Citation Name: 2023 PCrLJ 65 PESHAWAR-HIGH-COURTBookmark this Case RIAZ MUHAMMAD vs State S

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Citation Name: 2023 PCrLJ 65 PESHAWAR-HIGH-COURTBookmark this Case RIAZ MUHAMMAD VS State S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement of accused---Scope---Accused was charged for committing murder of brother of the complainant by firing---Accused got recorded his confessional statement before the Assistant Commissioner, on the basis of which, accused was convicted and sentenced---Defence mainly argued that the conviction and sentence so awarded to the accused was illegal as, after the merger of FATA into province Khyber Pakhtunkhwa, the Assistant Commissioner/ADM was having no jurisdiction to try criminal cases thus, the impugned order being void was liable to be set-aside---Validity---Record showed that the impugned order was passed by the Assistant Commissioner by exercising powers as Additional District Magistrate--- Regulation 2(f) of the FATA Interim Governance Regulation (FIGR), 2018 recognized an Assistant Commissioner to be a Judge to adjudicate criminal matters in each tribal district and vested with the requisite powers under the Code of Criminal Procedure, 1898, to try offences---Clauses 3 & 4 of the Regln. 7 further conferred all the ordinary powers of a Magistrate of the First Class as specified in Schedule I and additional powers as specified in Part I of Sched. IV of the Cr.P.C. upon the Assistant Commissioner to pass any sentence of imprisonment or fine, or both, as provided by the Regulation---When exercising powers of a Deputy Commissioner under the FATA Interim Governance Regulation, 2018 (FIGR), an Assistant Commissioner shall be deemed, for the purpose of regulation, to be the District Magistrate and shall exercise all or any of the powers specified in the First Schedule of the Regulation---Procedure of the trial in criminal case, conviction and manner of enforcing sentences, had been provided in Reglns. 13, 16 & 17 respectively---As per provisions of Regln. 13 that upon commission of any cognizable offence, falling within the competence of Deputy Commissioner, the same shall be registered and after arrest of accused, he shall be produced before the Judge within 24 hours of his arrest, who shall refer the matter to the Council of Elders for its finding on facts but after holding necessary inquiry, hearing parties and witnesses---Council of elders shall submit its findings on the fact to the judge and latter shall record its findings on the legal issues, if any, and pass order accordingly---Said specific provision for hearing parties and their witnesses by the council of elders before recording its finding on facts, become more nuanced when viewed in the constitutional context---Admittedly, and undeniably, after the arrest of accused, the matter was not referred by the Assistant Commissioner/Judge to the Council of Elders for recording its finding on facts after inquiry and hearing parties and their witnesses---Judge could pass sentence under Regln. 16 only after satisfying the mandate of Regln. 13(3) and that could be done subject to submission of findings on facts by the Council of Elders---Hence, provisions of S. 16 were supplemental to S. 13(3) and could not be applied in isolation thereto---Sentence could be enforced under Regln. 17 in the cases where provisions of Regln. 16 were fulfilled---As the matter was not referred to the council of elders for recoding its findings on facts and non-compliance of mandatory provisions of Regln. 13 invalidated the impugned conviction and sentence by the Assistant Commissioner/ ADM---For that reason, the impugned conviction and sentence were legally unwarranted, and that fact brought the appeal of accused within the scope of Arts. 9, 10-A & 14 of the Constitution---Accordingly, the delay in filing the appeal is condoned and while treating the appeal within time allowed this appeal, set aside the impugned conviction and sentence awarded to the accused, passed by Assistant Commissioner/ADM and remanded his case for de novo trial.

Citation Name: 2023 PCrLJ 65 PESHAWAR-HIGH-COURTBookmark this Case RIAZ MUHAMMAD vs State S — 2023 PCrLJ 65 PESHAWAR-HIGH-COURT

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