P L D 1962 (W (PLP)

SHABIR AHMAD, J‑By this petition Masud Ahmad, a criminal case against whom under section 302 of the Pakistan Penal Code for the murder of his sister‑In‑law Mrs. Nasim Yaqub has been referred to a Council‑of‑Elders by the Deputy Commis sioner Sargodha, seeks the following reliefs: ‑ (a) That it may be held and declared that legally the case is still pending in the Court of the Additional District Magistrate, Sargodha. (b) That case may be transferred from the said Court to and other Court of competent jurisdiction at Gujranwala or some other place where it can be tried in a calm and quiet atmosphere. (c) Or, in the alternative, the case may be committed under section 526 (c) (iv) for trial to the Court of the Sessions Judge. ' (d) An order to the Deputy Commissioner, Sargodha, and Council‑of‑Elders convened by him, may be issued directing them not to proceed with the case under the Frontier Crimes Regulation III of 1901. Interim order is also solicited for the same purpose. A writ petition praying for materially the same reliefs as prayed for in the criminal miscellaneous petition was also put in by Masud Ahmad. No notice was issued on that petition but as the points that require determination therein are the same as in this criminal miscellaneous petition, both the matters will be disposed of by this order.

2. Mrs. Naseem Yaqub, sister‑in‑law of the petitioner, dis appeared some time in the month of December 1961 when she was on her way from Lalamusa to Sargodha. A report about the disappearance was made on the 26th of December 19x1 at Sargodha and another report was made on the 29th of December 1961 at Lalamusa. The Frontier Crimes Regulation, 1901, as amended, was extended to Sargodha District by means of a notification Issued by the Governor of West Pakistan. Till the 9th of February 1962, the Frontier Crimes Regulation, 1901 did not extend to the districts other than those' mentioned in the original Regulation but by reason of an amendment made by means of Ordinance VIII of 1962, which was promulgated by the President of Pakistan on the above‑mentioned date, sub section (3) of section 1 of the Regulation was amended so as to read as follows: ‑ "It extends to the whole of West Pakistan. It applies, in the first instance, to the Districts of Hazara, Mardan, Peshawar, Kohat, Dera Ismail Khan and Bannu, but the Governor may, by notification in the Official Gazette, apply it to any other part of the Province, or may likewise exempt any area to which It applies, from the operation of, all or any of its provisions." The next amendment in the Frontier Crimes Regulation, 1901, was brought about by the Governor of West Pakistan by means of Ordinance XII of 1962 which was promulgated by him on the 19th of April 1962. This Ordinance amended sections 2, 12, 30 and

57. The amendment brought about in section 2 of the Regulation, by means of West Pakistan Ordinance XII of 1~ 62, changed the definition of "Council‑of‑Elders". One of the results of this change was that in relation to cases relating to areas other than Quetta and Kalat Divisions and the District of Las Bella, the expression "Council‑of‑Elders" was to mean a Council of three or more persons whether official or otherwise convened by the Deputy Commissioner and presided over by a Magistrate invested with powers under section 30 of the Code of Criminal Procedure. Clause (c) added to section 2 of the original Regulation by means of West Pakistan Ordinance XII of 1962 gave definitions of "Commissioner" or the "Court of Commissioner" as the "Provincial Government" or "such officer or officers which the Provincial Government may appoint in this behalf." By means of Notification No. Judl‑I‑1 (5)/62 Issued by the Governor of West Pakistan on the 19th of April 1962, all the provisions of the Regulation were applied to the Divisions of Quetta and Kalat. Districts of Dera Ghazi Khan, Jacobabad, Lasbella and Mianwali, Taluka of Shahdadkot in Larkana District and Talukas of Shikarpur and Garhi Yasin in Sukkur District. Schedule B appended to this notification was to the effect that persons or classes of persons mentioned therein were to be subjected to all such sections of the Frontier Crimes Regula tion of 1901 as were not of general application. The above‑men tioned Schedule B to the notification reads as follows "(1) All Pathans, Baluchis and other persons born or ordinary resident in the areas to which the said Regulation III of 1901 applies or in the foreign territory bordering on those areas. (2) All persons who are dependent upon persons of the preceding class whether as tenants, servants, clansmen or retainers of any kind. (3) All persons who are accused of being jointly concerned in the commission or abetment of an offence with persons of the preceding classes." By means of Notification No. JudI‑I‑I (5)/62 issued by the Governor of West Pakistan on the 26th of April 1962, an amend ment was made In the First Schedule to the West Pakistan Home Department Notification No. Judl‑I‑I (5)/62 dated the 19th of April 1962, to which a reference has been made earlier, with the result that the Frontier Crimes Regulation was extended to the Districts of Sukkur and Sargodha and the application of the Regulation to Taluka of Shahdadkot in Larkana District and Talukas of Shikarpur and Garhi Yasin In Sukkur District was withdrawn. On the 7th of May 1962, the Governor of West Pakistan issued another Notification under the Frontier Crimes Regulation, the result of which was the insertion of clause (4) in Schedule B to Notification No. Judl‑I‑1 (5)/62 dated the 19th of April 1962, which has been referred already. The fourth item thus added reads as follows: ‑ "All persons ordinarily resident in any area to which the said Regulation III does not apply, who commit any offence in any area to which the said Regulation applies." It was on the basis of the above reproduced fourth Clause in the Notification of the Governor of West Pakistan that the case against the petitioner was entrusted to a Council‑of Elders nominated by the Deputy Commissioner in spite of the fact 0 at Masud Ahmad was not a resident in the District of Sargodha but by reason of the fact that the offence of which the petitioner was accused was said to have been committed in the district of Sargodha.

3. The first contention of Mr. Aziz Ahmad Bajwa Advocate, who argued the case on behalf of the petitioner, was that the Governor of West Pakistan was not authorised to make amend ments In the Frontier Crimes Regulation, 1901, and, therefore, West Pakistan Ordinance XII of 1962 was a dead letter. He supported this contention by saying that the Regulation was issued in 1901 by the then Governor‑General of British India and as it was to be deemed to be an Act passed by the Parliament of Pakistan, the Governor of one of the Provinces of Pakistan could not make a law amending any part of that Regulation even in relation to the area of which he was the Governor. As I will presently show, this argument cannot be accepted. On the date when the Governor of West Pakistan issued the West Pakistan Ordinance XII of 1962, his powers to promulgate Ordinances were contained in Article 5 of the Laws (Continuance in Force) Order, 1958. This clause reads as follows: "(1) The powers of a Governor shall be those which he would have had, had the President directed him to assume on behalf of the President all the functions of the Government of the Provinces under the provisions of Article 193 of the late Constitution and such powers of making Ordinances as he would have had and within such limitations had Article 106 and clauses (t) and (3) of Article 102 of the late Constitution been still in force. (2) In the exercise of the powers conferred by the previous clause the Governor shall act subject to any directions given to him by the t resident or by the Chief Administrator of Martial Law or by any person having authority from the Chief Administrator. (3) Nothing in this Article shall prejudice the operation of any Regulation made by the Chief Administrator of Martial Law or by any person having authority from the Chief Adminis trator of Martial Law to make Martial Law Regulations and where any Ordinance or any provision thereof made under clause (1) of this Article is repugnant to any such Regulation or part thereof the Regulation or part shall prevail." The Frontier Crimes Regulation of 1901 related to the subject called the Administration of Justice which was mentioned in the Second Entry in the Provincial List In the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan which was enforced on the 24th of March 1956 and abrogated on the 7th of October 1958. The subject could also be said to fall In the First Entry in the concurrent list of the above‑mentioned Schedule. The powers of legislation of the Provincial Legislature, and consequently of the Governor of a Province, with regard to the matters mentioned in the Concurrent List and those mentioned in the provincial List were different, the powers with regard to subjects mentioned in the Concurrent List having more limitations than those In the case of subjects which were men tioned in the Provincial List, but the distinction between the above‑mentioned two Lists disappeared on the 23rd of September 1959 when by means of President's Order No. 17 of 1959, called the Legislative Powers (Amendment) Order, 1959, all subjects that were on the Provincial List of the Fifth Schedule to the Constitution of the Islamic Republic of Pakistan, were placed on the Concurrent List. The result of the abolition of the Provincial List of legislation was that a law made by the Governor of a Province bad to satisfy the conditions mentioned in clause (2) of Article 110 of the Constitution of the Islamic Republic of Pakistan, which clause was in the following terms: ‑ "(2) Where an Act of a Provincial Legislature with respect of any of the matters in the Concurrent List contains any provision repugnant to the provisions of an earlier Act of Parliament or an existing law with respect to that matter, then, if the Act of the Provincial Legislature, having been reserved for the consideration of the President, has received his assent, the Act of the Provincial Legislature shall prevail in the Province concerned, but nevertheless Parliament may at any time enact any law with respect to the same matter, amending or repealing the law so made by the Provincial Legislature." The second clause of Article 5 of the Laws (Continuance In Force) Order, 1958, which has been reproduced in an earlier part of this paragraph, makes it clear that a Governor was bound In regard to the legislative powers by the direction of the President and some Martial Law Authorities. The preamble to West Pakistan Ordinance XII of 1962 Is to the effect that in promulgating the Ordinance, the Governor had acted on the instructions of the President. There is nothing to show that the assertion that the Governor had so acted is wrong, and it has to be presumed, therefore, that he had so acted. The result of the Governor acting under the instructions of the President is that Ordinance XII of 1961, promulgated by the Governor, would by valid law for the Province according to the law in force at the relevant time.

4. The next contention of Mr. Aziz Ahmad Bajwa based on the provisions contained fn Article 102 of the late Constitution, which was deemed to be alive for the purposes of the Laws (Continuance in Force) Order, 1958, was that It was nowhere stated in the Ordinance that the Governor considered it necessary to promulgate it, the Ordinance could have no binding force. Whatever weight this contention may have had if Article 5 of the Laws (Continuance In Force) Order did not exist, it is clear that it has none In the face of the above‑mentined Article. Clause (2) of Article 5 clearly shows that in the exercise of hi legislative powers under Article 5 of the Laws (Continuance in. Force) Order, 1958, the Governor was subject to the direction of the President. As already mentioned the preamble to the West Pakistan Ordinance XII of 1962 clearly shows that it was on the directions of the President of Pakistan that the Governor of West Pakistan promulgated the Ordinance under consideration. As the Governor was acting under a direction of the President, as is clear from the preamble of the Ordinance, it was not necessary for him to mention that it was necessary to promulgate the Ordinance because the direction of the President was a sufficient justification for its promulgation.

5. Another contention of learned counsel for the petitioner was based on the language in which paragraph 4 of Notification No. Judl‑I‑1 (5)/62 dated the 19th of April 1962, which has been reproduced in paragraph 2, was couched. He contended that even if it be assumed that the provisions of the Frontier Crimes Regulation, 1901, could be made applicable to persons who are not residing in the district, the Deputy Commissioner of Sargodha could not act because he 'had not given a clear finding that the offence was committed within the boundaries of Sargodha District. It is true that the relevant paragraph of the notification is to the effect that persons who were not living in an area to which the Frontier Crimes Regulation, 1901, applied could be tried under the Regulation, if the offence was committed in an area to which the Regulation applied, but there can be no manner of doubt that the intention was that the Regulation could be invoked if an offence committed by a person who did not live in an area to which the Regulation applied was alleged to have been committed in an area to which the Regulation had application. Learned counsel for the petitioner contended that as the words used In the Notification were "committed" and not "alleged to have been committed" and there was no ambiguity in the language used, it was not open to the Court to say that the notification contemplated persons other than those who had committed offences in an area to which the Regulation applied. Learned counsel for the petitioner wanted the language of the notification to be construed in the same manner as an Act of Legislature, namely, that the words employed be given their ordinary natural meaning. Even if canons of interpretation for a notification be assumed to be the same as those that apply to interpretation of statutes, I do not consider that the contention of learned counsel for the petitioner can succeed. It is an established rule of interpreta tion that Courts have to presume that an absurdity was not intended by the law‑maker. If one keeps that principle in view,1 it becomes obvious that the intention behind the 4th clause of the notification under consideration was that if a person not living in an area to which the Frontier Crimes Regulation applied had committed an offence in an area to which the notification applied, he could be dealt with under the Regulation. It could not have been the intention of the authority issuing the notifi cation that the question whether or not the offence was committed within an area to which the Regulation applied should be subject to two inquiries, one being by the Deputy Commissioner who was competent to withdraw a case from an ordinary Court and entrust It to a Council‑of‑Elders and the other by the Council‑of‑Elders to whom the case was entrusted. I would, therefore, hold that the contention of learned counsel for the petitioner, which was based on the language of the notification, has no force.

6. The next contention of the learned counsel for the petitioner was that persons mentioned in clause 4 of Schedule B to the relevant notification, which clause has been reproduced in paragraph 2, could not be said to be a clause (sic) of persons. He contended that "classes of persons" were mentioned in subsection (4) of section 1 of the Frontier Crimes Regulation and as Pathans and Baluchis were named in that clause, the other classes had to be persons belonging to tribes and not any other class of persons. Ordinarily classes of persons would be as contended for by the learned counsel for the petitioner, but under the Frontier Crimes Regulation, 1901 the ordinary rule has no application by reason of subsections (4) and (5) of section 1 of the Regulation, and the explanation appended thereto, which read as under: "(4) Sections 1 to 5, 10, 20, 21, 26 to 28, 31, 32, 36, 37, 56 and 60 are of general application, but the remaining sections may be enforced, in whole or in part, as the case may be, only against Pathans and Baluchis and against such other classes as the Provincial Government may, by notification in the Official Gazette, declare to be subject thereto. (5) A notification under subsection (4) may declare a specified class only to be subject to all or any of the provisions of this Regulation in a district or part of a district. Explanation.‑The word `class' as used in subsections (4) and (5) includes any persons who may be collectively described In a notification under this section as persons subject to all or any of the provisions of this Regulation." The above‑reproduced provisions of the Frontier Crimes Regula tion 1901, do not militate against the Provincial Government creating a class of an unusual type for the purposes of the Regulation, and, consequently, I have no hesitation in holding that clause (4) of the notification under consideration is not open to any valid objection.

7. Mr. Aziz Ahmad Bajwa, learned counsel for the peti tioner, next contended that the case against the petitioner could not be withdrawn from ordinary criminal Courts and referred to a Council‑of‑Elders because admittedly the offence was stated to have been committed long before the application to the District of Sargodha of the provisions of the Frontier Crimes Regulation, which were not stated by the amending Ordinances to be retrospective in its operation. Put in other words, the contention was that as the offence was alleged to have been committed at a time when the Frontier Crimes Regulation, 1901 was not applicable to the District of Sargodha or to persons who though not residents of Sargodha were alleged to have committed offences in that district, the petitioner's case did not fall within the ambit of the Regulation and could not have been withdrawn from the ordinary criminal Court in which it was pending and referred to a Council‑of‑Elders. This contention of learned counsel for the petitioner is correct only to this extent that the Regulation is not expressed to be retros pective in operation, that is to say that the Regulation does not lay down that it can be invoked for punishment of offences committed in an area before it became applicable to that area. That, however, does not help the petitioner because if the provisions of the Regulation can be invoked for trial of offences which were committed before the Regulation became applicable to an area to which the Regulation has been made applicable the fact that the Regulation does not purport to be retros pective in operation will not alter the position to the benefit of the petitioner. In this connection, section 14 of the Regulation, which reads as follows "The powers conferred by section 11 on the Commissioner and Deputy Commissioner, respectively, may be exercised by them, in cases committed to the Court of Session, at any time before the trial before that Court has commenced, and, in cases pending before any Court inferior to the Court of Session at any time before an order of conviction or acquittal has been made." has great relevancy. It cannot escape notice that this section permits the withdrawal of a case from the ordinary criminal Courts and its reference to Council‑of‑Elders at stages of the trial mentioned in the section. As worded, section 14 of the Regulation can be invoked in case of offences committed before the Regulation was made applicable to the area in which the trial is being held provided the proceedings before the ordinary criminal Court have not gone beyond the stages mentioned in the section. In the case under consideration, the case against the petitioner was pending before a Magistrate and could be withdrawn from his Court by the Deputy Commissioner and referred to a Council‑of‑Elders‑a body popularly known as a Jirga.

8. Another contention of learned counsel for the petitioner may now be taken up. He urged that the provisions of section 11 of the Regulation had not been complied with and, therefore, the reference to the Council‑of‑Elders was bad in law, This argument was found on the fact that `the Deputy Commis sioner, Sargodha had sent a communication to the Commissioner of the Division that the ease should be dealt with under the Frontier Crime Regulation, 1901, and on the Commissioner expressing his approval of the action proposed to be taken the case was referred to a Council‑of‑Elders. Section 11 of the Frontier Crimes Regulation, 1901, authorised a Deputy Com missioner or a Commissioner to pass an order referring a case to a Council‑of. Elders. It is not known whether a Divisional Commissioner had been notified under clause (b) of section 2 of the Frontier Crimes Regulation, 1901, as amended by means of West Pakistan Ordinance of 1962, to be a Commissioner for the purposes of the Regulation, but as no such notification was shown to the Court, I will proceed on the assumption that none had been issued. The fact that the Commissioner of Sargodha Division may not have been declared to be a Com missioner for the purposes of the Frontier Crimes Regulation, 1901, will not, however, be of any assistance to the petitioner because it was not denied that the order of reference was made by the Deputy Commissioner, Sargodha, and indeed in para graph 13 of the Criminal Miscellaneous Petition and paragraph 11 of the Writ Petition one finds it asserted that the reference to the Council‑of‑Elders was made by the Deputy Commissioner, Sargodha. It Is true that before making the reference, the Deputy Commissioner had written about the matter to the Commissioner of Sargodha Division, but that would not change the reference made by the Deputy Commissioner of the district to the Council‑of‑Elders to a reference made by the Commis sioner of the Division. The communication sent by the Deputy Commissioner to the Commissioner, which the learned Advocate- General made available to the Court and the learned counsel for the petitioner was clearly to the effect that the Deputy Commissioner considered it desirable that the case be referred to a Council‑of‑Elders. In my view the circumstance that the case was referred to the Council‑of‑Elders after the Com missioner had approved of the suggestion of the Deputy Com missioner cannot change the reference by the Deputy Commis sioner to a reference by the Commissioner. Nor can the reference to the Council‑of‑Elders be deemed to be invalid for the reason that before making It the Deputy Commissioner had consulted the Commissioner. If the Deputy Commissioner had been of the view that a reference to the Council‑of‑Elders should not be made under section 11 of the Frontier Crimes Regulation and had been given a direction by someone who was himself incompetent to make a reference to the Council‑of‑Elders to make a reference to that body and the reference had been made because of that direction, the reference would have been of doubtful validity but in the present case the Deputy Com missioner, Sargodha, had all along been of the view that the case be referred to a Council‑of‑Elders and, consequently, the order passed by him was not Invalid for the reason that before passing it he chose to bring the matter to the notice of the Com missioner of Sargodha Division.

9. Learned counsel for the petitioner half‑heartedly raised some other contentions but it is not necessary to notice any of them but one which was to the effect that the action of the Governor of the Province in making the Frontier Crimes Regulation, 1901, applicable to Sargodha District and issuing a notification which would make the case of the petitioner fall within the ambit of the Frontier Crimes Regulation, 1901, was mala fide and, therefore, Invalid in law. The learned Advocate -General pointed out that the Frontier Crimes Regulation was applied by the Governor to the District of Sargodha after a resolution praying for the application of the Regulation to Sargodha had been passed by the District Council‑a body of persons elected to Basic Democracies by residents of the district. The passing of the resolution by the District Council completely deprives the contention of learned counsel for the petitioner of all force. But even if the District Council had not passed the above‑mentioned resolution the petition could succeed en the basis of the action of the Governor being mala fide only if there were cogent proof that the action was taken in bad faith, and of such proof there is a complete absence. As mentioned by me in my judgment in the Full Bench case of Mian Ift1khar ud‑Din etc. v. Muhammad Sarfraz and others (P L D 1961 Lah. 842), which decision was upheld by the Supreme Court in Mian Iftikhar‑ud‑Din v. Muhammad Sarfraz (P L D 1961 S C 585), the question whether or not an order was passed in bad faith is a question of fact which requires proof to support a finding to that effect. It is undeniable that the higher the authority whose actions are attacked as having been done in bad faith the stronger would be the proof required for accepting the plea of bad faith. As there is no cogent evidence that the application of the Regulation to Sargodha was actuated by bad faith, the contention of learned counsel for the petitioner needs no serious consideration.

10. No other point urged by the learned counsel for the petitioner needs any serious consideration with the result that I would dismiss this Criminal Miscellaneous Petition as well as Writ Petition No. 450 of 1962. ANWARUL HAQ, J.‑I agree. K. H. A. Petition dismissed.