P L D 1955 Peshawar 1 (PLP)

MUHAMMAD SHAM, J.--‑Hamesh Gul and his brother Ajab Gul sons of Inzar Gul, residents of Tahkal Bala, a village situated on the outskirts of Peshawar, have questioned the legality of the order of Deputy Commissioner, Peshawar, dated 19th of May, 1954, purported to have been made by him under section 12 of the Frontier Crimes Regulation III of 1901, (hereinafter called the F. C. R.). This order deprived Hamesh Gul of his liberty for a period of seven years which period was to swell to twelve years with hard labour if he failed to pay a sum of Rs. 5,000 the fine imposed upon him. This is the second time that we are called upon to protect the liberty of this unfortunate man. First time when an inroad on his liberty without a trial by any Court of law was made was when on the 14th of March, 1953, he was arrested under the orders on the face of them passed by the North West Frontier Province Government (hereinafter called the Provincial Government) dated 9th of March, 1953, and detained in public custody under the North‑West. Frontier Province Public Safety Act, " with a view to prevent him from acting in manner prejudicial to public safety". This detention was subsequently extended by another order dated 10th of June, 1953, to a further period of one year, but before this period expired an application in the nature of habeas corpus was moved in this Court and accepted on the 5th of November, 1953. Hamesh Gul who at the time of the announcement of the orders was on bail, was released from his obligations to surrender to the bail bond. The order of this Court in this petition has since been Ajab Gul v. Crown (P L D 1954 Pesh. 20.). The events that followed this order present a most lamentable picture. Since some time we have noticed with some dismay and alarm a tendency on the part of the Provincial Government and some of its executive officers, which we do most earnestly hope will not at any future time develop into practice, to disturb the confidence of the people in the effectiveness, which cannot under any circumstance be questioned, of this Court's orders. This tendency in Hamesh Gul's case we regret to observe is very much obvious. On the 5th of November, 1953, after earning his liberty from the erring executive officers, when be was getting down the steps in front of and not far removed from this Court room, (actually the distance is hardly about twenty single paces) his liberty was again snatched away from ‑him. He was arrested under detention order passed by the Provincial Government under section 3 of the N.‑W.F.P. Public Safety Act so that he might not act in manner prejudicial to the public safety. From the Court compound he was taken straight to the Central Prison, Peshawar, to be detained there as "C " class prisoner for a period of six months. On the 30th of January, 1954, Mr. Ahmad, Chief Secretary to the Provincial Government addressed a memorandum Exh. P. 2 to the Superintendents of Central Prisons, Peshawar, Haripur and Dera Ismail Khan intimating to them that the Provincial Government had been pleased to direct the ‑"unconditional," and "with immediate effect" the release of eleven persons.named in the memorandum. Hamesh Gul and one Ajmal Khatak ware amongst those eleven. They were, however, soon disillusioned because the liberty which was given to them by one hand, was there and then taken away from them with the other. They were still within the four walls of the prison when they were rearrested under warrants of arrest issued by the Political Agent Khyber under section 8 of the very little known law namely North West Frontier Corps Law 1941, the law made by the Governor‑General in Council of undivided India in exercise of powers conferred upon him by subsections (1) and (2) of section 313 of the Government of India Act, 1935, (the section since deleted by the Pakistan (Provisional Constitution) Order, 1947) to provide for the regulation of the force known as the North West Frontier Corps by Notification No. 39‑F, dated 12th of March, 1941. They were detained as undertrial prisoners, the trial, which for the reasons best known to the Political Agent Khyber or the Chief Secretary, never materialised. On the 28th of April, 1954, another confidential memo randum Exh. P. 3 this time to the Deputy Commissioner Peshawar, was sent by the same officer namely Mr. Ahmad intimating that the Provincial Government had sanctioned the trial of Hamesh Gul and Ajmal Khatak under section 8 Frontier Corps Laws as provided by section 11 of the F.C.R. and that this case should be disposed of as expeditiously as possible. The memorandum further directed the Deputy Commissioner to appoint a special Jirga consisting of (1) Peshawar, (2) Assistant Commissioner Assistant Commissioner Nowshera, to dispose of this case. This memorandum was, however, cancelled by another memorandum Exh. P. 4 dated 1st of May, 1954, which conveyed to the Deputy Commissioner Peshawar the Provincial Government's sanction to prosecute Hamesh Gul and Ajmal Khatak under section 11 F. C. R. The memo randum did not specify the offences which these two persons were accused of committing. As regards the special Jirga the directions contained in Exh. P. 3 were repeated. The second memorandum was accompanied by another memorandum Exh. P. 5 intimating to the Deputy Commissioner that the Provincial Government had sanctioned the prosecution of the above two persons under sections 124‑A and 123‑A of the Pakistan Penal Code and had directed Mr. Abdullah Khan Deputy Superintendent of Police Crimes (C. I. D.) to lodge a complaint as contemplated by law. Deputy Commissioner, Peshawar, received a complaint Exh. P. rafted on the 1st of May, 1954, on the 6th of May, 1954. It under sections 123 and 124‑A of Pakistan Penal Code and sections 15/17 of the Public Safety Act. On the 7th of May, 1954, Deputy Commissioner, Peshawar wrote an order cloaked in language to show that it originated from him, although in actual fact, as has been admitted by him in evidence, it only repeated the directions which he had received from the Provincial Govern ment. By this order the question of the guilt or innocence of Hamesh Gul and Ajmal Khatak as regards the offences defined in sections 123‑A and 124‑A of Pakistan Penal Code was referred to the decision .pf a Council of Elders consisting of the three officers mentioned in in Memorandums Exh. P. 3 and Exh. P.

4. The issues framed by the Deputy Commissioner for the decision of the Council of Elders were as under :‑ (1) Are the accused guilty of intending to influence people by spoken and written words in a manner prejudicial to the safety of Pakistan or to endanger the sovereignty of Pakistan, to condemn the creation of Pakistan and advocate the curtailment or abolition of the sovereignty of Pakistan in respect of some territories lying within its border. (2) Are the accused guilty of attempting to bring into hatred and contempt and to excite disaffection towards Pakistan Government established by law by spoken and written words ? (3) If issues Nos. 1 and 2 are found in the affirmative, what are the grounds connecting the accused with the crime (4) Any recommendation ? Council of Elders conducted the enquiry in the Central Prison, Peshawar, on the 11th, 12th, 13th, and 15th of May, 1954, and submitted their findings to the Deputy Commissioner, Peshawar on the 17th of May, 1954, unanimously holding Hamesh Gul guilty of indulging in anti‑state activities and Ajmal Khatak not guilty. The Deputy Commissioner by his order dated 19th May, 1954, agreed with the finding of the Council of Elders and convicted Hamesh Gul under sections 123‑A and 124‑A of the Pakistan Penal Code and reading these sections with section 12 of the F. C. R. sentenced him to pay a fine of Rs. 5000 or in default of the payment of fine to undergo rigorous' imprison ment for five years on the first count and to seven years R. I. on the second. Actually Hamesh Gul from jail and his brother Ajab Gul from outside had made the petitions in the nature of habeas corpus after the case was referred to Jirga, but before it was decided by them. While these petitions were pending the Jirga members and the Deputy Commissioner with significant haste disposed of the case "expeditiously". The question, therefore, which has now got to be determined is whether the detention of Hamesh Gul, which on the face of it, is as a convict under the F. C. R. is legal or not. Learned Advocate‑General at the very outset argued that this Court cannot go behind the orders passed by the Deputy Commissioner under the F. C. R. because of two reasons, namely, (1) The Jurisdiction to do so is expressly barred by section 60 of the F.C.R. and (2) The detenu is convicted and sentenced to a certain term of imprisonment by a tribunal of competent jurisdic tion, against which the detenu has the remedy to apply for revision to the Commissioner under sections 49 and 50 of the F.C.R. Under section 60 of the F.C.R. a Civil or Criminal Court, s distinguished from any Court, cannot set aside or call in question any decision given, sentence passed or order made under Chapter three and some other chapters, with which we are not concerned in this case, of the F.C.R. Previously the High Courts in Indo‑Pakistan sub‑continent could not issue any writ of habeas corpus apart from section 491 of the Code of Criminal Procedure, and when they issued such writ, it was the view of certain High Courts, that they did so in the exercise of their appellate criminal jurisdiction, and were consequently Criminal Courts. As such they were barred to set aside or question the orders passed under the F.C.R. The position has, however, now considerably changed in Pakistan by the insertion of new section 223‑A in the Government of India Act, 1935. The inserted section reads as under :‑ "Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them." By introducing this section in the laws of Pakistan, the legislature has only vindicated the right of personal liberty, so far as the writ of habeas corpus, is concerned, by affording an easy and effective means of immediate release from an illegal and unjustifiable confinement whether by a private person or he people in authority. The High Courts have now powers both under section 491 of the Code of Criminal Procedure and section 223‑A of the Government of India Act, 1935 to grant relief to illegally confined persons. Under the former section, when the High Court exercises its powers, it may be said with some justification, that it acts as a Criminal Court, but when it acts under the latter section, it certainly cannot by any stretch of imagination be said to act as a Criminal Court, or as a Civil Court. At the utmost it can be said that it exercises an extraordinary jurisdiction to grant speedy justice to helpless persons kept in captivity. We, consequently, hold that section 60 is no bar to the High Court issuing the writ of habeas corpus under section 223‑A of the Government of India Act, 1935, the if the fundamental rights of a certain person are infringed and great injustice has been done to him. That is Court is a High Court is not denied and is in fact clear from section 219 of the Government of India Act, 1935. Even if it be conceded purely for the sake of argument that section 60 in spite of the new section of the Government of India Act, 1935, does not lose its sting to oust the jurisdiction of a High Court, still in order to attract the application of this section it is necessary to show that the impugned order was passed strictly in accordance with the letter and spirit of the law under which it purports to have been passed, in the case under discussion under section 11 of Chapter three of the F.C:R. It is the basic principle of law that if in passing a certain order, any compelling provision of the law has been contravened, or it is made contrary to the object and purposes of the Act, under which it is passed, or the authority making it has permitted itself to be influences by considerations outside the scope of the Act, then it shall be taken that the statutory authority has acted either without jurisdiction or in excess of jurisdiction and in such matters interference by the High Court will be called for. It must therefore, be seen if the order of reference to the Council of Elders, the report of the members of the Council of Elders and the final order of the Deputy Commissioner Peshawar dated 19th of May, 1954, satisfy the provisions of the relevant law. Under section 11 of the F.C.R. :‑ (1) It is the Commissioner or the Deputy Commissioner who must form an opinion if it is expedient or not that the question of the guilt or innocence of any person accused of any offence should be tried by ordinary Courts mentioned in section 6 of the Code of Criminal Procedure. (2) If either of the two officers arrives at the conclusion that it is inexpedient so to do, then, if it is the opinion of the Commissioner then the Deputy Commissioner shall refer the question by an order in writing to the decision of Council of Elders, and if it is his own opinion then he has a discretion to refer the case for such decision or not. (3) Members of the Council of Elders, whether the question is referred to them under the orders of the Commissioner or by his own self must be nominated by the Deputy Commissioner. (4) The number of the members of the Council of Elders must be three or more and they should be selected according to the Pathan, Biluch or other usage as the Deputy Commissioner in each case might direct. (5) The names of the members, as soon as may be, should be communicated to the accused. (6) If the accused objects to the nomination of the members or any one of them, the objection shall be recorded by the Deputy Commissioner, who shall accept or reject it in his discretion. (7) Deputy Commissioner must then appoint the members of the Council of Elders. (8) The Deputy Commissioner should require the Council of Elders to come to a finding after such enquiry as may be necessary and after hearing the accused person. (9) On the receipt of the finding of the Council of Elders, the Deputy Commissioner may adopt any course stated in subsection three of section 11, of the F.C.R. He can however only convict if the Council or three‑fourths of its members find the accused guilty of certain offences. The repeated use of the word 'shall' in section 11 of the F.C.R. shows that the nine ingredients mentioned above are the necessary preliminaries to the order of conviction under the F.C.R. and are imperative in nature. If the Deputy Com missioner fails to comply with any one of the above ingredients of the section, then the final order of conviction as well as all the preceding orders completely without jurisdiction, and the detention of the accused person in jail against law and improper. Now taking the directions of law in the order stated above, it is to be seen if in Hamesh Gul's case they have been complied with or not. (1) There has been some argument at the bar with regard to the authority entitled to exercise the powers of Com missioner under the F.C.R. The petitioners contended that' it is the Revenue and Divisional Commissioner in the N.W.F.P. who alone is authorised to function as such. On the other hand learned Advocate‑General argued that both Revenue and Divisional Commissioner and the Provincial Government are the Commissioners within the meaning of the word used in the F.C.R. We ourselves, on the admission of the learned Advocate‑General, in case Qasam and others (P L D 1953 Pesh. 34) held that the Provincial Government was not the Commissioner under the F.C.R. and was not authorised to exercise any power under this enactment. At the time when F.C.R. was enforced, Peshawar, Kohat, Hazara and Bannu Districts formed part of Punjab. The tract now known as Mardan District was included in Peshawar District. These four Districts as well as Dera Ismail Khan District were administered by a Com missioner. This gentleman was authorised in his capacity as a Commissioner to exercise the powers of Commissioner under the F.C.R. as well. It was on account of this fact that the term Commissioner is not defined in the F.C.R., nor has any provision been made in it for the appointment of a Commissioner by any authority: A few months after the F.C.R. was enforced in the five Districts mentioned above in 1901, North‑West Frontier Province came into existence as a separate Chief Commissioner's Province. A regulation called Law and Justice Regulation, VII of 1901, was enforced in the newly formed Province under which the Chief Commissioner or such Officer as he may appoint in this behalf were the Commissioners under the F.C.R. (vide Schedule One attached to the above Regulation). Subsequently N.‑W.F.P. became the Governor's Province and under the Government of India (Adaptation of Indian Laws) Order, 1937 section 4, Provincial Government became the Commissioner instead of the Chief Commissioner. This Government by Notification dated 2nd of October 1950 No. 27320/A.P./457‑STBI, appointed the Revenue and Divisional Commissioner N.‑W.F.P. as the Commissioner F.C.R. There are thus two Commissioners F.C.R. in this Province, the Provincial Government and the Revenue and Divisional Commissioner. It is now to be seen as to who out of the two Commissioners under the F.C.R. and the Deputy Commissioner Peshawar formed an opinion that it was inexpedient that the question of the guilt and innocence of Hamesh Gul should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure. The use of the expression " It is inexpedient that the question of the guilt or innocence of any 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," undoubtedly shows the extreme anxiety displayed by the framers of the F.C.R. that the question of the guilt or innocence of the people should, as a rule, be determined by ordinary Courts of law and the recourse to the F.C.R. for this purpose should be a rare exception. They seemed to be apprehensive of the fact that the executive authorities might make a frequent use of this extraordinary law, or employ it as an instrument of oppression. In order to put a check on the authorities to misuse the Regulation they made it obligatory upon them to say it in so many words that the question of guilt or innocence of a certain person should not be decided by the ordinary Courts as a prerequisite to the reference of such question to the decision of Council of Elders. It should not be forgotten that the proceedings under the F.C.R. are by no means judicial. The Council is not required to follow any particular procedure in the conduct of the case referred to them, nor are they expected to adhere to the well established principles of the law of evidence. They are even permitted to conduct secret enquiries or take proceedings' in the absence of the accused person and condemn him on that material with impunity. The proceedings under the F.C.R., therefore, are offensive and obnoxious to all sense of justice and fair play in any advanced country. If the proceedings under this law were so repugnant to the framers thereof in 1873, when it was for the first time introduced in this country, it would be more so now because with the rest of the world even this province has made considerable advancement in all walks of life, private, public and political. Revenue and Divisional Commissioner N.‑W.F.P. is completely out of the picture because it is not even alleged much less proved that he took any part in the proceedings against Hamesh Gul. As regards the Provincial Government, the only document relevant to this point produced is Exh. P. 4., the Chief Secretary's memorandum inter alia granting sanction to the Deputy Commissioner Peshawar to prosecute Hamesh Gul under section 11 of the F.C.R. It does nowhere say that the Provincial Government has formed the opinion contemplated by section

11. The grant of sanction was absolutely unnecessary because it does not find any place in section

11. Similarly Deputy Commissioner Peshawar did not say any where much less in his order of reference dated 7th of May, 1954, that he was of the opinion that .it was inexpedient that the question of guilt or innocence of Hamesh Gul be tried by ordinary Courts, although in this order he said, "In view of strong evidence on record there is moral certainty about the guilt of the two accused Muhmamad Ajmal and Hamesh Gul under sections 124‑A and 123‑A of the P.P.C ", which amounted to his prejudging the case and usurping the functions of the Council of Elders. Deputy Commissioner twice appeared in this case as a witness. He put in a writ the affidavit, but in his statements or the affidavit, he did not say that he had formed the opinion contemplated by law. On the contrary his statements make it abundantly clear that he referred the case for the decision of the Council of Elders because it was the wish of somebody superior to him that it should be done. Mr. M. Ahmad also appeared as a witness in the case. He also put in an affidavit. Like the Deputy Commissioner he also did not say if the responsible and relevant authority of the Provincial Government formed the opinion explained in section 11 of the F.C.R. It comes to this, that neither the Commissioner nor the Deputy Com missioner was of the opinion that it‑was inexpedient that the question of guilt or innocence of Hamesh Gul be tried by ordinary Courts and in the absence of such an opinion the members of the Council of Elders in our opinion did not acquire any jurisdiction in the matter. It is argued that the fact that the opinion mentioned in the section was formed should be presumed in the case of the Deputy Commissioner from the fact that he made the order of reference. It is an elementary principle of law that where the liberty of an individual) is concerned and the law lays down that the authority transgressing on the liberty of certain person should act in a certain way then the authority concerned should show very clearly that it has acted in that way. This is the only recognised method by which the authority can satisfy the law that it has given the matter the kind of care and con sideration that the law required and that before attacking the liberty of the individual he had carefully studied the facts and the law applicable thereto. On such matters there is no presumption in favour of the. authority, on the contrary it would be against it. F.C.R. might be a lawless law, and on account of that reason N.‑W.F.P. is called in certain quarters as lawless land, yet even in this so called lawless law there is a method, and however crude it may be, it must be followed strictly by the authorities acting under it. Next question which has to be seen in the case is whether the Council of Elders was properly and legally constituted and composed. On this point after going through the material placed on this record we have no hesitation in arriving at the conclusion that the law on the subject is not only flouted but almost completely outraged. Under section 11 of the F. C. R., irrespective of the fact whether the reference of the question of innocence or guilt of certain person to the decision of Council of Elders, is done by the Deputy Com missioner on his own initiative or under the direction of the Commissioner, it is the Deputy Commissioner who, has to V nominate the members of the Council of Elders. We have very carefully gone through the F. C. R. proceedings and in particular the so called order of reference dated 7th of May, 1954. Nowhere have we found the Deputy Commissioner nominating anybody not even the City Magistrate Peshawar, Assistant Commissioner Peshawar, and Assistant Commissioner Nowshera, as the members of the Council of Elders. All that he has said in the order of reference is the following :‑ "The case is therefore referred under sections 123‑A and 124‑A of the P. P. C. read with section 11 F. C. R. to a Council of Elders consisting of the following members for the findings on the issues given below." The Deputy Commissioner, it seems, did not even know that it is not a case which is referred to the Council of Elders but it is the question of the guilt or innocence of certain person that is referred to it. We have taken into account the possible construction which may by some stretch of imagination be placed on this order that it amounts to both nominating and appointing the members of the Council of Elders, but even then the nomination was not made by the Deputy Commissioner. It was made by the Provincial Government which had absolutely no authority to do so. That it was made by the Provincial Government is clear from the docu ments which have been placed on the record as well as the statement of the Deputy Commissioner himself, Exh. P. 4, the Memo, addressed by Mr. Ahmad the Chief Secretary speci fically says to the Deputy Commissioner "The Provincial Government further direct that a special Jirga consisting of . . . . may be appointed to dispose of the case." The Deputy Commissioner admitted this fact when he stated the following :‑ The Provincial Government at the same time by a separate letter appointed a special Jirga consisting of the City Magistrate, the Assistant Commissioner Peshawar and the Assistant Commissioner Nowshera for the trial of Hamesh Gul." Again the Deputy Commissioner stated in his second statement dated 13th of July, 1954, "Government appointed the members of the Jirga, I had no discretion to change the members of the Jirga who were appointed by the Provincial Government." Subsequently in the same statement on being asked direct questions by the Advocate‑General, the Deputy Commissioner stated "Yes" to "If the accused had objected to any member of the Jirga, could you have changed that member if the objection was well founded." Explaining his reply he stated to the Court question, "I could have changed the Jirga members, because I knew that I could not be dismissed by the Provincial Government on account of that reason. In my discretion too the Jirga appointed by the Provincial Govern ment was the best under the circumstances of the case." This statement of the Deputy Commissioner, even if it be true, does not in any way alter the obvious fact that the Deputy Commissioner did not nominate or appoint the members of the Council of Elders in this case. We are not prepared to even consider for a second the absurd interpre tation which the Advocate‑General wishes us to place on these facts that the Provincial Government only made a suggestion with regard to the members of the Council of Elders, which suggestion was accepted by the Deputy Com missioner, otherwise it is the Deputy Commissioner who has appointed the members, in view of the fact that appointment as a matter of fact was made by the Provincial Government. Again it is very difficult for us to reconcile the nomination or appointment, whatever it may be called, of three officers who exercise normally the powers of the Court of one or the other of the class mentioned in section 6 of the Code of Criminal Procedure as members of the Council of Elders with section 2, sub‑section (a) of the F. C. R. which defines the Council of Elders as meaning (this shows that the defini tion is exhaustive) a Council of three or more persons convened according to the Pathan, Biluch or other usage, as the Deputy Commissioner may in each case direct. The Deputy Commissioner according to the plain meaning of this section should have stated somewhere on the record as to which usage of which tribe was he following in appointing or, to be more exact, in referring the case to the Council of Elders consisting of the three officers of the Government indepen dently or at the suggestion of the Provincial Government. His failure to do so is a clear violation of a compelling provi sion of law. In order to understand the significance and the purpose of the definition of Council of Elders given in section 2(a) of the F. C. R. it is necessary to go back a little and trace the history of this law. In 1873, the five Districts which now form the N. W. F. P. and to which the F. C. R. applies were, inhabited by Pathans, Biluchs or other tribes kin to them.1 The disputes, both civil and criminal, of the people belonging to these tribes, just as it is even now done in adjacent tribal areas occupied by these very tribesmen, were decided by the elders of the tribes to which the parties belonged. It the parties belonged to two different tribes, then the elders of i both the tribes sat down together to compose the quarrel. For disputes of greater magnitude a bigger Jirga commonly known as Shahi Jirga used to be convened. That also con sisted of the elders of the tribes. The elders who formed the Jirgas, which is a local word used for the Council of Elders, used to be the persons acquainted with the facts and history of both sides, they commanded adequate respect and confi dence and used to have considerable influence. Their decisions were followed because they were respected. They could not afford to be dishonest or corrupt because in that case they would have lost the confidence and respect of their tribesmen, which they valued most. In fact if the people in whom, trust was placed betrayed the trust, they were liable to be killed. When the British came they had to adopt the same method of settling the disputes because it was very difficult for them to change the time‑honoured customs and habits of the people in a short time. They legalised this system by introducing Regulation IV of 1873. According to this law, the character of the Council of Elders was to be purely tribal and whatever the offence the only sentence authorised was that of fine. Subsequently the Code of Criminal Pro cedure was also applied to these Districts but the Regulation this time, Regulation IV of 1887, was brought into operation which in character and spirit was the same as the previous Regulation with this difference that a sentence of seven years for certain offences was for the first admitted along with the fine. This Regulation, in 1901, gave place to Regulation III of 1901, which is still in force. The current Regulation has also not brought about any change in the character and nature of the Council of Elders. It still continues to be tribal both in fact and in theory. The true constitution of the Council of Elders cannot be better explained than it was done in two circular letters from the then Secretaries to the Chief Commissioners to all officers exercising powers under the F. C. R. in the N.‑W. F. P. First letter is dated Nathia‑Gali, the 18th of July, 1920. It says:‑ "The Council appointed should so far as possible be tribal in character. To this end Deputy Commissioners, instead of keeping the present lists of gentlemen qualified to serve on Jirgas. Raises, Khans, retired officers Civil and Military, etc., should keep lists arranged according to tribal areas. It happens, of course, sometimes that the parties belong to different tribes or to no particular tribes. In such cases mixed Jirgas are inevit able. But for this purpose the Shahi Jirga, which should certainly be maintained, is obviously suitable." The second letter is in the shape of a memorandum No. 8831‑40‑G. C‑11 dated Peshawar, the 19th October, 1921. It runs as under :‑ (The extract) "The Chief Commissioner is dissatisfied with the present composition of Jirgas appointed to decide both civil and criminal cases. He understands that owing to frequent changes of district officers and consequent lack of knowledge, a number of persons have come to be included in the District and Sub‑Divisional lists, who command no confidence among litigants and have no local influence to make their decisions acceptable. In fact a great many Tirgas, as at present consti tuted, are, justifiably known as Jirga of 'Mulaqaties' who discredit the entire system by their methods. Sir John Maffey, therefore, desires that all Deputy Commissioners and Sub -Divisional Officers will now closely scrutinize the lists maintained in their offices of persons suitable to sit on Jirgas and will eliminate all those whose local standing and private characters are below the standard which commands adequate respect and confidence. He particularly‑ desires that separate lists should be drawn up for each tribal area or where that is not possible, for geographical areas, and that all cases, whether criminal or civil, occurring in those areas should be disposed of by persons on the area list. It is undesirable that a large number of Jirga members be appointed for each area and in most cases 15 or 20 should suffice. In selecting names Deputy Commissioners should consult the tribal elders and give due weight to their advice. I am to request that this matter may be taken in hand as soon as possible and revised lists composed on the lines indicated above submitted for the information of the Chief Commissioner before the close of the current year." The result of the above discussion is that the Council of Elders under the F. C. R. has got to be according to the usage of the Pathans, Biluchs or other tribes. The Council of Elders, as has been admitted by the learned Advocate‑General and is otherwise quite clear too was, in this case, not according to the usage of any tribe much less the tribe to which the accused belonged. In fact no enquiry with regard to their tribe was ever made. Learned Advocate‑General advanced an argument, which we reproduce here simply to show the absurdity of it. He contended that the three Magistrates were appointed in accordance with the rules framed by the Provincial Govern ment under section 62 of the F. C. R., and that this might be considered the usage in vogue in this Province at the present time. The Rule to which the learned Advocate‑General referred was contained in the memorandum No. 7031‑36./14/277 dated 29th of February, 1952, from the Chief Secretary to the Deputy Commissioners in the N.‑W.F.P. worded as under :‑‑ "In order to improve the present system for the disposal of Jirga cases and to improve the confidence amongst the people in the matter of administration of justice, it has been decided that Jirga cases under the F. C. R., should in future be decided by a tribunal of three competent Magistrates to be selected by the Deputy Commissioner. If the number of the trial Magistrates is inadequate Tahsildars may be appointed as Jirga members." The above memorandum may be the instructions issued by the Chief Secretary to the Deputy Commissioners, but by no stretch of imagination could it be said a rule framed under the F. C: R. It does not even say that it is the Provincial Govern ment which has arrived at the decision referred to in the memorandum. To say that it amounts to a usage, as contem plated by section 2 (a) of the F. C. R, is much too ridiculous to deserve even refutation. The composition of Council of Elders was therefore unwarranted by law and it acquired no jurisdiction. Next thing which is to be seen is, if 'the names of the officers were "as soon as may be" communicated to the accused persons. This communication must be made after the members of the Council are nominated but before they are appointed. It is also reasonably clear from section 11 of the F. C. R., that the communication should be made by the Deputy, Commissioner himself, firstly because it is he who has to dispose of the objections, if any, and secondly because the Jirga members do not acquire any jurisdiction in the matter until they are appointed, the event, as has been said above, which takes place after the objections are decided. The so called order of reference was made on the 7th of May, 1954. The Deputy Commissioner did not communicate the names of the officers to the accused on that day or on the 8th, 9th, 10th, 11th or 12th of May, 1954. There are, however, two pieces of papers placed on the record of F. C. R. proceedings. They are marked by this Court as Exh. P. 9 and Exh. P.

10. Exh. P. 9 is the record of the statement of Hamesh Gul and Ajmal Khatak in which they are said to have stated that they had heard the names of the Jirga members and that they did not object to them. The statement is in Urdu. A note is then made by Mr. Zaidi that the accused refused to sign the statement. It is signed by him alone as Jirga Member and is dated 11th May, 1954. In different ink however, the words "for Deputy Commissioner, Peshawar, seem to have been added later on. Exh. P. 10 is also in Urdu and is the record of the joint statement of the two accused persons, In this statement they are claimed to have stated that they had heard the names of Jirga Members and that they refused to sign the statement and that they would make an application in writing. It is not stated in it that the accused had no objection to the Jirga members. This statement is also signed by one of the Jirga members, who has subsequently added the words "for Deputy Commissioner, Peshawar," below his signature. The third member has not said or done anything about this matter. These two documents certainly create doubt in one's mind about their genuineness. Be that as it may, they can in no sense be said to originate from the Deputy Commissioner in spite of the subsequent additions after their signatures signifying that the enquiries were made by them on behalf of the Deputy Commissioner. The law does not contemplate anybody under it to act by proxy. It is significant to note that Exh. P. 10 is claimed to be a statement recorded on the 11th, yet it was signed by the Jirga member on the 10th, Anyway it seems to be a minor default in presence of the glaring blunders and the major illegalities committed by the authorities in this case. Now without the Deputy Commissioner communicating the names of the members to the accused persons, and without his ordering the appointment of the members to act in the matter, members with unexplainable haste proceeded to record the evidence in the case. They took the ‑statements of eight witnesses and part of that of the ninth on the 11th and 12th of May, 1954. On the 13th of May, 1954, the Deputy Commissioner, Peshawar realised either himself or at somebody else's pointing out that a lacuna had been left in the casein so far as communicating the names of the members to the accused persons and inviting their objections was concerned. He promptly recorded a joint statement of the two accused in which they are alleged to have stated that they objected to the reference of their case to the Jirga but had no objection to the Jirga members. Surely such a belated communication of the names of the members to the accused persons after the members had taken some proceedings in the case cannot be said to be an effective compliance of the imperative provision of law. It then comes to this that to start with no authority competent to do so under the F. C. R., formed an opinion that it was inexpedient that the question of the guilt or innocence of Hamesh Gul be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure ; the Council of Elders was not convened according to law; the members of the Council were not nominated and appointed by the proper authority and lastly the names of the members were not communicated to the accused person promptly and before the members took any proceedings in the case. The result is that the reference of the question of the guilt or innocence of Hamesh Gul and the ousting of the jurisdiction of the ordinary Courts in the matter was completely without jurisdiction. The so‑called Council of Elders acquired no jurisdiction in the eye of law to act in the matter with the result that their report was no better than the report on the matter by a private person. The necessary and logical consequence of all this, is, that the conviction and the detention of Hamesh Gul based on such proceedings and report is bad in law and improper. The second argument of the learned Advocate‑General ousting the jurisdiction of this Court on the ground that Hamesh Gul is convicted and imprisoned to a certain term by a tribunal of competent jurisdiction against which he has a remedy provided by sections 49 and 50 of the F. C. R., should not detain us for long, partly because of the reasons already given in this judgment, particularly that the conviction of the accused was not by a tribunal of competent jurisdiction, and partly for the grounds which will presently follow. It may be mentioned that it is wrong that the personl convicted under the F. C. R., has any remedy provided by the, law. Sections 49 and 50 of the F. C. R., do not afford any remedy much less a remedy, which in order to restrict the powers of the High Court to act in the matter, should be specific, adequate, prompt and efficacious, to the condemned person. They only empower the Commissioner to call of the record of any proceedings and revise any decision, sentence or order given, passed or made. The right of appeal is particularly barred by section 48 of the Regulation. The Commissioner, while exercising his powers under section 49, n is specifically prevented to disturb the finding of any question x 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 the proceedings have been so conducted as to occasion a miscarriage of justice. In order to find whether the High Courts can act in the matter of issuing habeas corpus under section 491 of the Cr. P. C. and section 223‑A of the Government of India Act, a distinction should normally be made between the persons convicted by a regular Court of law and the one who has been put behind the bars under an administrative order. These two sections themselves do not put any restriction on the powers of the High Courts, but ordinarily a High Court will be very slow and sparing in exercising these ex traordinary powers in the cases of those persons who have been convicted by ordinary Courts of law. The reason is obvious. They are provided a remedy to an authority which is judicial in every sense of the word. On the other hand in the case of the persons whose liberty has been taken away by the executive authorities the High Courts have got to be liberal firstly because the executive authorities in some cases quite honestly, have a tendency to transgress the law and secondly because either there is no remedy provided to the condemned person under the law under which he is dealt with or the remedy is not so effective. In such cases if the High Courts find that the fundamental rights of certain persons are infringed, or the authority concerned has not followed the procedure laid down in the law, or the forms of law have not been satisfied or strictly compiled with, or the authority has permitted itself to be influenced by consideration foreign extraneous and repugnant to the relevant law, then they will step in and put the wrong done by the executive rights. This well established principle of law was ultimately conceded by the learned Advocate General but after considerable waste of time. These princi ples would apply in the case before us because their Lord ships of the Federal Court in case Samundar and others v. The Crown (P L D 1954 F C 228) have held that the imprisonment under the F. C. R. is ordered under the executive or administrative order and is not an imprisonment by a Court of law. We have already held in this judgment that the Provincial Govern ment and the Deputy Commissioner Peshawar have neither complied with the forms of law nor have they followed the procedure laid down in the F. C. R. in passing respective orders in the proceedings which culminated in the imprison ment of Hamesh Gul in Central Prison Peshawar. It has now to be seen whether the Provincial Government and the Deputy Commissioner Peshawar passed different orders in thecae honestly or in mala fide exercise of their powers. We might with advantage state here that the executive officers while dealing with the liberty of a subject under an executive or administrative law must proceed with utmost caution and strictly in accordance with law. They should take care to see that they do not do anything which might favour of injustice or malice through the misuse of the extraordinary powers which are vested in them purely in the interest of the State. They should exercise their wide powers judiciously, properly, fearlessly and clear of all considerations political, personal or factional. They should handle the people within their sphere of administration honestly, with benevolence, impres sive generosity, vision and skill. In the case before us we have regretfully arrived at the conclusion that the authori ties have permitted themselves to depart from the principles enumerated above. It has been stated in the earlier portion of this judg ment that we, on the 5th of November, 1953, accepted the habeas corpus application of Hamesh Gut and set him free. In that case the conduct of Mr. Ahmad Chief Secretary in issuing the detention order, which was completely without jurisdiction and against law, and on the basis of that order arresting Hamesh Gut and keeping him in public custody for several months, came in for a very severe criticism. It was in fact on account of that reason that we accepted the application and restored liberty to Hamesh Gut. Our con science was and the public conscience must have been deeply perturbed over this unauthorised arrest and detention of a subject of Pakistan, but still more disturbing was the attitude of the Provincial Government, which not only it did not take any action against this officer, which would have been normal but it went further and ordered that if any action was brought by Hamesh Gul against him for the illegal arrest and deten tion, the action would be defended at public expense. The Provincial Government by making this order consciously or unconsciously committed gross contempt of this Court. In any case it is clear from this act of the Government that it has as against Hamesh Gut identified itself with Mr. Ahmad. While Hamesh Gut after hearing the orders came out of this Court room, it is alleged by him that he was first surrounded by police and finally arrested and taken straight to the Central prison Peshawar. The circumstances under which Hamesh Gut was arrested on the 5th of November, 1953, are certainly very supicious and peculiar. Hamesh Gul and his legal advisers have not considered it proper to put Hamesh Gut into the witness‑box. This circumstance cer tainly raises some presumption against him. He has, however, produced several witnesses who have given conflicting statements with regard to the circumstances attending his arrest. Ajab Gut P. W. 5 the brother of Hamesh Gut stated that no sooner Hamesh but, after hearing the Court's orders came out of the Court room, he was surrounded by C. I. D. officers and so he was sent to consult Arbab Sikandar Khan, Advocate whether he should surrender peacefully or not. Dost Muhammad Khan Kamil, an Advocate of this Court, stated as P. W. 3 that he was in the Bar room of the District Courts when he heard that Hamesh Gut had been released, and so he came to this Court to find Hamesh Gut surrounded by the C. I. D. Police. He advised him to accom pany them peacefully and not compel them to drag him. He however, at the same time told him to consult his counsel Arbab Sikandar Khan. Arbab Attaullah Khan P. W. 7, who was Assistant Inspector‑General of Police at the time, stated that he handed over the detention order of Hamesh Gut signed by the Chief Secretary N.‑W. F. P. on the 5th of November, 1953, to Gul Alam P. W.

15. He most discreetly refused to remember whether these orders were handed over to him before or after the orders were announced by this Court in habeas corpus petition, but as will be seen later on in this judgment it is reasonably clear that they were handed over after Hamesh Gut's release was ordered. Gul Alam P. W. 15, a Sub. Inspector in the C. I. D. deposed that he arrested Hamesh Gul under the orders of Assistant Inspector‑General of Police (C. I. D.) on the 5th of November, 1953, at the time when after hearing the orders of his release, he was descending the steps in front of this Court room. He further added that he had seen the Chief Secretary's orders for the arrest and detention of Hamesh Gut under section 3 of the N.‑W. F. P, Public Safety Act before the orders were announced by this Court in the habeas corpus petition. In fact he stated, his orders were that Hamesh Gut should be arrested immediately if this Court ordered his release. This evidence shows beyond any doubt that the arrest of Hamesh Gul was decided upon before this Court announced the orders. Gut Alain P. W. 15 was present in the Court compound and he at once arrested Hamesh Gut under the detention order which was at the time complete in every respect. Mr. Ahmad, the Chief Secretary and the learned Advocate-General in his affidavit, however, wish us to completely disbelieve this evidence and hold that the detention order was prepared on the 5th of November, 1953, after the orders in the habeas corpus petition of Hamesh Gut were announced by this Court. In fact Mr. Ahmad stated in his evidence that the question of Hamesh Gut's detention was taken up only after this Court released him. Clarifying his statment, Mr. Ahmad stated that he was informed by the Advocate‑General that habeas corpus petition of Hamesh Gul had been accepted. He wrote down paragraphs 84 and 85 of the notings Exh. P.

23. A perusal of these paragraphs would show that they were addressed to Honourable the Chief Minister and it was suggested that Hamesh Gut should be arrested and detained for a period of six months. These suggestions apparently were based upon Exh. P. 24 which was a memorandum from the Inspector‑General of Police to the Chief Secretary addressed on 21st of September, 1953, but in this memorandum it was nowhere proposed that Hamesh Gul should be detained in jail. It was asked by the police that :‑ (1) Hamesh Gul and Ajmal Khatak should be restricted to their respective villages for a period of two years. (2) They should report daily at their police stations. (3) They should not leave their villages without the permission of the Assistant Superintendent of Police of their sub‑division. (4) They should keep note‑books on which permission to them to visit out‑stations and conditions about it will be recorded and on which their reporting to such police stations where they will be allowed to go will also be verified. After noting down paragraphs 84 and 85, the Chief Secretary suddenly discovered that the Chief Minister was out of station and was not likely to return in time, so he proposed that the necessary orders should be passed by the Minister for Education. This gentleman was approached and he by writing just one word approved the action of the Chief Secretary. It is then stated that the detention order was prepared, and in the presence of the Advocate‑General handed over to the Assistant Secretary for onward transmission with covering note Exh. P. 29 to the Inspector‑General of Police. Copies of the detention order, which incidently has been exhibited in this case as P. 22 were sent to the Superintendent Central Prison Peshawar, Deputy Commissioner Peshawar and the Inspector-General of Prisons N.‑W. F. P. Learned Advocate‑General stated in his affidavit that he was informed by his orderly Nausher Khan that Hamesh Gul had been released. He conveyed this information to the Chief Secretary on the telephone. Within an hour of it, he was sent for by the Chief Secretary, who showed him a fresh detention order. The Chief Secretary has said most emphatically that Gul Alam P. W., when he says that he saw the detention order of Hamesh Gul before the orders were announced by this Court in the habeas corpus petition, is telling lies. We have given a very close and anxious consideration to the evidence of Dost Muhammad Khan Kamil, Arbab Ataullah Khan and Gul Alain on one side, and the statement of Mr. Ahmad and the Affidavit of the Advocate‑General on the other. There seems to be absolutely no reason to disbelieve the clear and direct evidence of Gul Alam P. W. 15, who is completely disinterested, and whose statement is to a very great extent corroborated by Arbab Ataullah Khan and Dost Muhammad Khan Kamil. Apart from that in spite of our genuine effort we have not been able to reconcile the statement of Mr. Ahmad and the Affidavit of the Advocate‑General with the probabilities of the case. We have done our best to persuade ourselves to believe these two gentlemen for the simple reason that they occupy positions of great importance in the administration of this Province, but we have regretfully arrived at the conclusion that to believe them would be doing great injustice and violence to one's intelligence and common sense. It is un imaginable that Hamesh Gul after hearing. the orders that he was a free man, acted against the ordinary urge of a freed man to go away immediately, and continued to stay in the Court compound for almost an hour (this is the time indicated by the Advocate‑General in his Affidavit the Chief Secretary took in preparing the order, and that seems to be very probable keeping in view the distances between different places, the detention order had to travel before it reached this Court) in expectation of being re‑arrested after Mr. Ahmad had gone through the necessary formalities of the issue of the order of his detention. On the other hand the evidence of Gul Alain P. W. is so natural and probable that it would require some thing more than the mere assertion of Mr. Ahmad that it is a lie to disbelieve it. Now if Mr. Ahmad had stated in a straightforward and honest way that it was anticipated in view of the arguments addressed in the case or remarks passed by the judges, that the habeas corpus application of Hamesh Gul, on account of defective detention order, would be accepted, and so he had had a fresh and legal detention order ready, then the only possible objection which might have been taken was as to why was this fact not brought to our notice when the orders were announced but all the same Mr. Ahmad's word would have carried very great weight. Now that he has deliberately hidden the facts, the natural question arises as to why he has behaved in this way. The only reply which we can think of this question is that his act of issuing the detention order, even if it was made after the approval of one of the ministers, boas not bona fide, and was motivated by some ulterior purpose. It is very difficult for us to exclude the possibility of Mr. Ahmad starting a campaign of vengeance and vindictiveness after he heard that the probabilities were that we might accept Hamesh Gul's application and order his release. He happens to be an old Indian Civil Service officer and there are very strong probabilities that he took the prospective release of Hamesh Gul as a personal insult and challenge to his prestige. Even if we believe the statement of Mr. Ahmad that the order of detention was passed on that very day aft* we announced the orders, it only shows, keeping in view the frantic haste displayed in the preparation of the order and re‑arrest of Hamesh Gul, that it was an act of a highly enraged person. The very fact that Mr. Ahmad and the Provincial Government, if it comes in anywhere at all independently of Mr. Ahmad, flouted and undermined the authority of this Court, offended justice, and declined to give effect to its orders, shows beyond any doubt their mala fides in the matter. After his arrest on the 5th of November, 1953, Hamesh Gul was detained under section 3 of the N.‑W. F. P. Public Safety Act. Honourable the Chief Minister, however, showed his aversion to keep people behind the bars undet this law. He had appointed, a committee in October, 1953, consisting of the Chief Secretary Inspector‑General of Police, Advocate-General and Sessions Judge Peshawar to go through all the cases under this law and make the necessary recommendations. The case of Hamesh Gul came up for consideration by this committee or the 16th of December, 1953. With the Chief Secretary on the Committee, Hamesh Gul could not have expected better luck. It was decided as was expected that he should continue to remain in custody under the same law. This recommendation was subsequently approved by the Chief Minister. On the 16th of January, 1954, something worse happened and it was that Hamesh Gul's lawyer served a notice on Mr. Ahmad requiring him to pay damages for the illegal confinement of Hamesh Gul. Learned Advocate‑General had promised to produce a properly authenticated copy of this notice but for the reasons best known to himself or the Chief Secretary it has been withheld from this Court. After this notice was received by Mr. Ahmad, Honourable the Chief Minister ordered a second revision of the cases of the detenus of the safety legislation, this time by a committee consisting of the Chief Secretary, Inspector‑General of Police and A I. G., C. I. D. (There is nothing in writing about. this order of the Chief Minister. It is stated only by Mr. Ahmad in his evidence. The Committee again recommended the continued detention of Hamesh Gul under the Safety Act. The suggestion is contained in the notings of Mr. Ahmad contained in Exh. P.

28. It was on the 28th of January, 1954. The suggestion was accepted in two words "As suggested" by Honourable the Chief Minister on the 29th of January, 1954. On this day, however, the Chief Secretary claims to have received an "oral communication" from the Inspector‑General of Police suggesting that Hamesh Gul should formally be released from detention under the Safety Law because he was being arrested immediately after under a warrant of arrest to be issued by the Political Agent, Khyber. It is curious that the Inspector-General of Police did not make this important suggestion in writing. Anyway the Chief Secretary passed on the suggestion to Honourable the Chief Minister, who on the same day, when he had accepted the suggestion of keeping Hamesh Gul detained under preventive detention legislation, accepted this other suggestion too in the same brief order containing two words. Now looking at these and some of the other orders, to which reference will be made at proper places, one cannot resist forming an opinion that Mr. Ahmad getting afraid of Chief Minister's reluctance to keep people in custody under the extraordinary powers granted by the Safety Law, started taking steps to secure the permanent custody of Hamesh Gul under some other law in prison. On the 30th of January, 1954, an elaborate order Exh. P. 2 releasing eleven persons including Hamesh Gul was issued. Hamesh Gul feeling happy came to the prison gate to emerge out of it as a free man when he was again held up under a warrant of arrest Exh. P. 14 purported to have been issued by Political Agent, Khyber under section 8 of the North‑West Frontier Corps Law, 1941, reference to which has already been made in this judgment. This warrant, as it should have been done, was not addressed to anybody. The direction given in the warrant was that Hamesh Gul should at once be produced before the Political Agent, but instead of doing that Hamesh Gul was safely deposited in the prison and was never produced before that authority. This fact alone shows the faked nature of this warrant. Then followed a wild and mad hunt for a law under which Hamesh Gul could permanently be put behind bars without any danger of his being released. Ordinarily after Hamesh Gul was released from this Court and the conduct of Mr Ahmad was very severely criticised, and if not at that time later on when a notice was served upon him, it was in the interest of efficient and unbiased running of the administration of the Province that he should have taken his hands off Hamesh Gul's case. Like an honest man he should have told the authorities that it would not be in the interest of justice for him to handle the case any more. On the contrary he remained throughout the pivot round which the wheel of the Provincial Government revolved: In the hunt for the law several high ranking officers, particularly Political Agent Khyber, Inspector‑General of Police, Assistant to him in the C. I. D., and last but not the least the Advocate‑General of the N.‑W. F. P. took very active part. On the 5th of April, 1954, A. I. G., C. I. D. made a certain report presumably to the Inspector‑General of Police out of which the concluding two lines from the paragraph last but one and the last paragraph were torn and pasted on Exh. P.

30. They may with advantage be reproduced verbatim here. " Sanction of the hearing of the case by a Council of Elders without the preliminary enquiry by a Magistrate." "If approved the case may kindly be discussed with the Chief Secretary, and the Provincial Government's approval obtained to the case being tried under the F. C. R." On the 7th or April, 1954, the Inspector‑General of Police reserved the case, as is clear from Exh. P. 30, for discussion again with the Chief Secretary and the Chief Minister. He however observed that the accused could be tried under the Enemy Agents Ordinance of 1943, wherein an elaborate procedure is laid down or under the F. C. R. and that the case had as he put it, "50/50 chances". Learned Advocate‑General next dealt with the case. He completely excluded the application of the Ordinance referred to, by the Inspector‑General of Police on the ground that we were not at war with Afghanistan. He then con sidered the possibility of asking the Central Government to promulgate a special Ordinance but then he was not sure if the Central Government would agree. Finally he suggested that the accused be tried under the F. C. R. with a special Jirga appointee, but in that case the charge should be under sections 123‑A and 124‑A of the Pakistan Penal Code and not under the Safety Act. Mr. Ahmad jumped at this idea and submitted the case to Honourable the Chief Minister with the suggestions that a special Jirga consisting of Ataullah Jan Deputy Commissioner Hazara, Saadullah Khan Deputy Commissioner Kohat and Muhammad Alain Political Agent Khyber be appointed in the case. It will be interesting to note that nowhere in all these notings, suggestions and obser vations by the officers mentioned above the name or names of the accused person or persons were mentioned. Honour able the Chie: Minister did not bother himself about the case or the accused at all, he just observed that the case was not of such a nature as to justify the dislodging of the Deputy Commissioners and Political Agent, to act as mem bers of the Jirga. He suggested, although he should have ordered, that Assistant Commissioners should instead be appointed. Chief Secretary lost no time in appointing Abdul Majid City Magistrate, Peshawar Mr. Zaidi and Mr. Ayub Khan, the former Assistant Commissioner Peshawar and the latter Assistant Commissioner Nowshera to act as members of the Council of Elders, and further ordered that as "Ordered by H. C. M. ?" the case should be taken up under section 11 of the F. C. R. This order of the Chief Secretary is dated 22nd of April, 1954. This was followed by three memorandums Exh. P. 3, Exh. P. 4 and Exh. P. 5, to which reference has already been made in this judgment from the Chief Secretary to the Deputy Commissioner Peshawar. Exh. P. 3 is dated 28th of April and the other two Exhibtis 1st of May, 1954. On this later date a complaint under sections 123, 124 (a) of the P. P. C. and 15/17 of the Public Safety Act was also drafted by Abdullah Jan, Deputy Superintendent of Police P. W. 10 and dictated to Gul Matin Khan P. W.

16. Now the different officers including the highest law officers of the Province hopped from one extraordinary law to the other, and nobody recognized that there was ordinary law contained in the Cr. P. C. also in existence. They did not try to find out that it might be expedient to try the guilt and inno cence of the wretched accused under the ordinary law instead of going out of the way and making elaborate arrangements to bring the extraordinary law into operation. The Inspector-General of Police did suggest in his note that there was suffi cient evidence in the case to hold an opinion that there was 50/50 chances of securing the conviction. He, however, suggested recourse to the extraordinary law only for the sake of maintaining secrecy. This, the Inspector‑General of Police perhaps did not realise could be secured by having the trial by ordinary Courts in camera, under section 352 of the Cr. P. C. There can be no be better proof of the mala fides of the Executive authorities in this matter than to make use of the extraordinary laws, when the ordinary law was equally effec tive and met all the exigencies of the case. Now Hamesh Gul was arrested under a warrant issued by the Political Agent Khyber on the 30th of January 1954. The law is that when any person is arrested and detained in custody, and it appears that investigation cannot be com pleted within twenty‑four hours fixed by section 61 of the Cr. P. C. then the police officer making the investigation or the one in charge of the Police Station should forthwith transmit to the nearest Magistrate a copy of the entries in the case diary as well as the accused. This the police officer can only do if he has grounds for believing that the accusation is well founded. It is then the Magistrate who has to authorise the detention of the accused in custody. This the Magistrate can do for the maximum period of fifteen days (Section 167 of the Cr. P. C.) After the expiry of fifteen days, irrespective of the fact whether the investigation has completed or not, the accused person must be under section 170 of the Cr. P. C. forwarded to a Magistrate empowered to take cognizance of the offence for the trial or commitment as the case may be. It is for the Magistrate then, in case the investigation is incomplete, to postpone the commencement of the trial under section 344 of the Cr. P. C. for the reasons to be given in writing for such length of time as he considers necessary. He, how ever, cannot remand the accused to custody for a term, exceed ing fifteen days at a time. The above provisions of the Cr. P. C. are compelling and imperative, and their non obervance is an illegality and at the same time a clear proof of the malafides of the authorities concerned. Hamesh Gul after he was arrested under section 8 of the N.‑W. F. Corps Laws should have been within twenty‑four hours of it produced before a Magistrate. It was not done. In fact he was not shown to have been produced before any Magis 4rate prior to 15th of March, 1954, i.e., three and a half months after his arrest. On that day he was produced before Mr. Abdul Majid City Magistrate Peshawar, P. W. 6, for the first time and remanded to the judicial lock up for a period of fifteen days. It has not been explained as to why Hamesh Gul was not produced before a Magistrate as required by law and in the absence of satisfactory explanation and considering it in conjunction with other illegalities and irregularities com mitted in this case, we have no hesitation in arriving at the conclusion that the omission was due to the malafides of the executive authorities. As a result of the above discussion, we have no other alter native but to accept these applications and order the release of Hamesh Gul with immediate effect. We hold that refer ence of the question of the guilt or innocence of Hamesh Gul to the Council of Elders, the constitution of this body and the nomination of appointment, if there was any, of the members thereof, was all illegal. The members, on whose report the conviction and imprisonment of the accused was based, acquired no jurisdiction in the matter. The order of the Deputy Commissioner, consequently, was also without jurisdiction and bad in law. We further hold that the refer ence or the question mentioned above to the Council of Elders was the result of mala fide exercise of powers by the executive authorities. Before we take leave of this case we wish to remind the officers, who have passed orders or taken certain illegal steps to oblige or under the pressure of, or being afraid of their brother officer however highly placed he may be, of the advice given to them by the father of the nation, the late Qaid‑i‑Azam on the 14th of April, 1948, in the Government House Peshawar "If you want to raise the prestige and great ness of Pakistan, you must not fall a victim to any pressure but do your duty as servants of the people and the State." And again " I hope it does not happen but you may even be put to trouble not because you are doing anything wrong but because you are doing right. Sacrifices have to be made and I appeal to you, if need be, to come forward and make the sacrifice and face the position of being put on the black list or being otherwise worried or troubled." We would leave the parties to bear their own costs, because we would not like the State to suffer for the defaults committed by one of its officers. Orders announced. A. H. Petition accepted.