P L D 1988 Peshawar 7 (PLP)

NAZIR AHMAD BHATTI, J.--Naqdullah Khan and others petitioners herein had stood sureties for Akbar Khan and seven others accused of offence under section 302/148/149, P.P.C. in F.I.R..No.42 recorded in Police Station Nawagai District Swat on 13-8-1978. The case was tried under the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975 (hereinafter referred as to the Regulation), and the Deputy Commissioner Swat agreeing with the recommendations of the Jirga, constituted under the Regulation, acquitted the aforesaid accused by judgment dated 3-11-1982. However, the aforesaid accused were summoned by the Special Military Court No.90, Mingora in connection with the same case, but they did not appear before the said Court and the latter directed the Assistant Commissioner/ S.D.M. Daggar to proceed against the petitioners under section 514, Cr.P.C. as they had stood sureties for the aforesaid accused. The Assistant' Commissioner assumed jurisdiction under Criminal Procedure Code and initiated proceedings against the petitioners under section 514 thereof and by order dated 3-4-1985 forfeited 3/4th amount of the bail bond furnished by each of the petitioners. The petitioners feeling aggrieved filed an appeal before the Additional Commissioner Malakand Division under the provisions of the Regulation and a stay order was issued on 18-4-1985 for stay of execution proceedings. However, the State filed an appeal before the Additional Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department which was accepted on 24-8-1985 and the stay order was vacated. The petitioners feeling aggrieved by the aforesaid orders have challenged the same in the present writ petition filed under Article 9 of the Provisional Constitution Order, 1981.

2. The only point urged by the learned counsel for the petitioners in support of the writ petition is that the impugned order of the S.D.M. Daggar was without jurisdiction and without lawful authority for the reason that the provisions of Cr.P.C. are not applicable to the proceedings under the Regulation as provided in subsection (2) of section 3 thereof. We have giver serious consideration to this contention of the learned counsel but we find that this contention is without any force. It is admitted that the proceedings of the main case against the accused; for whom the petitioners had stood sureties, were not under the Regulation but were pending before the Special Military Court and the accused committed default in appearance before that Court and the latter directed the S.D.M. to proceed against the petitioners under section 514, Cr.P.C. There is another strong point in favour of our consideration and that is that proceedings under section 514, Cr.P.C. are not in the nature of punitive proceedings nor the said proceedings are an offence under the Pakistan Penal Code. According to subsection (1) of section 3 of the Regulation offences punishable under the Pakistan Penal Code, except those mentioned in Chapters VI, VII, IX, IX-A and XII thereof are triable by a Jirga constituted under and in accordance with the provisions of the Regulation. The plain reading of this provision would clearly indicate that only those offences of the Pakistan Penal Code, as are specified therein, are triable under this Regulation and no more. Offences specified in Chapters VI, VII, IX.IX-A and XII of the Pakistan Penal Code and all offences under other laws are not triable under the Regulation. Hence any proceedings arising incidental or, ancillary to the latter category of offences shall not be proceedings under the Regulation and they would be triable by ordinary criminal Courts.

3. Since the case wherein the accused committed default in appearance was not pending under the Regulation but was pending before the Special Military Court constituted under Chief Martial Law Order No.4, the provisions of the Regulation were not attracted thereto.

4. The perusal of the impugned order of the learned S.D.M. would show that it was made by him in the capacity of a Magistrate exercising powers under the Criminal Procedure Code. As already stated since impugned proceedings before the learned S.D.M. were under section 514, Cr.P.C. and not under any provision of the P. P. C. we are of the confirmed opinion that the learned S. D. M. had jurisdiction to entertain and adjudicate thereupon. We do not find any illegality or jurisdictional defect in the impugned judgment of the learned S.D.M. However, we find that he has forfeited 3/4th of the amount of bail bond, which appears to us to be harsh. We would, therefore, direct that the bail bond furnished by the petitioners Nos.1 to 8, 11 and 12 shall be forfeited to the extent of Rs. 2,000 instead of Rs. 15,000 and the bail bond furnished by petitioners Nos. 9,10 and 13 shall be forfeited to the extent of Rs.5,000 instead of Rs.13,000.

5. With the above modification judgment we would dismiss this Writ Petition as being without any merit. M.Y.H./564/P Petition dismissed.