P L D 1959 (W (PLP)

Under section 437, Cr. P. C., the District Magistrate could only order the accused to be committed for trial. The King Emperor v. Naina Ram 33 J R 1905 considered. Masoom Shah for Petitioner. Ghazanfar Ali Shah A. A. G. for Respondent. Date of hearing : 4th May 1959. The petitioner, Muhammad Afzal, was charged for the murder of one Dalel Khan and an inquiry was conducted against him by Mr. Nazeer Muhammad, Magistrate, preliminary to his committal to the Court of Session. The Magistrate did not find any prima facie case against the accused and on the 6th of January 1958, discharged him under section 209 of the Code of Criminal Procedure. No attempt was then made to withdraw the case for reference to a Council of Elders under the Frontier Crimes Regulation, because about this time the High Court had held that the Regulation was inconsistent with the Constitution. On the 26th of February 1959, a Prosecuting Sub‑Inspector made a note that since the Frontier Crimes Regulation had been declared good law, "keeping in view the strong motive and moral certainty about the guilt of the accused, it is requested that the case against the accused may be taken up on the Jirga side so that the accused may not go unpunished." The Prosecuting Deputy Superinten dent of Police submitted this note to the Deputy. Commissioner for withdrawing the case for trial under the Regulation and the Deputy Commissioner, Mr. Faridullah Shah, withdrew it on the 10th of March 1959. It does not appear from the file how it became necessary for his‑successor, Mr. Roedad Khan, after this withdrawal; to pass the order under revision dated the 8th of April, 1959. It purports to be an order in revision and, after discussing the facts, states that "the learned Magistrate who had only to decide whether there were sufficient grounds for committing the accused has usurped the functions of the trial Court and has discussed and weighed the evidence from an altogether different point of view. The evidence on the record may or may not be strong enough to sustain conviction but there is a strong motive and circumstantial evidence which connects the accused with the offence. In view of this, there were sufficient grounds for committing the accused and the order of discharge is, therefore, not justified." The order of discharge was set aside, but, "in view of the peculiar facts of the case", the District Magistrate thought it "expedient that the question, of guilt or innocence of the accused should be decided by a Council .of Elders." The question. is whether such an order can be made either under the Code of Criminal Procedure or under the Frontier Crimes Regulation.

2. The District Magistrate's power of revision in the present case is circumscribed by section 437 of the' Code of Criminal 'Procedure, where in a case triable exclusively by the Court of Session, if he finds that the accused has been improperly discharged by the inferior Court, he may order the accused to be committed for trial. This has not been done here. The power under the Regulation is exercisable in the following manner. Under section 11, where, in his opinion, it is inexpedient that the question of guilt or innocence of any person accused of any offence should be tried by an ordinary Court, he may refer the question to the decision of a Council of Elders. On receipt of the finding of the Council, he may (a) remand the question to the Council for a further finding, (b) refer the question to a second Council, (c) acquit or discharge the accused, or, (d) convict the accused in accordance with the finding of the Council; "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."

3. Under section 14, the powers conferred by section 11 may be exercised, in cases committed to the Court of Session, at any time before the trial commences, 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 argued on the strength of The King Emperor v. Naina Ram (33 Judicial Record 1905) that an order of discharge does not prevent the Deputy Commis sioner from exercising his power within two years of the order of discharge. It will be noticed, however, that section 14 requires the case to be "pending" before the Court or a Magistrate, and a case is no longer pending after an order of discharge has been made. This objection seems to have been present to the mind of the learned Judicial Commissioner who decided Naina Ram's case, but his reply was that "there was nothing in the Frontier Crimes Regulation which would debar the Deputy Commissioner from referring to Jirga the question of the guilt or innocence of a person who has been discharge by a Magistrate" and although the a argument merely reproduce the objection the learned Judicial Commissioner was apparently relying to proviso to section 11 which I have already reproduced but which according to the learned Judicial Commissioner "provided that person who has been discharged after trial by Jirga may be retried on the same charge or on any other charge arising out of the same facts, within: two years of the order of discharge." Now, firstly, the proviso does no: speak of the same charge although it could have said very convectively that person discharged "shall not be liable to be retried for the same offence." Instead, it says that he "shall not be liable to be retried for any offence arising out of tae same facts. There is no provision in tile Regulation itself for the sitting aside an order of discharge under clause (c) of section 11 and, therefore, there can be no question of retrial for the same offence. What appears to have, been in contemplation was a retrial for another offence arising out of the same facts and this was limited to a period of two years. Secondly the proviso refers to a discharge by the Deputy Commis sioner under section 11 and this is quite different from a discharge by a Magistrate under the ordinary law may say so with great respect, the learned Judicial Commissioner, while having in mind a discharge under the ordinary law, has applied to it the proviso to section 11 which is confined to a discharge under the Regulation.

4. Section 14 of the Regulation, therefore, cannot depend for its meaning on the word "discharge" given in section

11. Its plain meaning is that a reference to a Council of. Elders may be made at any stage of a pending case. It is true that the words "acquittal" and "conviction" have been expressly used and the word "discharge" is not mentioned. If, however, by the use of the word "conviction" and "acquittal" and the omission of the word "discharge", it was expressly intended to alter the ordinary meaning. of the word "pending", there is good reason for arguing that the intention should have been more plainly expressed and that it should have been stated clearly that a case will remain pending for the purpose of section 14 even if there has been an order of discharge.

5. Next, it will be noticed that under section 11 the question of guilt or innocence of a person is referred to a Council because he is "accused of any offence", but the accusation disappears when he is discharged. After that stags he is no longer an accused person.

6. The order of reference in this case is consequently beyond the power given by section 14 of the Frontier Crimes Regulation and is set aside. The accused should be set at liberty. A. H. Order set aside.