P L D 1957 (W (PLP)

S. A. RAHMAN, C. J.‑--This order will dispose of Writ Petitions Nos. 17 and 19 of 1957. In the first case, Malik Toti Khan petitioner was held guilty of instigating the murder of one, Zarif, by Sher Jan, and Mehrban Khan petitioner of complicity in the said offence, by the District Magistrate and Deputy Commissioner, Sibbi, on the basis of an award of a Special Jirga. Sher Jan, the principal culprit, was sentenced under section 302, P. P. C., to seven years' rigorous imprisonment and a fine of Rs. 500 or in default 2p years' rigorous imprisonment further. Malik Toti Khan and Mehrban Khan were both convicted under section 302 read with section 109, P. P. C., and sentenced to five years' rigorous imprisonment plus a fine of Rs. 500 each or in default rigorous imprisonment for 2J years each further. The petitioners preferred a revision petition to the Commis sioner, Quetta Division, which is still pending. In the second case, the Sub‑Divisional Magistrate, Quetta, after holding a preliminary inquiry on the complaint of Ghulam Nabi Shah respondent against Chiragh Shah petitioner, and two others under section 497/498, P. P. C., has made a recommendation to the Deputy Commissioner and District Magistrate, Quetta, for reference of the case to a Council of Elders under the Frontier Crimes Regulation III of 1901. In both cases the provisions of the Regulation enabling the District Officers to refer a criminal case to a Council of Elders have been challenged as repugnant to Article 5 of the Constitution, and therefore, void. The two cases can, therefore, be conveniently disposed of together as the same constitutional point is involved in both. The Frontier Crimes Regulation, 1901, was in the first instance, applied to the Agency Territories by a Notifica tion of Foreign Department of the Government of India. No. 2976 , dated the 1st November 1901. It was extended to British Baluchistan by Chief Commissioner's notification No. 9350 of the same date. It is with certain modifications now in force in the Baluchistan area under Regulation 11 of 1913 as amended by Regulation XV of 1936. It applies to the Tribal Areas (now called Special Areas) of the Kohlu Tahsil, the Loralai District, the Zhob District, the Delbandin Tahsil, and the Marri and Bugti country under External Affairs Department notification No. 28‑Fed. 1, dated the 3rd May 1937, as amended by External Affairs Department notification No. 214‑F, dated the 30th August 1938, and to the Leased Areas of the Quetta District, the Nasirabad Tehsil, the Bolan, Nushki and Kachhi Railway District, and the Nushki Tahsil under Political Department notification No. 56‑Fed. 1, dated the 3rd May 1937. This Court's jurisdiction has been excluded from Special Areas by a specific provision in the Constitution embodied in Article 178 till such time as the Parliament by Law otherwise provides. The present two cases, however, do not pertain to any of these Special Areas. The preamble to the Frontier Crimes Regulation, 1901, is in the following terms:‑ "Whereas it is expedient further to provide for the suppression of crime in certain frontier districts. It is hereby enacted as follows". The object of the enactment may, therefore, be taken as suppression of crime in certain frontier districts. Subsection (4) of section 1 of the Regulation provides that sections 1 to 5, 10, 20, 21, 26, to 28, 31, 32, 36, 37, 56 and 60 to 64 are of general application, but the remaining section may be enforced in whole or in part, as the case may be, only against Pathans and Baluchis, and against such other "classes" as the local Government may, by notification in the Local Official Gazette, declare to be subject thereto. Subsection (5) further lays down that a notification under sub-section (4) may declare a specific class only to be subject to all or any of the pro visions of this Regulation in a district or part of a district. To these two subsections is appended an explanation which may be reproduced with advantage. "The word 'Class', as used in subsections (4) and (5) included any persons who may be collectively described in a notification under this section as persons subject to all or any of the provisions of this Regulation." In section 2 a "Council of Elders" is defined as meaning a Council of three or more persons convened according to the Pathan, Baluch or other usage as the Deputy Commissioner may in each case direct. Section 3, inter alia, declares that the provisions of the Regulation shall take effect in cases to which they apply, notwithstanding anything in any other enactment. Section 11 bears on criminal references to f Council of Elders. It reads as follows: "11. (1) Where in the opinion of the (Chief) Commissioner or Deputy Commissioner, it is in expedient that the question of the guilt or innocence of any person or person accused of any offence or of any of 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 (Chief) 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. "(2) Where a reference to a Council of Elders is made under subsection (1), the names of the members shall, as soon as may be, be communicated to the accused person and any objection which he may then make to any such member shall be recorded. The Deputy Commissioner shall consider every objection made by an accused person under this subsection, and may, in his discretion, either accept or reject the objection: provided that, in the latter case, he shall record his reason for so doing. (3) On receipt of the finding of the Council of Elders under this subsection, the Deputy Commissioner may‑ (a) remand the question to the Council for a further finding; or (b) refer the question to a second Council; or (c) acquit or discharge the accused person or persons, or any of them; (d) in accordance with the finding on any matter of fact of the Council, or of not less than three‑fourths of the members thereof, convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty; Provided that a person discharged under clause (c) shall not be liable to be retried for any offence arising out of the same facts after the expiry of two years from the date of such discharge." Section 12 deals with punishment that can be inflicted on conviction based on the finding of a Council of Elders. Such punishment may include a sentence of fine or a sentence of imprisonment which may, in certain cases, extend to transport ation for a term not exceeding fourteen years and a sentence of whipping, subject to certain other limitations which are not material for our purpose. Section 14 permits the Commis sioner or the Deputy Commissioner to withdraw a case committed to the Court of Session at any time before the trial in that Court has commenced and in cases pending before any inferior Court at any time before an order of conviction or acquittal has been made and to refer it to a Council of Elders. Even during the trial of a case by the Court of Session, the Public Prosecutor may, if instructed in writing in that behalf by the Commissioner or Deputy Commissioner, at any time before an order of conviction or acquittal has been made with respect to any accused person, withdraw from the prosecution of such person in order that the case may be referred to a Council of Elders under section 15. Section 16 further makes it clear that the powers conferred by section 11, as limited by section 14, may be exercised against, and the withdrawal of a prosecution under section 15 may have reference to, one or some only of two or more persons jointly accused of an offence. Section 17 authorises the Deputy Commissioner, if he thinks fit, at any time to reconsider and set aside any order under the Regulation direction a reference to a Council of Elders, or refusing to make such a reference. Section 19 requires the Deputy Commissioner, when he passes a sentence of fine exceeding Rs. 200 or imprisonment exceeding three months or of transportation, to make a record of the facts of the case of the offence committed and of his reasons for passing the sentence. Under section 40, the Commissioner or the Deputy Commissioner may put a person on security or under surveillance for the prevention of murder or culpable homicide not amounting to murder or the dissemination of sedition, on the recommendation of a Council of Elders. Similarly, under section 41, security for indenical purposes may be demanded from families or factions in case of blood feud, on the recom mendation of a Council of Elders. It is contended on behalf of petitioners in both the cases that these provisions of the Regulation offend against the equality‑before‑law clause embodied in Article 5 of the Constitution, and to the extent of this inconsistency, it is suggested, they should be declared to be void under Articles 4. The equality‑before‑law clause of the Constitution has been the subject of interpretation by the Supreme Court in Jibendra Kishore etc., v. Province of East Pakistan (P L D 1957 S C (Pak.) 9). In that case the East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), was assailed as ultra vires of the Constitution. That enactment enabled the Provincial Govern ment to acquire by notification in the official gazette, all interests of such of the rent‑receivers as were specified in that notification and also in similar manner, all or any of the lands in the khas possession of such rent‑receivers, on payment of compensation on a prescribed scale. The Provincial Government, in pursuance of the provisions of that enactment, issued notification from time to time relating to particular rent‑receivers' interest. Writs of mandamus or in the nature of mandamus were asked for from the High Court at Dacca against the action of the Provincial Govern ment on the strength of Article 5 of the Constitution. The principal ground of attack was that the Government was enabled by the Act to pick and choose rent‑receivers whose interests mere to be acquired and gave a naked and arbitrary power capable of being used in a discriminatory manner contrary to the provisions of Articles 5. The Dacca High Court repelled all the constitutional objections to the notifica tions but the case of acquisition of land in the khas possession of managers of waqf and debutter properties, rules nisi issued earlier were made absolute on the ground that the notifications contravened the provisions of section 20, of the Act. The rent‑receivers thereupon went up in appeal to the Supreme Court. It was contended there that sections 3 and 37 of the Act were void, the former because it conferred upon the Provincial Government an arbitrary power to pick out for expropriation any rent‑receiver that it liked and could thus lead to discrimination between one rent‑receiver and another, and the latter because it provided different rates of compensa tion for rent‑receivers with different amounts of net income. It was found by the Supreme Court that sections 3 and 37 of the Act did not offend against Articles 5 and, so far as wagf and debutter properties were concerned, against Articles 18 of the Constitution and they could not, therefore, be held void or inoperative. In the course of the judgment, however, the learned Chief Justice' of Pakistan made the following important observations at page 38 of the published report:-- "One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalization more frequently stated is that the guarantee of equal protection of the laws required that all persons shall be treated alike, under like circumstances and con ditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or things is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such cases, it is said to demand from the Legisla ture a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act, it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant con siderations, such as difference in race, colour or religion, will certainly be rejected by the Courts." The learned Chief Justice held on the facts of that case that there was a reasonable classification in the impugned enact ment concerning landlords on the basis of their net income at the time of their expropriation. The above observations were followed by this Court in a Division Bench Judgment reported as Bazal Ahmad Ayyubi v: The West Pakistan Province (P L D 1957 Lah. 388) in connection with a constitutional attack on certain provisions of the Punjab Control of Goondas Act (XIV of 1951). The present case has also to be Judged in the light of the dictum of the learned Chief Justice of Pakistan. Reading subsection (4) of section 1 with section 11 of the Regulation, it becomes fairly obvious that the enactment singles out Pathans and Baluchs, primarily, for action under the relevant provisions of the Regulation which may also be applied by a Notification to a group of persons who may be specified as a class in a Notification issued by the Provincial Government. However, such a class need not be a well -defined class as normally understood because of the Explana tion appended to subsections (4) and (5) of section 1. The executive Government may choose to describe any group of persons mentioned in the notification as a class. That the incidents of a trial by a jirga (Council of Elders) are vastly different from those of a judicial trial in a Court admits of no doubt. The differences between the two modes of trial were amply brought out a judgment of the Federal Court in Samundar v. The Crown (P L D 1954 F C 288). In that case a petition for special leave for appeal to the Federal Court against an order passed by the Commissioner under section 50 of the Frontier Crimes Regulation was held to be not maintainable princi pally on the ground that an order of that character could not be regarded as having been made judicially by a Court of law. It was pointed out by a majority of the Judges constituting the Bench who decided that case that the proceedings before the Deputy Commissioner and the Commissioner were not amenable to any rules which might be regarded as rule of `due process' or `best evidence' and it was impossible for the Federal Court to apply any principles, whatsoever, which may possess the slightest validity for judging the correctness or otherwise of their decisions. The authorities from whose decisions an appeal was sought to be brought before the Federal Court, it was pointed out, were practically free from all rules of procedure. It was emphasised that an inquiry by a Council of Elders or a jirga was not hidebound by any rules of evidence and they could even make open and secret inquiries. It is well known that no record of evidence is kept by the jirga (Council of Elders) in most cases and the normal procedure of cross‑examination of witnesses by Council is not available to the accused in such cases. It is only recently that a ruling was given by this Court that an accused person even in a trial by a jirga, is entitled to the benefit of defence through counsel because of the provisions of our new Constitution, vide Khair Muhammad Khan v. The Government of West Pakistan (P L D 1956 Lah. 668). The incidents of a jirga trial have been commented upon at page 670 of this report in the following words: "Although there is a green book of instructions which says, among other things, that the accused should be present before the Council of Elders at all stages of the trial, we are not sure that a contrary practice is not prevalent and is not observed in most cases and this is not contrary to the Regulation which merely requires that the Council should "come to a finding" on the question of guilt or innocence of any person `after such inquiry as may be necessary and after hearing the accused person'. The Regulation will be satisfied if the accused has been heard once. On receipt of the finding, the Deputy Commissioner may convict, acquit or discharge the accused person and there is no provision that he cannot do so without hearing the accused. In practice even the Council holds what are called secret and open inquiries. It examines witnesses informally and visits the spot or its neighbourhood of a incognito, to ascertain the truth. The very essence of a jirgah trial is that it is unencumbered by the law of evidence the rules of procedure and the cross‑examination of a legal practitioners." It, therefore, follows that a person whose case has been referred to a jirga for trial is deprived of the ordinary methods of defence available to a person tried for an offence by a regular Court of law. Although in certain instances, for example, in a murder case, he may receive a lower punishment than might be inflicted by a Sessions Judge, yet the process by which the final result is arrived at may be highly pre judicial to an accused person in a jirga trail when judged in the light of accepted canons of a fair trial. It cannot be held that the classification mentioned in the Regulation for applica tion of the relevant provisions is a rational or reasonable one. It is based principally on racial or tribal considerations and, to the extent that there is provision for other classes being added to the Pathans or Baluchs for attracting the provisions of the Regulation, the classification may be wholly arbitrary and capricious at the sweet‑will of the executive. In my opinion, therefore, the provisions are ex facie discriminatory and do not rest on any classification such as could take the enactment out of the mischief of Article 5 of the Constitution. It is also apparent that not only is there no reasonable classification of person whose cases may be referred to a jirga but that the executive authorities have been given an unfettered discretion in the choice of persons belonging even to Baluch or Pathan tribes as to whether their cases should go to a regular Court of law or to a jirga. This discrimination may be exercised in respect of any one or more of a group of accused being tried jointly in a regular Court of law. Such arbitrary discretion is hit by the rule laid down by the Supreme Court in Waris Meak v. The State (P L D 1957 S C (Pak.) 157). On this ground, therefore, also in the circumstances of these cases, the provisions of the Regulation outline above should be held to be repugnant to Article 5 of the Constitution. There is no guiding principle prescribed by which the discretion of the executive authorities as regards the choice of forum is to be regulated. The above provisions of the Regulation, therefore, to the extent that they permit arbitrary the cases of persons belonging to the Pathan or Baluch tribes or of any individual member of such tribes to be referred to a jirga, and ultra vires of Articles 5 of the Constitution and must be declared to be void under Article 4 thereof. The result achieved is parallel to that arrived at in respect of Civil references to a Council of Elders under the Regulation, by this Court in Abdul Akbar Khan's case (P L D 1957 Pesh. 100 (F B)) and there is almost parity of reasoning in that case and the present one. I recognise that this decision may cause difficulties to the administration in Baluchistan area where I understand that a sufficient number of judicial tribunals does not exist nor is adequate machinery for police investigation of criminal cases in existence. Such considerations, however, would be irrelevant when we are adjudicating on the effects of the fundamental rights guaranteed by the Constitution. The remedy lies obviously with the Legislature or with the execu tive authorities who can make good the deficiencies of the administration The argument of inconvenience, cannot be allowed to override the constitutional provisions guarantee ing fundamental rights to all citizens of Pakistan. The upshot of the above discussion is that in the first case the convict‑petitioners' convictions and sentences must be set aside by issue of a writ of certiorari and I would order accordingly. These petitioners must be treated henceforth as undertrial prisoners only and it would be for the executive authorities to decide whether to prosecute them in regular Courts of law for the offences they are alleged to have committed, or not. In the second case, I would issue a direction that the petitioner's case shall not be referred to a Council of Elders, but it would be open to the authorities concerned to put him up for trial before a regular Court of law. As difficult questions of law were involved in these two cases. I would leave the parties to bear their owns costs. YAQUB ALI, J.

‑I agree. K. B. A. Petition accepted: Writ issued.