P L D 1971 Quetta 127 (PLP)

"8.‑(1) Where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood‑feud, or murder, or culpable homicide not amounting to murder, or mischief, or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe, he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or termi nate the consequences anticipated make an order in writing, stating the grounds of his being so satisfied, referring the dispute to a Council of Elders, and requiring the Council to come to a finding on the matters in dispute after making such inquiry as may be necessary and after hearing the parties. (2) The order of reference made under subsection (1) shall state the matter or matters on which the finding of the Council of Elders is required. (3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may,‑ (a) remand the case to the Council for a further finding; or (b) refer the case to a second Council ; or (c) refer the parties to the civil‑Court ; or (d) pass a decree in accordance with the finding of the Council, or of not less than three‑fourths of the members thereof, on any matter stated in the reference ; or (e) declare that further proceedings under this section are not required. According to Mr. Hanafi, if the conditions specified in subsec tion (1) of section 8 have been fulfilled, a Deputy Commissioner has no option but to refer the case before him to a Council of Elders, or a Jirga, as this Council is probably known in the Province. But the Legislature in its wisdom has enacted that when the Deputy Commissioner is satisfied about the existence of conditions warranting the reference of a dispute to a Jirga, he "may" do so. As the word "may", clearly imports a discretion, Mr. Hanafi submitted that it should be construed as "shall". I am aware that "may" can be construed as "shall", but that is in exceptional cases, when the statute confers a right on the citizen, and this construction is resorted to in order to prevent the rights of the citizen from being defeated. In the instant case however Mr. Hanafi wanted me to modify the plain and natural meaning of the word "may" not in order to advance the rights of the citizen but in order to curtail his right of recourse to the Regular Courts. Apart from the fact that such a construction would be contrary to the presumption in favour of the jurisdiction of the Courts. I see nothing in the language of the subsection to support this view, because it prescribes that the Deputy Com missioner may make a reference "if he considers that it will tend to prevent or terminate the consequences anticipated . . . . . .". Further, the word "may" has again been used in subsection (3) with regard to the alternatives to be adopted by the Deputy Commissioner after a Jirga has given its award. It is clear beyond any doubt that the word "may" in this subsection does not mean "shall" but only means "may", therefore, as the same words in the same section must be presumed to have the same meaning, on this ground also I am not able to accept Mr. Hanafi's argument, and I have no doubt that a Deputy Commissioner had discretion under section 8 of the F. C. R. to refuse to refer a civil claim to the Jirga.

5. As the third respondent, who is the Deputy Commis sioner, Zhob, thus had the discretion to refuse to refer the suit of the first two respondents to a Jirga, it will be convenient to examine Mr. Jafri's argument that the order of the 4th respondent, namely, the Commissioner, F. C. R., Quetta, setting aside the third respondent's order dated 22‑9‑1966 was illegal because it was in contravention of the mandatory provisions of section

53. Now in order to appreciate the arguments of the learned counsel, it is necessary to refer first to the third respondent's order. That order, like the fourth respondent's order, is extremely brief. But that is because the third respondent had fully approved of the report of his Extra Assistant Commissioner dated the 25th July 1966 (Annexure D to the petition). In this report the Extra Assistant Commissioner has pointed out that, as the claim of the first two respondents was between 50 and a 100 years old, it was "not fit to be entertained" according to Circular No. 52 Memorandum No. 329 dated the 6th October 1882, but that as he did not have the power to reject the claim summarily, he had placed the file before the third respondent "for decision" As the third respondent has approved of this report, I may explain here that Circular No. 52 relates to limitation in cases of land and water, and prescribes that such claims should not be entertained after the lapse of 30 years. It is true that the suit of the first two respondents is for a money claim, but the distinction is 6 not material, because in all systems of jurisprudence the period of limitation for suits for land and water is far longer than for mere money claims; therefore, to say the least, the view taken by the third respondent was eminently reasonable. Mr. Hanafi and the learned Advocate‑General were aware of this difficulty, therefore they cited authority to show that the Circulars to the F. C. R. cannot be treated as law. Even if they cannot be treated as law, they embody Tribal Riwaj, and as Circular No. 52 has stood the test of time for nearly a century, the third respondent's order is not only reasonable, but is also consistent with the objects of the F. C. R.

6. Now I turn to section 53 which states: "where, in exercise of his revisional jurisdiction in any proceeding, under this Regulation, the (Chief) Commissioner varies or sets aside any decision, decree, sentence or order, he shall record his reasons for so doing." Mr. Hanafi and the learned Advocate‑General submitted that, as the Commissioner, F. C. R. was not a Court, only substantial compliance with the directions contained in the section was necessary. They however could not explain what substantial compliance with the section meant, but they submitted that an order of the Commissioner need not be as elaborate as an order of a Court. I agree with the submission that the order of a Commissioner, F. C. R. need not be as elaborate or as well reasoned as the judgment of a Regular Court. But it must state the reasons for the decision taken by the Commissioner. Thus, for example, in the instant case, I have pointed out that the third respondent's view was based on a very reasonable appreciation of limitation according to the Tribal Riwaj, therefore as the fourth respondent set aside that order he should at least have explained how, in his opinion, the third respondent's view of limitation was erroneous. He has, however, merely stated as follows:‑ "A perusal of the record of the case reveals that the claim of the petitioners is connected with the Case No. 297‑A/Civil F. C. R. instituted by the respondents on 11‑10‑1966 for division of joint lands known as Purakhawa Khushkaba which has already been referred to Jirga for findings. I, therefore, accept the revision petition and set aside the impugned order with the direction that both these cases shall be referred to Jirga for findings and disposal by the lower Court under the procedure of the F. C. R." The order of the third respondent has thus been set aside in one short sentence which merely refers to the fact that there was another case between the petitioners and the first two respondents. I am completely unable to understand the relevance of this to the very reasonable view of limitation taken by the third respondent, therefore the order cannot by any stretch of imagination be deemed to be in compliance with the provisions of sec tion 53.

7. The learned Advocate‑G; neral and Mr. Hattah then criticised the third respondent's order for its brevity and stated that, as it did not contain any reference to the necessity of preventing a breach of the peace etc., it was in violation of section 8; therefore the fourth respondent had no choice but to set it aside. In the other hand, as I have pointed out, Mr. Bakhtiar and Mr. Jafri submitted that a Commissioner hearing a civil revision under section 49, F. C. R. had no jurisdiction to interfere with the Deputy Commissioner's order on the ground that the Deputy Commissioner's failure to refer a case under section 8 might have led to a breach of the peace, and in support of this argument they relied on the difference between the provisions of section 9 and section 11 with regard to the powers of the Commissioner. Whilst the language of the sections lends some support to the argument of the learned counsel, it is not necessary for me to decide it. Even if I assume for the sake of argument that a Commissioner, in a civil revision can set aside a Deputy Com missioner's order refusing to refer a case to the Jirga on the ground that such refusal might have led to a breach of the peace, in the instant case the fourth respondent has not said so in his order of 8‑8‑1967, therefore to assume that he has set aside the third respondent's order on this ground would be to substitute conjecture by evidence and to defeat the plain language of section 53.

8. Additionally, Mr. Bakhtiar referred me to section 52, F. C. R. which reads as follows:‑ "

52. Nothing in this Chapter shall be deemed to authorise the (Chief) Commissioner to vary or set aside any decision, decree or order given, passed or made in any civil proceeding under this Regulation, 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 mis carriage of justice, or that the decision, decree or order is con trary to good conscience or public policy." This section limits the revisional jurisdiction of the Commissioner in civil references, and it is very significant that the Commissioner's jurisdiction on the criminal side is not subject to any such restriction. Thus the Legislature has drawn a distinction between civil and criminal cases and considerably restricted the Commis sioner's power with regard to the former. This is not irrelevant t to the construction of section

53. As a Commissioner has the jurisdiction to allow a civil revision only on the grounds specified in section 52, it follows that the reasons which he is required to record under section 53 must also include the reasons for his view that the Deputy Commissioner's order is contrary to good conscience or to public policy, or is otherwise hit by section 52,1 but in the instant case the fourth respondent has allowed the revision filed by the first two respondents with a passing reference to the fact that the petitioners had filed a suit against them in the F. C. R. Courts. This casual reference cannot possibly be treated as a statement of reasons, and further the mere fact that the suit of the petitioners was thus pending cannot by itself conceivably lead to the conclusion that the third respondent's order was hit by section

52. The result is that the impugned order is contrary both to sections 52 and 53.

9. The learned Advocate‑General and Mr. Hanafi next sub mitted that even under Article 98, this Court had no jurisdiction to set aside the impugned order, however illegal it might be, because the fourth respondent had seisin of the case. The argument is misconceived. As I have explained, the fourth respondent had the jurisdiction to allow the revision only on the narrow grounds set out in section 52, and as he has instead allowed the revision on grounds extraneous to that section, it is a clear case of usurpation of jurisdiction.

10. The learned Advocate‑General and Mr. Hanafi then feebly submitted that even if the impugned order was contrary to the provisions of sections 52 and 53, this Court could not interfere because of the arbitrary manner in which the F. C. R. Courts functioned. According to the learned counsel, the con cepts of justice and equity, according to which this Court exercised jurisdiction under Article 98, were unknown to the F. C. R. Courts; therefore, even if the impugned order was contrary to the provisions of the F. C. R., there was no criteria by which this Court could exercise its jurisdiction under Article

98. I am not able to accept this argument. I have just pointed out that a Commissioner can set aside the Deputy Commissioner's order on the grounds inter alia that it is contrary to good conscience or public policy, or that it has led to a miscarriage of justice. Similarly, an obligation is imposed on the Deputy Commissioner under section 9 to reject the verdict of the Jirga if it is "contrary to good conscience or public policy." It is true that the concept of justice, good conscience and public policy under the F. C. R. Courts are not well defined nor would they coincide with the concepts of equity and justice in the Regular Courts. But this f does not mean that the F. C. R. is a kind of utter darkness, as submitted by the learned counsel. I may also refer here to a judgment of the Supreme Court in State v. Nawab Gul (P L D 1963 S C 270) to which Mr. Bakhtiar drew my attention. Unlike the present case, the judgment cited arose out of a reference under section 11 of the F. C. R., and in repelling the very argument now advanced before me Cornelius, C. J., who delivered the judgment of the Full Court, observed at page 273:‑ "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." I am in respectful agreement with these observations, but as the learned Advocate‑General submitted that their Lordships had taken a contrary view in Muhammad Akram and others v. The State (P L D 1963 S C 373) I have examined this judgment.

11. In Muhammad Akram's case after pointing out the differences between the F. C. R. Courts and the Regular Courts, Cornelius, C. J., who delivered the judgment of the Court, observed at page 380:‑ "In these circumstances, it should be obvious that for the Superior Courts to interfere, whether by approval or otherwise, with the operation of the system in any case is competently drawn into the system, would be a violation of the legislative Intention. All action, in the writ jurisdiction, should be con fined 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. If the legal requisites are satisfied, that is the last contact which the superior Courts can retain with the case, viz., by making such a declaration. All other processes taken in the disposal of the case, within the Jirga system are outside the purview of the Courts, in any of their jurisdiction. The reference in section 49 of the Regulation to certain sections of the Criminal Procedure Code is to be regarded in the nature of a direction to the Commissioner limiting the extent of his powers, without in any way importing any power in the High Court either under the Code, or in certiorari, to exercise control or supervision over the decisions of the Commissioner. Equally, the use of the expressions "material irregularity" and "defect in the proceedings", familiar though they are in the language of the ordinary Courts, cannot be interpreted as attracting the reversionary jurisdiction of the High Court. 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 is it 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. We have said enough to indicate an order of a Commissioner under section 50 of the Regulation is in no sense amenable to the writ jurisdiction of the High Court."

12. Having given anxious thought to these observations, it seems to me that the learned Advocate‑General's reliance on them is not only misconceived, but in my humble opinion, the first part of the observations support the petitioners' case. This is because the case against them was "diverted into the ambit of the Jirga system" by the impugned order; therefore, according to the observations quoted, this Court is under a duty to enquire whether the legal requisites of that diversion, which or contained in section 52 of the F. C. R., have been satisfied. Secondly, the observations quoted were based on the limited powers of the High Court in a writ of certiorari under the Laws (Continuance in Force) Order, 1958. But the rights of the petitioners in the present case are governed by Article 98 of the Constitution and their Lordships of the Supreme Court have held in Ghulam Jilani v. The Government of West Pakistan (P L D 1967 S C 373) and in Abdul Baqi Baluch v. The Government of Pakistan (PL D 1968 S C 313) that the powers of this Court under Article 98 are wider than those under the old writs of certiorari. Further, both these cases relate to detentions under the Defence of Pakistan Ordinance and the rules framed thereunder, and I need refer here only to the observations of Hamoodur Rahman, J., as he then was, now the Chief Justice, in Abdul Baqi Baluch's case. After pointing out that even an order of detention under the Defence of Pakistan Ordinance was susceptible to juridical review under Article 98 of the Constitution, Hamoodur Rahman, J. observed at p. 322 "This Court has pointed out that whatever may have been the position under the English Law or the Government of India Act, 1935, the position under the present Constitution of Pakistan is wholly different, for, by Article 98 (2) (b) (i) of the Constitution, a duty has been cast upon the High Court, when ever a person detained in custody in the Provinces is brought before that Court, to 'satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner'." Two conclusions follow from these observations. In the first place, as the powers of the High Court have been enlarged under Article 98 of the Constitution, the judgment in Akram's case is distinguishable on this ground. Secondly, the view of Cornelius, C. J. in Akram's case was that the Court could not interfere in F. C. matters because it was a law of expediency. But so are detention laws, and as the Supreme Court has held that detention orders under the Defence of Pakistan Ordinance are subject to judicial review under Article 98, there is absolutely no reason why orders under the F. C. R. should not be subject to similar judicial review. It is true that the task of ascertaining whether such orders are without lawful authority might some times .he very difficult because the standards and practices of the F. C. R. Courts are not the same as of this Court. But that cannot absolve the Court from its obligation to set aside all orders that are without lawful authority.

13. I am fortified in my opinion by a judgment of a Full Bench of the West Pakistan High Court reported in Mohd. Khan v. Additional Commissioner and Commissioner, F. C. R. (P L D 1964 Lah. 401) to which Mr. Bakhtiar and Mr. Jafri referred me. In that case the Full Bench of the West Pakistan High Court pointed out that the powers of the Court under Article 98 of the 1962‑Constitution were wider than its powers before that) Constitution, and that as Akram's case had been decided under the pre‑1962‑Constitution it did not prevent the Court in a petition under Article 98 from setting aside orders of the F. C. 131.1 Courts and Tribunals on the ground that they were contrary to the provisions of the F. C. R. I am in respectful agreement with this view and, as the fourth respondent's order dated the 8th August 1967 is‑contrary to the provisions of sections 52 and 53 of the F. C. R. at is to be set aside.

14. The petition is allowed and I set aside the fourth respondent's order of 8‑8‑1967 and remand the case to him so that he may bear and decide the revision application of the first two respondents according to law. The costs of the petitioner shall be paid by the first two respondents. Petition accepted.