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Criminal Revision No. 325 of 1963, decided on 10th August 1964.

S. 5 (2) read with West Pakistan Conciliation Courts Rules, 1962, r. 13(1) Chairman of Union Council unable to act as Chairman of Conciliation Court‑Controlling Authority alone competent to appoint another member as Chairman‑Appointment of Chairman, in such case, by members themselves‑Improper.

Ss. 5 (4) (b), 8 (3), 8 (4) & Sch., Part II read with West Pakistan Conciliation Courts Rules, 1962, r. 16 (b)‑Dispute, falling under Part II of Schedule, referred to Conciliation Court‑Failure of any one of parties to appear or to nominate representatives‑Results in automatic failure of conciliation and renders Conciliation Court functus officio‑Court, under circumstance, has no option but to issue failure certificate ‑ Any decision given by Court on merits‑Without jurisdiction =Party at liberty to pursue remedy in ordinary Courts without filing an appeal to forum provided by Ordinance‑Bar of res judicata contained in S. 8(4)‑Operative only if Court has decided matter in accordance with law.

Yusofalli Mulla Noorbhoy v. The King P L D 1949 P C 108 ref.

r. 16(b) Expression "shall record a finding that the conciliation has failed and may issue a certificate to that effect"‑Word "may" Mandatory and not permissive.

S. Usman Ali Shah for Petitioner.

Khan Abdul Qayum Khan for Respondent.

S. G. Ali Shah Bokhari, Assistant A.‑G. for the State.

Dates of hearing: 6th and 7th July 1964.

For the purposes of this revision petition the following statement of facts would suffice:

Mst. Said Khanam instituted a complaint under section 448, P. P. C., against her son Abdul Jabbar respondent in the Court of Sayed Akbar Ali Shah, Magistrate 1 st Class, Darband on 29‑3‑62. The learned Magistrate after recording the preliminary statement of the petitioner issued summons to the accused for 5‑4‑62, at Kot Najibullah. On 5‑4‑62, the parties expressed their willingness to refer their dispute to the Conciliation Court. The Magistrate, therefore, recorded an order that the case should come up at Haripur on 10‑4‑62. On 10‑4‑62, the Magistrate recorded an order that the parties had expressed their willingness to refer dispute to Conciliation Court, hence the file be sent to Chairman, Kot Najibullah Union Council. The learned Magistrate recorded further order in the order sheet to the ‑effect that since the Chairman of the Union Council was related to the parties and had expressed his unwillingness to act as Chairman, therefore, someone else, according to the wishes of the parties should discharge the function of the Chairman. The case came up before Union Council, Kot Najibullah on 11‑5‑62. Sardar Muhammad Ashraf, Chairman, Union Council recorded an order in vernacular to the effect that the case came up before the Union Council and that Haji Karimdad, Member of the Union Council was unanimously appointed as the Chairman and the file be entrusted to him for conciliation. The case came up before the Conciliation Court with Haji Karimdad as Chairman on 20‑5‑62, and the said Chairman recorded an order that the parties had been asked to produce their evidence on 1‑6‑62. There is a note in the order sheet to the effect that the complainant was absent. On 1‑6‑62, the Chairman Conciliation Court recorded an order to the effect that the accused was present while the complainant and his Member Muhammad Zaman were absent, while other Members were present. It was further ordered that the case to come up for decision on 18‑6‑62. On 20‑6‑62, the Conciliation Court, comprising of Haji Karimdad as Chairman, Muhammad Fazil, Karam Elahi and Allah Din as Members in the absence of the complainant and of course without recording her evidence dismissed the complaint, holding that the accused was owner of the house in respect of which the complainant had instituted a complaint under section 448, P. P. C., for having committed criminal trespass.

2. It is important to note here that on 25‑5‑62, the petitioner Mst. Said Khanam gave an application to the Conciliation Court, praying that the complaint be sent back to the Court in which she had filed the complaint on two‑fold ground (1) that she was a pardahnashin lady belonging to a respectable family and could not make appearance before the Union Council and (2) that she had no confidence in any Union Council whatsoever. On this application Haji Karimdad and some other Members made a note that they could not take any action on the application in that the case had been sent to them for decision by the E. A. C., who should be moved for the transfer of the case. Notwithstanding the decision by the Conciliation Court dated 20‑6‑62, Sardar Muhammad Ashraf, Chairman, Union Council furnished a Certificate dated 11‑8‑62 to E. A. C. Darband along with file of the case, intimating the failure of the conciliation proceedings. The file came up before the Magistrate on 18‑6‑62, and the parties were summoned for 28‑6‑62. The Magistrate took cognizance of the complaint and after recording the evidence of the parties by his order dated 29‑5‑63, convicted the accused under section 448, P. P. C., and sentenced him to a fine of Rs. 200, or in default to undergo one month's R. 1. The accused preferred appeal against his conviction and sentence in the Court of Sessions Judge, Hazara.

3. At the hearing of the case on 1‑10‑63, on behalf of the accused a preliminary objection was raised that in view of section 8 (4) of the Conciliation Courts Ordinance, 1961, (herein after to be referred to as the Ordinance), the decision of the Conciliation Court dated 20‑6‑62, was final and the accused should not have been tried by the learned Magistrate. The Special Public Prosecutor tried to meet the preliminary objection by arguing that trial Magistrate had tried the complaint after the Chairman of the Union Council concerned had issued a certificate recording the failure of conciliation and the trial of the complaint was, therefore, in conformity with the provisions as laid down in section 10 of the Conciliation Courts Ordinance." The prelimi, nary objection found favour with the learned Sessions Judge, Mr. Salim Mazhar, who held the Certificate, intimating failure of Conciliation by Sardar Muhammad Ashraf Chairman, Union Council, was not in order for two‑fold reason, (1) that he "did not act as Chairman of the Court constituted for the trial of the present complaint but instead of him Haji Karim Dad was appointed to act as Chairman who has not issued any such Certificate, and (2) "the contents of this Certificate would show that though the prescribed form has been used for the purpose but the contents are different and thus it is not a proper Certificate indicating the failure of conciliation." In the result, the learned Sessions Judge held that "the trial Magistrate was not competent to try this complaint as he had no jurisdiction." He accordingly accepted the appeal, set aside the conviction and sentence of the accused and acquitted him. The complainant feeling aggrieved has come up on revision challenging the acquittal of the accused.

4. S. Usman Ali Shah learned counsel for the petitioner complained that the order of the learned Sessions Judge acquitting the respondent could not be sustained, in that the order of the Conciliation Court dated 20‑6‑62 was vitiated for non appearance of the petitioner before the Conciliation Court and since the offence complained of pertained to Part 11, the Chairman of the Conciliation Court was under legal obligation to "record a finding that the conciliation has failed", as provided by rule 16 (b) of the Conciliation Courts Rules, 1962, (hereinafter to be referred to as the Rules) and the Conciliation Court was under legal obligation to "issue a Certificate to that effect". It was argued that since the conciliation had failed, the Conciliation Court was automatically rendered functus officio and any decision by the Court was without jurisdiction and as such was void and, therefore, the provision of section 8, subsection (4) could not be invoked, in that the said provision could be invoked only in a case "decided by a Conciliation Court in accordance with the provisions of", the Ordinance. It was also argued that the Conciliation Court was not properly constituted, in that when the Chairman of the Union Council, namely, Sardar Muhammad Ashraf intimated his decision not to act as a Chairman of the Conciliation Court, the Chairman of the Conciliation Court had to be appointed by the Controlling Authority as contemplated by section 5 of the Ordinance read with rule 13 of the Rules, and that the Members of the Union Council could not appoint a Chairman of the Conciliation Court.

5. Khan Abdul Qayum Khan, learned counsel for the respondent, in defence of the order of acquittal argued that under the scheme of the Ordinance and the Rules framed, the Certificate of Failure of conciliation was to be furnished by the Chairman of the Conciliation Court and not by the Chairman of the Union Council, as in the instant case, and that, at any rate, the decision of the Conciliation Court, discharging the accused could not be called into question under section 8 (4) of the Ordinance.

6. S. Ghazanfar Ali Shah Bokhari supported the learned counsel for the petitioner and argued that since the complaint pertained to Part II of the Schedule it could be taken cognizance of by the Conciliation Court only if the parties agreed to submit themselves to its jurisdiction and that since in the instant case the petitioner had refused to enter appearance before the Union Council or the Conciliation Court, under rule 16 of the Conciliation Court was automatically rendered functus officio and the Court was under obligation to record the finding that the conciliation has failed and was obliged to issue a Certificate of Failure if so desired. It was, therefore, argued that the finding of the Conciliation Court discharging the accused was without jurisdiction and no order in eye of law.

7. The decision of the case turns on the decision of the question whether in the facts and circumstances of the case the final order dated 20‑6‑62, of the Conciliation Court dismissing the complaint and discharging the respondent is without jurisdic tion and vitiated. A subsidiary question would arise in case the first question is answered in the affirmative whether the acquittal of the respondent by the learned Sessions Judge could be sustained on the ground that the Magistrate was precluded by the provision of section 8 (4) to take cognizance of the complaint after the decision of the case by the Conciliation Court.

8. The answer to the principal question depends upon the construction of certain provisions of Ordinance of 1961, and of the Rules. The first provision which is material to the discussion is section 5, which reads thus:‑

"5. Conciliation Courts, their composition, etc.‑(1) A Conciliation Court shall be a body consisting of a Chairman and two representatives to be nominated, in the prescribed manner, by each of the parties to the dispute:

Provided that one of the two representatives so nominated shall be a member of the Union Council concerned.

(2) The Chairman of the Union Council shall be the Chairman of the Conciliation Court, but where he is, owing to illness or any other cause, unable to act as Chairman, or does not, on account of any personal consideration, wish to do so, or his impartiality is challenged by any party to the dispute, any other person appointed in the prescribed manner, not being a person nominated by any party, shall be the Chairman of the Court.

(3) If either party to the dispute consists of more than one person, the Chairman shall call upon the persons constituting that party to nominate the two representatives on its behalf, and if they fail so to nominate, shall authorize any one of such person to do so, and thereupon the person so authorized shall alone have the right to nominate such representatives.

(4) Where representatives required under this section to be nominated are not nominated within the prescribed time, then,‑

(a) if the case falls under Part I of the Schedule, the Conciliation Court shall, without such representatives, be deemed to have been validly constituted for the purposes of this Ordinance, and conciliation shall proceed accordingly; and

(b) if the case falls under Part II of the Schedule, the Chairman shall issue a certificate that conciliation has failed."

It will be plain from the language of the section that a Conciliation Court comprises of "a Chairman and two represen tatives to be nominated, in the prescribed manner, by each of the parties to the dispute". Subsection (2) states that the Chairman of the Union Council "shall be the Chairman of the Conciliation Court", but where for some reasons stated therein (owing to illness or any other case) he is "unable to act as Chairman‑any other person appointed in the prescribed manner'‑shall be the Chairman of the Court." Subsection (3) of section 5 prescribes procedure for the appointment of the two representatives on behalf of the parties. Subsection (4) prescribes two contingencies where the parties fail to nominate their representatives within the prescribed time. Clause (a) deals with the case of the failure in a case which falls under Part I of the Schedule under which notwithstanding the failure of the parties to nominate their representatives the conciliation proceedings would continue without such representatives. Clause (b) pertains to the case which falls under Part II of the Schedule under which the failure to nominate representatives brings about the failure of conciliation and the Chairman is under legal obligation to "issue 4 Certificate that conciliation has failed." In other words, if the case falls under Part II of the Schedule the failure to nominate representatives by any one of the parties brings about automatic failure of the conciliation, and renders the conciliation Court as functus officio.

9. The next provision material to the discussion is section 8 which is in the following terms:‑

"8. Finality of the decisions of Conciliation Courts.‑(1). Where in a case referred to conciliation under this Ordinance the decision of the Conciliation Court is unanimous, or, if the case falls under Part I of the Schedule, the decision is by a majority of four to one, the decision shall be binding on the parties and shall be enforceable in accordance with the provisions of this Ordinance.

(2) If the decision of a Conciliation Court is by a majority of three to two, and the case falls under Part I of the Schedule, any party may, within thirty days of the decision, apply, in the prescribed manner,‑

(a) to the Controlling Authority, if the case relates to a matter falling under Section A of that Part, or

(b) to the District Judge, if the case relates to a matter falling under Section B thereof, and the Controlling Authority or the District Judge, as the case may be, if satisfied that there has been a failure of justice, may set aside or modify the decision, or direct that the dispute be referred back to the Conciliation Court for recon sideration.

(3) If the decision of a Conciliation Court is not unanimous, and the case falls under Part II of the Schedule, the Court shall issue a certificate that conciliation has failed.

(4) Notwithstanding anything in any law any matter decided by a Conciliation Court in accordance with the provisions of this Ordinance shall not be tried in any Court, including a Conciliation Court."

Subsection (1) of section 8 provides that in case of a unanimous decision where the case falls under Part I or Part II of the Schedule the decision is binding on the parties. If the decision of the Court in a case which falls under Part I of the Schedule is by majority of four to one, even then the decision is binding on the parties. Subsection (2) provides the right of appeal to the parties and the forum in case which falls under Part I of the Schedule where the decision is by majority of three to two. Subsection (3) of section 8 provides that in case the decision of the Court in a case which falls under Part II is not unanimous "the Court shall issue a certificate that Conciliation has failed." Subsection (4) of section 8 raises a bar against any matter decided by a Con ciliation Court in accordance with the provisions of the Ordinance being tried in any Court. It will be manifest from reading the language of subsection (4) that the bar of res judicata is raised only when the Conciliation Court has decided the matter in accordance with Law. It is basic principle of Law that the decision by a Tribunal Court is operative only if the Court or Tribunal had jurisdiction and a decision by any Court, how‑high -soever, without jurisdiction; is no decision in the ‑eye' of law.

Section 10 provides the procedure on failure of conciliation and it states that where the Certificate is issued that conciliation has failed; (1) under clause (b) of subsection (4) of section 5, or (2) under subsection (3) of section 8 "any party to the dispute may seek its remedy in the Court in which it would in law be entitled to seek such remedy if this Ordinance had not been promulgated." In other words, the section provides that in case of failure of con ciliation the parties to a dispute may pursue their remedy in the Court competent to try such suits before the passing of the Ordinance.

10. The next provisions which are material to the discussion in hand are rules 13 and 16 of the Rules. Rule 13 provides the procedure in regard to appointment of the Chairman of the Con ciliation Court where the Chairman of the Union Committee for some of the reasons listed therein cannot act as a Chairman. In such a contingency the Controlling Authority alone is empowered to "appoint any Member of the Union Committee, not being a member nominated by any party as his representative to act as Chairman of the Conciliation Court". In other words, the appointment of the Chairman of the Union Council has been exclusively given to the Controlling Authority and no one else. In other words, the appointment of Karimdad as Chairman by the members themselves is not an appointment as contemplated by subsection (2) of section 5 read with rule 13 (1), and it, therefore, follows that the constitution of the Conciliation Court was improper. Rule 16 is very material to the discussion in hand, and as such may be reproduced below:‑

"16. If in any case, before the Chairman of the Union Committee, or on the day the case is fixed for hearing before the Conciliation Court, the petitioner fails to appear and if in the opinion of the Chairman of the Union Committee or of the Conciliation Court, as the case may be, he shows negligence in prosecuting his case,

(a) if the case relates to Part I, the application shall be dismissed for default, and

(b) if the case relates to Part II, the Chairman for the Union Committee or the Chairman of the Conciliation Court, as the case may be, shall record a finding that the conciliation has failed and may issue a certificate to that effect."

Rule 16 (a) deals with the case of failure of the petitioner to enter appearance (a) before the Chairman of the Union Council and (b) at the hearing before the Conciliation Court in case which falls under Part I, Rule 16 (b) in most unequivocal terms states that the Chairman of the Union Committee or the Chairman of the Conciliation Court "shall record a finding that the concilia tion has failed and may issue a certificate to that effect, when the petitioner fails to enter appearance. In other words, in all cases falling under Part II of the Schedule the non‑appearance of the petitioner before the Chairman of the Committee or the Chairman of the Conciliation Court automatically brings about the failure of the Conciliation Court and the jurisdiction of the Chairman of the Committee or the Conciliation Court which is otherwise seized of the case is put to an end by the mere expedient of the petitioner absenting himself and no option is left whatsoever with them but to (1) record the finding that the conciliation has failed and (b) issue a certificate to that effect. The word "may" in rule (b) is mandatory and not permissive. If the Chairman of the Union Committee or the Conciliation Court on account of the non‑appearance of the petitioner is under statutory obligation to record the finding that the conciliation has failed it automatically follows that he would be compelled to issue the Certificate of Failure and the petitioner would be at liberty to pursue his remedy in the Courts which are competent to try the case before the passing of the Ordinance. As already indicated, the petitioner has not entered appearance before the Conciliation Court and, therefore, under rule 16 the Conciliation Court was under statutory obligation to record a finding that the concilia tion has failed and this finding would render the Conciliation Court functus officio and, therefore, any decision given in the, case would be without jurisdiction and as such vitiated and the, party against whom such a decision is given can ignore it and need not file an appeal to the forum provided by the Act in case Js where decisions are given by the Tribunal not competent to decided the cases. I may borrow the words of Sir John Beaumont in Yusofalli Mulla Noorbhoy v. The King (P L D 1949 P C 108), when at page 113 his Lordship delivering the judgment for the Board, observed:‑‑

"The next contention was that as the orders of acquittal passed by the learned Magistrate in the first prosecution were not appealed from they became binding on the expiration of the period limited for appeal by Article 157 of the Limitation Act. This is merely to regard another aspect of the same problem. If the orders of acquittal were passed by a Court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal. But if the orders were a nullity there was nothing to appeal against. It may well be that the Government if embarrassed by the orders of acquittal, might have applied to the High Court to quash them, and in this connection reference may be made to the decision of the House of Lords in Crane v. Director of Public Prosecutions (1921) 2 A C 299. But the omission of Government to take such a step, which was not incumbent, could not convert an order made without jurisdiction into an order passed by a Court of competent jurisdiction."

11. It follows from the above discussion that (1) the Concilia tion Court was not properly constituted as Karimdad Chairman had not been appointed by the "Controlling Authority" as prescribed by rule 13, referred to above, and (2) the Conciliation Court was rendered functus officio for failure of the conciliation as a result of the non‑appearance of the petitioner as contemplated by rule 16, and therefore, the complaint was properly transferred to E. A. C. and the order of conviction sentencing the respondent could not be set aside by the learned Sessions Judge. I accordingly accept the revision petition, set aside the order of acquittal and remand the case to the learned Sessions Judge for decision of the appeal on merits.

K. B. A. Petition accepted.

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