1970 PLP 393 (SCMR)

HAMOODUR RAHMAN, J.‑The petitioner, who was charged with an offence under section 302 of the Pakistan Penal Code, sought to challenge in the High Court of West Pakistan the order of the Deputy Commissioner, Sargodha, passed on the 11th of May 1962, under section 11 of the Frontier Crimes Regulation No. III of 1901, withdrawing his case from the Court of the A. D. M., Sargodha, and referring it to the decision of a Council of‑Elders. For this purpose he moved the High Court both in its writ jurisdiction as also by an application under section 526 of the Criminal Procedure Code. No notice was issued in the writ petition, but as the points raised were common in both the matters, they were heard and disposed of together by a Division Bench of the said High Court which dismissed them both. The petitioner now seeks special leave to appeal from the aforesaid judgment and' order on substantially the same grounds as were urged before the High Court. The Frontier Crimes Regulation, which was originally designed, as mentioned in its preamble, "to provide for the suppression of crimes in certain frontier districts", extended at first to the districts of Peshawar, Kohat, Hazara, Bannu, Dera Ismail Khan and Dera Ghazi Khan, and the Provincial Government was given the power by Notification to exempt any of the aforesaid local areas from the operation of its provisions. This was, however, amended in 1954 and the application of the Regulation was confined to all the districts of the North‑West Frontier Province. The above amendment of 1954 also changed the definition of the Council‑of‑Elders. The Council‑of‑Elders could, thereafter, be constituted of three or more persons, whether officials or otherwise, chosen by the Deputy Commissioner and presided over by a Magistrate invested with powers under section 30 of the Code of Criminal Procedure. Thereafter, by Ordinance No. VIII of 1962 promulgated by the President of Pakistan on the 9th of February 1962, the Regulation was again amended and extended to the whole of West Pakistan. Power was also given to the Provincial Governor not only to exempt any area to which it already applied but also to apply it to any other area or part of the Province of West Pakistan whether it was a frontier district or not. On the 19th of April 1962, this Regulation was further amend ed by West Pakistan Ordinance No. XII of 1962 and by a Notification No. Judl. 1‑1(5)162 of the same date the Regulation was extended also to the Divisions of Quetta and Kalat, Districts of Dera Ghazi Khan, Jacbbabad, Lasbela and Mianwali, Taluka of Shahdadkot in Larkana district and Talukas of Shikarpur and Garhi Yasin in Sukkur district. By this Notification it was also made applicable against all Pathans, Baluchis and other persons born or ordinarily resident in the areas to which the Regulation extended or in any foreign territory bordering on those areas, to all persons, dependent upon the above and to all persons jointly accused of being concerned in the commission or abetment of an offence with the persons above mentioned. By another Notification issued by the Governor of West Pakistan on the 26th of April 1962 the Regulation was still further extended to the Districts of Sukkur and Sargodha and finally by a Notification issued on the 7th of May 1962, the Regulation was made applicable against a fourth class of persons described as follows:‑

"All persons ordinarily resident in any area to which the said Regulation No. 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 amendments and Notifications that the case of the petitioner, who was not a resident of the dist rict of Sargodha, was referred to the Council‑of‑Elders upon the allegation that he had murdered his sister‑in‑law Mrs. Nasim Yaqub sometime in the month of December 1961, whilst she was on her way from Lala Musa to Sargodha. Reports about her disappearance were lodged both at Sargodha and Lala Musa on the 26th and 29th of December 1961, respectively. Learned Advocate appearing in support of this petition sought to assail the validity of the impugned order of the Deputy Commis sioner, Sargodha, first, by challenging the authority of the Pro vincial Governor either to promulgate Ordinance No. XII of 1962 or to issue the Notifications of the 26th of April 1962 and the 7th of May 1962. The above Ordinance was issued in exercise of the powers given to the Governor under Article 5 of the Laws (Continuance in Force) Order, 1958, and ex facie purported to have been issued under the instructions of the President. Under this Article the Ordinance making powers of the Governor were the same as those possessed by him under Article 102 of the late Constitution and were subject to the same limitations as were contained in the late Constitution. Under the provisions of the proviso to sub- Article (1) of Article 102 thereof the only limitation that was imposed upon this power of the Governor was that he could not promulgate an Ordinance ; if an Act of the Provincial Legislature containing the same provisions could, under the late Constitution, be only passed with the assent of the President; except under the previous instructions of the President. Again, under Article 110 of the late Constitution an Act of a Provincial Legislature in respect of any matter in the Concurrent List was required to be reserved for the consideration of the President and his assent, if it contained any provision repugnant to the provisions of an earlier Act of parliament or an existing law with respect to the 'same matter. The Frontier Crimes Regulation was an existing law in respect of matters, namely, civil and criminal law, which fell within Item of the Concurrent List under the late Constitution and, therefore, a Provincial Ordinance in respect there of could validly be made under the previous instructions of the President. This was manifestly received in the case of the West Pakistan Ordinance No. XII of 1962. The Provincial Governor was, therefore, fully competent to promulgate the said Ordinance and its vires cannot be challenged on that ground. The next contention that the Notification extending the Regulation to the District of Sargodha was invalid, as Sargodha was not a frontier district within the meaning of the preamble to the said Regulation, is equally without substance. Since the Regulation has now been extended to the whole of West Pakistan by President's Ordinance No. VIII of 1962, the original preamble cannot be utilised for or have the effect of restricting the clear and unambiguous amendments subsequently made in the substantive provisions of the Regulation by a competent Legislature, namely, the President under the Laws (Continuance in Force) Order, 1958. The power of the Governor to extend the category of persons against whom the provisions of the Regulation can be applied by a Notification under subsection (4) of section 1 thereof, is not also open to challenge, particularly, since even under the Explanation appended to the original section 1 of the Regulation the word `class' included "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 Notification of the 7th of May 1912, therefore, which added a fourth class of persons as being subject to the provisions of the Regulation was validly made and the persons therein mentioned constituted a "class" within the meaning of the aforesaid Explanation. It cannot, therefore, be held that the word "class" has been used in the said Regulation in any restricted sense or that it must be construed ejusdem generis with the preceding classes named therein, namely, Pathans and Baluchis. The contention that the last‑mentioned Notifications were issued for the specific purpose of referring the case of the peti tioner to the Council‑of‑Elders is equally unfounded, for, as pointed out by the High Court, the Notification extending the Regulation to the district of Sargodha was issued at the request of the District Council of Sargodha who passed a formal Resolution to that effect and forwarded it to the Governor. The argument that even if the amendments and Notifications were valid, there had to be within the meaning of the Notification of the 7th of May 19 2, a definite finding that the petitioner was a person who had committed an offence in any area to which the said Regulation applied before his case could be referred to the Council‑of‑Elders, is equally untenable. The word "commit" have appears to have been used in a loose or wide sense and is not to be understood as meaning "found to have committed", for, if such a finding was a condition precedent to the reference to the Council‑of‑Elders, then the reference would be entirely meaningless and unnecessary. We are in agreement, therefore, with the High Court that to accept the interpretation sought to be put upon it by the petitioner would result in an absurdity which could not possi bly have been the intention of the framers of the Notification. The argument that the amendments introduced by the Notifi cations of the 26th of April 1962 and the 7th of May 1962, could not have been applied retrospectively is also without force and misconceived. Under section 14 of the Regulation a reference to the Council‑of‑Elders can be made at any time before the trial in a Court of Session has commenced and in other cases at any time before an order of conviction or acquittal has been made. In the present case, no trial before a Court of Session had commenced and no order of conviction or acquittal had been made when it was referred to the Council‑of‑Elders. Hence no question of retrospective operation arises. For the reasons given above we are satisfied that there is no substance in this petition and the same is, accordingly, dismissed. Petition dismissed.