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Civil Petition for Special Leave to Appeal No. 68 of 1970, decided on 9th April 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th January 1970, in Writ Petition No. 1296 of 1966).

------S. 3 read with West Pakistan Criminal Law Amendment Act (Repeal) Ordinance (XLII of 1969), S. 2‑Question whether case withdrawn by Commissioner from criminal Court and ordered to be tried under West Pakistan Criminal Law Amendment Act, 1963, when that Act was in force will be considered pending matter to be decided under that Act in spite of its repeal by Ordinance XLII of 1969 or whether it should be disposed of by ordinary criminal Court‑Special Leave to Appeal granted to consider question.

Ghazanfar Ali Gondal, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 9th April 1970.

This petition for special leave to appeal relates to the murder of one, Rutallon, who had left his house for the village mosque to offer Isha prayers on the 31st of December 1963, but has not been traced since then.

Suspecting a foul play, the petitioner Mansab Ali a brother of Rutallon, lodged a report with the Police Station on the 5th of January 1964. After investigation; the Police challaned the respondents Nos. 1 to 3 under section 302/364/201 of the Pakistan Penal Code. While the case was pending commitment inquiry, the Commissioner, Sargodha Division, by his order dated the 21st of July 1964, acting under section 3 of the West Pakistan Criminal Law Amendment Act, 1963 (hereinafter described as the Act), referred the case for trial by a Tribunal under that Act. The Tribunal found the respondents guilty and recommended that they should be sentenced to ten years' rigorous imprisonment each. The District Magistrate accepted this recommendation and convicted the respondents on the 10th of December 1964, and sentenced each one of them to ten years' R. I. Subsequently, the Commissioner in the exercise of his revisional powers enhanced the sentences of the respondents to 14 years' rigorous imprisonment each by his order dated the 26th of January 1965. The respondents filed a further revision before the Home Secretary to the Government of West Pakistan which was accepted and their convictions and sentences were set aside on the ground that their trial by the Tribunal was vitiated as it had proceeded jointly, both for scheduled and non‑scheduled, offences as described in the Act. Reliance for this view was placed on the Full Bench judgment of the High Court of West Pakistan in Khizar Hayat Khan's case (P L D 1965 Lah. 349). The Home Secretary further directed that the case shall proceed afresh in a normal Court of law. The petitioner challenged the orders of the Home Secretary in a Writ Petition (No. 1206 of 1965). In the meanwhile, the view of the High Court as reported in the case cited above, was reversed by this Court by its decision reported in P L D 1966 S C 793. Following this view, the High Court accepted the writ petition of the petitioner and quashed the order of the Home Secretary as without lawful authority. This order of the High Court which is dated the 15th of January 1969, would have had the effect of restoring the convictions and sentences of the respondents as ordered by the Commissioner in his revisional jurisdiction. It seems, to us, however, that this did not happen as the respondents had also filed a Writ Petition (No. 1296 of 1966) which was initially directed against the decision of the Home Secretary inasmuch as it directed their fresh trial. An additional ground in the writ petition was added on the 26th of September 1967, with the permission of the Court, to the following effect :‑

"That the Commissioner while deciding to refer the case to a Tribunal for the trial of the petitioners under West Pakistan Criminal Law Amendment Act, did not afford an opportunity to the petitioners to show cause. As such the reference, ab initio was void."

This ground was added because of a judgment of the Full Bench of the High Court in the case of Jan Muhammad v. Home Secretary, Government of West Pakistan (P L D 1968 Lah. 1455), which, however, was challenged by an appeal to this Court. This writ petition of the respondents (No. 1296 of 1966) remained pending in the High Court in wait for the decision of this Court on that point. This Court gave its decision on the matter whereby the view of the Full Bench of the Lahore Seat of the High Court was affirmed. The judgment of the Court is reported as Home Secretary, Government of West Pakistan v. Jan Muhammad (P L D 1969 S C 333). Relying on this decision by the Supreme Court, a Division Bench of the High Court has accepted the respondents' writ petition holding that the reference of their case to the Tribunal under section 3 of the Act without a show‑cause notice to them was without lawful authority and all the proceedings that had taken place in consequence thereof had no value in the eye of law. The learned Judges in the High Court have made a further direction that the case against the respondents shall be deemed to be pending before the ordinary Court, meaning thereby that it shall be disposed of by the ordinary criminal Court under the Criminal Procedure Code.

This petition for special leave to appeal calls in question this judgment of the High Court and the grounds urged are, firstly, that the trial of the respondents had concluded under the Act and that their convictions and sentences as recorded by the Commissioner in his revisional jurisdiction were revived by the High Court when it quashed the orders of the Home Secretary on the petitioner's writ petition whereby he had ordered a fresh, trial in the case. It is submitted by the learned counsel that some important and patent factors have escaped the notice of the learned Judges in the High Court which disentitled the respondents to a relief in writ jurisdiction which has been granted to them. It is pointed out that the respondents did not raise any objection to the reference by the Commissioner on the ground of want of notice to them before making it, although they had the right of a revision as provided by section 19(2) of the Act in this respect. It is also submitted that the defect of want of notice to them at the reference stage was more than covered by the full opportunities that the respondents had had in the revisional proceedings before the Commissioner and subsequently in the writ proceedings in the High Court instituted by the petitioner against the order of the Home Secretary. It is also submitted that the respondents' writ petition in the High Court (No. 1296 of 1966) should have been dismissed on the ground of laches alone, as it was filed a long time after the order of reference itself and after their trial and further proceedings against them, had concluded under the Act and became a closed chapter. One other point urged is that the learned Judges in the High Court were wrong in directing that the case against the respondents should now be deemed to be pending in the ordinary Court. According to the learned counsel, it is an erroneous direction because the matter should have been sent back to the Commissioner who was competently seized of it under the Act at the time when he made the reference in order that he should give an opportunity to the respondents to show cause against the reference and then proceed according to law. The Act has now been repealed and a question arises whether this case which had been competently withdrawn by the Commissioner from the criminal Court for trial under the Act at a time when he was competent to do so, will be considered to be a pending matter to be decided under that Act in spite of its repeal, or that it should disposed of by the ordinary criminal Court as directed by the High Court.

The contentions of the learned counsel merit a further consideration and we grant leave to appeal. The petitioner shall furnish security in the sum of Rs. 2,000 to cover the respondents' costs in case the appeal is dismissed.

Leave Refused.

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