P L D 1965 Supreme Court 388 (PLP)

B. Z. KAIKAUS, J.‑Following are the facts which have led to this appeal by special leave. Muhammad Nakifo and others, the four respondents, were sent up for trial on the 27th March 1962, for offences under section 302/149 and 307/149, P. P. C. and section 19‑E of the Arms Act. The District Magistrate, Jacobabad, framed charges against them under sections 302/149, 147 and 148, P. P. C. as well as under section 19‑E of the Arms Act and committed them to the Court of Session on the 9th January 1963. The trial of the respondents before the Court of Session was fixed for the 14th May 1963. On the 16th April 1963, the Commissioner of Khairpur who is appellant No. 1 in this appeal passed an order directing the Deputy Commissioner, Jacobabad, appellant No. 2 in this appeal, to withdraw the case of the respondents from the Court of Session and to put it up for trial before a Council‑of‑Elders (under the Frontier Crimes Regulation). On the 25th April 1963, the Deputy Commissioner, Jacobabad, made an order withdrawing the case from the Court of Session in order that it may be referred to a Council‑of‑Elders. On the 19th April 1963, the Frontier Crimes Regulation under which the above‑mentioned orders were passed had ceased to apply to the area with which we are concerned. In view of this repeal the respondents filed a petition under Article 98 of the Constitution before the High Court of West Pakistan challenging the reference to the Council‑of‑Elders on the ground that the order passed by the Deputy Commissioner on 25th April 1963, was ultra vires. A learned Single Judge of the High Court allowed the writ petition declaring the order to be ultra vires. A Letters Patent appeal filed against the order of the learned Single Judge was dismissed. Leave to appeal was granted in this case because it was urged that the order of 25th April 1963, of the Deputy Commissioner, had been passed in obedience to and in implementation of the direction of the Commissioner which direction the Commissioner was empowered to give and the Deputy Commissioner's order was not to be regarded as an independent order. For an appreciation of the question before us it is proper to reproduce section 11 of the Frontier Crimes Regulation. It runs: "11. (1) Where, in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any several persons so accused, should be tried by a Court of any of the classes mentioned in S. 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner may or if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council‑of‑Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person. The members of the Council‑of‑Elders shall, in each case be nominated and appointed by the Deputy Commissioner." In accordance with this section the Commissioner can direct the Deputy Commissioner to refer a case to the Council‑of‑Elders. The contention is that the Commissioner having given a direction which the Deputy Commissioner was bound to obey and the order of the Deputy Commissioner having been passed only in implementation of the direction of the Commissioner the validity of the proceedings is to be judged with reference to the validity of the order passed by the Commissioner. On the date the Commissioner passed the order the Frontier Crimes Regulation was in force and the fact that it was repealed subsequently would not affect the validity of the reference to the Council‑of‑Elders. There are a number of difficulties in the way of the appellants. The first question is as to whether the Commissioner had in fact given an unconditional direction to the Deputy Commissioner to make a reference. The letter which the' Commissioner wrote to the Deputy Commissioner and in obedience to which the Deputy Commissioner withdrew the case from the Court of B Session is the following: "Reference correspondence ending with your letter No. P (PS)‑637, dated 5‑3‑1963 on the subject noted above. You are directed to please withdraw the above case from the Court of Session and put up for trial by Jirga (Council‑of Elders). The advice of the Additional Advocate‑General may please be obtained in due course." If the last sentence of this letter was not there it could be argued that there was a definite direction in. this letter to the Deputy Commissioner to make a reference. The last sentence shows, however, that the Commissioner had not finally made up his mind and that the question as to whether the case was or was not to be referred to the Council‑of‑Elders may have been affected by the opinion given by the Advocate‑General. No interpretation of the last sentence excepting that it referred to an advice as to whether the case was or was not to be referred has been put forward before us. The second difficulty is that the Deputy Commissioner too did not make a proper order of reference to the Council‑of- Elders. Following is the order which he passed: "As per directions of the Commissioner; Khairpur Division, Khairpur, communicated by him under his No. Com/34/63, dated 16‑4‑63, I hereby in exercise of the powers conferred upon me under section 14 of the F. C. R., do hereby withdraw the case State v. Nakifo and others Jakhranis under sections 147, 148, 302, 307, 149, P. P. C. and 19‑E of the Arms Act from the Court of Session, Jacobabad, for reference to the Council‑of-Elders." It will be observed that this order only withdraws the case from the Court of Session for the purpose of a reference. It does not say that the case is being referred to the Council‑of‑Elders. It has been pointed out by learned counsel for the respondents that there is no provision for the withdrawal of a case from the Court of Session under the Frontier Crimes Regulation, the _ provision being only for a reference to the Council‑of‑Elders. But even if one were to ignore this objection there has to be a reference to the Council‑of‑Elders before a case can be tried by that Council and we cannot interpret the order of the Deputy Commissioner as making a reference. We are dealing with the case of accused persons and we do not regard it proper to add to the order in order to validate the proceedings against them. There appears to be still further difficulty in the way of the appellants. The Commissioner has power only to direct the Deputy Commissioner to make a reference. It is clear, however from section 11 reproduced above that the reference takes place only by the order of the Deputy Commissioner. .Even if the Commissioner has passed an order there will be no reference as o long as the Deputy Commissioner does not pass one. No accused person could be tried by the Council‑of‑Elders only on the strength of the order of the Commissioner. If then at the time when the Deputy Commissioner made the order the Frontier Crimes Regulation had been repealed he would have no jurisdiction to pass an order under section

11. Unless then ,,ye were able to hold that once the Commissioner passed an order even the repeal of the Frontier Crimes Regulation would not affect the proceedings which could have been taken in view of section 6 of the General Clauses Act we could not hold the order of the Deputy Commissioner in the present case to be valid. It is not necessary, however; to decide the question as to whether section 6 of the General Clauses Act would warrant the continuance of proceedings in case the Act is repealed before the order of the Deputy Commissioner is passed because of the other objections to the reference in the present case. This appeal is dismissed, but there is no order as to costs. A. H. Appeal dismissed.