Find a Lawyer

Miscellaneous Application No. 23 of 1952, decided on 11th August 1952 undo‑r section 491 of the Code of Criminal Procedure.

S. 11 Action under, after discharge by Magistrate‑Not barred Nevertheless action started after considerable time after dis charge, held, inequitable.

Simply because the accused‑petitioners lave been discharged by a regular Court in a previous inquiry it does not debar the Deputy Commissioner to take action under section 11, F. C. it, for their trial for the same offence.

It is however, certainly inequitable and against all canons of law and justice to harass people and start proceedings against them after they have been once discharged, and a considerable time has elapsed between that discharge order and the direction for their re‑trial. These are, however, matters which only the authorities udder F. C. R. or the Provincial Government can take into account.

S. II Provincial Government has no locus standi to give any sanction for trial by Council of Elders‑‑Nevertheless order by Deputy Commissioner on Provincial Government's sanction cannot be set aside.

Under section 11, F. C. R. the Provincial Government does not come in any where at all. It is only the Commissioner or the Deputy Commissioner, who can form an opinion to refer the question of the guilt or innocence of any person or persons to the decision of a Council of Elders. The Provincial Government has absolutely no right under the law as it at present exists to give any direction to the Commissioner or the Deputy Commissioner to form an opinion in the matters referred to in section 11 F. C. R.

The learned Advocate‑General had conceded that the Provincial Government had no locus standi either to give a sanction for trial by a Council of Elders, or to withhold it, but, it was said, the Provincial Government exercised such powers as a matter of policy so that the Frontier Crimes Regulation may not be abused by the authorities entitled to exercise certain powers under this enactment.

Where the Commissioner was influenced to give the direction by the obiter dictum of the Council of Elders in a co‑accused case, and the Deputy Commissioner passed an order it advised by the Provincial Government.

Held, that the order was correct and therefore could not be set aside.

Peer Bakhsh for Petitioners.

Muhammad ,ill. Advocate‑General for Government.

‑A very daring dacoity took place on the night between the 8th and 9th of May 1948, in the house of a Deport‑holder by the name of Mir Zaman, son of Shafiullah of Pirpiai village. The report of the occurrence was lodged in Nowshera Kalan Police Station the same night at about 3‑45 a.m. by Mir Zaman himself. Mir Zaman in the encounter with the dacoits, who were said to be three in number, had received very serious injuries, to which he succumbed in the Hospital the following day at about 9‑5 a.m, Nobody was charged in the F. I. R. Subsequently, however, the Police as a reasult of the investigation arrested three per sons, namely, Fazal Khan alias Fazlai, aged about 27‑28 years, son of Nazir, of Tangi, Zardullah, aged about 35 years, son of Fazal Ahmad, resident of Manki Sharif, and Qasam, aged about 26 years, son of Abbas Khan, resident of Pirpiai village, in connection with this dacoity. One Amir Khan, aged about 30 years, son of Sher Muhammad, resident of Manki Sharif was also accused of complicity in the same dacoity, but he was found missing.

The Police challaned the afore‑mentioned three persons to Court under section 460, P. P. C. At the conclusion of the prosecution evidence, the learned trial Magistrate on 7th February 1949, found that the case against all the three accused was judicially weak, but the evidence and the circumstances of the case morally convinced one that the accused were guilty. He consequently recommended that in the interests of justice and equity the case should be referred to a Council of Elders for decision under section 11, F. C. R., III of 1901.

The Deputy Commissioner, Peshawar, referred the case to the Additional Public Prosecutor, who opined that there was sufficient circumstantial evidence in the case, which connected the accused with the offence and hence it was a fit case to be recommended for trial by the Council of Elders.

The Deputy Commissioner, Peshawar, forwarded the case onto the Chief Secretary, on 4th March 1949, who laid the papers before Hon'ble the Chief Minister, with the remarks that he failed to see how a Jirga was in a better position to decide the guilt or otherwise of the accused than a regular Court because "there are none of the factors present that are said to necessitate reference to Jirga‑enmity, refusal to give evidence etc." Hon'ble the Chief Minister agreed with the Chief Secretary, and so an order was conveyed to the Deputy Commissioner, Peshawar, that "it was not considered that this case should be referred to a Jirga". The Deputy Commis sioner in his turn sent the case back to the inquiring Magis trate with the direction that the Provincial Government did not consider the case to be a good one for reference to Jirga, and he should, therefore, pass his own orders in the case. The learned Magistrate on 30th September 1949, passed an order discharging the accused under section 209, Cr. P. C.

Amir Muhammad, the fourth accused in the case, surren dered to the Police n lath February 1950. He was in due course challaned to the Court of the Additional District Magistrate, Nowshera, which term perhaps means the Magistrate exercising powers under section 30, Cr. P. C. This Magistrate recorded the prosecution evidence, and found that he was morally convinced that the accused Amir Muhammad was responsible for the murder of Mir Zaman, and he, therefore, requested that the case might kindly be referred to the Council of Elders to determine the guilt or innocence ref the accused. The case was sent to the Deputy Commissioner, Peshawar, for necessary orders, who in his turn forwarded it eon the Provincial Government, which by its letter No, 14089‑B.1/19/370, dated Peshawar the 10th June 1950, informed the Deputy Commissioner, Peshawar, that the Provincial Government sanctioned the trial of Amir Muhammad under section 11, F. C. R and directed that it should be concluded within six weeks, and the result communicated to the Chief Secretary's Office as soon as possible. As a result of this sanction the Deputy Commissioner, Peshawar, referred the question of the guilt or innocence of Amir Muhammad to a Council of Elders. Captain Sabghatullah Ajun Khan and Ainud‑Din Khan were initially nominated by the Deputy Commissioner as a member of the Council of Elders. Ainud‑Din Khan, however, failed to turn up, and he was replaced by Abdul Qadir Khan of Regi.

These members submitted a report, in which they found an air Muhammad guilty, but at the same time they made an application that Qasam, Zardullah and Fazal Khan, who had been earlier discharged by the Court of law were also guilty in the case, and should, therefore, be proceeded against. The Deputy Commissioner, Peshawar, by his order, dated 24^th August 19150, accepted the finding of the Council of Elder qua Amir Muhammad accused, and sentenced him to fourteen years' rigorous imprisonment under section 460, P. P. _;' This sentence, of course, was subject to confirmation by the Commissioner under the F. C. R. The Deputy Commissioner, accept that lie mentioned the circumstances under which Fazal Khan, Zardullah and Qasam were discharged by the Magistrate on 30th September 1949, did not take any notice of the application of the members of the Council of Elders, for reviving criminal proceedings against them. Amir Muhammad's cast, in due course was submitted to Major Allahdad Khan Com missioner, F. C. R., N.‑W. F. Province, who by his order, dated 13th February 1951, confirmed the sentence of Amir Muhammad, and at the same time remarked as under:‑

"As regards the other three discharged persons, it is absolutely wrong to let them go unpunished, and I am of the opinion that they should be tried under the F. C. R. The case should go to the Provincial Government after orders are conveyed to the Deputy Commissioner, Peshawar."

The case was then submitted to the Mir Munshi to His Excellency the Governor, who sent it on to the Advocate- General, N.. W. F. Province, for opinion. He opined that the District Magistrate might be directed to first quash the order of discharge and recommend the case of the three accused for reference to Jirga, whereafter he would take necessary steps to get it referred. The case consequently was sent to the Deputy Commissioner, Peshawar for necessary action as suggested by the Advocate‑General. The Deputy Commis sioner Peshawar, by his order dated 9th August 1951, refused to set aside the discharge order, and observed that the Provincial Government had already declined to sanction the trial of the case by Jirga, and in view of this it was not advisable to refer the case again to the Provincial Government for reviewing their previous order. According to the Deputy Commissioner the order of Provincial Government refusing to refer the case to Jirba still stood and could riot be set aside by any subordinate authority.

There is nothing on the record to show as to what happened after this order was passed by the Deputy Commis sioner, Peshawar. Suddenly, however, a letter was issued by an Under Secretary, who purported to sign it on behalf of the Chief Secretary to Government N.‑W. F. Province, on 28th April 195't, intimating to the Deputy Commissioner, Peshawar t1dat the Provincial Government had sanctioned the trial of Qasam, Fazal Khan and Zardullah accused under section 11, F. C. R., and directed that this case should b disposed of within six weeks and the result communicated to the Chief Secretary's Office. As a result of this letter the Deputy Commissioner, Peshawar, on 21st flay 1952, nominated and appointed Khan Muhammad Ayub Khan, Assistant Commis sioner, Peshawar, Khan Said Afzal Khan E. A. C. Peshawar, and Arbab Muhammad Farid Khan E. A. C. Peshawar, as members of the Council of Elders to hold an inquiry and give a finding on the points raised in the order of reference. The order of reference is not on the record, but we presume that it must be to find out whether the three above‑mentioned persons were guilty of the offence charged. These three persons were as a consequence of the above action arrested and remanded to custody.

They have now come up to this Court with an application under section 491, Cr. P. C. to issue a direction of the nature of habeas corpus that they should be set at liberty at once, because they have been illegally and improperly detained in the Central Jail, Peshawar.

The argument which has been advanced before us by the learned counsel for the petitioner is that after the order of discharge had been passed by competent Magistrate, the Deputy Commissioner, Peshawar, was not authorized to take action under section 11, F. C. R.

This point was directly in issue in Khanimullah and another v. Emperor reported in (A I R 1947 Pesh. 19), in which the following was held :‑

‑‑"The District Magistrate could treat the petitioners as accused persons under the Cr. P. C. notwithstanding the existence of the order of discharge in their favour and could take action under section 11, Frontier Crimes Regulation, as a Deputy Commissioner and refer the question of their guilt or innocence to a Council of Elders under that section."

This authority conclusively decides the point raised.

The learned for the petitioners has not been able to cite any provision of law under which the Deputy Commissioner, for the reasons advanced by him, could be said to be debarred to take action under section 11, F. C. R.

A proviso added to subsection (3) of section 11 of the F. C. R. runs as under :‑

"Provided that a person discharged under clause (c) shall not be liable to be retried , for an offence arising out of the same facts aft r the expiry of two years from the date of such discharge."

This order of discharge as is clear from the very wording of the proviso itself refers only to the discharge of the accused person under clause (c), which is passed by the Deputy Commissioner on the receipt of the finding of the Council of Elders, and not to any similar order passed under any other enactment. This is certainly very unfortunate that a discharge order to be effective under the F. C. R. should be the only one passed under that enactment, and a similar order passed under the Cr. P. C. should have no effect whatsoever. Be that as it may, the law as it stands does not help the petitioners in this case, and we must consequently hold that simply because the accused petitioners have been discharged by a regulate Court in a pervious inquiry it does not debar the Deputy Commissioner to take action under section 11, F. C. R. for their trial for the same offence.

It is then contended by the learned counsel for the petitioners that the Provincial Government had in any case no jurisdiction to sanction the trial of the accused by the Council of Elders, and since the accused have been arrested in pursuance of an order to that effect passed by the Provincial Government, their detention is absolutely illegal, and they should, therefore, be set at liberty.

Under section 11, F. C. R. the Provincial Government, does not come in anywhere at all. It is only the Commissioner or the Deputy Commissioner, who can form an opinion to refer the question of the guilt or innocence of any person or persons to the decision of a Council of Elders. The Provincial Government has absolutely no right under the law as it at present exists to give any direction to the Commissioner or the Deputy Commissioner to form an opinion in the matter referred to in section 11, F. C. R.

The learned Advocate‑General has conceded that the Provincial Government has no locus standi either to give a sanction for trial by a Council of Elders, or to withhold it, but it exercises such powers as a matter of policy so that the Frontier Crimes Regulation may not be abused by the authorities entitled to exercise certain powers under this enactment. Whatever the object of the interference of the Provincial Government may be, the law does not permit such interference in the trials under the F. C. R. which if not strictly judicial are quasi judicial proceedings.

In the case before us there is a direction by the Commissioner F. C. R. that the question of the guilt or innocence of these persons should be determined by a Council of Elders. The Deputy Commissioner has nominated and appointed the members of the Council of Elders. and has required them to come to a finding on the question of the innocence or guilt of the accused persons after such inquiry as may be necessary, and after hearing the accused persons. No doubt the Commissioner was influenced to give the direction by the obiter dictum of the Council of Elders in Amir Muhammad's case and the Deputy Commissioner passed an order as advised by the Provincial Government, but we must accept these orders as correct, because under section 60, F. C. R. we cannot call these orders in question, or set them aside. Since we cannot hold that these orders are illegal, therefore, we must arrive at the conclusion that they are legal orders, and the detention of the accused as a consequence thereof is neither illegal nor improper:

We must, however, observe that the action of the Provincial Government in directing the Deputy Commissioner to take action against the accused person under section 11, F. C. R. does not calculate to inspire confidence in the administration of justice. The case against the three accused was inquired into in 1949. The prosecution produced the entire available evidence against them. The learned Magistrate found that there was no judicial case against three accused, and he con sequently asked the Provincial Government to take up the case on the Jirga side. The Provincial Government after a thorough inquiry arrived at the conclusion that it would not be in the interests of justice and equity to take up the case on the Jirga side, and so it declined to accept the recommen dation and give a sanction for the trial of the three accused persons by a Council of Elders. The discharge order, as has been mentioned in the earlier part of this judgment, was passed on 30th September 1949, and the Provincial Government refused to give the sanction in the same year. The Commis sioner F. C. R. on reading the report of the Council of Elders in Amir Muhammad's case two years later i. e., in February 1951 arrived at the conclusion that these three persons should be tried by a Council of Elders. It is an elementary principle of law that no person should be condemned in his absence, and we must say that the members of the Council of Elders, who were trying Amir Muhammad were not justified in coming to any conclusion that the three petitioners along with Amir Muhammad were also guilty of the offence charged. If, however, they were wrong in coming to that finding, the Commissioner F. C. R., who is a responsible official, should not have committed the second wrong, by ordering the trial by a Council of Elders of the discharged accused. The papers were then submitted to the learned Advocate‑General, who as he conceded at the time of the arguments, wrongly opined that the case of the accused‑petitioners could not be referred to a second Council of Elders unless the discharged order was quashed. The Deputy Commissioner, however, refused to accept the Advocate‑General's hint, and did not quash the proceedings at all. In spite of this the Provincial Government ordered the trial of the three accused‑petitioners by a Council of Elders we must say that this order has a tendency to bring the administration of justice under the F. C. R. into ridicule. It is certainly inequitable and against all canons of law and justice to harass people and start proceedings against them after they have been once discharged, and a considerable time has elapsed between that discharge order and the direction for their retrial. These are, however, matters which only the authorities under the F. C. R., or the Provincial Government can take into account.

We have no other alternative but to dismiss this application, which we hereby do.

Orders announced.

A. H. Application dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.