P L D 1966 (W (PLP)

2. By an order dated the 10th of November 1964, the learned Commissioner, Peshawar Division, referred the case to a Tribunal under section 3 of the Act, for the reasons that the accused was not charged in the first information report, that the police had failed to cite sufficient direct evidence for determining the guilt or innocence of the accused, that the circumstantial evidence in the case when considered in conjunction with the strong motive attributed to the accused for his committing the offence afforded reasonable grounds for believing that he might have committed the offence, and that the occurrence having taken place in a bazar and during day time, it was likely that the Tribunal while holding the enquiry would be able to fill in the lacuna and find out appropriate evidence for determining the guilt or innocence of the accused. The trial has not yet commenced before the Tribunal, although the entire prosecution evidence, except one formal witness, has been examined by the committing Court.

3. The order of reference is challenged mainly, on the ground that there is no evidence at all to connect the petitioner with the murder of Abdul Khaliq deceased, that the reference to the Tribunal has been made merely on the strength of the alleged enmity existing between the parties ; and that the real object is to enable the Tribunal to embark upon a fishing enquiry so as to fill the gaps in the prosecution case. In support of this contention, S. Masoom Shah has placed strong reliance on the observations of the learned Chief Justice in The State v. Nawab Gut (P L D 1963 S C 270).

4. Before we proceed to examine the factual basis of the contention raised by S. Masoom Shah, we consider that it would be useful to refer to the authorities which lay down the principles to be followed in such a case. In the case The State v. Nawab Gut, the learned Chief Justice, while dealing with the facts of the case, observed on page 273 of the report that‑

"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 inno cence of accused persons `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 civilised decencies."

5. After giving some more facts, his Lordship proceeded to observe further: "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 respondents had an eye on the shop, that would be susceptible of enquiry and decision, but a positive answer would not suffice to connect them 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 locuna for itself, had it taken up the case, but we do not conceive that section 11 is designed to empower a Jirga 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."

6. This dictum of their Lordships of the Supreme Court came up for interpretation before a Full Bench of this Court in Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner, F. C. R., Quetta and others (P L D 1964 Lah. 401). Ortcheson, J., who delivered the judgment of the Court, summed up the position as follows in paragraph 27: "With great respect, and with due diffidence, I venture to interpret the words emphasised above as meaning that in the opinion of their Lordships, a reference to a Jirga cannot be made when, on the facts before the Deputy Commissioner, points do not emerge from the facts before him which, if established, will suffice for the conviction of the accused for a criminal offence falling within the scope of the Regulation, and that in such circumstances the references to a Jirga will be bad. It follows that if no case for reference is made out, the Superior Courts will, in the exercise of their special constitu tional jurisdiction, be competent to interfere."

7. A reference to this dictum of the Supreme Court also appears in Manzoor Ahmad v. Commissioner, Lahore Division and others (P L D 1964 Lah. 194) in which the Division Bench, however, held that the facts of the case before them were clearly distinguishable from those obtaining in the case before the Supreme Court.

8. The next case to which our attention has been drawn is Mir Muhammad and another v. District Magistrate, Nawabshah and others (P L D 1965 Kar. 494), which was referred to a third Judge, on a difference of opinion arising between the learned Judges comprising the Division Bench. With reference to the dictum in Nawab Gul's case, Inamullah, J. as he then was, observed that‑

"Where a reference is made by the Commissioner in respect of an offence which is not specified in the First Schedule to the Act, the reference would be without jurisdiction and would be quashed by the High Court. There may be cases in the second place where the Commissioner may have made a reference after the investigation is completed by the police. In those circum stances it may be possible to hold that the reference by the Commissioner to the Tribunal was bad as points do not emerge from the facts before him which, if established, would suffice for the conviction of an accused for a criminal offence falling within the scope of the offence specified in the First Schedule."

9. Reading these authorities together, the impression which we have formed is that a reference to a Jirga under the Frontier Crimes Regulation or to a Tribunal constituted under section 3 of the Act would be bad, if at the time of making the reference there was no material at all before the Commissioner which, if established, would lead to the conviction of the accused person or persons whose case is under consideration. It is significant that in none of these cases, the learned Judges have laid down that the material or evidence available is to be judged by judicial standards which would be applied by a Court of law while determining the question of the guilt or innocence of an accused person. In this connection, we may be permitted to repeat the conclusion reached by the Full Bench in the case of Haji Muhammad Khan to the effect that "a reference to a Jirga cannot be made when, on facts before the Deputy Commissioner, points do not emerge which, if established, will suffice for the conviction of the accused for a criminal offence falling within the scope of the Regulation". These observations make it amply clear that what is required to be seen by the Superior Courts in the exercise of their supervisory jurisdiction is whether facts were presented before the Commis sioner, which, if established, i.e. established before the Tribunal concerned, would lead to a conviction for the offence charged. There is thus no doubt that in this behalf the judgment must rest with the statutory authority concerned, namely, the Commissioner in this case, and not with the Superior Court which is called upon to examine the legality of the reference.

10. A case of complete absence of incriminating evidence of course stands on a different footing, as in such a case it is clear that whatever standards of appreciation of evidence are applied no conviction could at all be recorded for want of any evidence whatsoever. This position does not however hold good in cases where there is some evidence or material which, if believed by the Tribunal concerned, would suffice for the conviction of the accused. The result in such a case would depend upon the manner and method of appreciation of evidence applied by the Tribunal concerned, and this manner and method may be different from that obtaining in the ordinary Courts. For these reasons, we are of the view that while considering a case of the present kind, it would not be appropriate for us to substitute our own judgment for that of the Commissioner in forming an opinion about the expediency or otherwise of referring the question of the guilt or innocence of the accused person to a Tribunal constituted under the Act and we must confine ourselves to the examination of a very narrow question, viz., whether there was any material or evidence at all before the Commissioner to warrant the reference, or, to use the words of Ortcheson, J. in the case of Muhammad Khan, "whether points do not emerge from the facts before him which, if established, will suffice for the conviction of the accused." If there was such material or evidence, then the reference could not be held to be bad in the sense indicated by their Lordships in Nawab Gul's case.

11. Now, coming to the facts of the present case, we find that there is, in the first place, a report by Hamid Gul that the murder was committed in his presence and that he could identify the culprits if they were brought before him. In the second place, there is evidence regarding the strong motive, namely, the existence of a blood feud. In the third place, there is the allegation that the petitioner had absconded soon after the commission of the offence and could not be traced for five days. It is stated by S. Masoom Shah that the first informent, Hamid Gul, had refused to identify the culprits and for that reason we should hold that this is a case of no evidence, whatso ever. It seems to us that the mere fact that Hamid Gul has made certain statements during the course of the commitment proceedings does not render the present one a case of no evidence. As regards the effect of the other circumstances, which we have just mentioned, we may state that in Nazir and others v. The State (P L D 1962 S C 269) their Lordships have mentioned factor of this kind among others, as furnishing corroboration in a given case: It should be remembered that these observations were made with regard to a judicial determination of the question of the guilt or innocence of the accused persons. In cases triable by a Jirga or a Tribunal, the Evidence Act does not apply, and these Tribunals are not bound by any rules of judicial appreciation of evidence. Accordingly, we are not persuaded that this is a case where the reference is bad on account of the fact that there was no case to be referred to the Tribunal.

12. For the foregoing reasons, the petition fails and is dismissed. The parties are, however, left to bear their own costs. K. B. A, Petition dismissed.