' MUHAMMAD MUNIR KHAN, J.---This Civil Appeal No, 286 of 1992 arises from the facts that in a quarrel between the acquitted accused (Hazrat Umar and Gul Faraz) and Muhammad Akram (deceased) which took place over passing of a cart by the former from the land of the latter on 2- 11-1983 at 8-00 a.m. Within the limits of Levy Post Sakhakot, Muamber (appellant) fired a shot from his gun at Muhammad Akram resulting in his immediate death. The report of the occurrence was lodged by Kamil Badshah, the first cousin of the deceased at Levy Post Sakhakot on the same day at 8-30 a.m. Against the appellant, Hazrat Umar and Gul Faraz. The appellant was arrested on 4-2- 1994. On the completion of the investigation, the challan was submitted before the Deputy Commissioner/Assistant Political Agent, Dargai, who in exercise of his powers under section 5 of the Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation (hereinafter referred to as the PATA Regulation) constituted a Tribunal consisting of Tehsildar as a President and four members namely Haji Mir Azam Khan, Haji Jehanzeb Khan, Umar Baz Khan and Qamar Din, and referred the question of guilt or innocence of the accused to the Tribunal for decision.
2. To prove its case, the prosecution produced seven witnesses before the Tribunal. Giving the ocular account of the occurrence, Kamil Badshah and Muhammad Amin Shah claimed to have seen the co-accused quarrelling with the deceased when Muamber (appellant) fired shot hitting the deceased. According to Dr. Tariq Anwar P.W., Muhammad Akram had died as a result of fire- arm injury. Muhammad Siddique and Muhammad Yaqoob (P.Ws.) are the witnesses of recovery of blood-stained earth from the place of occurrence and taking into possession of the last-worn clothes of the deceased. Sardar Syed Muhammad Yousaf (P.W.) inspected the spot, took into possession the blood-stained earth from the spot and last-worn clothes of the deceased after the post-mortem examination. He arrested the appellant and submitted the challan in the Court of Deputy Commissioner. Sargand (P.W.) Moharrir Levy Post, Sakhakot has proved the F.I.R. (Exh.PA).
3. The appellant denied the allegations and the incriminating evidence/circumstances against him. He did not produce evidence in defence, Gul Faraz accused, however, got produced medical report of ENT Ward of Lady Reading Hospital, Peshawar to prove his plea of alibi.
4. On conclusion of the trial, the four members of the Tribunal gave divided verdict. Relying on the statements of Kaki and Mahmood recorded during the investigation by the Police and by the Magistrate, Haji Jehanzeb Khan and Haji Mir Azam Khan (Members of the Tribunal), for the reasons recorded by them, found Muamber (appellant) guilty of the Murder of Muhammad Akram and the co-accused Hazrat Urnar and Gul Faraz as innocent. It may be noted that Kaki and Mahmood had not appeared before the Tribunal and the statements considered and acted upon by the aforesaid two members were not recorded by the Tribunal. Umar Baz Khan and Qamar Din, Members of the Tribunal, after considering the evidence recorded by the Tribunal, declared all the accused, including the appellant as innocent. Agreeing with the findings recorded by Haji Jehanzeb Khan and Haji Mir Azam Khan, Members of the Tribunal, the Tehsildar (Chairman/President of the Tribunal) reported finding of guilty against the appellant and of innocence in favour of the co- accused, to the Deputy Commissioner, who, after hearing the parties, vide judgment dated 8-8- 1989, acquitted the co-accused and convicted the appellant under section 302, P.P.C., and sentenced him to imprisonment for life (20 years) and a fine of Rs,20,000 or in default two years' S.I.
With the direction that the fine if recovered, Rs,15,000 shall be paid to the complainant party. The appeal filed by the appellant against his conviction and sentence was dismissed by the learned Additional Commissioner, Malakand, Dir, on 5-10-1989. The revision petition filed by the appellant against the judgment of the Additional Commissioner was dismissed by the Additional Secretary to the Government of N.-W.F.P. On 13-8-1990. Feeling still dissatisfied, the appellant challenged his conviction and sentence through Constitution petition before the Peshawar High Court, Peshawar which was dismissed on 8-10-1991.
5. Leave to appeal was granted by this Court to examine, inter alia, whether the appellant had been convicted in a lawful manner?
6. Having heard the learned counsel for the parties we feel inclined to set aide the conviction and sentence of the appellant and remand the case for fresh trial on account of the illegality committed in the procedure followed by the Tribunal. So, we need not discuss the merits of the case. Out of the four members of the Tribunal, two members (Umar Baz Khan and Qamar Din) found the appellant innocent while remaining two members (Haji Jehanzeb Khan and Haji Mir Azam Khan) held him guilty relying on the statements of Kaki and Mahmood recorded by the Police and Magistrate during the investigation in the absence of the appellant/accused and also on the secret inquiry made by them from other sources. The Tribunal had not recorded the evidence of Kaki and Mahmood itself in the presence of the accused. The appellant was also not provided any opportunity to cross-examine these witnesses at the stage of investigation or trial. Learned counsel for the State has frankly conceded that there was no provision in the relevant law authorising the members of the Tribunal to make secret inquiries or base findings on the basis of information so collected. The procedure for the trial before the Tribunal is provided in section 9 of the PATA Regulation which reads as under:- "9. Procedure before the Tribunal.---(1) For the purpose of coming to a finding on a question referred to it, the Tribunal shall give opportunity to the parties to appear before it and proceed to hear the complainant, if any, and record such evidence as may be adduced in respect of the accusation or as may be called for by the Tribunal: ' Provided that the Tribunal may in its discretion refuse to take or hear, any evidence which in its opinion is being tendered for the purpose of causing vexation or delay or for defeating the ends of justice: ' Provided further that the provisions of sections 121 to 126 of the Evidence Act, .1872 (Act I of 1872), shall apply to any proceedings before a Tribunal as they apply to proceedings before a Judge or a Magistrate.
(2) The Tribunal shall give the parties an opportunity of cross-examining the witnesses deposing against them.
(3) The Tribunal may administer oath to witness in such form or manner, not inconsistent with the religion of the witness, as it deems fit."
7. There are no two opinions that by relying on the statements of the witnesses which were neither recorded by the Tribunal nor subjected to cross-examination by the accused, to hold him guilty, the two members of the Tribunal, on the strength of whose opinion the appellant has been convicted and sentenced to imprisonment for life (twenty years), acted in an unlawful manner, rendering not only the opinion given by them but also the conviction recorded by the Deputy Commissioner on basis thereof by a majority of three- fifth, illegal. For these reasons we are convinced that the appellant has been convicted in an unlawful manner.
8. In the circumstances, the appeal is accepted, the conviction and sentence of the appellant is set aside. The Peshawar High Court, Peshawar in its decision in Muhammad Irshad and others v.
Assistant Commissioner, Swat and others (PLD 1990 Peshawar 51), which has also been approved by this Court in Civil Appeal No, 543 of 1990, has held the PATA Regulation to be violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, the Tribunal constituted under the said Regulation has ceased to exercise jurisdiction over the question of guilt or innocence of the appellant in this case. Consequently, the case is remanded to the Sessions Judge, Malakand, for trial in accordance with law.
' Since no appeal has been filed by the State against the acquittal of Hazrat Umar and GuI Faraz, therefore, they shall not be retried on the charge of the murder of Muhammad Akram.