P L D 1980 Peshawar 183 (PLP)

SHAH ABDUL RASHID, J.-In this petition under Article 199 of the Constitution the petitioners, namely, Hazrat Ghani and five others challenge the orders made by the Additional Commissioner, Mala Kand Division (res pondent No. 2) and the Home Secretary, N.-W. F. P., Peshawar (in fact Addi tional Secretary, Home and Tribal Affairs Department, Peshawar) (respondent No. 3), passed on 7-8-1979 and 16-8-1979 respectively, as being illegal and without lawful authority and jurisdiction. The petitioners also pray that the respondents be directed to release them (the petitioners) on bail till the final decision of the case pending against them. The provisions of sections 494, 497, 498 and 561-A of the Code of Criminal Procedure (Act V of 1898) were also invoked to seek the redress.

2. The facts giving rise to this petition are that an occurrence took place on 6-6-1979 within the jurisdiction of Police Station, Timargarah and a report was lodged against the present petitioners and two others disclosing offences committed by them under sections 307 and 148, P. P. C. read with section 149 thereof. The first informant in that case was Muhammad Shehensbah who, along with his brother, was also charged in a cross-case relating to the same occurrence. All the petitioners and the accused of the cross-case were enlarged on bail by the E A C M/I C, Timargarah by his order-dated 17-6-1979. The State moved respondent No. 2 who, by his order-dated 7-8-1979, cancelled the bail granted to the petitioners. The petitioners then approached respondent No. 3 for setting aside the order of cancellation of bail but the prayer was rejected on 16-8-1979.

3. Although several points were raised in the present petition, the learned counsel appearing for the petitioners confined his arguments to the jurisdiction of the respondents Nos. 2 and 3 in interfering with the order of bail passed by the E A C M/I C on 17-6-1979.

4. The learned counsel first of all contended that since the bail was granted by a Magistrate of First Class the same could be cancelled only by the Sessions Judge of the district or this Court under the Code of Criminal Procedure and that respondent No. 2 or for that matter respondent No. 3 had no jurisdiction in the matter. His contention is that the petitioners moved respondent No. 3 to cancel the order of respondent No. 2 with a view to exhausting the remedy available to them inasmuch as the order made by respondent No. 2 could be questioned before the said respon dent. His first contention is that the offences for which the petitioner being proceeded against do not fall within the jurisdiction of the Special Tribunal created under the Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation, 1975 (Regulation I of 1975), and, therefore, respondent No. 2 who is a Commissioner within the definition of clause (a) of subsection (1) of section 2 of the said Regulation could not assume jurisdiction and interfere with the order of the Magistrate First Class. His second contention is that even if the offences fall within the jurisdiction of the Special Tribunal, respondent No. 2 could interfere only when by a special order the case is transferred from the Court of ordinary criminal jurisdiction to the Tribunal constituted under Regulation I of 1975.

5. As regards the first contention the learned counsel for the petitioner has failed to note the amendment made in Regulation I of 1975 by the Provincially Administered Tribal Areas (Special Provisions) (Amendment) Regulation, 1976 (Regulation IV of 1976) whereby subsection (1) of section 3 of Regulation I of 1975 was amended and it was provided that all offences punishable under the Pakistan Penal Code except those mentioned in Chapters VI, VII, IX, XI-A and XII are made triable in accordance with the provisions of that Regulation. Since the offences for-which the petitioners are being proceeded against do not fall under any of these Chapters, they are within the exclusive jurisdiction of the Jirga constituted under Regulation I of 1975. As regards the contention of the learned counsel regarding the desirability of making an order for the transfer of the case from a Court of ordinary criminal jurisdiction to the Jirga, there is no provision whatsoever in Regulation I of 1975 as amended and the offences which do not fall under Chapters mentioned in subsection (1) of section 3 have to be tried by a Jirga constituted under section 6 of the Regulation.

6. It was argued that the order was passed by a Magistrate of First Class and not by the Deputy Commissioner, and, therefore, it could not be cancelled by the respondent No. 2 In this respect there are two points, which need consideration. The first is whether the Magistrate, First Class, who is not delegated the powers of Deputy Commissioner under the Regulation can exercise jurisdiction of granting bail and the second is whether the EAC/MIC Timargarah was delegated the powers of Deputy Commissioner or not. If the powers of Deputy Commissioner have been delegated to the EAC/MIC, Timargarah then the order dated 17-6-1979 releasing the petitioners on bail was within his jurisdiction under section 16 of the Regulation and the respondent No. 2, who is exercising the powers of the Commissioner within the meaning of clause (a) of subsection (1) of section 2 of the Regulation, could interfere in appeal under section 23 there of. The said section gives exclusive power to the Commissioner to hear appeals against any decision given or an order passed by the Deputy Com missioner. No doubt the matter taken to respondent No. 2 was not speci fically captioned as appeal but it was by way of an application for cancel lation of bail, nevertheless the powers being available to the said respondent, the form of the application is immaterial inasmuch as it is the substance of the document and not its form which counts. The Commissioner having the jurisdiction to interfere with the order of bail made by Deputy Commissioner on appeal by the aggrieved party could validly entertain as application for cancellation of bail in spite of the fact that prayer to him was not worded as appeal, but purported to be an application for cancellation of bail. The order of respondent No. 2, in that case, namely t, when the original order was made under Regulation I of 1975 by exercising power of Deputy Commissioner, is quite valid and cannot be interfered with.

7. This Court has not been shown any notification conferring the powers of Deputy Commissioner on EAC, Timargarah but at the same time neither the learned counsel appearing for the petitioner nor the learned Assistant Advocate-General, who appeared for the respondents, could say whether he was or was not vested with those powers. However, if the powers of Deputy Commissioner were not vested in the said EAC then the order made by him on 17-6-1979 releasing the petitioners on bail was without lawful authority and this Court, while exercising jurisdiction under Article 199 of the Constitution, cannot pass any order which would result in restoring an order which is ipso facto illegal and without lawful authority or jurisdiction.

8. In view of the facts stated above there being no substance in this petition, it is dismissed. M.Y.M. Appeal dismissed.