The North-west Frontier Province Criminal Law (special Provisions) Act, 1977


THE NORTH-WEST FRONTIER PROVINCE CRIMINAL LAW (SPECIAL PROVISIONS) ACT, 1977.
N.-W. F. P. ACT NO. VII OF 1977.
Dated Peshawar, the 23rd June, 1977.
(First published after having received the assent of the Governor of the North-West Frontier Province, in the Gazette of North- West Frontier Province (Extra-ordinary), dated the 23rd June, 1977).
AN
ACT
to make special provisions for trial of offences in Kohistan district.


Preamble

            WHEREAS it is expedient to make special provisions for trial of certain offences in Kohistan district in the manner hereinafter appearing;

It is hereby enacted as follows.—


Short title, extent and commencement.

1-         (1) This Act may be called the North- West Frontier Province and Criminal Law (Special Provisions) Act, 1977.

 (2) It extends to Kohistan district except the Tribal Area included therein .
(3) It shall come into force at once.
(4) Government may. by notification in the official Gazette, direct that this Act shall on such date as may be specified in the notification cease to be in force and, upon its so ceasing to be in force, shall be deemed to have been repealed.


Definitions

2.         (1) In this Act, unless the context otherwise requires. —

 (a)    "Commissioner" means the Commissioner, Hazara Division, or an officer acting for the time being as such, and includes any other officer who is specially empowered by Government to exercise the powers or perform the functions of a Commissioner under this Act;
(b)     "Deputy Commissioner" includes any officer authorised by Government to exercise or perform any powers or function of a Deputy Commissioner under this Act;

 

            (c)     "Government" means the Government of the North-West Frontier Province;
            (d)    "party " means the accused and the person or persons primarily interested in the prosecution of the case, including the prosecutor, if any;
            (e)     "Jirga" means a Jirga constituted under section 6.
(2) Words and expressions used in this Act but not herein defined have the meanings respectively assigned to them in the Pakistan Penal Code (XLV of! 860), and the Code of Criminal Procedure, 1898 (V of 1898).


3.         (1) Notwithstanding anything contained in any other law for the time being in force, all offences punishable under the Pakistan Penal Code (XLV of 1860) except those mentioned in Chapters VI, VII, IX IX-A and XII there of, shall be tried by a Jirga constituted under, and in accordance with the provisions of, this Act.

Trial of offences

(2) Except as otherwise provided in this Act, the provisions of the Evidence Act, 1872 (I of 1872), and the Code of Criminal Procedure 1898 (V of 1898), shall not apply to any proceedings under this Act.


4.         (1) The Deputy Commissioner shall have exclusive jurisdiction to take cognizance of an offence triable under this Act committed within Kohistan district: and such cognizance may be taken by him—

Cognizance of offences

            (a)     upon receiving a complaint of facts which constitute such offence; or
            (b)    upon a report in writing of such facts made by a police
            (c)     upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed:
Provided that cognizance of an offence under section 14 shall not be taken except upon a complaint made by the husband of the woman or in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed.
(2) When the Deputy Commissioner takes cognizance of an offence under clause (c) of sub-section (1), he shall, before constituting a Jirga under sections, inform the accused that he is entitled to have the case decided by another Deputy Commissioner, and if the accused, or any of the accused, if there be more than one, objects to the case being decided by the Deputy Commissioner who has so taken cognizance of the offence the matter shall be reported to the Commissioner, who shall transfer the case to another Deputy Commissioner and the Deputy Commissioner whom the case is so transferred shall proceed in the manner provided in section 5.

 

(3) Where a person is accused of more offences than one and any such offence is not an offence trible under this Act, the Deputy Commissioner shall proceed in accordance with the provisions of this Act only in respect of the offence or offences so triable.
(4) Subject to the provisions of section 33, where it appears to any Magistrate, Court or other authority enquiring into or trying any offence that such offence is an offence triable under this Act, such Magistrate, Court or authority shall stay further proceedings in respect of such offence and refer it to the Deputy Commissioner for proceeding in accordance with the provisions of this Act.


Question f guilt or innocence to be referred to jirga

5.         The Deputy Commissioner taking cognizance of an offence triable under this Act shall constitute a Jirga in accordance with section 6 and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such Jirga.

Constitution of jirga

6.         (1) A Jirga constituted for the purpose of section 5 shall consist of a Government official, not below the rank of Tehsildar or Naib-Tehsildar exercising the powers of Tehsildar, who shall be its President, and four other members, all to be appointed by the Deputy Commissioner.

(2) In appointing a person as a member, other than the President, the Deputy Commissioner shall have regard to the integrity education social status and representative character of such person.
(3) No person shall be appointed as a member of the Jirga, other than the President, except after giving the parties concerned an opportunity of being heard and considering objections if any, to the appointment of such person.


Reference of question to a new jirga in certain cases

7.         (1) Where a Jirga deplanes or fails to give a finding on a question a referred to it under section 5 or misconducts itself, or where, by reason of death or illness or absence from the country of any member or for any other sufficient cause, the Jirga is, in the opinion of the Deputy Commissioner, unable to perform its functions, the Deputy Commissioner shall, unless he proceeds in accordance with the provisions of sub-section (2), by order in writing, stating the reasons therefor, constitute another Jirga in accordance with section 6 and refer the question to the Jirga so constituted.

(2) If any member of the Jirga dies, refuses Lo act, becomes incapacitated from acting, or fails to attend any two meetings of the Jirga without sufficient cause to the satisfaction of the President of the Jirga, the President shall refer the matter to the Deputy Commissioner, who shall, as soon as may be appoint another member in place of the defaulting member in accordance with the provisions of sub-sections (2) and (3)


Quorum

8.         The Jirga shall not conduct any proceedings unless the President and at least two Other members are present.

Procedure before the jirga

9.         (1) For the purpose of coming to a finding on a question referred to a, the Jirga 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 on behalf of the accused or as may be called for by the Jirga:

 

Provided that the Jirga 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 (I of 1872), shall apply to any proceedings before a Jirga as they apply to proceeding before a Judge or a Magistrate.
(2) The Jirga shall give the parties an opportunity of cross- examining the witnesses deposing against them..
(3) The Jirga may administer oath to a witness in such form or manner, not inconsistent with the religion of the witness, as it deems fit.


10.       For the purpose of the performance of its functions under this Act, the Jirga shall have the same powers as are vested in a Court under the Code of Criminal Procedure, 1898 (V of 1898), in respect of enforcing the attendance of any witness or the production of any document or other thing.

Jirga to have certain powers of Court

11.       (1) The finding of the Jirga 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.

Action upon the report of Jirga

 (2) Upon receipt of a report of the Jirga, the Deputy Commissioner may, if the report does not give a finding on the question referred to the jirga or any substantial part thereof, or if he is of opinion that there has been material irregularity, or that the proceedings of the Jirga have been so conducted as to occasion a miscarriage of justice, remand the question to the Jirga or refer the question to a second Jirga constituted in accordance with section 6.
(3) Where the Jirga unanimously or by a majority of three-fifths reports a finding of guilty, the Deputy Commissioner may, if he does not proceed under sub-section (2), either convict and pass sentence on, or acquit, the person or persons so fund guilty.
(4) Where the Jirga unanimously or by a majority of three-fifths reports a finding of not guilty, the Deputy Commissioner shall, if he does not proceed under sub-section (2), acquit the person or persons so fund not guilty.
(5) Where the Jirga reports a finding either of guilty or of not guilty by less than three-fifths of its members, the Deputy Commissioner shall, if he does not proceed under sub-section (2), acquit the accused person or persons.
(6) Where the Deputy Commissioner remands or refers a Question under sub-section (2), he shall—
            (a)     if the Jirga, on such remand or reference, unanimously or by a majority of not less than three-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.


Punishment

12.       (1) 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 XLV of 1 860)except the sentence of death :

Provided that an offence punishable under section 303, of the said Code shall be punishable with imprisonment for life and fine.
(2) Where a person is convicted of an offence under section 302 of section 303 of the Pakistan Penal Code (XLV of I860), he shall not, for the period of five years following his release from such imprisonment, reside or remain within a radius of fifteen miles of the village of the complainant.
(3) Whoever contravenes the provisions of sub-section (2) shall be punishable with imprisonment for a term not exceeding one-third of the term of imprisonment awarded under sub-section (1). and, if he was punished under that section with fine also, with fine not exceeding one-third of that fine.


Compensation

13.       (1) Where the Deputy Commissioner passes any sentence of for an offence, he may, at the time of passing the sentence, order the whole or any part of the fine recovered to be applied in payment of for any loss or injury, whether of person or of property, caused to any person by the offender.

(2) Where a person has received any such compensation as a full discharge of the civil liability of the accused to such person on account of the loss or injury mentioned in sub-section (I), no civil court or any authority performing the functions of a civil court shall take cognizance of a claim to compensation based on such loss or injury.
(3) Where a person entitled to receive compensation under subsection (1) dies before receiving it, the amount of the compensation may be paid to the heirs of such, person to be determined by the Deputy Commissioner in accordance with the personal law of the deceased.


Cognizance of offences

15.       (1.) An offence triable under this Act shall be cognizable or mm-cognizable according as the same is cognizable or non-cognizable under the Code of Criminal Procedure. 1898 (V of 1898).

(2) Any private person may arrest or cause to be arrested any person who is reasonably suspected of being concerned in any offence trible under this Act, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of


1.   Section 14 omitted by N.W.F.P. Act No. II of 1985, s read with schedule

 

having been so concerned and, without unnecessary delay, make over or cause to be made over the person so arrested to a police officer or, in the absence of a police officer, take such person so arrested or cause him to be taken in custody to the nearest police station.


16.       Investigation in a cognizable case shall be completed by the officer-in-charge of a police station or any police officer entrusted with such investigation and the report thereof alongwith the accused, if under custody, shall be forwarded to the Deputy Commissioner within a period of fifteen days of the making of the first information report:

Time limit for investigation in cognizable offences

Provided that the said period may, for sufficient cause, be extended by the Deputy Commissioner for a further period not exceeding ten days.


17.       (1) An offence triable under this Act shall be bailable or non-bailable according as the same i-s bailable or non-bailable under the Code of Criminal Procedure., 1898 (V of 1898), and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code.

Bail

 (2) The President of Jirga may in regard to a case referred to the Jirga for decision under section 5, exercise the powers of the Deputy Commissioner under this section.


18.       (1) Where the Deputy Commissioner—
             (a)    is satisfied that any person within the area to which this Act is applicable has either a blood feud, or occasioned cause of quarrel likely to lead to blood-shed; or

Security for keeping the peace

            (b)    is of opinion that it is necessary for the purpose of preventing murder, or culpable homicide not amounting to murder, to require a person within the said area to execute a bond under this section for keeping the peace.
the Deputy Commissioner may order the person to execute a bond with or without sureties (not exceeding two in number), for his good behaviour or for keeping the peace, as the case may be, during such period, not exceeding three years, as the Deputy Commissioner may fix.
(2) The Deputy Commissioner may make an order under subsection (1).—-
            (a)     on the recommendation of a Jirga; or
            (b)    after enquiry as provided in section 20.
(3) Pending completion of an enquiry for the purposes of subsection (2). the Deputy Commissioner may, if he considers that immediate measures are necessary for preventing any offence referred to in sub-section (1), direct a person in respect of whom the enquiry is to be held, to execute abend: with or without sureties (not exceeding two in number), for keeping the peace or maintaining good behaviour for a period not exceeding one month, and detain him in custody till such bond is executed.

 

(4) Where a person has been convicted in accordance with the finding of Jirga of an offence punishable under section 302, section 304, section 307 or section 308 of the Pakistan Penal Code (XLV of 1860), the Deputy Commissioner, at the time of passing the sentence, or the Commissioner, at the time of deciding the appeal, may make an order under subsection (1) with respect to that person.
(5) Where the Deputy Commissioner makes an order under subsection (1) on the recommendation of a Jirga, he shall record his reasons for acting on the recommendation.
(6) Where the Commissioner or the Deputy Commissioner is of opinion that sufficient grounds exist for making an order under sub-section (1), he may, either in lieu of or in addition to, such order, by order in writing, direct that the person concerned shall notify his residence and any change of residence in the manner prescribed by section 565 of the Code of Criminal Procedure, 1898 (V of 1898), during such term, not exceeding three years, as may be specified in the order.


Power of demanding security from male adult members of families

19.       Where a blood-feud or other cause of quarrel likely to lead to blood-shed exists or, in the opinion of the Deputy Commissioner, is likely to arise between two families or factions, the Deputy Commissioner may, on the recommendation of a Jirga or after enquiry as provided in section 20, order all or any of the male adult members of both the families or factions or either family or faction to execute a bond, with or without sureties, for their good behaviour or for keeping the peace, as the case may be, during such period, not exceeding three years, as he may fix.

Procedure for enquiry

20.       (1) An enquiry for the purposes of section 18 or section 19 shall be conducted in the presence of the person or persons required to furnish a bond and shall provide an adequate opportunity to such person or persons—

(a)     of showing cause why a bond should not be required;
(b)     of corss examining any witnesses not called for by himself or themselves who may testify to the necessity or otherwise for the execution of a bond;
(c)     of having his or their witnesses examined:
Provided that the Deputy Commissioner may, in his discretion, refuse to hear any evidence which he fells is being tendered for the purposes of exation or delay or for defeating the ends of justice:
Provided further that the provisions of sections 121 to 126 of the Evidence Act, 1872 (I of 1872), shall apply to proceedings under this section as they apply to proceedings before a judge or a Magistrate.
(2) The Deputy Commissioner shall record his order under this section with the reasons for making it.


Breach of Bond

21.       (1) A bond executed under section 18 shall be liable to be forfeited, if the person bound thereby to be of good behaviour or to keep the peace, as the case maybe, commits or attempts to commit or abets the commission of, any offence punishable under Chapter XVI of the Pakistan Penal Code (XIV of 1860).

 

(2) A bond executed under section 19 shall be liable to be forfeited, if the person bound thereby to be of good behaviour or to keep the peace, as the case may be, commits or attempts to commit, or abets the commission of, any offence punishable with imprisonment in respect of any member of the opposite family or faction to which the bond related.
(3) If, while a bond executed under section 19 is in force, the life of any member of either family or faction is unlawfully taken or attempted, the Deputy Commissioner, may declare the bond of all or any of the members of the other family or faction alongwith their sureties (if any) to be forfeited, unless it is shown to his satisfaction that the homicide or attempt was not committed by, or in consequence of the abetment of, any member of that family or faction.


22.       (1) Where a person ordered to give security under section 18 or section 19 (does not give security on or before the date on which the period for which the security is to be given commences, he shall be committed to prison, or, if he is already in prison, be detained in prison until that period expires, or until within that period he furnishes the required security.

Imprisonment in default of security

(2) Imprisonment for failure to give security under section 18 or section 19 may be rigorous or simple, as the officer requiring the security directs in each case.


23.       (1) Where from the circumstances of any case, there appears to be good reason to believe that the inhabitants of any village, or part of a village, of any of them have—

Collective fine

            (a)     connived at, or in any way abetted the commission of, a serious offence against person or property ; or
            (b)    failed to render all assistance in their power to discover the offenders or to effect their arrest; or
            (c)     connived at the escape of, or harboured, any offender or person suspected of having taken part in the commission of a serious offence against person or property ; or
            (d)    continued to suppress material evidence of the commission of a serious against person or property,
the Deputy Commissioner may, with the previous sanction of Government, impose any reasonable fine on the male adult inhabitants of such village or part of a village, or any of them as a whole, as the case may be, after holding a summary enquiry and affording them an opportunity of showing case against the proposed action.
(2) The Deputy Commissioner, after such enquiry as he may deem necessary, shall apportion the fine imposed under sub-section (1) among the inhabitants of the village or part of the village who are liable collectively to pay it and such apportionment shall be made according to his judgment of the respective means of such inhabitants.
(3) A fine imposed under this section shall, in default of payment, be recoverable as if it were an arrear of land-revenue due from the inhabitants of the village or part thereof, upon whom the fine is imposed.

 

Explanation.—In this section, "serious offence" means any offence punishable with death, or with imprisonment for life or imprisonment for a term which may extend to two years or more.


Appeal

24.       (1) Any party aggrieved by any decision given, sentence passed or order made, by the Deputy Commissioner under this Act may, within thirty days of such decision, sentence or order, prefer an appeal to the Commissioner.

Explanation.—In computing the period of thirty days mentioned in this sub-section the day on which the decision, sentence or order sought to be appealed against was given, passed or made, and the time requisite for obtaining a copy thereof, shall be excluded.
(2) The Commissioner shall not confirm, modify, alter or set aside any decision, sentence or order appealed against except after giving the parties an opportunity of being heard.
(3) The Commissioner may in deciding an appeal under sub-section (1), exercise all or any of the powers conferred on an appellate court by the Code of Criminal Procedure, 1898 (V of 1898), and may also enhance any sentence:
Provided that no sentence shall be passed by the Commissioner in such appeal which the Deputy Commissioner could not have passed under this Act.
(4) The decision of the Commissioner on an appeal under this section shall be final.


Revision

25.       (1) Government may, at any stage, call for and examine the record of any proceedings pending before, or disposed of by, a Commissioner, Deputy Commissioner or Jirga for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, sentence or order given, passed or made or as to the regularity of any such proceedings and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record:

Provided that nothing herein contained shall be deemed to authorise Government to vary or set aside a finding of a Jirga on a question of facts where such finding has been accepted by the Deputy Commissioner unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice.
(2) Government may, after examining any record called for under sub-section (1), and giving the parties an opportunity of being heard, pass such orders as it may think fit:
Provided that no sentence shall be passed by Government in the exercise of its powers under this sub-section which the Deputy Commissioner could not have passed under this Act.


26.       Where a sentence of fine passed under this Act does not provide for imprisonment in default of payment of the fine, the amount of the fine shall be recoverable as an arrear of land revenue, and any other sentence, including a sentence of imprisonment in default of payment of fine, shall be executed in the manner provided for the execution of such sentence passed by a Court under the Code of Criminal Procedure, 1898 (V of 1898).

Execution of sentence

27.       Government shall have the same powers of suspension, remission and commutation in respect of sentences passed under this Act as it has under sections 401 and 402 of the Code of Criminal Procedure, 1898 (V of 1898), in respect of sentences passed under that Code.

Suspension remission, etc, of sentences

28.       In proceedings under this Act before the Jirga, the Deputy Commissioner, the Commissioner and Government, the parties shall be entitled to be represented by a legal practitioner of their choice.

Appearance of legal practitioner

29.       Except as otherwise provided in this Act, no proceedings under this Act, and no decision given, sentence passed or order made in any such proceedings, shall be called in question in any court or before any other authority.

Jurisdiction of courts barred

30.       No suit, prosecution or other legal proceeding shall lie against any indemnity. person for anything which in good faith done or intended to be done under or in pursuance of this Act or any rule or order made thereunder.

Indemnity

31.       The Deputy Commissioner may authorise any officer not below the rank of an Extra-Assistant Commissioner to exercise or perform all or any of his powers or functions under this Act.

Delegation

32.       (1) Government may, by notification in the official Gazette, rules for carrying out the purposes of this Act.      

Power to make rules

(2) In particular and without prejudice to the generality of the foregoing provision such rules may provide for all or any of the following matters, namely:—
            (a)        the offences which may be compounded;
            (b)    the persons by whom and the in a near in which an offence may be compounded;
            (c)     the procedure regarding appeal and revision;
            (d)    the maintenance of record of the Jirga and those of the Deputy Commissioner and the Commissioner; and
            (e)     such other matters as Government may consider necessary for carrying into effect the provisions of this Act.


33.       Nothing in this Act shall affect the continuance of any proceedings by or before any Magistrate, Court or other authority in respect of any offence triable under this Act the cognizance whereof was taken before the commencement of this Act.

Pending proceeding

34.       The North-West Frontier Province Criminal Law (Special Provisions) Ordinance 1977 (N.-W. F. P. Ordinance No. V of 1977), is hereby repealed.

Repeal

 

Attachments

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