Find a Lawyer

Petition No. 185 of 1967, decided on 23rd January 1969.

, S. 5(4) read with Sched., Part I ‑ Conciliation Court, constitution of ‑‑ Charge for offences under Part I of Sched. ‑ Accused refusing to nominate their representatives in Court‑Chairman nominating two persons as accused's representatives arid convicting them ‑‑ Conciliation Court held not legally constituted and proceedings without lawful authority.

Moinul Huq for Petitioners.

Syed Ishtiaq Ahmad for Respondent No 2.

‑This is an application under Article 93 of the Constitution challenging the validity of an order passed by a Conciliation Court convicting and sentencing the two petitioners to a fine of Rs. 200 and Rs. 50 respectively under sections 24, Cattle Trespass Act, 1871, 323 of the Pakistan Penal Code. The facts of the case are that the respondent No. 2 Hurmuz Ali Mian is alleged to have been assaulted by the two petitioners before us, namely, Abdul Barek Mia and Hossain Khalifa. When Hurmuz Ali Mian had caught a goat damaging the crop of Gopal and was taking it to the pound, the two petitioners came and beat Hurmuz Ali and snatched away the goat from him. A case was instituted in the Conciliation Court of Basail in the District of Mymensingh. Thereafter the Court was constituted and the petitioner was tried and sentenced as stated earlier.

Mr. Moinul Huq, learned Advocate for the petitioner, has challenged the legality of the order of the Conciliation Court on two grounds, firstly, that the Conciliation Court was not legally constituted and secondly that there is no evidence against the petitioner No. 2, and, as such, his conviction is based on no evidence at all.

Section 5 of the Conciliation Courts Ordinance, 1961, provides that 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. Sub section (3) of section 5 provides that 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 so fail to do he (the Chairman) shall authorise any one of the persons of that party to nominate the representatives whereupon the person so autho rised, shall alone have the right to nominate such representatives. Subsection (4) of the said section provides further that where the representatives required under this section to be nominated are not nominated within the prescribed time, then if the case falls under Part 1 of the Schedule to the Ordinance, the Concili ation Court shall, without such representatives, be deemed to have been validly constituted for the purpose of the Ordinance, and the conciliation shall proceed accordingly, and if the case falls under Part II of the Schedule, then the Chairman shall issue a certificate that conciliation has failed.

In the present case, according to Mr. Moinul Huq and as disclosed by the Court, it is found that the petitioners before us, who were accused before the Conciliation Court on 17‑1‑67, on being asked to nominate their representatives, refused to do so. Again on 22‑1‑67 they refused to nominate their representa tives. The complainant party, of course, had nominated their two representatives. On the refusal of the accused to nominate their representatives the Chairman nominated two persons to be representatives of the accused.

Mr. Moinul Huq, learned Advocate, has taken exception to this procedure of the Chairman in constituting the Court to be in violation of the law. We have already referred to the provisions of section 5 of the Ordinance which are relevant for the purpose, with regard to the constitution of the Court. We agree with Mr. Moinul Huq that in the present case the Conciliation Court was constituted by persons unauthorized and, as such, was not legally constituted and, therefore, the proceedings of the Conciliation Court must be held to be without any lawful authority. On this point alone, the entire proceedings fail and the Conciliation Court's judgment must be set aside. But with regard to the second point of Mr. Moinul Huq, we feel that we should say a word. We find from the records that there is no evidence whatsoever against the petitioner No. 2 Hossain Khalifa and we are surprised as to how the Conciliation Court could have, without any evidence against Hossain Khalifa, convicted him.

We accordingly make this Rule absolute, set aside the conviction and sentence of the petitioners on the grounds, stated above, and hold that the constitution of the Conciliation Court was without any lawful authority. There will, however, be no order as to costs of this Rule.

The fines, if realised, may be refunded.

‑I agree.

S. A. H. Rule made absolute.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.