P L D 1980 Quetta 1 (PLP)

On the facts discussed above and the authorities relied upon ; without hesitation, we hold that the Assistant Commissioner by neglecting to follow .the mandatory provisions of section 5 of the Ordinance, of hearing the petitioner, in fact failed to give jurisdiction to the Tribunal for initiating, proceedings against the petitioner. Consequently, proceedings taken before the. Tribunal, order passed by it or, thereon, in appeal, or revision, by any authority, whatsoever, appellate or revisional, would be deemed to be `Coram non judice.' On the principles laid down in case of Yausaf Ali v. Muhammad Aslam Zia and 2 others P L D 1958 S C (Pak.) 104, which says : "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation. as the void order on which they are founded." On the same proposition, the Supreme Court of Pakistan in case of Mansab Alli v. Amir and 3 others P L D 1971 S C 124, has held :- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and without jurisdiction." In case of the petitioner (i) the constitution of the Tribunal ; (ii) the proceedings taken before such Tribunal ; (iii) the recommendations made by it ; (iv) the decision of the Assistant Commissioner based on such recommendations ; (v) the decision taken by the Deputy Commissioner in appeal against the order of the Assistant Commissioner ; and (vi) the decision taken by the Member Board of Revenue in revision ; are indeed nullity in eye of law and held as having been made without jurisdiction and lawful authority. In support of his second contention Mr. I. H. B. Hanafi the learned counsel for the petitioner relied on section 27 of the Ordinance of 1968 and Article 10 of the Constitution of the Islamic Republic of Pakistan. Section 27 reads : "Appearance of legal practitioners.-In proceedings under this Ordinance before the Tribunal, the Deputy Commissioner, the Commissioner and Government, the parties shall be entitled to be represented by a legal practitioner of their choice." Article 10 reads : "(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. (2) to (9) ???????????????? To support factual side of his contention, the learned counsel for the petitioner placed reliance on the affidavit by Mr. Mobasher Ahmed Qaisrani Advocate, Karachi who is alleged to have attempted to defend the petitioner at the trial stage. But the learned counsel for the respondents did not dispute the contention of the petitioner's counsel in respect of the provisions of section 27 of the Ordinance, 1968 and Article 10 of the Constitution of Pakistan. However, they vehemently attacked the affidavit of Mr. Mobasher Ahmed Advocate and submitted that its effect was neutralized by the counter affidavits. filed by Mr. Abdullah Jan, the Assistant Commissioner and the Tehsildar, Tump. There is much weight and substance in the contention of the learned counsel for the respondents. Indeed, the petitioner's contention is based on disputed question of facts. There are affidavits and counter affidavits filed by the parties. Evidently, the petitioner's contention would) require investigation of certain facts. We would certainly desist -from entering upon investigation of such disputed facts. The second contention as such is devoid of force and repelled accordingly. In support of his last contention, the learned counsel for the petitioner at the very first instance challenged the so-called taking of the cognizance ; particularly in illegal manner or the way, by Mr. Abdullah Jan the then Assistant Commissioners Gwader. The learned counsel for the petitioner pointed nut that in fact Mr. Mustafa, the Captain of Pakistan Coastal Guards had taken no action against the petitioner and challenged only the accused Pir Bakhsh, Khan Muhammad, Saeed Muhammad and Ali Muhammad on 8-1-1974. The learned counsel further urged that it was evident from the diary of the day that the learned Assistant Commissioner, Gwader on such report of Captain Mustafa had taken the cognizance of the case under the provisions of section 4 of the Ordinance, 1968 against those four persons only. In view of such facts, the learned counsel vehemently, stressed that after taking of the cognizance under the provisions of section 4 of the Ordinance, the Assistant Commissioner was bound to have constituted a Tribunal for trial of the case as enunciated under sections 5 and 6 of the Ordinance and there is no provision in the Ordinance authorizing him to order the Naib-Tehsildar to further investigate into the matter ac the Ordinance was only promulgated for trial of offences but not for their investigations. There is substance in the contention of the learned counsel. The plain reading of the preamble of the Ordinance supports the contention of the petitioners' counsel. The preamble reads as under : "Whereas it is necessary to make special provisions for trial of certain offences in certain areas of West Pakistan to meet the special requirements of those areas." The Ordinance indeed was promulgated to make special provisions for trial of certain offences in certain areas of erstwhile province of West Pakistan. Nowhere the Ordinance makes provision for holding of inquiries or investigations into the Scheduled offences. The section 4 of the Ordinance speaks about taking of cognizance of the scheduled offences. It reads a; under :- "Cognizance of scheduled offences.-(1) The Deputy Commissioner shall have exclusive jurisdiction to take cognizance of a scheduled offend committed within the district to which he is so appointed for the time being ; and such cognizance may be taken by him; (a) upon receiving a complaint of facts which constitute such offence ; (b) upon a report in writing of such facts made by a police officer ; or (c) upon information received from any person other than a polio officer or upon his own knowledge or suspicion that such offence ha been committed; Provided that cognizance of an offence, under section 14 shall not b taken except upon a complaint made by the husband of the woman or in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed." In section 6 of the Ordinance, the Deputy Commissioner has to constitute a Tribunal for trial of the case under the provisions of section

5. Sections 5 and 6 are reproduced as under : "

5. Question of guilt or innocence to be referred to Tribunal.-The Deputy Commissioner taking cognizance of a scheduled offence shall constitute a Tribunal in accordance with section 6 and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such Tribunal.

6. Constitution of Tribunal.-(1) A Tribunal constituted for the purpose of section 5 shall consist of a Government official, not below the rank of Naib-Tehsildar, who shall be its President, and four other members, all to be appointed by the Deputy Commissioner. (2) In appointing a person as a member, other than the President, the Deputy Commissioner shall have regard to the integrity, education, social status and representative character of such person. (3) No person shall be appointed as member of the Tribunal, other than the President, except after giving the parties concerned an opportunity of being heard and considering objections, if any, to the appointment of such person." Only on plain reading of section 5, we agree with the contention raised by the petitioner and hold that the provisions of section 5 are mandatory. The Assistant Commissioner after taking the cognizance under section 4 of the Ordinance was bound to have referred the case to tribunal for trial. His direction to Naib-Tehsildar for holding investigation into the matter is illegal and void as having been made without jurisdiction and lawful authority. The same view was taken by one of us in case of Khfal Akbar v. State P L D 1979 Quetta

96. In that case, it was held that the Deputy Commissioner under Ordinance II of 1968 after taking the cognizance of the offence was not competent to order for enquiry into the scheduled offences. It was further held that after taking the cognizance, the Deputy Commissioner was bound under section 5 of the Ordinance to refer the case to a Tribunal. Any investigation or enquiry ordered by him to be held by a subordinate Magistrate or levies was held to be ab initio illegal. Indeed no provision of law was placed before us by the respondent's counsel to show that the Naib-Tehsildar was competent for having investigated into the offences. Evidently the investigation as was conducted by the Naib-Tehsildar against the petitioner was made without jurisdiction and lawful authority. Subsequently filing of Challan before the Assistant Commissioner on 1st February, 1974 by the Naib-Tehsildar on such illegal investigation is held to be ab initio, illegal and void. In case of Yousaf Ali v. Muhammad Aslam Zia and 2 others, it has been held : "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded." Moreover, the diary off 1st February, 1974 is quite silent in respect of taking of the cognizance against the petitioners by the Assistant Commissioner on the so-called challan filed by the Naib-Tehsildar. The exact words of the. diary are reproduced here to give the clear view of the same :-- The diary itself confirmed the petitioner's contention that the cognizance of the case only . against the abovesaid four accused persons was taken on 8th, January, - 1978 by the Assistant Commissioner when petitioner Dost Muhammad was neither shown nor produced as an accused person before the Assistant Commissioner Gwader. Even on Ist of February, 1974, petitioner Dost Muhammad was not produced before the Assistant Commissioner. We have already discussed so in our judgment herein above. The Assistant Commissioner having not taken the cognizance of the case against the petitioner Mir Dost Muhammad, the constitution of the Tribunal recording of evidence, the recommendations of the Tribunal, the decision o the Assistant Commissioner, the decision of the Deputy Commissioner in appeal and the decision of the Member Board of Revenue in revision being based on illegal and void order as such are also, held to the illegal, void and without lawful authority as such of no legal effect. We have already declared the constitution of the tribunal and the conviction awarded to the petitioner as void and illegal, we need not to go into details regarding the constitution of the tribunal and conviction awarded to the petitioner. For the reasons discussed above, we accept the petition in respect of the petitioner only and declare that (1) taking of the cognizance by the Assistant Commissioner on lst February, 1974 ; (2) the investigation made by Naib-Tehsildar ; (3) reference of the case under section 5 of the Ordinance to the Tribunal ; (4) constitution of the Tribunal under section 6 on 2nd February, 1974 ; (5) recording of evidence against the petitioner before the Tribunal ; (6) the recommendations made by the Tribunal to the Assistant Commissioner ; (7) the conviction awarded by the Assistant Commissioner ; . (8) the decision in appeal by the Deputy Commissioner ; and (9) the decision of the Member Board of Revenue; are illegal, void and made without lawful authority. However, in the peculiar circumstances of the case, we would not deem it fit or proper to grant costs in favour of any party ; as such we make no order as to costs. Petition disposed of accordingly. MIR KHUDA BUKHSH MARRI, J.-I agree with conclusion reached by my learned brother and bold that the petition be accepted and impugned order; are bad i4 law including the proceedings; and no costs. S. Q.??? Petition accepted