P L D 1959 (W (PLP)

5. So far as the objection to the setting aside of the order of discharge is concerned, I think, it must prevail. Section 437, Cr. P. C., under which the order was passed, says: " When, on examining the record of any case under section 435 or otherwise, . . . . . the District Magistrate considers that such case is triable exclusively by the Court of Session, and that an accused person has been improperly discharged by the inferior Court . . . . . . . the District Magistrate may cause him to be arrested and may thereupon order him to be committed for trial upon the matter of which he has been in the opinion of the District Magistrate, improperly discharged." It will be seen that the purpose for which the District Magistrate can interfere with the order of discharge is to commit an accused person for trial to the Sessions Court. But this was not the purpose for which the District Magistrate exercised his revisional jurisdiction. He set aside the order of discharge for the purpose of referring the case to a Jirga for trial under the Regulation. It, is, therefore, quite obvious that the revisional jurisdiction was not legitimately exercised in the present case, and as such the order setting aside the order of discharge cannot be sustained. The objection is accepted and the relevant part of the order is reversed.

6. The partial reversal of the order under revision brings us to the consideration of the question whether Mr. Roedad Khan was competent to refer the case to a Jirga for trial under section 11 of the Regulation, when the order of discharge is assumed to subsist in favour of the petitioners. The argument, which was pressed in service on this point, was that with the order of discharge subsisting in favour of the petitioners they were no longer "persons accused of an offence" Ss a pre‑requisite condition under section 11, and therefore the District Magistrate, or for that matter, the Deputy Commissioner had no power to refer the case to a Jirga. In support of the argument reliance was placed on section 14 of the Regulation, which says :‑ "The powers conferred by section 11 on the Commissioner . . . . . 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 an order of conviction or acquittal has been made." It was urged that section 11 and section 14 of the Regulation read together make it clear, that "a person accused of an offence" means a person against whom a case is pending either in the Court of Session, or before any inferior Court, and not a person who has been discharged. I have given anxious thought to this aspect of the matter and on full consideration of the relevant provisions contained in the Code of Criminal Procedure and the Regulation bearing on the question, I feel no hesitation to reach the con clusion, that a person can still be "an accused person", even if he is discharged and at the relevant time no case is pending against him in any Court.

7. One of the provisions relating to the matter of discharge is contained in section 403, Cr. P. C . Subsection (1) of section 403 says:- " A person who has once beefs tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237." Explanation to the section reads as follows :‑ " the dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section '2173, is not an acquittal for the purposes of this section." Subsection (1) of section 403 read conjointly with the Explanation makes it quite plain that a person convicted or acquitted of an offence is not liable to be retried for the same offence so long as the order of conviction or acquittal remains in force. The Explanation, however, provides that the discharge of an accused person is not an acquittal for the purpose of the section. Thus, it is abundantly clear that there is no prohibition, whatsoever, to the initiation of fresh proceedings against a person, who has been discharged even on the same facts. This view is fully supported by a case decided by a Full Bench of the Punjab Chief Court in 11 Indian Cases

132. Their Lordships held, that where a Magistrate had passed an order of discharge in favour of an accused person, it was competent to the same Magistrate or to another Magistrate of concurrent jurisdiction to take fresh proceedings against the accused upon the same fact, without the order of discharge being set aside by a Higher Authority. There are several decisions of other High Courts in favour of this view, and it is now well‑settled that a fresh prosecution of a person is not barred by reason of the existence of an order of discharge in his favour. The language of the Explanation is so clear that it leaves no scope for controversy that a fresh trial is barred only in cases of acquittal of conviction. The order of discharge has not got that effect. Fresh proceedings against a person discharge are clearly permitted by the Explanation read in the context of the section. It can hardly be argued with any conviction that fresh proceedings must be taken only after the order of discharge is vacated. There is no warrant, whatso ever, for placing such limitation on the effect of the words of the Explanation. Such an interpretation would be opposed to the view taken in the Full Bench decision of the Punjab High Court and followed by other High Courts. It is, therefore, clear beyond any doubt that a discharged person continues to be "an accused person" for tile purpose of fresh proceedings taken against him, though the order of discharge subsists in his favour and is not, set aside.

8. Section 437, Cr. P. C., also provides guidance to the solution of the problem. Its language tends to suggest by implication that a person discharged under section 209, Cr. P. C., will still be treated as "an accused person" before the order of discharge is actually set aside. The words "that an accused person" has been improperly discharged by the inferior Court clearly indicate that the discharged person is to be treated as "an accused person", before the District Magistrate sets aside the discharge order, for it will be noticed that the District Magistrate has to consider the question of the propriety or impropriety of the order of discharge before he reaches the final conclusion, and sets aside the order of discharge. If a person with an order of discharge existing in his favour were not "an accused person" section 437 would not have described him as such. It is clear to my mind that a person, though the order of discharge in his favour is not set aside, will still be, "an accused person", the moment accusation is preferred against him. Judged by the ordinary meaning of the term, "an accused person" means no more and no less than a person against whom accusation is levelled, no matter whether he had been earlier discharged of any offence or not.

9. The' next important provision of law bearing on the question, whether a discharged accused is still "an accused person" without the order of discharge being set aside for the purpose of section 11 of the Regulation, is contained in the proviso to that section which says :‑ " Provided that a person discharged under clause (c) shall not be liable to be retried for any offence arising out of the same facts after the expiry of two years from the date of such discharge". It is conceded by Pir Masoom Shah, and it is also clear from the Regulation itself that the Frontier Crimes Regulation makes no provision anywhere for setting aside the order of discharge and yet, as will have been noticed in the proviso reproduced above a person discharged "is liable to be retried for any offence arising out of the same facts". The only limitation is on the duration of the period, on the expiry of which he cannot be retried. Now the question of questions is, as to how a person can be retried for an offence arising out of the same facts under section 11 of the Regulation, without the order of discharge in his favour first being set aside. The only possible answer, is that it is the intention of the Regulation that a person may be retried within two years from the date of his discharge, without the order of discharge being formally set aside, but not after that date. If there had been a contrary intention, the Regulation would have required, that before a person is placed for trial before a Jirga under section 11. "as an accused person", the order of discharge subsisting in his favour must first be set aside, and for that purpose the Regulation would have made some provision. It hardly requires and great efforts of imagination to see that under the Regulation, just as under the ordinary Criminal Law (Section 403, Cr. P. C.) a discharged. accused is "an accused person" for the purpose of his retrial under section 11, without the order of discharge being set aside. The proviso to section 11 is not susceptible of any other interpretation.

10. The learned counsel for the petitioners has invited my attention to a recent decision of my Lord M. R. Kayani, C. J. in a revision petition Muhammad Afzal Khan v. State (P L D 1959 Pesh. 133), wherein it has been held that a person is not "an accused person" as contemplated by section 11, if no case is pending against him at the time of reference to Jirga. With profound respect to my Lord, I find myself unable to agree with his view. It is unfortunate that two reported authorities of Division Benches of this Court Khanimulla and another v. Emperor (A I R 1947 Pesh. 19) and Qasim and others v. The Crown (P L D 1953 Pesh, 34), were not brought to His Lordship's notice. The facts of those cases, particularly of Khanimulla and another v. Emperor were on all fours with the facts of the present case. Precisely the same question of law was involved in those cases, and in both Their Lordships held, that the case of a person, who has been discharged by an Enquiry Court under section 209, Cr. P. C., may be referred to a Jirga under section 11 of the Regulation, without getting the order of discharge set aside, and he will still be "an accused person" for the purpose of section

11. I had the advantage of going through these decisions, when they were cited at the bar, and I find myself in full agreement with the views of Their Lordships. I cannot bring myself to agree with the proposition that section 11 of the Regulation is super imposed, or in any mariner controlled by section 14, and that a case can be referred to a Jirga under section 11 only, if it is, "pending in a Court of Session or in an inferior Court". Section 14 only prescribes the stage at which a pending case during its progress can be withdrawn. It says that a case committed to the Court of Sessions may be withdrawn at any time before the C commencement of proceedings in that Court, and a case pending before an inferior Court may be withdrawn at anytime before an order of conviction or acquittal has been recorded. In other words, the section prohibits the withdrawal of a case from the Court of Sessions, after the commencement of the proceedings and from an inferior Court after the order of conviction or acquittal is passed, and in this manner places restriction on the power of the Deputy Commissioner in reference to a pending case. The language of the section does not purport to convey by any stretch of imagination that a person against whom no case is pending in either of the Courts mentioned therein, cannot be tried by a Jirga. If that was the intention, it would have been certainly expressed in clear words. The omission of any prohibition in the section against reference to a Jirga of a case, which is not pending before any Court, clearly indicates the intention, that the Deputy Commissioner should not be debarred from exercising his power under section 11 in respect of a discharged person when as has been already seen a discharged person can be retried under the ordinary Criminal Law (section 403, Cr. P. C.), without the order of discharge being set aside, there was no reason why the Regulation should have imposed limitation on the power of Deputy Commissioner in prohibiting the retrial of an accused person, unless the order of discharge was first set aside. That the Regulation is wider in scope and confers greater powers on a Deputy Commissioner than the Criminal Procedure. Code confers on Courts, is not a matter for controversy. Section 3 of the Regulation makes this point clear beyond any dispute. It says :‑ "3. (1) The provisions of this Regulation shall take effect in cases to which they apply notwithstanding anything in any other enactment. (2) The power conferred by this Regulation may be exercised in addition to any powers conferred by, or under any other enactment, and where the contrary is not expressed or implied, other enactments in force in any place in which all or any of the provisions of this Regulation are for the time being in force shall, so far as may be, apply to cases dealt with in that place under this Regulation." It will have been observed that the powers under the Regulation are to be exercised in addition to any powers conferred by any other law, which means the ordinary Criminal Law of the country, unless there is any express or implied prohibition to the contrary.

11. Reverting to the case in hand, it will be recalled that after the petitioners were discharged by the Enquiry Court under section 209, Cr. P. C., the Prosecuting Inspector again preferred accusation against them by submitting a revision petition to the District Magistrate. The District Magistrate being armed with powers under the Criminal Procedure Code, treated them as "accused persons" notwithstanding the existence of the order of discharge in their favour. They being "accused persons", he could take action under section 11 of the Regulation as a Deputy Commissioner and he was competent to refer "the question of their guilt or innocence to a Council of Elders" under that section. When passing his order, Mr. Roedad Khan no doubt observed `that he was setting aside the order of discharge passed by the Enquiry Magistrate, but I have already held this part of his order to be without jurisdiction, because he did not at the same time pass an order of committal to the Sessions Court, as required by section 437, Cr. P. C. He, however, in the latter part of his order expressed his intention to refer the case for trial to Jirga under section 11 of the Regulation, and subsequently he recorded a separate formal order of reference. Since accusation against the petitioners was there, though they were discharged fresh proceedings were not barred either under the Criminal Procedure Code or the Regulation and it was open to the Deputy Commis sioner to treat them as "persons accused of an offence", for the purpose of section

11. I am firmly of the opinion that Mr. Roedad Khan had the power to pass the order in question without setting aside the order of discharge, and his act was not in excess of the jurisdiction conferred upon him by the provisions contained in section I1 of the Regulation for the petitioners whose case he referred to Jirga were "persons accused of an offence" within the meaning of section 11.

12. I do not find any substance in the objection of Pir Masoom Shah that Mr. Roedad Khan passed the order dated the 8th April 1959, as a District Magistrate and not in his capacity as a Deputy Commissioner. It is admitted that Mr. Roedad Khan is invested with the powers of a District Magistrate under the Criminal Procedure Code, and with the powers of a Deputy Commissioner under the Regulation. When he sets aside the order of discharge, he was acting as a District Magistrate but when he referred the case to a Jirga he was acting under section 11 of the Regulation in his capacity as a Deputy Commissioner. The actual order of reference was passed by him subsequently and he passed it as a Deputy Commissioner. The order passed by him as a District Magistrate setting aside the order of discharge would not alter the situation.

13. The last argument of the learned counsel for the petitioners that the reversal of the order of discharge was not justified on merits, is not quite relevant for the purpose of this petition, because that part of the order has been already held to be incompetent on another ground mentioned earlier. In so far as the merits of the order of reference to a Jirga are concerned, our jurisdiction to go into the question is barred by section 60 of the Regulation, for the Deputy Commissioner is not shown to have acted in excess of his jurisdiction conferred upon him by section 11.

14. The result is that in so far as the order of reference to a Jirga by the Deputy Commissioner is sought to be called in question, the revision petition is dismissed: K.B.A. Petition partly accepted.