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Writ Petition No. 149 of 1956, decided on 5th May 1956.
Ss. 11, 15 Opinion as to inexpediency of trial by regular Courts need not be expressed in language of section‑Substantial compliance enough.
Section 11, Frontier Crimes Regulation, does not require that the Deputy Commissioner should state his opinion that trial by regular Courts would be inexpedient. And it is unnecessary that the opinion should be expressed in the language of the section.
If the Deputy Commissioner signifies his agreement with the report of the Public Prosecutor that the case would not stand judicial scrutiny and may therefore be referred to a Council of Elders under the Regulation, held, that there was sufficient compliance with the provisions of section 11.
The wording of section 15 shows that it is not essential that the opinion of the Deputy Commissioner of which section 11 speaks, should be expressed formally when the Deputy Commissioner instructs the Public Prosecutor under section 15 to withdrew from the prosecution, it means that he has decided that it is inexpedient to have the case tried in an ordinary Court.
Hamesh Gul v. The Crown P L D 1955 Pesh. I dissented from.
as amended by Act XIII of 1954 S. 2 (a)‑"Council of Elders" may consist of Magistrates‑Section as amended not repugnant to S. 11.
Merely because a person possessed the powers of a Magistrate does not disqualify him from being a member of a Council of Elders.
According to section 2 (a), Frontier Crimes Regulation, Council of Elders may consist of Magistrates. The section as amended is not repugnant to section 11 of the Regulation. If section 11 provided for a case being tried by the Council of Elders instead of the ordinary Courts, the intention was that the case should not be tried under the Code of Criminal Procedure. The objection was as to the method of trial for reasons of expediency and not to the persons who might otherwise be invested with powers of a Magistrate.
Abdul Qayum Khan for Petitioners.
S. A. Mahmood, A. A. G. for Respondent (1).
Dates of hearing: 25th, 26th April 1956, 10th and 15th May 1956.
This is a petition under Article 170 of the Constitution for a writ of habeas corpus. The Petitioners Sabz Ali and Muhammad Akbar were committed to the Court of Session under sections 302 and 307, P. P. C. and at that stage the Public Prosecutor withdrew from the prosecution under section 15, Frontier Crimes Regulation. The Sessions judge thereupon stayed proceedings and the Deputy Commissioner referred the case to a Council of Elders consisting of three Magistrates and a non‑official.
The petitioners contentions are: (1) that a jirgah trial deprived the petitioners of their fundamental right to consult a counsel of their choice: (2) that during the jirgah trial they are not detained by the authority of a Magistrate as required by Article 7 of the Constitution; (3) that the order of reference does not state in express terms that the Deputy Commissioner considered it inexpedient that the question of the guilt or innocence of the petitioners should be tried by an ordinary Court under the Code of Criminal Procedure; and (4) that the Council of Elders was illegally constituted as three of the four members were Magistrates.
The first two points have been decided by us in writ Petition No. 123 of 1956, Khair Muhammad Khan v. Govern ment of West Pakistan (P L D 1956 Lah. 668) disposed of on the 10th of Inlay 1956. On the remaining two points our decision is as follows.
Point No. 3.‑According to section 11, Frontier Crimes Regulation, "where, in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence . . . should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner may . . refer the ques tion to the decision of a Council of Elders . . . " There are, in this case, two orders of the Deputy Commissioner, the first being the order of withdrawal from the Court of the Sessions judge, the second the order of appointment of members of the Council. The first order is based on infor mation given by the Public Prosecutor that the case cannot stand judicial scrutiny and may, therefore, be referred to a Council of Elders. The Deputy Commissioner agreed with this opinion and ordered withdrawal. This in our view, is sufficient compliance with the provisions of section 11. That section does not require that the Deputy Commissioner should state his opinion. We should be satisfied that this is his conscious opinion, and it is unnecessary that it should be expressed in the language of section 11. We do not agree" with the view expressed in Hamesh Gul v. The Crown (P L D 1955 Pesh. 1) where the Judicial Commissioners have held that the failure of the Deputy Commissioner to give a formal expression to his opinion is fatal to the trial.
It is noteworthy that under section 15 of the Regulation, after the case has been committed to Sessions, "the Public Pro secutor may, when instructed in writing in that behalf by the Commissioner or Deputy Commissioner, at any time before an order of conviction or acquittal has been made with respect to any accused person, withdraw from the prosecution of such person in order that the case may be referred to a Council of Elders" and the Sessions Judge shall thereupon stay proceed ings and the Deputy Commissioner shall refer the case to a Council of Elders. It would not, therefore, appear essential that the opinion of the Deputy Commissioner, of which section 11 speaks, should be expressed formally. When the Deputy Commissioner instructs the Public Prosecutor under' section 15 to withdrew from the prosecution, it means that he has decided that it is inexpedient to have the case tried in an ordinary Court.
Point No. 4.‑The term "Council of Elders" was defined in section 2 (a) to mean "a Council of three or more persons convened according to the Pathan, Biluch or other usage as the Deputy Commissioner may in each case direct. "It was amended by Act XIII of 1954 to mean a Council of three or more persons, whether officials or otherwise convened by the Deputy Commissioner and presided over by a Magistrate invested with powers under section 30 of the Code of Criminal Procedure, 1898". It was argued that this definition contravenes section 11, which forbids a Magistrate to try the case after the Deputy Commissioner considers it inexpedient that it should be so tried. We do not think the intention of section 11 is that the trial becomes "polluted", as Mr. Abdul Qayyum Khan put it, if it is conducted by a Magistrate. The intention was that the trial should not be under the Code of Criminal Procedure, and section 6 was mentioned because the Courts which operated under the Code are described in that section. It is not as though objection had been to the persons who are Magistrates; the objection was to the method of trial for reasons of expediency. Merely because a person pos sessed the powers of a Magistrate does not disqualify h0im from being a member of a Council of Elders. Suppose al Pathan or a Biluch who had been made a member of the Council of Elders happened to be invested with Magisterial powers also. If the Council had then been convened according to the Pathan, Biluch or other usage, the fact that one of the members of the Council had the powers of a Magistrate would have made no difference.
We, therefore, dismiss this petition, except that we direct, as we directed in Petition No. 123 of 1956(P L D 1956 Lah. 668) that no evidence shall be heard or recorded against the accused before they have been given an opportunity of defending themselves by a pleader. Costs shall be borne by the parties themselves.
A. H. Petition dismissed.
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