Find a Lawyer

Writ Petition ho. 156 of 19 3, decided on 25th March, 1984.

(a) Provincially Administered Tribunal Areas Criminal Law (Special Pro visions) Regulation (I of 1975)-

---Ss. 11 & 23-Provisional Constitution Order (1 of 1981), Art. 9 --Jirga trial-Accused unanimously found not guilty by Jirga--Deputy Commissioner, held, has either to proceed under S. 11(2) of Regulation to remand question to Jirga or refer question to second Jirga and if he does not proceed as such he is under obligation to acquit accused as provided under S. 11(5) of Regulation but he has no power to impose penalty on accused-Order of Commissioner passed as Appellate Authority awarding sentence of life imprison ment to accused also ultra vires of his powers in view of S. 23(3), proviso of Regulation.-[Jurisdiction].

(b) Provincially Administered Tribal Areas Criminal Law (Special Pro visions) Regulation (I of 1975)-

---Ss. 11 & 24 -- Jirga trial--Order of Deputy Commissioner and that of Commissioner imposing punishment of imprisonment on accused passed in contravention of statutory provision-Order passed by Additional Secretary Home dismissing revision petition against those orders, held, also apt to be declared without lawful authority-Case remanded to Commissioner for readmitting appeal and decision in accordance with law.

Q. M. Anwar for Appellant.

Amir Zada Khan, A. G. for Respondent.

Date of hearing: 25th March, 1984.

Facts are that Niaz Muhammad alias Nazoon (petitioner), his brother and father and one other man charged for the murder of one Habibullah vide F. I. R. No. 101, dated 23rd August, 1978, under section 302/34, P. P. C., P. S. Khawaza Khela, District Swat, were tried by a jirga under the Chairmanship of Extra Assistant Commissioner, Mingora, which returned a unanimous verdict of not guilty about all the four accused. Upon the receipt of the report, the Additional Deputy Commissioner, after agreeing therewith, acquitted all the four accused. However, on appeal the Additional Commissioner, Malakand Division maintained the order of acquittal in respect of the other three accused but found the petitioner guilty of the charge of murder and accordingly sentenced him to life imprisonment and a fine of Rs. 10,000. Petitioner filed a revision before the Additional Secretary, Home Department professing innocence and also agitating that under the proviso the section 23 of the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975 (Regulation I of 1975), the Additional Commissioner did not possess the power to impose a punishment in appeal on him as the very punishment could not have been passed by the Additional Deputy Commissioner on him under the Regulation in the facts of the case. Reference was also made to subsection (2) of section 11 of the Regulation whereunder the Deputy Commissioner could only remand a case to the jirga or refer the question to a second jirga in case of material irregularity or miscarriage of justice. The above contention, however, did not find a favour with the Additional Secretary, Home who on his own thought that since under section 12 of the Regulation, the Deputy Commissioner has the power to sentence a person to any penalty prescribed for the offence under the Pakistan Penal Code except the sentence of death as such the learned Additional Commissioner was duly competent to impose a penalty of life imprisonment on the petitioner for the offence of murder. Petitioner has, by this constitutional petition, sought a declaration that the proceedings taken against him and the impugned orders of imposition of punishment on him by the Additional Commissioner, Malakand Division and the orders of dismissal of his revision-petition by the Additional Secretary, Home were the orders without lawful authority and of no legal effect.

3. Under subsection (4) of section 11 of the Regulation when a jirga unanimously or by majority of three-fifth returns the finding of not guilty, the Deputy Commissioner shall acquit the person or persons so found not guilty provided he does not proceed under subsection (2), after finding that the report does not relate to the question referred to the jirga or in his opinion it is a case of material irregularity or miscarriage of justice and in that eventuality, too he has the limited power to remand the question to the jirga or refer the question to a second jirga to be constituted in accordance with section 6. It thus comes to that the Deputy Commissioner has either to proceed under subsection (2) to remand the question to the jirga o refer the question to the second jirga and if he does not proceed as such A he is under obligations to acquit the accused person as provided under subsection (5) of section 11. He does not possess the power to impose a penalty on accused-person in case of unanimous or three-fifth majority verdict of not guilty by a jirga. Necessarily the Commissioner, the appellate Court, could also not impose any punishment on the accused -person in that case in view of the bar contained in the proviso to sub section (3) of section 23 of the Regulation. The orders of the Additional Commissioner, Malakand Division, (respondent No. 2) to sentence the petitioner to life imprisonment and a fine are, therefore, ultra vires of his powers.

4. Section 24 of the Regulation vests power in the Government to call for and examine the record of any proceedings pending or since decided by a Commissioner, Deputy Commissioner or Tribunal to satisfy itself to the correctness, legality or propriety of any decision, sentence or order given and after examining the record may pass such orders as it thinks fit. The learned Additional Secretary, Home (respondent No. 1) has been herein found to have failed to exercise his revisional jurisdiction in correcting the illegality committed by the Additional Commissioner, Malakand Division in imposing a punishment on the petitioner in contraven tion of the statutory provisions and, as such, his orders of the dismissal of revision-petition are also apt to be declared without lawful authority and of no legal effect.

5. As a result this writ petition is accepted, the orders of the Additional Secretary Home (Respondent No. 1) passed in revision and those of the Additional Commissioner (Respondent No. 2) imposing a sentence of life imprisonment and fine are declared without lawful authority and to be of no legal effect with directions to the Additional Commissioner, Malakand Division, Saidu Sharif Swat to re-admit appeal No. 587/St/81 on its original number and to dispose it off afresh in accordance with law after providing opportunity of hearing to the parties.

M. Y. H. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.