P (PLP)

Existence of custom or usage for deciding disputes by Jirga‑Whether separate finding by Deputy Commissioner necessary before reference. Where it was contended that before a Deputy Commissioner can convene a Jirga he must determine that, amongst the particular class or type of people to whom the accused belongs, there exists a custom or usage for deciding disputes by Jirga. Held, that even if there is no separate order determining this point, the very fact of the case having been referred to a Jirga by the Deputy Commissioner is, by implication, a determination of the fact that the necessary conditions for the reference exist, at least in his opinion. (e) Obiter dicta‑ Observations of the nature of, by superior Court‑Pot binding in every case on subordinate Courts. Goal Singh for Petitioner. Visheshar Nath Sethi, for the Advocate‑General, for Res pondent. The petitioner Langar Khan was tried by a Jirga under section 304, Indian Penal Code, and sentenced to ten years' rigorous imprisonment by the Deputy Commissioner, Mianwali District. A Full Bench of this Court held that the Frontier Crimes Regulation was not applicable to Mianwali district whereby the conviction of the petitioner became illegal. A petition for his release under section 491, Criminal Procedure Code was made to this Court and an order for his released was passed. After that an Ordinance was promulgated by the Governor of the Punjab declaring that all trials and convictions in the Mianwali district under the Frontier Crimes Regulation were legal. The validity of this Ordinance was challenged in some cases and the matter was referred to a Division Bench which announced its order on the 14th March 1947 holding the Ordinance to be valid. One of the points raised before the Division Bench was whether the Governor of the Punjab had power to promulgate an Ordinance which could operate retrospectively. The decision of the Division Bench .on this point is that prima facie the powers of a Governor to make Ordinances were as wide as the powers of the Provincial Legislature to make laws and that there was no reason to hold that the Governor was not at liberty to promulgate Ordinance with retrospective effect. A decision of the Federal Court, reported as A. I. R. 1943 F. C. 75, was brought to the notice of the Division Bench in which it was remarked that it was misleading to assume that the Ordinance making authority enjoys plenary powers of legislation and then seek to deduce therefrom the inference that it must have the power to enact a provision with retrospective 'operation. The learned judges constituting the Division Bench considered this observation and held that it was in the nature of obiter and added that a number of instances can b3 cited in which Ordinances of this kind have been promulgated by the Governor‑General of India and Governors of Provinces. This very observation of the Federal Court is now pressed upon me and I am asked to hold that the Division Bench was wrong in not following this obiter dictum of the Federal Court. In support of this contention A. I. R. 1945 Lahore 313 has been cited where it was remarked by Harries, C. J. teat the observations of the Privy Council though obiter dicta must be regarded with, the greatest respect. There can be no two opinions on this point but this does not mean that every obiter dictum of a superior Court becomes binding on the subordinate Courts. I may also point out that the learned judges of the Federal Court have themselves re marked at page 82 of their judgment above‑mentioned that they refrain from expressing any final opinion on the question as no decision on it was necessary for the disposal. of the case before them. The learned counsel for the petitioner admits that the Legislature has the power to enact laws with retrospective effect but contends that the Governor, who is merely an Ordinance‑making authority, has no such power. It is pointed out by the learned counsel for the Crown that this Ordinance has now been made into an Act cal led Act IV of 1947. It was passed by the Governor on the 11th April 1947, after he had assumed the government of the Province under section 93, of the Government of India Act, and, it is contended, that no objection can be raised against the validity of this Act as it now exists. It is further contended on behalf of the petitioner that before Deputy Commissioner can convene a Jirga he must determine that amongst the particular class or type of people to whom the accused belongs, there exists a custom or usage 'for deciding desputes by Jirga. It is urged that there is nothing on the record to show that the Deputy Commissioner ever considered or determined this point. In my opinion, even if there is no separate order determining this point, the very fact of the case having been referred to a Jirga by the Deputy Commissioner is by implication, a determination of the fact that the necessary conditions for the reference do exist, at least in his opinion. The order of reference to a Jirga by the Deputy Commissioner, in places where the Frontier Crimes Regulation applies, is an executive act and the learned counsel for the petitioner admits that such an order is not open to revision by the High Court. It is because the order is not open .to revision that, the learned counsel says, the petitioner has applied for a writ of habeas corpus. But under section 491, clause (b), Criminal Procedure Code, the High Court can set a person at liberty only if the person is illegally or improperly detained. Since I am not in a position to determine whether the reference to Jirga was illegal or not, I cannot hold that the detention of the petitioner ac a result of the decision by the Jirga is illegal or improper. Finally it is urged that the Punjab Ordinance, II of 1946, validates the orders, proceedings, sentences and acts of authorities under the Frontier Crimes Regulation, but it does not provide for the arrest of persons released before the Validating Ordinance was enacted: It will be seen by a reference to section 2 of this Ordinance that it validates all acts done and proceedings taken in execution of or in compliance with any orders made or sentences passed in exercise of the powers conferred by the Frontier Crimes Regulation of 1901. The power to arrest a person released before the Validat ing Ordinance and to commit him to jail is, in my opinion, an act in execution of the sentence passed on him. I have been asked to refer these points for determination by a Full Bench because the decision of the Division Bench on the first point, according to the learned counsel for the petitioner, is incorrect, and the other points were neither raised by him nor considered by the Division Bench. In view of what has been stated above, I do not consider it necessary that any reference should be made to a Full Bench. The petition is, therefore, dismissed. A. H. Petition dismissed.