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Writ Petition No. 361 of 1963, decided on 12th August 1965.

‑Constitutional law‑Not retros pective in effect.

S. 11 and Constitution of Pakistan (1962), Art. 6‑Incorporation of Funda mental Rights into Constitution‑Does not obliterate entire operation of existing inconsistent law ‑Pre‑Constitution law inconsistent with Fundamental Rights ‑ Rendered void not ab initio but only with effect from date Fundamental Rights made justiciable by Constitution‑Provisions of S. 11, Frontier Crimes Regulation, 1901‑ Void from such date Sentence recorded by Deputy Commissioner and finally confirmed by Commissioner under Frontier Crimes Regulation, 1901 before Fundamental Rights made justiciable‑Cannot be called into question on ground that provisions of S. II, Frontier Crimes Regulations were ultra vires the Constitution, being inconsistent with Fundamental Rights.

Basu's Commentary on the Constitution of India, (3rd Edn.), p. 78 ; Keshaven v. State of Bombay (1951) S C R 228; Muhammad Bashir v. The Province of West Pakistan and another P L D 1958 Lah. 853 and Saiyyid Abut A'Ala Maudoodi and others v. The Government of West Pakistan and others P L D 1964 S C 673 ref.

, Ss. 11 & 12 read with Criminal Law and Procedure (N: W. F. Province Amendment) Act ' (XXVI of 1950), Ss. 3 & 9‑Convictions under Ss. 302 and 396, P. P. C. Forfeiture of accused's immovable property‑Legal.

, Ss. 11 & 12 read with Constitution of Pakistan (1962), Arts. 6 & 98‑Past transaction under Frontier Crimes Regulation, 1901 before Funda mental Rights made justiciable by Constitution‑Cannot be challenged in writ petition.

The State v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others P L D 1964 Lah. 401 rel.

, Ss. 11 & 12 Believing or disbelieving evidence‑Function of Jirga‑Conviction on evidence however meagre‑Cannot be called into question in writ jurisdiction.

Mahmud Ali assisted by Dr. A. Rahim for Petitioners.

Sher Bahadur Khan, A: A.‑G. for the State.

Dates of hearing : 27th May, 6th, 7th, 8th and 9th July 1965.

.‑This judgment would govern three writ petitions, namely, No. 361 of 1963, No. 344 of 1963 and No. 296 of 1965, in that the principal point, raised in the writ petitions, is common.

2. The common point, raised in these writ petitions, may be formulated thus :‑---

"Whether a sentence recorded by the Deputy Commissioner under the Frontier Crimes Regulation (III of 1901) and finally confirmed by the Commissioner, F. C. R. before the Fundamental Rights were made justiciable can be called in question on the ground that section 11 of the Regulation has been declared ultra vires the Constitution of the Islamic Republic of Pakistan being inconsistent with the Fundamental Rights

3. It will be convenient here to briefly state the facts culminating in these writ petitions:--

In Writ Petition No. 361 of 1963, the Deputy Commissioner, D. I. Khan, on 10‑12‑1962, referred the question of guilt or innocence of the three petitioners, namely, Alam Sher, Sona and Farid, residents of village Rangpur Bhaggor, District Sargodha, to a Jirga under section 302/34, P. P. Code read with section 11, F. C. R., for the double murder of Ghulam Hussain son of Gaman and his brother Ghulam Shabir, also residents of the same village. Consequent to the submission of the award, dated 25‑6‑1963, by the Jirga, the Deputy Commissioner, D. I. Khan, passed the following sentences, by his order, dated 15‑7‑1963:‑

(1) Alam Sher and Farid were sentenced to 14 years' R. I. each and Sona to 7 years' R. I. on two counts under section 302/34, P. P. C./section 11/12, F. C. R.

(2) The entire immovable property of the three petitioners was forfeited to the Government under section 12 (3), F. C. R.

The Commissioner, F. C. R., D. I. Khan, confirmed these sentences, by his order, dated 3‑9‑1963.

4. In Writ Petition No. 344 of 1963, the question of guilt or innocence of Khuda Bakhsh, Rab Nawaz, Muhammad Bakhsh, Elahi Bakhsh and Shah Nawaz, petitioners, residents of D. I.

Khan District, was made by the Deputy Commissioner, D. I. Khan, to a Jirga under section 302/307/149, P. P. Code/section 11, F. C. R. for the murder of Jaffar Khan and injuries of Sona Khan also residents of D. I. Khan District, by his order, dated 19‑3‑1962. On receipt of the award, dated 29‑9‑1962, from the Jirga, the Deputy Commissioner, D. I. Khan, passed the following sentences on the five petitioners, by his order, dated 1‑10‑1962 :‑--

(1) 14 years' R. I. each under section 302, P. P. Code, read with section 11/12, F. C. R.

(2) Five years' R. I. each under section 307/149, P. P. Code, read with section 11/12, F. C. R.

(3) Forfeiture of the entire property of the five petitioners to the Government under section 12 (3), F. C. R. ,

The Commissioner, F. C. R., D. I. Khan, confirmed these sentences by his order, dated 15‑1‑1963.

5. In Writ Petition No. 296 of 1965, the Deputy Commissioner, Mardan, by his order, dated 15‑3‑1961, referred the question of guilt or innocence of Qabool, Harifullah and Hassan Khan, petitioners, residents of village Katlang, Tehsil and District Mardan, for the murder of Abdul Sattar, resident of Sola Banda (Lundkhawar), Tehsil and District Mardan. The Deputy Commissioner, Mardan, accepting the award, dated 16‑1‑1962, of the Jirga, sentenced the three petitioners to 131 years' R. I. each, by his order, dated 7‑2‑1962. The Commissioner, F. C. R., Peshawar, confirmed ‑ these sentences, by his order, dated 9‑6‑1962.

6. The principal ground of attack common to all the three writ petitions is that though the convictions and sentences of the petitioners were confirmed by the Commission F. C. R. before the Fundamental Rights were made justiciable by the First Constitution Amendment Act, 1964, they are rendered illegal as a result of the First Constitution Amendment Act, 1964, on the ground that the provisions of the F. C. R., namely, section 11 is repugnant to the Fundamental Rights. In other words, it was argued that since section 11 of the F. C. R. was inconsistent with the Fundamental Rights, their convictions had become illegal, as section 11 of the F. C. R. would be "void" within the meaning of Article 6 of the present Constitution.

7. The decision of the question, propounded by us above, hinges on the interpretation of Article 6 of the Islamic Republic of Pakistan (hereinafter to be referred to as the Constitution). Article 6 (1) reads :‑

"Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void."

It will be plain from reading the language of Article 6 (1) of the Constitution that all laws at the commencement of the Constitution, which clash with the exercise of the Fundamental Rights, are to be void to that extent. The question then arises: Whether the term "void" means void ab initio. In other words, whether the provisions of the Constitution are prospective or retrospective in effect. This question need not detain us long for it is well‑established that the Constitution has no retrospective effect. This being the position, any law which is repugnant to the Fundamental Rights are not void ab initio, namely, from the very beginning, but becomes invalid only with effect from the date when the Fundamental Rights were created, i.e., 10‑1‑1964 when the First Constitution Amendment Act was passed.

8. It will be profitable here to extract the view of Dogra Das Basu, author of the Commentary on the Constitution of India (3rd Edition). At page 78, the learned Commentator, while commenting on clause (1) of Article 13, which is equivalent to Article 6 (1) of our Constitution, under the heading "Pre -Constitution Laws inconsistent with the Constitution" observed:‑--

"Hence, existing , laws which are inconsistent with any provision of part III are rendered void only with effect from the commencement of the Constitution, which for the first time created the Fundamental Rights."

The learned Commentator quoted the following passage from Keshaven v. State of Bombay (1):

"Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13 ((1951) S C R 228) cannot be read as obliterating the entire operation of the inconsistent laws, ox to wipe them out altogether from the Statute Book for, to do so will be to give them retrospective effect which, we have said, they do not possess.

It seems clear that an existing statute, in spite of the declaration by Court that it is void, remains in force till 25‑1‑50 and continues to remain on the statute book even after 26‑1‑50, except that no effect can be given to any of its provisions, which are repugnant to the fundamental rights guaranteed by the Constitution." .

The Commentator then gives the following illustration :‑---

"The appellant was tried and convicted by a Special Court, in 1949. The Act which created the Special Court took away all rights of appeal and revision but provided that :‑

The proceedings shall be submitted for review by a person nominated in this behalf by the Government . . . . . and the decision of that person shall be final' section 7 (a). While the matter was still pending before the person so nominated, the Constitution came into. force, Held, Article 14 was not applicable to invalidate the proceedings, because the proceedings had been finally concluded before the commence ment of the Constitution, but for the review specially provided by the statute."

In Muhammad Bashir v. The Province of West Pakistan and another (P L D 1958 Lah. 85) a Full Bench of this Court was required to resolve almost the very same question. The petitioner, in that case, after a finding of the Council‑of‑Elders was convicted by the Deputy Commissioner under section 302, P. P. C. and sentenced to 14 years' rigorous imprisonment on 14th March 1956. This sentence was, under the provisions of section 12 of the Frontier Crimes Regulation (III of 1901), subject to confirmation by the Commissioner, who confirmed it on 28th July 1956. Meanwhile, the late Constitution had come into force on 23rd March 1956, by Articles 4 and 5 of which sections 11 and 12 of the Regulation had been rendered invalid. The question before the Full Bench was: "whether confirmation of a sentence by the Commissioner after sections 11 and 12 of the Regulation had been rendered invalid, was illegal." The Full Bench comprising Chief Justice M. R. Kayani, B. Z. Kaikaus (as his Lordship then was) and Masud Ahmad, J. in separate but concurring judgments, held: (l) that the provisions of the constitution are prospective, and (2) that since liability to be imprisoned having been created on account of the order of the Deputy Commissioner alone, the confirmation by the Commissioner is rendered invalid. The following observations of B. Z. Kaikaus, J. at page 865, may be profitably reproduced :‑

"The question, therefore, is whether a liability to be imprisoned has been created on account of the order of the Deputy Commissioner. The liability. would be created, 'if, in case no further proceedings were taken, the petitioner would have to suffer imprisonment. But it is clear that if no further proceedings are taken, he would have to be released for there would be no executable sentence."

To put it differently, it was held that in case further proceedings were required, there would, be no executable sentence and the conviction could be challenged, because the provisions of the F. C. R. under which a conviction was recorded had become void from the date of the commencement of the Constitution.

10. We would wind up our discussion on the point that the Constitution is prospective in operation and does not affect pass transactions by quoting certain observation from the judgment in Keshawan Madhavan Menon v. The State of Bombay. Dealing with argument that Article 13 (1) of the Constitution rendered void ab initio and for all purposes an earlier law which was inconsistent with fundamental rights, it was laid down by the Supreme Court of India in that case "that such laws existed for all past transaction and for enforcing all rights and liabilities accrued before the' date of the Constitution" (Per Das, J.; at p. 234). Mahajan, J., observed at pp. 249 and 250:‑

"It is admitted that after 26‑1‑1950, there had been no infringement of the appellant's right of freedom of speech or expression. In September 1949, he did not enjoy either complete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in. Art. 19 (1) of the Constitution to the citizen that the provisions of Art. 13 (1) come into play., The Article does not declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen‑ must be possessed of a fundamental right before he can ask the Court to declare a law which is inconsistent with it void ; but if a citizen is not possessed of the right, he cannot claim this relief."

These remarks have application here.

11. We now deal with another question, which is common to Writ Petitions Nos. 361 of 1963 and 344 of 1963. The question may be formulated thus "whether the orders of confiscation of the immovable property of the petitioners were illegal "

12. Mr. Mahmud Ali Qasuri, learned counsel in Writ Petition No. 361 of 1963, tried to argue that the Frontier Crimes Regulation (West Pakistan Amendment) Ordinance, 1962 (Ordinance XII of 1962) (hereinafter to be referred to as Ordinance XII of 1962), came into force on the 19th of April 1962, and under section 3 thereof, for the first time, in case of conviction under sections 302 and 396, Pakistan Penal Code, the provision, namely, "immovable property of the accused shall be liable to forfeiture to the Government" was introduced, but since the offences, of which the petitioners in the two writ petitions were convicted, were committed long before the introduction of Ordinance XII of 1962, the forfeiture of the property of the petitioners war illegal, in that it tantamounted to creating an offence ex post facto. The learned counsel, however, conceded, that if in addition to the sentence of death or transportation for life, any amendment had been effected under the F. C. R. or by any Act, under which the penalty of forfeiture of immovable property could be awarded before the commission of an offence, of which the petitioners were charged, then the order of forfeiture could not be assailed. Unfortunately, for the petitioners, the Criminal Law and Procedure (North‑West Frontier Province Amendment) Act, 1950 (Act XXVI of 1950) (hereinafter to be called as Act XXVI of 1950, was enacted and under section 3 of that Act section 302, Pakistan Penal Code, was amended. The said section reads :‑

"Amendment of section 302.‑For the words "and shall also be liable to fine" concurring in section 302 of the Penal Code, substitute the words "and shall also be liable to forfeiture of his immovable property to the Government."

Under section 9 of the Act XXVI of 1950, section 12 of the Frontier Crimes Regulation, 1901, was amended. Section 9 reads thus :‑

"Amendment of section 12.‑To section 12 of the Regulation, add the following new subsection :‑

(3) In cases of convictions under section 302 or 396 of the Pakistan Penal Code, the immovable property of the accused shall be liable to forfeiture to the Government."

13. It will be noticed that Act XXVI of 1950, introduced amendment in section 302, Pakistan Penal Code, as also in section 12 of the F. C. R., with the result that the event of conviction of an accused under section 302 or 396, Pakistan Penal Code, he would render himself liable to forfeiture of his immovable property to the Government. Before this amendment, section 12 of the F. C. R. comprised of subsections (1) and (2), and Act XXII of 1950, added subsection (3), reproduced above.

14. Mr. Peer Bakhsh Khan, learned counsel for the petitioners in Writ, Petition No. 344 of 1963, tried to argue that since the word "also" occurring in section 302, Pakistan Penal Code, was omitted in the heading of subsection (3), section 12 of the F. C. R. by Act XXVI of 1950, forfeiture of immovable property of the accused to the Government could not be legally made.

15. The argument, in our view, is clearly misconceived for two‑fold reason : (1) because by addition of subsection (3) to section 12 of the F. C. R., the penalty of forfeiture of the immovable property of the accused in case of conviction under sections 302 or 396, Pakistan Penal Cods, was introduced, and (2) the other substantial reason for reaching this conclusion is that by adding penalty of forfeiture of immovable property under section 9 of Act XXVI of 1950, by way of amendment to section 302, Pakistan Penal Code, the penalty of forfeiture of property could be legally ordered under the F. C. R. even if subsection (3) had not been added to section 12 of the F. C. R.

16. There is yet another aspect of the case and it is that since the orders of forfeiture as also the orders of convictions and sentences had become executable before the Fundamental Rights were created, the petitioners cannot be allowed to challenge those orders on the ground, that certain provisions of the F. C. R. were ultra vires the Constitution. We need not labour this point further; suffice it to say that in the recent decision of the Supreme Court in Saiyyid Abul A'Ala Maudoodi and others v. The Government of West Pakistan and others and Th a Province of East Pakistan v. Tamizuddin Ahmad and others (P L D 1964 S C 673) it was held in clear terms:‑---

(1) that the Constitution was prospective, and (2) that the validity of acts done and completed under a law before the creation of the Fundamental. Rights could not be called in question. We may profitably extract the following observations of Hamoodur Rahman, J. at page 785 :‑

"Another reason for my holding this view is that in the absence of anything in the Constitution to show that its provisions are to have retrospective effect, the conflict with existing laws can arise only from the date the declaration of fundamental rights comes to be embodied into the Constitution. Hence by using the word "void" in clause (l) of Article 6 of the Constitution did not intend to repeal the law that had already been validly made but merely to render it inoperative in future. That law would still be operative in respect of rights, obligations and liabilities already accrued and the validity of acts done and completed under it whilst it was a valid law in force would still have to be determined according to that law. The use of the word "void", therefore, does not produce the result of obliterating the inconsistent provisions of the existing law altogether from the statute book, but all that happens is that in enforcing a fundamental right the High Courts will not give effect to any of the provisions of the existing law in so far as they are inconsistent with the fundamental rights guaranteed by the Constitution."

(Note.‑The italicised are ours)

Continuing further, his Lordship observed :‑---

"This brings me to the question as to whether, if the provisions of the Constitution are not retrospective, can an act done before the commencement of the Constitution (First Amendment) Act be still called into question on the ground that it now affects a fundamental right. There can be no doubt that acts done and completed before the coming into existence of the fundamental rights cannot be re‑opened on the ground of inconsistency, nor can proceedings already commenced be stopped. Thus if a person has been convicted and sentenced prior to the coming into existence of the fundamental rights under a law which now contravenes a fundamental right, his conviction cannot be set aside on that ground, because, the right had already been taken away and extinguished before the constitutional guarantee became available."

17. Mr. Mahmud Ali Qasuri next argued that the conviction of the petitioners was rendered invalid, in that Mr. Abdur Rashid Khan had taken over as Commissioner, D. I. Khan Division, on the 27th of May 1963, after the Frontier Crimes Regulation had been repealed, and there had been no notification under which he had been designated as Commissioner F. C. R. by the Provincial Government, as contemplated by the Frontier Crimes Regulation (West Pakistan Amendment) Ordinance, 1962 (Ordinance XII of 1962), hereinafter to be referred to as Ordinance XII of 1962, under which the term Commissioner' or Court of Commissioner' means the Provincial Government or such officer or officers as the Provincial Government may appoint in this behalf. To put it differently, it was argued that when Ordinance XII of 1962, came into force with effect from the 19th of April 1962, there should have been a fresh notification by the Provincial Government, empowering Mr. Abdur Rashid Khan to act as Commissioner, F. C. R.

18. To resolve this question, it will be necessary to refer to various amendments made in the term Commissioner' or Court of Commissioner'. Vide section 3 and entry No. 2 of Article II, 1st Schedule, to the North‑West Frontier Province Law and Justice Regulation, 1901, all references to the Commissioner or the Court of the Commissioner in the original text of the F. C. R., 1901, were to be read as referring in the North‑West Frontier Province to the Chief Commissioner or such officer as the Chief Commissioner may appoint in this behalf . . . . Subsequently, by the Government of India (Adaptation of Indian Laws) Order, 1937, the expression Chief Commissioner' was replaced by "Provincial Government . . . . . Thus, the position today is that the original powers of the Commissioners and the then Chief Commissioner, under the F. C. R., 1901, in its application to the former North‑West Frontier Province, are exercisable generally by the Provincial Government or such officer as it may appoint in that behalf. The Provincial Government now means the Provincial Government of West Pakistan by virtue of the provisions of section 3 (4) (i) of the West Pakistan (Adaptation and Repeal of Laws) Act, 1957.

19. Mr. Sher Bahadur Khan, Additional Advocate‑General met the argument of Mr. Mahmud Ali Qasuri, in regard to the objection that Mr. Abdur Rashid Khan had not been designated as Commissioner, F. C. R. by drawing our attention to a Gazette Notification No. 1/160‑H (SOI)TA/60m, dated the 18th November 1960, of the Government of West Pakistan in the Home Department. The said notification reads thus :‑---

"In exercise of the powers, conferred on him by the entry in column 4 opposite to the entry "The Frontier Crimes Regula tion, 1901 "occurring in column 3 of Part II of the First Schedule to the North‑West Frontier Province Law and Justice Regula tion, 1901 (VII of 1901), read with section 3 thereof and in supersession of the West Pakistan Government, Home Department, Notification No. 1/60‑H (SOI) TA/60, dated the 29th September 1960, the Governor of West Pakistani is pleased to appoint each officer mentioned in column 2 of the Schedule annexed hereto against Serial Nos. 1 and 2 thereof to be the Commissioner for the purposes of the Frontier Crimes Regulation, 1901, except sections 21 and 22, in the areas mentioned in column 3 thereof :‑

20. It will be manifest from reading the notification reproduced above, that the Commissioner, D. I. Khan Division, had been designated as Commissioner for the purposes of th Frontier Crimes Regulation, 1901, in regard to the districts of Dera Ismail Khan and Bannu. Since the Commissioner of D. I. Khan division was designated to be the Commissioner for the purposes of the Frontier Crime Regulation, there was no need of fresh notification, designating Mr. Abdur Rashid Khan by name or by designation as a Commissioner, F. C. R., in that he, as a Commissioner, D. I. Khan, had already been empowered to act as a Commissioner, F. C. R.

21. There is another aspect of the case, which clinches the argument, raised on behalf of the petitioners, that Mr. Abdur Rashid Khan, Commissioner, D. I. Khan Division, should have been designated as a Commissioner, F. C. R. Section 6 of Ordinance XII of 1962, provides complete answer to the argument, in that the said section, which is reproduced below validates the proceedings :‑---

"6. Validation of actions taken in certain areas.‑The said Regulation as applicable to the areas specified in the Schedule to the 14th day of February 1962, shall be deemed to have continued in force in the said areas on and from the 15th day of. February 1962, to the date of commencement of this Ordinance, and everything done, action taken, right, privilege, obligation, liability, penalty or punishment acquired, accrued or incurred, or proceedings commenced, officer appointed or person authorised, jurisdiction or powers conferred, rule made and order issued under any of the provisions of the said Regulation shall be deemed to have been validly done, taken, acquired, accrued, incurred, commenced appointed, authorised, conferred, made or issued and shall be continued."

22. Mr. Mahmud Ali Qasuri also attacked the convictions of the petitioners on the ground, that the Frontier Crimes Regulation was extended to the district .of Sargodha on the 26th April 1962, but since the alleged double murder had taken place on the 19th April 1962, i.e., before the F. C. R. was extended to the district of Sargodha the petitioners could not be tried under the F. C. R. The point stands concluded by the unreported decision of the Supreme Court dated 17‑6‑1962, in petition for Special Leave No. 185 of 1962, Masood Ahmad v. The Deputy Commissioner, Sargodha and The State, in which precisely the same argument was repelled. Hamoodur Rahman, J., delivering judgment for the Supreme Court, expressed himself in the penultimate para. thus :‑

"The argument that the amendments introduced by the Notifications of the 26th of April 1962, and 7th of May 1962, could not have been applied retrospectively is also without force and misconceived."

23. This brings us to the last argument, raised by Mr. Mahmud Ali Qasuri, found on the observations in the decision of the Supreme Court in the State v. Nawab Gul and The State v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others (P L D 1964 Lah. 401) in which it was held that reference to a Jirga not expedient where facts "do not constitute a case at all, e.g., where only evidence is that of motive". This argument also admits of a short answer, and it is that the past transactions under the F. C. R. before the Fundamental Rights were created cannot be called in question. Again, a perusal of the award will clearly reveal that it is not at all a case of no evidence, but conversely, there is some legal evidence to connect the accused with the crime. The question, whether the quality or quantity of evidence was sufficient to sustain a conviction in a criminal Court is altogether a different matter, in that it was for the Jirga to believe or not believe that evidence, and so long as there was some legal evidence, however meagre it might be, the conviction cannot be called in question in the writ jurisdiction.

24. For all the foregoing reasons, there is no merit in any one of the writ petitions, which are dismissed. No order as to costs.

K. B. A. Petition dismissed.

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