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(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 7th November and 8th November 1961, in Writ Petition No. 117 of 1961).

Granted to consider whether trial under Frontier Crimes Regulation, (III of 1901), after discharge as result of judicial inquiry was illegal Constitution of Pakistan (1956), Art. 160.

Ss. 1l & 14 Discharge under S. 209, Criminal Procedure Code (V of 1898) No bar to reference for trial under S. 11, Frontier Crimes Regulation (III of 1901), on a "fresh complaint" in respect of offence instituted before a Magistrate‑Case becomes "pending" on such "fresh com plaint"‑Discharge order not legal bar to fresh prosecution Person proceeded against in fresh prosecution is person "accused of an offence" within meaning of S. 11.

There being no legal bar to a fresh complaint being entertained after a person has been discharged by a judicial order in a case, he could become an accused person on such a complaint being preferred and then section 11 of the F. C. R. could be pressed into service, to have him tried by a Council‑of -Elders.

So long as a case is pending legally against a person, the powers conferred by section 11 could be exercised till the stages mentioned in section 14 were reached.

A discharge order is not a legal bar to a fresh prosecution.

The consideration that in the case of an order of discharge passed on the merits, fresh proceedings would be improper on the same evidence drat had led to his discharge would lose its force when, after the taking of cognisance, a different Tribunal tries the offender so that more material becomes available for adjudication of the guilt or innocence of the accused. This would obviously be the case where the person concerned is tried under the provisions of the F. C. R. as a Council‑of‑Elders is not confined to what may be termed as "judicial evidence" alone, for basing its opinion about the guilt or innocence of the accused.

Legal liability to be tried for an offence is enough to satisfy the description of a person as an accused within meaning of section 11, F. C. R.

Abul Hossain v. Suwalal Agarwala P L D 1962 S C 242 ref.

Sher Wali v. State P L D 1961 Pesh. 117 considered.

Shaukat Ali Advocate Supreme Court instructed by Munir Ahmad Attorney for Appellants.

M. A. Zullah Advocate Supreme Court instructed by Ijaz All Attorney for Respondent.

Date of hearing: 2nd November 1962.

.‑The appellants, Pir Badshah and Lal Sherin, were accused of murder, but after completion of an inquiry, a Magistrate discharged them from the case, by order dated the 31st of March 1958. The mother of the deceased man challenged the order of discharge by a revision petition to the District Magistrate. This petition was dismissed on the 14th of June 1958. It appears that she made a fresh complaint to the Deputy Commissioner, Kohat, who was also the District Magistrate, on the 28th of October 1959, in which she levelled an accusation of murder against the appellants and prayed that action be taken against them under the provisions of the Frontier Crimes Regulation. Summons were ordered to be issued to the appellants and an order of arrest was passed against them on the 3rd of December 1959, by the D. M. The appellants, however, absconded and proceedings under sections 512 and 87, 88 of the Criminal Procedure Code were started against them. These proceedings were not completed as the Magistrate to whom the inquiry was entrusted, reported to the Deputy Commissioner that it was unnecessary to record evidence under section 512, Criminal Procedure Code. On the 6th of August 1960, the appellants were declared to be proclaimed offenders. On the 10th of January 1961, they surrendered themselves before the Magistrate, First Class, Hangu, and were granted bail. The file was then forwarded to the Deputy Commissioner, for disposal under the Frontier Crimes Regulation. On the 3rd of February 1961, the Station House Officer concerned prepared a supplementary challan and submitted it to the Court of the Ilaqa Magistrate on the 28th of March 1961. The appellants' case was subse quently referred to a Council‑of‑Elders who found them guilty and recommended a sentence of 14 years' rigorous imprisonment to each one of them, by its award dated the 1st of July 1961. This award was accepted by the Deputy Commissioner and the appellants were sentenced in accordance therewith.

The appellants moved the High Court of West Pakistan in writ jurisdiction, alleging that their trial under the F. C. R., after discharge from the judicial case, was illegal. They sough a writ in the nature of habeas corpus, which was refused by the High Court. Leave to appeal was granted in this case to consider the legal question raised on behalf of the appellants.

Section 11 of the Frontier Crimes Regulation (III of 1901) under which action was taken against the appellants, is expressed in the following terms: ‑

"11. Criminal references to Councils‑of‑Elders.---‑(1) Where, in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any of several persons so accused, should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898 the Deputy Commissioner may or if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council‑of‑Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person. The members of the Council‑of‑Elders shall, in each case, be nominated and appointed by the Deputy Commis sioner.

(2) Where a reference to a Council‑of‑Elders is made under subsection (1) and the members of the Council have been nominated, the names of the members so nominated shall, as soon as may be, be communicated to the accused person, and any objection which he may then make to the nomination of any such member shall be recorded. The Deputy Commis sioner shall consider every objection made by an accused person under this subsection, and may, in his discretion, either accept or reject the objection, provided that, in the latter case, he shall record his reasons for so doing. The Deputy Commissioner shall, after disposing of any objection made by the accused person, appoint the members of the Council.

(3) On receipt of the finding of the Council‑of‑Elders under this section, the Deputy Commissioner may‑

(a) remand the question to the Council for a further finding; or

(b) refer the question to a second Council ; or

(c) acquit or discharge the accused person or persons, or any of them; or

(d) in accordance with the finding on any matter of fact of the Council, or of not less than three‑fourths of the members thereof, convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty:

Provided that a person discharged under clause (c) shall not be liable to be retried for any offence, arising out of the same facts after the expiry of two years from the date of such discharge.

It is stressed by Mr. Shaukat Ali, on behalf of the appellants; that after their discharge by the Magistrate and the failure of the revision petition against the order of discharge in the D. M.'s Court, the appellants ceased to be persons "accused of any offence" and consequently the provisions of section I1 set out above, were not attracted to their case.

The High Court took the view, on this point being raised before them, that a fresh complaint was put in by the mother of the deceased before the D. M. on the 28th of October 1959, which gave the history of the case as well as the particulars of the offence, that cognisance was taken of this complaint by the D. M. as is shown by the issue of process and the starting of proceedings under section 512, read with sections 87 and 88 of the Criminal Procedure Code, and that therefore the appellants became "accused" persons within the meaning of section 11 of the F. C. R. It was found therefore that it was open to the relevant authority under section 11, F. C. R., to refer their case for trial to a Council‑of‑Elders. The subsequent supplementary challan put in by the Police, was held to have no particular bearing on this question.

Mr. Shaukat Ali relied on a Full Bench decision of the High Court of West Pakistan, reported as Sher Wali v. State P L D 1961 Pesh. 117, as authority for the proposition that if a person is discharged either under section 209 or 203, of the Code of Criminal Procedure, an accusation of an offence no longer stands against such a person. Learned counsel, however, omitted to note that in that very decision it was made clear that the person concerned might become an "accused" person, again if a fresh Police report or a fresh complaint is lodged against him, subsequent to his discharge by a judicial order, as a discharge cannot legally bar a fresh complaint. It was added however that an order of discharge made after full inquiry which is not foolish and perverse, cannot be set aside and a fresh complaint or a Police report should not be made without good cause and certainly not in circumstances which make the proceedings an abuse of process of Court. The ruling cited therefore does not support the stand taken by the learned counsel in the present case. There being no legal bar to a fresh complaint being entertained after a person has been dis charged by a judicial order in a case, he could become an accused person on such a complaint being preferred and then section 11 of the F. C. R. could be pressed into service, to have him tried by a Council‑of‑Elders. It appears from a reading of section 14 of the F. C. R. that the powers conferred by section 11 on the Commissioner and Deputy Commis sioner, respectively, may be exercised by them in cases committed to the Court of Sessions, at any time before the trial before that Court has commenced and in cases pending before any Court inferior to the Court of Sessions at any time before an order of conviction or acquittal has been made. So long as therefore a case is pending legally against a person, the powers conferred by section 11 could be exercised till the stages mentioned in section 14 were reached. That a discharge order is not a legal bar to a fresh prosecution was laid down recently by this Court in Abul Hussain v Suwalal Agarwala PLD1962SC242, though it was further clarified that in the case of an order of discharge passed on the merits, fresh proceedings would be improper on the same evidence that had led to his discharge. This consideration, however, would lose its force when, after the taking of cognisance, a different Tribunal tries the offender so that more material becomes available for adjudication of the guilt or innocence of the accused. This would obviously be the case where the person concerned is tried under the provisions of the F. C. R. as a Council‑of‑Elders is not confined to what may be termed as "judicial evidence" alone, for basing its opinion about the guilt or innocence of the accused.

We have satisfied ourselves by reference to the original complaint sent by the mother of the deceased to the D. M. that it charged the appellants with the crime of murder of her son and thereby they were cited as accused persons. The contention that such an accusation was not made in the petition is untenable on a plain reading of that document. Legal liability to be tried for an offence is enough to satisfy the description of a person as an accused and in this case that test was amply satisfied.

In these circumstances, the view taken by the High Court that the trial of the appellants by a Council‑of‑Elders was not open to any legal exception appears to be correct and the writ asked for was rightly denied to them. The appeal fails and is hereby dismissed.

A. H. Appeal dismissed.

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