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Miscellaneous Application No. 111 of 1954, decided on 18th December 1957.
Art. 5‑Frontier Crimes Regu lation (III of 1901), S. II‑Bar on Legislature introduced by Article 5‑Does not affect cases decided under Frontier Crimes Regu lation prior to Constitution Day viz., 23‑3‑1956‑History of Frontier Crimes Regulation.
Abdur Rauf v. State P L D 1958 Pesh. 73 rel.
Hari Singh v. Emperor A I R 1945 Lah. 65 ; Muhammad Khan v. Emperor A I R 1945 Lah. 99 ; Dost Muhammad v. Emperor A I R 1945 Lah. 102 ; Alam Khan v. Emperor A I R 1948 Lah. 33 ; Ahmad Khan and others v. Emperor A I R 1948 Lah. 120 and Amir Shah v. Crown P L D 1950 Lah. 221 ref.
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Validty.
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Valid.
Validating Acts are essentially designed to legalize those Acts . of the administrative authorities or of statutory bodies, which when done had failed to achieve the expected result only by reason of some statutory disability or irregularity. The Frontier Crimes (North‑West Frontier Province) (Validation of Orders Proceedings, Sentences and Acts) Act (XII of 1954) validates all orders made under the Frontier Crimes Regulation which when made the authorities concerned honestly and genuinely thought and believed that they possessed powers under the Frontier Crimes Regulation to pass such orders. The Act is curative in character and there is no constitutional bar for the legislature to pass them. The legislature has an unfettered power to make laws giving them either expressly or by necessary impli cation the retrospective operation. The intention of the legislature that all previous acts passed by the relevant authorities are legaliz ed is perfectly clear from the Acts themselves and the Courts are bound to give effect to it. The freedom of the Legislature to express its mind in any form cannot be abridged, curtailed or reduced.
Abdur Rauf v. State P L D 1958 Pesh. 73 rel.
Hari Singh v. Emperor A I R 1945 Lah. 65 ; Muhammad Khan v. Emperor A I R 1945 Lah. 99 ; Dost Muhammad v. Emperor A I R 1945 Lah. 102 ; Alam Khan v. Emperor A I R 1948 Lah. 33 ; Ahmad Khan and others v. Emperor A I R 1948 Lah. 120 and Amir Shah v. Crown P L D 1950 Lah. 221 ref.
Dr. Abdur Rahim for Petitioner.
Muhammad Ali, Addl. Advocate‑General for Respondent.
Date of hearing: 18th December 1957.
‑Shamshad, son of Rustom, of village Hoti; Tehsil Mardan, was convicted under section 302, Pakistan Penal Code, read with section 11, Frontier Crimes Regulation, and sentenced to 14 year's rigorous imprisonment, by the Deputy Commissioner, Mardan, by his order, dated the 26th of April 1954.
It has been held by a Full Bench of this Court in Writ Peti tion No. 116 of 1954 Abdur Rauf v. State decided on the 11th of November 1957 (P L D A958 Pesh. 73), that the bar on the legislature introduced by Article 5 of the Constitution of Islamic Republic of Pakistan does not affect the cases which have been decided prior to the 23rd of March 1956, the date on which the Constitution came into force. A Since the conviction in this case relates to the period prior to the said date the validity thereof cannot be questioned by this Court. The application under Article 170 of the Constitution filed by Shah Said, challenging the conviction of Shamshad, should have been dismissed on this ground alone, but the counsel appearing for him has urged that the Frontier Crimes Regulation, even before the Constitution‑day, did not apply to Mardan, and therefore, this application should be accepted on that ground The argu ments in support of this contention which have been addressed to us at the Bar by Dr. Abdur Rahim are as usual, halting, unintelli gible, incoherent and illogical. He made a reference to Mianwali case, but it was so confused that I could not make head or tail of it. I have, however, studied the question myself very minutely, and I have arrived at the conclusion that this contention must be dismissed as being without any legal foundation In order to appreciate the point involved in this case, the history of the Frontier Crimes Regulation after 1887 may with advantage be set out here. The history prior to that year has been discussed at length by the Full Bench in Writ Petition No. 116 of 1954 and may not be repeated in this judgment. In 1887. the districts of Peshawar, Kohat, Hazara, Bannu and D. I. Khan were included in the Province of Punjab. There was no separate district of Mianwali.
On the 6th of October 1870. the provisions of the 33rd of Vic. Chap. 3, section 1 were applied to the districts of Hazara, Peshawar, Kohat, Bannu, Dera Ismail Khan and Dera Ghazi Khan. The Lieutenant‑Governor of Punjab which the Head of the Administration of Punjab was then called, proposed to the Governor‑General‑in‑Council a draft of the Punjab Frontier Crimes Regulation IV of 1887, whereupon the Governor‑General in‑Council taking the draft and the reasons into consideration approved the draft and assented to it on the 14th January 1887. The said Regulation was then published in the Gazette of India dated the 15th of January 1887, and became the law. It extended by its own operation to the districts of Peshawar, Kohat, and Hazara and the local Government could by notification ant he official gazette, extend all or any of its provisions to the whole or any part of. the Districts of Bannu, Dera Ismail Khan and Derv Ghazi Khan. The Local Government by a. notification extended all the provisions of the Regulation to these three Districts. In 1901, a separate province known as the North‑West Frontier Province was carved out of Punjab. A new district in Punjab was also created which was called the District of Mianwali. It was created by taking.Mianwali and Isa Khel Tehsils from the Bannu District and Bhakkar and Lieh Tehsils from Dera Ismail Khan District. The new administrative area of North‑West Frontier Province comprised of five districts, namely, Peshawar, Kohat, Hazara and what was left of Bannu and D. I. Khan Districts. Regulation IV of 1887 was repealed and was substituted, so far as the newly‑formed province of North‑West Frontier Province and Dera Ghazi Khan District were concerned, by Regulation III of 1901, which was almost to the same effect as 1887 Regulation. The Punjab Government in the exercise of powers conferred upon it by subsection (4) of section 1 of the Punjab Frontier Crimes Regulation IV of 1887, had applied the sections of the Regulation, which were not of general application to practically all classes of people living in the Districts to which the Regulation applied. In 1901, a new Notification was made by the North‑West Frontier Province Government in the case of the District forming the newly‑carved province, but so far as Mianwali was concerned, no new notification was issued. Question whether the old notifica tion was effective in regard to Mianwali District came up for consideration before a Full Bench of the Lahore High Court consisting of Beckett, Abdur Rahman and Marten, JJ, in Hari Singh v. Emperor (A I R 1945 Lah. 65). It was held therein that the noti fication issued under 1887 Regulation was inconsistent with the provisions of section 1 (4) of Regulation III of 1901, and therefore, it could not operate to apply any provision of the Regu lation of 1901 to the same class of persons in Mianwali by virtue of section 24 of the General Clauses Act. After this decision, the Punjab Government promulgated Ordinance I of 1944. Section 2 of the Ordinance was to the following effect:‑
"All orders made, proceedings taken and acts done by the Provincial Government, by any authority subordinate to the Provincial Government, or by any person, which were made taken or done, or which purported to be made, taken or done in the exercise of the powers derived or believed to be derived from the provisions of the Frontier Crimes Regulation, 1901 (hereinafter referred to as the said Regulation') by virtue of Punjab Government Notification No. 1156, dated the 15th November 1887, or in execution of or in compliance with any orders made or sentences passed by the Provincial Government or by any authority subordinate to the Provincial Government in the exercise or purported exercise of powers as aforesaid, shall be deemed to be and always to have been validly made, taken, and done, and for the purposes of the said Regulation, and of any other law for the time being in force, all such orders, proceedings, and acts shall be as good and valid as if the said notification had issued under the provisions of S.1 of the said Regulation".
This Ordinance was considered by a Division Bench in Muhammad Khan v. Emperor (A I R 1945 Lah. 99), and by, a Full Bench in Dost Muhammad v. Emperor (A I R 1945 Lah. 102). In the first case, it was held that the Ordinance being one on which the Provincial Legislature could legislate was not ultra vires of the Governor. In both the cases, it was found that the Ordinance was intended to be retrospective and applied to all orders and proceedings made and taken before it came into force. This Ordinance was subsequently replaced by an Act which embodied the same provisions. These two pieces of legislations then were considered by a larger Bench, consisting of five Judges, in Alam Khan v. Emperor (A I R 1948 Lah. 33). The majority of the Judges, Abdur Rashid, C. J. dissenting, held that the effect of Punjab Ordi nance No. 1 of 1944 and Act No. 7 (VII) of 1944 was that in those districts in which the Regulation was in force by its own operation but in which the notification extending it to certain classes of persons had not been issued then any action taken under the Regulation in those districts would be just as valid as if a notification on the lines of Notification No. 1156 had in fact been issued. But if the Regulation itself did not apply to a district, a notification bringing certain persons resident in that district within its operation, cannot have the effect of making the Regulation as such, in force in that district. It continued to say :‑
"Where therefore, a portion of some district or districts has ceased to remain within those six districts to which the Regula tion applied, then the issue or the failure to issue of such a notification does not affect the position in the portion so cut out. The area now covered by the district of Mianwali, while it remains in this district by this name cannot be said to be part of the six districts to which the Regulation ever applied or was meant or intended to be applicable. A notification on the lines of Notification No. 1156 would not make the Regulation appli cable to the district of Mianwali which has gone out of the six named districts and is no longer part of them. As from the date of the creation of the new District of Mianwali the Regulation itself ceased to apply to it and any action taken under the Regulation was, therefore, void so far as that district was con cerned, and the ordinary law of procedure which the Regulation changed and modified would continue to have operation and effect and any order which purported to have been passed would be deemed to have been passed under the ordinary law before it was modified and so subject to the revisional jurisdiction of toe High Court".
A I R 1945 Lah. 99 was explained. Their Lordship further held that the Ordinance and the Act as worded, however, do not vali date the orders, proceedings and acts therein referred to, and that if the Regulation itself did not apply to a district, a notifi cation bringing certain persons resident in that district within its operation, cannot have the effect of making the Regulation as such, in force in that district. Their Lordships further remarked that when the defect of the omission to issue the notification was a new area outside the meaning and scope even though the boundaries of the six named districts, did not thereby subject to the provisions of the Regulation: Thereafter, the Governor of the Punjab promulgated the Frontier Crimes (Validation of Orders, Proceeding, Sentences and Act) Ordi II of 1946. Section 2 of the Ordinance was to the following effect:-
"All orders made, proceedings taken, sentences passed and acts done in the district of Mianwali by the Provincial Government, or by any authority subordinate to the Provincial Government, or by any person, which were made, taken, passed or done or which purported to be made, taken, passed or done in exercise of the powers derived or believed to be derived from the provisions of the Frontier Crimes Regulation 1901, either by virtue of Punjab Government Notifications Nos. 1156, dated 15th November 1887, and 1672‑J‑44‑31395, dated 18th April 1944, or otherwise, or in execution of or in compliance with any orders made or sentences passed by the Provincial Government or by any authority subordinate to the Provincial Government in the exercise or purported exercise of powers as aforesaid are hereby confirmed and shall be deemed to be and always to have been validly made, taken, passed or done and for the purposes of the said Regulation and of any other law for the time being in force all such orders, proceedings, sentences and acts shall be as good and valid as if the said Regulation was applicable to the said district of Mianwali and the said notification had issued under the provisions of section 1 thereof".
This Ordinance was again challenged before a Division Bench, consisting of Bhandari and Muhammad Sharif, JJ. in Ahmad Khan and others v. Emperor (A I R 1948 Lah. 120). Their Lordships held that the Ordi nance was perfectly valid, and that the object of a validating Act was to enable the parties to carry into effect that which they had designed and attempted but which had failed of its expected legal consequences only by reason of some statutory disability or irre gularity in their action. Their Lordships further observed that there could not be any legal objection to an Ordinance being allowed to operate retrospectively: This Ordinance was then substituted by an Act which was practically the verbatim copy of. the Ordinance. This Act was upheld in Amir Shah v. Crown (A I R 1950 Lah. 161=P L D 1950 Lah. 221).
In the year 1936, Mardan and Swabi Tehsils of Peshawar Dis trict were separated and given the name of Mardan District. The Frontier Crimes Regulation of 1901, according to the Full Bench Ruling of the Lahore High Court referred to above, did not apply to this District, because neither was the Regulation amended, in order to include it, nor did the Provincial Govern ment issue a notification in respect of it under section 1, subsection (4).
One reason which has appealed to me considerably is that under section 11 of the Frontier Crimes Regulation which was not of general application, the question of the guilt or innocence of any person or persons accused of any offence can be referred to the decision of a Council of Elders by a Deputy Commissioner of the District. After, Mardan was carved out as a separate District then it was the Deputy Commissioner of that District alone who could function under this section, but he could not do so because it was not recognised by the Frontier Crimes Regulation as a separate district. In order to empower the Deputy Commissioner of Mardan to function under the Frontier Crimes Regulation, the provisions of the Frontier Crimes Regula tion had to be extended to this district.
On the 10th of December 1954, however, the Governor General of Pakistan gave assent to two Acts amending the Frontier Crimes Regulation III of 1901. By Act No. XIII of 1954, the above Regulation was extended to all the six districts of the North‑West Frontier Province, namely, Peshawar, Hazara, Mardan, Kohat, Bannu and Dera Ismail Khan Districts. Act No. XII of 1954 enacted as under :‑
"S. 2 : All orders made, proceedings taken, sentences passed and acts done in all the six districts of the North‑West Frontier Province by the Provincial Government, or by any authority subordinate to the Provincial Government, or by any person, which were made, taken, passed or done in exercise of the powers derived or believed to be derived from the provisions of the Frontier Crimes Regulation 1901 (III of 1901), or in execution of or in compliance with any order made, or sentences passed by the Provincial Government or by any authority sub ordinate to the Provincial Government in exercise or purported exercise of powers as aforesaid are hereby confirmed and shall be deemed to be and always to have been validly made, taken, passed or done and for the purposes of the said Regulation and of any other law for the time being in force all such orders, proceedings, sentences and acts shall be as good and valid as if they were made, taken, passed or done under and in accordance with the provisions of the said Regulation".
No valid objection can really be taken to these two Acts. Validating Acts are essentially designed to legalize those Acts of the Administrative Authorities or of statutory bodies, which when done had failed to achieve the expected result only by reason of some statutory disability or irregularity. The Act validates all orders made under the Frontier Crimes Regulation which when made the authorities concerned honestly and genuinely though and believed that they possessed powers under the Frontier Crimes Regulation to pass such orders. The Act is curative in character and there is no constitutional bar for the legislature to pass them. The legislature has an unfettered power to make laws giving them either expressly or by necessary implication the retrospective operation. The intention of the legislature that all previous acts passed by the relevant authorities are legalized is perfectly clear from the Acts themselves and the Courts are bound to give effect to it. The freedom of the legislature to express its mind in any form cannot be abridged, curtailed or reduced. Apart from the authorities mentioned above, I think for the reasons given in Writ Petition No. 116 mentioned in earlier part of this judgment, both these Acts have received the sanction of the Constitution, and have become unassailable laws.
The result of the above discussion is that I hold that the Acts extending the Frontier Crimes Regulation to Mardan and validating all orders prior to this are valid laws. The writ petition, therefore, fails and is hereby dismissed with costs. Pleader's fee Rs. 200.
:‑I fully agree.
K. B. A. Petition dismissed.
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