P L D 1957 (W (PLP)

KAYANI, J.‑--The petitioner, Khan Abdul Akbar Khan, is the eldest of the three sons of Khan Fazl‑i‑Qadir Khan of Tangi Nasratzia in Peshawar district, and has prayed for the removal and quashment of proceedings under section 8, Frontier Crimes Regulation. III of 1901, which have been initiated by the Deputy Commissioner, Peshawar, at the instance of his father in respect of certain land gifted to him by the father himself in 1936 and later, as KALANI or elder ship. All these gifts were followed by the actual transfer of possession and are in full effect. In 1953, however, the petitioner's father now an old man of about eighty, and alleged to be under the influence of Kardars, applied to the Deputy Commissioner, Peshawar, for a review of the muta tions of gift, but the Deputy Commissioner, Mr, Abdur Rashid Khan rejected the application on the ground that "we cannot cancel or review these attested mutations of long standing by a simple stroke of the pen, especially when they involve intricate questions of law". In the same year the father prayed for reference of the "dispute" to a Council of Elders under section 8 F.C.R., but that prayer was rejected by the Provincial Government and the orders of rejection communi cated on 23rd October 1953. Two years later, on 15th September 1955, when the Revenue Commissioner, Mr. Zuberi, was at Charsadda, he directed the local Assistant Commissioner to send for his perusal or submit for reconsideration the previous application of Khan Fazl‑i‑Qadir Khan for the cancellation of the gift mutations, and upon receipt of the file recommended a reference to a Council of Elders. This recommendation was accepted, but further proceedings have been stayed by the Peshawar Bench. The petitioner says, among other things, that there is no dispute within the meaning of section 8, but both his father and the Government the Province deny this assertion, and on behalf of the Government the existence of the dispute is sought to be supported by its mere mention in the petitions of the father dated 29th September 1953 and 2nd June 1953. (See para. 4 of the written statement and para. 8, clauses F and G.) It is remarkable that the Additional Advocate -General who drafted the written statement regarded this quantity of evidence ample for proving the existence of the dispute, but if it existed, it had been allowed to rest in peace until the visit of the Revenue Commissioner to Charsadda had blown the ashes away from its dying embers. Section 8, F. C.R., is to the following effect:‑ "8. (1) Where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood‑feud, or murder, or culpable homicide not amounting to murder, or mischief, or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe, he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences antici pated, and if a suit is not pending in respect of the dispute make an order in writing, stating the grounds of being so satisfied, referring the dispute to a Council of Elders, and requiring the Council to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties. The members of the Council of Elders shall, in each case, be nominated and appointed by the Deputy Commissioner. (2) The order of reference made under subsection (1) shall state the matter or matters on which the finding of the Council of Elders is required. (3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may‑ (a) remand the case to the Council for a further finding; or (b) refer the case to a second Council; or (c) refer the parties to the Civil Court; or (d) pass a decree in accordance with the finding of the Council, or of not less than three‑fourths of the members thereof, on any matter stated in the reference; or (e) declare that further proceedings under this section are not required." On the language of the section itself, the satisfaction as to the existence of a dispute should be that of the Deputy Com missioner, and since the Deputy Commissioner has at no stage of the case testified to its existence, the reference can be removed and quashed only on that ground. But a larger issue is involved, and in fact, we were addressed only on the question whether this provision of law violates article 5 of the Constitution. according to which all citizens are equal before the law and are entitled to equal protection of law. I shall, therefore, examine the relevant provisions of the Regulation. The Preamble says that it is intended "further to provide for the suppression of crime in certain frontier districts" and by section 1 it is made applicable to all the districts of the old N. W. F. P. and the district of Dera Ghazi Khan, leaving it to the Government to exempt any "local area". In subsection (4) it is stated that a limited number of sections are of general application, but that the remaining sections, including section 8, may be enforced "only against Pathans and Biluchis and against such other classes" as Government may notify in the Gazette. The term "class" is defined in an Explanation to include " any persons who may be collectively described in a notification" as persons subject to the Regula tion. Thus the inhabitants of a certain village may be notified as a class; and so also may be notified "all persons taking beef on sundays" as a class because they can be collectively described. A notification under section 1, subsection (4) was issued in 1902, extending the Regulation to‑ (1) all persons born or ordinarily resident in the districts to which it applies, (2) all persons dependent on persons of the preceding classes, whether as tenants, servants, clansmen or retainers of any kind, and (3) all persons accused of being jointly concerned in the commission or abetment of an offence with persons of the preceding classes. In section 2, a "Council of Elders" was originally defined as a Council of three or more persons convened according to the Pathan, Biluch or other usage, as the Deputy Commissioner may direct, but in 1954 this definition was replaced by "a Council of three or more persons, official or otherwise, convened by the Deputy Commissioner and presided over by a section 30 Magistrate under the Code of Criminal Procedure." Section 8 has several interesting features. It empowers the Deputy Commissioner to refer a civil dispute to a Council but in the first place there should be no civil suit pending in respect thereof. Secondly, the dispute should be such as is likely to cause a blood‑feud, murder, mischief or breach of the peace. Thirdly, if any of the parties belongs to a "frontier tribe", the dispute need not lead to any those results, and it would be enough if, there is just a dispute. Fourthly, the Deputy Commissioner has a discretion regulated by his own satisfaction to refer it to a Council or not to w refer it. Fifthly, he may refer it only "if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the conse quences anticipated". In other words, if he thinks that the dispute will not end "the consequences anticipated" be should not refer the case to a Council. I should think that the consequences anticipated are a blood‑feud, murder etc. but if that be so, then since these consequences are not relevant to a dispute where any one of the parties belongs to a frontier tribe, it is not clear what considerations will weigh with the Deputy Commissioner when dealing with such a dispute. These are the conditions preceding the reference. The Council's finding need not be based on the recording of any evidence. The Deputy Commissioner will merely require the Council "to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties". On receipt of the finding, the Deputy Commissioner may pass a decree in accordance therewith, or remand the case for a further finding, or refer it to a second Council. But if even these alternatives do not suit him, he may refer the parties to the civil Court under clause (c) or declare under clause (e) that further proceedings are not required. In effect, clauses (c) and (e) are identical, because the parties do not require to be told that they should go to the civil Court, and they cannot be forced to go. All this wisdom lies in section 8, and if there is any decree, there will be no appeal against it (S. 48), but the Com missioner may revise a decision under section 49, only if he is of the opinion that there has been a material irregularity or defect in the proceedings, or that the proceedings have been so conducted as to occasion a miscarriage of justice, or that the decision is contrary to good conscience or public policy. Good conscience and equity have had a chequered career in judicial history. The one varies with the foot of the British Chancellor, other varies with the leg of a frontier Commissioner. Now we may start reviewing these provisions. The Preamble is laudable, as all preambles are: The object of the Regulation is to make further provision for the suppres sion of crime, and section 8 must be examined with that object in mind. But there is section one first. It provides for the enforcement of section 8, among others, against Pathans and Biluchis only, and Mr. Mahmood Ali says this discrimination singles out these tribes as special objects of extra judicial ferocity. Pathans and Biluchis, although this is not expressly stated, must have a special kinship with crime, the suppression of which is the object of the Regulation. The application of it to all Pathans and Biluchis as such, must be on the assumption that Pathtans and Biluchis are criminal tribes. Perhaps the government also realized this distinction; it dawned upon the Government within a year of the Regulation. For the notification which was issued under subsection (4) swept all ordinary residents of the N. W. F. P with a single broom, and included their dependents also. Notwithstanding the circumstance that is made all citizens of these areas equal before the Regulation the learned Attorney‑General, after reading this notification, was visibly moved and said nothing thereafter in support of the Regulation. Next we reach section 8, which makes the law a perfect and the Deputy Commissioner can ride it to any goal within the five broad clauses of subsection (3). To enable him to take action, there should be a dispute (in the case of people other than tribesmen) which is likely to cause a blood‑feud etc. and he should be of the opinion that reference to a Council will avert the blood‑feud etc. How reference to Council and decision by a Deputy Commissioner has the effect of scintillating good‑will and charming away hostility is not clear to me. But if any such magic could have been wrought by the Deputy Commissioner, why does section 8 forbid reference if the matter has already gone to the Civil Court? This must be on the assumption that resort to the Civil Court has the same salutary effect of averting a dangerous situation as reference to a Council. But if that be so, why is it not left open to a party to resort to the Civil Court after the reference has been made? It is clear that section 8 is misconceived and that in the garb of resolv ing a dispute the Deputy Commissioner can encroach upon Civil rights without reference to any law except what appears to him to be in accord with good conscience or public policy. (S. 9). If any good faith had existed in such a reference, the decision would have been made appealable to a superior Civil Court. I said that the Deputy Commissioner, acts without reference to any law. Here I do not mean the law of evidence or procedure only, for justice is not necessarily the child of elaborate procedure, and the law of procedure is not unoften abused. But I particularly refer to the provision that the Deputy Commissioner merely asks the Council "come to a finding . . . after making such inquiry as may be necessary and after hearing the parties". Thus, if it is a case of inheritance, the Council need not follow the Muslim law or custom, and may give an arbitrary award which the Deputy Commissioner must accept if he intends to pass a decree. If it is not acceptable to him, he can refer the parties to the Civil Court, and thereupon the likelihood of a blood‑feud or murder taking place also fades away. For this repulsive judicial procedure the Pathans and Biluchis have been especially selected. It is true that the notification under section 1 (4), by which the Regulation has been made applicable to all the ordinary residents, may have caused to them the satisfaction that other tribes are equally criminal, but this notification can always be withdrawn, and the discrimination patent on the face of the enactment is not thereby effaced. Next, Mr. Mahmood Ali contended that since the choice of selecting suitable cases for reference lies with the Deputy Commissioner, the Regulation makes it possible for him to discriminate. If his discretion had been subject to judicial review, one might say for him that his "satisfaction" will be a reasonable satisfaction, but in the matter of reference his conduct is not open even to revision for the Commissioner comes into the picture only after there has been a decision, and he cannot interfere on the ground that this was not a fit case for reference. Whatever may re said about the repugnancy of this procedure to the equality‑before‑law provision of the Constitution, there can be no doubt that the trial itself can by '" no means be called a fair and impartial trial. We ware introduced by both parties to interesting literature on the subject of equality before the law and what equal protection of law means. Although the Supreme Court of India has dealt with the subject on several occasions since 1950, I have found The State of West Bengal v. Anwar Ali (A I R 1952 S C 75) particularly instructive. This was a case in which Patanjli Sastri, C. J. found himself alone against six other Judges in holding that the provision in section 5 (1) of the West Bengal Special Courts Act, 1950, making it possible for the Government to refer for trial to special Courts with summary procedure any "offences or classes of offences or cases or classes of cases", was not "discriminatory". The object of the Act, as declared in the Preamble was "to provide for the speedier trial of certain offences", and section 5 (1), according to the Chief Justice, vested in the Government a discretion to refer to a Special Court such offences as may, in its opinion, require a speedier trial. Such discretion the Government was expected to exercise honestly and reasonably, and the mere fact that it was not made subject to judicial review could not mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act. The other Judges, however, thought that an enactment which gave to the execu tive Government an unregulated official discretion to select in any way it likes the particular cases or offences which should go to a Special Tribunal and withdraw in such cases the protection which the accused normally enjoy under the criminal law of the country, was on the face of it discrimina tory. The Supreme Court of Pakistan has so for decided only one case with reference to Article 5‑Jibendra Kishore v. The Province of past Pakistan (P L D 1957 S C (Pak). 9). The principles which can be deduced from these cases, and the American cases on the Fourteenth Amendment of the American Constitution, 'are not in dispute. The phrase "equal protection of law" is under stood to be " pledge of the protection of equal laws" Yick Wo v. Hopkins ((1886) 118 U. S. 356 at p. 369), and Patanjli Sastri, C. J. interprets "equal laws" to mean "laws that operate alike on all persons under like circumstances". It is, however, recognised that a Govern ment "encounters and must deal with problems which come from persons in an infinite variety of relations", that "classi fication is the recognition of those relations, and in making it a Legislature must be allowed a wide latitude of discretion and judgment " . . . . . . "Classification based on those relations need not be constituted by an exact or scientific exclusion or inclusion of persons or things. Therefore, it has been repeatedly declared that classification is justified if it is not palpably arbitrary". (McKenna, J. in Connolly v. Union Sewer Pipe Co. ((1902) 184 U. S. 540). Thus the "equal protection" clause reduces itself to the problem of classifying people who are placed in "equal" or similar circumstances in respect of some object which the legislature finds necessary to accomplish with reference to the needs of a particular situation. It is, therefore, said that classification must have a rational basis, that there must be some real and substantial distinction between the classes, that such distinction should bear a reasonable relation to the object sought to be attained, that there should be no arbitrary "herd ing together" of certain persons or classes. The situation which the Government has to meet in the present case requires a measure "further to provide for the suppression of crime". Assuming that the Preamble can be used to influence section 8, the object is stated too broadly to escape the charge of vagueness. All criminal law is intended to suppress crime, and the safeguards to a fair trial can be withdrawn one by one, each time in the name of a further effort to suppress crime. It is obvious that we reach the furthest limit of the effort when we apply criminal law to civil disputes also. Under ordinary law, if a civil dispute is likely to result in a breach of the peace, we take preventive action and leave the parties to resort to the Civil Court. The criminal Court in fact makes an effort to avoid adjudication in such matters. But here the ordinary law is perverted for a reason which by the very provisions of section 8 is made to appear non‑emergent. The Deputy Commissioner refers a civil dispute to a Council on the assumption that a blood‑feud or murder will be averted, but if one party has already gone to the Civil Court, the Deputy Commissioner assumes that there is now no chance of the dispute leading to the conse quences originally anticipated. If resort to a Civil Court can bring about such effective change of heart, why is not a person allowed the same resort after reference to the Council? In this remarkably inconsistent approach, the situation which the Government intends to meet specifically in section 8, namely to avert a blood‑feud or murder, also ceases to be impressive, and the principal object of classification ceases to justify its existence. Then consider the basis of classification. If you are a Pathan or Baluch, you become subject to a specially injurious procedure. It is like asking a person whether he is a Pathan or a Muslim, and without waiting for an answer, informing him that if he is a Pathan, he cannot be a Muslim. For the Council of Elders can deny to him the Muslim law. But although Pathans make a good class, if they are classified for the purposes of the Regulation, it means that there is some rational relationship between the Pathans and crime. It may be that in 1901 the Pathans and Biluchis were not sufficiently advanced to be able to avail of the ordinary law and that it appeared simpler, in suitable cases, to refer their dispute to their own Elders, who would naturally apply their own custom or the Muslim law to it, and if the Deputy Com missioner found it to be against good conscience, he would not accept the decision. But if that reading is correct, then the situation has radically altered and there is no problem facing the Government now so as to necessitate a classifica tion. In fact, the Government also seems to have realized in 1954 the altered character of the situation by altering the definition of the "Council of Elders". The tribal elders were either too unenlightened to give conscientious decisions or too unreliable to give honest decisions; wherefore it became necessary to make a section 30 Magistrate to preside over the Council. In actual practice, all the three members of the Council are now Magistrates. The tribunal bond has snapped. It is true that for the purpose of classification the distinc tion between a Pathan and a non‑Pathan or a Biluch and a non‑Biluch is real and substantial. But the process of classification has to be rational at all stages: the object for which discrimination is sought should also possess that quality. If the quality of belonging to a well‑defined class were enough for discrimination, we might as well expect a law that for the further suppression of crime all Pathans should be sterilised. If, however, we had a law providing for the sterilization of all persons who had committed theft or misappropriation thrice or more, it would be an instance of reasonabless in the object of classification. In the present case, the classification amounts to racial discrimination and is as open to criticism as discrimination between a negro and a white man. If it be the will of God that a person should be born in a Pathan house, he could resign himself to that will and put up with the incidents arising therefrom, namely, that he is to be discriminated from non‑Pathans. But if it be the will of the Deputy Commissioner that his case be discriminated from other Pathans, then resignation also has limits. It has already been seen how arbitrarily the Deputy Commissioner can single him out for having his civil rights adjudicated upon by three Magistrates, a Deputy Commissioner and a Commissioner, in preference to the Civil Judge, the District Judge and the High Court; (I name the authorities on both sides with a view to emphasizing difference of outlook in the two forms); how he can appoint another Council if the first Council's report is not favourable to his conscience; how he can drop the proceedings and "refer" the parties to the civil Court ; how he can declare that further proceedings are not required. In short, he has five options for exercising his will, four times without judicial restraint‑and the fifth restraint has little right to be called judicial. I would, therefore, hold that, so far as civil references go, subsection (4) of section 1, which provides for the application of the Regulation to Pathans and Biluchis only, and section 8, which provides for the reference of civil disputes to a Council of Elders, are inconsistent with article 5 of the Constitu tion, in so far as they do not provide equal protection of law, to Pathans and Biluchis and are, therefore, void under the provision of article

4. Along with section 8 of the Regula tion, sections 9 and 10 also will fall. Section 49, to the extent to which it provides for revisions in relation to decisions and decrees on civil matters, will be regarded as ineffective. It must be clear that we say nothing here in regard to criminal references under the Regulation. S. A. RAHMAN, C. J.‑

I agree. MUHAMMAD SHAN, J.

‑I agree. A. H. Order accordingly.