CHAPTER III

COUNCILS OF ELDERS

8. Civil reference to Council to Elders.

(1) Where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood-feud or murder, or culpable homicide not -amounting to murder, or mischief or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequence anticipated, and if a suit is not pending in respect of the dispute, make an order in writing, stating the grounds of his being satisfied, referring the dispute to a Council of Elders, and requiring the Council come to a finding on the matters in dispute after making such inquiry may be necessary and after hearing the parties. The members of he Council of Elders shall in each case, be nominated and appointed by the Deputy Commissioner.

(2) The order of reference made under Sub-section (1) shall state he matter or matters on which the finding of the Council of Elders required.

(3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may -

Remand the case to the Council for a further finding; or
Refer the case to a second Council; or
Refer the parties to the "Civil Court; or
Pass a decree in accordance with the finding of the Council, or of not less Than three-fourth of the members thereof, on any matter stated in the reference; or
Declare that further proceedings under this section are not required.

NOTE

Decree not passed by the Deputy Commissioner in accordance 'with finding of Council of Elders. Held, direction (of Deputy Commissioner) to file suit in Court of competent jurisdiction to be without any lawful14 authority where the F.C.R. was repealed after the decision by Deputy Commissioner and the Commissioner, the case was remanded to the Court of Qazi, Bori-Sanjavi at Loralai, through Deputy Commissioner, Loralai for adjudication according to the Regulation of l97b.15

9. Effect of decree on finding of Council.

A decree passed under Section 8, Sub-section (3), clause (d), shall not give effect to any finding or part of a finding which, in the opinion of the Deputy Commissioner is contrary to good conscience or public policy, but shall – be a-final settlement of the case so far as the decree relates to any matter stated in the reference, although other matters therein stated may remain un disposed of; and have, to that extent and subject to the provisions of this Regulation with- respect to revision, the same effect as a decree of a Civil Court of ultimate resort, and be enforced by the Deputy Commissioner in the same manner as a decree of such a Court may be enforced.

10. Restriction on jurisdiction of Civil Courts.

No Civil Court shall take cognizance of any claim with respect to which the Deputy Commissioner has proceeded under Section 8, Sub-section (3), clause (a), clause (b) or clause (d).

11. Criminal references to Council of Elders.

Where, in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any several persons so accused, should be tried by a Court of any of the classes mentioned in Section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner may or if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council of Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person. The members of the Council of Elders shall, in each case, be nominated and appointed by the Deputy Commissioner.
Where a reference to a Council of Elders is made under Sub-section (1) and the members of the Council have been nominated, the names of the members so nominated shall, as soon as may be, be communicated to the accused person, and any- objection which he may then make to the nomination of any such member shall be recorded. The Deputy Commissioner shall consider every objection made by an accused person under this sub-section, and may, in his discretion, either accept or reject the objection, provided that, in the latter case, he shall record his reasons for so doing. The Deputy Commissioner shall, after disposing of any objection made by the accused person, appoint the members of the Council.

On receipt of the finding of the Council of Elders under this section, .the Deputy Commissioner may - remand the question to the Council for a further finding; or refer the question to a second Council; or
acquit; or discharge the accused person or persons, or any of them; or in accordance with the finding on any matter of fact of the Council, or of not less than three-fourths of the members thereof convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty:

Provided that a person discharged under clause (c) shall not be liable to be retried for any offence arising out of the same facts after the expiry of two years from the date of such discharge.

NOTE

Issuance of process by A.P.O./A.D.C. Waziristan Agency (Tribal Area) Jurisdiction of the High Court not extended to the Tribal Areas (FATA) constituting Waziristan Agency. However the provisions of Section 86-A of the Criminal Procedure Code, 1898, shall have to be complied with after the execution of the warrants and before the removal of petitioner (accused) to the Tribal areas for his production before the Court.16

12. Punishment on conviction on finding of Council.

Where the Deputy Commissioner convicts a person under Section 11, Sub-section (3), clause (d) he may pass upon him any sentence of fine.
Where the Deputy Commissioner so convicts a person of an offence mentioned in the second schedule, he may, whatever may be the punishment prescribed for the offence, sentence the person, in lieu of or in addition to fine, to be imprisoned for a term which may extend' to seven years, or, subject to the provisions, of Section 393 of the Code of Criminal Procedure, 1898, to be whipped or to be whipped and imprisoned for a term which may extend to five years, or to be transported for a term which may extend to seven years, and, where he so convicts a person of an offence punishable with transportation or with imprisonment for a term exceeding seven years, he may, subject to confirmation by the Commissioner, sentence the person to a term either of transportation or of imprisonment exceeding seven years but not exceeding fourteen years;
Provided first, that a sentence of whipping shall not be passed on any person so convicted of an offence under Sections 121, 121-A, 122, 123, 124-A, 125, 126, 127, 144, 150, 216, 216-A, 400, 401, 402,'494, or 495 of the Indian Penal Code:

Provided, secondly, that a sentence of transportation or imprisonment for an offence shall not be for a longer term than that (if any) prescribed for the offence: and Provided, thirdly, that a sentence of transportation shall not be passed for an offence which is not punishable with transportation or with imprisonment for a term which may extend to seven years or more.
17 [3) In cases of convictions under Section 302 or 396 of the Pakistan Penal Code, the immovable property of the accused shall be liable to forfeiture to the Government].

13. Manner of enforcing sentences.

Any sentence passed under Section 12 shall be executed in the manner provided for the execution of sentences passed by a Court of any of the classes mentioned in. Section 6of the Code of Criminal Procedure, 1898.
For the purposes of Sections 64 to 67 of the Indian Penal Code in reference to a sentence under Section 12 of this Regulation.

an offence punishable with death or transportation for life shall be deemed to be punishable with rigorous imprisonment for a term which may extend to ten years;

the imprisonment in default of payment of fine may be rigorous or simple at the discretion of the Deputy Commissioner.

14. Time for exercising power of reference to Council of Elders.

The powers conferred by Section 11 on the Commissioner and Deputy Commissioner, respectively, may be exercised by them, in cases committed to the Court of Session, at any time before the trial before that Court has commenced, and, in cases pending before any Court inferior to the Court of Session, at any time before an order of conviction or acquittal has been made.

15. Motion by Public Prosecutor in view to reference to Council of Elders.

In any trial before a Court of Session, the Public Prosecutor may, when instructed in writing in that behalf by the Commissioner or Deputy Commissioner, at any time before an order of conviction of acquittal has been made with respect to any accused person, withdraw from the prosecution of such person in order that the case may be referred to a Council of Elders.

The Sessions Judge shall thereupon stay proceedings with respect to such person, and the Deputy Commissioner shall refer the case to a Council of Elders.

16. Case of persons jointly accused of an offence.

The powers conferred by Section 11, as limited by Section 14, may be exercised against and the withdrawal of a prosecution under Section 15 may have reference to one or some only of two or more persons jointly accused of an offence.

17. Powers to set aside orders making or refusing to make references to Council of Elders.

The Deputy Commissioner may, if he thinks fit, at any time reconsider and set aside any order of the Deputy Commissioner under this Regulation –
(a) directing reference to a Council of Elders, or
(b) refusing to make such a reference.

18. Recommendation of Council of Elders.

Where a Council of Elders to which a reference has been made under this Regulation makes any recommendation to which effect might be given if it were a finding on a matter or question referred to the Council under this Regulation, the Deputy Commissioner may, if the recommendation effects a person mentioned in the order of reference and is relevant to the matter or question actually, referred, deal with the recommendation or any part of it as if it were a finding under Section 8 or Section 11:

Provided that no decree or sentence may be passed on any 'such recommendation as aforesaid against any person who has not had the /claim or charge fully explained to him and been given an opportunity of entering upon is defence in regard thereto.

Where the Deputy Commissioner deals with a recommendation under Sub-section (1), he may pass any such decree as is authorised by Section 8,or any such sentence as is authorised by Section 12, Sub-section (1), and the decree or sentence shall have the same effect and be enforced in the same manner as if it were a decree or -sentence passed under Section 8 or Section 12, Sub-section (1), as the case may be.

19. Record of Deputy Commissioner.

Where the Deputy Commissioner passes, under this Chapter a sentence of fine exceeding two hundred rupees, or of imprisonment for a term exceeding three months, or of transportation, he shall make a record of the facts of the case of the offence committed and of his reasons for passing the sentence.

The record shall be made by the Deputy Commissioner in English and in his own hand, unless for any sufficient reasons he is prevented from so making it, in which case he -shall record the reason of his inability and shall cause the record to be made from his dictation in open Court.

20. Attendance of parties and witnesses before Deputy Commissioner Council of Elders.

Where a reference is made to a Council of Elders under this Chapter, the deputy Commissioner may exercise all or any of the powers conferred by the Code of Civil Procedure and the Code of Criminal Procedure, 1898, respectively, as the case may be, for the purpose of compelling the attendance, before -himself or the Council of Elders, of the parties, and witnesses, or any of them, in any case and at any stage of the proceedings.

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