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Writ Petition No. 301 of 1985, heard on 18th February, 1986.

(a) Provincial Administered Tribal Areas Criminal Laws (Special Provisions) Regula tion (I of 1975)‑

---Ss. 16 & 23‑Appeal‑Appellate power available to Commis sioner could be exercised by him even though order of Deputy Commissioner might have been passed in a case at investigation stage.

(b) Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regula tion (I of 1975)‑

‑‑ Ss. 16, 23 & 24‑Bail‑Revisional jurisdiction‑No power vested in Government when 'proceedings' not yet started ‑ Revisional power available to Government, held, was in respect of 'proceedings' pending before or disposed of by a Commissioner or Tribunal Proceedings started from the day when Deputy Commissioner, while assuming jurisdiction under Regulation, refers case to Tribunal for determining innocence or guilt of accused and lasts till on receipt of award of Tribunal, Deputy Commissioner wade any order convicting or acquitting accused‑Any interim order, such as one relating to bail, made by Deputy Commissioner or Tribunal would also be deemed to have been made in proceedings of case‑It would only be after or during such proceedings when matter goes before Commissioner in appeal that appeal would be called a continuation of those proceedings and any order made by Commissioner in appeal would also become open to revisional jurisdiction of Government No powers are vested in Government under S. 24 of Regulation to hear revision petition in respect of an order passed by Deputy Commissioner or Commissioner when proceedings in case had not yet started,‑[Revision (criminal)].

‑.‑ ‑ Ss. 14 & 24‑Bail‑No proceedings were pending before Deputy Commissioner or Tribunal when bail application was refused by Deputy Commissioner and granted, on appeal, by Commissioner‑Government/Additional Secretary Home, in exercise of revisional jurisdiction, recalling order of Commissioner ‑ Order of recall made by Government, held, was without jurisdiction and without lawful authority‑Order of Government set aside and that of Com missioner granting bail to accused restored with all consequences- Mere fact that Deputy Commissioner had refused to grant bail to accused and Commissioner had allowed bail to them would not convert those proceedings into pending proceedings as envisaged by S. 24 of Regulation.‑[Bail].

A I R 1953 Cal. 661 rel.

Qasim Imam for Petitioners.

Respondent No. 1 in person.

Amirzada Khan, A.‑G. for the State.

Date of hearing:,18tb February, 1986.

.‑Mst. Jabeen Baha, Shahi Sultan and Zaitur Rehman, petitioners herein, are accused in a murder case. The report of the occurrence was made at Police Station Daggar, District Swat, where case was registered against them under section 302/109/34, P. P. C. They applied to the Sub‑Divisional Magistrate, Bunir who exercised powers of Deputy Commissioner under the Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation, 1973, for the grant of bail, which application was rejected by him vide his order, dated 15‑1‑1985. They then filed . appeal before the Additional Commissioner, Malakand Division against the said order, 'who while accepting the appeal vide his order, dated 23‑1‑1985. granted bail to them. The complainant party then moved Additional Secretary Home, Government of N.‑W. F. P. by way of revision against the aforesaid appellate order, who while accepting the revision petition and setting aside the bail order took the petitioners herein into custody. Against the order of the 'Additional Secretary ,Home the petitioners have filed this constitutional petition alleging herein that the order made by the said Officer was without jurisdiction. in excess of jurisdiction .and without lawful authority. It has also been prayed that the aforesaid order of the Additional Secretary Home be set aside and the petitioners be allowed to remain on bail which was granted to them by the Additional Commissioner, Malakand Division.

2. Mr. Qasim Imam, Advocate appeared on behalf of the petitioners and Mr. Amirzada Khan, Advocate‑General appeared on behalf of Government and other public functionaries. They were heard and the record perused.

3. The contention of the learned counsel for the petitioners was that after the petitioners were allowed bail by the Additional Commissioner in appeal, Government had no jurisdiction to interference in that order of the Additional Commissioner and cancel the bail of the petitioners in exercise of revisional jurisdiction. The learned Advocate‑General, however, argued that revisional jurisdiction could be exercised by Govern ment in such a situation and that the order made by Additional Secretary Home was a valid order and could not be taken exception to, especially in writ jurisdiction.

4. In order to appreciate the arguments of the learned counsel appearing before us and for ready reference, we would mention here under the relevant provisions relating to bail, appeal and revision as they appear in the aforesaid. Regulation of 1975. These are as under:‑

"16. Bail.‑(1) An offence triable under this Regulation shall be bailable or non‑bailable according as the same is bailable or non bailable under the Code of Criminal Procedure, 1898 (Act V of 189;0, and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code.

(2) The President of a Tribunal may, in regard to a case referred to the Tribunal ‑for decision under section 5, exercise the powers of the Deputy Commissioner under this section. .

23. Appeal.‑(1) Any party aggrieved by any decision given, sentence passed or order trade by the Deputy Commissioner under this Regulation may, within thirty days of such decision, sentence or order, prefer an appeal to the Commissioner.

Explanation.‑In computing the period of thirty days mentioned in this subsection the day on which the decision, sentence or order sought to be appealed against was given passed or made, and the time requisite for obtaining a copy thereof, shall be excluded.

(2) The Commissioner shall not confirm, modify, alter or set aside any decision, sentence or order appealed against, except after giving the parties an opportunity of being heard.

(3) The Commissioner may, in deciding an appeal under subsection (1), exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure, 1898 (Act V of 1898), and may also enhance any sentence:

Provided that no sentence shall be passed by the Commissioner in such appeal which the Deputy Commissioner could not have passed under this Regulation.

(4) The decision of the Commissioner on an appeal under this section shall be final.

24. Revision.‑(1) Government may, at any stage, call for and examine the record of any proceedings pending before, or disposed of by a Commissioner or Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order given, passed or made, or as to the regularity of any such proceedings and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record:

Provided that nothing herein contained shall be deemed to authorise Government to vary or set aside a finding of a Tribunal on a ques tion of fact where such finding has been accepted by the Deputy Commissioner unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice.

(2) Government may after examining any record call for under sub section (1), and giving the parties an opportunity of being heard, pass such order as it may think fit:

Provided that no sentence shall be passed by Government in the exercise of its powers under this subsection which‑ the Deputy Commissioner could not have passed under this Regulation.

5. Before we proceed to analyse the arguments addressed at the Bar in the light of aforesaid provisions of law, we would like to point out that the case in which the bail application was moved by the petitioners herein and orders were passed by the public functionaries at different levels has not yet been submitted to the Deputy Commissioner for trial under the said Regulation, which would mean chat it is pending at investigation stage and proceedings in respect thereof have not yet started under the said Regulation for its trial. It is also undisputable that the offence which the petitioners are alleged to have committed is an offence triable under the said Regulation.

6. The provisions relating to bail (section 16) as reproduced above, would show that the Deputy Commissioner is competent to grant bail to a person accused of an offence triable under the said Regulation at any stage of the case ; both at investigation stage and also at the trial stage. Further, the President of the Tribunal is also authorised to exercise the same powers which are vested in the Deputy Commissioner under section 16 in regard .to a case which may have been referred to the Tribunal for decision. The provisions relating to appeal (section 23), as reproduced above, would show that the Commissioner is competent to hear appeal against any order made by the Deputy Commissioner including one relating to bail, and since such order can be made by the Deputy Commissioner even before the case is referred to the Tribunal for decision, the appeal before the Commissioner would be competent against such order of the Deputy Commissioner. In other words, the appellate powers would be q available to the Commissioner to be exercised by him in this behalf even though the order of the Deputy Commissioner may have been passed in case at investigation stage. The law‑maker has wisely not included the word "proceedings' in the section relating to appeal, because of no depriving an accused person from getting, relief or bail, in an appropriate case, when it is at investigation stage and the Deputy Commissioner may have refused the concession of bail to him. The wording of the law pro viding for revision is some what different. Section 24, as reproduced above which deals with the revisional jurisdiction of Government, says that Government may, at spy stage, call for and examine the record of any proceedings pending be[ore, or disposed of by a Commissioner or Tribunal for the purpose of satisfying itself as to the correctness. legality or pro priety of any decision. sentence or order given, passed or made, or to the regularity of any such proceedings. The language employed in this section would clearly show that the power exerciseable by Government relates to any decision, sentence or order given, passed or made in the proceedings pending before, or disposed of by a Commissioner or Tribunal. Such power is also exercisable by Government to judge as to the regularity of any such proceedings and, the purpose for which the record may be summoned and examined would be to satisfy itself as to the correctness, x legality or propriety of any decision sentence or order giver, passed or made l. in such proceedings. The emphasis appears to be on the word 'proceedings',. which under the said Regulation start from the day the Deputy Commis sioner, which assuming jurisdiction under the said Regulation, refers the case to the Tribunal for determining the innocence or guilt of the accused and last till on receipt of award of the Tribunal the Deputy Commissioner makes any order convicting or acquitting the accused. Any interim order, such as one relating to bail, made by the Deputy Commissioner or tribunal when the matter has already been referred to the Tribunal would also b e deemed to have been made in the proceedings of the case. It would only be after or during such proceedings when the matter goes before the Com missioner in appeal that the appeal would be called a continuation of those proceedings, and any order made by the Commissioner in appeal would also become open to revisional jurisdiction of Government, being an order made in the proceedings of the case.. We are, therefore, of the view that Government can exercise revisional jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order given, passed or made in the proceedings conducted by the Com missioner or the Tribunal, or as to the regularity thereof, and no power appears to vest in Government under section 24 of the said‑Regulation to hear revision petition in respect of an order passed by the Deputy Commis sioner or the Commissioner when the proceedings in the case have not yet started. We have already mentioned that in this case the Deputy Commis sioner has not yet referred the case to the Tribunal for decision. No proceedings were, therefore, pending before the Deputy Commissioner of the Tribunal when the bail application was refused by the Deputy Commis sioner and allowed by the Additional Commissioner. The mere fact that the Deputy Commissioner bad refused to grant bail to the petitioners herein and that the Commissioner bad allowed bail to them would not convert those proceedings into pending proceedings as envisaged by section 24 of the said Regulation. In this view we are fortified by the decision from Indian jurisdiction, reported as A I R 1953 Cal. 661.

7. The above discussion would lead us to the conclusion that the 9K order made by Government in this case, recalling the bail granted by the Additional Commissioner to the petitioners, being without jurisdiction, was without lawful authority. Declaring this order as such, we would strike it down and would restore the order shade by the Additional Com missioner in this case with all consequences. Since intricate question o law was involved in this writ petition. We shall make no orders as to costs.

M.Y.H. Petition accepted.

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