P L D 1963 (W (PLP)

2. It would appear from the facts disclosed in the petition that the Frontier Crimes Regulation was repealed by section 34 of the West Pakistan Criminal Law Amendment Act, 1963, except in its application to the tribal areas. The West Pakistan Criminal Law Amendment Act, 1963, came into effect from lath April 1963.

3. The main contention of Mr. Brohi, the learned Advocate for the petitioners, was that the order of the Deputy Commis sioner dated the 25th April 1963, was illegal and ineffective in law as the same was passed after the repeal of the Frontier Crimes Regulation. There is much force in this contention.

4. In order to appreciate the contention of the learned Advocate for the petitioners it would be useful to reproduce sub section (1) of section 11 of the Frontier Crimes Regulation. It runs as under :‑ "11. (1) Where, in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any several persons so accused, should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner may or if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council‑of‑ Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person. The members of the Council‑of -Elders shall, in each case, be nominated and appointed by the Deputy Commissioner." A fair analysis of the above provision would come to this :‑ (1) that in the first place the Commissioner must be of the opinion that it is expedient that the question of the guilt or innocence of any person accused of any offence should be tried by a Council‑of‑Elders ; (2) that he may direct the Deputy Commissioner to refer the question to the decision of a Council‑of‑Elders ; (3) that the Deputy Commissioner shall on such a direction refer the question to the decision of a Council of Elders. On the face of the above provision of the law it was contended by Mr. Brohi that the Commissioner may be said to have given his direction to the Deputy Commissioner before the 19th April 1963, but the Deputy Commissioner did not refer the question before 19th April 1963. He did so on 25th April 1963, a date after the commencement of the West Pakistan Criminal Law Amendment Act, 1963. Mr. Abdul Kadir Shaikh, the learned Additional Advocate‑General very strenuously contended that it was sufficient compliance of the law that the Commissioner had expressed his opinion and given his direction to the Deputy Commissioner to refer the question to the decision of a Council of‑Elders. He further contended that the fact that Deputy Commissioner did not issue the requisite order before the 19th April 1963, would make no difference so far as subsection (1) of section 11 of the Frontier Crimes Regulation is concerned. There is not much force in the submission of the learned Additional Advocate‑General. The best that can be said ire favour of his submission is that it is a possible interpretation. It is a well‑settled principle of interpretation of a penal statute that where two interpretations are possible the one in favour of the accused should be accepted. In this case the interpretation favourable to the accused, namely, that subsection (1) of section 11 contemplates that there should not only be an order of the Commissioner but same should be followed up by the order of the Deputy Commissioner referring the question to the decision of a Council‑of‑Elders. In this view of the matter the order passed by the Deputy Commissioner on 25th April 1963, is of no legal consequence as the same was passed after the West Pakistan Criminal Law Amendment Act, 1963, came into force.

5. Mr. Brohi has also contended that the intent of the Legislature was that after coming into force of the West Pakistan Criminal Law Amendment Act, 1963 the legal effects of the Frontier Crimes Regulation should not be kept alive, namely, the order passed by the Commissioner could not be further implemented by the order of the Deputy Commissioner after the repeal. It is not necessary to decide this point in view of the decision that I have already given that the order of the Deputy Commissioner cannot be said to have passed under subsection (1) of section 11 of the Frontier Crimes Regulation as the same was passed after its repeal.

6. For the reasons given above, I would declare invalid the order passed by the Deputy Commissioner on 25th April 1963, referring the case pending against the petitioners to the Council- of‑Elders. K. B.A. Petition accepted.