P L D 1962 (W (PLP)

ORTCHESON, J.-The facts leading up to this petition briefly are that the petitioners, Sodagar and Yusuf Khan, along with three other persons, are alleged to have committed the murder of one Khaista Gul within the area of village Hadmela. The matter was reported to the Doaba Police, who refused to take action, the reason given by the petitioners being that the offence had been committed in tribal territory. No further action was, according to the petitioners, taken until about one year after the occurrence, when the father of the victim filed a private complaint in the Court of the Magistrate 1st Class, Hangu, District Kohat. On that complaint the petitioners and their three co-accused were summoned and the statements of several witnesses recorded. Before the case was committed, however, the prosecuting agency withdrew it under the authority of the Deputy Commissioner, Kohat, for trial under section 11 of the Frontier Crimes Regula tion, a certificate having been granted under section 188, Cr. P. C. by the Political Agent in charge of the Kurram Agency.

2. The petitioners challenged the vires of the above proceed ings on two main grounds. The first is that as the offence was not committed within the jurisdiction of the Kurram Agency, the Political Agent of that Agency had no power to grant a certificate. The second is that even assuming for the sake of argument that the certificate is valid, the Deputy Commissioner, Kohat, had no power to withdraw the case under section 11 of the F. C. R., the offence having been committed in the tribal area.

3. So far as the first ground is concerned, the certificate of the Political Agent, a copy of which forms Annexure, ` C ' to the petition, clearly states that village Hadmela is within his jurisdic tion. Learned counsel for the petitioners contends that though the question of whether the village concerned is within the jurisdiction of the Political Agent is one of fact, it has a bearing on the question of jurisdiction, this Court consequently having power to go into it even on the writ side. This is no doubt true, but we see no reason to doubt the correctness of the certificate, particularly since the argument of learned counsel, if accepted, would lead to the absurd result that village Hadmela, being admittedly not situated within the Province or the Capital of the Federation, nor, according to counsel, within any recognised tribal territory, is consequently not a part of Pakistan as defined in section 2 of the Establishment of West Pakistan Act, 1955.

4. The second argument of learned counsel is also fallacious. The correct position is that as the accused (including the present petitioners) are admittedly residents of District Kohat and were there at the time the private complaint against them was instituted, they were " found " in the district within the meaning of section 188, Cr. P. C. Further, since the place where the crime was committed is within the jurisdiction of the Political Agent, Kurram Agency, the latter was competent to give a certificate under the above section that the offence ought to be enquired into the Province (or) in the Capital of the Federa tion. Admittedly, if the case had not been withdrawn under the F. C. R. the petitioners and their co-accused would have been committed to Sessions under section 302, P. P. C.

5. At this stage section 11 of the Frontier Crimes Regulation comes into play. That section empowers the Deputy Commis sioner of any of the six districts of the former North-West Frontier Province to which the Regulations apply, if he considers it inex pedient that the question of the guilt or innocence of any person or persons accused of any offence should be tried by a Court of any of the classes mentioned in section 6, Cr. P. C. (or) to refer the question to the decision of a Council-of-Elders. The Court of Ses sion is one of the classes of Court referred to in section 6, Cr. P. C., and the scope of section 11 of the Frontier Crimes Regulation is nowhere limited to offences committed within one of the six districts to which it applies. The offence in dispute having, by virtue of the certificate of the Political Agent, become triable under the ordinary law, falls within the scope of section 11, and the Deputy Commissioner, Kohat, had full jurisdiction to refer the question to the Council-of-Elders.

6. For the above reasons we find no reason to interfere, and dismiss the petition. K. B. A. Petition dismissed.