P L D 1957 (W (PLP)

The findings of the Council of Elders are as follows " Today this file was placed before us Jirga members in the presence of the accused and others connected with the case. The file was read to us and we heard orally the facts of the case. The respondents and others were examined orally. On 28th January 1956, a letter was received from the S. D. O. Telegraphs that 1200 yards of telephone wires are cut near Sanzala. On the receipt of the information Malik Lala Khan, Malik Nasrulla Khan and others immediately reached the occurrence scene, and they were tracing the track from the scene when on the way they were joined by Malik Muhammad Khan and Muhammad Anwar the tracker. Malik Nasrullah Khan and others followed the track and Mand Malik Muhammad Khan and Muhammad Anwar the tracker went to the scene of occurrence to compare the footprints to the house of Nazar Muhammad accused to where Malik Nasrullah Khan and others had also taken the same. There they told Nazar Muhammad accused and his brothers to lead the track beyond their vicinity or should hand over the culprits and Khudai Raham and others admitted that the track has reached there. In a day they either will lead the track out of their vicinity or shall hand over the cul prit. This undertaking was denied by them afterwards. The tracker states that his examination shows that the foot-prints are those of Nazar Muhammad son of Allah Dad. Though the accused do not admit his guilt but on the contrary the notables of his tribe and his distant relatives state that the track went to the house of the accused straight from the scene of occurrence and had entered his house by scaling a wall. In the circumstances and in the face of such an evidence the denial of the accused carries no weight. The accused has cut the telephone wires belonging to the State and is guilty of cutting the wires. Moreover Mulla Abdul Baqi is a supporter of Pashtonistan and brings money from Afghanistan for himself and dis tributes it amongst others for committing different crimes. Only a few days back this same Mulla Abdul Baqi raised slogans against One Unit and also raised slogans of Pakistan Murdabad and led a procession `bearing the flag of Pashtonistan and carried propaganda in the public for which he was awarded one and a half years' jail and he was acquitted by the appellate Court for want of judicial proof, from the day of his return every day some offence of firing or cutting wires is committed on his instigation. He is a very mischievous and cunning person. He befools the simple people under the offers of money or by false Fatwas and Harmings Pakistan. To remain out of such a man is dangerous. We are fully satisfied that this offence is abetted by him and he himself states that after coming out from jail he has visited Muradah Karez twice but his depositions that he does not know Nazar son of Allah Dad Ashezai is unbelievable. His total denial is a clear indica tion of the fact that there is something fishy about it. In the circumstances we are of the opinion that Nazar Muhammad son of Allah Dad is the real culprit and Mullah Abdul Baqi and Sayed. Muhammad are his accom plices, all the three are offenders Our reply to the terms of references of the Court is as under:- The telephone wires near Levy Post Old Chaman has been cut and the foot-prints are those of Nazar who has committed this offence. According to the instructions of Mulla Abdul Baqi and Sayed Muhammad whereas the accused have wilfully done this and harmed the Government of Pakistan therefore Nazar Muhammad is the real culprit and Mulla Abdul Baqi and Sayed Muhammad are his accomplices all the three are guilty and will have the punishment to be decided by the Court". On the basis of these findings of the Council of Elders the District Magistrate has stated in the latter part of his order as follows :- "The case was referred to a special Jirga who after inquiry found that Nazar Muhammad had committed the offence with the connivance and on the instigation of Mulla Abdul Baqi and Said Muhammad who are well known for anti-Pakistan activities. The Jirga therefore held Nazar Muhammad guilty of cutting the wires and stealing the same with intention to commit mischief whereby he caused damage to Government property. The jirga held Said Muhammad and Mulla Abdul Baqi guilty of abetting by instigating Nazar Muhammad to commit the mischief and steal telegraph wire. The unanimous jirga award has not been accepted by the accused and the jirga held their objections frivolous as they had failed to sub stantiate their allegation of enmity with Malik Lal Khan and other Ashezai witnesses produced against them. I accept the unanimous award of the Special Jirga and convict Nazar Muhammad under sections 427/379, P. P. C. for having committed mischief by cutting the telegraph wire and then stealing the same". It is clear that the only substantial evidence which can be said to have a bearing on the case is of the footprints which were traced to the house of Nazar Muhammad and the identification of the foot-prints by the tracker as of Nazar Muhammad. A presumption was apparently raised by the Jirga from this evidence that the offence was committed by Nazar Muhammad. The onus therefore was placed on him for disproving his guilt. He and his supporters (brothers) were asked to trace the footprints beyond the house of Nazar Muhammad or else to prove who else committed the offence, if not he, by producing the real offender because it was apparently further presumed that they would, in the event of their inability to trace the footprints beyond his house, know the real offender and would be in a position to produce him if Nazar Muhammad was not the real offender. Nazar Muhammad and his supporters evidently saw the logic of the demand and undertook either to trace the foot-prints beyond his house or to hand over the real offender in a day's time. They failed to fulfil their undertaking. This failure confirmed the Jirga in their conclusion that Nazar Muhammad was the real offender and they concluded. "In the circumstances and in the face of such an evidence the denials of the accused carry weight". This is a process of thought with which we are not familiar and the reason may be that we are not familiar with local conditions and the circumstances of group affiliations. The reasoning used by the Jirga for the determination of the complicity of the other two accused is clearly defective. The allegations against Abdul Baqi are of political nature only. The Jirga has found him to be interested in Pakhtoonistan Movement and to have been receiving monetary 'reward' from the Afghan Government. He is said to have raised slogans against Pakistan and against the One Unit and to have been convicted and sentenced by an ordinary Criminal Court to one and a half years' imprisonment but to have been acquitted on appeal. The judgments are not before us and therefore we do not know whether he was acquitted because it was not proved that he raised the slogans or because it was held that raising such slogans was not an offence. Regarding his subsequent conduct the Jirga has held: "From the day of his return (release) every day some offence of firing or cutting wires is committed on his instigation. He is a very mischievous and cunning person. He befools the simple people under the offers of money or by false Fat was and Harmings Pakistan. To remain out of such a man is dangerous we are fully satisfied that this offence is abetted by him and he himself states that after coming out from jail he has visited Murdah Karez twice, but his depositions that he does not know Nazar son of Allahdad Ashezai is unbelievable. His total denial is a clear indication of the fact that there is something fishy about it". The Jirga thus found that he was indulging in subversive political activities and that the defence put up by him was false. His defence might or might not have been false but the charge against him was not of indulging in subversive political activities but of cutting telephone wires. May be that he had motives which could impel him to commit this offence but no connection whatsoever with it has been traced and no kind of evidence has been found to implicate him. A conclusion has been drawn from his general motives that he was an accomplice in the commission of this crime. Lesser attention than this was paid by the Jirga to the charge against Sayed Muhammad (or Said Muhammad). They concluded abruptly from the above findings against Nazar Muhammad and Abdul Baqi : "In the circumstances we are of the opinion that Nazar Muhammad son of Allahdad is the real culprit and Mulla Abdul Baqi and Sayed Muhammad are his accomplices-all the three are offenders". No complicity, not even common motive, has been found against Sayed Muhammad. These findings of the Jirga have been accepted by the District Magistrate. He could do so under section 11 (3) (d) of the F. C. R. He wrote: "The case was referred to a special Jirga who after inquiry found that Nazar Muhammad had committed the offence with the connivance and on the instigation of Mullah Abdul Baqi and Said Muhammad who are well known for anti-Pakistan activities. The Jirga therefore held Nazar Muhammad guilty of cutting the wires and stealing the same with intention to commit mischief whereby he caused damage to Government property". We had no doubt from the out set that nothing was found by the jirga which could implicate Abdul Baqi and Sayed Muhammad in the offence and have been in some doubt. only regarding the findings against Nazar Muhammad. There is some evidence against him and it has a circumstantial value. It is not for us to weigh it and to substantiate our judgment in the place of their judgment. The fact that foot-prints were traced from the scene of the occurrence to his house and that they were determined to be his foot-prints is a testimony against him. A jirga is more or less like a jury. If a jury returned the verdict of guilty oil such a testimony it would, we believe, be not proper to up set their decision. The motive of the Jirga, we may add, has not been questioned before us, nor has any circumstance been pointed to us which may in any manner reduce the plain value of the testimony against Nazar Muhammad. Mr. Nasiruddin, the learned counsel of the respondents, has stated that tracing foot-prints is an art which is highly developed in certain parts of the country and that the trackers can perform their job in a surprisingly efficient manner. The principles of the art have not been discussed before us but we can imagine that there can be more in the art than strangers to it can conceive. The petitioners have alleged in para. 3 of the petition that the foot-prints were of a person who had covered his feet with "gunny bags". This allegation is not specifically denied in the counter affidavit submitted on behalf of the respondents. We have not been addressed on the thickness of the coverings; not on the possibility of drawing correct conclusions from the six of the feet, the relative angles of the foot-steps and the pressure on the ground of different parts of the feet. We think, in any case, that this is a matter relative to the assessment of the evidence which was completely within the jurisdiction of the members of the jirga who could legitimately come to a right or wrong conclusion concerning it. Mr. Nasiruddin has stated that the method of tracing the foot-prints up to a particular place and then leaving it from that point to the accused to lead the track beyond it is a recognised method of tracing the offenders in certain localities including the locality where the foot-prints were traced in the present case. He has urged that this is a custom which has grown out of necessity and the introduction of extraneous judicial standards in these matters is neither suited to the localities nor practicable for the purpose of maintaining law and order. His argument in short is that action was taken under special circumstances and under a special law, the terms of which have been fully complied with, and therefore it cannot be questioned excepting on the ground that the law itself is ultra vices of the powers of the legislature. There is an observation at p. 240 in Samundar and others v. The Crown (P L D 1954 F C 228) which, according to the learned counsel, is in his favour. It is a ruling on the F. C. R. and the observation relied upon is as follows: "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". He has urged that the constitutionality of the. F. C. R. has not been questioned by the petitioners, nor did the learned counsel of the petitioners address us arguments on this question, but as this Writ Petition was argued along with four others, being Writ Petitions No. 390 of 1956, Baqi Malik Behram Khan v. The State, Khair Muhammad Khan v. The State, Malik Fazal Muhammad and others v. The State and Abdul Hag and another v. The State (P L D 1957 Kar. 709) the petitioners' counsel stated in one sentence that he wanted to adopt the arguments addressed by Mr. Yahya Bakhtiar on behalf of the other petitioners. It is contended by Mr. Nasiruddin that if we allow the objections to the con situational of the relevant provisions of the law to be taken in this petition and come to the conclusion that they are constitutionally void, then only this petition can be allowed. We may mention that we have held in the other four petitions that in spite of the classification of Pathans and Baluchis in subsection (4) of section 1 and the classification made on the basis of birth in the Notification No. 1096 dated the 1st July 1903, being void, the remaining provisions of the law applicable to criminal jurisdiction are intra vires. In view of that decision, we have to hold that the findings of the Jirga and the order of the District Magistrate in this case were not void under the Constitution. The soundness of Mr. Nasiruddin's conclusion from the intra vires nature of the remaining provisions of the F. C. R. however, remains to be seen. Mr. Nasiruddin has also objected to the main tainability of the writ petition on the ground that the petitioners did not go in revision under section 49 of the F.C.R. which according to the counsel is an efficacious and adequate remedy. The last objection can be disposed of easily on the basis of a Division Bench ruling of this Court in Hamesh Gul v. Crown (P L D 1955 Pesh. 1 at p. 16), It was held in it by the learned judges as Follows: "It may be mentioned that it is wrong that the person convicted under the F. C. R. has any remedy provided by the law. Sections 49 and 50 of the F. C. R. do not afford any remedy much less a remedy, which in order to restrict the powers of the High Court to act in the matter, should be specific, adequate, prompt and efficacious, to the condemned persons". With regard to the observation of our Federal Court on page 240 in Samundar's case we may state that the same has not been correctly appreciated by the counsel of the respondents. That was a judgment on applications for leave to appeal from orders passed by the prescribed authority under section 50 of the F. C. R. The only question before their Lordships was whether leave to appeal could be granted under the Crown's prerogative or not, and they observed. But, it will be clear from the foregoing that since the proceedings before the Deputy Commissioner and the Com missioner 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 Tasmansa 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." Further :- "It (the F. C. R.) 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 appeal able in this Court". The leave was therefore refused and the petitions were dismissed. Their observation on page 240 does not apply to such jurisdictions as are conferred on the High Court by section 223-A of Government of India Act 1935 or by Article 170 of the Constitution. The Court of Judicial Com missioner at Peshawar entertained a habeas corpus application under section 223-.A and set free the petitioner by its judg ment Ghulam Muhammad Khan Lundkhawar v. Crown (P L D 1955 Pesh. 45), on the ground that the Jirga nominated under section 11 of the F. C. R. was composed of three Magistrates. The Crown applied to the Federal Court for special leave to appeal from the judgment of the Judicial Commissioner's Court which leave was granted but the appeal was dismissed Crown v. Ghulam Muhammad Khan of Lundkhawar (P L D 1956 F C 197), on the ground that the Regulation contained no authority for the procedure envisaged in the letter of appointing Magistrates as members of the Jirga which clearly conflicted with the definition of the Council of Elders. Mr. Fakhruddin has argued that this Court has the power while dealing with even an executive act to investigate whether the executive authority in performing such act did not make the error of taking into account matters which it ought not to have taken into account or made the error of not taking into account these matters which it ought to have taken into account and can interfere when such an error is discovered. Moreover the Court can also interfere if such an authority came to a conclusion so unreasonably that no reasonable authority could have ever come to such conclusion. He has supported this proposition by a judgment of the Court of Appeal in Associated Provincial Picture House Ltd. v. Widnes bury Corporation (1947 A FL L R (Vol. 2) p. 680) and by a judgment of a Division Bench of this Court at Lahore in Syed Hadi Ali v. Government of West Pakistan (P I, p 1956 Lah. 824), and has relied on the following obser vations of Kaikaus, J. "My conclusion is that even in respect of purely adminis trative acts there is a duty to act justly, fairly, and reasonably, and if the order impugned be one which could not possibly have been passed by a person acting fairly and reasonably, the order will be invalid in law". These observations are valuable to the petitioners because our Federal Court has held in Samundar's case that the proceedings under the F. C. R. are not purely judicial in character but partake of the characteristics of an adminis trative agency. Cornelius, J. who wrote the main judgment of the Court has observed on page 235 as follows :- "On a careful consideration of the statutory provisions, and the procedure actually followed in inquiries 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 Regu lation 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 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." We have already expressed our view that the findings of the Jirga concerning Abdul Baqi and Said Muhammad and their acceptance by the District Magistrate are completely unreasonable and unsupported by evidence. The findings against Nazar Muhammad and his conviction stand on a different footing inasmuch as there is some direct evidence against him. It may be helpful for clarification of ideas if we also consider at this stage as to what kind of a writ can be issued in a case like this. The petitioners have prayed for a writ of habeas corpus or a writ of certiorari, It is not denied by the counsel of the petitioners that the District Magistrate had the jurisdiction under section 11 of the F. C. R. to refer the case to the Jirga, nor is it denied that the Jirga had the jurisdiction under section 11 of the F. C. R. to make inquiries and give its findings which could be accepted by the District Magistrate under section 11 (3) (d) 'of the F. C. R. His objection is that the findings and the convictions are wholly unreasonable. These are not good grounds for a writ of habeas corpus. In the language of Halsbury's Laws of England, third Edition. Vol. II page 36 :- "The writ of habeas corpus will not be granted where the effect of it would be . . . . . , to question the decision of an inferior Court on a matter within its jurisdiction ; or where it would falsify the record of a Court which shows jurisdiction on the face of it." The learned counsel of the petitioners has not argued that a writ of habeas corpus can be or should be issued on this petition. On the contrary he has cited authorities in support of the proposition that a writ of certiorari should be issued under the circumstances of the case. He has cited R. v. Northumberland Compensation Appeal Tribunal (A E R (1952) (1), 122), and has relied on the following observations of Denning L. J.- "Following these cases, I think the record must contain, at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal choose to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision." The reasons given against Abdul Baqi and Said Muhammad can be said to be wrong in law, but the reasons advanced against Nazar Muhammad are better than that. They relate more to the correctness of judgment than to an error in law. Another judgment to which reference was made by the learned counsel of the petitioners is helpful to two petitioners and, in a way, is against Nazar Muhammad. This is a Privy Council judgment in The Kind and Nat Bell Liquors, Limited ((1922) 2 A C 128), on an appeal from the Supreme Courts of Canada and Alberta. It contains an elaborate discussion of the scope of the Court's jurisdiction for granting a writ of certiorari. We cannot do better than reproduce two passages from it. The first passage on pages 153 and 154 to which attention is invited is :- "In Reg v. Bolton (1 Q B 66, 72 et seq), Lord Denman, in a well known passage, says : 'The case to be supposed is one . . . . in which the Legislature has trusted the original, it may be (as here) the final, jurisdiction on the merits to the Magistrates below ; in which this Court has no jurisdiction as to the merits either originally or an appeal. All that we can then do . . is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular and according to, law . . . .Where the charge laid before the Magistrate, as stated in the information, does not amount in law to the offence over which the statute gives him jurisdiction, his finding the party guilty by his conviction in the very terms of the statute would not avail to give him jurisdiction ; the con viction would be bad on the face of the proceedings, all being returned before us. Or if, the charge being really insufficient, he had misstated it in drawing up the proceedings, so that they would appear to be regular, it would be clearly competent to the defendant to show to us by affidavits what the real charge was, and, that appearing to have been insufficient, we should quash the conviction . . . . . But, as in this latest case we cannot get at the want of jurisdiction but by affidavits, of necessity we must receive them. It will be observed, however, that here we receive them, not to show that the Magistrate has come to a wrong conclusion, but that he never ought to have begun the inquiry. But where a charge has been well laid before a Magistrate, on its face bringing itself within his jurisdiction, he is bound to commence the inquiry, in so doing he undoubtedly acts within his jurisdiction, but in the course of the inquiry, evidence being offered for and against the charge, the proper, or it may be the irresistible, conclusion to be drawn may be that the offence has not been committed, and so that the case in one sense was not within the jurisdiction". It has not been contended before us, nor could it be contended that the facts also do not constitute an offence. It cannot be said that a charge was not validly brought against Nazar Muhammad. The second passage on page 155 leads to the conclusion that the superior Court can examine defects which are patent on the face of the record but is no authority for the pro position that weak evidence can be condemned or thin reasoning can be smashed by a judicial authority which is not entrust ed with the power and discretion to decide the case which it may, in a limited sense review. The passage is as follows :- "In this connection, reliance was placed on a passage in the opinion of Lord Cairns in Walsall Overseers v. London and North Western Reply. Co.(1878) 4 A C 30,39). The question for decision there was simply whether or not the Court of Appeal had jurisdiction to entertain an appeal from an order of the Court of Queen's Bench, discharging a rule nisi for a certiorari to quash an order of Quarter Sessions in a rating matter. Lord Cairns, speaking of certiorari generally, said 'If there was upon the face of the order of the Court of Quarter Sessions anything which showed that that order was erroneous, the Court of Queen's Bench might be asked to have the order brought into it, and to look at the order, and view it upon the face of it, and if the Court found error upon the face of it, to put an end to its existence by quashing it.' He then turned to the kind of order under discussion, and after stating how much in that matter, both of fact and of law, the Sessions were bound to set out on the face of their order, he proceeded to point out that the statement of what had led to the decision of the Court made the order 'not an unspeaking or unintelligible order,' but a speaking one, and an order which on certiorari could be criticised as one which told its own story, and which for error could accordingly be quashed. It is to be observed on this passage, that the key of the question is the amount of material stated or to be stated on the record returned and brought into the superior Court. If justices state more than they hound to state, it may, so to speak, be used against them, and out of their own mouths they may be condemned . . . . . ." The Jirga has written a speaking order and we have found from it that there is no reason whatsoever for finding Abdul Baqi and Said Muhammad to be guilty of cutting the wires, but we cannot say so with regard to their fin-lings against Nazar Muhammad. There is no allegation of bad faith or dishonesty against the Jirga. They cannot be F charged with disregarding any matter or material which they were bound to take into account nor is their inquiry based on any consideration which was not germane to it. They have concluded from the evidence of his footprints which were traced from the scene of the offence to his house that he is the offender. It may be easy to disagree with them but it is not easy to discard their findings as patently erroneous or unreasonable because patently erroneous or unreasonable is that which law, logic or good conscience would unhesitatingly condemn. If there is hesitation then there is doubt and therefore probably only disagreement. We quash the findings of the Jirga against Abdul Baqi and Said Muhammad as well as the Magistrate's order to the extent to which these two persons were convicted and sentenced and, decline to interfere with the findings against Nazar Muhammad and his conviction and sentence. The parties are left to, bear their own costs: A. H. Order accordingly.