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P L D 1980 Quetta 1

Before Mir Khuda Bakhsh Marri, C. J. and Mir Hazar Khan Khoso, J

Mir DOST MUHAMMAD-Petitioner

Versus

GOVERNMENT OF -BALUCHISTAN AND 3 OTHERS-Respondents

Constitutional Petition No. 47 of 1974, decided on 31st May, 1979.

(a) Interpretation of statutes-

-- Statute providing a procedure for doing of a thing in a particular manner-Such thing should be done in that manner or not done at all-Procedure laid down for taking proceedings before a Court or Tribunal-Such procedure, construed to be imperative and condition precedent to conferring jurisdiction upon a Court or Tribunal-Noncompliance with such procedure would invalidate all proceedings,. orders made or passed by same or any other authority-West Pakistan Criminal Law (Special Provisions) Ordinance (II of 1968).

It is well-settled principle of law that in a case where Statute provides a procedure for doing of a thing id a particular manner, that thing should be done in that manner and in no other way or it should not be done at all. Indeed such Statute impliedly prohibits doing of thing in any other manner; particularly when the procedure is laid down for taking proceedings before a Tribunal or a Court where such procedure before a Court or Tribunal is usually construed to be an imperative one as doing of the act or a thing under that Statute is a condition precedent to conferring upon the jurisdiction on a Court or a Tribunal as the case may be. The compliance of such act or thing in no way could be either ignored or dispensed with. Their noncompliance would certainly invalidate all proceedings, orders made or passed by the same authority or any other authority either superior or inferior thereto in respect of the same.

Hamesh Gul v. The Crown P L D 1955 Pesh. 1 ref.

E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 ; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others P L D 1971 S C 61 ; Muhammad Yousaf Khan Khattak v. S. M. Ayub curd 2 others P I, D 1972 Pesb. 151 and Crates on Statutory Laws, 6th Edn. rel.

(b) West Pakistan Criminal Law (Special Provisions) Ordinance (II of 1968)--

S. 5-Assistant Commissioner by neglecting to follow mandatory provisions of S. 5 of hearing accused, failing to give jurisdiction to Tribunal for initiating proceedings against him-Proceedings taken before Tribunal, order passed by it in appeal or revision by, any authority, appellate or revisional-Held, would be deemed to be coram non judice.

Yousaf All v. Muhammad Astam Zia and 2 others P L D 1958 S C (Pak.) 104 and Mansab Ali v. Amir and 3 others P L D 1971 S C 124-rel.

(c) Constitution of Pakistan (1973)--

--- Art. 199-Writ petition-Investigation of disputed facts-Petitioner's contention based on disputed question of fact-Court would desist from entering upon investigation of such facts.-[Question of fact]

(d) West Pakistan Criminal Law (Special Provisions) Ordinance (II of 1968)-

-.--- Ss. 4, 5 & 6-No provision made in Ordinance for holding of inquiries or investigations into scheduled offences-Provisions of S. 5 mandatory-Assistant Commissioner, after taking cognizance under S. 4, bound to refer case to Tribunal for trial-Direction to NaibTehsildar for holding investigation into matter-Held, illegal and void being without jurisdiction-Constitution of Tribunal, recording of evidence, recommendation of Tribunal, decision of Assistant Commissioner, decision of Deputy Commissioner in appeal and decision of Board of Revenue in revision based on illegal investigation-Held, illegal, void and without lawful authority..--(Question of fact].

Khlal Akbar v. State P L D 1979 Quetta 96 and Yousaf All v. Muhammad Aslam Zia and 2 others P L D 1958 S C (Pak.) 104 rel.

I. H. B: Hanafi for Petitioner.

Muhammad Yousuf Chaudhary, Asstt. A.-G. (Baluchistan) for Respondents.

Dates of hearing : 15th to 17th April, 1979.

JUDGMENT

MIR HAZAR KHAN KHOSO, J.-

The petitioner Mir Dost Muhammad an active member of the defunct National Awami Party was elected in the general election of 1970, a member from Mekran constituency in Provincial Assembly of Baluchistan, where his party in collaboration with Jamiat-ul-ulmai Islam formed Government headed by Sardar Ataullah Mengal. This Ministry somewhere in the beginning of 1973 was dissolved by the Central Government. In order to win Pakistan People's Party's majority in the Province, the Central Government machinated false criminal cases against most of the-members of defunct National Awami Party with no exceptions. The petitioner too was involved in a case where two coastal guards were killed and a few injured on evening of 19th December, 1973 near hills of Darbhol. The report of the incident was lodged before the Deputy Commissioner, Mekran with its copy sent to the Assistant Commissioner, Gwader. An investigation was carried out into the incident. The petitioner was arrested on 25th January, 1974 and produced alongwith four other persons before the Tribunal constituted under section 5 of the Criminal Law (Special Provisions) Ordinance II of 1968 (hereinafter referred as Ordinance) for trial for offence under section 302/307/324/325/326/109, P. P. C. etc. After examining the witnesses, the Tribunal submitted its report on 8th February, 1974 to the Assistant Commissioner, Gwader with powers of Deputy Commissioner under Ordinance, who convicted him for offences under section 302/ 307/324/325/326/109 read with section 34 of the Pakistan Penal Code and sentenced him to suffer rigorous imprisonment for 11 years for all offences ; totally.

Being aggrieved against the conviction and sentence, the appellant filed an appeal before the Deputy Commissioner Mekran, the appellate authority under Ordinance, who on 26th February, 1974 dismissed his appeal. The petitioner then filed a revision petition on 18th March, 1974 before the Revenue Commissioner, Baluchistan, the revisional authority under Ordinance, who too dismissed it. Finding no other remedy, the petitioner has challenged all the orders before this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan with prayer

(a) declare that the proceedings held against the petitioner have been taken without lawful authority and are of no legal effect ;

(b) quash the proceedings held against the petitioner as the proceedings are illegal and mala fide ;

(c) grant any other relief this Hon'ble Court deems fit and proper in the circumstances of the case ; and

(d) award costs.

We heard Mr. 1. H. B. Hanafi Advocate for the petitioner and Mr. Muhammad Yousuf Ch., the learned A. A: G. for the respondents Nos. 1 to 4 at length.

Mr. 1. H. B. Hanafi the learned counsel for the petitioner impugned the decisions of the respondents on the following three grounds-.

(i) that in flagrant violation of the provisions of section 6 of the Ordinance, the Tribunal was constituted in absence of the petitioner ; the petitioner was neither given an opportunity of being heard nor raising objection to nomination of the members ;

(ii) that the petitioner was deprived of his legal right of being represented by legal practitioner of his choice as provided under provisions of section 27 of the Ordinance and Article 10 of the Constitution ; and

(iii) that Mr. Abdullah Jan, the then Assistant Commissioner, Gwader being brother-in-law of Mr. Ghulam Qadir the then Chief Minister of the Pakistan People's Party in Baluchistan mala fidely-

(a) took cognizance of the case ;

(b) constituted the Tribunal ; and

(c) convicted the petitioner.

In order to support his first contention Mr. Hanafi relied upon subsection (3) of section 6 of the Ordinance which says "that no person shall be appointed as member of the Tribunal other than the President, except after giving the parties concerned an opportunity of being heard and considering objection if any to the appointment of such persons". Strengthening his plea the learned counsel made reliance on case of Hamesh Gul v. The Crown P L D 1955 Pesh. I, In that case, the Deputy Commissioner during the time of reference of the case of accused under section 11 of the N. W. F. C. R. of 1901, to Council of Elders had neither communicated the name of the members nor invited their objections. But later realising either himself or at somebody else's pointing that lacuna had been left in the case in so far as communicating the names of the members to the accused persons and inviting their objections were concerned. The Deputy Commissioner as such promptly recorded a joint statement of two accused to fulfil the conditions as laid down under the law. However, it was observed that such a belated communication of the names of the members to the accused person after the members had taken some proceedings in the case could not be said to be an effective compliance of the imperative provision of law. '

Mr. Muhammad Yousuf Ch., the learned A. A.-G. very frankly conceded to the proposition of law as was enunciated in case of Hashim Gul. However, he vehemently disputed the facts as were disclosed by Mr. I. H. B. Hanafi. The learned A. A.-G. repudiating facts as stated by Mr. I. H. B. Hanafi, submitted that in fact the petitioner was present at time of the constitution of the Tribunal before the Assistant Commissioner who called for objections from all the accused, including the petitioner but they did not raise any objection to such constitution of the Tribunal. In support of his statement, the learned A. A.-G. relied on the affidavit filed by the Assistant Commissioner. The learned A. A.-G. further stressed that in token of their willingness to the constitution of the Tribunal, the Assistant Commissioner had obtained signatures of the other four accused persons, but inadvertently failed to get signature of the petitioner. According to him, the fact of failing to obtain signature of the petitioner alone or by itself was not sufficient to prove or establish that the petitioner was either not present or not heard by the Assistant Commissioner at the relevant time.

To substantiate his contention in respect of the presence of the petitioner before the Assistant Commissioner at the crucial time ; we call it now ; the learned A. A.-G. drew our attention to case diary of Ist February, 1974 which contained the name of the petitioner. According to the learned A. A: G. the entry of the name of the petitioner in diary of the day was sufficient proof to establish that also beyond shadow of doubt that the petitioner was present before the Assistant Commissioner at that time. On such submission and request of the learned A. A: G., we indeed perused the daily diaries of the case, particularly of the Ist February, '1974. To our utter surprise, we found and noted with regret that the learned A. A.-G. had drawn our attention to an entry showing the name of the petitioner in the title of the case only, wherein besides the name of the five accused persons including the petitioner, names of two absconding accused persons, namely Hussain and Noor Muhammad were also written just below the name of the petitioner. Undisputedly such type of entries in the daily diaries were not only found on the crucial day but also on many other dates of the case during the proceedings. We immediately draw attention of the learned A. A.-G. to such entries as having. been made at various dates of the case and explained him the fact that if his such contention was accepted, it would naturally lead to an absurd situation. Then it could also be presumed that the two absconding accused Hussain and Noor Muhammad whose names were shown m the diary were also present before the Assistant Commissioner and were heard by hire. The learned A. A: G. had no explanation to offer. Certainly he should have none. The facts as discussed above not only replied but also repelled the absurd and fallacious contention of the learned A. A: G. Indeed, had the petitioner been present, his signature like his other co-accused must have been obtained by the Assistant Commissioner, or his presence might had been made in the diary of the day. However, in case the signatures of all the accused persons had rot been taken by the Assistant Commissioner at all, the position of the case with regard to this controversial issue might had been different. 'The case might have taken some other shape rather than the present one. Besides, the learned A. A: G's. contentions might have some meaning or substance.

These facts definitely lead us to the conclusion that at the time of the constitution of the Tribunal, the petitioner was neither present nor was heard by the Assistant Commissioner. It is really not only a sad but a lamentable state of affairs. Heinous case of the nature, where two coastal guards were killed and many injured was dealt with in a very hasty. and haphazard manner. Not only detrimental to the interest of the petitioner but also to that of the complainant.

This act of the Assistant Commissioner was not only a simple negligence to follow the requirement of the law but indeed was flagrant violation of the mandatory provisions of section 6 of the Ordinance.

It is well settled principle of law that in a case were Statute provides a procedure for doing of a thing in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all. Indeed such Statute impliedly prohibits doing of thing in any other manner ; particularly when the procedure is laid down for taking proceedings before a Tribunal or a Court where such procedure before a Court or Tribunal is usually construed to be an imperative one as doing of the act or a thing under that Statute is a condition precedent to conferring. upon the jurisdiction on a Court or a Tribunal as the case may be. The compliance of such act or thing in no way could be either ignored or dispensed with. Their non-compliance would certainly invalidate all the proceedings, orders made or passed by the same authority or any other authority either superior or inferior thereto in respect of the same. Our views get support from cases :

(i) E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 ,;

(ii) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division Lahore and 2 others P L D 1971 S C 61 ;

(iii) Muhammad Yousaf Khan Khattak v.. S. M. Ayub and 2 others P L D 1972 Pesh. 151 ; and

(iv) In the Statutory Laws, 6th Edn., Craies has said that :--

"When a Statute confers jurisdiction upon a Tribunal of a limited authority and statutory origin, the conditions and qualifications annexed to the ground must be strictly complied with."

On the facts discussed above and the authorities relied upon ; without hesitation, we hold that the Assistant Commissioner by neglecting to follow .the mandatory provisions of section 5 of the Ordinance, of hearing the petitioner, in fact failed to give jurisdiction to the Tribunal for initiating, proceedings against the petitioner. Consequently, proceedings taken before the. Tribunal, order passed by it or, thereon, in appeal, or revision, by any authority, whatsoever, appellate or revisional, would be deemed to be Coram non judice.' On the principles laid down in case of Yausaf Ali v. Muhammad Aslam Zia and 2 others P L D 1958 S C (Pak.) 104, which says :

"Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation. as the void order on which they are founded."

On the same proposition, the Supreme Court of Pakistan in case of Mansab Alli v. Amir and 3 others P L D 1971 S C 124, has held :-

"It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and without jurisdiction."

In case of the petitioner

(i) the constitution of the Tribunal ;

(ii) the proceedings taken before such Tribunal ;

(iii) the recommendations made by it ;

(iv) the decision of the Assistant Commissioner based on such recommendations ;

(v) the decision taken by the Deputy Commissioner in appeal against the order of the Assistant Commissioner ; and

(vi) the decision taken by the Member Board of Revenue in revision ; are indeed nullity in eye of law and held as having been made without jurisdiction and lawful authority.

In support of his second contention Mr. I. H. B. Hanafi the learned counsel for the petitioner relied on section 27 of the Ordinance of 1968 and Article 10 of the Constitution of the Islamic Republic of Pakistan.

Section 27 reads :

"Appearance of legal practitioners.-In proceedings under this Ordinance before the Tribunal, the Deputy Commissioner, the Commissioner and Government, the parties shall be entitled to be represented by a legal practitioner of their choice."

Article 10 reads :

"(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) to (9)

To support factual side of his contention, the learned counsel for the petitioner placed reliance on the affidavit by Mr. Mobasher Ahmed Qaisrani Advocate, Karachi who is alleged to have attempted to defend the petitioner at the trial stage.

But the learned counsel for the respondents did not dispute the contention of the petitioner's counsel in respect of the provisions of section 27 of the Ordinance, 1968 and Article 10 of the Constitution of Pakistan. However, they vehemently attacked the affidavit of Mr. Mobasher Ahmed Advocate and submitted that its effect was neutralized by the counter affidavits. filed by Mr. Abdullah Jan, the Assistant Commissioner and the Tehsildar, Tump. There is much weight and substance in the contention of the learned counsel for the respondents. Indeed, the petitioner's contention is based on disputed question of facts. There are affidavits and counter affidavits filed by the parties. Evidently, the petitioner's contention would) require investigation of certain facts. We would certainly desist -from entering upon investigation of such disputed facts. The second contention as such is devoid of force and repelled accordingly.

In support of his last contention, the learned counsel for the petitioner at the very first instance challenged the so-called taking of the cognizance ; particularly in illegal manner or the way, by Mr. Abdullah Jan the then Assistant Commissioners Gwader. The learned counsel for the petitioner pointed nut that in fact Mr. Mustafa, the Captain of Pakistan Coastal Guards had taken no action against the petitioner and challenged only the accused Pir Bakhsh, Khan Muhammad, Saeed Muhammad and Ali Muhammad on 8-1-1974. The learned counsel further urged that it was evident from the diary of the day that the learned Assistant Commissioner, Gwader on such report of Captain Mustafa had taken the cognizance of the case under the provisions of section 4 of the Ordinance, 1968 against those four persons only. In view of such facts, the learned counsel vehemently, stressed that after taking of the cognizance under the provisions of section 4 of the Ordinance, the Assistant Commissioner was bound to have constituted a Tribunal for trial of the case as enunciated under sections 5 and 6 of the Ordinance and there is no provision in the Ordinance authorizing him to order the Naib-Tehsildar to further investigate into the matter ac the Ordinance was only promulgated for trial of offences but not for their investigations. There is substance in the contention of the learned counsel. The plain reading of the preamble of the Ordinance supports the contention of the petitioners' counsel. The preamble reads as under :

"Whereas it is necessary to make special provisions for trial of certain offences in certain areas of West Pakistan to meet the special requirements of those areas."

The Ordinance indeed was promulgated to make special provisions for trial of certain offences in certain areas of erstwhile province of West Pakistan. Nowhere the Ordinance makes provision for holding of inquiries or investigations into the Scheduled offences. The section 4 of the Ordinance speaks about taking of cognizance of the scheduled offences. It reads a; under :-

"Cognizance of scheduled offences.-(1) The Deputy Commissioner shall have exclusive jurisdiction to take cognizance of a scheduled offend committed within the district to which he is so appointed for the time being ; and such cognizance may be taken by him;

(a) upon receiving a complaint of facts which constitute such offence ;

(b) upon a report in writing of such facts made by a police officer ; or

(c) upon information received from any person other than a polio officer or upon his own knowledge or suspicion that such offence ha been committed;

Provided that cognizance of an offence, under section 14 shall not b taken except upon a complaint made by the husband of the woman or in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed."

In section 6 of the Ordinance, the Deputy Commissioner has to constitute a Tribunal for trial of the case under the provisions of section 5. Sections 5 and 6 are reproduced as under :

"5. Question of guilt or innocence to be referred to Tribunal.-The Deputy Commissioner taking cognizance of a scheduled offence shall constitute a Tribunal in accordance with section 6 and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such Tribunal.

6. Constitution of Tribunal.-(1) A Tribunal constituted for the purpose of section 5 shall consist of a Government official, not below the rank of Naib-Tehsildar, who shall be its President, and four other members, all to be appointed by the Deputy Commissioner.

(2) In appointing a person as a member, other than the President, the Deputy Commissioner shall have regard to the integrity, education, social status and representative character of such person.

(3) No person shall be appointed as member of the Tribunal, other than the President, except after giving the parties concerned an opportunity of being heard and considering objections, if any, to the appointment of such person."

Only on plain reading of section 5, we agree with the contention raised by the petitioner and hold that the provisions of section 5 are mandatory. The Assistant Commissioner after taking the cognizance under section 4 of the Ordinance was bound to have referred the case to tribunal for trial. His direction to Naib-Tehsildar for holding investigation into the matter is illegal and void as having been made without jurisdiction and lawful authority. The same view was taken by one of us in case of Khfal Akbar v. State P L D 1979 Quetta 96. In that case, it was held that the Deputy Commissioner under Ordinance II of 1968 after taking the cognizance of the offence was not competent to order for enquiry into the scheduled offences. It was further held that after taking the cognizance, the Deputy Commissioner was bound under section 5 of the Ordinance to refer the case to a Tribunal. Any investigation or enquiry ordered by him to be held by a subordinate Magistrate or levies was held to be ab initio illegal. Indeed no provision of law was placed before us by the respondent's counsel to show that the Naib-Tehsildar was competent for having investigated into the offences. Evidently the investigation as was conducted by the Naib-Tehsildar against the petitioner was made without jurisdiction and lawful authority. Subsequently filing of Challan before the Assistant Commissioner on 1st February, 1974 by the Naib-Tehsildar on such illegal investigation is held to be ab initio, illegal and void. In case of Yousaf Ali v. Muhammad Aslam Zia and 2 others, it has been held :

"Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."

Moreover, the diary off 1st February, 1974 is quite silent in respect of taking of the cognizance against the petitioners by the Assistant Commissioner on the so-called challan filed by the Naib-Tehsildar. The exact words of the. diary are reproduced here to give the clear view of the same :--

The diary itself confirmed the petitioner's contention that the cognizance of the case only . against the abovesaid four accused persons was taken on 8th, January, - 1978 by the Assistant Commissioner when petitioner Dost Muhammad was neither shown nor produced as an accused person before the Assistant Commissioner Gwader. Even on Ist of February, 1974, petitioner Dost Muhammad was not produced before the Assistant Commissioner. We have already discussed so in our judgment herein above. The Assistant Commissioner having not taken the cognizance of the case against the petitioner Mir Dost Muhammad, the constitution of the Tribunal recording of evidence, the recommendations of the Tribunal, the decision o the Assistant Commissioner, the decision of the Deputy Commissioner in appeal and the decision of the Member Board of Revenue in revision being based on illegal and void order as such are also, held to the illegal, void and without lawful authority as such of no legal effect.

We have already declared the constitution of the tribunal and the conviction awarded to the petitioner as void and illegal, we need not to go into details regarding the constitution of the tribunal and conviction awarded to the petitioner.

For the reasons discussed above, we accept the petition in respect of the petitioner only and declare that

(1) taking of the cognizance by the Assistant Commissioner on lst February, 1974 ;

(2) the investigation made by Naib-Tehsildar ;

(3) reference of the case under section 5 of the Ordinance to the Tribunal ;

(4) constitution of the Tribunal under section 6 on 2nd February, 1974 ; (5) recording of evidence against the petitioner before the Tribunal ;

(6) the recommendations made by the Tribunal to the Assistant Commissioner ;

(7) the conviction awarded by the Assistant Commissioner ; . (8) the decision in appeal by the Deputy Commissioner ; and (9) the decision of the Member Board of Revenue;

are illegal, void and made without lawful authority. However, in the peculiar circumstances of the case, we would not deem it fit or proper to grant costs in favour of any party ; as such we make no order as to costs.

Petition disposed of accordingly.

MIR KHUDA BUKHSH MARRI, J.-I agree with conclusion reached by my learned brother and bold that the petition be accepted and impugned order; are bad i4 law including the proceedings; and no costs.

S. Q. Petition accepted

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