P (PLP)

MUHAMMAD SHAFI, J.‑On the 16th of November, 1950, a person by the name of Ashraf was murdered in Kakool in the Hazara District. Manda, aged about 30 years, son of Minna, Noor Alam, aged about 35 years, son of Mutawali, Sajawal, aged about 32 years, son of Bbadu, and Ajab, aged about 28 years, son of Bahadur were charged for the murder and in due course challaned by the police. At the conclusion of the prosecution evidence, the learned Magistrate, who inquired into the case, was only morally convinced of the guilt of the four accused, and he therefore forwarded the file to the Deputy Commissioner Hazara, with the request that the case be referred to a Council of Elders for its final decision. The Deputy Commissioner Hazara; who then happened to be K. B. Hidayatullah Khan, after taking the necessary sanction from the Provincial Government, referred the case to a Council of Elders, and required the Council to give a finding on the following matters : (1) Did the accused or some of them murder the deceased in furtherance of their common intention ? (2) What was the motive for the murder ? (3) If the Council had any other suggestion to make. The Council of Elders, after making secrete and local inquiries submitted a unanimous finding to the effect that all the four accused were guilty of murder, that they had acted in furtherance of their common intention, and that the motive for the murder was to deprive the deceased of the money that he had won from the accused in gambling. The Deputy Commissioner agreed with the Council and found all the four accused guilty under section 302/34/Pakistan Penal Code and sentenced them each to fourteen years' rigorous imprisonment. Mutawali, son of Soofi, and lost. Wahabji, widow of Bahadur Khan have put in a joint application under section 491, Criminal Procedure Code for the issue of the writ of habeas corpus for setting at liberty the four persons convicted by the Deputy Commissioner Hazara. Several grounds have been mentioned in the application, but the learned counsel appearing for the petitioners has confined himself only to two out of them, which are as under:‑. (1) that while convicting the accused K B. Hidayatullah Khan had placed the words "District Magistrate Hazara" below his signatures, and as the District Magistrate under the Frontier Crimes Regulation had no power to convict the persons, therefore the deten tion of the accused was by an unauthorized person, and consequently illegal, and (2) that the Frontier Crimes Regulation under which the accused have been convicted and sentenced is no longer a law in Pakistan. As regards the first objection it is argued that under section 11, Frontier Crimes Regulation (III of 1901), it is only the Commis sioner or the Deputy Commissioner who can refer the question of the guilt or innocence of any person or persons accused of any offence to the decision of a Council of Elders, and on the receipt of finding of the Council of Elders to either acquit or discharge such person or persons, or in accordance with the finding on any matter of the Council, convicts him or them as the case may be of any offence of which the facts so found show him or them to be guilty, and as K. B. Hidayatullah Khan had placid the words "District Magistrate Hazara" below his signatures in the final order, therefore, it shall be deemed that no order has been passed by the Deputy Commissioner committing the accused to custody, and the District Magistrate under the Frontier Crimes Regulation has no authority to convict them or send them to jail. It is conceded that in all the six districts of the North‑West Frontier Province, the District Magistrates and the Deputy Commis sioners are invariably one and the same person. Objection has been taken to the placing of by K. B. Hidayatullah Khan the words "District Magistrate Hazara" below his signatures instead of "Deputy Commissioner". This objection overlooks the most impor tant point which is that K. B. Hidayatullah Khan, who is a Deputy Commissioner all right, cannot cease to be so by merely omitting to describe himself as such. In this part of the country a person can be invested with several powers and once he is invested with such powers, he cannot divest himself of those powers by any action of his own. In any case the omission on the part of K. B. Hidayat ullah Khan of describing himself as a District Magistrate and not as a Deputy Commissioner was accidental and unintentional, anal therefore, does not in any way affect the legality of the order passed by him as a Deputy Commissioner. I am here forfeited by the case decided by a Bench of this Court (Nadar Alam Khan v. Emperor) reported in 1935 Pesh. L. J. p.

108. Arguing the second point the learned counsel has submitted that Frontier Crimes Regulation has not been mentioned in the Adaptation of Central Acts and Ordinances Order, 1949, and it is therefore; no more a law in Pakistan. The Frontier Crimes Regulation (III of 1901) came into force sometime in 1901, and it continued to be so enforced until this country was parti tioned in August, 1947 into Pakistan and India, by the Indian Independence Act of 1947. Both these countries, however, continued to remain in the Commonwealth as the Dominions of the British Empire. Under section 18 (3) of the above Act, except in certain cases as were expressly provided in the Act itself, the law of pre‑partitioned India and of the several parts thereof existing immediately before the appointed day, which happened to be the 15th of August, 1947, was so far as applicable and with the necessary adaptations to continue as the law of each of the new Dominions and the several parts thereof until it was changed by laws of the Legislature of the Dominion in question or by any other Legislature or authority having power in that behalf. Under this provision of. law then the Frontier Crimes Regulation (III of 1901), which ,was the law of the North‑West Frontier Province a part of British India, continued to be so, and it is for the petitioners to show that the Legislature of Pakistan Dominion, or by any other Legislature, or authority having power in that behalf, has repealed it. The learned counsel for the petitioners has invited my attention to the Adaptation of Central Acts and Ordinances Order of 1949, which was made by His Excellency the Governor‑General of Pakistan on the 25th of March, 1949, under section 9 of the Indian Independence Act. Under the above section His Excellency the Governor‑General is empowered .to make such provisions as appear to him necessary or expedient for removing difficulties arising in connection with the transition of the provisions of this Act. Under this order the Governor‑General of Pakistan has adapted certain Central Acts and Ordinances with certain modifications. The Frontier Crimes Regulation is not mentioned in this order at all. The learned counsel for the petitioners from this omission wishes me to conclude that the Frontier Crimes Regulation having not been men tioned in this order has not been adapted, and is, therefore, no more law in any part of Pakistan. I am afraid I am not prepared to accept this contention because it is clear that only those Statutes are mentioned in this order, which it was found necessary to adept them with certain modifica tions. It did not mention the Acts, Ordinances, Regulations, or other Statutes in which no modification was necessary to adapt them with the changed circumstances. The conclusion arrived at by me above is supported by the very wordings of the Adaptation Order of 1949, because in its subsection (2) of section 3, it is specifically mentioned that there are certain Acts, which are not mentioned in the schedule attached to this Order. If the argument of the learned counsel for the petitioners is accepted, it would mean that His Excellency the Governor General by merely not mentioning a certain Act, Ordinance, or Statute in the Adaptation Order can repeal it. This is against all canons of law and certainly against the Constitutional Law of this country, which does not give any power to the Governor‑General to repeal an Act, by an order. I consequently hold that there is no force in this last objection either and the Frontier Crimes Regula tion is still a good law. The result is that I hold that the order detaining the accused has been passed by a competent authority under the existing law, and the detention of the accused in the public custody is, therefore, perfectly legal and proper. The application fails and is hereby dismissed. The petitioners shall pay Rs. 150 as costs to the Government. Order announced. A. H. Application dismissed.