1969 PLP 515 (SCMR)

M. R. KHAN, J.‑This appeal, by special leave is directed against the judgment and order of a Division Bench of the High Court of West Pakistan, Karachi Bench, dated the 2nd June 1965, in Writ Petition No. 230 of 1964, by which the order of the Commissioner, Hyderabad Division, dated the 24th February 1964, referring the case against the accused‑respondents under section 302, P. P. C. to be Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963, was quashed. The facts of the case are that on the night between the 16th and the 17th June 1963, Nooro Leghari, deceased, and his sister, Mst. Zainab, were sleeping in the house of the complainant, Darya Khan Leghari, the husband of Mst. Zainab. At about 3‑00 a.m., the complainant woke up on hearing gun‑shots and ran to the place where the deceased was sleeping and saw his wife, Mst. Zainab, weeping and found the deceased Nooro Leghari on a cot with a gun‑shot injury in his chest. The deceased who was still then in his senses told the complainant that the respondents fired shot at him with a gun and thereafter escaped. Mst. Zainab also stated that she got up on hearing the gun‑shot and saw the respondents running away. The complainant then went to the Police Station and lodged First Information Report to the above effect. After investigation, the police submitted a challan. After the prosecution had examined four witnesses, the complainant made an application before the Commissioner, Hyderabad Division, through the District Magistrate, Hyderabad, for transferring the case against the respondents to a Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963. The Divisional Commissioner received letters also from the Assistant Public Prosecutor, Hyderabad and the District Magistrate, Hyderabad, in this regard. Thereafter, the Divisional Commissioner, by his order, dated the 24th February 1964, referred the case to a Tribunal to be constituted under the West Pakistan Criminal Law (Amendment) Act. The legality of this order of reference was challenged before the High Court by the respondents in Writ Petition No. 230 of 1964. The learned Judges of the High Court accepted the Writ Petition and quashed the order of reference on the ground that the requirement of section 3 of the West Pakistan Criminal Law (Amendment) Act was not complied with inasmuch as the Divisional Commissioner did not state in the order of reference that the trial of the case by an ordinary Court would be inexpedient in the interest of justice. Leave was granted in this case to consider whether the view taken by the High Court as to the requirement of section 3 of the Act, in the facts of this case was correct and whether the writ jurisdiction could be invoked by the respondents without having availed of the alternative remedy by way of revision against the impugned order. The learned counsel for the appellant submits that the Divisional Commissioner applied his mind to the facts of this case and gave reasons for referring the case to a Tribunal. It appears from the order of reference that the Commissioner gave reasons in writing as to why he thought it expedient to refer the case for decision by a Tribunal. The operative part of the order reads thus:‑ "Therefore, looking to the peculiar circumstances under which the offence has been committed, it is expedient in the interest of justice that this case should be referred for decision to the Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963." In their judgment, the learned Judges themselves stated:‑ "The learned Commissioner has indeed given reasons for the reference in the impugned order." They, however, found fault with the impugned order on the ground that the Commissioner had only stated that it is expedient in the interest of justice to refer the case to a Tribunal but did not state that it would be inexpedient in the interest of justice to have the case tried in an ordinary Court. In the context of the reasons given in the order of reference, the implication of the operative part of that order is that the Commissioner thought it inexpedient in the interest of justice to have a trial of this case in an ordinary Court, although this was not expressed in so many words. It is evident from the impugned order that the Commissioner applied his mind to the facts of the case and that there was substantial compliance with the requirement of section 3 of the Act. Therefore, the order of the High Court quashing the reference is not sustainable. There is yet an additional ground for which the High Court's order cannot be sustained. The respondents, as the Writ Petition shows, had knowledge that an alternative remedy by way of revision against the impugned order was available to them, but they did not intentionally avail of that remedy before invoking the B High Court's Writ jurisdiction in the matter. For these reasons, we allow the appeal and set aside the judgment and order of the High Court. Appeal accepted.