The petitioners in this case are accused of the commission of offences under sections 148,302/149, P.P.C. They are now facing an inquiry on the above charges before a Magistrate at Gujrat.
2. The petitioners are charged for causing the death of Mohd. Aslant on the night of 17th and 18th of August 1969, in village Phira Khatana, Police Station Jalalpur Jattan. Their case was entrusted to a tribunal constituted under the West Pakistan Criminal Law (Amendment) Act, 1963. The tribunal recorded the evidence and inspected the spot. By their report dated 28th of March 1970, they recommended to the District Magistrate that there was not sufficient evidence to warrant the conviction of the petitioners. A unanimous recommendation was made by the tribunal for the acquittal of the petitioners. The District Magistrate on 20th of June 1970, agreed with this recommendation and acquitted the petitioners.
3. Muhammad Ashraf the brother of the deceased filed an appeal under section 18 of the West Pakistan Criminal Law (Amendment) Act, it is not disputed that such an appeal against acquittal did lie to the Commissioner. The Commissioner allowed the appeal on 24th of November 1970, and observed that there was no reason to disbelieve the testimony of the inmates of the house of the deceased, where he was done to death as they were natural witnesses. He further observed that the report of the Director of Forensic Science Laboratory was not considered by the tribunal and it lent support to the prosecution story. The treatment of the motive part of the story by the tribunal was also criticised by the learned Commissioner. He also found that the evidence of alibi produced by Younas accused was not as convincing as the tribunal thought. In the last part of his order, the Commissioner observed that it was of course possible that the complainant party had implicated some of the accused falsely but it is improbable that they would have ignored the true culprits and implicated totally innocent persons. The case was sent back to the District Magistrate with a direction to appoint a second tribunal which could go through the evidence already recorded and visit the spot and take such further evidence as is necessary in the interest of justice after administering customary oath and holding inquiry in the fashion of a Jirga.
4. It appears from the record that the District Magistrate constituted a second Jirga on 27th of March 1971, with four members and the Additional District Commissioner (General) to preside over it. The case was being adjourned either for want of file or absence of the Presiding Officer. It also appears from the file that the petitioner filed an appeal to the Home Secretary against the order of the Commissioner setting aside their acquittal and also put in an application for bail. Mr. Muhammad Amir Ali, Additional Home Secretary dismissed the appeal and refused bail by order dated 20th of April 1971.
5. It is to be noted that Ordinance XL1I of 1969 repealing the West Pakistan Criminal Law (Amendment) Act, 1963, came into force on lst of December 1969. The previous operation of the Act was however, not affected by this repeal and the pending proceedings were to go on. Ordinance Vll of 1971 became operative on 26th of April 1971 whereby all cases pending under the West Pakistan Criminal Law (Amendment) Act, 1963, were transferred to the ordinary Courts. In accordance with 1he provisions of this latter Ordinance, the case was transferred to the Court of Syed Akhtar Ali Magistrate First Class, Gujrat, on 22nd of May 1971.
6. Ch. Fazal Ilahi, the learned counsel for the petitioners submitted that the evidence of the eye- witnesses was not uniform and that Mst. Nazaran P. W. had said that all the assailants were equipped with guns whereas the other witnesses .stated differently. It is further said that the two recovery witnesses, namely, Mehdi and Walayat did not support the evidence of recovery and the learned Commissioner under these circumstances could not have held that the report of the Ballistics Expert lent corroboration to the testimony of the eye-witnesses. These are factual matters which are to be determined by the Court in which the case is now pending. I am only concerned with the question whether or not the recent proceedings are with jurisdiction.
7. No attack has been made on the legality of the- order of the learned Commissioner or his competence to set aside an order of acquittal. It is also proved from the file that the learned District Magistrate had constituted a new Jirga which was dealing with the matter when the case was transferred by operation of Ordinance Vll of 1971.
8. The main argument addressed by Ch. Fazal Ilahi was that there was no forum to implement the direction of the Commissioner contained in his order dated 24th of November 1970, whereby acquittal was set aside. Fie also submitted that once the petitioners had earned acquittal, they could not be retried. Both the arguments are misconceived. The Commissioner was functioning within the framework of a special law which has now been 4 repealed. The case has now been withdrawn to the domain of ordinary Courts of criminal jurisdiction and any direction given by the Commissioner under the West Pakistan Criminal Law (Amendment) Act, 1963, is irrelevant for the purposes of determination of the questions arising in this case before an ordinary Court which is governed by the Code of Criminal Procedure. The Code of Criminal Procedure does not mention the Commissioner as a Court and whatever directions he gave in hisl capacity as a persona designate! under a special law, have become!0 redundant and inoperative in view of the change in law. I 8-A. The second point is also without substance. An appeal is a continuation of the same proceedings and it has not been urged before me that the Commissioner, was not competent to set aside an acquittal. The case came back to the District Magistrate after remand and a new tribunal was constituted under the law as it then was. It was pending at the time when Ordinance Vll of 1971 came into force and it was in accordance with its provisions that it was transferred to the Court of Mr. Akhtar Ali, Magistrate First Class. There is, therefore, no inherent jurisdictional defect in the proceedings which are going on against the petitioners. I do not find any force in this petition which is, hereby, dismissed. The records shall be sent back to the Court concerned within ten days.