P L D 1950 Peshawar 52 (PLP)

Mehr Dil, of village Katti Garhi, Tahsil and District Mardan, was produced by the Police for action under section 40, Frontier Crimes Regulation, before the Deputy Commissioner, Mardan. The case against Mehr Dil was that he went about from place to place making inflammatory speeches and preaching sedition with a view to bring info contempt and hatred the Provincial Government. It was further alleged against him that he was a member of the Awami Muslim League and incited disaffection against the Government established by law. The Deputy Commissioner, Mardan, after recording some evidence came to the conclusion, that it was necessary to bind down Mehr Dil under section 40, Frontier Crimes Regulation. He, therefore, ordered him to execute a bond in a sum of Rs. 10,000 with five sureties, for his good behaviour for a period of three years. It appears that Mshr Dil failed to. execute the necessary bond, and was, therefore committed to custody and is at present undergoing imprisonment awarded to him in default of the execution of the bond. Sayed Bismillah Shah, son of Sayed Muzamrnil Shah a Sayed of Akora. Tahsil Nowshera, District Peshawar, has put in this application under section 491, Criminal Procedure Code in which he bas alleged that the detention of Mehr Dil is illegal, and, he should, therefore, be set at liberty. In the application he has alleged that Mehr Dil is ail honest and con scientious citizen and has been fearlessly exposing the irregu larities of the present Ministry, and specially those of the Hon'ble the Chief Minister. It is further alleged, that the order of the Deputy Commissioner. Mardan, sending Mehr Dil to jail was intended to put pressure on him so that he may give up his opposition to the present Ministry, abandon his lawful activities, and should not say anything against the Hon'ble the Chief Minister. In the application, it, was also alleged that the Hon'ble the Chief Minister of N‑W.F. Province had convened a conference of all the District Officers of the Province to stifle and kill the organization and in pursuance therefore, several leaders and workers of the said organization have been imprisoned and the Frontier Crimes Regulation invoked for this purpose in a spirit of vindictiveness to deprive the detenus of their elementary civic right. Mr. Suharwardy, who appeared for the applicant argued, the case at some length. Not contended that the Hon'ble the Chief Minister had convened a conference of the Police and the executive Heads of the District in which he had asked them to take action against the members of the Awami Muslim League, because the Awami Muslim League had been formed in opposition to the official Muslim League, to which organization the Hon'ble the Chief Minister of the N.‑W. F. Province belongs. He urged that it was as a consequence of, that conference that Mehr Dil was arrested by the Police and ultimately bound' down by the Deputy Commissioner of. Mardan. As regards the conference which the Hon'ble the Chief Minister is alleged to have called of all the District Officers, there is no proof on this record, Mr. Suharwardy depended for its proof on an affidavit which has been attached to the application, and which is to the following effect:‑-- "I, S. Bismillah Shah, son of Sayed Muzammil Shah Sayed of Akora, Tahsil Nowshera, District Peshawar, declare on oath that the contents of the attached application for habeas corpus from para, 1 to ..are true to the best of my knowledge and belief." The fact of the conference having been convened by the Honble the Chief Minister has not been attested by any affidavit. The paragraph of the application in which the above allegation is made is omitted from the affidavit attested. Assuming that the Hon'ble the Chief Minister did convene some conference, there is no evidence on the record, nor is there any affidavit put in. by the applicant to show that the officer who challaned thus accused under section 40, Frontier Crimes Regulation, and the Deputy Commissioner who bound..... down, attended this conference, or that they took the actions in consequence of the decisions arrived at in the conference It will , be absurd to believe that the entire police of the District and the Magistracy are so very much in the hands of the Hon'ble the Chief Minister, that they would go to the extent of taking away the liberty of a peaceful citizen in the Province just to please him. It is equally absurd to believe that Hon'ble the Chief Minister, N.‑W. F. P., would ask his officials to imprison or bind down people simply because he has some political difference with them. It was next argued by learned counsel for the applicant that no action under section 40, Frontier Crimes Regulation, could possibly be taken against the detenu on the material placed before the Deputy Commissioner. He discussed the evidence and the conclusions arrived at on that evidence by the Deputy Commissioner, Mardan, and wanted me to sit as a Court of Appeal on the order passed by the Deputy Commis sioner. Under the Frontier Crimes Regulation, a right to revise an order passed by the Deputy Commissioner has been given to the Commissioner. The High Court is not empowered to hear appeals or revisions against such orders, neither can it act 'in judgment as a Court of Appeal for finding out the correctness or otherwise of the exercise of the powers 'by the Deputy Commissioner under the Frontier Crimes Regulation. It is true that in certain exceptional cases, it is permissible to attack an order passed by a Deputy Commissioner under the Frontier Crimes Regulation that it constituted a fraud upon the statute; in other words, that the Deputy Commissioner, although he has passed an order under the Frontier Crimes Regulation, has in fact passed it .on account of some ulterior object. The onus of substantiating this plea as to the fraudulent nature of the order rests upon the applicant, and in this particular case. I must hold that this onus bas not at all been discharged. I am consequently of the opinion that this Court has no jurisdiction to go into the Validity of tire order' passed by the Deputy Commissioner. The Deputy Commissioner is tire sole judge to decide whether there is any case made oat by the prosecution to bind a certain person down under section 40, Frontier Crimes Regulation. The High Court cannot interfere even if the Deputy Commissioner hits made a mistake either of law or of fact in arriving tit any particular decision, Assuming for the sake of arguments that this Court has jurisdiction, section 60 of the Frontier Crimes Regulation has taken it away. The point involved in this case was discussed at some length by their Lordships the judges of this Court in case Khanimullah and another v. Crown reported is 1947 Peshawar‑ Law Journal 19, in which they observed as follows:‑ "We have no power to go into the question whether the order referring the case of the petitioners for trial to a Jirga is justified on the facts of the case or not. Section 60, Frontier Crimes Regulation, provides that except as provided in the Regulation, no decision decree, sentence or order given, passed or made, or act done, under Chapters III, IV, V or VI shall be called in question, or set aside by any Civil or Criminal Court. The order in question was passed under Chapter Ills and it cannot be called in question in any Criminal Court, except as provided by the Regulation unless it can be shown that it was without jurisdiction. As we have held that the Deputy Commissioner had the jurisdiction to pass the order in question, it cannot be called in question in this Court. The Commissioner alone has the power under section 49, Frontier Crimes Regulation, to revise such orders. In these circumstances, we cannot hold that the detention of the petitioner is illegal. No action is, therefore, called a for under section 491, Criminal Procedure Code. The petition shall, therefore, be dismissed. This is a Bench authority and I am bound by it. Taking all the circumstances of the case into consideration, I hold that I have no jurisdiction to go into the question raised by Mr. Suharwardy in his arguments. I, therefore, do not see any reason to issue a rule nisi and reject the habeas corpus petition. Mr. Suharwardy has asked me to grant him a certificate under section 205, of the Government of India Act, as adopted by the Pakistan Provisional Constitution Order, 1947. The question however, does not involve any question of law, much less a substantial question of law as to interpretation of the Government of India Act, 1935, or any Order in Council made thereunder. I, therefore, see no reason to grant him a certificate which is hereby withheld. K. M. A. Order announced.