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Criminal Miscellaneous No. 2350 of 1962, decided on 15th February 1963.

S. 498‑Bail‑high Court not competent to grant, after case has been referred to Council‑of‑Elders (Jirga) under Frontier Crimes Regulation, 1961 --Frontier Crimes Regulation (III of 1901), Ss. 20 & 11.

Nur Muhammad and others v. Emperor A I R 1944 Lah. 896 approved.

Imperator v. Ghulam Kadir Walad Faiz Mahomed .12 Cr. L J 568 ref.

Khair Muhammad Khan v. The Government of West Pakistan P L D 1956 Lah. 668 considered.

S. 20‑Bail Deputy Commissioner exercising magisterial powers under section 20 does not do so under Criminal Procedure Code (V of 1898).

Ahmad Saeed Kirmani for Petitioner.

M. B. Zaman for the State.

This order will deal with Criminal Miscellaneous Nos. 2350 and 2329 of 1962 which are petitions under section 498, Cr. P. C., for anticipatory bail being granted to the petitioners. The petitioners were granted interim bail in both of these petitions on the 26th of September 1962. These two petitions came up for a hearing before me on the 7th of February 1963, when it transpired that, in the meantime, the case had been referred to the Council‑of‑Elders under the F. C. R. Thus before passing any final orders as regards the bail the point for determination is whether after a case has been referred to the Council‑of‑Elders this Court will have jurisdiction to grant bail.

2. The learned counsel for the petitioners rely on sub section (2) of section 3 of the Frontier Crimes Regulation. It has been urged that the powers conferred by this Regulation may be exercised in addition to any powers conferred by or under any other enactment, and where the contrary is not expressed or implied, other enactments in force in any place in which all or any of the provisions of this Regulation are for the time being in force, shall, so far as may be, apply to cases dealt with in that place under this Regulation. As there was nothing in the F. C. R. contrary to the powers exercisable under section 498, Cr. P. C. this Court had the power to grant bail to the petitioners. The learned counsel for the State, on the contrary, urged that section 20 of the Frontier Crimes Regulation has laid down that the Deputy Commissioner has the authority to exercise all the powers under the Code of Criminal Procedure in order to compel the attendance before himself or the Council‑of‑Elders of the parties and the witnesses and that this power will include the power to grant or refuse bail to an accused person. The question of granting bail in a case pending before a Council‑of --Elders by the High Court, has not been considered in any earlier authority. I am of the view that the powers conferred on the Deputy Commissioner under section 20 of the F. C. R. would take away the powers to grant bail under section 498, Cr. P. C. by any other Court except the Deputy Commissioner. The order passed by the Deputy Commissioner cannot be interfered with by the High Court under section 439 of the Criminal Procedure Code, although a revision lies to the Commissioner, as provided in the F. C. R. The learned counsel for the petitioners rely on certain observations in a D. B. ruling of this Court Khair Muhammad Khan v. The Government of West Pakistan (P L D 1956 Lah. 668). At page 674 of this authority it has been remarked :‑

"Although it is the Deputy Commissioner who refers the case to a Council‑of‑Elders, he does not, while doing so, take off his magisterial functions as if these were pair of trousers. He does not strip himself of all other powers. He can exercise them when necessary. He even passes orders of bail while the case is pending with the Jirga. He does not say to the prisoner when referring his case. "Because I am referring the case as a Deputy Commissioner, I am also detaining you as a Deputy Commissioner."

It is contended by the learned counsel for the petitioners that the ratio of the authority is that the Magistrate continues to exercise his magisterial functions and was, therefore, competent to pass an order of bail subject to the Superintendent of the High Court. This contention of the learned counsel has no force, as section 20 of the F. C. R. gives the powers, to the Deputy Commissioner to pass orders of bail or otherwise of the accused. Though, the Deputy Commissioner may exercise his magisterial powers but he does not do so under the Criminal Procedure Code. He exercises those powers under the authority of section 20 of the, F. C. R. The learned counsel for the State has cited Nur Muhammad and others v. Emperor (A I R 1944 Lah. 896) in which the High Court, whip considering the forfeiture of the bonds taken by the Deputy Commissioner from the accused in a trial before his case was referred to a Jirga, held that the High Court had no power to interfere in the order as the bails were confiscated by the Deputy Commissioner under section 20 of the F. C. R. I am in respectful agreement with the remarks in this authority. It has been remarked in this authority :‑

"It seems to me perfectly clear that even if a bond be taken by the Deputy Commissioner at the time he is sitting as a District Magistrate, once he has referred the case to a Council of‑Elders, that bond comes within the mischief of section 20 and if it has to be forfeited it is that section which governs the matter, and he can only act as a Deputy Commissioner under the Regulation."

3. The Deputy Commissioner is competent to grant or refuse bail to the petitioners in exercise of the powers under section 20 of the F. C. R. His order is revisable by the Com missioner. In those circumstances, I consider that the High Court will have no powers to grant bail to an accused person if the" case has been referred to the Council‑of‑Elders by the District Magistrate. Sind Crimes Regulation has similar provisions and in the case of Imperator v. Ghulam Kadir Walad Faiz Mahomed (12 Cr. L J 568) the Chief Court held that there was no power of bail under section 498, Cr. P. C. to Chief Court in a case which had been referred to the Council‑of‑Elders. I would, therefore, pass no orders of bail in these petitions. The petitioners may apply for bail in these petitions. The petitioners may apply for bail to the District Magistrate.

K. B. A. Petition dismissed.

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