P L D 1964 (W (PLP)

"Except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under subsection (1) of this section , each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act, and of the Orders in Council, rules and other instruments made there under, shall, so far as applicable, and subject to any express provisions of this Act, and with such omission, additions, adaptations and modifications as may be specified in orders of the Governor‑General under the next succeeding section have effect accordingly."

20. Section 5 of the Government of India Act, which remained in force until the passing of the 1956 Constitution underwent several changes, being first replaced by section 5 of Governor‑General's Order No. 22 of 1947 and then modified by the First Schedule to the Establishment of West Pakistan Act, 1955. In its final form it ran:‑ "(5) Establishment of the Federation‑ (1) . . . . . . . . . . . . . . . There shall be united in a Federation by the name of Pakistan‑ (a) the Province hereinafter called Governors' Provinces, (bb) any other areas that may with the consent of the Federa tion be included in the Federation."

21. On the 27th of June 1950, a notification, No. F. 9 (170)‑F/48 was issued, the preamble to which is to the following effect: ‑ "Where the inhabitants of the areas situated within the external Frontiers of Pakistan which are not included in any of the Provinces or in the Chief Commissioner's Province of Baluchistan or in any of the acceding States or in the Capital of the Federation have, through their accredited representatives, declared their territories to be a part of Federation of Pakistan as constituted on the 15th day of August 1947. And whereas the Governor‑General has accepted their request and given his consent to these areas being included in the Federation of Pakistan." The notification was made, retrospective from the 15th of August 1947. By a second notification, No. F. 9 (170)‑F/48‑I, dated the 27th of June 1950, the areas described in the first were declared to be territories in which the Governor‑General exercised jurisdic tion under paragraph 2 of Article 1 of the Extra‑Provincial Jurisdiction Order, 1949, while paragraph (3) delegated the jurisdiction of the Governor‑General to the Governors of the North‑West Frontier and Punjab Provinces and the Chief Commissioner of Baluchistan in respect of those of the territories which had come under their territorial jurisdiction. Paragraph (4) provided that all notifications, rules or other instruments made before the fifteenth day of August 1947 in respect of the afore said areas under subsections (1) and (2) of section 313 of the Government of India Act, 1935, should be deemed to have continued in force after the fourteenth day of August 1947 and to have been duly made in exercise of the jurisdiction conferred by the Extra‑Provincial Jurisdiction Order, 1949.

22. The history of the Regulation may now be given. By way of preliminary, it will be of advantage to cite another passage from Ilbert's work referred to in paragraph 14 above. At gage 105 the learned author remarks:‑ "A very important modification in the machinery for Indian legislation was made by the Government of India Act, 1870. It has been seen that for a long time the Governor‑General believed himself to have the power of legislating by executive order for the non‑regulation provinces. The Indian Councils Act of 1861, whilst validating rules made under this power in the past, took away the power for the future. The Act of 1870 practically restored this power by enabling the Governor-General to legislate in a summary manner for the less advanced parts of India. The machinery provided is as follows. The Secretary of State in Council, by resolution, declares the provisions of section 1 of the Act of 1870 applicable to some particular part of a British Indian province. Thereupon the Governor‑in‑Council, Lieutenant‑Governor, Lieutenant‑Governor- in‑Council, or Chief Commissioner of the province, may at any time propose to the Governor‑General‑in‑Council drafts of regulations for the peace and good government of that part, and these drafts, when approved and assented to by the Governor‑General‑in‑Council, and duly gazetted, have the same force of law as if they had been formally passed at sittings of the Legislative Council. This machinery has been extensively applied to the less advanced districts of the different Indian provinces, and numerous regulations have been, and are constantly being, made under it." The Regulation, which was originally applicable only to certain districts within the limits of British India, came into force under the above machinery. It was notified in the Gazette of India of the 21st of September 1901, and the preamble runs:‑ "No. 23.‑Whereas by Resolution passed by the Secretary of State for India in Council on the 6th day of October, 1870, the provisions of section 1 of the Government of India Act, 1870, (

33. Viet., c. 3), were declared applicable to the districts of Hazara, Peshawar, Kohat, Bannu, Dera Ismail Khan and Dera Ghazi Khan under the administration of the Lieutenant Governor of the Punjab; And whereas the said Lieutenant‑Governor of the Punjab has proposed to the Governor‑General‑in‑Council a draft of the following Regulation together with the reasons for proposing the same; And whereas the Governor‑General‑in‑Council has taken the draft and reasons into consideration, and has approved of the draft, and the same has received the Governor‑General's assent on the 18th day of September 1901; In pursuance of the direction contained in the said section, the said Regulation is now published in the Gazette of India:"

23. The Regulation was in the following year made applic able to the Kurram Valley by Foreign Department Notification No. 1691‑F, dated the 23rd of June 1902. As on that date the Indian (Foreign Jurisdiction) Order in Council, 1902, had apparently not been passed, the notification was issued in exercise of the powers conferred by sections 4 and 5 of the Foreign Jurisdiction and Extradition Act, 1879, the provisions of which are as under:‑ "(4) The Governor‑General‑in‑Council may exercise any power or jurisdiction which he for the time being has within any country or place beyond the limits of British India, and may delegate the same to any servant of the British Indian Government, in such manner and to such extent as the Governor‑General‑in‑Council from time to time thinks fit." "(5) A notification in the Gazette of India of the exercise by the Governor‑General‑in‑Council of any such power or jurisdic tion, and of the delegation thereof by him to any person or class of persons, and of the rules of procedure or other condi tions to which such persons are to conform, and of the local area within which their powers are to be exercised, shall be conclusive proof of the truth of the matters stated in the notification,"

24. The above notification introduced an important amend ment in the Regulation, substituting the following for the original subsection (1) of section 8:‑ "When the Deputy Commissioner or the Political Agent thinks it expedient that any dispute should be settled in the manner provided by this section, he may make an order, in writing, stating the grounds of his opinion and referring the dispute to a Council‑of‑Elders."

25. The provisions of the Regulation were also extended to North and South Waziristan by a subsequent notification of the Foreign and Political Department, No. 112‑F, dated the 24th of March 1926, in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902. Section 2 of that Order declared its limits to be, inter alia, the territories of India outside British India, while section ' 3 is in essentials identical with section 5 of the Foreign Jurisdiction and Extradi tion Act, 1879. The first paragraph of Part II of the notification lays down that all Assistant Political Officers within North and South Waziristan shall exercise all the powers of a Magistrate of the First Class, while all Political Agents shall exercise all the powers of a Deputy Commissioner under the Regulation. It may also here be noted that section 2(b) of the Regulation defines "Deputy Commissioner" as including any Magistrate of the First Class appointed by the Deputy Commissioner by order in writing to exercise all or any of the functions or powers specified in the First Part of the First Schedule and also any Magistrate appointed by the Local (now the Provincial) Government to exercise all or any of such functions or powers. Under clause (a) of the said Schedule an Additional District Magistrate is qualified to exercise all or any of the powers and functions of a Deputy Commissioner. As has already been stated, the Assistant Political Officer, North Waziristan, is also described as Additional District Magistrate.

26. As has been seen, all the areas situated within the external frontiers of Pakistan, which were not included in any of the Provinces or in the Chief Commissioner's Province of Baluchistan, were included within the Federation of Pakistan Notification No. F‑9 (170)‑F/48 of 27th of June 1950 and were declared by Notification No. F‑9 (170)‑F/48‑I of the same date to be territories in which the Governor-General exercised jurisdiction under paragraph (2) of Article 1 of the Extra‑Provincial Jurisdiction Order, 1949. As the Regulation had been made applicable to the Kurram Valley and North and South Waziristan by the 1902 and 1926 notifications above referred to, respectively, the reference made by learned counsel for the petitioners to another Notification, No. F‑9 (170)‑F/48‑II, dated the 27th of June 1950, is miscon ceived. That notification provided that all enactments made in or applied to the Chief Commissioner's Province of Baluchistan on or after the 15th day of August 1947, should, unless otherwise declared by the Agent to the Governor‑General in Baluchistan, be deemed to be in force in the territories within the borders of Baluchistan referred to in Notification No. F‑9 (170)‑F/48. The argument of the petitioners appears to be that as the Regulation was not in force in the Province of Baluchistan, it consequently did not, after the amalgamation, apply to North and South Waziristan, but, as has been pointed out, it was already in force in the latter areas and was automatically continued.

27. Coming now to the points referred to us, it will be convenient to deal first with Writ Petition No. 725 of 1960. It appears to have been assumed in the order of reference that the summons issued to the petitioners by the Political Agent, Kurram, was in exercise of the powers conferred on him by the Regulation. The petitioners have also assumed this to be the position, remarking in paragraph 16 (c) of the petition that respondent No. 1's judicial powers for the cognizance of criminal cases arise solely from the Regulation. This is, however, incorrect. Foreign Department Notification No. 1691‑F; dated the 23rd of June 1902, already referred to, lays down, vide paragraph 2 of the Part II, that the Political Agent for the time being in Kurram shall, as regards the Kurram Valley, exercise not only the powers of a Deputy Commissioner under the Regulation but also those of a District Magistrate and of a Court of Session as described in the Code of Criminal Procedure, 1898, while para graph 3 provides that in respect of all cases tried under the Code of Criminal Procedure as applied by the notification the functions of the High Court as a Court of Appeal, Reference and Revision shall be discharged by the Judicial Commissioner, North‑West Frontier Province. It is thus clear that the Political Agent, Kurram, can himself try criminal cases as a District Magistrate or as a Court of Session, as the case may be, and it cannot be assumed without proof that in the case now before us he is acting as a Deputy Commissioner under the Regulation. There is not a word in his report to suggest that he is acting in such capacity, and in fact the tenor of the report leads to a contrary conclusion. Not only does the Political Agent point out that he exercises all the powers of a District Magistrate and of a Sessions Judge within the Agency, but he makes a reference to the customary law of the Agency which, according to him, enables him to take up a: case as a Court.

28. I am, therefore, of the opinion that Writ Petition No. 725 of 1960 is not proved to fall strictly within the terms of the reference made to us, and that it is consequently unnecessary to discuss the extent of the Political Agent's powers under section 11 of the Regulation. If it should later transpire that the case is in fact being dealt with under the Regulation, the petitioners will be at liberty, subject to all just exceptions, to file a fresh petition, if so advised.

29. So far as the remaining petitions are concerned, the question referred to us concerns the scope and interpretation of section 8 of the Regulation, which runs :‑ "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 matter 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, 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." A perusal of the provisions of the above section immediately disposes of one of the contentions of the petitioners, namely, that the proceedings before the Issuing Officer or the Council‑of‑Elders are vitiated by the absence of a dispute likely to cause a blood‑feud etc., it being clear that the section can be invoked where either or any of the parties belong to a frontier tribe.

30. The argument of some of the petitioners that section 8 can only be pressed into service against Pathans and Baluchis is also misconceived. In the first place, North‑West Frontier Province Administration Notification No. 72, dated the 9th of April 1902, declared all persons born or ordinarily resident in the districts to which the Regulation applies or in the foreign territory bordering on those districts to the west, or in any par of Afghanistan or Baluchistan, to be subject to the whole of such sections of the Regulation as are not of general application. Section 8 was thus made applicable by the above notification to all the persons described. Secondly, Notification No. 112‑F, dated the 24th of March 1926, applied the Regulation to the tracts known as North Waziristan and South Waziristan, and did not confine its operation to any particular tribe or tribes within the tracts.

31. The contention of the petitioners that an Issuing Officer acting under section 8 of the Regulation does not possess the jurisdiction to determine the matter himself as a civil suit is unexceptionable, but the report of the Issuing Officer above referred to makes it clear that he had no intention of doing so and that after "issues" had been framed the matter would be handed over to the Council‑pf Elders. Section 8 requires the Council to come to a finding on the matters in dispute, and I see no valid objection to the Deputy Commissioner's specifying those matters by formulating them in the same manner as issues would be framed in a civil suit. Similarly, the fact that the creditors filed before the Issuing Officer what purported to be "plaints" does not, in my opinion, convert the proceedings into a civil suit, particularly in view of the statement of the Issuing officer in his report that no Civil Court in the ordinary sense exists in North Waziristan and that after "issues" are framed, the dispute is made over to the Council‑of‑Elders to come to a finding on the points involved.

32. The fact that the summonses were issued by the Deputy Commissioner and hot by the Council‑of‑Elders also cannot lead to the inference that the proceedings were to be tried as a civil suit, since the power of compelling the attendance of parties and the witnesses vests, not in the Council itself, but in the Deputy Commissioner. Section 20 of the Regulation runs: "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, 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." In the cases now before us it has been pointed out in paragraph 6 above that, according to the Government of Pakistan, the use of coercive powers against the petitioners is not contemplated, the only result of their non‑attendance being that the proceedings before the Council‑of‑Elders would be ex parte.

33. There is, however, a much more serious stumbling block in the way of the petitioners. As these petitions were filed in the years 1959 and 1960, they are governed by Article 2(4) of the Laws (Continuance in Force) Order, 1958 which confines the extraordinary jurisdiction of this Court to the issue of the writs of habeas corpus, mandamus, prohibition, quo‑warranto and certiorari. In Samundar v. Crown (P L D 1954 F C 228), it was held that the Deputy Commissioner and the Commissioner appear to have been mentioned in the Regulation merely as persona designata and not as judiciary, that their orders are merely executive or administrative orders which have been made with a view to extirpating a social evil, and that consequently 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. It was further laid down by Cornelius, J. in the same authority that since the proceedings before the Deputy Commissioner and the Commissioner were not amenable to any rule which might be regarded as a rule of "due process" or "best evidence" it was impossible for a superior Court to apply any principles whatsoever which might possess the slightest validity for judging the correctness or otherwise of their decisions. Finally, the same learned Judge pointed out that although sections 8, 9 and 52 of the Regulation provide for reference of certain civil disputes to Councils‑of‑Elders for a finding, on the basis of which the Deputy Commissioner may award a decree in so far as the finding is not "contrary to good conscience or public policy," such a decree is no simple decree of a Civil Court of general jurisdiction but is to be regarded as essentially an instrument embodying a settlement of rights between the contestants which also satisfies the interests of public policy, by which can only be understood, in relation to an unsettled or frontier area, the general administrative policy of the Government. It is true that the above pronounce ments were made in connection with a petition for special leave to appeal to the Federal Court, which did not at that time possess writ jurisdiction, but in Muhammad Akram v. State (P L D 1963 S C 373), a further observation made in Samunder's case was quoted, namely, that "in determining whether a particular jurisdiction attracts the Crown's prerogative, it is the substance and not the appearance which would govern the decision". The learned Judges also laid down the following principle :‑ "In these circumstances, it should be obvious that for the superior Courts to interfere, whether by approval or otherwise, with the operation of the system in any case, once a case is competently drawn into the system, would be a violation of the legislative intention. All action, in the writ jurisdiction, should be confined to action in limine, that is to say, in assertion of the jurisdiction of the ordinary Courts, and in vindication of the law, to scrutinise the process by which the case, if there be one, has been, or is ought to be, diverted into the ambit of the jirga system. If the legal requisites are satisfied, that is the last contact which the Superior Courts can retain with the case, viz., by making such a declaration. All other processes taken in the disposal of the case, within the jirga system, are outside the purview of the Courts, in any of their jurisdictions." It must be noted that although the decision in Muhammad Akram's case was given after the coming into force of the 1962 Constitution, it arose out of an order of the Peshawar Bench of this Court passed before the commencing day of the Constitution. The case was, therefore, also governed by the Laws (Continuance in Force) Order, 1958.

34. In view of the law as declared by the Supreme Court it follows, any other decision to the contrary notwithstanding, that this Court can only interfere in the present petitions if it can be shown that the cases to which they relate were not competently drawn, or sought, to be drawn, into the Jirga system and, in my opinion, that condition has not been fulfilled. As one party to each dispute belonged to a Frontier Tribe, the Deputy Commissioner was competent to refer, or seek to refer, them to a Council‑of‑Elders under section 8 of the Regulation. The personal attendance of the petitioners cannot be considered to be a necessary pre‑requisite for the proper drawing of the dispute into the system, while any subsequent step by way of issuing process for the attendance of witnesses would, in my opinion, fall within the definition of a process taken in the disposal of cases within the system and would consequently be outside the purview of this Court in any of its jurisdictions.

35. For the above reasons my, answer to the reference would be that, in the language of the reference itself, this Court has no jurisdiction in cases falling within the orbit of the Law (Continuance in Force) Order, 1958, "to issue orders that would nullify those of authorities in North Waziristan and some other similar areas." As it further appears to have been the intention o the referring order that the petitions should be finally decided by this Bench, and as, moreover, my finding on the question involved decides their fate, I would dismiss them, but, in the circumstances, without order as to costs. S. A. MAHMOOD, J.‑I agree. SAJJAD AHMAD JAN, J.‑I agree. K. B. A. Petition dismissed.