P L D 1962 (W (PLP)

FARUQUI, J.‑‑This writ petition is directed against the order dated 30th April 1960 passed by the Additional Commissioner and Commissioner, F. C. R. Quetta Division, whereby he enhanced the sentence of the three petitioners without giving them notice and without hearing them. The facts leading up to this order may shortly be stated.

2. As a result of a fight which took place on 1‑9‑1958 the police challaned the three petitioners and two others on the one hand and Muhammad Ramzan and fourteen others of the opposite party on the other, under various provisions of the Penal Code. Members of both the parties had received injuries and one of the members of the party of Ramzan died 10 days after the incident as a result of the injuries received by him. Both these cases were referred to the Assistant Political Agent and A. D. M., Quetta, for inquiry under the Frontier Crimes Regulation. The dispute between the parties which had led up the fight related to the distribution of water between them. The A. D. M. after recording the evidence of several witnesses placed the cases before the Council‑of‑Elders for a finding. The said Council at first tried to bring about an amicable settlement between the parties but that attempt having failed they further investigated the matter and gave a finding holding the three petitioners guilty and imposing upon them a total fine or Rs. 2,000 out of which Rs. 1,500 was to be paid as blood compensation to the heirs of the deceased and the remaining Rs.500 as fine to the Government. Neither party accepted this finding of the Jirga and filed their written objections against it which were overruled and the Jirga recommended that their original award be accepted. The matter then came before the District Magistrate who accepted the unanimous award of the Jirga and convicted the petitioners under section 302, P. P. C. and section 12 (1), F. C. R. and sentenced each of them to pay a fine of Rs. 666‑10‑8 or in default to undergo 21 years' rigorous imprisonment. He further directed that out of the fine if realised Rs. 1,5(0 was to be paid to one Abdul Ghafoor son of Abdul Karim who had died as a result of the injuries and the balance of Rs. 500 was to be credited to Government. He acquitted the other two co‑accused, namely, Malik Allahdad and Muhammad Ilyas. He also acquitted the members of the other party, namely, Muhammad Ramzan and 14 others. He also directed that the parties shall furnish security in the sum of Rs. 2,000 each person to keep the peace. Mst. Gul Naz, widow of Abdul Karim, and five other persons of tire party of Muhammad Ramzan filed a revision petition before the Additional Commissioner and Commissioner, F. C. R., Quetta praying for the enhancement of the sentence of the petitioners. Admittedly no notice was given to the petitioners of these proceed ings and the learned Commissioner, F. C. R. by the impugned order altered the conviction of the petitioners from section 302 to section 304, P. P. C., and sentenced each one of them to a term of 5 years' rigorous imprisonment under section 12 (2), F. C. R. and also imposed a fine of Rs. 500 on each of them, in default of payment of which they were to suffer further rigorous imprison ment for a term of 2 years. It may be mentioned here that the petitioners had paid the total fine of Rs. 2,000 which had been imposed upon them by the District Magistrate.

4. Section 49 of the F. C. R. empowers the Commissioner to call for the record of any proceeding under this Regulation and revise any decision, decree, sentence or order given, passed or made therein. Section 50, which contains the powers of the Commissioner in the exercise of his criminal revisional jurisdiction, reads as follows :‑ "

50. The (Chief) Commissioner, may, in the exercise of his revisional jurisdiction In any criminal proceeding, exercise the power to direct tender of pardon conferred by section 338, and any of the powers conferred on an Appellate Court by sec tions 195, 423, 426, 427 and 428 of the Code of Criminal Procedure, 1898, and may also enhance any sentence: Provided that nothing in this Chapter shall be deemed to authorise the (Chief) Commissioner to set aside the finding on any question of fact of a Council‑of‑Elders, where such finding has been accepted by the Deputy Commissioner, unless he is of opinion that there has been a material irregularity or defect in the proceedings orthat the proceedings have been so conducted as to occasion a miscarriage of justice."

5. There is no doubt that under these powers the Commis sioner, F. C. R. had the power to enhance the sentence of the petitioners. The question is whether he could do so without notice to the petitioners and without hearing them. Mr. Yahya Bakhtiar, the learned counsel for the petitioners contended that the procedure followed by the Commissioner, F. C. R., offends against the principle of natural justice inasmuch as the petitioners were condemned without affording them an opportunity to be heard and without even giving them a notice of these proceedings.

6. Mr. Sharaf Farldi for the State urged that there was no provision in the Statute requiring the Commissioner to give notice In the revisional proceedings, and he further urged that even though no notice was given to the petitioners they had on their own submitted a rejoinder to the Commissioner replying to the allegations of the petition of Mst. Gul Naz and others. He, therefore, argued that they had reasonable opportunity of repre senting their case to the Commissioner. Mr. Faridi further contend‑‑d that it was not obligatory on the part of the Commis sioner, F. C. R. to give an opportunity to the petitioners for a personal hearing. He pointed out that the jurisdiction of the Courts was barred by section 50 of the F. C. R. and that these proceedings were in the nature of administrative action and hence there was no obligation on the Commissioner, F. C. R. either to give notice to the petitioners or to hear them. Lastly he urged that the F. C. R. drives its validity by Martial Law Regulation No. 1 dated 17‑10‑1958 issued by the Martial Law Administrator, (B Zone) and, therefore, any action taken under it was not liable challenge in this Court.

7. As regards the last contention of the learned counsel for the State, it is sufficient to say that the Martial Law Regulation had merely declared the validity of the F. C. R. which had been earlier declared to be invalid by the High Court. It did not confer upon it any additional sanctity. No question with regard to the validity of the F. C. R. was raised in this case and all that we are required to see is whether the order of the Commissioner passed under the F. C. R. is a valid order or not. It is now too late in the day to urge that this Court has no jurisdiction to do so.

8. Mr. Faridi strongly relied upon the observations of Akram, J. in the case of Samundar v. The Crown (P L D 1954 F C 228), wherein it had been said that the orders under the F. C. R. were merely executive or administrative orders and the Court could not enquire into the validity of the finding of the Council‑of‑Elders or of the orders of the Deputy Commissioner confirmed in revision by the Commissioner. We must point out that in this case the main question before the Federal Court was whether an appeal lay to it against the orders passed by the authorities under the F. C. R. The leading judgment in the case was written by Cornelius, J. as he then was with whom Abdul Rashid, Chief Justice, and Shahabuddin, J. had agreed and that was the judgment of the Court. And though it was held that no appeal lay it was clearly pointed out by Cornelius, J. in the concluding part of his judgment that the determination was amenable to judicial review upon an appli cation In the nature of habeas corpus under section 491, Criminal Procedure Code. The observations of the learned Judge may be usefully reproduced :‑ "As In the case of decisions by most administrative agencies, in the absence of statutory provision, the only mode of judicial revision is that which depends upon application of the doctrine of ultra vires. In the present state of the law, this mode of relief would appear to be confined to an application in the nature of habeas corpus under section 491, Cr. P. C." The writ jurisdiction had not been conferred upon the Courts, when the above pronouncement was made. The position is now changed and It cannot now seriously be urged that the High Court A cannot judicially review the orders passed under the F. C. R. in the exercise of its writ jurisdiction within, of course, the recognised limits of that jurisdiction. Our attentions were drawn to a number of cases in which the High Court had exercised such a jurisdiction in matters relating to the F. C. R.

9. In the present case it must be remembered that the petitioners had been tried for a criminal offence, albeit under the procedure provided by the F. C. R. The sentence of fine, which had been awarded to them by the Council‑of‑Elders, had been accepted by the District Magistrate. That came to Rs. 666‑10‑8 for each of the three petitioners. The powers given to the revisional authority under section 50, F. C. R., are those which are conferred on an Appellate Court by sections 195, 423, 426, 427 and 428 of the Criminal Procedure Code and he is also empowered to enhance any sentence. Having regard to the fact that an accused person in these proceedings can be sentenced to long terms of imprisonment for a substantive offence and a light sentence passed on him can be substantially enhanced, as happened in this case, we are clearly of the view that in spite of the absence of any statutory provision such an order could not have been validly passed without notice to the person who was to suffer under it. To do otherwise would be clearly in violation of the principles ofl' natural justice. The fact that the petitioners had voluntarilvl submitted a rejoinder is of no consequence. In fact, in the order) of the learned Commissioner there is no reference of this rejoinder, and we do not know whether lie even read it. We are further of the opinion that in a case such as the one before us, in which the sentence passed by the Deputy Commissioner was sought to be substantially enhanced in the revisional jurisdiction, the Commis sioner was bound to afford an opportunity to the petitioners for a personal hearing. Such a view was taken by a Bench of this Court in Mehrab Khan v. Additional Commissioner and others (P. L. D. 1961 Quetta 1). The relevant observations appear in para. 18 of the judgment in that case.

10. For the reasons given above we allow this petition and quash the order of the learned Commissioner, F. C. R. passed on 30th April 1960 which is the subject‑matter of this writ petition. It will be open to the Commissioner to take up the matter again and after issuing notice to the petitioners and giving them an opportunity to be heard pass such order as he may deem fit. A. H. Order accordingly.