P L D 1962 (W (PLP)

(i) The Sessions Judge, Kalat, has no jurisdiction to hear the appeal, the order not being of District Magistrate but of a Special Jirga. (ii) The Special Jirga whose award was announced by the President, Special Jirga, was properly constituted. (iii) The Public Prosecutor deliberately kept them in the dark at the time of the trial regarding the alleged improper constitu tion thereof. He did not raise any objection as regards the constitution of the Special Jirga during the trial but went up in appeal only because the case had been decided against the prosecution. (iv) It is wrong to contend that the Public Prosecutor had not been given any proper opportunity to produce his material evidence because on the 26th of September 1959, he had himself stated that he did not want to produce any further evidence. (v) There is nothing In the ground of appeal before the Sessions Judge to suggest that the order dated the 29th of September 1959, was being challenged as being a wrong decision on merits. In the end, it was urged by the learned counsel for the appellants that, in the circumstances of the present case, the case should not be remanded for retrial.

8. The contention regarding the incompetency of the Sessions Judge to hear appeal from the order dated the 29th of September 1959, seems to have been agitated before the Sessions Judge himself because he has noticed It in his judgment. He has, however, repelled this argument by observing that since the presiding officers of various . Courts competent to try cases are ex-officio Presidents of Jirgas constituted under the Kalat Criminal Procedure Code and since the order In this case had been passed by a President, who was also the District Magistrate, his Court was competent to hear the appeal under section 128 of the Kalat Criminal Procedure Code: I am not inclined to agree with the learned Sessions Judge in the aforesaid view. For one thing, it is not necessary that District Magistrate or for that matter any other presiding officer of a Court be appointed a President of a Special Jirga. From the language of section 70 of the Kalat Criminal Procedure Code it is clear that even a non-official could be appointed President of a Special Jirga. It is clear from section 128 of the Kalat Criminal Procedure Code that only an appeal from the order of the District Magistrate is competent. It is obvious that in the present case the order which was being challenged was not of the District Magistrate as such but was of the: District Magistrate as the President of a Special Jirga. No provision in the Kalat Criminal Procedure Code has beers pointed out to me by the counsel appearing on behalf of the Additional Advocate-General which allows for an appeal being A preferred to the Sessions Judge from a decision of the Special Jirga or from the order of a President of a Special Jirga. It can perhaps, be urged that in view of section 3 of the Kalat Criminal Procedure Code the District Magistrate alone in this case could pass a sentence ; but it has to be borne in mind that in the present case no imposition of sentence was necessary because the President of the Special Jirga had passed an order of acquittal and there is no provision in the Kalat Criminal Procedure Code laying down that the order of acquittal could not be announced by the President of the Special Jirga. In case the Special Jirga bad held the accused guilty, perhaps, it would have been necessary to refer the matter to the District Magistrate as such and after the order of punishment had been passed by the District Magistrate, possibly an appeal could lie to the Sessions Judge. But I am not quite certain on this score either, as from sub-section (8) of section 90 of tee Kalat Criminal Procedure Code it would seem that Jirgas could order punishments also.

9. It is not disputed that the District Magistrate by himself, without associating himself with any Members of Jirga, can decide some cases. It appears to me that it is either the decisionss of the District Magistrate in such cases which he tries by himself or possibly his orders which he makes on reference from Jirgas for awarding punishments, which are appealable under section 1281 of the Kalat Criminal Procedure Code to the Sessions Judge.1 Besides, it is not quite clear under whose authority the Public Prosecutor filed his appeal against the acquittal of the appellants. It appears that be has done so on his own without being authorised by anybody. The District Magistrate certainly does not seem to have given him this authority because he had himself, although in a different capactity, pronounced the impugned order. Nor is there anything on the record to show that the Provincial Government had so authorised the Public Prosecutor. In any case, I am satisfied that in view of section 128 of the Kalat Criminal Procedure Code the learned Sessions Judge was not competent to hear the appeal. In this view of the matter, it is apparently unnecessary to examine the other contentions of the learned counsel for the appellants.

10. But even if it be assumed that the learned Sessions Judge had the power to entertain and decide the appeal filed, in the circumstances of the present case, I do not see any good basis for his accepting the appeal. Special Jirgas are appointed under section 7J of the Kalat Criminal Procedure Code. Before the Adaptation of Laws Order of 1956, the Wazir-i-Azam of the State could constitute the Special Jirga but after the Adaptation of Laws Order, 1956, the Provincial Government became the successor of Wazir-i-Azam for the purpose of such nomination, but after an amendment under the West Pakistan Ordinance XV of 1959, from the 30th of March 1959, this power was conferred on the District Magistrate. The trial before the Special Jirga In this case commenced, as already mentioned, on the 20th of April 1959, when this power, as already noted, had come to be vested in the District Magistrate. He could himself gave nominated the Jirga which tried the case, but the Special Jirga was constituted and the case tried ostensibly in pursuance of the Notifications of the 20th of November 1958 and 6th of April 1959. It is significant, however, that the composition of the Special Jirga which started the trial of the case on the 20th of April 1959, was neither strictly in accordance with that specified in the Notification dated the 20th of November 1958, nor with that of 6th of April 1959. According to the Notification dated the 20th of November 1958, the following persons had been appointed to constitute the Jirga: (1) Sardar Safar Khan Angaria, (2) Mir Mahmood Khan Gichki, (3) Sardar Dost Muhammad Khan Mengal, (4) Sardar Ghaus Bakhsh Raisani, and (5) Sardar Doda Khan Zavakzai. According to the Notification of the 6th of April 1959, the persons nominated were- (1) Haji Muhammad Slddique, Deputy Commissioner, Lasbela . . . . . (President), (2) Sardar Qutab Khan Satikzai, and (3) Mir Shah Baigh Khan Qambarani . . . . . (Members). The persons who actually sat with Haji Muhammad Siddique, Deputy Commissioner, as Memters of the Special Jirga on the 20th of April 1959, were Mir Mahmood Khan Gichki, Sardar Ghaus Bakbsh Raisani and Sardar Safar Khan Angaria. It is obvious that Sardar Dost Muhammad Khan and Sardar Doda Khan listed in the Notification of the 20th of November 1958, and Sardar Qutab Khan and Mir Shah Baigh mentioned in the Notification of the 6th of April 1959, were not among the Jirga which started the trial of the case on the 20th of April 1959. This means that in effect the District Magistrate had made his own selection of the Members of the Jirga out of the persons mentioned in the two Notifications. The District Magistrate, as already mentioned, was fully competent to do so on the 20th of April 1959, as actually it was he who was empowered to make nomination of the Special Jirga. Therefore, the constitution of the Jirga that tried the case on the 20th of April 1959, was perfectly valid.

11. Although the District Magistrate appears to have made the selection in Ignorance of the circumstance that it was he who was empowered to appoint the Members of the Jirga, since he did not entirely accept the list specified in the Notification dated the 20th of November 1958, or that published in the Notification dated the 6th of April 1959, and had made his own selection out of the two lists given In the two Notifications he had, In the words of their Lordships of the Privy Council in Bawa Faqir Singh v. Emperor (A I R 1938 P C 266) performed "an overt act" which made the selection of the Jirga the District Magistrate's act and, as such, referable to section 70 of the Kalat Criminal Procedure Code. The District Magistrate was wrong in asking for a consolidated notification and in appointing two Members of the Jirga pursuant to the con solidated Notification dated the 17th of June 1959 ; but when one finds that all the Members of this Jirga had been Members of the original Special Jirga which had given its findings on the 1st of May; 1959, one fails to understand why it cannot be held that the order which was announced on the 29th of September 1959 in accordance with the findings of the 1st of May 1959, was the order of a properly constituted Jirga. The order, dated the 29th of September 1959, is, in effect, the order of the Special Jirga which started the trial of the case on the 20th of April 1959. But even if it be assumed that it was a separate Jirga who gave their finding on the 26th of September 1959, the fact that all the parties acquiesced, without demur, in the validity of the composition of this Jirga and not only declined to have a de novo trial but stated that they did not want to produce any further evidence shows that the trial was being considered as perfectly valid and all that was desired to be done was the announcement of the order. The attitude of the learned Public Prosecutor on the 26th of September 1959 shows that he was of the opinion that all that was necessary for the validity of the trial had taken place, which means that if it was necessary that the Jirga should be constituted by the District Magistrate, it was understood by him that It had been so constituted.

12. It is note-worthy that in his grounds of appeal before the learned Sessions Judge, the Public Prosecutor had not contended that the Special Jirga in accordance with whose findings the order, dated the 29th of September 1959, was announced was wrongly constituted because it had not been appointed by the District Magistrate on his own. The order dated the 29th of September 1959, had, on the other hand, been challenged on the ground that it had not been made by a Jirga appointed under Notification dated the 6th of April 1959. Now, the Jirga appointed under this Notification was obviously nominated under orders of the Provincial Government. Actually, if the final order had been made by a Jirga appointed strictly in accordance with this Notification, it would not have been a properly constituted Jirga inasmuch as the District Magistrate who had, by that time, become the authority empowered to nominate Jirga had not nominated it. It would seem, therefore, that the Public Pro secutor had not challenged the validity of the composition of the Jlrga before the Sessions Judge on the ground that the Jirga had to be appointed by the District Magistrate and had not been so appointed. The Sessions Judge, therefore, appears to have noticed a plea in his judgment which was not taken up by the Public Prosecutor in his grounds of appeal. Nor does it appear to me to lie in the mouth of the Additional Advocate-General to argue leis case before me on a ground which was not mentioned in his grounds of appeal by the Public Prosecutor before the Sessions Court.

13. Nor do I see any force in the plea of the Public Prosecutor that no proper opportunity had been given to him by the Special Jirga on the 26th of September 199, for producing his material evidence. It is true that on the 26th of September 1959, when the case came up for re-hearing before the Special Jirga, the Members of the Special Jirga observed that they did not want to waste the time in the re-statement of witnesses and reopen ing the proceedings, but that does not mean that they had stopped the Public Prosecutor or the parties from producing any evidence. They merely expressed their desire not to commence proceedings from the very start. Besides, their observation related specifically to the examination of the witnesses already examined. They did not say that they did not want any additional evidence to be produced. In fact, the circumstance that the Public Prosecutor and the counsel of the accused not only accepted their suggestion but actually added that the evidence already produced was sufficient and that they did not want to advance any further proof and evidence shows that the Public Prosecutor and the accused's counsel understood by the observation of the Jirga that it was open to them to produce any further evidence or not. Nor am I inclined to set any sort by the plea of the Public Prosecutor that the witnesses whose evidence could be produced and were not produced were material witnesses. The very fact that the Public Prosecutor readily agreed not to produce any other witness shows that no witnesses, other than those who had already been pro duced, were material for the decision of the case.

14. Besides, it is significant that one of these so-called material witnesses is the officer who conducted the preliminary enquiry and had visited the spot two days after the occurrence and the other is described as a witness of recovery of a rifle. The latter witness has not attested the memo of recovery of the rifle. On the other band, the person who had attested the memo of recovery, namely, Sub- Inspector Khan Muhammad was examined as a witness. Sheikh Ahmad Khan, the officer who conducted the preliminary enquiry on the 8th of April 1958, is said to have been accompanied by four other motabirs and one S. D. O. Sheikh Ahmad Khan, Deputy commissioner, could not be examined because he did not appear in Court in response to summons issued to him during the first trial as he had gone away to Lahore. The other four respectables and S. D. O. were examined by the Jirga as witnesses. I do not quite see how, when the officer who visited the spot on the 8th of April 1958, was himself not an eye-witness of the occurrence, his evidence could be regarded as of material significance, especially when five of his companions had actually been examined by' the Jirga. But, as already pointed out, during the conduct of the trial the person in charge of the prosecution case, the Public Prosecutor in this case, was the best judge as to whether or not any further evidence was material in support of the prosecution case and he having decided that no further evidence was necessary it should be assumed that he did so because he had no further evidence to produce which might be described as material for his case. The result is that I do not think that the learned Sessions Judge was justified in accepting the appeal and ordering retrial of the appellants, assuming that he was competent to bear the appeal. Besides, the trial having commenced as long ago as 1958, I do not think an order to the prejudice of the accused should be made for a retrial in 1960, or should at any rate be upheld in 1962.

15. In Abdus Salam v. The State (P L D 1860 Dacca 42) it was observed : "Re trial is not and should not be treated as a method for enabling the prosecution to improve upon the evidence which was led at the original trial nor should it be resorted to for giving the prosecution a second opportunity of getting the accused persons convicted. But the question as to whether there should or should not be a re-trial should be based upon an assessment of the evidence already on the record. If that evidence does disclose with reasonable certainty that an offence has been committed, then the accused should not be allowed to go scot-free merely on a technical ground which renders the trial itself bad. Having judged the evidence in the cases from this point of view, I am satisfied that no useful purpose will be served by sending the cases back for a re-trial". In the present case, it is conceded by the learned counsel appearing on behalf of the Additional Advocate General that on the evidence already on the record he could not challenge the order dated the 29th of September 1959, on merits. Indeed, it is significant that even before the Sessions Judge the Public Prosecutor in his grounds of appeal had not said that the decision on merits was wrong. In the circumstances of the case, therefore, I hold that no useful purpose will be served by any order of re-trial, even if it be assumed that there had been some irregularities in the proceedings culminating in the order dated the 29th of September 1959.

16. The result is that I accept this appeal and set aside the order, dated the 29th of January 1960, of the learned Sessions Judge. K. B. A. Appeal accepted.