P L D 1961 (W (PLP)

CONSTANTINE J.

The petitioner was tried by a Jirga for murdering his wife by poison. The Jirga's verdict of acquittal was accepted by the Deputy Commissioner, but in revision the Commissioner passed the following order dated 16-11-1961: "I have perused the record. The Jirga have examined only the parents (father and mother) of the deceased and they have both charged Firdaus and Faqir for the murder of their daugh ter. The three D.Ws. examined by the Jirga have stated that the accused are innocent. The Jirga on the basis of only this much enquiry held the accused innocent. There is note on the order sheet dated 3-11-59, that spot will be inspected but it is not given in the order-sheet dated 17-11-59, that the spot was actually inspected nor is, there any mention of this fact in the award of the Jirga. Being, a case of murder of an innocent woman the Jirga should have gone deeper into the case of guilt or innocence of the accused. The Jirga it may be men tioned expressed strong suspicions against one Nasiruddin who is alleged to have administered poison to the deceased ; as a result of his daughter's illicit connection with Firdaus accused ; and this Nasiruddin has been challaned on their recommenda tion and is standing trial., under the Jirga. Nasiruddin has lodged a revision petition against his arrest; but since the two cases are inter-connected and arise out of the same incident, I would like the tw6 set of persons to be tried by one Jirga. I therefore accept the revision `petition of Gul Rehman, set aside the order 'of Deputy Commissioner and remand- the case for trial of the accused today separately on the revision petition of Nasiruddin: Nasiruddin will also be tried by the same Jirga.", The petitioner was tried again by jirga, and having been convicted and sentenced he has preferred a writ petition seeking to set aside the Commissioner's order of retrial. He founds his petition upon judgment of a Division Bench sitting in Peshawar which held in W. P. 35/61 (unreported) that an order of the same Commis sioner dated 18-1-61 was passed without jurisdiction. That order of 18-1-61 passed in revision in another case of acquittal by a Jirga, and it is sufficient to say that we cannot distinguish that order from the order impugned in the present writ petition. In both cases the Commissioner condemns the inquiry made by the Jirga as inadequate and orders further inquiry and trial no formal statement is made that he is of the opinion that the inadequacy of the enquiry constitutes a material defect in the proceed ings.

2. This writ petition was first heard by a single Judge who referred it to a Division Bench, having formed a tentative opinion that it was liable to dismissal on certain grounds as to which we do not propose to express an opinion. The Division Bench doubting the Judgment in W. P. 35/61 considered that the reasoning of that judgment should be reviewed by a Full Bench.

3. It is common ground that the question relates to the construction of section 50 of the Frontier Crimes Regulation, 1901 which reads: "The Commissioner may, in the exercise of his revisional jurisdiction in any criminal proceeding, exercise the power to direct tender of pardon conferred by section 338, and any of the powers conferred on an Appellate Court by sections 195, 423, 426, 427 and 428 of the Code of Criminal Procedure, 1898, and may also enhance any sentence: Provided that nothing in this Chapter shall be deemed to authorise the Commissioner to set aside the finding on any question of fact of a Council-of-Elders, where such finding has been accepted by the Deputy Commissioner, unless he is of opinion that there has been a, material irregularity or defect in the proceedings or that the proceedings have been-so conducted as to occasion a miscarriage of justice." The judgment in W. P. 35/61 after setting out this section proceeds: "The powers of the Commissioner under this section are fetter ed. He can set aside a finding of fact of the Council of Elders accepted by the Deputy Commissioner only when he is of the opi nion that there has bean a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice." The Commissioner, by his order dated the 18th of January 1961, has not held that in his opinion there had 'been "a material' irregularity or a defect in the proceedings or that the proceedings have been so' conducted as to occasion a miscarriage of justice:" In our view, section 50 of the Frontier Crimes Regulation did not apply to the facts of the case before the Commissioner. We accordingly hold that the order of the Commissioner dated the 18th of January 1961, is without jurisdiction and therefore null and void. Order accordingly". The words "is of the opinion are underlined in the original.

4. We agree unless the Commissioner is of the opinion required by the section he is barred from setting aide (as he did in both cases) a finding of fact, and that such an order, unless based on such an opinion, is bad in law. We understand the judgment in the third and fourth sentences quoted to mean that the Commissioner had failed to express the requisite opinion, and that even if he had done so, no material irregularity or defect had occurred to justify such an opinion.

5. The questions that arise are :- (1) whether section 50 of the Act requires a formal expression of opinion (2) whether. a reading of the Commissioner's order shows that he had formed an opinion as to on f the requisite matters ? (3) whether adequacy of inquiry" in I amount to a material irregularity or defect in proceedings (4) whether the Court in writ jurisdiction can substitute its own opinion for that of the Commissioner on the question whether an inquiry has been adequate or not ?

6. Our answers are (1) no (2) yes (3) It can (4) no. 7. (1) We drew the attention of counsel to Lord Uthwatt's judgment in Hubli Electricity v. Province of Bombay (PLD 1948 PC 295). The section under consideration ran: "4. (1) The Provincial Government may, if in its- opinion the public interest so requires, revoke a licence in any of the following cases namely- (a) where the licensee in the opinion of the Provincial Govern ment makes wilful and unreasonably prolonged default in doing anything required of him by or under this Act". How it is true that strictly speaking a decision construing one document cannot be conclusive on the question of construction of another document, but it was held in that case that the section did not require a formal expression of the opinion referred to in the Act : it was sufficient that Government in its letter had left the recipients of the letter in no doubt but that Government was founding itself on the section and entertained the opinion as to public interest and the default. We think that there is nothing in section 50 which can or should be construed as a mandatory provision that the Commissioner must express the q requisite opinion totidem verbis. It is sufficient if a fair reading of his order makes it clear that he has in fact formed the necessary opinion. 8. (2) That the Commissioner in fact entertained the opinion that the inadequacy of inquiry was a material defect in the proceedings appears clear. He has not disagreed with the finding because it was unjustified by the evidence, he has disagreed because he considered the Jirga should have obtained more evidence. To hold that, because he has not in so many word said that inadequate inquiry constituted a m aerial defect, in fact he did not entertain this opinion amounts to holding that this revisional authority was ignorant or unobservant of section 50 or deliberately flouted it, and we certainly are not prepared to impute such conduct to an officer to whom Government has entrusted revisional powers under the F. C. R. 9. (3) Section 11 of the F. C. R., provides that the jirga should come to a finding on the question of guilt or innocence "after such inquiry as may be necessary and after hearing the accused person." In Samundar v. Crown (PLD 1954 FC 228) the difference between the administrative inquiry of a jirga and a judical trial by an ordinary criminal Court was pointed out it was then stated "in the absence of any rule the accertainment of material irregularity or defect except perhaps in cases where there has been no inquiry at all or the accused person has not been heard, it all would vary according to the opinion of the particular Commissioner in relation to each particular case." It is true, as was pointed out by the Privy Council in the case cited above, that the area of opinion may be limited : the question for instance in that case what obligations are imposed on a licensee by or under the Act was a question of law as to which Government was not an arbiter and had its view on this question been wrong it could have been corrected by a Court of law. The mode of inquiry by a jirga is not regulated by laws a jirga unlike a criminal Court is-both investigator and judge : it not only hears evidence but it also discovers evidence. We can see no legal impediment to the Commissioner's view that a failure to investigate diligently is a material defect in its proceed ings. 10. (4) Whether the jirga made sufficient or insufficient inquiry is a question. of fact beyond the reach of this Court exercising its writ jurisdiction. Moreover the statute has left the matter to the opinion of the Commissioner, and using the words of Lord Uthwatt, we are unable to see that there is any thing in the language of the section or in the subject-matter to which it rehates upon which to found the suggestion that the opinion of the Commissioner is to be subject to objective tests.

11. Lastly, it remains to say that neither mala fides not failure to observe the rules of natural justice has been pleaded or advanced in argument.

12. We therefore dismiss the petition: A. H. Petition dismissed