P L D 1965 (W (PLP)

Dates of hearing: 9th, 10th and 11th June 1964. This criminal appeal is directed against the judgment of Sessions Judge, Kalat at Mach, in Criminal Appeal No. 54 of 1962, dated 11th October 1962. By‑ this judgment the learned Sessions Judge dismissed the appellant's appeal and maintained the conviction passed by the Nazim of Mastung.

2. This criminal appeal is an off shoot of a murder case tried by the Nazim as Magistrate. First Class, exercising section 9 power under Kalat Criminal Procedure Code, Mastung with the aid of the Jirga. The prosecution case is that P. W. Abdul Rehman lodged a complaint on 31st March 1960 in the Court of Tehsil dar Bhag that some unknown Shawanis had beaten his maternal uncle Abdul Rahim who had gone to fetch water on the previous day, i.e., in the afternoon of 30th March 1960, to Nala Pir Tayar Ghazi and had ran away. The injured person Abdul Rahim was brought home where he died next morning. The Naib Tehsildar forwarded the complaint to the S. H. O. Police Station, Bhag for enquiry. As a result of the investigation appellant Abdul Ghafoor and his co‑accused, Khaliq Dad, Abdul Aziz, Allah Dad, Safar Khan, , Abdul Karim and Muhammad Murad were challaned. in the Court of Nazim, Mastung. The last three accused absconded and the case pro ceeded against the first four. The learned Nazim, Mastung, after recording the prosecution evidence charged the accused under section 85, Kalat Penal Code. He also recorded the defence evidence and ultimately, referred the‑case to a Jirga. The Jirga presided over by him gave a finding that the said four accused and the absconders were guilty for the murder of the deceased and recommended that they should be punished according to law. Before the Jirga made its recommendation on 18th May 1962, to the Nazim, Abdul Ghafoor appellant also absconded. There upon the Nazim convicted, Khaliq Dad, Abdul Aziz and Allah Dad by an order dated 19th Juno 1962, under section 85 of the Kalat Penal Code and sentenced them to six years' R.I. each and a fine of Rs. 500 each. He further directed them to pay a total amount of Rs. 2,720 to the heirs of the deceased as compensation.

3. The case against the appellant was kept pending and a warrant for his arrest was issued. In July 1962, he appeared before the Court, when his case was again referred to a newly constituted Jirga. The appellant produced four more witnesses in defence of his plea of alibi. On 19th July 1962 the Jirga recommended that the appellant was innocent and returned a verdict of not guilty. The learned Nazim, however, did not agree with the finding of the Jirga and convicted and sentenced the appellant to the various terms of imprisonment referred to above. The appellant challenged his conviction before the learned Sessions Judge, Kalat, who dismissed his appeal by judgment, dated 11th Octoter 1962. Now the appellant has challenged his conviction in this appeal before this Court.

4. The appellant has challenged his conviction both on merit and legal objection. It will serve no useful purpose to consider the case on merits because I have come to the conclusion that the legal objection raised on behalf of the appellant is fatal and the appellants' conviction is liable to be set aside for that reason.

5. It is contended on behalf of the appellant that in a trial by Jirga, if under the award the verdict is that the charge for which an accused person is charged has not been proved and he is found to be not guilty, it is not open to the Nazim or the Magistrate presiding over the Jirga to differ from that finding and to hold a person as guilty and convict him on that basis. In support of his contention, the learned counsel has referred to the case of Shah Bakhsh v. The State (P L D 1962 Quetta 30). In that case a learned Single Judge of this Court has held that the Nazimul Hukumat (President of the Jirga) is competent to give final decision only in those cases where Jirga had expressed opinion that accused was guilty of the offence charged. The learned Single Judge further observed that once a Jirga gives a finding that an accused person is not guilty, that is not open to the Nazim to interfere with the award and convict him on his own conclusions reached on the appreciation of evidence produced by the prosecu tion in support of its case.

6. In that case the Nazim Mastung, who exercised special power under section 9 of the Kalat Criminal Procedure Code differed with the opinion of the Provincial Jirga, which returned a verdict of not guilty and convicted the appellant under section 85 of the Kalat Penal Code and sentenced him to seven years' R. I. It was urged before learned Single Judge that the Nazim had no jurisdiction to sentence the appellant for the alleged offence under the provisions of the Kalat Criminal Procedure Code. The learned Single Judge accepted this con tention. In this connection he observed as under:‑‑ "Learned counsel for the State was unable to point out any provision in the Code which expressly provides for the Magistrate with section 9 powers interfering with the award of the Jirga if it was to the effect that the accused was not proved to be guilty of the offence with which he had been charged. All that the learned counsel for the State could do was to point to section 74 of the Kalat Criminal Procedure Code which lays down that after the opinion of the Jirga had been recorded, the President of the Jirga has to ask the parties whether they accept the opinion of the Jirga, the President of the Jirga will attest the award, and if one of the parties refuses to accept the award, he will record their objection. But this section does not say that the president thereafter has to give his own decision. It appears to me that if it were intended that the Magistrate with section 9 powers, the President of the Jirga, had the absolute and unqualified power to interfere with the award of the Jirga in cases enumerated in section 93, it was unnecessary to specify in section 93 that in cases where the opinion of the Jirga was that the accused was guilty, the Magistrate could interfere and give his own final decision, and the easiest thing for the drafters of, the Code would have been to say that the Magistrate with section 9 powers (the President of the Jirga) would be competent to give his final decision irrespective of the fact whether the opinion of the Jirga was that the accused was or was not guilty. The very fact that the drafters of the Code had emphasised in section 9 powers (sic) was to give the final decision in cases where the Jirga had expressed an opinion that the guilt had been proved, to my mind indicates that where the Jirga had expressed a contrary opinion namely, that the guilt of the accused had not been established, the Magistrate with section 9 powers could not interfere with that opinion." It will be noted that the above‑mentioned view expressed by the learned Single Judge. fully supports the appellant's contention in this appeal.

7. Mr. Ataullah Sajjad, the learned Additional Advocate General has urged before me that the view taken by the Single Judge is not based on proper appreciation of the provisions of Kalat Criminal Procedure Code. His main contention is that under the Scheme, of the Kalat Criminal Procedure Code in matters tried with the assistance of the Jirga, the final decision rests with the President and not with the Jirga. In support of his contention the learned counsel referred us to various provisions of Kalat Criminal Procedure Code. However,' a reference to these pro visions makes it perfectly clear that so fact as conduct of the trial is concerned, the President of the Jirga has to direct it in accordance with law. On question of law his direction is to be followed and his decision is final. But on question of facts the finding of the Jirga is final with this exception that if a verdict of guilty is returned, the President can differ with it and acquit the accused of the offence for which he is charged.

8. The most important provision which requires considera tion is section 93 of the Kalat Criminal Procedure Code. It provides that in cases of major offences such as murder, rape, dacoity, theft and siakari, etc., if the Sardari of Provincial Jirga returns a verdict of guilty, the final decision rests with Magistrate, First Class exercising power under section 9, Kalat Criminal Procedure Code. In. other words the Magistrate concerned is competent to differ, from such, verdict and acquit an accused person. This provision is silent about the power of A the Magistrate in a case where a verdict of not guilty is returned. In the absence of any specific direction in this respect, the only legitimate interpretation is that the Magistrate concerned has no power to interfere and cannot differ with the verdict of the Jirga and pass a final order. I have, with the aid of the learned counsel for the parties, gone through the various provisions of the Kalat Criminal Procedure Code and have not been able to find out any such power.

9. The contention of the learned Additional Advocate. General that this power can be spelled from section 74, Kalat Criminal Procedure Code has not impressed me and does not appear to be well‑founded. The object of this provision is only to record the objection of the parties on the opinion ex pressed by the Jirga, so that in case both the parties or any party accept the award, they or he may not be allowed to challenge it in appeal or revision. This duty is entrusted to the President of the Jirga. But it nowhere lays down that there‑ h after the President of the Jirga will finally decide the case. Simply because the President of the Jirga has to record the objection of the parties, it would be too much to hold that in all cases the final decision rests with the President and it is open to him to differ in a case in which a verdict of not guilty is returned. No such construction can be given to the provision under consideration.

11. It appears to me also that had that been the intention; the easiest way for the drafters bf the legislation would have ,been to provide that the Magistrate exercising section 9 power was not bound to accept the opinion of the Jirga and could decide the matter in any way he likes. It is urged that if this interpretation is given, it is likely to result in hardship and injustice. But this consideration never weighs with the Courts C of law while interpreting a statute. Moreover, in my view the absence of any such provision is not likely to result in any injustice because under sections 125 to 129 of the Kalat Criminal Procedure Code it is open to an aggrieved party to file an appeal without any difficulty even against a judgment of acquittal.

12. In the light of the above discussion, it is perfectly clear that the Nazim of Mastung was bound to accept the verdict of not guilty returned by the Jirga. In law he had no jurisdiction to disregard this verdict and convict the appellant on his own independent conclusion reached on the appreciation of the evidence produced on the record. I would, therefore, set aside the con viction of the appellant and allow the appeal.

13. In the result the appeal is allowed. The appellant is directed to be released forthwith. S. Q. Appeal allowed.