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Petitioner: SARDAR MUBASHSHAR AHMAD QAISRANI VS Respondent: WEST PAKISTAN GOVERNMENT
P L D 1958 (W
P L D 1958 (W. P.) Lahore 972
Before Shabir Ahmad and Masud Ahmad, JJ
Sardar MUBASHSHAR AHMAD QAISRANI‑‑ Petitioner
versus
WEST PAKISTAN GOVERNMENT‑Respondent
Writ Petition No. 276 of 1957, decided on 21st July, 1958 under Article 170 of the Constitution.
(a) Frontier Crimes Regulation (III of 1901)----
----S. 11‑Joint Council of Elders cannot be set up by Deputy Commissioners of two Districts.
Held, that section 11 of the Frontier Crimes Regulation (III of 1901) did not intend or imply that Deputy Commissioners of two districts to which the Frontier Crimes Regulation (III of 1901) applied could set up a joint Council of Elders if the offences which were to be referred to that Council had been committed in more than one district.
A joint Council of Elders was set up by the Deputy Commissioners of Dera Ismail Khan and Dera Ghazi Khan districts which respectively were within the North‑West Frontier Province and the Province of Punjab, and it was contended that the Council was what was described as an "Inter‑provincial Jirga".
Held, that in the absence of any clear words in any relevant provision of law, an Inter‑provincial Jirga could not be considered to be a Council of Elders within the meaning of S. 11, Frontier Crimes Regulation (III of 1901). Neither could an Inter provincial Jirga be set up to act as a Council of Elders by virtue of the rule‑making powers of the Provincial Government (S. 62), for such a course was not allowed by the provisions of the Regulation.
(b) Frontier Crimes Regulation (III of 1901)-------
----S. 11‑Council of Elders‑Third person offering suggestion in regard to setting up of Council‑Does not vitiate reference to Council so long as such person had not nominated any member of Council.
Counsel contended that because a certain Political Agent had taken part in the deliberations of the Deputy Commissioners which culminated in the setting up of the Council of Elders, the acts of the Deputy Commissioners and of the Council of Elders appointed by them were vitiated. It was not alleged that the Political Agent, nominated any member of the Council of Elders but even if that had been established, the fact that the order of reference was made by the two Deputy Commissioners in making which either both or one of them may have accepted a suggestion made by the Political Agent, would not vitiate the order of reference to the Council of Elders if it were otherwise lawful.
(c) Frontier Crimes Regulation (III of 1901)-----
-----S. 11‑Joint consideration, by Council of Elders, of offences, not permitted where joint trial of such offences under Criminal Procedure Code not permissible.
Joint consideration by a Council of Elders of offences cannot become legal simply because the question of guilt or innocence of the accused persons was referred to a Council of Elders and not sent for trial to a court of law. The reference to a Council of Elders and the passing of a sentence after the report of such Council under section 11 of the Frontier Crimes Regulation (III of 1901) takes the place of a trial under the Code of Criminal Procedure and if two offences or two persons could not be jointly tried under the provisions of the Code of Criminal Procedure, they cannot be jointly dealt with under section 11 of the Frontier Crimes Regulation. It follows, therefore, that even if one Deputy Commissioner had acted under section 11 of Regulation III of 1901, the bar against joint trial contained in the Code of Criminal Procedure would not have been removed.
(d) Frontier Crimes Regulation (III of 1901)------
---S. 2 (a) Council of Elders with officials as members‑Council not validly appointed.
Where officials were members of Council of Elders whose findings culminated in the orders passed against the accused, Held, that the Council was not validly appointed and its findings could not have been acted upon.
The Crown v. Ghulam Muhammad Khan of Lundkhowar P L D 1956 F C 197 and Hamesh Gul v. The Crown P L D 1955 Pesh. 1 ref.
(e) Frontier Crimes Regulation (III of 1901)-----
---S. 11‑Council of Elders appointed after area where offence was committed had been exempted from operation of Regulation‑Council of Elders not competent to deal with such offences.
Section 11 of the Frontier Crimes Regulation comes into play only when the question of the consideration of the guilt or otherwise of a person with regard to any offence arises. There was no force in the contention that because at the time when the offence of dacoity was committed, the area where it was committed was governed by the Frontier Crimes Regulation, section 11 of the Frontier Crimes Regulation could be invoked even though the Regulation had been made inapplicable to that area before the question of invoking that section arose.
The guilt or innocence of the accused in regard to `the offences could not be referred to such a Council of Elders.
(f) Frontier Crimes Regulation (III of 1901)----
---S. 11‑Void after enforcement of Constitution‑Constitution of Pakistan, Art. 5.
The provisions of section 11 of the Frontier Crimes Regula tion have become void after the enforcement of the new Con stitution.
Tuti Khan v. The District Magistrate, Sibi and Ziarat P L D 1957 (W. P.) Quetta 1 ref.
(g) Frontier Crimes Regulation (Validation of Orders, Proceedings, Sentences and Acts) Act (XII of 1954)----
-‑Language of Act of wide import.
Held, that the language of the Frontier Crimes Regulation (Validation etc.) Act (XII of 1954) being wide it is not open to Courts to cut down the application of the measure by considera tion of extraneous circumstances such as that the Act was passed to cure the defects pointed out in a judgment of the Judicial Commissioner's Court, Peshawar, and that the Act was therefore operative in regard only to such defects and to no others.
Raza Kazim for Petitioner.
M. M. Anwar, A. A. G. for Respondent.
Dates of hearing : 31‑10‑57, 1‑11‑57, 7‑11‑57 and 12‑11‑57.
JUDGMENT
SHABIR AHMAD, J.‑This is a petition under Article 170 of the Constitution of the Islamic Republic of Pakistan by Sardar Mobashir Ahmad Qaisrani, a student of the Law College, Lahore, for the issue of a writ of habeas corpus for the release of nine persons, namely, (1) Ghulam Muhammad son of Hussaini of Dera Ghazi Khan, confined in the New Central Jail, Multan (2) Musa son of Gulistan, Qaisrani of Lakhi Bhar, confined in the Borstal Jail, Lahore, (3) Phiri son of Nasir, Qaisrani of Laz Dan, confined in the New Central Jail, Multan (4) Alt Muhammad son of Kathu, Qaisrani, confined in the New Central Jail, Multan, (5) Bangui son of Wassu, Qaisrani, confined in the New Central Jail, Multan, (6) Muhammad Nawaz son of Ibrahim, Qaisrani, confined in the New Central Jail, Multan, (7) Muhammad son of Kallu, Qaisrani, confined in the New Central Jail, Multan (8) Ashiq son of Nasir, Qaisrani, of Laz Dan, confined in the District Jail, Dera Ghazi Khan, and (9) Gui Muhammad son of Kallu, Qaisrani, confined in the New Central Jail, Multan. The above mentioned nine persons will be referred to in the sequal as detenus Nos. 1, 2, 3, 4, 5. 6, 7, 8 and 9, respectively.
The facts leading to the incarceration of the persons whose release the petitioner seeks may be briefly stated. On the night between the 10th and 11th of January 1953, a dacoity was committed in the shop of Muhammad Bakhsh, situated in village Kotani, in the District of Dera Ghazi Khan. The first information report about the dacoity was made by Ahmad Khan at Police Station Vehoa, in the jurisdiction of which station village Kotani is situate, on the 11th of January 1953, at 9 a.m. It appears that on an information given to the authorities there was a chase of the persons believed to be the dacoits The chase resulted in a clash in which one of the alleged dacoits and three men of the Baluch Levy were murdered in a place known as Tak Marghunj situate in the Ustrana territory of the Dera Ismail Khan District and the firearms of the murdered levy-men were taken away by some of the alleged dacoits. A report about the murders was made to the Political Agent, Dera Ghazi Khan. Investigation was conducted by Assistant Sub Inspector of Police Ghulam Rasul assisted by some persons of the Baluch Levy and some of Border Military Police, Dera Ghazi Khan. The investigation revealed that fourteen persons had taken part in the dacoity of whom Najam‑ud‑Din Assot was killed in the encounter between the alleged dacoits and the Baluch Levy at Tak Marghuni of the other thirteen, five were stated to have absconded but eight., namely, detenus 1 to 8, were apprehended. In the final report made by the Police with regard to the dacoity in village Kotani, it was requested that the case relating to it should not be tried by an ordinary Court but be sent to a Council of Elders (Jirga). A similar request appears to have been made with regard to the case relating to the murders of the three levy-men and the theft of their firearms. The Deputy Commissioners of Dera Ghazi Khan and Dera Ismail Khan agreed with the Police that the cases could not be heard by the ordinary Courts and proceeded to act under section 11 of the Frontier Crimes Regulation (III of 1901). In the deliberations with regard to the setting up of a Council of Elders the Political Agent of Loralai also participated along with the Deputy Commissioner of Dera Ghazi Khan and the Deputy Commissioner of Dera Ismail Khan. A Council of Elders of six persons was appointed of whom three were officials and three non‑officials, and of the non‑officials one was Sardar Mobashir Ahmad Qaisrani, the petitioner in the present case. The recommendation of the Council of Elders did not have the support of three‑fourths of its members with the result that udder the law it could not be acted upon. A fresh order of reference was made and the Council of Elders was reconstituted by adding two more members. The new members were the Extra Assistant Commissioner, Shirani, nominated by the Deputy Com missioner, Dera Ismail Khan, and the Extra Assistant Commis sioner, Barkhan, nominated by the Deputy Commissioner, Dera Ismail Khan, but the latter was later on replaced by the Tahsildar, Musa Khel. The second Council of Elders was asked to consider the evidence already recorded by the first Council of Elders and, if necessary, to record fresh evidence, examine the accused and the further evidence which they might wish to produce and to submit their findings on the following points.--
(1) Which of the accused and in what degrees are they guilt of the commission of the dacoity in village Kotani on night between the 10th and 11th of January 1953?
(ii) Which of the accused are guilty of the murders of Havildar Muhammad Khan and Sepoys Kattu Khan and Ali Sher of the Baluch Levy at Tak Marghun (Ustrana Territory)?
(iii) Which of the accused are guilty of the abetment of the dacoity and or murders?
Which of the accused are guilty of the theft of the three rifles belonging to the sepoys of the Baluch Levy Killed in the encounter?
Did the Qaisrani and Khaitran (Dera Ghazi Khan) and Ustrana (Dera Ismail Khan) tribes and or abet the offences of dacoity or murders or offer shelter or assistance to the offenders.
Recommendations of the Jirga?
The Second Council of Elders submitted a report signed by seven 9of its members, the eighth, namely, Sardar Manzoor Ahmad Qaisrani, not having participated in the deliberations. The report of the seven members was unanimous and acting on it the deputy Commissioner, Dera Ghazi Khan, and the Deputy Commissioner, Dera Ghazi Khan, sentenced Ghulam Muhammad son of Husaini, (detenu No. 1) Musa son of Guilstan (detenu No. 2) and Phirri son of Naseer (detenu No. 3) to ten years rigorous imprisonment each under section 395/34 and Muhammad son of Kallu (detenu No. 7) ten years rigorous imprisonment under section 395/109 of the Pakistan Penal Code he further imposed a fine of Rs 2,000 on detenu No.s 1,2,3 for payment of which they were made collectively and severally liable. The deputy Commissioner, Dera Ismail Khan sentenced Ghulam Muhammad son of Gulistan (detenu No. 2) Phirri son of Naseer (detenu No. 3) Ali Muhammad son of Lathu (detenu No. 4) Bengul son of Wassu (detenu No. 5) and Muhammad Nawaz son of Ibrahim (detenu No. 6) to four teen years rigorous imprisonment each under section 302-/34 of the Pakistan Penal Code. He sentenced Muhammad son of Kallu (detenu No. 7) to fourteen years rigorous imprisonment under section 302/109 and to three years rigorous imprisonment under section 307/109 of the Pakistan Penal Code directing both the sentences to run concurrently and sentenced Ashiq son of Naseer (detenu No. 8) to three years rigorous imprisonment under section 379 of the Pakistan Penal Code. He further accepted the recommendation of the Council of Elders about blood money and fine to be imposed on the accused persons and fix the blood money at Rs. 4,000 and Rs, 3,000 as Government sharmana, which was to be realised according to custom from all the eight persons whom he had convicted who were made collectively and severally responsible for payment thereof.
3. Gul Muhammad son of Kallu (detenu No. 9), who was one of the absconders in the first instance, was arrested later on and by a joint order passed by the Deputy Commissioner, Dera Ghazi Khan, and Deputy Commissioner, Dera Ismail Khan, his case was referred to a Council of Elders. The recommendation of the Council of Elders was accepted and on the 26th of January 1957, in a joint order, the Deputy Commissioner of Dera Ghazi Khan and the Deputy Commissioner of Dera Ismail Khan passed sentence on Gul Muhammad. The Deputy Commissioner, Dera Ghazi Khan, sentenced detenu No. 9 to ten years' rigorous imprisonment under section 395/34 of the Pakistan Penal Code while the Deputy Commissioner, Dera Ismail Khan, sentenced him to fourteen years' rigorous imprisonment under section 302/34 of that Code.
4. The learned counsel for the petitioners urged that the joint order of reference to the Council of Elders by the Deputy Commissioner, Dera Ghazi Khan, the Deputy Commissioner, Dera Ismail Khan, and the Political Agent, Loralai, which resulted in detenus Nos. 1 to 8 being sentenced for offences alleged to have been committed by them, was not allowed by any provision of law and, therefore, the proceedings consequent on that order were not and void with the result that the sentence of imprison ment passed on these eight detenus on the 27th of July 1954 by the Deputy Commissioner. Dera Ghazi Khan and D. C. Dera Ismail Khan, was illegal. He also contended that the offences namely, that of dacoity and those of murder and theft against detenus Nos. 1 to 8 did not form part of the same transaction and as they could not have been tried at one trial by a Court constituted under the Code of Criminal Procedure, they could not have been considered by one Council of Elders even if the Council on the recommendation of which the sentences were passed by the two Deputy Commissioners, be held to have been validly constituted. His next contention in this regard was that the two Councils of Elders, whose deliberations culminated in the orders of the Deputy Commissioner in 1954, did not conform to the provisions of law and on that ground also the sentences of imprisonment were void in the eye of law. He went on to urge that because by notification No. 8145/53/JJ, dated the 10th November 1953, published in Part I of the Punjab Gazette dated the 20th November 1953, the settled Parts of the Dera Ghazi Khan District were exempted from the operation of all the provisions of the Frontier Crimes Regulation (III of 1901), the Deputy Commissioner, Dera Ghazi Khan, could not, in any case, have referred the cases of detenus 1 to 8 to a Council of Elders. With regard to the case of detenu No. 9, learned counsel for the petitioners urged that the sentences passed against him were illegal and void not only for the reasons for which the sentences against the other detenus suffered from infirmity but also by reason of the fact that the reference to the Council of Elders was made after the coming into force of the Con stitution of the Islamic Republic of Pakistan, to some provisions of which law at least some of the provisions of the Frontier Crimes Regulation which were invoked for making a reference to the Council of Elders, were repugnant and consequently void.
5. I will first of all deal with the contention of the learned counsel for the petitioners that the Deputy Commissioner of Dera Ghazi Khan and the Deputy Commissioner of Dera Ismail Khan could not have set up a joint Council of Elders and, therefore, the sentences passed on the detenus were illegal in the eye of law. In this connection the relevant provision of law is section 11 of the Frontier Crimes Regulation which is in the following terms :‑
"11 (1) 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 of 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 Com missioner 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.
(2) Where a reference to a Council of Elders is made under subsection (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 subsection, 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 Commis sioner shall after disposing of any objection made by the accused person, appoint the members of the Council.
(3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may‑
(a) remand the question to the Council for a further finding ; or
(b) refer the question to a second Council ; or
(c) acquit or discharge the accused person or persons, or any of them ; or
(d) 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."
According to Schedule I to the North‑West Frontier Province Law and Justice Regulation (VII of 1901), the word "Commissioner" occurring in the above section has to be read as "Chief Commis sioner or such other officer as the Chief Commissioner may appoint in this behalf", when the section is applied to a place in the North‑West Frontier Province, but as the reference was made by the Deputy Commissioner of Dera Ismail Khan, who was in any case competent under section 11 to exercise powers under that section, the amendment brought about by the North West Frontier Province Law and Justice Regulation, 1901, does not arise for consideration in the present case. It will be noticed that the section talks of Deputy Commissioner in singular and though it is true that the various statutes dealing which interpreta tion singular, can mean the plural if the context so directs or implies, it appears to me that section 11 of the Frontier Crimes Regulation (III of 1901) did not intend or imply that Deputy Commissioners of two districts to which the Frontier Crimes Regulation (III of 1901) applied could set up a joint Council of Elders if the offences which were to be referred to that Council had been committed in more than one district. The learned counsel for the respondent urged that the Council of Elders set up was what was known as an Inter‑provincial Jirga but he could refer to no provision of law which in clear terms allowed the setting up to such a Jirga for trial of offences committed in two different Provinces. Both at the time when the offences were committed and at the time when the order with regard to the reference of the case against detenus Nos. 1 to 8 was passed, the district of Dera Ghazi Khan and that of Dera Ismail Khan were in two different Provinces of Pakistan, the former being in the Province of the Punjab and the latter in that of North‑West Frontier, arid in the absence of clear words to that effect in any relevant provision of law: cannot bring myself to hold that an Inter‑Provincial Jirga could be considered to be a Council of Elders within the meaning of section 11 of the Frontier Crimes Regulation (III of 1901), Section 62 of the Frontier Crimes Regulation (III of 1901) no doubt authorises the Provincial Government to make rules to carry out the purposes and objects of the Regulation but it is obvious that an Inter‑Provincial Jirga to act as a Council of Elders cannot be set up by the rules when such a course is not allowed by tile provisions of the Regulation under a section under which the rules could be made.
6. It was also contended by the learned counsel for the petitioners that because the Political Agent, Loralai, took part in the deliberations of the Deputy Commissioners of Dera Ghazi Khan and Dera Ismail Khan which culminated in the setting up, of the Council of Elders, the acts of the Deputy Commissioners and of the Council of Elders appointed by them were vitiated, but it appears to me that this contention cannot be accepted. It is not alleged that the Political Agent, Loralai, nominated any member of the Council of Elders which considered the case of detenus Nos. 1 to 8 or that of detenu No. 9, but even if that had been established, the fact that the order of reference was made by the two Deputy Commissioners in making which either both or one of them may have accepted a suggestion made by the Political Agent, Loralai, would not vitiate the order of reference to the Council of Elders if it were otherwise lawful.
7. The contention of the learned counsel for the petitioners that the proceedings of the Council of Elders, the deliberations of which resulted in detenus Nos. 1 to 8 being sentenced to imprisonment and fine, could not be held to be valid because the two offences of which they were convicted did not form part of the same transaction, may now be taken up. The argu ment of the learned counsel for the petitioners was that section 11 of the Frontier Crimes Regulation (III of 1901) did not do away with the provisions of the Code of Criminal Procedure which permit or prohibit joint trials of offences and persons and, therefore, even if a joint Council of Elders could have been set up by the Deputy Commissioners of Dera Ghazi Khan and Dera Ismail Khan, no such joint Council could be set up if the two offences which the Council was called upon to deal with could not have been tried at one trial if the case were heard by a Criminal Court constituted under the Code of Criminal Procedure. In my opinion, this argument has force. It will be noticed that section 11 of the Frontier Crimes Regulation makes it clear that the question of guilt or innocence of any person or persons accused of any offence can be referred to a Council of Elders only if the Commissioner or the Deputy Com missioner be of the opinion that it is inexpedient that the question should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, and it is obvious that the intention was that if any persons could not be jointly tried by any of the Courts mentioned in section 6 of the Code of Criminal Procedure, one single Council of Elders could not be appointed to give a finding about the guilt or innocence of those persons. It is not denied, and is in fact clear, that the offence of dacoity and that of the murder of three Baluch Levy-men were not offences. committed in the course of the same transaction and that no clause of section 239 of the Code of Criminal Procedure would have allowed the joint trial of persons accused of these two offences if they were tried by any of the Criminal Courts mentioned in section 6 of the Code of Criminal Procedure, and it appears to me, therefore, that the joint consideration of the offences cannot become legal simply because the question of guilt or innocence of the accused persons was referred to a Council of Elders and 'not…
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