P L D 1964 (W (PLP)

Sher Bahadur Khan, A. A. G. for Respondent. Date of hearing: 4th November 1963. One Shamira of village Dawa was murdered on the night of (7th and 18th of September 1960, in village Dawa, D. I. Khan District, Sada, Naza, Ghulam Muhammad and Faraza alias Wazira, were proceeded against as accused persons in the case. The case was pending in the Court of the enquiry Magistrate, when it was withdrawn for trial under the F. C. R. The Deputy Commissioner, as a result of the verdict returned by the Jirga, acquitted Ghulam Muhammad and convicted Sada and Naza, and sentenced them to fourteen years' rigorous imprisonment each under section 302/34 P. P. C. Faraza ailas Wazira, however, had absconded after the occurrence, and order of his conviction and sentence was passed against him, in his absence, and a permanent warrant of arrest was ordered to be issued against him. Sada, after having failed in the revision petition, which he had lodged to the Commissioner, F. C. R., instituted a writ petition in this Court, and it was disposed of by a Division Bench on the 15th March 1962. In this Writ Petition (No. 264 of 1961) it was decided that none of the accused persons was the resident of the six districts of the old Frontier Province in which the Frontier Crimes Regulation was in force, and all of them were the residents of District Muzaffargarh, and therefore they were not triable under the F. C. R. On this ground, the conviction and the sentence of Sadda petitioner were set aside by the issuance of a writ of certiorari and it was directed that if the relevant authorities deemed it proper the accused might be tried under the ordinary law. Sadda was also released on bail in a sum of Rs: 10,000 with two sureties for the purpose of attending the proceedings that might be started against him in the Court under the ordinary law.

2. Sadda, petitioner, thereafter was committed to the Sessions Court to stand trial under section 302/34 P. P. C. under the ordinary law. On the 13th of March 1963 the date fixed for the trial of the petitioner in the Sessions Court, the Public Prosecutor produced written instructions from the Deputy Com missioner, D. I. Khan District for the withdrawal of the prosecution of the case from the Court of the Sessions Judge. These instructions were conveyed to him by Memorandum No. 834/R, dated D. I. Khan the 12th of March 1963. The Public Prosecutor produced this Memo before the Sessions Judge, and on its basis, applied that he had withdrawn from the prosecution of Sadda in order that the case be referred to a Council‑of‑Elders. The learned Sessions Judge (Khan Muhammad Shafiq Khan), Derajat, passed the impunged order on the same date, in which he stayed the further pro ceedings and ordered the release of the petitioner on bail. It is against this order that Sadda had come to this Court in revision petition. This revision petition was placed in limine, before Faizullah Khan J. on the 11th of April 1963, and after hearing Dr. Abdur Rahim Advocate for the petitioner, the learned Judge issued notice to the A. A. G. only on the point, whether a revision petition lies against the impunged order.

3. The Deputy Commissioner had issued the instructions to the Public Prosecutor for the withdrawal of the prosecution under section 15 (1) of the Frontier Crimes Regulation, and the Sessions Judge has stayed the proceedings under section 15 (2), F. C. R. Section 15 reads as under:‑ " 15 (1) In any trial before a Court of Session, the Public Prosecutor may, when instructed in writing in that behalf by the Commissioner or the Deputy Commissioner, at any time before an order of conviction or acquittal has been made with respect to any accused person, withdraw from the prosecution of such person in order that the case may be referred to a Council‑of‑Elders. (2) The Sessions Judge shall thereupon stay proceedings with respect to such person, and the Deputy Commissioner shall refer the case to a Council‑of‑Elders."

4. As is evident from the provisions of section 15 (1) it is the Deputy Commissioner or the Commissioner who has to take the initiative in issuing instructions to the Public Prosecutor for the withdrawal from the prosecution of the accused person in order that the case may be referred to a Council‑of‑Elders. After the Commissioner or the Deputy Commissioner had issued the instructions to the Public Prose cutor, for notifying his intention to withdraw from the prosecution to the Sessions Judge, the latter had no option but to stay the proceedings as is evident from the use of the word "shall" in sub section (2) of section 15, F. C. R. If the Sessions Judge was competent under the F. C. R. to sit in judgment over the order passed by the Commissioner or the Deputy Commissioner with respect to the direction issued to the Public Prosecutor to withdraw from the prosecution of the accused and he had not exercised that discretion judicially but had exercised it arbitrarily and capriciously, then the order of the Sessions Judge should have been revisable by the High Court but this is not so in the case. The Sessions Judge had to comply under the provisions of subsection (2) of section 15, with the order, requiring withdrawal from the prosecution by the Public Prosecutor of the accused persons for referring the case to the Council‑of‑Elders, and therefore, the order of the Commissioner or the Deputy Commissioner was the order against which an action was required to be made the subject for the scrutiny by the superior authorities. The duty cast on the Sessions Judge under section 15 (1) F. C. R. was nothing except to stay the proceedings under the mandatory provisions of sub section (2) of section 15 F. C. R. His compliance with the orders passed by the Deputy Commissioner, an authority which was empowered by subsection (1) of section 15 F. C. R. to pass such order cannot be made subject to revision by the High Court. In the instant case, since the Deputy Commissioner had passed the impunged order, the petitioner would have been well advised if he had preferred a revision petition to the Commissioner, under section 50 F. C. R. If the Commissioner had dismissed the revision petition then he was at liberty to have invoked the writ jurisdiction of the High Court. Since the Sessions Judge bad not passed any order in the eye of law, therefore, his staying the proceedings, in obedience to sub section (2) of section 15 would not, by any stretch of imagina tion, be considered as an order revisable by the High Court in its ordinary criminal jurisdiction. The revision petition, therefore, is incompetent. It is dismissed. K. B. A. Petition dismissed.