P L D 1964 Supreme Court 416 (PLP)

Mst. Gulaba belongs to a Frontier Tribe, namely, the Afridis of the Khyber Agency. She is described as the divorced wife of a resident of that Agency. On the 15th October 1958, the Deputy Commissioner of Peshawar acting under section 36 of the Frontier Crimes Regulation made an order expelling her from the limits of the Peshawar district "towards Mardan district" for a period of six months. The grounds of expulsion appear clearly from the order and are briefly as follows, namely, that Mst. Gulaba is a bad character and indulges in prostitution, and that in Peshawar she has no ostensible means of livelihood except prostitution. As to the allegation of prostitution, some evidence was led upon which the Deputy Commissioner relied. He added that Mst. Gulaba had been living in a rented house from which, it appears, that she was compelled to shift to another house by the pressure of the neighbours who objected to her mode of livelihood, but during the pendency of the case before the, Deputy Commissioner she had bought a house in Peshawar city. The order states that this she did in order "to save her skin from expulsion under section 36, F. C. R". When on the 10th March 1959, i.e. within the period of six months fixed by the order Mst. Gulaba was again found in Peshawar city, she was arrested and prosecuted for contravention of the order of the Deputy Commis?sioner. The First Class Magistrate who tried the case found her not guilty on the single ground that she had bought a house for Rs. 5,500 in Peshawar city on a date prior to the order of her expulsion, namely, on the 18th April 1958, and this proved that she had a fixed habitation in Peshawar city.‑ This being the case, he held that the proviso to section 36, F. C. R. Is attracted, namely, "if the person has a "fixed habitation in the place which the Deputy Commissioner requires him to leave an order under this section shall not be made without the previous sanction of the Commissioner". The Magistrate found that no previous sanction of the Commissioner had been obtained. The State appealed, and a Division Bench of the High Court dealt with the question of "fixed habitation in this way", i.e. they thought that mere purchase of a house did not constitute the acquisition of a fixed habitation, because the house could be purchased for the purpose of renting out, and the evidence in the case showed that she had been moving from mohallah to mohallah inside Peshawar city. Accordingly, the State appeal was accepted and Mst. Gulaba was convicted and sentenced as stated above. Leave was granted to her to `t consider whether on the facts she could not be said to have a fixed habitation within the city of Peshawar. On examining the case, we find that a further ground of a more fundamental nature is available to the appellant, namely, that on the facts, hers is a case which cannot be brought within the meaning of the terms of section 36, F. C. R. which reads as follows :‑ "

36. Where, in the opinion of the Deputy Commissioner any person‑ (a) ?????? is a dangerous fanatic, or (b) ?????? belongs to a Frontier tribe and has no ostensible means of subsistence or cannot give a satisfactory account of himself, or (c) ?????? has a blood feud, or (d) ?????? has occasioned cause of quarrel likely to lead to bloodshed ; the Deputy Commissioner may, by order, in writing require him to reside beyond the limits of the territories to which this Regulation extends, or at such place within the said territories as may be specified in the order. Provided that, if the person has a fixed habitation in the place which the Deputy Commissioner requires him to leave an order under this section shall not be made without the previous sanction of the Commissioner." Four different categories of persons are enumerated in the section against whom action for expulsion may be taken by the Deputy Commissioner. The first category is that of dangerous fanatics, the third is that of persons who are engaged in blood feuds and the fourth of persons who have brought about a quarrel which is likely to lead to bloodshed. Sandwiched among these, as the second category, is that of persons who belong to Frontier tribes and either have no ostensible means of subsistence or cannot give a satisfactory account of themselves. We are clear in our minds that regard being had to the association in which this provision is found, the words in clause (b) of section 36 apply if not exclusively, at least in the strongest sense to persons who have been outlawed by a Frontier tribe and have sought refuge in a settled area, without having any ostensible means of subsistence or any proper function in the settled area. The other three categories being visibly connected with each other by the common factor of danger to the public peace, as result of fanaticism, or a blood feud or involvement in a dangerous quarrel likely to cause bloodshed, it is reasonable to understand clause (b) also in a similar sense, i.e., that it should be thought to refer to persons whose presence in the area is a lively source of potential danger to the public peace. It is quite clear that Mst. Gulaba does not fall within this category of persons. Although &he belongs to a Frontier tribe yet upon the allegations she has a clear means of livelihood namely, the profession which she follows. It is true that the profession of prostitution is deplored by moralists, but it is on that has survived all attacks levelled against it on the plane of morals, by legal and other methods, so that today in most countries, there is legal provision for segregation of prostitution in areas subject to municipal laws, not as a step‑in‑aid of extinction of this source of livelihood, but in the interests of the general community. Therefore, to deny that a person who is said to live upon the proceeds of prostitution has an ostensible means of subsistence is clearly impossible, and in the present case, where it has been proved that Mst. Gulaba paid as much as Rs. 5,500 for a house of which she became the owner in Peshawar, the necessity of enquiring further as to whether she had ostensible means of subsistence would appear to be excluded. Again, it cannot be said that she was unable to give a satisfactory account of herself in view of the allegations made against her, namely, that she was following a profession in Peshawar city, which is a recognised profession and is ordinarily practised peacefully, however it may be reprobated. Upon the terms of clause (b) of section 36, F.C.R. We find it impossible to apply them in the case of a person such as Mst. Gulaba on the mere grounds that she is, firstly, a member of a Frontier tribe, and secondly, as is alleged, a practising prostitute. In this view of the matter, the point whether she has a fixed habitation in Peshawar or not becomes of secondary importance. We may however observe that while the Deputy Commissioner thought that she had bought the house in order "to save her skin from expulsion" from which may be inferred that she did so for the particular purpose of equipping herself with a fixed habitation, the learned Judges in the High Court have on the other hand thrown out the suggestion that she may have acquired the house only for the purpose of renting it out. The reference to her moving from mohallah to mohallah is consistent with what appears in the order of the Deputy Commissioner, namely, that in one mohallah a certain retired Captain had compelled the owner of the rented house where she was living to turn her out on account of her profession, whereupon she shifted to another mohallah. We are of the opinion that on the point of fixed habitation, the view taken by the trial Magistrate was the more securely based upon the material in the case. For these reasons, we allow this appeal and setting aside the conviction and sentence of the appellant, acquit Mst. Gulaba. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.