P L D 1965 (W (PLP)

FAIZULLAH KHAN, J.-In this writ petition the six petitioners, namely, Dilawar, Khairul Bashar, Mahzar-ul-Hassan, Ihsan Ullah, Matiullah and Javed Iqbal canvass the validity of the order dated 15-7-64 of the Commissioner, Peshawar Division, Peshawar, respondent No. 1, under which acting under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, (hereinafter to be referred to as the Act) the question of the guilt of the accused on the charge of murder under section 302, P. P. C. was referred to the Tribunal. The petitioners filed a revision petition under section 19 (2) of the Act against the order of the Commissioner to Home Secretary to Government of West Pakistan, Lahore, who dismissed the same by his order dated 8th September 1964.

2. The validity of the reference is challenged on three-fold grounds:- (1) That the principles of natural justice had been violated for failure of the Commissioner to issue show-cause notice before the case was referred to the Tribunal. (2) That the offence under section 302, P. P. C. could be validly withdrawn under section 3 of the Act "only in case of use of firearms" and since in the instant case firearm had not been used, the reference to the Tribunal was vitiated. (3) That there was no prima facie case against the petitioners.

3. Since the writ petition raised important questions, involving the true interpretation of some of the provisions of the Act and Rules framed thereunder, we, without admitting the writ petition, stayed the proceedings against the petitioners by the Tribunal, and directed the Additional Advocate-General to be heard in the case.

4. After hearing Khan Abdul Latif Khan, learned counsel for the petitioners, and the Additional Advocate-General at some length, and after giving our anxious consideration to the material provisions of the Act and the Rules, in particular section 3 and Rule 3, we have formed the opinion that there is no merit in any one of the contentions raised against the validity of the reference, and as such the writ petition must fail.

5. As regards the first contention that the principles of natural justice have been violated we are clearly of the view that there is no merit in this contention for the short and good reason that there is no provision in the Act or the Rules framed there under which require the Commissioner to issue a show-cause notice to the accused while considering whether the guilt of the accused should be tried by an ordinary criminal Court or by the Tribunal, and since the validity of the Criminal Law Amendment Act is immune from judicial scrutiny under the First Amendment of the Constitution the principles of natural justice cannot be imported into the provisions of the Act ox the Rules.

6. The decision of the second objection turns on the construction of clause (a) of Part A of the First Schedule, which is in the following terms:- "(a) 302, 304, 307 (only in case of use of firearms), 363, 395 to 398, 435, 436 and 498." It will be convenient to mention here that by the West Pakistan Criminal Law (Amendment) Ordinance, 1964 (hereinafter to be referred to as Ordinance I of 1964), the following Explanation has been added at the end of the First Schedule to the Act:- "For the removal of doubts, it is hereby clarified that the words and brackets (`only in case of use of firearms') occurring in Part A of this Schedule, are applicable only to offences punishable under section 307, Pakistan Penal Code." It will be manifest from reading the language of the section reproduced above that the words "only in case of use of firearms" within the brackets, govern the offence under section 307 and not the offences under sections 304 and 302, P. P. C. It is well-established rule of grammar that the qualifying words govern the word or phrase occurring immediately and not the remote word. We need not labour the point, suffice it to say that this very point was agitated in Writ Petition No. 408 of 1964 (Mst. Fazal Bibi v. The State and three others). A Division Bench comprised of S. A. Mahmood and Muhammad Iqbal, JJ., by its order dated 15th July 1964, emphatically repelled this contention. S. A. Mahmood, J., delivering the judgment for the D. B summed up the discussion as follows:- "The manner in which these sections are expressed, leaves no room for doubt that the use of firearms is referable only to cases under section 307 and not to cases under section 302, P. P. C. for otherwise, there should have been the word `and' in between sections 304 and

307. Further, there is no comma after

307. A person may be prosecuted for an offence under section 307, P. P. C. even when no injury had been caused, or even if a minor injury had been caused. It, therefore, appears that the use of firearms was made a condition precedent for the case of a person, accused of an offence under section 307, P. P. C. to be referred to the Tribunal." In the same judgment their Lordships also repelled the contention that Ordinance I of 1964 was inoperative as it gave retrospective effect. Their Lordships dealing with this question observed:- "But, no such retrospective operation is involved, as we have held that the relevant entry in the First Schedule meant that the use of firearms was to be read with section 307 only."

7. This brings us to the last contention that the case could not be referred to the Tribunal for want of prima facie case. The learned counsel to sustain the argument relied on rule 3 of the Rules framed under the Act, after the West Pakistan Criminal Law (Amendment) Act, 1963. The rule material to the discussion is rule 3 (a), which reads thus:- "(3) The following factors may among others be considered in determining whether a case be referred to a Tribunal for decision. (a) in murder, culpable homicide not amounting to murder, attempt to murder, dacoity and robbery cases, that the accused have not been named in the F. I. R., or the assassins or any of them are alleged to have been hired or that the offence is alleged to have been committed between the hours of sunset and sunrise; (b) * * * * * * * * The learned counsel tried to argue that rule 3 (a) could be called into aid only (1) when the accused had not been named in the F. I. R., (2) "or the assassins or any of them are alleged to have been hired", and (3) "or that the offence is alleged to have been committed between the hours of sunset and sunrise". It was complained that conditions 2 and 3 were not fulfilled, and as regards condition No. 1 only Dilawar, Khairul Bashar and Ihsanullah petitioners had been mentioned in the F. I. R. and, therefore, the case as a whole could not be referred to Tribunal and, at any rate, the case against the three petitioners, whose names had not been mentioned in the F. I. R. lodged by the father of the deceased himself, who purported to be eye-witness, could not be validly withdrawn. Reliance was sought on a passage in the judgment of the Full Bench, reported in Sardar Nawab Haji Muhammad Khan v. Additional Commissioner etc. (P L D 1964 Lah. 401), in support of the contention that it is a `must' for valid reference of trial by Jirga under the F. C. R. that there should be a prima facie case, which if established, would end in the conviction of the accused. The material paragraph is para. 27, which reads thus :- "

27. With great respect, and with due deference, I venture to interpret the words emphasised above as meaning that in the opinion of 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."

8. We are unable to accept the contention that the impugned order is vitiated, either on the ground that the names of all the accused had not been mentioned in the F. I. R. or on the ground that since the names of some of the accused had not been mentioned in the F. I. R. there was no prima facie case against those accused, and therefore, it would come within the rule enunciated by the Full Bench referred to above. Rule 3 merely states that, among other considerations, the Commissioner may take into account the factors mentioned therein but there is nothing in the language which enjoins compulsion on the Commissioner that in presence of all the factors or some of the factors mentioned, therein he is obliged to decide the case one way or the other. In other words, there is no compulsion in the direction, but on the contrary, there is a complete relaxation o the compulsion-and the directions are merely of advisory nature which allow to the Commissioner unfettered discretion in spite of the factors listed in the rule to refer the case to the Tribunal or refuse to refer the case to the Tribunal and if he acts one way of the other his decision is the final.

9. There is another aspect of the case and it is that incorporating in rule 3 one of the factors that the names of the assailants or some of them are not mentioned in the F. I. R. clearly recognises the power of the Commissioner to refer to the Tribunal a case where there is no case judicially or a prima facie case and, therefore, to import the rule enunciated by the Full Bench (pertaining to cases under the F. C. R.) to a case referred to the Tribunal under the Act would tantamount to challenge the vires of the rule which is specifically protected by Act I of 1964 (an Act to amend the Constitution of the Republic of Pakistan).

10. We would wind up the discussion on the subject by extracting certain observations from an unreported decision of the Division Bench dated 3rd September 1964, in Writ Petition No. 251 of 1964 (Hyder Shah etc. v. The Province of West Pakistan). Inamullah, J., delivering the judgment for the D. B., among other points, had to consider rule

3. His Lordship repelling the argument that the power of the Commissioner to refer the case to Tribunal was confined to the Contingency mentioned in rule 3, observed:- "The Commissioner was not bound to limit his consideration while referring the matter under section 3 of the Criminal. Law Amendment Act (hereinafter called the Act) to a Tribunal to only those facts which were disclosed in the application of Khair Muhammad, the first informant. The provision of section 3 of the Criminal Law Amendment Act is wide enough to confer jurisdiction on the Commissioner to take into consideration any fact which may lead him to the conclusion that it would be expedient in the interest of justice to refer the matter to a Tribunal."

11. In the result the writ petition fails and is dismissed in limine. The stay order stands automatically vacated. K. B. A. Petition dismissed.