P L D 1966 (W (PLP)

S. A. MAHMOOD, J.‑On the 5th of July 1964 on the statement of Ghazi Khan a case under sections 304‑A, 279 and 338, P. P. C, was registered at Police Station Chakrala. The S. H. O. Chakrala put in an incomplete challan against Taj Muhammad Khan, driver of the bus, who is the petitioner before us, under section 304 P. P. C., and suggested that the case be referred to a Jirga, since it was possible that the accused might escape punish ment by winning over the witnesses. The Commissioner Sargodha Division in exercise of powers conferred on him under section 3 of the West Pakistan Criminal Law (Amendment) Act 1963, withdrew the case from the Court of section 30 Magistrate, Mianwali, and referred it to a Tribunal to be constituted by the District Magistrate, for the reason that the accused was likely to tamper with the prosecution witnesses. The petitioner filed a revision petition before the Home Secretary to the Government of West Pakistan under section 19 (2) of the Act against the order of the Commissioner, but it was dismissed on the 29th of September 1964. The order of the Commissioner is impugned by this writ petition under Article 98 (2) of the Constitution of Islamic Republic of Pakistan. 2. The facts alleged in the F. I. R. by Ghazi Khan are that he got into a bus from Adda Sial, belonging to the Talagang Bus Service, and driven by Taj Muhammad petitioner, for coming to Musakhel. Five or six other passengers also boarded the bus from there. The bus was an old one, the gear and brakes of which were not functioning properly. , In spite of these defects, the driver drove the bus, and when it reached Dhak Mor where there was a steep decline, the bus gathered' considerable speed, and as the brakes and the gear were not in order, the driver could not control the bus, with the result that it struck a hill, and then rushed headlong. At the next turn, the driver could not turn or control the bus, so that it fell into a khad. He jumped out of the bus before it fell down in the khad, and received injuries on his legs and left arm. The bus got smashed, and 13/14 of the passengers were killed. Many of the passengers were injured. The accident was the result of the negligence and carelessness of the driver. The accident happened at 10 a.m. The same facts were repeated by the S. H. O. Chakrala in the incomplete challan, which charged the petitioner with an offence under section 304, P. P. C. and not under sections 304‑A, 279 and 338, P. P. C., which were mentioned in the F. I. R. 3. The learned counsel for the petitioner contends that as on the facts stated above, an offence under section 304, P. P. C. was not made out against the petitioner, the Commissioner had no power to refer the petitioner's case for trial to a Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963. 4. Section 3 (1) of the Act provides that where in the opinion of the Commissioner it is inexpedient in the interest of justice that the question of the guilt or innocence of any person accused of any offence specified in the 1st Schedule or of any several persons so accused be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, 1898, the Commis sioner may, notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law for the time being in force, by an order in writing, with reasons therefore, refer the question to the decision of a Tribunal, and require the Tribunal to come to a finding on the question after such inquiry as may be necessary and after hearing the accused. The Commis sioner's power to refer the question of guilt of any person is limited to offences mentioned in the 1st Schedule. Section 304 is included in the 1st Schedule but sections 304‑A, 338 and 279 are not mentioned there. Therefore, the question arises whether the petitioner was accused of an offence under section 304, P. P. C. so that his case could be referred to a Tribunal under the Act. 5. A person is accused of an offence when a report pf the commission of an offence is registered against him, or when a report of the commission of an offence is submitted against him by the police under section 173, Cr. P. C. These are two instances in which a person may be said to be accused of an offence. Therefore, either a First Information Report or a challan submitted by the police may be taken as the basis of the accusation. When either an F. I. R. is recorded against a person, though there has been no investigation, or when a report under section 173, Cr. C. P. has been submitted after investigation, by the police against a person, the first requirement of an accusation of an offence for the reference of a case to a Tribunal by the Commissioner exists. 6. The main question, which falls for determination in this case is whether this Court has the power to examine the reference of a case to a Tribunal on the ground that on the facts stated the case does not fall under any one of the sections referred to in the 1st Schedule to the Act. We do not think that there is unrestricted and unlimited power in the Commissioner to refer any offence even though it may not be mentioned in the Schedule, to a Tribunal under the Act. The power to refer the question of guilt or innocence of a person or persons is restricted to those cases in which the accused is or are accused of an offence or offences mentioned in the 1st Schedule. Therefore, if it appears to the Court that the allegations stated in the F. I. R. or the challan do not make out a case of an offence mentioned in the Schedule, it is open to the Court to set aside the reference a being incompetent and without lawful authority. It is obvious that by the mere mention of a particular section of the P. P. C. in the F. I: R. or in the challan, jurisdiction cannot be conferred on the Commissioner to refer the question of guilt or innocence of a person to a Tribunal. There must exist in fact an accusation of the commission of an offence mentioned in the First Schedule, on the face of the facts stated in the F. I. R. or in the challan, i.e. the offence charged must reasonably, justly and fairly be, prima facie made out on the stated facts. While, therefore, the Court may examine whether the necessary conditions for making a reference exist; may not examine the expediency of it, or whether the offence will be made out or not. If the allegations made in the F. I. R. or the challan do not make out any such offence, or if there be no evidence whatever of the commission of any offence; it follows that no reference of the guilt or innocence of a person could be made to a Tribunal under the Act. 7. If authority is needed in support of the above view, reference may be made to Mir Muhammad and another v. District Magistrate Nawab Shah (P L D 1965 Kar. 494) in Which on a difference of opinion between J. H. Rizvi, J. and A. S. Farooqi, J., Inamullah Khan, J. (now Chief Justice), expressed the opinion that this Court has jurisdiction under Article 98 of the Constitution to scrutinize the order of reference made by the Commissioner. He was of the view that if there was no evidence connecting an accused person with the crime, he cannot be said to have committed an offence specified in tile Schedule, and the Commis sioner, who is under a legal obligation to deal with a person accused of an offence specified in the 1st Schedule fairly, justly and equitably, cannot be allowed to refer the case of a person, against whom there is no evidence of commission of an offence specified in the Schedule. 8. The learned Judges of the Supreme Court in The State v. Nawab Gul (P L D 1963 S C 270) dealing with section 11 of the F. C. R. stated as follows:- "The statute is worded so as to make it a matter of expedi ency, within the judgment of an executive authority, whether a case should be heard by a Jirga or should be left, to be tried under the regular procedure by the ordinary Courts. The Courts cannot be the final Judges in a question of expediency which is entrusted by the law to the executive for decision, but it‑may be permitted to question whether it can ever be expedient to refer under section 11 for trial a set of facts, which do not constitute a case at all." 9. The above observations of the learned Chief Justice of Pakistan have full application to the facts of this case, and all that is necessary is to substitute the words "at all" by the words of on offence falling under the Schedule". We are, therefore, firmly of the view that though it may not be open to the Court to question the expediency of the reference, the Court can examine' whether the set of facts alleged against a person constitute a case of an offence .mentioned in the 1st Schedule. 10. A reference to the allegations made in the F. I. R. and' in the challan submitted by the S. H: O. shows that they do not constitute an offence under section 304, P. P. C. at all. It may be that the petitioner was driving a vehicle with defective brakes and gear but this would nit indicate that he had the knowledge that death was likely to be caused as a result of his driving the bus on a hilly road. If he has such knowledge, he would not be driving vehicle himself, and risking his own life. The facts, if proved, may constitute an offence under sections 304‑A, 279 and) 338, P. P. C., but not under section 304, P. P. C. Consequently, the reference of the case to a Tribunal by the Commissioner under section 3 (1) of the Act was not competent. It was not enough for the Commissioner to authorise him to make a reference that section 304 was mentioned in the challan, but it was also necessary that the‑facts, which form the accusation, constitute an offence mentioned in the First Schedule. 11. For the reasons given above, we accept this writ petition, and set aside the reference of the case of the petitioner to the Tribunal under section 3 (1) of the Criminal Law (Amendment) Act, but this will not preclude his trial under the ordinary law. The petitioner will have his costs. K. M. A. Petition accepted.