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. 390 of 1956 and 3 other Petitions (Nos. 391, 392 and 482 of 1956) decided on 11th May 1957.
Not invalid for omitting to provide expressly f or defence of - accused by a pleader, or for production before Magistrate within 24 hours of arrest-Criminal Procedure Code (h of 1898), Ss. 61, 167, 340, 344-Constitution of Pakistan, Art. 7 (1) (2)-Interpretation of Statutes-Constitutional safeguards must be deemed to form part of all laws which do not expressly negative their observance. Held, that the Frontier Crimes Regulation (III of 1901), was not invalid for failing expressly to provide that an accused person under the Regulation can be defended by a pleader, or that he should be produced before a Magistrate within 24 hours of his arrest, and, then, once, at least, within a fortnight, as was provided by sections 61, 167, 340 and 344, Criminal Procedure Code (V of 11398).
The provisions of the Constitution, which form the superior law of the land, must be read into laws which do not expressly or by necessary implication negative observance of Constitutional safeguards, such as that contained in Article 7 (1) (2) of the Constitution, and declaration as void of neutral laws may be avoided, if necessary by issuing proper directions.
Khair Muhammad Khan and another v. The Government of West Pakistan P L D 1956 Lai). 668 f ol.
S. 48 Absence of provision for appeal does not by itself invalidate Regulation.
Held, that the absence in the Frontier Crimes Regulation (III of 1901), of the right to appeal cannot by itself invalidate the Regulation. The right of appeal as such is neither a fundamental right recognised by the Constitution nor does it arise from the principles of natural justice. The principle that nobody shall be condemned unheard is observed if adequate opportunity to be heard impartially and in good faith is provided.
Khair Muhammad Khan and another v. The Government of West Pakistan P L D 1956 Lah. 668 and Hamesh Gul v. The Crown P L D 1955 Pesh. 1 ref.
Trial Inspection of record by counsel not a necessary ingredient of fair trial so long as obtaining of certified copies was permitted.
Held, that there was no reason to frown at the Regulation because of the manner in which it was administered. Its administration may be open to attack and those who have suffered on account of its misadministration may be entitled to obtain redress but this was different from the invalidity of the law itself.
If inspection of record of a case tried under the Regu lation was not permitted, but certified copies were obtainable, the objection on the score of denial of the aright of inspection of record was reduced only to an unnecessary expense becoming necessary, which was not a good ground for attacking the validity of the Regulation. Inspection of record was not a necessary ingredient of a fair trial.
The validity of the Regulation could not be impugned, specially because, such defects could now be set right by Courts by issuing suitable directions.
S. 1 (4) Discriminatory so far as application of certain provisions of Regulation to Pathans and Baluchis only was concerned Classification on racial basis-Notification No. 1096-Z dated Ist duly 1903 also discriminatory---Classification on basis of birth-Constitution of Pakistan, Art. 5-Other criminal provisions of Regulation based on reasonable classifications.
Held, that the classification of the population in sub section (4) of section 1 of the Frontier Crimes Regulation (III of 1901) on racial basis so far as Pathans and Baluchis were singled out from other people and made subject to certain provisions of the Regulation other than those which were of general application offended against Article 5 of the Constitution and therefore, subsection (4) of section 1 was void to that extent.
Further, the classification made in the Notification No. 1096-Z dated the 1st July 1903, on the basis of birth was void under Article 5 read with Article 4 of the Constitution. The classification on the basis of residential qualification however, was saved.
Held, also that the other provisions of the Regulation, so far as the cases of petitioners were concerned, were not objectionable from the point of view of Article 5 of the Constitution. There have been existing and presumably continue to exist conditions, circumstances and peculiarities of the population in British Baluchistan which can be taken to be reasonable basis for considering the territory to be a class by itself for the application of the provisions of the F. C. R. as a measure further to provide for the suppression of crime and the treatment of the territory and its population as a class is reasonable and bears a fair and substantial relation to the object of the legislation as set out in the preamble.
Jibendra Kishore Acharyya Chodhury and others v. The Province of East Pakistan P L D 1957 S C (Pak.) 9 fol.
Samundar and others v. The Crown P'L D 1954 F C 228 ; Kathi Raning Rawat v. State of Saurashtra A I R 1952 S C 123 State of West Bengal v. Anwarah A I R 1952 S. C. 75 and Zain Noorani v. Secretary of the National Assembly of Pakistan P L D 1957 S C (Pak.) 46 at p. 60 ref.
Yahya Bakhtiar for Petitioners.
S. Nasiruddin for Respondent.
QADEERUDDIN, J.-Four Writ Petitions Nos. 390 of 1956, 391 of 1956: 392 of 1956 and 482 of 1956 have been filed by various petitioners in which certain provisions of the Frontier Crimes Regulation, 1901 (III of 1901) hereinafter referred to for the sake of brevity as "the F. C. R." have been challenged as ultra vires of the Constitution. All of them arise from criminal cases referred to Councils of Elders or Jirgas under section 11 of the F. C. R. We propose to state the facts of these petitions separately and to deal under them with the objections raised during the arguments in relation to them individually including the objections under Article 7 of the Constitution against the validity of section 40 and allied sections; and afterwards to deal with the objections, which are common to them all, under Article 5 of the Constitution against subsection (4) of section 1 and section 11 and allied sections. We shall examine the legal aspects from the point of view of criminal law and our observations should be understood to apply to this aspect of the F. C. R. only.
Writ Petition Nos. 390 of 1956 and 392 of 1956 arise out of the same order of the District Magistrate, Quetta-Pishin. It appears from the order that on the night between 16th/ 17th November 1955 'shots were fired' by some persons at 1.30 a.m. in Killi Machan, Pishin. Inquiries showed that Fazal Muhammad son of Khanko, Fazil son of Yahya, Agha Muhammad son of Khanko, Khudai Nazar son of Ghulam, Wahid son of Tore, Jalandher son of Dadgir. Rozi Khan son of Bore, Baridad son of Khairo, the petitioners in Writ Petition No. 392 of 1956 along with some others had taken part in the firing at the instigation of Malik Behram Khan Alizai, who is the petitioner in Writ Petition No. 390 of 1956. The last named person was considered responsible for the conspiracy to commit acts of sabotage in order to obtain reward from the Afghan Government. The case was referred to a Special Jirga at Pishin. The Jirga found the accused guilty of conspiracy under the leadership and at the insti gation of Malik Behram Khan Alezai. It however recom mended that in view of a mafinama tendered by Malik Behram Khan Alezai and also in view of his being the head of his tribe and a member of Shahi Jirga he should be pardoned but that he should be bound down for good behaviour for three years in the sum of Rs. 20,000. The Jirga recommended that the petitioners in Writ Petition No. 392 of 1956 be sentenced to pay a fine of Rs.400 each or in lieu thereof to imprisonment. Malik Behram Khan Alizai petitioner and three other accused who are not petitioners, accepted the award of the Jirga but the remaining accused persons raised objections which were considered by the Jirga and were rejected. The findings and recommendations of the Jirga were forwarded to the District Magistrate, Quetta-Pishin which were accepted by him and he ordered as follows:
"I, therefore convict (1) Fazal Muhammad son of Khanko, (2) Agha Muhammad, son of Khanko, (3) Fazil son of Yahya, (4) Khudai Nazar son of Ghulam, (5) Baridad, son of Khairo, (6) Wahid Khan, son of Mahmud Khan, (7) Wazir, son of Tore, l8) Wazir Muhammad, son of Maluk, (9) Jalandar, son of Dadgir and (10) Rozi Khan, son of Bore, accused of an offence under sections 120A/307 P. P. C. and under section 12 (1) F. C.,R. sentence each to pay a fine of Rs.400 or in default to undergo rigorous imprisonment for 6 months. They shall under section 40 F. C. R. furnish personal bonds for Rs.5,000 each with 5 sureties in the like amount to be of good behaviour for three years.
As regards Malik Behram Khan, son of Mahmud Khan in view of his status and request for pardon and assurance that he shall remain loyal to Pakistan, as also of the recom mendations made by the Jirga I take lenient view and grant him pardon. He shall however, under section 40 F. C. R. furnish personal bond for Rs.20,000 with 10 sureties in the like amount to be of good behaviour for 3 years and further he shall deposit 5 rifles of 303 bore foreign make with the Government as security for his loyalty to Government."
Malik Behram Khan has alleged in Writ Petition No. 390 of 1956 that he was arrested at the bungalow of the Political Agent where he had gone to see him, that his applications for bail were either not decided or rejected, that an appli cation made by his counsel to inspect the record of the case was also rejected, that he was called by the Jirga at 'a late stage' to be included amongst the accused, that the allegations against him were not true, that he admitted the guilt and expressed regret for the alleged incident on the assurances that he would be pardoned, that he accepted the findings of the Jirga under the impression that the document on which his signatures were taken was a document by which he was going to be pardoned, that he filed a Writ Petition on 14th September 1956 which was admitted on 19th September 1956 until which date the findings of the Jirga were not acted upon by the District Magistrate but that on coming to know of the writ petition, the District Magistrate accepted them, that on or about 22nd September 1956, the petitioner was approached by certain persons who offered to get him released on bail and therefore he affixed his signatures on a document taking it to be a bail bond but it turned out to be a surety bond in terms of the order of the District Magistrate ; that he has not deposited rifles as required by the order but has reasons to believe that some persons have on his behalf and at the instance of the District Magistrate deposited them, and that his writ petition has been duly amended in view of the subsequent developments. He challenges the validity of the District Magistrate's order whereby he was required to give a surety bond in the amount of Rs.20,000 for good behaviour and also challenges the validity of the proceedings before the Jirga or the Council of Elders appointed under the F. C. R.
He has prayed for a writ of certiorari quashing the order of the District Magistrate dated 22nd December 1956, as well as the proceedings before the Jirga, and also for declaration that a trial or inquiry under the F. C. R. and the F. C. R. itself are void under Article 5 read with Article 4 of the Constitution. The grounds for this prayer are summarised under para. 27 of his petition, wherein it is contended by him that the order of the District Magistrate was mala fide inas much as it was passed after he came to know that the writ petition of the petitioner had been admitted; that any inquiry or trial under the F. C. R. after the date on which the Constitution came into force is illegal, as most of the provisions of the F. C. R. are inconsistant with the funda mental rights granted in Part II of the Constitution and there fore void, that the F. C. R. is a discriminatory enactment as several of its provisions are applicable only to Pathans and Baluchis under section 1.(4) ; that a trial or inquiry under F. C. R. does not afford equal protection of law granted by Article 5 of the Constitution that the petitioner was singled out by the District Magistrate to be dealt with under the F. C. R. which is not based on rules of justice, but on the considerations of expediency suggested by section 11, that the petitioner was tried under the F. C. R. for offences which are normally triable by the ordinary Courts with the object of securing his conviction, although there Was no evidence against him, that there is no provision in the F. C. R. under which an accused person can be defended by a counsel or produced before a Magistrate within 24 hours of his arrest and then after every fortnight so long as he may be under detention, which omission amounts to a violation of the provisions of Article 7 of the Constitution; that under section 48 of the F. C. R. an aggrieved person is deprived of the right of appeal, and lastly that the proceedings under the F. C. R. are against the principles of natural justice.
The writ petition of the petitioner was admitted on the 19th of September 1956, and the date of the order passed against him by the District Magistrate is the 22nd September 1956. Nothing has been shown to us to prove that the admission of the petition by this Court was within the knowledge of the District Magistrate at the time of passing the order and we are not prepared to believe, without good reasons that the order of the District Magistrate was mala fide. The allegations of the petitioner regarding conviction of accused persons under the F. C. R, in the absence of evidence, as well as his allegation that there was no evidence existing against him are of a general nature and unspecific and were not at all elaborated during the arguments. We cannot consider them. He admitted the guilt, accepted the findings of the Jirga and executed a bail bond with the requisite sureties. His allegations of the circumstances under which he did this and the circumstances under which the rifles were deposited in the terms of the order of the District Magistrate amount to allegations of fraud practised on him. We are not prepared to accept the allegations. The objection regarding the absence of any provision in the F. C. R. under which an accused person can be defended by a counsel or produced before a Magistrate within 24 hours of his arrest and then after every fortnight so long as he may be under detention which is raised before us, was also raised in Khair Muhammad Khan and another v. The Govefnment of West Pakistan (P L D 1956 Lah.668), and has been dealt with by a Division Bench. Kayani, J. who delivered the judgment took into consideration various objections which were raised against the F. C. R. under Article 7 of the Constitution. We may mention that no petitioner in any of the four writ petitions before us has alleged that in actual fact the terms of sections 61, 167 and 344 of the 'Code of Criminal Procedure were not observed, but arguments have been addressed to us generally on sections 40, 42-44 and 47-50 of the F. C. R. and it has been urged that certain provisions contained in them make them ultra vires of Article 7 of the Constitution. The learned judges have held that the F. C. R. was not unlawful on the ground it did not provide for the appearance of a legal practitioner, but have issued a direction that no evidence shall be heard or recorded against an accused person before he has been given an opportunity of defending himself by a pleader. The whole question of the detention of accused persons under the F. C. R. was considered by the learned Judges in Khair Muhammad Khan's case. The learned Judges have found that detention under the F. C. R. was throughout under the authority of a Magistrate and have held that Article 7 of the Constitution is not infringed. Where the authority of a Magistrate for detention under the F. C. R. is not discernible, the authority of the F. C. R. itself for such detention is held by them to be implied and it is observed that "so long as the Regulation is not an unlawful measure, detention for its purposes will also not be unlawful, provided it has a lawful origin." They have laid emphasis, without issuing any direction, on the desirability of adopting the procedure of section 344, Criminal P. C. so that there may be an opportunity at least once a fortnight for the person in custody to appear before the District Magistrate or any other Magistrate and bring his grievances, if any, to that Officer's notice. Their general conclusion is " . . . . if there is any provision in the Code (of Criminal Procedure) apart from the mode of trial, which can be applicable to a Jirga case. it shall be applied". Accordingly section 61 of the Code can be said to be applicable to the proceedings under the F. C. R. and this applicability satisfied the constitutional requirements under Article 7 (2) that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest. We are in respectful agreement with these observations of the learned judges and recognise the acceptance of the principles that the provisions of the Constitution, which form the superior law of the land, must be read into those laws which do not A expressly or by necessary implication negative the observance and that declaration as void of neutral laws may be avoided, if necessary by issuing proper directions.
The petitioner has raised an objection that an aggrieved person is deprived of the right of appeal under section 48 of the F. C. R. He was ordered by the' District Magistrate to furnish a personal bond for Rs.20,000 with ten sureties in like amount to be of good behaviour for three years, and to deposit five rifles of '303 bore of foreign make. With regard to such orders the learned judges have held as follows :--
"Under section 47, the provisions of the Code (of Criminal Procedure) relating to security for keeping the peace or of good behaviour and those relating to bonds have been so altered as to substitute the Commissioner for the Sessions Judge and the High Court.
Under section 50, the powers of the appellate Court as provided in the Code (of Criminal Procedure) have been conferred on the Commissioner."
Accordingly the grievances of the petitioner regarding the absence of the right of appeal does not appear to be of substance. Even if it be granted that there is no right of appeal in view of the judgment of another Bench of this Court in Hamesh Gul v. The Crown (P L D 1955 Pesh, 1), in it which was held another connection that sections 49 and 50 of the F. C. R. do not afford any remedy", we cannot see how the absence of the right to appeal can by itself invalidate their law. The right of appeal as such is neither a fundamental right recognised by the Constitution nor does it arise from the principles of natural justice. The principle that nobody shall be condemned unheard is observed if adequate opportunity to be heard impartially and in good faith is provided.
The learned counsel for the petitioner has contended that the proceedings of the Jirga and the F C. R. are against the principles of natural justice, but this is too vague an objection to bear examination. It was pointed out by him that the petitioner was called by the Jirga at 'a late stage', but we have not been informed what that stage was. During the arguments, the learned counsel did not discuss and apply the principles of natural justice to the facts of the case in order to show how the petitioner was prejudiced on account of Only disregard of these principles. His real emphasis had been on Article 5 of the Constitution. The arguments advanced by him on this provision of the law will be considered later. '
The petitioners in Writ Petition No. 392 of 1956 have alleged that it 'appeared' to them that most of the witnesses who appeared before the Jirga were examined in their absence, that they had filed a writ petition on 12th September 1956, challenging the validity of the findings of the Jirga which was admitted on 19th September 1956, that on coming to know of this the District Magistrate who had not until' then acted on the findings of the Jirga passed an order on 22nd September 1956 and convicted and sentenced them; that the petitioners have paid the fine and furnished the requisite security 'under protest' and were released from jail and that their writ petition was amended in view of subse quent developments.
They have prayed for the same relief s as asked for in Writ Petition No. 390 'on more or less the same grounds. The allegation that it 'appeared' to them that most of the witnesses were examined in their absence was uncertain from the outset and during the arguments this plea failed to attract better attention of their learned counsel. We need not examine the grounds taken in the petition because it will be a repetition of what we have already stated regarding the same objections.
The petitioners in both the writ petitions as well as in Petition No. 482 of 1956 are residents of Pishin Tahsil, Quetta Division, and their learned counsel has during the arguments challenged the validity of the District Magistrate's order and the proceeding of the Jirga on the basis of lack of territorial jurisdiction also.
He has argued that the petitioners being residents of Pishin Tahsil, that should not have been tried under the F. C. R. in view of the Circular No. 108-V.Z dated 18th June 1936. He referred to the Appendix of this circular and contended that the word "Pisbih" mentioned as item 4 should be taken to mean "Pishin Town and should not be taken to include "Pishin Tahsil". This distinction is obviously without any substance, and we do not feel the necessity of examining it further to find out how far the objection of the lack of jurisdiction can be based on this Circular.
The petitioner in Writ Petition No. 391 of 1956 namely Khair Muhammad Khan has alleged in his petition that he was arrested along with his servant Abdul Latif and three other persons in Pishin Bazar in January 1956 that no Pakhtoonistan literature and no explosive substance was recovered from his possession or from his residence, that the investigations were made and completed by the Quetta City Police, that one of the charges against him was that he intended to kidnap the District Magistrate himself, that on the request of the police the District Magistrate on 6th February 1956 ordered under sections 11 and 1 (4) of the F. C. R. that the petitioner be tried under the F. C. R. that the petitioner caused a writ petition (Khair Muhammad Khan and another v. The Government of West Pakistan) to be filed at Lahore in the High Court of West Pakistan to challenge the provisions of the F. C. R. as inconsistent with Article 7 of the Constitution which was dismissed but a direction was issued that "no evidence shall be heard or recorded against the accused before they have opportunity to defend themselves by a pleader", that he therefore expected that he would be allowed to be defended by a pleader, that on 6th August 1956 without giving him an opportunity to call his pleader a Council of Elders was "appointed" by the Deputy Commissioner, "against the consent of the petitioners", that on 27th August 1956, he applied to the District Magistrate for the transfer of the case but his application was dismissed, that on 4th September 1956 he applied for permission to his counsel to inspect the file of the case but this application was also dismissed and that, therefore, he has filed the present writ petition which is his second writ petition. He has challenged the F. C. R. as ultra vires and void in view of the fundamental rights recognised in Part 11 of the Constitution and has prayed for a writ of certiorari for quashing the four orders of the District Magistrate dated 6th February 1956, 6th August 1956, 31st August 1956, 4th September 1956 and has also prayed for a writ of prohibition to stop his prosecution under the F: C. R.
His previous writ petition was decided at Lahore by the High Court of West Pakistan on 10th May 1956 and therefore the order of the District Magistrate dated 6th February 1956, being an order of an earlier date cannot be allowed to be questioned in this writ petition. The learned counsel tried to argue that all orders passed by the District Magistrate were equally vitiated because there was a charge against the petitioner of the intention to kidnap the officer himself but this argument was half lost and half abandoned in the vain struggle to explain as to why this objection was not taken at Lahore in the previous writ petition. The objections raised on behalf of the petitioner regarding the orders passed on the subsequent three dates do not appear to us to be sound. It is alleged in para. 11 of the writ petition that on 6th August 1956, without giving the petitioner an opportunity to call his pleader, a Council of Elders was appointed against the 'consent of the petitioner. It is denied in the counter affidavit that the petitioner was not given an opportunity to call his pleader and it is stated that a counsel for him has been appearing in hearings whenever they were fixed. We there fore do not believe that the petitioner was not given an opportunity to call his pleader. Subsection 2 of section 11 of the F. C. R. does make it necessary that the names of the members of the Council of Elders should be communicated to the accused person and that any objection which he may take to any such person be recorded. The objections are to be taken into consideration but they may be accepted or rejected. The consent of the accused person to the Council of Elders is not necessary. In para. 12 the petitioner has alleged that on 27th August 1956, he applied for transfer of his case to the ordinary Criminal Courts but that his application was dismissed. The prayer of the petitioner for the transfer of the case to the regular Criminal Courts was not properly conceived if the case was validly referred to the Council of Elders under section 11 of the F. C. R. His case had already been referred to the Council of Elders when he filed his first writ petition at Lahore on 27th March 1956, in the High Court of West Pakistan and it has been dismissed with the direction which has been reproduced above. In para 13 of the present writ petition the petitioner has alleged that his counsel applied on 4th September 1956, for the inspection of the file of the case but was not allowed to do so The order by which the application was rejected is as follows :-
" In accordance with the Order No. 199-V dated 23rd May 1939, by the former A. G. G. and C. C. Baluchistan issued by him under the powers conferred on him under section 62 of F. C. R. inspection of records of F. C. R. cases, whether decided or pending is not permitted. Rejected."
Mr. Bakhtiar the learned counsel for the petitioner has argued that the right of inspection is implied in a fair trial because without inspection of the record of the case the accused cannot know fully the nature of the charges against him and cannot prepare his defence. He has relied for this proposition on Parashuram Detaram Shamdasani v. Sir Hugh Gelding Cocke and another (A I R 1942 Bom, 26). It was held in this ruling that the right to obtain certified copies appeared to presuppose the right of inspection because a party could not be expected to make up his mind without inspection whether a certified copy of a document should be obtained or not. It was held.
"To require a party to take certified copies of all docu ments on the record in order to determine of which documents he really requires a copy would seem to involve unnecessary expense and trouble. Therefore, I think prima facie under section 548 a party would have an implied right to ask the presiding Magistrate or judge to allow him inspection of the record referred to in the section.
We wanted to ascertain whether even certified copies were granted to the accused person-or not and in reply to our inquiry an affidavit has been filed on behalf of the respondents in which it is stated as follows :-
"That the practice that has been observed in respect of cases before the Council of Elders is that the accused is allowed copies of such documents as are placed before the Council of Elders, or evidence recorded by them, when asked for, and this practice has been observed by the District Magistrate, Quetta-Pishin, in respect of every matter without discrimination."
This affidavit provides the basis for the presumption which was raised in the Bombay ruling, but neither the prosecution nor the ruling support the contention of the learned counsel that inspection of the record is a necessary ingredient of fair trial. The argument is reduced to the objection that unnecessary expense becomes necessary and this is not a good ground for attacking the validity of the procedure under the F. C. R. Inspection was disallowed on account of an order which was issued by an A.G.G. and C.C., Baluchistan in 1939, but provision for giving suitable facilities for the inspection of the record with proper, safeguards for its safety and the exclusion of these documents only which may be innocuous from the, point of view of defence is not inconsistent with the F. C. R. A great part of the procedure which has been hitherto adopted and of the instructions and orders which were issued was a reflection of the attitude of the mind of the authorities resulting from the political complexion of the country as a whole and the state of the law as it existed then and the compelling need, as far as the most important procedural provisions of the F. C. R. which have been analysed before us and their application, enforcement and operation are concerned, is not as much of a change in the law itself as of the rectification of the attitude of the mind of its adminis trator. We take, for example, section 11. In this section the permission to the Jirga to come to a finding "after such inquiry as may be necessary" states into the face of the first glance at the provision as something horrible but on re reading the section we can realise that the discretion of the Jirga in the choice of the procedure of the inquiry is not absolute. 'Necessary' enquiry must be made. The meaning and import of the word "necessary" may differ from Council to Council, but its essentials are fixed by the principles recognised from time to time. Today the observance of the principles of natural justice and carrying into effect the fundamental rights are the first necessity. On the 14th of August 1936 A. E. B. Parsons, A. G. G. in Baluchistan found it necessary to exclude even a remote connection of a legal practitioner with the proceedings under the F. C. R. and he issued the direction
"In future when any applications are received, bearing on the face of them that they have been drafted or presented, by a legal practitioner they should be refused."
On 10th May 1956 a Division Bench at Lahore of High Court of West Pakistan held.
"From now on, we should treat Article 7 as a part of every law relating to trial for an offence. We shall, therefore issue a direction that no evidence shall be heard or recorded against the accused before they have been given an opportunity of defending themselves by a pleader, and this shall he the rule in future."
The learned judges have also held as mentioned before that all those provisions of the Code of Criminal Procedure, apart from the mode' of trial, shall be applied to a Jirga case. The applicability of the Code of Criminal Procedure was recognised by the administrators also but the Secretary to the A. G. G. ruled on 14th June 1937
"Sections 145 and 146 of the Criminal P. C. can be legally used in suitable cases but care should be taken not to substitute as a general rule too regular a procedure for that of the Frontier Crimes Regulation."
He considered that the sketchy and flexible procedure to be good enough for his purpose in those days. The law itself is mainly neutral and can be mostly made to fit into the existing requirements. This was realised as early as on the 31st July 1907 when Sir Henry McMahon observed as follows:-
"The Frontier Crimes Regulation will be found to provide all necessary legality for any order which any case may require and which does not involve a miscarriage of justice or is not contrary to good conscience or public policy. The procedure also laid down is intentionally of so wide a nature that no officer need have any difficulty in keeping his proceedings within the prescribed limits."
There is no reason to frown at the law itself because of the manner in which it was administered. Its administration) may be open to attack and those who have suffered on C account of its misadministration may be entitled to obtain redress but this is different from the invalidity of the law itself.
The petitioners in Writ Petition No. 482 have alleged that a child by the name of Abdur Rahim was found murdered in a village known as Sinzai in Pishin Tahsil, in connection with which 20 persons were arrested including Faiz-ul-Haq, who is a cousin as well as the step-father of the murdered child. The mother of the child and two half sisters were anxious that the murderer should 'be brought to book. One of the petitioners, namely Abdul Haq is an attorney of the two half sisters of the deceased. He sus pected that the Tahsildar of Pishin was trying to shield some of those who were suspected of the crime and therefore he made complaints against the Tahsildar, as a result of which complaints the investigation of the case was transferred from him to another Tahsildar. The Tahsildar of Pishin it is stated, thereafter tried to implicate the petitioners in the commission of the offence, as a result of which they were arrested on the 18th October 1956 on a charge under section 302, P. P. C. The petitioners applied to the District Magistrate for release on bail and were ordered to be released on 22nd October 1956. The District Magistrate is alleged to have himself become interested iii the case, and therefore the release of the petitioner was postponed until the 25th October 1956, in the afternoon of which date the petitioners were re-arrested, under section 41 of the F. C. R. as they were leaving the jail and were never produced before the District Magistrate but were locked up in the same jail. The order under which they were re-arrested is as follows.
"I have perused the reports of the Special Investigation Officer in this case and I am convinced that Abdul Haq and Abdul Majid are taking very active part in the case of murder of the minor Abdur Rahim son of Said Muhammad Tarin and are causing disappearance of evidence and screening the offenders. This is a very important case which is still under investigation and unless such persons as are interfering with the inquiry are prevented from doing so, there is every likelihood of further bloodshed between two factions of Tarins. I. therefore, under section 41 F. C. R. direct that Abdul Haq and Abdul Majid shall be arrested forthwith and produced before me. Warrant of arrest to issue urgently".
They again applied to the District Magistrate to be released on bail, but their application was rejected. They therefore made an application to the Sessions Judge, Quetta Division, who ordered as follows :-
"This is an application under section 498, Criminal P. C. for grant of bail.
The two applicants Abdul Haq and Abdul Majid were previously arrested for offences under section 302, P. P. C. by the District Magistrate, Quetta-Pishin but on an application made to this Court, they were ordered to be released on bail. The allegation is that as soon as they were released, they were re-arrested by the order of the District Magistrate under section 41 of the F. C. R. I have gone through the order made by the District Magistrate dated the 25th October 1956, whereby fresh warrants were issued against the two applicants. This order is based on the reports of the Special Investi gating Officer and the learned District Magistrate was satisfied that the two applicants were taking active part in the case of murder of the minor Abdul Rahim son of Said Muhammad Tarin and are causing disappearance of evidence and screening the offenders. It was further laid down that unless such persons were prevented from doing so there was every likely hood of further bloodshed between the two factions of Tarins. It is not the function of this Court to unnecessarily interfere with the investigation being carried out by the District Magistrate and other Political Officers under the F. C. R. but when it is brought to the notice of this Court that there is an illegal detention, it is bound to interfere. In security proceedings the applicants, as of right, are entitled to bail. If the learned District Magistrate considered that immediate measures were necessary for the prevention of a breach of the peace during the pendency of the enquiry he could direct the applicants to execute a bond with or without sureties for keeping the peace until the completion of the enquiry and if the applicants refused to execute a bond or failed to furnish security as directed, then they could be kept in custody until the completion of the enquiry. I, however, refrain from passing any order on the bail application and direct the learned District Magistrate to make necessary interim order of security and then to proceed with the enquiry as early as possible, failing which necessary order about the bail shall be made by this Court. File be consigned to the record.
Announced 2nd November 1956."
On 5th November 1956, the District Magistrate gave a notice under sections 40 and 41 of the F. C. R., and called upon the applicants to execute, a bond for good behaviour. The petitioners expressed willingness to execute the requisite bond with sureties. The District Magistrate accordingly ordered on 5th November 1956, that the bonds be executed, which were executed by the petitioners and they were released from the custody. The petitioners thereafter filed the present writ petition with a prayer that a writ of certiorari may be issued quashing the order of the District Magistrate dated the 25th October 1956, whereby they were ordered to be re-arrested, as well as the order dated 5th November 1956, whereby they were ordered to execute bonds with two sureties.
The main grounds on which the petitioners challenge the legality of the orders are :-
(i) that the F. C, R. is a discriminatory enactment and its provisions, including sections 40 and 41 are inconsistent with the fundamental rights granted by Part II of the Constitution.
(ii) that the procedure laid down in the F. C. R. con travenes the provisions of Article 7 of the Constitution.
In this writ petition the learned counsel of the petitioners dwelt on sections 40, 44, 49 and 50 of the F. C. R. and questioned their validity under Article 7 of the Constitution. These objections, except one, have already been considered. The objection which remains to be considered is that a law which indirectly contravenes the principles of Clause (4) of Article 7 cannot be saved only because ostensibly it shows respect to the principles of the Constitution. The contention is explained by referring to the provision in subsection (1) of section 40 of the F. C. R. which is to the effect that under certain circumstances the proper officers can order the person concerned to execute a bond for good behaviour and for keeping the peace up to a period of three years and then 04 the provision that if he fails to give the security, he is to be committed to prison under section 44 (1) until the period for which security is demanded expires or until, within that period, he furnishes the security. This, it is contended violates Clause (4) of Article 7 of the Constitution, for although such imprisonment would be strictly speaking for failure to give security but a demand made at random for furnishing security amounts to giving a choice to the person concerned between preventive detention in violation of Article 7 (4) or carrying out an oppressive order. Moreover, it is argued, that once the demanded security is given it can be forfeited under section 43 and thus the oppression can be aggravated. The proviso to subsection (1) of section 42 does lay down that a person from whom it is proposed to take bond shall be given an opportunity of showing cause in Court why a bond should not be demanded but this, it is argued, does not provide adequate oppor tunity for being heard because the application to such hearings of sections 112, 113, 115 and 117 of the Code of Criminal Procedure is excluded by subsection (2) of section 42. The argument boils down to the plain objection that an adequate opportunity to be heard is not provided in the security proceedings under the F. C. R. because all the provisions of Chapter VIII of the Code of Criminal Procedure do not apply to them. A short reply, on the lines adopted by Kayani, J. in Khaar Muhammad Khan's case, is that they are not proceedings under the Code of Criminal Procedure and that the provision of sections 112. 113, 115, 117 of the Code are not of compelling force in these proceedings, Chapters VIII and XLII of the Code of Criminal Procedure with some modifications are made applicable by section 47 of the F. C. R. to these proceedings and the objection that they do not apply in their entirety is not an objection based on any essential principle. There are some disadvantages to the persons dealt with under the F. C. R. as compared to the proceedings under the Code, but every disadvantage resulting from the special procedure of a special law does not make such law invalid. Moreover, a claim to the right for equality before law and equal protection of law cannot be sustained, even when there are substantial inequalities, by dwelling on them alone for the centre of discussion needs to be shifted soon to the investi gation of the existence or non-existence of a reasonable basis for the differentiation.
All the four writ petitions were heard together. Mr. Yahya Bakhtiar argued them on behalf of the petitioners. Mr. Bakhtiar who was formerly practising at Quetta, was helpful to us in appreciating the Jirga system, its actual working and the special circumstances which have led to the application of the F. C. R. in North West Frontier Province and Baluchistan. He has taken us through the political history of the States of Baluchistan, the Tribal (or Special) Areas of Baluchistan, the Leased Areas of Baluchistan and the British Baluchistan or the Chief Commis sioner's Province. Pishin falls within the area of British Baluchistan. He informed us that this territory was surrendered by King Yaqub Khan of Afghanistan after the Afghan War III to the British Government under the Treaty of Gandomuk in 1879; in the beginning, Certain laws of India with suitable modifications were extended to it under the Scheduled Districts Act, 1874; in 1890 special enactments were passed for this area which included the Law's (sic.) law, the Civil Justice Law and Regulation, the Criminal Justice Law and Regulation, and the Forest Law and Regulation, the Civil and Criminal Justice Regulations were re-enacted in 1896, when the post of the Judicial Commissioner was created ; in the meantime in 1890, the Punjab Frontier Crimes Regulation was applied to this territory and was replaced on 1st November 1901, by the present Frontier Crimes Regulation (III of 1901) by a Notification No. 9350 of the Chief Commissioner ; at present it is in force in the territory under the British Baluchistan Laws Regulation (II of 1913) ; the Code of Criminal Procedure was extended to this territory in modified forms and now it is in force and used in the ordinary Criminal Courts in terms of subsection (2) of section 1, which are :-
"(2) it extends to all the Provinces and the Capital of the Federation ; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being m force".
The F. C. R. the Rulings and Orders issued under it from time to time are contained in a book generally known as the "Green Book", the official title of which is "the Administration of Customary Law through The Frontier Crimes Regulation in Baluchistan". Mr. Bakhtiar supplied to us a copy of the Manual of the Customary Law in Baluchistan, from which it appears that the compiler of this Manual had read a Paper on the Frontier Crimes Regulation in 1917 and published it in 1919 after including in it some additional information. It appears that the writer had 'traced in it the history of the Special Regulations passed for the Frontier Districts from 1e72 onwards up to the date of its publication. That publica tion could not be produced by the earlier advocates for our perusal, and therefore we have to understand the situation with the help of the material which is contained in the Green Book, the Manual of Customary Law and the information conveyed to us by Mr. Bakhtiar during the course of his address to us.
As the name suggests, "The Frontier Crimes Regulation, 1901" was originally enacted for certain Frontier Districts as an additional piece of legislation "to provide for the sup pression of crimes". The preamble of the Regulation is as follows :-
"Whereas it is expedient further to provide for the suppression of crime in certain Frontier Districts, it is hereby enacted as follows :
During the period of conquest, annexation mid acquisition of territory by the British Government it was found that special pieces or legislation were necessary for maintaining law and order so as, at the same time, to win and retain the sympathy, support and loyalty of the population. The Frontier Crimes Regulation of 1901 is one of these pieces of legislation and aims at letting the population its own way, so that its sentiments, prejudices and predilections may remain untouched and the local custom of settling disputes with the help of their representatives may be utilised for the purpose of maintaining peace by warding off the chances of the commission of crime on account of new blood feuds and tribal jealousies and by preventing a fresh dare-up for the commission of crime on account .of existing feuds, jealousies and similar reasons peculiar to the territory. In Baluchistan the emphasis of the administration. Lin the recognition of customary and tribal law seems to have been more than in the Frontier Districts which formed a part of the Punjab and the N W. F. P. The following observations of Sir Henry McMahon Agent to the Governor-General and Chief Commissioner in Baluchistan in his Circular Order Sated the 31st July 1907, would elucidate this difference on emphasis.
6. A study of the past and present Frontier Crimes Regulations will show as the history of their origin confirms, that they are due to an endeavour to graft a Jirga system on to a purely judicial system of procedure. It cannot be said to have been very successful in the Punjab Frontier Districts or the present North-West Frontier Province for which it was drawn up,, because the judicial system of procedure on to which it was grafted, had in that country already killed the customary and tribal law without which no Jirga system can be really effective or successful. The result has been in the past, and possibly still is, to make the Frontier Crimes Regulations merely an alternative, and easier method of applying ordinary, criminal law and exacting, without variation, the penalties laid down by the Criminal Procedure and I. P. Codes. Imprisonment acid fine are the stereotyped punishments and these, but for the extra labour involved in securing con viction, might as far as practical results are concerned, just as well be inflicted by the ordinary Criminal Courts.
7. In Baluchistan the conditions are widely different. Customary and tribal law still exists in full force, and forms under our Jirga system, an instrument for the suppression of crime which in simplicity and. effectiveness can be surpassed by no other legal instrument that we can invent, for the simple reason that it is based on the character, idiosyncrasies and prejudices of the people among whom it has originated and by whom it has been gradually evolved during long periods of time to meet their own requirements and remedy their own failings.
The settlement of disputes which essentially meant settlement of feuds and tribal jealousies with the object of establishing peace and tranquillity in this manner obviously meant that the administrative offers had to bestow their personal attention on public affairs and administration of justice on the criminal side. This was recognised by Sir Henry McMahon who said that the Jirga system, as compared to ordinary judicial procedure, conduced to no saving of labour of District Officers in any one particular case, but it was beneficial on the whole as it saved their time "in that it effectively reduces crime".
His observations in the last para of the circular show that the object of the administration was to understand the character and the prejudices of the people so that they might not be unwittingly displeased and thus the maintenance of law and order should become difficult. He has pointed out the difference between the proper attitudes towards the population in general and towards the heads of the com munities in the following words.
"In conclusion it cannot be too strongly impressed on District Officers that in every case arising out of a dispute or feud, the settlement of that dispute or feud is the primary consideration, not the mere punishment of the perpetrator of some last incident in its history. A satisfactory settlement necessarily includes all that is required as regards punishment while the latter by itself more often than not only increases the difficulty of sub sequently effecting the former. The heirs to a feud are not undeserving of sympathy. They are often compelled to act by impulses, which we are strangers to by home and social influences which overcome all fears and scruples, and their actions must not be judged by our ordinary standards. What they do is not intentionally in defiance of our law, or as an insult to our authority. In most cases two active parties in a feud are sufficient and there is seldom room or occasion for vindictive interference on the part of a third party in the person of Indian Criminal law. Their own law properly administered by us, generally suffices to meet both their and our needs. Where punishments, as such, of an independent nature can often be effectively and profitably bestowed is in the case of the heads of communities, village or tribal, who knowing a feud exists and that certain persons are likely to commit offences in pursuance of such (sic) fail to take steps to settle the feud themselves, or bring it and its probable consequences to the notice of the District authorities".
Sit Frederick Johnston, Agent to the Governor-General and Chief Commissioner in Baluchistan, has gone to the extent of attributing the establishment of comparative peace and tranquillity in the territory to the respect by the administration for the custom and outlook of the people. In his circular dated the 18th February 1927, he has remarked as follows.
"The matter is one of general interest and deals with a question involving the genius of administration in Baluchistan as the comparative peace which has obtained over the vast area of Baluchistan is largely due to the principle of confining to such minimum as is necessary to maintain law and order interference with the private life and customs of the people and of leaving to them the settlement by their customary methods and tribunals of their internal affairs, while at the same time seeing that such settlement is made in a satisfactory way, so as to preclude the administrative failure and unrest consequent on the grievance of un required wrongs".
There were obvious difficulties in the application and enforcement of the F. C. R. even to the inhabitants of these territories. It was difficult to leave it to them to formulate their complaints and to establish them before the authorities, and it was necessary that their points of view and real grievances should be investigated as a preliminary step before attempts could be made to find redress for their grievances. Sir John Ramsay, Agent to the Governor-General and Chief Commissioner in Baluchistan, has adverted to this need in his circular dated the 12th September 1912 and stated.
"As has been pointed out by Sir Henry McMahon in his Circular No. 305-V.Z., dated 31st July 1907, the real object to be aimed at is the settlement of existing disputes and the prevention of further disputes, and to attain these objects it is necessary to understand clearly the true nature of the existing disputes. Petitioners seldom state their cases fully and intelligibly, and it sometimes happens that the alleged cause of complaint is only urged as a means of harassing the defendant because some entirely different dispute exists between the parties. The Hon'ble the Agent to the Governor-General therefore considers that when a complaint is received it should be carefully examined by the officer receiving it, with a view to seeing whether it contains a clear and full statement of the case; and if it does not contain such a statement or if it leaves obviously relevant points unnoticed the complainant should be examined and the result recorded as a continua tion of the petition.
The Hon' ble the Agent to the Governor-General has found it a good plan, on the first appearance of the two parties to ask one or more impartial persons of local influence to discuss the dispute with the parties, with a view to seeing whether the recorded statements really deal with the matter which form the cause of the dispute between the parties and also with a view to trying whether (a) the dispute cannot be settled by a razinama or (b) the parties cannot be induced to appoint arbitrators, or (c) failing the appointment of arbitrators, whether the parties cannot be induced to nominate the persons who would be acceptable to them as members of a Jirga to be appointed to settle their dispute.
It may perhaps be considered that the parties will be inclined to nominate persons who are partial, but if both the parties accept the nomination of arbitrators or members of a jirga it is probable that the partiality will be equally divided, and the system sketched above ensures that the persons who are to settle the dispute will take a real interest in it, or are men whose opinions will carry weight in the district. The present system of deciding nearly all disputes by Jirga is a most excellent one, in the opinion of the Agent to the Governor-General, but it cannot be denied that it makes great demands on the time and patience of the leading men of the district; it is therefore desirable from every point of view to do all that is possible to nominate Jirgas which afford a reasonable hope of satisfying the parties and thus avoiding the necessity of subsequent references to the same or a different Jirga".
Lt. Colonel A. E. B. Parsons laid great emphasis on the proper selection of the members of a Jirga. He said-
"Lists of District and Local Jirga members exist, which should consist mainly of tribal leaders. There is however danger of creating a class of professional Jirga members, and the Agent to the Governor-General will have no objection to the nomination of other suitable persons to act. The Agent to the Governor-General attaches great importance to the careful selection of Jirga members for each individual case. As far as possible they should be the tribal leaders of the parties, come from the same locality as they, and be in a position to know the full facts of the case. Section 11 (2) provides a safeguard against bias".
The instructions issued by the high administrators were based on their appreciation of the conditions prevailing in the territory and the outlines of the procedure laid down in the law were so spacious that the patterns-created by the instructions issued from time to time could be placed, shifted and replaced within them without changing the boundaries.
The administrators were not oblivious of the comparative values of customary and tribal law and the ordinary criminal law. Sir Henry McMahon has pointed out certain defects of the customary and tribal law apparently in order to impress the necessity of having patience with it and observed.
"Of one thing we must especially beware and that is any attempt to improve that law through any mistaken idea that our ordinary criminal law is in any way superior to it or likely to surpass it in efficiency."
This comparison was not based on the consideration of specific provisions of the ordinary law but on the experience of the efficacy of the methods of removing grievances and settling criminal disputes for the purposes of smooth and satisfactory political and criminal judicial administration. Their experience was not that the application of the F. C. R. to the ordinary offences amounted to meeting out a harsher treatment than was permissible under the ordinary criminal law. On the contrary, as pointed out by Lt. Col. A. E. B. Parsons, in his circular dated 18th June 1936, it was a concession granted to a tribal offender that he should be tried according to his customary law. Such a trial afforded an opportunity to pay heed to the status of the offender and therefore to take into account the good, bad or indifferent influence of the offender on the prevalence of crime in the society.
Mr. Bakhtiar has not disputed the confessional nature of an enquiry under the F. C. R.-nor could he in fairness do so because his client Malik Behram Khan, the petitioner in Writ Petition No. 390 would not have been pardoned by the ordinary Courts once he was found guilty, but has contended that the flexible nature of this law provides the chances of its misuse to the administration. He has argued that the F. C. R. has often been used to secure convictions in cases in which the police were not able to investigate an alleged offence in a proper manner whether on account of its own inefficiency or on account of difficulties of investigation due to tribal affiliations and alliances. He has stated that offences which had a political complexion have been sometimes referred to the Jirga in order to save notoriety and hush up differences. Sometimes, according to him the F. C. R. has been misused by officers from motives of corruption. According to him this piece of legislation is one of the worst instances of tying up the judiciary with the administration with such close bonds that the administration of justice to any fair extent can be made impossible by the administration. A concession .can certainly be given to certain parties under this law but this itself, according to ham means inequality before law and unequal protection of law to the citizens of the country. This inequality, according to him, is perpe trated in the administration of justice on the criminal side by the revoltingly large power and discretion conferred by section 11 in the choice of the form and essentials of enquiry.
Mr. Bakhtiar has explained that his argument is not simply that the law is capable of being administered in 'a discriminatory manner, because such an argument would not be sustainable after the decision of our Supreme Court in Jibendra Kishor Acharyya Choudhury and others v. The Province of East Pakistan (P L D 1957 S C 1 (Pak.) 9) but that the F. C. R. is discriminatory ex facie because firstly all disadvantageous deviations permissible under section 11 of the F. C. R. from the ordinary procedure laid down in the Code of Criminal Procedure and secondly all disadvantageous deviations permissible under section 12 of the F. C. R. from the normal punishments prescribed in the P. P. C. are differentiations and inequalities when they apply to those offences which are triable under the ordinary law also.
Mr. Nasiruddin, the learned counsel for the respondents in all the writ petitions has not denied that many deviations of the nature stated, on behalf of the petitioners can result in disadvantage in varying degrees to the offenders to whom the F. C. R. is applied, but has argued that the attack on the law will remain ineffective so long as it is not established that there is no reasonable and rational basis for such differentiation amongst offenders. He also referred to the circulars issued by high political and administrative officers and has contended that the circumstances which have been noted in them and the reasons deducible from them reveal the existence of the circumstances and conditions which justify a special classification on territorial and population basis of British Baluchistan for the enforcement of the F. C. R. The principle having now been settled that equality before law does not mean that every law must have universal application for all persons who are not by nature of circum stances in the same position, all that remains to see is whether there is reasonable basis for treating British Baluchistan and the inhabitants of the territory to form a class for the purposes of the application of the F. C. R. or not. The habits, customs, history, prejudices and character are amply explained by the circulars of high administrators issued during a period of more than three decades and are convincing enough to be taken as the basis for classifying this territory separately from the other parts of the country where the F. C. R, is not applicable. He has referred to the following observations contained in the judgment of the Federal Court on the petitions of Samundar and others v. The Crown (P L D 1954 F C 228)
"I am therefore clearly of the opinion that the pro ceedings which have been taken in the present cases are not to be regarded as proceedings in justice, but that they are from every point of view to be regarded as proceedings before an administrative agency, specially provided for the settlement of criminal causes, and specifically adapted to the conditions prevailing in frontier districts, at any rate at the time when the Regulation was enacted", and again:
"It (F. C. R.) is essentially to be regarded as an instru ment embodying the settlement of rights between the contestants, which also satisfies the interests of public policy, by which can only be understood, in relation to an unsettled or frontier area, the general administrative policy of the Government".
These observations in which the prevalence of special and unsettled conditions and circumstances are recognised, according to Mr. Nasiruddin, apply with equal force to British Baluchistan and once it is conceded that special circumstances and conditions prevailed in this territory it cannot be said that an objection can be validly taken to the validity of this law under Article 5 of the Constitution. He has argued that under section 114 of the Evidence Act the continuance of the circumstances which are recognised to have prevailed at one time should be presumed and that the (1) applicants have to show that those conditions and circum stances have ceased to obtain in the territory before they can succeed in their attack on this law under the Constitution.
Mr. Bakhtiar has wisely not indulged in rhetoric s to find a reply and has not tried to cloud an issue of fact by emotional generalisations and sweeping remarks in spite of the obvious temptation to exploit the feelings which spring from the consciousness of independence and enforcement of a Republican and Islamic Constitution in the country and has been content with pointing out that the Scheduled Districts Act, 1874 gave place to section 95 of the Govern ment of India Act, 1935, which was replaced by section 95-A by an amendment in 1949 and that this evidenced a recog nition by the Legislature of a change in the circumstances. Furthermore, according to section 7 of the Establishment of West Pakistan Act, 1955 the jurisdiction of the High Court has been extended to all territories including British Baluchistan excepting the special areas. Moreover, under Article 104 of the Constitution special' areas only are treated as a separate class and the jurisdiction of the High Court and of the Supreme Court has been excluded from the Special areas only. As the Special areas do not include British Baluchistan it is to be inferred that the Constitution does not regard British Baluchistan to be a special class of territory. This argument of Mr. Bakhtiar does not appear to go to the root of the problem because in spite of the extension of the jurisdiction of the High Court and of the Supreme Court to this territory there, is the continuance by the Legislature itself of the application of-the F. C. R. to it and as such the considerations in justification of this piece of legislation cannot be said to have been excluded in their application to it.
Mr. Bakhtiar has next argued that there is discrimination in the same class of people also because under section 11 of the F. C. R. the Chief Commissioner or Deputy Commissioner can refer "the opinion of the guilt or innocence of any person or persons accused of any offence" to the decision of the Council of Elders if they consider it inexpedient that such a question should be tried by ordinary criminal courts. The considerations according to him before the Chief Commissioner or the Deputy Commissioner are purely of expediency and they can arbitrarily pick and choose "any person" for "any offence" irrespective of the class to which he may belong to be referred to the decision of the Council of Elders. These considerations of expediency, he contended, are uncontrolled and unguided excepting for racial considera tions which are mentioned in subsection (4) of section 1 of this law and that the racial considerations are also transgressed because it is possible for the Chief Commissioner and the Deputy Commissioner to pick and choose even the question of guilt or innocence of any Pathan or Baluchi for reference to the Council of Elders. According to him sections 1 (4) and 11 to 16 of the F. C. R. should therefore be held to be invalid under Article 5 of the Constitution. In support of the first proposition he has referred to the majority opinion expressed in the State of West Bengal v. Anwar Ali and another (A I R 1952 S C 75) in which it was held that the West Bengal Special Courts Act of 1950 was invalid as it ignored the principles of classification followed in the Code of Criminal Procedure and laid down a new procedure without making any attempt to particularise or classify the offences or cases to which it was to apply. It was held that the speedier trial of offences which was the object of the Act did not provide a good guide either for making differentiation in offences or individual cases. The necessity of speedier trial was held to be too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In support of the second proposition he has contended that any classification based on considerations of race, caste, creed, birth or colour is obnoxious and unsustainable. In support of the contention that the classification followed in the F. C. R. is based on considerations of race the learned counsel relied on the terms of subsections (4) and (5) of section 1 and the explanation to the section, which are as follows:
"(4) Sections 1 to 5, 10, 20, 21, 26 to 28, 31, 32, 36, 37, 56 and 60 to 64 are of general application, but the remaining sections may be enforced, in whole or in part, as the case may be, only against Pathans and Baluchis, and against such other classes as the Local Government may, by notification in the local official Gazette, declare to be subject there to.
(5) A Notification under subsection (4) may declare a specified class only to be subject to all or any of the provisions of this Regulation in a district or part of a district. Explanation.-The word "class", as used in sub sections (4) and (5), includes any persons who may be collectively described in a notification under this section as persons subject to all or any of the provisions of this Regulation."
It should be noted that except for the sections specifically mentioned in subsection (4) as of general applica tion the remaining sections are not made applicable to Pathans and Baluchis but are left to be made applicable to them as well as to any other classes of persons as the local government may declare to be subject to them. A notification was issued under this subsection on the 1st July 1903 and according to the counsel of the respondents is still in force. It is as follows:
"No.1096-Z., dated the 1st July 1903.-In exercise of the powers conferred by section 1, subsection (4) of the Frontier Crimes Regulations, 1901 (III of 1901), as extended to British Baluchistan, and with the previous sanction of the Governor-General in Council, the Chief Commissioner is pleased to declare the following classes of persons, not . being European British subjects, to be subject to the ' whole of such sections of the said Regulation as are not of general application, namely :-
(1) All persons born or ordinarily resident
(a) in any local area to which the said Regulation for the time being extends or has been applied and in which all or any of its provisions, or its provisions as applied are for the time being in operation, or
(b) in any other local area, not forming part of : British India, bordering on the territories for the time being administered by the Chief Commissioner of British Baluchistan or by the Agent to the Governor General in Baluchistan as such Agent or situate within or bordering or any part of the dominions of His Highness the Khan of Kalat, or
(c) In any part of Afghanistan or Persia.
(2) All persons dependent upon persons of the preceding classes whether as tenants, servants, clansmen or retainers of any kind, and
(3) All persons accused of being jointly concerned in the commission or abetment of an offence with persons of the preceding classes."
Accordingly those sections which are not of general application are applicable, excepting for the European British subject, to all persons born or ordinarily resident in certain localities, persons dependent upon them and persons accused of being jointly concerned with them in the commission or abetment of offences. It does not therefore appear to be correct to say that any classification on racial basis has actually been made in the administration of justice on the criminal side. Emphasis was laid during the arguments on the exclusion of European British subjects from the applica tion of these sections in order to show that racial considerations were in any case present. We think that this view of the classification is not sound firstly because European British subjects are a distinct class, not by race but by national peculiarities and secondly because their exclusion is explained if it is kept in mind that the peculiarities of the population of the territory were the reason for introducing the special law. The general atmosphere of the society and the influences of association could affect those outsiders only who had an affinity with the population and took up residence in the territory, and could not affect the ideas, habits and outlook of European British subjects who for good or bad reasons, kept themselves aloof from local influences, contacts and associations. Other foreigners besides European British subjects were not mentioned in the notification because it was of no practical value that all citizens of the world should be mentioned. We cannot, however, help remarking that Pathans and Baluchis are mentioned as two classes in sub section (4) of section 1 of the F. C. R. and it is laid down that the Local Government can apply certain provisions of the law to them. May be that the object was to refer to certain sections of the population without thinking of the races to which they belonged, but the outcome of the effort to describe these sections of the population has been that they have been classed as two races. We are prepared to concede that certain attributes of the population were aimed to be described with the help of two short words, but the object of brevity of dubitation cannot be allowed to be achieved by forgetting attributes and focussing attention on Pathans and Baluchis as such about whom it cannot be said that they all reside in the territory nor that they are the only residents of the territory. The provisions of law which were meant to be applied to those sections of the population which exhibited certain peculiarities could actually not be applied, according to the last mentioned notification itself, to Pathans and Baluchis and had to be applied to all the persons born or ordinarily resident in certain localities. This application of the provisions of laws by the order of the Local Government notified in 1903 exposes the unreasonable ness and irrationality of classification of population for purposes of suppression of crime on racial basis. We are bound to hold that the classification of the population in F subsection (4) of section 1 on racial basis offends against Article 5 of the Constitution and that the explanation that certain habits and customs and not racial peculiarities were the object in view makes the racial classification mare easily vulnerable. It is true that admittedly the order issued under section 1 does not classify the population on racial basis and that therefore the action taken under the notification is saved, yet the classification to the extent to which it is made in the law on racial basis is void. The notification has by-passed racial classification and classified the population on the basis of birth and residence in certain localities. The classification on the basis of birth is again obnoxious and cannot stand the test of the principles embodied in Article 5 of the Constitution. It was said in defence that reference to birth was unnecessary and that the classification on the basis of residence was enough for the purposes of the requirements of the law It has been urged that the idea of classification by birth was introduced un necessarily as it was innocuous in the old style of thought. This amounts to a recognition of the unreasonableness, according to the present ideology, of classification on the basis of birth. The notification seeks to apply certain sections to "all persons born or ordinarily resident" in the given localities. This classification is not only logically defective because it is overlapping but it is also unreasonable from the point of view of suppression of crime. It is over lapping because those to whom the qualification of residence applies for purposes of the law include all those who were born in the localities and form a section of the population. It is unreasonable because it sealers to apply the special provisions of the law to those also who may after birth have never lived in the localities and never had the chance of imbibing the characteristics of the population. The classifica tion made in the Notification No. 1096-Z dated the 1st July, 1903, on the basis of birth is therefore void under Article 5 G read with Article 4 of the Constitution. The classification made in the Notification on the basis of residential qualifica tion is saved.
The question for consideration now is, how does the invalidity of the classification made in section 1 (4) on racial basis and the invalidity of the classification made in the said notification on the basis of birth, affect the petitioners. They are admittedly residents of British Baluchistan and the residential qualification, which too is a basis of classification in terms of the notification read with section 1 (4) and is not held void, attaches to them. Emphasis was in fact laid, with a different purpose of course, during the arguments by Mr. Bakhtiar on the residence of some of the petitioners in Pishin Tahsil as distinguished from Pishin Town. The invalidity of some basis of classification does not help the petitioners who fall in the remaining category.
Mr. Bakhtiar has argued that the preamble of the F. C. R. does not provide an effective guide for selecting cases under section 11 for reference to the council of Elders and has relied, as stated above, on the West Bengal case. It is true that the pea mole of West Bengal Courts Act of 1950, was held by the Supreme Court of India to be too vague and uncertain to be a guide in the selection of cases for reference to Special Courts, but the preamble of Saurashtra State Public Safety Measures (third amendment) Ordinance of 1949 was held in the case of Kathi Raning Rawat v. State of Saurashtra (AIR1952SC 123) to be a sufficient guide to the Government of the State for issuing the direction as to which offences or class of offences or which cases or class of cases should be tried by a Special Judge. The preamble of this Ordinance recited that it was expedient to provide for public safety, main tenance of public order and preservation of peace and tranquillity in the State of Saurashtra". An affidavit was submitted by an officer of the Home Government of the Saurashtra State to show that an alarming state of Lawlessness prevailed in some of the districts within the state, that an Ordinance had therefore been in the first instance promulgated principally to provide for preventive detention and imposition of collective fines but it did not prove effective and therefore the State promulgated by way of amendment the subsequent Ordinance which was in question before the Supreme Court. It appears, as pointed out by Mukherjee, J. that under this Ordinance it was possible for the Government of the State to give direction for the trial by a Special judge of cases which were pending before the ordinary criminal Courts at the date on which the Ordinance came into force; yet it was held that conditions prevailing in the State had led to such lawlessness in certain districts as to create a reason able classification which justified the promulgation of the Ordinance and that the preamble was a sufficiently clear guide for the State in the selection of offences and cases to be tried by a Special Judge. A distinction was drawn between the West Bengal case and the State of Saurasiitra case by some of the learned Judges of the Supreme Court, as for instance Das, J. in the forms of the notifications issued under the West Bengal Act and the Saurashtra Safety Ordinance, It was pointed out that under the notification issued by the State of West Bengal certain specific cases were directed to be tried by the Special Court while the notification issued by the Saurashtra state did not relate to individual cases but only gave a list of offences with reference to appropriate sections of the I. P. C. which were to be tried by the Special Judge. This distinction was co-related with the word of the section by Das, J. as follows:
"It will be noticed -hat section 11 of the Saurashtra Ordinance, like section 5 (1), West Bengal Special Courts Act, refers to four distinct categories namely, "offences" "classes of offences" "cases" and "classes of cases" and empowers the State Government to direct anyone or more of these categories to be tried by the Special Court con stituted under the Act. The expressions "offences" "Classes of offences" and "classes of cases" clearly indicate and obviously imply a process of classification of offences or cases. Prima facie, those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences" "classes of offences" or "classes of cases". The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made affect all individuals who may commit the particular offence. In short the classification implied in this part of the sub section has no reference, to, and is not directed towards the singling out of any particular person as an object of hostile state action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purposes of the particular legislation as recited in its preamble."
In the section the word "cases" did occur and obviously had a direct connection with the individual offenders charged in such cases, but no emphasis on it was recognised and 'a distinction was found on account of the notification between the operation of section 5 of the Bengal Act and section 11 of the Saurashtra Ordinance, although both of them were in the same terms. The preamble of the F. C. R. and the notification issued under subsection (2) of section 12 of the F. C. R. compare favourably with the preamble of the Saurashtra Ordinance and the relevant portion of the notification issued under sections 9 to 11 of the Ordinance. The preamble of the F. C. R. has been reproduced above and the notification issued under subsection (2) of section 12 is as follows:
"(1) Any offence punishable under any of the following sections of the I. P. C., namely, sections 121, 121A, 122, 123, 124A, 125,126, 127, 131, 144, 148, 150, 193, 194, 195, 196, 201, 211, 212, 216, 216A, 302, 304, 307, 308, 324, 325, 326, 328, 354, 363 to 369, 376, 377, 379 to 382, 386, 387, 392 to 399, 400, 401, 4C2, 411 to 414, 427 to 429, 435, 436, 440, 448 to 460, 494, 495, 497 and 498.
(2) Any offence punishable under section 29 or section 30 of this Regulation.
(3) Abetment of any of the offences aforesaid.
(4) Attempt to commit any of the offences aforesaid, which are not themselves expressed to be attempts to' commit offences.
The West Bengal and the Saurashtra case were compared by the Supreme Court of india in another case from West Bengal of Kedar Nath Bajoria and another v. The State of West Bengal (AIR1953SC404) in which the validity of West Bengal Criminal Law Amendment (Special Courts) Act of 1949, was questioned. The principles of the former two cases were to be explained. The majority judgment seas delivered by Patanjali Sastri, C. J. who considered the background of and the reasons for passing the West Bengal Criminal Law Amendment Act, discussed its preamble and purposes, and adverting to the objection that individual cases could be picked out under section 4 from similar cases involving the same offences specified in the schedule, that chic right of choice amounted to the vesting of discriminatory and unfettered discretion in the Provincial Government, observed as follows:
"It has been further contended that even assuming that the scheduled offences and the persons charged with the commission thereof cool properly form a class in respect of which legislation could be enacted, section 4 of the Act is discriminatory and void, vesting, as it does, an unfettered discretion in the Provincial Government to choose any particular "case" of a person alleged to have committed an offence falling under any of the specified categories for allotment to the Special Court to be tried under the special procedure, while other offenders of the same category may be left to be tried by ordinary Courts. ' In other words, section 4 permits the Provincial Government to make a discriminators- choice among persons charged with the same offence or offences for trial by a Special Court, and such absolute and unguided power of selection, though it has to be exercised within the class or classes of offences mentioned in the schedule, is no less discriminatory than the wider power of selection from the whole range of criminal law conferred on the State Government by the legislation impugned in A I R 1952 S C 75. The vice of discrimination, it is said, consists in the unguided and unrestricted power of singling out for different treatment one among a class of persons all of whom are similarly situated and circumstanced, be that class large or small.
The argument overlooks the distinction between those cases where the legislature itself makes a complete classifica tion of persons or things and applies to them the law which it enacts, and others where the legislature merely lays down the law to be applied to persons or things answering to a given description or exhibiting certain common characteristics, leaves to an administrative authority to make 4 selective application of the law to persons or things within the defined group, while laying down the standards or at least indicating in clear terms the under lying policy and purpose, in accordance with, and in fulfilment of, which the administrative authority is expected to select the persons or things to be brought under the operation of the law."
In the latter part of the judgment he has referred to the opinion of the minority judges in the West Bengal and the Saurashtra cases in the following manner.
"Among the minority judges both Mahajan and Chandrasekhara Aiyer, JJ took the view that the preamble which merely referred to the need to provide for public safety, maintenance of public order and the preservation of peace and tranquility in the state of Saurashtra indicated no principle of classification, as the object was a general one which had to be kept in view by every enlightened Government or system of Administration and that every law dealing with commission and punishment of offences was based on this need. Accordingly, in their view, the decision of the majority in the Saurashtra case' marked a retreat from the position taken up by the majority in the earlier case of 'Anwar Alt Sarkar'. However that may be, the majority decision in the Saurashtra case' would seem to lay down the principle that if the impugned legisla tion indicates the policy which inspired it, and the object which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary and, therefore, obnoxious to Article 14. In the case of such a statute it will make no difference in principle whether the direction which is entrusted to the executive Government is to make a selection of individual cases or of offences, classes of offences or classes of cases. For in either case, the discretion to make the selection is a guided and controlled discretion and not an absolute or unfettered one and is equally liable to be abused. But as has been pointed out, if it be shown in any given case that the discretion has been exercised in, disregard of the standard or contrary to the declared policy and object of the legisla tion, such exercise could be challenged and annulled under Article 14 which includes within its purview both executive and legislative acts."
However that may be, for purposes of the cases before us, it appears that there have been existing and presumably continue to exist conditions, circumstances and peculiarities of the population in British Baluchistan which can be taken to be reasonable basis for considering the territory to be a class by itself for the application of the provisions of the F. C. R. as a measure further to provide for the suppression of crime; and we think that the treatment of the territory and its population as a class is reasonable and bears a fair and substantial relation to the object of the legislation. We believe that the state of circumstances is such as to lead us easily to conceive that the classification is sustainable. The petitioners have not been able to discharge the burden of showing that circumstances do not exist on which the classifica tion can rest. It appears to us that the argument is clinched for our purposes by the Chief Justice of Pakistan in the Judgment of the Supreme Court in Jatendra Kishore Acharya Chowdhry and 58 others v. The Province of East Pakistan and others (P L D 1957 S C (Pak.) 9) reproduced by another learned judge of our Supreme Court in Zain Noorani v. Secretary of the National Assembly of Pakistan (P L D 1957 S C (Pak.) 46 at page 60) and by the observations in Willis' Constitutional Law of U. S. A., 1936 Edition, page 579, which have been adopted with approval by the learned judge of our Supreme Court and reproduced at page 59. The observations of the Chief Justice of Pakistan are as follows:
"But notwithstanding the disinclination of the Court to give an all-inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalisation, more frequently stated, is that the guarantee of equal protection of the law requires that all persons shall be treated alike, under like circum stances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or thing is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such case it is said, 'to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act, it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such as differences in race, colour or religion will certainly be rejected by the Courts."
The quotation from Willis' Constitutional Law is as under "If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis." In conclusion of the foregoing we hold that all the four petitions fail and we dismiss them with costs.
A. H. Petitions dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer