P L D 1965 (W (PLP)

JAMIL HUSSAIN RIZVI, J.‑--Constitution Petitions Nos. 371/64 and 382/64 will be disposed of by this judgment as the facts in the two cases are almost identical.

2. Shaukat Ali Kirio was murdered in Nawabshah on the 23rd of November 1963 at about 7 p.m. Noor Muhammad Mangsi lodged the first information report with Nawab Shah City Police Station, under section 302, P. P. C. and 19(E), Arms Act, wherein he stated that he was sitting at the Otak of Haji Umer Lakhmir on Sakrand Road in Nawabshah town along with Dosan and Jamal. After some time Shaukat Ali deceased arrived and sat there. While they were talking two persons arrived there, one of them fired two shots at Shaukat Ali which did not hit him. The man who fired the pistol shots was also carrying a‑hatchet. He threw away the pistol and attacked Shaukat Ali with his hatchet. The other person fired on Shaukat Ali with gun which hit him on his head. Shaukat Ali fell on the cot on which he was sitting That he had identified the two assailants in the light of street electric bulb and a lantern burning nearby as Murad son of Gullu Kirio, resident of Taluka Sanger and Khan Kirio who previously lived in Deh 41, Dad Tallika, Nawabshah,

3. During the investigation of this case Jamal Din was examined under section 164, Cr. P. C. as an eye‑witness of this occurrence. Haji Umer Lakhmir and Dost Muhammad were also examined as eye‑witnesses under section 164, Cr. P. C. on the 10th of December 1963. Long, who is stated to be the same person, who was mentioned in the report as Khan, was arrested on the 25th of November 1963. He was produced for the recording of a judicial confession on the 27th of November 1963 and he made a confession wherein he admitted to have killed Shaukat Ali Kirio along with Murad. In this confession he stated that Noor Muhammad P. W. had conspired with them and had managed to take Shaukat Ali unarmed to the Otak of Haji Umer Lakhmir so as to facilitate his murder at that place. Sohrab petitioner was arrested on the 6th of December 1963. He was produced for the recording of a judicial confession on the 7th of December 1963 but he did not make a confession.

4. On the 10th of December 1963 Mir Muhammad petitioner in Petition No. 371/64 and Sohrab petitioner in Petition No. 382/64 along with Long alias Khan were challaned in the Court of the Magistrate under sections 302, 120‑B, P. P. C. and 19(E), Arms Act. Murad was shown as an absconder.

5. On the 11th of January 1964 the Divisional Commissioner, Khairpur, passed an order under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963 and referred the case against the petitioners for decision to the Tribunal. The order of the learned Commissioner runs as follows:‑-- "The murder of deceased Shaukat Ali lead taken place in the town of Nawabshah. The accused took the law in their hands and succeeded in committing premeditated murder of the deceased which fact has created a turmoil in the town of Nawabshah. The witnesses are being tampered with. It is reported that the accused are being clandestinely helped by some big people. Such a daring and diabolical act of the accused is likely to go unpunished for want of sufficient and satisfactory evidence. The Commissioner is, therefore, pleased to refer the above case to a Tribunal for a decision." Against this order Mir Muhammad petitioner filed a revision petition before the Home Secretary. It was urged that the charge against the petitioner was under section 120‑B, P. P. C. only which offence was not included in the Schedule to the Criminal Law (Amendment) Act, 1963 and consequently the petitioner could not be tried by a Tribunal. That the reference made by the learned Commissioner was thus illegal. However, the Home Secretary by his order dated the 11th of April 1964 dismissed the revision petition: He remarked in the order that the order of the Commissioner was quite clear. He had referred the case under section 302, P. P. C. only for trial by the Tribunal and not the case under section 120‑B, P. P. C. Thereafter, Mir Muhammad petitioner filed an application before the District Magistrate praying that since the case against him under section 120‑B, P. P. C. could not be referred to a Tribunal as remarked in the order of the Home Secretary, his case may be referred back to the Court. The learned District Magistrate dismissed his applica tion on the ground that the petitioner had already exhausted the remedy by filing a revision application before the Home Secretary and that his application before him did not lie. An application for bail was moved before the learned District Magistrate by Mir Muhammad petitioner and be was allowed bail. It is re marked in the order that the petitioner was not one of the assailants. That he has been sent up for conspiracy in getting the deceased killed. That there were reasonable grounds to believe that the accused may not have a hand in the commission of the said offence.

6. It is urged by the learned counsel for the petitioner that on the facts as disclosed in the evidence during the investigation the allegation against Mir Muhammad petitioner was that of conspiracy under section 120‑B, P. P. C. only and there was no evidence. to connect him with the offence of murder. That as against Sohrab petitioner also there was complete absence of evidence for an offence under section 302, P. P. C. Consequently the reference to the Tribunal so far as it related to the two petitioners was bad in law. Reliance is placed on The State v. Nawab Gul (P L D 1963 S C 270) and Muhammad Akram and others v. The State (P L D 1963 S C 373) and a Full Bench judgment of this Court reported as Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner Frontier Crimes Regulation, Quetta Division (P L D 1964 Lah. 401). The Full Bench decision has interpreted the two Supreme Court authorities as meaning that in the opinion of their Lordships a reference to a Jirga cannot be made when, on the facts before the Deputy Commissioner, points did not emerge from the facts before him which, if established, will suffice for the conviction of the accused for a criminal offence falling within the scope of the regulation, and that in such circumstances the reference to a Jirga will be bad. It follows that if no case for reference is made out, the Courts will in the exercise of their special Constitutional jurisdiction be competent to interfere.

7. These authorities were given under the Frontier Crimes Regulation. Although the provisions of section 11 of the Frontier Crimes Regulation are identical with the provisions of section 3 of the Criminal Law (Amendment) Act, 1963, but there is no section in the Criminal Law (Amendment) Act parallel to section 14 of the Frontier Crimes Regulation. Section 14 runs as follows:‑ "The powers conferred by section 11 on the Commissioner and Deputy Commissioner, respectively, may be exercised by them, in cases committed to the Court of Session, at any time f before the trial before that Court has commenced, and, in cases pending before any Court inferior to the Court of Session a any time before an order of conviction or acquittal has been made." Thus, it was a condition precedent under the Frontier Crimes Regulation that at the time of the reference the case must be pending either in the Sessions Court or before any inferior Court, before the Deputy Commissioner or the Commissioner could exercise his powers under section

11. The provisions in the Criminal Law (Amendment) Act, are entirely different. According to section 3 of the Criminal Law (Amendment) Act as soon as person is accused of an offence the Commissioner can straight way take action and refer the case for trial to a Tribunal. As, regards the cases pending in a Court it is provided in sub section (2), section 3 that a reference can be made at any time before the charge is framed against the accused. Section 3 of the Criminal Law (Amendment) Act, 1963, runs as follows:‑ "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 an offence specified in the First 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 Commissioner may, notwithstanding any thing 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 enquiry as may be necessary and after hearing the accused." It follows, therefore, that under the Frontier Crimes Regulation the High Court in exercise of its writ jurisdiction could interfere in an order of reference in case on the showing of the investigation agency there was no case worth being put in a Court of law any this is the ratio of the Supreme Court judgments relied upon by the Full Bench ruling of this Court referred to above. The position has been materially altered by the Criminal Law (Amendment) Act. Under this Act the Commissioner can entrust, the case to a Tribunal before the case has been put in Court or before any evidence had been collected by the investigating agency. As soon as a person is accused of such an offence by means of the first information report with the police the Commissioner can exercise his powers under section 3 of the Criminal Law (Amendment) Act. The provisions of the Evidence Act and the Criminal Procedure Code are not applicable to the proceedings before the Tribunal. This would mean that the Tribunal while enquiring into the question of guilt or innocence of any person is empowered to receive any evidence or material which might not have been collected by the investigating officer. In fact a reference would be competent even before the Investigating Officer has collected any evidence at all. The High Court in exercise of its special jurisdiction, therefore, has no means to scrutinize the evidence that might ultimately be relied by the Tribunal fort deciding the guilt or innocence of the accused. Rule 3 of the West Pakistan, Criminal Law (Amendment) Rules, 1963, lays down the factors for the guidance of the Commissioner in determining the expediency or otherwise of referring a case to a Tribunal. Sub‑rule (2) of rule 3 runs as follows:-- "(2) The following factors may among others be considered in determining whether a case be referred to a Tribunal for decision: (a) in murder, culpable homicide not amounting to murder, attempt to murder, dacoity and robbery cases; that the accused have not been named in the F. I. R. or the assassins or any of them are alleged to have been hired; (b) in cases under section 363 of the Pakistan Penal Code, that the accused is not related to the kidnapped person within three degrees from the paternal or maternal side; (c) in cases under section 498 of the Pakistan Penal Code, that the number of the accused does not exceed one and the accused is not related to the enticed woman within three degrees from the paternal or maternal side. (d) in murder, attempt to murder, dacoity and robbery cases, that the offence is alleged to have been committed between the hours of sunset and sunrise; (e) in cases under section 215 of the Pakistan Penal Code, that the stolen property has not been recovered; (f) in cases relating to theft of cattle or receiving stolen property, that the stolen property has not been recovered; (g) in cases of receiving illegal gratification, that the con sideration alleged to have been passed has not been recovered from the possession of the public servant; (h) in cases falling under clause (c) of section 5 of the Prevention of Corruption Act, 1947, that the amount or the value of property misappropriated or dishonestly converted exceeds rupees ten thousands; (i) in smuggling cases falling under item 81 of the Schedule to section 167 of. the Sea Customs Act, 1878, and section 7 of the Land Customs Act, 1924, that the value of the smuggled property exceeds rupees five thousands; (j) that the accused is tampering with the witnesses or is likely to make the witnesses to resile from disclosing the truth; (k) in arson cases punishable under sections 435 and 436 of the Pakistan Penal Code that any agricultural produce or any building used as a human dwelling or for the custody of property is destroyed or substantially damaged." The list is not exhaustive and it nowhere lays down that it is essential that there should be evidence against an accused person before the Commissioner makes the reference of a case to a Tribunal. As soon as a person is accused of an offence mentioned in the Schedule the Commissioner in his discretion for reasons mentioned in the above sub‑rule or on any other reason may refer the question of the guilt or innocence of the accused to be determined by a Tribunal. Supposing in a case the police officer makes a report to his higher officers that the complainant who is not an eye‑witness alleged that the persons named in the first information report had committed the murder but no witness or any other incriminating evidence was available against the accused persons who are very influential persons and did not permit the collection of any evidence against them. The Commissioner on coming to know of such a situation would be entitled to refer the question of the guilt or innocence of the accused to be determined by a Tribunal. The Tribunal may inspect the spot and make secret and public enquiry and if it is satisfied that the accused alleged to have committed the murder had in fact committed the murder, it will be entitled to forward its finding with reasons there for on the question of the innocence or guilt of the accused to the District Magistrate under section 10(1) of the West Pakistan Criminal Law (Amendment) Act and on receipt of the finding of the Tribunal the District Magistrate may proceed to deal with the matter as provided in section 10(2). The intention of the Legislature is abundantly clear that the Commis sioner in case he considers that the question of the guilt or innocence of an accused should not be determined by an ordinary Court may refer such a case to a Tribunal. The Tribunal not being bound by the provisions of the Evidence Act is empowered to give a finding on evidence which may not have been at all before the police. I am conscious of the fact that it might cause hardship in some cases, however, the law Courts are helpless in case the Legislature makes a provision which might in some cases result into hardship. In the present case, the learned Additional Advocate‑General stated that the Investigating Officer instead of collecting evidence tried to divert the investigation into wrong channels and that was the reason why the Commissioner decided that the question of the guilt or innocence of the accused be referred to a Tribunal. It is not possible for the High Court to judge the validity of an order of reference because the prosecution may not at that stage know as to what evidence would be collected by the Tribunal before giving its findings. In my humble view as soon as the Commissioner under the Criminal Law (Amendment) Act decides to refer the question to a Tribunal the ordinary Courts are excluded from looking into the material warranting such a reference. He is empowered to do so on any of the factors among others as mentioned, in sub‑rule (2) of Rule 3.

8. In view of what has been .stated above, I consider that the authorities relied upon by the learned counsel for the petitioners are not applicable to the .present case. The law as it stands now permits the Commissioner to make/ a reference to a Tribunal irrespective of whether there is evidence to warrant the putting in of a challan in Court or not and the High Court in exercise of its writ jurisdiction cannot scrutinize the order of reference made by the Commissioner. The two petitions, therefore, deserve to be dismissed. FARUQUI, J.‑

I have had the advantage of reading the judgment proposed by my learned brother Jamil Hussain Rizvi, J. in these two petitions but I regret that I am unable to agree with it. I do so with utmost respect.

2. These two petitions arise out of a reference made by the Commissioner, Khairpur Division, under section 3(1) of the West Pakistan Criminal Law (Amendment) Act, 1963. This was done on 11th January 1964. The facts of the case are set out in the judgment of my learned brother in paras. 2 to 5 and I shall not repeat those facts. It may, however, be necessary to add a few for better appreciation of the conclusion which I have reached.

3. The contention of the learned counsel for the petitioners was that as far as Mir Muhammad was concerned he had been accused of having committed an offence under section 120‑B, P. P. C. and there was no evidence against him with regard to the murder itself of the deceased Shoukat Ali Kiryo. It was pointed out that section 120‑B was not a scheduled offence under the West Pakistan Criminal Law (Amendment) Act and, therefore. his case could not be the subject‑matter of reference by the Commissioner under section 3 of the said Act and that Tribunal would have no jurisdiction to try him for the offence. With regard to the other petitioner Sohrab it was urged that there was no evidence whatever against him connecting him with the offence under section 302, P. P. C. regarding the said murder or for that matter with any other offence. The factual correctness of these assertions with regard to either of these two petitioners was not challenged before us by the learned A. A.‑G. who appeared for the State.

4. My learned brother referred to two judgments of the Supreme Court, the one in the case of The State v. Nawab Gul and the other in the case of Muhammad Akram and others v. The State and also to the Full Bench decision of this Court in the case of Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner Frontier Crimes Regulation, Quetta Division in which the effect of the two aforesaid judgments of the Supreme Court was considered.

5. I shall first refer to the Full Bench judgment of the High Court. Ortcheson, J., who wrote the judgment in that case, and with whom the other four Judges agreed after referring extensively to the judgments of the Supreme Court, recorded his conclusions thus:‑‑ "With great respect, and with due diffidence, I venture to interpret the words emphasised above as meaning that in the opinion of their Lordships, a reference to a Jirga cannot be made when, on the facts before the Deputy Commissioner, points do not emerge from the facts before him which, if established, will suffice for the conviction of the accused for a criminal offence falling within the scope of the Regulation, and that in such circumstances the reference to a Jirga will be bad. It follows that if no case for reference is made out, the superior Courts will, in the exercise of their special constitutional jurisdiction, be competent to interfere."

6. With regard to the judgment of the Supreme Court in the case of Muhammad Akram Ortcheson, J. noted the fact the though this case was decided later it related to a time when the writ jurisdiction of the superior Courts was as defined by the Laws (Continuance in Force) Order (I of 1958). Then after having set out clause 2 (4) of that order which was material and the provisions contained in Article 98 of the present Constitution, he reached the following conclusion with which the other learned Judges agreed:‑- "It is clear that orders falling within either the first or the second of the above four categories are not confined to case Where the persons against whom the order is proposed to be passed has been performing judicial or quasi‑judicial functions: Administrative or executive authorities also fall within the orbit of the jurisdiction conferred by the above Article on the superior Courts. The provisions of Article 98 are in this respect wider in scope than its predecessors with the result that the superior Courts now exercise a wider jurisdiction than that enjoyed by the Federal Court in Sumandar's case or by the Supreme Court in Muhammad Akram's case. Moreover, as laid down by the Supreme Court in Akram Bus Service and others v. Board of Revenue, West Pakistan and others P L D 1963 S C 564 even an administrative body is under a legal obligation to deal with all applicants before it fairly, justly and equitably. In particular, if any legal requirement is laid down the authority concerned is under an obligation to follow it. Though, therefore, a Jirga conducting an inquiry under the Regulation is in no‑ sense a judicial or quasi‑judicial body, it is, in my opinion, bound to observe any requirements laid down by the Regulation."

7. My learned brother Rizvi, J., however, has sought to distinguish the authority of the Full Bench and of the Supreme Court in the case of State v. Nawab Gul upon the ground that they arose out of action taken under the Frontier Crimes Regulation whereas the reference in the present case was made under section 3 of the Criminal Law (Amendment) Act, 1963. He observed that though the provisions of section 11 of the F. C. R. were identical with the provisions of section 3 of the Criminal Law (Amendment) Act, 1963, hereinafter referred to as the Act, yet the latter did not contain any provision such as was to be found in section 14 of the F. C. R. Section 14 of‑ the F. C. R. reads:‑- "

14. The powers conferred by section 11 on the Commis sioner and Deputy Commissioner, respectively, may be exercised by them, in case committed to the Court of Session, at any time before the trial before that Court has commenced, and, in cases pending before any Court inferior to the Court of Session, at any time before an order of conviction or acquittal has been made." The view that my learned brother has taken is that because of the aforesaid section 14 it was a condition precedent under the F. C. R. that at the time of the reference the case must be pending either in the Sessions Court or before any inferior Court, before the Deputy Commissioner or the Commissioner‑ could exercise his power under section

11. He has then gone on to observe that the provisions of the Act were entirely different. After referring to section 3 of the Act he has observed that‑ "Under this Act the Commissioner can entrust the case to a Tribunal before the case has been put in Court or before any evidence has been collected by the investigating agency. As soon as the person is accused of such an offence by means of the First Information Report with the police the Commissioner can exercise his powers under section 3 of the Criminal Law (Amendment) Act. The provisions of the Evidence Act and the Criminal Procedure Code are not applicable to the proceedings before the Tribunal. This would mean that the Tribunal while inquiring into the question of the guilt or innocence of any person is empowered to receive any evidence or material which might not have been collected by the Investigating Officer. In fact, a reference would be competent even before the Investigating Officer has collected any evidence at all. The High Court in exercise of its special jurisdiction, therefore, has no means to scrutinize the evidence that might ultimately be relied by the Tribunal for deciding the guilt or innocence of the accused."

8. With profound respect to my learned brother I must say that I find myself completely unable to agree with the above conclusions. In my humble view section 14 of the F. C. R. merely contains a limitation as to time within which the powers of the Commissioner and Deputy Commissioner under section 11 may be exercised in respect of (1) cases committed to the Court of Session and (2) cases pending before any Court inferior to the Court of Session. The effect of section 14 is that once any case has come to anyone of these Courts the power of reference under section 11 cannot be exercised after the stage mentioned in this; section has passed. Such a limitation is also provided under section‑ 3(2) of the Criminal Law (Amendment) Act. In my opinion, therefore, the existence of section 14 of the F. C. R. does not render the Supreme Court judgment in the case of Nawab Gul and the Full Bench judgment of the High Court in the case of Muhammad Khan with regard to the power of reference of the Commissioner or Deputy Commissioner under section 11 of the Regulation inapplicable to a similar power couched in identical terms in section 3 of the said Act. Dealing with section 11 of the F. C. R. the Supreme Court in the case of Stale v. Nawab Gul observed:‑- "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." And then follows an extremely moving passage which I cannot resist the temptation of quoting:‑ "At a time when to a rapidly increasing extent, the jurisdic tion, long‑established and familiar, belonging to the ordinary Courts, is being avoided in cases of serious crimes by orders of withdrawal, made on the grounds of expediency, it is of importance that it should be known, in what kind of cases and in what manner, the power is being exercised. The present is a case whose facts give ample cause for concern whether public justice is advanced by proceedings of this kind. Or whether, on the contrary, if it becomes a general risk ‑that men may be sent to he tried by Jirga when there is visibly no case against them, and they are deprived of redress through the ordinary forms of law, there is not a danger that the image of public justice, built up with the aid of careful legislation and steady implementation of rules of procedure for at least a hundred years, will inevitably be destroyed. What might follow can well be imagined. An immediate result will be that devotion to law and to lawfulness in behaviour will be at a total discount.". The effect of these weighty observations has, by no means, been lessened by the pronouncement of their Lordships in the case of Muhammad Akram v. State. The conclusion of their Lordships is recorded in the following passage of the judgment in that case:‑ "In these circumstances, it should be obvious that for the superior Courts to interfere, whether by approval or otherwise, with the operation of the system in any case, once a case is competently drawn into the system, would be a violation of the legislative intention. All action, in the writ jurisdiction, should be confined to action in limine, that is to say, in assertion of the jurisdiction of the ordinary Courts, and in vindication of the law, to scrutinize the process by which the case, if there be the, has been, or is sought to be, diverted into the ambit of the Jirga system. If the legal requisites are satisfied, that is the last contact which the superior Courts can retain with the case, viz., by making such a declaration. All other processes taken in the disposal of the case, within the Jirga system, are outside the purview of the Courts, in any of their jurisdiction." It would thus be clear that the power of the Court to examine the question whether a case has been competently drawn into the system and to scrutinize the process by which the case is sought to be diverted into the ambit of the Jirga system, was clear!\; recognized even in this case by the Supreme Court. This power was recognized with reference to the exercise of writ jurisdiction in certiorari. The provisions of Article 98 of the present Constitution are, however, wider in scope as regards the power of the superior Courts vis‑a‑vis orders passed or actions taken by administrative or executive authorities. The Full Bench of the High Court in the case of Muhammad Khan held:‑ "That even after a case has been properly drawn into the Jirga system Article 98 of the, present Constitution, which was not applicable to Muhammad Akram's case, confers jurisdiction on this Court to interfere if the mandatory requirements of the Regulation or of any Rules framed under section 62 thereof have been violated. The extent and limits of the present jurisdiction are determinable by the provisions of Article 98 alone."

9. I shall now revert to the observations made by my learned brother reproduced above in para. 7 of this judgment. These observations were made in support of the view which my learned brother took, that "the position had been material altered by the Criminal Law (Amendment) Act". It has been said that as soon as a person is accused of a scheduled offence by means of a first information report with the police, the Commissioner was entitled to make a reference to the Tribunal under section 3 of the Act. He also said that a reference would be competent even before the Investigating Officer had collected any evidence at all. I am afraid, none of these inferences are permissible by the scheme of the Criminal Law (Amendment) Act. The First Information Report could not necessarily be the basis of an accusation. In fact, there may be instances where a person is not named in the First Information Report as one of the perpetrator of the crime and yet an investigation may show his complicity. The First Information Report as contemplated by section 154, Cr.P.C. merely requires information relating to the commission of a cognizable offence. The offender may not be known or may not be named in the report. It would still be a proper First Information Report. Section 3, Criminal Law (Amendment) Act, empowers the Commissioner to refer the question of the guilt or innocence of any person accused of an offence specified in the First Schedule. But if a person is not named in the F. I. R. how is he to be considered a "person accused of an offence" within the meaning of section 3 of the Act? And if the F. I. R. was to be the only criterion upon what basis would the Commissioner make a reference if a person was not named therein? It would, therefore, appear that the expression "accused of an offence" in section 3 does .‑Pot refer only to a person who has been shown as an accused in the First Information Report. It, therefore, follows that there has to be something more than merely an F. I. R. More over, in order to give jurisdiction to the Commissioner for the exercise of the power under section 3 of the Act, it must appear in his opinion to be inexpedient in the interest of justice that the question of guilt or innocence of a person be tried by the ordinary Courts. How can this opinion be formed merely upon the F. I. R.? It is, therefore, necessary that before the Commissioner may act under section .3 of the Act he must have a full report of the case before him. This would either be in the shape of a police report after the completion of the investigation in a case or a further report by the prosecuting agency after the challan had been filed in Court but before the charge is framed or in respect of the offences specified in Part B of the First Schedule before the judgment is pronounced. A reference under section 3 cannot be made when these stages have passed as provided by subsection (2) of section 3 of the Act. If upon the scrutiny of these reports or from the record of the case it appears to the High Court that upon the facts before the Commissioner points do not emerge which, if established, will suffice for the conviction of the accused person the High Court in the exercise of its special jurisdiction under Article 98 would be entitled to quash the reference made by the Commissioner. The conclusion of the Supreme Court in the case of Nawab Gul in this regard and also of the Full Bench of the High Court in the case of Muhammad Khan, though made with reference to section 11 of the F. C. R., would apply with equal force, if not greater, to a reference under section 3 of the Criminal Law (Amendment) Act. As to the question that the Commissioner can entrust a case to the Tribunal even before any evidence has been collected by the investigating agency, and that the Tribunal would do the rest, I am afraid and I say so with great respect to my learned brother, that nothing of the kind is either provided or contemplated by the Act. The provisions of the Act, in my opinion, clearly indicate that the Tribunal has to try a prepared case. It is no doubt not bound by the rules of evidence under the Evidence Act or the procedure laid down under the Code, most of which has been excluded by the Act, yet it has to try the case which is laid before it and not make out a case by secret inquiries or by receiving evidence behind the back of the accused. In this respect, the provisions of the Criminal Law (Amendment) Act are material different from the F. C. R. The latter merely provides for civil reference under section 8 and for a criminal reference under section 11 to the Council‑of‑Elders. No procedure of any kind is provided as to how that Council is to conduct Its inquiry, nor are any limitations contained in the Regulation with regard to the manner in which the inquiry is to be held. However, when we turn to the Criminal Law (Amendment) Act we find that the composition of the Tribunal consists of President and four members. The President has to be a Magistrate exercising powers of an Additional District Magistrate or invested with powers under section 30 of the Criminal Procedure Code. Under section 7 every member of the Tribunal has to take an oath in the form set forth in the Second Schedule of the Act. Then section 8 lays down the procedure. It provides that the Tribunal shall hear any evidence that may be adduced before it in support of the accusation or which may be led by the accused in his defence, unless any of it is excluded on the ground of vexation or delay. The witness has to be administered an oath though it may be in any form which the Tribunal may deem fit according to the religion of the witness. The Tribunal has been given all the powers under the Code of Criminal Procedure for requiring the attendance of witnesses and production of documents or any other thing. Sections 121 to 126 of the Evidence Act have been made applicable. And then by subsection (5) the accused has been given the right of cross‑examining the witnesses deposing against him. Under section 25 the parties are entitled to be represented by a legal practitioner of their choice. Under rule 14 framed under section 33 of the Act the President is under an obligation to maintain a memorandum of the evidence tendered before the Tribunal in his own hand or under his supervision. Under the same rule the parties are entitled to copy of the memorandum of such evidence Under rule 15 where the Tribunal refuses to hear any evidence it has to record its reasons for such refusal.

10. The above provisions make it clear that it is not permissible under the Act for the Tribunal to decide the question of the guilt or innocence of the accused upon. secret or private inquiries or upon evidence heard ex parte behind the back of the accused. The provision for rendering oath to the witnesses and for affording opportunity to the accused for cross‑examination would be meaningless if tile question had to be decided by private inquiries. I am clearly of the opinion that any determination by the Tribunal would have to be upon the evidence heard in the presence of the accused though it is true that in this the Tribunal is not bound by the rules of evidence as provided by the Evidence Act except as regards sections 121 to 126, yet such evidence as is to be taken into consideration by the Tribunal has to be heard in the presence of the accused and the accused is entitled to test its veracity by cross‑examination. The facility of a legal practitioner is also allowed and above all it is provided that a Senior Magistrate of experience, such as an A. D. M. or a Magistrate invested with powers under section 30 is expected to be, is to preside over the trial before the Tribunal. In fact, to many respects the Tribunal under the Act has many of the trappings of a Court. For all these reasons I am of the opinion that the Tribunal has to try a prepared case and in this respect it differs from the Council‑of‑Elders constituted under the F. C. R. l which has all the freedom of action in the matter of an inquiry untramelled by any rules or procedure such as laid down under section 8 of the Act and unrestricted by the presence of a Magistrate as provided by section

4. My conclusion, therefore, is that the reference by the Commissioner is not immune from scrutiny as is the view taken by my learned brother.

11. As regards the facts of the present case, accused Mir Muhammad was admittedly proceeded against under section 120‑B, P. P. C. This is not a scheduled offence under the Act. That being so, the Tribunal would have no jurisdiction to try Mir Muhammad. In fact, it is clear from the order of the Home Secretary dated 11‑4‑64 that the Commissioner has referred only the case under section 302, P. P. C. With regard to Sohrab, the petitioner in Petition No. 382/64, his name does not appear either in the F. I. R. or in the judicial confession of Loung son of Tayab accused or in any of the 164 statements which were got recorded by the police. There was thus no material upon which the reference could have been properly made against him. At the hearing we were not told of the existence of any such material. I would, therefore, declare that the reference by the learned Commissioner made on 1‑1‑64, Exh. A, is bad so far accused Mir Muhammad and Sohrab are concerned. The Tribunal would, therefore, have no jurisdiction to proceed against them. Akhtar Ahmed Qazi for Petitioners. Abdul Kadir Shaikh, A. A.‑G. assisted by Salima Nasiruddin for Respondents. Date of hearing : 23rd November 1964. INAMULLAH, J.‑--My learned brother Faruqui, J. ordered that as there was difference of opinion between him and His Lordship Rizvi, J., the matter be placed before me for necessary order. I treated this as a reference under clause 26 of the Letters Patent which runs as under:‑ "

26. And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section on‑c hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it."

2. I have had the advantage of reading the two judgments of my learned brothers Faruqui and Rizvi, JJ. There were two petitions before their Lordships under Article 98 of the Constitution for quashing the reference made by the Commis sioner, Khairpur Division under section 3(1) of the West Pakistan Criminal Law (Amendment) Act, 1963 (hereinafter called the Act). against the two petitioners namely, Mir Muhammad and Sohrab.

3. The relevant facts giving rise to the two petitions are elaborately stated in the order of Rizvi, J. It is unnecessary to reproduce them. It is sufficient to state the contention of the learned Advocate for the petitioners before the Division Bench for the purposes of the disposal of the reference. It was contended on behalf of Mir Muhammad that he had been accused of committing an offence under section 120‑B, P. P. C. which was not a scheduled offence under the Act and there was no evidence against him with regard to the murder of deceased Shaukatali. With regard to the petitioner Sohrab it was urged that there was no evidence whatever against him connecting him with the offence under section 302, P. P. C. regarding the murder of Shaukatali, or for any other offence. In this connection it would be useful to reproduce the observation of Faruqui, J. It runs as under:‑-- "The factual correctness of these assertions with regard to either of these two petitioners was not challenged before us by the learned A. A.‑G. who appeared for the State." I would proceed to consider the reference in the light of the concession made by the learned A. A.‑G. that Mir Muhammad was accused of an offence under section 120‑B, P. P. C. which was not a scheduled offence and there was no evidence against him with regard to the murder of Shaukatali and that as regards Sohrab there was no evidence whatever connecting him with the offence under section 302, P. P. C. regarding the murder of Shaukatali.

4. The learned Judges have not acted strictly in compliance with the provision of clause 26 of the Letters Patent inasmuch as they have not stated expressly the point or points on which the difference of opinion arose between them. It is, however, unnecessary to remit the case back to the Division Bench for the formal formulation of the points indifference. The two judgments clearly indicate the points of difference. I would formulate the points of difference as under:‑ "Whether, in view of the provisions of section 3 of the Criminal Law (Amendment) Act, the Commissioner having wide power so as to refer a case immediately after the F. I. R. is filed, this Court has jurisdiction under Article 98 of the Constitution to consider the legality of the order passed by the Commissioner referring the case to the Tribunal. If so, is the reference against the petitioners illegal? " The learned Advocate for the petitioners and the learned Additional A.‑G. agreed that the only difference of opinion between the learned Judges was as stated above.

5. I respectfully agree with the conclusion of Faruqui, J. that the reference by the Commissioner under section 3 of the Act is bad against the petitioners Mir Muhammad and Sohrab. I consider it unnecessary to repeat the reasons given by my learned brother Faruqui, J. in support of his conclusion. A fair analysis of the grounds of Rizvi, J. for the conclusion that "the High Court in exercise of its writ jurisdiction cannot scrutinise the order of reference made by the Commissioner" comes to this:‑ (1) that the judgments of the Supreme Court in the case of Nawab Gul P L D` 1963 S C 270 and in the case of Muhammad Akram P L D 1963 S C 373 and the Full Bench judgment of this Court in the case of Sardar Nawab Haji Muhammad Khan P L D 1964 Lah. 401 we're given under the Frontier Crimes Regulation; (2) that although the provisions of section 11 of the Frontier Crimes Regulation hereinafter called the Regula tion are identical with the provisions of section 3 of the Act, there is no section in the Act similar to section 14 of the Regulation under which the Commissioner and the Deputy Commissioner could refer the case to a Jirga in cases committed to the Court of Session at any time before the trial before that Court has commenced and in cases pending before any Court inferior to the Court of Session at any time before an order of conviction or acquittal has been made, It was, therefore, a condition precedent under the Regulation that at the time of reference the case must be pending either in the Sessions Court or before any Court inferior to the Court of Sessions before a reference could be made by the Deputy Commissioner or the Commissioner. (3) that under section 3 of the Act unlike section 14 of the Regulation a reference could be made by the Commissioner to a Tribunal even after the F. h. R. was lodged. The High Court, therefore, in exercise of its special jurisdiction has no means to scrutinise the evidence that will ultimately be relied by the Tribunal for deciding the guilt or innocence of the accused; (4) that it is not possible for the High Court to judge the validity of an order of reference because the prosecution would not know as to what evidence would be collected by the Tribunal before giving its findings. The law as it stands now permits the Commissioner to make a reference to a Tribunal irrespective whether it warrants a challan in Court or not. In the final analysis the conclusion of Rizvi, J. that "the High Court in exercise of its writ jurisdiction cannot scrutinise the order of reference made by the Commissioner" is based on the interpretation of section 3 of the Act that the Commissioner can make a reference to the Tribunal even after the F. I. R. is lodged and before any investigation by the police.

5. It would be useful to reproduce subsection 2 of section 3 of the Act which runs as under:

"3(2) Where a case is pending in a Court, the reference may be made at any time before the charge is framed against the accused: Provided that if the case is in respect of an offence specified in Part B of the First Schedule, the reference may be made at any time before the judgment is pronounced." There is no doubt that the language of subsection (2) of section 3 is wide enough to give jurisdiction to the Commissioner to refer the question of the guilt or innocence of any person accused of an offence specified in the First Schedule of the Act to the Tribunal even before any investigation has commenced by the police and immediately after the F. I. R. is lodged. Mr. Akhtar Ahmad Qazi for the petitioners conceded that the reference by the Commissioner to the Tribunal would not be illegal merely because he made the reference after the F.I.R. was lodged and before any investigation was commenced by the police. Whether the reference in these circumstances is good or bad would depend upon the circumstances of each case. The power of the High Court under Article 98 of the Constitution cannot be taken away L by the Legislature by merely empowering the Commissioner to make a reference to the Tribunal after the F. I R. was lodged. With utmost respect to the conclusion of Rizvi, J. that "the High Court in exercise of its writ jurisdiction cannot scrutinise the order of reference made by the Commissioner"; I regret I cannot agree with it. The conclusion, in the first place, (speaking with respect) is too broadly stated. Where a reference is made by the Commissioner as in the instant case of Mir Muhammad in respect of an offence which is not specified in the First Schedule to the Act, the reference would be without jurisdiction and would be quashed by this Court. There may be eases in the second place where the Commissioner may have made a reference after the investigation is completed by the police. In those circumstances M it may be possible to hold that the reference by the Commissioner to the Tribunal was bad as points do not emerge from the facts before him which, if established, would suffice for the conviction of. an accused for a criminal ,offence falling within the scope of the offence specified in the First Schedule, In the case of Sohrab, as would appear from the order of Faruqui, J. that it was admitted by the learned A. A.‑G. who appeared for the State, that there was no evidence whatever connecting him with the murder of Shaukatali. If there was no evidence connection Sohrab with the murder of Shaukatali, he cannot be said to have committed an offence specified in the First Schedule of the Act. The Commissioner is under a legal obligation to deal with a person accused of an offence specified in the First Schedule fairly, justly and equitably. He cannot be allowed to refer the case of a person against whom admittedly there is no evidence of an offence specified in the First Schedule of the Act. The case of Sohrab will be covered by the principle laid down in the Full Bench judgment of this Court in the case of Nawab Haji Muhammad Khan,

6. I am clearly of the view ‑that this Court has jurisdiction under Article 98 of the Constitution to scrutinise the order of/ reference made by the Commissioner.

7. The only point that remains now for consideration is as to what order I should pass. All that clause 26 of Letters Patent lays down is the method by which in the case of a difference of opinion, the difficulty is to be resolved. It would be the duty of the referee Judge to express an opinion on the point or points of difference and to return the case to the Division Bench seized of the case which must pronounce the final judgment according to the method provided by clause

26. In this connection I would refer to the case of Royal Calcutta Turf Club through Acting Secretary v. Laid Kishan Chand Manchanda (A I R 1943 Lah.84). I would, therefore, return the case after ex pressing my opinion that this Court has jurisdiction to scrutinise the reference made by the Commissioner to the Tribunal and that, in the circumstances of the present case, ‑the reference against the petitioners is bad. Date of hearing : 19th January 1965. H. T. RAYMOND, J.‑

These two petitions under Article 98 of the Constitution, one by Mir Muhammad and the other by Sohrab, in which the validity of a reference under section‑3 of the West Pakistan Criminal Law Amendment Act was challenged, were heard in the first instance by a Division Bench consisting of Faruqui, J. and Jamil Hussain Rizvi, J. The cases were heard at Karachi but Rizvi, J. having gone back to Lahore at the end of his circuit sent his judgment to Karachi recording his opinion that both the petitions should be dismissed. Faruqui, J. wrote a separate judgment differing from Rizvi, J. The matter then came up before the Senior Judge Inamullah, J. and he agreeing with the view of Faruqui, J. has come to the conclusion that the reference in the case of both the petitioners was bad and should be quashed. As Rizvi, J. was not now available at Karachi the Senior Judge has constituted the present Bench in place of the original Bench to deal with the matter under clause 26 of the o Letters Patent. He has relied upon the decision of a Full Bench of the Lahore High Court reported in A I R 1943 Lah. 84 where a similar situation had arisen and in which a new Bench was constituted. In view of the fact that the third Judge has agreed with the opinion of one of the two Judges of the original Bench we adopt the opinion of the majority and we declare that the reference to the Tribunal by the Commissioner, Khairpur in the case of the two petitioners Mir Muhammad and Sohrab is bad and to that extent it is quashed. The learned Additional Advocate‑General appearing for the State has said that this is the correct position in law to be taken. K.B.A. Petitions accepted.