justice that the case be tried by the ordinary Courts. The Courts would naturally hesitate to scrutinise those reasons because that is a matter for the opinion of the Commissioner. But we are not prepared to hold that the Commissioner may make a reference without giving any reasons or by giving reasons which, by no stretch of imagination, be shown to relate to the matter on which the Commissioner is required to form his opinion. For instance, could the Commissioner say in a case that because a particular accused is ‑of dark complexion, therefore, it was inexpedient in the interest of justice that the question of his guilt or innocence be tried by a ordinary criminal Court? In the first place, we are sure he would not say this. But if he did, his order would not be in accordance with the provisions of section 3.

10. The question which then arises is that when as in the present case the learned Commissioner has given his reasons for the expediency in the interest of justice that the case be referred to a tribunal must we hold that while forming the opinion the learned ‑Commissioner applied his mind to the question which he was required to do, namely whether it was inexpedient in the interest of justice that the case should not be tried by the ordinary Courts. We would not like to dilate upon this question but we may be permitted to say that the reasons may not always be the same. The important point is that under the law the Commissioner is required to form an opinion with regard to the question of inexpediency of the trial of the case by the ordinary Courts and give reasons for it. Can we then take it upon ourselves to say that when he said that it was expedient that the case be referred to the tribunal he had applied his mind to the question whether it was inexpedient in the interest of justice that the case be tried by the ordinary Courts? Having regard to the nature of this legislation which empowers the Commissioner to pre‑emptorily take the case out of the jurisdiction of the ordinary criminal Courts, its provisions must be strictly construed, and while examining the legality of this order we are not going to presume that the learned Commissioner did apply his mind to the question which he is required to do when the order itself shows that what he has taken into consideration is the question whether it was expedient that the case should be referred to the tribunal. We are not going to assume that a Commissioner, who is a responsible officer when called upon to consider the question whether it is inexpedient in the interest of justice that the case be tried by an ordinary Court, will not honestly weigh the reasons for forming his opinion on that question. It may well be that when he addresses himself to that question he may decline to take the case out of the jurisdiction of the ordinary Courts, We are, therefore, of the view that the impugned order is not in accordance with the provisions of section 3 of the Act. We accordingly allow this petition and quash the order of reference passed by the learned Commissioner on 24th February 1964. K.B.A. Petition accepted.