' INAYAT ELAHI KHAN, J.-- The facts of the case are that the complaint of Shakirullah (respondent No,3) under section 427/447. P.P.C. Against All Rehman (petitioner) was referred for trial to a Jirga by Magistrate 1st Class (A.P.A.Batkhela) with powers of Deputy Commissioner under the provisions of the Provincially Administered Tribal Area Criminal Law (Special Provisions) Regulation, 1975 (Regulation-I of 1975). After recording the evidence adduced by the parties the Jirga members unanimously gave an award on 9-5-1982 that the accused was not guilty of the charge. The Chairman of the Jirga concurred with the finding and, therefore, the accused was acquitted.
Shakirullah (respondent No,3) feeling aggrieved went in appeal before the Additional Commissioner-II, Malakand Division and his appeal was accepted on 2-11-1983. The learned Appellate Court came to the conclusion that the guilt of All Rehman (petitioner) under sections 427 and 447, P.P.C. Was proved beyond any shadow of reasonable doubt and therefore exercising his powers under section 23(3) of the Regulation (Regulation-I of 1975) read with section 423(1)(a) of the Criminal Procedure Code convicted the petitioner under section 427 and sentenced him to four months' rigorous imprisonment and a fine of Rs,200. In default of fine he is to undergo one month simple imprisonment. He was also convicted under section 447, P.P.C. And sentenced to one month R.I. And a fine of Rs,100. In default of payment of fine he is to undergo further 7 days S.I. Both the sentences were, however, directed to run concurrently.
2. All Rehman (petitioner) feeling aggrieved went in revision before the Additional Secretary, Government of N.-W.F.P., Home and Tribal Affairs Department, Peshawar. His revision was dismissed in limine on 22-1-1984 on a technical ground that since the State was not impleaded as a party to the proceedings the revision was incompetent.
3. It is not disputed that the petitioner was acquitted pursuant to unanimous award of the Jirga as he was not proved guilty of the charge. Under section 11(4) of the Regulation (Regulation-I of 1975) when a Jirga unanimously or by a majority of three-fifth returns a finding of not guilty the Deputy Commissioner is bound to acquit the accused provided he does not proceed under section 11(2) for the reason that the award does not relate to the question referred to the Jirga or in his opinion it is a case of material irregularity or miscarriage of justice. In such a situation the Deputy Commissioner has the limited power to remand the question to the same Jirga or refer the question to a second Jirga to be constituted under section 6 of the Regulation. It is thus clear that if the Deputy Commissioner does not proceed under section 11(2) he is bound to acquit the accused under section 11(5) of the Regulation. In this view of the matter the question of imposition of a penalty would not arise when the Jirga had returned a unanimous award of not guilty. Under the provisions of section 23(3) of the Regulation the appellate authority would not be competent to award punishment which could not be awarded by the Deputy Commissioner as stated above. The order of imposition of sentence by the Additional Commissioner, Malakand Division, therefore, being illegal cannot be sustained. Similarly, it appears that the learned Additional Secretary Home (respondent No,1) has failed to exercise jurisdiction vested in him under section 24 of the Regulation. Respondent No,1 was bound to satisfy itself as to the correctness, legality or propriety of the order impugned in the revision petition. Even if the State was not impleaded as a party the petitioner could have been allowed an opportunity to remove the lacuna before hearing the matter. The revision should not have been dismissed on this score.
4. For the aforesaid reasons the writ petition is accepted, the impugned order of respondent No,1, dated 22-1-1984 and that of respondent No,2, dated 2-11-1983 are declared without lawful authority and of no legal effect. The case is sent back to the learned Additional Commissioner-II, Malakand Division, Camp at Chakdara, to re-admit the appeal on its original number and decide the same afresh in accordance with law. No order as to costs.