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Writ Petition No. 54 of 1963, decided on 26th June 1964.
Art. 98‑Order of District Magistrate passed in violation of S. 42, Frontier Crimes Regulation (I of 1901)‑High Court has jurisdiction under Art. 98 to consider validity of order.
Muhammad Akram v. The State P L D 1963 S C 373 and Samundar v. Crown P L D 1954 F C 228 ref.
Sardar Nawab Haji Muhammad Khan v. Additional Commissioner, F. C. R. P L D 1964 Lah. 401 fol.
Ss. 40 & 42‑Dis trict Magistrate passing impugned order under S. 40 on vague allegation of "indulgence in loose talk" against accused without (i) furnishing him particulars of allegations and (ii) allowing cross -examination of witnesses ‑ Order illegal being in violation of S. 42.
Yahya Bakhtiar for Petitioner.
Ataullah Sajjad, Additional A. G. assisted by Basharatullah for Respondents 1 and 3.
Date of hearing: 18th June 1964.
The petitioner, who is the cousin of the detenue, has moved this application under Article 98 of the Constitution for a writ of habeas corpus, on the ground that Mulla Saadullah, son of Mullah Khair Muhammad, resident of Jalawan Sub‑Division, is held in custody without lawful authority or in an unlawful manner. It has arisen in the following circumstances.
2. On 30‑10‑1962, a case was registered against the said detenue under section 40, F. C. R. and a show‑cause notice was issued to him on 6‑11‑1962 to execute a bond in the sum of Rs. 50,000 (Rupees fifty thousands) with ten sureties for keeping good behaviour for a period of three years on the allegation that his activities "are subversive and prejudicial to State and its public". On 11th November 1962 the detenue was produced before the Extra Assistant Commissioner and A. D. M., Quetta Division, respondent No. 2 and submitted a written statement. In this statement the detenue denied the allegations against him and alleged that the show‑cause notice was improper and illegal. He further submitted that the allegation made in the notice was vague and did not show any specific offence committed by him and expressed his desire to cross‑examine the witnesses, on whose information the show‑cause notice was issued. He further request ed that he may be given permission to be represented by a counsel. The learned Magistrate, being dissatisfied with the explanation furnished by the detenue passed the following order on '3rd November 1962.
"The brief facts of the case a5 alleged b) the police are that the respondent indulges in loose talk about the State and its public. That he contacts members of the N. A. P. on one pretext or other, and is an active worker of that party, hence he may be dealt with under section 40, F. C. R.
Notice under section 40 issued to the respondent to show cause within seven days as to why he should not execute bonds in the sum of Rs. 50,000 with ten sureties for keeping good beha viour for a period of three years towards the State and its public. He has replied to the notice denying the allegations of being prejudicial to the interest of the State and its public.
The circumstances explained by the respondent in his written reply are not so convincing as to shift the responsibility placed on him Thus I order under section 40,1. C. R., that Mulla Saad ullah, respondent shall furnish securities in the sum of Rs. 50,000 with ten sureties for keeping good behaviour towards the State and its public for a period of three years.
Since the detenue failed to furnish the required securities the learned officer further passed the following order on the same date:‑
"The respondent is present. He has failed to furnish the required securities. I order under section 44, F. C. R. that he shall be committed to prison for a period of three years or until he furnishes the same. The term of imprisonment shall be rigorous. File to be consigned to records."
The present petitioner has challenged this order in this writ petition.
3. Mr. Yahya Bakhtiar, the learned counsel for the peti tioner has urged that the impugned order is illegal, because the procedure laid down under section 42 of the F. C. R. was not followed by the learned Officer before taking action under section 40, F. C. R. He further contended that the case against the detenue is not covered by section 40, F. C. R. and the impugned order is illegal for that reason. It was also contended that the amount of security demanded from the detenue was excessive and the learned officer has misused the provisions of the Frontier Crimes Regulation in confining the detenue in Jail.
4. In order to appreciate the contention of the detenue, it will be proper to reproduce the provision of law under which res pondent No. 2, took action against him. The relevant provision of law is section 40, F. C. R. which is reproduced below:‑
"40 (1) Where the Commissioner or the Deputy Commissioner is of opinion that it is necessary for the purpose of preventing murder, or culpable homicide not amounting to murder, or the dissemination of sedition, to require a person to execute a bond for good behaviour or for keeping the peace, as the case may be, he may order the person to execute a bond, with or without sureties, for his good behaviour or for keeping the peace, as the case may be, during such period not exceeding three years, as the Commissioner or Deputy Commissioner, as the case may be, may fix.
(2) The Deputy Commissioner may make an order under sub section (1)
(a) on the recommendation of a Council‑of‑Elders, or
(b) after inquiry as hereinafter provided.
(3) Where a person has been convicted in accordance with the finding of a Council‑of‑Elders of an offence mentioned in section 106 of the Code of Criminal Procedure, 1898, or punish able under section 302, section 304, section 307 or section 308 of the Pakistan Penal Code, the Deputy Commissioner at the time of passing sentence, or the Commissioner at the time of revision, the sentence, may make an order, under subsection (1) with respect to that person.
(4) Where the Deputy Commissioner makes an order under subsection (1) on the recommendation of a Council‑of‑Elders, he shall record his reasons for acting on the recommendation.
(5) Where the Commissioner or the Deputy Commissioner is of the opinion that sufficient grounds exist for making an order under subsection (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 Pro cedure, 1898, during such term, not exceeding three years, as may be specified in the order."
It will be noted that the action under the above‑mentioned provi sion of law is taken only in those cases in which the officer referred therein is of the opinion that it is necessary to do so for the purpose of preventing murder or culpable homicide not amount ing to murder, or the dissemination of sedition, and not on any other ground. It would appear from the impugned order that the allegation against the detenue was that he "indulges in loose talks about the State and its public" and that "he contacts mem bers of N. A. P. on one pretext or other and is an active worker of that party".
5. Mr. Yahya Bakhtiar, the learned counsel for the petitioner contended that under section 40, F. C. R. it is not permissible to take any action against a person simply because he happened to be a member of any political organisation. He further contended that even if a person happens to be a member of an unlawful Association, which of course is not alleged in this case, such case would not fall under the provision under consideration. In my opinion, the contention of the learned counsel is not without substance for even if a party is found to be associating with a political organisation, no action can be taken against him, for that reason. If the impugned order had been passed on that ground alone I would have held it as illegal and unsustainable.
6. It will, however, appear that the action against the detenue was also, taken on the further ground that he used to indulge in loose talk about the State and its public. It cannot be denied that loose talk can also be of objectionable nature which may tantamount to an offence of sedition. In such cases the Administration would be quite within its jurisdiction to take action under section 40, F. C. R. for the purpose of preventing the dis semination of sedition and may demand from the offender to execute a bond for good behaviour. It is, therefore, not possible to accept the petitioner's contention that on the alleged allegations no action could be taken against him under the above‑mentioned provision of law. This contention is, therefore, repelled.
7. The next question for consideration is whether in passing the impugned order the learned officer followed the provisions of section 42, of the F. C. R. which is in the following terms:‑
"42. (1) An enquiry for the purpose of section 40, subsec tion (2), or section 41, may be conducted, so far as may be necessary, out of the Court:
Provided that a person from whom it is proposed to require a bond under section 40, or the principal members of a family or faction from which it is proposed to require a bond under section 41, shall be given an opportunity of showing cause in Court why a bond should not be required, and of having his or their witnesses examined there, and of cross‑examining any witness not called by himself or themselves who may testify there to the necessity or otherwise for the execution of a bond.
(2) Sections 112 and 117 of the Code of Criminal Procedure, 1898, shall not apply to an inquiry under this section, but the Deputy Commissioner shall record his order with the reason for making it":
At this stage it may be mentioned that this is not one of those cases in which the impugned order was passed on the recommen dation of the Council‑of‑Elders. In such case no enquiry is contemplated. On the other hand in the present case the competent authority took action against the petitioner on the opinion formed by him on the basis of certain information placed before him. It is correct that in such cases the inquiry con templated is to be conducted out of the Court. But this is only in the preliminary stage. The moment the competent autho rity decides to call upon a person to execute a bond for good behaviour, it is essential under the last mentioned provision of law to afford him an opportunity of showing cause in Court against the proposed order. The competent authority is further required to give him the facility of defending himself by adducing evidence and to cross‑examine the witnesses on whose information the action is proposed to be taken against him.
8. It is in the context that the objection of the petitioner is to be considered. His grievance is two‑fold. In the first place his objection is that he was never furnished with the particulars of the loose talk. Secondly that he was not afforded an oppor tunity to cross‑examine the witnesses who may testify in Court to the necessity for the execution of the bond. These witnesses could be none else but those on whose information the action was proposed to be taken. I find much force in this grievance. With the aid of the learned counsel for the parties, I have gone through the file of the case in which the impugned order was passed. Except a secret report received from the Superintendent of Police, C. I. D., Quetta, dated 24‑10‑1962, there is no other data available on the record. In this report no particulars of the alleged loose talk are given. It is only stated therein that "he was warned by the Deputy Commissioner, Kalat for indulging in loose talk". No further enquiry was held. In spite of the request of the peti tioner he was not afforded any opportunity to cross‑examine the witnesses on whose information the impugned action was taken. In these circumstances I have not the slightest hesitation in hold ing that the impugned order was passed in utter disregard of the provisions of law applicable to this case. The contention of Mr. Yahya Bakhtiar that the petitioner has been detained on vague allegation is well founded. In my view the impugned order is liable to be set aside for these reasons.
9. It was, however, contended by the learned Additional Advocate‑General that the omission if any is merely an irregularity and this Court is not competent to interfere with the impugned order on this ground. In support of his contention the learned counsel referred to the decision of the Supreme Court of Pakistan in the case of Muhammad Akram v. The State (P L D 1963 S C 373). In reply Mr. Yahya Bakhtiar referred me to a decision of the Full Bench of this Court in the case of Sardar Nawab Haji Muhammad Khan v. Additional Commissioner, F. C. R. (P L D 1964 Lah. 401). In that case a Full Bench of this Court at Lahore held that the provisions of Article 98 are much wider in scope than those provisions under which the High Court in Pakistan, formerly used to exercise its writ jurisdiction, with the result that the superior Courts now exercise a wider juris diction than that enjoyed by the Federal Court in Samundar v. Crown (P L D 1954 F C 228) or by the Supreme Court in Muhammad Akram's case. It was, therefore, held that even after a case has been properly drawn into the Jirga system, Article 98 of the Constitution of Pakistan (1962) confers jurisdiction on the High Court to interfere if the mandatory requirements of the Frontier Crimes Regulation, 1901 or of any Rules framed under section 62 thereof have been violated. In view of this decision the power of this Court to consider the validity of the impugned order cannot be doubted.
10. I have already observed that the learned Additional Dis trict Magistrate in passing the impugned order did not follow the procedure laid down in section 42, F. C. R, Neither the petitioner was furnished with the particulars of the allegations against him B nor was lie allowed to cross‑examine the witnesses on whose infor mation action was taken against him under section 40, F. C. R. In these circumstances, the impugned order . . . . . .Order is illegal and cannot be upheld.
11. Accordingly I would quash and set aside the impugned order. The learned Extra Assistant Commissioner and A. D. M., Quetta is directed to proceed against the petitioner after notice to him in accordance with law. In view of the fact that the petitioner has been confined in Jail for about two years under an illegal order, he is allowed to be released on bail in the sum of Rs. 5,000 (Rupees five thousands) with one surety to be furnished to the satisfaction of the Superintendent of this Court at Quetta. The bail bond will only be for appearance before the Court concerned and will remain into operation till a final order is passed by the Competent Authority.
12. In the result, subject to the above remarks, the petition is allowed. The respondent will bear the costs of these proceedings.
S. Q. Petition allowed.
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