P L D 1964 (W (PLP)

"Under section 20 once a case has been `referred to Jirga' all the proceedings relating to the compelling of the attendance of the accused, which manifestly include the forfeiture of security where the accused has defaulted, also come under section 20 and are no longer to be held under the Criminal Procedure Code, though the powers exercisable are those which could be exercised under that Code. Accordingly where the case against the accused was started under the Criminal Procedure Code and the bonds were taken under the Criminal Procedure Code, and the case was referred to the Council‑of -Elders before the bonds became forfeit, the forfeiture of bonds would he governed by section 20 of the Regulation. Even if the Deputy Commissioner took the bond under Criminal Procedure Code as District Magistrate and the case was then referred to the Council‑of‑Elders the bond would come within the mischief of section 20 of the Regulation and if it has to be forfeited it is that section which would govern the matter and he can only act as a Deputy Commissioner under the Regulation. The fact that the Deputy Commissioner signed the order of forfeiture as District Magistrate and not as Deputy Commissioner is irrelevant. The order for forfeiting the bond would be revisable by the Commissioner under section 49 of the Regulation and the High Court would have no jurisdiction in the matter."

8. This judgment covers both the points, on which the Division Bench had admitted the writ petition, and also the point referred to the Full Bench for consideration, namely, that after the case has been referred to the Council‑of‑Elders, the Deputy Commissioner can order the forfeiture of a surety‑bond under section 20, F. C. R., and secondly, he was competent to order the forfeiture, even‑if that bond had been taken by him or by any other Magistrate, acting under the Criminal Procedure Code. In the present case, the term of the bond itself is that the sureties would be responsible to produce Gul Miran before the Magistrate in whose Court the bond was executed and also before any other Court, to which the case was transferred. The Deputy Commissioner under section 20, F. C. R. has got all the powers of a Court given in section 514, Cr. P. C. for enforcing the attendance of the parties and witnesses, and for these matters could order the forfeiture of the surety‑bond, even if it was found that the Deputy Commissioner was not a "Court".

9. S. Masoom Shah counsel for the petitioner urged that the Deputy Commissioner and the Commissioner acting under the F. C. R. ace persona designata and not "Courts". This contention is based on the decision of the Federal Court in case Samandur v. The Crown (P L D 1954 F C 228). I have carefully read this judgment. In the main judgment recorded by A. R. Cornelius, J. no such decision has been made. The only portion touching this matter is contained to the observations of Akram, J. on page 230 of the report, which are to the following effect:‑ "The Deputy Commissioner and the Commissioner in this respect appear to have been mentioned in the Regulation merely as persona designata and not as judiciary. The conviction and the sentences in question, therefore, cannot be treated as made to the course of performance of the normal duty of admi nistration of justice to a litis contestation. These orders are merely executive or administrative orders which have been made with a view to extirpating a social evil and subsequently the Courts cannot enquire into the validity of the finding of the Council- of‑Elders or of the orders of the Deputy Commissioner confirmed in revision by the Commissioner. Further more the jurisdiction of the Courts seems to have been clearly and expressly barred by section 50 of the Regulation." In the main judgment, A. R. Cornelius, J. had further amplified the position in his lordship's observations on page 235 of the report, which run as follows:‑ "On a careful consideration of the statutory provisions and the procedure actually followed in enquiries of this nature, I am satisfied that, if the ascertainment of the commission of an act, falling within one or more of the definitions of offences contained in the Penal Code, by the mode prescribed in section 11, Frontier Crimes Regulation, can be regarded as a mode of justice at all, it is certainly not such a mode as is operated through the ordinary Courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among, the agencies of the general administration. "Trial by Jirga cannot be regarded as a summary trial, of the nature provided by the Criminal Procedure Code. As these cases themselves show, shortening of the duration of a case is not a necessary or even an intended result of reference to Jirga. The exact procedure to be followed in summary trials is laid clown in the Criminal Procedure Code. Such trials must follow either the summons case procedure or the warrant case procedure even though the record is maintained in a form, different from and much briefer than that prescribed for ordinary trials. In the case of Jirgas, no procedure of any kind is laid down. The requirements are that there should be such enquiry "as may be necessary" and that the accused person should be heard. By the proviso to section 50 of the Regulation, the Commissioner is debarred from interfering with a finding of fact recorded by a Jirga, which has been accepted by the Commissioner, `unless he is of 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 mis carriage of justice.' In the absence of any rule, the ascertain ment of material irregularity or defect except perhaps in cases where there has been no enquiry at all, or the accused person has not been heard at all, would vary according to the opinion of the particular Commissioner in relation to each particular case, and consequently there is no scope for imposing any specific measure of regularity upon the proceedings of Jirgas, with the aid of section 50 . . . . . "

10. In the above judgment I do not find that even `the Federal Court had found that the Deputy Commissioner or the Commissioners are not "Courts". What was said by Akram, J. was that they are persona designata, and not judiciary. The sum and substance of this judgment, as I understand it is that the Deputy Commissioners and Commissioners proceed under the F. C. R. not as judicial Courts" their activities having not been regulated by any law of procedure or of evidence and therefore, their decision could not legitimately be gone into, and considered by the High Court, or the Supreme Court, by the application of ordinary rules provided by the Cr. P. Code, and law of Evidence. It is nowhere laid down that the Deputy Commissioner and the Commissioner are not "Courts" in the general sense in which that term is understood. On the other hand, section 6 of the Criminal Procedure Code confirms the existence of other Courts in addition to those enumerated in this section. Section 6 Cr. P. C. Provides:‑ "Besides the High Courts and the Courts constituted under any law other than this Court for the time being in force, there shall be five classes of Criminal Courts in (the Province), namely‑ (i) Courts of Session; (ii) Presidency Magistrates; (iii) Magistrates of First Class; (iv) Magistrates of the Second Class; (v) Magistrates of the Third Class." In the beginning of this section when it is written "the Courts" constituted under any law other than this Code," it confirms the existence of "any other Courts under any other law in addition to the Courts mentioned in this section. The question whether the Deputy Commissioner is a "Court" further finds support from the language used in sections 12, 13 and 19 (2) of the Frontier Crimes Regulation. The Deputy Commissioner passes the sentences on the finding of the Jirga in accordance with the provisions of the Criminal Procedure Code as laid down in section

12. Under section 13 any sentence passed under section 12 shall be executed in the manner provided for the execution of sentence passed by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure. Section 19 (2), F. C. R. provides that the record shall be made by the Deputy Commissioner in English, and in his own hand, unless for any sufficient reason he is prevented from so making it, in which case he shall record the reason of his inability and B shall cause the record to be made from his dictation in open Court, The words open Court point out that the Deputy Commissioner was functioning as a Court, and he had got the record to be made from his dictation in open Court.

11. The question if the District Magistrate, acting on the award of the Council‑of‑Elders under the Frontier Crimes Regula tion was a "Court" came under the examination of a Division Bench of the Judicial Commissioner's Court in 1933. In case Emperor v. (Private) T. L. A. Johnson (A I R 1933 Pesh. 6), the Court found:‑ "A District Magistrate who passes sentence after receipt of the Jirga's finding acts as a Court in British India and when he punishes under some section which comes within Chapter 12 or Chapter 17, Penal Code, such punishment can be taken into consideration for purposes of section 75." This judgment is based on the provision of section 6 of the Criminal Procedure Code. On these grounds, I am clear in my mind that the Deputy Commissioners, or the Commissioner, C acting under the F. C. R., are "Courts", but they are not "Judicial) Courts" as specified in the Code of Criminal Procedure.

12. For the above reasons, I have no hesitation in answering the two questions referred to the Full Bench in the following manner:‑ (1) The Deputy Commissioner was competent to order the forfeitures of the surety‑bond, even if it was furnished in another Court, under the Criminal Procedure Code, by virtue of section 20, F. C. R. (2) The Deputy Commissioner is also a "Court", though not as specified in section 6, but it is a "Court" under the F. C. R. (under a special law). When Gul Miran absented himself from appearing before the Deputy Commissioner, the sureties had forfeited the bond, because of the specific term that they had not only undertaken to produce Gul Miran before the Magistrate, but also before "any other Court", to which the case was transferred, and the "other Courts" include the Court of the Deputy Commissioner under that F. C. R.

13. We are extremely grateful to Khan Abdul Latif Khan Advocate who served as amicus curiae in this case and gave us very valuable assistance. We are also grateful to S. Ghazanfar Ali Shah, Assistant Advocate‑General, who assisted us oil special invitation, besides Khan Sher Bahadur Khan, A. A. G., and Sayyed Masoom Shah Advocate, counsel for the petitioner.

14. There is no substance in the writ petition. It is dismissed. The petitioner to pay Rs. 300 as costs. Out of the costs if realised, Rs. 200 be paid to Khan Abdul Latif Khan, Advocate who assisted us as amicus curiae. ANWARUL HAQ, J.--‑I agree. BASHIRUDDIN AHMAD, J.‑--I agree. K. B. A. Petition dismissed.