P L D 1968 Supreme Court 131 (PLP)

FAZLE‑AHBAR, J.‑This judgment will dispose of nine appeals. Nos. 59 to 67 of 1966, from a consolidated judgment of a Full Bench of the High Court of West Pakistan. These appeals, by special leave, raise a common question of law, namely, whether an Assistant Political Officer and Additional District Magistrate of North Waziristan had power to issue summons to a person residing outside that area. This question arises under the following circumstances. In all these cases, one of the parties claiming to be a resident of North‑Waziristan and other areas to which the Frontier Crimes Regulation III of 1901 (hereinafter referred to as the Regulation) applied, instituted civil proceedings under section 8 of the said Regulation for recovery of various amounts alleged to be due to them from the other parties before the Assistant Political Officer and Additional District Magistrate of North‑Waziristan who then sent summonses in all the cases to the Deputy Commissioner, Lyallpur, because the debtors were residing at Lyallpur and the Deputy Commissioner forwarded the summonses to the Tehsildar, Lyallpur for service. The different debtors filed separate writ petitions in the High Court challenging the jurisdiction of the issuing officer to issue summons on the ground that his power did not extend to person outside the areas to which the Regulation applied and even in those areas it applied to the tribes known as Baluchis and Pathans. It was also contended that the issuing‑officer was not competent to issue the summons because they could be issued only by the Deputy Commissioner. The Government of Pakistan opposed all the petitions. The stand taken by the Government was that in a proceeding under section 8 of the Regulation the issuing officer was quite competent to send such summons in those territories to which the Regulation did not apply. It was also urged that "the summonses were issued by the Deputy Commissioner merely with the object of fixing the defendant with the knowledge of the claim preferred against him. It is not obligatory when summonses are received by a person residing in the settled district that he should be forced to attend before the Council‑of‑Elders. It is for the defendant to decide whether or not he will attend". The High Court held that such processes could be issued if one of the parties was resident within the relevant area and that, in any event, the High Court had no jurisdiction to interfere with the proceedings taken under the Frontier Crimes Regulation in its writ jurisdiction, even though these processes were being sought to be enforced through officers who were subject to the jurisdiction of the High Court. Special leave to appeal was granted to consider: (i) "the jurisdiction of the authorities under the Frontier, Crimes Regulation to issue processes outside their jurisdiction," and (ii) "the jurisdiction of the High Court to interfere with proceedings of this nature". In order to appreciate the contentions raised in these appeals, it will be convenient at this stage to set out the relevant provisions of the Regulation:‑ "4. (1) In any district in the whole or any part of which al; or any of the provisions of this Regulation are for the time being in force, the Provincial Government may appoint any Magistrate or Magistrate of the first class to be an Additional District Magistrate or Additional District Magistrates, without any limit of time. (2) Every Additional District Magistrate so appointed shall have all the ordinary powers of a District Magistrate specified in the fifth part of the Third Schedule to the Code of Criminal Procedure, 1898. (3) When exercising any of the powers of a Deputy Commis sioner under this Regulation, an Additional District Magistrate shall be deemed, for the purposes of this Regulation, to be the Deputy Commissioner. (4) Every Additional District Magistrate shall exercise his powers in subordination to the District Magistrate, and in such cases or classes of cases, and within such local limits, as the District Magistrate may, by order in writing, direct." 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 anticipated, and if a suit is not pending in respect of the dispute, make an order in writing, stating the grounds of his 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. "

20. Where a reference is made to a Council‑of‑Elders under this Chapter, the Deputy Commissioner may exercise all or any of the powers conferred by the Code of Civil Procedure and the Code of Criminal Procedure, 1898, respec tively, as the case may be, for the purpose of compelling the attendance, before himself or the Council‑of‑Elders, of the parties, and witnesses, or any of them, in any case and at any stage of the proceedings." "

60. Except as therein otherwise provided, no decision, decree, sentence or order given, passed or made, or act done, under Chapter III, Chapter IV, Chapter V or Chapter VI, shall be called in question in, or set aside by, any Civil or Criminal Court." On the 19th February 1959, the following notification was issued by the Governor of West Pakistan:‑ "No. 4547‑C.R.‑In exercise of the powers conferred by sub‑section (1) of section 4 of the Frontier Crimes Regulation, 1901, the Governor of West Pakistan is pleased to appoint Mr. Razaullah Khan, P. C. S., Assistant Political Officer, North‑Waziristan, as Additional District Magistrate with effect from the date of assumption of charge and to direct that he shall exercise the powers under the said section within the local limit (sic) of his jurisdiction." Now, a copy of the summons issued by the Assistant Political Officer and Additional District Magistrate may be set out:‑ "Summons for final disposal of the case (Order V, rule 1, C. P. C.) In the Court of Assistant Political Officer and Additional District Magistrate, North‑Waziristan. Suit No.

19. Subedar Soedar, Wali Gul and others, residents of Miran Shah‑Plaintiffs versus Haji Abdul Ghani and others, residents of Lyallpur‑‑‑ Defendants. To, Ghulam Rasool son of Chiragh Din, Book Seller, Lyallpur‑Defendant Whereas Subedar Khushned (sic) and others plaintiffs have instituted a suit against you for Rs. 14,745/12 (copy of plaint whereof is attached herewith), you are hereby summoned to appear in this Court in person or by a Vakil duly instructed and able to answer all material questions relating to the suit or who shall be accompanied by some persons able to answer all such questions on the 25th day of September 1959, at 8 a.m. to answer the claim and as the day fixed for your appearance is appointed for the final disposal of the suit you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence. Take notice that in default of your appearance on the day mentioned above, the suit will be heard and determined in your absence. Given under my hand and the seal of the Court this 25th day of August 1959. (Sd.) in English. Seal. Judge.", Now, the question is whether such a summons could be issued by Mr. Razaullah Khan, Assistant Political Officer as Additional District Magistrate, North‑Waziristan. Mr. Razaullah Khan in his report to the High Court stated that under the aforesaid Notification No. 4547‑C. R., dated 19‑2‑59, he was empowered to try cases under F. C. R.; that "there being a certain likelihood of the breach of peace between the parties" he entertained the plaint under section 8 (1) of the Regulation; and that under section 4 (3) of the Regulation he "shall be deemed for the purpose of the Regulation to be the Deputy Commissioner" and as such he was competent to issue summonses in these cases. He further stated that the summons were issued to the defendant for his furnishing the written state ment so a to enable the Court to frame issues) and for obtaining consent of the parties in respect of Council‑of‑Elders to be nominated appointed by this Court before requiring the Council‑of‑Elders to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties." Hence, the main controversy in those cases centres round the true import of section 8 (1) of the Regulation. The Regula tion provides by this ruction 8 (1) for reference of certain civil disputes, which if unsolved, are likely to lead to bloodshed or disturbance of peace or which involve parties belonging to 'frontier tribe'. to a Council‑of‑Elders "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". Then, subsection 8 (3) (d) empowers the Deputy Commissioner 'to pass a decree in accordance with the finding of the Council'. Further, under section 20 he "may exercise all or any of the powers conferred by the Code of Civil Procedure and the Code of Criminal Procedure, 1898, respectively, as the case may be, for the purpose of compelling the attendance, before himself or the; Council‑of‑Elders, of the parties, and witnesses, or any of them, in any case and at any stage of the proceedings". t will. however, be too much to suggest that either section 8 or section 20 confers on him any power to try and determine a suit. In these cases, summonses which were issued under Order V, rule 1 of the Code of Civil Procedure, clearly state that the person concerned is required to attend on a particular date in person or by Vakil "to answer all material questions relating to the suit", that the day fixed for his appearance "is appointed for the final disposal of the suit" and that he 'must be prepared to produce on that day all the witnesses upon whose evidence and all the documents' upon which he intends to rely in support of his defence. Further, the concluding paragraph states:‑ "Take notice that in default of your appearance on the day mentioned above, the suit will be heard and determined in your absence." Such summonses are issued under Order V, rule 1 of the Code of Civil Procedure by the Court which is going to try and determine the suit, Neither section 8 (1) nor section 20 gives such power of trying and determining a civil suit to the Deputy Commissioner. The learned Advocate‑General appearing for the Government of West Pakistan has been candid enough to say that the office of the Deputy Commissioner has inadvertently used a form prescribed under Order V, rule 1, C. P. C. for issuance of summons in these cases. He has, therefore, found it difficult to contend that (Mr. Razaullah Khan acted within his power in issuing such summons. The learned Attorney‑General appearing for the Government of Pakistan, has also conceded that the officer concerned had no authority to Issue such summons, Hence, for the reasons stated above we hold brat Mr. Rtzaufah khan, the Assistant Political officer, exercising the power of the Deputy Commissioner, had no jurisdiction to issue the impugned summonses. In this view of the matter it is not necessary to decide in these cases whether he had power to issue summons to a person residing outside North‑Waziristan. The learned counsel for the respondents has not challenged the jurisdiction of the High Court to issue writ in such a case. It will suffice to say that the Assistant Political Officer is a creature of statute and despite the provision in the. Regulation shutting out jurisdiction of the ordinary Courts in respect of orders passed or action taken under the Regulation, the corrective procedure of writ jurisdiction would be available if the authority concerned acts in excess of its statutory power. The decision of this Court in Muhammad Akram v. State (P L D 1963 S C 373) on which the Full Bench has relied has no direct bearing on the question in issue before us. In that case the question was whether an order of a Commissioner under section 50 of the regulation was amenable to the writ jurisdiction of the High Court. This Court pointed out that "'The expression 'material irregularity' or 'miscarriage of justice' in that section could not the regarded as importing any power in the High Court either under the Code or in certiorari to exercise control or supervision over the decision of the Commissioner''. It cannot be cited as an authority for challenging the High Court's power to issue writ in a case in which an officer has acted in excess of his statutory powers. Anything done beyond or in excess of power conferred by statute can be brought within the power of avoidance vested in the I‑filth Court. In such a case the High Court can examine if the officer concerned has acted in accordance with the powers conferred upon him by the statute. If he acts within his power section 60 will operate as a bar to the Jurisdiction of the Court, but when he acts in excess of his power, his order is susceptible to interference by the High Court in writ jurisdiction. See Abdul Rauf, arid others v. Abdul Hamid Khan and others (P L D 1965 S C 671). The result therefore is that for the reasons we have given above these appeals must be allowed and directions in the nature of mandamus must issue to the Assistant Political Officer and Additional District Magistrate, North‑Waziristan to withdraw and/or cancel the impugned summonses and to refrain from giving effect to them or taking any action in pursuance thereof. We, however, make no order as to costs. K. B. A. Appeal accepted,