P L D 1955 Peshawar 58 (PLP)

MUHAMMAD SHAFT, J.

This Judgment will dispose of Miscellaneous Application No, 30 of 1954 by Taus son of Jallandar, No. 31 of 1954 by Samundar son of Jallandar both of Lahore and No. 43 of 1954 by Amir Ghazi son of Rasool Ghazi of Rawalpindi for their immediate release from public custody on the ground that their detentions in Central Jails, in the case of the first two in Peshawar and in that of the third in Dera Ismail Khan, ostensibly as convicts under section 12 of the Frontier Crimes Regulation III of 1901, were illegal and fraud on the statute. All the three applicants were indicted for having committed offences under section 372, 376, 366 and 363/109 of the Pakistan Penal Code. Since the girls involved in each case were different, three different cases were set up. In the case of Taus, it was alleged that he along with one Mohamdullah had sold one Mst. Nur Farzana daughter of Mirdad aged about 17/18 years of Swat to Dadar son of Amit of Peshawar City for the purposes of prostitution. One Mst. Sardaro, her husband Aziz and one Chaudri Fateh Mohammad were said to have abetted the offence. As regards Sarntindar, it was stated, that one Misri son of Gajmot of Swat had sold one Mst. Shahzadgai aged about 18/19 years to him and one Mst. Roshanjana wife of Said Gul for immoral purposes: Chaudhri Fateh Mohammad was accused of abetting this offence too. The third applicant namely Amir Ghazi was charged for having abetted the sale for the purposes of prostitution of one Mst. Shahtrina by one Janjoor and Faizullah to Sardar Gul son of Abdul Rehman and Abdul Wahid son of Khanizaman. On the 29th of January, 1953, Deputy, Commissioner Peshawar, purporting to act under section 11 of the Frontier Crimes Regulation, referred the question of the guilt or innocence of all the persons named in the preceding paragraph to the decision of the Council of Elders by passing three different orders. He laid down six definite points in each case on which the members of the Council of Elders were required to hold enquiry and submit the report to him. By three separate orders recorded on the 11th of- February, 1953, Deputy Commissioner Peshawar first nominated and, when the accused did not object to their nomination, then appointed Mr. S. A. M. K. Mazari Assistant Commissioner Nowshera, Sayed Darbar Ali Shah, Assistant Commissioner Sadar Peshawar and Mohammad Ayub Khan Assistant Commis sioner Peshawar as the members of the Council of Elders. In the case against Taus and others, these three officers recorded the evidence of three witnesses and the statements of the four accused on the 24th of February, 1953, and then adjourned it to some other date which is not mentioned on the record. In the other two cases no proceedings seem to have been taken by these three gentlemen at all. The three cases were then taken up together on the 10th of March, 1953, when the three sets of accused in their joint statements recorded by the members of the Council of Elders are said to have stated that they had no objection to the appointment of M. Aslam Abdullah Khan City Magistrate Peshawar as a member of the Jirga. The statements, it is not denied by the learned Advocate-General, are signed by Sayed Darbar Ali Shah, M. Aslam Abdullah and Mr. Mazari. After this stage the proceedings were carried on in all the three cases by these three officers namely Sayed Darbar Ali Shah, Mr. Mazari and Mr. Aslam Abdullah. They examined the accused only in Samundar and Amir Ghazi's cases and not in the third case probably because in that case the accused had already been examined by Sayed Darbar Ali Shah, Mr. Mazari and Muhammad Ayub Khan. On the 13th of May, 1953, the Deputy Commissioner Peshawar wrote down the orders in all the three cases that Mr. S. A. M. K. Mazari and Mr. Aslam Abdullah had been transferred and were to be replaced. He nominated Khan Muhammad Ayub Khan and Mr. Muhammad Yunas Khan Sethi, the former at the time was the Assistant Commissioner Nowshera and the latter an Extra Assistant Commissioner, as the members of the Jirga in all the three cases. The accused persons did not object to their nomination and so they were appointed as such by the same order. It is significant to note that in these orders Deputy Commissioner Peshawar wrote the following :- "The accused have no objection to any of the above persons (Khan -Muhammad Ayub Khan and Muhammad' Yunus Sethi) who are hereby appointed as Jirga members to hold an enquiry and give a finding on the points raised in my order of reference, dated 29th January, 1953." These two officials did not record any evidence in the two cases against Taus and Samundar, etc., nor did they examine or hear the accused in them, but in spite of that, they, along with Sayed Darbar Ali Shah, submitted their awards in which, they, quite contrary to the facts, noted down, that during the enquiry they had recorded both the prosecution evidence and the defence evidence in addition to the statements of the accused: In the third case Sayed Darbar Ali Shah and Mr. Muhammad Ayub Khan recorded the evidence of numerous defence witnesses. They however did not examine any prosecution witnesses nor did they record the statements of the accused persons, but submitted an award along with Mr. Muhammad Yunas in which they noted down that during the enquiry they had as a matter of fact recorded the prosecution evidence along with the statements of the accused persons. On the 25th of November, 1953, Deputy Commissioner Peshawar announced orders in Taus's case and convicting him under section 372 Pakistan Penal Code read with section 12 of the Frontier Crimes Regulation sentenced him to seven years' R. I. In Samundar's case the orders were announced on the 2nd of December, 1953. He was also convicted under section 372 Pakistan Penal Code read with section 12 Frontier Crimes Regulation aid sentenced to 7 years' R. I. Amir Ghazi the third appli cant was convicted under sections 366/109 of the Pakistan Penal Code read with section 12 of the Frontier Crimes Regulation and sentenced to seven years' R. I. on the 23rd December, 1953. Now so far as the sentences passed on Taus and Samundar are concerned they are clearly opposed to the relevant law. Under section 12 of the Frontier Crimes Regulation, when a Deputy Commissioner convicts a person of any offence, except the offences mentioned in Second Schedule attached to the Frontier Crimes Regulation; he can pass upon him any sentence of fine but not that of imprisonment. Section 372 of the Pakistan Penal Code is not mentioned in the Second Schedule, and so the order of the Deputy Commissioner sentencing Taus and Samundar under this section to seven years' R. I. was illegal and bad in law. It is argued that this illegality was cured or set right by the Commissioner Frontier Crimes Regulation, who in the exercise of his Revisional powers set aside the sentence of imprisonment and imposed upon them a fine of rupee one each. So far the contention of the learned Advocate-General is correct but then the Commissioner convicted both Taus and Samundar under section 366 Pakistan Penal Code and maintained their sentences of seven years R. I. each under the new sections. Under section 50 of the Frontier Crimes Regulation, a Commissioner can exercise any of the powers conferred upon an appellate Court by sections 423, 426, 427 and 428 of the Code of Criminal Procedure, but in the exercise of these powers he is not authorized 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 the 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. In the case of Samundar applicant, the fidding of the Council of Elders was that he had purchased Mst. Shahzadgai from Misri accused and then sold her to Mst. Roshan Jana. It was not found by the members of the Council of Elders that this accused had either kidnapped or abducted Mst. Shahzadgai or any other person with the intention or know ledge as specified in section 366 of the Pakistan Penal Code. This finding of fact, viz., that Samundar was guilty under section 372 of the Pakistan Penal Code and not under section 366 of the same Code was accepted by the Deputy Commissioner, and so the Commissioner had no authority to set it aside and convict the accused under section 366/109 of the Pakistan Penal Code without at the same time arriving at the conclusion that there has been a material irregularity or defect in the proceedings or that the proceedings were so conducted as to occasion a miscarriage of justice. That the Commissioner did not arrive at this conclusion and in spite of that set aside the finding of the Council of the Elders on the question of fact is quite obvious from his order. The detention of Samundar, therefore, in the Central Prison Peshawar as a convict under section 366 of the Pakistan Penal Code is ultra vires and on this account alone he is entitled to be set at liberty. So far as Taus applicant is concerned, the finding of the Council of Elders was that he in company with one Mohamdullah had sold Mst. Nur Farzand to one Qadir for Rs.

500. This finding was accepted by the Deputy Commis sioner, who, as a result thereof, convicted him under section 372 of the Pakistan Penal Code and awarded him illegal sentence. In the award, the members of the Council of Elders at one stage did say that the accused had abducted the girl in question with the object of forcing her to illicit intercourse and prostitution, but they did not specify as to which accused out of the six had committed this offence. It was on-account of this that the Deputy Com missioner wrote in his order that charges under sections 366 and 363 of P. P. C. were vague and that it was not clear as to who actually was responsible for those offences. It, therefore, follows that the members of the Council of Elders did not find Taus guilty of the offence under sections 366 or 366/109 of the P. P. C. and their finding on this point was accepted by the Deputy Commissioner Peshawar and so the Commissioner was not authorized in law to set aside this finding and convict Taus accused under section 366 of the P. P. C. and sentence him to seven years' R. I. particularly when the Commissioner, as he in the capacity of an' officer passing an executive order should have done, did not, by words express or implied, indicate in his order that he was of the opinion that there had been material irregularity of t defect in the proceedings or that the proceedings had beer' so conducted as to occasion the miscarriage of justice. The custody in the prison of Taus under an illegal order of the Commissioner is thus bad and without jurisdiction. Otherwise, too, for the reasons which presently follow, we are firmly of the view that the detention of Samundar and Taus as well as that of the third applicant Amir Ghazi is completely unwarranted by law. The Deputy Commissioner or the Commissioner could not convict these persons under section 11 Frontier Crimes Regulation or sentence them to any term of imprisonment under section 12 until and unless there was a legal finding of a properly constituted Council of Elders that they have committed any particular offence. In all the three cases the Councils consisted of Government officials, which, as has been held by us in Miscellaneous Application No. 18 of 1954 (Hamesh Gul v. North-West Frontier Province Government) (P L D 1955 Pesh. 1.) was against the letter and spirit of the i Frontier Crimes Regulation and therefore bad in law. These Councils were; therefore, not properly constituted with the orders of the Deputy Commissioner and the Commissioner based on the findings of these Councils were equally bad and without jurisdiction. Again under section 11 Frontier Crimes Regulation the question of the guilt or innocence of the persons accused of certain offence or offences is to be referred by the Deputy Commissioner to the decision of a Council of Elders. The Deputy Commissioner, in the first instance; has got to nominate three or more persons as the members of this Council. After he has done this he has to communicate the names of these persons to the accused, who has a right to object to the nomination of all or any one of these persons. The Deputy Commissioner has then to dispose of the objections, and finally appoint three or more persons as the members of the Council of Elders after the formalities laid down in section 11 Frontier Crimes Regulation are complied with. Once the JA Council of Elders is form6d, no one not even the Deputy Commissioner seems to have an authority to bring about a change in the personnel of the Council. We have gone through the different provisions of the Frontier Crimes Regulation very carefully but have not been able to find any provision authorising the Deputy Commissioner to remove any member from a Council of Elders, or add any member to it either independently or in the place of the removed member or a member, who for one reason or another has become incapable of functioning as a member. Needless to say that the powers which a Deputy Commissioner exercises under the Frontier Crimes Regulation are in the nature of executive powers, which affect adversely the liberty of a subject, and so he should exercise these powers strictly in accordance with the law. We are conscious of the fact that contingency might arise when the number of the members of a certain Council of Elders after it is formed is reduced to less than three by reason of the fact that a certain member cannot function as a member but then in that case, in our view, the entire Council of Elders is automatically dissolved and the Deputy Commis sioner then must constitute a new Council of Elders after following the formalities laid down in section

11. Now from the facts, which have been extensively given in the early parts of this judgment, it is perfectly clear that the Councils of Elders which submitted their reports to the Deputy Commissioner, on the basis of which the latter passed the final orders, acquired no jurisdiction in the matter, and so the convictions and sentences awarded to Taus, Samundur and Am 1r Ghazi had no legal significance whatsoever. Initially the Deputy Commis sioner in all the three cases appointed three gentlemen as the members of the Council of Elders. These members conducted some enquiry in one case but did nothing in other two cases. Subsequently Mr. Aslam Abdullah came in, while Mr. Muhammad Ayub Khan, for the reasons which are not to be found on the records dropped out. Mr. Aslam Abdullah was neither nominated nor appointed by the Deputy Commissioner but in spite of that he continued to function as a member and in fact along with Sayed Darbar Ali Shah and Mr. Mazari conducted the enquiries practically to completion in all the three cases. Finally he also dropped out and so did Mr. Mazari. Deputy Commissioner passed fresh orders in all the three cases nominating and then appointing Mr. Muhammad Ayub Khan, the same gentleman who was in the beginning of the cases appointed as member and then dropped out, and Mr. Muhammad Yunus Sethi as the members. There was no third person nominated or appointed as the. member of the three Councils of Elders. For this reason, these orders were on the face of them illegal because under section 2 (a) of the Frontier Crimes Regulation the number of the members of a Council of Elders has got to be not less than three. It is true that Syed Darbar All Shah even after fresh orders were passed in the three cases by the Deputy Commissioner, con tinued to act as a member on all the three Councils, still this act of his was completely without any authority and he did not acquire any jurisdiction to deal with the cases at all. It was on the basis of the reports submitted by these three gentlemen that the three applicants were convicted and sen tenced to seven years R. I. each. Since these three gentlemen did not constitute legal Councils of Elders, their findings were not the findings of the legal body and consequently could not form the basis of any legal order under the Frontier Crimes There is yet another reason for holding that the detentions of the three applicants in public custody are against law. This reason will also furnish an additional ground for our holding the view that the Deputy Commissioner, after he has formed a Council of Elders under the Frontier Crimes Regu lation, has no jurisdiction whatsoever to interfere with it any more and bring about a change in its personnel. Under section 11 of the Frontier Crimes Regulation a properly formed Council of Elders can only come to a finding on the question of the guilt or innocence of a certain person accused of any offence after holding such enquiry as may be necessary and after hearing the accused person or persons. In out view this enquiry and hearing of the accused person or persons is intended by law to be done by all the members of the Council of Elders and not by a few of them only. It will be absol utely wrong to say that the enquiry might be held by one member, hearing of the accused by the other and the final submitted report by all, even by those who did not hold any enquiry whatsoever or hear the accused persons. This would be the necessary result if the Deputy Commissioner is per mitted to add to or subtract from the membership of the Council of Elders once it is formed and comes into existence. At any rate to put such an interpretation on section 11 of the Frontier Crimes Regulation will not only be against the letter and the spirit of the law, but would defeat the very purpose of the Regulation and bring it, hated as it is, into further con tempt, ridicule and disrepute. In the three cases before us, out of the three members, who submitted the final reports, Mr. Muhammad Yunus Sethi did not take any part in the enquiries or hear the accused persons at all. All that he did was to set his signatures to the reports. So far as Mr. Muhammad Ayub Khan is concerned he recorded the statements of certain defence witnesses in one case in company with Syed Darbar Ali Shah, or heard some prosecution witnesses and the accused in Taus's case in its initial stages, and that is all. In spite of that, it is certainly very surprising to note that misstatement of fact was made in all the three reports that all the three signatories of the reports had recorded the defence and prosecution evidence as well as heard the accused in all the three cases. Be that as it may, the reports are bad in. law because they were made by the persons some of whom at least did not hold any enquiry or hear the accused persons. Apart from that they were based upon the enquiries part of which were held by a completely unauthorised person, viz., Mr. Aslam Abdullah. The final orders based on such illegal reports made by the Deputy Commissioner or the Commissioner would also therefore be illegal and ultra vires. It, therefore, follows that the detentions of the three applicants as a result of illegal orders cannot be under any circumstance upheld by any Court of law. The result is that we accept the petitions and order that Taus, Amir Ghazi and Samundar be set at liberty at once. A. H. Petitions accepted.