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Habeas Corpus Petition No. 157 of 1963, decided on 8th August 1963.

, Ss. 40 & 44(1) read with West Pakistan Criminal Law (Amendment) Act (VII of 1963), S. 34 and West Pakistan General Clauses Act (VI of 1956), S. 4‑Orders passed under S. 40 or 44(1), Frontier Crimes Regulation, 1901‑Cannot be called into question after repeal of Regulation by West Pakistan Criminal Law (Amendment) Act, 1963.

, S. 40‑Commis sioner and Deputy Commissioner have concurrent jurisdiction to require person to furnish security and in default to sentence him for period not exceeding 3 years‑Order passed by Deputy Com missioner for period exceeding one year requires no confirmation by Commissioner‑Provision of S. 123, Cr. P. C. not applicable--- Order of imprisonment on failure to furnish security‑"Sentence" within meaning of S. 397, Cr. P. C.‑Criminal Procedure Code (V of 1898), Ss. 123 & 397‑Frontier Crimes Regulation (III of 1901), S. 47.

A I R 1950 Hyd. 20 ; I L R 7 All. 67 ; I L R 8 Cal. 331; I L R 31 Mad. 515 ; I L R 37 Born. 178 ; 14 P R 1895 ; A I R 1921 All. 281 and A I R 1921 Sind 96 ref.

, S. 40 and Criminal Procedure Code (V of 1898), S. 491‑Order under S. 40, Frontier Crimes Regulation, 1901‑Assailable in petition under S. 491, Cr. P. C. only in case of proceedings held without juris diction.

Fazal Haq Shaida v. North‑West Frontier Province Govern ment P L D 1950 Pesh. 80 ref.

Muhammad Akram and others v. The State P L D 1963 S C 373 rel.

Mian Ziauddin, A. Rahim and Mahmud Ali Qasuri for Petitioners.

Sher Bahadur Khan A. A.‑G. for Respondent.

Dates of hearing : 16th, 17th and 18th July 1963.

--By this order we propose to dispose of Habeas Corpus Petition No. 157 of 1963‑Ajab Khan and 213 others (whose names are given in the list attached) and Habeas Corpus Petition No. 159 of 1963 which was brought by Amir Muhammad Khan and 13 others (whose names are mention ed in the list attached). Common question of law and fact is involved in both the petitions, and Mr. Mahmood Ali Qasuri the learned senior counsel appearing in one of the petitions, requested that both these petitions should be heard together. Both these petitions are under section 491, Cr. P. C. read with para. 98 (b) (1) of the Constitution for the issuance of writ of habeas corpus with directions that all the petitioners in the two petitions be brought before the High Court to be dealt with according to law.

2. Briefly the facts giving rise to these two petitions are that the petitioners were proceeded against in security proceedings under section 40, F. C. R., on the allegation that they were members of the National Awami Party, were against the One Unit, were annoyed over the arrest of K. Abdul Ghaffar Khan their Leader, they were attempting to revive the political party against the policy of the Government, were indulging in the Anti- Government activities and were disturbing law and order. All the petitioners were bound down under section 40, F. C. R. and were ordered to furnish security in various amounts, failing which they were ordered to undergo a term of three years' R. I. in default by the Deputy Commissioner Peshawar in Habeas Corpus Petition No. 157/1963, and by the Assistant Commissioner, Mardan, in Habeas Corpus Petition No. 159/1963, by their orders respectively dated 10‑7‑1961 and 12‑7‑1961.

3. The petitioners have come up to this Court after the enactment of the Criminal Law (Amendment) Act, 1963, on the following grounds :‑

(1) That the F. C. R. has been repealed by the West Pakistan Criminal Law (Amendment) Act of 1963, and section 34 of this Act and section 4 of the West Pakistan General Clauses Act, 1956, do not save the orders passed under section 40, F. C. R. as detention in prison in default of security is not a sentence of imprisonment , as contem plated by section 397, Cr. P. C. and para. 50 of the Punjab Jail Manual 1955 edition. The order under section 40, F. C. R. is not saved by any clauses of section 4 of the West Pakistan General Clauses Act, 1956.

4. The principal contention of the petitioners raised by them in the petitions was that the detention of the petitioners was illegal after the repeal of the F. C. R. 1901 by the Criminal Law (Amendment) Act of 1963. It was argued that the common law principle is that if the law is once repealed, it is presumed that it never existed.

It was further argued that under subsection (2) of section 34 of the Criminal Law (Amendment) Act, 1963, for the removal of doubts, section 4 of the West Pakistan General Clauses Act, 1956, was kept alive on the repeal of the Frontier Crimes, Regulation, 1901 but even section 4 of the General Clauses Act was ineffective as none of its clauses was applicable to the instant cases.

5. The other point raised during the course of arguments by the petitioners' counsel was that the order of detention exceeding one year passed by the Deputy Commissioner was bad in law as it was neither passed by the Commissioner nor confirmed by him. In support of this contention reliance was placed on section 47 (1) of the F. C. R., which is to the following effect :‑

47(1) Where, within the territories in which all or any of the provisions of this Regulation are for the time being in force, it is found necessary or expedient to take security under this Regulation from Pathans or Biluchis or any other classes against whom all or any of the provisions of sections 40 to 46 may for the time being be enforced, the provisions of Chapters VIII and XLII of the Code of Criminal Procedure, 1898, shall be read as if for the words "High Court", "Court of Session" and "Sessions Judge," wherever they occur, the word "Commissioner" were substituted, and all reference to any such Courts shall be deemed to refer to the Court of the Commissioner".

6. It was contended that the words "High Court" and "Sessions Judge" occurring in this section are to be substituted by the word "Commissioner". According to subsection (2) of section 42, only sections 112, 113, 115 and 117 of the Cr. P. C. are excluded. The counsel, therefore, contended that apart from the four excluded sections, the other provisions of the Criminal Procedure Code were applicable. The excluded sections of the Criminal Procedure Code relate to security proceedings. The final order, i.e., the order in question, requiring the petitioners to furnish security in various amounts as specified in the list attached, or in default to suffer three years' imprisonment was passed by the Deputy Commissioner which was invalid in view of section 47 (1) and (2) of the F. C. R. read with section 123 (2) of the Cr. P. C. Subsection (2) of section 123, Cr. P. C. lays down that when such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall in the event of the failure of such person to give the required security, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as convenient, and under subsection (3) the Sessions Judge alone was competent to order the imprisonment of such person for failure to give security not exceeding three years. To put it differently, it was argued that since the four excluded sections of the Criminal Procedure Code, the other provisions of the Criminal Procedure Code, in particular Chapter VIII, were applicable to security proceedings, the impugned order of impri sonment for failure to furnish security for three years passed by the Deputy Commissioner was bad for want of confirmation of the Commissioner.

7. The other point raised by the petitioners' counsel relates to the justification of the order of the Deputy Commissioner calling upon the petitioners to furnish security as the reasons given by the Deputy Commissioner in his order calling upon the petitioners to furnish security were not the three contingencies under which he could take action under section 40, F. C. R. namely, (1) for the purpose of preventing murder, (2) or culpable homicide not amounting to murder, (3) or the dissemination of sedition.

8. The learned Additional Advocate‑General while replying to the first point relating to the repeal of the F. C. R. referred to section 34(2) of the Criminal Law (Amendment) Act, 1963, which makes section 4 of the West Pakistan General Clauses Act, 1956 applicable, and contended that clauses (b) and (d) of section 4 of the General Clauses Act specifically protect the operation of any Act or order passed under the F. C. R.

9. In regard to the argument for the petitioners that Chapter VIII of the Cr. P. C. in particular section 123, Cr. P. C. was applicable to the case and the order of the Deputy Commis sioner requiring the confirmation of the Commissioner for the detention of the petitioners for a period over a year in default of the security, it was urged by the learned Additional Advocate -General that subsection (2) of section 47, F. C. R. in very unambiguous terms states that "the provisions of the said Chapters of the Code of Criminal Procedure, 1898, so far as they are consistent therewith, be applicable to every proceeding under this Chapter relating to the taking of the security" and since the provisions requiring the confirmation of the order of the Magistrate by the Sessions Judge in regard to order a security for a period of over three years was in contravention of the express terms of section 40, F. C. R. under which the Deputy Commis sioner and the Commissioner have concurrent jurisdiction of requiring a person to execute a bond for good behaviour etc., no confirmation of the Commissioner was required. So far as section 40, F. C. R. is concerned, the Legislature never intended to place restrictions on the powers of the Deputy Commissioner with regard to requiring a person to furnish a security.

10. Replying to the last point, the learned Additional Advocate‑General relied upon section 40, F. C. R., which is as under :‑

S. 40 (1) Where the Commissioner or the Deputy Commis sioner is of opinion that it is necessary for the purpose of preventing murder, or culpable homicide not amounting to murder, or the dissemination of sedition, to require a person to execute a bond for good behaviour or for keeping the peace, as the case may be, he may order the person to execute a bond, with or without sureties for his good behaviour or for keeping the peace, as the case may be, during such period not exceeding three years, as the Commissioner or the Deputy Commissioner, as the case may be, may fix.

'' (2) The Deputy Commissioner may make an order under subsection (1)‑

(a) on the recommendation of a Council of Elders, or

(b) after inquiry as hereinafter provided."

He also relied upon P L D 1950 Pesh. 80, regarding the jurisdiction of this Court to go into the matter.

11. We first address ourselves to point No. 1, namely, whether the impugned order demanding security is saved by section 4 of the General Clauses Act, 1956, which has been kept alive by section 34(2) of the Criminal Law (Amendment) Act, 1963. It will be convenient here to reproduce section 4 of the West Pakistan General Clauses Act of 1956, which runs :‑

"4 (1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not‑

(a) revive anything not in force or existing at the time of which the repeal takes effect ; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed . . . . ."

12. Mr. Mahmood Ali Qasuri, the learned counsel for the petitioners, urged that none of the clauses of section 4 of the General Clauses Act was applicable, because clause (b) says that it shall not affect the previous operation of any enactment so repealed or anything done or suffered there under. The counsel says that this clause is not applicable because it did not say "continuing to suffer". Clause (c) was not applicable, as it was meant for civil liability and not for criminal. It relates to right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. Liability means to pay, to receive, to deliver goods. The word acquired or accrued is not used in the context of Criminal Act, because punishment cannot be acquired or accrued or incurred. In the opinion of the learned counsel for the petitioners, clause (d) which prima facie seems to be applicable to the case also does not apply, because im prisonment in lieu of security is neither a "penalty" nor "forfeiture" nor "punishment" incurred in respect of any offence committed against any enactment so repealed. The learned counsel sought reliance on A I R 1950 Hyd. 20 to show that imprisonment in default of fine was not punishment. He further relied upon I L R 7 All. 67 and I L R 8 Cal. 331, that custody for security is not an offence. The same view was taken in I L R 31 Mad. 515, 1 L R 37 Bom. 178, 14 P R 1895, A I R 1921 All. 281 and A I R 1921 Sind 96. The counsel for the petitioners contended that if security proceeding is not an offence, then it cannot be saved by any clauses of section 4 of the West Pakistan General Clauses Act, 1956.

13. The learned Additional Advocate‑General took his stand on clause (b) of section 4 of the General Clauses Act. The effect of previous operation, i.e., proceedings under section 40, F. C. R., was demand of security and in default three years' imprisonment. If previous operation is not affected, then demand for security is not affected and it stands, and detention on failure to furnish security also stands. "Anything duly done" under the repealed enactment is not duly affected. Order demanding security under the repealed enactment of the F. C. R. is an act "duly done" under the F. C. R. and, therefore, it will not be affected. He contended that the petitioners incurred the liability to stiffer the imprisonment on their failure to furnish security.

14. The learned Additional Advocate‑General contended that if the words in section 44 (1), F. C. R. "where a person ordered to give security under section 40 or section 41 does not give security on or before the date on which the period for which the security is to be given commences, he shall be committed to prison, or, if be is already in prison, be detained in prison until that period expires, or until within that period he furnishes the required security" sere to be held imprisonment in the ordinary sense, then clause (d) of section 4 of the General Clauses Act shall be applicable, because the commitment to jail or detention in jail would be punishment. In support of the proposition that commitment to jail or detention in jail amounts to punishment, the learned Additional Advocate‑General relied upon proviso 2 to section 397, Cr. P. C., which lays down :‑ .

"Provided, further, that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately".

15. Relying upon this proviso, the learned Additional Advocate‑General contended that from the very words of this proviso, it was clear that the sentence of imprisonment was provided for default of furnishing security. Reliance was also placed on Emperor v. Tula Khan (I L R 30 page (sic) 334), where it was held by a Full Bench that "where a person is ordered by a Magistrate to be detained in prison" pending the orders of the Sessions Judge under section 123 of the Code of Criminal Procedure such person must be considered as a person undergoing a sentence of imprisonment and not merely as an under‑trial prisoner detained in custody. An order for imprisonment on failure to furnish security for good behaviour is a "sentence within the meaning of section 397 of the Code of Criminal Procedure."

16. From the above discussion it is obvious that clauses (b), (c) and (d) of section 4 of the West Pakistan General Clauses Act of 1956, are applicable and any order passed in regard to the furnishing of the security and on failure to furnish security, the order of imprisonment cannot be called into question. The view taken by the learned Additional Advocate-General that section 4 of the General Clauses Act has been made applicable by section 34(2) of the Criminal Law (Amendment) Act of 1963 is supported by Showkat‑un‑Nissa Begum and others v. State of Hyderabad (A I R 1950 Hyd. 20), relied upon by the petitioners, but instead of advancing their case, this authority clinches the matter against them as it clearly lays down that section 6 of the Indian General Clauses Act (corresponding to section 4 of the West Pakistan General Clauses Act, 1956), expressly refers to the repeal of an Act and it would be applied to an Act which becomes void. It was held that "section G (b) does not apply to preventive detentions. Preventive detention as against punitive detention requires the existence of the law authorizing the detention and the General Clauses Act can be invoked only when the law under which the detention has been ordered is repealed and the repealing Act makes a provision for its continuance But when the law becomes void and (sic) detention becomes illegal. When section 6, General Clauses Act, expressly refers to the effect of a repeal of an Act, it cannot be applied to an Act which becomes void. For some purposes repeal' and being void' may be the same, but for the purposes of the General Clauses Act the word repeal' has a special significance. The word repeal' connotes the existence of a repealing Act or, the abrogation of one Act by another. In the General Clauses Act the word void' cannot be read where the word repeal' is expressly used.

17. There is no force in the second point raised by the counsel for the petitioners to the effect that the impugned orders were bad in absence of order of confirmation of the Commissioner, because the order of detention was in excess of one year. It will be manifest from the reading of section 40 (1) of the F. C. R. that the Deputy Commissioner and the Commissioner have concurrent jurisdiction, as both of them have been authorised by this section, to require a person to furnish security and in default to sentence him for such period not over three years.

18. Moreover, the provisions of section 123, Cr. P. C. requiring confirmation by the Commissioner of the order of the Deputy Commissioner in excess of one year does not arise, because the said provision is inconsistent with the specific provisions of section 47(2) of the F. C. R., which in very clear terms states that the provisions of the said Chapters (VIII and XLII) of the Code of Criminal Procedure, 1898, shall, so far a they are consistent therewith, be applicable to every proceeding under this Chapter relating to the taking of the security. In other words, any provision under the Criminal Procedure Code which runs counter to the provisions of the Frontier Crimes Regulation cannot be held applicable to the proceedings under the F. C. R.

19. Commenting on certain individual cases, the petitioners' counsel first picked up the case of Ajab Khan son of Saadullah, which is on file No. 43/6, in which a complaint was drafted by Wasifullah, S. H. O., but the said S. H. O. was not examined by the Deputy Commissioner as a witness. The entire evidence consists of the solitary statement of Muhammad Sadiq, A. S. I., who stated nothing beyond proving the complaint to be in the handwriting of Wasifullah, S H. O. The same procedure was adopted in the case of Zaidullah, on file No. 44/6 decided on 16‑7‑1961, in which the complaint by Wasifullah, S. H. O. was proved from the mouth of Muhammad Sadiq, P. W. The state ment of Muhammad Akbar, S. H O., who was examined in file No. 105/6, in the case of Sheikh Muhammad Jabeen of village Sheikh Kili, does not bring the offence, according to the contention of the petitioners' counsel, within the purview of section 40, F. C. R., because beyond stating that the said petitioner was a strong worker of N. A. P. and propagating the cause of his party in the village, he stated nothing more.

19‑A After going through the record and hearing the learned counsel for the petitioners and the learned Additional Advocate -General at length, we are of the opinion that this Court has no jurisdiction to entertain the habeas corpus petitions arising out of proceedings under section 40, F. C. R., unless it is established from the record that the Deputy Commissioner had no powers to initiate proceedings under section 40, F. C. R. To decide this question, we have to look into the allegations made against the petitioners on the basis of complaints and we are not expected to look into the evidence and decide whether the material before the Deputy Commissioner was sufficient or not to sustain the impugned orders.

20. It is well‑established principle of law that in petitions under section 491, Criminal Procedure Code, the order passed by the Deputy Commissioner under the F. C. R. can be successfully assailed only when it is shown that the Deputy Commissioner had p no jurisdiction to initiate proceedings and once it is shown that he had such jurisdiction, our jurisdiction to call into question such proceedings comes to an end and we cannot look into the sufficiency or insufficiency of the evidence. In support of this view, we rely on Muhammad Akram and others v. The State (P L D 1963 S C, 373), wherein Cornelius, C. J., at page 380 while dealing with the very same subject summed up the discussion thus:‑

In these circumstances, it should be obvious that for the superior Courts to interfere whether by approval or otherwise with the operation of the system in any case, once a case is competently drawn into the system, would be a violation of the legislative intention. All action, in the writ jurisdiction, should be confined to action in limine, that is to say, in assertion of the jurisdiction of the ordinary Courts, and in vindication of the law, to scrutinize the process by which the case, if there be one, has been, or is sought to be, diverted into the ambit of the jirga system. If the legal requisites are satisfied, there is the last contact which the superior Courts can retain with the case, viz., by making such a declaration. All other processes taken in the disposal of the case, within the jirga system, are outside the purview of the Courts, in any of their jurisdiction.

21. Judging the instant cases in the light of the authority cited above, we proceed to examine the question whether in the complaints lodged in these cases, a case under section 40, F. C. R. has been made out to empower the Deputy Commis sioner to initiate proceedings under the above‑mentioned section. The plain reading of the complaint Exh. P. A. on file No. 43/6 of 1961‑State v. Ajab Khan‑would show that action was sought to be taken under section 40, F. C. R. on the follow ing allegations :‑

(1) That he was propagating in favour of Pukhtunistan at the instance of Afghan Government.

(2) As a result of which there was imminent danger of blood‑shed and murders.

The same allegations are made out in almost all the complaints against the petitioners. These allegations in our view clearly come within the mischief of section 40, F. C. R., which as already indicated empowers the Deputy Commissioner to take action if he is of the opinion that it is necessary for the purpose of preventing; murder, or culpable homicide not amounting to murder, or the dissemination of sedition. To repeat, in all these petitions, there are categorical allegations against the petitioners that they are disseminating sedition and there was imminent danger of blood‑shed and murders.

22. Having held that the Deputy Commissioner had the jurisdiction to initiate proceedings in view of the rule enunciated in the aforesaid Supreme Court ruling, our jurisdiction to go into the merits of the case is completely ousted.

23. For the foregoing reasons, we‑ dismiss the habeas corpus petitions.

K. B. A. Petitions dismissed.

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