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Art. 199‑Constitutional jurisdiction‑If a Court or a Tribunal exercised jurisdiction which was vested in it, High Court, held, could not interfere with its order on ground that while exercising such jurisdiction, that Court or Tribunal had taken an erroneous view on fact or even of law.

Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sind and another P L D 1984 Kar. 462 ref.

‑ Art. 199‑Constitutional jurisdiction‑Adequate remedy‑If a Tribunal acted under a special law and if that special law provided adequate remedy of correcting errors committed by such Tribunal in form of an appeal and or a revision, proper remedy for an aggrieved party, held, would be to avail of remedy provided for under special law and not to invoke High Court's constitutional jurisdic tion.

‑‑ Art. 1.99 ‑ Constitutional jurisdiction ‑ Adequate remedy ‑Where forums provided under special law failed to exercise jurisdic tion, High Court's constitutional jurisdiction, held, could be pressed into service.

Riaz Muhammad v. Member (Judi.), Board of Revenue, Baluchistan, Quetta and another P L D 1984 Quetta 138 ; Sharbat Khan and others v. Haji Gal Gul and others 1984 S C M R 616 ; Nek Muhammad and another v. The Member, Board of Revenue (Judi.), Quetta and 3 others P L D 1985 Quetta 63 ; Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 and Syed Aman.ullah v. Additional City Magis trate No. 2, East, Karachi and another P L D 1978 Kar. 934 ref.

Art. 199 ‑Criminal Procedure Code (V of 1998), S. 497 Criminal Law (Special Provisions) Ordinance (11 of 1968), S. 16 Constitutional jurisdiction‑Bail‑None of forums dilating upon question whether accused were entitled to bail or not on basis of material available on record and accused's bail application was declined merely on ground that case had been referred to a Tribunal under Ordinance 11 of 1968, held, it amounted to refusal to exercise jurisdiction vested in them warranting invoking of constitutional jurisdiction of High Court.

(e) Criminal Procedure Code (V of 1898)‑

‑‑ S. 497‑Bail‑No material available to conclude that accused had abused their right to apply for bail in a manner which had prevented progress in case before Tribunal‑Orders of forums below refusing bail to accused declared without lawful authority and of no legal effect and case remanded to forum below the direction to decide accused's bail application on merits.

‑‑ S. 497, proviso (ii)‑Bail‑If an accused made out a case under proviso (ii) to S. 497, Criminal Procedure Code, he would, held, be entitled to bail as a matter of right and not as a matter of grace.

(g) Criminal Procedure Code (V of 1898)‑

‑‑ S. 497‑Bail‑Accused person, held, was entitled to make efforts to obtain a bail which right could not be denied.

Sikandar Malik for Petitioners.

Yakub K. Eusufzai, A.‑G. oil Court's Notice.

Raja M. Afsar for Respondent No. 4.

Date of bearing : 5th May, 1986.

AJMAL MIAN, ACTG., C. J.‑This petition is directed against the orders dated 29‑1‑1985, 4‑9‑1985 and 28‑1‑1986, passed by respondents Nos. 3, 2 and 1 respectively.

2: The brief facts leading to filing of the above petition. are that on 31‑3‑1984 an F. 1. R. was lodged in respect of a quarrel pertaining to demolition of a wall resulting into causing injuries. The above F. I. R. was registered against the present three petitioners and two other caucused under section 307/34, P. P. C. for causing injuries to one Abdul Rahim, who was admitted in the hospital but on the following day he expired, therefore, the case was converted into under section 302;34, P. P. C. For the‑ purpose of the present petition it will be suffice to observe that the present petitioners, inter alia, moved bail application in question which was dismissed by respondent No. 3 by his aforesaid order dated 29‑1‑1985, then they went in appeal which was dismissed by aforesaid impugned order dated 4‑9‑1985. Their revision before the learned Member, Board of Revenue was also dismissed by the impugned order dated 28‑1‑1986, the petitioners being aggrieved by the above orders have filed the present petition.

3. In support of the above petition Mr. Iftikhar Muhammad, learned counsel for the petitioners has urged that the above respondents Nos. 1 to 3 have failed to exercise jurisdiction vested in them by not examining the case on the ground that the case was referred to tribunal for investigation.

4. On the other hand Raja M. Afsar, learned counsel appearing for private respondent has made the following submissions :‑

(i) That since the impugned orders have been passed by respondents Nos. 1 to 3 under a special law arid as the above respondents Nos. 1 to 3 are not subordinate to the High Court, this Court cannot exercise writ jurisdiction; particularly in view of the fact that the petitioners had exhausted the forums provided under the Ordinance II of 1968.

(ii) That the petitioners cannot claim bail as a matter of right and, therefore, they have no justifiable cause to file the present writ petition.

(iii) That the petitioners have in fact prevented the tribunal from making progress in the case by tiling various proceedings in obtain ing the bail, and therefore, they are not entitled to bail.

(iv) That it will be just and proper to issue a direction to the tribunal to expedite the recording of evidence and the finalisation of the case.

4. Mr. Yakub K. Eusufzai learned Advocate‑General appearing for the State has urged that since the impugned orders have been passed by the forums which were competent to pass the same, writ jurisdiction of this Court cannot be attracted to.

Mr. Iftikhar in furtherance of his above submission that respondents Nos. 1 to 3 have failed to exercise jurisdiction and, therefore, this Court can interfere with the above impugned orders in exercise of its constitutional writ jurisdiction has referred the following cases :‑

(i) Raz Muhammad v. Member (Judi.), Board of Revenue, Baluchistan, Quetta and another P L D 1984 Quetta 138, in which a division Bench of this Court in exercise of writ jurisdiction has admitted the petitioner to bail on the ground that there was gross abuse of jurisdiction vested in the M. B. R.

(ii) Sharbat Khan and others v. Haji Lai Gul and others 1984 S C M R 616. 1n the above case the facts were that an incident had taken place on 11‑2‑1981 near village Shinaponga in District Zhob in which two persons were murdered and two others received injuries as a result of gun fire. Upon the lodging of the complaint 13 accused were detained including the petitioners before the Supreme Court, their bail applications were rejected after taking of cognizance under Ordinance 11 of 1968 by the Assistant Commissioner Lower Zhob, the petitioners repeated their request for bait which was allowed. Against the above order the complainant party filed an appeal before the Commissioner, which was allowed and the bail order was cancelled. A revision filed before the Member, Board of Revenue was also dismissed. After that they filed a constitu tional petition in this Court which was dismissed.

The petitioners filed a petition for leave against the judgment of this Court dated 31‑10‑1983, which was converted into appeal and the petitioners were admitted to bail by the hon'ble Supreme Court. It was held that since the Additional Commissioner had ignored to consider the material on record, he exercised jurisdiction illegally and the order passed by him was not sustainable.

On the other hand Raja M. Afsar has placed reliance on the following cases:--

(i) Nek Muhammad and another v. The Member, Board of Revenue (Judi.), Quetta and 3 others P L D 1985 Quetta 63, in which the question for consideration before the Division Bench was whether the benefit provided for under the newly enacted proviso (3) to section 497, Cr. P. C. was applicable to a case triable under Ordi. nance II of 1968. It was held by the above Division Bench that since the above proviso has not been made applicable to the pro ceedings under the above Ordinance, the accused were not entitled to the above benefit. In that context it was, inter alia, observed that since the proceedings were taken by the functionaries established under Ordinance II of 1968 and the orders had been passed with jurisdiction, there was no scope for interference by the High Court in exercise of constitutional jurisdiction.

(ii) Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C: 139. In the above case the hon'ble Supreme Court while construing Article 98(1)(a)(ii) of the late Constitution of Pakistan, 1962 and Article 199(1)(a)(ii) of the Constitution of 1973 observed that expression "without lawful authority and of no legal effect" are terms of art and refers to jurisdictional defects as distinguished from a mere erroneous decision whether on question of fact or even of law. It was also held that a tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly and that mere fact that the decision is incorrect would not render the decision as without lawful authority warranting exercise of writ jurisdiction under the above articles.

Mr. Yakub K. Eusufzai, learned Advocate‑General has cited the following cases in support of his above submissions :‑

(i) Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sind and another P L D 1984 Kar. 462, in which a Division Bench of the Sind High Court while construing Article 9 of the Provisional Constitution Order which corresponds to Article 199 of the present Constitution, observed that there is a distinction between an act wholly, without jurisdiction and an act done in improper exercise of that jurisdiction. It was also observed that jurisdiction to decide either rightly or wrongly and that a wrong decision would not render the same as without jurisdiction.

(ii)Syed Amanullah v. Additional City Magistrate No. 2, East, Karachi and another P L O 1978 Kar. 934. In the above case a Division Bench of the Sind High Court while maintaining the order of instrument of custody of vehicles under section 516‑A, Cr. P. C. n a Criminal Court pending trial held that under Article 199 of he Constitution, the interference by the High Court in Constitutional jurisdiction is permissible only where a subordinate Court "" or a tribunal either exercises jurisdiction which it did not possess of, or exceeded its jurisdiction, or failed to exercise its jurisdiction.

5. There cannot be any cavil to the propositions of law that if a Court or a tribunal exercises jurisdiction which vests in it, the High Court cannot interfere with its order merely on the ground that while exercising such jurisdiction, the Court or the tribunal has taken an erroneous view on fact or even of law. It is also a well‑settled proposition of law that if a tribunal acts under a special law and if that special law provides adequate remedies for correcting errors committed by such a tribunal in the form of an appeal and/or a revision, the proper remedy ,6 for an aggrieved party is to avail of the remedies provided for under the special law and not to invoke the High Court's constitutional writ jurisdic tion. However, it may further be pointed Gut that it is also equally well, settled proposition of law that where in a case the forums provided under a special law fail to exercise jurisdiction, the High Court constitutional writ jurisdiction can be pressed into service. We may point out that in the above‑cited Supreme Court case, the honble Supreme Court granted bail to a petition for leave against the judgment of this Court whereby this Court had declined to exercise its constitutional jurisdiction in a bail matter decided under Ordinance II of 1968.

6. In the instant case question which requires consideration is, as t whether the forums provided under the Ordinance II of 1968 have either failed to exercise jurisdiction or have exercised their jurisdiction in manner which have resulted into miscarriage of justice. We have noticed) that none of the forums has dilated Upon the question, whether the D petitioners are entitled to bail or not on the basis of material available on record. The petitioner's bail application was declined merely on the ground that the case has been referred to a tribunal under Ordinance II of 1968, in our view this amounts to refusal to exercise jurisdiction vested in them warranting invoking of constitutional jurisdiction of this Court.

7. Adverting to Raja M. Afsar's contention that since the petitioners cannot claim bail as a matter of right, they have no justiciable cause for a writ petition, it may be pointed out that by now it is a welt‑settled proposition of law that if an accused makes out a case under proviso two to section 497, Cr. P. C. he is entitled to bail as a matter of right and not as a matter of grace.

8. As regards Raja M. Afsar's contention that the petitioners have prevented the Tribunal from proceeding with the case by filing bail applica tions and other proceedings arising there from, it will suffice to observe that an accused is entitled to make efforts to obtain a bail, which right cannot be denied. Furthermore, there is no material before us to conclude F that the petitioners have abused their right to apply for bail in a manner which has prevented the progress in the case before the Tribunal.

9. We, therefore, allow the above petition and declare the impugned orders of above respondents Nos. 1 to 3 as being without lawful authority and of no legal effect however, we remand the case to respondent No. 3 H with the direction to decide the petitioners' bail application on merits. There will be no order as to cost.

M. Y. H. Case remanded.

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