P L D 1964 (W (PLP)

ORTCHESON, J.‑The present reference has arisen out of the hearing at Quetta by a Division Bench of this Court of five Writ Petitions, No. 1235 of 1963 (Karachi) originally instituted a; No. 6 of 1963 (Karachi) ; No. 1236 of 1963 (Lahore) institutes as No. 7 of 1963 (Karachi) ; No. 16 of 1963 (Quetta) ; No. 1314 of 1963 (Lahore) instituted as No. 39 of 1963 (Quetta) ; and No. 1315 of 1963 (Lahore), which is also No. 494 of 196? (Karachi) and No. 50 of 1963 (Quetta), preferred against orders passed under the Frontier Crimes Regulation (Central Regulation III of 1901) hereinafter referred to as the Regulation.

2. While Writ Petition No. 16 of 1963 (Quetta), filed by one Muhammad Husain Unqa against the State, was being heard, the attention of the Court was drawn to the press report of a judgment of the Supreme Court of Pakistan, later published as Muhammad Akram and others v. The State (PLD 1963 S C 373), delivered in a case arising out of the Regulation. Although the complete text of the judgment was not before them at that time, the learned Judges noted that according to the report the Supreme Court had held with reference to the Regulation that the superior Courts were incapable of dispensing justice by way of exercising a supervisory or corrective role in an administrative agency which was not governed by any rules of procedure or of evidence, which was protected from interference by any civil or criminal Court, and about which it could truly be said that the Legislature had been at great pains to keep it free and unfettered in each case from any system of rules, and further that for the superior Courts to interfere, whether by approval or otherwise, with the operation of the Jirga system in any case once that case is competently drawn into the system, would be a violation of the legislative intention. The learned Judges of the Division Bench then went on to observe :‑ "This statement of the law by their Lordships of the Supreme Court is bound to have a great impact on the numerous writ petitions that are pending in the High Court challenging references, trials or decisions recorded under the F. C. R. We deem it necessary that this case should be referred to our Lord the Chief Justice for the constitution of a Full Bench to consider . . . . the extent and limits of the jurisdiction of the superior Courts in interfering with the orders passed by the Jirga authorities in cases under the F. C. R. in the light of the judgment of the Supreme Court referred to above." In the above petition another point was also raised, namely, whether a bond executed under section 40 of the Regulation by a person to be of good behaviour or to keep the peace can be forfeited on the basis of the mere subjective opinion of the authority concerned that the conditions entailing forfeiture exist. The following point was also, therefore, referred to a Full Bench:

"Whether under section 43 of the F. C. R. the forfeiting authority himself is the judge of the matter whether a person whose bond is to be forfeited has or has not committed the offence as mentioned in that provision or whether it is to be preceded by a finding of some other authority, judicial or otherwise."

3. As the first question referred to the Bench also arose in the remaining petitions, the learned Judges included them in the reference.

4. Although the matters referred to the present Bench are independent of the facts of the various petitions, those facts may, for the sake of convenience, be briefly set out.

5. Writ Petitions Nos. 12 15 and 1236 of 1963 (Lahore) are identical. The petitioner is one Saruar Nawab Haji Muhammad Khan, who had leased out two water channels, known locally as karezes, to two persons. Qazi Qadir Khan and Saleh Muhammad Khan, respondents Nos. 3 and

4. The lease was originally for a period of five years from the 1st of January 1949, and the deed con tained a clause that if during the period of the lease both karezes remained dry throughout airy month the petitioner would not be entitled to the lease money for the current year, while if one dried up, the lessees would pay a proportionate amount of the lease money. In due course a dispute arose between the petitioner and the above respondents which, by order dated the 24th of November 1955, was referred by the Deputy Commissioner concerned to a Jirga. The Jirga gave a majority award can the 6th of February 1957, but before action could be taken thereon by the Extra Assistant Commissioner and Additional District Magistrate, Quetta, (respondent No. 2 in the petition) the Regulation was declared void on the 22nd of April 1957 by a Full Bench of this Court at Peshawar on the ground that it contravened Article 5 of the 1956 Constitution. Later, however, after the abrogation of the above Constitution, the Martial Law Administrator, Zone B, promulgated Regulation No. 1, which validated the Regulation with effect from the 8th of October 1958. It may also here ` be mentioned that in Dosso's case (P L D 1958 S C (Pak.) 533) it was held by Cornelius, J. (as he then was) that the view taken by the High Court was untenable, though he also held that it would not have been open to him to reverse the judgment of the High Court and recall the writs issued by it unless he had been satisfied that the view was in fact untenable. The remaining learned Judges held that since Article 5 of the late Constitution had disappeared from the new legal order, the Regulation was, by reason of Article 4 of the Laws (Continuance in Force) Order, 1958 still in force, and that all proceedings in cases in which the validity of the Regulation bad been called in question had abated.

6. Before the above pronouncement of the Supreme Court, respondent No. 2 in the present petition had returned the proceed ings to the parties to file civil suits. Suits were accordingly instituted in the Court of the District Judge, Quetta, but on the announcement of the judgment in Dosso's case, the proceedings under the Regulation were revived, and on the 7th of October 1959 respondent No. 2 passed a decree in favour of respondents Nos. 3 and 4 and against the petitioner. A revision filed by the petitioner before the Commissioner, Quetta, was rejected, and the present petitions were filed under Article 98 of the 1962 Constitution.

7. The facts leading up to Writ Petition No. 16 of 1963 (Quetta) are that the petitioner, Muhammad Husain Unqa, was bound down on the 6th of September 1961 under section 40 of the Regulation in the sum of Rs. 60,000 with six sureties. On the 31st of August 1962 he was served with a notice to show cause why the bonds should not be forfeited under section 43(1) of the Regulation on the ground that in August 1962 he had on various occasions indulged in the dissemination of sedition and taken part in meetings held at Quetta and Sariab in which seditious speeches were delivered. He was also held to be pro moting feelings of hatred, contempt and dissatisfaction among the people against the Government. The petitioner denied the allegations, but the Deputy Commissioner, Kalat, held that he had violated the terms and conditions of the security bonds, which were accordingly ordered to be forfeited. The petitioner was further directed to furnish a fresh bond for the unexpired period of those originally executed. A revision filed by the petitioner before the Commissioner was dismissed on the merits, but it was held that the sureties had only furnished security in the sum of Rs. 10,000 each. The amount forfeited was accordingly reduced from Rs. 60,000 to Rs. 10,

000. Aggrieved by that order the petitioner filed the present petition.

8. Writ Petition No. 1314 of 1963 (Lahore) has been filed by one Sardar Baluch Khan Muhammad Hasani against the Commissioner and the Deputy Commissioner, Kalat. It is stated that in April 1963 K. S. Mir Karam Khan, who had been appointed Sardar of the Mengal Tribe in place of Sardar. Ataullah Khan Mengal, M. N. A., was murdered in his village. The above Sardar Ataullah Khan and his father, Mir Rasul Bakhsh, were arrested together with four or five other persons for complicity in the murder, the question of their guilt or innocence being subsequently referred by respondent No. 2 to a Jirga. Against the above order of respondent No. 2 the present petition has been filed. (It is unnecessary to enumerate the grounds in detail).

9. The remaining petition, No. 1315 of 1963 (Lahore), is by one Mehrullah Khan against the Superintendent, Central Jail, Mach, the Deputy Commissioner, Kalat, and the Government of West Pakistan, and is connected with Writ Petition No. 1314, the petitioner being a son of Mir Rasul Bakhsh Mengal and a brother of Sardar Ataullah Khan Mengal. The relief claimed is, however, not only under Article 98 of the Constitution but also under section 491 of the Code of Criminal Procedure, it being prayed on the one hand that Mir Rasul Bakhsh be set at liberty, and on the other that all the proceedings taken by the Deputy Commissioner, Kalat, respondent No. 2, under the Regulation be declared to be without lawful authority and of no legal effect.

10. Before I proceed to discuss the questions referred to the Full Bench, one preliminary matter may conveniently be dealt with. In the course of the hearing of the petitions our attention was drawn to the West Pakistan Criminal Law (Amendment) Act (VII of '1963) and certain arguments were sought to be built on it. For two reasons, however, the above Act is irrelevant to the present reference. In the first place, the petitions out of which the references arise are all from the Kalat and Quetta Divisions, and even as it originally stood the above Act was not immediately applicable to those Divisions. Section 1 ran :‑ "(1) This Act may be called the West Pakistan Criminal Law (Amendment) Act, 1963. (2) It extends to the whole of the Province of West Pakistan, except the Tribal Areas. (3) It shall come into force at once, except in Quetta and Kalat Divisions, where it shall come into force on the expiry of such period, not exceeding twelve months from the date of first publication of this Act in the official Gazette, as Govern ment may, by notification appoint in this behalf." No notification was issued, and on the 24th of November 1963 the Act was amended by the West Pakistan Criminal Law (Amendment) Ordinance (XLIV of 1963). By the above Ordinance the following was substituted for subsections (2) and (3) of section 1, already cited :‑ "It extends to the whole of the Province of West Pakistan, except the Tribal Areas and the Areas specified in the Third Schedule." Item 1 of the new Third Schedule is "the Divisions of Quett and Kalat." It will thus be seen that whereas, under the original scheme of the Act, it was to be made applicable to the Quetta and Kalat Divisions within one year at latest from the passing of the Act, the said Divisions now stand permanently excluded from its operation.

11. The other reason for holding the West Pakistan Criminal Law (Amendment) Act, 1963, to be irrelevant for our present purposes is that even if the Act had come into force in the Quetta and Kalat Divisions, the Regulation being thereupon repealed, the present petitions, having been instituted before the passing of the Act, would not have been affected, their continuation being one of the ordinary incidents of the repeal of an enactment. It may be added as a matter of interest that in order to leave no possible scope for misunderstanding on this point, the Legislature adopted the somewhat unusual course of declaring specifically in section 34(2) of the Act :‑ "For the removal of doubts, it is hereby declared that the provisions of section 4 of the West Pakistan General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regulation, 1901." Subsection (1) of section 4 of the West Pakistan General Clauses Act, 1956, runs :‑ (1) where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not‑ (a) revive anything not in force or existing at the time at which the repeal takes effect ; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed."

12. I now come to Muhammad Akram's case, which forms the subject of the first question referred to us. The facts of the case in question are that Muhammad Akram and several others were accused in a murder case relating to the Peshawar District, the said case being referred under section 11 of the Regulation by the Deputy Commissioner to a Jirga. The Jirga reported that the accused were innocent and the Deputy Commissioner accepted that finding and acquitted them. A relation of the murdered person filed a revision before the Commissioner, who accepted it to the extent of remanding the case "for reference to a new Jirga for further inquiries and fresh order". Against the above order of the Commissioner a writ petition was filed in this Court. It was dismissed, the learned Judges holding on the authority of Firdaus v. Pakistan (P L D 1961 Pesh, 165) that although the Commissioner had failed to use the exact words of section 50 of the Regulation, namely, that there was a material irregularity or defect in the proceedings or that the proceedings had been so conducted as to occasion a miscarriage of justice, his failure to do so had no effect on the validity of his order. The petition was accordingly dismissed on the 6th of June 1962.

13. Special leave to appeal was granted by the Supreme Court which, although it upheld the order of this Court dismissing the petition, remarked :‑ "In our opinion they should have dismissed the petition on a totally different ground, namely, that sitting as superior Judge at the apex of a system of administration of justice which is based upon meticulous ascertainment of facts by due process, and the application of law thereto, they have no concern what soever with the kind of proceeding which took place before the Jirga in this case, which, we believe, is taking place before a multitude of other Jirgas all over the West Pakistan Province, and which, we are informed, it is intended should soon became universal."

14. Their Lordships of the Supreme Court also referred to the judgment of the Federal Court in what is known as Samundar's case (P L D 1954 F C 228) in which the difference between justice as administered in the ordinary Courts and that which the provisions of the Regulation were designed to purvey had been pointed out, and observed:- "The case of Samundar was placed before the learned Judges of the Full Bench which decided the case of Firdaus. The latter case arose in the writ jurisdiction, whereas that of Samundar was dealt with in the high jurisdiction of the Federal Court to grant leave to appeal from judicial and quasi judicial tribunals. Yet in Samundar's case, it was observed that in deter mining whether a particular jurisdiction attracts the Crown's prerogative, it is the substance arid not the appearance which would govern the decision, and the relief sought, in the present case, as well as in the case of Firdaus is also relief In the pre rogative, i.e., in exercise of the sovereign power of dispensing justice, which, in the British system, as well as our own, now devolves upon the superior Courts. . . . . . . . . We have said enough to indicate that an order of a Commis sioner under section 50 of the Regulation is in no sense amenable to the writ jurisdiction of the High Court. The argument set out in the case of Samundar should have led the Full Bench of the High Court to the same result in the case of Firdaus."

15. In view of the above observations it is necessary to examine in some detail the findings of their Lordships of the Federal Court in Samundar's case. The question involved in that case is thus described by Akram, J. "The principal question common to all these petitions (for special leave to appeal) 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 facts were that one Misri was alleged to have; sold a girl, Mst. Shabzadgai, to Samundar and one Mst. Roshan Jan for purposes of prostitution. She was brought to Lahore and actually subjected to prostitution, being later recovered by the police: Four persons were accused of complicity in the offence and the matter was referred to a Jirga consisting not of tribesmen but of officials, namely, the City Magistrate, Peshawar, an Assistant Commissioner, Nowshera, and an Extra Assistant Commissioner, Nowshera. In due course they submitted a report stating inter alia that the Jirga had been to Lahore and had conducted open and secret inquiries on the spot. On the basis of the Jirga's report the Deputy Commissioner convicted Samundar, Mst. Roshan Jan and Misri, who submitted revision petitions to the Commissioner, which were rejected. They and others then applied for special leave to appeal to the Supreme Court.

16. The main judgment was written by Cornelius, J., who arrived at the following conclusion :‑ "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 mode as is operated through the ordinary Courts of justice acting 1n 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." The above finding is based on the following facts :‑ (1) Trial by Jirga cannot even be regarded as a summary trial of the nature provided by the Criminal Procedure Code, since, although summary trials must follow a prescribed procedure, either that of a summons case or of a warrant case, in the case of Jirgas no procedure of any kind is laid down. (2) The proviso to section 50 of the Regulation, which debars the Commissioner from interfering with a finding of fact recorded by a Jirga which has been accepted by the Com missioner, "unless he is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of Justice" are rendered nugatory by the absence of any rule against which the alleged material irregularity or defect can be measured. (3) Since the form of procedure is left to be determined arbitrarily by the Jirga, the intention of the Regulation also clearly is that none of the recognised rules of evidence should be binding upon the Jirga. (4) Since the rules of evidence, the main principles under lying which are the exclusion of irrelevant matter and of hearsay, coupled with insistence upon .the production of the best evidence, are not applicable to proceedings before a Jirga, not only hearsay but also statements based on prejudice or preconception and even mere gossip may be introduced, thus rendering it impossible to preserve the rule of best evidence. (5) 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. (6) Although the hearing is before a Jirga, the power of decision vests in the Deputy Commissioner, who neither sees nor hears either the accused or any of the witnesses, and is further not empowered by law to do so even if he should so desire, his position being consequently wholly vicarious. (7) In the circumstances described above it is impossible to preserve public confidence in the justness of the decision, which confidence, though perhaps of secondary importance to an administrative agency, is of paramount importance to a Court of justice. (8) The mere fact that a revision to the Commissioner is permitted does not remedy the situation, since, as proved in the cases before the Federal Court, the Commissioner did not feel in any way bound to examine the case of each accused before him on its merits. (9) Proceedings under the Regulation are concerned more largely with the vindication of public interest than with the enforcement of private rights, which is a feature common to administrative agencies. (In this connection the learned Judge calls attention to the fact that although certain civil disputes can be also referred to a Council‑of‑Elders, on the basis of whose finding the Deputy Commissioner may award a decree, the only circumstance which can debar such a decree is that the finding of the Jirga is "contrary to good conscience or public policy". It is further pointed out that such a decree is no simple decree of a civil Court of general jurisdiction but is essentially to be regarded as an instrument embodying a state ment 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).

17. The judgment further lays down: "It will be clear from the foregoing that since the proceedings before the Deputy Commissioner and the Commissioner 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 decision 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 Commissioner practically unfettered in relation to their decisions."

18. In conclusion the learned Judge expressed the opinion that decisions of the Deputy Commissioner and the Commissioner under sections 11, 12 and 50 of the Regulation partake of the same character as the "decrees" referred to above, namely, that they satisfy the interest of public policy which, in relation to an unsettled or frontier area, means the general administrative policy of the Government, and found himself confirmed in the view that the subject‑matter of the petitions before the Federal Court was not appealable in that Court and that, 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 the application of the doctrine of ultra vires, which mode of relief was, in the then state of the law, confined to an application in the nature of habeas ‑corpus under section 491, Cr. P. C.

19. In Muhammad Akram's case the learned Chief Justice held that to interfere, whether by approval or otherwise, with the operation of the Jirga system once a case had been competently drawn into that system, would be a violation of the legislative intention ; that all action in the writ jurisdiction should be confined to action in limine, that is to say, in assertion of the jurisdiction of the ordinary Courts, and in vindication of the law, to scrutinise the process by which the case, if there be one, has been, or is sought to be, diverted into the ambit of the Jirga system ; and that if the legal requisites are satisfied, that is the last contact which the superior Courts can retain with the case, all other processes taken in the disposal of the case within the Jirga system being outside the purview of the Courts in any of their jurisdictions. It appears that it had been argued before the learned Judges that the reference made in section 47 of the Regulation to certain sections of the Criminal Procedure Code implied a power in the High Court to exercise, either under the Criminal Procedure Code, or by way of certiorari, control or supervision over the decision of the Commissioner, but that argument was repelled, his Lordship holding that the said reference is to be regarded only in the nature of a direction to the Commissioner limiting the extent of his powers. The further argument that the use of the expressions "material irregularity" and "defect in the proceedings" imply that the decisions of the Commissioner are of a judicial or quasi‑judicial nature, thus attracting the revisionary jurisdiction of the High Court, was also rejected, his Lordship observing:‑ "The reason is that where, over the entire scone of the func tioning of this machinery, the development of anything resembling a 'system of rules' is deliberately avoided, the expression `material' and `irregularity' are both to be under stood in a special sense, and that is a sense which is beyond the scope of comprehension or application, by the ordinary Courts. When right procedure is not defined, the Courts can never ascertain, though the Commissioner may be able always to ascertain, what is a `defect in the proceedings'. And where section 50 speaks of a `miscarriage of justice' it uses a phrase which is again familiar in the ordinary Courts, but which it would be grave error to construe as if it carried the same meaning as in the ordinary Courts . . . . . . The `law' of the Frontier Crimes Regulation, in relation to the punishment of crimes, is expressed to be a law of expediency, in which, it would seem, the likely result of the case is to weigh as heavily as any other factor. Only thus it is possible to explain the extraordinary provision in section 15 that a Public Prosecutor, acting under the instructions of the Deputy Commissioner may withdraw a case for reference to a Jirga 'at any time before an order of conviction or acquittal has been made' by a Court of Session."

20. It is amply clear from the above that the view expressed in Abdul Nabi and others v. Commissioner, F. C. R. Quetta and another (P L D 1962 Quetta 1) and Chargul v. The Commissioner, F. C. R., Quetta and another (P L D 1962 Quetta 15) that the High Court can, in the exercise of its writ jurisdiction, judicially review orders passed under the Regula tion, and that while acting in revision in cases under the Regulation the Commissioner is performing a quasi judicial if not a judicial function, is no longer good law.

21. It is also too late in the day to argue, as did Mr. Yahya Oakhtiar, that the Deputy Commissioner and the Commissioner, while acting under the relevant sections of the Regulation, are performing the functions of Courts as that term is understood in the ordinary law.

22. One important point to be borne in mind, however, is that Muhammad Akram's case, though decided later, related to a time when the writ jurisdiction of the Superior Courts was as defined by the Laws (Continuance in Force) Order (I of 1958). Clause 2(4) of that Order runs :‑ "The Supreme Court and the High Courts shall have power to issue the writs of habeas, corpus mandamus, prohibition, quo warranto and certiorari." The present petitions, on the other hand, were filed under Article 98 of the present Constitution, which enables a High Court, subject to the conditions laid down In the said Article, to pass any of the following orders :‑‑ (1) Directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do. (2) Declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect. (3) Directing that a person in custody in the Province be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner. (4) Requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office. It is clear that orders falling within either the first or the second of the above four categories are not confined to cases where the person against whom the order is proposed to be passed has been performing judicial or quasi‑judicial functions. Administrative or executive authorities also fall within the orbit of the jurisdiction conferred by the above Article on the superior Courts. The; provisions of Article 98 are in this respect wider in scope than its predecessors, with the result that the superior Courts now exercise a wider jurisdiction than that enjoyed by the Federal Court in Samundar's case or by the Supreme Court in Muhammad Akram's case. Moreover, as laid down by the Supreme Court in Ikram Bus Service and others v, Board of Revenue, West Pakistan, and others (PLD 1963 S C 564) even an administrative body is under a legal obliga tion to deal with all applicants before it fairly, justly and equitably. 1n particular, if any legal requirement is laid down the authority concerned is under an obligation to follow it. Though, therefore, a Jirga conducting an inquiry under the Regulation is in no sense a judicial or quasi‑judicial body, it is, in my opinion, bound to observe any requirements laid down by the Regulation. In Samundar's case it was pointed out by the Federal Court that the Regulation requires that there should by such inquiry as may be necessary and that the accused person should be heard. The relevant portion of section 11 runs :‑‑ "The Deputy Commissioner may . . . 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." I may also draw attention to the following passage in the judg ment of Cornelius, J. In the same case :‑ "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 . . . . ." The learned Judge has thus held that disregard of the above requirements of section 11 may possibly amount to a material irregularity or defect. I am, therefore, respectfully of the opinion that even after a case has been properly drawn into the Jirga system Article 98 of the present Constitution, which was not applicable to Muhammad Akram's case, confers jurisdiction on'' this Court to interfere if the mandatory requirements of the Regulation or of any Rules framed under section 62 thereof have been violated. The "extent and limits" of the present Jurisdic tion are determinable by the provisions of Article 98 alone.

23. It would further appear to me to follow that if there has been a violation of any mandatory requirement on the part of the Jirga, the resulting finding is nullified, and that any order passed by the Deputy Commissioner or the Commissioner on the basis thereof will be without lawful authority and of no legal, effect.

24. Before leaving this question, however, another important decision of the Supreme Court cited as State v. Daud Shah (P L D 1963 S C 270) falls for discussion. The decision in question was given in two appeals by special leave brought by the State against two persons, Nawab Gul and Daud Shah. A reference had been made by the Deputy Commissioner of Peshawar of a case against them and one Gulin under section 302/34, P. P. C. to a Jirga under section 11 of the Regulation. The appellants had filed separate writ petitions in this Court against the order of reference, but it is not clear what steps, if any, were taken by Gulin. This Court quashed the reference, whereupon the State made an application for special leave to appeal to the Supreme Court.

25. The facts were given in a petition filed by the Prosecut ing Sub‑Inspector of Nowshehra before the Deputy Commissioner, Peshawar. That petition is reproduced in the judgment of the Supreme Court and runs :‑ "Sheikh Habibur Rahman of Rashaki, who had embraced Islam about forty years ago, was running a 'Karyana Shop' in Village Maho Dheri in the limits of Mardan District and used to go to Maho Dheri in the morning and come back in the evening daily to his house in village Rashaki. It is alleged that Nawab Gul accused was making efforts to get the shop of Habibur Rahman deceased as it was a business proposition. In this connection he approached the agent of Nawabzadas of Hod as village Maho Dheri is their property. Daud Shah, son‑in‑law of Nawab Gul, also helped his father‑in‑law in ousting the deceased. The deceased was also making efforts to prove the efforts of the accused fruitless and had approached Nawabzada Muhammad Amir Khan of Hoti in this connection. The shop in question was given to the deceased by the late Nawab of Hoti in his lifetime without rent as the deceased was working as weighman for the Nawab in village Maho Dheri and surrounding area. It is alleged that Nawab Gul and Daud Shah accused approached the deceased directly to vacate the shop, but the deceased was not prepared to do so at any cost. In order to do away with the deceased the two accused (Nawab Gul and Daud Shah) kept the way of the deceased on the evening of 19‑9‑57 and shot him dead. The kith and kin of the deceased learnt about the occurrence on the following morning and rushed to the spot, where they found the dead body of the deceased ; step‑son of the deceased came to the P. S. and lodged the F. I. R. He charged no one in the initial report. During the course of investigation and enquiry in the Court, P. CVs., Gul Rahman, Sheikh Abdul Latif, Abdur Rauf and Khan Sher appeared in support of the motive. They all stated that Nawab Gul and Daud Shah were trying to oust the deceased from his shop to which he was not prepared. Remarks.‑The deceased was shot dead after evening in the dark in between the villages Rashaki and Maho Dheri. He was an old man of 65 years and had no enmity with any one either in the village Rashaki or Maho Dheri. The investigation of the case revealed that the accused Nawab Gul and Daud Shah made efforts to oust the deceased of his shop and instead Nawab Gul accused should run the shop The statement o! P. W. Abdur Rauf shows that three days before the occurrence the deceased had told him that the two accused were trying to oust him of his shop, but he had approached Nawabzada Muhammad Amir Khan of Hod (the owner of the shop) not to disturb him. In order to get the shop of the deceased he was shot dead. No one witnessed the occurrence. There is no evidence in the case to stand in the regular Court of law, and hence they were discharged under section 209, Cr. P. C., by the A. C. Nowshera on 5‑4‑1958. The motive behind the offence is strong enough for normal conviction. The poorman was shot dead for (his) no fault. It is, therefore, requested that the order of discharge may be set aside and the case may kindly be recommended to be referred to the Council‑of‑Elders. There is no evidence against Gulin accused and that he was placed in column No. 2 of the challan."

26. The learned Judges of the Supreme Court called attention to the fact that Habibur Rahman had been shot dead on a road between two villages; that he had no enemy in either village; that he was shot in the evening, and in the dark; that no one witnessed the shooting ; and that no one was accused in the initial report. They then went on to observe that even after giving full weight to everything appearing on the face of the petition of the Prosecuting Sub‑Inspector it appeared to be clear that apart from the evidence regarding the tussle over who should have the shop, which was being conducted in the most normal way, by approach and counter approach to the landlord, there was nothing to connect the appellants with the shooting, while as to the third accused person, Gulin, there was no evidence at all as he seemed to be free of involvement in the affair of the shop. Their Lordships remarked that in the circumstances it seemed impossible to discover what there would be for the Jirga to try. They then observed :‑ "We are conscious that the duty of a Jirga is not merely to try a prepared case. It is required to come to a finding on the guilt or innocence of accused persons after such enquiry as may be necessary, and after hearing the accused person. But, in this case, unless the enquiry were to proceed on distinctly unorthodox lines, e.g., by third degree methods, or at the either extreme, by reading of omens, or other adventitious devices, it was more than clear that to go forward with the enquiry was futile. And we do not conceive that it is the intention of section 11 to allow enquiry by methods other than those consistent with reason, and the civilised decencies. The statute (the Regulation) is worded so as to make it a matter of expediency, within the judgment of an executive authority, whether a case should be heard by a Jirga or should be left to be tried under the regular procedure by the ordinary Courts. The Courts cannot be the final judges m a question of expediency which is entrusted by the law to the executive for decision, but it may be permitted to question whether it can ever be expedient to refer under section 11, for trial a set of facts which do not constitute a case at all. If the question were whether the two respondents had an eye on the shop, that would be susceptible of enquiry and decision, but a positive answer would not suffice to connect them with killing, on the facts as they appear. Something more would be needed to make out a prima facie case, and it is clear that nothing more had been discovered. It may well be that a Jirga would have discovered this lacuna for itself, had it taken up the case, but we do not conceive that section 11 is designed to empower a Jirga either to make out a case, or itself to raise for decision a question of guilt or innocence of the persons sent to it for enquiry, when the reference on its facts does not make out such a question."

27. With great respect, and with due diffidence, I venture to interpret the words emphasised above as meaning that in the opinion of their Lordships, a reference to a Jirga cannot be made when, on the facts before the Deputy Commissioner, points do not emerge from the facts before him which, if established, will suffice for the conviction of the accused for a criminal offence falling within the scope of the Regulation, and that in such circumstances the reference to a Jirga will be bad. It follows that if no case for reference is made out, the superior Courts will, in the exercise of their Special constitutional jurisdiction, be competent to interfere.

28. Coming now to the second question, namely, that relating to the forfeiture of a bond, the relevant portion of section 43 of the Regulation runs :‑ "43 (1) A bond executed under section 40 shall be liable to be forfeited if the person bound thereby to be of good behaviour or to keep the peace, as the case may be, commits or attempts to commit, or abets the commission of any offence punishable with Imprisonment. (2) A bond executed under section 41 shall be liable to be forfeited, if the person bound thereby to be of good behaviour or to keep the peace, as the case may be, commits or attempts to commit, or abets the commission of, any offence punishable with imprisonment in respect of any member of .the opposite family or faction to which the bond related." In my opinion, the above provisions cannot possibly be construed as implying that the mere subjective satisfaction of the authority concerned is sufficient ground for the forfeiture of a bond. In this respect the section may be contrasted with section 8(1), under which action can be taken if the Deputy Commissioner is satisfied that the necessary conditions for such action exist. Under section 43(1), on the other hand, it is necessary, not merely that the authority concerned should be satisfied that the person bound has committed or attempted to commit or abetted the commission of any offence punishable with imprisonment, but that the acts in question should actually have been done. I am, however, unable to hold that before giving a finding that the offence in question has been committed, that an attempt has been made to commit it, or that its commission has been abetted, it is necessary that there should be "a finding of some other authority, judicial or otherwise". Reference may be made in this connection to Sheo Jangal Prasad v. Emperor (A I R 1928 All. 232) in which a learned Single Judge, observed :‑ "At the same time I do not agree with the learned Judge that there should first of all be a conviction of the person bound over before the surety can be proceeded against. If in the proceedings taken against a surety it is proved that the person bound over had committed an offence that would be sufficient to lead to a forfeiture of the bond." There is, however, to my mind a clear implication that before a Deputy Commissioner or Commissioner can forfeit a bond under section 43 of the Regulation, there must be some reliable evidence before him of the commission, attempt to commit, or abetment of an offence punishable with imprisonment. Finally, it appear to me that if the circumstances show that no such evidence existed the order of the authority concerned forfeiting the bond will be open to scrutiny by this Court in the exercise of its extraordinary jurisdiction.

29. My answers to the questions referred to us would; therefore, be as given above. S. A. MAHMOOD, J.‑I agree. A. R. KHAN, J.‑I agree. QADEERUDDIN AHMED, J.‑‑‑I agree. MUHAMMAD DAUD KHAN, J.‑I agree: K. B. A: Reference answered.