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Writ Petition No.75 of 1984, decided on 18th September, 1984.

‑‑‑Ss. 11(2). 11(5) & 23(3)‑‑Admittedly petitioner acquitted pursuant to unanimous award of Jirga, as not proved guilty of charge‑‑Deputy Commissioner, held, bound to acquit accused unless case remanded on account of material irregularity or miscarriage of justice‑‑Appellate Authority, held further, not competent to award punishment which could not be awarded by Deputy Commissioner‑‑‑ Order of imposition of sentence by Appellate Authority, held, illegal and not sustainable, in circum stances.

(b) Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (I of 1975)

‑‑‑S.24‑‑Revision‑‑Additional Secretary (Home), held, bound to satisfy itself as to correctness, legality or propriety ‑of‑order impugned in revision petition‑‑Revision petition, held further, could not be dismissed alone on ground of non‑impleading State as party and petitioner could be allowed an opportunity to remove this lacuna‑‑Case remanded to Appellate Authority for deciding appeal afresh in accordance with law.‑ [Revision (criminal)].

Abdul Latif Afridi for Petitioner.

Amirzada, A.‑G. for Respondents Nos. 1 and 2. Respondent No. 3 in person.

Date of hearing: 18th September, 1984.

‑‑ The facts of the case are that the complaint of Shakirullah (respondent No.3) under section 427/447. P.P.C. against Ali Rehman (petitioner) was referred for trial to a Jirga by Magistrate Ist Class (A. P. A. Batkhela) with powers of Deputy Commis sioner under the provisions of the Provincially Administered Tribal Area Criminal Law (Special Provisions) Regulation, 1975 (Regulation‑I of 1975). After recording the evidence adduced by the parties the Jirga members unanimously gave an award on 9‑5‑1982 that the accused was not guilty of the charge. The Chairman of the Jirga concurred with the finding and, therefore, the accused was acquitted. Shakirullah (respondent No.3) feeling aggrieved went in appeal before the Additional Commissioner‑II, Malakand Division and his appeal was accepted on 2‑11‑1983. The learned Appellate Court came to the conclusion that the guilt of Ali Rehman (petitioner) under sections 427 and 447, P.P.C. was proved beyond any shadow of reasonable doubt and therefore exercising his powers under section 23(3) of the Regulation (Regulation‑I of 1975) read with section 423(1)(a) of the Criminal Procedure Code convicted the petitioner under section 427 and sentenced him to four months' rigorous imprisonment and a fine of Rs.200. In default of fine he is to undergo one month simple imprisonment. He was also convicted under section 447, P.P.C. and sentenced to one month R.I. and a fine of Rs.100. In default of payment of fine he is to undergo further 7 days S.I. Both the sentences were, however, directed to run concur rently.

2. Ali Rehman (petitioner) feeling aggrieved went in revision before the Additional Secretary, Government of N.‑W.F.P., Home and Tribal Affairs Department, Peshawar. His revision was dismissed in limine on 22‑1‑1984 on a technical ground that since the State was not impleaded as a party to the proceedings the revision was incompetent.

3. It is not disputed that the petitioner was acquitted pursuant to unanimous award of the Jirga as he was not proved guilty of the charge. Under section 11(4) of the Regulation (Regulation‑I of 1975) when a Jirga unanimously or by a majority of three‑fifth returns a finding of not guilty the Deputy Commissioner is bound to acquit the accused provided he does not proceed under section 11(2) for the reason that the award 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. In such a situation the Deputy Commissioner has the limited power to remand the question to the same Jirga or refer the question to a second Jirga to be constituted under section 6 of the Regulation. It is thus clear that if the Deputy Commissioner does not proceed under section 11(2) he is bound to acquit the accused under section) 11(5) of the Regulation. In this view of the matter the question of imposition of a penalty would not arise when the Jirga had returned unanimous award of not guilty. Under the provisions of section 23(3) of the Regulation the appellate authority would not be competent to award punishment which could not be awarded by the Deputy Commis sioner as stated above. The order of imposition of sentence by the Additional Commissioner, Malakand Division, therefore, being illegal cannot be sustained. Similarly, it appears that the learned Additional Secretary Home (respondent No.l) has failed to exercise jurisdiction vested in him under section 24 of the Regulation. Respondent No.1 was bound to satisfy itself as to the correctness, legality or propriety of the order impugned in the revision petition. Even if the State was not as a party the petitioner could have been allowed and opportunity to remove the lacuna before hearing the matter. The revision should not have been dismissed on this score.

4. For the aforesaid reasons the writ petition is accepted, the impugned order of respondent No.l, dated 22‑1‑1984 and that of respondent No.2, dated 2‑11‑1983 are declared without lawful authority and of no legal effect. The case is sent back to the learned Additional Commissioner‑II, Malakand Division, Camp at Chakdara, to re‑admit the appeal on its original number and decide the same afresh in accordance with law. No order as to costs.

S. G. D. Petition allowed.

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