P L D 1990 Quetta 30 (PLP)

MIR HAZAR KHAN KHOSO, J.‑‑Petitioner has challenged his conviction and sentence recorded under section 498/497, P.P.C. by Assistant Political Agent and Magistrate First Class, Dera Bugti vide judgment dated 10th August, 1989.

2. Relevant facts briefly stated are, that Ghabroo son of Lakha Khan on 16th January, 1989 lodged a complaint before Assistant Political Agent Dera Bugti alleging that petitioner had enticed away his wife Mst. Khair Bibi and was committing Zina with her. The complainant was referred to Naib‑Tehsildar Singsalah for inquiry who submitted challan under sections 497 and 498, P.P.C. on 22‑7‑1989. Learned Assistant Political Agent Dera Bugti (Respondent) exercising powers within the purview of sections 4 and 5 of Ordinance 11 of 1968 constituted a Tribunal on 23rd July, 1988 and referred the matter to it for determining question of guilt or innocence of petitioner pertaining to offences covered by section 497/498, P.P.C. Evidence was recorded by the Tribunal, therefore report was submitted by the members on 2nd August, 1989 unanimously finding petitioner guilty of the aforesaid offences. 1t may be seen that Assistant Political Agent Dera Bugti accepted recommendations of the Tribunal and by means of judgment dated 10th August, 1989 holding petitioner guilty for the offences sentenced him to undergo rigorous imprisonment for 5 years and fine of Rs.15,000 under section 497, P.P.C. and rigorous imprisonment for 3 years and fine of Rs.10,000 regarding offence under section 498, P.P.C.

3. Feeling aggrieved from said conviction and sentence, present petition has been filed.

4. Mir Muhammad Nawaz Marri, learned counsel for petitioner emphatically contended that section 497/498, P.P.C. were repealed by means of section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 therefore all the proceedings drawn up in the matter by Assistant Political Agent or Tribunal completely lacked jurisdiction and were conducted without lawful authority therefore are of no legal effect. It was further canvassed that all the proceedings taken by the administrative authorities against petitioner are purely on account of mala fides.

5. Mr. Muhammad Shari Rakhshani, learned A. A.‑G. initially challenged the maintainability of petition on the ground that alternate remedy prescribed by law had not been exhausted, however, when confronted with legal situation, about change in the law, he found himself in great difficulty to defend the impugned judgment.

6. We have carefully considered contentions raised by learned counsel for parties on the basis of available record and relevant law. There is no doubt that after promulgation of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 `Provisions of section 497/498, P.P.C. have ceased to be on the Statute Book with effect from 10th February, 1979. g Section 19(3) of aforesaid Ordinance has expressly repealed section 497/498, P.P.C. For ready reference section 19(3) (a) is reproduced below:‑‑ "

19. Application of certain provisions of Pakistan Penal Code and amendment:‑‑ (1) Unless otherwise expressly provided in this Ordinance, the provisions of sections 34 to 38 of Chapter 11, sections 63 to 72 of Chapter III and Chapter V and V‑A of the Pakistan Penal Code shall apply mutatis mutandis, in respect of offences under this Ordinance. (2). ...................... (3)........................ (a) Section 306, section 372, sections 373 and 375 and section 376 of Chapter XVI and section 493, section 497 and section 498 of Chapter XX, shall stand repealed. It is therefore, quite obvious, that on repeal of offences covered by section 497/498, P.P.C. no forum enjoys jurisdiction to try or convict any person in respect of non‑existent provisions of law. Accordingly proceedings drawn and recorded by Assistant Political Agent Dera Bugti or the Tribunal under section 497/498, P.P.C. against the petitioner in this matter are totally coram non judice as such nullity in the eyes of law.

7. Secondly, forums created under Ordinance II of 1968 can assume jurisdiction for trying the accused persons only if they are prima facie found it concerned with commission of "scheduled offence" as described under section 2‑E. It is appropriate to reproduce definition of `Scheduled Offence' at this stage. "(e) `Scheduled offence' means an offence made punishable by the Pakistan Penal Code (XLV of 1860) other than an offence specified in Section A of Part I of the Schedule to the Conciliation Courts Ordinance 1961 (XLV of 1961). Perusal of relevant provisions of Ordinance II of 1968 manifestly discloses that Assistant Political Agent Dera Bugti could not lawfully take cognizance or exercise jurisdiction in the purported exercise of authority as a 1 Deputy Commissioner under said Ordinance, when sections 497 and 498, P.P.C. already stood repealed. Accordingly reference of the case to Tribunal and ultimately recording conviction and sentence against petitioner is completely without lawful authority and of no legal effect. Additionally it may also be noticed that, in respect of same set of allegations, a challan under section 10/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 has already been put up before learned Sessions F Judge, Nasirabad at Dera Allah Yar to the knowledge of Assistant Political Agent Dera Bugti as admitted by him in paras. 2 and 3 of comments filed in this Court;' which are reproduced below:‑‑ Since case was already pending before the Court of Session, learned Assistant Political Agent obviously had no jurisdiction to adjudicate upon in the matter. Attempt for usurpation of jurisdiction therefore smells of mala fides. It is painful for us to note, that learned Assistant Political Agent while performing judicial functions, neither knew about existence of relevant provisions of Penal Code nor verified this aspect while initiating trial or at least awarding conviction to petitioner. Surprisingly record maintained by him is also stinking. Complaint was lodged on 16th June, 1989 whereas in green ink learned Assistant Political Agent Dera Bugti has referred the matter to Naib‑Tehsildar on 15‑6‑1989, a day earlier than the complaint itself. Challan submitted by Naib?Tehsiidar ‑Sangsalah on 22nd July, 1989 mentions on the top, that complaint investigated by him was of 16th July, 1989. However, in Column 7 of the challan date of the complaint is‑ mentioned as 16th June, 1989. Such variations in judicial matters clearly cast serious doubts. Learned Presiding Officer is not merely ignorant about law but is certainly performing judicial functions in a dubious manner. It is therefore, dangerous to assign him judicial or quasi‑judicial functions, which may lead to serious consequences. 8.? Lastly, considering objection about maintainability of petition without resorting to alternate remedy available to petitioner, we may observe that in cases where impugned action or order is challenged on the ground of its being wholly without lawful authority; completely lacking authority for adjudication; proved mala fides, patent floutation of law, by conducting in an oppressive, capricious or unjust manner; the constitutional jurisdiction of this Court can be invoked even directly. Similar situation exists in the instant case. For this view we are fortified by the observations in following reported judgments: (i) The Murree Brewery Co. Ltd. v. Pakistan through Secretary to Government of Pakistan Works Division and others (PLD 1972 SC 279). "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as `the C.DA.) to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.‑Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (1) that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well‑recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. The appellant has also alleged mala fides in law against the C.D.A. a statutory functionary. In the case of East & West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 41 this Court has held that where a statutory functionary acts mala fide or in a partial, unjust and‑ oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question." (ii) Sind Employees Social Security Institution v. Dr. Mumtaz Ali and others (PLD 1975 SC 450): "These defects of jurisdiction are apparent on the face of the record which in my opinion would at once attract certiorari jurisdiction of the High Court. I have not the slightest doubt that if respondent 2 proceeds to hear the complaint of respondent No.l the proceedings will be wholly without jurisdiction and therefore, a nullity. In somewhat similar circumstances in the Murree Brewery Company Ltd. v. Pakistan PLD 1972 SC 279 this Court interfered in proceedings for acquisition of certain properties by the Capital Development Authority although there existed provisions for appeal and review in the statute under which proceedings for the acquisition were initiated." For the foregoing reasons we are inclined to hold that impugned judgment dated 10‑8‑1989 being illegal and void and without lawful authority; is accordingly declared as such. Consequent whereupon the conviction and sentence under sections 497 and 498, P.P.C. awarded to petitioner are set aside and 1 petitioner in this matter be set at liberty forthwith if not required in any other matter. However, we desire that above observation about Assistant Political Agent be placed on the confidential record of the Officer. Copy of the judgment be sent to Chief Secretary, Government of Balochistan for necessary compliance. M.B.A./342/Q???????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.