P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑

This Order will dispose of an application under section 491 of the Criminal Procedure Code by Bahadur Zaman, son of Faizullah Khan, resident of Inzar Banda,. Tehsil Karak, District Kohat, challenging the legality and the propriety of Subedar Abdullah Khan, of South Waziristan Scouts's detention in public custody. He questions the validity of the order of Mr. Attaullah Jan, Deputy Commissioner, Hazara, and Additional Political Agent, South Waziristan dated the 9th June 1954, sentencing the afore mentioned Subedar Abdullah Khan to ten years' rigorous imprisonment under section 8 of the Frontier Corps Law, 1941. Several grounds have been taken in the application, but we think that one ground alone, namely, that Mr. Ataullah Jan in his capacity as Additional Political Agent had no jurisdiction to try and convict the accused under section 8 of the Frontier Corps Law of 1941 may be taken into consideration to dispose it of. Under section 3 of the said law, the Governor‑General -in‑Council can maintain the forces called the Kurram Militia, the Tochi Scouts and the South Waziristan Scouts (the whole comprising the Frontier Corps) for the better protection and administration of the external frontier of British India within the limits of or adjoining the North‑West Frontier Province or any part thereof. Under section 17 of the above law, the Governor‑General‑in‑Council can declare that any specified Court and no other shall be deemed to be the Court of Session or the Court of a Magistrate for the disposal of cases or any class of cases arising under this Law and that appeals from sentences passed under this Law or from any class of such sentences shall lie to any specified authority and to no other. Abdullah Khan, having alleged to have committed certain offences within the above law was to be tried by a Court of competent jurisdiction. In the exercise of the powers delegated to him vide Government of India, External Affairs Department Notification No. 112‑F, dated the 20th of July 1942, the Governor of the defunct N. W. F. Province made certain rules, which were published in the N: W. F. Province Gazette of the 18th of September 1942. Here we are concerned only with Rule 6, by which the Courts of the Political Agents for the Kurram Agency, for North‑Waziristan and for South Waziristan were to be deemed to be Courts of Session or Courts of District Magistrates for purposes of section 17 of the North‑West Frontier Corps Law, 1941. Appeals from sentences passed under this law were to lie to the Court of the Governor, N. W. F. P. in his capacity as the Agent to the Governor‑General, and to no other Court. Ataullah Jan Khan, by Notification No. 7192, dated the 21st of, May 1954, published in the N. W. F. P. Government Gazette of the 4th of June 1954, was appointed the Additional Political Agent, South Waziristan, with immediate effect, in addition to his own duties. As an Additional Political Agent he tried Abdullah Khan for certain offences committed under the above law, and it is conceded by the learned Additional Advocate‑General that the accused was sentenced to ten years' rigorous imprisonment. Abdullah Khan appealed against this order to the defunct Court of the Judicial Com missioner, but his appeal was dismissed by one of us sitting as a Judge of that Court as utterly incompetent. The argument advanced by the learned counsel for the petitioner is that the only authority which was competent to try the case under the above Law and the Rules was the Political Agent, South Waziristan, and not the Additional Political Agent. The contention is supported by the Rules framed under the above Law. The learned Additional Advocate General, however, contends that the term "Political Agent" includes "Additional Political Agent". Section 17 of the North‑West Frontier Corps Law which confers a jurisdiction on a certain authority to sentence a person even to death vide G. G's. O. VI, N. W. F. Corps Law (Amendment) Order, 1954, has got to be construed very strictly. According to it and the Rules framed under this Law, it is only the Political Agent of South Waziristan who can be deemed to be the Court of Sessions under this Law, and not the Additional Political Agent. A reference to section 31, subsection (2) of the Criminal Procedure Code would show that the term "Sessions Judge" does not include "Additional Sessions Judge", who has been invested the powers of a Sessions Judge separately. Similarly, an Additional District Magistrate would not be a District Magistrate by reason of his appoint ment as such until he was given the powers of the District Magistrate by section 10 of the Criminal Procedure Code. An Additional District Judge would not be competent to exercise the powers of a District Judge if the words "District Court" had not been defined in the N. W. F. Province Courts Regulation I of 1931 as meaning the Court of the District Judge, or of the Additional Judge. The learned Additional Advocate‑General has in support of his contention cited before us a Division Bench Judgment Siddique Ali v. The Province of Bihar and others (A I R 1949 Pat. 241). In that case, Siddique Ali was arrested on the 9th of August 1948, and was detained in Purulia Jail by virtue of an order of the Deputy Commissioner of Singhbhum under the Bihar Maintenance of Public Order Act of 1947. On the 23rd of August 1948, the Provincial Government passed an order under clause (a) of sub -section (1) of section 2 of the Act, directing his detention until further orders of the Government of Bihar. This order was signed by an Additional Under‑Secretary to the Govern ment of Bihar. In an application under section 491 of the Criminal Procedure Code on behalf of Siddique Ali, it was contended inter alia that the order, not being authenticated as required by section 59 of the Government of India Act, 1935, was not a valid order of the Provincial Government. This contention was based on the fact that the order was not signed by the Under‑Secretary who was empowered to do so by the Rules of Executive Business made by the Governor under section 59 of the Government of India Act, 1935, but by an Additional Under‑Secretary which post did not occur in "the Rules at all. Their Lordships of the Patna High Court repelled this argument and held that the word "Additional" had reference only to the number of persons holding the same designation or office and an Additional Under‑Secretary, was, therefore, an Under Secretary to the Government of Bihar and could authenticate an order under Rule 13 of the Executive Business. Their Lordships made a reference to two unreported cases in the judgment. They borrowed a phrase from a famous Chief Justice "piling unreason upon technicality" and presumably held that the objection taken to the order was highly technical one, and should, therefore, not affect the order at all. With due deference to the opinions of the Judges we are unable to agree with them that the term "Under‑Secretary" would formally include an "Additional Under‑Secretary" and applying the same principle to this rule the term "Political Agent" would include the "Additional Political Agent". There is a distinction between` these two phrases and we are of the opinion that in order to hold that a trial is valid it must be taken by a statutory authority which authority in this case was the Political Agent, and not the Additional Political Agent, which has to be declared a Court of Sessions under the aforesaid law in order to make it competent to try a person. The trial of Abdullah Khan held by Mr. Ataullah Jan in his capacity as Additional Political Agent was thus absolutely without jurisdiction, and for the matter of that, his detention in the public custody would be quite illegal and improper. The learned Additional Advocate‑General has put up two further objections to this petition. They are:‑ (1) That the application is a delayed one, and (2) the convict had a remedy open to him, viz., an appeal to the Governor, which he has not availed of, and for these two reasons, the present application should merit dismissal. So far as the belatedness of the application is concerned, we think that where the custody of a person, whether public or private is found to be completely illegal and without jurisdiction, then the question that the petitioner has come to the Court after some delay is absolutely irrelevant. Nobody can be detained in public or private custody without the order of a competent authority, and if an illegal detention comes to the notice of a High Court either under section 491 of the Criminal Procedure Code or under Article 170 of the Constitution of the Islamic Republic of Pakistan. it would be its duty to interfere at once and release the person so illegally detained. It is absolutely wrong to hold that the High Court should subscribe to the illegal detention of a certain person simply because he has not approached it within any particular time. As regards the second point, we are unable to see the propriety of it. If Ataullah Jan Khan had the jurisdiction to convict the detenu then it is understandable that the remedy provided to the detenu was an appeal to the Governor, but when Ataullah Jan Khan's order is completely devoid of jurisdiction, then, we fail to see how can it be said that the only remedy which was available to the detenu was an appeal to the Governor. We, therefore, think that the detention of Abdullah Khan in the public custody cannot be condoned and prolonged for a single day more. The application is accepted. The detenu is present in Court and he is released forthwith. HABIBULLAH KHAN, ACG. J.--‑‑I agree. K. B. A./A. H. Appeal accepted.