P L D 1962 (W (PLP)

2. Briefly, the facts are that the Tahsildar Mastung upon receiving information on the 27th of February 1960, of the appellant having killed his wife started investigation on the 28th of February 1960. He recorded the evidence of several witnesses in the case. The appellant was also examined. The Naib Tehsildar submitted the case to the Tehsildar on the 12th of March 1960, who passed it on to the Nazim on the 19th of March 1960. The Nazim framed the charge against the appellant under section 83 K. P. Code. In his statement before the Nazim, the appellant admitted on the 31st of March 1960 that he had murdered Mst. Jannat Khatoon. He also admitted the correctness of a similar statement having been made by him to the Naib-Tehsildar. The Nazim after recording the evidence in the case framed the issues and submitted the case to the District Magistrate, Kalat, for obtaining the Jirga award and passing final orders. The learned District Magistrate took up the case and on the 20th of April 1960 ordered the summoning of the witnesses of the prosecution. The statements of the witnesses and the accused were recorded on the 22nd of July 1960. The appellant admitted having killed his wife but pleaded grave and sudden provocation. A charge under section 83 K. P. Code was framed on the same day and the statements of two defence witnesses, Lal Bibi and Salam Bibi were recorded, who supported the allegations of the accused about the Siahkari of the deceased. The District Magistrate framed the following issues for obtaining the Jirga award :- (1) What were the causes which led to the murder of Jannat Khatoon ? (2) Whether Jannat Khatoon was a married wife of the deceased ? (3) Who were persons involved in the murder ? The actual murderer and the abetter should be stated and also whether the murder was committed in ..? (4) Whether the accused was bound not to harm Jannat Khatoon, her person or property, if so, was the security bond liable to be confiscated ? (5) What other recommendation the Jirga want to make ? The Jirga gave the award acquitting the accused on the ground that he had committed the murder on grave and sudden provocation. They also directed that half the amount of the security bond be confiscated and further that Muhammad Qasim, Lawang and Mehrullah, the alleged paramour of Jannat Khatoon, and their relations should execute bond in heavy sum for a period of three years in favour of each other. The Jirga also recommended that a separate case for Siahkari be instituted against Mehrullah. The award was accepted by the appellant but it was rejected by Mehrullah, the alleged paramour, and Lawang, the father of the deceased. The learned District Magistrate agreed with the Jirga award and acquitted the appellant. He further ordered that both the parties should furnish bonds in the sum of Rs. 10,000 with four sureties for three years, and so far as Mehrullah co-accused was concerned, he was ordered to be released with the direction that Muhammad Qasim etc., could file their claim against him.

3. Against this order of acquittal, Lawang filed an appal before the Sessions Judge on the 30th of September 1961, which was accepted and the appellant convicted and sentenced as mentioned above.

4. The learned counsel for the appellant has not contested the conviction of the appellant on merits. He has raised the following legal objections against the judgment of the learned Sessions Judge :- (1) That the appeal filed in the lower Court was barred by limitation. A perusal of the order of the District Magistrate shows that it bears no date. There is nothing to indicate that the order was communicated to any of the parties. Lawang applied for obtaining a copy of this order in September 1961 and within a period of one month the appeal was filed. In these circum stances I would hold that the appeal was filed within limi tation.

5. The second contention of the learned counsel is that the appellant had no locus standi to file an appeal. Section 128 K. P. Code lays down that an appeal against the order of the District Magistrate will lie in the Court of the Sessions Judge. This does not mention as to who can file an appeal. It would, therefore, follow that any person aggrieved by an order of the District Magistrate, would be entitled to file an appeal. This contention of the learned counsel also has no force.

6. The third contention of the learned counsel is that no appeal can lie against an order of acquittal. This contention of the learned counsel has also no force as section 128 K. P. Code lays down no such restriction, it only says that an appeal shall, lie in the Sessions Court against an order passed by a District Magistrate. It is not stated that the appeal would lie only in case of an order of conviction. This contention of the learned counsel has also no force.

7. Lastly, the learned counsel has contended that the order of acquittal was passed by a Sardari Jirga which was presided over by the District Magistrate and since the order was not that of the District Magistrate, no appeal lay against this order. I am afraid this contention of the learned counsel is based on a misapprehension of the provisions of law. The schedule attached to the K. P. Code lays down the Courts which would try different offences. An offence under sections 83/85 is triable, by the District Magistrate and the investigation is to be con ducted by the Nazim of the District with special powers. So the order of conviction or acquittal has to be passed by the District Magistrate although it is incumbent upon him under section 89 of the K. P. Code to obtain an award of the Jirga before passing a final order, unless as provided in section 92 of the K. P. Code the parties agree in writing that the Court concerned should decide the case without obtaining an award from the Jirga. Thus, an offence under sections 83/85 K. P. Code, is triable by a District Magistrate only, therefore, the order passed by the District Magistrate would be appealable to the Sessions Judge. The learned counsel has invited my attention to a Single Bench unreported judgment of this Court (Umed Ali & others v. The State (Criminal Appeal No. 2 of 1961 Qta). Ongoing through the judgment, I find that a similar objection was raised in that case but the order passed did not finally decide the point. There are some remarks which support the contention of the learned counsel. Since no final expression of opinion on the point has been made in that judgment and in view of my own views expressed above, I hold that an appeal is competent against an order passed by the District Magistrate upon an award by a Jirga. The jurisdiction of the Appellate Court could not be taken away by implication, there should he clear words in the Cr. P. C. to warrant such a course.

8. In view of what has been stated above, there is no force in this appeal which is dismissed. K. B. A./A. H. Appeal dismissed.