P L D 1954 Federal Court 228 (PLP)

ABDUL RASHID, C. J.

I agree with my learned brother Cornelius and have nothing to add. AKRAM, J.-These are eighteen petitions, some of them by the same petitioner, for leave to appeal from the order of the Commissioner, N.-W.F.P., upholding with certain additions and alterations, the order of the Deputy Commissioner, Peshawar, by which the petitioners were sentenced to rigorous imprisonment for seven years for the offence of abduction of girls from the Frontier Province and the adjoining States and their sale in the Punjab for immoral purposes. It appears that on a certain information longed at the Kabuli Gate Police Station in Peshawar by the C. I. D. Inspector Taj Muhammad , the petitioners were arrested at Lahore and taken over to the Frontier Province and the respective cases against them were referred by the Deputy Commissioner, Peshawar, to the Council of Elders under section 11 of the Frontier Crimes Regulation III of 1901.; for enquiry and report; that on receiving the report, the Deputy Commissioner, in agreement with the finding contained therein, convicted and sentenced the petitioners to rigorous imprisonment for seven years each under section 372 or 373 of the Penal Code or either of these sections read with section 12 of the Frontier Crimes Regulation ; that against this decision the petitioners moved in revision the Commis sioner, N.-W. F. P. under section 50 of the said Regula tion and the Commissioner there upon altered the conviction aforesaid to a conviction under section 366 or 366/109 or 376, as the case may be, but maintained the sentence and further imposed a sentence of fine of Re. 1 each under section 373 or section 373 read with section 12 of the Regulation. The principal question common to all these petitions which arises for our consideration is a question of law, namely whether an appeal to the Federal Court for the exercise of its prerogative powers against the order of the Commissioner passed under section 50 of the Frontier Crimes Regulation is maintainable. The answer to this question must rest on a proper reference to the provisions of the Regulation itself and decisions on other statutes not in pari materia and differently worded, cannot be of much assistance. It is to be noticed that under section 11 of the Regulation a particular official, namely, the Deputy Commissioner is authorised to refer a case to the Council of Elders so that it may after making enquiries, such as may be necessary, submit its finding to the Deputy Commissioner, who thereupon, if he accepts a finding of guilty can convict and pass proper sentence (section 12) subject to revision by the Commissioner (section 50): It is evident that an order of the above nature cannot be re garded as having been made judicially by a court of law. The Deputy Commissioner and the Commissioner in this respect appear to have been mentioned in the Regulation merely as persona designata and not as judiciary. The conviction and the sentences in question, therefore, cannot be treated as made in the course of performance of the normal duty of administration of justice in a litis contestatio. These orders are merely executive or administrative orders which have been made with a view to extirpating a social evil and consequently the courts cannot 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 Commis sioner. Furthermore the jurisdiction of the courts seems to have been clearly and expressly barred by section 50 of the Regulation. "Section

60. Except as therein otherwise provided no decision, decree, sentence, or order given, passed or made or act done, tinder, Chapter III, Chapter IV, Chapter V or Chapter VI, shall be called in question in, or set aside by, any Civil or Criminal Court." For these reasons, I think the petitions must be dismissed as not maintainable. SHAHABUDDIN, J.

I agree with the order prepared by my brother Cornelius, to which I have nothing to add. CORNELIUS, J.-There are 18 petitions for special leave to appeal, from orders made by an authority in the North-West Frontier Province described as the Commissioner under the Frontier Crimes Regulation, 1901, acting under section 50 of that Regulation. The cases bear a close resemblance to each other, and for the purpose of furnishing a general picture of each case, it will largely suffice to state the main features of one of them. I select for this purpose the first case namely that of Samandar. In this case four accused persons are mentioned in the Order of Reference made under section 11 of the Regulation, by which the case was sent for enquiry to a Council of Elders. The Reference shows that sanction of the Provincial Govern ment had been taken to the reference but why this should have been necessary is not apparent. The Order of Reference commences with the following categorical statement of facts :- " Mst. Shahzadgai .was sold by Misri .to Samandar son of Jullundur, Mst. Roshan Jan wife of Said Gul for purposes of prostitution. She was ultimately brought to Lahore where she was actually subjected to prostitution. She was recovered by the police on 15th November, 1952. Chaudhry Fateh Muhammad son of Siraj-ud-Din of Lahore, is said to have abetted the offence." Then follows the statement that the prosecution evidence is mainly contained in the statement of Mst. Shahzadgai " who charges the accused and says that she was subjected to prostitution by them against her will and that she was forcibly abducted for that purpose," after which under the heading Medical Evidence " it is stated that the Lady Doctor gives the age of Mst. Shahzadgai as 15/16 years. Earlier in the Order the age had been mentioned as 18/19 years, and it is to be noted that in some cases, the discrepancy between the age first given in the Order of Reference and that alleged to have been stated by the Lady Doctor is even greater. The following unequivocal statement regarding "motive" is then made. "The motive was obviously to make money by trading in girls for immoral purposes." It is noted that the accused persons pleaded not guilty. The words containing the operative Order of Reference are important and are reproduced below :- "And it is essential to put a stop to such immoral transac tions, it is expedient that this case should be referred to a Council of Elders under section 11 F. C. R. Sanction of the Provincial Government was accordingly obtained vide Chief Secretary's memo No. 6808-P. Im. dated 26th December, 1952. Hence under section 11 F. C. R. I refer the case a Jirga for enquiry and report on the following points:-

1. What is the actual age of the girl ?

2. Whether the girl was sold by Misri, son of Gajmot of Swat for immoral purposes ?

3. Whether the girl was purchased by. Samandur, son of Jullundur, Mst. Roshan Jan, wife of Said Gul, for immoral purposes ?

4. Whether the accused abducted the girl with the object of forcing her to submit to illicit intercourse or to prostitution ?

5. Whether Chaudhry Fateh Muhammad, son of Siraj-ud Din of Lahore, abetted the offence ?

6. Any other recommendations which the Jirga might like to make to meet the ends of justice." Under section 11 of the Regulation, a condition of the making of an Order of Reference is that in the opinion of the Commis sioner or Deputy Commissioner it should be "inexpedient that the question of the guilt or innocence of any person or persons accused of any offence or of any of several persons so accused, should be tried by a Court of any of the classes men tioned in section 6 of the Code of Criminal Procedure, 1898." In the course of the argument we were referred to a memoran dum issued by the Provincial Government containing advice to officers concerned; as regards the circumstances in which recourse is to 'be had to the provisions of section 11 of the Regulation. One of the circumstances specifically mentioned is that the evidence in the case is not of the standard required to satisfy the ordinary Courts of justice. The Order of Reference is dated the 29th of January 195,3 and the Jirga's report is dated the 21st November 1953. It should be noted that the Jirga was not composed of "Elders" in the generally accepted sense of tribal notabilities or elderly tribesmen. The three members of the Jirga were respectively the City Magistrate, Peshawar, an Assistant Commissioner of Nowshera and an Extra Assistant Commis sioner of Nowshera: Their report is described as "Jirga Award." After 'stating briefly the manner in which the case had come before the Jirga, the following observation was made, which, is common to all the cases before us :- "During our enquiry we have recorded both the prosecu tion evidence and the defence evidence in addition to the statements of the accused. The Jirga has also been to Lahore and we have conducted open and secret enquiries on the spot there." It should be mentioned that under section 11 of the Regulation there is no provision for the Jirga to follow any particular procedure. The requirement is that the Jirga should "come to a finding on the question after such inquiry as may be necessary and after hearing the accused person." This is in justification for the Jirga holding "open and secret enquiries", as stated by them. Their conclusions were stated as follows :- "

1. The age of Mst. Shahzadgai is 16 years

2. Misri accused sold the girl to accused Samandur for immoral purposes. Misri accused also committed rape with the girl while taking her to Lahore.

3. Samundur accused purchased the girl from Misri accused. Finally Mst. Roshan Jan accused purchased her from Samundur accused and compelled her to lead immoral life.

4. She was abducted by Misri accused for immoral purposes on the false pretext that he would marry her.

5. Chaudhry Fateh Muhammad abetted the offence of her prostitution.

6. Any other recommendation : Nil." On the 2nd December, 1953 the Deputy Commissioner made an order under section 11 convicting Samundar, Mst. Roshan Jan and Misri. The following paragraph is common to the similar orders in each of the cases before us and maybe reproduced in full :- "The Jirga members have submitted a unanimous award. The award is based on proper inquiry in various places and recorded evidence. The most important piece of evidence is the statement of the complainant girl." Then follows a paragraph in which the contents of the Jirga's replies to the questions referred are incorporated, after which, agreeing with the "unanimous award of the Jirga", the Deputy Commissioner convicted Misri under sections 366, 376 and 372 P P C and sentenced him to rigorous imprisonment for seven years for each offence, to run concurrently. He con victed Samandar under section 372 P P C and Mst. Roshan Jan under section 373 P. P. C. and sentenced each of them to undergo seven years' rigorous imprisonment. As for Chau dhary Fateh Muhammad, he was said to be absconding, and a direction was made for the issue of a "non-bailable per petual warrant of arrest" as well as for proceedings under sections 87 and 88 Cr. P C. A number of revision petitions having been moved before the Commissioner, he composed an order, so worded as to he applicable to the case of any individual among a large group of petitioners without the necessity of mentioning the name of such person, or even specifying the offences of which he had been charged and found guilty. The order in Samundar's case possesses this quality in part, and may accordingly be reproduced in full :- " In this case the Deputy Commissioner has passed orders of conviction under section 372 P P C read with section 12 F C R or section 373 P P C/12 F C R or one of these sections read with section 199 P PC, Under section 12 F C R the Deputy Commissioner may only sentence a person to imprisonment who is convicted of an offence mentioned in the second schedule. Neither section 372 nor 573, nor the abetment of such offences are included in this Schedule The Deputy Commissioner's sentence of imprisonment on those persons who are convicted only under section 372 or 373 or either of these sections read with section 109 is therefore illegal and is hereby set aside. However, from the facts or record it is clear that the accused is also guilty of an offence under section 336 P P C read with section 12 F C R or an offence under section 366 P P C /109 P P C read with section 12 F C R and I accord ingly replace the sentence of conviction under section 372 or 373 or either of these sections read with section 109 P P C with conviction under section 366 P P C read with sec tion 12 F C R or section 366/109 P P C read with section 12 F C R as the case may be, and hereby sentence the accused to seven years R I. The sentence will run concurrently, The accused is also sentenced to a fine of Re. 1 under section 372/373 P P C read with section 12 F C R. Regarding those accused convicted under section 372, 373 as well as section 366 or 376 the order of sentence is hereby amended as follows :- The accused is sentenced to 7 years R. I. for each offence under section 366/376 P P C read with section 12 F C R. The sentences will run concurrently. The accused is also sentenced to a fine of Re. 1 under section 372/375 P P C read with section 12 F C R." The first two paragraphs of the order reproduced above constitute the order of the Commissioner in the following petitions namely, Nos. 31, 32, 33, 35, 36, 38, 39, and

40. In two cases viz., Nos. 30 and 42, these two paragraphs are preceded by a paragraph dealing with a special ground, namely that persons resident outside the North-West Frontier Province are not subject to provisions of the F C R section 1 (4). It was pointed out that the Regulation applies to all persons accused or joinly concerned in the commission or abetment of an offence along with persons born or ordinarily resident in the district of the N.-W. F. P. It will be noticed that by his "standard" Order repro duced above, the Commissioner dealt with an error discovered by him, namely that the Deputy Commissioner had awarded a sentence of imprisonment upon a conviction under section 372 and 373 P P C which he was not empowered to do. In petitions Nos. 54 and 55, the conviction of the petitioner was under section 373 P P C., and the Commis sioner's Order, proceeding on the same grounds as in the order reproduced above, altered the sentence of imprison ment under section 373 to a fine of one rupee in petition No. 54, but added a conviction under section 366 P P C and a sentence of seven years' rigorous imprisonment. In petition No. 55, the fine under section 373 is not mentioned, but as the words "the sentences are to run concurrently" are added, it would seem that the sentence of seven years' rigorous imprisonment under section 373 was maintained. In the three remaining cases, viz., petitions Nos. 3 4, 37 and 53, the convictions were under sections 366/109 P P C, 376 P P C, and 376 P P C respectively and finding no reason to interfere; the Commissioner rejected the revisions by means of short orders. In each case, special leave to appeal from the orders of Commissioner which have been briefly described above. is sought on a large number of grounds, relating to constitution of the Jirga, change of personnel of the Jirga in the course of the enquiry, the nature of the proceedings before the Jirga, the jurisdiction of the authorities under the Frontier Crimes Regu lation, the legality of the findings of the Deputy Commissio ner and Commissioner and the sufficiency of the evidence led before the Jirga to establish the offences of which the petitioners are found guilty. The consideration of these questions must be postponed to consideration of the question whether the subject-matter in each of these petitions is such as falls within the prerogative of the Crown of granting appeals. In other words, whether or not special leave to appeal can be granted depends upon whether the Commissioner or the Deputy Commissioner can be regarded as a Court of justice, or whether on the contrary, these officers are not to be regarded as part of an administrative agency established for the settlement of criminal causes, under the special conditions obtaining in frontier areas. On a careful consideration of the statutory provisions and the procedure actually followed in enquiries of this nature I am satisfied that, if the ascertainment of the commission of an act, falling within one or more of the definitions of offences contained in the Penal Code, by the mode prescribed in section 11, Frontier Crimes Regulation can be regarded as a mode of justice at all, it is certainly not such a mod as is operated through the ordinary courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among, the agencies of the general administration. Trial by Jirga cannot be regarded as a summary trial, of the nature provided by the Criminal Procedure Code. As these cases themselves show, shortening of the duration of a case is not a necessary or even an intended result of reference to Jirga. The exact procedure to be followed in summary trials is laid down in the Criminal Procedure Code. Such trials must follow either the summons case procedure or the warrant case procedure even though the record is maintained in a form, different from and much briefer than that prescribed for ordinary trials In the case of Jirgas, no procedure of any kind is laid down. The requirements are that there should be such enquiry "as may be necessary" and that the accused person should be heard. By the proviso to section 50 of the Regulation, the Commissioner is debarred from interfering with a finding of fact recorded by a Jirga, which has been accepted by the Deputy Commissioner, "unless he is of opinion that there has been a material irregu larity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice". In the absence of any rule, the ascertainment of material irregularity or defect except perhaps in cases where there has been no enquiry at all, or the accused person has not been heard at all would vary according to the opinion of the particular Commissioner in relation to each particular case, and consequently there is no scope for imposing any specific measure of regularity upon the proceedings of Jirgas, with the aid of section

50. Nor does the second provision furnish any scope for development of a rule in this respect. There being no regular procedure, such as is laid down in the Criminal Procedure Code for the preservation of strict impartiality and fairplay between the prosecutor and the accused, the mere avoidance of a proceeding on the discovery of a procedure which is in itself likely "to occasion a miscarriage of justice" cannot be said to furnish adequate scope for enforcing the rule of equal opportunity to both sides. The form of procedure being thus left to be determined arbitrarily by the Jirga, it seems clear enough that the inten tion of the Regulation also is that none of the recognised rules of evidence should be binding upon the Jirga. The main principles which underlie the law of evidence are exclusion of irrelevant matter and of hearsay, coupled with insistence upon the production of the best evidence, and upon a strict application of these rules depends the safe administration of justice. Administrative agencies are very frequently saved from the application of these rules by statute or otherwise, and that is certainly the case with respect to Jirgas. In these very cases, the Jirga has declared that it held "open and secret enquiries", which suggests investigations of a nature entirely different from those which are permissible in a Court of law. Thus, in such enquiries, one would expect to receive a good deal of hearsay evidence, and statements based on prejudice or pre-conception and even mere gossip may be introduced. In such circumstances, it is impossible to preserve the rule of the best evidence. It is likely that some, and it may be a considerable portion, of the evidence which satisfied the Jirga was received ex parte, and thus without cross-examination. The statement that "open and secret enquiries" were made at Lahore clearly suggests the possibility that such questioning was carried on in the absence of the accused persons. Moreover, information gathered by putting questions in open assembly can never have the quality of judicial evidence, nor can information obtained by secret investigation be so regarded. The language employed in the Order of Reference which has been cited above, may also have led the Jirga to take "official notice" of certain matters which were in fact justifi able issues, by reason of the statements having been made by high administrative authorities. For an administrative agency, the taking of "official notice" may be perfectly in order, but it is highly prejudicial to the dispensation of justice. The process of decision provided under the Regulation is also foreign to justice as administered by the Courts. The hearing is before a Jirga but the power of decision is vested in the Deputy Commissioner, who does nor see or; hear the accused or any of the witnesses, and is not empowered by law to do so, even if he should so desire. In these circumstances, the Jirga is a merely advisory body, and since the Deputy Commissioner does not have the case presented before him through counsel, it is obvious that his decision is wholly vicarious. Decisions of this nature are common enough on the administrative side, but they are obnoxious to all recognised modern principles governing the dispensation of justice. In such circumstances, it is impossible to preserve public confidence in the justness f the decision. That may be of secondary importance to an administrative agency, but it is of permanent importance to a Court of justice. The mere fact that a revision is permitted obviously does not remedy the situation in this respect. The present cases provide clear proof that the Commissioner did not feel bound to examine the case of each accused person before him on its merits, for he has disposed of a great number of these cases by means of a standard order of a composite nature, designed to apply to a number of different contingencies, but containing no reference to any accused person by name, much less to the particular offence of which he is found guilty and the evidence upon which that finding was based. A feature common to administrative agencies is that they are concerned more largely with the vindication of public interest than with the enforcement of private rights. That feature appears very clearly throughout the proceedings actually taken in the present cases, which, in this respect, cannot be said to have been conducted otherwise than in compliance with the express provisions and the underlying intentions of the Frontier Crimes Regulation. I am therefore clearly of the opinion that the proceedings which have been taken in the present cases are not to be regarded as proceedings in justice, but that they are from every point of view to be regarded as proceedings before administrative agency, specially provided for the settlement of criminal causes, and specifically adapted to the conditions prevailing in frontier districts, at any rate at the time when the Regulation was enacted. The cases bear resemblance in several respects to the reported case of Moses v. Parker (L R 1896 Appeal Cases p. 245.), which came before the Privy Council from Tasmania. There the Supreme Court of Tasmania had been vested by statute with the function of reporting to the Governor, in respect of disputes respecting claims to land vested in the Crown, as to the person who was "in equity and good conscience entitled to a grant" of such land. In dealing with such disputes, the Supreme Court was by statute expressly relieved from , all rules of law and all technicalities and legal forma. The report of the Supreme Court was by statute made binding on the Governor. In the particular case, the Supreme Court having made the report, and subsequently refused leave to appeal to the Privy Council, application was made to the Judicial Committee for special leave. Certain of the observations in the judgment of Lord Hobhouse are directly applicable to the present case. In advising the Crown to dismiss the petition, Lord Hobhouse observed as follows :- "The Court is to be guided by equity and good conscience and the best evidence. So were the Commissioners. So every public officer ought to be. But they are expressly exonerated from all rules of law and equity, and all legal forms. How then can the propriety of their decision be tested on appeal? What are the canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong? It seems almost impossible that decisions can be varied except by reference to some rule ; whereas the Court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules ; and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case. If it were clear that appeals ought to be allowed, such difficulties would doubtless be met somehow. But there are strong arguments to show that the matter is not of an appealable nature". The Judicial Committee attached no weight to the circum stance that the function had been entrusted to the highest Court of justice in Tasmania. On this point, Lord Hobhouse observed as follows: "Applications for land yet ungranted by the Crown are certainly not ordinary civil rights ........ In 1858 they were transferred to the Court with an express provision that its decision should be final the Legislature ordered the Court to be guided by the same principles as were laid down for the commissioners, and expressly exonerated them from all rules of law or practice. It is clear to their Lordships that these affairs have been placed in the hands of the judges, as persons from whom the best opinion may be obtained, and not as a Court administering justice between litigants; and they hold that such functions do not attract the prerogative of the Crown to grant appeals". It is clear that in determining whether a particular jurisdiction attracts the Crown's prerogative, it is the substance and not the appearance which would govern the decision. The principle is further elucidated by the decision of the Judicial Committee in the case of Raja Sarda Mahesh Prasad Singh'. v,. Badri Lal. (63 I A p. 207.) That was a case from a Tehsil of the Mirzapur district in the United Provinces, which was a "Scheduled District" under the Scheduled Districts Act, 1874. Under that Act certain rules had been made for the administration of civil justice, which empowered the Collector to try and determine suits of every description, and the Court of the Collector was to be considered as the District Court. The Court of the Commissioner was to be considered the highest Court of appeal, but there was a provision enabling the Local Government in any case where the Commissioner had on appeal reversed the decision of the Collector, to refer the case to the Board of Revenue and the orders of Borad in such case were made final. It was contended before the Judicial Committee that the Board of Revenue was not a Civil Court, and the order of the Board of Revenue was not an order of a Court. That preliminary objection was over-ruled, and although the point is not specifically dealt with in the judgment delivered by the Judicial Committee, it is clear that their Lordships were of the view that in respect of the particular case before them, the Collector, the Commissioner and the Board of Revenue acted as an hierarchy dealing with the administration of civil justice in a particular area. On behalf of the petitioners in the present cases, it was sought to argue that the mere descriptions "Deputy Commis sioner" and "Commissioner" should not prevent this Court from holding that the proceedings before them in the present cases were in fact proceedings in justice, and the Mirzapur case was cited in support. The authority of the latter case would support the conclusion that if in substance, what passed before these officers, was a proceeding in the dispensation of justice, the descriptions applied to them would not stand in the way of this Court dealing with the resulting decision. But, it will be clear from the foregoing that "since the proceedings before the Deputy Commissioner and, the Commis sioner were not amenable to any rule which might be regarded as a rule of "due process" or "best evidence," it is impossible for this Court to apply any principles whatsoever which may possess the slightest validity for judging the correctness or otherwise of their decisions. The authorities from whose decisions an appeal is sought to be brought before this Court, are practically free from all rules almost to the same extent as was the Supreme Court in the Tasmania case. To allow an appeal would be plainly contrary to the intention of the authority which enacted the Frontier Crimes Regulation, 1901 which was to leave the Deputy Commissioner and the Com missioner practically unfettered in relation to their decisions. The guiding principle for these authorities which appears clearly from the Regulation is that of public policy, which this Court is not competent to enforce. The Regulation indeed provides by sections 8, 9 and 52, for reference of certain civil disputes, which if unresolved, are likely to lead to bloodshed or disturbance of the peace, or which involve parties belonging to "a frontier tribe:', to Councils of Elders for a finding, on the basis of which the Deputy Commissioner may award a decree in so far as the finding is not "contrary to good conscience or Public policy" and a revision is allowed to the Commissioner on certain grounds, one of which is that the decree is "contrary to good conscience or public policy." Obviously, such a decree is no simple decree of a Civil Court of general jurisdiction. It is essentially to be regarded as an instrument embodying a settlement of rights between the contestants, which also satisfies the interests of public policy, by which can only be understood, in relation to an unsettled or frontier area, the general administrative policy of the Government. I entertain no doubt that decisions of the same authorities under sections 11, 12 and 50 of the Regulation partake of the same character, and am thus confirmed in the view that the subject-matter of these petitions is not appealable in this Court. 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 o 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. For these reasons I would dismiss these petitions. A. H. Petitions dismissed.