P L D 1962 (W (PLP)

SAJJAD AHMAD, J.

It is necessary to state briefly the events leading up to this writ petition which has been referred to us for decision in a Full Bench.

2. One Amanullah was shot dead in village Shabkadar in the small hours of the morning of 2nd of September 1961. The charge for the murder was laid against the five petitioners headed by Muhammad Azam Khan who was accused as the principal offender for firing at the deceased. The case was put in the Court of Lt. Zafar Khan, Magistrate, First Class, Charsadda, for a commitment enquiry, which was completed on the 6th of January 1962 and the accused were committed to the Court of the Sessions Judge, Peshawar, for trial.

3. At one stage during the enquiry, the prosecution has moved the Deputy Commissioner, Peshawar, for withdrawal of the case under section 11, F. C. R. in order that it should be tried by a Council-of-Elders. The Deputy Commissioner did not agree, and passed the following order (annexure `A' on the record) :- "File of the case sent back to the lower Court for trial in the regular Court. It will be premature to withdraw it at this stage." Before the commencement of the trial in the Sessions Court, Sher Bahadur Khan, father of the deceased, made an application to the Deputy Commissioner, Peshawar, asking for the withdrawal of the case for a Jirga trial under the F. C. R. The Deputy Commissioner marked the application to the Public Prosecutor, Peshawar, who returned it with his report dated the 26th of February 1962, a copy of which has been placed on record as Exh. C/1. The report of the Public Prosecutor referred to all the prosecution evidence available in the case direct as well as corro borative, including the motive for the offence, which was stated to be "very strong", namely, that' a daughter of Mukarram Khan, father of the petitioner Muhammad Azam, was the wife of Rehmatullah, a brother of Amanullah deceased, but Rehmatullah developed illicit relations with his sister-in-law, another daughter of Mukarrarn Khan, and enticed her away. The accused went to the house of Sher Bahadur in order to murder. Rehmatullah but found him and the enticee missing. Muhammad Azam Khan petitioner instead shot Amanullah, a brother of Rehmatullah to "vindicate the family honour". The Public Prosecutor's note also mentioned other significant points in the case, one, that the crime shell recovered from the spot was found by the Arms Expert to have been fired from a rifle belonging to the deceased, and the other that the charring marks around the wound sustained by the deceased indicated that he had been fired at from close quarters. The prosecution case was summed up by him in the final paras. of his report as follows :- "The other evidence as discussed above links the accused Azam with the murder of Amanullah. The only (defect) in the case is non-production of the female folk who are alleged to have seen the accused actually firing at the deceased. This may be due to the fact that the family of the deceased or his female relations would not like to appear in a Court of law for giving evidence. The case was once before at the inquiry stage referred to you for sanction for withdrawal." "It was returned by you with the remarks `File of the case sent back to the lower Court. It would be premature to with draw it at this stage.' " "As I have discussed the entire relevant prosecution evidence above, I request that I may be intimated of any order, deemed proper, well before time as the case is fixed for trial for 5-3-1962." It will be seen that the report of the Public Prosecutor does not give any indication that the case will not stand judicial scrutiny; Annexurc `C/2' contains the noting of the Reader of the Deputy Commissioner on the report of the Public Prosecutor pointedly endorsing the Public Prosecutor's observation that the Deputy Commissioner by his order dated the 28th of December 1961, had returned the case to the lower Court for a trial under the regular law. The Deputy Commissioner then made the following orders:-- "The case may be given a trial under the regular law." It seems that the father of the deceased continued his efforts to have the case withdrawn on the Jirga side and made yet another application to the Deputy Commissioner on the 17th of March 1962, which was once again sent by him to the Public Prosecutor for his comments. This time the Public Prosecutor commented as follows (vide Annexure C/3) on record dated the 17th of March 1962: "The accused, in the application attached in original, were put upon trial in the Court of Sessions Judge, Peshawar, on 5th March 1962. The trial concluded the same day and the Court has fixed 19th March 1962 for orders." "The case was discussed with the learned Sessions Judge and he is of the view that the case is judicially very weak and not fit to stand the judicial test." "The detailed report containing facts of the case and brief summary of the evidence has already been submitted vide this office Note No. 139/P, dated 26-2-1962." "If agreed, I may kindly be authorised in writing to with draw the case under section 15, F. C. R. before 19-3-1962."

4. The Deputy Commissioner on the same date viz., the 17th of March 1962, accorded permission to the Public Prosecutor to withdraw the case from the Court of the Sessions Judge, under section 15, F. C. R., for reference to the Jirga under section 11, F. C. R. Consequently, the Public Prosecutor produced the Deputy Commissioner's order before the Sessions Judge, who stayed the proceedings under subsection (2) of section 15 of the F. C. R. and forwarded the file to the Deputy Commissioner. This happened on the 19th of March 1962 leading to the present writ petition, which was filed on the 7th of April 1962. After a preliminary admission, it was laid for a full hearing before a Division Bench of this Court on the 10th of May 1962. The Division Bench considered that the petition raised some important questions which were formulated by it, and it was necessary that they should be decided by a larger Bench especially as the ques tions pertained to the scope of the F. C. R. which has recently been extended to some more parts of West Pakistan :-

5. The two questions formulated by the Division Bench in its referring order are :- "Firstly, whether it was proper for the Sessions Judge to privately discuss the merits of the case with the Public Pro secutor, and secondly, whether the opinion of the District Magistrate in these circumstances, could be regarded to be an independent expression of his volition to withdraw the case." The two questions between themselves represent the grounds on which the petitioners seek the quashment of the orders of the Deputy Commissioner mentioned above directing the withdrawal of the case for trial under the F. C. R. It may be mentioned, however, that the petition does not directly impugn the conduct of the Sessions Judge as improper, but the main contention mentioned in the petition and which has been argued before us vehemently by the learned counsel for the petitioners is, that the opinion of the Sessions Judge conveyed to the Deputy Commissioner in the final note of the Public Prosecutor (Annexure C/3) that the case was judicially weak had completely swamped the judgment of the Deputy Commissioner, who thus withdraw the case from the Sessions Court not by an independent exercise of his own discretion in the matter, as con templated by the letter and spirits of the relevant provisions of the F. C. R. but by a total surrender of his will to that of the Sessions Judge. The questions requiring considered, therefore, are, whether the Sessions Judge had expressed any opinion in the case in the manner as imputed to him, and whether in the result, it amounted to an imposition of the will of the Sessions Judge on that of the Deputy Commissioner. To put it differently the question is, whether Deputy Commissioner in this case abdicated his own authority by submission to the will of an extraneous agency-the Sessions Judge--thus violating the letter and spirit of the legislative enactment, viz. the Frontier Crimes Regulation under which he was to take his own independent decision in the matter. To decide the point it is necessary to refer to certain averments made by the parties.

6. The Government of West Pakistan through the Secretary, Home Affairs, the Deputy Commissioner, Peshawar, the District and Sessions Judge, Peshawar and the Public Prosecutor, Peshawar, were impleaded as respondents in this petition, in the order in which they have been mentioned, as Nos. 1 to 4. . Res pondents Nos. 1 and 3 did not submit their written statement, but respondent No. 2, the Deputy Commissioner, and respondent No. 4, the. Public Prosecutor, Peshawar, have filed them along with their affidavits which may here be noted. The Deputy Com missioner, Peshawar, has categorically stated that he had in exercise of his powers, under section 15, F. C. R., instructed the Public Prosecutor to withdraw the case from the Sessions Court and he had done so, after weighing fully the pros and cons of the case, together with the various reports of the Public Prosecutor who was his legal adviser. It was denied that he had been prevailed upon by respondent No. 3, the Sessions Judge, to withdraw the case. Respondent No. 4, admitted that he had sent his confiden tial report to the Deputy Commissioner on the 17th of March 1962, Annexure C/3, in the course of his official duty as the legal adviser of the Deputy Commissioner but he affirmed the stand taken by respondent No. 2 that the order of withdrawal was made by the Deputy Commissioner by exercising his own independent discretion, and not that he was prevailed upon by the Sessions Judge, to do so. Respondent No. 3, the Sessions Judge, did not Tile a written statement but as the propriety of his conduct was in question in terms of the reference order made by the Division Bench, we considered it necessary to examine him. He denied that he had expressed an opinion at any stage of the trial, that the case was judicially weak, and should be withdrawn under the F. C. R. He stated, however, that a few days after the trial had ended, the Public Prosecutor had come to his Court-Room and told him that he wanted to withdraw from the prosecution of the case as the parties were important and the occurrence had taken place at night time and there was only one witness, who was the servant of the complainant. The respondent, however, told him that the matter did not concern him which was one for the Deputy Commissioner and the Public Prosecutor to decide.

7. We had a lurking suspicion that after the conclusion of the trial on the 5th of March 1962, the learned Sessions Judge while deferring the decision of the case to the 19th of March 1962 enabled the prosecution to consider the expediency of withdrawing the case under section 15 of the F. C. R. and in order to clear this suspicion we put a question to him why had he thought it necessary to give such a long adjournment. His reply was that as a matter of practice, he does not deliver his judgments in sessions cases soon after the conclusion of .the trials, but defers them to future dates to avail himself of some, leisure time, in the meanwhile, to write out his judgments. The sole basis therefore, for the contention that the Sessions Judge had expressed his opinion in the case, which in turn was imposed by the Public Prosecutor on the Deputy Commissioner to secure "the withdrawal order", is the observation contained in the f communication of the Public Prosecutor, Annexure C/3,:wherein the following paragraph occurs :- "The case was discussed with the learned Sessions Judge and he is of the view that the case is judicially very weak and not fit to stand the judicial test:" This is a vague and an unfortunate expression which gives rise to all sorts of conjectures without, however, leading to any fixed point as to what was the discussion that took place between the Public Prosecutor and the Sessions Judge, what really had necessi tated this discussion, and in what context the learned Sessions Judge had expressed his opinion about the judicial weakness of the case. In view of the clear denial of the learned Sessions Judge, and in the absence of any other satisfactory data on which to base our conclusions we can do no more than indulge in mere conjectures. It may be that the Public Prosecutor gained his impression of the views of the learned Sessions Judge about the case during the trial or during the arguments, or it may be that it was his own reaction to the informal and non-committal attri bute of the learned Sessions Judge to the news conveyed by him to the learned Sessions Judge after a few days of the conclusion of the trial, as admitted by the latter, that he wanted to withdraw the case from the Sessions Court for the reasons stated by him. In this situation we consider it absolutely unsafe to hold that the learned Sessions Judge had expressed his opinion in the manner attributed to him involving a derelict or improper conduct on his part. If we were able to reach that conclusion we would have certainly deprecated it in no uncertain terms. One cannot over emphasize the virtue of utter judicial detachment oil the part of the judicial officers in the conduct of judicial cases, not to do anything or to say anything which might give a handle to one party against the other or which might create a bias in favour of one against the other. To hold the scales evenly between the parties up to the end of the case is indeed a delicate task, but in it lies the main strength of the judicial balance with public confidence put in the scales, the slightest impairment of which would certainly weaken and spoil the balance. It is not the business of the judicial officers to act as advisors to the executive authori ties and to suggest a course of action to them for the conduct of their cases. The sole task of the Judges is to administer justice between the parties, according to the best of their ability, on the facts revealed to them, and to interpret the law as it stands with out fear, or favour, malice or ill will. In this case, we feel that the learned Public Prosecutor should not, have indulged in an informal talk with the learned Sessions Judge about the case unless the intention was to convey to the Sessions Judge his own intention and the likely decision of the Deputy Commissioner, to withdraw the case from his Court in order that the Sessions Judge should be spared the fruitless labour of preparing his judgment. Perhaps the Public Prosecutor meant nothing more than this, but his deductions about the opinion of the Sessions Judge as expressed by him in his communication to the Deputy Commis sioner in Exh.C/3 has unfortunately created complications.

8. In view of our inability from the material on the record to hold that the learned Sessions Judge had expressed any opinion at any stage of the case, the second question as to the result of its impact on the judgment of the Deputy Commissioner in with drawing the case from the Sessions Court becomes redundant. However, as a good part of the argument of the learned counsel covered this aspect of the case, it is necessary to make a few observations. There can be no dispute that if under the law a particular functionary is charged with the performance of a duty on his own independent judgment, he must not allow his judg ment to be subordinated by any other agency. The judgment must be his own, and not dictated or imposed on him by anyone else, but this does not mean that in the formation of his opinion he has to keep himself cloistered and immune from the opinions on the subject from any other source and to shut out the relevant circumstances which may be forced on his attention in dealing with the matter. If a person holding a position of dominance or overriding authority imposes his will on a subordinate authority and the latter secumbs to it, the decision in such circumstances; even though proceedings from a subordinate authority, will virtually be not his decision, but will be the decision of an authority that has super-imposed its will on the subordinate authority by the sheer weight and pressure of its superior position. In the present case, even if we were to assume that the learned Sessions Judge had wittingly or unwittingly, purposely or unpurposely told the Public Prosecutor at any stage that the case was judicially weak and should be withdrawn under the F. C. R. we do not consider that the Sessions Judge was in a position of dominant authority to impose his will on the Deputy Commissioner, and that the latter, in withdrawing the case, had no option but to yield to it, thus surrendering his own judgment in the matter. The Deputy Commissioner is not subordinate to the Sessions Judge in any manner in the direction and decision of the cases under the F. C. 'R nor is the Sessions Judge in a superior position of authority qua the Deputy Commissioner. In fact we consider that if the Deputy Commissioner had come to know, directly or indirectly, that the Sessions Judge, who was to decide the case, considered that the case was judicially weak, it would be a relevant circumstance for him to re-assess; his, own opinion as regards the forum which should try the fate of the case. Under section 15, F. C. R. the Deputy Commissioner can instruct the Public Prosecutor in writing to withdraw the case at any time before the order of conviction or acquittal is recorded so that the case may be referred to a Council-of-Elders. This action is of course controlled by the provision of section 11, F. C. R. which requires that cases should be withdrawn for trial under the F. C. R. if the Deputy Commissioner is of the opinion that it is inexpedient that they should be tried by the regular Courts under the Code of Criminal Procedure. To decide on the expediency of the course not to be adopted by the Deputy Commissioner in this behalf is a matter of his subjective satisfaction and it is not our function in writ jurisdiction to scan the process by which that satisfaction has been achieved. We agree with the learned counsel for the petitioners that the Sessions Judge is entirely an extraneous authority so far as the conduct of a case under the F. C. R. is concerned, but if a Sessions Judge seized of a case unfortunately gives expression to his opinion on the merits of the case, it would be a very germane consideration for the Deputy Commissioner to decide the issue of the fitness of the case for trial by the ordinary Courts or under the F. C. R. The contention that in the circumstances the opinion of the Sessions Judge becomes the opinion of the Deputy Commissioner is to confuse cases with effect. The opinion of the Deputy Commissioner remains his own opinion, although it may have been formulated on the circumstance of what the Sessions Judge had thought of the matter. It is not denied that the Deputy Commissioner is within his rights to see that a person who in his view is guilty of a criminal offence meets his dessert, and if for some reason like a defect in evidence or other allied circumstances and on advice from the relevant quarters, the Deputy Commissioner wants to rescue the case from a judicial derth and withdraws it under the F. C. R., no exception can be taken to it.

9. The events that have taken place in the present case at its various stages incline us to the view that when the case was first sought to be withdrawn for a Jirga trial during the enquiry stage, the Deputy Commissioner considered that the action was premature. On the second occasion the note of the Public Prosecutor dated the 26th of February 1962, (Annexure C/ 1) did not quite clearly make out a case for Jirga trial, and in fact it contained indications, that it was a good case judicially, and acting on that basis, he Deputy Commissioner ordered that the case be tried under the regular law. Finally, however, when the Public Prosecutor addressed him again on the subject (vide Annexure C/3) giving an index of his own mind as to the fate of the case in the Sessions Court, backed by the supposed view of the Sessions Judge himself, the Deputy Commissioner felt persua ded .to change his view, and ordered that the case be withdrawn under the F. C. R. Section 17 of the Frontier Crimes Regulation gives the Deputy Commissioner a statutory right to review and revise his own opinions and make fresh orders regarding the withdrawal of cases under the F. C. R. despite previous orders to the contrary.

10. We do not see any substance in this writ petition, which is hereby dismissed, with no order as to costs.

11. The learned counsel for the petitioners asked us to certify that it is a fit case for appeal to the Supreme Court. This prayer is granted. A. H. Petition dismissed.