P L D 1964 (W (PLP)

S. A. MAHMOOD, J.‑On the 22nd of September 1961, at the instance of Karim Bakhsh, a case under section 366, P. P. C. was registered against Mir Sajjad Hussain petitioner at Police Station Kot Sabzal for abduction of Mst. Maryam, wife of Karim Bakhsh. An incomplete challan against the petitioner under sections 366 and 364, P. P. C. was rut in the Court of a Magistrate 1st Class at Sadiqabad, but the case was transferred in January 1962, to the Court of the Additional District Magistrate, Rahimyarkhan. It remained pending in the Court until the 19th of January 1963, when the District Magistrate, acting under section 11 of the F. C. R. withdrew the case from the Court of the A. D. M. and referred it to a Jirga consisting of four persons. The accused was directed to appear before the Jirga on the 28th of January 1963. The evidence of the witnesses was to be recorded by the Jirga on the 21st of August 1963, but the case was adjourned on that day without any evidence being recorded to the 3rd of September 1963. On the 26th of August 1963, Mir Sajjad Hussain, petitioner, filed this writ petition praying that a writ of prohibition or other appropriate writ may be issued to the respon dents, namely, the members of the Jirga to refrain from assuming jurisdiction in the case against him as they had no power vested in taw to proceed with the case, which had to be tried by an ordinary Criminal Court in accordance with the law of the land. This contention is based on the ground that the F. C. R. having been expressly repealed on the 19th of April 1963, by section 34 (1) of the Criminal Law Amendment Act, 1963, the Jirga procedure could not be continued and had to be replaced by the procedure provided in the Code of Criminal Procedure. 2. In paragraph 9 (a) of the petition, the petitioner stated that repeal of the F. C. R. by section 34 (1) of the Criminal Law Amendment Act, had the effect of divesting it of all its legal powers as a legal forum. In sub‑paragraph (b) that the saving clause in section 34 (2) of the Act protected only vested rights of the parties but did not effect the introduction and application of procedural law, as envisaged by the repealing Act, and immediately after the promulgation of the Criminal Law Amendment Act, 1963, the whole procedure under the F. C. R. was rendered void, and the new procedure provided by the Criminal Law Amendment Act had to be followed with regard to the categories of offences mentioned in its Schedule; but because the offences charged were not mentioned in the Schedule, the offences could not be tried under the Criminal Law Amend ment Act and had to be tried only by the ordinary criminal Court. 3. For the purposes of the decision of the question raised, it is necessary to refer to section 34 of the Criminal Law Amendment Act, 1963, which repealed the F. C. R. It enacts as follows:‑ "(1) The Frontier Crimes Regulation, 1901, is hereby repealed, except in its application to the Tribal Areas. (2) For the removal of doubts, it is hereby declared that the provisions of section 4 of the West Pakistan General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regulation, 1901." Thus subsection (2) of section 34 expressly made applicable the provisions of section 4 of the W. P. General Clauses Act, to the repeal of the F. C. R. Section 4 of the General Clauses Act, 1956, provides as under:‑ 4. Effect of repeal.‑(1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not‑ (a) revive anything not in force or existing at the time at which the repeal takes effect? (b) Affect the previous operation of any enactment so repealed or anything done or suffered thereunder; or (c) Affect any right, privilege, obligation or liability acquired, accrued or incurred tinder any enactment so repealed; or (d) Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) Affect any investigation, legal proceeding or remedy in respect of any such fight, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid: and any such investi gation, legal proceeding or remedy may be instituted, continued, or enforced; or any, such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed. (2) The provisions of subsection (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor under section 88 of the Government of India Act, 1935, as if it has been repealed by a West Pakistan Act." The repeal of Frontier Crimes Regulations brought into operation section 4 of the W. P, General Clauses Act, and subsection (2) of section 34 of Criminal Law Amendment Act, 1963 makes it doubly clear that the provisions of section 4 of West Pakistan General Clauses Act shall apply to the repeal. In view of clause (e) of section 4 (1), the repeal shall not affect any legal proceedings in A respect of any liability and such legal proceedings may be continued and punishment may be imposed as if the repealing Act had not been passed: There is, therefore, no manner o doubt that the effect on the repeal of Frontier Crimes Regulation was intended to enable eases referred to Jirgas to be continued and concluded as if the F. C. R. had not been repealed. 4. The contentions raised by the petitioner in paragraph 9 of the petition are wholly untenable. There is no force in the contention that the effect of repeal was to divest the Jirga of all legal powers in respect of this case, nor can it be said that the promulgation of the Criminal Law Amendment Act rendered the procedure of F. C. R. void. The F. C. R. in fact, does not provide any set procedure for the trial of offences referred to the Jirga. The learned counsel for the petitioner referred us to the Full Bench decision Muhammad Bashir v. The Province of West Pakistan and another (P L D 1958 Lah, 853) but the facts of that case are wholly different. In that case after a finding of the Council‑of‑Elders, the petitioner was convicted by the Deputy Commissioner under section 302, P. P. C., and sentenced to fourteen years' rigorous imprisonment on the 14th of March 1956. The sentence was subject to confirmation by the Commissioner, who confirmed it on the 28th of July 1956. Meanwhile, the Constitution of 1956 came into force on the 23rd of March 1956, and by reason of its Articles 4 and 5, sections 11 and 12 of the Regulations were rendered void. It was held that there being no vested right in procedure, there was no corresponding liability, and if that procedure was rendered void by the Constitution, it might be abandoned immediately in favour of the procedure which was valid. In this very case Kayani, C. J., observed that in order that section 6, General Clauses Act (X of 1897) (which correspond to section 4 of West Pakistan General Clauses Act, 1956), should have effect, the case must be expressly one of repeal. 1n the case of F. C. R. there is express and intentional repeal by the Legislature, and section 4 of West Pakistan General Clauses Act effect clearly governs the case, and its provisions must be given full 5. It Is the petitioner's own case that the offences charged are not triable under Criminal Law Amendment Act, and, consequently, there is no question of the procedure in the Criminal Law Amendment Act superseding or changing the so‑called procedure under the F. C. R. There is no set procedure under the F. C. R. and no change in its procedure has been brought about by the Criminal Law Amendment Act, 1963. By the express repeal of the F. C. R., the clear intention of the Legislature Is that the cases which have been referred for trial to Jirgas under the F. C. R., should be decided by the Jirgas according to the F. C. R., which has not been rendered void by any provision in the Criminal Law Amendment Act. If the F. C. R. had been rendered void, the offences could be tried by the ordinary Courts under the ordinary procedure provided In the Code of Criminal Procedure, as held in the above noted case but in view of the repeal by subsection (1) of section 34 of the Criminal Law Amendment Act, and the clear provision in its subsection (2) there is not the least doubt that the case which has been referred to the Council‑of‑Elders can be dealt with and decided by the Jirga. 6. For the reasons given above, the trial of the offences by Jirga is neither illegal nor is incompetent. We, therefore, dismiss the writ petition with costs. K. B. A. Petition dismissed.