P L D 1984 Quetta 138 (PLP)

ZAKAULLAH LODHI, ACTG. C. J.‑On 2nd respondent's complaint dated 9th August, 1981 to the Assistant Commissioner, Chaman that his elder brother Haji Agha Muhammad had been seriously injured and late: on he succumbed to the injuries; the investigation of the case was taken in hand by the Tehsildar, Chaman. The petitioner and one Abdullah Jan were arrested. Subsequently, upon the completion of the investigation, the Assistant Commissioner, Chaman with the powers of the Deputy Commissioner, constituted a Tribunal as required by Pakistan Criminal Law (Special Provisions) Ordi nance, 1968 (hereinafter mentioned as the "Ordinance"). The case wasentrusted to the Tribunal for trial and recommendations to the Deputy Commissioner, Chaman.

2. The second respondent was dissatisfied with the members selected by the Assistant Commissioner to sit upon the judgment in his case. He thus filed an appeal in the Commissioner's Court who summoned the record of the case. Mr. Ehsanul Haq, learned counsel for the second respondent submitted that the members had been nominated in respondent's absence which was a flagrant disregard of law. Naturally the proceedings in the case remained in abeyance as the record of the case was not available with the Tribunal.

3. In the meantime, the co‑accused in the case submitted an application for his release on bail on 7tb December, 1981 to the Assistant Commissioner, Chaman who rejected it on 30th December, 1981 on the sole ground that the evidence in possession of the Investigating Agency was likely to make out a prima facie case against this applicant.

4. It will be pertinent to mention here that the appeal of the second respondent seeking reconstitution of the tribunal remained pending and there was also no likelihood of an early disposal, as the Additional Commis sioner who had been entrusted with the disposal of the case had been transferred. Realising this position, the petitioner consented to the second respondent's request for the reconstitution of Jirga so that no further delay was caused in the disposal of the case, and that such request was also acceded to by the Commissioner, Quetta Division on 26th February, 1982 and the Deputy Commissioner, Chaman was directed to reconstitute the Jirga.

5. As directed by the Commissioner, the tribunal was reconstituted by the Deputy Commissioner, Chaman and the trial of the case proceeded but no appreciable progress could be made as after the examination of the second respondent (complainant) on 20th March, 1982 no witness was produced by the prosecution despite repeated adjournments coupled with warnings of the Tribunal. Let it be mentioned here, further, that in the meanwhile the complainant also exerted efforts to get the case transferred to a Military Court or to a Court of Qazi, to be appointed by the Government specially for this case ; but with no positive results. In this regard, the report of the Assistant Commissioner dated 3rd June, 1982 (Annexure "F") may be referred to. It has been filed with the petition and it is stated therein that the second respondent was responsible for undue prolongation of the case as instead of producing evidence in the case, he has been trying for the transfer of the case. He also recommended to the Deputy Commissioner, Chaman to constitute a fresh Tribunal consisting of uninterested members so that the case could make progress. He also recommended favourable consideration of the question of bail to the accused on the ground of long custody. Again on 7tb August, 1982 a recommendation was made by the Tribunal to the Deputy Commissioner that the co‑accused Abdullah may be released on bail and the second respondent be sternly directed to produce the evidence in his possession, if any, in Court, so that the case could be concluded. It was on the basis of the last mentioned recommendations that on 30th August, 1982 a further recommendation was made by the Assistant Commis sioner, Chaman to the Deputy Commissioner, Chaman that the evidence did not appear to be sufficient to bring home the guilt to both the accused, therefore, the question of bail deserved favourable consideration.

6. Meanwhile, the co‑accused also submitted an application to the Assistant Commissioner, Chaman seeking his release on bail but it was rejected. He then filed an appeal against the order of rejection of bail to the Commissioner, Quetta Division which was accepted on 17th October, 1982 and he teas released on bail. However, this order was assailed by the second respondent before the Member, Board of Revenue through a revision, who requisitioned the record of the case. Almost simultaneously with the co‑accused, the petitioner herein, also applied for bail to the Assistant Commissioner, Chaman on the ground of delay in the disposal of the case as his detention in judicial custody had been for a period of over one year by then. This application was, however, dismissed on 24th May, 1983 for want of record which was still lying with the Member, Board of Revenue. Obviously, this was not an order having been passed on merits, therefore, when the petitioner filed an appeal against it to the Commissioner, Quetta Division, he was advised to file a fresh application before the Assistant Commissioner so that he could decide it on merits after he had gained the possession of the record. The petitioner accordingly made another application on 30th May, 1983 which was instantly dismissed. An appeal was filed against this order to the Commissioner, Quetta Division who accepted the same and allowed him bail on 2nd July, 1933.

7. The order for the petitioner's release on bail was, however, challenged by the second respondent through a revision petition to the Member, Board of Revenue who allowed the same on 3‑10‑1983 and vacated the order of the Commissioner. Resultantly the petitioner was once again committed to custody. Precisely, the reasons for the acceptance of the revision petition were that earlier appeal against the rejection of bail application, having been disallowed, the Commissioner was not competent to entertain or allow a fresh appeal; that the petitioner was responsible for prolonging the proceedings in the case as he had been filing appeals etc. against the orders of the Assistant Commissioner to the Commissioner. He further emburdened him with the responsibility of failing 'to implead the second respondent as party to the bail application which, according to him, caused miscarriage of justice. The present petition has been filed to assail this order and the grounds raised therein may briefly be noted as follows :‑‑ (i) That the Member, Board of Revenue had no powers, whatsoever to disturb the finding of fact arrived at by the Commissioner, within the scope of section 25 of the Ordinance, dealing with revision petitions, as such, his order was without jurisdiction. (ii) the allegation that the petitioner was responsible for the delay in the conclusion of the case, and was not, as such, entitled to the benefit of bail on the basis of more than one year's detention as under‑trial prisoner within the meaning of section 497, Cr. P. C. (as amended) was incorrect and amounted to deliberately withdrawing a concession which accrued to him under the law, as such, the order was without jurisdiction. (iii) the allegation that the petitioner failed to join the second respondent as party before the Commissioner and the former was, as such, deprived of his mandatory right of being heard at the appellate stage, was altogether incorrect as it was belied by the record, and that. (iv) the view that earlier appeals having been dismissed by him, the Commissioner could not entertain this appeal, was perverse."

8. As to the first contention raised in this petition, Mr. Tariq Mehmood, learned counsel for the petitioner invited our attention to section 25 of the Ordinance which empowers the Government to examine the record of any proceedings either before or after the disposal of the case by a Commissioner, a Deputy Commissioner or a tribunal in order to satisfy itself as to the correctness, legality or propriety of any decision, sentence or order passed or made ‑in the case and to make such orders as it deemed fit. These powers are akin to those powers which the High Court and the Sessions Court possess under the Code of Criminal Procedure. But as we shall see next, these powers have been emburdened with a clog by means of a proviso in case of the Member, Board of Revenue. The proviso debars the Government from varying or setting aside the findings of a tribunal oh a question of fact where such findings had been accepted by the Deputy Commissioner, unless of course, the Government was of the opinion that there had occasioned some material irregularity or defect in the proceedings. On this premises, Mr. Tariq argued that the above said proviso would only cover the final orders namely the findings of the tribunal on the culmination of the proceedings into a verdict of guilty or not guilty ; which had been accepted by a Deputy Commissioner as well as other findings made at interim stage of the case and accepted by the Deputy Commissioner, such as a matter of bail, transfer of a case etc. and as the findings in the instant case were of such a nature, therefore, the Member Board of Revenue bad no power or jurisdiction to interfere with the same. Mr. Ehsanul Haq, however, contended that the word `finding' would cover only the final findings and not those which were 'made against an interim order and were accepted by the Deputy Commissioner. Let us pause here and read the proviso which is as under :‑ "

25. Revision.‑(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 in confinement, that he be released on bail or on his own bond pending the examination of the record Provided that nothing herein contained shall be deemed to authorize Government to vary or set aside a finding of a Tribunal on a question of fact where such finding has been accepted by the Deputy Commissioner unles3 it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice " It is very clear from section 25(1) that the Member, Board of Revenue who is normally the delegatee of the powers of the Government, could summon and examine the record of any case at any stage of the proceedings either during currency of the same, or after conclusion, for examination et c. It naturally includes all proceedings and on all stages, either before the Tribunal, the Deputy Commissioner or the Commissioner who hears appeals) both against miscellaneous, fragmentary and final orders. There is absolutely no ambiguity about it that the Member, Board of Revenue's powers are as wide as that of a Court of the Sessions or the High Court functioning under the Code of Criminal procedure.

9. Now coming to the proviso ; it may be said at the outset that the embargo referred to above, is neither significant nor too wide to disturb the powers granted to the Government by section 25(I). It only partially debars' the Government from reopening or interfering with such findings of the Tribunal which have been accepted by the Deputy Commissioner. But as that is not a complete bar these findings could also be interfered with ; though for limited purposes i.e. to satisfy that no glaring irregularity and procedural defect existed in the proceedings. But if we give a serious thought to it, we shall find that the powers under section 25(1) have been disturbed by the proviso for a definite purpose i.e. that a revisiunal Court sitting at Quetta should not go into the credibility, quality and sufficiency etc. or otherwise of the evidence or into any allied issue ; no matter, however, perverse and unjust the Tribunal's findings, with the Deputy Commissioners stamp of acceptance over it may appear to be. Actually the factual aspect of the proceedings has been restricted upto the Deputy Commissioner and Commis sioner ; basically Administrative Officers (also Political Officers designated as Political Agents in certain areas) on the principle that they should have a free hand in the matter of dealing with the people in their Ilaqa. Reverting to the next limb of the argument, it may be said that although this provision does not clearly categorise the nature of the findings which can not be interfered with ; namely whether by this, a finding of fact of a Tribunal at the final stage of a case when acquittal or conviction etc. has been recommended to the Deputy Commissioner was meant or all findings made at the interim stage of a case and agreed to by a Deputy Commissioner But in the absence of any clarification expressly made, we are at liberty to construct the proviso in the light of its plain meanings i.e. that it will cover both. This question is of hardly any importance in this case as here it is not the order of the Tribunal confirmed by the Deputy Commissioner which has been disturbed by the Member, Board of Revenue ; rather it is the Commissioner's order which has been set aside and with regard to his orders, no safeguard has been provided by the proviso under reference, therefore, it cannot be said that the Member, Board of Revenue had no jurisdiction to upset the order of bail as no procedural defect or other irregularity was visible. Of course, what should be seen is as to whether or not grounds existed for such interference. To sum up, Mr. Tariq's argument that M. B. R.I had no jurisdiction to interfere with the appellate order is repelled being without force.

10. Mr. Tariq next contended, and not without force, that finding of the Member, Board of Revenue was further patently perverse, in it, that he considered the petitioner responsible for the delay in the disposal of the case and disentitled him for the concession of bail, although the record revealed that the case had remained pending for over two years for no fault of his. He did try for bail and litigated for the same, but that was his right. If the authorities dealing with bail applications or appeals and such other matters initiated by the second respondent, had applied their mind correctly, they could easily dispose of all these moves without summoning the record. It is general practice of the superior Courts that in order to avoid delay in disposal of cases on the original side, they direct the parties to file copies o important documents and thus allow the proceedings to continue in the lowe Court. Well, if it was not done in this case, at least for future cases, they will be well‑advised, to adopt this practice as the biggest misfortune of the litigant public is inordinate delay in proceedings under the Ordinance which lays down a simple methodology and is, in fact, meant for speedy disposal of cases.

11. Clearly, the Ordinance does not provide for capital punishment and the case had remained pending for about two years, therefore, the concession 9f bail could not be withheld from the petitioner. Section 497, Cr. P. C, is clear on the point. See Mian Tufail Muhammad v. The State (1), Dur Muhammad v. The State (2) and Nazir Hussain v. Maul Haq and others (3). Mr. Ehsanul Haq learned counsel for the second respondent attempted to fix the responsibility of the delay in the disposal of the case upon the petitioner on the ground that his appeal remained pending for several months which delayed the disposal of the case, as such, he was rightly held to be disentitled to the concession of bail. We are unable to agree with him. A already pointed out, the bona fide efforts of an accused person to obtain bail in a case cannot go to his discredit as every accused person is entitled to seek liberty. On the contrary, the case has remained pending for a long time with the Commissioner and Member, Board of Revenue either for the substitution of the Jirga Members or for disposing of the appeals and revisions on the question of bail allowed to the petitioner and the co‑accused. All such moves were made by the second respondent. It may also be said that the second respondent did not produce evidence when record was available with the Tribunal ; rather he tried to prolong the proceedings. This position has already been discussed and needs no reiteration. This argument is thus without force. The order under challenge is without jurisdiction as having been passed in violation of law.

12. It was contended last by Mr. Tariq that the Member, Board of Revenue wrongly held that a second appeal could not be entertained by the Commissioner. This finding is patently perverse as there is no embargo on the successive applications for bail and there can also be no bar to more than one appeal if such applications had been dismissed. Furthermore, the Member, Board of Revenue has held that the second respondent was not' heard by the Commissioner. It is a finding completely belied by the record. The appellate order clearly reveals that the second respondent and his counsel were present and heard before the final orders were passed. These reasonings used for setting aside the order of the Commissioner taint the impugned order with absolute illegality. This is thus a case of gross abuse of jurisdiction vesting in the M. B. R. We would, therefore, allow the petition with no orders as to costs and vacate the impugned order. The petitioner's bail in terms of interim order dated 10th October, 1983 stands confirmed. M. Z. M. Bail confirmed. (1) P L D 1973 Lab. 747 (2) P L D 1983 Lab. 24 (3) 1983 S C M R 72