P L D 1967 Lahore 1 (PLP)

ANWARUL HAQ, J.‑The four petitioners Sher Ali, etc. were convicted of an offence falling under section 307 of the Pakistan Penal Code, read with section 34 of the same Code, by the Deputy Commissioner of Mianwali on the 10th of February 1964, acting under the Frontier Crimes Regulation, 1901 and sentenced to various terms of imprisonment ranging from seven years to ten years, as well .as substantial. amounts of fine. The convictions were confirmed by the learned Commissioner, Sargodha Division, by his order dated the 13th of May 1964, but the sentences were reduced and the fines were remitted. It may be stated that the occurrence leading to these convictions and sentences was stated to have taken place on the night between the 16th and the 17th of September 1962.

2. In this petition under Article 98 of the Constitution the legality of the convictions and sentences recorded by .the Deputy Commissioner, Mianwali, and confirmed by the Commissioner, Sargodha Division, ‑has been challenged before us on a large number of grounds, but at the time of arguments at the Bar the learned counsel for the petitioners has confined himself to the following main contentions:‑ (a) That the Frontier Crimes Regulation, 1901 is void on account of its inconsistency with Fundamental Right No. 1 which has not been suspended by the Orders rgade by the President under the Proclamation of Emergency on the 6th and the 16th of September 1965, respectively, and (b) that, in any case, irrespective of the question of enforce ment of any Fundamental Rights at this stage, the orders made against the petitioners by the Deputy Commissioner and the Commissioner are without lawful authority for the reason that the Frontier Crimes Regulation has already been declared a void law by a Full Bench of the High Court in Malik Muhammad Usman v. The Government of West Pakistan P L D 1965 Lah. 229 decided on the 17th of December 1964.

3. At the very outset a preliminary objection was taken by learned Advocate‑General regarding the maintainability of this petition in view, of the Presidential Proclamation of Emergence dated the 6th of September 1965, and the two Orders made by the President in pursuance thereof on the 6th and the 16th of September 1965, by which several Fundamental Rights were suspended, and it was ordered that "all proceedings pending in Courts for the enforcement of the said rights shall remain suspended for the period during which the said Proclamation is in force." It was pointed out by the learned Advocate General that by the Order passed on the 6th of September 1965, Fundamental Rights 2, 3, 5, 6, 7, 8, 9, 13, 14 and 17 were suspended, whereas by the Order made on the 16 of September 1965. Fundamental Right No. 15 was also suspended in the same terms as were used earlier in the Order dated, the 6th of September 1965, with regard to Fundamental Rights specified therein. It was submitted by the learned Advocate‑General that as the petition invokes Fundamental Rights Nos. 1 and 15, it is hit by the prohibition contained in the Order dated the 16th of September 1965, for the reason that although Fundamental Right No. 2 is not among those which have been suspended, yet the petition cannot be separated with regard to this particular Right and has to be treated as being a part of the prayer for the enforcement of Fundamental Right No. 15.

4. The reply to this argument, as presented‑by Mr. Mahmood Ali Qasuri on behalf of the petitioners, is two‑fold: (a) That in so far as the enforcement of Fundamental Right No. 1 is concerned, the petition is not hit by the two Presidential Orders dated the 6th and the 16th of September 1965, as this particular ,Right has not been suspended; and, there is no question of keeping it pending simply for the reason that Fundamental Right No. 15 has also been invoked; and (b) that in actual fact and in substance this is not a petition for the enforcement of the Fundamental Rights in question, as the F. C. R. has already been struck down by the High Court by the Full Bench Judgment dated the 17th of December 1964, and accordingly the present petition has to be treated as in the nature of habeas corpus petition under clause (b) of Article 98 (2) of the, Constitution.

5. We consider that there is substance in the reply advanced by Mr. Mahmood Ali on ‑ behalf of the petitioners. The prohibition contained in the Presidential Orders made under Article 30 (9) of the Constitution is confined only to those Rights which have been specified therein. As already stated, Fundamental Right No. 1 is not one of those Rights and accordingly it remains in force and can be invoked even during the continuance of the Emergency. There can be no question of the petition being joint with regard to Fundamental Rights Nos. 1 and 15 so as to preclude consideration of the inconsistency of the law with Fundamental Right No.

1. These are two district ground of attack. We consider, therefore, that the petition can certainly proceed in so far as the enforcement of Fundamental Right No. 1 is concerned, irrespective of the fact that Fundamental Right No. 15 remains suspended.

6. Mr. Mahmood Ali's second submission in this behalf has also to be accepted. As at the time this petition was filed the judgment of the Full Bench in Malik Muhammad Usman's case had not been pronounced, the petitioners had to make out a case regarding the F. C. R. being void on account of its inconsistency with Fundamental Rights Nos. 1 and 15, but with the pronouncement of the Full Bench, during the pendency of this petition, the position has materially changed, namely, that the law in question has, in fact, been declared to be void from the date of the enforcement of the Fundamental Rights on the 10th of January 1964, by the Constitution First Amendment Act. A direct result of the declaration made by the Full Bench is that at least from the 10th of January 1964, up to the 16th of September 1965, the F. C. R. was a void law, and the question, therefore, is regarding the legality of the actions taken thereunder during this period. On this view of the matter, the petitioners would not be invoking in praesenti the Fundamental Rights in question but would merely be questioning the legality of their detention under a void law and the relief claimed by them would fall under clause (b) of Article 98 of the Constitution. We have not considered it necessary to ask the petitioners to amend the petition so as to make it explicitly clear that the petition is under this provision of the Constitution as well, as in ground No. 1 it is clearly asserted that "any order passed in proceedings under the Frontier Crimes Regulation is without lawful authority and is of no legal effect." It is true that the challenge to the legality and vires of the Frontier Crimes Regulation is with reference to the Constitution, but with the pronouncement of the Full Bench in Malik Muhammad Usman's case the question of inconsistency during the currency of the Fundamental Rights already stands decided.

7. Taking now the first main contention advanced by Mr. Mahmood Ali that the F. C. R. continues to be a void law on account of its inconsistency with Fundamental Right No. 1, we find that this question has been considered and decided by the Full Bench in Malik Muhammad Usman's case, referred to earlier. The contention raised before the Full Bench are summarized in Paragraph 13 of the judgment (on page 243 of the Report), and it is clear therefrom that the main attack on the vires of the Regulation was with regard to Fundamental Rights Nos. 1 and

15. The discussion of the effect of Fundamental Right No. 1 appears in Paragraphs 18 to 20 of the judgment (on page 247 of the Report) and the conclusions are contained in Paragraph 21 in which Ortcheson, J. who delivered the judgment of the Court, observed as follows: "Having considered the authorities cited before us, I am respectfully of the view that sections 8 and 11 of the Regulation providing for reference of proceedings to a Jirga offend against Fundamental Right No. 15, inasmuch as the Deputy Commis sioner and the Commissioner are given an uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatory procedure, such discretion Deputy being moreover not governed by any settled principle. They are also repugnant to Fundamental Right No. 1, it being now settled that the Jirga procedure cannot be described as a "law" in any recognised sense of the term. All other sections dependent on sections 8 and 11 automatically fall with them."

8. It was contended by the learned Advocate‑General that, in the first place, the judgment of the Full Bench does not contain any discussion of the question of the inconsistency of the F. C. R. with Fundamental Right No. 1 and that the conclusion reached on this point in Paragraph 21 does not, therefore, flow from the reasoning in the earlier paragraphs of the judgment, with the result that this conclusion is not binding on us. In the alter native, he submitted, that the conclusion reached by the Full Bench on this point is in conflict with at least two reported judgments of the Supreme Court in The State v. Nawab Gul (P L D 1963 S C 270) and Muhammad Akram v. The State (P L D 1963 S C 373). The learned Advocate General elaborated his argument by a reference to Article 225 of the Constitution and sought support from a judgment from the Indian jurisdiction, namely, A. K. Gopalan v. The State of Madras (AIR 1950 S C 27) and submitted that the word "law" as used in Fundamental Right No. 1 has to be interpreted as meaning enacted or positive law and not mere principles of law or natural Justice. It appeared to the learned Advocate‑General that viewed in this light the F. C. R. was definitely an enacted or positive law and there was accordingly no question of its being void on account of inconsistency with Fundamental Right No. 1.

9. We regret we cannot accept the contention raised by the learned Advocate‑General that the Full Bench has not fully considered the question of inconsistency with Fundamental Right No. 1 or that the conclusion reached by the Full Bench is in conflict with the view adopted by the Supreme Court in the cases of Nawab Gul and Muhammad Akram. As already pointed out, the learned Judges have discussed this question in Paragraphs 18 to 20 of their judgment and there is a fairly extensive quotation from Nawab Gul's case. A reference was also made to certain observations made by the learned Chief Justice of Pakistan in an Address on the subject of "The Role of law in the present changing times". It was after a reference to these two quotations that the conclusion contained in Paragraph 21 of the judgment was reached. The two references had bearing on the application of Fundamental Right No. 1 and not of Fundamental Right No.

15. There is undoubtedly no reference to Muhammad Akram's case, but the learned Advocate‑General as well as Mr. Mahmood Ali, both of whom had appeared before the Full Bench, are agreed that Muhammad Aram's case was brought to the notice of the Full Bench. It. thus seems to us that the question of the inconsistency of the Regulation with Fundamental Right No. 1 has been properly considered by the Full Bench before reaching the conclusion expressed in Paragraph 21 of the judgment; and accordingly it is not a case of an obitor dictum or of a conclusion having been reached without conscious application of min, to the issues involved.

10. As regards the submission that the conclusion of the Full Bench on this point is in conflict with the view taken by the Supreme Court in the two cases just mentioned, we find that this is also not correct. It is true that in Nawab Gul's case the learned Judges of the Supreme Court did use the words that "the Courts cannot be the final Judges in a question of expediency which is entrusted by the law to the executive for decision but these observations do not amount to an adjudication on the question whether the Regulation is to be deemed to be law within the meaning of Fundamental Right No. I. The mere fact that their Lordships have referred to the F. C. R. as a law or a statute does not really resolve the issue as to whether the F. C. R. is to be deemed to be law for the purposes of the application of Fundamental Right No.

1. This particular question was not before their Lordships in Nawab Gul's case and it cannot, therefore, be said that the conclusion of the Full Bench is, in any manner, in conflict with this judgment of the Supreme Court. On the other hand, the tenor of the judgment delivered by the Supreme Court in Nawab Gul's case as shown by the Full Bench in its discussion of the question seems to make out that the F. C. R. did not conform to the accepted notions of the principles which govern the administra tion of justice.

11. Coming now to Muhammad Akram's case, here again the question which we are considering in the instant case was not before their Lordships of the Supreme Court. However, certain observations made by them on page 376 of the Report support the view taken by the Full Bench and it would be instructive to quote these observations here:‑ "In our, opinion they should have dismissed the petition on a totally different ground, namely, that sitting as Superior Judges at the apex of a system of administration of justice which is based upon meticulous ascertainment of facts by due process, and the application of law thereto, they have no concern whatsoever with the kind of proceedings which took place before the Jirga in this case, which, we believe, is taking place before a multitude of other Jirgas all over the West Pakistan Province, and which, we are informed it is intended should soon become universal. The mere existence of the words in the proviso to section .50, viz. "material irregularity, or defect in the proceedings" and "a miscarriage of Justice" should serve to mislead no one, least of all, one of the ordinary Courts of justice. For by expression, the whole method of a scertainment of facts before a Jirga and the application of law to those facts is rigorously kept free of every kind of rule or regulation that might savour of due process."

12. It will be seen, therefore, that there is no conflict here between the judgment delivered by the Full Bench and the two judgments of the Supreme Court on the question whether the F. C. R. is or is not a law in any recognised sense of the term, for the purposes of Fundamental Right No.'

1. Accordingly no question arises of invoking Article 63 of the Constitution to give Sher Ali effect to the verdict of the Supreme Court in supersession of the Deputy opinion delivered by the Full Bench of the High Court in Malik Muhammad Usman's case.

13. Having reached the conclusion that the question of inconsistency of the F. C. R. with Fundamental Right No. I stands decided by the Full Bench of this Court and that there is no conflict between that decision and any verdict of the Supreme Court, we are bound by the Judgment of the Full Bench, and it is not open to us to embark on a fresh examination of the question on the basis of the contention raised by Mr. Nasir ud‑Din that the term "law" as used in Fundamental .Right No. 1 should be interpreted to mean positive or enacted law and that the F. C. R. is a law of this category. It is unnecessary, therefore, to refer to the case from the Indian jurisdiction on which the learned Advocate‑General wishes to rely in support of his argument in this behalf. As a result, it is clear that the F. C. R. continues to be void even in spite of the suspension of Fundamental Right No. 15, for the reason that it is in conflict with Fundamental Right No. 1 as held by the Full Bench of the High Court. A necessary consequence of this finding is that the convictions and sentences recorded against the petitioners under a void law must be held to be without lawful authority.

14. We now take up the second contention advanced by Mr. Mahmood Ali that, even apart from invoking Fundamental Right No. 1, it is clear that on the dates the convictions were recorded by the Deputy Commissioner and confirmed by the Commissioner, the F. C. R. was a void law as the Fundamental Rights were then in force, and a declara tion had been given by the High Court in its judgment dated the 17th of December 1964 that the law was void. It is submitted by the learned counsel for the petitioners that assuming, though not conceding, that the suspension of Fundamental Right No. 15 by the Presidential Order dated the 16th of September 1965, had the effect of somehow reviving the Frontier Crimes Regulation, this effect could not operate retrospectively so as to validate unlawful actions taken between the enforcement of the Fundamental Right in question and its suspension on the 16th of September 1965. To put it differently, the argument is that the validity of the convictions and sentences recorded against the petitioners has to be judged with reference to the state of the law as it prevailed on the dates when the impugned orders were passed, and if that is done, it would be clear that the orders were passed without any legal sanction. .

15. We think that this contention must succeed. Under clause (1) of Article 6 of the Constitution "any law or any custom or usage having the force of law, in so far as it is inconsistent with the Rights conferred by this Chapter, shall, to the extent of such inconsistency, be void". The F. C. R. has been held to be void, in terms of this Article, by the judgment of the Full Bench in Malik Muhammad Usman's case delivered on the 17th of December 1964, and the declaration of incon sistency and the law being void as a consequence thereof, clearly has effect from the date of the enforcement of the Rights in' question, namely, the 10th of January 1964; as held in Muhammad Bashir v. The Province of West Pakistan ()P L D 1958 Lah. 853 Ghulam Muhammad Malik Mirza Khan and three others (P L D 1966 Quetta 1); and Alam Sher and others v. The State and others (P L D 1966 Pesh. 19P L D 1958 Lah. 853P L D 1966 Quetta 1). On this view of the matter, J the Deputy Commissioner and the Commissioner have acted without any lawful authority in convicting and sentencing the petitioners.

16. For the foregoing reasons, our conclusions are that the present petition is, in fact, in the nature of a habeas corpus petition falling within the purview of clause (b) of Article 98 (2) of the Constitution, and is not hit by the prohibition contained in the two Presidential Orders dated the 6th and the 16th of September 1965. The petitioners are not invoking the relevant Fundamental Rights in praesenti, as the question of consistency already stands decided in this case by the Full Bench of the High Court in the case 'of Malik Muhammad Usman. The orders passed by the Deputy Commissioner and the Commissioner on the 10th of February 1964 and the 13th of May 1964, were passed under a void law and are accordingly declared to be without lawful authority ‑and of no legal effect.

17. Even if the petition be treated as one for the enforce ment of Fundamental Rights, relief can be given to the petitioners by invoking Fundamental Right No. 1 ‑which has not been suspended by the two Presidential Orders mentioned above. The G. F. C. R. has been found to be inconsistent with Fundamental Right No. 1 and accordingly continues to be void. For this reason as well the orders made by the Deputy Commissioner and the Commissioner convicting and sentencing the petitioners are without lawful authority and of no legal effect.

18. Although we have held that the convictions and sentences recorded against the petitioners are invalid on account of being under a void law and have to be set aside, yet it does not mean that the petitioners are not liable to be tried under the ordinary law for the offences alleged against them. The same view was taken in the case of Muhammad Bashir, referred to earlier. We would accordingly accept this petition and declare that the convictions and sentences recorded against the petitioners under the F. C. R. without lawful authority and of no legal effect. The petitioners shall be treated as persons who are under trial, that is liable to be tried under the ordinary law. There, will be no order as to costs. P. S. : After the judgment was announced by us in open Court the learned counsel for the petitioners requested that in view of their convictions and sentences having been declared to be without lawful authority and their having been in custody for over two years, the petitioners may be released on bail. The learned counsel further submitted that it is possible that the Government may not wish to prosecute the petitioners even under the ordinary law as they have already suffered a substantial part of the sentences imposed on them. We consider that, the question of bail has to be decided in accordance with the ordinary law and the matter should, therefore, be agitated in accordance with that law. We do not think it necessary to pass any orders in this behalf while acting in the present proceedings under Article 98 of the Constitution. It was stated at this juncture by Mr. Mahmood Ali that the petitioners were allowed bail by the ordinary Court before their case was referred to a Jirga under the F. C. R. This fact is not confirmed by the learned Advocate General due to lack of information, but this would obviously be a relevant consideration when the petitioners move for bail before the competent Court.

2. The Darned Advocate‑General has requested for the grant of a certificate of fitness for appeal to the Supreme Court on the ground that there are several important constitutional questions involved in this case. He has further submitted that the operation of the order passed by us today may be suspended for at least five weeks so as to enable him to file the appeal in the Supreme Court.

3. Mr. Mahmood Ali opposes both the prayers made by the learned Advocate‑General. He submits that we have merely followed the judgment of the Full Bench in the case of Malik Muhammad Usman and accordingly no new questions arise for determination by the Supreme Court. As regards the suspension of the operation of the order passed by us today, the learned counsel for the petitioners submits that the petitioners have already suffered very heavily in body and mind and there will be no justification in subjecting them to further hardship.

4. We are inclined . to agree with Mr. Mahmood Ali in the latter part of his submission and we accordingly decline to suspend the operation of this order. However, it is clear that the case does involve some important constitutional questions and it is accordingly certified to be a fit one for appeal to the Supreme Court. A. H.