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Writ Petition No. 563 of 1959, decided on 29th April 1964.
‑Ground not specifically taken in petition‑Allowed to be argued in view of its importance,
Provisions, whether validly applicable to Tribal Areas (North and South Waziristan)‑History of Regulation and continuance of its application to Tribal Areas‑Extra‑Provincial Jurisdiction Order, 1999, Art. I (2)‑Government of India Act, 1935, S. 5 [as modified by Establishment of West Pakistan Act, 1955, first Sched].
Where the validity of the Frontier Crimes Regulation, 1901 as applied to North and South Waziristan was challenged and it was argued that as from the creation of Pakistan on 15th August 1947 the laws formerly in force in the Tribal Areas lapsed because on that date the territories of. Pakistan did not include the Tribal Areas nor did the areas in question become part of Pakistan on any later date:
Held : All the areas situated within the external frontiers of Pakistan, which were not included in any of the Provinces or in the Chief Commissioner's Province of Baluchistan, were included within the Federation of Pakistan by Notification No. F‑9 (170) F/48 dated 27th June 1950 and were declared by Notification No. F‑9 (170) F/48‑I of the same date to be territories in which the Governor‑General exercised jurisdiction under para. (2) of Article 1 of the Extra‑Provincial Jurisdiction Order, 1949. The Frontier Crimes Regulation, 1901 had been made applicable to the Kurram Valley and North and South Waziristan by the Foreign Department Notification No. 1691‑F, dated 23rd June 1902 and the provisions of the Regulation were also extended to North and South Waziristan by a subsequent Notification of the Foreign Department No. 112‑F, dated 24th March 1926. The validity of the application of the Frontier Crimes Regulation, 1901 to North and South Waziristan after the creation of the Independent Dominion of Pakistan could not, therefore, be challenged.
Abdus Sami Khan v. Hamesh Gul and another P L D 1958 Lah. 1039 and Government of India Act, 1915 by "C. P. Ilbert", 3rd Edition, p. 418 ref.
‑Scope and interpretation‑Provisions can be invoked where either or any of parties belong to frontier tribe‑Application of Regulation, not confined to any particular tribe or tribes but extends to all persons inhabiting tracts in which Regulation is in force.
Case competently drawn or sought to be drawn into Jirga system --High Court has no jurisdiction to issue orders, in exercise of its special jurisdiction, and nullify orders of authorities "in North Waziristan and some other similar areas".
Samundar v. Crown P L D 1954 F C 228 ref.
Muhammad Akram v. State P L D 1963 S C 373 rel.
M. A. Rehman for Petitioners.
Nemo for Respondents Nos. 1 to 4.
Khalid M. Ishaq, Advocate‑General, M. B. Zaman, A. A.‑G, and Zaheer Abbas for Respondents Nos. 5 to 7.
Dates of hearing : 20th and 31st January 1964,
Twenty‑four Writ Petitions Nos. 563 to 565 of 1959, No. 261 of 1960, No. 307 of 1960, Nos. 334 to 351 of 1960 and No. 725 of 1960, were filed in this Court by a number of different persons. In the first of these the following order was recorded by a Division Bench:
"As the decision on some of the questions that arise in this case as well as in Writ Petitions (then follow the numbers given above) will have a far reaching effect, because one of such questions is whether this Court has jurisdiction to issue orders that would nullify those of authorities in North Waziristan and some other similar areas, we are of the opinion that the cases should be heard by a larger Bench so that the questions that fall for determination may be settled once for all as far as this Court is concerned. The cases will be laid before his Lordship the Chief Justice for nominating members of the larger Bench. It does not appear necessary to us to record an order to the above effect on each of the other cases and we do not propose to do that but direct that this order shall be deemed to exist for the purposes of not only this case but also of all the other above‑mentioned cases."
2. In Writ Petition No. 261 of 1960, the parties compro mised, the petition being accordingly dismissed by order dated the 10th of July 1963.
3. As the circumstances leading up to the filing of the still existing petitions, with the exception of No. 725 of 1960 (which will be dealt with separately) are identical, it will suffice to give the facts in Writ Petition No. 563 of 1959 by way of illustration.
4. The petitioners in the above petition, Abdul Ghani and Ghulam Rasul, are brothers and describe themselves as Lyallpur business men. On the 24th of September 1959, in their absence from their respective shops, a process‑server from the office of the Tehsildar, Lyallpur, brought for service on them summonses issued by the Assistant Political Officer and Additional District Magistrate, North Waziristan, (hereinafter referred to as the Issuing Officer) requiring them to appear in this Court on the 25th of September 1959. The summonses purported to have been issued under section 8 of the Frontier Crimes Regulation (III of 1901) (hereinafter referred to as the Regulation) in proceedings instituted by four of the respondents, who are residents of North Waziristan, for the recovery of a sum of Rs. 17,745‑12‑0 allegedly owed to them by the petitioners.
5. The legality of the summonses issued to the various petitioners is challenged on the following grounds:‑
(i) That the jurisdiction of the Issuing Officer does not extend either to persons residing in Lyallpur or to the territories outside North Waziristan. It is further contended that even within North Waziristan the Regulation applies only to two tribes, namely, Baluchis and Pathans.
(ii) Even if the Issuing Officer had jurisdiction outside North Waziristan, it could only be invoked in the circumstances set out in section 8 of the Regulation.
(iii) Action could only be taken by the Deputy Commissioner and not by the Issuing Officer.
(iv) The Issuing Officer could only refer the matter to a Council‑of‑Elders and was not competent to proceed to decide the matter himself. In support of this and other objections raised by them, the petitioners rely on Abdus Sami Khan v. Hamesh Gul and another P L D 1958 Lah. 1039.
6. Although the names of the alleged, creditors vary in the different petitions, four respondents are common to all, namely, the Issuing Officer, the Government of Pakistan through the Secretary, Ministry of Interior, Karachi, the Deputy Commis sioner, Lyallpur, and the Tehsildar, Lyallpur. In Writ Petition No. 563 of 1959 the Government of Pakistan, represented by the learned Advocate‑General, West Pakistan, filed a written state ment which covers all the petitions. The position taken up is that the issue of summons is implicit in the provisions of section 8 of the Regulation, and that once the Deputy Commissioner has arrived at the conclusion that a dispute of the nature contem plated by that section exists, he is required to refer the dispute to a Council‑of‑Elders. When the procedure laid down in sub sections (2) and (3) of section 8 has been complied with, the Deputy Commissioner passes under clause (d) of the said section a decree which, under section 9 of the Regulation, has the same effect as a decree of a Civil Court of ultimate resort and is enforceable in the same manner. The conclusion is drawn that a. decree under section 8 (3) (d) is capable of being executed in any part of Pakistan, including those territories to which the Regulation does not apply. It is further stated that a summons is issued by the Deputy Commissioner with the sole object of fixing the defendant with the knowledge of the claim preferred against him, and that it is within the latter's discretion whether or not to appear. It is further remarked:
"The use of coercive process as alleged in the several petitions is not contemplated and if the several defendants in the case which have become the subject‑matter of the present writs do not choose to attend, then proceedings before the Council‑of‑Elders should proceed ex parte and if they result in the passing of decree in respect of the claims made against them, then such decrees will be executed in the settled districts where the defendants may be residing at the time. It is not the intention of these summonses that in default of appearance they shall be subject to any penalties."
7. In connection with Writ Petition No. 307 of 1960, the Issuing Officer also submitted a report. He states, in the first place, that he has been empowered by the Governor of West Pakistan to try cases under the Regulation by Notification No. 4547‑CR, dated the 19th of February 1959, which runs:
"In exercise of the powers conferred by subsection (1) of section 4 of the Frontier Crimes Regulation, 1901, the Governor of West Pakistan is pleased to appoint Mr. Razaullah Khan, P. C. S., Assistant Political Officer, North Waziristan, as Additional District Magistrate with effect from the date of assumption of charge and to direct that he shall exercise the powers under the said section within the local limit (sic) of his jurisdiction."
Subsection (1) of section 4 of the Regulation empowers the Local (now the Provincial) Government to appoint any Magis trate of the First Class to be an Additional District Magistrate without any limit of time, while subsection (3) of the same section provides that when exercising any of the powers of a Deputy Commissioner under the Regulation an Additional District Magistrate shall be deemed for the purposes of the Regulation to be the Deputy Commissioner.
8. Paragraph 5 of the report runs:
"The summons were (sic) issued for the attendance of the petitioner for his furnishing the written statement (so as to enable this Court to frame issues) and for obtaining the consent of the parties in respect of Council‑of‑Elders to be nominated and appointed by this Court before requiring the Council‑of- Elders to come to a finding in the matter in dispute after making such enquiry as may be necessary and after hearing the parties."
The remaining paragraphs of the report are irrelevant to the general question now before us.
9. As already stated, Writ Petition No. 725 of 1960 stands on a different footing from the others. The facts are that a complaint under section 420, P. P. C., was presented in what is described as the Court of respondent No. 1, the Political Agent of the Kurram Agency (Tribal Areas), Para Chinar, by Haji Dost Muhammad, respondent No. 2, arising out of a transaction for the purchase of four wagons of timber by Malik Meraj Din, petitioner No. 1, from respondent No. 2. It was agreed that the petitioners would pay Rs. 2,500 per wagon on delivery and the balance of the price in two monthly instalments. According to the petitioners, the negotiations were initiated, conducted and concluded at Lahore through a broker, while delivery was also to be made at Lahore arid was, in fact, made to Abdul Qayyum, petitioner No. 2, the son of petitioner No. 1. Later a dispute arose, respondent No. 2 complaining that he had not been paid the full amount agreed upon. The matter was referred to arbitration, but respondent No. 2 refused to participate in those proceedings. The petitioners thus allege that the dispute is one of a purely civil nature and that the criminal complaint above referred to was made by respondent No. 2 with the sole object of harassing and coercing the petitioners.
10. On the 15th of September 1960, a summons was issued by the Political Agent to the petitioners requiring them to appear before him at Para Chinar on the following day. The petitioners challenged the legality of the summons on the grounds that respondent No. 1 had no jurisdiction to issue process to a citizen of Pakistan who does not belong to a Frontier Tribe, his authority being confined to that conferred by the Regulation.
11. Both respondents filed written statements. According to respondent No. 1 the complaint was sent to the Tahsildar, Mahal, for inquiry. He reported that the occurrence had taken place within the limit of the Agency and recommended that a warrant of arrest be issued against the accused. Instead of a warrant a summons was, however, issued for the attendance of the present petitioners in order that the true facts of the case might be brought to light. The respondent has also given an extract from Part II of the Criminal Rawaj of the Agency, which runs:
"This Court (Code ) will be enforced throughout the Administered Area of the Kurram Agency and is applicable to all the permanent and temporary residents of this Area including Nomadic Tribes and Travellers."
12. It will be seen from the above that a similar point arises in this petition as in the others, namely, whether a Political Officer in a Tribal Area has jurisdiction to issue process to a person residing outside the limits of that area.
13. The validity of the Regulation as applied to North and South Waziristan was also challenged in arguments before us on a ground not specifically taken in the petitions, but which, on account of its importance, we permitted to be argued. The argument, as I understand it, is that as from the creation of the Independent Dominion of Pakistan on the 15th of August 1947 the laws formerly in force in the Tribal Areas lapsed, the reason being that on that date the territories of Pakistan did not include the Tribal Areas. It is further con tended that the areas in question did not even become a part of Pakistan on any later date. Alternatively, it is urged that if they were later included the Regulation could only have been made applicable to them by a notification issued by the Governor-General under section 95‑A of the Government of India Act, 1935, inserted by Governor‑General's Order 6 of 1949. Reliance is also placed on section 7 (1) (b) of the Indian Independ ence Act, 1947, under which the suzerainty of His Majesty over the Indian States lapsed and with it all treaties and agreements in force at the date of the passing of the said Act between His Majesty and the Rulers of the Indian States, all functions exercised by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States, or the Rulers thereof,, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise: '
14. In order to appreciate the real position it is necessary to state that up to the time of the Partition of the Indian Sub- Continent the Governor‑General‑in‑Council possessed ' extra territorial powers in respect of certain territories situated beyond the limits of British India. At page 418 of the third edition of his work on the Government of India Act, 1915, Mr. C. P. Ilbert observes:
"The existence of these powers was until recently declared, and their exercise was to some extent regulated, by the Foreign Jurisdiction and Extradition Act, 1879, of the Government of India, which contained recitals corresponding to those in the Foreign Jurisdiction' Act, 1890, passed by the Parliament at Westminster. But a few years ago it was recognized that the extra‑territorial powers exercisable by the Governor-General‑in‑Council, as representative of the British Crown, rested on the same principles, and might with advantage be based on the same statutory foundations, as the extra‑territorial powers of the British Crown in other parts of the world. Accordingly, in 1902, an Order in Council under the Act of 1890 made provision for the exercise of foreign jurisdiction by the Governor‑General of India in Council, and the Indian Act of 1879, having been superseded as to foreign jurisdiction by this Order, and as to other matters by later Indian Legislation, was formally repealed by the Indian Act XV of 1903."
15. Under section 3 of the Order of 1902 the Governor-General of India in Council was empowered to exercise, on His Majesty's behalf, any power or jurisdiction which His Majesty or the Governor‑General of India in Council for the time being had within the limits of the Order, and might delegate any such power or jurisdiction to any servant of the British Indian Government in such manner, and to such extent, as the Governor-General‑in‑Council might from time to time think fit. Section 4 gave the Governor‑General‑in‑Council power to make such rules and orders as might seem expedient for carrying the Order into effect, while section 5 provided that all appointments, delegations, certificates, requisitions, rules, notifications‑processes, orders and directions made or issued under or in pursuance of any enact ment of the Indian Legislature, regulating the exercise of foreign jurisdiction, were confirmed and were to have effect as if made or issued under the Order.
16. The position remained unchanged until the passing of the Government of India Act, 1935. Section 123 (1) of that Act conferred on the Governor‑General the power to direct the Governor of any Province to discharge as his agent, either generally or in any particular case, such functions in and in relation to the tribal areas as might be specified in the direction. Further, section 313 (2) (c) of the said Act laid down that, subject to the provisions of the Act, the executive authority exercised on behalf of His Majesty by the Governor‑General‑in- Council, either directly or through officers subordinate to him, extended (subject to certain provisos which have no relevance to the present case) to the exercise of such rights, authority and jurisdiction and were exercisable by his Majesty by treaty, grant, usage, sufferance or otherwise in and in relation to the tribal areas.
17. The next step was taken in 1937, when the Indian (Foreign Jurisdiction) Order was passed. It amended the Indian (Foreign Jurisdiction) Order in Council, 1902, and provided that as from the commencement of Part III of the Government of India Act, 1935, the powers conferred by the 1902 Order (referred to as the "principal Order") on the Governor‑General- in‑Council should, so far as they were connected with the exercise of the functions of the Crown in its relations with Indian States, be powers of His Majesty's Representative for the exercise of those functions of the Crown, and further enabled the said Representative to delegate those powers to such extent and in such manner as he thought fit. Section 3 of the Order enacted that as from the commencement of Part III of the Government of India Act, the principal Order ceased to have effect as respects the tribal areas in India, but without prejudice to the validity of anything previously done there under. It was further provided that all rules, orders, delegations, appointments or other instruments made or issued under the principal Order should continue in force except so far as revoked or varied by the authority competent for the purpose under the Government of India Act.
18. Section 2(2) of the Indian Independence Act defined the territories of Pakistan as being the Provinces of East Bengal and the Punjab as reconstituted, the territories which at the date of the passing of the Act were included in the Province of Sind and the Chief Commissioner's Province of British Baluchistan, and, subject to a referendum, the territories included at the date of the passing of the Act in the North‑West Frontier Province. Subsection (3) of the same section, however, lays down that nothing in the section shall prevent any area being at any time included in or excluded from either of the new Dominions, providing in the case of Pakistan that no area not forming part of the territories specified in subsection (2) shall be included in that Dominion without its consent.
19. Another important provision of the Indian Independence Act is section 8 (2), which (omitting the provisos, which have no relevance to the present case) runs:‑
"Except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under subsection (1) of this section , each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act, and of the Orders in Council, rules and other instruments made there under, shall, so far as applicable, and subject to any express provisions of this Act, and with such omission, additions, adaptations and modifications as may be specified in orders of the Governor‑General under the next succeeding section have effect accordingly."
20. Section 5 of the Government of India Act, which remained in force until the passing of the 1956 Constitution underwent several changes, being first replaced by section 5 of Governor‑General's Order No. 22 of 1947 and then modified by the First Schedule to the Establishment of West Pakistan Act, 1955. In its final form it ran:‑
"(5) Establishment of the Federation‑
(1) . . . . . . . . . . . . . . . There shall be united in a Federation by the name of Pakistan‑
(a) the Province hereinafter called Governors' Provinces,
(bb) any other areas that may with the consent of the Federa tion be included in the Federation."
21. On the 27th of June 1950, a notification, No. F. 9 (170)‑F/48 was issued, the preamble to which is to the following effect: ‑
"Where the inhabitants of the areas situated within the external Frontiers of Pakistan which are not included in any of the Provinces or in the Chief Commissioner's Province of Baluchistan or in any of the acceding States or in the Capital of the Federation have, through their accredited representatives, declared their territories to be a part of Federation of Pakistan as constituted on the 15th day of August 1947.
And whereas the Governor‑General has accepted their request and given his consent to these areas being included in the Federation of Pakistan."
The notification was made, retrospective from the 15th of August 1947. By a second notification, No. F. 9 (170)‑F/48‑I, dated the 27th of June 1950, the areas described in the first were declared to be territories in which the Governor‑General exercised jurisdic tion under paragraph 2 of Article 1 of the Extra‑Provincial Jurisdiction Order, 1949, while paragraph (3) delegated the jurisdiction of the Governor‑General to the Governors of the North‑West Frontier and Punjab Provinces and the Chief Commissioner of Baluchistan in respect of those of the territories which had come under their territorial jurisdiction. Paragraph (4) provided that all notifications, rules or other instruments made before the fifteenth day of August 1947 in respect of the afore said areas under subsections (1) and (2) of section 313 of the Government of India Act, 1935, should be deemed to have continued in force after the fourteenth day of August 1947 and to have been duly made in exercise of the jurisdiction conferred by the Extra‑Provincial Jurisdiction Order, 1949.
22. The history of the Regulation may now be given. By way of preliminary, it will be of advantage to cite another passage from Ilbert's work referred to in paragraph 14 above. At gage 105 the learned author remarks:‑
"A very important modification in the machinery for Indian legislation was made by the Government of India Act, 1870. It has been seen that for a long time the Governor‑General believed himself to have the power of legislating by executive order for the non‑regulation provinces. The Indian Councils Act of 1861, whilst validating rules made under this power in the past, took away the power for the future. The Act of 1870 practically restored this power by enabling the Governor-General to legislate in a summary manner for the less advanced parts of India. The machinery provided is as follows. The Secretary of State in Council, by resolution, declares the provisions of section 1 of the Act of 1870 applicable to some particular part of a British Indian province. Thereupon the Governor‑in‑Council, Lieutenant‑Governor, Lieutenant‑Governor- in‑Council, or Chief Commissioner of the province, may at any time propose to the Governor‑General‑in‑Council drafts of regulations for the peace and good government of that part, and these drafts, when approved and assented to by the Governor‑General‑in‑Council, and duly gazetted, have the same force of law as if they had been formally passed at sittings of the Legislative Council. This machinery has been extensively applied to the less advanced districts of the different Indian provinces, and numerous regulations have been, and are constantly being, made under it."
The Regulation, which was originally applicable only to certain districts within the limits of British India, came into force under the above machinery. It was notified in the Gazette of India of the 21st of September 1901, and the preamble runs:‑
"No. 23.‑Whereas by Resolution passed by the Secretary of State for India in Council on the 6th day of October, 1870, the provisions of section 1 of the Government of India Act, 1870, (33. Viet., c. 3), were declared applicable to the districts of Hazara, Peshawar, Kohat, Bannu, Dera Ismail Khan and Dera Ghazi Khan under the administration of the Lieutenant Governor of the Punjab;
And whereas the said Lieutenant‑Governor of the Punjab has proposed to the Governor‑General‑in‑Council a draft of the following Regulation together with the reasons for proposing the same;
And whereas the Governor‑General‑in‑Council has taken the draft and reasons into consideration, and has approved of the draft, and the same has received the Governor‑General's assent on the 18th day of September 1901;
In pursuance of the direction contained in the said section, the said Regulation is now published in the Gazette of India:"
23. The Regulation was in the following year made applic able to the Kurram Valley by Foreign Department Notification No. 1691‑F, dated the 23rd of June 1902. As on that date the Indian (Foreign Jurisdiction) Order in Council, 1902, had apparently not been passed, the notification was issued in exercise of the powers conferred by sections 4 and 5 of the Foreign Jurisdiction and Extradition Act, 1879, the provisions of which are as under:‑
"(4) The Governor‑General‑in‑Council may exercise any power or jurisdiction which he for the time being has within any country or place beyond the limits of British India, and may delegate the same to any servant of the British Indian Government, in such manner and to such extent as the Governor‑General‑in‑Council from time to time thinks fit."
"(5) A notification in the Gazette of India of the exercise by the Governor‑General‑in‑Council of any such power or jurisdic tion, and of the delegation thereof by him to any person or class of persons, and of the rules of procedure or other condi tions to which such persons are to conform, and of the local area within which their powers are to be exercised, shall be conclusive proof of the truth of the matters stated in the notification,"
24. The above notification introduced an important amend ment in the Regulation, substituting the following for the original subsection (1) of section 8:‑
"When the Deputy Commissioner or the Political Agent thinks it expedient that any dispute should be settled in the manner provided by this section, he may make an order, in writing, stating the grounds of his opinion and referring the dispute to a Council‑of‑Elders."
25. The provisions of the Regulation were also extended to North and South Waziristan by a subsequent notification of the Foreign and Political Department, No. 112‑F, dated the 24th of March 1926, in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902. Section 2 of that Order declared its limits to be, inter alia, the territories of India outside British India, while section ' 3 is in essentials identical with section 5 of the Foreign Jurisdiction and Extradi tion Act, 1879. The first paragraph of Part II of the notification lays down that all Assistant Political Officers within North and South Waziristan shall exercise all the powers of a Magistrate of the First Class, while all Political Agents shall exercise all the powers of a Deputy Commissioner under the Regulation. It may also here be noted that section 2(b) of the Regulation defines "Deputy Commissioner" as including any Magistrate of the First Class appointed by the Deputy Commissioner by order in writing to exercise all or any of the functions or powers specified in the First Part of the First Schedule and also any Magistrate appointed by the Local (now the Provincial) Government to exercise all or any of such functions or powers. Under clause (a) of the said Schedule an Additional District Magistrate is qualified to exercise all or any of the powers and functions of a Deputy Commissioner. As has already been stated, the Assistant Political Officer, North Waziristan, is also described as Additional District Magistrate.
26. As has been seen, all the areas situated within the external frontiers of Pakistan, which were not included in any of the Provinces or in the Chief Commissioner's Province of Baluchistan, were included within the Federation of Pakistan Notification No. F‑9 (170)‑F/48 of 27th of June 1950 and were declared by Notification No. F‑9 (170)‑F/48‑I of the same date to be territories in which the Governor-General exercised jurisdiction under paragraph (2) of Article 1 of the Extra‑Provincial Jurisdiction Order, 1949. As the Regulation had been made applicable to the Kurram Valley and North and South Waziristan by the 1902 and 1926 notifications above referred to, respectively, the reference made by learned counsel for the petitioners to another Notification, No. F‑9 (170)‑F/48‑II, dated the 27th of June 1950, is miscon ceived. That notification provided that all enactments made in or applied to the Chief Commissioner's Province of Baluchistan on or after the 15th day of August 1947, should, unless otherwise declared by the Agent to the Governor‑General in Baluchistan, be deemed to be in force in the territories within the borders of Baluchistan referred to in Notification No. F‑9 (170)‑F/48. The argument of the petitioners appears to be that as the Regulation was not in force in the Province of Baluchistan, it consequently did not, after the amalgamation, apply to North and South Waziristan, but, as has been pointed out, it was already in force in the latter areas and was automatically continued.
27. Coming now to the points referred to us, it will be convenient to deal first with Writ Petition No. 725 of 1960. It appears to have been assumed in the order of reference that the summons issued to the petitioners by the Political Agent, Kurram, was in exercise of the powers conferred on him by the Regulation. The petitioners have also assumed this to be the position, remarking in paragraph 16 (c) of the petition that respondent No. 1's judicial powers for the cognizance of criminal cases arise solely from the Regulation. This is, however, incorrect. Foreign Department Notification No. 1691‑F; dated the 23rd of June 1902, already referred to, lays down, vide paragraph 2 of the Part II, that the Political Agent for the time being in Kurram shall, as regards the Kurram Valley, exercise not only the powers of a Deputy Commissioner under the Regulation but also those of a District Magistrate and of a Court of Session as described in the Code of Criminal Procedure, 1898, while para graph 3 provides that in respect of all cases tried under the Code of Criminal Procedure as applied by the notification the functions of the High Court as a Court of Appeal, Reference and Revision shall be discharged by the Judicial Commissioner, North‑West Frontier Province. It is thus clear that the Political Agent, Kurram, can himself try criminal cases as a District Magistrate or as a Court of Session, as the case may be, and it cannot be assumed without proof that in the case now before us he is acting as a Deputy Commissioner under the Regulation. There is not a word in his report to suggest that he is acting in such capacity, and in fact the tenor of the report leads to a contrary conclusion. Not only does the Political Agent point out that he exercises all the powers of a District Magistrate and of a Sessions Judge within the Agency, but he makes a reference to the customary law of the Agency which, according to him, enables him to take up a: case as a Court.
28. I am, therefore, of the opinion that Writ Petition No. 725 of 1960 is not proved to fall strictly within the terms of the reference made to us, and that it is consequently unnecessary to discuss the extent of the Political Agent's powers under section 11 of the Regulation. If it should later transpire that the case is in fact being dealt with under the Regulation, the petitioners will be at liberty, subject to all just exceptions, to file a fresh petition, if so advised.
29. So far as the remaining petitions are concerned, the question referred to us concerns the scope and interpretation of section 8 of the Regulation, which runs :‑
"8 (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 consequences anticipated, and if a suit is not pending in respect of the dispute, make an order, in writing, stating the grounds of his being so satisfied referring the dispute to a Council‑of‑Elders, and requiring the Council to come to a finding on the matter in dispute after making such inquiry as may be necessary and after hearing the parties. The members of the Council‑of‑Elders shall, in each case, be nominated and appointed by the Deputy Commissioner.
(2) The order of reference made under subsection (1) shall state the matter or matters on which the finding of the Council -of‑Elders is required.
(3) On receipt of the finding of the Council‑of‑Elders under this section, Deputy Commissioner may
(a) remand the case to the Council for a further finding ; or
(b) refer the case to a second Council ; or
(c) refer the parties to the Civil Court, or
(d) pass a decree in accordance with the finding of the Council or of not less than three‑fourths of the members thereof on any matter stated in the reference ; or
(e) declare that further proceedings under this section are not required."
A perusal of the provisions of the above section immediately disposes of one of the contentions of the petitioners, namely, that the proceedings before the Issuing Officer or the Council‑of‑Elders are vitiated by the absence of a dispute likely to cause a blood‑feud etc., it being clear that the section can be invoked where either or any of the parties belong to a frontier tribe.
30. The argument of some of the petitioners that section 8 can only be pressed into service against Pathans and Baluchis is also misconceived. In the first place, North‑West Frontier Province Administration Notification No. 72, dated the 9th of April 1902, declared all persons born or ordinarily resident in the districts to which the Regulation applies or in the foreign territory bordering on those districts to the west, or in any par of Afghanistan or Baluchistan, to be subject to the whole of such sections of the Regulation as are not of general application. Section 8 was thus made applicable by the above notification to all the persons described. Secondly, Notification No. 112‑F, dated the 24th of March 1926, applied the Regulation to the tracts known as North Waziristan and South Waziristan, and did not confine its operation to any particular tribe or tribes within the tracts.
31. The contention of the petitioners that an Issuing Officer acting under section 8 of the Regulation does not possess the jurisdiction to determine the matter himself as a civil suit is unexceptionable, but the report of the Issuing Officer above referred to makes it clear that he had no intention of doing so and that after "issues" had been framed the matter would be handed over to the Council‑pf Elders. Section 8 requires the Council to come to a finding on the matters in dispute, and I see no valid objection to the Deputy Commissioner's specifying those matters by formulating them in the same manner as issues would be framed in a civil suit. Similarly, the fact that the creditors filed before the Issuing Officer what purported to be "plaints" does not, in my opinion, convert the proceedings into a civil suit, particularly in view of the statement of the Issuing officer in his report that no Civil Court in the ordinary sense exists in North Waziristan and that after "issues" are framed, the dispute is made over to the Council‑of‑Elders to come to a finding on the points involved.
32. The fact that the summonses were issued by the Deputy Commissioner and hot by the Council‑of‑Elders also cannot lead to the inference that the proceedings were to be tried as a civil suit, since the power of compelling the attendance of parties and the witnesses vests, not in the Council itself, but in the Deputy Commissioner. Section 20 of the Regulation runs:
"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."
In the cases now before us it has been pointed out in paragraph 6 above that, according to the Government of Pakistan, the use of coercive powers against the petitioners is not contemplated, the only result of their non‑attendance being that the proceedings before the Council‑of‑Elders would be ex parte.
33. There is, however, a much more serious stumbling block in the way of the petitioners. As these petitions were filed in the years 1959 and 1960, they are governed by Article 2(4) of the Laws (Continuance in Force) Order, 1958 which confines the extraordinary jurisdiction of this Court to the issue of the writs of habeas corpus, mandamus, prohibition, quo‑warranto and certiorari. In Samundar v. Crown (P L D 1954 F C 228), it was held that the Deputy Commissioner and the Commissioner appear to have been mentioned in the Regulation merely as persona designata and not as judiciary, that their orders are merely executive or administrative orders which have been made with a view to extirpating a social evil, and that consequently the Courts cannot enquire into the validity of the finding of the Council‑of‑Elders or of the orders of the Deputy Commissioner confirmed in revision by the Commissioner. It was further laid down by Cornelius, J. in the same authority that since the proceedings before the Deputy Commissioner and the Commissioner were not amenable to any rule which might be regarded as a rule of "due process" or "best evidence" it was impossible for a superior Court to apply any principles whatsoever which might possess the slightest validity for judging the correctness or otherwise of their decisions. Finally, the same learned Judge pointed out that although sections 8, 9 and 52 of the Regulation provide for reference of certain civil disputes to Councils‑of‑Elders for a finding, on the basis of which the Deputy Commissioner may award a decree in so far as the finding is not "contrary to good conscience or public policy," such a decree is no simple decree of a Civil Court of general jurisdiction but is to be regarded as essentially an instrument embodying a settlement of rights between the contestants which also satisfies the interests of public policy, by which can only be understood, in relation to an unsettled or frontier area, the general administrative policy of the Government. It is true that the above pronounce ments were made in connection with a petition for special leave to appeal to the Federal Court, which did not at that time possess writ jurisdiction, but in Muhammad Akram v. State (P L D 1963 S C 373), a further observation made in Samunder's case was quoted, namely, that "in determining whether a particular jurisdiction attracts the Crown's prerogative, it is the substance and not the appearance which would govern the decision". The learned Judges also laid down the following principle :‑
"In these circumstances, it should be obvious that for the superior Courts to interfere, whether by approval or otherwise, with the operation of the system in any case, once a case is competently drawn into the system, would be a violation of the legislative intention. All action, in the writ jurisdiction, should be confined to action in limine, that is to say, in assertion of the jurisdiction of the ordinary Courts, and in vindication of the law, to scrutinise the process by which the case, if there be one, has been, or is ought to be, diverted into the ambit of the jirga system. If the legal requisites are satisfied, that is the last contact which the Superior Courts can retain with the case, viz., by making such a declaration. All other processes taken in the disposal of the case, within the jirga system, are outside the purview of the Courts, in any of their jurisdictions."
It must be noted that although the decision in Muhammad Akram's case was given after the coming into force of the 1962 Constitution, it arose out of an order of the Peshawar Bench of this Court passed before the commencing day of the Constitution.
The case was, therefore, also governed by the Laws (Continuance in Force) Order, 1958.
34. In view of the law as declared by the Supreme Court it follows, any other decision to the contrary notwithstanding, that this Court can only interfere in the present petitions if it can be shown that the cases to which they relate were not competently drawn, or sought, to be drawn, into the Jirga system and, in my opinion, that condition has not been fulfilled. As one party to each dispute belonged to a Frontier Tribe, the Deputy Commissioner was competent to refer, or seek to refer, them to a Council‑of‑Elders under section 8 of the Regulation. The personal attendance of the petitioners cannot be considered to be a necessary pre‑requisite for the proper drawing of the dispute into the system, while any subsequent step by way of issuing process for the attendance of witnesses would, in my opinion, fall within the definition of a process taken in the disposal of cases within the system and would consequently be outside the purview of this Court in any of its jurisdictions.
35. For the above reasons my, answer to the reference would be that, in the language of the reference itself, this Court has no jurisdiction in cases falling within the orbit of the Law (Continuance in Force) Order, 1958, "to issue orders that would nullify those of authorities in North Waziristan and some other similar areas." As it further appears to have been the intention o the referring order that the petitions should be finally decided by this Bench, and as, moreover, my finding on the question involved decides their fate, I would dismiss them, but, in the circumstances, without order as to costs.
.‑I agree.
.‑I agree.
K. B. A.
Petition dismissed.
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