' ABDUR REHMAN KHAN, J.---This criminal matter relates to District Swat which is one of the districis forming part of Provincially Administered Tribal Areas (PATA).
2. As ,case under section 302/307/148/149, P.P.C. Was registered against the appellants at Police Station Matta on 8-11-1988 through F.I.R. No,4140. The procedure provided under PATA Criminal Law (Special Provisions) Regulation, No,1 of 1975 (hereinafter to be referred to as the Defunct Regulation) regulated the trial of the case. Section 3 of the Defunct Regulation reads as under:- "3. Trial of offences.---(1) Notwithstanding anything contained in any other law for the time being in force, all offences punishable under the Pakistan Penal Code (Act XLV of 1860) except those mentioned in Chapters VI, VII, VIIIa, IX, IX-A, X-b, XIc and XII, therefore, shall be tried by a Jirga under and in accordance with the provisions of this Regulation.
(2) Except as otherwise provided in this Regulation, the provisions of Evidence Act, 1872 (Act I of 1872) and the Code of Criminal Procedure, 1898 (Act V of 1898) shall not apply to any proceeding under this Regulation."
' The learned Deputy Commissioner, on 16-9-1989, referred the case for trial to the Jirga as envisaged under, the Defunct Regulation. The Jirga for the first time submitted its unanimous award on 27-1-1991 wherein all the accused were held guilty of the offences with which they were charged. The learned AC/SDM, empowered as Deputy Commissioner, while acting on this award, convicted the appellants (accused) and awarded them 25 years' imprisonment under section 302, P.P.C. And 10 years' imprisonment under section 307, P.P.C., but appellant Said Muhammad was found to be an aged man, therefore, he was imprisoned for 20 years and 5 years under sections 302 and 307 respectively. In appeal, the learned Additional Commissioner, by his order, dated 8-10- 1991, upheld the conviction and sentence passed by the Deputy Commissioner. But, in revision, the Home Secretary, by judgment, dated 10-2-1992, remanded the case to the Deputy Commissioner with the direction to reappraise the evidence brought on record, to study the finding of the Jirga and thereafter, pass a fresh order. The Deputy Commissioner, through judgment, dated 15-3-1992, again accepted the award of the Jirga, held the accused guilty under sections 302 and 307, P.P.C., and, with the exception of Said Muhammad, sentenced each one of them to simple imprisonment for 25 years under section 302, P.P.C. And 10 years under section 307, P.P.C. But Said Muhammad accused because of his old age, was dealt with leniently and sentenced to 20 years under sections 302 and 10 years under section 307, P.P.C. The learned Deputy Commissioner also extended the benefit of section 382-B, Cr.P.C. To the accused. The Appellate Court confirmed the conviction and sentence, but withdrew the benefit given under section 382-B, as it was held that this concession could not be given because the amendment by which this section was added to the Code of Criminal Procedure had not been extended to PATA. The revision petition was dismissed by the learned Additional Home Secretary on 5-4-1993.
3. The appellant then impugned the correctness of the judgment given against them by the PATA Courts in the writ petitions in the High Court, but it appears that the learned counsel appearing for' the appellants only restricted his submission to the extension of the benefit under section 382-B, Cr.P.C. To the accused and did not agitate that the proceedings conducted under the PATA Regulation were violative of the Constitution in view of the decision reported as Muhammad Irshad and others v. Assistant Commissioner, Swat and others (PLD 1990 Peshawar 51). This is clear from the following observation in the impugned judgment of the High Court:- "The learned counsel lukewarm in asserting that PATA Regulation-I of 1975 has been declared ultra vires, therefore, the conviction and sentence awarded to the petitioners cannot be sustained and are without lawful authority and of no legal effect."
' However, the benefit under section 382-B, Cr.P.C. Was refused as it was held that neither the Code of Criminal Procedure applied to the proceedings before the forums constituted under the Defunct Regulation, nor section 382-B had been extended to the areas where the Defunct Regulation operated. Consequently, the writ petition was dismissed by order, dated 29-8-1993. This order of the High Court was challenged in this Court through Jail Petition No,261 of 1993, which was dismissed by order, dated 13-7-1994 with these observations--- "The main contention of the petitioners before the High Court was that they were entitled to the benefit of section 382-B of the Cr.P.C. Which was not acceded to on the ground that the provisions of Cr.P.C. Were not applicable to the proceedings under Regulation-I of 1975. After perusing the record I find no legal infirmity or jurisdictional error justifying interference in the impugned order by this Court. The petition, thus, merits dismissal."
' A review petition was filed against the said order of this Court, which was admitted to full hearing under these observations:-- "It seems to me that the attention of my learned brothers was not called to this Court's judgment in Civil Appeal No,543 of 1990 and Civil Appeal No,544 of 1990 etc., decided on 12-2-1994 and the judgment of a Full Bench of the Peshawar High Court, dated 24-2-1990 of which my learned brother Fazal Ilahi Khan, J. Was a member. The Peshawar High Court had held that Regulation No,1 of 1975 was violative of Article 25 of the Constitution and was for that reason void. This Court by its judgment, dated 12-2-1994 affirmed that view and dismissed the appeals of the Government of N.- W.F.P. And the State. That means that the petitioners were tried under Regulation No,1 of 1975 after the provisions thereof had been declared void."
4. The learned counsel representing the appellants at the very outset submitted that he would press this appeal only to the extent of the benefit accruing under section 382-B, Cr.P.C. As, according to him, in view of the law laid down in PLD 1990 Peshawar 51 and approved by this Court by the judgment reported as PLD 1995 SC 281, Regulation No,I (Defunct Regulation) having been declared violative of the Constitution, section 382-B, Cr.P.C. Would be available for the advantage of the appellants. This argument has no force. Firstly, because this point was not argued before the original, appellate or revisional forum constituted under the Defunct Regulation, therefore, he cannot be legally permitted to raise such an objection for the first time at such a late stage.
Secondly, it is an admitted position that the amendment in the Code of Criminal Procedure by which section 382-B was added had not been made applicable to PATA as envisaged by Article 247(3) of the Constitution. Thirdly, in this Court's judgment reported as PLD 1995 SC 281 delivered on 12-2-1994 while affirming the judgment of the Peshawar High Court (PLD 1990 Peshawar 51) it was declared that "it may, however, be added that this judgment will not affect the cases both criminal and civil which have since been disposed of by the Jirga constituted under the Regulation". It may be noted that the Jirga in this case had submitted its award on 27-1-1991 and even the revisional Court which is the final Court in the hierarchy under the Defunct Regulation had given decision in this case on 10-2-1992, and therefore, this case has been concluded finally before the date the decision by this Court was given and so this was a past and closed transaction. Lastly, the operation of the High Court judgment (PLD 1990 Peshawar 51) which was decided on 24-2-1990 was suspended by this Court on 12-3-1990 and the PATA (Nifaze-Shariah) Regulation, 1994 known as N.-W.F.P. Regulation No,II of 1994 was notified on 14-11-1994 and by section 11 of the said Regulation the Defunct Regulation was repealed and shall be deemed to have been so repealed with effect from 12th day of February, 1994, which is the date on which this Court gave its judgment, section 11(d) of Regulation II of 1994 says that the repeal of Regulation I of the 1975 and Regulation No,II of 1975 shall not "affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law, instrument, custom or usage".
' We, therefore, find no merit in this appeal and accordingly dismiss it but with no order as to costs.