P L D 1955 Peshawar 45 (PLP)

(Petition soliciting orders for releasing the petitioner from illegal detention). North-West Frontier Crimes Regulation (III of 1901), Ss. 49, 50, 60-Magistrates or officials cannot be appointed to Council of Elders-Sections 49 and 50 give only powers of superintendence to Commissioner and not a remedy to convict Section 60 does not bar High Court's jurisdiction under S. 223-A, Government of India Act, 1935. Hamesh Gul v. Crown P L D 1955 Pesh. 1 followed Chaudhri Muhammad Ali, Advocate-General, for the States. JUDGMENT MUHAMMAD SHAFI, J.-Ghulam Muhammad Khan, son of Khadi Khan resident of Lundkhwar, a village in Mardan District, is a gentleman of considerable political importance in Pakistan. At one time, when India had not yet been parti tioned, he was an active member of the Congress Organisation, which he left to join the Muslim League at the time when it was busy fighting for the establishment of Pakistan. Later on, when Pakistan became a reality, he left the Muslim League and joined the newly formed rival political body by the name of Jinnah Awami League. In 1943, while India had not yet been partitioned, Ghulam Muhammad Khan became the President of Co-operative Commission shop at Hathian village. In that capacity he was accused of committing breach of trust with respect to two item, of money belonging to the above shop. As a result of it two cases under section 409 of the then known Indian Penal Code were registered against him in Katlang Police Station, one or the 24th of June 1944 and the other on the 13th of November 1944. Both these cases were sent to the Court of a certain Magistrate in Mardan on the 12th of April 1945. Thereafter they ran a course which was extremely rough, protracted and somewhat amusing. They remained on the diary of that Magistrate till the 5th of July 1945, when they disappeared. They appeared in a Court of law some time later when certain proceedings including the recording of the statements of witnesses, were taken. On the 23rd of November 1946, however, an application was made by the Directors and Members of the Co-operative Society Hathian requesting that they might be permitted to withdraw the cases under, as they put it "Section 21 of the Co-operative Bye-law." The Magis trate sent the files and the application for the comments of Registrar Co-operative Societies. The files remained there, except for a very brief period, until 23rd of June 1947, on which date a Magistrate was asked to proceed with them according to law. That Magistrate had not 'yet taken any proceeding in the case when the files were requisitioned by the then Revenue Minister. This authority was keeping the files with himself to talk to Ghulam Muhammad at an appropriate time, when Khan Abdul Qayum Khan, the then Chief Minister of the N.-W. F. P. and one time counsel of Ghulam Muhammad in these very cases, ordered rather indignantly that the files should immediately be transmitted to the Court concerned to complete the enquiry. The Court received back the files on the 31st of January 1948. No appreciable progress could be made in the cases for one reason or the other when on the 20th of October 1948, they were sent to the Chief Secretary. They came back on the 17th of January 1949 to disappear again and this time for several years on the 14th of February 1949. On the 8th of June 1954 Registrar Co-operative Societies suddenly realised that the cases against Ghulam Muhammad should be proceeded with because otherwise the people would get an impression that the Government money could be embezzled without being caught. He addressed a com munication to the above effect to S. Ashiq Muhammad Khan Mazari, Deputy Commissioner, Mardan on that date. The Deputy Commissioner referred the matter immediately to the Chief Secretary probably because in the letter the Regis trar had made a suggestion that if the case was judicially weak it might be taken up under the F. C. R. Chief Secretary does not seem to have taken any action on this communication. In the meanwhile the case again appeared on the diary of a Magistrate exercising enhanced powers under section 30 of the Code of Criminal Procedure. On the 7th of August 1954 Deputy Commissioner Mardan, Mr. Said Ahmad Shah (it appears that during this time he took over from Mr. Mazari) addressed a letter, without making any reference to the pre vious letter of his predecessor, to the Chief Secretary saying that cases against Ghulam Muhammad were true and genuine but they were judicially weak, and so he might be permitted to have them decided under the Frontier Crimes Regulation. The Chief Secretary sent the required sanction on the 9th of August, 1954 and on the 26th of August, 1954 Deputy Commis sioner withdrew the cases from the Court of the Magistrate and issued a non-bailable warrant for the arrest of Ghulam Muhammad. This warrant was executed on the 29th of August 1954 at the Attock Bridge when the accused person was crossing it to go to Punjab. On the 29th of August when the accused person was brought before the Deputy Commissioner in handcuffs, the latter drew out an order in which he wrote that it was inexpe dient that the question of guilt or innocence of the former should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, and that he was, therefore referring the question to the decision of Council of Elders consisting of Banant Gul Khan Treasury Officer. Pit Mukammal Shah Traffic Magistrate and Abdul Aziz Khan Tahsildar. These gentlemen in spite of the objection of the accused person that he did not want the officials to be the members of the Council of Elders, recorded evidence in the case on the 6th, made inquiries in Hathian surrounding villages and hamlets on 8th and submitted their findings to the Deputy Commissioner on the 9th of September recommending acquittal of the accused in one case and conviction in the other. The Deputy Commissioner, on the 13th of September 1954, accepted the findings of the Council of Elders and con victing Ghulam Muhammad under section 409 and a newly introduced section 381 of the Pakistan Penal Code, sentenced him to seven years' rigorous imprisonment and a fine of Rupees five thousand five hundred or in default of the payment of the fine to a further rigorous imprisonment for a period of one and a half year. Ghulam Muhammad from jail and his son Fida Muhammad have moved this Court by three separate petitions under section 223-A of the Government of India Act, 1935 for the issue of the writ of habeas corpus stating that the order of conviction of Ghulam Muhammad and as a result thereof his detention in jail is illegal, without jurisdiction and based on malice. In the petitions some very serious allegations have been made against some of the Ministers and Executive Officers of the Provincial Government and in order to prove them the detenu has asked for summoning of certain witnesses. It has also been submitted that Mardan is outside the scope of the Frontier Crimes Regulation, and therefore the conviction of the accused under that law is bad. We have not gone into these questions because in our opinion Ghulam Muhammad has been convicted by the Deputy Commissioner on the basis of the report of the gentlemen who were not seized of the case because they could not legally be called Council of Elders under the F. C. R. In our judgment of to-day's date in the application of one Hamesh Gul, (Hamesh Gul v. Crown) (P L D 1955 Pesh. 1.) which is also in the nature of habeas corpus, No. 18 of 1954 by giving detained reasons we have held that the appointment of Magistrates and Officials as the members of the Council of Elders under the Frontier Crimes Regulation is illegal and against the letter and spirit of the Regulation and these gentlemen therefore even if they are appointed as such by the Deputy Commissioner do not acquire my jurisdiction in the matter and the conviction based on their finding is therefore bad in law and without jurisdiction. Following that authority we must come to the conclusion that Ghulam Muhammad's detention is illegal and improper. Learned Advocate-General in this case too raised the same objections which he raised in the application referred to above that the jurisdiction of this Court was barred under section 60 of the F. C. R. and also because the accused person has a remedy open to him by way of Revision under that law. We have discussed these points too at some length in that judgment and have held that the jurisdiction of this Court to entertain applications under section 223-A of the Government of India Act is not barred on account of the reasons stated above. There is a slight difference in this case and the one in which we have given detailed judgment and it is this that here on the application made by Ghulam Muhammad on that behalf the Revenue and Divisional Commissioner, in the capacity of a Commissioner has revised the order of the Deputy Commis sioner and maintaining the conviction only under section 909 Pakistan Penal Code has remitted the sentence of imprisonment, Ghulam Muhammad now stands fined under section 409 Pakistan Penal Code only. We have dealt with this point too in that judgment and have held that there is no remedy given to the accused person. Sections 49 and 50 of the F. C. R. only give the powers of superintendence over the Deputy Commissioner to the Commissioner which can under no circumstance be said a remedy open to the convict. This fact also, therefore does not make any difference or make the order which is otherwise illegal and without juris diction as legal and within jurisdiction. All the three petitions, are for the reasons given accepted and liberty restored to Ghulam Muhammad. He was released by one of us on bail by depositing Rs. 5,500 in Court which he did. Now that he is freed he is entitled to get this money back. It should be refunded to him. Parties to bear their own costs. Orders announced. A. H Petitions accepted.