P L D 1963 Supreme Court 270 (PLP)

A. R. CORNELIUS, C. J.-These two appeals, by special leave, are brought by the State against Nawab Gul (No. 29 of 1962) and against Daud Shah (No. 31 of 1962), to call in question an order by the High Court of West Pakistan quashing the reference by the Deputy Commissioner of Peshawar of a case against them and one Gulin, under section 302/34, P. P. C. to a Jirga, under section 11, Frontier Crimes Regulation. Nawab Gul and Daud Shah moved separate writ petitions against the order of reference. It does not appear what steps Gulin took to safeguard his interest. As the case involves withdrawal of a charge of a serious, crime from the regular jurisdiction of the ordinary Courts, into a special jurisdiction under the Frontier Crimes Regulation, and the', withdrawal purports to be made under forms of law, and is thus subject to examination by the ordinary Courts, it is permissible to take a brief look at the facts. They are stated succinctly and completely in a petition filed by the Prosecuting Sub-Inspector of Nowshera before the Deputy Commissioner of Peshawar which may be reproduced in full with advantage:- "Sheikh "Sheikh Habibur Rehman of Rashaki, who had embraced Islam about 40 years ago was running a `Karyana Shop' in village Maho Dheri in the limits of Mardan District and used to go to Maho Dheri in the morning and come back in the evening daily to his house in village Rashaki. It is alleged that Nawab Gul accused was making efforts to get the shop of Habibur Rehman deceased, as it was a business proposition. In this connection he approached the agent of Nawabzadas of Hoti as village Maho Dberi is their property. Daud Shah son-in-law of Nawab Gul also helped his father-in-law in ousting the deceased. The deceased was also making efforts to prove the efforts of the accused fruitless and had approached Nawabzada Muhammad Amir Khan of Hoti in this connection. The shop in question was given to the deceased by the late Nawab of Hoti in his lifetime without rent as the deceased was working as weighman for the Nawab in village Maho Dheri and surrounding area. It is alleged that Nawab Gul and Daud Shah accused approached the deceased directly to vacate the shop, but the deceased was not prepared to do so at any cost. In order to do away with the deceased the two accused (Nawab Gul and Daud Shah) kept the way of the deceased on the evening of 19-9-57 and shot him dead. The kith and kin of the deceased learnt about the occurrence on the following morning and rushed to the spot, where they found the dead body of the deceased; step-son of the deceased came to the P. S. and lodged the F. I. R. He charged no one in the initial report. During the course of investigation and enquiry in the Court, P. Ws. Gul Rehman, Sheikh Abdul Latif, Abdur Rauf and Khan Sher appeared it support of the motive. They all stated that Nawab Gul and Daud Shah were trying to oust the deceased from his shop to which he was not prepared. Remarks.

The deceased was shot dead after evening in the dark in between the villages Rashaki and Maho Dheri. He was an old man of 65 years and had no enmity with any one either in the village Rashaki or Maho Dheri. The investigation of the case revealed that accused Nawab Gul and Daud Shah made efforts to oust the deceased of his shop and instead Nawab Gul accused should run the shop. The statement of P. W. Abdur Rauf shows that three days before the occurrence the deceased had told him that the two accused were trying to oust him of his shop, but he had approached Nawabzada Muhammad Amir Khan of Hoti (the owner of the shop) not to disturb him. In order to get the shop of the deceased he was shot dead. No one witnessed the occurrence. There is no evidence in the case to stand in the regular Court of law, and hence they were discharged under section 209, Cr. P. C. by the A. C. Nowshera on 5-4-1958. The motive behind the offence is strong enough for moral conviction. The poor man was shot dead for (his) no fault. It is, therefore, requested that the order of discharge may be set aside and the case may kindly be recommended to be referred to the Council-of-Elders. There is no evidence against Gulin accused and that he was placed in column No. 2 of the challan" Certain matters stand out prominently in this report, which is commendable for its candour. Habibur Rehman was shot dead, on the road between two villages. He had no enemy in either village. He was shot in the evening, and in the dark. No one witnessed the shooting. The murder was discovered the following morning. No one was accused in the initial report. Inquiry by the Police had shown that Habibur Rehman was m possession of a shop, as a tenant, which Nawab Gul desired for himself, and had accordingly approached the landlord's agent for the purpose. Daud Shah is son-in-law to Nawab Gul and assisted the latter in his effort. Habibur Rehman had refused a direct request by these persons, and had himself approached the landlord directly for support. The conclusion was formed that he was shot, "in order to get the shop". There was "no evidence in the case to stand in a regular Court of law," but "the motive behind the offence is strong enough for moral conviction." The possibility is not considered that the man may have been mistaken for some one else, or that the shooting was wanton, or even motiveless. No mention is made of any circumstantial evidence, which might have helped in the tracing of the culprit. No hearsay evidence is mentioned. Nothing is said even of any clue leading to identification of the accused persons by any act or conduct on their part, e.g., anything said by one or other of them concerning the crime. Giving full weight to every thing appearing on the face of this petition, the conclusion would seem to be clear that, apart from the evidence regarding the tussle over who should have the shop, which was being conducted in the most normal way, by approach and counter-approach to the landlord, there was nothing to connect the accused persons, with the shooting. As to the third accused person, Gulin, there was no evidence at all, as he seemed to be free of involvement in the affair of the shop. In the circumstances, it seems impossible to discover what there would be for the Jirga to try. We are conscious that the duty of a Jirga is not merely to try a prepared, case. It is required to come to a finding on the guilt or innocence of accused person "after such enquiry as may be necessary, and after hearing the accused person". But, in this case, unless the enquiry were to proceed on distinctly unorthodox lines, e.g., by third-degree methods, or at the other extreme, by reading of omens, or other adventitious devices, it was more than clear that to go forward with the enquiry was futile. And we do not conceive that it is the intention of section 11 to allow enquiry by methods other than those consistent with reason, and the civilized decencies. The action taken on the revision application was as follows. The Deputy Commissioner's order noted that the Peshawar Bench of the West Pakistan High Court had delivered a judgment in the case of one Qasam Khan (the reference is to the case reported in P L D 1959 Pesh. 158 apparently), on the basis of which, the Prosecuting Sub-Inspector withdrew his application for revision of the order of discharge. That decision, which was disapproved in the judgment of the Full Bench delivered in the present case, was to the effect that despite a discharge on the regular side under the Criminal Procedure Code, the accusation remains effective for purposes of a reference to Jirga under section

11. The order accordingly directed that the case be "taken up in F. C. R. for trial under section 11 F. C. R." and that the Commissioner's sanction should be first obtained. This was duly accorded, and it is interesting to note that although in his petition, the Prosecuting Sub-Inspector had clearly said that there was "no evidence" against Gulin, yet a reference was directed to be made and was made of the "case" against him as well. As already mentioned, only Nawab Gul and Daud Shah moved writ petitions against the reference. The statute is worded so as to make it a matter of expediency, within the judgment of an executive authority, whether a case should be heard by a Jirga or should be left to be tried under the regular procedure by the ordinary Courts. The Courts cannot be the final judges in a question of expediency, which is entrusted by the law to the executive for decision, but it may be permitted to question whether it can ever be expedient to refer under section 11, for trial a set of facts, which do not constitute a case at all. If the question were whether the two respondent had an eye on the shop, that would be susceptible of enquiry and decision, but a positive answer would not suffice to connect them C with the killing, on the facts as they appear. Something more would be needed to make out a prima facie case, and it is clear that nothing more had been discovered. It may well be that a Jirga would have discovered this lacuna for itself, had it taken up the case, but we do not conceive that section 11 is designed to empower a Jigra either to make out a case, or itself to raise for decision a question of the guilt or innocence of the persons sent to it for enquiry, when the reference on its facts does not make out such a question. At a time when to a rapidly increasing extent, the jurisdiction, long-established and familiar, belonging to the ordinary Courts, is being avoided in cases of serious crimes by orders of withdrawal made on the grounds of expediency, it is of importance that it should be known, in what kind of cases and in what manner, the power is being exercised. The present is a case whose facts give ample cause for concern whether public justice is advanced by proceedings of this kind. Or whether, on the contrary, if it becomes a general risk that men may be sent to be tried by Jirga when there is visibly no case against them, and they are deprive of redress through the ordinary forms of law, there is not danger that the image of public justice, built up with the aid of careful legislation and steady implementation of rules of procedure for at least a hundred years, will inevitably be destroyed. What might follow can well be imagined. An immediate result will be that devotion to law and to lawfulness in behavior will be at a total discount. As, however, the case was not argued on the basis that the reference to a Jirga was bad, for absence of any proper question of guilt or innocence in respect of the crime charged, we proceed to examine the matter, in the light of the High Court judgment. The case was heard in the High Court by a Full Bench of three Judges in consequence of a difference of view, which had appeared in decisions given by Division Benches and Single Benches on the question whether the effect of a discharge by a Magistrate is to avoid the accusation. As has been seen, the Deputy Commissioner had relied on a judgment of the year 1959, in which the view had been taken that such an order does not affect the existence of the accusation, but there were judgments also to the contrary effect. The Full Bench accordingly made a lengthy examination of the provisions of the Frontier Crimes Regulation as well as of relevant sections in the Criminal Procedure Code and came to the conclusion that the effect of an order of discharge is to relieve the person accused from the accusation, but it does not prevent him from being brought under accusation on the same facts once again, provided a fresh complaint or challan has been filed. They concluded that in the case against Nawab Gul and Daud Shah and three other cases before them, the order of reference under the Regulation was not competent "because there were no fresh Police reports or cases filed or pending against them and the orders of discharge had not been set aside." Special leave to appeal was granted on application by the State in the present cases "to consider the law point raised on which apparently there exists a difference of opinion in the High Court." By the time the appeal came on for hearing, two judgments were pronounced by this Court which seem to us to set the doubt, arising from the varying decisions given in the High Court, finally at rest. The first is the case of Abul Hossain Sana v. Suwalal Agrawala (P L D 1962 S C 242), relating to a case under section 385/465, P. P. C. The accused had been discharged under section 253, Criminal Procedure Code by a Magistrate before whom no evidence had been produced despite a number of adjournments. In dis charging the accused, the Magistrate held expressly that the charge was groundless. A revision petition was filed before the Sessions Judge, but while this was pending, an application was made to the Magistrate to revive the proceedings previously concluded by this order of discharge. This was acceded to without notice to the other party and proceedings were recommenced. A revision petition before the Sessions Judge failed, and a further revision in the High Court was also dismissed, where a learned Single Judge held that "if there was sufficient cause for non-production of evidence in the proceedings which resulted in a discharge, the proceedings could be revived." The matter coming up in appeal before this Court, it was held that when a Magistrate -passes an order of discharge, he exhausts his jurisdiction, and becomes functus officio, since be has no power of review. It is only by an order of a superior Court on revision that the same proceedings can be re-opened. The absence of an express bar in the Code to re-opening of the same proceeding by the same Court is immaterial, in view of the rule that jurisdiction once exercised is exhausted. It was laid down as a general rule that after making an order of discharge in respect of an offence, a Magistrate is prohibited from entertaining the same proceedings afresh. The decision does not exclude commencing of a fresh proceeding by means of a fresh motion by a private person or by the Police, and, in our opinion, makes it sufficiently clear that after an order of discharge has been made by a Magistrate there is no accusation in existence upon which the same Magistrate or any other Magistrate can proceed, but if it is proposed to bring the same offence under examination again, this must be done by making a fresh complaint or equivalent motion before the Court. The next case is one relating to the Frontier Crimes Regulation and is reported as Pir Badhsha and another v. The State (P L D 1963 S C 93). It was laid down in that case, firstly, that a discharge order is not a legal bar to a fresh prosecution, though it bars revival of the case on the same proceeding without an order of a superior Court, and, secondly, that it is competent to a Court to entertain a fresh complaint of the same offence after discharge, where upon the person complained against becomes accused once again, and a reference of his case to a Jirga becomes legally possible. In view of these decisions, it is clear that the conclusion reached in the present case by the High Court was a correct one, but before us a further question has been argued, namely, whether the fact of the revision before the Deputy Commissioner did not have the effect of reviving the proceedings which had been terminated by the previous order of discharge, and which the Prosecuting Sub-Inspector was seeking to have set aside. The High Court had acted on the basis that the revision petition had been withdrawn, but it could be said that the withdrawal, being under a misconception as to the correctness of a decision which was disapproved by means of the same judgment, should be regarded as ineffective, so that, for the purposes of the argument, the revision could be thought to be still pending before the Deputy Commissioner when he made his order of reference. Mr. Ataullah Sajjad appearing for the State has not been able to place before us any authority to the effect that the mere institution of a revision petition revives the original proceeding. Such a revival takes place when an appeal is instituted, for an appeal has generally the effect of continuing the original pro ceeding. He contended that after the issue of a notice to the accused person in compliance with the proviso to section 436, Criminal Procedure Code, the accusation should be thought to have been revived, but even on this point, he was unable to place any relevant authority before the Court. He referred to a Nagpur decision in the case of Mohammadi Gul Rohilla (A I R 1932 Nag. 121), which he cited in support of the proposition that the issue of a notice in an appeal has the effect of reviving the case, but as we have said, an appeal and a revision are not to be treated as parallel proceedings in the respect here in question. In a revision proceeding, what is in question is "the correctness, legality or propriety of any findings, sentence or order recorded or passed"; it may also be concerned with "the regularity of any proceedings." The question of the guilt or innocence of a person is only collaterally or consequentially involved. The operative provision here relevant, namely, section 436, Criminal Procedure Code is primarily concerned with ascertaining the correctness, legality, propriety or regularity of the proceedings which terminated in the order of dismissal under section 203 or 204 or of discharge in the case of "any person accused of an offence". The guilt or innocence of such a person only becomes a live issue if and when further enquiry is ordered. The fact that the person accused, is entitled to an opportunity to show cause why the discharge order should not be set aside does not alter the central fact that it is the correctness, etc., of the inferior Court's proceedings which are in question, and the person previously accused is required to be notified by reason of his being liable to be adversely affected, if error illegality, etc., is found in the order under examination. Therefore the mere fact of there being a revision pending before the Deputy Commissioner in the case of the present respondents did not by itself operate to revive the accusation against them, so as to make the reference to a Jirga possible in terms of section 11, F. C. R. We accordingly dismiss these appeals. A. H. Appeals dismissed,