P L D 1966 (W (PLP)

Dates of hearing: 19th, 22nd and 23rd April 1966. This petition is directed Against the order of the Commissioner, Kalat Division, dated 1‑4‑1962, setting aside the acquittal order of the Deputy Commissioner, Kalat, in favour of the petitioners and directing the petitioners' prosecution under the Kalat Penal Code.

2. The case arises out of an incident which took place on 16th August 1960. According to the petitioners, the petitioner No. 1 had gone on hunting. On his way he met his brother Sarbuland Khan, who was going to Bhag. One Gaji Khan also arrived there. Both petitioner No. 1 and Gaji Khan were armed with guns. Gaji Khan challenged the two brothers complaining that they had charged him with Siahkari, upon which the petitioner No. 1 armed his charge that Gaji Khan was a Siahkar. On this Gaji Khan fired at the two brothers and the bullet hit the petitioner No. 1 in his head resulting in his becoming unconscious. When the petitioner No. 1 recovered his consciousness, he saw his brother Sarbuland Khan lying wounded by his side. Sarbuland Khan is stated to have told the petitioner that Gaji Khan had fired at him also and then Sarbuland Khan shot Gaji Khan dead in defence.

3. The case was referred by the Deputy Commissioner, Kalat, to the Council‑of‑Elders, who gave a finding on 4‑5‑1961 that the petitioners were not guilty of killing Gaji Khan. The Deputy Commissioner accepted this finding and acquitted the petitioners under section 11(3)(c) of the Frontier Crimes Regulations, 1901.

4. On revision preferred by the respondent No. 4, the Commissioner of Kalat, vide his order dated 1‑4‑1962 set aside the order of acquittal on the ground that on the date of the incident, namely, 16‑8‑1960, the Frontier Crimes Regulations had not been extended to Kalat Division and therefore, the Deputy Commissioner was not competent to refer the case to the Council of‑Elders. As stated above, the petitioners were directed to be prosecuted under the Kalat Penal Code.

5. The only ground urged before me by Mr. Mirza Muhammad Ahmed, the learned counsel for the petitioners; is that the Commissioner has committed an error of law in setting aside the petitioners' acquittal on the ground that the petitioners could not be tried under the Frontier Crimes Regulations because this law was not applicable in the Kalat Division on the date of the incident. The learned counsel contends that the incident happened on 16‑8‑1960; the Frontier Crimes Regulation was extended to Kalat Division on 23m8‑1960 by Ordinance XXVII and the reference under section 11 of the Frontier Crimes Regulations was made by the Deputy Commissioner on 4‑5‑1961. On the date the reference was made by the Deputy Commissioner, the Frontier Crimes Regulations were in force in the Kalat Division. It is urged that this law being a procedural law, has retrospective operation. This contention is opposed by Mr. Muhammad Haleem, the learned Assistant Advocate‑General, who has maintained that at the most the Commissioner can be said to have taken an erroneous view as to the law in force in the Kalat Division on the relevant date and this by itself is not a sufficient ground for invoking the Constitutional jurisdiction of this Court, or for interfering with the special jurisdiction created under the Frontier Crimes Regulations, 1901.

6. I am unable to accept the arguments of the learned Assistant Advocate‑General. The Frontier Crimes Regulations, 1901, is. a procedural law, and it having been extended to the Kalat Division by Ordinance XXVII of 1960, the cases within the purview of the Regulations could validly be tried in accordance with the procedure prescribed therein from the date of its extension, namely, 23‑8‑1960.This question has been considered in the Full Bench decision of this Court in Ghazi and others v. The State (P L D 1962 Lah. 662), where it was held that the choice of a forum is a matter of procedure and the Deputy Commissioner was competent to refer a case pending in a Magistrate's Court, since before the extension of the Regulation to the area in question, to a Council‑of‑Elders. It was further held that the exercise of power of reference of a case to the Council‑of‑Elders is valid even though it may have retrospective operation in the sense that it takes away the vested rights. In another case, Masud Ahmad v. The State (P L D 1962 Lah. 878); a Division Bench of this Court held that the Frontier Crimes Regulation could be invoked even in cases of offences committed before the Regulation was made applicable to the area in which the trial was being held. In view of the decisions in these cases, the Commissioner acted in error in holding that the petitioners could not be tried under the Frontier Crimes Regulation, 1901 as this law was not in force in the Kalat Division on the date of the offence. This error is not a mere erroneous view of law but amounts to a jurisdictional error, in the sense that the Commissioner denied the existence of jurisdiction which validly vested in the Deputy Commissioner to refer the case of the petitioners to the Council‑of‑Elders under the Frontier Crimes Regulation, 1901.

7. For the above reasons, the Commissioner's impugned order is liable to be set aside. But Mr. Muhammad Ahmed wants me to quash the revisional proceedings as such before the Commissioner commencing from the filing of the revision application and not merely to set aside the impugned order. The purpose behind this request is to avoid the prosecution of the petitioners under the Quetta and Kalat (Civil and Criminal Law) Ordinance, 1965 (Ordinance III of 1965). This Ordinance, which came into force on 18th March 1965, makes the following provisions in subsection (5) of section 3:‑ (i) An offence referred for decision under the provisions of the Frontier Crimes Regulations, 1901 on or after the 10th of January 1964, or (ii) an offence in which a conviction was recorded and the sentence has not been served out, or (iii) an offence in respect of which a revision application was pending under the provisions of the Frontier Crimes Regulations on or after the 10th of January 1964, may be referred for decision to the Tribunal in accordance with subsection (3) of section

5. Mr. Muhammad Haleem, the learned Assistant Advocate‑General, pointed out that if the impugned order of the Commissioner only is quashed, the revision filed by the petitioners under section 49 of the Frontier Crimes Regulations will be deemed to be pending on or after the 10th of January 1964, under the above provisions of Ordinance III of 1965. But if the revision proceedings as such are quashed, it may not be possible to prosecute the petitioners for the offence alleged against them. I cannot accept the proposition that the revision proceedings as a whole in this case have to be quashed. It has not been shown that on the relevant date the respondent No. 4 could not legally go in revision before the Commissioner under section 49 of the Frontier Crimes Regulation, 1901 against the acquittal of the petitioners by the Commissioner. No defect has been pointed out to me in the revision application itself which cannot, consequently, be quashed in these proceedings.

8. On the basis of the conclusions I have reached above, I set aside the order of the Commissioner dated 1‑4‑1962, but will make no order as to costs in the circumstances of this case. The Commissioner is at liberty to deal with the revision application of respondent No. 4 according to law. S. A. H./S. Q. Petition partly allowed.