P L D 1966 (W (PLP)

"The question, therefore, is whether a liability to be imprisoned has been created on account of the order of the Deputy Commissioner. The liability. would be created, 'if, in case no further proceedings were taken, the petitioner would have to suffer imprisonment. But it is clear that if no further proceedings are taken, he would have to be released for there would be no executable sentence." To put it differently, it was held that in case further proceedings were required, there would, be no executable sentence and the conviction could be challenged, because the provisions of the F. C. R. under which a conviction was recorded had become void from the date of the commencement of the Constitution.

10. We would wind up our discussion on the point that the Constitution is prospective in operation and does not affect pass transactions by quoting certain observation from the judgment in Keshawan Madhavan Menon v. The State of Bombay. Dealing with argument that Article 13 (1) of the Constitution rendered void ab initio and for all purposes an earlier law which was inconsistent with fundamental rights, it was laid down by the Supreme Court of India in that case "that such laws existed for all past transaction and for enforcing all rights and liabilities accrued before the' date of the Constitution" (Per Das, J.; at p. 234). Mahajan, J., observed at pp. 249 and 250:‑ "It is admitted that after 26‑1‑1950, there had been no infringement of the appellant's right of freedom of speech or expression. In September 1949, he did not enjoy either complete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in. Art. 19 (1) of the Constitution to the citizen that the provisions of Art. 13 (1) come into play., The Article does not declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen‑ must be possessed of a fundamental right before he can ask the Court to declare a law which is inconsistent with it void ; but if a citizen is not possessed of the right, he cannot claim this relief." These remarks have application here.

11. We now deal with another question, which is common to Writ Petitions Nos. 361 of 1963 and 344 of 1963. The question may be formulated thus "whether the orders of confiscation of the immovable property of the petitioners were illegal?"

12. Mr. Mahmud Ali Qasuri, learned counsel in Writ Petition No. 361 of 1963, tried to argue that the Frontier Crimes Regulation (West Pakistan Amendment) Ordinance, 1962 (Ordinance XII of 1962) (hereinafter to be referred to as Ordinance XII of 1962), came into force on the 19th of April 1962, and under section 3 thereof, for the first time, in case of conviction under sections 302 and 396, Pakistan Penal Code, the provision, namely, "immovable property of the accused shall be liable to forfeiture to the Government" was introduced, but since the offences, of which the petitioners in the two writ petitions were convicted, were committed long before the introduction of Ordinance XII of 1962, the forfeiture of the property of the petitioners war illegal, in that it tantamounted to creating an offence ex post facto. The learned counsel, however, conceded, that if in addition to the sentence of death or transportation for life, any amendment had been effected under the F. C. R. or by any Act, under which the penalty of forfeiture of immovable property could be awarded before the commission of an offence, of which the petitioners were charged, then the order of forfeiture could not be assailed. Unfortunately, for the petitioners, the Criminal Law and Procedure (North‑West Frontier Province Amendment) Act, 1950 (Act XXVI of 1950) (hereinafter to be called as Act XXVI of 1950, was enacted and under section 3 of that Act section 302, Pakistan Penal Code, was amended. The said section reads :‑ "Amendment of section 302.‑For the words "and shall also be liable to fine" concurring in section 302 of the Penal Code, substitute the words "and shall also be liable to forfeiture of his immovable property to the Government." Under section 9 of the Act XXVI of 1950, section 12 of the Frontier Crimes Regulation, 1901, was amended. Section 9 reads thus :‑ "Amendment of section 12.‑To section 12 of the Regulation, add the following new subsection :‑ (3) In cases of convictions under section 302 or 396 of the Pakistan Penal Code, the immovable property of the accused shall be liable to forfeiture to the Government."

13. It will be noticed that Act XXVI of 1950, introduced amendment in section 302, Pakistan Penal Code, as also in section 12 of the F. C. R., with the result that the event of conviction of an accused under section 302 or 396, Pakistan Penal Code, he would render himself liable to forfeiture of his immovable property to the Government. Before this amendment, section 12 of the F. C. R. comprised of subsections (1) and (2), and Act XXII of 1950, added subsection (3), reproduced above.

14. Mr. Peer Bakhsh Khan, learned counsel for the petitioners in Writ, Petition No. 344 of 1963, tried to argue that since the word "also" occurring in section 302, Pakistan Penal Code, was omitted in the heading of subsection (3), section 12 of the F. C. R. by Act XXVI of 1950, forfeiture of immovable property of the accused to the Government could not be legally made.

15. The argument, in our view, is clearly misconceived for two‑fold reason : (1) because by addition of subsection (3) to section 12 of the F. C. R., the penalty of forfeiture of the immovable property of the accused in case of conviction under sections 302 or 396, Pakistan Penal Cods, was introduced, and (2) the other substantial reason for reaching this conclusion is that by adding penalty of forfeiture of immovable property under section 9 of Act XXVI of 1950, by way of amendment to section 302, Pakistan Penal Code, the penalty of forfeiture of property could be legally ordered under the F. C. R. even if subsection (3) had not been added to section 12 of the F. C. R.

16. There is yet another aspect of the case and it is that since the orders of forfeiture as also the orders of convictions and sentences had become executable before the Fundamental Rights were created, the petitioners cannot be allowed to challenge those orders on the ground, that certain provisions of the F. C. R. were ultra vires the Constitution. We need not labour this point further; suffice it to say that in the recent decision of the Supreme Court in Saiyyid Abul A'Ala Maudoodi and others v. The Government of West Pakistan and others and Th a Province of East Pakistan v. Tamizuddin Ahmad and others (P L D 1964 S C 673) it was held in clear terms:‑

(1) that the Constitution was prospective, and (2) that the validity of acts done and completed under a law before the creation of the Fundamental. Rights could not be called in question. We may profitably extract the following observations of Hamoodur Rahman, J. at page 785 :‑ "Another reason for my holding this view is that in the absence of anything in the Constitution to show that its provisions are to have retrospective effect, the conflict with existing laws can arise only from the date the declaration of fundamental rights comes to be embodied into the Constitution. Hence by using the word "void" in clause (l) of Article 6 of the Constitution did not intend to repeal the law that had already been validly made but merely to render it inoperative in future. That law would still be operative in respect of rights, obligations and liabilities already accrued and the validity of acts done and completed under it whilst it was a valid law in force would still have to be determined according to that law. The use of the word "void", therefore, does not produce the result of obliterating the inconsistent provisions of the existing law altogether from the statute book, but all that happens is that in enforcing a fundamental right the High Courts will not give effect to any of the provisions of the existing law in so far as they are inconsistent with the fundamental rights guaranteed by the Constitution." (Note.‑The italicised are ours) Continuing further, his Lordship observed :‑

"This brings me to the question as to whether, if the provisions of the Constitution are not retrospective, can an act done before the commencement of the Constitution (First Amendment) Act be still called into question on the ground that it now affects a fundamental right. There can be no doubt that acts done and completed before the coming into existence of the fundamental rights cannot be re‑opened on the ground of inconsistency, nor can proceedings already commenced be stopped. Thus if a person has been convicted and sentenced prior to the coming into existence of the fundamental rights under a law which now contravenes a fundamental right, his conviction cannot be set aside on that ground, because, the right had already been taken away and extinguished before the constitutional guarantee became available."

17. Mr. Mahmud Ali Qasuri next argued that the conviction of the petitioners was rendered invalid, in that Mr. Abdur Rashid Khan had taken over as Commissioner, D. I. Khan Division, on the 27th of May 1963, after the Frontier Crimes Regulation had been repealed, and there had been no notification under which he had been designated as Commissioner F. C. R. by the Provincial Government, as contemplated by the Frontier Crimes Regulation (West Pakistan Amendment) Ordinance, 1962 (Ordinance XII of 1962), hereinafter to be referred to as Ordinance XII of 1962, under which the term `Commissioner' or `Court of Commissioner' means the Provincial Government or such officer or officers as the Provincial Government may appoint in this behalf. To put it differently, it was argued that when Ordinance XII of 1962, came into force with effect from the 19th of April 1962, there should have been a fresh notification by the Provincial Government, empowering Mr. Abdur Rashid Khan to act as Commissioner, F. C. R.

18. To resolve this question, it will be necessary to refer to various amendments made in the term `Commissioner' or `Court of Commissioner'. Vide section 3 and entry No. 2 of Article II, 1st Schedule, to the North‑West Frontier Province Law and Justice Regulation, 1901, all references to the Commissioner or the Court of the Commissioner in the original text of the F. C. R., 1901, were to be read as referring in the North‑West Frontier Province to the Chief Commissioner or such officer as the Chief Commissioner may appoint in this behalf . . . . Subsequently, by the Government of India (Adaptation of Indian Laws) Order, 1937, the expression `Chief Commissioner' was replaced by "Provincial Government . . . . . Thus, the position today is that the original powers of the Commissioners and the then Chief Commissioner, under the F. C. R., 1901, in its application to the former North‑West Frontier Province, are exercisable generally by the Provincial Government or such officer as it may appoint in that behalf. The Provincial Government now means the Provincial Government of West Pakistan by virtue of the provisions of section 3 (4) (i) of the West Pakistan (Adaptation and Repeal of Laws) Act, 1957.

19. Mr. Sher Bahadur Khan, Additional Advocate‑General met the argument of Mr. Mahmud Ali Qasuri, in regard to the objection that Mr. Abdur Rashid Khan had not been designated as Commissioner, F. C. R. by drawing our attention to a Gazette Notification No. 1/160‑H (SOI)TA/60m, dated the 18th November 1960, of the Government of West Pakistan in the Home Department. The said notification reads thus :‑

"In exercise of the powers, conferred on him by the entry in column 4 opposite to the entry "The Frontier Crimes Regula tion, 1901 "occurring in column 3 of Part II of the First Schedule to the North‑West Frontier Province Law and Justice Regula tion, 1901 (VII of 1901), read with section 3 thereof and in supersession of the West Pakistan Government, Home Department, Notification No. 1/60‑H (SOI) TA/60, dated the 29th September 1960, the Governor of West Pakistani is pleased to appoint each officer mentioned in column 2 of the Schedule annexed hereto against Serial Nos. 1 and 2 thereof to be the Commissioner for the purposes of the Frontier Crimes Regulation, 1901, except sections 21 and 22, in the areas mentioned in column 3 thereof :‑ No. Serial Designation Area 1 Commissioner, Peshawar Division. Districts of Peshawar, Mardan, Kohat and Hazara. 2 Commissioner, Dera Ismail Khan Division. Districts of Dera Ismail Khan one Bannu.

20. It will be manifest from reading the notification reproduced above, that the Commissioner, D. I. Khan Division, had been designated as Commissioner for the purposes of th Frontier Crimes Regulation, 1901, in regard to the districts of Dera Ismail Khan and Bannu. Since the Commissioner of D. I. Khan division was designated to be the Commissioner for the purposes of the Frontier Crime Regulation, there was no need of fresh notification, designating Mr. Abdur Rashid Khan by name or by designation as a Commissioner, F. C. R., in that he, as a Commissioner, D. I. Khan, had already been empowered to act as a Commissioner, F. C. R.

21. There is another aspect of the case, which clinches the argument, raised on behalf of the petitioners, that Mr. Abdur Rashid Khan, Commissioner, D. I. Khan Division, should have been designated as a Commissioner, F. C. R. Section 6 of Ordinance XII of 1962, provides complete answer to the argument, in that the said section, which is reproduced below validates the proceedings :‑

"

6. Validation of actions taken in certain areas.‑The said Regulation as applicable to the areas specified in the Schedule to the 14th day of February 1962, shall be deemed to have continued in force in the said areas on and from the 15th day of. February 1962, to the date of commencement of this Ordinance, and everything done, action taken, right, privilege, obligation, liability, penalty or punishment acquired, accrued or incurred, or proceedings commenced, officer appointed or person authorised, jurisdiction or powers conferred, rule made and order issued under any of the provisions of the said Regulation shall be deemed to have been validly done, taken, acquired, accrued, incurred, commenced appointed, authorised, conferred, made or issued and shall be continued."

22. Mr. Mahmud Ali Qasuri also attacked the convictions of the petitioners on the ground, that the Frontier Crimes Regulation was extended to the district .of Sargodha on the 26th April 1962, but since the alleged double murder had taken place on the 19th April 1962, i.e., before the F. C. R. was extended to the district of Sargodha the petitioners could not be tried under the F. C. R. The point stands concluded by the unreported decision of the Supreme Court dated 17‑6‑1962, in petition for Special Leave No. 185 of 1962, Masood Ahmad v. The Deputy Commissioner, Sargodha and The State, in which precisely the same argument was repelled. Hamoodur Rahman, J., delivering judgment for the Supreme Court, expressed himself in the penultimate para. thus :‑ "The argument that the amendments introduced by the Notifications of the 26th of April 1962, and 7th of May 1962, could not have been applied retrospectively is also without force and misconceived."

23. This brings us to the last argument, raised by Mr. Mahmud Ali Qasuri, found on the observations in the decision of the Supreme Court in the State v. Nawab Gul and The State v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others (P L D 1964 Lah. 401) in which it was held that reference to a Jirga not expedient where facts "do not constitute a case at all, e.g., where only evidence is that of motive". This argument also admits of a short answer, and it is that the past transactions under the F. C. R. before the Fundamental Rights were created cannot be called in question. Again, a perusal of the award will clearly reveal that it is not at all a case of no evidence, but conversely, there is some legal evidence to connect the accused with the crime. The question, whether the quality or quantity of evidence was sufficient to sustain a conviction in a criminal Court is altogether a different matter, in that it was for the Jirga to believe or not believe that evidence, and so long as there was some legal evidence, however meagre it might be, the conviction cannot be called in question in the writ jurisdiction.

24. For all the foregoing reasons, there is no merit in any one of the writ petitions, which are dismissed. No order as to costs. K. B. A. Petition dismissed.