P L D 1962 (W (PLP)

(3) That in violation of the provisions of section 43 (3), F. C. R. all the sureties were not given an opportunity to show cause why their bonds should not be confiscated. Thus the order of 9-8-60 passed by the E.A.C./A.D.M. was illegal and against the principle of natural justice. (4) That the learned Commissioner erred by rejecting the revision petition and thus confirming an illegal and ultra vires order of the E.A.C./A.D.M., Sibi. (5) That the learned Commissioner erred in holding that the proceedings under F. C. R. wherein rights of parties were de cided were not judicial. (6) That the learned Commissioner completely misinterpreted Article 8 (1) (d) of the Constitution of the Republic of Pakistan to the detriment of the petitioner and also ignored the provisions of Article 2 of the Constitution.

4. However, at the time of the arguments the learned counsel raised the following three contentions only :- (1) that the order of the learned District Magistrate, Sibi dated the 10th of August 1953 demanding surety in the amount of Rs. 30,000 was in excess of the powers conferred by section 41 of the F. C. R. This contention of the learned counsel has no force as section 41 gives that power to the Deputy Commissioner. It provides "where a blood-shed or other cause of quarrel likely to lead to blood-shed exists, or, in the opinion of the Deputy Commissioner, is likely to arise between two families or factions, the Deputy Commis sioner may, on the recommendation of a Council-of-Elders, or after inquiry as hereinafter provided, order all or any of the members of both families or factions or of either family or faction to execute a bond, with or without sureties, for their good behaviour or for keeping the peace, as the case may be, during such period not exceeding three years, as he may fix". On the 10th of August 1953 the learned Deputy Commissioner had passed the order on the recommendation of the Council-of-Elders in view of the fact that there was a blood-shed between the two factions and in his opinion it was necessary to avoid blood-shed in future that the parties be bound down to keep peace for a period of three years. The learned counsel contended that all the subsections of the Mahandani Tribe could not be grouped together as a faction and ordered to be bound down. This contention of the learned counsel has also no force, because a faction may consist of persons belonging to the subsections of a tribe or it may even consist of several tribes. In the case in which the surety was demanded, the six subsections of Mahandani tribe formed one faction while the persons belonging to the Zarkoon tribe formed the other faction, consequently the two factions were ordered to furnish security. This contention was also raised by the learned counsel at the time of the preliminary hearing of this petition and my learned brother Anwar-ul-Haq, J. did not admit this petition on that ground, he ordered that it was too late in the day to challenge the legality of the order passed by the District Magistrate of Sibi on the 10th of August 1953 under which the bonds were furnished. However, I thought it proper to consider this contention of the learned counsel on merits as well and I find that the contention raised by the learned counsel has no force. (2) that the amount of Rs. 30,000 could only have been recovered from the particular subsection to which the person contravening the terms of the surety bonds belonged. In support of this contention, the learned counsel has draw my attention to the recommendation made by the Jirga as contained in the order of the learned District Magistrate. There is no doubt that the recommendation of the Jirga was to the following effect :- "Since the Mahandani Maries are divided into six subsections the Jirga have further recommend.-d that if a member of any of the six subsections violates the proposed securities of Rs. 30,000 the full amount of Rs. 30,000 will be recovered from the particular subsection alone." However, I find that the learned District Magistrate while passing the order under section 41, F. C. R. directed the parties to furnish securities in the sum of Rs. 30,000 each with 30 sureties each in the sum Rs. 1,000 to keep the peace between themselves, their relations and factions for three years. Thus the operative part of the order does not lay down that the amount of Rs. 30,000 would be recovered from the particular subsection alone to which the person violating the conditions of the surety belonged. The surety furnished by each one of them was in the amount of Rs. 1,000 and the full amount of Rs. 30,000 could not have been recovered from five persons belonging to each of the six subsections. The recommendation made by the Jirga having not been totally accepted by the learned District Magistrate, the contention of the learned counsel, therefore, is without any force. The operative portion is the order passed by the District Magis trate and not the recommendation of the Jirga, consequently in case of the violation of the terms of the surety bond all the -30 sureties were liable to pay Rs. 1,000 each. (3) The third and the last contention of the learned counsel is that the order of the learned Commissioner refusing permission to the petitioner to be represented through his lawyer was illegal. In fact, this is the only point which the learned counsel has seriously contested. The learned counsel has relied on Chargul v. The Com missioner F. C. R. Quetta and another (P L D 1962 Quetta 15) and has urged that it has been laid down in this authority that the Commissioner while act ing under section 52 of the F. C. R. acts at least quasi judicially if not judicially and that in view of this judgment, the learned Commissioner could not be said to have been acting in an administrative capacity and, therefore, a lawyer was entitled to appear before him. This authority would not apply to the present case because what has been laid down in that authority is that the learned Commissioner while hearing a revision under section 52 of the F. C. R. was bound to hear the party affected by his orders. The authority need not have been quoted because even in the present case when the Commissioner had decided an earlier petition without hearing the petitioner his order was set aside in writ jurisdiction and he was asked to hear the petitioner before passing any final order. The question whether the party could claim to be heard through a lawyer was not at issue in this authority. The learned counsel has also cited Chief Commissioner, Karachi v. Miss Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45). In this authority what has been laid down is that the Chief Commissioner and the Rent Controller, Karachi, was not com petent to dismiss an appeal presented under section 10 (1) of the Sind Requisition of Lands Act No. XLVI of 1947 against an order of requisition of some property without hearing the party affected by the order. This authority also does not help the learned counsel in any manner. The proposition that nobody should be condemned without being heard is of universal application but this cannot be carried further that the hearing should in each case be through a lawyer. The next authority cited by the learned counsel in support of his contention is Messrs Faridsons Ltd., etc. v. Government of Pakistan etc. (P L D 1961 S C 537). This authority lays down that the rule of natural justice was too well-established to require mention; viz. that no person shall be condemned unheard. There has been no violation of this rule so far as the present case is concerned because the learned Commissioner heard the petitioner before passing his orders. The learned counsel has cited Khair Muhammad Khan and others v. The Government of West Pakistan (P L D 1956 Lah. 668). This authority was based on Article 7 of the late Constitution, and the learned counsel, therefore, cannot avail of the pronouncement in that authority. In view of Article 7 of the late Constitution it was ordered that no trial by a Jirga would be held without giving an opportunity to the accused of defending themselves by a pleader. Since there is no parallel provision in the present Constitution to Article 7 of the late Constitution, this authority does not support the contention of the learned counsel. The learned counsel, however, relied on Principle of Law-making No. 8 (d) of the present Constitution. This para. deals with the Civil Courts in relation to arrest and detention and it would not be applicable to the triables. It lays down that a law authorising the arrest or 6etention of persons should ensure that a person arrested or detained nnder the law is at liberty to consult, and to be represented and defended by a legal practitioner of his choice. The learned counsel has further relied on Mehrab Khan v. Taj Muhammad (P L D 1961 Quetta 1). This authority also does not help the petitioner in any manner. The ratio of this authority is that a personal hearing before deciding a matter is not a necessary requirement of the principle of natural justice. All that is necessary is a full and fair opportunity of making a representation or showing cause. What is a full and fair opportunity depends upon the facts of each case. In some cases it may be enough if a party has in his petition placed his point of view and has shown cause for the consideration of the authority, and if no prejudice is shown to have been caused. It has also been remarked in the judgment that the circular orders contained in the Green Book do not have the binding force of rules. Both of these pronouncements do not help the learned counsel in the contention raised by him.

5. The learned Additional Advocate General in reply has urged that there is no general rule of law entitling litigants to be represented by pleaders before the public officers and that in each case the litigant has to show that such a right had been given to him under the law under which he is litigating. In support of this contention he has cited Imperator v. Tawakali (4 Sind L R 49). This was a case under section 118 of the Cr. P. C. and it was remarked that there is no provision express or implied in the Code entitling a person ordered to furnish security under section 118, Cr. P. C. to be represented by a pleader in the subsequent proceedings relating to the fitness of sureties offered under section 122, Cr. P. C. In the absence of such provision it is entirely within discretion of the Magistrate or the Court to allow him to be represented by a pleader. He has also cited T. Rajgopala Ayyanagar v. Collector of Salt Revenue (A I R 1937 Mad. 735) in support of his contention, which lays down as follows :- "There is in British India no Common Law right in a party to a proceeding to be represented by counsel. The right wherever it exists, will be found to be given by enactment. On giving the words to be-heard in person in rule 55 of the Civil Services (Classification, Control and Appeal) Rules their natural and ordinary meaning, it is clear that Government servant in an enquiry under rule 55 has no right to appear by counsel." He has further cited Mst. Amir Begum v. Umar Din and others (P L D 1961 Lah. 360) in which case it was held that if the petitioner was not heard by the Chief Settlement Commissioner in his revision it would not be a case of a person being condemned without having been heard but that it was a case m which the person held condemned was not heard against his condemnation, it was, therefore, held that the omission did not offend against the principle of natural justice that "no person shall be condemned unheard. This authority, however, does not help the learned counsel for the State as it has no application to the facts of this case. The other two authorities cited by the learned counsel are The Queen v. Mansel Jones ((1889) 23 Q 13 D 29) and In re. Prince Blucher Ex parte Debtor ((1931) 2 Ch. D 70). These cases also do not help the learned counsel for the State because so far as the hearing was concerned it was specifically drafted in the statute "shall give him an opportunity of being heard by himself and of calling evidence in his defence to show why he should not be so reported". The use of the words "by himself" clearly exclude the hearing through a counsel or a solicitor. Lastly, the learned counsel for the State relied on Samundar v. The Crown (P L D 1954 F C 228), wherein it has been remarked by the learned present Chief Justice of Pakistan as a Judge of that Court : "I am therefore clearly of the opinion that the proceedings which have been taken in the present case are not to be regarded as proceedings in justice, but that they are from every point of view to be regarded as proceedings before an administrative agency, specially provided for the settlement of criminal causes, and specifically adopted to the conditions prevailing in frontier districts, at any rate at the time when the Regulation was enacted." The learned counsel has also relied on the remarks made by Mr. Justice Muhammad Akram which are to the effect : an order of the above nature (an order under revision by the Commissioner under section 50 of the F. C. R.) cannot be regarded as having been made judi cially by a Court of law. The Deputy Commissioner and the Commissioner in this respect appeared to have been mentioned in the Regulation merely as persona designata and not as judiciary. The conviction and the sentences in question, therefore, cannot be treated as made in the course of perfor mance of the normal duty of administration of justice in a litis contestatio. These orders are merely executive or adminis trative orders which have been made with a view to extirpating a social evil and consequently the Courts cannot enquire into the validity of the finding of the Council-of-Elders or of the orders of the Deputy Commissioner confirmed in revision by the Commissioner. Furthermore, the jurisdiction of the Courts seems to have been clearly and expressly barred by section 50 of the Regulation."

6. I have considered the arguments of both the learned counsel and have also gone through the authorities stated by them. The learned counsel for the petitioner has failed to show that there was a common law right of a litigant to be represented in all the proceedings by a counsel. In these circumstances, it is inevitable that one should refer to the statute under which a person is being tried to see if there were any terms as to hove a person was to be heard. The words of the statute only car afford an answer to such a contingency. Section 340, Cr. P. C lays down that "any person accused of an offence before a Crimi nal Court, or against whom proceedings are instituted under twr: Code in any such Court, may of right be defended by a pleader". The words used in this section are clear enough to entitle the accused before a Criminal Court or in the proceedings instituted under the Cr. P. C. to be defended by a pleader. The orders of forfeiture of the surety in the present case do not fall under any of the two categories, as the Magistrate as well as the Com missioner were not acting as Criminal Courts. It has nowhere been provided in the F. C. R. that a person will be entitled to be defended by a pleader in any proceeding under that Regulation. The very nature of the proceedings also indicates that it was not the intention of the Legislature to permit the accused to be defended by lawyers in proceedings under this Regulation. Section 62 of the. F. C. R. provides that the Local Government may make rules to carry out the purposes and objects of this Regulation. The A. A. G. on the 14th of August 1930 issued an order at serial No. 60 which prohibited the entertainment of an application in the proceedings under the F. C. R. if it appeared to have been drafted by a pleader. Whether this rule has the force of law or not but this in any case will indicate that the Govern ment discouraged the participation of pleaders in proceedings under the F. C. R.

7. In view of what has been stated above, I consider that the learned Commissioner was justified in refusing permission to the petitioner to be heard through his lawyer.

8. There is, therefore, no merit in this petition which is dismissed. There will be no order as to costs. A. H. Petition dismissed.