P L D 1965 (W (PLP)

QUETTA‑

Respondents Writ Petitions Nos. 1666 of 1964 (Lahore) and 24 of 1963 (Quetta); Reference answered on 17th December 1964. (a) Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 15‑‑Classication based on area not necessarily dis criminatory‑[Yick Wo v. Hopkins (1886) 118 U S 356 rel.]. (b) Frontier Crimes Regulation (III of 1901) S. 1 (5) Subsection (5) "meaningless" in view of subsection ~(4) having ceased to exist after amalgamation of subsections (3) and (4) by Frontier Crimes Regulation (Second Amendment) Ordinance (XLIII of 1963). (c) Frontier Crimes Regulation (III of 1901), S. 8 read with Ss. 9, 10 & 36 and Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 15‑Section 8 discriminatory in so far as it places members of a Frontier tribe in a different category from others within same area‑Section 8 not "clearly worded". Section 8 of the Frontier Crimes Regulation places members of a Frontier tribe in a different category from others within the same area, thus laying itself open to attack on the ground of discrimination. If section 8 of the Regulation falls, sections 9 and 10 will fall with it. Section 8 is not clearly worded, but the division of disputes into two classes is an inescapable result of the phraseology used. In this connection attention may usefully be drawn to section 36 of the Regulation, which enables the Deputy Commissioner to direct a person to remove himself beyond certain specified Territories if: (a) he is a dangerous fanatic; or (b) he belongs to a Frontier tribe and has no ostensible means of subsistence or cannot give a satisfactory account of himself; or (c) he has a blood‑feud; or (d) he has occasioned cause of quarrel likely to lead to blood‑shed. Khan Abdul Akbar Khan v. The Deputy Commissioner, Peshawar P L .D 1957 Pesh. 100 and Abdul Ghani and another v. Shoedar Khan and others P L D 1964 Lah. 612 ref. (d) Frontier Crimes Regulation (III of 1901), S. 11 read with Constitution of Pakistan (1962), Art. 6, Fundamental Rights Nos. 1, 2 & IS‑Section 11, F. C. R., unconstitutional being violative of Fundamental Rights‑[Malik Toti Khan v. The District Magistrate, Sibi and Ziarat P L D 1957 Quetta 1; Abdul Rauf and others v. The N. W. F. P. Government P L D 1958 Pesh. 73; Muhammad Bashir v. The Province of West Pakistan and another P L D 1958 Lah. 853; Muhammad Akbar v. The Political Agent, Quetta‑Pishin, Quetta and others P L D 1958 Quetta 12; Khair Muhammad Khan v. The Government of West Pakistan P L D 1956 Lah. 668 ref.; Abdul Baqi and others v. The Superintendent Central Prison Machh and others P L D 1957 Kar. 694 and Khalid v. Province, of West Pakistan P L D 1957 Kar. 709 considered]. (e) Constitution of Pakistan (1962), Art. 63‑Majority decision of Supreme Court‑Minority observations "though entitled to the very highest respect", do not constitute "decision" of Supreme Court within meaning of Art. 63‑Absence of any "dissent" in majority decision from such observations does not mean that minority view must be deemed to have been necessarily accepted by Judges in majority‑[Cornelius, J.'s minority view in Dosso's case P L D 1958 S C (Pak.) 533 "considerably modified" in The State v. Nawab Gul P L D 1963 S C 270 and in Cornelius, C. J's., Address: "Role of Law in the Present Changing Times" (P L D 1964 Jour. 9)". ref.]. Held that the minority observations of Cornelius, J. in Dosso's case P L D 1958 S C (Pak.) 533, although entitled to the very highest respect, they are not the decision of the Supreme Court within the meaning of Article 63 of the Constitution of Pakistan 1962. It did not appear that the view expressed by Cornelius, J. must be deemed to have been necessarily accepted by the other learned Judges. In the light of further experience of the working of the Frontier Crimes Regulation (III of 1901) His Lordship had considerably modified the view expressed in Dosso's case‑vide The State v. Nawab Gul P L D 1963 S C 270 and in his Address: "Role of Law in the Present Changing Times" (P L D 1964 Jour. 9)". The Guardians of the Poor of the West Derby Union v. The Guardians of the Poor of the Atcham Union (1890) 24 Q B D 117 considered. (f) Frontier Crimes Regulation (III of 1901), Ss. 8 & 11

Provisions offend against Fundamental Right No. 15, Art, 6, Constitution of Pakistan (1962)‑Also repugnant to Fundamental Right No. 1, Art. 6, Constitution of Pakistan (1962)‑Jirga procedure not a "law" in any recognised sense of term‑Other sections of Regulation dependent upon Ss. 8 & 11 "automatically fall" with those sections. Sections 8 and 11 of the Frontier Crimes Regulation (III of 1901) providing for reference of proceedings to a Jirga offend against Fundamental Right No. 15, inasmuch as the Deputy Commissioner and the Commissioner are given an uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatory procedure, such discretion being moreover not governed by any settled principle. They are also repugnant to Fundamental Right No. 1, it being now settled that the Jirga procedure cannot be described as a "law" in any recognised sense of the term. All other sections dependent on sections 8 and 11 automatically fall with them. (g) Frontier Crimes Regulation (III of 1901), S. 40‑Section 40 along with other sections of Regulation dependent upon S.40 are inconsistent with fundamental Rights Nos. 1 & 15, Art. 6, Constitution of Pakistan (1962) and "void" to that extent.

3. Nasir‑ud‑Din, A.‑G., Abdul Qadir Sheikh, Addl. A.‑G. Sh. Ghias Muhammad, Attorney General with Mehboob Ahmad for Government of Pakistan. ORTCHESON, J.‑

The facts leading up to this reference are that on the introduction into the present Constitution of the Fundamental Rights by the Constitution (First Amendment) Act of 1964 the vires of that highly controversial enactment, the Frontier Crimes Regulation, 1901, there-in-after referred to as the Regulation) was challenged on the ground that it was inconsistent with those rights and was consequently voia to the extent of the inconsistency. The present reference is concerned with the Regulation in its application to Baluchistan. In Writ Petition No. 271 of 1963 (Karachi) corresponding to No. 41 of 1964 (Quetta) Qadeer‑ud‑Din, J. requested the learned Senior Judge of the Karachi Bench to constitute a Bench of five Judges for the decision of the question. In his order, which is dated the 5th of May 1964, he called attention to the fact that several Benches had expressed conflicting views and also stated than according to the learned Additional Advocate‑General the viem that section 11 of the Regulation was not invalid had beer expressed by the Supreme Court.

2. The question again arose in Criminal Revisions Nos. 2: and 25 of 1963 (Quetta) [later renumbered as 1054 and 105: (Lahore) respectively], and in his order dated the 18th of June 1964 Wahid‑ud‑Din, J. observed as follows:‑ (1) Whether sections 1 (4), 5, 11, 12, 14, 15, 16, 17, 19, 40, 41 and 42 of the F. C. R. (Act of 101) are inconsistent with the Fundamental Rights ? (2) What is the effect of the observations of Cornelius, J. in The State v. Dosso P L D 1958 S C (Pak.) 533 on the question under consideration?"

3. The questions raised by Waheed‑ud‑Din Ahmad, J. in the above order have been adopted as the basis of the reference, but it may be added that in several of the thirteen writ petitions eventually placed before us the vires of section 8 of the Regulation was also attacked.

4. Before proceeding further it is necessary to state that the Regulation has recently been amended. By West Pakistan Ordinance XXXVII of 1963 a new subsection (2‑A) was added to section 40 in its application to the Quetta and Kalat Divisions. The said section now, therefore, runs: "40 (1) Where the Commissioner or the Deputy Commissioner is of opinion that it is necessary for the purpose of preventing murder, or culpable homicide not amounting to murder, or dissemination of sedition, to require a person to execute a bond for good behaviour or for keeping the peace, as the case may be, he may order the person to execute a bond with or without sureties, for his good behaviour or for keeping the peace, as the case may be, during such period not exceeding three years, as the Commissioner or the Deputy Commissioner, as the case may be, may fix. (2) The Deputy Commissioner may make an order under subsection (1)‑ (a) on the recommendation of a Council‑of‑Elders, or (b) after inquiry as hereinafter provided. (2‑A) Pending the completion of an enquiry for the purposes of subsection (2), the Deputy Commissioner may, if he considers that immediate measures are necessary for preventing any offence referred to in subsection (1), direct the person in respect of whom the enquiry is to be held, to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour for a period not exceeding one month, and detain him in custody till such bond is executed. (3) Where a person has been convicted in accordance with the finding of a Council‑of‑Elders of an offence mentioned in section 106 of the Code of Criminal Procedure, 1898, or punish able under section 302, section 304, section 307 or section 308 of the Pakistan Penal Code, the Deputy Commissioner at the time of passing the sentence, or the Commissioner at the time of revising the sentence, may make an order under sub section (1) with respect to that person. (4) Where the Deputy Commissioner makes an order under subsection (1) on the recommendation of a Council‑of‑Elders, he shall record his reasons for acting on the recommendation. (5) Where the Commissioner or the Deputy Commissioner is of opinion that sufficient grounds exist for making an order under subsection (1), he may, either in lieu of or in addition to such order, by order in writing, direct that the person concerned shall notify his residence and any change of residence in the manner prescribed by section 565 of the Code of Criminal Procedure, 1898, during such term not exceeding three years, as may be specified in the order." Further, by West Pakistan Ordinance No. XLIII of 1963, sub sections (3) and (4) of the existing section 1 were replaced by a new subsection (3), which runs: "It (the Regulation) shall extend to the areas specified in the Third Schedule, but the Governor may, by notification in the official Gazette, exempt any such area from the operation of all or any of its provisions." The Third Schedule, which was also introduced by the above Ordinance, made the Regulation applicable to the Divisions of Quetta and Kalat, the District of Lasbela, Nasirabad Sub‑Division of Jacobabad District, the Added Areas of the Hazara District specified in the First Schedule to G.‑G. O. No. 1 of 1951, the Added Areas of Mardan District, specified in Schedule `A' to G.‑G. O. No. VII of 1953, the Added Areas of Hazara District, specified in the First Schedule to G. G. O. No. XIII of 1955, and the former Excluded Areas of Upper Tanawal and the Baluch areas of Dera Ghazi Khan, specified in the Schedule ‑ to President's Order No. III of 1961.

5. The effect of the removal of the old subsection (4) of section 1 is that the question whether the singling out of Pathans and Baluchis, effected by that subsection was discriminatory and therefore void as offending against both the 1956 Constitution and the present Constitution no longer arises, and Mr. Yahya Bakhtiar, who represented several of the petitioners, conceded that a classification based on area is not necessarily discriminatory. As observed in Yick Wo v. Hopkins ((1886) 118 U S 356). "The guarantee of equal protection does not prevent the State from applying different laws or different systems of judicature to different parts or local sub‑divisions of the country according to local circumstances, for the clause does not secure to all persons the benefit of the same laws and the same remedies. Equal protection of the laws is a pledge of the protection of equal laws." One curious point, however; is that in spite of the amalgamation of the old subsections (3) and (4) into the new subsection (3), sub section (5) has apparently been left untouched, being not even renumbered. It runs: "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 the district." It is obvious that as there is now no subsection (4 , subsection (5 is meaningless.

6. The next provision of the Regulation to a considered is section 8, which runs: "(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 terminate the consequences anticipated, and if a suit is not pending in respect of the dispute, make an order in writing, stating the grounds of his being so satisfied, referring the dispute to a Council‑of‑Elders 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. The members of the Council‑of‑Elders shall, in each case, be nominated and appointed by the Deputy Commissioner. (2) The order of reference made under subsection (1) shall state the matter or matters on which the finding of the council of‑Elders 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 case to a second Council, 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." The only authority brought to our notice in which the vires of the above section has been discussed is Khan Abdul Akbar Khan v. The Deputy Commissioner, Peshawar (P L D 1957 Pesh. 100). The opinion of the learned Judges that the section was contrary to Article 5 of the 1956 Constitution, corresponding to Fundamental Right No. 15 of the present Constitution, namely, "all citizens are equal before law and are entitled to equal protection of law", is pithily expressed by Kayani, J. in the following passage:‑ "Next we reach section 8 which makes the law a perfect ass, and the Deputy Commissioner can ride it to any goal within the five broad clauses of subsection (3). To enable him to take action, there should be a dispute (in the case of people other than tribesmen) which is likely to cause a blood‑feud etc. and he should be of the opinion that reference to a Council will avert the blood‑feud etc. How reference to a Council and decision by a Deputy Commissioner has the effect of scintillating good‑will and charming away hostility is not clear to me. But if any such magic could have been wrought by the Deputy Commissioner, why does section. 8 forbid reference if the matter has already gone to the civil Court? This must be on the assumption that resort to the civil Court has the same salutary effect of averting a dangerous, situation as reference to a Council. But if that be so, why is it not left open to a party to resort to the civil Court after the reference has been made? It is clear that section 8 is misconceived and that in the garb of resolving a dispute the Deputy Commissioner can encroach upon Civil rights without reference to any law except what appears to him to be in accord with good conscience or public policy. (S.9). If any good faith had existed in such a reference, the decision would have been made appeal-able to a superior civil Court. 94 1 said that the Deputy Commissioner acts without reference to any law. Here I do not mean the law of evidence or procedure only, for justice is not necessarily the child of elaborate procedure, and the law of procedure is not un-often abused. But I particularly refer to the provision that the Deputy Commissioner merely asks the Council `to come to a finding * * * * * * after making such inquiry as may be necessary and after hearing the parties'. Thus, if it is a case of inheritance, the Council need not follow the Muslim Law or custom, and may give any arbitrary award which the Deputy Commissioner must accept if he intends to pass a decree. If it is not acceptable to him, he can refer the parties to the civil Court, and thereupon the likelihood of a blood feud or murder taking place also fades away. * * * * Next, Mr. Mahmud Ali contended that since the choice of selecting suitable cases for reference lies with the Deputy Commissioner, the Regulation makes it possible for him to discriminate. If his discretion has been subject to judicial review, one might say for him that his satisfaction will be a reasonable satisfaction, but in the matter of reference his conduct is not open even to revision for the Commissioner comes into the picture only after there has been a decision, and he cannot interfere on the ground that this was not a fit case. for reference." The last of the above reasons for holding section 8 to be void was particularly explained before us.

7. Before leaving section 8 it is necessary to deal with the contention of the learned Attorney‑General that the learned Judges in the above cases have erred in interpreting the words "a dispute * * * * * * * * 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" as meaning that if one of the parties belongs to a frontier tribe the condition that the dispute must be likely to cause a blood‑feud etc. need not exist. In support of this contention he places reliance on the subsequent words: "If he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated" and argued that as those consequences are a blood‑feud etc., it is only where a dispute of such a nature has arisen that a reference can be made. I entirely agree with the remark made at page 7 of what is known as "The Green Book". (The Administration of Customary Law through the Frontier . Crimes Regulation in Buluchistan) that the section is not clearly worded, but the division of disputes into two classes is an inescapable result of the phraseology used. In this connection attention may usefully be drawn to section 36 of the Regulation, which enables the Deputy Commissioner to direct a person to remove himself beyond certain specified territories if (a) he is a dangerous fanatic; or (b he belongs to a frontier tribe and has no ostensible means of c subsistence or cannot give a satisfactory account of himself; (c) he has a blood‑feud; or (d) he has occasioned cause of quarrel likely to lead to blood‑shed. It will be seen that where the condition for the application of section 36 to a person who, does not belong to a Frontier tribe is that he should possess the' characteristics enumerated in clauses (a), (c) and (d), there is no such requirement in respect of a person belonging to 5a Frontier tribe. This supports the interpretation placed on the wording of the relevant portion of section 8 by the learned Judges in the above authority and by another Full Bench, Abdul Ghani and another v. Shoedar Khan and others (P L D 1964 Lah. 612). The importance of the point is that although, as already seen, the old subsection (4) of section 1 of the Regulation has disappeared, section 8 still place members of a Frontier tribe in a different category from other within the same area, thus laying itself open to attack on thl ground of discrimination.

8. As pointed out by the learned Judges in Abdul Akbar' case, if section 8 of the Regulation falls sections 9 and 10 will fall with it. The next provision calling for mention is therefore section 11, which runs: "11 (1) Where, in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question .of the guilt or innocence of any person or persons accused of any offence, or of any several persons so accused, should be tried by a Court of any of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner may or if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council‑of Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person. The members of the Council‑of Elders shall, in each base, be nominated and appointed by the Deputy Commissioner. (2) Where a reference to a Council‑of‑Elders is made under subsection (1) and the members of the Council have been nominated, the names of the members so nominated shall, as soon as may be, be communicated to the accused person, and any objection which he may then make to the nomination of any such member shall be recorded. The Deputy Commissioner shall consider every objection made by an accused person under this subsection, and may, in his discretion, either accept or reject the objection, provided that, in the latter case, he shall record his reasons for so doing. The Deputy Commissioner shall, after disposing of any objection made by the accused person, appoint the members of the Council. (3) On receipt of the finding of the Council‑of‑Elders under this section, the Deputy Commissioner may‑ (a) remand the question‑to the Council for a further finding or (b) refer the question to a second Council ; or (c) acquit or discharge the accused person or persons, or any of them ; or (d) in accordance with the finding on any matter of fact of the Council, or of not less than three‑fourths of the members thereof, convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty: Provided that a person discharged under clause (c) shall not be liable to be retried for any offence arising out of the same facts after the expiry of two years from the date of such discharge." One of the leading authorities for the view that section 11 was ultra vines of the 1956 Constitution is Malik Toti Khan etc. v. The District Magistrate, Sibi and Ziarat (P L D 1957 Quetta 1). After giving also the gist of sections 12, 14, 15, 16, 17, 19, 40 and 41, Rahman, C. J., (as he then was) observed: "It is contended on behalf of the petitioners in both the cases that these provisions of the Regulation offend against the equality‑before‑law clause embodied in Article 5 of the Constitution, and to the extent of this inconsistency, it is suggested, they should be declared to be void under Article 4. * * * * * * * * * * * It, therefore, follows that a person whose case has been referred to a Jirga for trial is deprived of the ordinary methods available to a person tried for an offence by a regular aw. Although in certain instances, for example, in a murder case he may receive a lower punishment than might be inflicted by a Sessions Judge, yet the process by which the final result is arrived at may be highly prejudicial to an accused person in a Jirga trial when judged in the light of accepted canons of a fair trial. It cannot be held that the classification mentioned in the Regulation for application of the relevant provisions is a rational or reasonable on. It is based princi pally on racial or tribal considerations, and to the extent that there is provision for other classes being added to the Pathans or Baluchis for attracting the provisions of the Regulation, the classification may be wholly arbitrary and capricious at the sweet‑will of the executive. In my opinion, therefore the provisions are ex facie discriminatory and do not rest on any classification such as could take the enactment out of the mischief of Article 5 of the Constitution. It is also apparent that not only is there no reasonable classification of persons whose cases may be referred to a Jirga but that the executive authorities have beer given an unfettered discretion in the choice of persons belonging even to Baluch or Pathan tribes as to whether their cases should go to a regular Court of law or to a Jirga. This discrimination may be exercised in respect of any one or more of a group of accused being tried jointly in a regular Court of law. Such arbitrary discretion is hit by the rule laid down by the Supreme Court in Waris Meah v. The State P L D 1957 S C (Pak.)

157. On this ground, therefore, also in the circumstances of these cases, the provisions of the Regulation outlined above should be held to be repugnant to Article 5 of the Constitution. There is no guiding principle prescribed by which the discretion of the executive authorities as regards the choice of forum is to be regulated. The above provisions of the Regulation, therefore, to the extent that they permit arbitrarily the cases of persons belonging to the Pathan or Baluch tribes or of any individual member of such tribes to be referred to a Jirga, are ultra vires of Article 5 of the Constitution and must be declared to be void under Article 4 thereof. The result achieved is parallel to that arrived at in respect of Civil references to a Council‑of- Elders under the Regulation, by this Court in Abdul Akbar Khan's case P L D 1957 Pesh. 100 (F B) and there is almost parity of reasoning in that case and the present one. I recognize that this decision may cause difficulties to the administration in Baluchistan area where I understand that a sufficient number of judicial tribunals does not exist nor is adequate machinery for police investigation of criminal cases in existence. Such considerations, however, would be irrelevant when we are adjudicating on the effects of the fundamental rights guaranteed by the Constitution. The remedy lies obviously with the Legislature or with the executive authorities who can make good the deficiencies of the administration. The argument of inconvenience, cannot be allowed to override the constitutional provisions guaranteeing fundamental rights to all citizens of Pakistan." Though, as already stated, Pathans and Baluchis are no longer singled out from amongst other tribes, the remaining observations of the learned Judge still apply with full force to the Regulation as now framed. The above decision was followed in Abdul Rauf and others v. The N. W. F. P. Government (P L D 1958 Pesh. 73). In another case, Muhammad Bashir v. The Province of West Pakistan and another (P L D 1958 Lah. 853) a somewhat different point arose, namely, whether a sentence passed, but not confirmed, before the coming into force of the 1956 Constitution could be confirmed thereafter. The question was answered in the negative, the view that section 11 was ultra vires being thus followed.

9. A contrary view was taken in Abdul Baqi and others v. The Superintendent Central Prison Machh and others (P L D 1957 Kar. 694) a Division Bench judgment, and in Khalid v. Province of West Pakistan (P L D 1957 Kar. 709) which decided four petitions filed by Malik Behram Khan, Kharr Muhammad Khan, Fazal Muhammad and others, and Abdul Haq, against the State. The latter authority contains the reasons given by the learned Judges for their finding that although the old section 1 (4) and a Notification, No. 1096‑Z dated the 1st of July 1903, declaring certain classes of persons to be subject on the basis of birth to the whole of such sections of the Regulation as were not of general application were void the other criminal provisions of the Regulation, including section 11, were based on reasonable classification and, therefore, did not offend against the Constitution. The relevant portion of the judgment runs: "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 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 classification 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 Jibendra Kishore Aeharya 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 Edn. page 579, which have been adopted with approval by the learned Judges 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 0.11‑inclusive definition of the expression, some broad propositions as to its meaning have been enunciated. One of the 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 generalization, more frequently stated, is that the guarantee of equal protection of the law requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities ‑imposed. In the application of these principle, however, it has always been recognised that classification of persons or things 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 cases 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.

10. Strong exception was taken before us to the words "and presumably continue to exist" occurring in the opening sentence of the above quotation, it being argued that illustration (d) to section 114 of the Evidence Act, on which, according to learned counsel, they are founded, has no application. It appears to me, however, that the learned Judges may have had in mind the dictum that, except where the violation of a constitutional principle is patent on the face of a statute, the Court is to presume the existence of facts which can be reasonably conceived td sustain the constitutionality of the statute.

11. The above judgment of the Karachi Bench was, however, discussed and dissented from in Muhammad Akbar v. The Political Agent, Quetta‑Pishin, Quetta and others (P L D 1958 Quetta 12). After citing the portion of the judgment in Behram Khan's case, reproduced in the previous paragraph, Changez, J., with whom Akhlaque Hussain, J. agreed, remarked "With the greatest respect to the learned Judges, who have given the above decision, I venture to say that the passages quoted above on which reliance has been placed, deal with the question of classification alone, and there is nothing in these passages to demolish the arguments raised on behalf of the petitioners in that case that under section 11 of the Frontier Crimes Regulation the executive officers have been given unfettered discretion to arbitrarily pick and choose any person out of the same class of people, purely on the basis of expediency and that these considerations of expediency were absolutely uncontrolled. It appears that the latest decision on the subject by the Supreme Court of Pakistan in Waris Meah v. The State referred to above, was not brought to the notice of the learned Judges constituting the Bench. That judgment lays down an authoritative exposition of the law on the subject. I have already quoted above the relevant passages from that judgment. It may also be pointed out that the learned Chief Justice of Pakistan quoted with approval the following rulings of the Supreme Court of India in this connection:‑ The State of West Bengal v. Anwar All Sarkar A I R 1952 SC

75. Lachman Das Kewal Ram Ahuja v. The State of Bombay 1952 S C R

710. Suraj Mall Mehta & Co. v. A. V. Visvanatha Sastri 1955 S C R

448. Shree Meenakshi Mills Ltd., Madurai .v. Sri A. V. Visvanath Sastri 1955 S C R

787. Before the Karachi Bench 'the learned counsel for the peti tioners in that case had cited the decision of the Supreme Court of India in The State of West Bengal v. Anwar Ali Sarkar in support of his contention, but unfortunately the dicta laid down in that ruling did not find favour with the learned Judges. This is one of those rulings which has been quoted with approval by the learned Chief Justice of Pakistan. In the light of the principles enunciated by the Supreme Court of Pakistan in Waris Meah v. The State there is no doubt left in my mind that section 11 of the Frontier Crimes Regulation is inconsistent with the provision of law embodied in Article 5 of the Constitution, inasmuch as the accused persons who can be dealt with under that section have been left at the mercy of the arbitrary will of the authorities concerned, for whose guidance in the matter, no provision has been made in the Regulation. It is nowhere provided how the authorities are to be guided for selecting cases or persons for reference to the Council‑of‑Elders. It is obvious that the will of the selecting authority is made supreme in the matter, and the discretion to make a selection is not a guided and controlled discretion, but is absolute and unfettered one. The preamble of the Frontier Crimes Regulation which says that the measure was adopted further to provide for the suppression of crime is hardly a guide for achieving this purpose. With all respect, I am, therefore, in entire agreement with the decision in Malik Toti Khan's case that section 11 of the Frontier Crimes Regulation is ultra vires of Article 5 of the Constitution and is, therefore, void under Article 4 thereof."

12. The passage from Waris Meah v. The State (P L D 1957 S C (Pak.) 157), referred to by Changez, J., runs as follows:‑ "It (the Foreign Exchange Regulation Act (VII of 1947)) confers discretion of a very wide character upon stated authorities to act in relation to subjects falling within the same class in three different modes varying greatly in severity. By furnishing no guidance whatsoever in regard to the exercise of this discretion, the Act, on the one hand, leaves the subject, falling within its provisions,, at the mercy of the arbitrary will of such authority, and, on the other, prevents him from invoking his fundamental right to equality of treatment under the Constitution. " The Constitution declares in Article 5 (l) that All citizens are equal before law and are entitled to equal protection of law' and Article 4 (1) provides that `Any existing law . . . . . in so far as it is inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void'. That duty of declaring that a law is void, for violating a Fundamental Right defined m Part 11 rests on the Courts. That duty cannot be performed, so as to ensure that a law operates equally in relation to all persons within its mischief, if the law itself provides for differential operation in relation to such persons, not in accordance with any principle expressed or implicit in the law, not on the basis of an classification made by or under the taw, but according to he unfettered discretion of one or more statutory authorities. "Here, not only is there discretion in the specified authorities whether they will proceed at all against any member of the class concerned viz. offenders against the Act, but there is also an unfettered choice to pursue the offence in any one of three different modes which very greatly in relation to the opportunity allowed to the alleged offender to clear himself, as well as to the quantum and nature of the penalty which he may incur. The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the absence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial viewpoint, arbitrary to a greater or less degree. The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5 (1) of the Constitution. "In our view such a law has the effect of doing indirectly, i.e., by leaving the discrimination within the unguided and unfettered discretion of statutory authorities, what it could not do directly, i.e., to treat unequally persons falling within the same class, upon a basis which bears no reasonable relation to the purposes of the law. The Act is, therefore, in our opinion, in relation to its discriminatory provisions, inconsistent with the declaration of equality in Article 5 (1) of the Constitution."

13. Before us Mr. Yahya Bakhtiar, as already stated, contented himself with urging that the sections of the Regulation mentioned in the reference are void as contravening Fundamental Rights Nos.1 and 15, namely, that no person shall be deprived of life or liberty save in accordance with law, and that all citizens are equal before law and entitled to equal protection of law. Mr. Mahmud Ali Qasuri, who represented certain other peti tioners, went further and contended that the criminal sections offended against Fundamental Right No.

2. More specifically, he Us his stand on Right No. 2 (1), which runs: "No person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by legal practitioner of his choice." Mr. Mahmud Ali's contention is that the right to be defended by a legal practitioner carries by implication the further right to a magisterial trial. With respect, I am unable to accept this argument. The question of the impact of Article 7 of the 1956 Constitution, which corresponds to the present Fundamental Right No. 2, on the Regulation was considered in Khair Muhammad Khan v. The Government of West Pakistan (P L D 1956 Lah. 668). It was held that although trials under the F. C. R., in so far as they deny the accused the right of representation by a counsel, are inconsistent with Article 7, the Regulation should not be deemed to have become unlawful on that ground alone. The learned Judges observed: "From now on we shout treat "Article 7 as a part of every law relating to trial for an offence. We shall, therefore, issue a direction that no evidence shall be heard or recorded against the accused before they have been given an opportunity of defending themselves by a pleader, and this shall be the rule in future." An interesting glimpse of how the above direction was in practice carried out is to be found in the following passage from the judgment in Muhammad Akbar Khan's case, above cited: "This concludes the matter, but in passing I would like to observe that at the time when the evidence in the case was recorded by the Council‑of‑Elders, the petitioner was not permitted to be defended by a counsel, and when at last permission was granted by the District Magistrate on the 18tb of September 1956, to be defended by a counsel, the order was made ineffective because the Council‑of‑Elders gave their award on the same date and the learned District Magistrate passed an order on the basis of that award on the following day. I have no hesitation in saying that the procedure adopted was a mere farce. It is a matter of regret that such a farce was allowed to be enacted by a responsible officer, to the prejudice of the petitioner." Though, therefore, it would be stretching the language of Fundamental Right No. 2 (1) too far to interpret it as meaning that no inquiry or trial can be held by a, special tribunal, the authorities administering the Regulation should clearly understands that even if section 11 is held to be otherwise constitutional,) which in my opinion it is not, any proceedings in which an arrested person is denied the right to consult and be defended by a legal practitioner of his choice will be illegal.

14. I now come to an aspect of this reference which has placed this Bench in a somewhat embarrassing position, namely, the contention of the learned Attorney‑General that the observa tions made by Cornelius, J. (as he then was) in Dosso's case are binding on this Court. With the utmost respect, it appears to me that although they are, of course, entitled to the very highest respect, the remarks in question are not the decision of the Supreme Court within the meaning of Article 63 of the Constitu tion, which lays down: "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." The learned Attorney‑General urged that as the other learned Judges did not dissent from the view expressed by Cornelius, J., they must be taken to have agreed with him. In support of this contention he relies on The Guardians of the Poor of the West Derby Union v. The Guardians of the Poor of the Atchain Union ((1890) 24 Queen's Bench Division 117)." The relevant portion of the judgment of Lord Esher, M. R. runs: "The House of Lords heard the case, and did not give judgment at once, but considered the matter carefully, and four of the learned Judges in the House of Lords gave judg ment. Now we know that each of them considers the matter separately, and they then consider the matter jointly, inter changing their judgments, so that every one of them has seen the judgments of the others. If they mean to differ in their view, they say so openly when they come to deliver their judgments, and if they do not do this, it must be taken that each of them agrees with the judgments of the others". The above observations are based on the procedure adopted in the House of Lords, but the learned Attorney‑General was unable to enlighten us as to whether the same practice is observed in the Supreme Court, and if it is not, the principle laid down by Lord Esher is not applicable. In this case, therefore, silence does not necessarily give consent.

15. The context in which Cornelius, J.'s remarks are to be read is that an appeal had been filed in the Supreme Court by the State against four writs issued by this Court under the Regulation, in which it had been held that the Regulation was void to the extent of its inconsistency with the 1956 Constitu tion. Before the appeals could be heard the Constitution was abrogated. Three of the four learned Judges were of the opinion that in consequence of that abrogation the writs had abated. They did not, therefore, consider it necessary to discuss the question of inconsistency. Cornelius, J. was, however, of the view that the writs had not abated and consequently should not be recalled unless it was necessary to do so on other grounds. After consideration of the question he came to the conclusion that sections 1 and i1 of the Regulation were not repugnant to Article 5 of the Constitution. 16.In the above circumstances, it does not appear to met with the utmost respect, that the view expressed by Cornelius' J. must be deemed to have been necessarily accepted by the other h learned Judges.

17. The observations of Cornelius, J. on which the learned Attorney‑General and the learned Advocate‑General rely are as under:‑ " These provisions (of the Regulation) are materially different from those contained in the Code of Criminal Procedure, and while in some respects, they might be thought to be less liberal than the latter provisions, to other respects, e. g. the binding nature of a finding of fact by a three‑fourths majority of a Jirga and in the matter of sentences, it may be thought that they are more advantageous to the accused person. The right of trial by one's equals or `peers' which is embodied in the mode of trial by jury, as known to British justice, is not one which has been easily or cheaply won. It is certainly very highly valued in countries where it prevails, as affording a guarantee for the subject against the possibility of official oppression through the modes' of justice. In the Frontier Crimes Regulation, this right is allowed to a very great extent. It is not a right which is allowed to the majority of the citizens of Pakistan. Indeed with the exception of a few districts in East Pakistan the right of trial by jury is practically non‑existent in this country. Again, the punishments awardable under the Frontier Crimes Regulation certainly make a greater concession to principles of humanity than those laid down by the Penal Code in operation all over Pakistan, as well as in most areas to which the Frontier Crimes Regulation applies. The absence of aright of appeal might be thought to be an illiberal provision. Yet it must be remembered that a sentence awarded by a Deputy Commissioner under the Frontier Crimes Regulation, upon the recommendation of a Jirga does' not merely present an isolated punitive action taken by the State against an‑erring subject. It must be regarded as an equation of all the con siderations to which the parties attach importance with reference to a crime committed in their midst as well as considerations applying more directly to the administration of areas where the maintenance of law and order is no easy matter, e.g., the effect upon family and tribal feelings, the possible result in regard to the maintenance of good order within the affected area and adjacent areas and the interests of public policy generally. The correction of an order having this nature and quality cannot lie within the four corners of a precise appeal as understood in the Code of Criminal Procedure. I had occasion to consider this question, though not in the same context as in this case, in an earlier case before the Federal Court of Pakistan which is published as Samundar v. Crown P L D 1954 F C

228. I, therefore, expressed the opinion that if the trial of offences under section 11 of the Regulation `can be regarded as a mode of justice at all, it is certainly not such a mode as is operated through the ordinary Courts of justice acting in accordance with the law of procedure and of evidence, but is rather to be assimilated to, and included among the agencies of the general administration'. The question for decision in that case had been formulated as being whether the Commissioner or the Deputy Commissioner can be regarded as a Court of justice, or whether on the contrary these officers are not to be regarded as part of the administrative agency established for the settlement of criminal cases, under the special considerations obtaining in Frontier areas. With reference to decrees in civil matters which may be referred to Jirga under section 8 of the Regulation, I made the following observation:‑ Obviously, such a decree is no simple decree of the civil Court of general jurisdiction. It is essentially to be regarded as an instrument embodying a settlement of rights between the contestants, which also satisfies the interests of public policy, by which can only be understood, in relation to any unsettled or frontier area, the general administrative policy of the Government.' These observations have some relevancy to this case. Even though the discussion of this question is confined to my judgment in the present case, and the conclusion does not form the basis of the decision of the Court, yet it may be of some use in elucidating the matter in some later case. I conceive that it is by no means illogical, and from the point of view both of justice as well as of sound administration generally, it may in certain areas be by no means unwise, that the power to revise decisions by a Deputy Commissioner upon recommendations by a Jirga should be placed in the hands of a higher executive authority, and that it should not be confined within the four corners of an appeal. Consequently if the conditions which make inquiry by Jirga into criminal offences an appropriate mode of investigation of such offences for the purpose of imposition of punishment by the State be postulated, then I do not think that it can be denied that the mode of reviewing of convictions and sentences which has been laid down in the Frontier Crimes Regulation is appropriate to the requirements." Again, at page 564, the learned Judge observed: "If a Legislature in such conditions left it to the head of the local administration to decide whether in a particular case, there being concurrent jurisdiction, he should not allow the case to go before the ordinary Courts, but should have it investigated by a Jirga, it would be hardly possible to condemn the provision as one designed merely to enable discrimination to be made between one person and another or one class and another within the area. As regards the question of discrimination between races, which has been discussed in some of the judgments under appeal, it falls to be observed that since notifications were made many years ago extending the provisions of the Frontier Crimes Regulation to the entire Province of Baluchistan, the statute cannot now be assailed upon this particular ground."

18. In the light of further experience of the working of the Regulation his Lordship has considerably modified the view expressed above. In The State v. Nawab Gul (P L D 1963 S C 270) the facts of which, were that proceedings had been transferred to a Jirga although no prima facie case was made out against the accused, the learned Judge observed: "The Courts cannot be the final judges in a question of expediency which is entrusted by the law to the executive for decision, but it may be permitted to question whether it can ever be expedient to refer under section 11, for trial a set of facts which do not constitute a case at all. * * * * * * * * * * * * * * * * * * * * * At a time when to a rapidly increasing extent, the jurisdiction, long‑established and familiar, belonging to the ordinary Courts, is being avoided in cases of serious crimes by orders of with drawal, made on the grounds of expediency, it is of importance that it should be known, in what kind of cases and in what manner, the power is being exercised. The present is a case whose facts give ample cause for concern whether public justice is advanced by proceedings of this kind. Or whether, on the contrary, if it becomes a general risk that men may be sent to be tried by Jirga when there is 'visibly no case against them, and they are deprived of redress through the ordinary forms of law, there is not a danger that the image of public justice, built up with the aid of careful legislation and steady implement at, on of rules of procedure for at least a hundred years, will inevitably be destroyed. What might follow can well be imagined. An immediate result will be that devotion to law and to lawfulness in behaviour will be at a total discount."

19. Reference may also be made to an address delivered by the learned Chief Justice on the subject "The Role of Law in the present changing times", in the course of which he stated: "To maintain the system of justice left behind by the British rulers through the difficulties of the post‑Partition period had been a great and honour-able task. It was also a necessary task, for there is nothing more certain than that the public in this country will not readily accept any system of justice which does not provide for methodical application of law through careful legal procedure to the evaluation of duly recorded evidence and ultimate resolution of the issues arising with the aid of comprehensive arguments by Advocates. The public has become ensured now to the provision of at least one appeal on fact, and one further appeal on law alone, so that a three‑tier system is an imperative of justice."

20. It further appears to me, with the utmost respect, that the remarks of the learned Chief Justice (Cornelius, J.) in Dosso's case hinge upon the words "consequently if the conditions which make inquiry by Jirga into criminal offences an appropriate mode of investigation of such offences for the purpose of imposition of punishment by the State be postulated" and further that he is now of the view that those conditions cannot, in fact, be any longer postulated.

21. Having considered the authorities cited before us, I am respectfully of the view that sections 8 and 11 of the Regulation providing for reference of proceedings to a Jirga offend against Fundamental Right No. 15, inasmu6 as the Deputy Commissioner and the Commissioner are given an uncontrolled discretion to select particular cases and even particular accused in the same case for the discriminatory procedure, such discretion being moreover not governed by any settled principle. They are also repugnant to Fundamental Right No. 1, it being now settled that the Jirga procedure cannot be described as a "law" in any recognised sense of the term. All other sections dependent on sections 8 and 11 automatically fall with them.

22. There remains section 40 of the Regulation, which has been reproduced in paragraph 4 above. One question requiring consideration in 'connection with the above section is the scope of clause (a) of subsection (2), or, more specifically, whether the recommendation arises solely out of proceedings referred to a Jirga under section 8 or section 11 of the Regulation, or whether it is open to the Deputy Commissioner to refer the question of whether a bond should be taken to the Council‑of- Elders for decision as an alternative to proceedings under clause (b). My own view is that there is a good deal to be said for the first interpretation. Subsection (2) does not say that in order to determine whether a bond should be required the Deputy Commissioner may refer the matter to a Council‑of‑Elders and thereafter act upon its recommendation. Section 18 of the Regulation shows that in addition to giving findings on the matters or the questions referred to them, they may also make recom mendations. Subsection (1) of section 18 runs: "Where a Council‑of‑Elders to which a reference has been made under this Regulation, makes any recommendation to which effect might be given if it were a finding on a matter or question referred to the Council under this Regulation, the Deputy Commissioner may, if the recommendation affects a person mentioned on the order of reference and is relevant to the matter or the question actually referred, deal with the recommendation or any part of it as if it were a finding under section 8 or section 11: Provided that no decree or sentence may be passed on any such recommendation as aforesaid against any person who has not had the claim or charge fully explained to him and been given an opportunity of entering upon his defence in regard thereto." The recommendations referred to in the above subsection are no doubt limited in scope, but it does not appear to me that the Council is precluded from making a recommendation on which action may be taken by the Deputy Commissioner under section 40.

23. The above view also appears to me to find some support from the new subsection (2‑A) added by Ordinance XXXVII of 1963, which empowers the Deputy Commissioner to take interim security pending the completion of an inquiry under subsection (2). It is obvious that the necessity of taking interim security may equally well arise during the deliberations of the Council‑of -Elders, and if it were contemplated that a Jirga was to be appointed for the specific purpose of deciding whether a bond should be taken, it is strange that no similar provision was made in respect of such proceedings. If, on the other hand, the recommendation arises out of proceedings referred to the Jirga under section 8 or section 11, there is obviously no need of taking interim security, since the material for a final order is already available. Reference may be made in this connection to subsection (3), which also contemplates the taking of a bond without further inquiry.

24. If, on the other hand, the alternative interpretation be adopted, namely, that a Jirga may be specially appointed to consider whether a bond should lie furnished, the vires of the section is open to the further attack that it confers on the Deputy Commis sioner an uncontrolled and arbitrary power to refer the matter to two different forums, one of which affords greater protection to the person concerned than the other.

25. For the above reasons I am of the opinion that section 40 and the other sections of the Regulation dependent upon it are inconsistent with‑ Fundamental Rights Nos. 1 and 15 of the Constitution, and consequently void to the extent of the inconsistency.

26. I would answer the reference accordingly. The petitions and revisions should be decided in the light of the above findings, and the applications for bail should be presented in the ordinary Courts. MUHAMMAD YAQUB ALI, J.‑

I agree. S. A. MAHMOOD, J.‑

I agree. ANWARUL HAQ, J.‑

I agree. ILAHI BAKHSH KHAMISANI, J.‑

I agree, A. H. Reference answered.