P L D 1989 Peshawar 86 (PLP)

MUHAMMAD AZAM KHAN, J.‑‑In this Constitutional petition moved under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner is objecting to the order of respondent. 1 by which he accepted the Jirga Award and sentenced him to suffer rigorous imprisonment for a period of fourteen years and also to pay a fine of Rs.10,000 or in default to suffer S. I for two Wears more. He has also assailed the orders of respondents 2 and 13 by which they rejected his appeal and revision petition that he filed before them, against the Jirga Award.

2. The facts briefly stated are that a dead body of a, young girl was seen lying in fields near Shakardara, a village in the, district of Swat. The news about the dead body got current and people from the adjoining localities gathered on the spot. Father of the, girl named Gul Muhammad Shah who had earlier learnt of her disappearance from the house of her husband, Habibullah also heard the news and went to the spot. He saw the dead body and identified it to be that of his daughter Mst. Dunyazada. A short-while later police also emerged on the scene, to whom he made report about the incident charging the petitioner alongwith his son Habibullah, the husband of the deceased.

3. In pursuance of the report, the police investigated the case and submitted it to trial by a Jirga under the Provincially Administered Tribal Area Criminal Law (Special Provisions) Regulation, 1975 as the area to which the case pertained was subject to the said law. A Jirga held the trial of the case and heard in the process the evidence adduced. Same did not appear satisfactory to it but due to the attending circumstances it took the view that none except the a petitioner could have caused the death of the deceased. Accordingly the Jirga framed an Award and returned a finding of guilty but the Deputy Commissioner did not agree with the finding of Jirga. He noticed clear lack of evidence in the case and set it aside and directed fresh trial to be held, recording an order to the following effect :‑- Accused present. Counsel for the accused is present. PSI Saeed Khan for the State also present. File perused. Arguments heard. Jirga award is not a speaking one. On the one hand it says that there is eye‑witness in the case against the case against the accused. On the other hand it says that none else but in the prevailed circumstances the accused have been held responsible for the offence. The Jirga award is also silent on the nature of the circumstances of the case. Award being ambiguous, is set aside and case remanded to fresh Jirga with EAG‑II as Chairman, Mr. Muhammad Zamin Khan, Advocate as; members, Capt. Fazal Qadir Khan, Advocate, Bahauddin Khan, Advocate and Qayum Khan, Advocate as members. The Jirga should give award specifically of the guilt or innocence of the accused. The Jirga is, however, not bound to record fresh evidence in the case, if it deems the present evidence sufficient for the administration of justice and equity, Parties to appear before the Chairman Jirga EAC‑II on 14‑12‑1981.

4. In accordance with the above order the case was re‑heard. But no fresh evidence was recorded. On the same evidence reliance was placed and it was held that the circumstances of the case suggested that the petitioner only could have done deceased to death. Accordingly, an award to this effect was framed and submitted to the Deputy Commissioner for approval. This time the award was approved and on the basis of it the petitioner was convicted and sentenced as aforestated. He preferred an appeal to question the order of Deputy Commissioner dated 1‑4‑1987 but to no avail. Then he filed a revision petition but the same too, was rejected and he case here on present writ petition.

5. Learned counsel for the petitioner, Mr. M . Sardar Khan Advocate has contended that it is a case of no evidence. Not only there is no eyewitness account in the case there is also no circumstantial evidence worth reliance. All that one can see in the case is mere suspicion expressed by the father of the deceased. The suspicion, he said, rested on the fact that information regarding disappearance of the deceased was conveyed to her father by her husband himself. It was night time when she departed and this led the father to believe that she could have been chased either by her husband or by his father who only knew that she had left the house and was proceeding in a particular direction. But he argued this would be termed as no more than a suspicion.

6. He has further argued that in basing on the evidence which had been rejected earlier the new Jirga had clearly erred. It had to hear the case afresh and should have proceeded to record evidence again. On the earlier rejected evidence it could not have appropriately placed reliance. It also appears to have held local enquiries because there is mention to that effect in the Award. In holding local enquiries the Jirga had travelled beyond the set parameters of its powers. In the first instance no such enquiry was required to be held. If at all it was required, the petitioner should have been associated with it. Any material collected during an enquiry held on the back of the petitioner could have no impact against him, he added.

7. Learned Advocate‑General appearing on behalf of the respondents in reply has tried to justify the impugned orders, contending that in a case of this nature it would be unreasonable to expect direct evidence. Only circumstantial evidence will be possible to furnish and that on the record was available suggesting that only the petitioner anti his son were aware of the deceased having left the house for the reason that she had quarrel with them they could have chased her. As such, the award and the orders subsequently passed on its basis are all sustainable and should not be disturbed.

8. We are inclined to accept the plea that in a case of instant nature evidence of direct nature cannot possibly be made available A and that only circumstantial evidence will be there. Circumstantial evidence can support the case as much as direct evidence if it is substantial. We regret to find that such evidence is not there. We are of the view that .no attempt to collect fresh material during fresh trial had been made. The reason perhaps was that Deputy Commissioner while setting aside the previous award had observed that new Jirga would not be bound to record fresh evidence. This observation was understood to have created a bar to recording fresh evidence, though that was not the intention. In fact, it had been left to the discretion of the new Jirga whether or not to take fresh evidence. It was free to record fresh evidence, if it wanted and could also rely on the previous evidence if it looked to it adequate and acceptable for reliance. But as the things have gone, the impression cannot be avoided that the observation was construed to mean that no evidence would be taken again. Therefore, we are of the view that without recording fresh evidence it was meaningless to hold fresh trial and in relying on the already rejected evidence the Jirga had unfairly acted. Accordingly, we cannot help setting aside the Jirga award as also the orders made subsequently on the basis thereof by respondents 1 to

3. Consequently, we accept the writ petition, set aside the orders passed by respondents 1 to 3 and direct that the case be re‑heard by another Jirga and decided afresh after collecting fresh material ash may be possible to collect by examining available witnesses. In the meanwhile, we allow bail to the petitioner in the sum of Rs.50,000 with two sureties in the like amount each to the satisfaction of the District Magistrate, Swat. H . B . T . /I‑687/P Petition accepted.