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Writ Petitions Nos. 2 and 3 of 1962, decided on 24th May 1862.

S. 11 (3) (d)---Murder of "Siahkar" woman or man-Jirga finding that accused was murderer, but recommending acquittal in accordance with tribal custom-District Magistrate not bound by such recommendation-Conviction recorded by District Magistrate and confirmed in revision by Commissioner, upheld by High Court-Writ petition--- Constitution of Pakistan (1956), Art. 170.

Upon the finding of a Jirga that the accused were the murderers, but that the deceased being "Siahkar" (unchaste), the murderers be acquitted in accordance with the Baluchistan tribal custom; the District Magistrate, disregarding the recommendation as to acquittal, convicted the accused and sentenced them to a term of imprisonment:

Held (on accused's writ petition), that the District Magistrate by proceeding in this manner had not departed in any way from the provisions of section 11, F. C. R.

Section 11 does not lay down that the cases referred to the Jirga are to be decided In accordance with the customary law. On the contrary the offences committed by the accused persons, on the finding of facts of the Jirga, are to be determined according to the ordinary law of the land.

The District Magistrate's power to convict an accused on coming to the conclusion that the facts proved before the Arga disclose that h e has committed an offence is not subject to the advice of the Council-of-Elders.

The contention that the recommendation of the Jirga to acquit the accused was a finding of fact was without substance. It was merely an advice, which the District Magistrate was not bound to follow.

Considering the nature of the offences found to have been committed by the accused, the District Magistrate was fully justified in not accepting the advice of the Jirga.

Manual of Customary Law for Baluchistan (192) p. 137 ; Circular Order of Agent to the Governor-General arid Chief Commissioner in Baluchistan, dated 3rd September 1912 ; Manual of Customary Law for Baluchistan p. 224 para. 11 and Circular issued by the Agent to the Governor-General (1892).

Basharatullah for Petitioners.

Yohya Bakhdar for Repondents.

Date of hearing : 24th May 1962.

This judgment will dispose of Writ Petition No. 2 of 1562 and Writ Petition No. 3 of 1962 in which the parties have raised common question of law.

In Writ Petition No. 2 of 1962 the petitioners Atta Muhammad and Abdul Ghanl were put up for trial before the Jirga held at Mastung on 30^th August 1961, for an offence of committing double murder of Habibullah son of Mehrab Khan Kurd and Mst. Murad Bibi, wife of petitioner Abdul Ghani. The Jirga gave unanimous award on the said date finding that the petitioners were murderers of the two deceased and the cause of murders was "Siahkari". The Jirga further recommended that the two petitioners be acquitted The award was placed before the District, Magistrate Kalat District who agreed with the finding of the Jirga that the petitioners committed the murders of the above two persons and that the motive of murder was 'Siahkari', but did not accept the recommendation of the Jirga for acquitting the petitioners. On the facts shown to him he found the peti tioners guilty under section 304, P. P. C. and sentenced each of them to undergo 7 years' R. I. by order dated 1^st October 1961. The petitioners filed a revision petition under section 49 of the F. C. R. against the order made by the District Magistrate Kalat District before the Commissioner F. C. R. Kalat Division. By order dated the 11th December 196,1, the learned Commissioner upheld the order of conviction and sentence passed by the District Magistrate, Kalat.

In Writ Petition No. 3/62 petitioners Hakim and Walu were put up for trial before the Jirga held at Mastung on 4th October 1961, for an offence under section 302, P. P. C. for the alleged murder of Zarak and Mst. Shirin wife of Hakim petitioner No. 1 and sister of Walu petitioner No. 2. The Jirga gave its unanimous award on the said date finding that the petitioners were the murderers of the two deceased and the cause of murders was "Siahkari". The Jirga however recommended that the two petitioners be acquitted. The award was placed before the District Magistrate, Kalat District, who agreed with the finding of the Jirga that the petitioners were responsible for the murders of the two deceased and the cause of murder was "Siahkari". The learned District Magistrate on the facts placed before him found the petitioners guilty of an offence under section 302, P. P. C. and sentenced each of them to undergo 14 years' R. I. by order dated 7th November 1961. Since the sentence in this case was of more than 7 years the District Magistrate forwarded the case for consideration of the Commissioner, F. C. R. Kalat Division, who also confirmed the sentences passed by the learned District Magistrate, by order dated the 20th November 1961.

The petitioners, however, filed a revision petition under section 4) of the F. C. R. against the order passed by the learned District Magistrate, Kalat, dated the 7th November 1961, but this revision petition was dismissed on 10th January 1962. The learned Commissioner, F. C. R. Kalat Division, upheld the orders of conviction and sentence passed by the District Magistrate, Kalat.

The petitioners in the above mentioned two writ petitions have challenged the order of their conviction on the ground that once the Jirga has returned the verdict of not-guilty then the District Magistrate is not competent to pass an order of conviction and sentence on these findings under section 11 of the F. C. R. (III of 1901). Mr. Basharat Ullah the learned counsel for the petitioners referred me to section 11 of the F. C. R. and urged that the question of guilt of the accused persons who are charged of any offence under the above mentioned provision of law is to be referred for the decision of the Council-of-Elders. According to him the Council-of-Elders, under the above mentioned pro vision of law, is required to come to a finding on the question of guilt after such inquiry as may be necessary, and after hearing of the accused persons. The learned counsel then referred me to section 11 (3) under which the Deputy Commissioner is entitled either to remand the question to the Council for a further finding, or refer the question to second Council, or acquit or discharge the accused persons or person or any of them. He particularly referred me to sub-clause (d) to this subsection which reads as under:

"in accordance with the finding on any matter of fact of the Council, or of not less than three-fourths of the members thereof, convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty."

Mr. Basharatullah, in view of the above provision of law, urged, that since the Jirga in both the cases have recommended the acquittal of the petitioners it means that they have returned a verdict of not-guilty against the petitioners in respect of the alleged murders. The learned counsel, therefore, contended that on this finding it was not open to the learned District Magistrate to convict the accused for an offence either under section 3114, P. P. C. or under section 302, P. P. C., as has been done in the above mentioned cases.

In support of his contention Mr. Basharatullah referred me to an order of the Agent to the Governor-General passed in the year 1929 published at page 137 of the Manual of Customary Law for Baluchistan', in which similar question was considered. In that case a Chief Jirga at Fort Munro gave a verdict of murder on account of Siahkari and in accordance with the Riwaj' recommended that the man should receive no punishment. But the Deputy Commissioner, Dera Ghazi Khan, in his judgment, refused to treat the case with leniency as the murder had not been committed under grave or sudden provocation, and sentenced him to 14 years' R. I., after fully considering the merits of the case. The matter came up before Lieutenant Colonel

Sir Banchamp St. John, Agent to the Governor-General who passed the following order:

"The Political agent's award is directly opposed to the pro visions of the Frontier Crimes Regulation which does not permit a District Officer to pass any orders adverse to the finding of the Jirga. In this case the Jirga held that the murdered woman was Siah, and acquitted the husband in accordance with Baluchistan Riwaj. In the circumstances I have no alternative but to quash the proceedings and order the release of the accused."

On the view taken In this decision it is contended before me that the Jirga in both the above mentioned cases having recommended the acquittal of the petitioners in accordance with the custom in Baluchistan, the learned District Magistrate was bound to accept the finding and to acquit the petitioners for the offence of alleged double murders.

Mr. Yahya Bakhtiar, the learned counsel for the State has strongly opposed these Writ Petitions. He contended that the learned District Magistrate in coming to a decision about the nature of the offence committed by an offender under section I I of the Frontier Crimes Regulation is not bound to follow the customary law. It is open to him to ignore the customary law and base the conviction of the offenders under the ordinary law of the land, namely, the Pakistan Penal Code. Mr. Yahya Bakhtiar further contended that Siahkari', as understood In Baluchistan, has different meanings in different circumstances. The degree of Siahkari' depends on the facts of each case. According to the learned counsel, therefore, if a murder is committed on account of Siahkari' which in its degree is not serious, the offender can be convicted under the provisions of sections 302 and 304 Pakistan Penal Code, provided the facts of the case proved before the Jirga bring it within the provisions of the above-mentioned law. But, if the degree of Siahkari' is of serious nature, such Which resulted in grave and sudden provocation, the District Magistrate fn the exercise of his powers will accept the recommendation of the Jirga for the acquittal of the offender.

In support of his contention Mr. Yahya Bakhtiar has referred me to the Circular Order of Sir John Ramsay, Agent to the Governor-General and Chief Commissioner in Baluchistan, dated the 3rd September 1912. In this Circular the then Agent to the Governor-General issued the following instructions

"2. The Hon'ble the Agent to the Governor-General has also observed from files that have come before him that there has, in some cases, been a tendency to translate the word "Siahkari" by the word "adultery" used in its technical legal sense. Such a mistranslation is apt to lead the Sardars and tribesmen to accuse us of incapacity to see things from their point of view, and to make it very hard for us to arrive at just decisions in cases which do not come within the technical definition of adultery, and which are at the same time liable to disturb the peace of the tribes. It must be admitted that sexual intercourse with a virgin or a widow is not adultery according to the strict letter of law. At the same time "Siahkari" is by common consent a serious offence and one which in the present state of public opinion cannot be allowed to go unpunished. "Siahkari" is a very difficult word to translate, but the best definition which occurs to the Hon'ble the Agent to the Governor-General is as follows :-

"Whoever damages the fair reputation according to recog nised public opinion, cf any woman, with the knowledge that her follow tribesmen are likely to consider such damage an insult, is in accordance to tribal custom and the Muhammadan religion as it is understood among tribesmen in Baluchistan, usually held by a Council of Elders to be guilty of Siahkari."

Note.-Siahkari may be of varying degrees.

3. The law being what it is (a representation on the subject has been made to Government), if the above definition of "Siahkari" is correct it is clear that in many cases that do not fall within the definition of "adultery" puni3hment of an offender will be called for by tribal opinion.

Such cases can be referred to a Council-of-Elders under section 11 of the Frontier Crimes Regulation, a fine can be imposed under section 12 (1) and Imprisonment in default of payment of fine can be awarded under section 13. Also the guilty parties can be expelled under section 36 (d) of the Regulation."

The learned counsel further referred me to the Baluchistan customary law in respect of offences committed on account of 'Siahkari' At page 244 in the Manual of Customary Law for Baluchistan', in paragraph 11 it is stated as under :-

"The offence of "Siahkari" is looked upon with great abhorrence and the declaration of a relative or guardian unsup ported by any evidence is considered sufficient. The father or a brother of a maiden, and a betrothed girl, the husband of a married woman, and the son of a widow and her pidri wursa if she be living with them, have the first right to declare (wahu) a woman as 'siah' and in the absence of these their agnates who under the 'Shariat' are entitled to inherit have the same right."

At page 245, in paragraphs 14 and 15 under the heading murder for 'Siahkari' it is stated as under :-

"14. The following relatives are said to have the customary right to kill the parties in cases of Siahkari. In the case of a maiden, and a widow her father, brothers, uncles, and uncle's sons, in the case of betrothed girl and a married woman her husband (fiance), his father, brothers, uncles and uncle's sons.

15. If both the Siahkars or the Siahkar only be killed, then the question of compensation and punishment does not arise, but if the woman be killed and the man escapes then he has to pay full compensation (section 12) and a fine of Rs. 50, and in default suffer imprisonment for six months. If the woman be not killed she is at the disposal of her pidri wursa."

It is therefore clear that the term 'Siahkar' has got very wide meaning. It is further clear that under the customary law it is not necessary that woman should actually be seen in sexual intercourse with her paramour. Mere declaration by husband, father and brother to the effect that the woman is 'siah' entitles a person to kill her without corroboration of the fact whether she actually had been guilty of 'Siahkari'. It is further clear that under the customary law of Baluchistan the relatives mentioned above are entitled as of right to kill both the 'Siahkar' and the 'Siahkara' even on mere suspicion.

Mr. Yahya Bakhtiar further contended that from time to time the Agent to the Governor-General, Baluchistan has been bringing it to the notice of the Tribal Sardars not to follow the custom particularly relating to females which have fallen far behind the times in matters of morality and humanity. They have, on the other hand, told them that they should follow the Islamic Law which is more humane in this respect. In support of his contention the learned counsel referred me to the Circular issued by the Agent to the Governor-General in the year 1892, At Serial No. 49 page 128 of the Green Book Sir Hugh Barnes, Agent to the Governor-General in Baluchistan observed in connection of a case in which a person was sentenced by the Jirga to 1 years' imprisonment because he tried to marry his late master's widow. "That he was strongly of the opinion that in British Baluchistan and the Agency territories, local and tribal customs in the matter of widow re-marriage should never be allowed to override the simple and humane provisions of Muhammadan Law, which accord also with the Law of England, viz., that a widow has perfect liberty to marry whom she pleases." Accordingly he quashed the sentence of imprisonment. Similarly in the year 1936 Lieutenant-Colonel A. E. B. Parsons, Agent to the Governor-General and Chief Commissioner In Baluchistan laid down certain principles for the guidance of the Officers administering the F. C. R. In this connection he observed as under :-

"The Frontier Crimes Regulation is the instrument by which Government gives legal effect to the decisions of customary law, but it must be remembered that the former is a law in the strict sense of the word, which the latter is not. It follows therefore that the Frontier Crimes Regulation must be legally used and not stretched to cover those decisions of customary law which conflict with the law of British India. For example certain forms of 'Siahkari' are not offences under the Indian Penal Code : they cannot therefore be tried under the procedure of sections 11 and 12, but must be regarded as of a civil nature and settled under section 8. Again, whatever the practice may have become under customary law, a longer sentence of imprisonment in default of payment of a fine cannot be given than is prescribed by the relevant sections of the Indian Penal Code. The provisions of the Frontier Crimes Regulation are so wide that the effect can be given under it to nearly any decision of customary law that is not contrary to good conscience and public policy.

Mr. Yahya Bakhtiar, therefore, in view of the above practice, in this area, contended that in cases tried under the F. C. R. it is not obligatory on the part of the officers to strictly follow the customary law of Baluchistan but it is open to them to depart from it in such cases in which it is found desirable and follow the law of British India. The contention of the learned counsel is not without substance.

But In the present case what is to be seen is whether the learned District Magistrate acted in accordance with the provisions of section 11 of the F. C. R. or has exceeded in exercising his jurisdiction under the above-mentioned provisions of law. Under section 11 of the F. C. R., if the District Magistrate comes to a conclusion that a particular offence should be tried by the Council of Elders then it is open to him to refer it for the decision of the Council of Elders. On such reference if the Council of Elders give a finding on fact on the questions referred to them, that finding is binding on the District Magistrate for determining the question of offence committed by an offender. If he wants to depart from the finding of fact then there are two courses open to him. It is open to him to refer the matter back to the same Council of Elders or to refer it to second Council of Elders. It is obvious that he cannot substitute his own finding for the finding of fact given by the Council of Elders.

But the position Is entirely different when the finding of facts are placed before the learned District Magistrate for determining the offence committed by an offender. Under section 11 (3) (d) it is within his province to convict the accused person or persons or any of them of any offence of which, the facts so found show him to be guilty. Thus in those cases where the facts found show that an accused person has been guilty of any offence, he is not bound to accept the advice of the Council of Elders in this behalf. In my opinion the District Magistrate's power to convict an accused person on coming to the conclusion that the facts proved before the Jirga disclose that he has committed an offence is not subject to the advice of the Council of Elders.

The question, therefore, for consideration in this matter is whether the learned District Magistrate in convicting the peti tioners has departed from the finding of fact arrived at by the Council of Elders. In both the cases the Council of Elders came to the conclusion that the petitioners were responsible for the double murders and the cause of murder was Siahkari'. The learned District Magistrate accepted these findings of fact and has then proceeded to consider what offence, if any, the petitioners in the two writ petitions have committed. It is quite correct that in both the cases the Council of Elders recommended, In accordance with the customary law of Baluchistan, that the petitioners should be acquitted but this recommendation was not accepted.

It seems to me that the learned District Magistrate in pro ceeding in this manner has not departed in any way from the: provisions of section 11, F. C. R. This section does not lay down that the cases referred to the Jirga are to be decided in accordance with the customary law. On the contrary the offences committed by the accused person, on the finding of facts of the Jirga, are to be determined according to the ordinary law of the land.

Mr. Basharatullah's contention that the recommendation of the Council of Jirga to acquit the petitioners was a finding of fact is without substance. It was merely an advice, which the District Magistrate was not bound to follow. Considering the nature of the offences found to have been committed by the petitioners, I am satisfied, that the learned District Magistrate was fully justified in not accepting the advice of the Jirga.

In these circumstances there is no force in these writ petitions. Accordingly both the petitions are dismissed with costs.

A. H. Petitions dismissed.

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