P L D 1961 (W (PLP)

S. A. MAHMOOD, J.‑

These writ petitions have been referred to a Full Bench, because there has recently been a conflict of opinion in the interpretation of sections 11 and 14 of the Frontier Crimes Regulation (hereinafter called F. C. R.). They will be disposed of by this judgment.

2. In Writ Petition No. 174 of 1959, Sher Wall etc. v. The State, six persons were challaned under section 302, P. P. C., for having committed the murder of Jumma Khan on the night between 18/19th of January 1957. Khan Sultan Ahmad Khan, Magistrate, 1st Class, Nowshera discharged them under section 209 of the Code of Criminal Procedure on the 15th of January 1958, after recording 18 prosecution witnesses, on the ground that there was no case against them for committal. The police preferred a revision petition under section 436 of the Code of Criminal Procedure before the Deputy Commissioner, Peshawar, against this order, but it was withdrawn by the Prosecuting Inspector on the 29th of July 1959 and the Deputy Commissioner proceeded to make the following order under section 11, F. C. R. "In view of recent ruling of the High Court of West Pakistan revision under section 436, Cr. P. C. is withdrawn by the P. I. The case taken up in F. C. R., for trial under section 11, F. C. R. Usual sanction for trial under the F. C. R. may be obtained from the Commissioner, Peshawar Division, Peshawar." This order is challenged on the ground that it is not competent, because the accused had been discharged and there was no pending case against them and the petitioners were no more accused persons within the meaning of section 11, F. C. R.

3. In Writ Petitions No. 190 of 1959 "Nawab Gul v. The State" and No. 95 of 1960 "baud Shah v. The State." Nawab Gul and Daud Shah petitioners along with Gulal were prosecuted for the murder of one Khushal committed on the 20th September 1957. The case could not be sent for trial by jirga under section 11, F. C. R., as the High Court of West Pakistan had held the F. C. R. to be ultra vires of the Constitution. Mr. Ijlal Haider Zaidi, Magis trate, 1st Class, Nowshera, after recording the prosecution evidence discharged the accused under section 209 of the Code of Criminal Procedure on the 6th April 1958, on the ground that there was no eye‑witness connecting the accused with the crime. The police filed a revision petition under section 436, Cr. P. C., against the order of discharge, before the Deputy Commissioner in his capacity as District Magistrate. Notice of this petition was issued to the accused. After the Supreme Court of Pakistan laid down in State v. Doso and another (P L D 1958 S C (Pak.) 533), that with the abrogation of the Constitution the F. C. R. had become good law, the revision petition was withdrawn by the prosecuting agency, and on the request of the Prosecuting Sub‑Inspector, the case was ordered by the Deputy Commissioner to be taken up for trial by a jirga under section 11? F. C. R. on the ground that the case was judicially weak, and could not stand the test of judicial inquiry. The Commissioner, Peshawar Division also accorded his sanction for the trial of the case under section 11, F. C. R. The petitioners challenge the validity of the order on the same grounds as stated in the case of Writ Petition No. 174 of 1959.

4. In Writ Petition No. 52 of 1960, "Ghulam Sarwar v. The Home Secretary to Government o/' West Pakistan, etc." it was reported to the police that Fazal Akbar, a nephew of Ghulam Sarwar Khan petitioner, had committed suicide on the 28th May 1956 and the police after investigation reported that it was a case of suicide. The case was sent to the Assistant Com missioner. Charsadda, for inquiry under section 174 of the Code of Criminal Procedure, who referred it to a Magistrate, 1st Class. Charsadda, for necessary inquiry and report. The Assistant Commissioner agreed with the police report that it was a case of suicide. On the 5th September 1956, one Abdul Sattar made a complaint against Ghulam Sarwar Khan and three others alleging that they had committed the murder of Fazal Akbar, and it was not a case of suicide. This complaint was sent for inquiry to S. Akbar Ali Shah, Magistrate, Class, Charsadda. The com plainant in his statement stated before him that he could not procure any evidence in support of the charge, for the, reason that the accused were influential persons. Therefore for lack of evidence, the Magistrate discharged the accused under section 209 of the Code of Criminal Procedure on the 10th October 1956. Abdul Wabab then made an application against the petitioners to the Home Secretary to Government of West Pakistan, who forwarded it through the Commissioner, Peshawar Division, directing that the case be referred to a strong jirga for trial under section 11, F. C. R. Accordingly., the Deputy Commissioner referred the case for decision to a Council of Elders. The peti tioners challenged this order in Writ Petition No. 225 of 1957, in the High Court of West Pakistan, Peshawar Bench. The writ petition was accepted by Sheikh Muhammad Shafi and Habibullah Khan, JJ., on the 6th December 1967, on the ground that section 11, F. C. R., together with its ancillary sections were repugnant to the fundamental rights envisaged under Article 5 of the Constitution and were therefore, void under Article 4 of the Constitution. The learned Judges also directed that reference of the case to jirga should not be made thereafter, and quasbed all the proceedings so far taken under section 11, F. C. R. After the Supreme Court of Pakistan had held that the F. C. R., after the abrogation of the Constitution had become valid law, Fazal Rehman applied to the Home Secretary to the Government of West Pakistan again to direct a trial of the case under the F. C. R. and the Home Secretary ordered that the case be tried under the F. C. R. The Deputy Commissioner then observed withdrawal of the case accordingly for trial under section 11, F. C. R., on the 2nd March 1960. This order is also challenged on the ground stated in the other two writ petitions mentioned above. In addition it is urged that the order is bad as tae case has been referred for trial by a jirga under section 11, F. C. R by the Deputy Commissioner under the orders of the Home Secretary to the Government of West Pakistan and not because in the opinion of the Deputy Commissioner himself it was expedient that the question of the guilt or innocence of the peti tioners should be tried under the F. C. R. The argument is that the order of the Deputy Commissioner clearly shows that he had made the order in obedience to the order of the Home Secretary to the Government of West Pakistan (as indicated by the word accordingly and in his order) and not on his own opinion or in his discretion. It is, therefore, urged that the order referring the case to trial by jirga was void and illegal.

5. The common question of law involved in these writ petitions is whether the Deputy Commissioner had powers under section 11, F. C. R., to refer these cases to the Council of Elders for trial when the petitioners had been charged and there was no fresh complaint or a challan against them and when there was no pending case against them. On behalf of the petitioners reliance is placed on Muhammad Afzal Khan v. The State (P L D 1959 Pesh. 133) decided by Keyani, C. J., which holds in similar circumstances that the order of reference of the case to jirga under section 11, F, C. R., was beyond the power given by section 10, F. C, R., because its plain meaning is that a reference to a Council of Elders may be made at any stage of a pending case against an accused person but when that person has been discharged the accusation against him disappears and at that stage he is no longer an accused person. On behalf of the State, the learned Assistant Advocate General relies on Qasam Khan and others v. The State (P L D 1959 Pesh. 158), wherein Habibullah, J., took a contrary view relying on Khanimullah and another v. Emperor‑( A I R 1947 Pesh. 19) and Qasam sad others v. Crown (P L D 1953 Pesh. 34), which are Division Bench decisions. Habibullah, J., came to a contrary conclusion, because in his view, it was clear by reference to section 403 of the Code of Criminal Procedure read with the explanation to the section that a discharged, person continued to be an accused person for the purposes of fresh proceedings taken against him, though the order of discharge subsisted in his 'favour and had not been set aside. The learned Judge also deems a person discharged as still an accused person because in section 437 of the Code of Criminal Procedure the words "the accused person" have been used and also because the proviso to section 11 (3), F. C. R., provides that a person discharged under clause (c) could be retried for any offence arising out of the same facts before the expiry of two years from the date of such dis charge. The learned Judge also relied on a Full Bench judgment of the Punjab Chief Court Emporer v. Kiru (11 I C 132), which lays down that even where a Magistrate has passed an order discharging an accused person, it is competent to the same Magistrate or to another Magistrate of co‑ordinate jurisdiction to take fresh proceedings against the accused upon the same facts without the order of discharge having been set aside by higher authorities. This view was followed in Abdul Ghani V. Rokhan Shah (A I R 1942 Pesh. 24) and Allah Ditta v Karam Bakhsh (A I R 1937 Lah. 879). The learned Judge, therefore, concluded that a person though discharged remained an accused person because he could be tried fresh without the discharge order being set aside, and fresh trial by jirga could be ordered within a period of two years of the order of discharge.

6. Having set out the two views, which led to the referring of these cases and others to a Full Bench, it is necessary to state that the principle is admitted and is not challenged by the learned counsel for the petitioners that a discharged accused person could be retried on the same facts by the same Court or a Court of co‑ordinate jurisdiction and section 403 of the Code of Criminal Procedure is no bar to his retrial. It has been field in the Full Bench case Emporer v. Kiru, that it is not necessarily illegal to undertaker a fresh enquiry against an accused person who has been discharged, and that it makes no difference whether further fresh enquiry is held by the same Magistrate, who passed the original order of discharge or by another Magistrate of co‑ordinate jurisdiction. Though conceding that a discharged accused person can be retried, it is argued on behalf of the petitioners, that a fresh complaint or police report is necessary before he can be retried for the offence, and without it there is no person accused of an offence, whose guilt or innocence and the inexpediency of the trial of this question by ordinary Courts has to be decided by the Deputy Commissioner or the Commissioner. It is also contended that the exercise of the powers in section 11, F. C. R., is permitted at the stage of accusation, and under sections 14 and 15, F. C. R., is limited to cases `pending'. In the four cases which are subject of the four writ petitions, the peti tioners were discharged and there was no fresh complaint or police report pending against them, accusing them of the commission of an offence.

7. Before dealing with the question of law involved, it is necessary to state the relevant provisions of the F. C. R.:‑ Section 11.‑(1) Where in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any of several persons so accused, should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, the Deputy Commis sioner may, or, if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council of Elders, and require the Council to come to a fining on the question after such inquiry as may be necessary and after hearing the accused parson. The member of the Council of Elders shall, in each case, be nominated and appointed by the Deputy Commissioner. (2) * * * * * * * * (3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may‑ (a) remand the question to the Council for a further finding; or (b) refer the question to a second Council; or (c) acquit or discharge the accused person or persons or any of them; or (d) In accordance with the finding on any matter of fact of the Council, or of not less than three‑fourths of the members thereof, convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty: Provided that a parson discharged under clause (c) shall not be liable to be retried for any offence arising out of the same facts after the expiry or two years from the date of such discharge. Section 14.‑The powers conferred by section 11 on the Commis sioner and Deputy Commissioner, respectively, .may be exercised by them, in case committed to the Court of Session, at any time before the trial before that Court has commenced, and, in cases pending before any Court inferior to the Court of Session at any time before any order of conviction or acquittal has been made. Section 15.‑(1) In any trial before a Court of Session, the Public Procedure may, when instructed in writing in that behalf by the Commissioner or Deputy Commissioner, at any time before an order of conviction or acquittal has been made with respect to any accused person, withdraw from the pro secution of such person in order that the case may be referred to a Council of Elders. (2) The Sessions Judge shall thereupon stay proceedings with respect to such person and the Deputy Commissioner shall refer the case to a Council of Elders. Section 16.‑The powers conferred by section 11, as limited by section 14, may be exercised against, and the withdrawal of a prosecution under section 15 may have reference to, one or some only of two or more persons jointly accused of an offence. Section 17.‑The Deputy Commissioner may, if he thinks fit, at any time reconsider and set aside any order of the Deputy Commissioner under this Regulation‑ (a) directing a reference to a Council of Elders, or (b) refusing to make such a reference,

8. Sections 11, 14 and 15 of the F. C. R., have been enacted to enable a reference to be made to a Council of Elders to deter mine the guilt or innocence of a person accused of an offence, four different stages in criminal cases. Section 11, F. C. R., applies to the early stage of accusation in a case, when a person is accused of an offence, and the guilt or innocence of such a person has to be determined either on an enquiry under section 206, Cr. P. C., in cases triable by Court of Session or under section 251, Cr. P. C., in warrant cases. The existence of an accusation to be enquired into is the essence and pre‑requisite of the exercise of the power. The Deputy Commissioner or the Commissioner is empowered to consider, whether it is inexpedient that the question of his guilt or innocence should be tried by any of the Courts mentioned in section 6 of the Code of Criminal Procedure, and if he considers it inexpedient, to refer the question for the decision of a Council of Elders. Section 11, F. C. R., read along with section 14, F. C. R., shows that it applies essen tially to an early stage of a case before it is put in a Court and evidence is recorded; because section 14 of the Regulation provides for cases, which are' pending before Magistrates and cases committed to the Court of Session, before trial is begun. Thus where a case has been put in the Court of a Magistrate and is a case pending in that Court or when a case has been committed to the Court of Session, and before a trial has commenced in that Court, (in either case before conviction or acquittal), section 14 operates and empowers the Deputy commissioner or the Commissioner to exercise the power conferred by section

11. Where a trial has begun in the Court of Session and before con viction or acquittal, section 15 empowers the Deputy Commis sioner to refer the case to a Council of Elders for decision of the guilt or innocence of the person or persons accused of an offence. Thus sections 14 and 15 expressly deal with cases pending in Court and neither these two sections nor section 11 applies to a case in which an accused person has been discharged, and there is no case pending against him.

9. The question of the guilt or innocence of a person accused of an offence can therefore be referred to a Council of Elders at the following stages:

(1) When the accusation against that person has beers preferred before the police and a case has been registered and has been investigated or is under investigation and has not yet been placed before the Court for inquiry under Chapter XVIII or Chapter XXI (section 11, F. C. R.). (2) When the case is pending before the Court of a Magis trate under Chapter XI but an order of conviction or acquittal has not yet been made. (Section 14, F. C. R., which expressly enables the power under section 11, F. C. R. to be exercised). (3) When the case is committed to the Court of Session, but the trial in that Court has not yet commenced. (Section 14, F. C. R. which expressly provides for the exercise of power under section 11, F. C. R.). (4) When the trial of a case has commenced before the Court of Session, but an order of conviction or acquittal has not yet been made. (Section 15 (1), F. C. R. read with section 15 (2).

10. At which of these stages does the case of a person discharged by a Magistrate either under section 209 or section 253 of the Code of Criminal Procedure fall? It is clear that it does not lie at stages Nos. 2, 3 and 4, as it is not a case pending in any Court and it is not a case committed to the Court of Session. it is equally obvious that it does not belong to stage No. 1 also, because after a police report, the accused has gone through either an enquiry under Chapter XVIII and has been discharged under section 209, Criminal Procedure Code, or through an inquiry under Chapter XXI of the Code and has been discharged under section 253 of the Code. The order of discharge under sections 209 and 253 of the Code of Criminal Procedure connotes that after the case was put into Court, the material on the record was not found sufficient by the Court for proceeding further against the accused under Chapter XVIII or XXI of the Code, and the accusation preferred had no support from evidence, and was swept away. Thus having been discharged either under section 209 B or 253, Criminal Procedure Code, an accusation of an offence is no longer there against him, for the time being.

11. Thus for the competency of an order under section 11, F. C. R. a subsisting accusation of the commission of an offence against a person is essential. For an order under section 14, F. C. R. to be validly made the case should be pending before a C Magistrate or should have been committed to the Court of Session but the trial should not have commenced, and for section 15, F. C. R. the trial should have been commenced in a Court of Session and the accused should not have been acquitted or convicted.

12. An order of discharge of an accused is not a bar to his retrial, either by the same Court or by a Court of co‑ordinate jurisdiction, as is clear from the Explanation to section 404 of the Code of Criminal Procedure, and from the decision in Emporer v Kiru, but the fact, that he is liable to be tried again does not mean that he is still under accusation or is an accused person. He has stood an inquiry either under Chapter XVIII of under Chapter XXI, in which, he has succeeded in showing that the accusation had no foundation, and has thus earned a discharge. It is unreasonable to hold that though the order of discharge has been made in his favour and no attempt has been made to have the order of discharge set aside, or to have him again before the Court for retrial, he still remains an accused person. On that assumption he would remain an accused person all his life, and until he is dead and buried but this cannot be so. The order of discharge means that he is no longer (under an) accusation, though he could be brought under accusation again.

13. The use of the words "that an accused person has been improperly discharged" in section 437 of the Code of Criminal Procedure cannot lead to the inference that a discharged accused is still an accused person, as these words are used in the sense "that a person who was accused of an offence has been improperly discharged", and he cannot be treated as an accused person, without getting the order of discharge set aside, or making a fresh police report.

14. The proviso to section 11 (3); F. C. R. is also of no relevance to cases of discharge under the Code of Criminal Procedure, because it relates merely to an order of discharge under section 11 (3) (c), F. C. R. made on receipt of a finding of the Council of Elders, and cannot be used to infer that the person discharged still remains under accusation. The proviso in fact refers to a trial for `any offence', i.e., for other offences and not retrial for the same offence, as indicated by Kayani C. J., in Muhammad Afzal Khan v. The State.

15. It now remains to be considered whether a person discharged under section 209 or section 253, Cr. P. C., can fall under accusation again, and can be retried. 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 Emporer 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 G 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 in a Court, there is a pending case, or when the case is committed to the Court of Session or a trial has commenced, there is scope for 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 enable 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. When section 11, F. C. R. speaks of a person accused of an offence, it means a person accused of an offence, as understood in the Code of Criminal Procedure. This is the sense in which we interpret the relevant provisions of the F. C. R.

16. It is unnecessary for us to deal at length with the case of Qasam and others v. The Crown and Khanimullah and another v. The Emperor. The latter case was merely followed in Qasam and others v. The Crown and reliance was placed on the proviso to subsection (3) of section 11, F. C. R. It was not, however, realised that the proviso deals merely with orders of discharge under section 11 (3) (c) which are made on receipt of the finding of a Council of Elders, under section 11 (3), F. C. R., and not to cases of discharge under the Code of Criminal Procedure. In Khanimullah and another v. The. Emporer, observations of Mr. Bunbury, Judicial Commissioner in 33 J. R. Vol. I (Cr), which were in the nature of obiter dicta, were relied upon. The observa tions relevant for our purpose are; "similarly there is anything in the Frontier Crimes Regulation which would debar the Deputy Commissioner from referring to jirga the question of guilt or innocence of a person, who has been discharged by a Magistrate after Magisterial inquiry". It was held in that case that as a person discharged could tried again, it was open to the District Magistrate to treat the petitioner as an accused person, even without getting the order of discharge set aside; but in that case, after the discharge, the Superintendent of Police had again preferred an accusation against the petitioners and it was in these circumstances that it was held that the District Magistrate could treat the discharged persons as accused persons under the Criminal Procedure Code, notwithstanding the order of discharge in their favour, and that action under section 11 could be taken by the Deputy Commissioner. This case, therefore, is not opposed to the view that we are taking. We have said that after a fresh complaint or challan has been filed, he falls under accusation again, and he again, becomes an accused person. The King Emporer v. Naina Ram (33 JR 1905) need not be considered, because it has been discussed by Kayani, C. J. in the case of Muhammad Afzal Khan v. The State.

17. The omission of the word "discharged" in section 14 is not pertinent to the question before us. As stated already section 14 is intended to apply to cases pending and the words "before an order of conviction or acquittal has been made" have been used merely to emphasise that the case must be pending.

18. Having considered the provisions of the F. C. R., we hold that the orders under the F. C. R., made against the petitioners in the four above‑mentioned writ petitions were 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.

19. It is urged by the learned Assistant Advocate General that an oral complaint was enough for action to be taken by the Deputy Commissioner under section 11, F. C. R. There is nothing on the record to show that an oral complaint was preferred. On the other hand we find that the revision petitions filed before the Deputy Commissioner for setting aside the order of discharge of the petitioners, were withdrawn, and no fresh complaint or police report was made against them. 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.

20. The conclusion arrived at by us is not without material substance. A person who has been discharged can become a person accused of an offence, either by having the order of discharge set aside or by making a fresh complaint or by sub mitting a fresh police challan. In case the order of discharge is set aside accused person can move the High Court under section' 439 of the Code of Criminal Procedure to have that order set aside. In case a fresh complaint or a police challan or report is made against him, he can move the High Court to quash the proceedings under section 56‑A of the Code of Criminal Procedure, as an abuse of process of Court. Thus the power to bring a person, who has been discharged, under accusation again j and to expose him thereafter to the provisions of sections 11,14 and 15 F. C. R. does not in effect remain absolute, and is subject to judicial scrutiny and interference, though not under the F. C. R.

21. While on this subject, we would also like to quote some of the observations from the decision of the Full Bench in Emporer v. Kiru. While holding that a person, who has been discharged, can be retried, it was observed:‑‑ "At the same time we desire to be clearly understood that though such further inquiry is not actually illegal it should be only undertaken in exceptional case and for good reason shown. This Court has often pointed out that where a man is discharged under circumstances which make the order of discharge equivalent to one of acquittal no further proceedings should be taken against him under section 437, Criminal Procedure Code . . . , . . . . . . . . . . . speaking generally, further inquiry after discharge is improper unless the order of discharge was manifestly perverse or foolish, or was based upon a record of evidence which was obviously incomplete . . . . . . . . . . . . but if the Magistrates use the discretion vested in them by law they are expected to do so with common sense and with due regard to the general consideration that an accused should not be unduly harassed by further proceedings under taken without good cause." These are the weighty observations with which, with respect, we fully agree. An order of discharge made after full inquiry, which is not foolish and perverse, cannot be set aside. A fresh complaint or a police report should not be made without good cause, and J certainly not in circumstances which make, the proceedings an abuse of process of Court.

22. We may also mention that the order of the Deputy Commissioner in Writ Petition No. 52 of 1960 is incompetent on the ground that it was not made in his own discretion or on his own, satisfaction of the inexpediency of the trial by ordinary K Court but in obedience to the order of the Home Secretary to Government of West Pakistan. This is clear from the use of the, word `accordingly' in his order.

23. For the reasons already stated, we accept these four writ petitions with cost and quash as incompetent the orders of the Deputy Commissioner referring the decision of the cases to the Council of Elders, and direct that the orders shall not be given effect to.

24. In Writ Petition No. 124 of 1960 (which is also referred to us) Muhammad Ajmal and other petitioners were pr6secuted for causing injuries to one Jalat under section 307/149, P. P. C. They were discharged by Mr. Muhammad Jan Khan M. I. C. Bannu by order dated the 11th August 1959. After the order of discharge Jalat died, and a fresh cha113n under sections 302/149 and 148, P. P. C. was submitted against the petitioners to the District Magistrate, Bannu, with the request that the case be withdrawn under section 11, F. C. R. for trial by a Council of Elders. The District Magistrate by his order dated the 28th January 1960, declined to accept the request, and discharged the petitioners. Fazal Din son of the deceased then filed a revision petition before the Commissioner F. C. R., who set aside the order of discharge made by the Deputy Commissioner and directed that the case be referred to a Council of Elders for trial under the F. C. R. The order of the Commissioner is challenged on behalf of the petitioners on the ground that the petitioners having been discharged for the offence under section 307/149 by a Magistrate and by the Deputy Commissioner District Magistrate under sections 209 of the Code of Criminal Procedure of the offence under section 302/149 and 148, P. P. C. ; their case could not in law be referred to a Council of Elders, and that the Commissioner, in any case, had no power to make an order or give a direction to the Deputy Commissioner to refer the case to jirga, when the Deputy Commissioner had refused to make the order under section 11, F. C. R.

25. In this case a fresh police challan was put in against the petitioners under sections 902/ 149 and 148, P. P. C., though they had been discharged under section 307/149, P. P. C. On the principle, which we have laid down above that on a fresh police report the person is again accused of an offence and his trial by jirga can be ordered, we consider that the question of guilt or innocence of the petitioners could be referred for decision to a Council of Elders. It has been argued that as the District Magistrate discharged the accused, his order amounts to an order of discharge under section 209 of the Code of Criminal Procedure, and this order could not be interfered with by the Commissioner F. C. R., but this contention has no force. An order under section 209 of the Code, can be made only after recording evidence under Chapter XVIII of the Code, but the learned District Magistrate did not record any evidence. The order is in fact one of refusal to make a reference under section,11, F. C. R., is for it says "I an not prepared to accept the case again on jirga side". It cannot be treated as a discharge order under section 209, Cr. P. C.

26. As to the contention that as the District Magistrate had refused to refer the case to the Council of Elders under section 11, F. C. R., the Commissioner had no power to order reference of the case to a Council of Elders, the Commissioner's order is competent in his revisional jurisdiction under section 49, F. C. R., which provides that the commissioner may call for the record of any proceedings under the F. C. C., and revise any decision, decree, sentence or order given, passed or made therein, as the order of the District Magistrate, was in (,fact an order under the F. C. R., (in his capacity as Deputy Commissioner). Section 11(1), F. C. R., also directs that the Deputy Commissioner shall refer the case to Council of Elders, if the Commissioner so directs. We thus hold that the Commissioner could direct the Deputy Commissioner under section 49, F. C. R. to refer the case to a jirga.

27. As a fresh complaint had been made against the peti tioner under sections 302/149 and 148, P. P. C., we consider that the order referring the case to the Council of Elders under the revisional order of the Commissioner is competent and cannot be interfered with by us in writ jurisdiction. We, therefore, dismiss this writ petition.

28. In writ petition No. 110/59 (which has also been referred to the Full Bench) Mir Ahmed, Ghulam Aksar, Chan Muhammad, Dilawar and Salabat and others were accused of committing murder of seven persons and were prosecuted under section 302/149 P.P.C. The case was withdrawn by the Deputy Commissioner Hazara, and referred to a Council of Elders for trial under the F. C. R. On receipt of a report from the Council of Elders, Ghulam Aksar, petitioner No. 2, alone was convicted under section 302, P. P. C., and was sentenced to 14 years' R. I. His property was also ordered to be confiscated The other accused were acquitted by his order dated 21‑2‑1957. On behalf of the deceased party Munawar Khan filed a revision petition before the Commissioner, but he refused to interfere with the order of acquittal of Mir Muhammad, Chan Muhammad, Dilawar, Salabat, WAR Muhammad, Aurangzeb and Khudadad, though he modified the order convicting Ghulam Aksar under one count only and convicted him under seven counts, and sentenced him to 14 years' R. I., on each count, but ordered the sentences to run concurrently. The practical effect of this order was that the conviction of Ghulam Aksar and the acquittal of the remaining petitioners remained in force. Ghulam Aksar (petitioner) then moved the High Court of West Pakistan Peshawar Bench by writ of habeas corpus challenging the validity of his trial and conviction under the F. C. R. on the ground that the F. C. R was opposed to the fundamental rights guaranteed by the Consti tution of Pakistan. His petition (Writ Petition No. 2 of 1958) was accepted, following a Full Bench decision to the effect the the F. C. R. had become illegal in view of Article 4 of the Constitution, and lee was ordered to be released, but it was expressly stated in the order that he could be tried again for the same offence, in accordance with the law. After the decision of the Supreme Court in Stale v. Doso and another the Deputy Commissioner made apt order directing a new trial of all the petitioners, under the F. C. R. They challenge the validity of this order on the ground that the petitioners, having been acquitted, could not re tried again for the same offence and they pray that a writ of prohibition he issued against the respondent to drop the prosecution of the petitioners. It is obvious that the case of Ghulam Aksar (petitioner No. 2) stands on a footing different from the other petitioners. In fact his case has not been pressed before us. We see no reason why he should not be tried again, for there is no bar in law to his retrial. It is now contended before us on behalf of Mir Muhammad, Clean Muhammad, Dilaw .r and Salabat, petitioners that they cannot be tried again as they had been acquitted after a proper trial trader the F. C. R., and the order of their fresh trial is illegal and incompetent. This contention was force for they were acquitted by the Deputy Commissioner by his order dated 21st February 1957, and this order has not been set aside so far. There is no provision in the F. C. R., and we have not been referred to any by the learned Assistant Advocate‑General, enabling an order of retrial to be made in respect of a person, who has been acquitted after receipt of a report from the Council of Elders. if under the proviso to section 11 (3) (c), F. C. R., only that person who has been discharged can be retried within two years of the order of discharge, it follows as a necessary corollary that a person who has been acquitted under section 11 (3) (c), F. C. R. is beyond the pale of retrial. The learned Assistant Advocate‑General contends that as the former trial under the F. C. R. was held by the High Court to be illegal, the petitioners' retrial is not illegal or incompetent, but we see no force in this contention. The former writ petition was only filed on behalf of Ghulam, Aksar and his case alone was then befog the High Court. We, therefore, hold that the order of the Deputy Commissioner, ordering a fresh trial of the petitioners, other than Ghulam Aksar, petitioner No. 2, order the F. C. R., after they had been acquitted, is illegal and incompetent. We, therefore accept this writ petition and issue a writ directing that the order shall not be given effect to, with regard to the petitioners, other than Ghulam Aksar petitioner. The petition in respect of Ghulam Aksar has been pressed, and is dismissed.

30. We make no order as to costs in these two writ petitions. A. H. Orders accordingly