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Petition for Special Leave to Appeal No. 39‑P of 1970, decided on 3rd April 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 6th March 1970, in Writ Petition No. 632 of 1966).
----Ss. 3 & 25‑Commissioner's consideration of question whether reference should be made to Tribunal‑Must proceed after giving opportunity of hearing to party concerned‑Reference made without giving such opportunity‑Illegal‑West Pakistan Criminal Law Amendment Act, 1963, having, however, been repealed, Provincial Government advised to cancel reference to Tribunal and to remit case to ordinary Courts for trial.
Home Secretary to the Government of West Pakistan v. Jan Muhammad P L D 1969 S C 333 rel.
Muhammad Nazar Khan, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 3rd April 1970.
‑A case under sections 302, 307 read with section 34, P. P. C. was registered against the petitioners on 22nd April 1965. The Commissioner, Peshawar Division, by order dated the 17th August 1966, referred the question of their innocence or guilt to a Tribunal under section 3(i) of the West Pakistan Criminal Law (Amendment) Act, 1963, then in force. The petitioners filed a revision petition under section 19 of the Act and maintained that the Commissioner ought to have heard them before making the order of reference. The revision petition was dismissed whereupon the petitioners moved the High Court in writ jurisdiction reiterating the plea that an order of reference passed in the absence of the accused person is without lawful authority.
The learned Judges in the High Court dismissed the writ petition on the 6th March 1970, on the finding that the illegality of the order of the Commissioner was cured by the hearing given to the petitioners by the Member, Board of Revenue.
The view adopted by the High Court is contrary to the decision in Home Secretary to the Government of West Pakistan v. Jan Muhammad (PLD1969SC333). The reference made by the Commissioner is, therefore, without lawful authority, but instead of giving leave to, appeal at this late stage, we would conclude by pointing out to the Provincial Government that in view of the repeal of the West Pakistan Criminal Law (Amendment) Act and the inordinate delay which has already taken place in bringing the petitioners to trial, the reference to the Tribunal may be cancelled and the case against the petitioners be sent to a Court of competent jurisdiction under the Code of Criminal Procedure.
With the observations made above the leave to appeal is refused.
Leave to appeal refused.
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