P L D 1962 (W (PLP)

M. R. KAYANI, C. J.--On the 22nd of January 1960, there was firing between the parties near the village Gulmaira, which is a banda of Lundkhwar. Two persons were injured on the com plainant's side and a stranger, Ghulam Qadir, who belonged to neither party, was killed. The party to which the petitioner, Muhammad Akbar Khan, belongs was prosecuted under section 302, P, P. C. and the opposite-party under section 307 P. P. C.

2. On the 25th of August 1960, the Prosecuting Sub-Inspector conducting the case before the enquiry Magistrate informed him that he was recommending them for Jirga trial. The files were accordingly sent to the District Magistrate, but the fact that the were received back on the 14th of October 19(0, and that the inquiries were continued indicates that the Deputy Commissioner did not agree to witrdraw the cases from the ordinary Court.

3. On the 24th (sic) of January 1961, however, the Deputy Commissioner recommended to the Commissioner that he may be allowed to refer these cases to Jirga. The Commissioner, acting on the recommendation of the Additional Advocate-General, replied that they should be tried judicially.

4. On the 15th of February 1961, the Home Secretary to Government, forwarding two applications made by Mr. Ghulam Muhammad Khan Lundkhwar, wrote to the Deputy Commissioner of Mardan, sending a copy to the Commissioner of Peshawar, and made a "request that these cases should be tried under section 11 of the Frontier Crimes Regulation, 1901," and "if possible, and if there be no objection, the members of the Jigra may be drawn from the neighbouring districts". Before, however, the Deputy Commissioner had taken any action, the home Secretary wrote again on the 10th of March 1961, to the Commissioner of Peshawar, and referring to his letter of the 10th of March observed " This letter is to be read in the light of the procedure laid down by the Provincial Government in their letter No. Judl-1 1 (6)/60 dated the 7th May 1960. The intention of Govern ment was that in case the police were reasonably satisfied as to the guilt of the accused, then steps should be taken for the trial of the accused by Jigra in accordance with the normal procedure." 5. 7 he letter of the 7th of May 1960, is a circular letter to the Commissioner Under the F. C. R., intended to discourage references to Jigras. In order to achieve this object, the following procedure was laid down :- (1) No case was to be referred to a Jigra under section 8 (Civil references) without the prior sanction of Government. (2) References under section 11 (criminal) were to be con fined to murder cases and offences of an exceptionally serious character. (3) Deputy Commissioners were to be normally satisfied of the guilt of the accused and forward the case with brief notes to the Additional Advocate-General, who would give his opinion and forward it to the Commissioner. On this opinion the Commissioner was to "give or withhold his assent."

6. On the 23rd of June 1961, the Deputy Commissioner stated the history of the case and recommended again to the Commissioner that the accused may now be tried by a Jirga. On the 25th of July 1961, the Commissioner agreed, but the actual reference under section 11 was made by the Deputy Commissioner on the 6th of December 1961. This writ petition, challenges the legality of the reference.

7. Learned counsel for the petitioner has argued that the reference was illegal for the following reasons :- (1) That the Commissioner, having refused to agree to a reference on the 24th of January 1961, should be deemed to have acted in the exercise of revisional powers under section 49 of the Regulation and his order should, therefore, be treated as final; (2) that the letter of the Home Secretary to the Deputy Commissioner dated the 15th of February 1961, was virtually an order of Government requiring him to refer the case to Jirga, and that consequently the reference was not based on the opinion of the Deputy Commissioner, as required by section 11 ; (3) that the Government could not require the Deputy Commissioner to nominate a Council-of-Elders from other districts ; and (4) that the Commissioner having once disagreed on the 24th of January 1961, it was not open to him to agree on the 25th of July 1961.

8. So far as the first objection goes, we notice that section 49 of the Regulation empowers the Commissioner "to call for the record of any proceeding and revise any decision, decree, sentence or order given, passed or made therein." In other words, what the Commissioner revises is a decision or an order. Now when the Commissioner disagreed to a reference on the 24th of January 1961, he did not disagree with any order of the Deputy Commissioner but with a mere recommendation. Mr. Mahmud Ali for the petitioner argued that section 11 can be split in two parts. The Deputy Commissioner first decides that it is Inexpedient that the question of the guilt or innocence of any person accused of any offence should be tried by an ordinary Court and then orders that such question shall be referred to a Council-of-Elders. In the present case, according to him, the decision that a trial by an ordinary Court was inexpedient had been taken but the order of reference had not been passed. The Commissioner, however, upset that decision and the case fell under section

49. We do not agree that section 11 of the Regulation can be split is not a in this manner. The first part of the Deputy Commis sioner's action decision but the expression of an opinion and there is only one order under section, 11, namely, the order to refer to a Council-of-Elders, that order being based on an opinion. In fact, the word "opinion" is actually used in section 11.

9. We should observe here that although the procedure which the Government has laid down by Its letter of the 7th of May 1960 has no legal sanction behind It, since it is not opposed to any express provision of the Regulation and since its object is to discourage references to Jirga, we say nothing about it beyond pointing out that it has not been properly worded, and that objection can be taken to it on the ground that it fetters the discretion of the Deputy Commissioner. There is no objection to the Government placing itself or the Commissioner in the position of an adviser to the Deputy Commissioner, just as there is no harm in consulting the Additional Advocate-General. When, however, the letter says that on the advice of the Additional Advocate-General the Commissioner will "give or withhold his assent", it loses sight of the language of section 11 which bases the order of reference on the opinion of the Deputy Commissioner. We also wish to point out that the letter seeking advice and the g letter giving advice should not be made a part of the judicial file.

10. However, since the Commissioner has not set aside any order of the Deputy Commissioner, he cannot 'be said to have acted under section 49 of the Regulation, and the question of his C order being final, therefore, does not arise. This being the case, he was not prevented from agreeing to a reference on the 25th of July 1961. This answers the first and the fourth objections.

11. The second objection was that the Deputy Commissioner had acted under the orders of the Government. If the letter of the 15th of February 1961, had been the only letter which the Home Secretary wrote to the Deputy Commissioner, we would have been inclined to accept this contention It appears, however, that the Home Secretary realised his mistake and, therefore wrote on the 10th of March 1961 to the Commissioner that his previous letter was to be read in the light of the procedure laid down by the Government in their letter of the 7th of May 1960, that the satisfaction as to the guilt of the accused should exist before any reference is made to a Jirga and that the normal procedure was to be followed. This gave complete discretion to the Deputy Commissioner, and it will be noticed that he did not refer the case to the Commissioner until the 23rd of June 1961. It should, therefore, be presumed that the Deputy Commissioner had acted in his own discretion.

12. Now as regards the Home Secretary's recommendation that "if possible and if there be no objection, the members of the Jirga may be drawn from the neighbouring districts", there can be no legal objection. It will be noticed that the Deputy Commissioner himself had in his first recommendation dated the 14th of January 1961, informed the Commissioner that "after sanction I intend to appoint Jirga members from the district of Peshawar or Hazara." In other words, he was himself alive to the necessity of appointing outsiders. In his order of reference some unguarded words have been used to suggest that the Deputy Commissioners of Kohat and Hazara were asked by him to "nominate" members. But it is :obvious that the appointment was made by himself and that when he used the word "nominate", his meaning was that the Deputy Commissioners of Kohat and Hazara were to suggest names to him for nomination. There is nothing in the Regulation to prevent the appointment of members from outside the district.

13. The petition is dismissed. K. B. A. Petition dismissed.