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Civil Petition for Special Leave to Appeal No. 2‑P of 1970, decided on 28th March 1970.
(On appeal from the order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 1st October 1969, in Writ Petition No. 243 of 1969).
----S. 3‑Whether case can be withdrawn from ordinary criminal Court and referred to tribunal constituted under West Pakistan Criminal Law Amendment Act, 1963 on ground that in view of circumstances of case evidence for prosecution may not be believed by an ordinary Court‑Leave to appeal granted by Supreme Court to consider question‑ Constitution of Pakistan (1962), Art. 58 (3).
Maqbul Ilahi Malik, Advocate Supreme Court instructed by Amirzada Khan, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 28th March 1970.
‑On the 13th January 1966 Fazal Dad lodged an F. I. R. stating that the present petitioners set fire to chhappar of his brothers, Awal Dad and Hassan Dad at night and that as they came out of the chhappar, the petitioners, who had been armed with guns, fired shots at Awal Dad and Hassan Dad which hit them. The chhappar was destroyed by fire. The petitioners were challaned under sections 307 and 436, P. P. C. The Court of inquiry examined some witnesses including the informant, the injured Awal Dad and Hassan Dad and the medical officer. Before the conclusion of the inquiry, the case was withdrawn at the instance of the prosecution and the Commissioner, Peshawar Division was moved to refer the case to a tribunal constituted under the West Pakistan Criminal Law (Amendment) Act, 1963. The Commissioner, by his order dated 14‑3‑1968, referred the case to such tribunal. The petitioners then filed an appeal against the reference made by the Commissioner, but it was dismissed by the Home Secretary to the Government of West Pakistan by his order dated 14‑6‑1969. Thereafter, the petitioners made a writ petition in the High Court of West Pakistan, Peshawar Bench, for setting aside the orders of the Commissioner and the Home Secretary and for a direction that the petitioners should be tried by the ordinary Court of law. A Division Bench of the High Court dismissed the writ petition in limine.
It appears that the Commissioner stated the following reason in support of his order referring the case to a tribunal;
"As the occurrence took place at night and accused were identified by the witnesses with the aid of the light of the fire which had been set to the chhappar, it is doubtful whether the evidence regarding the identification would be believed in a Court of law."
Learned counsel for the petitioners submits that the above reason for referring the case to a tribunal is not relatable to any of the prescribed reasons for making a reference. He further contends that the mere apprehension that the evidence with regard to the identity of the accused may not be believed by an ordinary Court is not a valid reason for referring the case to a tribunal. The point raised appears to be of substance and merits considera tion. Leave is, accordingly, granted as prayed. Security shall be in the sum of Rs. 1000.
Leave Refused.
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