P L D 1969 Peshawar 74 (PLP)

Iqbal Ahmad for Petitioner. Fazal‑i‑Rahman, the petitioner, sold a truck to Muhammad Sifat Shah, respondent. But afterwards certain disputes and differ ences arose between them. On this, in due course, the learned Political Agent and District Magistrate, Malakand in the exercise of powers vested in him under section 8 of the Frontier Crimes Regula tion No.III of 1901 (hereinafter called the Regulation) referred their dispute to the Council of Elders. After hearing the parties the Council‑of‑Elders awarded Rs. 16,200.00 due to the respondent from the petitioner in this connection. In pursuance to this award, on the 21st of February 1968, the political Agent and District Magistrate, Malak and eventually passed a decree for recovery of Rs. 16,200.00 in favour of the respondent against the petitioner. Dissatisfied with the decree the petitioner filed a revision against it, which was, however, rejected by the learned Commissioner, F. C. R. (F.R.), Peshawar Division, Peshawar, on the 27th of November 1968, holding that the proceedings taken against the petitioner were in order and that the Jirga had submitted its award after making due enquiry. He has further observed that the award was fair and just and that in this matter the behaviour of the petitioner has been objectionable and dishonest. This is a revision filed by the petitioner in this Court under section 115 of the Code of Civil Procedure, seeking to set aside these two orders passed by the Political Agent and the District Magistrate and the Commissioner.

2. I have heard the learned counsel for the petitioner at some length and gave him time to satisfy me that this revision, against the two orders, in this Court is competent. Under section 115 of the Code of Civil Procedure the High Court may call for the record of any case which has been decided by any "Court subordinate" to the High Court for the purposes of exercising its revisional jurisdiction. Therefore this revision cannot be entertained, unless and until the two functionaries acting under the Regulation are held to be the Courts subordinate to this Court.

3. The nature and the character of the jurisdiction per formed by them under the Regulation was examined in detail by the Federal Court in Sumandar v. Crown (P L D 1954 F C 228). In this con nection late S. M. Akram, J. observed: "the Deputy Commissioner and the Commissioner in this respect appear to have been mentioned in the Regulation merely as persona designata and not as judiciary. The conviction and the sentences in question, therefore, cannot be treated as made in the course of performance of the normal duty of administration of justice in a litis contestatio. These orders are merely executive or administrative orders which have been made with a view to extirpating a social evil and consequently the Courts cannot enquire into the validity of the finding of the Council‑of‑Elders or of the orders of the Deputy Commissioner confirmed in revision by the Commissioner. Furthermore the jurisdiction of the Courts seems to have been clearly and expressly barred by section 60 of the Regulation" In the same case. Cornelius, J. (as he then was), after careful consideration of the statutory provisions and the procedure followed in the enquiries of this nature observed that it was rather to be assimilated to and included among the agencies of the general administration. In his opinion, the decisions of this nature are common enough on the administration side but they are obnoxious to all recognized modern principles governing the dispensation of justice. He remarked that the proceedings under the Regulation were : "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 specially adapted to the conditions prevailing in frontier districts, at any rate at the time when the Regulation was enacted".

4. Afterwards in another case under this regulation in Muhammad Akram and others v. The State (P L D 1963 S C 373), the Supreme Court was clearly of the opinion that the case was one in which the High Court should not have interfered since it belonged to a jurisdiction which was "totally foreign to the whole range of administration of justice over which the High Court presides as a Superior Court". These observations were made in connec tion with the writ jurisdiction exercised by the High Court under the Laws (Continuance in Force) Order I of 1958 and it was held by the Supreme Court that the order passed by a Commissioner under section 50 of the Regulation was in no sense amenable to the writ jurisdiction to the High Court.

5. The position of the functionaries under the Regulation was also examined by a Full Bench of five Judges in the context of the jurisdiction vested in this Court under Article 98 of the Constitution of Islamic Republic of Pakistan, 1962. In Sardar Nawab Ha/1 Muhammad Khan v. Additional Com missioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others (P L D 1964 Lah. 401), after an examination of the case‑law on the subject the Full Bench in para. 21 of its judgment observed that "It is also too late in the day to argue that the Deputy Commissioner and the Commissioner, while acting under the relevant sections of the Regulation, are per forming the functions of Courts as that term is under stood in the ordinary law". However, at the same time, the Full Bench has distinguished Muhammad Akram's case and observed that that case related to a time when the writ juris diction of the Superior Courts was as defined in the Laws (Continuance in Force) Order I of 1958 but under the present Constitution under Article 98 the powers of the High Court in this respect are wider in scope than its predecessors, with the result that the Superior Courts can now exercise a wider jurisdiction than was enjoyed by the Federal Court in the case of Sumandar or by the Supreme Court in the case of Muhammad Akram.

6. But the learned Counsel for the petitioner, before me, has very largely relied on Muhammad Ali v. The State (P L D 1964 Pesh. 27) another Full Bench of three learned Judges of this Court. In that case it was held that the Deputy Commissioner while acting under the Regulation acts as a Court" and he is, by virtue of section 20 of the Regulation, competent to order forfeiture of the surety‑bond even if it was furnished in another Court under the Criminal Procedure Code. The Full Bench returned the following two answers to the question referred to it :‑ "(1) The Deputy Commissioner was competent to order the forfeiture of the surety‑bond even if it was furnished in another Court, under the Criminal Procedure Code, by virtue of section 20, F. C. R. (2) The Deputy Commissioner is also the "Court though not as specified in section 6, but it is a "Court" under the F. C. R. (under a special law)." In fairness to the learned Judges composing this Full Bench, I must mention here that this case was decided before the case of Sardar Nawab Haji Muhammad Khan v. Additional Commis sioner and Commissioner Frontier Crimes Regulations Quetta Division, Quetta, and others, was decided by a larger bench, and the decision by the Supreme Court in Muhammad Akram v. The State was not even brought to their Lordships notice.

7. It appears to me, and I say so with great respect, that it is not easy to reconcile the ratio in the two foregoing Full Bench cases on the question as to whether, the Deputy Commis sioner and Commissioner acting under this Regulation are "Courts" in the ordinary sense of the word. But for the purposes of this case before me it is not necessary to pursue this matter, any further. I am quite certain that at any rate they are not, acting as Courts "subordinate to the High Court" within the meaning of section 115 of the Civil Procedure Code. Rather, as it is evident from Summandar v. Crown and Muhammad Akram and others v. The State, discussed above the jurisdiction exercised by them under the Regulation is totally foreign to the whole range of administration of justice over which the High Court presides as a Superior Court at the apex. In this connection the learned counsel for the petitioner has cited before me Anil Das and others v. Mushtaque Ahmad (P L D 1967 Dacca 521) which was a case decided under the East Pakistan Disturbed Persons (Rehabi litation) Ordinance I of 1964. In that case on a reading of the provisions of the Ordinance it was held that the District Judge while hearing the appeal under section 3 was discharging judicial functions and as such acting as a Court and that his order was amenable to the jurisdiction of the High Court under section 115 of the Civil Procedure Code. But that case is wholly distinguish able and was decided on the basis of the provisions contained in a different law which bears no analogy to the present case. Similarly Article 102 of the Constitution cannot be invoked. It merely lays down that each High Court shall supervise and control all other Courts that are subordinate to it. It is applicable to the "subordinate" Courts only.

8. Therefore, in my considered opinion, the impugned orders passed by the Political Agent and District Magistrate, Mardan, and the Commissioner are not amenable to revision by this Court in exercise of its powers under section 115 of the Code of Civil Procedure. In the result I dismiss this petition in limine. A. E. Petition dismissed in limine.