Law:

Section:

  (On appeal from the judgment and order of the High Court of West Pakistan, dated the 15th January 1970, in Writ Petition No. 1296 of 1966). (a) West Pakistan Criminal Law (Amendment) Act (VII of 1963) [as amended], Ss. 3 & 18-Reference to Tribunal-Accused entitled to be heard before reference could be made under S. 3 - Order made without affording opportunity of hearing - Void ab initio-All subsequent proceedings illegal-Mere fact that accused in his revision against order failed to raise objections in this behalf-Would not validate order. The right of an accused person to be heard before the ques tion of his guilt or innocence is referred to a Tribunal and section 3 of the Criminal Law (Amendment) Act, 1963 is recognised by section 18 of that Act which provides an appeal to the Govern ment and effective exercise of that right necessitated that the accused person should be heard before the Commissioner formed the opinion and gave reasons in support of the order of reference. 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 orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. If the order passed by the Commissioner under section 3 of the Criminal Law (Amendment) Act, 1963 referring the question of guilt or innocence of the accused to a Tribunal was illegal ab initio, the failure of the accused to raise this issue in the revision petitions filed by him before the Commissioner and the Home Secretary would not clothe that order with legality. Jan Mohammad v. Home Secretary, Government of West Pakistan P L D 1968 Lah. 1455 and Home Secretary, Government of West Pakistan v. Jan Mohammad P L D 1969 S C 333 ref. (b) Jurisdiction-Mandatory condition for exercise of juris diction by Court, Tribunal or Authority not fu filled-All proceed ings which followed become illegal and without jurisdiction. Date of hearing : 4th November 1970.   JUDGMENT…