P L D 1979 Quetta 106 (PLP)

15. In P L D 1976 Kar. 728, it has been held :‑‑ "Controversial question of fact cannot be adjudicated in the Constitutional Petition."

16. Admittedly the incident has taken place in an area where the:

Criminal Law (Special Provisions) Ordinance II of 1968 was and is in vogue at the present time. Undisputedly this Ordinance lays down special way or procedure for trial of scheduled offence. Section 4 of the Ordinance II deals with taking of cognizance by Deputy Commissioners exclusively. It reads :‑ "(1) The Deputy Commissioner shall have exclusive jurisdiction to take cognizance of .a scheduled offence 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 police officer or upon his own knowledge or suspicion that such offence has been committed;

17. On taking of such cognizances, the Deputy Commissioners have to refer the question of the guilt or innocence of the accused person involved in. the crime to a Tribunal constituted under section

6. Section 6 reads :‑ "(1) A Tribunal constituted for the purpose of section 5 shall consist of a Government official, not below the rants of Naib‑Tehsildar, who shall be its President, and four other members, all to be appointed by the Deputy Commissioner. 18.Section 16 relates to bails. It reads as under :‑

"(1) A scheduled offence shall be bailable or non‑bailable according as the same is bailable or non‑bailable under the Code of Criminal Procedure, 1898 (V of 1898), and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code. (2) The President of a Tribunal may, in regard to a case referred to the ' Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section."

19. Section 23 deals with appeals. It reads :‑ "(1) Any party aggrieved by any decision given, sentence passed or order made, by the Deputy Commissioner under this Ordinance may, within thirty days of such decision, sentence or order, prefer an appeal to the Commissioner. (2)

(3)

(4) The decision of the Commissioner on an appeal under this section shall be final."

20. Section 24 deals with revision. It reads :‑ "(1) Government may at any stage, call for and examine the record of any proceedings pending before, or disposed of by a Commissioner, Deputy Commissioner or Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order given, passed or made, or as to the regularity of any such proceedings and may when calling for such record, direct that the execution of any sentence be suspended and, if the accused is it confinement, that he be released on bail or on his own bond pending the examination of the record :‑ (2) Government may, after examining any record called for under sub section (1), and giving the parties an opportunity of being heard, pass such orders as it may think fit;

21. Section 28 ousts the jurisdiction of civil Courts. These are the material sections of the Ordinance II, which in our view or as was argued by the learned counsel for the parties, relevant to the decision of this petition. On factual side of the case, the final report of the incident was placed by the Naib‑Tehsildar the officer who investigated the case before the Assistant Commissioner, Sibi. He took judicial notice of facts. The facts constituting offences under section 326/307 of the Pakistan Penal Code, it is on the record that the Assistant Commissioner with powers of Deputy Commissioner had taken the cognizance of the case on 23rd April, 1977.

22. In his order he has not only ordered for a cancellation of the bail of the petitioners but in unequivocal words has too ordered for reference of the case to a Tribunal. It would suffice to say that the Assistant Commissioner had taken the cognizance of the offences. Such action of the Assistant Commissioner/Deputy Commissioner is sufficient to establish that cognizance of the case was taken by him. Definition of word "cognizance" has always remained debatable before Courts. Similar situation as is before us was faced by his Lordship in case of Ali Sher and another v. The State (P L D 1970 Kar. 790). His Lordship took lot of pains and analysed meaning of the word "cognizance". He has held :‑ . "It seems to me that the moment a case involving the alleged commis sion of a scheduled offence is placed before the Deputy Commissioner, and he takes judicial notice of the facts constituting such offence, the case is drawn into the ambit of the Ordinance for the reason that the Deputy Commissioner has taken cognizance thereof within the meaning of section 4 of the Ordinance."

23. This authority is not only relevant but identical to the facts of the case in respect of taking of cognizance of the case. We respectfully agree with the view expressed by his Lordship in the citation.

24. This aspect of the case was too not disputed by Mr. Mirza the learned counsel for the petitioners. We are therefore of the definite view that cognizance of the case was taken by the Assistant Commissioner. Besides, it was pointed out to us that the case has proceeded with before the Tribunal and some of the witnesses have been examined there.

25. Now the material question involved in the matter is the bail of the petitioners, as such we would revert to certain facts and the provisions of bail under the Ordinance II. Relevant section for convenience has already been reproduced above. It sa3 s that the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under the Criminal Procedure Code. Indeed this is the section which empowers the Deputy Commissioner the discretion of granting bail to accused: However this section too empowers him to cancel bail allowed to accused persons. This position of law is not even disputed by the petitioners' counsel. However relying on case of Mushtaq Ahmad v. The State (PLD 1966SC 126), Mr. Mirza submitted that Assistant Commissioner had neither given show‑cause notice to the petitioners nor had given them opportunity of being heard while cancelling their bail. According to Mr. Mirza, his such action was in utter violation of the principles of natural justice. The orders as such was ab initio void. Indeed this argument of the learned counsel would have carried some weight if the petitioners had not been heard by the Commissioner in appeal and the Member Board of Revenue in revision. A The record shows that the petitioners have been heard at length at the both stages. Indeed this objection of Mr. Mirza vanished as his clients were heard by the Commissioner and the Member, Board of Revenue. Particularly this ground disappeared when the Commissioner allowed the petitioners to remain on bail.

26. Then it was contended by Mr. Mirza as already said here in above, that the Member, Board of Revenue had passed the impugned orders against the petitioners except Issa on no evidence at all, as such the orders were passed without lawful authority. We are however not convinced by this argument of Mr. Mirza. Grant or refusal of bail is a discretionary matter. It is within the discretion of relevant authority to grant or refuse bail to accused. Indeed such discretion can be exercised by that competent authority. Having competence to decide, the competent authority may do it in it discretion rightly or wrongly. The mere fact that such discretion has not been properly or even wrongly exercised would not indeed lay a foundation so strong as to call for interference of this Court under its constitutional jurisdiction. At the highest, such order may be said to be an erroneous one. But not in any way void or without lawful authority. Every erroneous or incorrect decision could never be termed to be a decision, void or having been made without lawful authority. The High Court indeed in its writ jurisdiction would be reluctant to interfere with such orders made by a Tribunal within its competency. However no bard and fast rule could be laid down in this respect. Such Tribunals do not have unfettered powers. Their capricious or void orders have often been interfered with by the High Courts. However, it all depends on facts of cases. Proposition of jurisdiction was well discussed by their Lordships in case of Muhammad Hussain Munir v. Sikandar and others (PLD 1974SC139). Their Lordships have dealt with the proposition as under :‑ "It is well‑settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact."

27. It is not the case of the petitioners that the Assistant Commissioner or the Member Board of Revenue had no jurisdiction to decide the applica tions of the petitioners. Certainly they could have not raised such objection as it would have been fallacious stand indeed. Section 16 empowers the Assistant Commissioner and section 24 of the Ordinance II confers jurisdiction upon the Member, Board of Revenue, having jurisdiction to decide the bail matter, the Member, Board of Revenue had the jurisdiction to decide it rightly or wrongly specially when it was within his discretion as already discussed, above.

28. Besides, the Member Board of Revenue in his two orders has given the cogent reasons for cancelling the bail of the petitioners. He has in clear words observed that the record of the case transpired to him that Issa on instigation of other petitioners had attacked the respondent Abdul Aziz and inflicted grievous injuries on him as a result of which he was admitted in the Hospital and was under treatment for about three weeks. He has passed this order on perusal of the record. Whether there was sufficient material before the Member Board of Revenue or not for having taken such decision, it is not the function of this Court to assess in its constitutional jurisdiction. We are not sitting as appellate Court to assess so. Nor even we can import our own views, which we might have taken otherwise.

29. However, the matter is pending before the Tribunal, where some evidence actually has already been recorded and some of witnesses are yet to be examined. In view of such circumstances, we would indeed refuse to appraise the evidence recorded before the Tribunal or even before the investigating officer as it would certainly prejudice case of the parties before the Tribunal or any other authority sitting on appellate or revisional jurisdiction.

30. Even otherwise, in their jurisdiction under section 497 or 498 of the Criminal Procedure Code, the ordinary Courts have refused to embark on detailed factual enquiry, during the pendency of proceedings of the cases; cases which are punishable with death or for life or ten years.

31. For the foregoing reasons, we refuse to interfere with the decision given by the Member, Board of Revenue.

32. In result, the petition stands dismissed.

33. However in peculiar circumstances of the case, we pass no order as to costs. S. A. H. Petition dismissed.