ABDUL KHALIQ KHAN, J.-Facts relevant to the disposal of this Constitution Petition are :- Vide F.I.R. No. 63, dated 30th June, 1981, Police Station `Khal', District Dir, the present petitioner alongwith Rasul Khan (absconder) were charged for commission of the offences under section 307/436/427/ 423/148/149, P. P. C. The accused avoided arrest and remained at large till 18th of March, 1982. On the said date they surrendered to the local police, through the good offices of the local elders. They were produced before, the Assistant Commissioner, Wari, exercising the powers of Deputy Commissioner under Regulation No. 1 of 1975 and were admitted to bail. The order reads:- "Accused surrendered before police, through local elders and, therefore, keeping in view the efforts of elders, the accused are admitted to bail bond in twenty thousand rupees each with two sureties in the like amount to the Court satisfaction. On furnishing bail be set at liberty otherwise kept in the J. L (Judicial Lock-up) and produced before the Court on 2nd April, 1982."
2. The State moved the Court of Additional Commissioner Malakand Division for cancellation of the bail. The concession (of bail) was re-called vide order dated 4th July, 1982 and consequently, the petitioners were taken into custody. Their revision against the said order was rejected by the Additional Secretary Home, on 11th April, 1983. They have, therefore, through this Constitutional Petition, challenged the validity of the order of their re-arrest. It is contended that the Additional.
Commissioner had no power under P. A.T.A. Regulation No. 1 (henceforth the Regulations) to cancel their bail.
3. It may also be stated that the power of the `Additional Commis--sioner' as such, to hear appeal against the order of the Deputy Commis--sioner was initially questioned but during hearing this objection was not pressed, and rightly so, as the Additional Commissioner concerned has been invested with the powers of the Commissioner by a valid notification.
4. Akhunzada Behrawar Saeed, the learned counsel for the petitioner, in support of his contention submitted that section 16 of the Regulation empowers the Deputy Commissioner to grant bail of accused persons but does not `specifically' provide that he at the same time can cancel it, therefore, in view of the legal maxim expressio unius alterious exclusio meaning express mention of one thing implies the exclusion of another had no power to cancel the bail. It was further urged that in view of the proviso to section 23 of the Regulation, as the Commissioner has identical powers with the Deputy Commissioner, therefore, be too would lack jurisdiction to recall the bail.
5. In order to appreciate the arguments advanced at the Bar it may be necessary to reproduce the relevant sections. Section 16 of the mentioned Regulation reads: "An offence triable under this Regulation shall be bailable or non-bailable according as the same is bailable or non-bailable under the Code of Criminal Procedure, 1898 (Act V of 1898), and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code."
(2) ... ... ... .. ... ... ... ... ... ...
Section 23 makes provision for appeal to the Commissioner (or Additional Commissioner exercising the powers of the' Commissioner). It states :- "(1) Any party aggrieved by any decision given, sentence passed or order made, by the Deputy Commissioner under this Regulation may, within thirty days of such decision, sentence of order, prefer and appeal to the Commissioner.
(2) The Commissioner shall not confirm, modify alter or set aside any decision, sentence or order appealed against except after giving the parties an opportunity of being heart.
(3) The Commissioner may, in deciding an appeal under subsection (1), exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure, 1898 (Act V of 1898) and may also enhance any sentence: Provided that no sentence shall be passed by the Commissioner in such appeal which the Deputy Commissioner could not have passed under this Regulation."
6. It is manifest from reading of the proviso to section 23 that it cannot be successfully pressed in service, for the short reason that `sentence' was not the subject-matter of the appeal. It needs no reiteration that the State had moved in appeal, the Court of Additional Commissioner against the order of bail. In the circumstances, we are to consider the case of the petitioner in the light of section 16.
7. Section 16 refers to granting of bail and there is specific mention of its re-call. Subsection (2) of section 23 reproduced above, invests the Court with the powers to confirm, modify, alter or set aside any decision, sentence or order appealed against no doubt, after having afforded the parties the opportunity of hearing. Moreover, subsection (3) provides, that the Commissioner can exercise all or any of the powers conferred on an appellate Court by the Code of Criminal Procedure 1898.
Evidently, the Commissioner exercising powers of the appellate Court would have the same powers as provided by section 423, Cr. P. C. Appellate Court (powers of appellate Court in disposing of appeals). It extend (on hearing the accused) its authority to dismiss the appeal or alter or reverse the order impugned. Sub-clause (c) of section 423, Cr. P. C. Is a .Complete answer and negate the arguments advanced at the Bar that as there is no express provision in section 16 for the cancellation of bail, therefore, neither the Deputy Commissioner nor the Commissioner (or Additional Commissioner exercising the powers of Commissioner under .The Regulation) would have authority to cancel the bail. Importing any condition for restricting the powers of either the Deputy Commissioner or Commissioner will be doing violence to the language of the relevant sections, of Regulation No. 1.
8. In nutshell, the appellate Court has not only the power to confirm the order of bail passed by the Deputy Commissioner but also possesses, authority to alter or reverse it. Consequently, there being no substance in the petition, we will order its dismissal. No order, however, as to costs.