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Criminal Appeal No. 20 of 1960, decided on 9th May, 1960.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 13th February 1959, in Writ Petition No. 284 of 1956).

-- Trial of offence held at Peshawar-Judgment pronounced at Jamrud in "special area"-Case whether not amenable to writ juris diction of High Court-Constitution of Pakistan (1956), Art. 178 [Dosso's case P L D 1958 S C (Pak.) 533 inapplicable].

All the proceedings of a case under section 8 (a) and section 8 (b), North-West Frontier Province Corps Law, 1941, were held by the Political Agent exercising powers of a Court of Ses ion, at Peshawar ; only for the pronouncement of the judgment the Political Agent took the case to the Jamrud Fort, in a "special area"

Held, that the case did not fall within the observations made in the precedent Dosso case P L D 1958 S C (Pak.) 533 in which "the trial and all proceedings up to the conviction were held in a special area' over which the High Court had np jurisdiption,"

In the present case it was admitted that all the proceedings of the case were held in Peshawar, and it was only for the pronouncement of the judgment that the Political Agent took the case to Jamrud Fort.

The case was, therefore, amenable to writ jurisdiction of the High Court.

-Designation of officer trying offence "Political Agent and District Magistrate" ("P. A. and D. M.")described as such throughout record but merely as "D. M." on charge sheet-Offence triable only as "P. A." (who exercisedpowers of Court of Session)-Misdescription of no effect on legality of trial-Maxim :

Abdul Rahim Khan, Advocate Supreme Court, instructed by Naziruddin, Attorney for Appellant.

Moulvi Mushtaq Hussain, Advocate-General West Pakistan (Nasim Hasan Shah, Advocate Supreme Court with him), instructed by Ijaz All, Attorney for Respondent.

Date of hearing : 9th May, 1960.

-This is an appeal by Piao. Gul against the dismissal of a petition for a writ of habeas corpus which he had instituted before the High Court of West Pakistan, calling in question his detention in the Central Jail of Dera Ismail Khan, under a warrant issued by the Political Agent of the Khyber Agency, consequent upon his conviction by the same person; of offences under sections 8(a) and 8(d) of the North-West Frontier Province Corps Law, 1941. The petition was dismissed by the High Court on the ground that the' judgment of conviction of Piao Gul was announced at Jarrirud Fort in a "special area" where the writ of the High Court does not run, and the warrant for Piao Gul's detention was also issued from Jamrud. Reliance appears to have been placed by the Division Bench of the High Court upon certain observations made in one of the judgments delivered in the case of Dosso published as P. L. D. 1958 S C (Pak.), page 533.

That case however was different from the case of Piao Gulin one respect, namely, that there, as the judgment shows, "the trial and all proceedings up to the conviction were held in a special area' over which the High Court had no jurisdiction".

In the present case it is admitted that all the proceedings of the case were held in Peshawar. and it was only for the pronounce ment of the judgment that the Political Agent Mr. Faridullah Shah took the case to Jamrud Fort. We do not consider that the case falls within the observations made in the precedent case with reference to cases which arise and are wholly tried in a special area.

But that does not by any means conclude the matter. The record of the case has been produced before us and it shows that piao Gul when charged with ofence under the relevant. Law which were of a very serious nature, namely, the subversion of Piao Gul members of the N. W. F. P. Corps, and being in communication with an agent of the foreign power, namely, the Governor of rate Jalalabad in Afghanistan, Piao Gul made a complete confession Cornelius, all his activities, admitting several acts of the kind which had been charged. Dr. Abdur Rahim appearing on his behalf ques tioned the genuineness of his confession, but we do not find any ground apparent from the record for thinking that Piao Gul's very lengthy confession which is recorded in the hand-writing of the trying officer, namely, Mr. Faridullah Shah could have been anything but a true and faithful reproduction of the admis sions which he so freely made.

Dr. Abdur Rahim then urged that Mr. Faridullah Shah had tried Piao Gul in the capacity of a District Magistrate, and in that capacity he could not award a sentence of more than seven years' rigorous imprisonment. The sentence actually passed was of 14 years' rigorous imprisonment. Now, unless the District Magistrate was invested with powers under section 30 of the Criminal Procedure Code, he could not award a sentence of- more than two years' rigorous imprisonment, and the record nowhere shows that Mr. Faridullah Shah was exercising powers under section 30. Throughout the record, except in the charge, the designation under his signatures was invariably P. A. and D. M.

It is to be noted also that the offences to question being punishable with transportation for life or in the alternative 14 years' imprison ment, under the scheme of distribution provided by sections 28 and 29, Criminal Procedure Code, and the last four entries in the Second Schedule thereto, the trial could only be validly held before a Court of Session, and not by any Magistrate, in the absence of any provision in the N.-W. F. P. Corps Law or in any other instrument making provision contrary to that contained in the Criminal Procedure Code. Now, under an order issued on the 13th April, 1931, in exercise of powers derived from the Indian (Foreign Jurisdiction) Order in Council, 1902, the Governor General had made provision for the application of several enactments including the Code of Criminal Procedure to the tract known as the Khyber Agency and had provided that the political Agent Khyber "shall exercise within the said tract all the powers of a District Magistrate and a Court of Session under the said Code as so applied". It was further provided that in exercising his jurisdiction as a Court of Session under the Criminal Procedure Code, the Political Agent Khyber "may take cognizance of offences as a Court of original jurisdiction without the accused person being committed by a Magistrate, and when so taking cognizance of any offence, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates."

Postulating that the trial of offences under section 8 of they North-West Frontier Province Corps Law, 1941, could only be competently held before a Court of Session, and the Court of Session for the Khyber Agency is the Court of the Political Agent, it must follow that the trial of the present appellant was conducted before Mr. Faridullah Shah in his capacity as a Court Of Session under the Criminal Procedure Code, 12Sy25 as applied to the Khyber Agency. There was no commitment. The trial was conducted by the warrant procedure. In that view of the matter, the solitary misdescription in the charge i.e. where the described himself as District Magistrate would be without effect upon the legality of the trial. It would be a misdescription which was demonstrably incorrect, falling within the maxim falsa demonstratio non nocet. It would therefore be without effect upon the validity of the proceedings provided that the person I conducting those proceedings possessed in himself the capacity to J do so. Mr. Faridullah Shah as Political Agent possessed th le capacity of a Court of Session to try the charges against Piao Gull and to impose a sentence of 11 years' imprisonment.

There is no force in this appeal which we hereby dismiss.

A. H. Appeal dismissed.

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