1975 PLP 36 (SCMR)

MUHAMMAD GUL, J:

This leave petition is against the order of a Division Bench of the High Court of Sind & Baluchistan, Quetta Circuit, Quetta, dated 12‑4‑1974, by which the learned Judges set aside an order of learned Member, hoard of Revenue, Baluchistan, made in revision under section 25 of the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance II of 1968), in the circumstances set out below; On 9‑5‑1969, the Assistant Commissioner, Chaman, exercising the powers of Deputy Commissioner, under section 4 of the Ordinance received information that two rival groups, one headed by Malik Pir Muhammad and Muhammad Issa of Rehman Kahol and the other by Malik Abdul Ghaffar were proceeding towards village Sirki Talliri for an armed clash. To avert the clash, the Assistant Commissioner and the Tehsildar proceeded to the place where the armed clash was apprehended. On reaching the village, they found that the armed clash had already taken place in the course of which two persons belonging to the group of Malik Pir Muhammad and Muhammad Issa were killed at the spot, while nine others belonging to the same group had received injuries. Of the injured, two more succumbed to the injuries, thus giving a tally of four belonging to that group being killed as a result of the clash. The Assistant Commissioner ordered the Tehsildar to report after investigation. The Tehsildar reported that only seven persons belonging to the group of Malik Pir Muhammad and Muhammad Issa had participated in the armed clash, all of whom, lead crossed over to Afghanistan so as to be out of reach of the law, The report, however, went on to say that besides the seven persons who had crossed over to Afghanistan, the six petitioners herein had also been named by the injured witnesses as having participated in the armed clash and causing injuries to the complainants' group. The Tehsildar, however, opined that the evidence of the injured persons was interested and there was no independent evidence to connect the six petitioners with the offences committed in the course of armed clash. In the meantime the group headed by Malik Abdul Ghaffar (hereinafter called the complainants' group) filed a complaint naming all the thirteen per sons belonging to the other group including the six petitioners herein as having taken part in the armed clash, resulting in the death of four persons and injuries to the remaining seven. On the basis of this complaint, the Assistant Commissioner ordered registration of case against the thirteen accused including the six petitioners herein and on 2‑1‑1970 the Assistant Commis sioner thus formally took cognizance of the offence under section 4 of the Ordinance and after notices to thirteen accused including the six petitioners herein, constituted a tribunal under section 4 for the determination of guilt or innocence of the thirteen persons complained against including the six petitioners. On 1‑3‑1971, the six petitioners moved an application before the Assistant Commissioner praying that they may be discharged from the case pursuant to the report of the Tehsildar which had completely exonerated them. This application was rejected by the Assistant Commissioner on 3‑4‑1971 on tie ground that it was his statutory duty under section 4 of the Ordinance to make a reference to the tribunal for inquiring into the guilt or innocence of the accused persons including the six petitioners and it is for the tribunal to determine their guilt or innocence after hearing evidence in the case. An appeal by the six petitioners herein against the above order of the Assistant Commissioner was rejected by Commissioner Quetta on 6‑7‑1971. Their revision was, however, accepted by the learned Member, Board of Revenue, who gave effect to the plea raised on their behalf that by directing the Tehsildar to investigate into the matter, the Assistant Commissioner had in effect taken cognizance of the offence and as such became functus officio to take further cognizance of the same offence and as complaint by the rival group implicating the six petitioners, besides the seven fugitives. The learned Judges of the High Court, by means of the impugned judg ment have, however, relying, on a judgment of this Court in Falak Sher v. State (P L D 1967 S C 425) come to a different conclusion. They have taken the view that the Assistant Commissioner was still within his right to take cognizance of the offence against thirteen persons including the six petitioners, notwith standing the report of the Tehsildar. The learned Judges also observed that cognizance is taken of an offence and not against a particular person or set of persons, so that if in the course of inquiry of investigation it transpires that certain persons other than those already named are also concerned in the commission of offence, there is nothing in law to forbid proceedings against such persons, although they may not have been initially arraigned as accused. In seeking leave to appeal, learned counsel for the petitioners argued that the learned Member, Board of Revenue, being properly seized of the matter under section 25 of the Ordinance, decided the revision on its merits and merely because the conclusion reached by the learned Member, Board of Revenue was erroneous, was not a sufficient ground for interference by the High Court in exercise of its writ jurisdiction under Article 98 of the 1962 Constitution. In support of his argument, learned counsel relied upon a recent judgment of this Court in Muhammad Hussain Munir v. Sikandar (P L D 1974 S C 139) in which it was pointed out inter alia that the expression "without lawful authority and of no legal effect" in Article 98 of the 1962 Constitution refers to jurisdictional defects as distinguished from a merely erroneous decision whether on a question of fact or even of law. It was, therefore, stressed that assuming for the sake of argument that the order of the learned Member, Board of Revenue, proceeded on an incorrect interpretation of the statute that would scarcely be a reason for interference by the High Court. The argument, we have no doubt, proceeds on a superficial examination of the precedent case. That case arose out of consolidation proceedings, and the learned Judge in the High Court in exercise of writ jurisdiction of the Court had set aside the order of the learned Member, Board of Revenue because in the opinion of the Darned Judge, the revisional order was "against equity" and "principles of consolidation". The ratio decidendi of the precedent case was that the learned Judge had virtually constituted himself as Appellate Court over the learned Member, Board of Revenue, which was beyond the scope of Article

98. In the instant case, on the other hand, the revisional order of the learned Member, Board of Revenue, plainly suffers from an error patent on the face of the record, In that, he had treated a direction to the Tehsildar for an investigation to be synonymous with taking cognizance of the offence. This clearly overlooked the provisions of section 5 of the Ordinance which is in mandatory terms and requires the Deputy Commissioner to "refer the question of guilt or innocence of the accused person to the decision of the tribunal". To accept the proposition that direction to the Tehsildar amounted to taking cognizance of the offence by the Deputy Commissioner would equate the Tehsildar with the tribunal which would be wholly untenable proposition. On that view of the matter, there is no substance in the further argument that the Deputy Commissioner having once taken the cognizance could no have taken fresh cognizance of the offence on a complaint by the group of Malik Abdul Ghaffar. Having carefully considered the submissions made by learned counsel for the petitioners, we consider the petition to be devoid of any substance. The petition is accordingly dismissed. Petition dismissed.