1968 SCMR 522 (PLP)

HAMOODUR RAHMAN, J.-The petitioners In these petitions were tried aloflg with one Ghulam Mustafa by the Deputy Commissioner, Sargodha, under the Frontier Crimes Regulation for offence under sections 302/34 and 397/34 of Pakistan Penal Code. They were sentenced to 14 years rigorous imprisonment on the charge under section 302/34 and to 7 years rigorous imprisonment on the charge under section 397/34 of the Pakistan Penal Code, the sentence under section 302/34 of the Penal Code was required by section 12 of the Frontier Crimes Regulation to be confirmed by the Commissoner. It was, necordingly, referred to him for that purpose, but the petitioners in these two petitions also filed revisions against their convictions under section 397/34 of the Penal Code. The Commissioner maintained the convictions under both the counts by his order dated the 21st January 1964, but ordered the sentences to run concurrently. The petitioners then invoked the writ jurisdiction of the High Court of West Pakistan at Lahore against the order of the Commissioner. The High Court set aside the convictions and sentences under section 302/34 but upheld the validity of the convictions under section 397/34 of the Pent Code. The petitioners now seek special leave to appeal to this Court. The main complaint is that the High Court was not justified in splitting up the convictions on the two counts, as by the reference and revision before the Commissioner the entire case was opened up before him. The cases should not, it is contended, have, therefore, been split up, and the reference for confirmation of the sentence of 14 years under section 302/34 treated differently. The conviction under section 302134 of the Penal Code has been set aside on the ground that in the Full Bench decision in the case of Muhammad tIsman v. The State (P L D 1965 Lah. 229) the same High Court itself held that the provisions of the Frontier Crimes Regulation were opposed to Fundamental Rights guaranteed by the Constitution. Although Fundamental Rights had since been suspended, the High Court took the view that it was still bound by its Full Bench decision and, therefore, gave effect to it in the case of the conviction under section 302/34 which was confirmed by the Commissioner on the 21st of January 1964, after the Constitution crime into force. So far as the revision against the conviction under section 397/34 of the Penal Code is concerned it was held that since a revision is not a continuation of the original matter like an appeal the case relating to the conviction under section 397/34 was not opened out before the Commissioner and by the dismissal of the revision it became a past and closed transaction from the date it was originally made andp as such, could not be affected by the constitutional provisions subsequently introduced. We see no flaw in this argument of the High Court. The con tention advanced on behalf of the petitioners is clearly untenable. The order of the High Court is unexceptionable. Both these Petitions are, accordingly, dismissed. Leave refused.