P L D 1965 (W (PLP)

This is a petition under Article 98 of the Constitution of Islamic Republic of Pakistan, seeking declaration that the order of reference of respondent No. 3, dated 2‑8‑1963 referring the case of the petitioners for trial under section 302/34, P. P. C. read with section 11, F. C. R. to the Council‑of‑Elders and the order of conviction dated 6‑12‑1963 passed by respondent No. 3 agreeing with the unanimous award of the Council‑of‑Elders dated 29‑11‑1963 and the conviction of the petitioners under section 302/34, P.P.C. read with section 11, F. C. R. and sentenc ing them to seven years' R. I. each and the order passed by respondent No. 2 dated 22‑5‑1964 rejecting the revision of the petitioners are in clear violation of the law and Constitution.

2. The facts of the case, as given in the writ petition, briefly are that one Mst. Rabid Gula, the wife of Sadiqur‑Rahman alias Sadiq, was killed and‑the two petitioners were charged under section 302/34, P. P. C. After some of the evidence was recorded by the enquiry Magistrate, the case was referred by respondent No. 3 to the Council‑of‑Elders for trial under section 3t 2/34, P. P. C. read with section 11, F. C. R., by his order, dated 9‑3‑1963. The Council‑of‑Elders submitted its report on 23‑5‑1963 but the Deputy Commissioner not being satisfied with the recom mendation of the Jirga, appointed ‑another Jirga which submitted its report on 29‑11‑1963, and accepting .the above‑mentioned report, the Deputy Commissioner, by his order, dated 6‑12‑1963, convicted the petitioners under section 302/34, P. P. C. read with section 11, F. C. R. and sentenced each of them to seven years' R. I. The revision preferred by the petitioners was rejected by the Commissioner, F. C. R., by his order, dated 22‑5‑1964.

3. It is contended that the order of reference dated 2‑8‑1963, the conviction of the petitioners by the Deputy Commissioner by his order dated 6‑12‑1963 and the rejection of their revision by the Commissioner by his order dated 22‑5‑1964 are without juris diction, because after the enactment of the West Pakistan Criminal Law (Amendment) Act, 1963, no order of reference or conviction could be made by respondent No. 3 under the F. C. R. which has been repealed.

4. In his writ petition, the learned counsel has not challenged the first order of reference dated 9‑3‑1963 which‑‑ the pose was withdrawn and referred for trial under section 302/34, P.P.C. read with section 11, F. C. R. by the Deputy Commissioner to the Council‑of‑Elders. At the arguments stage, the learned counsel submitted that although the order dated 9‑3‑1963 was passed when F. C. R. held the field, but the recommendation of the Jirga was not accepted by the Deputy Commissioner who appointed another Jirga by his order dated 2‑8‑1963, which means that the case was referred by the Deputy Commissioner for trial under the F. C. R. afresh on 2‑8‑1963, when it had already, been repealed by the West Pakistan Criminal Law (Amendment) Act, 1963. I do not find myself ‑in agreement with the contention of the learned counsel for the petitioners, and, in my opinion, the appointment of the second Jirga by the Deputy Commissioner, by his order dated 2‑8‑63, was in continuation of the proceedings under the F. C. R. which had commenced on 9‑3‑1963 before the F. C. R. was repeated and the West Pakistan Criminal Law (Amendment) Act had come into force. In this view of mine, I rely on sub section 3, clause (b) of section 11, F. C. R., which lays down :‑ "(3) On receipt of the finding of the Council‑of‑Elders under this section, the Deputy Commissioner may‑ (a) * * * * * * * * * * * * (b) refer the question to a second Council, or (c) * * * * * * * * * * * * (d)* *** ** * * * * * * * * * Clause (b), therefore, clearly shows that the Deputy Commis sioner had the power to send back the case to the second Council -of‑Elders in continuation of the proceedings initiated by him.

5. Learned counsel next urged that section 34, P. P. C. was not mentioned in the Schedule, and, therefore, the Deputy Commis sioner was wrong in referring the case under section 302/34, P. P. C. There is no force in this argument because the wordings of section 11, F. C. R. show that section 34, P. P. C. is applicable. Section 11, subsection‑(1), F. C. R. is in the following terms :‑ "11(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 several persons so accused, should be tried by a Court . . ." From the above excerpt it follows that a provision as con templated by, sections 34 and 149, P. P. Code, for the trial of more than one person exists, and as such, the trial of the petitioners of offence under section 302 ‑ read with section 34, P. P. C. was proper.

6. He lastly urged that this is a case of no evidence, and therefore the Deputy Commissioner was wrong in referring it fog trial under the F. C. R. In support of his contention, he relied upon The State v. Nawab Gul (P L D 1963 S C 270) and a Full Bench decision reported in Sardar Nawab Haji Mohammad Khan v. Additional Commissioner and Commissioner, F. C. R. Quetta Division, Quetta and others (P L D 1964 Lah. 401) where it was held that a reference to a Jirga was not expedient where facts did not constitute a case at all, for example, where the only evidence was that of a motive.

7. The authorities relied upon by the learned counsel for the petitioners are not applicable, because in the instant case the first reference dated 9‑3‑1963 made by the Deputy Commissioner has not been challenged from which it can be inferred that the case was initially competently withdrawn under the F. C. R. Furthermore, past transactions under the F. C. R. before the Fundamental Rights were made justiciable cannot be challenged in a writ petition 'on the said basis. Again, the petitioners were' D charged in the F. I. R.. and there is some evidence to link them with the offence. The question as to whether the evidence examined by the prosecution was sufficient to sustain the con viction in a judicial trial is a different matter. Under the F. C. R. it is for the Members of the Jirga to believe or disbelieve the evidence and since in their opinion there was some evidence regarding the commission of the offence against the petitioners, however, meager it might be, the conviction cannot be called into question in writ jurisdiction.

8. In view of the above discussion, I see no force in the contentions of the learned counsel for the petitioners and dismiss this petition in limine. K. B. A. Petition dismissed.