1. WAHIDUDDIN AHMAD,. J.-This appeal by special leave' is directed against the judgment of the High Court of West Pakistan Peshawar Bench, in Writ Petition No. 344 of 1963 which was dismissed along with .Writ Petitions Nos. 361 of 1963 and 296 of 1965, by judgment dated .The 12th August 1965: Briefly the facts leading to this appeal are that the appellants who are residents of Dera Ismail Khan, were tried under section 302, P. P. C. Read with section 11 of F. C. R. And sections 307/149, P. P.
2. C./11, F. C. R. The allegation against them is that on the 20th November 1959, at 1-15 p.m. a fight took place between the appellants and Sona Khan, Muhammad Jaffar 'sons of Haji `Ellahi Bakhsh and their relative Ghulam Mustafa. Sona Khan lodged a report that Khuda Bakhsh appellant was present with a revolver: Rab Nawaz, Muhammad Bakhsh and Ellahi Bakhsh appellants were armed with sticks and hatchets. Shah Nawaz appellant was empty handed. He further alleged that Muhammad Bakhsh and Ellahi Bakhsh appellants had beaten Muhammad Jaffar, who later on died. Rab Nawaz was also charged for beating the deceased Mohammad Jaffar and Ghulam Mustafa. The appellants were arrested. The case was challaned in the ordinary Court but it was withdrawn on the 18th March 1960, by Mr. Fakhruzzaman Khan, Deputy Commissioner, for reference under section 11 of the F. C. R. For trial by a Jirga. On the 11th May 1960; the Jirga submitted an award.
3. The Deputy Commissioner accepted the award and directed that the appellants be sentenced for the murder of Muhammad Jaffar deceased under section 302/149, P: P. C. Section 11, F. C. R. To 14 years' rigorous imprisonment each. They were further sentenced for attempting on the lives of Sona Khan and Ghulam Mustafa under section 307/149, P. P. C. Section 11, F. C. R. To 10 years' rigorous imprisonment and a fine of Rs. 1,000 each. In default of fine one year's rigorous imprison-- ment each. The landed property of accused Khuda Bakhsh was also confiscated to the State. The Deputy Commissioner further directed that the confiscated property be sold and Rs. 5,000 be paid as compensation to Haji Ellahi Bakhsh, father of the deceased.
4. On a revision, the Commissioner, F. C. R., Peshawar and Dera Ismail Khan, Mr. Ghulam Sarwar Khan, on the 20th December 1960, accepted the revision and directed that permission of the Commissioner, Dera Ismail Khan may be obtained prior to the Reference of the case to a new Jirga.
5. The case was again placed before the Commissioner, Dera Ismail Khan, Mr. Ataullah Jan, who by order dated the 17th July 1961, restored the order of the Deputy Commissioner and rejected the petition. This order was challenged in Writ Petition No. .146 of 1961 and a Division Bench of the West Pakistan High Court, by order dated the 24th October 1961, set aside the order of Mr. Ataullah Jan on the ground that it was based on wrong interpretation of law.
6. Thereafter the matter was referred by the Deputy Commis--sioner on the 28th November 1961, C0,, permission to refer the case to a fresh Jirga. On the 14th December 1961, the Commis--sioner, Dera Ismail Khan, sanctioned the fresh Reference. On the 2nd May 1962, Deputy Commissioner, D. I. Khan constituted a fresh Jirga. The Jirga submitted its award on the 25th September 1962, which was confirmed by the Deputy Commis--sioner, on the 1st October. 1962. The Deputy Commissioner convicted the appellants under section 302, P. P. C./11-12 F. C. R. And sentenced each of them to undergo rigorous imprisonment for 14 years. He further entered the appellants under sections 307; 149, P. P. C./11-12 F. C. R. To rigorous imprisonment for to years. The sentences were to run concurrently. He further directed that the entire immovable property of all the appellants be confiscated under subsection (3) of section 12 of the F. C. R. This recommendation was confirmed by the Commissioner on the 15th December 1963. The appellant, challenged this order in Writ Petition No. 344 of 1--903 but it was dismissed by a Division Bench of the West Pakistan High Court by judgment dated the 12th August 1965. Thereupon, the appellants filed a petition for special leave to appeal.
7. Leave was granted in this case to the appellants to consider what is the effect of not including section 149, P. P. C. In the Second Schedule to the Frontier Crimes Regulation, 1901. In this connection this Court observed as under :- "Mr. Peer Bakhsh Khan then raised the point that section 149, P. P. C. Was not mentioned in the Second Schedule to the Regulation, whereas the conviction in the instant case was, ac--cording to the High Court, under section 301, P. P. C. Read with section 149, P. P. C. In the writ petition filed in the High Court, section 34, P. P. C. Is mentioned instead of section 149, P. P. C., but it is pointed out that even section 34, P. P. C. Does not figure in the Schedule to the Regulation. The argument is.
8. Advanced that, in consequence, the conviction is not purely under section 302, P. P. C,, such as is contemplated by sub--section (3), of section 12 of the Regulation. Since on a similar point, Petition No. 118 of 1965 has been admitted, we grant leave to appeal to consider this point only."
9. Mr. Muhammad Nazar Khan, Advocate-on-Record, has not pressed this appeal in view of the decision of this Court in the case of Shahadat Khan and another v. Home Secretary to the Government of West Pakistan and others (PLD 1969 SC 158). In that case also the question for consideration was as to the effect of convicting a person under section 34, P. P. C. When that provision of law is not mentioned in the Schedule to the West Pakistan Criminal Law (Amendment)
10. Act, 1963. It was observed in that case at page 162 as under :- "This Court has since reversed the majority view of the Full Bench of the High Court and held that the First Schedule to the West Pakistan Criminal Law (Amendment) Act, 1963, is not framed on any basis of categories of offences but has to be treated as an enumeration ad hoc of the particular offences which the Legislature had chosen to be referable to the Tribunal. This view has also since been re-affirmed by this Court in the case of The Commissioner, Rawalpindi Division and another v.
11. Pervez Iqbal PLD 1968 SC 259 and the High Court has itself, by another Full Bench decision in the case of Muhammad Nawaz and others v. The State PLD 1967 Lah. 952 held that since section 34 of the Penal Code does not create any distinct offence but merely lays down a principle of joint liability in a criminal at,. It is immaterial whether it is mentioned in the Schedule to the West Pakistan Criminal Law (Amendment) Act or not as a referable offence. The mere fact, therefore, that a person is charged constructively for an offence by append--ing section 34, P. P. C. To the said offence does not affect the validity of the reference itself. Even if section 34 is not included in the Schedule yet, on the facts, if it is found that certain persons whose cases have been referred to the Tribunal are only constructively liable for that offence, the Tribunal would be able to recommend their conviction thereunder."
12. It was conceded by the learned counsel for the appellants that both in section 34 and section 149, P. P. C., there is con--structive liability and, therefore, the point on which leave was granted by this Court has finally been decided in the above--mentioned case.
13. The learned counsel for the appellants is perfectly right in conceding that the point on which the leave was granted in this case has been finally concluded by the decision of this Court in the above-mentioned case. There is, therefore, no force in this appeal which is dismissed with no order as to costs.