Briefly the facts of this case are that on 19-2-64 the above accused allegedly committed a raid on the Killi of the complainant, and drove away 60 head of sheep. Samundar, brother of the complainant, along with a few others went in pursuit of the raiders. They had hardly gone about 1 miles when the accused persons took up position and opened fire on them. As a result Samandar died on the spot, Nazar Gal and Maroof were injured. The case was inquired into by the Tahsildar Chaman. The injured persons were admitted into Civil Hospital Gulistan and thereafter transferred to Civil Hospital Quetta.
2. In the meantime the accused persons crossed over to Afghanistan with their families and came back only when they were permitted by the authorities. On the return of the accused persons the case was referred to a tribunal constituted under the provisions of the Quetta-Kalat Ordinance. The tribunal submitted a divergent finding and the case had to be referred to a second tribunal. The second tribunal unanimously held the accused guilty of the charges. The District Magistrate accepted the award of the tribunal and convicted Malik Mahboob, Muhammad Sadiq, Kameen and Bhang accused of offences under section 302/307, P.P.C. and under section 10 of the Quetta- Kalat Ordinance sentenced them as under :-- {{TABLE}}
1. Malik Mahboob, Sons of Barkat.
Under section 302, P. P.
C. 10 years' R. I. each and fine of Rs, 2,000 each or2. Muhammad_Sadiq, to undergo two years' R.
I. each.
Under section 307, P. P.
C. Five years' R. I. each and a fine of Rs, 1,000 each or to undergo one year's R. I. in default each.
3. Kameen,
4. Bhang son of Sahib Jan
5. Faizo son of Rehmak,Under sections 302/307/109, P. P. C. to undergo five years' R. I. each and to pay a fine of Rs, 1,000 each or to undergo one year's further R. I. in default each.6. Mullah Muhammad Hanif son of IvIalook,
7. Jamaluddin alias Tor s/o Sahib Jan.
8. Abdullah Jan s/o Shadi.
9. Abdus Sattar s/o I Gamai.
10. Shah Jehan s/o Sahib Khan. {{TABLE}} Under section 30 of the Quetta-Kalat Ordinance the District Magistrate ordered that out of the fine, if recovered, Rs, 3,000 shall be paid to the heirs of Samandar deceased and balance shall be credited into the treasury. The District Magistrate also ordered under section 13 of the Ordinance that the parties should furnish securities in the sum of Rs, 30,000 each with two sureties for keeping peace in favour of each other and their families for a period of three years.
3. On an appeal the Commissioner, Quetta Division, passed the following order:--
(i) Giving benefit of doubt convicts/appellants Faizo, Mullah Muhammad Hanif, Jamaluddin, Abdullah Jan, Abdus Sattar and Shah Jehan were discharged. Accused Mullah Mehboob Daro who is absconding, shall be tried for the offence when V. Bacha Gul arrested, (ii)the sentences of ten years' R. I. awarded to Malik Saleh Mahboob, Muhammad Sadiq, Kameen and Bhang under Muhammad section 302, P. P. C. were enhanced to fourteen years' R. I. each Member with a fine of Rs, 2,000 each or in default two years further R. I. each. The sentences of imprisonment and fine awarded under section 307, P. P. C. would stand. The sentences were to run concurrently, (iii)out of the fine, a sum of Rs, 3,000 shall be paid to the heirs of Samandar deceased and Rs, 1,000 each to Nazar Gul and Maruf as compensation. The balance shall be credited into Government Treasury, (iv)fresh peace securities shall be obtained from the parties for a period of three years for good behaviour etc., to the satisfaction of the District Magistrate.
4. This revision petition is directed against the aforesaid order of the learned Commissioner, Quetta Division. The revision is based on the following main grounds :- (a)the incident took place in Afghanistan and therefore the Courts of this country had no jurisdiction to try it, (b)the accused were not given full opportunity to produce defence, and (c)one of the members of the tribunal namely Arbab Muhammad Umar Kansi, did. not attend the sessions of the tribunal or hear the evidence. He submitted his verdict separately. He thus acted against the provisions of section 7 of the Quetta-Kalat Ordinance.
5. The record of the case shows that the question of jurisdiction of tribunal, raised and found to be unfounded. The position with regard to this point is however clear under section 3 of the P. P. C. and the contention of the counsel for the accused does not seem to be maintainable. With regard to the second objection, the record shows Malik Mahboob accused submitted a list of D. Ws., on 27- 12-1966. Five witnesses, out of seven were examined by the tribunal and the rest were dropped by the accused vide his application dated 15-2-1967. The other accused persons did not submit any list of D. Ws., but some were examined by the tribunal on the request of the accused. In these circumstances the contention of the counsel for accused that the accused were not afforded opportunity of adducing their defence is not substantiable. As to the third objection it is a fact that Arbab Muhammad Umar Kansi did not participate in the proceedings of the tribunal and submitted his opinion on 19-4-1967. His verdict indicates that he examined the whole evidence carefully before forming his opinion. Moreover the mere non-participation of one member in the proceedings would not debar him from giving a verdict. Even otherwise the verdict of the tribunal constitutes 4/5th majority as required under section 9 (2) (a) of the Quetta-Kalat Ordinance and the verdict if considered even excluding the opinion of one member, would not affect the case.
6. The counsel for the appellants contended that the learned Commissioner Quetta Division did not issue notices to the accused persons therefore his order enhancing the sentences was not sub- stantiable under the law.
7. I have considered the facts of the case and find that the conviction of the accused persons on both counts i. e. under sections 302 and 307, P. P. C. was not justifiable. Accordingly in modification of the orders made by the learned Commissioner, Quetta Division and District Magistrate, Quetta- Pishin I convict Malik Mahboob, Muhammad Sadiq, Kameen and Bhang accused of an offence punishable under section 302, P. P. C. and under section 10 of the Quetta-Kalat Ordinance sentence them to ten years' R. I. each. The convictions and sentences passed under section 307, P. P. C. are set aside. The order regarding peace securities shall stand.
The revision petition stands disposed of accordingly.