MIAN MUHAMMAD AJMAL, J.---This appeal by leave is directed against the judgment of the Peshawar High Court, Peshawar, dated 18-3-1998 passed in Criminal Appeal No,65 of 1996, whereby conviction of the appellant on three counts for triple murder was upheld and the death sentence awarded to him as Qisas was altered to death as Ta'zir on each count and murder reference was answered in affirmative. His conviction and sentences under section 353, P.P.C. Were maintained and that regarding murderous assault were set aside.
2. Brief facts of the case are that the appellant was charged under section 302/34 P.P.C. For committing triple murder of Bakht Rawan, Habibur Rehman and Siraj Din alias Sakhi, under section 324/34 P.P.C. For causing injuries to Muhammad Islam and Beboor P:Ws and under section 353 P.P.C, for firing at Police to save his arrest. Learned Sessions Judge, Timergara vide his judgment, dated 7-2-1996 convicted the appellant under sections 302/324/34/353,. P.P.C. Under section 302/34, P.P.C., he was sentenced to death as Qisas on three counts. Under section 324/34, P.P.C, he was sentenced to 10 years' R.I. On each count. Under section 353, P.P.C., he was sentenced to one year R.I. And to pay a fine of Rs,20,000. The sentences were ordered to run consecutively. Benefit of section 382-B Cr.P.C. Was also extended to him. He challenged his conviction and sentences through Criminal Appeal No,65 of 1996 before the Peshawar High Court. A Division Bench of the Peshawar High Court vide its judgment impugned herein upheld the conviction of the appellant for the triple murder but altered his sentence of death as Qisas to death as Ta'zir on each count. The conviction and sentences under section 324/34, P.P.C. Were set aside and the conviction and sentences under section 353, P.P.C. Were maintained. Leave to appeal was granted to consider the following points:--
(i) Death penalty could not be imposed on the petitioner as on 15-12-1993 the date when the offence was committed, the defunct Regulation No,1 of 1975, was enforced and under section 12 of the said Regulation the maximum sentence awardable for the murder was imprisonment for life.
(ii) The two witnesses on whose deposition the prosecution has relied for proving the charge were not named as eye-witnesses in the F.I.R.
(iii) Bakht Zaman (P.W.2), the alleged eye-witness was examined after five days of the occurrence while Charri (P.W.4), an eye-witness at Whose behest the site plan was prepared has not been shown therein which made the prosecution case doubtful.
(iv) The unnatural and inconsistent conduct of the witnesses was highlighted so as to show that their testimony was not confidence-inspiring.
(v) The identification parade of the accused was not carried out through the eye-witnesses and as such the identity of the petitioner/accused could not be established.
3. Learned counsel for the appellant solely argued that on 15-2-1993 when the occurrence took place, Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, I of 1975 was in vogue and under its section 12 the Deputy Commissioner under section 302, P.P.C. could award the sentence of life imprisonment, and under section 11(c) of the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation II of 1994 notwithstanding the repeal of Regulation I of 1975, it would not affect any right, privilege, obligation or liability acquired, accrued or incurred under that law and under clause (e) of the said section, repeal of the former Regulation would not affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law, instrument, custom or usage had not been repealed or ceased to have effect, as the case may be. Learned Sessions Judge, Timergara who substituted the Deputy Commissioner could not impose death sentence in view of the aforesaid saving clauses (c) and (e) of section 11 of the Repealing Regulation. He referred to Article 12 of the Constitution of Islamic Republic of Pakistan and argued that the trial Court could not award greater punishment than the one prescribed by law for the offence at the time it was committed, hence the Court of Session who substituted the Tribunal under FATA could not award death sentence as it was excluded by law for the offence when it was committed. He placed reliance on Abdul Samad v.
Painda Muhammad (PLD 1997 Peshawar 35) and Shahzada Gul v. Additional Secretary, Home Government of N.-W.F.P., Peshawar and others (1999 SCMR 1028).
4. On the other hand, the learned Additional Advocate-General contended that Regulation I of 1975 was procedural in nature and under its section 12 where the Deputy Commissioner convicts a person under section 11, he may impose any sentence prescribed for that offence under the Pakistan Penal Code except the sentence of death. After repeal of Regulation I of 1975 the Courts were established which can exercise all powers, functions and duties conferred on Judicial Officers in N.-W.F.P. Under any law for the time being in force. The Sessions Judge/Zilla Qazi or Additional Sessions Judge/Izazi Zilla Qazi is a Court of competent jurisdiction and it can pass sentence prescribed by law. Reliance was placed on unreported judgment of Peshawar High Court in Criminal Appeal No,242 of 1997.
5. In reply to the arguments of the learned Additional Advocate-General, learned counsel for the appellant reiterated that Regulation I of 1975 was not only procedural but was substantial as well, as under section 12 of the Regulation, the Deputy Commissioner was empowered to convict and sentence a person to any penalty prescribed for the offence, except death sentence, therefore, sub stitutional part regarding imposition of sentence could not be given retrospective effect. He again referred to Article 12 of the Constitution and urged that the greater punishment after the repeal of Regulation I of 1975 could not be awarded by the Sessions Judge for an offence committed during the currency of the repealed Regulation. He submitted that only the procedural part of the Regulation could be given retrospective effect but substantial part thereof could not be given retrospective effect in view of the provisions of Article 12 of the Constitution.
6. ' For the appreciation of the proposition, whether after the repeal of Regulation I of 1975 vide Regulation II of 1994, the Court of Session could award the death sentence in an offence which took place on 15-2-1993, it would be appropriate to reproduce sections 11 and 12 of Regulation I of 1975 and section 11 of the repealing Regulation.
Section 11 of Regulation I of 1975: "11. Action upon the report of the Tribunal.--(1) the finding of the Tribunal on a question referred to it under section 5 shall be submitted to the Deputy Commissioner in the form of a report containing the reasons for such finding.
(2) Upon receipt of a report of the Tribunal the Deputy Commissioner may, if the report does not give a finding on the question referred to the Tribunal or any substantial part thereof, or if he is of opinion that there has been material irregularity, or that proceedings of the Tribunal have been so conducted as to occasion a miscarriage of justice, remand the question to the Tribunal or refer the question to a second Tribunal constituted in accordance with section 6.
(3) Where the Tribunal unanimously or by a majority of four-fifths reports a finding of guilty, the Deputy Commission may, if he does not proceed under subsection (2), either convict and pass sentence on, or acquit, the person or' persons so found guilty.
(4) Where the Tribunal unanimously or by a majority of four-fifths reports a finding of not guilty, the Deputy Commissioner shall, if he does not proceed under subsection (2), acquit the person or persons so found not guilty.
(5) Where the Tribunal reports a finding either of guilty or of not guilty by a majority or less than four-fifths, the Deputy Commissioner shall, if he does not proceed under subsection (2), acquit the accused person or persons.
(6) Where the Deputy Commissioner remands or refers under subsection (2) a question, he shall--
(a) if the Tribunal, on such remand or reference, unanimously or by a majority of not less than four- fifths reports a finding of guilty, convict and pass sentence on the accused; and
(b) in any other case, acquit the accused.
(7) The Deputy. Commissioner shall, before passing any order under this section,' give the accused an opportunity of being heard and shall record reasons for every such order.
(8) The order of the Deputy Commissioner under this section, either convicting or acquitting any accused, shall be announced in the presence of the accused and a copy thereof shall be furnished to the parties free of cost.
Section 12 of Regulation I of 1975: Punishment.--Where the Deputy Commissioner convicts a person under section 11, he may sentence the person to any penalty prescribed for that offence under the Pakistan Penal Code, 1860, except the sentence of death.
Section 11 of Regulation II of 1994: Repeal.---(1) The Provincially Administered Tribal Areas Criminal Law (Special Provisions)
Regulation, 1975 (N.-W.F.P. Regulation I of 1975) and the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (N.-W.F.P Regulation II of 1975), are hereby repealed, and shall be deemed to have been so repealed with effect from the twelfth day of February, 1994.
(2) Notwithstanding the repeal of laws under subsection (1), of this section or cessation of any law, instrument, custom or usage under section 4, the repeal or cessation, as the case may be, shall not--
(a) revive anything not in force or existing at the time of which the repeal or cessation takes effect;
(b) affect the previous operation of the law, instrument, custom or usage or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law, instrument, custom or usage;
(d) affect any -penalty, forfeiture or punishment incurred in respect of any offence committed against the law, instrument, custom or usage; or
(e) affect any investigation, legal proceedings or remedy in respect ofany such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law, instrument, custom or usage had not been repealed or ceased to have effect, as the case may be." It is manifest from the reading of sections 11 and 12 of Regulation I of 1975 that where the Deputy Commissioner convicts a person on the report of the Tribunal, either unanimous or by majority of four-fifth, he would sentence him to any penalty prescribed for the offence--except the sentence of death. It is necessary to examine the scheme of the Regulation which provides special provisions for trial of certain offences in Provincially Administered Tribal Areas of Chitral, Dir, Swat and Malakand Protected Area to meet special requirements of those areas. Its section 3 provides that notwithstanding anything contained in any other law for the time being in force, all offences falling under Part I of the Schedule would, with certain exceptions be tried by the Tribunal constituted under the Regulation and any of the offences falling under Part II of the Schedule would be tried by the Tribunal if the complainant and the accused agree to such a trial. It further provides that except as otherwise provided in the Regulation, the provisions of Evidence Act and Criminal Procedure Code would not apply to any proceedings under the Regulation. Section 4 empowered the Deputy Commissioner to exercise exclusive jurisdiction to take 'cognizance of an offence triable under the Regulation committed with his territorial jurisdiction in respect of offences falling under Part I of the Schedule, or upon receiving a complaint of facts constituting such offence, or on receipt of report in writing of such facts by a Police Officer and in respect of an offence falling under Part II of the Schedule, on receipt of written request of the complainant and the accused provided that the cognizance of an offence under section 14 would not be taken except upon a complaint made by the husband of the woman or some persons who had care of such woman.
Subsection (2) of section 4 provides that when the Deputy Commissioner would take cognizance of an offence upon the information received from any person other than a police officer or upon his own knowledge or suspicion, he would before constituting a Tribunal under section 5, inform the accused that he is entitled to have the case decided by any Deputy Commissioner and on his/their objection, the matter would be reported to the Commissioner who would transfer the case to another Deputy Commissioner. When a person was accused of more than one offences and any such offence was not triable under the Regulation, the Deputy Commissioner would only proceed with the offence triable under the Regulation. Subject to section 32 where any Magistrate, Court or other authority trying any such offence would feel that such offence is triable under the Regulation, such Magistrate, Court or authority would stay the proceedings therein and refer it to the Deputy Commissioner concerned for proceedings in accordance with the Regulation. Section 5 provides that the Deputy Commissioner taking cognizance of an offence triable under the Regulation would constitute a Tribunal as per section 6 of the Regulation and refer the question of guilt or innocence of the person to such Tribunal. According to section 6, the Tribunal shall consist of a Government official, not below the rank of Tehsildar, who would be its President and 4 members would be appointed by the Deputy Commissioner, who while appointing the members would have regard to the integrity, education, social status and representative character of such person, which would be done after giving the parties concerned an opportunity of being heard and considering their objections, if any, to the appointment of such persons. Section 7 envisages that where the Tribunal declines or fails to give a finding or misconducts itself, or where by reason of death or illness or absence from the country of any member, the Tribunal in the opinion of the Deputy Commissioner is unable to perform its functions, he would constitute another Tribunal and refer the question to it or if any member of the Tribunal dies, refuses to act, becomes incapacitated from acting or fails to attend any two meetings without sufficient cause, the President would refer the matter to the Deputy Commissioner who would appoint another member in his place. According to section 8, the Tribunal would not conduct any proceedings unless the President and at least three members are present. Section 9 provides the procedure that the Tribunal would 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 it. It further provides 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 defeating the ends of justice. It further provides that sections 121 to 126 of the Evidence Act would apply to any proceedings before it. The Tribunal would give opportunity to the parties to cross-examine the witnesses deposing against them and it may administer oath to a witness in such form or manner, not inconsistent with the religion of the witness, as it deems fit. Section 10 provides that the Tribunal would have the same powers as are vested in a Court under the Code of Criminal Procedure, 1898 in respect of enforcing the attendance of any witness or the production of any document.
7. The above resume of the Regulation would show that the trial under the repealed Regulation used to be held by the Tribunal (Jirga) and after the trial the Tribunal (Jirga) had to record its finding on the question referred to it and submit its report to the Deputy Commissioner containing reasons for such findings. The Deputy Commissioner, on the receipt of the report of the Tribunal, if it was unanimous or by majority of four-fifths finding the person guilty, would either convict and pass sentence or acquit the person so found not guilty and where the Tribunal reports a finding either of guilty or of not guilty by a majority of less than four-fifths, the Deputy Commissioner would, if he does not remand the case back to the Tribunal, acquit the accused person or persons so found not guilty and where the Deputy Commissioner remands a question, he would, if the Tribunal on such remand or reference, unanimously or by a majority of not less than four-fifths reports a finding of guilty, convict and pass sentence on the accused and in other case, acquit him and before recording any order the Deputy Commissioner has to afford an opportunity of hearing to the accused and would record the reasons for it. The rationale of the Regulation seems to be that the Deputy Commissioner, who would not try the accused himself, was not empowered to impose death sentence on the accused as he had to rely upon the report of the Tribunal (Jirga) constituted by him, who after trial of the accused would record its finding and send the same to the Deputy Commissioner as a report whereupon he would either convict or acquit the accused as enunciated in section 11 of the Regulation. After repeal of the Regulation by Regulation II of 1994, the Courts of competent jurisdiction have been established which under section 5 of the latter Regulation,are empowered to implement laws and Regulations and in relation to the proceedings and conducting the criminal or civil case, they would exercise all powers, functions and duties conferred, assigned or imposed on Judicial Officers in the N.-W.F.P. Under any law for the time being in force and would act, perform and discharge such powers by the officers so designated in PATA as specified in column 3 of Schedule II. It is pertinent to note here that after the enforcement of Regulation II of 1994 the Courts of competent jurisdiction try and adjudicate the cases, both civil and criminal. With the assistance of Muwavineen-e-Qazi, wherever required. The repealed Regulation was procedural in nature as it provided the provisions for trial of certain offences in PATA. The change of forum from Tribunal/Deputy Commissioner to the Court of. Session, mode of trial and the manner of taking of evidence etc. Are matter of procedure, which have retrospective application. In case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) similar point was dealt with by this Court, wherein it was held:-- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedures, Grawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive applications will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retrospectively." In this context, reference may also be made to 'Federation of Pakistan v. Muhammad Siddique (PLD 1981 SC 249), Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951), Gul Hassan v. Allied Bank of Pakistan (1996 SCMR 237) and Muhammad Afzal v. Karachi Electric Supply Corporation (1999 SCMR 92).
8. As far section 12 of the repealed Regulation is concerned, it only provided that the Deputy Commissioner while recording conviction under section 11 could sentence' the accused to any penalty prescribed for the offence under P.P.C., except the sentence of death, thus the bar of imposition of death sentence was applicable to the Deputy Commissioner under PATA Regulation.
It has already been observed above that since the Deputy Commissioner while convicting and sentencing the accused had to depend on the findings/report of the Tribunal, and he himself could not try the accused, therefore, he had not been empowered to impose death sentence. Clauses (c) and (e) of subsection (2) of section 11 of the Regulation of 1994 are saving clauses whereby any right, privilege accrued or acquired or legal proceedings or remedy in respect of such right or privilege would not be affected by the repeal of Regulation I of 1975. None of the provision of this subsection is applicable to the facts of the present case. The occurrence took place on 15-2-1993 and the charge was framed against the appellant on 25-4-1995 by Sessions Judge/Zilla Qazi who under section 5(2) of Regulation II of 1994 was empowered to exercise all powers, functions assigned to Judicial Officers in N.-W.F.P. Under any law for the time being in force and no restrictions on his powers have been imposed like the one imposed in section 12 of the repealed Regulation on the powers of the Deputy Commissioner. Clause (b) of Article 12 of the Constitution provides that no law would authorise the punishment of a person for an offence by a penalty greater than, or of a kind different from, prescribed by law for that offence at the time the offence was committed. It is obvious from the reading of the said Article that the accused of an offence cannot be awarded greater punishment or different penalty from the penalty or punishment prescribed for that offence when it was committed. Undoubtedly on 15-2-1993, when the offence was committed the punishment prescribed under section 302, P.P.C. For Qatl-i-Amd was (a) death as Qisas (b) death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, and (c) imprisonment of either description for a term up to twenty-five years, where punishment of Qisas was not applicable. But in order to meet special requirements of Provincially Administered Tribal Areas of Chitral, Dir, Swat and Malakand Protected Area, Special Provisions for trial of certain offences were made for those areas where trial was conducted by Tribunal constituted by the Deputy Commissioner, and on its report or findings the Deputy Commissioner would convict and sentence the accused to any penalty prescribed for the offence except sentence of death. Though the punishment of death was provided in law for Qatl-i-Amd for the offender and it could be imposed by any competent Court but in PATA the Deputy Commissioner in Jirga trials was barred to pass capital punishment. After the change of forum from Tribunal/Deputy Commissioner to that of the Courts of competent jurisdiction, the punishment under section 302, P.P.0 remained the same, such Courts upon whom no restrictions have been imposed, can pass any sentence for the offence prescribed by law which also includes death sentence for the offence of Qatl-i-Amd. In this case the trial was conducted by the learned Sessions Judge/Zilla Qazi who was competent to award capital punishment to the appellant, as the prosecution had proved its case against him beyond any shadow of doubt.
9. In view of the above discussion, we are of the opinion that the punishment awarded to the appellant by the trial Court under clause (a) of section 302, P.P.C. And altered by the High Court in appeal to clause (b) of section 302, P.P.C. Confirming his death sentence, warrants no interference.
Since no other point was argued, therefore, finding no merit in this appeal, it is dismissed.