P L D 1976 Quetta 44 (PLP)

S. 4-Jurisdiction, ouster of-Case once drawn under Ordinance, superior Courts bereft of their supervisory jurisdiction-Matter, how ever, different if cognizance taken and case registered not in con formity with provisions of Ordinance-Assistant Commissioner dismissing complaint but later re-admitting matter by way of review and issuing process-No provision for review existing in Ordinance, Assistant Commissioner exercised power not contemplated by Ordi nance and worked within sphere not allotted to him by Ordinance Tribunal of exclusive jurisdiction not functioning within substance and form of special statute, held, cannot claim immunity on basis of ouster clause-Order of admission of complaint being beyond jurisdiction of Assistant Commissioner, and as such a nullity, any superstructure thereon, held further, suffers from same blemish falls to ground and nothing could be propped up on such a tottering foundation.-[jurisdiction-Review]. Raunaq Ali v. Chief Settlement Commissioner and others P L D 1973 S C 236 and Haji Ali Bux Khan and another v. The Chief Land Commissioner. West Pakistan and another 1974 S C M R 98 ref. S. H, Jafri for Petitioners. Basharatullah for Respondents. Date of hearing : 22nd April 1976. The circumstances giving rise to this Writ Petition are as follows : 2. The petitioners Nos. 1 and 2 are brothers inter se, while the petitioner No. 3 is their sister's son. The petitioners are living in various districts of the Punjab. The petitioners 1 and 2 had a brother, named Mushtaq Ahmad. The said Mushtaq Ahmad died leaving behind a daughter by the name of Mst. Perveen Akhtar, who was married to one Faiz Muhammad from Sibi in the year 1967. It appears that the course of their marriage did not run too smooth, and Mst. Perveen Akhtar filed a suit in a Court at Rawalpindi for the dissolution of marriage, which for aught we know, is still pending. It is alleged that, in order to pressurise the present petitioners, who are related to Mst. Perveen Akhtar with the closest tie, to withdraw the aforesaid suit, a false complaint had been got filed through the present respondent No. 4. Be that as it may, the allegation contained in the complaint was that the three petitioners had turned up at Sibi, and introduced themselves as businessmen, dealing in dry fruits, They beguiled the said respondent into advancing a sum of Rg. 3,000 for the purpose of collaborating in their business. Sub sequently the said respondent discovered that the three petitioners were confidence tricksters and had cheated him of the money by false representation. He, therefore, filed a complaint before the Assistant Commissioner, Sibi. It appears from the judgment of the learned Commissioner and it was candidly admitted by Mr. Basharatullah, learned counsel for the said respondent too, in the course of the arguments here that the learned Assistant Commissioner, after holding a preliminary enquiry, to begin with dismissed the complaint, on the ground that it disclosed a civil dispute, but presumably on the same day, he registered a case against the petitioners for offences under sec tion 420/409/109, P. P. C. and issued bailable warrants. The petitioners, appris ed of the situation, made an application for anticipatory bail before the learned Sessions Judge, Quetta, which was granted to them, and thereafter they pre ferred an appeal before the learned Commissioner of this Division, impugning the order of the registration of the case against them. The learned Com missioner took a serious view of the situation, inasmuch as he found that there was an order dismissing the complaint, and subsequently another order, which was diametrically opposed to the earlier order of dismissal, had been substituted on a freshly pasted paper. It is not necessary as to what else he had to say on the subject, but the order was quashed. It was the respondent No. 4, who now went in revision before the Member, Board of Revenue. The matter was heard by Capt. Saleh Muhammad Khan. He did not find any fault with the observations made by the Commissioner in regard to one order being superseded by another, but allowed the revision application only on the short ground that the present respondent No. 4 had not been given an oppor tunity to participate in the proceedings, and the order was passed by the Commissioner behind his back. The case was, therefore, ordered to be proceeded with before the Assistant Commissioner. 3. The main contention advanced by Mr. S. H. Jafri, learned counsel for the petitioners, was that once the Assistant Commissioner had refused to take cognisance and dismissed the complaint, he could not review his order, and admit the complaint thereafter. It is admitted on all hands, that there is no provision of review to be found in the Criminal Law (Special Provisions) 1, Ordinance, 1968. The power of review is a special creation of a statute and cannot be availed of, if not conferred therein. This position of law is hardly open to any dispute. However, it was contended by Mr. Basharatullah, learned counsel for the respondent No. 4, that, since cognisance had been taken by the Assistant Commissioner under section 4 of the Ordinance referred to earlier, the Courts under the Ordinary Law, including the High Court and the Supreme Court could not interfere in the matter, as their jurisdiction stood barred under the said Ordinance. I quite agree, and there are a number of judgments, in which it has been held that the High Court and the Supreme Court have got no supervisory jurisdiction once a case had been drawn into this system of administration of justice. It still remains to see, whether cognisance was taken, and the case was registered in conformity with the provisions of this Ordinance at all. The Assistant Commissioner. it is a admitted position, had dismissed the complaint. The question is, whether, in the absence of any power of review in the scheme of the Ordinance, he could re-admit the matter and issue process Since there is no such provision, he was exercising a power which the Ordinance did not contemplate. He was, therefore, not working within the sphere allotted to him by the Ordinance, and, if a Tribunal of exclusive jurisdiction is not functioning within the substance and form of a special statute, it cannot claim immunity on the basis of an ouster clause. (See Raunaq Ali v. Chief Settlement Commissioner and others (P L D 1973 S C 236) and Haji Ali Bux Khan and another v. The Chief Land Com missioner, West Pakistan anal another (1974 S C M R 98). Once it is found, as it has been so found, that the order of the admission of the complaint was beyond C jurisdiction, and therefore a nullity, any superstructure thereon will suffer from the same blemish and fall to the ground, because nothing can be propped up on such a tottering foundation. 4. The impugned order passed by the learned Member, Board of Revenue, under the circumstances, is not in the exercise of lawful authority. I will, therefore, quash it. The parties will, however, bear their own costs. S. A. H. Petition allowed.