' ABDUL QADEER CHAUDHRY, J.-On 11th February, 1981 an incidents took place near village Shinaponga in District Zhob in which two persont Haji Noor Muhammad and Gul Muhammad were murdered and two other persons namely Abdur Rahim and Fateh Muhammad received injuries as a result of firing. On 21st March, 1981 the complainant/respondent No, 1 filed a direct complaint under various heads of Pakistan Penal Code against 38 persons. After usual investigations the Naib-Tehsildar submitted a challan on 30th September, 1981 against 22 persons. Some persons Were released on bail against whom it is stated there was no material available on record against them. 13 persons including the present petitioners were detained and their bail applications were rejected. The case was referred to a Tribunal under Ordinance II of 1968 headed by the Assistant Commissioner Lower Zhob. The petitioners again moved bail application before the President of the Tribunal who recommended their release on 7th April, 1982. The Deputy Commissioner returned the bail matter to the Assistant Commissioner with the observation that the Assistant Commissioner being the President of the Tribunal had the jurisdiction to dispose of the same. The President of the Tribunal on 12th April, 1982 released the present petitioners on bail.
2. The respondents filed an appeal before the Commissioner Quetta which was disposed of by the Additional Commissioner, who accepted the appeal, set aside the order dated 12th April, 1982 passed by the President of the Tribunal and cancelled the bail granted to the petitioners.
3. The petitioners unsuccessfully challenged the order of Additional Commissioner, before the Member Board of Revenue ; hence the present petition.
4. The learned counsel for the petitioners has stated that no appeal is maintainable against the order of President of the Tribunal to the Commissioner and the order passed by the Commissioner is without jurisdiction. The learned counsel has referred to section 23 of Ordinance II of1968 which provides that any party aggrieved by any decision, sentence passed or order made by the Deputy Commissioner under this Ordinance may prefer an appeal to the Commissioner. According to the learned counsel as the order impugned before the Commissioner was passed by the Assistant Commissioner as President of the Tribunal, therefore, the appeal was not maintainable, as only the order of the Deputy Commissioner was assailable in appeal under section 23 of the Ordinance to the Commissioner. This argument has no force. Section 16 is the provision for the grant of bail A and under section 16 (2) the President of a Tribunal may, in regard to a case referred to the Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section.
Therefore, when the President of the Tribunal exercises his powers under section 16 then he passes such an order as a Deputy Commissioner. When an order is passed as Deputy Commissioner it is appealable under section 23. This objection was also taken before the Commissioner and it was rightly rejected by him. We, therefore, see no force in this contention.
5. The next contention of the learned counsel for the petitioner is that the appeal before the Commissioner was not maintainable as the order of granting bail was not impugned before him.
The order of Commissioner has also been attacked on another ground that each of the petitioners was granted bail by separate order, on a separate application, by the President of the Tribunal ; but no separate appeal was filed against each order passed by the President of the Tribunal. We see no force in this contention. The respondent No, 1 in his appeal prayed that the record of the case may be called for and the order, dated 12th April, 1982 granting bail to the petitioners be set aside.
It, therefore, cannot be contended that the complainant had not challenged the order of the Assistant Commissioner, whereby, the bail was granted to the present petitioners. There is also no substance that separate appeal should have been filed by the petitioners. The orders passed by the Assistant Commissioner are stereotyped and though separate applications had been moved ; but similar order has been passed on the applications moved by the petitioners. The petitioners were facing trial in the same case and they have been admitted to bail in the case pending B before the Tribunal. We do not consider that any illegality has been committed by the Commissioner in not demanding separate applications for the cancellation of bail of each accused. It is only a technical objection. The petitioners were heard by the Additional Commissioner before passing the order. They cannot make any grievance that they had been prejudiced by not filing separate applications for cancellation of bail. The petitioners had been arrayed as respondents in the appeal filed by the complainant, and they did not raise this objection before the Commissioner. The Code of Criminal Procedure is not applicable to proceedings under Ordinance. II of 1968. We see no merit in this contention.
6. The next contention made by the learned counsel for the petitioners is that the petitioners are innocent for the reasons that they were taken into protective custody for the following reasons (i)that the vehicle, from which the dead body is said to have been recovered, was not seized nor is there any report about its inspection;
(ii) that the alleged injuries on the dead bodies are by machine guns while no machine guns was recovered from the petitioner ;
(iii) that there is nothing on record to show the recovery of weapon and to establish its possession with any of the petitioners ;
(iv) that no empties were recovered ;
(v) that it is admitted by the prosecution that at The complainant side had fired at the houses of the petitioners and the possibility of the alleged death and injuries to other a as a result of that firing is not excluded ;
(vi) that despite the absence of death certificates and post-mortem reports of the dead persons the injuries are stated to be by machine gun bullets-a weapon which is not recovered from the petitioners ; whereas they were taken into protective custody from their respective Brinjes ;
(vii) that as per case of prosecution there are four sets of witnesses as explained in the sketch of the site. At spot 'E' there were persons who collected the dead bodies could not identify any body inside the brings. (b) persons at spot A & B have named 12 persons belonging to Mirokohel and Rahatkohel who have not named 3 persons namely Zebta, Kasikai and Taveez. Though these persons have been named in the complaint yet not challenged. Fazal son of Zafran also named by these witnesses stated by other set of witnesses stated at spot-F. This connection he has stated 9 other similar reasons which he has mentioned in the petition. All these grounds relate to the facts of the case. It is not the function of this Court to adjudicate upon the disputed facts. The order of the Commissioner is quite clear and he has specifically stated that there is sufficient evidence available against the petitioners nominating them with the commission of the offence. It was further pointed out by the Commissioner that their earlier application was dismissed by the Deputy Commissioner on valid reasons and no fresh circumstances have arisen which entitle them to the concession of bail. In fact the learned counsel has raised controversial facts which cannot be resolved' in this petition. The matter is still pending before the Tribunal. The evidence has yet to be recorded and on the basis of evidence on record the finding would be recorded by the Tribunal. In such circumstances we see no force in the contention that the petitioners are innocent. It is premature to raise this contention. The learned counsel has further stated that in spite of the fact that some evidence is available against the petitioners, the petitioners are entitled to bail as further inquiry has to be made. We see no force in this contention that as the matter is being enquired into by the Tribunal, therefore. The petitioners should remain on bail.
7. The last contention made by the learned counsel for the petitioner is that the petitioners have been granted bail under proviso 3 of section 497 (1), Cr. P. C. As of right, under the law, hence their bail cannot be cancelled by the Additional Commissioner. In order to appreciate this contention we have to examine the law. By means of Ordinance LXXI of 1979 the following proviso has been added in section 497 (1):- "Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail-
(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not be concluded, or
(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded.
' The petitioners were arrested on 11th February, 1981 and they were admitted to bail on 12th April, 1982 i. e. After about 14 months of the arrest. According to the learned counsel for the petitioners the maximum punishment provided under section 12 is a sentence of transporation or imprisonment of either description for a term exceeding seven years but not exceeding fourteen years. It is therefore, contended that as the maximum sentence to be imposed upon the petitioners is 14 years, therefore, they are entitled to bail. The learned counsel for the respondent No, 1 and learned A. A. G. Have not accepted the contention of the learned counsel on the ground ; that this amendment has not been made applicable to the tribal areas. The learned counsel for the petitioners has stated that the amendment has been made, applicable to the whole of Pakistan and Pakistan has been defined in the Constitution of 1973 "Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan". The learned counsel for the respondent No, 1 has stated that under Article 247 (3) of the Constitution no Act of Parliament shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Parliament or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province with the approval of the President so directs. As in the present case no approval has been given by the Governor of Baluchistan, therefore, this amendment in the Cr. P. C. Is not applicable to the Tribal area. The learned counsel or the petitioners has referred to the Laws (Continuance in Force) Order 1977. Paragraph 2 (1) of this Order provides that notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, Pakistan shall, subject to this Order and any Order made by the President and any Regulation made by the Chief Martial Law Administrator be governed as nearly as may be, in accordance with the Constitution. According to the learned counsel the country is to be governed "as nearly as may be possible" in accordance with the Constitution and not entirely in accordance with the Constitution He, therefore, says that the Ordinance LXXI of 1979 by which amendment in section 497, Cr. P. C. Has been made is extended to the whole of Pakistan, therefore, the provisions of Constitution as contemplated in Article 247 (3) are not attracted. It is not required that Governor must give such approval. There is no force in this contention. The Provisional Constitution Order C. M. L. A's Order-1 of 1981 was promulgated by the President in pursuance of the C. M. L. A's. Order-1 of 1977 and Article 2 of this Order has maintained Article 247 of the Constitution as part of this Order. It is thus clear that a law can only be extended to tribal area as laid down in Article 247 (3) of the Constitution. Unless order is made in terms of Article 247 (3) of the Constitution no law shall be applicable to the Tribal Area. The learned counsel for the respondent has referred to delimitation of Constituencies (Amendment) Ordinance, 1978 by which the delimitation of Constituencies was extended to the Federally Administered Tribal Areas.
He has also referred to Regulation-I of 1978 by which Land Reforms (Amendment) Act, 1973 as in force in N.-W. F. P and the province of Baluchistan was made applicable to the Provincially Administered Tribal Areas. The learned counsel has stated that if a law is to be extended to the Tribal area then regulation has to be made by the President. It is stated that number of other laws which are applicable to Pakistan have been extended to Tribal Areas through specaial order. All laws enforced in Pakistan are not applicable to Tribal Areas. As Ordinance LXXI of 1979 by which the proviso has been added has not been extended to the Tribal area, the petitioners cannot claim the benefit of the proviso for their release. The learned A. A. G. Has supported the contention of the learned counsel for the respondent No, I. We agree with the contention raised by the learned counsel for the respondent No, 1 that the amendment in the Cr. P. C. In section 497 has not been extended to the Tribal area, therefore, the petitioner are not entitled to the benefit of this provision.
' In the result we see no force in this petition, the same is hereby dismissed. The petitioners were admitted to bail by this Court on 20th April, 1983. The order of bail is recalled and the petitioners should arrested as directed by the respondents 2 and 3. The petition is dismissed with costs.