Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Writ Petition No. 51 of 1968, decided on 3rd December 1968.
, S. 50‑Commis sioner in exercise of his revisional powers enhancing sentence with out giving show‑cause notice and opportunity of hearing to accused --- Order, held, illegal.
In spite of the absence of any statutory provision, the Com missioner in exercise of his revisional powers under section 50 of the Frontier Crimes Regulation, 1901 cannot validly enhance the sentence imposed by the Deputy Commissioner without notice of show-cause to the person sentenced. To do otherwise would be clearly in violation of the principles of natural justice.
Abdul Nabi and others v. Commissioner, F. C. R., Quetta and another P L D 1962 Quetta 1 rel.
State and others v. Qazi Khanzada Criminal Appeal No. 39 of 1965 distinguished.
, S. 50 read with Legal Practitioners and Bar Councils Act (Ill of 1965), S. 22(2)‑Proceedings under F. C. R.‑Regulation contains no provision against counsel's right to appear ‑ Accused entitled as of right to be represented by counsel before Commissioner acting under S. 50, F. C. R.‑View that Common Law does not entitle litigants to be represented by counsel before tribunals, held, not correct ‑ Commissioner dismissing revision petition under S. 50 seeking permission to be represented by counsel‑Order of Commis sioner, held, illegal.
The statutory right to be represented by counsel conferred by the Legal Practitioners and Bar Councils Act, 1965 cannot be defeated by past practice based on legislation (Legal Practitioners Act, 1879) that has been repealed, nor can it be said ‑any longer that appearance by counsel would defeat the object of trial by Jirga. The method of trial by Jirga is substantially similar to the provisions of the West Pakistan Criminal Law Amendment Act, 1963. As counsel are entitled to appear in proceedings under that Act, it cannot now be contended that the policy of the F. C. R., 1901 would be defeated if counsel were allowed to appear in the proceedings under the Regulation.
The view that the Common Law does not entitle the litigant to be represented by counsel before tribunals is not correct, and the Legislature has now given statutory recognition to the Common Law principle by prescribing in the Legal Practitioners and Bar Councils Act, 1965 that counsel shall be entitled to appear before all tribunals.
State v. Khanzada Criminal Revision No. 39 of 1965 and Amir Khan v. Commissioner, Quetta P L D 1962 Quetta 140 held not applicable.
Samundar Khan v. Commissioner, F. C. R. P L D 1954 F C 228; T. R. Ayyangae, Collector of Salt Revenue A I R 1937 Mad. 735; Queen v. Mansel Jones (1889) 23 Q B D 29; Prince Bulcher Ex parte: Debtor (1931) 2 Ch. 70;Maclean v. Workers' Union 1929, 1 (602) and Pett and Grayhound Racing Association (1968) 2 All. E R 545 ref
, Ss. 2(b) & 11 and First Sched., Part I, cl. (b)‑Magistrate not invested with powers of Additional District Magistrate on relevant date‑Reference of case to Council‑of‑Elders (Jirga) by such Magistrate, held, illegal and proceedings taken in pursuance of such order, held, without lawful authority.
, S. 11‑Order of Magistrate referring case to Council‑of‑Elders not stating that it was "inexpedient to try accused in ordinary Court"‑Order, held, illegal.
Hamesh Gul v. Crown P L D 1955 Pesh. 6 and Sabs Ali v. Government of West Pakistan P L D 1956 Lah. 686 ref.
Khan Abdul Akbar Khan v. The Deputy Commissioner, Pesha war P L D 1957 Pesh. 100 and Muhammad and another v. Divi sional Commissioner, Hyderabad Division P L D 1966 Kar. 424 rel.
, Ss. 121‑A, 122, 123 & 124 and Criminal Procedure Code (V of 1898), S. 196 ‑ Deputy Commissioner acting under F. C. R. convicting accused of offences under Ss. 121‑A, 122, el. 123 & 124‑A, P. P. C. without obtaining sanction of Provincial Government to prosecute accused in terms of S. 196, Cr. P. C. Trial and conviction, in circumstances, held illegal‑Deputy Com missioner or Commissioner acting under F. C. R., held, "Court" in general sense.
The considerations on which section 196, Cr. P. C. is based are equally applicable to the tribal areas as to the other parts of West Pakistan, and the fact that justice in the tribal areas is administered through the institution of the Jirga, does not, make any differences to the applicability of section 196.
Samundar Khan v. Commissioner, F. C. R. P L D 1954 F C 228 ref.
Hamesh Gul v. Crown P L D 1955 Pesh. 6; Muhammadali v. The State P L D 1964 P esh. 270 and Babu Khair Muhammad v. Malik Hayatullah and others Criminal Case No. C/164‑Jirga of 1954 fol.
, Art. 98‑ Writ‑Certiorari and habeas corpus, writs of‑Distinction‑Habeas corpus petition- Could not be defeated by plea of waiver or acquiescence.
Under the Common Law, there is a distinction between a writ of certiorari and a writ of habeas corpus, the former is a discretionary writ so that the conduct of the petitioner is relevant, whilst the latter affects the liberty of the subject and is issued of right as soon as the detention of the petitioner is proved to be illegal.
It is true that Article 98 has abolished the forms of writs, but it does not mean that this has altered the principles on which the Courts will grant relief.
The principles on which relief in the nature of certiorari may be refused may not be applicable to petitions for habeas corpus.
The trial and conviction of petitioner by Jirga and the Deputy Commissioner under the F. C. R., 1901 was found as illegal and without lawful authority. In writ petition under Article 98 it was contended that since the accused had appeared before the Jirga and the Deputy Commissioner etc. he was estopped from disputing the legality of proceedings because he had failed to record his objections at relevant time.
Held: "lie had no choice except to appear before the E. A. C., the Jirga and the Deputy Commissioner, and it cannot be argued that he deliberately allowed these authorities to usurp jurisdiction, and therefore he is not barred from showing in this Court that all the orders passed against him are illegal".
Mohiuddin v. The Chief Settlement Commissioner P L D 1964 S C 829; The King v. Williams and others Ex parte : Philips (2) and Writ Petition No. 59 of 1963 (Quetta Circuit) distinguished.
Muhammad Afzal v. Board of Revenue P L D 1967 S C 314 Yahya Bakhtiar for Petitioner.
Muhammad Haleem, Asstt. A: G. for Respondents.
Dates of hearing : 9th, 10th, 11th, 12th and 14th October 1968.
The petitioner is the Naib of Mir Akbar Khan Bughti, who is the Tribal Chief of the Bughti Tribe, and is in detention. On 14th May 1968 Wadera Nihal Khan filed a complaint against the petitioner before the learned Extra Assistant Commissioner, Bughti Sub‑Division (hereinafter called the E. A. C.) in which 'he made allegations against the petitioner of offences under sections 121‑A, 122, 123 and 124‑A of the Pakistan Penal Code. The allegations against the petitioner were that Mir Akbar Khan Bughti had met the petitioner in Quetta and Dera Bughti, that on behalf of the said Mir Akbar Khan Bughti, the petitioner had conveyed messages and instructions to absconders and anti‑social elements and supplied them arms and ammunition to enable them to wage war against the Government. The complaint further stated that the petitioner had been spreading false rumours against the Government. In this respect the complainant said that he had been an absconder himself and while he was an absconder, he had received messages from and was aware of the petitioner's activities against the Government. 'This complaint was supported by his affidavit, and the complainant produced three witnesses in support of the complaint, namely, Faiz Muhammad, Bungo and Mohabat Khan. The E. A. C. examined these witnesses on the 14th May 1968 and passed an order for the examination of petitioner. The E. A. C. examined the petitioner on 1st June 1968. The petitioner denied all the allegations against him. He said that he was merely looking after the estate of Mir Akbar Khan Bughti and that he had nothing whatsoever to do with the political activities of his employer. He was questioned by the E. A. C. about his meetings with out‑laws. He said that he 'had gone to Langhar on his employer's instructions, after obtaining the permission of the E. A. C. that he had met some absconders at Langhar, but he denied that he had conveyed any messages or instructions to them as alleged. He further said that one Mewa Khan, who belonged to the Nothani Tribe, shared some land with the Bughtis, that he had to be given his share of the crops of said land and that he had given Mewa Khan his share of the crops. The E. A. C. did not accept his explanation, therefore on the same day, he referred the complaint against the petitioner under section 11 of the Frontier Crimes Regulation, 1901 (hereinafter called the Regulations) to a Council‑of‑Elders, (hereinafter called the Jirga which is the term by which the Council‑of‑Elders is popularly known). The E. A. C. framed the following questions for the Jirga
(1) Did Khena accused commit the following offences
(a) Whether help was given to wage war against the Government of Pakistan
(b) Whether arms and ammunition were supplied to the absconders and anti‑social elements with an intent to wage war or have the war waged against the Government of Pakistan.
(c) Whether through any unlawful act or omission, any design or plan which was for the purpose of waging war against Pakistan has been concealed with the intention that there be a furtherance of the design of war so intended.
(d) Whether by any talk or rumours through words spoken the Government of Pakistan has been drawn in hatred or any attempt therefor has been made.
The Jirga was selected on the 2nd of June 1968, and on the same date, they heard the complainant and his witnesses, and the petitioner. After careful consideration of the evidence, they found the petitioner guilty on all counts and referred their findings to the E. A. C. The complainant accepted these findings, but the petitioner filed his objections before the E. A. C. After considering these objections, the E. A. C. referred the petitioner's objections to the Jirga and after carefully considering these objections, the Jirga rejected them, informing the E. A. C. accordingly. Thereafter, the E. A. C. referred the case for orders to the Deputy Commissioner, and the Deputy Commissioner accepted the findings of the Jirga and sentenced the petitioner to 7 years' R. I. All these proceedings took place on the 2nd June 1968.
2. Thereafter on 8th August 1968, the petitioner filed a Revision Application against the orders of the Deputy Commissioner before the Commissioner, Quetta Division, under section 50 of the Regulations. The petitioner also filed a bail application with his Revision Application, and another application that as his Revision Application raised complicated questions of law, he should be heard by counsel. By his orders dated 17th September 1968, the Commissioner, Quetta Division dismissed all these applications and enhanced the sentence against the petitioner from 7 years' R. I. to 14 years' R. I. The petitioner has therefore filed a petition under Article 98 of the Constitution challenging the orders of the Commissioner dated 17th September 1968 and the orders of the Deputy Commissioner dated 2nd June 1968.
3. I shall first consider the validity of the orders of the Commissioner dated 17th September 1968. Learned counsel for the petitioner has argued that these orders are illegal on three grounds. Firstly, the Commissioner acted illegally in enhancing the sentence passed by the Deputy Commissioner without giving the petitioner a show‑cause notice. Secondly, the learned Commissioner acted illegally in dismissing the petitioner's application to be heard by counsel. Thirdly, the order of the Commissioner dismissing the petitioner's Revision Application is not based on any evidence.
4. I shall first consider learned counsel's objection that the Commissioner's order enhancing the sentence passed against the petitioner by the Deputy Commissioner is illegal, because the Commissioner did not give the petitioner a show‑cause notice. The provisions of section 50 of the Regulations, under which the Revision was filed, state as follows :‑
"50. The Commissioner, may, in the exercise of his revisional jurisdiction in any criminal proceeding, exercise the power to direct tender of pardon conferred by section 338, and any of the powers conferred on an Appellate Court by sections 195, 423, 426, 427 and 428 of the Code of Criminal Procedure, 1898, and may also enhance any sentence Provided that nothing in this Chapter shall be deemed to authorise the Commissioner to set aside the finding on any question of fact of a Council‑of‑Elders, where such finding has been accepted by the Deputy Commissioner, unless he is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice."
The provisions of this section have been construed by a Division Bench of this Court in Abdul Nabi and others v. Commissioner, F. C. R., Quetta and another (P L D 1962 Quetta 1). The facts of Abdul Nabi's case were that the petitioner in that case had been sentenced to a fine by the Deputy Commissioner. Therefore the complainant had filed a Revision before the Commissioner under section 50 of the Regulations. The petitioner accused, who was aware of this revision, had filed a rejoinder. The Commissioner allowed the revision of the complainants and sentenced the accused petitioner to jail without giving him a show cause notice. In setting aside the order of the Commissioner, Mr. Justice Faruqui, who delivered the judgment of the Division Bench, stated at page 5 as follows:‑
"Having regard to the fact that an accused person in these proceedings can be sentenced to long terms of imprisonment for a substantive offence and a light sentence passed on him can be substantially enhanced, as happened in this case, we are clearly of the view that in spite of the absence of any statutory provision such an order could not have been validly passed without notice to the person who was to suffer under it. To do otherwise would be clearly in violation of the principles of natural justice. The fact that the petitioners had voluntarily submitted a rejoinder is of no consequence. In fact, in the order of the learned Commissioner there is no reference of this rejoinder, and we do not know whether he even read it. We are further of the opinion that in a case such as the one before us, in which the sentence passed by the Deputy Commissioner was sought to be substantially enhanced in the revisional jurisdiction, the Commissioner was bound to afford an opportunity to the petitioners for a personal hearing."
These observations fully support the case of the petitioner.
5. However, the learned Assistant Advocate‑General submitted that this judgment had been overruled by an unreported judgment of the Supreme Court in State and others v. Qazi Khanzada Criminal Appeal No. 39 of 1965. The facts in that case were that the accused had been convicted by the Deputy Commissioner under section 11 of the Regulations, therefore, he had filed a revision before the Commissioner which was dismissed without hearing him personally or his Advocate. The accused had filed a petition in this Court against this dismissal of his revision which was allowed. Thereupon the State had filed an appeal to the Supreme Court. The contention of the State was that, as the Commissioner had dismissed the revision of the accused without enhancing the sentence passed against him, he was not entitled to be heard in person or through his Advocate, in view of the provisions of sections 439 and 44Q of the Criminal Procedure Code. The effect of sections 439 and 440 of the Criminal Procedure Code is that no person is entitled to be heard in a revision application in any Court, except when the Court wishes to enhance the sentence passed against that party. The Supreme Court held that, as the Commissioner had merely armed the orders of the Deputy Commissioner, the provisions of section 440 of the Criminal Procedure Code were applicable, therefore the accused was not entitled to be heard in person or through his Advocate. In the instant case, the learned Commissioner has not only dismissed the revision of the petitioner, but has enhanced the sentence passed against him from seven years to fourteen years, therefore the judgment cited is distinguishable, and does not overrule the judgment of the Division Bench of this Court in Abdul Nabi and others v. The Commissioner, F. C. R., Quetta. I am in respectful agreement with the judgment of the Division Bench, by which I am bound, and accordingly I hold that the Commissioner acted illegally in enhancing the sentence against the petitioner without hearing him or giving him a show‑cause notice.
6. The next question for consideration is whether the petitioner was entitled to representation by counsel before the learned Commissioner. The provisions of section 50, which I have quoted, are silent on the question whether the petitioner could be represented by counsel. The learned Assistant Advocate -General has argued that the provisions of the Regulations are of such a nature that by necessary implication, they exclude the rights of parties to be represented by counsel. In this connection, he relied on judgment of the Federal Court in Samundar Khan v. Commissioner, F. C. R. (P L D 1954 F C 228). The facts in Samundar Khan's case were that the petitioners had been sentenced under the Regulations for the abduction of girls by the Deputy Commissioner, and their Revision Application before the Commissioner under section 50 had likewise been dismissed. Therefore they had filed petition for special leave of appeal in the Federal Court against the orders of the Commissioner. The question before the Federal Court was whether it could entertain an appeal from the orders of the Commissioner, and this depended upon the question whether the Commissioner could be considered to be a Court or not. At page 235 of the judgment Cornelius, J. (as he then was) considered the provision of the Regulations and observed :‑
"On a careful consideration of the statutory provisions, and the procedure actually followed in enquiries of this nature, I am satisfied that if the ascertainment of the Commissioner of an act, falling within one or more of the definitions of offences contained in the Penal Code, by the mode prescribed in section 11, Frontier Crimes Regulation can be regarded as a mode of Justice at all, it is certainly not such a mode as is operated through the ordinary Courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among, the agencies of the general administration."
As their Lordships held that the Commissioner acting under section 50 of the Regulations could not be said to be a Court stricto senso, they dismissed the petition. It is true that in dismissing the petition, Mr. Justice Cornelius has made observations about the very arbitrary nature in which proceedings under the Regulations can be conducted. But these observations were in reference to the question whether the Commissioner could be treated as a Court stricto senso or not. The question of representation by counsel did not arise for consideration. However, as the Federal Court referred to the proceedings before the Commissioner as proceedings before an Administrative Tribunal, the learned Assistant Advocate‑General submitted, on the basis of the Legal Practitioners Act, 1879, that counsel could not appear in any proceedings under the Regulations. Under the Legal Practitioners Act, 1879, counsel could only appear in the High Court or Courts subordinate to the High Court, therefore as the Tribunals under the Regulations were not subordinate to the High Court, it followed that as long as the Legal Practitioner's Act, 1879 was in force, parties could not be represented by counsel in any proceedings under the Regulations.
7. This submission of the learned Assistant Advocate -General is also supported by the unreported judgment of the Supreme Court in Criminal Revision No. 39 of 1965, State v. Khanzada, to which I have referred in holding that counsel could not appear in proceedings under the Regulations, their Lordships have stated in this judgment as follows :‑
"As a last resort, Mr. Peer Bakhsh tried to argue that the Commissioner acting under the Regulation was a Court and therefore, the provisions of the Legal Practitioners Act were attracted to the case, justifying representation by an Advocate or Pleader. It is sufficient however to say that the Commissioner, while acting under the Regulation cannot be described strictly as a "Court", as proceedings under the Regulation are not really judicial proceedings stricto senso."
This judgment is based on the provisions of the Legal Practitioners Act, 1879 which restricted counsel's right of audience to Courts stricto senso. However, this Act of 1879 has now been repealed, and the petitioner's case is based on the provisions of the Legal Practitioners and Bar Councils Act, 1965. Section 22 of this Act states as follows :‑
"22. Right of Advocates to practise‑
(1) Save as otherwise provided in this Act, no person shall be entitled to practise the profession of law unless he is an Advocate.
(2) Subject to the provisions of this Act, the rules made thereunder and any other law for the time being in force, an Advocate shall be entitled as of right to practise throughout Pakistan, and to appear, act and plead before any Court or Tribunal in Pakistan."
As the Regulation do not contain any prohibition of counsel's right to appear, learned counsel for the petitioner has submitted that in view of subsection (2) of section 22 quoted above, the petitioner was entitled to be heard by counsel in his Revision Application before the first respondent. The provisions of this section clearly support the petitioner's case. However, the learned Assistant Advocate‑General submitted that I am bound by the judgment of the Supreme Court in Khanzada's case to which I have referred. I am bound by that judgment, and I have given anxious thought to the question whether the judgment is applicable to the plea of the petitioner. The judgment itself shows that the right of counsel to appear in proceedings under the Regulations was rejected on the basis of the Legal Practitioners Act, 1879. That Act did not permit counsel to appear before Tribunals. The Legal Practitioners and Bar Council Act, 1965 has given counsel the right to appear before all Tribunals, therefore, in my humble opinion, the judgment of the Supreme Court is not attracted to the facts of the case.
8. The learned Assistant Advocate‑General next referred me to a judgment of this Court in Amir Khan v. Commissioner, Quetta (P L D 1962 Quetta 140), in which a learned Single Judge of this Court held that counsel could not appear in proceedings under the Regulations. The learned Single Judge has stated at page 146 of the judgment as follows :‑
"The learned counsel for the petitioner has failed to show that there was a common law right of a litigant to be represented in all the proceedings by a counsel. In these circumstances, it is inevitable that one should refer to the statute under which a person is being tried to see if there were any terms as to how a person was to be heard. The words of the statute only can afford an answer to such a contingency. Section 340, Cr. P. C. lays down that "any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader". The words used in this section are clear enough to entitle the accused before a Criminal Court or in the proceedings instituted under the Cr. P. C. to be defended by a pleader . . . . . It has nowhere been provided in the F. C. R. that a person will be entitled to be defended by a pleader in any proceedings under the Regulation. The very nature of the proceedings also indicates that it was not the intention of the Legislature to permit the accused to be defended by lawyers in proceedings under this Regulation. Section 62 of the F. C. R. provides that the Local Government may make rules to carry out the purposes and objects of this Regulation. The A. G. G. on the 14th of August 1930 issued an order at serial No. 60 which prohibited the entertainment of an application .in the proceedings under the F. C. R., if it appeared to have been drafted by a pleader. Whether this rule has the force of law or not but this in any case will indicate that the Government discouraged the participation of pleaders in proceedings under the F. C. R."
These observations support the case of the Assistant Advocate- General, but much water has passed under the bridges since this judgment was given.
9. 7 he learned Judge has held that patties could not be represented by counsel in proceedings under the Regulations on three grounds. These grounds are that the Regulations are silent on the question whether parties can be represented by counsel, that such a right is not consistent either with the practice or with the nature of the proceedings under the Regulations, and thirdly that there is no Common Law right by counsel in proceedings before Tribunals. For the reasons already given by me, the first ground is no longer valid in view of the provisions of section 22 of the Legal Practitioners and Bar Council Act, 1965. As to the second ground, the statutory right to be represented by counsel conferred by the Legal Practitioners and Bar Council Ac 1965 cannot be defeated by past practice based on legislation that has been repealed, nor can it be said any longer that appearance by counsel would defeat the object of trial by Jirga. The method of trial by Jirga is substantially similar to the provisions of the West Pakistan Criminal Law Amendment Act, 1963. As counsel are entitled to appear in proceedings under that Act, it cannot now be contended that the policy of the Regulations would be defeated if counsel were allowed to appear in the proceedings under the Regulation.
10. The question whether under Common Law, the litigant is entitled to be represented by counsel before tribunals is a question of great importance and with very great respect to the learned single Judge, I am not able to agree with his view that the litigant is not entitled under the Common Law to be represented by counsel. The learned single Judge has not given any reasons for his conclusion that the Common Law does not confer a right on the litigant to be represented by counsel before Tribunals which can adjudicate on his life and property. However, he has referred in para. 5 of his judgment to a decision of the Madras High Court in T. R. Ayyangae, Collector of Salt Revenue (A I R 1937 Mad. 735). The Madras High Court held in that case that the appellant who was a Government servant, was not entitled to be represented by counsel in a departmental enquiry against him. The judgment of the Court was based on the rules under which the inquiry was held and on two English judgments, namely Queen v. Manse Jones ((1889) 23 Q B D 29) and in Prince Bulcher Ex parte : Debtor ((1931) 2 Ch. 70). However, as has been pointed out by the learned single Judge himself, the English judgments related to the interpretation of statutes which excluded the right of the litigant to be represented by counsel, therefore neither of these two judgments have laid down any principle of the Common Law: However, the view has been taken in some English judgments that parties are not entitled to be represented by counsel before Tribunals. Thus in Maclean v. Workers' Union (1929 1 (602)) Maugham, J. has observed that "Counsel have no, right of audience" before a Tribunal. The view of Maugham, J. came up for consideration recently before the Court of Appeal in Pett do Grayhound Racing Association ((1968) 2 All E R 545) and has been dissented from by the Court of Appeal. In reference to the dictum of Maugham, J. the counsel have no right of audience before Tribunals, Lord Demning M. R. stated :
"The dictum may be correct when confined to tribunals dealing with minor matters where the rules may properly exclude legal representations. (Re : Macqeen and Nottingham Calenonian Society (5) seems to have been such a case). The dictum does not apply, however, to tribunals dealing with matters which affect a man's reputation or livelihood or any matters of serious import. Natural justice then requires that he can be defended, if he wishes, by counsel or solicitor."
Accordingly, the view t1hat the Common Law does not entitle the litigant to be represented by Counsel before tribunals is not correct, and the Legislature has now given statutory recognition to the Common Law principle by prescribing in the Legal Practitioners and Bar Council Act, 1965 that counsel shall be entitled to appear before all tribunals. In the result, the order of the Commissioner dismissing the petitioner's Revision Application is also illegal on the ground that he did not allow the petitioner to be represented by counsel. It is therefore not necessary to consider the learned counsel's third objection that the said order is illegal because it is not based on any evidence.
11. I shall now consider the petitioner's legal objections to the reference of his case to the Jirga. The first objection is that the E. A. C. who referred the case to the Jirga was not invested with the powers of an Additional District Magistrate, therefore, he was not competent to make the reference. Under section 11 of the Regulations, a case may be referred to the Jirga by a Commissioner or a Deputy Commissioner. However, the Deputy Commissioner has been defined in subsection (b) of section 2 of the Regulations as follows :
"Deputy Commissioner" includes 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 Government to exercise all or any of such functions or powers."
As subsection (b) limits the powers that can be delegated to First Class Magistrates to those powers specified in the first part of the first schedule, it is necessary to examine these provisions. Part one of the First Schedule states as follows :‑
Part I : Powers and functions with which Magistrate of the First Class may be invested by Deputy Commissioner.
(a) In the case of an Additional District Magistrate all or any of the powers and functions of a Deputy Commissioner.
(b) In any other case : all or any of the following powers, namely
(i) Power to make orders of reference to Councils‑of‑Elders, under section 8, subsection (1) ;
(ii) Power to nominate and appoint the members of the Council when an order of reference to a Council has been made under section 8, subsection (1) ;
(iii) Power to nominate the members of the Council when an order of reference to a Council has been made under section 11, subsection (1) ;
(iv) Power to consider and dispose of objections made by an accused person to members so nominated, and to appoint the members of a Council‑of‑Elders under section 11, subsection (2); and
(v) Power to take security under section 40."
Thus it will be seen that the E. A. C. was not competent to make a reference unless he had been invested with the powers of Additional District Magistrate when he made the reference. As the learned Assistant Advocate‑General argued that the reference was valid, I requested him to supply the Notifications showing the powers conferred on the E. A. C. and he has supplied the relevant Notifications. By a notification dated 5th March 1968, the E. A. C. was invested with the powers under clause (b) of part one of the Schedule quoted above, therefore these powers did not confer on him any authority to refer cases to the Jirga under section 11 of the Regulations. By another notification dated 28th June 1968, he was invested with the powers of an Additional District Magistrate, therefore as from this date, by virtue of clause (a) quoted above he was competent to refer any case to the Jirga under section 11. The case of the petitioner was referred by the E. A. C. on the 1st of June 1968, and as he did this before he was invested with the powers of an Additional District Magistrate, he was not competent to refer the petitioner's case to the Jirga. The order of reference dated 1st June 1968 is therefore illegal, and all proceedings taken in pursuance of this illegal order are also illegal and without lawful authority.
12. The next argument of learned counsel for the petitioner was that the order of reference passed by the L. A. G, was illegal, because it did not comply with the provisions of section 11. Section 11 of the Regulations in so far as is relevant, state as follows
"11 (l) Where, in the opinion of the (Chief) 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 Commis sioner may, or, if the (Chief) 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."
In the instant case, the order of reference by the E. A. C. does not state that it was inexpedient to try the petitioner in the ordinary Courts, learned counsel has therefore argued that the order of reference does not comply with the provisions of section 11 and is illegal. As an order of reference under section 11 ousts the jurisdiction of the Courts, and affects the liberty of the subject, it has to be construed strictly. But does this mean that such an order is not valid unless it records the opinion of the Deputy Commissioner that a trial in the ordinary Courts is inexpedient This question was considered by a Division Bench of the Peshawar Court in Hamesh Gul v. Crown (P L D 1955 Pesh. 6). The facts of that case were that the Deputy Commissioner had referred a case to the Jirga under section 11, and he had stated in his order of reference that there was strong evidence against the accused. The order did not state that it was inexpedient to try the accused in the ordinary Courts, therefore the Division Bench held that the order of reference was illegal. This view was dissented from in a judgment of Division Bench of this Court in Sabs All v. Government of West Pakistan (P L D 1956 Lah. 686) the learned Assistant Advocate‑General has therefore placed reliance on this Judgment. The facts of that case were that after the accused had been committed to the Court of Sessions, the Deputy Commissioner had withdrawn the case from the Sessions Court and referred it to a Jirga under section 11. On the basis of the judgment in Hamesh Gul's case this order was challenged on the ground that the Deputy Commissioner had failed to record that it was inexpedient to try the accused in the ordinary Courts. In repelling this contention, the Division Bench held that the relevant orders showed that the Deputy Commissioner had applied his mind to the case under section 11, therefore the failure to record that it was inexpedient to try the accused in the ordinary Courts was immaterial. This judgment supports the respondent's case. However, the view taken in the judgment was not followed by a Full Bench of this Court in Khan Abdul Akbar Khan v. The Deputy Commissioner, Peshawar (P L D 1957 Pesh.100). At page 102 of the judgment delivered by Kayani, J. (as he then was), His Lordship has observed as follows
"On the language of the section itself the satisfaction as to the existence of a dispute should be that of the Deputy Commis sioner, and since the Deputy Commissioner has at no stage of the case testified to its existence the reference can be removed and quashed only on that ground."
This Full Bench judgment supports the petitioner's contention. Learned counsel for the petitioner also referred me to another Division Bench Judgment of this Court ir1 Muhammad and another v. Division Commissioner, Hyderabad Division (P L D 1966 Kar. 424) on the construction of section 3 of the West Pakistan Criminal Law Amendment Act, 1963, the provisions of which are similar to the provisions of section 11 of the Regulations. Section 3 states as follows
" Where in the opinion of the Commissioner, it is inexpedient in the interest of justice that the question of the guilt or innocence of any person accused of an offence specified in the First Schedule, or of any several persons so accused, be tried by a Court mentioned in section 6 of the Code, of Criminal Pro cedure, 1898, the Commissioner may, notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in, force by an order' in writing, with reasons therefore refer the question to the decision of a Tribunal, and require the tribunal to cone to a finding on the question after such enquiry as may be necessary and after hearing the accused.
The facts of the cast before the Division Bench were that the Commissioner had referred a case under section 3, and while stating the reasons for his view that the case should not be tried in the ordinary Court he had stated that it was expedient to try the case under the Criminal Law Amendment Act. In setting aside the reference on the ground that the order coratravened section 3 Faruqui, J., stated at page 428 as follows
" The important point is that under the law the Commissioner is required to form an opinion with regard to the question of inexpediency of the trial of the case by Ordinary Courts and give reasons for it. Can we then take it upon ourselves to say that when he said that it was expedient that the case be referred to the tribunal he had applied his mind to the question whether it was inexpedient in the interest of justice that the case be tried by the ordinary Courts Having regard to the nature of this legislation which empowers the Commissioner to pre‑emptorily take the case out of the jurisdiction of the ordinary criminal Courts, its provisions must be strictly construed and while examining the legality of this order, we are not going to presume that the learned Commissioner did apply his mind to the question which he is required to do when the order itself shows that what he has taken into consideration is the question whether it was expedient that the case should be referred to the tribunal."
It is true that the provisions of section 3 of the West Pakistan Criminal Law Amendment Act, 1963 are not identical to those of section 11 under consideration. There are two differences. While under the Regulations, the case may be referred to the Jirga if it is inexpedient to try it in the ordinary Courts, under section 3, it can be so referred only if a trial in the ordinary Courts is inexpedient in the interest of justice. The other difference is that the order of reference under section 3 must state the grounds for the reference. These differences are not material, and the ratio decidendi of the judgment cited is that any provisions taking away the jurisdiction of the ordinary Courts should be construed very strictly, this principle is applicable to the construction of section 11 therefore the judgment cited is relevant to the question for determination before me. I am in respectful agreement with the observations of the Full Bench and of the Division Bench in the judgments cited, and I hold that the E. A. C.'s order of reference dated 1st June 1968, is illegal on the ground that it does not state that it was inexpedient to try the petitioner in the ordinary Courts.
13. The next objection of the learned counsel for the petitioner is based on the provisions of section 196 of the Criminal Procedure Code. The offence alleged against the petitioner falls under Chapter VI of the Pakistan Penal Code and section 196 of the Criminal Procedure Code states as follows
196. No Court shall take cognizance of any offence punishable under Chapter VI (or IXA) of the Pakistan Penal Code (except section 127) or punishable under section 108‑A, or section 153‑A or section 294‑A, 3 (or section 295‑A) or section 505 of the same Code, unless upon complaint made by order of, or under authority from, 4 (the 5) "(Central Govern ment, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments).
It is admitted that the E. A. C. did not obtain the sanction of the Provincial Government before prosecuting the petitioner. Learned counsel has submitted that the Jirga is a Court within the meaning of section 196 quoted above, therefore the reference of the petitioner's case was illegal because it was made without obtaining the Government's sanction. 1n order to appreciate this contention, it is necessary to set out the provisions of section 6 of the Criminal Procedure Code
"6. Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in Pakistan, namely,
I. Courts of Sessions :
III. Magistrates of the First Class
IV. Magistrate of the Second Class
V. Magistrate of the Third Class
Thus section 6 does not define the meaning of the word Court'. it describes the Courts set up under the Criminal Procedure Codes and it also envisages Courts constituted under other laws, but it does not prescribe any test for determining what are Courts under other laws. Learned counsel submitted that on a proper construction of the Regulations, the Jirga and the Deputy Commissioner were Courts under the Regulations, therefore they were Courts within the meaning of the Criminal Procedure Code, and in support of his submission he relied on a judgment of the Full Bench m Muhammadali v. The State (P L D 1994 Posh. 270). On the other hand, learned Assistant Advocate‑General argued, on the basis of the Federal Court's judgment in Samandar Khan's case that the Jirga, the Deputy Commissioner and the Commissioner were administrative Tribunals and that these Tribunals act so arbitrarily that they do not constitute Courts in any sense of the word. All the arguments of both counsel have been considered in the above‑mentioned judgment which I shall therefore consider.
14. The facts in Muhammadali v. The State were that the petitioner had stood surety for an accused in the Sessions Court. The Deputy Commissioner later withdrew the case from the Sessions Court and referred it to the Jirga. The accused then absconded, therefore the ‑ Deputy Commissioner forfeited the security given by the petitioner in the Sessions Court. The petitioner filed a writ petition in this Court, challenging the Deputy Commissioner's order of forfeiture on the ground that the Deputy Commissioner was not a Court, therefore he could not forfeit his bond, and in support of the petition, he relied on the Federal Court's judgment in Samandar Khan's case. The Full Bench held that the Federal Court only decided in Samandar Khan's case that the Deputy Commissioner and the Commissioner under the Regulations are not judicial Courts and that the Federal Court has "nowhere laid down that the Deputy Commissioner and the Commissioner are not "Courts" in the general sense in which that term is understood." In reference to the provisions of the Regula tions, the Full Bench stated : "The question whether the Deputy Commissioner is a Court further finds support from the language used in sections 12, 13 and 19(2) of the Frontier Crimes Regula tions." Accordingly, the Full Bench held that the Deputy Commissioner and the Commissioner acting under the Regulations were Courts. This judgment is binding on me. Therefore the P order of the Deputy Commissioner convicting the petitioner to 7 years' R. I. was a conviction by a Court, but as sanction for his prosecution was not obtained under section 196, Cr. P. C. prima facie, his trial and conviction are illegal.
15. In order to overcome this difficulty, the learned Assis tant Advocate‑General argued that even if the institutions under the Regulations are Courts, the provisions of section 196 of the Criminal Procedure Code are not applicable in view of section 3 of the Regulations. Section 3 enacts that the provisions of the Regulations "shall take effect in cases to which they apply notwithstanding anything contained in any other enactment". According to the learned Additional Advocate‑General, the provisions of section 196 of the Criminal Procedure Code were contrary to the provisions of the Regulations, therefore section 196 could not be applied to the Regulations. However, the learned Assistant Advocate‑General failed to show how the provisions of section 196 are contrary to or inconsistent with any provisions in the Regulations. He stated that the Regulations constitute a law of expediency for the tribal areas of the country and that the paramount object of the Regulations was to safeguard the interest of the State by avoiding the disturbance of public order. But the provisions of section 196 have also been enacted in order to protect the interests of the State. The nature of the offence specified in section 196 is such that the interest of the State might be jeopardised if the prosecution for these offences was allowed to be filed by private parties or subordinate officials. The law has therefore directed that because of the paramount interest of the State in the offence specified, no prosecution can be entertained by any Court except with the sanction of the appropriate Government. The considerations on which section 196 is based are equally applicable to the tribal areas as to the other parts of West Pakistan, and the fact IG that justice in the tribal areas is administered through the institution of the Jirga, does not, in my humble opinion, make any differences to the applicability of section 196. I invited the learned Assistant Advocate‑General to show me any single instance in which the prosecution for offences specified under section 196, Cr. P. C. had been permitted without the sanction of the appropriate Government. He admitted that it was not possible for him to cite any example in support of his submission. Learned counsel for the petitioner, who is a local Advocate, argued that the practice of the past had been to obtain the sanction of the Government under section 196, Cr. P. C. before prosecuting any person before the Jirga for any offence specified in section 196, Cr. P. C. In support of his submission, he referred me to a judgment of the Revenue Commissioner and Chief Commissioner Baluchistan dated 10th September 1954, in Criminal Case No. C/164‑Jirga of 1954, Babu Khair Muhammad v. Malik Rayatullah and others. The petitioner in that case had been tried by a Jirga under section 11 and convicted under section 153‑A, P. P. C. without obtaining the sanction of the Baluchistan Government; therefore he had filed a Revision. In setting aside the conviction, the learned Revenue Commissioner stated as follows
"With regard to the allegations that he was guilty of an offence under section 153‑A, P. P. C., the lower Court has ignored the provisions of section 196 of the Cr. P. C. by virtue of which it is incumbent that a complaint must be lodged under this section by the Provincial Government or by some officer empowered by the Provincial Government in this behalf. No such complaint has been lodged nor is there any indication that the Local Government have delegated the authority to any officer in this Province to lodge such a complaint. As the provisions of this section of the Criminal Procedure Code are mandatory, it follows that the want of sanction is fatal to the proceedings and the conviction must be set aside as being illegal. The illegality committed is not curable by virtue of section 537 of the Cr. P. C.
I agree with these observations which reflect my own views in the matter. Additionally, learned Counsel also pointed out correctly that in Hamesh Gul v. Crown, the judgment itself shows that the sanction of the Provincial Government had been obtained for the prosecution of the petitioner in that case who had been convicted of offence under Chapter VI of the P. P. C. Accordingly, I follow these judgments and hold that the prosecution of the petitioner was illegal also on the ground 8 that the E. A. C. had failed to obtain the sanction of the Government before taking action against the petitioner.
16. Confronted with this difficulty, the learned Assistant Advocate‑General submitted that as the petitioner had appeared before the E. A. C., the Jirga and the Deputy Commissioner, he was estopped from disputing the legality of the proceedings against him because he had failed to record his objections at the relevant time. I invited the learned A. A.‑G. to show me any judgment in which it has been held that a writ of habeas corpus can be defeated by such a plea. He was notable to cite any judgment, but placed reliance on the judgment of the Supreme Court in Mohiuddin v. The Chief Settlement Commissioner (1). The facts of that case related to the provisions of section 21 of the Displaced Persons Compensation and Rehabilitation, Act, 1958. Under section 21 of the said Act, a Settlement Commissioner can review his own order provided no revision has been filed against that order. In the case before the Supreme Court, the petitioner had applied for a writ of certiorari to challenge an order passed in review by the Settlement Commissioner on the ground that this order had been passed by the Settlement Commissioner during the pendency of a Revision Application filed by him against the order which was reviewed by the Settlement Commissioner. Although the petitioner was aware of the illegality, he had appeared in the review proceedings before the Settlement Commissioner therefore his petition was dismissed. In dismissing the petition, Mr. Justice Hamoodur Rehman (as he then was) now the Chief Justice stated at page 839 of the judgment as follows :‑
"Again one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy in his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunals, H hose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. (Vide The King v. Williams and others Ex parte : Philips (2).
In the present case there can be no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance which prevented the Settlement Commissioner in law from (1) P.L D 1964 S C 829 exercising his power of review. Notwithstanding this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. In the writ petition also the appellant did not assert that he was unaware that the filing of the second revision petition debarred the Settlement Commissioner in law from reviewing his previous order. The appellant, therefore, knowing the true legal position deliberately allowed the Settlement Commissioner to commit an illegality. In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality."
I have carefully considered this judgment which is binding on me. The appeal before the Supreme Court arose out of a writ of certiorari filed in the High Court under the Laws (Continuance in Force) Order, 1958, therefore the Supreme Court had no occasion to consider the question whether a petition for habeas corpus could be defeated by a plea of waiver or acquiscence. Further in dismissing the appeal of the petitioner, their Lordships relied on the principles of the Common Law as is shown by the first paragraph quoted above. Under the Common Law, there is a distinction between a writ of certiorari and a writ of habeas corpus, the former is a discretionary writ so that the conduct of the petitioner is relevant, whilst the latte affects the liberty of the subject and is issued of right as soon as the detention of the petitioner is proved to be illegal. In their judgment, their Lordships have not said anything which would suggest that this distinction of the Common Law between the two types of writs does not exist. It is true that Article. 98 has abolished the forms of writs, but I do not think this as altered the principles on which the Courts will grant relief. Further, it is relevant to observe that in dismissing the petitioner's appeal, the Supreme Court laid stress on his conduct and observed that knowing the true legal position he "had deliberately allowed the Settlement Commissioner to commit an illegality," and that it could not be said that he "was a mere passive spectator having no power to prevent the commission of the illegality". In my humble opinion, these observations imply that the appearance of the petitioner before the Settlement Commissioner by itself would not have automatically amounted to waiver or acquiscence therefore the Court had always to consider the petitioner's conduct and the difficulties confronting him. As those difficulties will always be far greater when relief is sought against illegal detention than in other cases, it follows that the principles on which relief in the nature of certiorari may be refused may not be applicable to petitions for habeas corpus.
17. I am fortified in my opinion by a later judgment of the Supreme Court in Muhammad Afzal v. Board of Revenue (P L D 1967 S C 314). The facts of that appeal were that the appellant claimed rights under the Sind Irrigation Act in respect of water supply and as the Collector and the Commissioner had given their decisions in his favour, the respondent had filed a revision before the Board of Revenue. Although the appellant knew that the Board of Revenue had no power of revision, he contested the Revision before the Board of Revenue. The Board of Revenue modified the Commissioner's order in favour of the respondent. Thereupon the appellant filed a petition under Article 98 of the Constitution in this Court challenging the order of the Board of Revenue. The petition was dismissed on the finding that he had not objected to the jurisdiction of the Board of Revenue. The petitioner filed an appeal which was allowed by the Supreme Court. In allowing the appeal, the Chief Justice stated at page 316 of the judgment as follows :‑
"Like the law‑and‑order administration, the revenue administration, in its impact on the cultivator has all‑per vading authority which the individual cannot be expected to confront, on allegations of illegality on his own . strength. The usual and the wise course, that he takes is to submit for the time‑being, and seek his redress through the more powerful agency of the Superior Courts. These Courts have now been specially empowered to provide such relief. They cannot be permitted to diminish that authority by the imposition of such a condition as that which the learned Judges have applied in the case.
By mere submission, in the capacity of a respondent, to the authority of the member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner."
I am in respectful agreement with these observations and in my humble opinion this judgment only clarifies the law that was declared in the earlier case of Mohiuddin v. Chief Settlement Commissioner, and emphasises the duty of the Court to examine the circumstances of each case. Applying the principles laid down by the Supreme Court in Muhammad Afzal v. The Board of Revenue, it appears to me that, like Muhammad Afzal, the petitioner, in the instant case, was not only facing the "all pervading authority of the Government," but he was facing that authority on charges far more serious than Muhammad Afzal and without the assistance of counsel. In these circumstances, he had no choice except to appear before the E. A. C., the Jirga and the Deputy Commissioner, and it cannot be argued that he deliberately allowed these authorities to usurp jurisdiction, therefore he is not barred from showing in this Court that all the orders passed against him are illegal.
18. Finally, learned counsel referred me to an unreported single Bench judgment of this Court in Writ Petition No. 59 of 1963 (Quetta Circuit). The petitioner in that case had challenged the orders of the Deputy Commissioner and Commissioner confirming the award of a Jirga passed under section 8 of the Regulations. The contention of the petitioner was that the order of the Jirga was without jurisdiction, but this plea was repelled on the ground that he had acquiesced in the jurisdiction of the Jirga. As I have observed, this petition arose out of a civil reference to a Jirga under section 8 of the Regulations. The relief claimed was thus in the nature of the relief that was granted under the old writs of certiorari, therefore the judgment has no relevance to a petition for habeas corpus.
19. In the result, I hold that the reference by the E. A. C. of the petitioner's case to the Jirga was illegal and without jurisdiction, therefore the orders of detention passed against him are illegal.
20. Learned counsel for the petitioner advanced various other arguments in support of the petition. According to learned counsel, the E. A. C. was biased, the Jirga was not properly constituted, its findings were not based on evidence, it did not record the petitioner's evidence or give him a fair opportunity to be heard and even the Regulations, under which he was tried, had been repealed and were no longer in force. However, as I have held that the petitioner's detention is illegal, it is not necessary to consider these arguments.
21. The petition is therefore allowed and I declare the order of the second respondent dated 2nd June 1968 and the orders of the first, respondent dated 17th September 1968, to be without lawful authority. The petitioner shall be released unless required on any other charge. In the circumstances of the case I do not make any order as to costs.
A. E./K. B. A. Petition allowed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer