P L D 1985 Quetta 139 (PLP)

AJMAL MIAN, ACTG. C. J.-This petition is directed against the orders, dated 5th May, 1982, 18th October, 1982 and 21st June, 1983 passed by the respondents Nos. 1, 2 and 3 respectively. The brief facts leading to the filing of the above petition are that one Sardar Mohibullah on 13th September, 1981 reported to the Tehsildar, Muslimbagh that the diesel engine belonging to the Government was stolen and that one Abdul Hameed was the Chowkidar to look after the same. It seems that in pursuance of the above report, certain inquiry was conducted. The Assistant Commissioner by his recommendations, dated 22nd October, 1981 sought the permission of the competent authority under Criminal Law (Special Provision) Ordinance, 1968 (hereinafter referred to as the `Ordinance') to impose a collective fine of Rs. 80,000 on the inhabitants of village Hurgas in Muslimbagh under section 22 of the Ordinance. Though the above permission is not available on record, but from Annexure 'D-A' which is the impugned order, dated 5th May, 1982 passed by the respondent No. 1 it appears that the permission was granted and, therefore, the above fine was imposed. In consequence thereof, the Tehsildar issued notices for the recovery of fine dated 4th August, 1982 (Annexures D-1, D-2 and D-3). The petitioners being aggrieved by the above order filed an appeal, in which in paragraph 2 of the memo. of appeal and paragraph C of the grounds of appeal, the following averments were made : "'. That on 13-9-1981 Sardar Mohebullah reported to the Assistant Commissioner Muslimbagh that the diesel engine of the Tubewell has been stolen on 10-9-1981. On this report Tehsildar Muslimbagh was appointed as Enquiry Officer. During the inquiry Tehsildar Muslimbagh had taken into custody few persons of the village and after proper inquiry case of theft was registered against Abdul Hamid who was Chowkidar at the tubewell and was arrested in this case, and later on was admitted to bail by this honourable Court. C. That few months before this incident, the key of the tubewell was handed over to Tehsildar because there was a dispute between the Zamindars over the distribution of water but the Tehsildar Muslim Bagh again banded over the key to Malik Mehrab Khan Numberdar of the Mohal who banded over the same to Chowkidar Abdul Hamid. At the time of incident key was with Abdul Hamid and he is only responsible for this theft. The case of theft was also registered against Abdul Hamid, the same is pending trial before the Assistant Commissioner at the time decree of collective fine under section 23 of Criminal Law (Special Provisions) Ordinance, 1968 against the inhabitants of the village appellants is unlawful, unwarranted and uncalled for." But the appeal was dismissed by the above impugned order, dated 18th October, 1982 by the respondent No.

2. The petitioners being aggrieved by the above order, filed revision, in which the above paragraph 3 and ground-C were reproduced but the revision also met the same fate and by the aforesaid order, dated 21st June, 1983 it was , dismissed by the respondent No.

3. The petitioners being aggrieved by the above orders have filed the present petition.

2. In support of the above petition, Mr. Muhammad Zafar, learned counsel for the petitioners has vehemently urged that section 22 of the Ordinance was not attracted to as it was a case of individual theft and that the ingredients provided for in the above section were not present. On the other hand, learned Advocate-General tins vehemently contended that from the comments available with him, it appears that no case was pending against Abdul Hameed Chowkidar and all the requirements of section 22 of the Ordinance were complied with.

3. In order to appreciate the respective contentions of the learned counsel for. the parties, it will be advantageous to reproduce section 22 of the Ordinance which reads as follows : "

22. Collective Fine.-(1) Where from the circumstances of any case, there appears to be good reason to believe that the inhabitants of any village or party of a village or any of them have : (a) abetted or are concerned in the commission of any scheduled offence ; or (b) failed to render, when called upon by the Deputy Commissioner or any public servant, assistance in their power, to discover the offender concerned in the commission of any scheduled offence ; or (c) harboured any offender or person suspected of having taken part in the commission of a scheduled offence. The Deputy Commissioner may with the previous sanction of Government, impose any reasonable fine on the male adult inhabitants of such village or part of a village or any of them as a whole as the case may be after holding a summary inquiry and affording them an opportunity of showing cause against the proposed action. (2) The Deputy Commissioner, after such inquiry as he may deem necessary, shall apportion the fine imposed under subsection (1) among the inhabitants of village or part of the village who are liable collectively to pay it, and such apportionment shall be made according to his judgment of the respective means of such inhabitants. (3) A fine imposed under this section shall, in default of payment, be recoverable as if it were an arrear of land revenue due from the inhabitants of the village or part thereof, upon whom the fine is imposed. (4) .. (5) . ."

4. It may be noted that for the purpose of the present controversy, subsection (l) of the above-quoted section 22 is pertinent. It may be pointed out that in order to attract the above subsection (1) of section 22, it is necessary that the authority concerned from the circumstances of any case for good reason should believe that the inhabitants of any village or part of a village or any of them have (i) abetted or are concerned in the commission of any scheduled offence or (ii) failed to render, when called upon by the Deputy Commissioner or any public servant, assistance in their power, to discover the offender concerned in the commission of any scheduled offence ; or (iii) harboured any offender or person suspected of having taken part in the commission of a scheduled offence.

5. It is an admitted position that none of the three official respondents has adverted to this aspect and recorded the finding of fact on the above points, which are prerequisite before pressing into service the above provision of the Ordinance. Furthermore, neither the appellate nor the revisional Court and as a matter of fact even the original Court i.e., Assistant Commissioner, has recorded a finding of fact that no individual case was pending against Abdul Hameed though as reproduced hereinabove, in the memo. of appeal as well as in the memo of revision while narrating the facts and also in the grounds this point was specifically raised. The above question of fact has also been averred before us in the petition but no counter-affidavit has been filed. It has been stated by the learned Advocate-General that due to inadvertence, the Assistant Commissioner had forwarded the comments to the office of the Advocate-General instead of sending the same to the High Court. But as stated above, the fact remains that there is no finding of fact recorded in the impugned orders on the above important question of fact. We are, therefore, of the view that this is a fit case in which the case is to be remanded back to the Assistant Commissioner with the direction to dilate on the points noticed hereinabove. We, therefore, allow the petition and set aside the impugned orders and declare the same as being without lawful authority and of no legal effect. The case will be deemed to be pending before the Assistant Commissioner, who shall pass a fresh order keeping in view the points highlighted hereinabove. The petition is disposed of in the above terms with no orders as to cost. M. Y. H. Case remanded.