P L D 1963 (W (PLP)

"I beg to submit as follows :‑ (1) I submitted an application to the Deputy Commissioner, Bannu in October last that Dilbar accused No. 1 who has been acquitted on writ petition from 14 years' R. I. may be rearrested for fresh Jirga under the Rules. (2) Thus my application which was forwarded to the S. H. O. Saddar for report, the S. H. O. Saddar submitted his report to S. P. Bannu that my application is in time and legally a fresh Jirga be appointed. (3) Thus the S. P., Bannu returned back my said Application to the Deputy Commissioner, Bannu for necessary action. But as my this application is also attached with the case of Sar Anjam accused No. 2 for nothing, thus no action has been taken by the Assistant Commissioner, Bannu so far. Therefore it is also requested to kindly move the authorities to complete the investigations regarding Sar Anjam and return both the cases to the Deputy Commissioner, Bannu for further necessary action as the case is lingering on since 1955."

7. On the 28th of April 1960, Arbab Noor Muhammad Khan, Deputy Commissioner, after giving a short history of the case, ending in the discharge of the accused under section 209 Cr. P. C. on 75‑8‑1958, gave the following reasons for referring the case to a fresh Jirga :‑ The Government have again enforced the provision of the F. C. R. in the area to which it was previously applicable and on the application of Muqarrab Khan, father of the deceased, the case is again referred to the following Jirga on the following issues. The Members of this Jirga on the 8th of August 1960, submitted an award that they had not succeeded in un‑earthing the true facts of this case because both the parties have done so much propaganda in the ilaqa during the five years that it is almost impossible to come to correct findings." They, therefore, recommended "that this case be referred to a fresh Jirga who may be able to come to some conclusion".

8. The Deputy Commissioner ordered the constitution of a fresh Jirga to try the guilt of Dilbar and Sar Anjam accused, and asked the Deputy Commissioner, Kohat to suggest names of three persons as Members of the Jirga. The new Jirga comprising of three Members from Kohat with Mr. Gul Khan, E. A. C., Bannu as Chairman, tried Dilbar petitioner and Sar Anjam, and in its award dated the 1st of January 1961, found both Dilbar and Sar Anjam as guilty and recommended a lenient view in the matter of sentence, on the ground that the deceased was carrying intrigue with the wives of Dilbar and Sar Anjam, and had also been ill‑treating them. Arbab Noor Muhammad Khan, Deputy Commissioner, Bannu, by his order dated the 5th of January 1961, accepting the recommendations of the Jirga, sentenced Dilbar and Sar Anjam accused to ten years' R. I. each, subject to con firmation by the Commissioner F. C. R.

9. Dilbar alone has filed a writ of habeas corpus challenging his conviction. The gravamen of the petition is to be found in para. 4 of the petition which reads thus :‑ "That without having the order of discharge set aside the petitioner was again tried by Jirga and sentenced to 10 years' R. I. under section 302/34, P. P. C./11 F. C. R. by the Deputy Commissioner, Bannu by his order dated 5‑1‑1961. This is Annexure "B." The Deputy Commissioner, Bannu, in para. 3 of the report in defence of the conviction of the petitioner, stated as under :‑ That as a result of fresh complaint of the father of the deceased dated 3‑10‑59 and subsequent applications (copies attached) the accused was summoned by the Deputy Commis sioner who is also the District Magistrate, and as such he became once again an accused person, at the time of passing of the order of reference dated 28‑4‑1960, (copy attached). The order of reference and further proceedings against the petitioner under the F. C. R., were, therefore, competent even in view of the ruling of the High Court in case Sherwali v. The State P L D 1961 Pesh. 117 at pp. 126‑

127. In the circumstances the question of having the order of discharge set aside did not arise.

10. Doctor Abdur Rahim, the learned counsel for the petitioner, on the strength of the Full Bench decision in Sher Wali and others v. The State (P L D 1961 Pesh. 117), argued that the order of reference by the Deputy Commissioner, without setting aside the order of discharge or filing of a fresh police challan or a fresh complaint, was illegal and the conviction recorded on the basis of the award of such Jirga was illegal.

11. S. Ghazanfar Ali Shah Bukhari, the learned A. A: G. on the other hand argued that the petition dated 3‑10‑59 (to the address of the Deputy Commissioner) and the two petitions dated 18th January 1960, by Muqarrab Khan to the joint address of District Magistrate, Bannu, Additional Commissioner, D. I. Khan and Major‑General Bakhtiar Rana, Martial Law Administrator, were to be deemed as fresh complaints and, therefore, the reference of the case to a fresh Jirga by the order of the Deputy Commis sioner dated 28‑4‑1960 and. 23‑9‑1960 was valid. The learned A. A.‑G. also relied on the Full Bench decision of this Court in Sher Wall v. The State.

12. The full Bench in Sher Wali v. The State, among other questions, was called upon to decide the question as to whether a person "discharged under section 209 or 253, Criminal Procedure Code, can fall under accusation again, and can be retried". S. A. Mahmood, J. delivering the judgment for the Full Bench at page 126 observed :‑ "That there is no bar to his being tried again, has been held already in view of the explanation to section 403, Cr. P. C., and the decision in Emperor v. Kiru. Therefore, a fresh police report on the same facts is competent, and if it is filed, the person is again accused of an offence and a reference of the case to a Council‑of‑Elders can be made. Again if the order of discharge is set aside under section 436 or 437, Cr. P. C. the same result follows. When there is an accusation being gone into a Court, there is a pending case, or when he is committed to the Court of Sessions or a trial has commenced, there is scope of the making of an order under section 14 or 15, F. C. R. Thus a fresh challan or police report, though on the same facts, or setting aside of the order of discharge will unable the Commissioner or the Deputy Commissioner to make an order of reference to the Council‑of‑Elders under the F.C.R., without a fresh complaint or a police report or a challan against a person or without the setting aside of the order of discharge, he is not an accused person, and there is no power in the Commissioner or the Deputy Commissioner to make an order in relation to him under the F. C. R." At page 127 in para. 19, Mahmood, J. observed as under "After withdrawal of a revision petition, a fresh complaint or a fresh police report in writing appears to be necessary and there should be a mention of it in the order. It should be clear on the record in the case of a person discharged that he has been accused of the offence again." (Italics are mine).

13. It remains to decide whether any one of the four petitions, referred to in para. 6 of this order given by Muqarrab Khan, father of the deceased, can be termed as "Complaints" within the meaning of the term of section 4 (1) (h) of the Criminal Procedure Code. It will be convenient here to read the definition of the term "complaint", which runs thus :‑ "Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer." It will be manifest from reading the definition of the term "complaint" that an allegation in order that it may constitute a complaint (1) must be made to a Magistrate, and (2) must be made with a view to taking action by the said f Magistrate, and (3) action proposed to be taken must be under this code i.e., Criminal Procedure Code.

14. None of the four petitions given by Muqarrab Khan fulfill the requisite conditions of the term "Complaint". The first petition, dated the 3rd of October 1959, as also the second petition dated the 29th of December 1959, were not addressed to a Magistrate, but were addressed to the Deputy Commissioner. As already stated, the first petition required the Deputy Commis sioner to constitute a second Jirga. The second petition required the Deputy Commissioner that he should proceed against Sar Anjam, who had been erroneously acquitted by the Jirga, on the ground that he was dead. The other two petitions dated the 18th of January 1960, though addressed jointly to the District Magistrate, Bannu, Additional Commissioner, D. I. Khan, and Major‑General Bakhtiar Rana did not require the District Magistrate to take action under the Criminal Procedure Code, but both those petitions in most unequivocal terms required the District Magistrate to order a fresh Jirga, which powers could be exercised only by the Deputy Commissioner and not by the District Magistrate. The first two petitions also did not require any action to be taken under the Criminal Procedure Code, but wanted the Deputy Commissioner to constitute fresh Jirga. Again, the Deputy Commissioner, Bannu did not at all treat any one of those petitions as "Complaint", for none of them was entrusted by him as a District Magistrate to any one of the Magistrates for inquiry. On the other hand, in the final order dated the 28th of April 1960, the Deputy Commissioner, after giving the history of the case ending in the discharge of the petitioner and Sar Anjam under section 209, Cr. P. C., ordered the fresh Jirga on the ground that the Government had again enforced the provision of the F. C. R. and "on the application of Muqarrab Khan, father of the deceased, the case is again referred to the following Jirga on the following issues. "In other words, it is clear from the record that none of the petitions given by Muqarrab Khan was intended by him to be treated as "complaint", nor the same were treated as such, but the Deputy Commissioner in the final order, acting under the F. C. R., ordered the constitution of fresh Jirga without the order of discharge having been set aside.

15. It follows from the above discussion that after the discharge of the accused there had been no fresh "complaint" against the petitioner, and as such he would not fall under fresh accusation so as to authorise the Deputy Commissioner to refer the case of the accused to Council‑of‑Elders under section 11 of the F. C. R.

16. In the result, the conviction of the petitioner recorded by the Deputy Commissioner by his order dated the 5th of January 1961 is illegal. I accordingly accepting the writ petition, set aside his conviction and sentence and acquit him. He is on bail. His bail bond is cancelled. K. B. A. Petition accepted.