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Civil Appeals Nos. 14‑P and 15‑P of 1970, decided on 5th December 1972.
(On appeals from the judgments and orders of the High Court of West Pakistan, Peshawar Banch, Peshawar, dated the 26th March 1970 and 6th March 1970, in Writ Petition No. 308 of 1967 and Writ Petition No. 61 of 1967).
West Pakistan Criminal Law Amendment Act (VII of 1963),
Ss. 3 & 25 ‑Case sought to be referred to Tribunal for trial under S. 3 ‑Person affected entitled to notice of proceedings and to have a right of hearing ‑Orders passed without complying with such requirement of law ‑Void ‑Cases ordered to go to ordinary criminal Courts for trial.
Home Secretary to the Govern went of West Pakistan, Lahore v. Jan Muhammad P L D 1969 S C 333 and Mansab Ali v. Amir PLD1971SC124rel.
C. A. No: 14‑P of 1970
M. Zahural Haq, Advocate Supreme Court instructed by Nur Ahmad Khan, Advocate‑on‑Record for Appellants.
Fakhre Alam, Advocate‑General, North‑West Frontier Province instructed by Abdul Waheed.Khan, Advocate‑on‑Record for the State.
C. A. No. 15‑P of 1970
Dr. Abdur Rahim, Advocate Supreme Court instructed by Amirzada Khan, Advocate‑ on‑Record for Appellants.
Fakhre Alam, Advocate‑General, North‑West Frontier Province instructed by Abdul Samad Khan, Advocate‑on‑Record for the State.
Date of hearing : 5th December 1972.
In both these appeals, by special leave, the question which arises for decision is ay to whether a person, whose case is sought to be referred to a Tribunal under section 3 of the West Pakistan Criminal Law (Amendment) Act of 190 for trial, is entitled to police of the proceedings and to be heard at the proceedings before the order of reference is made.
Learned counsel appearing in these appeals point out that this question is now concluded by two decisions of this Court in the cases of Home Secretary to the Government of West Pakistan, Lahore v. Jan Muhammad (PLD1969SC333) and Mansab Ali v. Amir (PLD1971SC 124).
It was held by this Court the above‑mentioned cases that in actions in which the Commissioner decides to refer the question of guilt or innocence of an accused person to the decision of a Tribunal are "proceedings" within the meaning of section 25 of the above‑mentioned Act and, therefore, the parties have a right of hearing before air order under section 3, subsection (1). is made. An order passed without complying with this requirement of law which is a mandatory condition for the exercise of jurisdiction lay the Tribunal is void, arid, therefore, since the order passed by tire Commissioner is ab initio illegal, the entire proceedings based as on such an illegal order would also be tainted with illegality.
The learned Advocate‑General appearing for the North. West Frontier Province concedes that this is now the legal position. These appeals must, therefore, be allowed and the orders of the respective Commissioners referring these cases to the Tribunal set aside.
The result of this will be that these cases will now go before the ordinary criminal Courts for trial.
Order accordingly.
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