P L D 1957 (W (PLP)

"This is an application under section 498, Criminal P. C. for grant of bail. The two applicants Abdul Haq and Abdul Majid were previously arrested for offences under section 302, P. P. C. by the District Magistrate, Quetta-Pishin but on an application made to this Court, they were ordered to be released on bail. The allegation is that as soon as they were released, they were re-arrested by the order of the District Magistrate under section 41 of the F. C. R. I have gone through the order made by the District Magistrate dated the 25th October 1956, whereby fresh warrants were issued against the two applicants. This order is based on the reports of the Special Investi gating Officer and the learned District Magistrate was satisfied that the two applicants were taking active part in the case of murder of the minor Abdul Rahim son of Said Muhammad Tarin and are causing disappearance of evidence and screening the offenders. It was further laid down that unless such persons were prevented from doing so there was every likely hood of further bloodshed between the two factions of Tarins. It is not the function of this Court to unnecessarily interfere with the investigation being carried out by the District Magistrate and other Political Officers under the F. C. R. but when it is brought to the notice of this Court that there is an illegal detention, it is bound to interfere. In security proceedings the applicants, as of right, are entitled to bail. If the learned District Magistrate considered that immediate measures were necessary for the prevention of a breach of the peace during the pendency of the enquiry he could direct the applicants to execute a bond with or without sureties for keeping the peace until the completion of the enquiry and if the applicants refused to execute a bond or failed to furnish security as directed, then they could be kept in custody until the completion of the enquiry. I, however, refrain from passing any order on the bail application and direct the learned District Magistrate to make necessary interim order of security and then to proceed with the enquiry as early as possible, failing which necessary order about the bail shall be made by this Court. File be consigned to the record. Announced 2nd November 1956." On 5th November 1956, the District Magistrate gave a notice under sections 40 and 41 of the F. C. R., and called upon the applicants to execute, a bond for good behaviour. The petitioners expressed willingness to execute the requisite bond with sureties. The District Magistrate accordingly ordered on 5th November 1956, that the bonds be executed, which were executed by the petitioners and they were released from the custody. The petitioners thereafter filed the present writ petition with a prayer that a writ of certiorari may be issued quashing the order of the District Magistrate dated the 25th October 1956, whereby they were ordered to be re-arrested, as well as the order dated 5th November 1956, whereby they were ordered to execute bonds with two sureties. The main grounds on which the petitioners challenge the legality of the orders are :- (i) that the F. C, R. is a discriminatory enactment and its provisions, including sections 40 and 41 are inconsistent with the fundamental rights granted by Part II of the Constitution. (ii) that the procedure laid down in the F. C. R. con travenes the provisions of Article 7 of the Constitution. In this writ petition the learned counsel of the petitioners dwelt on sections 40, 44, 49 and 50 of the F. C. R. and questioned their validity under Article 7 of the Constitution. These objections, except one, have already been considered. The objection which remains to be considered is that a law which indirectly contravenes the principles of Clause (4) of Article 7 cannot be saved only because ostensibly it shows respect to the principles of the Constitution. The contention is explained by referring to the provision in subsection (1) of section 40 of the F. C. R. which is to the effect that under certain circumstances the proper officers can order the person concerned to execute a bond for good behaviour and for keeping the peace up to a period of three years and then 04 the provision that if he fails to give the security, he is to be committed to prison under section 44 (1) until the period for which security is demanded expires or until, within that period, he furnishes the security. This, it is contended violates Clause (4) of Article 7 of the Constitution, for although such imprisonment would be strictly speaking for failure to give security but a demand made at random for furnishing security amounts to giving a choice to the person concerned between preventive detention in violation of Article 7 (4) or carrying out an oppressive order. Moreover, it is argued, that once the demanded security is given it can be forfeited under section 43 and thus the oppression can be aggravated. The proviso to subsection (1) of section 42 does lay down that a person from whom it is proposed to take bond shall be given an opportunity of showing cause in Court why a bond should not be demanded but this, it is argued, does not provide adequate oppor tunity for being heard because the application to such hearings of sections 112, 113, 115 and 117 of the Code of Criminal Procedure is excluded by subsection (2) of section

42. The argument boils down to the plain objection that an adequate opportunity to be heard is not provided in the security proceedings under the F. C. R. because all the provisions of Chapter VIII of the Code of Criminal Procedure do not apply to them. A short reply, on the lines adopted by Kayani, J. in Khaar Muhammad Khan's case, is that they are not proceedings under the Code of Criminal Procedure and that the provision of sections 112. 113, 115, 117 of the Code are not of compelling force in these proceedings, Chapters VIII and XLII of the Code of Criminal Procedure with some modifications are made applicable by section 47 of the F. C. R. to these proceedings and the objection that they do not apply in their entirety is not an objection based on any essential principle. There are some disadvantages to the persons dealt with under the F. C. R. as compared to the proceedings under the Code, but every disadvantage resulting from the special procedure of a special law does not make such law invalid. Moreover, a claim to the right for equality before law and equal protection of law cannot be sustained, even when there are substantial inequalities, by dwelling on them alone for the centre of discussion needs to be shifted soon to the investi gation of the existence or non-existence of a reasonable basis for the differentiation. All the four writ petitions were heard together. Mr. Yahya Bakhtiar argued them on behalf of the petitioners. Mr. Bakhtiar who was formerly practising at Quetta, was helpful to us in appreciating the Jirga system, its actual working and the special circumstances which have led to the application of the F. C. R. in North West Frontier Province and Baluchistan. He has taken us through the political history of the States of Baluchistan, the Tribal (or Special) Areas of Baluchistan, the Leased Areas of Baluchistan and the British Baluchistan or the Chief Commis sioner's Province. Pishin falls within the area of British Baluchistan. He informed us that this territory was surrendered by King Yaqub Khan of Afghanistan after the Afghan War III to the British Government under the Treaty of Gandomuk in 1879; in the beginning, Certain laws of India with suitable modifications were extended to it under the Scheduled Districts Act, 1874; in 1890 special enactments were passed for this area which included the Law's (sic.) law, the Civil Justice Law and Regulation, the Criminal Justice Law and Regulation, and the Forest Law and Regulation, the Civil and Criminal Justice Regulations were re-enacted in 1896, when the post of the Judicial Commissioner was created ; in the meantime in 1890, the Punjab Frontier Crimes Regulation was applied to this territory and was replaced on 1st November 1901, by the present Frontier Crimes Regulation (III of 1901) by a Notification No. 9350 of the Chief Commissioner ; at present it is in force in the territory under the British Baluchistan Laws Regulation (II of 1913) ; the Code of Criminal Procedure was extended to this territory in modified forms and now it is in force and used in the ordinary Criminal Courts in terms of subsection (2) of section 1, which are :- "(2) it extends to all the Provinces and the Capital of the Federation ; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being m force". The F. C. R. the Rulings and Orders issued under it from time to time are contained in a book generally known as the "Green Book", the official title of which is "the Administration of Customary Law through The Frontier Crimes Regulation in Baluchistan". Mr. Bakhtiar supplied to us a copy of the Manual of the Customary Law in Baluchistan, from which it appears that the compiler of this Manual had read a Paper on the Frontier Crimes Regulation in 1917 and published it in 1919 after including in it some additional information. It appears that the writer had 'traced in it the history of the Special Regulations passed for the Frontier Districts from 1e72 onwards up to the date of its publication. That publica tion could not be produced by the earlier advocates for our perusal, and therefore we have to understand the situation with the help of the material which is contained in the Green Book, the Manual of Customary Law and the information conveyed to us by Mr. Bakhtiar during the course of his address to us. As the name suggests, "The Frontier Crimes Regulation, 1901" was originally enacted for certain Frontier Districts as an additional piece of legislation "to provide for the sup pression of crimes". The preamble of the Regulation is as follows :- "Whereas it is expedient further to provide for the suppression of crime in certain Frontier Districts, it is hereby enacted as follows : During the period of conquest, annexation mid acquisition of territory by the British Government it was found that special pieces or legislation were necessary for maintaining law and order so as, at the same time, to win and retain the sympathy, support and loyalty of the population. The Frontier Crimes Regulation of 1901 is one of these pieces of legislation and aims at letting the population its own way, so that its sentiments, prejudices and predilections may remain untouched and the local custom of settling disputes with the help of their representatives may be utilised for the purpose of maintaining peace by warding off the chances of the commission of crime on account of new blood feuds and tribal jealousies and by preventing a fresh dare-up for the commission of crime on account .of existing feuds, jealousies and similar reasons peculiar to the territory. In Baluchistan the emphasis of the administration. Lin the recognition of customary and tribal law seems to have been more than in the Frontier Districts which formed a part of the Punjab and the N W. F. P. The following observations of Sir Henry McMahon Agent to the Governor-General and Chief Commissioner in Baluchistan in his Circular Order Sated the 31st July 1907, would elucidate this difference on emphasis.

6. A study of the past and present Frontier Crimes Regulations will show as the history of their origin confirms, that they are due to an endeavour to graft a Jirga system on to a purely judicial system of procedure. It cannot be said to have been very successful in the Punjab Frontier Districts or the present North-West Frontier Province for which it was drawn up,, because the judicial system of procedure on to which it was grafted, had in that country already killed the customary and tribal law without which no Jirga system can be really effective or successful. The result has been in the past, and possibly still is, to make the Frontier Crimes Regulations merely an alternative, and easier method of applying ordinary, criminal law and exacting, without variation, the penalties laid down by the Criminal Procedure and I. P. Codes. Imprisonment acid fine are the stereotyped punishments and these, but for the extra labour involved in securing con viction, might as far as practical results are concerned, just as well be inflicted by the ordinary Criminal Courts.

7. In Baluchistan the conditions are widely different. Customary and tribal law still exists in full force, and forms under our Jirga system, an instrument for the suppression of crime which in simplicity and. effectiveness can be surpassed by no other legal instrument that we can invent, for the simple reason that it is based on the character, idiosyncrasies and prejudices of the people among whom it has originated and by whom it has been gradually evolved during long periods of time to meet their own requirements and remedy their own failings. The settlement of disputes which essentially meant settlement of feuds and tribal jealousies with the object of establishing peace and tranquillity in this manner obviously meant that the administrative offers had to bestow their personal attention on public affairs and administration of justice on the criminal side. This was recognised by Sir Henry McMahon who said that the Jirga system, as compared to ordinary judicial procedure, conduced to no saving of labour of District Officers in any one particular case, but it was beneficial on the whole as it saved their time "in that it effectively reduces crime". His observations in the last para of the circular show that the object of the administration was to understand the character and the prejudices of the people so that they might not be unwittingly displeased and thus the maintenance of law and order should become difficult. He has pointed out the difference between the proper attitudes towards the population in general and towards the heads of the com munities in the following words. "In conclusion it cannot be too strongly impressed on District Officers that in every case arising out of a dispute or feud, the settlement of that dispute or feud is the primary consideration, not the mere punishment of the perpetrator of some last incident in its history. A satisfactory settlement necessarily includes all that is required as regards punishment while the latter by itself more often than not only increases the difficulty of sub sequently effecting the former. The heirs to a feud are not undeserving of sympathy. They are often compelled to act by impulses, which we are strangers to by home and social influences which overcome all fears and scruples, and their actions must not be judged by our ordinary standards. What they do is not intentionally in defiance of our law, or as an insult to our authority. In most cases two active parties in a feud are sufficient and there is seldom room or occasion for vindictive interference on the part of a third party in the person of Indian Criminal law. Their own law properly administered by us, generally suffices to meet both their and our needs. Where punishments, as such, of an independent nature can often be effectively and profitably bestowed is in the case of the heads of communities, village or tribal, who knowing a feud exists and that certain persons are likely to commit offences in pursuance of such (sic) fail to take steps to settle the feud themselves, or bring it and its probable consequences to the notice of the District authorities". Sit Frederick Johnston, Agent to the Governor-General and Chief Commissioner in Baluchistan, has gone to the extent of attributing the establishment of comparative peace and tranquillity in the territory to the respect by the administration for the custom and outlook of the people. In his circular dated the 18th February 1927, he has remarked as follows. "The matter is one of general interest and deals with a question involving the genius of administration in Baluchistan as the comparative peace which has obtained over the vast area of Baluchistan is largely due to the principle of confining to such minimum as is necessary to maintain law and order interference with the private life and customs of the people and of leaving to them the settlement by their customary methods and tribunals of their internal affairs, while at the same time seeing that such settlement is made in a satisfactory way, so as to preclude the administrative failure and unrest consequent on the grievance of un required wrongs". There were obvious difficulties in the application and enforcement of the F. C. R. even to the inhabitants of these territories. It was difficult to leave it to them to formulate their complaints and to establish them before the authorities, and it was necessary that their points of view and real grievances should be investigated as a preliminary step before attempts could be made to find redress for their grievances. Sir John Ramsay, Agent to the Governor-General and Chief Commissioner in Baluchistan, has adverted to this need in his circular dated the 12th September 1912 and stated. "As has been pointed out by Sir Henry McMahon in his Circular No. 305-V.Z., dated 31st July 1907, the real object to be aimed at is the settlement of existing disputes and the prevention of further disputes, and to attain these objects it is necessary to understand clearly the true nature of the existing disputes. Petitioners seldom state their cases fully and intelligibly, and it sometimes happens that the alleged cause of complaint is only urged as a means of harassing the defendant because some entirely different dispute exists between the parties. The Hon'ble the Agent to the Governor-General therefore considers that when a complaint is received it should be carefully examined by the officer receiving it, with a view to seeing whether it contains a clear and full statement of the case; and if it does not contain such a statement or if it leaves obviously relevant points unnoticed the complainant should be examined and the result recorded as a continua tion of the petition. The Hon' ble the Agent to the Governor-General has found it a good plan, on the first appearance of the two parties to ask one or more impartial persons of local influence to discuss the dispute with the parties, with a view to seeing whether the recorded statements really deal with the matter which form the cause of the dispute between the parties and also with a view to trying whether (a) the dispute cannot be settled by a razinama or (b) the parties cannot be induced to appoint arbitrators, or (c) failing the appointment of arbitrators, whether the parties cannot be induced to nominate the persons who would be acceptable to them as members of a Jirga to be appointed to settle their dispute. It may perhaps be considered that the parties will be inclined to nominate persons who are partial, but if both the parties accept the nomination of arbitrators or members of a jirga it is probable that the partiality will be equally divided, and the system sketched above ensures that the persons who are to settle the dispute will take a real interest in it, or are men whose opinions will carry weight in the district. The present system of deciding nearly all disputes by Jirga is a most excellent one, in the opinion of the Agent to the Governor-General, but it cannot be denied that it makes great demands on the time and patience of the leading men of the district; it is therefore desirable from every point of view to do all that is possible to nominate Jirgas which afford a reasonable hope of satisfying the parties and thus avoiding the necessity of subsequent references to the same or a different Jirga". Lt. Colonel A. E. B. Parsons laid great emphasis on the proper selection of the members of a Jirga. He said- "Lists of District and Local Jirga members exist, which should consist mainly of tribal leaders. There is however danger of creating a class of professional Jirga members, and the Agent to the Governor-General will have no objection to the nomination of other suitable persons to act. The Agent to the Governor-General attaches great importance to the careful selection of Jirga members for each individual case. As far as possible they should be the tribal leaders of the parties, come from the same locality as they, and be in a position to know the full facts of the case. Section 11 (2) provides a safeguard against bias". The instructions issued by the high administrators were based on their appreciation of the conditions prevailing in the territory and the outlines of the procedure laid down in the law were so spacious that the patterns-created by the instructions issued from time to time could be placed, shifted and replaced within them without changing the boundaries. The administrators were not oblivious of the comparative values of customary and tribal law and the ordinary criminal law. Sir Henry McMahon has pointed out certain defects of the customary and tribal law apparently in order to impress the necessity of having patience with it and observed. "Of one thing we must especially beware and that is any attempt to improve that law through any mistaken idea that our ordinary criminal law is in any way superior to it or likely to surpass it in efficiency." This comparison was not based on the consideration of specific provisions of the ordinary law but on the experience of the efficacy of the methods of removing grievances and settling criminal disputes for the purposes of smooth and satisfactory political and criminal judicial administration. Their experience was not that the application of the F. C. R. to the ordinary offences amounted to meeting out a harsher treatment than was permissible under the ordinary criminal law. On the contrary, as pointed out by Lt. Col. A. E. B. Parsons, in his circular dated 18th June 1936, it was a concession granted to a tribal offender that he should be tried according to his customary law. Such a trial afforded an opportunity to pay heed to the status of the offender and therefore to take into account the good, bad or indifferent influence of the offender on the prevalence of crime in the society. Mr. Bakhtiar has not disputed the confessional nature of an enquiry under the F. C. R.-nor could he in fairness do so because his client Malik Behram Khan, the petitioner in Writ Petition No. 390 would not have been pardoned by the ordinary Courts once he was found guilty, but has contended that the flexible nature of this law provides the chances of its misuse to the administration. He has argued that the F. C. R. has often been used to secure convictions in cases in which the police were not able to investigate an alleged offence in a proper manner whether on account of its own inefficiency or on account of difficulties of investigation due to tribal affiliations and alliances. He has stated that offences which had a political complexion have been sometimes referred to the Jirga in order to save notoriety and hush up differences. Sometimes, according to him the F. C. R. has been misused by officers from motives of corruption. According to him this piece of legislation is one of the worst instances of tying up the judiciary with the administration with such close bonds that the administration of justice to any fair extent can be made impossible by the administration. A concession .can certainly be given to certain parties under this law but this itself, according to ham means inequality before law and unequal protection of law to the citizens of the country. This inequality, according to him, is perpe trated in the administration of justice on the criminal side by the revoltingly large power and discretion conferred by section 11 in the choice of the form and essentials of enquiry. Mr. Bakhtiar has explained that his argument is not simply that the law is capable of being administered in 'a discriminatory manner, because such an argument would not be sustainable after the decision of our Supreme Court in Jibendra Kishor Acharyya Choudhury and others v. The Province of East Pakistan (P L D 1957 S C 1 (Pak.) 9) but that the F. C. R. is discriminatory ex facie because firstly all disadvantageous deviations permissible under section 11 of the F. C. R. from the ordinary procedure laid down in the Code of Criminal Procedure and secondly all disadvantageous deviations permissible under section 12 of the F. C. R. from the normal punishments prescribed in the P. P. C. are differentiations and inequalities when they apply to those offences which are triable under the ordinary law also. Mr. Nasiruddin, the learned counsel for the respondents in all the writ petitions has not denied that many deviations of the nature stated, on behalf of the petitioners can result in disadvantage in varying degrees to the offenders to whom the F. C. R. is applied, but has argued that the attack on the law will remain ineffective so long as it is not established that there is no reasonable and rational basis for such differentiation amongst offenders. He also referred to the circulars issued by high political and administrative officers and has contended that the circumstances which have been noted in them and the reasons deducible from them reveal the existence of the circumstances and conditions which justify a special classification on territorial and population basis of British Baluchistan for the enforcement of the F. C. R. The principle having now been settled that equality before law does not mean that every law must have universal application for all persons who are not by nature of circum stances in the same position, all that remains to see is whether there is reasonable basis for treating British Baluchistan and the inhabitants of the territory to form a class for the purposes of the application of the F. C. R. or not. The habits, customs, history, prejudices and character are amply explained by the circulars of high administrators issued during a period of more than three decades and are convincing enough to be taken as the basis for classifying this territory separately from the other parts of the country where the F. C. R, is not applicable. He has referred to the following observations contained in the judgment of the Federal Court on the petitions of Samundar and others v. The Crown (P L D 1954 F C 228) "I am therefore clearly of the opinion that the pro ceedings which have been taken in the present cases are not to be regarded as proceedings in justice, but that they are from every point of view to be regarded as proceedings before an administrative agency, specially provided for the settlement of criminal causes, and specifically adapted to the conditions prevailing in frontier districts, at any rate at the time when the Regulation was enacted", and again: "It (F. C. R.) is essentially to be regarded as an instru ment embodying the 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". These observations in which the prevalence of special and unsettled conditions and circumstances are recognised, according to Mr. Nasiruddin, apply with equal force to British Baluchistan and once it is conceded that special circumstances and conditions prevailed in this territory it cannot be said that an objection can be validly taken to the validity of this law under Article 5 of the Constitution. He has argued that under section 114 of the Evidence Act the continuance of the circumstances which are recognised to have prevailed at one time should be presumed and that the (1) applicants have to show that those conditions and circum stances have ceased to obtain in the territory before they can succeed in their attack on this law under the Constitution. Mr. Bakhtiar has wisely not indulged in rhetoric s to find a reply and has not tried to cloud an issue of fact by emotional generalisations and sweeping remarks in spite of the obvious temptation to exploit the feelings which spring from the consciousness of independence and enforcement of a Republican and Islamic Constitution in the country and has been content with pointing out that the Scheduled Districts Act, 1874 gave place to section 95 of the Govern ment of India Act, 1935, which was replaced by section 95-A by an amendment in 1949 and that this evidenced a recog nition by the Legislature of a change in the circumstances. Furthermore, according to section 7 of the Establishment of West Pakistan Act, 1955 the jurisdiction of the High Court has been extended to all territories including British Baluchistan excepting the special areas. Moreover, under Article 104 of the Constitution special' areas only are treated as a separate class and the jurisdiction of the High Court and of the Supreme Court has been excluded from the Special areas only. As the Special areas do not include British Baluchistan it is to be inferred that the Constitution does not regard British Baluchistan to be a special class of territory. This argument of Mr. Bakhtiar does not appear to go to the root of the problem because in spite of the extension of the jurisdiction of the High Court and of the Supreme Court to this territory there, is the continuance by the Legislature itself of the application of-the F. C. R. to it and as such the considerations in justification of this piece of legislation cannot be said to have been excluded in their application to it. Mr. Bakhtiar has next argued that there is discrimination in the same class of people also because under section 11 of the F. C. R. the Chief Commissioner or Deputy Commissioner can refer "the opinion of the guilt or innocence of any person or persons accused of any offence" to the decision of the Council of Elders if they consider it inexpedient that such a question should be tried by ordinary criminal courts. The considerations according to him before the Chief Commissioner or the Deputy Commissioner are purely of expediency and they can arbitrarily pick and choose "any person" for "any offence" irrespective of the class to which he may belong to be referred to the decision of the Council of Elders. These considerations of expediency, he contended, are uncontrolled and unguided excepting for racial considera tions which are mentioned in subsection (4) of section 1 of this law and that the racial considerations are also transgressed because it is possible for the Chief Commissioner and the Deputy Commissioner to pick and choose even the question of guilt or innocence of any Pathan or Baluchi for reference to the Council of Elders. According to him sections 1 (4) and 11 to 16 of the F. C. R. should therefore be held to be invalid under Article 5 of the Constitution. In support of the first proposition he has referred to the majority opinion expressed in the State of West Bengal v. Anwar Ali and another (A I R 1952 S C 75) in which it was held that the West Bengal Special Courts Act of 1950 was invalid as it ignored the principles of classification followed in the Code of Criminal Procedure and laid down a new procedure without making any attempt to particularise or classify the offences or cases to which it was to apply. It was held that the speedier trial of offences which was the object of the Act did not provide a good guide either for making differentiation in offences or individual cases. The necessity of speedier trial was held to be too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In support of the second proposition he has contended that any classification based on considerations of race, caste, creed, birth or colour is obnoxious and unsustainable. In support of the contention that the classification followed in the F. C. R. is based on considerations of race the learned counsel relied on the terms of subsections (4) and (5) of section 1 and the explanation to the section, which are as follows: "(4) Sections 1 to 5, 10, 20, 21, 26 to 28, 31, 32, 36, 37, 56 and 60 to 64 are of general application, but the remaining sections may be enforced, in whole or in part, as the case may be, only against Pathans and Baluchis, and against such other classes as the Local Government may, by notification in the local official Gazette, declare to be subject there to. (5) A Notification under subsection (4) may declare a specified class only to be subject to all or any of the provisions of this Regulation in a district or part of a district. Explanation.-The word "class", as used in sub sections (4) and (5), includes any persons who may be collectively described in a notification under this section as persons subject to all or any of the provisions of this Regulation." It should be noted that except for the sections specifically mentioned in subsection (4) as of general applica tion the remaining sections are not made applicable to Pathans and Baluchis but are left to be made applicable to them as well as to any other classes of persons as the local government may declare to be subject to them. A notification was issued under this subsection on the 1st July 1903 and according to the counsel of the respondents is still in force. It is as follows: "No.1096-Z., dated the 1st July 1903.-In exercise of the powers conferred by section 1, subsection (4) of the Frontier Crimes Regulations, 1901 (III of 1901), as extended to British Baluchistan, and with the previous sanction of the Governor-General in Council, the Chief Commissioner is pleased to declare the following classes of persons, not . being European British subjects, to be subject to the ' whole of such sections of the said Regulation as are not of general application, namely :- (1) All persons born or ordinarily resident (a) in any local area to which the said Regulation for the time being extends or has been applied and in which all or any of its provisions, or its provisions as applied are for the time being in operation, or (b) in any other local area, not forming part of : British India, bordering on the territories for the time being administered by the Chief Commissioner of British Baluchistan or by the Agent to the Governor General in Baluchistan as such Agent or situate within or bordering or any part of the dominions of His Highness the Khan of Kalat, or (c) In any part of Afghanistan or Persia. (2) All persons dependent upon persons of the preceding classes whether as tenants, servants, clansmen or retainers of any kind, and (3) All persons accused of being jointly concerned in the commission or abetment of an offence with persons of the preceding classes." Accordingly those sections which are not of general application are applicable, excepting for the European British subject, to all persons born or ordinarily resident in certain localities, persons dependent upon them and persons accused of being jointly concerned with them in the commission or abetment of offences. It does not therefore appear to be correct to say that any classification on racial basis has actually been made in the administration of justice on the criminal side. Emphasis was laid during the arguments on the exclusion of European British subjects from the applica tion of these sections in order to show that racial considerations were in any case present. We think that this view of the classification is not sound firstly because European British subjects are a distinct class, not by race but by national peculiarities and secondly because their exclusion is explained if it is kept in mind that the peculiarities of the population of the territory were the reason for introducing the special law. The general atmosphere of the society and the influences of association could affect those outsiders only who had an affinity with the population and took up residence in the territory, and could not affect the ideas, habits and outlook of European British subjects who for good or bad reasons, kept themselves aloof from local influences, contacts and associations. Other foreigners besides European British subjects were not mentioned in the notification because it was of no practical value that all citizens of the world should be mentioned. We cannot, however, help remarking that Pathans and Baluchis are mentioned as two classes in sub section (4) of section 1 of the F. C. R. and it is laid down that the Local Government can apply certain provisions of the law to them. May be that the object was to refer to certain sections of the population without thinking of the races to which they belonged, but the outcome of the effort to describe these sections of the population has been that they have been classed as two races. We are prepared to concede that certain attributes of the population were aimed to be described with the help of two short words, but the object of brevity of dubitation cannot be allowed to be achieved by forgetting attributes and focussing attention on Pathans and Baluchis as such about whom it cannot be said that they all reside in the territory nor that they are the only residents of the territory. The provisions of law which were meant to be applied to those sections of the population which exhibited certain peculiarities could actually not be applied, according to the last mentioned notification itself, to Pathans and Baluchis and had to be applied to all the persons born or ordinarily resident in certain localities. This application of the provisions of laws by the order of the Local Government notified in 1903 exposes the unreasonable ness and irrationality of classification of population for purposes of suppression of crime on racial basis. We are bound to hold that the classification of the population in F subsection (4) of section 1 on racial basis offends against Article 5 of the Constitution and that the explanation that certain habits and customs and not racial peculiarities were the object in view makes the racial classification mare easily vulnerable. It is true that admittedly the order issued under section 1 does not classify the population on racial basis and that therefore the action taken under the notification is saved, yet the classification to the extent to which it is made in the law on racial basis is void. The notification has by-passed racial classification and classified the population on the basis of birth and residence in certain localities. The classification on the basis of birth is again obnoxious and cannot stand the test of the principles embodied in Article 5 of the Constitution. It was said in defence that reference to birth was unnecessary and that the classification on the basis of residence was enough for the purposes of the requirements of the law It has been urged that the idea of classification by birth was introduced un necessarily as it was innocuous in the old style of thought. This amounts to a recognition of the unreasonableness, according to the present ideology, of classification on the basis of birth. The notification seeks to apply certain sections to "all persons born or ordinarily resident" in the given localities. This classification is not only logically defective because it is overlapping but it is also unreasonable from the point of view of suppression of crime. It is over lapping because those to whom the qualification of residence applies for purposes of the law include all those who were born in the localities and form a section of the population. It is unreasonable because it sealers to apply the special provisions of the law to those also who may after birth have never lived in the localities and never had the chance of imbibing the characteristics of the population. The classifica tion made in the Notification No. 1096-Z dated the 1st July, 1903, on the basis of birth is therefore void under Article 5 G read with Article 4 of the Constitution. The classification made in the Notification on the basis of residential qualifica tion is saved. The question for consideration now is, how does the invalidity of the classification made in section 1 (4) on racial basis and the invalidity of the classification made in the said notification on the basis of birth, affect the petitioners. They are admittedly residents of British Baluchistan and the residential qualification, which too is a basis of classification in terms of the notification read with section 1 (4) and is not held void, attaches to them. Emphasis was in fact laid, with a different purpose of course, during the arguments by Mr. Bakhtiar on the residence of some of the petitioners in Pishin Tahsil as distinguished from Pishin Town. The invalidity of some basis of classification does not help the petitioners who fall in the remaining category. Mr. Bakhtiar has argued that the preamble of the F. C. R. does not provide an effective guide for selecting cases under section 11 for reference to the council of Elders and has relied, as stated above, on the West Bengal case. It is true that the pea mole of West Bengal Courts Act of 1950, was held by the Supreme Court of India to be too vague and uncertain to be a guide in the selection of cases for reference to Special Courts, but the preamble of Saurashtra State Public Safety Measures (third amendment) Ordinance of 1949 was held in the case of Kathi Raning Rawat v. State of Saurashtra (AIR1952SC 123) to be a sufficient guide to the Government of the State for issuing the direction as to which offences or class of offences or which cases or class of cases should be tried by a Special Judge. The preamble of this Ordinance recited that it was expedient to provide for public safety, main tenance of public order and preservation of peace and tranquillity in the State of Saurashtra". An affidavit was submitted by an officer of the Home Government of the Saurashtra State to show that an alarming state of Lawlessness prevailed in some of the districts within the state, that an Ordinance had therefore been in the first instance promulgated principally to provide for preventive detention and imposition of collective fines but it did not prove effective and therefore the State promulgated by way of amendment the subsequent Ordinance which was in question before the Supreme Court. It appears, as pointed out by Mukherjee, J. that under this Ordinance it was possible for the Government of the State to give direction for the trial by a Special judge of cases which were pending before the ordinary criminal Courts at the date on which the Ordinance came into force; yet it was held that conditions prevailing in the State had led to such lawlessness in certain districts as to create a reason able classification which justified the promulgation of the Ordinance and that the preamble was a sufficiently clear guide for the State in the selection of offences and cases to be tried by a Special Judge. A distinction was drawn between the West Bengal case and the State of Saurasiitra case by some of the learned Judges of the Supreme Court, as for instance Das, J. in the forms of the notifications issued under the West Bengal Act and the Saurashtra Safety Ordinance, It was pointed out that under the notification issued by the State of West Bengal certain specific cases were directed to be tried by the Special Court while the notification issued by the Saurashtra state did not relate to individual cases but only gave a list of offences with reference to appropriate sections of the I. P. C. which were to be tried by the Special Judge. This distinction was co-related with the word of the section by Das, J. as follows: "It will be noticed -hat section 11 of the Saurashtra Ordinance, like section 5 (1), West Bengal Special Courts Act, refers to four distinct categories namely, "offences" "classes of offences" "cases" and "classes of cases" and empowers the State Government to direct anyone or more of these categories to be tried by the Special Court con stituted under the Act. The expressions "offences" "Classes of offences" and "classes of cases" clearly indicate and obviously imply a process of classification of offences or cases. Prima facie, those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences" "classes of offences" or "classes of cases". The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made affect all individuals who may commit the particular offence. In short the classification implied in this part of the sub section has no reference, to, and is not directed towards the singling out of any particular person as an object of hostile state action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purposes of the particular legislation as recited in its preamble." In the section the word "cases" did occur and obviously had a direct connection with the individual offenders charged in such cases, but no emphasis on it was recognised and 'a distinction was found on account of the notification between the operation of section 5 of the Bengal Act and section 11 of the Saurashtra Ordinance, although both of them were in the same terms. The preamble of the F. C. R. and the notification issued under subsection (2) of section 12 of the F. C. R. compare favourably with the preamble of the Saurashtra Ordinance and the relevant portion of the notification issued under sections 9 to 11 of the Ordinance. The preamble of the F. C. R. has been reproduced above and the notification issued under subsection (2) of section 12 is as follows: "(1) Any offence punishable under any of the following sections of the I. P. C., namely, sections 121, 121A, 122, 123, 124A, 125,126, 127, 131, 144, 148, 150, 193, 194, 195, 196, 201, 211, 212, 216, 216A, 302, 304, 307, 308, 324, 325, 326, 328, 354, 363 to 369, 376, 377, 379 to 382, 386, 387, 392 to 399, 400, 401, 4C2, 411 to 414, 427 to 429, 435, 436, 440, 448 to 460, 494, 495, 497 and 498. (2) Any offence punishable under section 29 or section 30 of this Regulation. (3) Abetment of any of the offences aforesaid. (4) Attempt to commit any of the offences aforesaid, which are not themselves expressed to be attempts to' commit offences. The West Bengal and the Saurashtra case were compared by the Supreme Court of india in another case from West Bengal of Kedar Nath Bajoria and another v. The State of West Bengal (AIR1953SC404) in which the validity of West Bengal Criminal Law Amendment (Special Courts) Act of 1949, was questioned. The principles of the former two cases were to be explained. The majority judgment seas delivered by Patanjali Sastri, C. J. who considered the background of and the reasons for passing the West Bengal Criminal Law Amendment Act, discussed its preamble and purposes, and adverting to the objection that individual cases could be picked out under section 4 from similar cases involving the same offences specified in the schedule, that chic right of choice amounted to the vesting of discriminatory and unfettered discretion in the Provincial Government, observed as follows: "It has been further contended that even assuming that the scheduled offences and the persons charged with the commission thereof cool properly form a class in respect of which legislation could be enacted, section 4 of the Act is discriminatory and void, vesting, as it does, an unfettered discretion in the Provincial Government to choose any particular "case" of a person alleged to have committed an offence falling under any of the specified categories for allotment to the Special Court to be tried under the special procedure, while other offenders of the same category may be left to be tried by ordinary Courts. ' In other words, section 4 permits the Provincial Government to make a discriminators- choice among persons charged with the same offence or offences for trial by a Special Court, and such absolute and unguided power of selection, though it has to be exercised within the class or classes of offences mentioned in the schedule, is no less discriminatory than the wider power of selection from the whole range of criminal law conferred on the State Government by the legislation impugned in A I R 1952 S C

75. The vice of discrimination, it is said, consists in the unguided and unrestricted power of singling out for different treatment one among a class of persons all of whom are similarly situated and circumstanced, be that class large or small. The argument overlooks the distinction between those cases where the legislature itself makes a complete classifica tion of persons or things and applies to them the law which it enacts, and others where the legislature merely lays down the law to be applied to persons or things answering to a given description or exhibiting certain common characteristics, leaves to an administrative authority to make 4 selective application of the law to persons or things within the defined group, while laying down the standards or at least indicating in clear terms the under lying policy and purpose, in accordance with, and in fulfilment of, which the administrative authority is expected to select the persons or things to be brought under the operation of the law." In the latter part of the judgment he has referred to the opinion of the minority judges in the West Bengal and the Saurashtra cases in the following manner. "Among the minority judges both Mahajan and Chandrasekhara Aiyer, JJ took the view that the preamble which merely referred to the need to provide for public safety, maintenance of public order and the preservation of peace and tranquility in the state of Saurashtra indicated no principle of classification, as the object was a general one which had to be kept in view by every enlightened Government or system of Administration and that every law dealing with commission and punishment of offences was based on this need. Accordingly, in their view, the decision of the majority in the Saurashtra case' marked a retreat from the position taken up by the majority in the earlier case of 'Anwar Alt Sarkar'. However that may be, the majority decision in the Saurashtra case' would seem to lay down the principle that if the impugned legisla tion indicates the policy which inspired it, and the object which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed is not a sufficient ground for condemning it as arbitrary and, therefore, obnoxious to Article

14. In the case of such a statute it will make no difference in principle whether the direction which is entrusted to the executive Government is to make a selection of individual cases or of offences, classes of offences or classes of cases. For in either case, the discretion to make the selection is a guided and controlled discretion and not an absolute or unfettered one and is equally liable to be abused. But as has been pointed out, if it be shown in any given case that the discretion has been exercised in, disregard of the standard or contrary to the declared policy and object of the legisla tion, such exercise could be challenged and annulled under Article 14 which includes within its purview both executive and legislative acts." However that may be, for purposes of the cases before us, it appears that there have been existing and presumably continue to exist conditions, circumstances and peculiarities of the population in British Baluchistan which can be taken to be reasonable basis for considering the territory to be a class by itself for the application of the provisions of the F. C. R. as a measure further to provide for the suppression of crime; and we think that the treatment of the territory and its population as a class is reasonable and bears a fair and substantial relation to the object of the legislation. We believe that the state of circumstances is such as to lead us easily to conceive that the classification is sustainable. The petitioners have not been able to discharge the burden of showing that circumstances do not exist on which the classifica tion can rest. It appears to us that the argument is clinched for our purposes by the Chief Justice of Pakistan in the Judgment of the Supreme Court in Jatendra Kishore Acharya Chowdhry and 58 others v. The Province of East Pakistan and others (P L D 1957 S C (Pak.) 9) reproduced by another learned judge of our Supreme Court in Zain Noorani v. Secretary of the National Assembly of Pakistan (P L D 1957 S C (Pak.) 46 at page 60) and by the observations in Willis' Constitutional Law of U. S. A., 1936 Edition, page 579, which have been adopted with approval by the learned judge of our Supreme Court and reproduced at page

59. The observations of the Chief Justice of Pakistan are as follows: "But notwithstanding the disinclination of the Court to give an all-inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of these propositions is that equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances, in their lives, liberty and property and in pursuit of happiness. Another generalisation, more frequently stated, is that the guarantee of equal protection of the law requires that all persons shall be treated alike, under like circum stances and conditions, both in the privileges conferred and in the liabilities imposed. In the application of these principles, however, it has always been recognised that classification of persons or thing is in no way repugnant to the equality doctrine provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of the legislation. It is not for the Courts in such case it is said, 'to demand from the legislature a scientific accuracy in the classification adopted. If the classification is relevant to the object of the Act, it must be upheld unless the relevancy is too remote or fanciful. A classification that proceeds on irrelevant consideration, such as differences in race, colour or religion will certainly be rejected by the Courts." The quotation from Willis' Constitutional Law is as under "If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis." In conclusion of the foregoing we hold that all the four petitions fail and we dismiss them with costs. A. H. Petitions dismissed.