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Criminal Appeals Nos. 45 and 46 of 1955, decided on 5th March 1956.
(On appeal from the judgments and orders of the Court of Judicial Commissioners, North‑West Frontier Province, Peshawar, dated the 24th November, 1954, in Miscellaneous Applications Nos. 46 and 18 of 1954).
Ss. 2A, 11 & 60 --Council of Elders composed of Magistrates‑Council, held, not lawfully constituted.
The Deputy Commissioner acting under section 11 of the Regulation appointed three Magistrates as the Council of Elders and on the Council's finding convicted the respondents.
Held, that the conviction was illegal inasmuch as the Council was not lawfully constituted, there being not even the pretence of following the Pathan, Biloch or other usage for a Jirga as prescribed by section 2‑A.
The direction of the Provincial Government requiring the appointment of Magistrates to the Council was ultra vires.
Further, that section 60 of the Regulation which barred the jurisdiction of a Court was not applicable because ex hypothesi the decision, sentence, order, or act of the Deputy Commissioner was not under Chapter III of the Regulation.
Manzur Qadir, Senior Advocate; Federal Court, (Asadullah Khan, Advocate, Federal Court, with him), instructed by Iftikharuddin Ahmad, Attorney for Appellant.
D. N. Pritt, Q. C., (Mahmud Ali, Advocate, Federal Court with him), instructed by M. Siddiq, Attorney for Respondents.
Under Order IV, Rule 6 of the Federal Court Rules, 1950
Abdul Rahim Advocate, High Court of West Pakistan, Lahore.
Date of hearing : 5th March 1956,
These appeals by the Crown, with our special leave, are being disposed of by one order because our opinion on one of the points involved in both of them is sufficient for their dismissal. In the case out of which Appeal No. 45 of 1955 arises the respondent, Ghulam Muhammad Khan of Lundkhowar, was, on the report of a Tribunal of Magistrates, sentenced under sections 409 and 381 of the Pakistan Penal Code to seven years' rigorous imprisonment and a fine of Rs. 5,500 and in default of payment of fine to a further term of rigorous imprisonment of I J years. On revision, the Commissioner set aside the conviction under section 381 and the substantive sentence of imprisonment, but maintained the sentence of fine and reduced the imprisonment in default of payment of fine to six months' simple imprisonment. In Appeal No. 46 Hamesh Gul, respondent, was, on the findings of a similar Tribunal, sentenced by the Deputy Commissioner under section 123A and section 124A of the same Code to a fine of Rs. 5,000, and in default of payment of fine to five years' imprison ment under the former and to seven years' rigorous imprisonment under the latter section.
By separate applications the respondents moved the Court of the Judicial Commissioner for a writ of habeas corpus under section 491 of the Code of Criminal Procedure and section 223A of the Constitution Act. The Court found that the conviction of the respondents under the procedure adopted by the Deputy Commissioner was illegal and ordered them to be set at liberty.
The ground on which we have decided to determine these appeals is that the Tribunal of Magistrates which decided the question of the guilt or innocence of the res pondents was not properly constituted under the Frontier Crimes Regulation. Under section 11 of that Regulation if in the opinion of the Deputy Commissioner it is inexpedient that the question of the guilt or innocence of any person accused of any offence should be tried by a Court mentioned in section 6 of the Code of Criminal Procedure the Deputy Commissioner may refer the question to the decision of the Council of Elders and require the Council to come to a finding on that question after such inquiry as may be necessary and after hearing the accused person. The members‑ of the Council of Elders are to be nominated and appointed by the Deputy Commissioner who on receipt of the finding of the Council may in accordance with such finding convict the accused person of any offence of which he may be found to have been guilty. I7 the case against Ghulam Muhammad Khan Lundkhowar the Deputy commissioner had appointed (1) Banat Gul Khan, Treasury officer ; (2) Pir Mukammil Shah, Traffic Magistrate ; and (3) Abdul Aziz Khan, Tehsildar, Mardan, as members of the Tribunal, while in that of Hamesh Gul, the officers appointed were : (1) the City Magistrate, Peshawar ; (2) The Assistant Commissioner, Peshawar and (3) the Assistant Commissioner, Nowshera.
The Council of Elders is defined by section 2A of the Regulation as a Council of three or more persons convened according to .the Pathan, Biloch or other usage, as the Deputy Commissioner may in each case direct. Thus, the Council has to be convened in accordance with a usage though it is for the Deputy Commissioner to determine whether it should be convened according to the Pathan, Biloch, or other usage. In both the cases under appeal, however, there was not even the pretence of an appointment under any usage, and this was conceded by the learned Advocate‑General for the Province when the matter was argued in the Court of the Judicial Commissioner. The learned Advocate‑General, however, relied on a letter addressed by the Chief Secretary to the Deputy Commissioners of the Province in which a direction had been issued in the following terms :‑
"In order to improve the present system for the dis posal of Jirga cases and to improve the confidence amongst the people in the matter of administration of justice, it has been decided that Jirga cases under the Frontier Crimes Regulation should in future be decided by a Tribunal of three competent Magistrates to be selected by the Deputy Commissioner. If the number of trial Magistrates is inade quate, Tahsildars may be appointed as Jirga members".
The Regulation contains no authority for the procedure envisaged in this letter which clearly conflicts with the definition of Council of Elders. A Council under the Act has to be appointed in accordance with a usage to be determined by the Deputy Commissioner, whereas the letter, though it contains a reference to a Jirga says nothing about any usage and describes the body constituted in accordance with it as a Tribunal of competent Magistrates. It seems to us to be clear that this letter has the effect of amending the Regulation, and that for that reason it was ultra vires the Provincial Government. Neither before the Court of the Judicial Commissioner nor in the concise' statement or argu ments before us was any provision mentioned under which the Provincial Government could amend the procedure laid down in the Regulation for the constitution of the Council of Elders. In this view of the matter the Deputy Com missioner who convicted never had before him any finding of the Council of Elders on the basis of which he could sentence the respondents. The convictions were, therefore, illegal and section 60 of the Regulation which bars the jurisdiction pf a Court was not applicable because ex‑hypothesi the decision, sentence, order, or act of the Deputy Commissioner was not under Chapter III of the Regulation We, therefore, see no substance in these appeals which are dismissed with ordinary costs.
There were several other contentions points in these appeals but we refrain from expressing our opinion thereon.
A.H. Appeals dismissed.
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